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but it is a right to give some other man a title to such bodily possession. The advowson is the object of neither the sight nor the touch; and yet it perpetually exists in the mind's eye, and in contemplation of law. It cannot be delivered from man to man by any visible bodily transfer, nor can corporal possession be *had of it. If the patron takes corporal possession of the church, the church-yard, the glebe, or the like, he intrudes on another man's property; for to these the parson has an exclusive right. The patronage can therefore be only conveyed by operation of law, by verbal grant, either oral (5) or written, which is a kind of invisible mental transfer: and being so vested it lies dormant and unnoticed, till occasion calls it forth, when it produces a visible corporeal fruit, by entitling some clerk, whom the patron shall please to nominate, to enter, and receive bodily possession of the lands and tenements of the church.

appendant,

Advowsons are either advowsons appendant, or advowsons in gross. Lords of manors being originally the only

(5) A little slip which our author (following Lord Coke, 1 Inst. 120 a) has made here, has been noticed by all his annotators. Blackstone, in all probability, was thinking only of advowsons appendant, and of the mode by which they might have been conveyed before the statute of frauds, (29 Cha. II. c. 3); up to which period, as the corporeal hereditaments to which they were appendant might have passed by a verbal feoffinent, with livery, the appendant advowson would have passed by the same oral transfer. (Long v. Hemings, 1 Leon. 208, and 4 Leon. 216; S. C. Cro. Eliz. 209. Vavasor's case, 2 Leon. 222). But our law never permitted an advowson per se, or in gross, to be passed otherwise than by deed; there are some opinions leaning the other way to be found in the Year Books cited in Mal

lory's Quare Impedit, 42, but the authorities are all on one side. As a distinct incorporeal hereditament an advowson is incapable of that delivery of possession which, in the old times, was held to give, and perhaps did give, sufficient notoriety to the transaction; other evidence, therefore, of the transfer of an advowson was properly required. Even the next avoidance of a church cannot be granted without a deed. (Crisp's case, Cro. Eliz. 164). As to the different modes by which such incorporeal hereditaments as advowsons in gross may, at the present day, be transferred, see ante, note (1) to this chapter. An advowson appendant may still be transferred by any kind of conveyance which transfers the manor or demesnes to which it is appendant. (See a number of cases relating to this matter collected in 1 Roll's Ab. 230-233).

founders, and of course the only patrons of churches (d), the right of patronage or presentation, so long as it continues annexed to the possession of the manor, as some have done from the foundation of the church to this day, is called an advowson appendant (e): and it will pass or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words (f) (6). But where the property of the advowson has been once separated from the property of the manor

or in gross;

by legal conveyance (7), it is called an advowson in gross,

(d) Co. Litt. 119.

(e) Ibid. 121.

(f) Ibid. 307.

(6) In Whistler's case, 10 Rep. 64, which an advowson is appendant, be it was agreed, that, before the statute conveyed away in fee simple, excepting de prærogativa, (17 Edw. II. st. 2, c. the advowson, or, vice versa, if the ad15), the rule stated in the text applied vowson be conveyed away without the universally to grants of the king, as manor to which it was appendant, the well as to grants of private persons; advowson becomes in gross. (Fulmerand that if the king had granted a ma. ston v. Stuard, Dyer, 103b). If, upon nor to which an advowson was appen- partition between two coparceners, a dant, without making mention of the manor be allotted to one, and an adadvowson, or without saying the grant vowson appendant thereto to another, of the manor was cum pertinentiis, the the advowson becomes, for a time at advowson would pass; in Willion v. least, severed from the manor; but if Berkeley, 1 Plowd. 243, it is said, on by the death of one coparcener without the other hand, that the statute was issue, the two estates become re-united only a declaration of the common law; by law, the advowson which was once and that, although the grant of every severed, is now appendant again. (Sir subject is taken most strongly against Moyle Finch's case, 6 Rep. 64b. Harhimself, and most favourably towards top v. Dalby, Hetley, 14). The dicthe grantee, it is a maxim of the com- tum in the text, therefore, which intimon law, that the king's grant is to be mates that an advowson which once taken most strongly against the gran- becomes in gross, can never again be tee; which maxim applies to the sub- appendant, must be qualified. (see Gibject in question as well as any other. son's Codex, 757). And our author However this may be, it is quite clear, could not mean, that a temporary sethat, since the statute, a grant from the verance, by a lease for life or years of king of a manor, even with its appur- a manor, with the exception of an aptenances, will not pass an appendant pendant advowson, will have the effect advowson, which is not expressly spe- of totally destroying its appendant quacified in the grant. (Chancellor of Cam- lities: the contrary doctrine has been bridge v. Walgrave, Hob. 127, 164). established. (Hartox v. Cock, Hutt. 89. (7) For instance, if the manor to Jenk. Cent. 310, pl. 91). And where

presentative,

collative,

or at large, and never can be appendant any more; but is for the future annexed to the person of its owner, and not to his manor or lands (g).

Advowsons are also either presentative, collative or donative (h). An advowson presentative (8) is where the patron hath a right of presentation to the bishop or ordinary, and moreover to demand of him to institute his clerk, if he finds him canonically qualified; and this is the most usual adAn advowson collative (9) is where the bishop and patron are one and the same person: in which case the (g) Co. Litt. 120. (h) Ibid.

vowson.

several parties have a right to nominate
and present to a church in turns, the
advowson may be appendant for one
turn, and in gross for another. (Illis-
field case, Dyer, 259a, pl. 19).

a

(8) Formerly, presentation to church might have been made by parol. (Co. Litt. 120), but, since the sta tute of frauds, presentation by a subject must be in writing. As presentations by the king, however, are not expressly mentioned in the statute, the privilege of presenting by bare parol still remains to the crown, but is not very likely to be exercised: the usual mode of presentation on the part of the crown is by letters patent. (Mallory's Quare Impedit, 83). The king may revoke his presentation at any time before the induction of his presentee. (Wright v. The Bishop of Norwich, 1 Leon. 156). So, if the king has title to present, by lapse, hac vice, and he does present, but his clerk dies before induction, the king shall present again; for the king ought always to have the full and complete effect of the thing which is due to him. (Holt's case, 9 Rep. 132. Brockham's case, Litt. Rep. 135). But after presentation, admission, and institution,

the church is full against every subject, before induction. (Hutchins v. Glover, Cro. Jac. 463). Before admission, a subject may vary his presentation, so far as to present a second clerk, and the ordinary may admit which of the two he pleases, (Mallory's Quare Impedit, 84): but whether the first presentation may be absolutely revoked, seems not well settled. (Stoke v. Sykes, Latch, 191, 253). As to the grounds upon which the ordinary may be justified in refusing to accept a presentation, see Specot's case, 5 Rep. 58, and Mallory's Quare Impedit, 87; see also ante, note (3) to this chapter. By the common law, all patrons have six months allowed to determine on their presentation, before a lapse will occur. (Doctor and Student, chap. 36, part 2). And a caveat may be entered by the patron to prevent the bishop from hastily admitting a clerk presented by one who is not in truth the patron. (Degge, part 1, c. 3).

(9) As the Bishop collates to benefices which are pleno jure, in his own gift, so he doth to those which fall to him by lapse. (Johnson's Eccles. L. 81. Watson, c. 15).

bishop cannot present to himself; but he does, by the one act of collation or con*ferring the benefice, the whole that is [*23] done in common cases by both presentation and institution. An advowson donative (10), is when the king, or any sub- or donative. ject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gift or disposal of the patron; subject to his visitation only, and not to that of the ordinary; and vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or in

(10) Watson says, (in the 15th ch. of his Comp. Inc.) not only a church or chapel, but all sorts of ecclesiastical preferments, may be donative. Bishopricks were donative until the time of king John. Some prebends are still donative; as those in the Royal Chapels at Windsor and Westminster, which the king may confer by patent. and his clerk may take possession without any institution or induction. A nomination, however, to a perpetual curacy is not strictly a donative; for, though it requires neither presentation, institution, nor induction, the curate must be authorized by a licence from the bishop before he can legally officiate; whereas possession by donation receives its full effect from the sole authority of the donor. (Bowell v. Milbank, 1 T. R. 401, n. The King v. Bishop of Chester, 1 T. R. 403). Degge, (in his Pars. Couns. p. 1, c. 13,) informs us, that "donatives are within the statute against simony; and where they have cure of souls, they are likewise within the statute of pluralities." And the same doctrine as to simony is judicially laid down in Bawderock v. Mackallar, Cro. Car. 331; and Carver v. Pinkney, 3 Lev. 83. Mr. Wooddeson, however, (in his Lect. vol. i. p. 330,) observes, the words of the statute apply only

when the donative is the first living taken; if it be the second, as it requires neither institution nor induction, the case is out of the statute. (See 21 Hen. VIII. c. 13). Still, by the canon law, the incumbent will be prevented from holding both benefices, unless he has a dispensation. (Ayliffe's Parerg. 418; Lindw. lib. 3, tit. 5, c. 2). A donative does not lapse in consequence of remaining void, unless it be so specially provided for in the foundation; but the bishop may, by spiritual censures, compel the patron to nominate a clerk. (1 Inst. 344. Wats. c. 12. Fairchild v. Gayre, Yelv. 61). But if a donative be augmented by Queen Anne's bounty, it will lapse in like manner as presentative livings. (1 Geo. I. st. 2, с. 10). The prerogative of the crown in presenting to benefices where it has promoted the last incumbent, does not extend to donatives; for the promotion doth not make a vacancy of the donative, it causes no cession, the parson is still in by the authority of the patron. (Bishop of London v. Attorney-General, Show. P. C. 184). Presentation to a donative by a stranger, and admission and institution thereupon, are acts not merely voidable but of no effect ab initio. (1 Inst. 344).

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duction (i). This is said to have been antiently the only way of conferring ecclesiastical benefices in England; the method of institution by the bishop not being established more early than the time of Archbishop Becket, in the reign of Henry II (k). And therefore, though Pope Alexander III. (1) in a letter to Becket, severely inveighs against the prava consuetudo, as he calls it, of investiture conferred by the patron only, this however shews what was then the common usage. Others contend that the claim of the bishops to institution is as old as the first planting of Christianity in this island, and in proof of it they allege a letter from the English nobility to the pope in the reign of Henry the Third, recorded by Matthew Paris (m), which speaks of presentation to the bishop as a thing immemorial. The truth seems to be, that where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him; but where the clerk was already in orders, the living was usually vested in him by the sole donation of the patron; till about the middle of the twelfth century, when the pope and his bishops endeavoured to introduce a kind of feodal dominion over ecclesiastical benefices, and, in consequence of that, began to claim and exercise the right of institution universally, as a species of spiritual investiture.

However this may be, if, as the law now stands, the true patron once waves this privilege of donation, and presents to the bishop, and his clerk is admitted and instituted, the ad*vowson is now become for ever presentative, and shall never be donative any more (n) (11). For these exceptions to

(i) Co. Litt. 344.

(k) Seld. Tith. c. 12, s. 2.

(1) Decretal, 1. 3, t. 7, c. 3.

(m) A. D. 1239.

(n) Co. Litt. 344. Cro. Jac. 63.

(11) Degge, 205, is in accordance with the text; and though in the case of Ladd v. Widdows, (2 Salk. 541.3 Salk.

140. Holt's Rep. 259), a donative was held not to be destroyed by one, or by several, presentations; still, it does not

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