4. PRESENTATIONS HOW MADE, p. 954. Must be in writing- How a corporation must present · Evidence of a presentation — 5. FORMS OF PRESENTATION, pp. 954-956. DEFINED. 1. DEFINED. Presentation, nomination, and collation are sometimes in law used for the same thing, but they have different properties; for presentation is the offering a clerk to the ordinary; nomination is the offering a clerk to the patron; and collation is the giving of the church to the clerk, and is that act by which the ordinary admits and institutes a clerk to a church or benefice of his own gift, in which case there is no presentation. Presentation sometimes is taken to comprehend not only presentation, but admission, institution, and induction. (1) CAPACITY TO PRESENT AND All persons seised in fee, in tail, or for life, &c. can present. 2. CAPACITY TO PRESENT AND BE PRESENTEd. (2) All persons seised in fee, in tail, or for life, or possessed of a term for years of a manor to which an advowson is appendant, or of an advowson in gross, may present to a church. (1) Watson's Clergyman's Law, 148. 1 Inst. 120. (a). (2) Irishmen seeking clerical employment in England have been discouraged to an extent and in a mode inconsistent with the spirit of the act of union be tween England and Ireland. This reprehensible and narrow-minded line of conduct is not, however, universal. The Bishop of Exeter (vide ante, tit. ORDINATION) does not exclude Irishmen from his diocese; neither, among other prelates, do the Bishops of Lincoln, St. Asaph, Winchester, Hereford, Lichfield, or Norwich; and in reply to a letter from the author to the Bishop of Worcester, his lordship thus writes: — "I beg to inform you that an Irishman, or an Englishman having been ordained in Ireland, is not disqualified from the performance of clerical duties in this diocese. Considering the Established Church to be now the united Church of England and Ireland, I have not felt myself justified in making any distinction between the two branches of the same church. All, therefore, that I require from Irish candidates for orders is, that they should have passed through the theological course at Trinity College, Dublin; a condition which is, I understand, considered indispensable by all the Irish bishops." The rule of exclusion has been rigidly acted upon in regard to the higher benefices in England of the united church. The gross injustice of this proceeding is rendered the more offensive by the fact, that the honours and emoluments of the Irish branch of the united church are freely thrown open to clergymen ordained in England. Thus, of the great prizes in the Irish branch of the church, Armagh stands first, both in dignity and in emolument. This see has been occupied exclusively by men from the English universities, ever since the year 1702, a period of 145 years. For the first 120 years of that period the primates, eight in number, were all Englishmen by birth, as well as by education. The present primate, who has held the office for twenty-five years, is an Irishman, but was educated at Oxford. Dublin stands next to Armagh in point of dignity, and since the year 1682 to the present time (a period of 165 years) this see has been held as follows by PRESENT AND BE PRESENTED. As to the persons capable of being presented to a benefice before stat. CAPACITY TO 13 & 14 Car. 2. c. 4., deans and even laymen might have been presented to a benefice; but by virtue of that act, none but a priest, ordained according to the form and manner by the Book of Common Prayer prescribed, is capable of being instituted to any parsonage, vicarage, benefice, or other ecclesiastical promotion or dignity whatsoever, except only the king's professor of law within the University of Oxford, who may hold the prebend of Shipton in the cathedral church of Salisbury, although he be but a lay man. Presentee must be qualified in accordance with stat. 13 & 14 Car. 2. c. 4. It seems that an alien, who is a priest, may be presented to a church. (1) ALIENS. The supposed reason was, that they being spiritual persons would not adhere to our enemies in time of war; but the contrary was found by practice. (2) By stat. 3 Rich. 2. c. 3. and stat. 1 Hen. 5. c. 7. Frenchmen were disabled to have benefices in England. And the words of Lord Coke (3) are, "upon consideration had of the statutes 3 Rich. 2., 7 Hen. 4., 1 Hen. 5., Rot. Parl. 6 Hen. 4. n. 48., and 4 Hen. 6. n. 29., if an alien or stranger born be presented to a benefice, the bishop ought not to admit him, but may lawfully refuse him, which we have added, for that the abridgments or late impressions may deceive you." In Dr. Seaton's case (4), who was born in Scotland before the union of the two realms, it was adjudged, that he was capable to be presented to a benefice in England; and it was said he would have been qualified, if he had been born in Flanders, Spain, or within any other kingdom, friend and in league with the king of England; as the Bishop of Spolettoes, who was preferred to the deanery of Windsor, and enjoyed the same. And it was admitted, that such incumbent might maintain any action, real, personal, remaining eight (including both the arch- On the other hand, not even a solitary With respect to translations, there have been, since the Reformation, only two from Irish to English sees, the prelate translated, in each case, being an Englishman. 1. Hugh Curwin, archbishop of Dublin (he had previously been dean of Hereford and archdeacon of Oxford) growing old and infirm, and wishing to end his days in his own country, was translated to the see of Oxford in 1567. 2. Edward Jones, bishop of Cloyne, was translated from that see to St. Asaph in 1692. (1) 2 Rol. Abr. Presentment (L), 348. (4) Hughes' Parson's Law, 88. 17 Vin. CAPACITY TO or mixed, for any thing concerning the glebe or the possessions of the church BE PRESENTED. as prior aliens might have done; for although he be an alien born out of the king's dominions, yet the action was brought, not in his own right, but in the right of his church; not in his natural, but in his politic capacity; and therefore the action could be sustained. BANKRUPTS. An advowson passes under a fiat of bank. ruptcy. Where a bankrupt is entitled to an advowson, or to a right of next presentation to a living, it can be sold for the benefit of his creditors; but if the church be void at the time of the sale, or if a lapse occur before conveyance to a purchaser, the bankrupt himself must present, though the sale of the advowson is good. (1) For a sale made under such circumstances, is for the payment and satisfaction of just debts; but the void turn of a church is not a matter valuable, which can go in discharge or satisfaction of such debts, though he may though the advowson or next presentation during the time the church is full may be so accounted. (2) If the church be void, the patron must present, al be a bankrupt. Stat. 6 Geo. 4. c. 16. s. 77. CLERGYMEN. st. ii. c. 12. s. 2. And by stat. 6 Geo. 4. c. 16. s. 77. "all powers vested in any bankrupt, which he might legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical benefice), may be executed by the assignees for the benefit of the creditors in such manner as the bankrupt might have executed the same." Stat. 12 Anne, st. ii. c. 12. s. 2., after reciting that some of the Stat. 12 Anne, clergy have procured preferments for themselves by buying ecclesiastical livings, and others have been thereby discouraged, enacts, that if any person for any sum of money, reward, gift, profit, or advantage directly or indirectly, or by reason of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly, in his own name or in the name of any other person, take, procure, or accept the next avoidance of or presentation to any benefice with cure of souls, dignity, prebend, or living ecclesiastical, and be presented or collated thereupon, it shall be void, and be deemed a simoniacal contract; and that the crown may present or collate unto, or give or bestow every such benefice, dignity, prebend, and living ecclesiastical, for that one time or turn only; and the person so corruptly taking, procuring, or accepting of any such benefice, dignity, prebend, or living, is to be adjudged a disabled person in law to have and enjoy the same benefice, &c. and be subject to the same ecclesiastical punishment as if such corrupt agreement had been made after such benefice, dignity, prebend, or living ecclesiastical had become vacant. (3) Stat. 9 & 10 COGNISOR. But this act being only restrictive upon clergymen, all other persons continue to purchase next avoidances as they did before, and present thereunto as they think proper. By stat. 9 & 10 Vict. c. 88. agreements or other proceedings touching any advowson or right of presentation or nomination of any spiritual person to any cure or benefice, donative, or perpetual curacy, or to serve any church or chapel authorised by stats. 1 Geo. 1. st. ii. c. 10., and 8 & 9 Vict. c. 70., or by any act recited therein, are to be deemed lawful. It was said in Arundel v. Gloucester (Bishop of ), that when a manor with an advowson appendant was extended on statute merchant, and that the (1) Gibson's Codex, 794. (2) Watson's Clergyman's Law, 106.108. clergyman who purchased the right of patronage or next presentation should be deprived of it ipso jure. X. 3. 38. 6. PRESENT AND church became void during the cognisee's estate, he might present to it. But CAPACITY TO it is supposed, that if a case of this kind were now to happen, it would be governed by analogy to the case of a mortgagor, and that the cognisor would be allowed to nominate. cognisor would be allowed to Presentations by commendam may be defined as being a benefice or eccle- nominate. siastical living, which being void is commended by the crown to the care of COMMENDAM. some sufficient clerk until it may be conveniently supplied with a pastor. Where a clerk was presented to a benefice with cure, and admitted, instituted, and inducted, so that the church was full, and was afterwards presented to an incompatible benefice, or elected to a bishopric, he could obtain, before institution to the second benefice, or before creation to the bishopric, a faculty or dispensation of retainer, an invention of Pope Leo IV. (1) This right in the case of a bishopric was not a right of patronage in the king, nor a right of eviction, as it ejected nobody; nor an usurpation, as it was a rightful act. But it was a contingent casual right, arising upon a particular event-the incumbent's becoming a bishop. Not only dignitaries and benefices, but deanries, prebends, headships of colleges and hospitals, have been granted in commendam. (2) In every commendam capere, the consent of the patron was necessary before it was executed, and the consent expressed in the instrument of commendam (3); and it could not have been made in any general terms to an uncertain church, but to a certain church then void (4); the patron was the first actor, and the commendam had the effect of an admission, institution, and induction. (5) The main difference between the commendam retinere and the com- Difference between the mendam capere, was the holding that which was already one's own, and the capere and taking that which belonged to another. (6) retinere. But by stat. 6 & 7 Gul. 4. c. 77. s. 18. no ecclesiastical dignity, office, or benefice can be held in commendam by any bishop, unless he held it on August 13. 1836; and every commendam thereafter granted, whether to retain or to receive, and whether temporary or perpetual, will be absolutely void. Retinere having expired, granted... capere has been Stat. 6 & 7 Gul. 4. c 77. s. 18. No commen Where lands descend to daughters, sisters, or other females, of kin in dams to be held equal degree, they are coparceners; and are considered' but as one heir to by bishops. their ancestor, and they or their heirs respectively hold the lands together, COPARCENERS. till a partition be made. By the canon law, when either coparceners, joint tenants, or tenants in common presented, the bishop if he pleased might judge of the fitness of the clerks, and choose any one of them. (7) But by the common law, as stated by Lord Coke, "if the patrons If the patrons have the patronage by descent as coparceners, then is the ordinary bound have the patronage by CAPACITY TO descent, as coparceners, the ordinary the clerk of the elder sister. to admit the clerk of the eldest sister; for the eldest shall have the preferment in the law if she will (1), and then at the next avoidance the next sister shall present, and so by turn one sister after another, till all the sisters, or their heirs, have presented (2) and then the eldest sister shall begin again; and this is called a presenting by turn; and it holdeth alway bound to admit between coparceners of an advowson, except they agree to present together, or that they agree by composition to present in some other manner; and if they do so, the agreement must stand." (3) But "if after the death of the common ancestor the church voideth and the eldest sister presented together with another of the sisters, and the other sisters every one in their own name or together, in that case the ordinary is not bound to receive any of their clerks, but may suffer the church to run into lapse; for he shall not be bound to receive the clerk of the eldest sister, but where she presenteth in her own name." (4) Where the patrons vary in presentment, the church not litigious. The privilege of the elder sister to present first in turn goes to her assignee. Judgment of Mr. Baron Clarke in Buller v. Exeter (Bishop of ). "And in this case, where the patrons vary in presentment, the church is not properly said litigious; so that the ordinary should be bound at his peril to direct a writ to inquire de jure patronatus, for that writ lieth where two present by several titles; but these patrons present all in one title, and therefore the ordinary may suffer it to pass, if he will, into the lapse." (5) The privilege of the elder sister to present first in turn goes to her assignee; thus, in Buller v. Exeter (Bishop of) (6) the estate of an advowson descended to two daughters as parceners. The church became vacant twice in their time, and both joined in presentation. The elder married, settled her own estate in the common way, and died. The other daughter, before it became vacant again, married and made a settlement of her part. A vacancy happening, Buller the husband of the eldest, entitled to her estate as tenant by courtesy, or under the settlement, claimed as in her turn, and presented. But the bishop objected thereto, because the younger sister and her husband, claiming an equal right to presentation as tenants in common, did not join; but he was willing to admit the person having the legal right. Upon these facts Mr. Baron Clarke, in the absence of the Master of the Rolls, said: "I have always thought, that the many alternate presentations in this kingdom must arise from estates descending in parcenary, where advowsons are upon them. It is the only estate I know, which in course, and by operation of law only, falls on several persons making but one heir, without the intervention of conveyances by will or otherwise of the owner of the estate; which makes it, although in some instances partaking of a tenancy in common, different from that and from a joint-tenancy, which are made by conveyance, and descendible in a different manner. An advowson is a particular sort of an estate so descendible. And as it is impossible to be divided into parts so as to be enjoyed separately, as it is natural to follow the course that has been practised, that each parcener should have a turn to present; and, to prevent confusion, begin with the eldest. And in all the cases mentioned out of Bro. Abr. and F. N. B. where disputes arose, whether the alienee of the eldest sister should (1) Vide Thrale v. London (Bishop of), 1 Hen. Black. 412. (2) 2 Rol. Abr. Presentment (G), 346. pl. 1. (3) Doctor and Student, 200. |