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CHAPTER THE ELEVENTH.
OF THE CLERGY.
THE people, whether aliens, denizens, or natural-born fubjects, are divifible into two kinds; the clergy and laity: the clergy, comprehending all perfons in holy orders, and in ecclefiaftical offices, will be the fubject of the following chapter.
THIS venerable body of men, being feparate and fet apart from the reft of the people, in order to attend the more clofely to the fervice of almighty God, have thereupon large privileges allowed them by our municipal laws: and had formerly much greater, which were abridged at the time of the reformation, on account of the ill ufe which the popifh clergy had endeavoured to make of them. For, the laws having exempted them from almoft every perfonal duty, they attempted a total exemption from every fecular tie. But it is obferved by fir Edward Cokea, that, as the overflowing of waters doth many times make the river to lofe it's proper chanel, fo in times paft ecclefiaftical perfons, feeking to extend their liberties beyond their true bounds, either loft or enjoyed not thofe which of right belonged to them. The perfonal exemptions do indeed for the moft part continue. A clergyman cannot be compelled to ferve on a jury, nor to appear at a court-leet or view of frank pledge; which almoft every other perfon is obliged to dob: but, if a layman is fummoned on a jury, and before the
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a 2 Inft. 4.
b F. N. B. 160. 2 Inft. 4.
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trial
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trial takes orders, he fhall notwithftanding appear and be fwornc. Neither can he be chofen to any temporal office; as bailiff, reeve, conftable, or the like: in regard of his own continual attendance on the facred functiond. During his attendance on divine fervice he is privileged from arrefts in civil fuitse. In cafes alfo of felony, a clerk in orders fhall have the benefit of his clergy, without being branded in the hand; and may likewife have it more than once: in both which particulars he is diftinguifhed from a laymanf. But as they have their privileges, fo alfo they have their difabilities, on account of their fpiritual avocations. Clergymen, we have feeng, are incapable of fitting in the houfe of commons; and by ftatute 21 Hen. VIII. c. 13. are not allowed to take any lands or tenements to farm, upon pain of 10 l. per month, and total avoidance of the leafe; nor fhall engage in any manner of trade, nor fell any merchandize, under forfeiture of the treble value. Which prohibition is confonant to the canon law.
IN the frame and conftitution of ecclefiaftical polity there are divers ranks and degrees: which I fhall confider in their refpective order, merely as they are taken notice of by the fecular laws of England; without intermeddling with the canons and conftitutions, by which they have bound themfelves. And under each divifion I fhall confider, 1. The method of their appointment; 2. Their rights and duties; and 3. The manner wherein their character or office may ceafe.
I. AN arch-bifhop or bifhop is elected by the chapter of his cathedral church, by virtue of a licence from the crown. Election was, in very early times, the ufual mode of elevation to the epifeopal chair throughout all chriftendom; and this was promifcuoufly performed by the laity as well as the clergyh: till at length, it becoming tumultuous, the emperors and other fovereigns
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c 4 Leon. 190.
d Finch. L. 88.
e Stat. 50 Edw. III. c. 5. I Ric. II. c. 16.
f 2 Inft. 637. Stat. 4 Hen. VII. c. 13. & I Edw. VI. c. 12.
g page 169.
h per c. erum et populum. Palm. 25. 2 Roll. Rep. 102. M. Paris. A. D. 1095.
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of the refpective kingdoms of Europe took the election in fome degree into their own hands; by referving to themfelves the right of confirming thefe elections, and of granting inveftiture of the temporalties, which now began almoft univerfally to be annexed to this fpiritual dignity; without which confirmation and inveftiture, the elected bifhop could neither be confecrated, nor receive any fecular profits. This right was acknowleged in the emperor Charlemagne, A. D. 773, by pope Hadrian I, and the council of Laterani , and unverfally exercifed by other chriftian princes: but the policy of the court of Rome at the fame time began by degrees to exclude the laity from any fhare in thefe elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little confequence, which the crown was in poffeffion of an abfolute negative, which was almoft equivalent to a direct right of nomination. Hence the right of appointing to bifhopricks is faid to have been in the crown of Englandk (as well as other kingdoms in Europe) even in the Saxon times, becaufe the rights of confirmation and inveftiture were in effect (though not in form) a right of complete donationl . But when, by length of time, the cuftom of making elections by the clergy only was fully eftablifhed, the popes began to except to the ufual method of granting thefe inveftitures, which was per annulum et baculum, by the prince's delivering to the prelate a ring, and a paftoral ftaff or crofier; pretending, that this was an encroachment on the church's authority, and an attempt by thefe fymbols to confer a fpiritual jurifdiction: and pope Gregory VII, towards the clofe of the eleventh century, publifhed a bulle of excommunication againft all princes who fhould dare to confer inveftitures, and all prelates who fhould venture to receive themm . This was a bold ftep towards effecting the plan then adopted by the Roman fee, of ren-
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i Decret. 1. dift. 63. c. 22.
k Palm. 28.
l “Nulla electio praelatorum (funt verba “Ingulphi) erat mere libera et canonica; fed “omnes dignitates tam epifcoporum quam abbatum, per annulum et baculum regis curia pro “fua complacentia conferebat.” Penes elericos et monachos fuit electio, fed electum a rege poftulabant. Selden. Tan. Angl. 1. I. §. 39.
m Decret. 2. cauf. 16. qu. 7. c. 12. & 13.
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dering
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dering the clergy intirely independent of the civil authority: and long and eager were the contefts occafioned by this difpute. But at length when the emperor Henry V agreed to remove all fufpicion of encroachment on the fpiritual character, by conferring inveftitures for the future per fceptrum and not per annulum et baculum; and when the kings of England and France confented alfo to alter the form in their kingdoms, and receive only homage from the bifhops for their temporalties, inftead of invefting them by the ring and crofier; the court of Rome found it prudent to fufpend for a while it's other prtenfionsn .
THIS conceffion was obtained from king Henry the firft in England, by means of that obftinate and arrogant prelate, archifhop Anfelmo : but king John (about a century afterwards) in order to obtain the protection of the pope againft his difcontented barons, was prevailed upon to give up by a charter, to all the monafteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bifhops: referving only to the crown the cuftody of the temporalties during the vacancy; the form of granting a liecence to elect, (which is the original of our conge d' eflire) on refufal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reafonable and lawful caufep . This grant was expreffly recognized and confirmed in king John's magna cartaq and was again eftablifhed by ftatute 25 Edw. III. ft. 6. §. 3.
BUT by ftatute 25 Hen. VIII. c. 20. the antient right of nomination was, in effect, reftored to the crown: it being enacted that, at every future avoidance of a bifhoprick, the king may fend the dean and chapter his ufual licence to proceed to election; which is always to be accompanied with a letter miffive from the king, containing the name of the perfon whom he would have them elect: and, if the dean and chapter delay their election above
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n Mod. Un. Hift. xxv. 363. xxix. 115.
o M. Paris. A. D. 1107.
p M. Paris. A. D. 1214. 1 Rym. Foed. 198.
q cap. 1. edit. Oxon. 1759.
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twelve days, the nomination fhall d evolve to the king, who may by letters patent appoint fuch perfon as he pleafes. This election or nomination, if it be of a bifhop, muft be fignified by the king's letters patent to the arch-bifhop of the province; if it be of an arch-bifhop, to the other arch-bifhop and two bifhops, or to four bifhops; requiring them to confirm, inveft, and confecrate the perfon fo elected: which they are bound to perform immediately, without any application to the fee of Rome. After which the bifhop elect fhall fue to the king for his temporalties, fhall make oath to the king and none other, and fhal take reftitution of his fecular poffeffions out of the king's hands only. And if fuch dean and chapter do not elect in the manner by this act appointed, or if fuch arch-bifhop or bifhop do refufe to confirm, inveft, and confecrate fuch bifhop elect, they fhall incur all the penalties of a praemunire.
AN arch-bifhop is the chief of the clergy in a whole province; and has the infpection of the bifhops of that province, as well as of the inferior clergy, and may deprive them on notorious caufer . The arch-bifhop has alfo his wown diocefe, wherein he exercifes epifcopal jurifdictionl; as in his province he exercifes archiepifcopal. As arch-bifhop, he, upon receipt of the king's writ, calls the bifhops and clergy of his province to meet in convocation: but without the king's writ he cannot affemble thems . To him all appeals are made from inferior jurifdictions within his province; and, as an appeal lies from the bifhops in perfon to him in perfon, fo it alfo lies from the confiftory courts of each diocefe to his archiepifcopal court. During the vacancy of any fee in his province, he is guardian of the fpiritualties thereof, as the king is of the temporalties; and he excutes all ecclefiaftical jurifdiction therein. If an archiepifcopal fee be vacant, the dean and chapter are the fpiritual guardians, ever fince the office of prior of Canterbury was abolifhed at the reformationt . The arch-bifhop is entitled to prefent by lapfe to all the ecclefiaftical livings in the
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r Lord Raym. 541.
s 4 Inft. 322, 323.
t 2 Roll. Abr. 223.
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difpofal of his diocefan bifhops, if not filled within fix months. And the arch-bifhop has a cuftomary prerogative, when a bifhop is confecrated by him, to name a clerk or chaplain of his won to be provided for by fuch fuffragan bifhop; in lieu of which it is now ufual for the bifhop to make over by deed to the arch-bifhop, his executors and affigns, the next prefentation of fuch dignity or benefice in the bifhop's difpofal within that fee, as the arch-bifhop himfelf fhall choofe; which is therefore called his optionu : which options are only binding on the bifhop himfelf who grants them, and not his fucefors. The prerogative itfelf feems to be derived from the legatine power formerly annexed by the popes to the metropolitan of Canterburyw . And we may add, that the papal claim itfelf (like moft others of that encroaching fee) was probably fet up on imitation of the imperial prerogative called primae or primarie preces; whereby the emperor exercifes, and hath immemorially exercifedx , a right of naming to the firft prebend that becomes vacant after his acceffion in every church of the empirey . A right, that was alfo exercifed by the ceown of England in the reign of Edward Iz ; and which probably gave rife to the royal corodies, which were mentioned in a former chapetera . It is alfo the privilege, by cuftom, of the arch-bifhop of Canterbury, to crown the kings and queens of this kingdom. And he hath alfo by the ftatute 25 Hen. VIII. c. 21. the power of granting difpenfations in any cafe, not contrary to the holy fcriptures and the law of God, where the pope ufed formerly to grant them: which is the foundation of his granting fpecial licences, to marry at any place or time, to hold two livings, and the like: and on this alfo is founded the right he exercifes of conferring degrees, in prejudice of the two univerfitesb .
.{FS}
u Cowel's interpr. tit. Option.
w Sherock of options 1.
x Goldaft. Conftit. imper. tom. 3. pag. 406.
y Dufrefne. V. 806. Mod. Un. Hift. xxix. 5.
z Rex. & c, falxtem. Scribatis epifcopo Karl. Quod-Roberto de Icard penfionem fuam, quam ad preces regis paredicto Roberto conceffit, de caeters folvat; et de proxima ceclefia vacatzra de collatione pracdicti epifcofi, quam Ipfc Robertus acceptaverit, refpiciat. Breu. 11 Edw. I. 3. Pryn. 1264.
a ch. 8. pag. 273.
b See the bifhop of Chefter's cafe. Oxon. 1721.
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Y y
THE
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THE power and authority of a bifhop, befides the adminiftration of certain holy ordinances peculiar to that facred order, confifts principally in infpecting the manners of the people and clergy, and punifhing them, in order to reformation, by ecclefiaftical cenfures. To this purpofe he has feveral courts under him, and may vifit at pleafure every part of his diocefe. His chancellor is appointed to hold his courts for him, and to affift him in matters of ecclefiaftical law; who, as well as all other ecclefiaftical officers, if lay or married, muft be a doctor of the civil law, fo created in fome univerfityc . It is alfo the bufinefs of a bifhop to inftitute and to direct induction to all ecclefiaftical livings in his diocefe.
ARCHBISHOPRICKS and bifhopricks may become void by death, deprivation for any very grofs and notorious crime, and alfo by refignation. All refignations muft be made to fome fuperiord . Therefore a bifhop muft refign to his metropolitan; but the arch-bifhop can regign to none but the king himfelf.
II. A DEAN and chapter are the council of the bifhop, to affift him with their advice in affairs of religion, and alfo in the temporal concerns of his feec . When the reft of the clergy were fettled in the feveral parifhes of each diocefe (as hath formerlyf been mentioned) thefe were referved for the celebration of divine fervice in the bifhop's own cathedral; and the chief of them, who prefided over the reft, obtained the name of decanus or dean, beintg probably at firft appointed to fuperintend ten canons or prebendaries.
ALL antient deans are elected by the chapter, by conge d'eflire from the king, and letters miffive of recommendation; in the fame manner as bifhops: but in thofe chapters, that were founded by Henry VIII out of the fpois of the diffolved monafteries, the deanery is donative, and the inftalation merely by the king's
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c Stat. 37. Hen. VIII. c. 17.
d Gibf. cod. 822.
e 3 Rep. 75. Co. 103, 300.
f pag. 108, 109.
Letters
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Letters patentg . The chapter, confifting of canons or prebendareis, are fometimes appointed by the king, foemtimes by the bifhop, and fometimes elected by each other.
THE dean and chapter are, as was before obferved, the nominal electors of a bifhop. The bifhop is their ordinary and immediate fuperior; and has, generally fpeaking, the power of vifiting them, and correcting their exceffes and enormities. They had alfo a check on the bifhop at common law: for till the ftatute 32 Hen. VIII. C. 28. his grant or leafe would not have bound his fucceffors, unlefs confirmed by the dean and chapterh .
DEANERIES and prebends may become void, like a bifhoprick, by death, by deprivation, or by refignation to either the king or the bifhop j . Alfo I may here mention, once for all, that if a dean, prebendary, or other fpiritual perfon be made a bifhop all the preferments he was before poffeffed of are void; and the king may prefent to them in right of his prerogative royal. But they are not void by the election, but only by the confecrationi .
III. AN arch-deacon hath an ecclefinatical jurifdiction, immediately fubordinate to the bifhop, throughout the whole of his diocefe, or in fome particular part of it. He is ufually appointed by the bifhop himfelf; and hath a kind of epifcopal authority, originally derived from the bifhop, but now independent and diftinct from hisk . He therefore vifits the clergy; and has his feparate court for punifhment of offenders by fpiritual cenfures, and for hearing all other caufes of ecclefiaftical cognizance.
IV. THE rural deans are very antient officers of the churchl , but almoft grown out of ufe; though their deaneries ftill fubfift as an ecclefiaftical divifion of the diocefe, or archdeaconry. They feem to have been deputies of the bifhop, planted all round his
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g Gibf. cod. 173.
h Co. Litt. 103.
i Plowd. 498.
j 2 Roll. Abr. 352. Salk. 137.
k 1 Burn. Eccl. Law. 68, 69.
l Kennet, par. antiq. 633.
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Y y 2
diocefe,
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Diocefe, the better to infpect the conduct of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive authoritym .
V. THE next, and indeed the moft numerous order of men in the fyftem of ecclefiaftical polity, are the parfons and vicars of parifhes: in treating of whom I fhall firft mark out the diftinction between them; fhall next obferve the method by which one may become a parfon or vicar; fhall then brieftly touch upon their rights and duties; and fhall, laftly, fhew how one may ceafe to be either.
APARSON, perfona ecclefiae, is one that hath full poffeffion of all the rights of a parochial church. He is called parfon, perfona, becaufe by his perfon the church, which is an invifible body, is reprefented; and he is in himfelf a body corporate, in order to protect and defend the rights of the church (which he perfonates) by a perpetual fucceffionn . He is fometimes called the rector, or governor, of the church: but the appellation of parfon, (however it may be depreciated by familia, clownifh, and indifcriminate ufe) is the moft legal, moft beneficial, and moft honourable title that a parifh prieft can enjoy; becaufe fuch a one, (fir Edward Coke obferves) and he only, is faid vicem feu perfonam ecclefiae gerere. A parfon has, during his life, the freehold in himfelf of the parfonage houfe, the glebe, the tithes, and other dues. But thefe are fometimes appropriated; that is to fay, the benefice is perpetually annexed to fome fpiritual corporation, either fole or aggregate, being the patron of the living; whom the law efteems equally capable of providing for the fervice of the church, as any fingle private clergyman. This contrivance feems to have fprung from the policy of the monaftic orders, who have never been deficient in fubtle inventions for the increafe of their own power and emoluments. At the firft eftablifhment of parochial clergy, the tithes of the parifh were diftributed in a fourfold divifion; one for the ufe of the bifhop, another for maintaining
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m Gibf. cod. 972.
n Co. Litt. 300.
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the
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the fabrick of the church, a third for the poor, and the fourth to provide for the incumbent. When the fees of the bifhops became otherwife amply endowed, they were prohibited from demanding their ufual fhare of thefe tithes, and the divifion was into three parts only. And hence it was inferred by the monafteries, that a fmall part was fufficient for the officiating prieft, and that the remainder might well be applied to the ufe of their own fraternities, (the endowment of which was conftrued to be a work of the moft exalted piety) fubject to the burthen of repairing the church and providing for it's conftant fupply. And therefore they begged and bought, for maftes and obits, and fometimes even for money, all the advowfons within their reach, and then appropriated the benefices to the ufe of their own corporation. But, in order to complete fuch appropriation effectually, the king's licence, and confent of the bifhip, muft firft be obtained; becaufe both the king and the bifhop may fometime or other have an intereft, by lapfe, in the prefentation to the benefice; which can never happen if it be appropriated to the ufe of a corporation, which enver dies: and alfo becaufe the law repofes a confidence in them, that they will not confent to any thing that fhall be to the prejudice of the church. The confent of the patron alfo is neceffarily implied, becaufe (as was before obferved) the appropriation can be originally made to none, but to fuch fpiritual corporation, as is alfo the patron of the church; the whole being indeed nothing elfe, but an allowance for the patrons to retain the tithes and glebe in their own hands, without prefenting any clerk, they themfelves undertaking to provide for the fervice of the churcho . When the appropriation is thus made, the appropriators and their fucceffors are perpetual parfons of the church; and muft fue and be fued, in all matters concerning the rights of the church, by the name of parfonsp .
THIS appropriation may be fevered, and the church become difappropriate, two ways: as, firft, if the patron or appropriator prefents a clerk, who is inftituted and inducted to the parfonage:
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oPlowd. 496-500.
p Hob. 307.
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for
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For the incumbent fo inftituted and inducted is to all intents and purpofes complete parfon; and the appropriation, being once fevered, can never be re-united again, unlefs by a repetition of the fame folemnitiesq . And when the clerk fo prefented is diftinct from the vicar, the rectory thus vefted in him becomes what is called a fine-cure; becaufe he hath no cure of fouls, having a vicar under him to whom that cure is committedr . Alfo, if the corporation which has the appropriation is diffolved, the parfonage becomes difappropriate at common law; becaufe the perpetuity of perfon is gone, which is neceffary to fupport the appropriation.
IN this manner, and fubject to thefe conditions, may appropritions be made at this day: and thus were moft, if not all, of the appropriations at prefnt exifting originally made; being annexed to bifhopricks, prebends, religious houfes, nay, even to nunneries, and certain military orders, all of which were fpiritual corporations. At the diffolution of monafteries by ftatutes 27 Hen. VIII. c. 28. and 31 Hen. VIII. c. 13. the appropriations of the feveral parfonages, which belonged to thofe refpective religious houfes, (amounting to more than one third of all the parifhes in Englands ) would have been by the rules of the common law difappropriated; had not a claufe in thofe ftatutes intervened, to give them to the king in as ample a manner as the abbotts, & c, formerly held the fame, at the time of their diffolution. This, though perhaps fcarcely defenfible, was not without example; for the fame was done in former reigns, when the alien priries, (that is, fuch as were filled by foreigners only) were diffolved and given to the crownt . And from thefe two roots have fprung all the lay appropriations or fecular parfonages, which we now fee in the kingdom; they having been afterwards granted out from time to time by the crownu.
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q Co. Litt. 46.
r Sine-cures might alfo be created by other means. 2 Burn. Eccl. Law. 347.
s Seld. Review of tith. c. 9. Spelm. Apology. 35.
t 2 Inft. 584.
u Sir H. Spelman (of tythes, c. 29.) fays thefe are now called impropriations, as being improperly in the hands of laymen.
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These appropriating corporations, or religious houfes, were wont to dequpte one of their own body to perform divine fervice, and adminifter the facraments, in thofe parifhes of which the fociety was thus the parfon. This officiating minifter was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called vicarius, or vicar. His ftipend was at the difcretion of the appropriator, who was however bound of common right to find fomebody, qui illi de temporalibus, epifcopo de fpiritualibus, debeat refponderw . But this was done in fo fcandalous a manner, and the parifhes fuffered fo much by the neglect of the appropriators, that the legiflature was forced to interpofe: and accordingly it is enacted by ftatute 15 Ric. II. c. 6. that in all appropriations of churches, the diocefan bifhop fhall ordian (in proportion to the value of the church) a competent fum to be diftributed among the poor parifhioners annually; and that the vicarage fhall be fufficiently endowed. It feems the parifh were frequently fufferers, not only by the want of divine fervice, but alfo by withholding thofe alms, for which, among other purpofes, the payment of tithes was originally impofed: and therefore in this act a penfion is directed to be diftributed among the poor parochians, as well as a fufficient ftipend to the vicar. But he, being liable to be removed at the pleafure of the appropriator, was not likely to infift too rigidly on the legal fufficiency of the ftipend: and therefore by ftatute 4 Hen. IV. c. 12. it is ordained, that the vicarl fhall be a fecular perfon, not a member of any religious houfe; that he fhall be vicar perpetual, not removeable at the caprice of the monaftery; and that he fhall be canonically inftituted and inducted, and be fufficiently endowed, at the difcretion of the ordinary, for thefe three exprefs purpofes, to do divine fervice, to inform the people, and to keep hofpitality. The endowments in confequence of thefe ftatutes have ufually been by a portion of the glebe, or land, belonging to the parfonage, and a particular fhare of the tithes, which the appropriators found it moft troublefome to collect, and which are
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w Seld. tith. c. 11. 1.
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there-
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Therefore generally called privy, fmall, or vicarial, tithes; the greater, or predial, tithes being ftill referved to their own ufe. But one and the fame rule was not obferved in the endowment of all vicarages. Hence fome are more liberally, and fome more fcantily, endowed; and hence many things, as wood in particular, is in fome countries a predial, and in fome a vicarial tithe.
THE diftinction therefore of a parfon and vicar is this; that the parfon has for the moft part the whole right to all the ecclefiftical dues in his parifh; but a vicar has generally an appropriator over him, entitled to the beft part of the profits, to whom he is in effect perpetual curate, with a ftanding falary. Though in fome places the vicarage has been confiderably augmented by a large fhare of the great tithes; which augmentations were greatly affifted by the ftatute 29 Car. II. c. 8. enacted in favour of poor vicars and curates, which rendered fuch temporary augmentations (when made by the appropriators) perpetual.
THE method of becoming a parfon or vicar is much the fame. To both there are four requifites neceffary: holy orders; prefentation; inftitution; and induction. The method of conferring the holy orders of deacon and prieft, according to the liturgy and canonsx , is foreign to the purpofe of thefe commentaries; any farther than as they are neceffary requifites to make a complete parfon or vicar. By common law a deacon, of any age, might be inftituted and inducted to a parfonage or vicarage: but it was ordained by ftatute 13 Eliz. c. 12. that no perfon under twenty three years of age, and in deacon's orders, fhould be prefented to any benefice with cure;l and if he were not ordianed prieft within one year after his induction, he fhould be ipfo facto deprived: and now, by ftatute 13 & 14 Car. II. c. 4. no perfon is capable to be admitted to any benefic, unlefs he hath been firft ordained a prieft; and then he is, in the language of the law, a clerk in orders. But if he obtains orders, or a licence to preach, by
.{FS}
x See 2 Burn. Eccl. Law. 103.
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money
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money or corrupt practices (which feems to be the true, though not the common notion of fimony) the perfon giving fuch orders forfeitsy 40 l. and the perfon receiving 10 l. and is incapable of any ecclefiaftical preferment for feven years afterwards.
ANY clerk may be prefentedz to a parfonage or vicarage; that is, the patron, to whom the advowfon of the church belongs, may offer his clerk to the bifhop of the diocefe to be inftituted. Of advowfons, or the right of prefentation, being a fpecies of private property, we fhall find a more convenient place to treat in the fecond part of thefe commentaries. But when a clerk is prefented, the bifhop may refufe him upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty daysa . Or, 2. If the clerk be unfitb : which unfitnefs is of feveral kinds. Firft, with regard to his perfon; as if he be a baftard, an outlaw, an excommunicate, an alien, under age, or the likec . Next, with regard to his faith or morals; as for any particular herefy, or vice that is malum in fe: but if the bifhop alleges only in generals, as that he is fcbifmaticus inveteratus, or objects a fault that is malum probibitum merely, as haunting taverns, playing at unlawful games, or the like; it is not good caufe of refufald . Or, laftly, the clerk may be unfit to difcharge the paftoral office for want of learning. In any of which cafes the bifhop may refufe the clerk. In cafe the refufal is for herefy, fchifm, inability of learning, or other matter of ecclefiaftical cognizance, there the bifhop muft give notice to the patron of fuch his caufe of refufal, who, being ufually a layman, is not fuppofed to have knowlege of it; elfe he cnnot prefent by lapfe: but if the caufe be temporal, there he is not bound to give noticee .
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y Stat. 31. Eliz. c. 6.
z A layman may alfo be prefented; but he muft take priefts orders before his admiffion. 1 Burn. 103.
a 2 Roll. Abr. 355.
b Glanv. l. 13. c. 20.
c 2 Roll. Abr. 356. 2. Inft. 632. Stat. 3 Ric. II. c. 3. 7. Ric. II. c. 12.
d 5 Rep. 58.
e 2 Inft. 632.
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Z z
IF
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IF an action at law be brought by the patron againft the bifhop, for refufing his clerk, the bifhop muft affign the caufe. If the caufe be of a temporal nature and the fact admitted, (as, for inftance, outlawry) the judges of the king's courts muft determine it's validity, or, whether it be fufficient caufe of refufal: but if the fact be denied, it muft be determined by a jury. If the caufe be of a fpiritual nature, (as, herefy, particularly alleged) the fact if denied fhall alfo be determined by a jury; and if the fact be admitted or found, the court upon confultation and advice of learned divines fhall decide it's fufficiencyf . If the caufe be want of learning, the bifhop need not fpecify in what points the clerk is deficinet, but only allege that he is deficientg : for the ftatute 9 Edw. II. ft. 1. c. 13. is exprefs, that the examination of the fitnefs of a perfon prefented to a benefice belongs to the ecclefiaftical judge. But becaufe it would be nugatory in this cafe to demand the reafon of refual from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore if the bifhop returns the clerk to be minus fufficients in literatura, the court fhall write to the metropolitan, to reexamine him, and certify his qualifications; which certificate of the arch-bifhop is finalh .
IF the bifhop hath no objections, but admits the patron's prefentation, the clerk fo admitted is next to be inftituted by him; which is a kind of inveftiture of the fpritual part of the benefice: for by inftitution the care of the fouls of the parifh is committed to the charge of the clerk. When a vicar is inftituted, he (befide the ufual forms) takes, if required by the bifhop, an oath of perpetual refidence; for the maxim of law is, that vicarius non babet vicarium: and as the non-refidence of the appropriators was the caufe of the perpetual eftablifhment of vicarages, the law judges it very improper for them to defeat the end of their conftitution, and by abfence to creat the very mifchiefs which they
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f 2 Inft. 632.
g 5 Rep. 58. 3. Lev. 313.
h 2 Inft. 632.
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were
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were appointed to remedy: efpecially as, if any profits are to arife from putting in a curate and living at a diftance from the parifh, the appropriator, who is the real parfon, has undoubtedly the elder tile to them. When the ordinary is alfo the patron, and confers the living, the prefentation and inftitution are one and the fame act, and are called a collation to a benefice. By inftitution or collation the church is full, fo that there can be no frefh prefentation till another vacancy, at leaft in the cafe of a common patron; but the church is not full againft the king, till induction: nay, even if a clerk is inftituted upon the king's prefentation, the crown may revoke it before induction, and prefent another clerki . Upon inftitution alfo the clerk may enter on the parfonage houfe and glebe, and take the tithes; but he cannot grant or let them, or bring any action for them, till induction.
INDUCTION is performed by a mandate from the bifhop to the arch-deacon, who ufually iffues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal poffeffion 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 parifhioners due notice, and fufficient certainty of their new minifter, to whom their tithes are to be paid. This therefore is the inveftiture of the temporal part of the benefice, as inftitution is of the fpiritual. And when a clerk is thus prehented, inftituted, and inducted into a rectory, he is then, and not before, in full and complete poffeffion, and is called in law perfona imperfonata, or parfon imparfoncek .
THE rights of a parfon or vicar, in his tithes and eccleftaftical dues, fall more properly under the fecond book of thefe commentaries: and as to his duties, they are principally of ecclefiaftical cognizance; thofe only excepted which are laid upon him by ftatute. And thofe are indeed fo numerous that it is impracticable to recite them here with any tolerable concifenefs or accuracy. Some of them we may remark, as they arife in the progrefs of
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i Co. Litt. 344.
k Co. Litt. 300.
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our
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our enquiries, but for the reft I muft refer myfelf to fuch authors as have compiled treatifes expreffly upon this fubjectl . I fhall only juft mention the article of refidence, upon the fuppofition of which the law doth ftile every parochial minifter an incumbent. By ftatute 21 Hen. VIII. c. 13. perfons wilfully abfenting themfelves from their benefices, for one month together, or two months. in the year, incur a penalty of 5 l. to the king, and 5 l. to any perfon that will fue for the fame: except chaplains to the king, or others therein mentionedm, during their attendeance in the houfhold of fuch as retain them: and alfo exceptn all heads of houfes magiftrates, and profeffors in the univerfities, and all ftudents under forty years of age refiding there, bona fide, for ftudy. Legal refidence is not only in the prifh, but alfo in the parfonage houfe: for it hath been refolvedo , that the ftatute intended refidence, not only for ferving the cure, and for hofpitality; but alfo for maintaning the houfe, that the fucceffor alfo may keep hofpitality there.
WE have feen that there is but one way, whereby one may become a parfon or vicar: there are many ways, by which one may ceafe to be fo. 1 By death. 2. By ceffion, in taking another benefice. For by ftatute 21 Hen. VIII. c. 13. if. any one having a benefice of 8 l. per annum, or upwards, in the king's books, (according to the prefent valuation,p) accepts any other, the firft fhall be adjudged void; unlefs he obtains a difpenfation; which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and fons of lords and knights, and doctors and bachelors of divinity and law, admitted by the univerfities of this realm. And a vacancy thus made, for want of a difpenfation, is called ceffion. 3. By conferation; for, as was mentioned before, when a clerk is promoted to a bifhoprick, all his other preferments are void the inftant that he is con-
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l Thefe are very numerous: but there are only two, which can be relied on with any degree of certainty; bifhop Gibfon's codex, and Dr Burn's ecclefiaftical law.
m Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.
n Stat. 28 Hen. VIII. c. 13.
o 6 Rep. 21.
p Cro. Car. 456.
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fecrated.
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fecrated. But there is a method, by the favour of the crown, of holding fuch livings in commendam. Commenda, or ecclefia commendata, is a living commended by the crown to the care of a clerk, to hold till a proper paftor is provided for it. This may be temporary, for one, two or three years, or perpetual; being a king of difpenfation to avoid the vacancy of the living, and is called a commenda retinere. There is alfo a commenda recipere, which is to take a benefice de novo, in the bifhop's own gift, or the fift of fome other patron confenting to the fame; and this is the fame to him as inftitution and induction are to another clerkq . 4. By refignation. But this is of no avail, till accepted by the ordinary; into whofe hands the refignation muft be mader . 5 By deprivation, either by canonical cenfures, of which I am not to fpeak; or in purfuance of divers penal ftatutes, which delcare the benefice void, for fome nonfeafance or neglect, or elfe fome malefeafance or crime. As, for fimonys ; for maintaining any doctrine in derogation of the king's fupremacy, or of the thirty nine articles, or of the book of common-prayert ; for neglecting after inftitution to read the articles in the church, or make the declarations againft popery, or take the abjuration oathu ; for ufing any other form of prayer than the liturgy of the church of Englandw ; or for abfenting himfelf fixty days in one year from a benefice belonging to a popifh patron, to which the clerk was prefented by either of the univerfitiesx ; in all which and fimilar cafesy the benefice is ipfo facto void, without any formal fentence of deprivation.
VI. ACURATE is the loweft degree in the church; being in the fame ftate that a vicar was formerly, an officiating temporary minifter, inftead of the real incumbent. Though there are what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, (being for fome particular
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q Hob. 144.
r Cro. Jac. 198.
s Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.
t Stat. 1 Eliz. c. 1. & 2. and 13 Eliz. c. 12.
u Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c. 6.
w Stat. 1 Eliz. c. 2.
x Stat. 1 W. M. c. 26.
y 6 Rep. 29, 30.
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reafonsz
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reafonsz exempted from the ftatute of Hen. IV) but, inftead thereof, fuch perpetual curate is appointed by the appropritor. With regard to the other fpecies of curates, they are the objects of fome particular ftatutes, which ordain, that fuch as ferve a church during it's vacancy fhall be paid fuch ftipend as the ordinary thiks reafonable, out of the profits of the vacancy; or, if that be not fufficient, by the fucceffor within fourteen days after he takes poffeffiona : and that, if any recotor or vicar nominates a curate to the ordinary to be licenced, the ordinary fhall fettle his ftipend under his hand and feal, not exceeding 50 l. per annum, nor lefs than 20 l. and on failure of payment may fequefter the profit of the beneficeb .
THUS much of the clergy, properly fo called. There are alfo certain inferior ecclefiaftical officers of whom the common law takes notice; and that principally, to affift the ecclefiaftical jurifdiction, where it is deficient in powers. On which officers I fhall make a few curfory remarks.
VII. CHURCH WARDENS are the guardians or keepers of the church, and reprefentatives of the body of the parifhc . They are fometimes appointed by the minifter, fometimes by the parifh, fometimes by both together, as cuftom directs. They are taken, in favour of the curch, to be for fome purpofes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the ufe and profit of the parifh. Yet they may not wafte the church goods, but may be removed by the parifh, and then called to account by action at the common law: but there is no method of calling them to account, but by firft removing them; for none can legally do it, but thofe who are put in their place. As to lands, or other real property, as the church, church-yard, & c, they have no fort of intereft therein;
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z 1 Burn. eccl. Law. 427.
a Stat. 28 Hen. VIII. c. 11.
b Stat. 12 Ann. Ft. 2. c. 12.
c In Sweden they have fimilar officers, whom they call kiorckowariandes. Stiernhook. 1. 3. c. 7.
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but
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but if any damage is done thereto, the parfon only or vicar fhall have the action. Their office alfo is to repair the church, and make rates and levies for that purpofe: but thefe are recoverable only in the ecclefiaftical court. They are alfo joined with the overfeers in the care and maintenance of the poor. They are to levyd a fhilling forfeiture on all fuch as do not repair to church on fundays and holidays, and are empowered to keep all perfons orderly while there; to which end it has been held that a churchwarden may juftify the pulling off a man's hat, without being guilty of either an affault or trefpafse . There are alfo a multitude of other petty parochial powers committed to their charge by divers acts of parliament.f .
VIII. PARISH clerks and fextons are alfo regarded by the common law, as perfons who have freeholds in their offices; and therefore though they may be punifhed, yet they cannot be deprived, by ecclefiaftical cenfuresg . The parifh clerk was formerly always in holy orders; and fome are fo to this day. He is generally appointed by the incumbent, but by cuftom may be chofen by the inhabitants; and if fuch cuftom appears, the court of king's bench will grant a mandamus to the arch-deacon to fwear him in, for the eftablifhment of the cuftom turns it into a temporal or civil righth .
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d Stat. 1 Eliz. c. 2.
d 1 Lev. 196.
f See Lambard of churchwardens, at the end of his cirenacha; and Dr Burn, tit. church, churchwardens, vifitation.
g 2 Roll. Abr. 234.
h
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