Lapse
Lapse is a term used in English ecclesiastical law to denote the failure to exercise the right of presenting or collating a vacant ecclesiastical benefice within the lawful period. On such occasions, if the bishop be the patron, the right devolves or lapses to the archbishop, and if the archbishop omits to take advantage thereof, to the king. So also if any person, other than the bishop, be patron, on his neglecting to present, the right lapses in the first place to the bishop, on the bishop's neglect to the archbishop, and from him to the king. The patron, the bishop, and the archbishop are severally and successively allowed the full period of six calendar months, exclusive of the day on which the benefice becomes void; and if the bishop be himself the patron, he must collate to the benefice within the period of the first six months after the vacancy, as he is not entitled to six months in his character of patron, and six months more in his character of bishop. When the patron's six months have expired, his right of presentation is not absolutely destroyed by the lapse which then takes place, but the bishop acquires merely a kind of concurrent right with him; for, although the bishop may collate immediately after the lapse, yet, so long as he suffers the benefice to continue vacant, he cannot refuse to institute a person presented by the patron; and, in like manner, when the bishop's six months have expired, the patron may present at any time before the archbishop has filled up the vacancy. By these means provision is made against the improper duration of vacancies in the Church; for when the benefice has continued vacant for six months, the patronage for that turn becomes an object of competition between the original patron and the bishop or archbishop, as the case may be, the nominee of that party which presents first being entitled to' the benefice. But when the right to present has passed the bishop and the archbishop, and through their neglect has actually lapsed to the crown, a different rule prevails, arising from an old maxim of English law, that the king's rights shall never be barred or destroyed by delay on his part. Nullum tenpus occurrit regi. When, therefore, the lapse to the king has actually occurred, the right of presentation for that turn is absolutely vested in him; and if the patron presents while the benefice continues vacant, the king may present at any time afterwards before another vacancy occurs, and may turn out the patron's nominee. But if the patron's nominee is instituted and inducted, and dies incumbent, or if, after his induction, he is deprived by sentence of the ecclesiastical courts, or resigns bona fide, and not with intent to defeat the king's right to present, before the king has exercised that right, it is then held that his right is destroyed; for he was only entitled to the presentation for one turn, and his having permitted the patron to present for that turn will not entitle him to any other. When the vacancy is occasioned by the death of the incumbent, or by his cession, which is his own voluntary act, being the acceptance of a second benefice incompatible with the one which he already holds, the patron is bound to take notice of the vacancy, without its being notified to him by the bishop, and his six months are calculated from the time at which the vacancy actually occurs. But when the incumbent is deprived by sentence of the ecclesiastical courts, and when he resigns, such resignation being necessarily made into the hands of the bishop, it is held that, as neither his deprivation nor resignation can be complete without the concurrence of the bishop, the bishop ought to notify the vacancy to the patron, and that the patron's six months are to be calculated from the time at which such notice is given. And in like manner, if the patron presents in due time, and the bishop refuses to institute the person so presented on the ground of his insufficiency, the bishop ought, if the patron be a layman, to give notice of his refusal, and until he does so no lapse can take place; but if the patron be a spiritual person. it appears from the old lawbooks that no notice is necessary, because the spiritual person is presumed to be a competent judge of the morals and abilities of the person whom he has selected for the appointment. If, on account of some such neglect or omission on the part of the bishop, the benefice does not lapse to him, it cannot lapse to the archbishop or to the king; for it is a rule that a lapse cannot take place per saltum, that is, by leaping over or leaving out the intermediate steps. This rule protects the patron's right from being ever injured by the improper refusal of the bishop to institute his nominee; for the bishop can take no advantage of that which is occasioned by his own wrongful act, neither can the archbishop or the king, for the reason alleged above. This right of lapse appears to have been first established about the time of the reign of Henry II, and to be coeval with the practice of institution. Previously to that period the incumbent's title was complete, upon his appointment by the patron, without his being instituted by the bishop. But the Church of Rome, always anxious to render the clergy independent of the laity, strongly opposed this custom (pravam consuetudinem, as Pope Alexander III in a letter to Thomas a Becket, designates it), and insisted that the right of appointing to ecclesiastical benefices belonged exclusively to the bishops. This introduced the ceremony of institution (q.v.). It is, however, contended by some that institution is as ancient as the establishment of Christianity in England; but Blackstone (2:33) maintains that it was introduced at the time stated above. After that period the bishop alone had the power of conferring the legal title to the vacant church, which he did by institution: but he was still bound to institute the person presented to him for that purpose by the patron, provided the patron presented some one. But how long was the bishop to wait to see whether it was the patron's intention to exercise his right of presentation? The law declared that he should wait a reasonable time; and with a due regard to the interest of the patron and the convenience of the public, it has settled that time to be six months. SEE JUS DEVOLUTUM.
