Who are disabled from presenting. Wats, 106.

advowson is sold under the commission, the bankrupt shall present, or nominate, to the church.

39. With respect to the persons who are disabled from presenting to a church, none but natural-born subjects can exercise this right. Therefore if an alien purchases an advowson, and the church becomes vacant, the crown shall have the presentation.

40. Where a person seised of an advowson is outlawed, and the church becomes vacant while the outlawry is in force, such person is disabled from presenting, and the avoidance is forfeited to the crown.

41. By the statute I Will. and Mary, sess. 1. c. 26. every person who shall refuse or neglect to subscribe the declaration mentioned in an act of that parliament, intituled "An Act for the better securing the Government, by disarming Papists;" shall be disabled to make any presentation to a benefice. And the chancellor and scholars of the universities of Oxford and Cambridge shall have such presentation. (a)

42. By the third section of this statute, the trustees of Roman Catholics are dissabled from presenting to any benefice. And by the fourth section, such trustees, by presenting without giving notice of the avoidance to the vice-chancellor of the university, to whom the presentation shall belong, within three months after the avoidance, become liable to a penalty of 500l.

43. By the statute 12 Ann. st. 2. c. 14. s. 1. Roman Catholics are disabled from presenting to any benefice; and every such presentation is declared void to all intents and purposes. By the stat. 11 Geo. 2. c. 17. s. 5. every grant made of any advowson or right of presentation, collation, nomination, or donation to any benefice, by any person professing the Catholic religion, or by any mortgagee or trustee of such per

(a) The presentation to the livings situated south of the Trent belong to Oxford; and those situated north of that river belong to Cambridge.

son, shall be null and void; unless it be for valuable consideration to a Protestant purchaser.

44. A lunatic cannot present to a church, nor his Lunatics. committee. But the Lord Chancellor, by virtue of the general authority delegated to him by the crown, presents to all livings whereof lunatics are patrons, whatever the value of them may be; generally, however, giving it to one of the family. Doctor Woodeson says Lect. Vol. I. this right was first asserted by Lord Talbot, whose 409. example has been followed by all his successors.

of the clerk.

45. The right of presentation to an ecclesiastical be- Examination nefice is but a limited trust, for the bishops are still in law the judges of the qualifications of those who are presented to them for that purpose. Patrons never had the absolute disposal of their churches, upon their own terms; for if they did not present fit persons, within the limited time, the care of appointing a proper person to fill up the vacant benefice returned to the bishop. And as the law requires that the clerk presented be idonea persona, various exceptions may be made to 2 Inst. 631. the character and qualifications of the person presented. 1. Concerning his person, if he be under age, or a layman. 2. Concerning his conversation, if it be irregular or criminal. 3. Concerning his ability and sufficiency to discharge his pastoral duty, which belong to the bishop, as the proper ecclesiastical judge; who may and ought to refuse the person presented, if he be not idonea persona.

Specot's case,

46. It was resolved by the Court of King's Bench in 32 Eliz. that all such as are sufficient causes to deprive 5 Rep. 57. an incumbent, are also sufficient causes for refusal of a

presentee.

47. It is a good cause of refusal of a clerk that he 2 Roll. Ab. 356. is simoniacus in the same presentment; that is, has

made a corrupt contract to be presented; or that he is

simoniacus in another benefice.

48. When the bishop refuses without good cause, Wats. 230. or unduly delays to admit and institute a clerk to the

church, to which he is "presented, the clerk may have his remedy against the bishop in the ecclesiastical

court.

49. If the patron finds himself aggrieved by the ordinary's refusal of his clerk, he may have his remedy by writ of quare impedit, in the temporal court; and in such case the ordinary must shew the cause of his refusal, specially and directly; not only that he is a schismatic or a heretic, but also the particular schismatical or heretical opinions with which he is charged must be set forth; for the examination of the bishop does not finally conclude the plaintiff; and without shewing specially, the Court cannot inquire and resolve whether the refusal be just or good. If the cause of refusal be spiritual, the Court shall write to the metropolitan to certify thereof; or if the cause be temporal, and sufficient in law, which the temporal court shall decide, the same may be traversed, and an issue thereupon joined and tried by a jury.

50. 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 presentee was a person not sufficient or capable in learning to have the church; and that he need not set forth in what kind of learning, or to what degree, he was defective.

51. As it is of the utmost importance to the public that ecclesiastical benefices should be conferred on those only whose learning and piety qualify them for the duties annexed to such offices; the law has always been extremely careful in watching over those who have advowsons, lest they should be influenced, in the exercise of their right of presentation, by any corrupt or improper motives. It has therefore been established from the earliest times that no pecuniary or other valuable consideration ought, in any instance, to be given or received for procuring a presentation to a church. This offence is called simony in the canon law; the person making a corrupt contract of this kind is called

§ 52-55. simoniacus, and a person thus presented to a church is said to be simoniacè promotus.

52. By the statute 31 Eliz. c. 6. it is enacted, for avoiding of simony, that if any patron, for any sum of money, reward, gift, profit, or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance, shall present or collate any person to an ecclesiastical benefice or dignity, such presentation shall be void, the presentee be rendered incapable of ever enjoying the same benefice, and the crown shall present to it for that time only.

53. It was formerly held, that if a person who had Wats. 96. acquired a benefice by simony, enjoyed it during his life, the king might present after his death, because the church, notwithstanding the institution and induction of the simonist, remained void to the king's presentation, before his death; and his death could not make him incumbent that was none before, or otherwise alter the case. But now, by the statute 1 Will. & Mary, c. 16., it is enacted, that if a person simoniacally presented shall die without being convicted of such simony in his lifetime, such simoniacal contract shall not prejudice any innocent patron or clerk on pretence of lapse to the crown, or otherwise.

presentation

54. The first kind of simony under the statute 31 Procuring a Eliz. is where any sum of money, gift, reward, profit, for money. or benefit, is given or promised, directly or indirectly, for procuring a presentation to a benefice. And Lord 3 Inst. 156. Coke observes that simony is the more odious, because it is ever accompanied with perjury; for the presentee is sworn not to commit simony.

55. If a clerk seeks to obtain for money a presenta- Wats. 43. tion to a void church, though afterwards the patron present him gratis, yet this simoniacal attempt disables him from taking the benefice; being deemed an unfit person to hold it, for having at any time been capable of intending to obtain it corruptly.

Idem 37.

Byrte v. Manning, Cro. Car. 191.

Baker v. Mounford, Noy, 142.

Hutchinson's case, 12 Rep.

101. Id. 74. 3 Inst. 154.

56. If a patron promises a clerk that in consideration of his marrying his daughter or kinswoman he will present him to a living when void, this is a simoniacal contract.

57. But where A. covenanted that B. his son should marry C. the daughter of D., in consideration of which D. covenanted to advance 300l. for his daughter's portion; and A. covenanted to settle certain lands on his son and his intended wife. There were likewise covenants on the part of A, for the value of the lands, and for quiet enjoyment; and a covenant on the part of D. to procure a certain benefice for B. on the next avoidance. It was held that this was not a corrupt contract, it not being a covenant in consideration of the marriage,~ but a distinct and independant covenant, without any apparent consideration.

58. A reservation of a profit to a stranger, as an annuity to the widow or son of the last incumbent, does not appear to be within the statute 31 Eliz., though Doctor Watson doubts it but it is perfectly clear that a reservation of any kind of profit, in favour of the patron, is within the statute.

59. It was resolved by all the judges, in 8 Jac. I., that if any should receive or take money, fee, reward, Cro. Eliz. 789. or other profit, for any presentation to a benefice with cure, although in truth he which is presented be not knowing of it, yet the presentation, admission, and induction, are void, by the express words of the statute 31 Eliz., and the king shall have the presentation hac vice. For the statute intends to inflict punishment upon the patron, as upon the author of this corruption, by the loss of his presentation; and upon the incumbent who came in by such a corrupt patron, by the loss of his incumbency, although that he never knew of it. But if the presentee be not cognizant of the corruption, then he shall not be within the clause of disability in the same statute.

Rex v. Trussel, 1 Sid. 329. 2 Keb. 204.

60. In a writ of error to reverse a judgment, whereby