HOW AN MAY OCCUR. Judgment of Alston (Clerk) v. Atlay. the church was void before the presentation, for the form of presentation is, ad ecclesiam jam vacantem,' which presupposes vacancy before the presentation. "In Rex v. London (Bishop of) (1), it was resolved by the four judges, that, where the first living was under value, the acceptance of a second was an avoidance by the canon law, ipso jure, without any deprivation; so that the patron could present, if he wished, without any sentence of deprivation; and, the church being once void, as to the patron to present, a dispensation by the archbishop afterwards came too late, and could not restore the clerk to his benefice: and Jones says, it seemed to him clearly that, by the institution and induction to the second benefice, the first being under value, the first benefice was void, as well as if it was above value; but the difference in the last case is, that the patron must take notice at his peril, for it is void by the act of parliament, and the words are, it shall be void, as if the incumbent were dead; and, if he does not present in six months, the living will lapse. But in the first case there was no lapse, and the patron might present. And he also gave his opinion, that, if the bishop give notice to the patron of the taking of the second benefice, if he do not present within six months, there would be a lapse, as upon deprivation or resignation; and, if the benefice was not void, but there ought to be a deprivation, then the presentment and institution upon that would be a void institution; which is not so, for the first institution and incumbency is made void by taking the second benefice.' "And the case of Leak v. Coventry (Bishop of) (2) has a very important bearing upon the question now under discussion, for it is a direct authority that, where the bishop, after deprivation, but without giving notice of such deprivation, collated, and the patron afterwards grants the advowson in fee, and the clerk collated by the bishop dies, the grantee of the advowson cannot bring a quare impedit: and the reason given is, that, when the original patron had right to present upon the deprivation, as in his turn, although the collation by the bishop, without notice, was not good, nor ousted him, but that he always might have presented, and ousted the incumbent by his bringing a quare impedit, yet it is but a thing in action; and when he hath granted the advowson over, the grantee cannot have this thing in action. "It is only in more modern times, we believe, that the benefice is said to be voidable.' In 2 Gibson's Codex, 906. in a note, it is said to be 'voidable;' but that word is used as an explanation of the former part of the note. In the very modern cases of Betham v. Gregg(3), and Apperley v. Hereford (Bishop of)(4), the word 'voidable' is used. In Halton v. Core (5) the word 'voidable' is coupled with the words, perhaps actually void.' We do not, however, understand that, by the use of this word 'voidable,' it is intended that any previous step is necessary before the patron presents; for there is no authority whatever for such a position. It means merely that, if the patron does not elect to present, the incumbent may hold the living; it does not mean that the living is full as against the patron in the mean time. AVOIDANCE MAY OCCUR. of Chief Justice "It cannot well be that the living is full as relates to the patron, and that How AN the presentation itself determines the interest of the clerk; because it is clear that the presentation must be when the church is already void, and proceeds upon that presumption. An authority for this position has been before cited; and Lord Coke in Harris v. Austen (1), citing Smale's case (2), distinctly says, the church ought to be void before he can present; for, if the church be voidable, no presentation can be made. Rud v. Lincoln (Bishop of) (3) is another authority that the right to present implies that the church is then void. "The result of all these authorities is that, upon institution to the second living, the first is void as to the patron, but not so as to incur a lapse without sentence of deprivation and notice by the ordinary, or, at least, until notice by the ordinary; and, if void as to him, he cannot deal with the fallen right of presentation at all; it is a personal inalienable right. "The second question, Whether the want of a notice of the cession makes any difference, is readily disposed of. If the right to the fallen presentation be a personal right, disannexed from the advowson, it is clear that want of knowledge of the vacancy by the patron cannot alter the quality of that right; it cannot make a personal thing real; it will not reannex it to the advowson, any more than want of notice of rent being in arrear (which bears the closest analogy to the subject-matter under consideration), would enable the vendor of a reversion to transfer the rent in arrear with the reversion. The only point of view in which it could be important is with reference to the rights of the grantee of the advowson as against the grantor, arising out of their contract. "For these reasons we are all of opinion, that the judgment of the Court of King's Bench should be reversed." No person can take any dignity or benefice in Ireland until he has resigned all his preferments in England; and by such resignation the king is deprived of the presentations. (4) Judgment of Ecclesiastical dignities or be nefices cannot same person in LAW. An avoidance may arise in consequence of divers penal statutes, which declare the benefice void for some nonfeasance or neglect, or else some malfeasance or crime: as for simony; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or of the Book of Common Prayer; for neglecting after institution to read the liturgy and articles in the church, or make the declarations against popery, or take the abjuration oath; for using any other form of prayer than the liturgy of the Church of England; for absence for sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the Universities: in all which and similar cases the benefice is ipso facto void, without any formal sentence of deprivation. (5) By stat. 1 & 2 Vict. c. 106. s. 58., if a benefice sequestrated for dis- Stat. 1 & 2 Vict. obedience to the bishop's monition or order, issued under that statute, continue so sequestrated for one year, or be twice so sequestrated within questrations of two years, it will become void. c. 106. s. 58. Effect of se benefice. (1) I Rol 213. (4) 17 Vin. Abr. Presentation (K. b.), (2) 17 Ed. 3. Mich. f. 59. (B.) pl. 59. (3) Hutton, 66. 371. (5) 1 Black. Com. 393. HOW AN MAY OCCUR. Stat. 1 & 2 Vict. c. 106. s. 62. enacts, that if after the avoidance of any benefice there be not a fit house of residence within such benefice, the bishop of the diocese may raise money to build a fit house of residence Stat. 1 & 2 Vict. by mortgaging the glebe, tithes, rents, rent-charges, and other profits and emoluments arising or to arise from such benefice for thirty-five years. c. 106. s. 62. On avoidance of benefice not having a fit house of residence, the bishop may raise An avoidance by deprivation is the act of the ordinary; which voidance, being created by sentence in the Ecclesiastical Court, must be notified to the patron; but the sentence does not take immediate effect if an money to build appeal be depending. (1) The Ecclesiastical Court can deprive for fit and sufficient causes allowed by the common law, such as attainder of treason or felony, or conviction in the king's courts of other infamous crimes; for heresy, infidelity, gross immorality, and the like. one. BY DEPRIVA TION. BY DEATH. The most usual and known means by which any spiritual promotion becomes void is the death of the incumbent; and such avoidance commences from the day of his death, and the patron is obliged to take notice of it at his peril, and not to expect an intimation from the ordinary. (2) But it seems that the six months are only to be reckoned, for the purpose of lapse, from the time the patron could reasonably be supposed to have notice of the incumbent's death (3), especially if the incumbent die out of the realm. AVOIDANCE, HOW TRIED. Stat. 25 Edw. 3. st. 3. c. 8. Appeal upon sentence of deprivation. 4. AVOIDANCE, How tried. By stat. 25 Edw. 3. st. 3. c. 8., after reciting that "the prelates bave shewed and prayed remedy for that the secular justices do accroch to them cognisance of voidance of benefices of right, which cognisance and the discussing thereof pertaineth to the judges of holy church, and not to the lay judge, the king will and granteth that the said justices shall from henceforth receive such challenges made or to be made by any prelate of holy church in this behalf, and moreover thereof shall do right and reason." And the distinction which exists is this: If the question be, whether the church be full of an incumbent or not, the same shall be tried by the certificate of the bishop who best knows of the institution; but if the issue to be tried be, whether the church be void or not, the same shall be tried by a jury at the common law, unless the issue to be tried be upon some special act of avoidance, for then the same shall be tried by the certificate of the bishop, so as the especial cause of the avoidance be spiritual. (4) If, as before stated (5), a church be only voidable by deprivation, and the ecclesiastical judge has actually pronounced a sentence of deprivation against the incumbent, yet if the person deprived make his appeal, the church is not actually void, so long as the appeal is pending; and if the sentence of deprivation upon the appeal be declared void, the clerk will be perfect incumbent, as before, without any new institution. (6) (1) 2 Inst. 621. Gibson's Codex, 792. 1 Burn's E. L. 107. (b). (2) Watson's Clergyman's Law, 4. Dyer, 327. (b). pl. 7. Catesby's case, 6 Co. 62. (3) Watson's Clergyman's Law, 4. Rol. Abr. Presentment (Q), 363. 2 (4) Gibson's Codex, 793. 1 Inst. 344. (a). 1 Burn's E. L. 107. (b). (5) Ante, p. 29. (6) Watson's Clergyman's Law, 52. Gayton's case, Owen, 12. Packman's cause 6 Co. 18. 1. GENERALLY, pp. 94–99. BAPTISM. (1) Early mode of baptism The number and nature of the sacraments according to the Church of England - Effect of baptism Article 27.. every church - Meaning of the word UNBAPTIZED Baptism of infants Canon 81. A font of stone for baptism in Days upon which baptism is recommended to be received Canon 68. · Ministers not to refuse to christen· When baptism required, previous notice to be given to the clergyman- Number of God-fathers and God-mothers Canon 29. Parent of child not to be God-father — God-fathers and God-mothers must be communicants At what time the clergyman is bound to perform the rites of baptism -Naming the child Bishop can prevent a child from being baptized with an improper name — Mode of dipping Canon 30.- The lawful use of the cross in baptism explained. 2. PRIVATE BAPTISM, pp. 99, 100. -- Private baptism not to be adopted except it be from great cause and necessity — Canon 69. -Punishment of minister for refusing to baptize privately in cases of danger of death when required so to do— Pouring water. 3. LAY BAPTISM, pp. 100—126. TIME OF THE FROM KING JAMES ACCORDING TO THE ANCIENT CANON LAW SUBSEQUENTLY TO THE I. TO THE RESTORATION DURING THE PROTECTORATE- AFTER THE RESTORA- 4. FEES FOR BAPTISM, pp. 126-128. No fees due of common right for baptism — Baptism cannot be delayed for the non-payment of the baptismal fees · Questionable whether a minister can enforce any baptismal fee. Principal statutes applicable to the registering of baptisms — Registers to be in separate register books Certificate of baptism, when performed in any other place than the parish church · Register books to be kept by officiating minister in an iron chest — Annual copies of registers to be made and to be verified by the officiating minister - FORM OF VERIFICATION OF THE REGISTER OF BAPTISMS TO BE TRANSMITTED tion of birth registers Searches may be made and certificates given by the persons keeping the Penalty for wilfully giving false information — Penalty for not duly regis tering births, or for losing or injuring the registers. 6. APPLICATION OF PENALTIES UNDER STAT. 52 GEO. 3. c. 146., AND TO WHAT PLACES SUCH STATUTE EXTENDS, p. 133. 7. BAPTISMAL FORMS, pp. 133, 134. GENERALLY. Early mode of baptism. Article 25. and nature of 1. GENERALLY. At first baptism was administered publicly, as occasion served, by rivers "Paulinus," Bede states (1), "baptized many in the rivers, before oratories or churches were built." Afterwards the baptistery was built at the entrance of the church, or very near it, as is mentioned by Athanasius, St. Chrysostom, St. Ambrose, St. Augustin, &c. The baptistery then had a large basin in it, which held the persons to be baptized, who went down by steps into it. Afterwards, when immersion came to be disused, fonts were set up at the entrance of churches. (2) By the twenty-fifth article of religion, "Sacraments ordained of Christ be not only badges or tokens of Christian men's profession, but rather they be certain sure witnesses and effectual signs of grace, and God's good will towards us, by the which he doth work invisibly in us, and doth not only quicken, but also strengthen and confirm, our faith in him. "There are two sacraments ordained of Christ our Lord, that is to say, baptism (3) and the supper of the Lord. (1) Lib. 2. c. 14. (2) 1 Stilling. Eccles. Ca. 146. (3) The Bishop of Exeter in his charge at his triennial visitation in 1845, made the following comments respecting baptism :"The great evil of our times is the opposition of teaching respecting the sacraments; especially on that great and fundamental article, the new birth, without which ' we cannot see the kingdom of God.' (John iii. 3.) Among its many mischiefs, it is not the least, that it has largely contributed to produce a general want of due and thankful reverence for the church. In truth, there is an intimate and manifest connexion between these two particulars. He who acknowledges that BAPTISM is not merely the seal of a new covenant, but is also God's method of giving to us a new nature, wherein we are born of the Spirit, and are thus really, though mystically, made one with Christ, and, through Christ, with the Father will also be ready to acknowledge that the church, the blessed company of all faithful people, into which baptism brings us, is the mystical body of Christ, quickened by his spirit; and so is the channel, through which all spiritual graces flow from its divine head to every member in particular.' (1 Cor. xii. 27.) They will therefore feel, and ought to teach others to feel, the dutiful necessity, or rather the transcendant blessedness, (for duty and blessing are here - one,) of continuing members of that one body,' if they would continue to have that 'one spirit' of reverencing its unityof sustaining its order of conforming in all things to its laws. "But while some among our clergy deny the spiritual birth in baptism (with all the blessed inferences from that great truth), respect or tenderness for them has induced too general a relaxation of sound teaching respecting the church, even among those who do not agree with them in their view of baptism. For the latter have hesitated and forborne to bring forth truths which condemn so many of their brethren, whom, on other grounds, they justly revere. The consequence is, that the sacred nature of the church, not being made the subject of the teaching of its ministers, has been suffered to acquire but little hold on the understanding, and therefore on the hearts of the people. For if the church is commonly regarded as scarcely better than one of several sects or denominations of Christians, whose fault is this? Ought we to be surprised, when we never tell the people what the church is, what the duty, what the inestimable privileges, the rest, the support, the comfort of abiding within its bosom in other words, when we never teach church principles ought we to be surprised that the people are profoundly ignorant of them?" |