beret primo præsentatus; si vero præsentatus esset laicus, foret in gratificatione episcopi quem velit admittere. The right of determining who ought to present and who ought not, at what time and when the church shall be adjudged void, belongs to the king and to his laws; (') for it has been said, the king and his progenitors, kings of England, without time of mind, have had authority to determine the right of patronages in this realm in their own courts, and are bound to see their subjects have right in that behalf within the realm, and in that case from him lies no appeal. (2) SECTION III. Definition of lapse. On Lapse. LAPSE is a devolution of the rights of patronage from the patron to the bishop as ordinary, to the metropolitan as superior, and to the king as patron paramount of all the benefices within his realms. (1) Doctor and Student, Doctor and Student, ch. 36. ch. 36. 219. (2) 2 Rol. Abr. 368. 216. A benefice is in lapse or lapsed when the per- When beneson who should present has omitted or slipped fice said to be lapsed. his opportunity; the administration or trust to provide the church with a rector is then reposed in the ordinary, metropolitan, or king, and cannot, therefore, like an interest, be granted over or transferred. should be within six When a clerk has obtained a presentation, Presentation within six months after the avoidance of the tendered to church, the presentation should be tendered the bishop to the bishop of that diocess, or to his vicar-ge- months; neral; or in the vacation, when there is no bishop of such diocess, to the guardian of the spiritualities, within which the church is situated. (1) This six months is to be reckoned according Which are to the computation of the church, which is by calendar the calendar, or one half year. (2) months, or a half year. If the patron neglects presenting within the Presentation time thus limited, the presentation of the bene then lapses, if patron fice then lapses to the bishop, or there is a devo- does not prelution of the patronage from the patron to the bishop. (*) Degges P. C. Part 1. ch. 2. 6. Doctor and Student, ch. 21. 202. (*) 1. Inst. 135. b. Catesby v. The Bishop of Peterbo rough, Cro. Jac. 141. 6. Rep. sent. Origin of the This law of lapse was probably taken from the law of lapse. petty customs of Normandy, or may be referred to the consuetudo Regni Anglia, by which title other parts of our laws were often named. (') Hence in the Register, which is the most ancient book of the law, there is a writ of prohibition to the bishop of London, signifying, that it was according to the law and custom of England that bishops should not present by lapse before six months are passed after the avoidance, and that they had not used to do so aliquibus temporibus retroactis. (2) Nevertheless it has been said, ante concilium Lateranense nullum currebat tempus contra præsentantes. The bishop was to provide a person to serve the cure in the mean time, and the patron might present when he would. (3) Difference between the canon and The canon law made a distinction between lay and ecclesiastical patrons, giving four months common law to the former and six to the latter, to prein lapse. sent. But as this council of Lateran has made no such distinction, so the common law of England gives an equal title to present at any time within the six months, exclusive of the day on which the church becomes void. (4) (1) Seld on Tithes, ch. 12. | tithes, ch. 12. 389. Hoveden, 391. Petty Customs of Normandy. ch. de Patr. s. 70. (*) Regis. Orig. 42. b. 2. Rol. Abr. 363. (3) 2 Inst. 361. Seld. on 326. Bracton, lib. 4. 341. 241. 2 Rol. Abr. 354. Fleta, lib. 5. ch. 14. Bract. fol. 24. (4) Inst. 135. Catesby trust as for The right of lapse is an act and office reposed Lapse is a by law in the ordinary, metropolitan, and lastly the patron. in the king, the end of which trust is to provide the church with a rector, in default of the patron, and yet as for him and to his behoof; and as he cannot therefore transfer his trust to another, so cannot he direct the thing wherewith he is trusted to any other purpose. For he that is to present by lapse is, as it were, negotiorum gestor, or a kind of attorney made by law, to do that for the patron which it is supposed he would do himself if there were not some let, and therefore the collation by lapse is in right of the patron and for his turn. (1) In right of hnd for his the patron turn. nevertheless Nevertheless presentation by lapse comes to the But comes bishop jure pleno of common right, not devoluto, to the bishop for churches were jure communi under the care jure pleno. of the bishop. It was by his particular indulgence that the patrons had the right of presentation, which being neglected things return to common right, and the bishop, therefore, has the true interest, and acts not only in right of the patron, but in his own right. v. The Bishop of Peterborough, Cro. Jac. 141. 6 R. 62. Gibs. Codex. tit. 33. ch. 4. 809. Doctor and Student, ch. 31. 201. M (1) Colt and Glover v. The Bishop of Coventry, Hob. R. 154. Donatives never lapse. Pluralities. Of notice. Where there is no right of institution there is no right of lapse, so that no donative can lapse to the ordinary, unless it has been augmented by the queen's bounty. (') By the old ecclesiastical law, if a person had two benefices it was left to his choice which he would have, but he could not hold both. By the third council of Lateran, under Alexander III. if he took a second benefice that institution was void; but by the famous canon of the fourth Lateran council, by taking a second benefice the first is void, which is in unison with the 21 Hen. VIII. which makes void the first benefice by being inducted into any second benefice of the value of eight pounds. It is, however, observable that this statute is more favourable to the clergy than the canon law was, as no simple benefices or dignities, as the canonists call them, are comprehended under the name of benefices having cure of souls, as deaneries, archdeaconries, chancellorships, treasurerships, chanterships, or prebends in any cathedral, collegiate church, nor parsonage that hath a vicar endowed, nor any benefice perpetually appropriate. (2) The patron in many cases must take notice of the avoidance of the church at his peril, and in (1) 1 Inst. 344. b. Button v. Wade, Cro. Jac. 515. (2) Still. Eccl. Cases, 99. |