England, the bequest was ordered to be distributed amongst the poor of GRANTS, each society. (1) DEVISES, AND A bequest in trust, for "nonconforming ministers and dissenters," is DISSENTERS. good. So an annuity to the minister of a Baptist meeting-house and his successors, has been held to be good. (2) But a bequest of money to be laid out in land, for the benefit of two preachers at a chapel, although it is to be otherwise invested till an eligible purchase can be made, is void, under the Statute of Mortmain. A court of equity regards with a jealous eye bequests for the encouragement of itinerant preachers. (3) 8. DISSENTING SCHOOLMASTERS. It is only on condition of qualifying specially, in a similar manner to preachers, that schoolmasters can legally exercise their professions. (4) But persons so qualifying are not enabled to obtain or hold the mastership of any college or school of royal foundation, or of any other endowed college, or school for the education of youth, unless the same has been founded since the first of William and Mary, for the immediate use and benefit of Protestant dissenters. (5) DISSENTING SCHOOL MASTERS. 9. FOREIGN PROTESTANT MINISTERS. Foreign Protestant ministers, domiciled in this country, it seems, are entitled, on the same terms, to the privileges of dissenting ministers. (6) 10. TESTS AND OATHS OF OFFICE. FOREIGN PROTESTANT Foreign Pro testant ministers are entitled to equal privileges with dissenting ministers. TESTS AND OATHS OF Previously to stat. 9 Geo. 4. c. 17. no person could be elected, or take OFFICE. upon himself the office of mayor, alderman, recorder, bailiff, town clerk, common-councilman, or any other office relating to the government of cities, corporations, boroughs, cinque ports, and other port towns in England, Wales, and Berwick-upon-Tweed, unless he had, within one year preceding, taken the sacrament of the Lord's Supper, according to the rites of the Church of England. (7) But stat. 9 Geo. 4. c. 17. after reciting stat. 13 Car. 2. st. ii. c. 1., stat. 25 Sacramental Car. 2. c. 2., and stat. 16 Geo. 2. c. 30., repeals so much of them as require test abolished, TESTS AND Declaration when and where to be made. STAT.10 GEO. 4. c. 7. OATHS OF ALLEGIANCE, SUPREMACY, AND ABJURATION the receiving the sacrament as a qualification for civil or municipal offices or employments. It then provides a declaration, which is to be made and signed in lieu of the sacramental test, and that in case of neglect to make the declaration within one calendar month before, or upon admission to any such corporate office, &c., the election is to be void. And that persons admitted into any office, which before the passing of that act required the taking of the sacrament, are to make the declaration within six months after such admission, or the appointment to be void. The declaration in case of appointments to offices under the Crown, may be made and signed in the Court of Chancery, or the King's Bench, or at the quarter sessions of the county where the party resides; and in the case of admission to corporate offices, before the persons who usually administer the oaths; or in default thereof, of two justices of the peace of the county or franchise; and the same is to be preserved among the records of the court, &c. Naval officers below the rank of rearadmiral, and military officers below the rank of major-general in the army, or colonel in the militia, are exempted from making the declaration in respect of their commissions. And the like exemption extends to commissioners of customs, excise, stamps, or taxes, and the officers under them, or under the postmaster-general. And naval and military officers receiving place or appointment during absence from England, or within three months previous to departure from thence, may make the declaration at any time within six months after their return to England. The act also indemnifies from penalties, and confirms the possession of all persons then in offices which theretofore required the taking of the sacrament, and who had omitted to do so; and provides that omissions to make the declaration, are not to affect the rights of others not privy thereto. Stat. 10 Geo. 4. c. 7. dispensed with the necessity for the declaration against transubstantiation, the invocation of saints, and the sacrifice of the mass. But the oaths of allegiance, supremacy, and abjuration, are still to be administered as before, upon the admission to corporate offices, or employments under the Crown, unless the appointee be a Roman Catholic. And all those officers, who neglect or refuse to take such oaths, &c., and make the declaration, are ipso facto disabled to hold the office or employment, or any profit appertaining thereto. These enactments do not extend to any pension or salary granted by the Crown for valuable and sufficient consideration, other than those relating to offices or places of trust under the Crown, or to pensions of bounty or voluntary pensions; nor to the office of petty constable, tithing-man, headborough, overseer of the poor, churchwardens, surveyor of the highways, or any like inferior civil office; nor to any office of forester, or keeper of a park, chase, warren, or game; bailiff of a manor or lands, or like private offices; nor to persons having only the like offices. Nor do they extend to make any forfeiture, disability, or incapacity, by or in non-commissioned officers in the navy, duly subscribing the declaration against transubstantiation; or by or in any person beyond the seas, duly qualifying within six months after his return to England. (1) (1) Vide 13 Car. 2. st. ii. c. 1.; amended by stat. 1 Geo. 1. st. ii. c, 13., stat. 5 Geo. 1. c. 6., stat. 16 Geo. 2. c. 30., stat. 9 Geo. 4. c. 17., stat. 1 Gul. 4. c. 26., stat. 5 & 6 Gul. 4. c. 28. OATHS OF OFFICE. If the party do not take the oaths, and comply with the other requisitions TESTS AND of the statutes, upon which the validity of his election or appointment depends, whether they be tendered or not, the election is void. But he may demand to have them administered to him, and the Court of King's Bench will grant a mandamus to compel the proper officer to perform the ceremony if he refuse. (1) Protestant dissenters appointed to any parochial or ward office, who scruple to take on themselves such offices, in regard to the oaths or other matter or thing required by law to be taken or done, respecting such office, are permitted by the Toleration Act (2), to execute the same by a sufficient deputy, to be provided by them, who will comply with the laws in that behalf; such deputy being allowed and approved in the same manner as the officers themselves should, by law, have been allowed and approved. Serving office by deputy. DIVORCE. (3) DONATIVE. 1. DEFINED, p. 478. 2. GENERALLY, pp. 478–480. In whom the right of presentation is vested— Goes to heir and not to executor — There is not any one particular description of ecclesiastical preferments that is peculiarly said to be donative The rights of donors of donatives seem, in some cases, to have been derived from the bishops Donatives distinguished from sinecures Effect of a donative-Lapse Extinguishment of donatives. 3. QUALIFICATIONS AND RIGHTS OF DONEES, pp. 480-482. How far the donee must qualify as other clerks promoted – The term donative comprehends benefice- Stat. 57 Geo. 3. c. 99. includes the curates of donatives — Donatives are within the statutes of uniformity and simony — Qualifications for the clerks of donatives — How far the clerks of donatives exempt from the ordinary's jurisdiction. 4. AUGMENTATIONS OF DONATIVES, pp. 482, 483. Donatives augmented by Queen Anne's Bounty — Stat. 1 Geo. 1. st. ii. c.10. 5. HOW FAR Donatives are of TEMPORAL COGNISANCE, p. 483. 6. FORM OF A Donative, p. 483. (1) Rez v. Oxon (Mayor of), 2 Salk. 428. S. C. nom. Rex v. Slatford, 5 Mod. 316. Comb. 419. (2) 1 Gul. & M. st. i. c. 18. s.7. Defined. 1. Defined. A donative is a spiritual preferment, be it church, chapel, or vicarage, which is in the free gift or collation of the patron, without making any presentation to the bishop; and without admission, institution, or induction by any mandate from the bishop or others; but the donee may, by the patron, or any other authorised by the patron, be put into possession. (1) GENERALLY. In whom the right of presentation is vested. Goes to heir and not to executor. There is not any one par. ticular description of ecclesiastical pre ferments that is peculiarly said to be donative. 2. GENERALLY. The executor has no right to present to donatives vacated during the lifetime of the testator, and not filled up at his death, as in a benefice presentation, but the right of presentation is in the heir. In Repington v. Tamworth School (The Governors of)(2), a person became seised of the advowson of a donative; the church in his life-time became void: he died, the church being still void. The executor of the testator brought a quare impedit, supposing himself entitled to this turn, as an executor is in the case of a presentative benefice; but it was held, that the right of donation descended to the heir at law; and that the executor had no title, which he would have had, if it had been a presentative benefice. (3) There is not any one particular description of ecclesiastical preferments that is peculiarly said to be donative; for some of all sorts may be donative, as well as presentative or elective. Bishoprics were donative in England, after the Conquest, until the time of King John. (4) So a prebend was donative, as at Windsor and Westminster, and when the prebend was void, it was said, that the king could make collation of his clerk by patent, and could take possession without any institution or induction. Also, a benefice with cure of souls may be a donative, as the rectory of Briary, or Burien, in Cornwall; and so the church of the Tower of London is a cure of souls, and the king's donative. (5) Yet some of these instances may be said to resemble donatives, rather than to be donations, properly so called: such as the grant of the king to prebends without institution; as, also, the collation of a bishop without presentation; and the nomination to perpetual curacies, which is without either presentation, institution, or induction. For these differ from donatives properly so called, which are given and fully possessed by the sole donation of the patron in writing; inasmuch as collations and royal grants are to be (1) Degge's P. C. by Ellis, 246. Farchild v. Gayre, Cro. Jac. 63. S. C. nom. Fairchild v. Gaire, Yelv. 60. (2) 2 Wils. 150. (3) Sed vide Mirehouse v. Rennell, 8 Bing. 5630. and observations per Chief Justice Tindal, Mr. Justice Bayley, and Mr. Justice Holroyd. (4) Vide ante, tit. BISHOPS. (5) Watson's Clergyman's Law, 170. 2 Rol. Abr. Presentment (R), 341. pl. 2. 11 Hen. 4. 9. 1 Inst. 344. Farchild v. Gayre, Cro. Jac. 63. Quarles v. Fayrchild, Cro. Eliz. 653. followed by induction and instalment; and persons nominated to curacies GENERALLY. are to be authorised by a licence from the bishop before they can legally officiate whereas possession by donation is not subject to any of these consequents, but receives its full essence and effect from the single act and sole authority of the donor. (1) donors of donatives, seem to have been derived from the bishops. The foregoing rights of the donor of a donative, together with the ex- Rights of emption of the church from ecclesiastical jurisdiction, seems to have come from the consent of the bishop in some particular cases; as when the lord of a manor in a great parish, having his tenants about him at a remote distance from the parish church, offered to build and endow a church there, provided that it should belong entirely to him and his family, to put in such persons as they should think fit, if they were in holy orders. It is very possible, that the bishops at that time, to encourage such a work, permitted them to enjoy this liberty; which being continued time out of mind, has turned into a prescription. And they are to be distinguished Donatives from those called sinecures and exempt jurisdictions; for sinecures, in distinguished truth, are benefices presentable; but, by means of vicarages endowed in the same places, the persons who enjoy them have by long custom been excused from residence; and exempt jurisdictions are not so called because they are under no ordinary, but because they are not under the ordinary of the diocese, but have one of their own, and are therefore called peculiars. (2) from sinecures. donative. The grant of a donative being once made, creates a right as full and Effect of a lasting as institution and induction; that is, a right, not to be taken away but by the resignation or deprivation of the donee; the resignation to be made to the donor, and the deprivation to be made by the donor likewise; both the church and the clerk being exempt from ordinary jurisdiction. Thus, it is laid down, in the reports of Sir John Davis, that a donative cannot be granted for years, or at will only, because this inconvenience would follow, that the freehold might be in perpetual abeyance, which the law will not suffer. (3) If the patron of a donative do not nominate a clerk, there can be no Lapse. lapse thereof, unless it be specially provided for in the foundation; the bishop may, however, compel him to do it by spiritual censures. (4) But if it be augmented by Queen Anne's Bounty, it will lapse in like manner as presentative livings. "For tives. If the true patron once waive the privilege of donation, and present to Extinguishthe bishop, and his clerk be admitted and instituted, the advowson will ment of donabecome for ever presentative, and can never be again donative.(5) these exceptions to general rules and common right, are ever looked upon by the law in an unfavourable view, and construed as strictly as possible. If, therefore, the patron, in whom such peculiar right resides, do once give up that right, the law, which loves uniformity, will interpret it to be done with an intention of giving it up for ever, and will, therefore, reduce it to the standard of other ecclesiastical livings." (6) (1) Watson's Clergyman's Law, 171. 2 Burn's E. L. 223. (2) 1 Stilling. Eccles. Cases, 335. 2 Burn's E. L. 222. (3) Gibson's Codex, 819. and Chapter of) case, Dav. 46. Fernes' (Dean (4) 1 Inst. 344. Gibson's Codex, 819. Fairchild v. Gayer, Yelv. 61. (5) 1 Inst. 344. Farchild v. Gayre, Cro. Jac. 63. (6) 3 Black. Com. by Stephen, 82. |