the church, it is not number alone that would give weight to decisions; but each member of the Court has a right, if not duty, imposed on him, to exercise his own judgment, fully, freely, and unbiassed, on any subject which may come under his consideration.

I have thought it right, although it is not conformable to my usual practice, to put upon paper what I have to say upon this subject; and in so doing, I have followed the example of those whose rights we are deciding, who, in declaring their opinions on the more important subjects on which they are called to deliver their sentiments, not only deem it right to think on the matter they are to deliver, but on the expressions in which that matter is to be conveyed to their hearers.

It appears from the pleadings, that the prebendary of Grantham is patron of the rectory of Welby, and that the incumbent of that rectory died in the lifetime of the late prebendary, who died without having presented any clerk to the vacant rectory. The plaintiff is the administratrix of the late prebendary; and the question raised for our decision is-Whether, under these circumstances, the plaintiff is entitled to present for this turn to the rectory of Welby. I confess that my mind has fluctuated exceedingly; but I am at length satisfied, that the law gives the patronage in this case to the person, that according to sound policy, ought to have it. Great industry has been bestowed on the subject, both by the bench and the bar; but neither the judgment of any Court, nor the opinion of any writer to guide us in coming to a decision, has been found. I have also inquired whether any instances of presentations, made under circumstances like the present, are to be found in the registries of the different bishops, but without success ; and neither the records of Westminster Hall, nor of the Church, furnish any rule or practice to assist me in coming to a decision. I have endeavoured to find other cases from which I could safely reason by analogy to that now to be decided, but have failed in so doing.

In all sciences, analogical reasoning must be pursued with great caution; the least difference in the circumstances of two particular cases will prevent any argument from being

deduced from the one to the other. I was at first struck with the appearance of similarity between the patronage of tenants for life, and husbands in right of their wives, and that of dignitaries of the church in right of their churches. I am, after a most attentive consideration of these cases, now convinced, that the resemblance between the last and the two first, fails in the very circumstance that, in my judgment, decides to whom the presentation belongs in the present case. I shall, hereafter, more particularly advert to this circumstance. I would, however, first observe, that, in the absence of authority, the only course that can lead us to a just and legal conclusion is, to consider the origin of church patronage, and the intent of its founders. If the intent of the founders can be ascertained, it must (if not opposed to some rule of law, or the undoubted policy of the law) govern us in deciding this case. If he who creates a right, has directed how and by whom it shall be employed, those who are to decide any question on that right, must consider how he has disposed of it, and follow that disposition. This is evidently consistent with reason and justice, and is sanctioned by legal authority. In disputes between members of corporations, the courts of law decide according to the will of the founder, as expressed in the instrument of incorporation, or ascertained by usage. This principle is stated by Lord Kenyon, in The King v. Bellringer, 4 Term Rep. 482; and by Mr. Justice Buller, in Blankly v. Winstanley, 3 Term Rep. 228, in a note; and in Gape v. Handley, 3 Term Rep. 288, note, the principle was applied by Lord Mansfield, in the Court of King's Bench, in determining whether the right of presentation to a living was in all the members of a corporation, or in the mayor and aldermen only. So, where two claim under the same grant, the Court which has to decide on their claims, must be governed in its decision by the intention of the grantor, and by that only.

In this case, the administratrix of the last prebendary and his successor, must both found their claims on the grant of the donor of the property out of which the prebend was founded, as well as the act of appropriation by which it was founded. From these are derived all the rights and privileges that belong to the pre

bend; and to them we must look, to see in what course of succession the prebend is to go,-what fruits of it are ripe, and to be enjoyed by the person in possession, and those who represent him, and what are reserved for the successor. Unfortunately, historians have been too much occupied in exhibiting the human character, as it has displayed itself in the wars and intrigues which have engaged the attention of mankind, to bestow much of their time in giving an account of civil and ecclesiastical institutions. Whoever wants information as to the establishment of these institutions, must submit to the labour of collecting it himself from the records of the public offices. We have ourselves done so in this case; and I think, that by connecting some unpublished documents with what is to be found in our law books, we ascertain, that the more pious founders of churches, who not only devoted land, and the tithes of those lands which they retained for their own use, to the maintenance of ministers of the gospel, but also gave to the church the advowsons of the churches they founded, intended that such advowsons should be pure ecclesiastical trusts, which, after the dedication of them at the altar of God, were never to be disposed of by any layman. The church would have considered it as sacrilege in any layman to presume, under any circumstance, to touch this sacred property. The Roman Catholic church, from which ours is derived, did not regard the personal representatives of its members; the policy of that church was, to separate churchmen from their families, and to prevent their acknowledging any other connexion than with the church. In the infancy of that church, and before those laws were made by which the separation of the priests from the world was completely effected, we find, in the Codex Canonum Ecclesiæ Primitivæ, qui vulgo Canones SS. Apostolorum appellantur, Canon. 38. "Omnium rerum ecclesiasticarum Episcopus curam gerat, et eas administret tanquam Deo intuente. Ne liceat aulem ex iis aliquid sibi vindicare, vel propriis cognatis, quæ Dei sunt, largiri."(1) Here, the law for the preservation of the property of the church,

(1) See Beveridge's Codex Canonum Ecclesiæ Primitiva.

and preventing it from passing into the families of its members, was first declared. The principle laid down in that constitution has never been departed from, but repeatedly confirmed. Several of the documents which we have obtained, relate to the prebend of South Grantham; but, as these documents are not set out on this record, I shall not use them as evidence of any facts peculiar to this case, but as historical proof of the origin and nature of church patronage in general, and of the manner in which churches became possessed of their patronage. This patronage was first given to the whole body of the clergy of a diocese. The general body afterwards appropriated part of what they had in common to the exclusive use of the bishops; other parts, to the deans and chapters; and with other parts, prebends were founded by the bishops, with the assent of the deans and chapters. This is distinctly and fully stated by Dr. Burn, in his Ecclesiastical Law, tit. Appropriation; and he is confirmed, as to the first grant being to the body of the clergy of each diocese, by a grant which we find in the Chapter-house of Salisbury, and which is also printed in 3 Dugdale's Monasticon, 375, by which Osmond, Bishop of Salisbury, nephew of William the Conqueror, and founder of the church of Old Sarum, granted as follows:

"In nomine Sanctæ et individuæ Trinitatis, ego, Osmundus Sariberiensis Ecclesiæ Episcopus, omnibus Christi fidelibus tam posteris notifico quam presentibus, ad honorem domini nostri Jesu Christi sanctissimæque Mariæ Virginis, et pro salute animarum Will. Regis, et uxoris suæ Regina Matildis, atque filii sui Will. Regis Anglorum, Regni successoris, pro salute etiam animæ meæ, Ecclesiam Sariberiensem me construxisse et in eá Canonicos constituisse; atque illi viventibus canonici bona ecclesia, ita sicut ipse obtinueram libere, et ut exiget regularis censura canonica in perpetuum concessisse: Has scilicet villas, &c.; et (inter alias) Ecclesias de Granham, cum decimis, ceterisque ibidem adjacentibus.

"Preterea, concessi eis medietatem totius oblationis, quæ super principale offertur altare, exceptis ornamentis; et totam oblationem cæterorum altarium; sepulturam insuper totam cum oblationibus quæ Episcopo missam celebranti offeruntur, præter auri medietatem in eádem ecclesiá.

"Si quis autem Canonicorum, sive alias cum Episcopo ejusdem Ecclesiæ fuerit, partem oblationis, sicut Capellanus habebit Ad hæc etiam duas partes prebendæ Canonici defuncti in usum concessi veterorum canonicorum, et tertiam partem in usum pauperum per unius anni spacium.

"Anno Willielmo Rege Monarchiam totius Angliæ strenuè gubernante, anno quarto regni ejus, apud Hastingas, his subscriptis testibus de illa medietate oblationis principalis altaris, quam retinet Episcopus in manu suá, dabuntur uni Canonicorum per annum quatuor libræ, quousque præbenda sua perficiatur."

From this, it appears, that this was clearly granted to the whole body of the clergy of the diocese. Lord Coke is mistaken, when he says, in his 3rd Report, 75 b. that at first all the possessions were to the bishop. These possessions belonged to the whole body, and the whole body only can dispose of them; and accordingly, we find in these possessions, among which will be observed the Ecclesias de Grantham, cum decimis, ceterisque ibidem adjacentibus, were afterwards appropriated by the church to different members. This is proved by the evidence-book, in the same chapter-house, which states, that a general chapter of the members of the church was held, (the date is not known, but previous to the removal of the church from Old Sarum to Salisbury, which took place in 1220,) at which the churches, with the tithes and other rights belonging to the body were appropriated, some to the bishops, some to the deans, and some to the canons or prebendaries, to whom the cure of the different churches was assigned. Dr. Burn, in the chapter I have already referred to, states, that the prebendaries, who by means of such appropriations became possessed of what were called prebendal livings, at first appointed curates to the duties of those churches; but they were afterwards required to make a better and more permanent provision for the officiating ministers. He then gives us a form of the constitution of a vicarage. This form of Dr. Burn's, which is like one we have obtained from the church of Lincoln, namely, the constitution of a vicarage in one of the parishes belonging to the prebend of Grantham, (I will not read the words of it,) is in substance this, that the curate is to have all the tithes, paying to

the prebendary a pension of 100s. a year, and that the prebendary is also to have the appointment of fit and proper persons to fill that church whenever it shall become void. By these ordinations of vicarages, as they are called, either portions of the tithes, or an annual rent and the advowson of the vicarage, are reserved to the prebendary, and the residue is given to the vicar, on condition of his performing the duties of the church.

There are also, in the church of Salisbury, several grants of churches to the bishop. According to these grants, he and his successors are to take and dispose of these churches as he does of his other churches or prebends; and as the churches were given to the whole body of the clergy of the diocese, the donor must have intended that they should be disposed of only by the members of that body. The donors could not know that these churches would ever be appropriated to particular members of the body, and could not therefore intend that the lay representatives of any of the members should ever have the disposition of them; for if they had still remained in the aggregate corporation of the clergy of the diocese, personal representatives never could have had any right to have interfered with this property. They must have thought, that that which they had thus given, was for ever vested in the church, and that it could not, under any circumstances, be touched by lay hands. When the churches afterwards appropriated portions of this property to different members, the only thing intended was, to give the exclusive possession of the portions assigned to those members, to hold, in right of their church, by these members and their successors, which are the words always used in every instrument which is to be found in every church.

The prebendaries thus constituted, were made corporations sole, subordinate to the church; so that, they and their successors were from time to time to represent the church, and to enjoy the rights derived from the church, in return for the duties they were to perform. Neither the donors nor appropriators could intend, that the personal representatives of the deceased prebendary should ever interfere with ary thing that belonged to the church. The

intent of both the donor and the appropriator, then, is opposed to the plaintiff's claim; and their intent must, I think, give the rule for our judgment.

The ecclesiastical law, from what I trust I have shown in a case like the present, must have been founded on the intent of the donors of property to the church; and where the ecclesiastical law does not contravene the law of England, it is adopted into that law, and is to be followed by the temporal courts in the decision of such cases as fall within its influence. Lord Coke, in the 1st Institute, 344, says, the ecclesiastical law is to prevail when it is not against the common law or any custom. Lyndwood, in his treatise Super Constitutiones Provinciales Angliæ, liber primus, De Consuetudine, folio, p. 26 a, has this passage :

"Sed quæro, quid si Rector vel hujusmodi Beneficiatus decedat intestatus, et non disponat de fructibus? Dic, quod de jure communi ecclesia in eis succedet. De consuetudine tamen possit esse, quod per episcopum vel alium, ad quem pertineret bona testatorum tueri, deberent distribui ad decedentis debita solvenda," &c.

The ecclesiastical law, or common law of Christendom, is here meant by jure communi; by the words, de consuetudine, the custom of a particular kingdom is intended; for this writer, in the same page, says, "quia est consuctudo per Angliam quodammodo generalis," &c.

According to the general law, the church succeeds to fruits not disposed of by an incumbent previous to his death; and Lyndwood before (p. 25 a) explains what he means by the church succeeding to fruits, by saying "pertinent ad successorem." I admit, the custom of England will prevent the operation of the ecclesiastical law applying in all cases embraced by such custom; but this custom does not apply to the presentations to benefices, but only to such things as can be sold for the payment of the debts of the deceased.

These are the very words of Lyndwood: "No profit can be made of a presentation to a vacant benefice:" it therefore never can be used for the payment of debts. It was decided, in Hobart, 304, that a right of presentation was not conveyed by the words "profits, emoluments, commodities and advantages of the prebend," but that these

words included only such profits, emoluments, commodities and advantages as became due to the incumbent, and which he having earned, had a right to apply to his

own use.

To such as these the custom attaches, and not to trusts. Upon the same principle, a guardian in socage cannot take a presentation, because he can make no profit of it; and the personal representatives of a deceased incumbent cannot take it under this custom. If a right of presentation is not within the custom, it is then governed by the general law; and that general law, as I have proved by the writings of a canonist of the highest authority, and who is often quoted with approbation, by Bishop Gibson and Doctor Burn, gives it to the

successor.

I hope I have shown that the donors of ehurches and tithes to the clergy of dioceses, and the appropriators of such churches, intended they should be for ever vested in the church, devoted to sacred uses, and to be disposed of only by sacred hands; and that the ecclesiastical law thus deciding between the last incumbent and the successor, proceeds according to the intention of the donor; and that the custom of England spoken of by Lyndwood, does not apply to the right of presentation to a vacant living; and further, that the ecclesiastical law must determine to whom such presentation belongs.

This intent of the donor, in my opinion, prevents any analogy between ecclesiastical and lay patronage: the former is inseparably attached to the church, and must be disposed of by churchmen only; the latter is attached to the temporal estates of the founders of churches, and to be disposed of by those who happen to be the owners of the estate; lay patronage being, from the conditions which its founders made, annexed to temporal estates, must sometimes pass with the estate to which it is annexed, to infants and others incapable of exercising the right of presentation. This condition has occasioned a great defect in the law relative to this species of patronage. As it must be disposed of by some one connected with the estate, it does not concern the public whether it belongs, in such a case as the present, to the heir, or the executor of the person last seised of the advowson: the

one is as likely to present a proper clerk as the other. Ecclesiastical patronage is subject to no such condition; the founders of this patronage look to the advancement of religion; the founders of lay patronage, to the support of the influence of their families. Courts of justice should not, I humbly think, unless compelled by some clear rule of law, take church patronage from churchmen whose situations and characters are securities for the due exercise of them. By assigning it to the personal representatives of deceased patrons, they subject it to what it is from its original constitution exempt, namely, the chance of its falling into the hands of infants or creditors. The difference between the object of the founders of ecclesiastical and lay patronage, renders it impossible to reason analogically from the former to the latter. If there be any analogy between them, it raises an inference unfavourable to the plaintiff. The successor of a corporation stands in the same relation to his predecessor that the heir to an estate does to his ancestor. Now, it was determined by the Court of Common Pleas, after two arguments, in the case of Repington v. the Governors of Tamworth School, (2 Wilson, 150,) that where a donative became vacant in the lifetime of the owner of the advowson, who died before it was filled up, the donation belonged to his heir, and not to his executor.

This decision was pronounced on a motion in arrest of judgment; and if the executor, when the judgment was arrested, had thought fit, that judgment might have been examined in a court of error, but it was never disputed. Selden, in his History of Tithes, c. 12. fol. 380. vol. 3. p. 88, tells us, that until the time of King John there was no institution—that all livings were donatives; and the Judges, in the report above stated, confirm the account of. this learned writer. The heir, then, must have had the donation in every such case as the present; and if the heir would have had it in lay patronage, if analogy is to be referred to, the successor must have it in ecclesiastical patronage.

If a person in right of his estate, or any public functionary, has the appointment to any office that becomes vacant, and which is not filled up during the life of the patron, the person who succeeds to the office or

estate to which the patronage is annexed has the right of appointment. This is strictly analogous to the present case; and if we establish that which is a difference between the patronage of the church and other patronage, we should create an anomaly in the law highly injurious to the church.

I will now shortly consider the arguments urged in favour of the plaintiff.-It has been contended, that the right of presentation to a vacant living is, by the vacancy, severed from the advowson to which it belongs, and becomes a chattel, and that a chattel could not pass to a successor of a corporation sole, except under the statute of Henry the Eighth, which conveyed only such fruits as fell during the vacancy. Our law would be most absurd if the determination of rights depended on mere name. The right of presentation to a vacant benefice is not severed from the advowson until such right has been fully exercised, and is not a chattel; for its being classed among chattels does not prevent its passing to the successor.

If this be not so, the donation in the case in Wilson could not have belonged to the heir, for the right of donation was as completely severed from the advowson in that case, as the right of presentation in this. The reference to the statute of Henry the Eighth is unfavourable to the plaintiff's argument; for Gibson says, that it was only an affirmance of the common law by which the fruits enumerated in it belonged to the successors; and the only object of that statute was to put an end to the usurpations of the bishops, who, in defiance of the common law, took fruits from those who succeeded to benefices. All fallen fruits, or chattels severed from the living, did pass to the successor by the common law.

It has also been insisted, that if the rights of such presentations were perpetually annexed to the church, and could in no case be exercised by laymen, the King could not take them as parts of the temporalities of the bishops, abbots, and priors. The King takes these by his prerogative: his rights, although determined by law, are often different from those of a subject under similar circumstances. Bishoprics, abbeys, and priories were founded by the crown: the King is persona sacra-he is supreme ordinary-(Comyn's