2. The methods of becoming a rector and becoming a vicar are much the same. To both there are, in general, four requisities necessary, namely,-holy orders, presentation, institution, and induction. By the 13 & 14 Car. II. (1662) c. 4, s. 14, no person is capable of being admitted to any benefice, unless he shall have been first ordained a priest; and, by s. 2 (1) (b) of the Benefices Act, 1898, the bishop may refuse to institute if, in the case of the priest presented to him, not more than three years have elapsed since he was ordained deacon. [Any person thus qualified may be presented to a rectory or vicarage, that is, the patron to whom the advowson of the church belongs, may offer his nominee to the bishop of the diocese to be instituted. But, when a clerk is presented, the bishop may, upon many accounts, refuse to institute him. As (1) if the patron is excommunicated, and remains in contempt forty days (a). Or (2) if the clerk be unfit; which unfitness may be of several kinds. First, with regard to his person, as if he be an outlaw, an excommunicate, or an evil liver (), or pecuniarily embarrassed or under age, or the like; but bastardy is no longer a ground of unfitness. Secondly, with regard to his faith or morals, as if he be charged with any particular heresy, or vice that is malum in se but if the bishop objects only for a fault that is malum prohibitum,—as haunting taverns, playing at unlawful games, or the like, -it is not good cause of refusal (c). Lastly, the clerk may be unfit to discharge the pastoral office for want of learning (d), or (in Wales) for want of knowledge of of the Act only), benefices are distinguished from cathedral preferments; benefices denoting all parochial or district churches, and endowed chapels and chapelries, and cathedral preferments denoting all deaneries, archdeaconries, and canonries, and (generally) all dignities and offices in any cathedral or collegiate (b) Benefices Act, 1898, s. 2. (c) Specot's Case (1590), 5 Rep. 58; Heywood v. Bishop of Manchester (1884), 12 Q. B. D. 404. (d) Benefices Act, 1898, s. 2. [Welsh (e). In any of these cases, the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of learning, or of language, or other matter of ecclesiastical cognizance, the bishop must give notice to the patron of such his cause of refusal (f), at least if the patron be a layman, for in that case he is presumably unaware of the disability; but if the objection be a temporal one, the bishop is not bound to give such notice (g). Under the Benefices Act, 1898 (h), s. 3, notice must also be given to the presentee himself; and there is an appeal to the court which is for this purpose constituted by the Act, namely, to the archbishop and a judge of the Supreme Court. If the bishop hath no objection, but admits the patron's presentee, the clerk so admitted is next to be instituted by the bishop. Institution invests the clerk with the care of the souls of the parish committed to his charge; but when the bishop is also the patron, and confers the living, the presentation and institution are one and the same act, and are called a collation to the benefice.] By s. 2 (2) of the Benefices Act, 1898, the bishop cannot collate, institute, or admit any person to a benefice, until one month after a notice that he intends to do so has been served on the churchwardens, and has been published by them. And before institution or (as the case may be) collation, the clerk must renew the "declaration of assent" which he made previously to his ordination, and must also make and subscribe the declaration against simony, provided in the Benefices Act, 1898. He must also take the oath of allegiance to the King (as framed by the Promissory Oaths Act, 1868), before the archbishop or bishop, or (e) Abergavenny (Marquis) v. Llandaff (Bishop) (1888), 20 Q. B. D. 460. (f) Bedinfield v. Archbishop of Canterbury (1570), Dyer, 292, (b); Hele v. Bishop of Exeter (1692), 2 Salk. 539; Albany v. Bishop of St. Asaph (1585), Cro. Eliz. 119. (g) 2 Inst. 632; 2 Burn, Eccl. Law, 159. (h) 61 & 62 Vict. c. 48. take the oath of [By institution or their commissary; and he must also canonical obedience to his bishop (i). collation, the church is full, at least in the case of a common patron; but the church is not full against the Crown till induction, so much so, that even if a clerk has been instituted upon the Crown's presentation, the Crown may before induction revoke it, and present another clerk (k). Upon institution, the clerk may enter on the parsonage house and glebe, and take the tithes ; but he may not grant or let them, or bring an action for them, till induction. Induction to the temporalities is performed by a mandate from the bishop to the archdeacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like, the original intent having been to give all the parishioners due notice and sufficient certainty of their new minister. 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 living, he is then, and not before, in full and complete possession (1).] The title, however, of any person instituted, collated, or licensed, to any benefice with cure of souls will be afterwards divested, unless on the first Lord's day on which he officiates in the church of the benefice, or such other Lord's day as the ordinary shall appoint and allow, he shall publicly read therein, in the presence of the congregation, the Thirty-nine Articles of religion, and immediately afterwards repeat the "declaration of assent" prescribed by the Clerical Subscription Act, 1865, which he made previously to his ordination (m). This formality is called "reading in." In addition to the methods of acquisition which have (i) Clerical Subscription Act, 1865, s. 5. (k) Co. Litt. 344. (2) Co. Litt. 300. (m) Sect. 7. been mentioned, there were formerly benefices which a clerk might obtain by mere donation, that is, by deed of gift alone, without presentation, institution, or induction; and they were thence called donative benefices. [These last-mentioned benefices were created whenever the king, or any subject by his licence, founded a church or chapel, and ordained that it should be merely in the gift or disposal of the patron; be subject to his visitation only, and not to that of the ordinary; and become vested absolutely in the clerk by the patron's deed of donation, without presentation, institution, or induction (n). This is said to have been antiently the only way of conferring ecclesiastical benefices in England (o). But the truth seems to be, that where the benefice was to be conferred on a mere layman, he was first presented to the bishop, in order to receive ordination, who was at liberty to examine and refuse him; but that where the clerk was already in orders, the living was usually vested in him by the simple donation of the patron. But if the patron of a donative once waived his privilege, the advowson became for ever presentative, and could never be donative any more (p); and now, by the Benefices Act, 1898 (g), s. 12, all donatives are made presentative. 3. The rights of the clergy in their tithes and ecclesiastical dues will be considered hereafter as part of the endowments and provisions of the Church (r); and as regards the duties of the clergy, these are principally of ecclesiastical cognizance, except where otherwise appointed by statute (s). We shall here refer, therefore, (n) Co. Litt. 344. (0) Seld. Tith. ch. 12, s. 2; Decretal. 1. 3, t. 7, ch. 3. (p) Co. Litt. ubi sup. ; Farchild v. Gayre (1603), Cro. Jac. 63; Wats. C. L. 170; Repington v. Governors of Tamworth School (1763), 2 Wils. 150; Rennell v. Bishop of Lincoln (1832), 8 Bing. 490: The Queen v. Foley (1846), 2 C. B. 664. (g) 61 & 62 Vict. c. 48. (r) Vide post, bk. IV. pt. II. ch. III. (s) Among the treatises on the law of the Church which may be [only to the article of residence, upon the supposition of which the law doth style every parochial minister an incumbent.] The present enactments on the subject of residence will be chiefly found in the Pluralities Acts, 1838, 1850, and 1887, and in the Benefices Act, 1898 (t), ss. 8, 9. The first of these Acts provides, that every spiritual person holding a benefice shall reside thereon, and in the house of residence (if any) belonging thereto; and that if he absents himself for a period exceeding three months, (either accounted together or at several times,) in any one year, he shall forfeit, unless resident at some other benefice to him belonging, a proportionate part of the annual value of the benefice at which he so fails to reside (u). But this rule is subject to various exceptions and modifications, of which the principal are as follows:-1st, The heads of all colleges and halls in the universities of Oxford or Cambridge, the warden of the university of Durham, and the head masters of Eton, Winchester, and Westminster school, are exempt from its requirements (a); 2nd, deans and archdeacons, and a variety of public professors, readers, preachers, and chaplains specified in the Acts, as likewise the provost of Eton, the warden of Winchester, the master of the Charterhouse, the principal of St. David's, and of King's College, London, and also (provided they are not absent from their benefices more than five months in the year) the fellows of Eton and Winchester, and all canons, minor canons, priest vicars, and vicars choral, are severally entitled to count the time passed at their official residences or in the performance of their duties, as if it had been passed in residence upon their benefices (y); 3rdly, if relied upon with confidence, are Bishop Gibson's Coder, Dr. Burn's Ecclesiastical Law, Dr. Phillimore's Ecclesiastical Law, and the earlier editions of the Clergyman's Law, published under the name of Dr. Watson, but compiled (y) Sects. 38, 39. |
