Page:The English Reports v1 1900.pdf/907

governor or governors of Ireland, by letters patent to be made by his or their warrant under the great seal of that kingdom, should be named, assigned, or appointed to minister the said oath. That by an act of Parliament made in England, 3° William and Mary, it was enacted, that so much of the said former act, as related only to the taking of the said oath of supremacy, should be repealed; and that instead of the said oath, all persons that should, after the 1st day of March then next ensuing, be admitted into any office or employment, ecclesiastical or civil, or come into any capacity, in respect or by reason whereof, they should have been obliged to take the said abrogated oath in the said former act mentioned, should take the oaths, and make and subscribe the declaration by this act appointed, in such manner, at such times, and before such persons, as they should or ought to have taken the said former oath, by virtue of the said former act, as if the same had not been abrogated as aforesaid. That it was therefore incumbent upon the said Charles Dodd, the lessor of the plaintiff, to have first taken the said oaths, and subscribed the said declaration, as a previous condition, and a necessary qualification, without which, he could have no right or title to the said glebe lands, or any power to demise the same; and the plaintiff ought to have proved upon the trial, that his lessor had taken the oaths and subscribed the declaration, as by law required. For it would be a precedent of the most dangerous tendency in Ireland, if, by any other construction than what the express words of these statutes plainly import, ecclesiastical persons should, upon their respective promotions, be dispensed with, or exempted from giving the aforesaid test and necessary assurances of their fidelity and allegiance to his Majesty and his government; and the mischief would be equally great, if they should not be obliged to prove their having done so, it being a matter resting intirely within their own knowledge, and what those who contest their right to the possession of their livings are ignorant of; and therefore, the proof of the want of such necessary qualifications, ought not to be thrown upon them. For all which reasons it was hoped, that the judgments in Ireland would be reversed; and that judgment would be given for the said Hugh Montgomery, with costs.

For the defendant in error it was said (J. Strange, N. Fazakerly), that there could be no doubt, but that the lands in question were the glebe lands belong-[209]-ing to the vicarage, and that they did not belong to the plaintiff in error; there was likewise no question, but that the Bishop of Kilmore was patron of the vicarage; that as such, he presented Mr. Dodd thereto, and that the same was then vacant; nor was there any dispute touching Dodd's being duly collated to, and inducted into this living; that he duly read his assent and consent, and that he was still in possession, and officiated as vicar thereof. The single point saved at the trial was, whether a clergyman's living is an office civil or military, within the act 2° Ann, against the further growth of popery! Or, if it was, whether the plaintiff was obliged, upon the trial, to shew that his lessor had taken the oaths and received the sacrament, according to the directions of that statute?

As to the first part of this question, it was insisted, that a clergyman's living is not an office civil or military, within this statute; for though the station of a clergyman may, in contradistinction to a military employment, be called a civil one; yet his living could not be comprehended within the meaning of the act, so as to be called a civil office; for no spiritual promotion can be comprehended within the words civil or military; and if it had been meant to have included spiritual promotions within this act, they would have been expressly mentioned in it, as they are in several other statutes, which comprehend offices ecclesiastical, civil, and military. The civil magistrate was not intended to include the ecclesiastical office; but the offices intended by the statute are such, as immediately flow from the grant of the Crown, and are public trusts for the advancement of justice and defence of the realm, and not spiritual promotions.—And as to the second part of the question, it was apprehended, thot even if ecclesiastical promotions had been included in this act, yet the defendant in error was under no necessity, upon the trial of the ejectment, to have proved that his lessor had complied with the directions of the act; because the lease, on which this ejectment was brought, was made the 9th of April 1733, within less than a month after induction, which was on the 15th of March preceding, and this induction was the act which gave the lessor a right to the glebe; whereas the statute gave him three months after induction, to take the oaths and receive the sacrament. Besides, the only issue before the jury was, whether Charles Dodd, at the time of making the lease,