Commentaries on the Laws of England Part 34

THE method of becoming a parson or vicar is much the same. To both there are four requisites necessary: holy orders; presentation; inst.i.tution; and induction. The method of conferring the holy orders of deacon and priest, according to the liturgy and canons[x], is foreign to the purpose of these commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. By common law a deacon, of any age, might be inst.i.tuted and inducted to a parsonage or vicarage: but it was ordained by statute 13 Eliz. c. 12.

that no person under twenty three years of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be _ipso facto_ deprived: and now, by statute 13 & 14 Car. II. c. 4. no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; 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 money or corrupt practices (which seems to be the true, though not the common notion of simony) the person giving such orders forfeits[y]

40_l._ and the person receiving 10_l._ and is incapable of any ecclesiastical preferment for seven years afterwards.

[Footnote x: See 2 Burn. eccl. law. 103.]

[Footnote y: Stat. 31 Eliz. c. 6.]

ANY clerk may be presented[z] to a parsonage or vicarage; that is, the patron, to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be inst.i.tuted. Of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these commentaries. But when a clerk is presented, the bishop may refuse him upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty days[a]. Or, 2. If the clerk be unfit[b]: which unfitness is of several kinds. First, with regard to his person; as if he be a b.a.s.t.a.r.d, an outlaw, an excommunicate, an alien, under age, or the like[c]. Next, with regard to his faith or morals; as for any particular heresy, or vice that is _malum in se_: but if the bishop alleges only in generals, as that he is _schismaticus inveteratus_, or objects a fault that is _malum prohibitum_ merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal[d]. Or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. In any of which cases the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who, being usually a layman, is not supposed to have knowlege of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice[e].

[Footnote z: A layman may also be presented; but he must take priests orders before his admission. 1 Burn. 103.]

[Footnote a: 2 Roll. Abr. 355.]

[Footnote b: Glanv. _l._ 13. _c._ 20.]

[Footnote c: 2 Roll. Abr. 356. 2 Inst. 632. Stat. 3 Ric. II. c. 3. 7 Ric. II. c. 12.]

[Footnote d: 5 Rep. 58.]

[Footnote e: 2 Inst. 632.]

IF an action at law be brought by the patron against the bishop, for refusing his clerk, the bishop must a.s.sign 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 it's 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 it's 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 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 p.r.o.nounced his clerk unfit; therefore if the bishop returns the clerk to be _minus sufficiens in literatura_, the court shall write to the metropolitan, to reexamine him, and certify his qualifications; which certificate of the arch-bishop is final[h].

[Footnote f: 2 Inst. 632.]

[Footnote g: 5 Rep. 58. 3 Lev. 313.]

[Footnote h: 2 Inst. 632.]

IF the bishop hath no objections, but admits the patron's presentation, the clerk so admitted is next to be inst.i.tuted by him; which is a kind of invest.i.ture of the spiritual part of the benefice: for by inst.i.tution the care of the souls of the parish is committed to the charge of the clerk. When a vicar is inst.i.tuted, he (besides the usual forms) takes, if required by the bishop, an oath of perpetual residence; for the maxim of law is, that _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 const.i.tution, and by absence to create the very mischiefs 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 t.i.tle to them. When the ordinary is also the patron, and _confers_ the living, the presentation and inst.i.tution are one and the same act, and are called a collation to a benefice. By inst.i.tution 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 inst.i.tuted upon the king's presentation, the crown may revoke it before induction, and present another clerk[i]. Upon inst.i.tution also the clerk may enter on the parsonage house and glebe, and take the t.i.thes; but he cannot grant or let them, or bring any action for them, till induction.

[Footnote i: Co. Litt. 344.]

INDUCTION is performed by a mandate from the bishop to the arch-deacon, 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 paris.h.i.+oners due notice, and sufficient certainty of their new minister, to whom their t.i.thes are to be paid. This therefore is the invest.i.ture of the temporal part of the benefice, as inst.i.tution is of the spiritual. And when a clerk is thus presented, inst.i.tuted, 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].

[Footnote k: Co. Litt. 300.]

THE rights of a parson or vicar, in his t.i.thes and ecclesiastical dues, fall more properly under the second book of these commentaries: and as to his duties, they are princ.i.p.ally of ecclesiastical cognizance; those only excepted which are laid upon him by statute.

And those are indeed so numerous that it is impracticable to recite them here with any tolerable conciseness or accuracy. Some of them we may remark, as they arise in the progress of our enquiries, but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject[l]. I shall only just mention the article of residence, upon the supposition of which the law doth stile every parochial minister an inc.u.mbent. By statute 21 Hen. VIII.

c. 13. persons wilfully absenting themselves 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 person that will sue for the same: except chaplains to the king, or others therein mentioned[m], during their attendance in the houshold of such as retain them: 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: for it hath been resolved[o], 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.

[Footnote l: These are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop Gibson's _codex_, and Dr Burn's ecclesiastical law.]

[Footnote m: Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.]

[Footnote n: Stat. 28 Hen. VIII. c. 13.]

[Footnote o: 6 Rep. 21.]

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. if any one having a benefice of 8_l._ _per annum_, or upwards, in the king's books, (according to the present valuation[p],) accepts any other, the first shall be adjudged void; unless he obtains a dispensation; which no one is ent.i.tled to have, but the chaplains of the king and others 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. 3.

By consecration; for, as was mentioned before, when a clerk is promoted to a bishop.r.i.c.k, all his other preferments are void the instant that he is consecrated. But there is a method, by the favour of the crown, of holding such livings _in commendam_. _Commenda_, 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_. 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 inst.i.tution and induction are to another clerk[q]. 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 by canonical censures, of which I am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crime.

As, for simony[s]; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty nine articles, or of the book of common-prayer[t]; for neglecting after inst.i.tution to read the articles in the church, or make the declarations against popery, or take the abjuration oath[u]; for using any other form of prayer than the liturgy of the church of England[w]; 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.

[Footnote p: Cro. Car. 456.]

[Footnote q: Hob. 144.]

[Footnote r: Cro. Jac. 198.]

[Footnote s: Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.]

[Footnote t: Stat. 1 Eliz. c. 1 & 2. and 13 Eliz. c. 12.]

[Footnote u: Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c.

6.]

[Footnote w: Stat. 1 Eliz. c. 2.]

[Footnote x: Stat. 1 W. & M. c. 26.]

[Footnote y: 6 Rep. 29, 30.]

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 real inc.u.mbent. Though there are what are called _perpetual_ curacies, where all the t.i.thes are appropriated, and no vicarage endowed, (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 it's 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 licenced, the ordinary shall settle his stipend under his hand and seal, not exceeding 50_l._ _per annum_, nor less than 20_l._ and on failure of payment may sequester the profits of the benefice[b].

[Footnote z: 1 Burn. eccl. law. 427.]

[Footnote a: Stat. 28 Hen. VIII. c. 11.]

[Footnote b: Stat. 12 Ann. st. 2. c. 12.]

THUS much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, princ.i.p.ally, to a.s.sist the ecclesiastical jurisdiction, where it is deficient in powers. On which officers I shall make a few cursory remarks.

VII. CHURCHWARDENS are the guardians or keepers of the church, and representatives of the body of the parish[c]. They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. They are taken, in favour of the church, to be for some purposes 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 use and profit of the parish. Yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at the common law: but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are put in their place. As to lands, or other real property, as the church, church-yard, &c, they have no sort of interest therein; but if any damage is done thereto, the parson only or vicar shall have the action. Their office also is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclesiastical court. They are also joined with the overseers in the care and maintenance of the poor. They are to levy[d] a s.h.i.+lling forfeiture on all such as do not repair to church on sundays and holidays, and are empowered to keep all persons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an a.s.sault or trespa.s.s[e]. There are also a mult.i.tude of other petty parochial powers committed to their charge by divers acts of parliament[f].

[Footnote c: In Sweden they have similar officers, whom they call _kiorckiowariandes_. Stiernhook. l. 3. c. 7.]

[Footnote d: Stat. 1 Eliz. c. 2.]

[Footnote e: 1 Lev. 196.]

[Footnote f: See Lambard of churchwardens, at the end of his _eirenarcha_; and Dr Burn, t.i.t. _church, churchwardens, visitation_.]

VIII. PARISH clerks and s.e.xtons are also regarded by the common law, as persons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived, by ecclesiastical censures[g]. The parish clerk was formerly always in holy orders; and some are so to this day. He is generally appointed by the inc.u.mbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's bench will grant a _mandamus_ to the arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil right[h].

[Footnote g: 2 Roll. Abr. 234.]

[Footnote h: Cro. Car. 589.]