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or being admitted to any parsonage, vicarage, benefice or other ecclesiastical promotion or dignity whatsoever, in virtue of such his admission as deacon or priest respectively, or of any qualification *derived or supposed to be derived therefrom. Provided always, that no title to confer or present [*471] by lapse shall accrue by any avoidance or deprivation ipso facto, by virtue of this statute, but after six months' notice of such avoidance or deprivation given by the ordinary to the patron."

Any clerk may be presented(p) to a parsonage or vicarage; that is, the patron(g), to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. Of advowsons, and the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second volume of these Commentaries.

It must suffice for the present to observe that an advowson is, by the law of England, a lay inheritance, its fruit or benefit being that, upon a vacancy of the living, the owner possesses a right to present to the bishop a person in holy orders (or who can obtain holy orders before admittance), to be by him admitted and instituted. The only obligation which the law imposes upon the patron in the exercise of this right is that he should present a fit person, and the duty of the bishop is to ascertain the fitness of the clerk presented to him(r). The bishop must satisfy himself that the presentee is of fit age, and in holy orders, and likewise as to his learning, his faith or orthodoxy, and his moral conduct.

The right of presentation to a benefice being, as above mentioned, a mere temporal right, it follows that if the patron presents a fit person who produces all the proofs of his fitness which the bishop can properly require, the patron may claim to have his clerk admitted, whereas if *for any reason determined upon by the bishop the clerk should prove unfit, the patron is [*472] entitled to notice thereof from the bishop, who could not legally collate his own clerk by lapse without giving it(s).

The remedy of the clerk against the bishop, if rejected on insufficient grounds, is by duplex querela, or rescript from the appellate court(t), directed to the bishop, and calling upon him to show cause why, by reason of his neglect to do justice, the right of institution is not devolved to the superior udge(u). The remedy of the patron as against the bishop, if his presentee be improperly rejected, is by action of quare impedit (x) at the common law, to try, 1st, whether the plaintiff had the right to present; and if so, 2ndly, whether he has presented a fit person.

If an action at law be brought by the patron against the bishop for refusing his clerk, the bishop must, by plea, assign the cause of such refusal, so that the temporal court may judge of its sufficiency. If the plea alleges unfitness, its truth will be determined by a jury, should the cause of unfitness alleged be a crime, or by the certificate of the metropolitan if it be insufficiency; and for the purpose of determining either of such issues, the court of common law, according as the case may be, either summons a jury, or sends a writ to the

(p) A layman may also be presented; but he must take priest's orders before his admission 1 Burn, Ecc. L. 9th ed. p. 144.

(q) If he be neither an alien, an outlaw, a lunatic, nor a Roman Catholic.

(r) Per Lord Chelmsford, Bishop of Exeter v. Marshall, L. R. 3 H. L. 45.

50.

(8) Per Lord Chelmsford, L. R. 3 H. L. 49,

(t) As to which, vide post.

(u) Cripps, Law of Church and Clergy, 4th ed. p. 548; Gorham v. Bishop of Exeter, Rep. by Mr. Moore.

(x) Stat. Westminster 2, c. 5.

metropolitan, commanding him in the queen's name to try the question, and to certify the result to the court. By the course of proceeding in quare impedit, accordingly, questions of law are left for the decision of the court of law, questions of fact for that of the jury, and questions of doctrine are submitted to the metropolitan (y).

[*473] If the bishop, having no objections to offer, admits the *patron's presentee, the clerk so admitted, after making the declarations and taking the oaths required by the undermentioned statutes(2), 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 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 crown till induction: nay, even if a clerk is instituted upon presentation, the crown may revoke it before induction, and present another clerk (a). Upon institution also the clerk may enter on the parsonage-house and glebe, and take the tithes; but he cannot grant or let them, or bring an action for them till induction.

Induction is performed by a mandate from the bishop, usually directed to the archdeacon, who 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.

The rights of a parson as regards his tithes and ecclesiastical dues, fall more properly within the second volume of these Commentaries: and as to his duties,

Rights and du- [*474] they are *principally of ecclesiastical cognizance; those

ties of parson.

only excepted which are laid upon him by statute, and are indeed so numerous, that it is impracticable to recite them here with a tolerable conciseness or accuracy. Some of them we may remark as they arise in the progress of our inquiries, but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject. I shall only just mention the article of residence, upon the supposition of which the law styles every parochial minister an incumbent (b).

Although an oath is not now as formerly required of any vicar in relation to residence on his vicarage(c), the maxim of law is, vicarius non habet vicarium: and, as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it improper for them to defeat the end of their constitution, and by absence to create the very mischief which they were appointed to remedy: especially as, if any profits are to arise from putting

(y) Per Willes, J., Bishop of Exeter v. Marshall, L. R. 3 H. L. 40.

(2) 28 & 29 Vict. c. 122; 31 & 32 Vict. c. 72, 8. 9.

(a) Co. Litt. 344.
(b) Co. Litt. 300.

1 & 2 Vict. c. 106, s. 61.

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in a curate, and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them.

The law concerning non-residence and pluralities is now regulated by stats. 1 & 2 Vict. c. 106, and 13 & 14 Vict. c. 98, the former of which enacts (d) that if any spiritual person holding any benefice shall fail to keep residence on his benefice as directed by the act, he shall, when such absence exceeds three months and does not exceed six months, forfeit one-third part of the annual value of the benefice so neglected; when such absence exceeds six and does not exceed eight months, one-half part of such annual value; when such absence exceeds eight months, two-thirds of such annual value; and when such absence has been for the whole year, three-fourth parts thereof(e). *From the [*475] requirements of the above statute as to residence certain persons, however, are exempted (f), and in particular cases the bishop at his discretion is empowered to grant licenses for non-residence(g).

With regard to pluralities, the effect of the two statutes last cited is that two benefices with cure of souls cannot be held together unless they are situated within three miles of each other, by the nearest road from church to church, and the net annual value of neither of them exceeds 100%. If the population of one benefice exceeds three thousand, another having a population of more than five hundred cannot be held with it, and no clergyman holding more than one benefice can take any other or any cathedral preferment (h). A dispensation from compliance with the above provisions may, in certain cases, be obtained from the arch-diocesan (i). If any spiritual person holding any benefice accepts another, and is admitted thereto contrary to the foregoing statutes, his previous benefice is at once vacated (k).

vicars cease to

be such.

Although there is but one way whereby a person may become a rector or vicar: there are several ways by which he may cease to be such. 1. By death. How rectors and 2. By cession, in taking another benefice. 3. By consecration; for, as before mentioned (?), when a clerk is promoted to a bishopric all his other preferments are void the instant that he is consecrated (m). 4. By resignation. But this is of no avail, till accepted by the ordinary, into whose hands the resignation must be made. 5. By deprivation, [*476] which will be considered in our fourth Volume.

VI. A curate is of the lowest degree in the church; being, as a vicar formerly was, an officiating temporary minister, instead of the proper incumbent. Though there are what are called perpetual curacies(n), where all the tithes are appropriated, and no vicarage endowed (having for

(VI.) Curates.

(d) Sect. 32.

(e) As to monitions and sequestrations in order to enforce residence, see 1 & 2 Vict. c. 106, sects. 54-57.

(f) Sects. 37-40.
(g) Sects. 42-51.

A residence beyond the boundaries of the parish is also permitted, where no fit personage house exists within the parish, ss. 33, 34. (h) Dale, Clerg. Leg. Handbook, 4th ed. p. 195.

(i) 1 & 2 Vict. c. 106, sects. 5-7.

(m) There was formerly a method by the favour of the crown of holding a previous living in commendam, but the stat. 6 & 7 Will. 4, c. 77, s. 18, enacted that no commendam should be in future held by any bishop.

(n) The tests for determining whether a place is a perpetual curacy or a chapelry are specified by Lord Hardwicke, Att.-Gen. v. Brereton, 2 Ves. 427.

Generally "where all the profits of the benefice, the tithes both great and small, are appropriated, so that both the rector and the

(k) 1 & 2 Vict. c. 106, s. 11; 13 & 14 Vict. vicar are, or may be, lay, there the curate is

c. 98, s. 7; Dale, ubi supra.

(1) Ante, p. 461.

perpetual." Cripps Law of Church and Clergy, 4th ed. 172.

some particular reasons(o) been exempted from the operation of the statute 4 Hen. 4, c. 12(p) ), but instead thereof, such perpetual curate is appointed by the appropriator. His designation under the statute 31 & 32 Vict. c. 117, is that of vicar. The appointments and stipends of such curates are now regulated by the statute 1 & 2 Vict. c. 106(g).

A stipendiary curate ought to be licensed by the ordinary, and, before being so, must make the declaration prescribed by the 28 & 29 Vict. c. 122, ss. 3, 6, and when licensed, must conform to the requirements of sect. 8 of that statute.

Thus much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and concerning whom a few cursory remarks must suffice.

[*477]

VII. Churchwardens are the guardians or keepers of the church, and legal representatives of the body of the *parish. They are

(VII.) Churchwardens.

sometimes appointed by the minister, sometimes by the parish, sometimes by both together, or in such other manner as custom directs(r). They are taken, in favour of the church, to be for some purposes a kind of corporation at the common law(s); that is, they are enabled, as churchwardens, 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; if they do so, they may be removed by the parish and then called to account by action at the common law. As to lands, or other real property, as the church, churchyard, &c., the church wardens 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 propose rates for that purpose: of which, however, the payment is no longer compulsory(t). Further, it is for the churchwardens to see that everything necessary for the performance of divine service is provided, and that the churchyard is properly maintained and fenced. Churchwardens of a parish, or reputed parish, are ex officio overseers of the poor(u). They are empowered to keep all persons orderly during the performance of divine service, and to eject from the church, without unnecessary violence, any person interrupting it(x);(121) to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of an assault or *tres[*478] pass(y). There are other petty parochial powers committed to their

charge by divers acts of parliament.

(0) 2 Burn, Eccl. L. 9th ed. 55 b. et seq. (p) Ante, p. 467.

(9) If a non-resident incumbent neglect to appoint a curate, the bishop may appoint one under s. 75 of the above act, or if the spiritual duties of any benefice seem to him to be inadequately performed (see sects. 78, 105); as to the stipends of such curates, which must in no case be less than 80%. per annum; see sects. 83-92.

(r) As to the mode of electing church or chapelwardens under the church building acts, see Cripps, 4th ed. 198-9; Prideaux, Churchwardens, 10th ed. 15.

(8) By stat. 59 Geo. 3, c. 12, the church

wardens and overseers of the poor are empowered to hold lands given for the benefit of the poor in the nature of a body corporate, and also all other buildings, lands, and hereditaments belonging to the parish. Also by 5 & 6 Wm. 4, c. 69, the guardians of the poor of every union or parish are incorporated and enabled to hold lands or hereditaments and other property for the benefit of the union or parish.

(t) Stat. 31 & 32 Vict. c. 109, s. 1.

(u) Prideaux, Churchwardens, 10th ed. 2, 3.
(x) Burton v. Henson, 10 M. & W. 165.
(y) Have v. Planter, 1 Saund. 13.

(121) See note 120, ante.

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clerks.

VIII. Parish clerks, being laymen, are regarded by the common law as persons who have freeholds in their office; and therefore, though they may be (VIII.) Parish punished, yet they cannot be deprived, by ecclesiastical censures(z). They are, however, removable for wilful neglect or misbehaviour, under the statute 7 & 8 Vict. c. 59, s. 5. The parish clerk was formerly very frequently in holy orders, and may be so at this day(a). He is generally appointed by the incumbent (b), but by custom may be chosen by the inhabitants; and if such custom appears, the court of queen's bench will grant a mandamus to the archdeacon to swear him in, for the establishment of the custom turns it into a temporal or civil right(c). A parish clerk, if in holy orders, is licensed and removable in like manner as a stipendiary curate(d).

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*CHAPTER XII.

THE CIVIL STATE.

[ *479]

THE lay part of her majesty's subjects, or such of the people as are not comprehended under the denomination of clergy, may be divided into three. distinct states, the civil, the military, and the maritime.

That part of the nation which falls under our first and most comprehensive division, the civil state, includes all orders of men, from the highest nobleman to the meanest peasant, who are not included either under our former division, of clergy, or under one of the two latter divisions, viz., the military and maritime states: it may indeed include individuals of the other three orders: since a nobleman, a knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman.

The civil state consists of the nobility and the commonalty. Of the nobility, the peerage of Great Britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of the legislature, I have before sufficiently spoken: we are here to consider them according to their several degrees, or titles of honour.

All degrees of nobility and honour are derived from the crown as their fountain(a): and the sovereign may at pleasure institute new titles.(122) Hence it is that all degrees of nobility are not of equal antiquity. Our English nobility now consist of dukes, marquises, earls, viscounts, and barons (b).

(2) 2 Roll. Abr. 234.

(a) Stat. 7 & 8 Vict. c. 59, sects. 2, 3.
(b) See stats. 6 & 7 Vict. c. 37; 19 & 20 Vict.

c. 104, s. 9.

(c) Cro. Car. 589.

(d) Stat. 7 & 8 Vict. c. 59, s. 2.

The office of sexton is held for life or otherwise, according to custom, see 2 Roll.

Abr. 234; Ile's Case, 1 Ventr. 153. A woman may hold this office, Str. 1114.

(a) 4 Inst. 363; ante, p. 324.

(b) For the origin of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr. Selden's Titles of Honour.

(122) "No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the congress, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign state." U. S. Const., art. 1, § 9.

"No state shall * *

*

grant any title of nobility." Ib., § 10. And whenevera for eigner is naturalized he must renounce all titles of nobility. See note 115, ante.

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