If an action at law be brought by the patron against the bishop for refusing his clerk, the bishop must assign the cause. If the cause be of a temporal nature, and the fact admitted (as, for instance, outlawry), the judges of the king's courts must determine its validity, or whether it be sufficient cause of refusal : but if the fact be denied, it must be determined by a jury. If the cause be of a spiritual nature (as heresy particularly alleged), the fact, if denied, shall also be determined by a jury; and if the fact be admitted or found, the court upon consultation and advice of learned divines shall decide its sufficiency. (f) If the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that [390] he is deficient: (g) for the statute 9 Edw. II. st. 1. c. 13. is express, that the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. But because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bishop returns the clerk to be minus sufficiens in literatura, the court shall write to the metropolitan to re-examine him, and certify his qualifications; which certificate of the archbishop is final. (h)

If the bishop hath no objections, but admits the patron's presentation, the clerk so admitted is next to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by institution the care of the souls of the parish is committed to the charge of the clerk. When a vicar is instituted, he (besides the usual forms) takes, if required by the bishop, 29 an oath of perpetual residence; for the maxim of law is, vicarius non habet vicarium: and, as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their constitution, and [391] by absence to create the very mischief which they were appointed to remedy especially as, if any profits are to arise from putting in a curate, and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them. When the ordinary is also the patron, and confers the living, the presentation and institution are one and the same act, and are called a collation to a benefice. By institution or collation the church is full, so that there can be no fresh presentation till another vacancy, at least in the case of a common patron: but the church is not full against the king till induction: nay, even if a clerk is instituted upon the king's presentation, the crown may revoke it before induction, and present another clerk. (i) Upon institution also the clerk may enter on the parsonage-house and glebe, and take the tithes ; but he cannot grant or let them, or bring an action for them, till induction.

Induction is performed by a mandate from the bishop to the archdeacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like: and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. This therefore is the investiture of the temporal part of the benefice, as institution is of the spiritual. And when a clerk is thus presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law persona impersonata, or parson imparsonee. (k)

f Ibid.

g 5 Rep. 58. 3 Lev. 315.

b 2 Inst. 632.

i Co. Litt. 344.

k Co. Litt. 300. (29) By 57 Geo. III. c. 99. s. 34. this oath shall no longer be taken by any vicar.

The rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these Commentaries: 30 and as to his duties, they are principally of ecclesiastical cognizance; those only ex

cepted which are laid upon him by statute. And those are indeed [392] so numerous, that it is impracticable to recite them here with a tolerable conciseness or accuracy. Some of them we may remark as they arise in the progress of our inquiries, but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject. (1) I shall only just mention the article of residence, upon the supposition of which the law doth style every parochial minister an incumbent. By statute 21 Henry VIII. c. 13. persons wilfully absenting themselves from their benefices for one month together, or two months in the year, incur a penalty of 51. to the king, and 51. to any person that will sue for the same: except chaplains to the king or others therein mentioned, during their attendance in the household of such as retain them: (m) 33 and also except (n) all heads of houses, magistrates, and professors in the universities, and all students under forty years of age residing there bona fide for study. "Legal residence is not only in the parish, but also in the parsonage-house, if there be one : for it hath been resolved, (2) that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there: and if there be no parsonage-house, it hath been holden that the incumbent is bound to hire one, in the same or some neighbouring parish, to answer the purposes of residence. For the more effectual promotion of which important duty among the parochial clergy, a provision is made by the statute 17 Geo. III. c. 53. for raising money upon ecclesiastical benefices, to be paid off by annually decreasing instalments, and to be expended in rebuilding or repairing the houses belonging to such benefices.

We have seen that there is but one way whereby one may become a parson or vicar: there are many ways by which one may cease to be so. 1. By death. 2. By cession, in taking another benefice. For by statute 21 Hen. VIII. c. 13.35 if any one having a benefice of 8l. per annum, or upwards, according to the present valuation in the king's books, (p) accepts any other, the first shall be adjudged void, unless he obtains a dispensation, which no one is entitled to have but the chaplains 36 of the king, and others

These are very numerous: but there are few which can be relied on with certainty. Among these are bishop Gibson's codex, Dr. Burn's ecclesiastical law, and the earlier editions of the clergyman's law, published under the name of Dr. Watson, but compiled by Mr. Place, a barrister. m Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28. o 6 Rep. 21.

D Stat. 28 Hen. VIII. c. 13.

(50) Post. 2 vol. 24.

p Oro. Car. 456.

(31) As to imposing penalties, &c. for non-residence, is repealed by 57 Geo. III. c. 99. s. 1. (32) Ill health or any inevitable absence, is an exemption from the penalties of this statute: Gibs. Cod 887.

(35) But still such chaplain must visit his benefice twice a year for eight days, under penalties for neglect. 33 Hen. VIII. c. 38. s. 3.

(34) These exceptions are extended further, by the 57 Geo. III. s. 10, 11, 12, 13., which virtually confirms the 25 Hen. VIII. c. 16. s. 1. 38 Hen. VIII. c. 28. s. 1. 2.

(35) Repealed by 57 Geo. III. c. 99. s. 1.

(36) The number of the chaplains of the king and royal family, who may have dispensations, is unlimited. An archbishop may have eight, a duke and bishop six, a marquis and earl five, a viscount four; the chancellor, a baron, and knight of the garter, three; a duchess, marchioness, countess, and baroness, being widows, two; the king's treasurer, comptroller, secretary, dean of the chapel, almoner, and the master of the rolls, two; the chief justice of king's bench, and warden of cinque ports, one. These chaplains only can obtain a dispensation under the statute.

If one person has two or more of these titles or characters united in himself, he can only retain the number of chaplains limited to his highest degree; and if a nobleman retain his full number. of chaplains, no one of them can be discharged, so that another shall be appointed in his room

therein mentioned, the brethren and sons of lords and knights," and doctors and bachelors of divinity and law, admitted by the universities, of this realm. And a vacancy thus made, for want of a dispensation, is called cession. 393. By consecration; for, as was mentioned before, (q) when a clerk is promoted to a bishoprick, all his other preferments are void the instant that he is consecrated. But there is a method, by the [393] favour of the crown, of holding such living in commendam. Commen da, or ecclesia commendata. is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. This may be temporary for one, two, or three years; or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a commenda retinere. 40 There is also a commenda recipere, which is to take a benefice de novo, in the bishop's own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clerk. (9) 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made. (r) " 5. By deprivation, either, first, by sentence declaratory in the ecclesiastical court, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, (s) or conviction of other infamous crime in the king's courts; for heresy, infidelity, (1) gross immorality, and the like; or, secondly, in pursuance of divers penal statutes,

r Cro. Jac. 198.

q page 383.

s Dyer, 108. Jenk. 210.

q Hob 144.

t Fitz. Abr. t. Trial. 54.

during his life. 4 Co. 90. The king may present his own chaplains, i. e. waiting chaplains in ordinary, to any number of livings in the gift of the crown, and even in addition to what they hold upon the presentation of a subject without dispensation: but a king's chaplain, being bene. ficed by the king, cannot afterwards take a living from a subject, but by a dispensation according to the statute 21 Hen. VIII. c 13. s. 29. 1 Salk. 16!.-Mr. Christian's note.

(37) This privilege is not enjoyed by the brother and son of a baronet, for the rank of baronet did not then exist.

(38) The words of the statute are," all doctors and bachelors of divinity, doctors of laws, and bachelors of the law canon.' "Before the Reformation, degrees were as frequent in the canon law as in the civil law. Many were graduates in utroque jure, or utriusque juris. J. U. D. or juris utriusque doctor, is still common in foreign universities. But Henry VIII., in the 27th year of his reign, when he had renounced the authority of the pope, issued a mandate to the university of Cambridge, ut nulla legatur palam et publicè lectio in jure canonico sive pontificio, nec aliquis cujuscunque conditionis homo gradum aliquem in studio ilius juris pontificii suscipiat, aut in eodem in posterum promoveatur quovis modo. Stat. Acad. Cant. p. 137. It is probable that, at the same time, Oxford received a similar prohibition, and that degrees in canon law have ever since been discontinued in England.-Mr. Christian's note.

(39) In the case of a cession under the statute, the church is so far void upon institution to the second living, that the patron may take notice of it, and present if he pleases; but there is great reason to think, that lapse will not incur from the time of institution against the patron, unless notice be given him; but lapse will incur from the time of induction without notice. 2 Wils. 200. 3 Burr. 1504. Chitty.

(40) These commendams are now seldom granted except to bishops; and in that case the bishop is made commendatory of the benefice, while he continues bishop of such a diocese, as the object is to make it an addition to a small bishoprick; and it would be unreasonable to grant it to a bishop for his life, who might be translated afterwards to one of the richest sees. See an account of the proceeding in the great case of commendams, Hob. 140. and Collier's Ec. Hist. 2 vol. p. 710. Chitty.

(41) It seems to be clear that the bishop may refuse to accept a resignation, upon a sufficient cause for his refusal; but whether he can merely at his will and pleasure refuse to accept a resignation without any cause, and who shall finally judge of the sufficiency of the cause, and by what mode he may be compelled to accept, are questions undecided In the case of the bishop of London and Fytche, the judges in general declined to answer whether a bishop was compellable to accept a resignation: one thought he was compellable by mandamus, if he did not shew sufficient cause; and another observed, if he could not be compelled, he might prevent any incumbent from accepting an Irish bishoprick, as no one can accept a bishoprick in Ireland till he has resigned all his benefices in England. But lord Thurlow seemed to be of opinion that he could not be compelled, particularly by mandamus, from which there is no appeal or writ of error. See 3 Burn, 304. and the opinions of the judges in Cunningham's Law of Simony, though ill reported. -Mr. Christian's note.

which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crimes; as for simony; (v) for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or of the book of common-prayer; (u) for neglecting after institution to read the liturgy and articles in the church, or make the declarations against popery, or take the abjuration oath; (w) for using any other form of prayer than the liturgy of the church of England; (x) or for absenting himself sixty days in one year from a benefice belonging to a popish patron to which the clerk was presented by either of the universities; (x) in all which and similar cases (y) the benefice is ipso facto void, without any formal sentence of deprivation.

VI. A curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of

the proper incumbent. Though there are what are called perpetual [394] curacies where all the tithes are appropriated, and no vicarage en

dowed, (being for some particular reasons (z) exempted from the statute of Hen. IV.) but, instead thereof, such perpetual curate is appointed by the appropriator. With regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during its vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession; (a) and that, if any rector or vicar nominates a curate to the ordinary to be licensed to serve the cure in his absence, the ordinary shall settle his stipend under his hand and seal, not exceeding 50l. per annum, nor less than 201. and on failure of payment may sequester the profits of the benefice. (b) 42

Stat. 31 Eliz. c. 6. 12 Ann. c. 12.

u Stat. 1 Eliz. c. 1, 2. 15 Eliz. c. 12.
x Stat. 1 Eliz. c. 2.

w Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. 1 Geo. I. c. 6.
I Stat. 1 W. & M. c. 26.
y 6 Rep. 29, 30.

a Stat. 28 Hen. VIII. c. 11.

z 1 Burn. eccl. law. 427. b Stat. 12 Ann. st. 2. c. 12.

(42) It was provided in 1603, by canon 33, that if a bishop ordains any person not provided with some ecclesiastical preferment, except a fellow or chaplain of a college, or a master of arts of five years' standing, who lives in the university at his own expense, he shall support him till he shall prefer him to a living. 3 Burn, Ec. L. 28. And the bishops, before they confer orders, require either proof of such a title as is described by the canon, or a certificate from some rector or vicar, promising to employ the candidate for orders bond fide as a curate, and to grant him a certain allowance, till he obtains some ecclesiastical preferment, or shall be removed for some fault. And in a case where the rector of St. Ann's Westminster gave such a title, and afterwards dismissed his curate without assigning any cause, the curate recovered, in an action of assumpsit, the same salary for the time after his dismission which he had received before. Cowp. 437. And when the rector had vacated St. Ann's by accepting the living of Rochdale, the curate brought another action to recover his salary since the rector left St. Ann's; but lord Mansfield and the court held, that that action could not be maintained, and that these titles are only binding upon those who give them, while they continue incumbent in the church for which such curate is appointed. Doug. 137.

:

The 55 Geo. III. c. 99. s. 50. enacts, that if it appears to any bishop that the duties of the be nefice are inadequately performed, he may require the incumbent to appoint a curate, and on neglect, he may himself appoint one, with such stipend as he shall think fit, not exceeding in the whole the stipends allowed by that act, nor except in case of negligence exceeding one half of the gross annual value of the benefice, although the spiritual person shall reside on the benefice; but the incumbent may appeal to the archbishop and by sec. 16. in case of the incumbent's absence abroad, to appoint a stipendiary curate, in case no curate duly licensed be employed, and to assign a salary to such curate; or if any curate be so employed, to assign to him an additional salary. By sec. 69. the curate may be licensed by the bishop when actually employed by the incumbent, though not expressly nominated to the bishop; and by the same section, licences to curates may be revoked summarily, and they may be removed by the bishop if there be reason for so doing, subject indeed to an appeal to the archbishop.

By the 53 sect. every bishop shall, subject to the restrictions of that act, appoint to every cu rate the salary thereby allowed, and his licence to contain the amount thereof; and in case of disputes between persons holding benefices and their curates touching such salary, the bishop may on complaint summarily determine the same; and in case of wilful neglect, or re

Thus much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in power: on which officers I shall make a few cursory remarks.

VII. Churchwardens 43 are the guardians or keepers of the church, and representatives of the body of the parish. (c) They are sometimes ap

44

c In Sweden they have similar officers, whom they call hiorcklowariandes. Stiernhook, l. 9. c. 7.

fusal to pay the same, may proceed by monition to sequester the profits of the benefice, until payment of the stipend and arrears the curate is to pay 17. only for the licence, &c. But in order to entitle the curate to proceed by monition for the recovery of a salary assigned by a bishop, the incumbent's assent to the salary assigned is necessary when he resides on his benefice, and discharges his duties generally, though he may be desirous of the assistance of a cu

rate. 3 B & Cres. 47.

With respect to the amount of the salary, by sec. 54., where the incumbents are appointed to benefices before the 20th July, 1813, the salary of the curate shall not exceed 751. per annum, besides the use of the house of residence, or 151. in lieu thereof; but the bishop cannot assign any greater salary than aforesaid during the incumbency of the incumbent, unless the latter consents to it, or neglects to nominate to the bishop a proper curate.

By sec. 55. where incumbents are appointed to benefices after the 20th July, 1813, the salary of the curate shall not be less than 801. per annum, or the whole value of the benefice, if less; and shall be higher in proportion to the value and population of the benefices; and the section shews how the actual value of benefices are to be estimated, in order to settle the salary.

By sec. 56. where the benefice exceeds 400l., an allowance may be made to the curate of 100%. per annum, or more, as therein mentioned. A smaller salary may be allowed to curates under circumstances of age, sickness, &c. of the incumbent, sec. 57.

The 58 sect. points out the salary to be allowed a curate engaged to serve interchangeably at different places belonging to the same incumbent, or where a curate is employed for the whole year on each or any of such benefices.

The 60 sec. points out the salary where the incumbent of the benefice is allowed to serve an adjoining parish or parishes as curate.

Contracts for salaries, contrary to the provisions, or in derogation of that act, are void, notwithstanding any payment and acceptance of a less sum than that mentioned in the bishop's licence; and payment of what remains unpaid may be enforced by monition, with treble costs, sec. 61.

If the curate's salary be of the value of the benefice, such salary is subject to reduction in respect of charges and outgoings affecting the value of the benefice, and to any loss or diminution which may lessen such value without the default or neglect of the incumbent, sec. 62.; and by sec. 63., where the curate's salary is of the value of the benefice, a deduction may be made therefrom for the repairs to the chancel house of residence, &c. ; but the deduction is limited to a particular amount in certain cases.

With respect to the curate's house of residence, the bishop may allot the parsonage-house for the same, in case of non-residence of the incumbent; and sequestrati may be issued, if the possession thereof be not delivered up, sec. 64.

By the 65 sect. the curate is to pay the taxes, &c. of the parsonage-house, &c. where his salary is not less than the annual value of the benefice; and he is directed to reside in such parsonage-house, &c. The bishop may give such last mentioned curate three months' notice to quit, and a penalty is imposed if the curate does not deliver up, s. 66.

By sec. 67. the rector, &c. shall not dispossess the curate of his house of residence assigned by the bishop, without an order of the bishop, and three months' notice; and the curate must quit in three months after an appointment to a vacant benefice, on one month's notice to quit. And by sect. 68. no licensed curate shall quit his curacy without giving three months' notice to the incumbent and bishop, except by leave of the bishop, under a penalty for so doing.

In a late case, where a spiritual person who in virtue of his office of chaplain of a college, held a curacy with a dwelling attached to it, and ceasing to hold that office retained possession of the dwelling, it was held he was not a curate within the meaning of the statute 57 Geo. III. c. 99. s. 67., and might be evicted by a notice to quit forthwith; and that he was not entitled to the three months' notice required to be given by that statute, with the consent of the bishop. 2 D. & R. 718.

Where the benefice is above 3001. a year, and a population of 300 persons, or has a population of 1000 persons, whatever the value of the benefice, and where the incumbent is non-resident for more than three months a year, the curate thereof may be required by the bishop to reside on the benefice; but if great inconvenience would arise from such residence, the bishop may allow the curate to reside in some near and convenient place; such allowance to specify the cause of it, and to be registered. Sec. 49. Chitty

(43) See in general Bac. Ab. Churchwardens, Burn E. L. tit. Churchwardens, Nolan's P. L. 1 vol. ch. 2. p. 2.

(44) Their duties were originally confined to the care of the ecclesiastical property of the pa rish, over which they exercised discretionary power for specific purposes. 1 Hagg. 173. With VOL. I. 38