Oldalképek
PDF
ePub

certain term of years; or the owner BAY It sometimes happens that two or the grant one, two, or any member of succes-three characters of patron, dient, and sive rights of presentation on future; bishop (or ordinary)are muted in vine vacancies, subject always to certain re- | person. Thus the bishop may himself be strictions imposed by the law, for the the patron; in which case pre prevention of corrupt and simoniacal | superduous, and institution alone is waim transactions. sary. The bishop is then technicalor On the other hand, the spiritual trust said to collate the clergy man to the benes which is attached to this species of pro-fice, and the advowson wider these cis perty is guarded and enforced by very cumstances is said to be evitative. jealous provisions. The appointment of So the clerk may be the patrons in a duly qualified incumbent is secured, as which case, though he cannot regularly far as the law can secure it, by requiring present himself, yet he may pray to be the sanction of the bishop to his admis- admitted by the bishop; or he may trans sion; and although this sanction is, infer to another the right of presentation fact, very rarely withheld, yet it cannot before the particular vacancy occurs, and be doubted that the existence of such a then procure himself to be presented. check is essential to the well-being of the church. In order more effectually to guard against the danger of a corrupt presentation, the immediate right to present is absolutely inalienable, as soon as a vacancy has actually occurred; and on a similar principle, a purchase of it during the mortal sickness of the incumbent is equally prohibited.

When the proprietor of an advowson exercises his patronage, three persons are immediately concerned: the proprietor, the clergyman who is presented, and the bishop in whose diocese the living is situate; or (in the language of lawyers) the patron, the clerk, and the ordinary. The presentation is usually a writing addressed to the bishop, alleging that the party presenting is the patron of a church which has become vacant, and requesting the bishop to admit, institute, and induct a certain individual into that church, with all its rights and appurtenances. A period of time, limited to twenty-eight days, is then allowed to the bishop for examining the qualification and competency of the candidate, and at the expiration of that time he is admitted and instituted to the benefice by formal words of institution read to him by the bishop, from an instrument to which the episcopal seal is appended. A mandate is then issued to the archdeacon or other officer to induct, i.e. to put the new incumbent into the actual possession of the church and its appurtenant rights; and then, and not before, his title as legal parson becomes complete.

Another instance in which the patrons age and the parsonage are often found united is in appropriations, where, by the concurrence of all parties interested, the advowson, together with the church, its revenues and appurtenances, have in former times been conveyed to some ees clesiastical body, who thus became both the patrons and perpetual incumbents of the living, and by whom the immediate duties of cure are devolved on a vicer or a stipendiary curate.

There are instances of advowsons the patrons of which have power to appoint an incumbent without any previous resort to the bishop for his aid or approbation. These are called donative advowsons, because the patron exercises a direct and unqualified privilege of giving his church to a clerk selected by himself. The only check upon the conduct of the incumbent in such cases is the power of the patron to visit, and even to deprive him, when the occasion demands it; and the right still residing in the bishop to proceed against him in the spiritual court for any ecclesiastical misdemeanour, It is the opinion of the most eminent lawyers that donatives had their origin in the king, who has authority to found any church or chapel exempt from the episcopal jurisdiction, and may also, by special licence, enable a subject to do the same,

Sometimes the nomination is distinct from the right to present; thus, the owner of an advowson may grant to another the right to nominate a clergyman, whom the grantor and his heirs

shall be thereupon bound to present. Here it is obvious that the person to whom the right of nomination is given is substantially the patron, and the person who presents is merely the instrument of his will. So, where an advowson is under mortgage, the mortgage-creditor is bound to present any person who shall be nominated by the mortgagor.

If, upon the vacancy of a living, no successor, or an insufficient one, shall be presented, it is put under sequestration by the bishop, whose care it then becomes to provide for the spiritual wants of the parish by a temporary appointment, and to secure the profits of the benefice, after deducting expenses, until another incumbent shall be duly inducted. After a vacancy of six months, occasioned by the default of the patron, the right to present lapses to the bishop himself. On a similar default by him, it devolves to the archbishop, and from him again to the king as paramount patron; the period of six calendar months is allowed to pass in each case before the right is forfeited to the superior. A donative advowson, however, is excepted from the general rule; for there the right never lapses by reason of a continued vacancy, but the patron is compellable to fill it up by the censures of the Ecclesiastical Court.

When the incumbent of a living is promoted to a bishopric, it is thereby vacated, and the king, in virtue of his prerogative, has a right to present to it in lieu of the proprietor of the advowson. This singular claim on the part of the crown appears to have grown up since the Reformation, and was the subject of complaint and discussion down to as late a period as the reign of William and Mary. It is difficult to reconcile it to any rational principle, although it has been urged by way of apology, that the patron has no ground to complain, because the king might, if he pleased, enable the bishop to retain the benefice, notwithstanding his promotion, by the grant of a commendam: so that the patron sustains no other injury than what may result from the substitution of one life for another. It is, however, certain that, by successive promotions, the crown may, in fact, deprive the patron of his

right for an indefinite time, and an instance is known to have actually occurred wherein the patron of the parish of St. Andrew in London was prevented, by several such exertions of the royal prerogative, from presenting to his own living more than once in 100 years. (See the arguments in the case of the Vicarage of St. Martin's, reported by Sir B. Shower, vol. i. p. 468.) It was truly observed by the counsel in that case, that the safest course to be adopted by an unconscientious patron, with a view to retain in his own hands the future enjoyment of his right, would be to present a clergyman whose qualities are not likely to recommend him to higher preferment.

The following cases may be selected as best illustrating the peculiar nature of this sort of property.

If a man marries a female patron, and a vacancy happens, he may present in the name of himself and wife.

Joint tenants and tenants in common of an advowson must agree in presenting the same person; and the bishop is not bound to admit on the separate presentation of any one. Co-heiresses may also join in presenting a clergyman; and if they cannot agree in their choice, then they shall present in turn, and the eldest shall have the first turn.

When the patron dies during a vacancy, the right to present devolves to his executors, and not to his heir: but where the patron happens also to be the incumbent, his heir, and not his executor, is entitled to present.

Where the patron is a lunatic, the lord chancellor presents in his stead; and he usually exercises his right in favour of some member of the lunatic's family, where it can with propriety be done.

An infant of the tenderest age may present to a living in his patronage, and his hand may be guided in signing the requisite instrument. In such a case the guardian or other person who dictates the choice or directs the pen is the real patron; but the Court of Chancery would doubtless interfere to prevent any undue practice. (Burn's Eccles. Law, tit. Advowson, Benefice, Donative; Selden's History of Tithes; Gibson's Coder, vol. ii.; and BENEFICE, under which head

there is a table of the value of livings, | eight-tenths years' purchase. And as we

and the distribution of ecclesiastical patronage.)

are giving the highest possible value of the advowson, omitting no circumstance which can increase it, we will suppose the next incumbent to come into a year's profits of the living immediately on his taking possession. The rule is this:-Take four per cent. of the value of the present incumbent's life, or 141x04, which gives 564; subtract this from 1, which gives 436; divide by 1 increased by the rate per cent., or 104, which gives 419; add one year's purchase to the presumed value of the next incumbent's life (178), which gives 18.8, multiply this by the last result, 419, which gives 18.8 x 419, or 7-88 nearly the number of years' purchase which the next presentation is now worth-which, if the living be 1000l. a year, is 78801.

ADVOWSONS, VALUE OF.-The following plain rules for estimating the value of advowsons may be of use. The bargains which are usually made with respect to advowsons are, either for the advowson itself, i.e. the right of presentation for ever, or for the right of presenting the next incumbent, i.e. the next presentation. In both these cases there may be circumstances peculiar to the living itself, which fall under no general rule, but which must be considered and allowed for in_valuing the advowson as a property. For example, a curate may be necessary; the parsonage-house may be in a state which will entail expenses on the next incumbent; and so on. Again, the property itself is For the Carlisle Table of Annuities, of a nature more likely to be altered in see Milne On Annuities, vol. ii. p. 595. value by the act of the legislature than For the Government Tables, see Mr. Finthe fee-simple of an estate. The follow-laison's Report to the House of Commons, ing rules, therefore, give the very highest ordered to be printed 31 March, 1829, value of the advowson, and any purchaser page 58, column 6. should think twice before he gives as much as is found by them.

ETOLIAN CONFEDERATION. Ætolia, according to the ancient geoTo find the value of the perpetual ad- graphers, consisted of two chief diviTowson of a living producing 1000l. a sions, one on the coast, extending from year, the present incumbent being forty- the mouth of the Achelous eastwards five years of age, and money making four along the north shore of the Corinthian per cent., we must first find how many gulf as far as its narrow entrance at years' purchase the incumbent's life is Antirrhium—the other, called Epikteworth, and here we should recominend tos, or the acquired, was the northern the use of the government or Carlisle and mountainous part. The length of tables, in preference to any other. Taking sea-coast, as Strabo incorrectly gives it, the latter, we find the annuity on a life of from the mouth of the Achelous to forty-five, at four per cent., to be worth Antirrhium, is 210 stadia, or about 21 fourteen and one-tenth years' purchase; miles: the same line of coast, according but at four per cent. any sum to be con- to the best modern charts, is about 42 tinued annually for ever is worth twenty-miles, measuring in straight lines from five years' purchase. The difference is ten and nine-tenths years' purchase, or, for 1000l. a year, 10,900l., which is the value of the advowson.

In finding the value of the next presentation only, other things remaining the same, the seller will presume that the buyer means to make the best of his bargain by putting in the youngest life that the laws will allow, that is, one aged twenty-four. The value of an annuity on such a life at four per cent., according to the Carlisle tables, is seventeen aud

one projecting point to another. If the great recesses of the sea about Anatolico and Mesolunghi were included, the distance would be much greater. The southeastern boundary of Etolia, which separated the province from that of the Locri Ozola, was a mountain range named Chalcis, afterwards, in its north-eastern course, taking the name of Corax. The north and extreme north-eastern boundaries of Ætolia were the small territory of Doris, the branches of Pindus, and part of the western line of Eta; but ar

E

is now comprised within the new king dom of Greece.

T

[ocr errors]

The earliest traditions of Ætolia, pro perly known by that name, speak of = monarchical form of government under Etolus and his successors; but this form of government ceased at a period earl than any to which historical notices tend, and we find the Ætolians existir in a kind of democracy, at least duri the time of their greatest political imp ance. This period extended from a? B.C. 224, to their complete conquest' the Romans, B.C. 168, a period of aber 50 years. The Etolian league at o time comprehended the whole country Etolia, part of Acarnania and of Soc Thessaly, with the Cephallenian isles and it had besides, close alliances wi other places in the Peloponnesus, espe ally Elis, and even with towns on the Hellespont, and in Asia Minor. alliance with Elis would tend to corfn the tradition of the early connex already alluded to. Following, probably the example of the Achæan league. different parts of Ætolia formed a federa union, and annually chose a general president, a master of the horse, a k of special council called Apokletoi select), and a secretary, in the nation congress held at Thermum about th autumnal equinox. Such scattered no tices as we possess about their history at constitutional forms are found principa in the Greek writer Polybius (books i. iv. xvii., &c.). Though the Ætolian co federation, such as it was in its earder times, was anterior to the Achæan una of Dyme, Patræ, &c., yet its more eplete organization was most probably imitation of the Achæan league. A mis account of this confederation would be little more than conjecture.

no ancient geographer has given anything like a definite boundary to Etolia, and as we are still only imperfectly acquainted with the mountains of northern Greece, any further description is impossible. The western boundary was the Achelous. The history of the Etolians, as a nation, is closely connected with that of the Acarnanians, but, like the Acarnanians, they were a people of little importance during the most flourishing periods of the commonwealths of European Greece. After the death of Alexander the Great, B.C. 323, they came into notice by their contests with the Macedonian princes, who allied themselves with the Acarnanians. In the reign of Philip V. of Macedon (which commenced B.C. 220), the Etolians, after seeing their chief town, Thermum, plundered by this king, and feeling themselves aggrieved by the loss of all they had seized from the Acarnanians, applied to the consul Valerius Lævinus (B.c. 210). Though this produced no beneficial effects, they formed a second treaty with the Romans (about B.C. 198) after the end of the second Punic war. The immediate object of the Romans was the conquest of Macedonia, but it proved eventually that this fatal alliance of the Etolians was the first step that led to the complete subjugation of all Greece by the Romans. A series of sufferings and degradations led the way to the occupation of Ætolia, which was made part of the Roman province of Acha. Under Roman dominion, the few towns of Ætolia almost disappeared: many of the inhabitants were transplanted to people the city of Nicopolis, which Augustus built at the entrance of the Ambracian gulf, opposite Actium, where he had defeated Antony (B.c. 30). Since the time of the Romans it is probable that the face of this country has undergone as (Schlosser, Universalhistorische Te few alterations, or received as few im-bersicht, &c., vol. ii. p. l.; Hermart, provements from the hand of man, as the Lehrbuch, &c.; the article Achäiseer most remote parts of the globe. The Bund, in the Staats-Lexicon of Rotteck Romans themselves under the emperors and Welcker, contains all the necessary had not even a road through Acarna- references.) nia and Ætolia, but followed the coast from Nicopolis to the mouth of the Achelous.

Under the Turkish empire, Ætolia was partly in the province of Livadia; and it

AFFINITY (from the Latin adfinitas's means a relationship by marriage. The husband and wife being legally considered as one person, those who are related to the one by blood are related to the other in

the same degree by affinity. This relationship being the result of a lawful marriage, the persons between whom it exists are said to be related in law; the father or brother of a man's wife being called his father or brother-in-law. Almost the only point of view in which affinity is a subject of any importance in the English law is as an impediment to matrimony; persons related by affinity being forbidden to marry within the same degrees as persons related by blood. [MARRIAGE.] It is in accordance with this rule that a man is not permitted by our law after his wife's death to marry her sister, aunt, or niece, those relations being all within the prohibited degrees of consanguinity; and therefore, according to the principle just laid down, the prohibition extends to the same relations affinity also. This rule, which excludes from marriage those who are within certain degrees of affinity, is supposed to be founded on the Mosaic law; but the eighteenth chapter of Leviticus, on which the prohibition is founded, is interpreted by some persons as not relating to marriage; and in the case of a deceased wife's sister, the text seems to imply a permission of marriage after the wife's death. The degrees of relationship, both of consanguinity and affinity, within which marriages are prohibited, are contained in Archbishop Parker's Table, entitled "A Table of Kindred and Affinity, wherein whosoever are related are forbidden in Scripture and our laws to marry together." Parker, of his own authority, ordered this Table to be printed and set up in the churches of his province of Canterbury. The Constitutions and Canons Ecclesiastical, which were made in the reign of James I., confirmed Parker's Table, which thus became part of the marriage law so far as that law is administered by the ecclesiastical courts. Marriages within the prohibited degrees could formerly only be annulled by the ecclesiastical courts during the joint lives of the husband and wife; and consequently the offspring of such marriages, though the marriages were considered incestuous by the ecclesiatical Courts, was legitimate unless the marriage was dissolved in the lifetime of both the

parents. The Act 5 & 6 Wm. IV. c. 54, 1835, has declared that all marriages celebrated before the passing of that Act between persons being within the prohibited degrees of affinity shall not be annulled for that cause by any sentence of the ecclesiastical court; but that all marriages which shall hereafter be cele brated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever. This act does not define what are the prohibited degrees, and this part of the enactment must be interpreted by a reference to Parker's Table and the Canons if the question arises before courts spiritual; and by statute or judicial decisions if it arises in the civil courts, as it may do in cases of prohibition or of succession. The principal statute is the 25 Hen. VIII. c. 32. An elaborate judgment was pronounced by Chief Justice Vaughan, in the celebrated case of Hill v. Good (Vaughan's Reports, 302), which affirmed that marriage with a wife's sister is unlawful; and this judgment, together with the doctrines prevailing in all our text-books from Lord Coke down to 1835, seems to establish that such is the law of England.

It is the prevailing opinion that this act renders all persons incapable of contracting a marriage who are within the prohibited degrees; and that the rule of law which makes a foreign marriage valid in England, if celebrated according to the law of the country where it was contracted, merely dispenses with the forms required in an English marriage, and has no reference to the parties between whom the marriage is made. This question is now being argued in the House of Lords, in the case of Sir Augustus d'Este, who claims the dukedom of Sussex, on the ground that the statutory prohibition of his father's marriage could apply only to England, and does not invalidate a marriage contracted (as that of the Duke of Sussex was) in strict conformity to the law of the country

where it occurred. The recent statute may cause some doubt whether a marriage contracted in England by foreigners within the prohibited degrees of affinity

« ElőzőTovább »