COMMENTARIES ON THE LAWS OF ENGLAND (1765 – 1769)
Volume 1, Chapter 11
THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter.
THIS venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service 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 use which the popish clergy had endeavored to make of them. For, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. But it is observed by Sir Edward Coke,1 that, as the overslowing of waters does many times make the river to lose its proper channel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. The personal exemptions do indeed for the most part continue. A clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank pledge; which almost every other person is obliged to do:2 but, if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn.3 Neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function.4 During his attendance on divine service he is privileged from arrests in civil suits.5 In cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman.6 But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen,7 are incapable of sitting in the house of commons; and by statute 21 Hen. VIII. c. 13. are not allowed to take any lands or tenements to farm, upon pain of 10£ per month, and total avoidance of the lease; nor shall engage in any manner of trade, nor sell any merchandise, under forfeiture of the treble value. Which prohibition is consonant to the canon law.
IN the frame and constitution of ecclesiastical polity there are diverse ranks and degrees: which I shall consider in their respective order, merely as they are taken notice of by the secular laws of England; without intermeddling with the canons and constitutions, by which they have bound themselves. And under each division I shall consider, 1. The method of their appointment; 2. Their rights and duties; and 3. The manner wherein their character or office may cease.
I. AN arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a license from the crown. Election was, in very early times, the usual mode of elevation to the episcopal chair throughout all Christendom; and this was promiscuously performed by the laity as well as the clergy:8 till at length, it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of Europe took the election in some degree into their own hands; by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and investiture, the elected bishop could neither be consecrated, nor receive any secular profits. This right was acknowledged in the emperor Charlemagne, A. D. 773, by pope Hadrian I, and the council of Lateran,9 and universally exercised by other Christian princes: but the policy of the court of Rome at the same time began by degrees to exclude the laity from any share in these 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 consequence, which the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. Hence the right of appointing to bishoprics is said to have been in the crown of England10 (as well as other kingdoms in Europe) even in the Saxon times, because the rights of confirmation and investiture were in effect (though not in form) a right of complete donation.11 But when, by length of time, the custom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these investitures, which was per annulum et baculum [by the ring and staff], by the prince’s delivering to the prelate a ring, and a pastoral staff or crosier; pretending, that this was an encroachment on the church’s authority, and an attempt by these symbols to confer a spiritual jurisdiction: and pope Gregory VII, towards the close of the eleventh century, published a bull of excommunication against all princes who should dare to confer investitures, and all prelates who should venture to receive them.12 This was a bold step towards effecting the plan then adopted by the Roman see, of rendering the clergy entirely independent of the civil authority: and long and eager were the contests occasioned by this dispute. But at length when the emperor Henry V agreed to remove all suspicion of encroachment on the spiritual character, by conferring investitures for the future per sceptrum [by the scepter] and not per annulum et baculum; and when the kings of England and France consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while its other pretensions.13
THIS concession was obtained from king Henry the first in England, by means of that obstinate and arrogant prelate, archishop Anselm:14 but king John (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a license to elect, (which is the original of our conge d’ eslire [permission to elect]) on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause.15 This grant was expressly recognized and confirmed in king John’s magna carta16 and was again established by statute 25 Edw. III. St. 6. § 3.
BUT by statute 25 Hen. VIII. c. 20. the ancient right of nomination was, in effect, restored to the crown: it being enacted that, at every future avoidance of a bishopric, the king may send the dean and chapter his usual license to proceed to election; which is always to be accompanied with a letter missive from the king, containing the name of the person whom he would have them elect: and, if the dean and chapter delay their election above twelve days, the nomination shall d evolve to the king, who may by letters patent appoint such person as he pleases. This election or nomination, if it be of a bishop, must be signified by the king’s letters patent to the arch-bishop of the province; if it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected: which they are bound to perform immediately, without any application to the see of Rome. After which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king’s hands only. And if such dean and chapter do not elect in the manner by this act appointed, or if such arch-bishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a praemunire [forewarning].
AN arch-bishop is the chief of the clergy in a whole province; and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause.17 The arch-bishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province he exercises archiepiscopal. As arch-bishop, he, upon receipt of the king’s writ, calls the bishops and clergy of his province to meet in convocation: but without the king’s writ he cannot assemble them.18 To him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. During the vacancy of any see in his province, he is guardian of the spiritualties thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. If an archiepiscopal see be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of Canterbury was abolished at the reformation.19 The arch-bishop is entitled to present by lapse to all the ecclesiastical livings in the disposal of his diocesan bishops, if not filled within six months. And the arch-bishop has a customary prerogative, when a bishop is consecrated by him, to name a clerk or chaplain of his won to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop’s disposal within that see, as the arch-bishop himself shall choose; which is therefore called his option:20 which options are only binding on the bishop himself who grants them, and not his successors. The prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of Canterbury.21 And we may add, that the papal claim itself (like most others of that encroaching see) was probably set up on imitation of the imperial prerogative called primae or primarie preces [first prayers, or suits]; whereby the emperor exercises, and has immemorially exercised,22 a right of naming to the first prebend that becomes vacant after his accession in every church of the empire.23 A right, that was also exercised by the crown of England in the reign of Edward I;24 and which probably gave rise to the royal corodies, which were mentioned in a former chapter.25 It is also the privilege, by custom, of the arch-bishop of Canterbury, to crown the kings and queens of this kingdom. And he has also by the statute 25 Hen. VIII. c. 21. the power of granting dispensations in any case, not contrary to the holy scriptures and the law of God, where the pope used formerly to grant them: which is the foundation of his granting special licenses, to marry at any place or time, to hold two livings, and the like: and on this also is founded the right he exercises of conferring degrees, in prejudice of the two universities.26
THE power and authority of a bishop, besides the administration of certain holy ordinances peculiar to that sacred order, consists principally in inspecting the manners of the people and clergy, and punishing them, in order to reformation, by ecclesiastical censures. To this purpose he has several courts under him, and may visit at pleasure every part of his diocese. His chancellor is appointed to hold his courts for him, and to assist him in matters of ecclesiastical law; who, as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some university.27 It is also the business of a bishop to institute and to direct induction to all ecclesiastical livings in his diocese.
ARCHBISHOPRICS and bishoprics may become void by death, deprivation for any very gross and notorious crime, and also by resignation. All resignations must be made to some superior.28 Therefore a bishop must resign to his metropolitan; but the arch-bishop can resign to none but the king himself.
II. A DEAN and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his see.29 When the rest of the clergy were settled in the several parishes of each diocese (as has formerly30 been mentioned) these were reserved for the celebration of divine service in the bishop’s own cathedral; and the chief of them, who presided over the rest, obtained the name of decanus or dean, being probably at first appointed to superintend ten canons or prebendaries.
ALL ancient deans are elected by the chapter, by conge d’eslire from the king, and letters missive of recommendation; in the same manner as bishops: but in those chapters, that were founded by Henry VIII out of the spoils of the dissolved monasteries, the deanery is donative, and the installation merely by the king’s Letters patent.31 The chapter, consisting of canons or prebendaries, are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each other.
THE dean and chapter are, as was before observed, the nominal electors of a bishop. The bishop is their ordinary and immediate superior; and has, generally speaking, the power of visiting them, and correcting their excesses and enormities. They had also a check on the bishop at common law: for till the statute 32 Hen. VIII. C. 28. his grant or lease would not have bound his successors, unless confirmed by the dean and chapter.32 DEANERIES and prebends may become void, like a bishopric, by death, by deprivation, or by resignation to either the king or the bishop.33 Also I may here mention, once for all, that if a dean, prebendary, or other spiritual person be made a bishop all the preferments he was before possessed of are void; and the king may present to them in right of his prerogative royal. But they are not void by the election, but only by the consecration.34
III. AN arch-deacon has an ecclesiastical jurisdiction, immediately subordinate to the bishop, throughout the whole of his diocese, or in some particular part of it. He is usually appointed by the bishop himself; and has a kind of episcopal authority, originally derived from the bishop, but now independent and distinct from his.35 He therefore visits the clergy; and has his separate court for punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical cognizance.
IV. THE rural deans are very ancient officers of the church,36 but almost grown out of use; though their deaneries still subsist as an ecclesiastical division of the diocese, or archdeaconry. They seem to have been deputies of the bishop, planted all round his diocese, the better to inspect the conduct of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive authority.37
V. THE next, and indeed the most numerous order of men in the system of ecclesiastical polity, are the parsons and vicars of parishes: in treating of whom I shall first mark out the distinction between them; shall next observe the method by which one may become a parson or vicar; shall then briefly touch upon their rights and duties; and shall, lastly, show how one may cease to be either.
A PARSON, persona ecclesiae, is one that has full possession of all the rights of a parochial church. He is called parson, persona, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church (which he personates) by a perpetual succession.38 He is sometimes called the rector, or governor, of the church: but the appellation of parson, (however it may be depreciated by familia, clownish, and indiscriminate use) is the most legal, most beneficial, and most honorable title that a parish priest can enjoy; because such a one, (Sir Edward Coke observes) and he only, is said vicem seu personam ecclesiae gerere [to represent the church]. A parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. But these are sometimes appropriated; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing for the service of the church, as any single private clergyman. This contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtle inventions for the increase of their own power and emoluments. At the first establishment of parochial clergy, the tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for maintaining the fabric of the church, a third for the poor, and the fourth to provide for the incumbent. When the sees of the bishops became otherwise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. And hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety) subject to the burden of repairing the church and providing for its constant supply. And therefore they begged and bought, for mastes and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. But, in order to complete such appropriation effectually, the king’s license, and consent of the bishop, must first be obtained; because both the king and the bishop may sometime or other have an interest, by lapse, in the presentation to the benefice; which can never happen if it be appropriated to the use of a corporation, which never dies: and also because the law reposes a confidence in them, that they will not consent to anything that shall be to the prejudice of the church. The consent of the patron also is necessarily implied, because (as was before observed) the appropriation can be originally made to none, but to such spiritual corporation, as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the service of the church.39 When the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church; and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons.40
THIS appropriation may be severed, and the church become disappropriate, two ways: as, first, if the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage: for the incumbent so instituted and inducted is to all intents and purposes complete parson; and the appropriation, being once severed, can never be re-united again, unless by a repetition of the same solemnities.41 And when the clerk so presented is distinct from the vicar, the rectory thus vested in him becomes what is called a sine-cure; because he has no cure of souls, having a vicar under him to whom that cure is committed.42 Also, if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law; because the perpetuity of person is gone, which is necessary to support the appropriation.
IN this manner, and subject to these conditions, may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishoprics, prebends, religious houses, nay, even to nunneries, and certain military orders, all of which were spiritual corporations. At the dissolution of monasteries by statutes 27 Hen. VIII. c. 28. and 31 Hen. VIII. c. 13. the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in England43) would have been by the rules of the common law disappropriated; had not a clause in those statutes intervened, to give them to the king in as ample a manner as the abbots, etc, formerly held the same, at the time of their dissolution. This, though perhaps scarcely defensible, was not without example; for the same was done in former reigns, when the alien priories, (that is, such as were filled by foreigners only) were dissolved and given to the crown.44 And from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown.45
These appropriating corporations, or religious houses, were wont to depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. This officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called vicarius, or vicar. His stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, qui illi de temporalibus, episcopo de spiritualibus, debeat respondere [who should answer to him concerning temporal, to the bishop concerning spiritual, affairs].46 But this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute 15 Ric. II. c. 6. that in all appropriations of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent sum to be distributed among the poor parishioners annually; and that the vicarage shall be sufficiently endowed. It seems the parish were frequently sufferers, not only by the want of divine service, but also by withholding those alms, for which, among other purposes, the payment of tithes was originally imposed: and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. But he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore by statute 4 Hen. IV. c. 12. it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removable at the caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes, to do divine service, to inform the people, and to keep hospitality. The endowments in consequence of these statutes have usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share of the tithes, which the appropriators found it most troublesome to collect, and which are therefore generally called privy, small, or vicarial, tithes; the greater, or predial, tithes being still reserved to their own use. But one and the same rule was not observed in the endowment of all vicarages. Hence some are more liberally, and some more scantily, endowed; and hence many things, as wood in particular, is in some countries a rectorial, and in some a vicarial tithe.
THE distinction therefore of a parson and vicar is this; that the parson has for the most part the whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing salary. Though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute 29 Car. II. c. 8. enacted in favor of poor vicars and curates, which rendered such temporary augmentations (when made by the appropriators) perpetual.
THE method of becoming a parson or vicar is much the same. To both there are four requisites necessary: holy orders; presentation; institution; and induction. The method of conferring the holy orders of deacon and priest, according to the liturgy and canons,47 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 instituted 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 [by that fact] deprived: and now, by statute 13 & 14 Car. II. c. 4. no person is capable to be admitted to any benefic, unless he has 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 license 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 forfeits48 40£ and the person receiving 10£ and is incapable of any ecclesiastical preferment for seven years afterwards.
ANY clerk may be presented49 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 instituted. 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.50 Or, 2. If the clerk be unfit:51 which unfitness is of several kinds. First, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like.52 Next, with regard to his faith or morals; as for any particular heresy, or vice that is malum in se [wrong in itself]: but if the bishop alleges only in generals, as that he is schismaticus inveteratus [an inveterate schismatic], or objects a fault that is malum probibitum [wrong because prohibited] merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal.53 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 knowledge of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice.54
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.55 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:56 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 [deficient in learning], the court shall write to the metropolitan, to reexamine him, and certify his qualifications; which certificate of the arch-bishop is final.57
IF the bishop has 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 (beside 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 [a vicar has no deputy]: 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 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 tile 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.58 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 any action for them, till induction.
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 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.59
THE rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these commentaries: and as to his duties, they are principally 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 inquiries, but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject.60 I shall only just mention the article of residence, upon the supposition of which the law does stile every parochial minister an incumbent. 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£ to the king, and 5£ to any person that will sue for the same: except chaplains to the king, or others therein mentioned,61during their attendance in the household of such as retain them: and also except62 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 has been resolved,63 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.
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£ per annum, or upwards, in the king’s books, (according to the present valuation,64) accepts any other, the first shall be adjudged void; unless he obtains a dispensation; which no one is entitled 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 conferation; for, as was mentioned before, when a clerk is promoted to a bishopric, all his other preferments are void the instant that he is consecrated. But there is a method, by the favor of the crown, of holding such livings in commendam [in trust]. Commenda, or ecclesia commendata [a living in trust], 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 king of dispensation to avoid the vacancy of the living, and is called a commenda retinere [to retain a trust living]. There is also a commenda recipere [to receive a trust living], which is to take a benefice de novo [anew], 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.65 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made.66 5 By deprivation, either by canonical censures, of which I am not to speak; or in pursuance of diverse penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malfeasance or crime. As, for simony;67 for maintaining any doctrine in derogation of the king’s supremacy, or of the thirty-nine articles, or of the book of common-prayer;68 for neglecting after institution to read the articles in the church, or make the declarations against popery, or take the abjuration oath;69 for using any other form of prayer than the liturgy of the church of England;70 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;71 in all which and similar cases72 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 real incumbent. Though there are what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons73exempted 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:74 and that, if any rector or vicar nominates a curate to the ordinary to be licensed, the ordinary shall settle his stipend under his hand and seal, not exceeding 50£ per annum, nor less than 20£ and on failure of payment may sequester the profit of the benefice.75
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 powers. On which officers I shall make a few cursory remarks.
VII. CHURCH WARDENS are the guardians or keepers of the church, and representatives of the body of the parish.76 They are sometimes appointed by the minister, sometimes by the parish, sometimes by both together, as custom directs. They are taken, in favor 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, etc, 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 levy77 a shilling 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 assault or trespass.78 There are also a multitude of other petty parochial powers committed to their charge by diverse acts of parliament.79
VIII. PARISH clerks and sextons 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.80 The parish clerk was formerly always in holy orders; and some are so to this day. He is generally appointed by the incumbent, 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.81
1. 2 Inst. 4.
2. F. N. B. 160. 2 Inst. 4.
3. 4 Leon. 190.
4. Finch. L. 88.
5. Stat. 50 Edw. III. c. 5. I Ric. II. c. 16.
6. 2 Inst. 637. Stat. 4 Hen. VII. c. 13. & I Edw. VI. c. 12.
7. page 169.
8. Per clerum et populum. [By the clergy and people.] Palm. 25. 2 Roll. Rep. 102. M. Paris. A. D. 1095.
9. Decret. 1. dist. 63. c. 22.
10. Palm. 28.
11. “Nulla electio praelatorum (sent verba Ingulphi) erat mere libera et canonica; sed omnes dignitates, tam episcoporum quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat.” Penes clericos et monachos fuit electio, sed electum a rege postulabant. [“There was no election of prelates, (says Ingulphus) purely free and canonical; but the king’s court granted all dignities at its pleasure, as well of bishops as abbots, by the ring and the staff.” The election was in the power of the clergy and monks, but they requested election by the king.] Selden. Tan. Angl. 1. I. §. 39.
12. Decret. 2. caus. 16. qu. 7. c. 12. & 13.
13. Mod. Un. Hist. xxv. 363. xxix. 115.
14. M. Paris. A. D. 1107.
15. M. Paris. A. D. 1214. 1 Rym. Foed. 198.
16. cap. 1. edit. Oxon. 1759.
17. Lord Raym. 541.
18. 4 Inst. 322, 323.
19. 2 Roll. Abr. 223.
20. Cowel’s interpr. tit. Option.
21. Sherock of options 1.
22. Goldaft. Constit. imper. tom. 3. pag. 406.
23. Dufrefne. V. 806. Mod. Un. Hist. xxix. 5.
24. Rex, &c. salutem. Scribatis episcopo Karl. quod Roberto de Icard pensionem suam, quam ad preces regis praedicto Roberto concessit, de caetero solvat: et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse Robertus acceptaverit, respiciat. [The king, etc. sends greeting. Write to the Bishop of Carlisle, that he henceforth pay to Robert de Icard, the pension which he granted to the said Robert at the desire of the king: and that the aforesaid Bishop see that the said Robert be appointed to the next church vacancy in his collation.] Breu. 11 Edw. I. 3. Pryn. 1264.
25. ch. 8. pag. 273.
26. See the bishop of Chester’s case. Oxon. 1721.
27. Stat. 37. Hen. VIII. c. 17.
28. Gibf. cod. 822.
29. 3 Rep. 75. Co. 103, 300.
30. pag. 108, 109.
31. Gibf. cod. 173.
32. Co. Litt. 103.
33. Plowd. 498.
34. 2 Roll. Abr. 352. Salk. 137.
35. 1 Burn. Eccl. Law. 68, 69.
36. Kennet, par. antiq. 633.
37. Gibf. cod. 972.
38. Co. Litt. 300.
39. Plowd. 496-500.
40. Hob. 307.
41. Co. Litt. 46.
42. Sine-cures might also be created by other means. 2 Burn. Eccl. Law. 347.
43. Seld. Review of tith. c. 9. Spelm. Apology. 35.
44. 2 Inst. 584.
45. Sir H. Spelman (of tithes, c. 29.) says these are now called impropriations, as being improperly in the hands of laymen.
46. Seld. tith. c. 11. 1.
47. See 2 Burn. Eccl. Law. 103.
48. Stat. 31. Eliz. c. 6.
49. A layman may also be presented; but he must take priests orders before his admission. 1 Burn. 103.
50. 2 Roll. Abr. 355.
51. Glanv. l. 13. c. 20.
52. 2 Roll. Abr. 356. 2. Inst. 632. Stat. 3 Ric. II. c. 3. 7. Ric. II. c. 12.
53. 5 Rep. 58.
54. 2 Inst. 632.
55. 2 Inst. 632.
56. 5 Rep. 58. 3. Lev. 313.
57. 2 Inst. 632.
58. Co. Litt. 344.
59. Co. Litt. 300.
60. 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.
61. Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.
62. Stat. 28 Hen. VIII. c. 13.
63. 6 Rep. 21.
64. Cro. Car. 456.
65. Hob. 144.
66. Cro. Jac. 198.
67. Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.
68. Stat. 1 Eliz. c. 1. & 2. and 13 Eliz. c. 12.
69. Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c. 6.
70. Stat. 1 Eliz. c. 2.
71. Stat. 1 W. M. c. 26.
72. 6 Rep. 29, 30.
73. 1 Burn. eccl. Law. 427.
74. Stat. 28 Hen. VIII. c. 11.
75. Stat. 12 Ann. St. 2. c. 12.
76. In Sweden they have similar officers, whom they call kiorckowariandes. Stiernhook. 1. 3. c. 7.
77. Stat. 1 Eliz. c. 2.
78. 1 Lev. 196.
79. See Lambard of churchwardens, at the end of his cirenacha; and Dr Burn, tit. church, churchwardens, visitation.
80. 2 Roll. Abr. 234.
81. Cro. Car. 589.
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