Revoking a Presentation

by Philip Jones

The Legal Advisory Commission has drawn attention to an interesting point of ecclesiastical patronage law, in an opinion ‘Revocation of Presentation by the Patron, and Refusal of Presentee by the Bishop’ (published on the internet website of the Church of England, accessed 29th June 2012).

Can a patron

(1) revoke a presentation made to the bishop (i.e change his mind about a candidate that he has recommended) and / or

(2) vary a presentation by recommending two or more candidates to the bishop, instead of just one candidate?

The Patronage (Benefices) Measure 1986, which now regulates presentation, does not seem to consider this possibility.  S.13 of the Measure provides only that

(1) ‘The registered patron … shall not make to any priest an offer to present him to a benefice until [the making of the offer has been approved in accordance with the Measure]’

and

(6) ‘Where a priest accepts an offer made in accordance with the provisions of this section to present him to a benefice … the patron shall send the bishop a notice presenting the priest to him for admission to the benefice’.

No provision is made for the patron changing his mind, or presenting more than one candidate.

However, common law suggests that a lay patron may indeed revoke or vary a presentation.  This means that the bishop could not institute a priest whose presentation has been revoked.

The case of Rogers v Holled (1775) 96 English Reports 611 arose from a disputed right of presentation.  Mr Holled and another layman each claimed the right of presentation to the same vacant benefice, and presented different candidates to the bishop.

They later settled their dispute.  As part of the settlement, the other man withdrew his presentation in favour of Mr Holled’s.  He did this by notice in writing to the bishop, in which he requested the bishop ‘to deliver up the same

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to be cancelled’.

The court held that the notice of withdrawal was effective. ‘There is no doubt, but that by our law a lay patron may revoke his presentation at any time’.  Thus the bishop could not institute the candidate whose presentation had been revoked.

There is nothing in the Patronage (Benefices) Measure to disapply the common law rule.  The 1986 Measure imposes conditions and restrictions on the making of the presentation by the patron, but not on the revocation of a presentation.

However, the 1986 Measure may in effect restrict the lay patron’s right to vary presentation.  An offer of presentation generally requires the approval of the bishop and of the parish representatives.  They could therefore refuse to allow the patron to present more than one candidate.

According to Rogers v Holled, a clerical patron, as distinct from a lay patron, may not vary a presentation, and probably may not revoke a presentation either (p.612).

The reason for this distinction may be that a lay right of presentation is a right of property, whereas a clerical presentation is a spiritual function, subject to the bishop’s jurisdiction.  But this is to conjecture.

The references in s.13 of the Patronage (Benefices) Measure to an offer and acceptance of a presentation do not turn a presentation into a contract between the patron and the candidate.  There is no consideration for the offer, and if there was, it would be simony.

It is said that ‘Presentation passeth no interest, but is as a commendation’: Kitchin v Calvert (1611) 145 English Reports 332, at 334.  A presentee will therefore have no rights against patron who presented him to the bishop, and then changed his mind and withdrew the presentation.

There is nothing wrong in principle with a patron offering the bishop a choice of candidates.  It may well be good practice to do so.  Roman Catholic law clearly answers question (2) above in the affirmative.  Canon 160.1 of the Code of Canon Law 1983 provides that ‘A [patron] can present one or even several candidates, either at one time or successively’.   When a suffragan bishop is to be appointed in the Church of England, the diocesan bishop is required to nominate two candidates to the Monarch (Suffragan Bishops Act 1534).  A similar practice is followed when a diocesan bishop is to be appointed.

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