[2]. The original connection of advowsons or rights of presentation with manors or estates[37] led to their passing by devolution or devise on death, or by gift or sale during life, to the heir of the patron, or to a devisee, donee, or purchaser of the manor or estate; and it soon became recognised in law that they could be alienated by themselves like any other property, apart from the manors to which they were originally appendant. Moreover, until 1899 the law allowed a patron to grant or sell the right of next presentation, or the right of presentation during his lifetime, or any other limited interest in the patronage, reserving the fee-simple of the advowson to himself. By an Act of 1713,[38] a clergyman was prohibited from purchasing a next presentation and then presenting himself; but this has been held not to prevent him from presenting himself after purchasing an estate in fee, or even an estate for life in the advowson.[39] And if the benefice is vacant at the time of the transfer, the transfer does not carry with it the right to present a clerk to fill up the existing vacancy.[40] This, however, was, until 1899, frequently got over by an agreement that the transferor should present such clerk as the transferee might nominate. But the Benefices Act, 1898,[41] introduced several salutary restrictions on the transfer of advowsons. Under sect. 1 of that Act:—
(a) A transfer of an advowson (otherwise than on marriage, death, or bankruptcy, or on the appointment of a new trustee) is invalid unless it (i.) transfers the whole interest of the transferor in the advowson (except that he may reserve to himself a life interest in making a family settlement, and the equity of redemption in making a mortgage); (ii.) is made more than twelve months after the last filling up of the benefice; and (iii.) is registered in the diocesan registry within one month after its date, or such extended period as the bishop may under special circumstances permit.
(b) The advowson must not be put up to auction unless sold with a manor or not less than 100 acres of land belonging to the same owner in the same or an adjoining parish.
(c) Subsection (3) of the same section also makes invalid any agreement to exercise patronage in favour of or on the nomination of a particular person, and also, in connection with the transfer of an advowson, any agreement (i.) to retransfer the advowson; (ii.) to postpone payment of any part of the purchase money, or to pay interest until a vacancy in the living, or for more than three months; (iv.) to make any payment in respect of the date at which the vacancy may occur; or (v.) that the living shall be resigned in favour of any person. If the patron of a benefice is a Roman Catholic, the University of Oxford or of Cambridge has the right to present.[42] A Jew who owns an advowson may present; but if a Jew holds an office under the Crown to which a right of presentation is attached, the right passes to the Archbishop of Canterbury.[43]
[3]. Every clerk in priest's orders, who has not relinquished the rights and privileges attaching to those orders under the Clerical Disabilities Act, 1870,[44] or become incapable of holding preferment under the Clergy Discipline Act, 1892,[45] is qualified to be appointed to a benefice. But, unless he has been so ordained by a bishop of the Church of England or of the Church of Ireland, or by a commissary of an English bishop under 15 & 16 Vict. c. 52, he is subject to the provisions of the Colonial Clergy Act, 1874,[46] or, if ordained in Scotland, of the Episcopal Church (Scotland) Act, 1864,[47] as to the previous consent or licence of the archbishop of the province or bishop of the diocese; and a clerk ordained priest as an alien or for service in the colonies under the Ordination of Aliens Act, 1784, or the Ordinations for Colonies Act, 1819, is subject to the same provisions.[48] The bishop may, however, independently of the Benefices Act, 1898, refuse to admit him on the ground of insufficient learning,[49] or of vicious conduct, heresy, or offences against ecclesiastical law in matters of ritual—anything, in short, which, if it occurred after admission, might be a ground for depriving him of the benefice.[50] And, under sect. 2 of that Act, the bishop may do so, (a) if at the date of the vacancy not more than a year has elapsed since a transfer within the purview of sect. 1[51] of the right of patronage of the benefice, unless the transfer is proved not to have been effected in view of the probability of a vacancy within the year; or (b) if not more than three years have elapsed since the presentee was ordained deacon; or (c) if the presentee is unfit owing to physical or mental infirmity, serious pecuniary embarrassment, grave misconduct, or neglect of duty in an ecclesiastical office, evil life, or scandal caused by his moral conduct since ordination; or (d) if he has, with reference to the presentation, been knowingly party or privy to a transaction or agreement invalid under the Act.[51] The 39th Canon lays down that a bishop shall not institute to a benefice a clergyman who has been ordained by another bishop, without production of his letters of orders and a sufficient testimony of his former good life and behaviour if the bishop requires it,[52] and his appearing on due examination to be worthy of his ministry. What this examination covers is not clearly definable; but it has not such a wide scope as the examination contemplated in Canon 48, which does not apply to presentees to livings.[53] Under the 95th Canon a bishop is allowed twenty-eight days for inquiry as to the fitness of a presentee; but this is merely directory, and he is not precluded from continuing the inquiry after their expiration.[54]
[4]. If a bishop refuses to admit a presentee on a ground specified in sect. 2 of the Act of 1898, or on account of any other unfitness or disqualification sufficient in law, not having reference to doctrine or ritual, he is to signify in writing his refusal, and the ground for it, to the patron and the presentee; and either of them may within one month thereafter require that the matter be heard by a court consisting of the archbishop of the province (or if it was the archbishop who refused to admit, the archbishop of the other province) and a judge of the Supreme Court, nominated by the Lord Chancellor. The judge is to decide all questions of law and fact, and if the judge finds that there is no fact sufficient in law to constitute unfitness or disqualification, the archbishop is to direct the admission of the presentee. But if the judge finds that such fact does exist, the archbishop is to decide whether the presentee is actually in consequence unfit to serve the benefice, and adjudge whether admission ought under the circumstances to be refused. In either case his judgment is to be final.[55] When the bishop has refused to admit a presentee, the patron cannot present him again in respect of the same vacancy.[56] If the bishop refuses to admit the presentee of a clerical patron and the refusal is upheld by the court, the patron has the same right of further presentation as if he were a lay patron.[57] If a bishop refuses to admit a presentee on the ground of doctrine or ritual, the old alternative remedies remain, either (a) of a suit of duplex querela by the presentee in the ecclesiastical court of the province, or (b) of an action of quare impedit by the patron in the High Court of Justice.[58]
[5]. Before the bishop admits a clerk to a vacant benefice, he must send to the churchwardens in a registered letter a formal notice of his intention so to do, with a statement of the ecclesiastical preferments which the clerk has held, and a direction that the notice is to be fixed for one month on the principal door or notice-board of the church; after which it is to be returned to the bishop with a certificate, signed by the churchwardens, that the direction has been complied with.[59] The object of this proceeding is to give to the parishioners the opportunity of communicating to the bishop the existence of any fact known to them which would constitute a valid and legal ground for the bishop to refuse the presentee.
[6]. The bishop admits a presentee by formal institution in the case of a rectory or vicarage (the presentee kneeling before him), and by licence in the case of a perpetual curacy. In the case of admission to the benefices of new ecclesiastical parishes, which though by law perpetual curacies, are titular vicarages,[60] the practice varies. Admission by licence is the correct course; but by the desire of the presentee himself institution is sometimes granted. Where the bishop is himself the patron, he cannot present, and therefore admits by collation, which corresponds to the two processes of presentation and institution.[61] Before institution, collation, or admission by licence, the clerk makes two declarations and takes two oaths.[62]
(i.) A declaration of assent, namely—