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 mischief which they were [391 ] 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 title 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. Upon institution also the clerk may enter on the parsonagehouse and glebe, and take the tithes ; but he cannot grant or let them, or bring an action for them, till induction. (13)

INDUCTION 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: 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 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

i Co. Litt. 344.

k Co. Litt. 300.

(13) Gibson's Codex, 858.

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 [392] 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 1. I shall only just mention the article of residence, upon the supposition of which the law doth style 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 57. to the king, and 57. to any person that will sue for the same: except chaplains to the king or others therein mentioned, during their attendance in the household of such as retain them": and also except " 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, if there be one for it hath been resolved, 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: and if there be no parsonage-house, it hath been holden that the incumbent is bound to hire one, in the same or some neighbouring parish, to answer the purposes of residence, (4)

These are very numerous : but
there are few which can be relied on

with certainty. Among these are
bishop Gibson's codex, Dr. Burn's eccle-
siastical law, and the earlier editions of
the clergyman's law, published under

the name of Dr. Watson, but compiled by Mr. Place, a barrister.

m Stat. 25 Hen. VIII. c.16. 33 Hen. VIII. c. 28.

n Stat. 28 Hen. VIII. c. 13.
6 Rep. 21.

(14) The residence of the clergy is now regulated by the 57G.3. c. 99. by which the penalty for non-residence is one-third of the clear annual value, without deducting a curate's salary, where it exceeds three months in the year; one-half where it exceeds six; two-thirds where it exceeds eight; and three-fourths where it is for the whole year; to be recovered by any one who will sue for it. The residence must be in the parsonage house if there be one; if not, it should be within the parish, unless by allowance from the bishop, or in the case of a house purchased by the governors of queen Anne's bounty, for a residence for the minister, and previously approved of by the bishop. The same class of persons for the most part are exempted from the penalties of non-residence as before, but

the

For the more effectual promotion of which important duty among the parochial clergy, a provision is made by the statute 17 Geo. III. c. 53. for raising money upon ecclesiastical benefices, to be paid off by annually decreasing instalments, and to be expended in rebuilding or repairing the houses belonging to such benefices.

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 81. per annum, or upwards, according to the present valuation in the king's books", 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 consecration; for, as was mentioned before 9, when a clerk is promoted to a bishoprick, [393] all his other preferments are void the instant that he is consecrated. But there is a method, by the favour of the crown,

P Cro. Car. 456.

9 page 383.

the age under which university-students are exempted, is changed from forty to thirty years. The power of licensing clergymen to non-residence is placed in the hands of the bishops; certain causes are enumerated as proper grounds, and when any of them is made the ground of application unsuccessfully, a party thinking himself aggrieved, may appeal to the arch...bishop. Where a bishop grants the licence for other than any one of the specified causes, he must transmit to his archbishop his reasons for so doing, for his examination and allowance, without which the licence will not be valid. In case of non-residence without licence, the bishop may proceed to enforce residence in a summary way, by monition and sequestration, which, in certain cases, if continued for two years, or incurred thrice in the space of two years amounts to an actual avoidance of the benefice. But the filing of the monition is a bar to any action at law for the penalties commenced afterwards, nor can any action be commenced till after one month's notice both to the incumbent and bishop; and the incumbent at any time before issue joined may pay into court such penalties as he thinks he has incurred; and so either stop the suit, or throw the burthen on the plaintiff of proving a larger penalty due.

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 institution and induction are to another clerk 9. (15) 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, either, first, by sentence declaratory in the ecclesiastical court, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, or conviction of other infamous crime in the king's courts; for heresy, infidelity', gross immorality, and the like: or, secondly, in pursuance of divers penal statutes, which declare the benefice void, for some non-feasance or neglect, or else some malefeasance or crime; as, for simony'; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or of the book of common-prayer u; for neglecting after institution to read the liturgy and articles in the church, or make the declarations against popery, or take the abjuration oath ; for using any other form of prayer than the liturgy of the church of England *; 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; in all which and similar cases 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 tem

porary minister, instead of the proper incumbent. Though there are what are called perpetual curacies, where all the [394] tithes are appropriated, and no vicarage endowed, (being for some particular reasons 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 2: and that if any rector or vicar nominates a curate to the ordinary to be licenced to serve the cure in his absence, the ordinary shall settle his stipend under his hand and seal, not exceeding 50l. per annum, nor less: than 207. and on failure of payment may sequester the profits of the benefice . (16)

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. CHURCHWARDENS are the guardians or keepers of the church, and representatives of the body of the parish “. 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 (17); that is,

z 1 Burn. eccl. law. 427.
a Stat. 28 Hen. VIII. c.11.

b Stat. 12 Ann. st. 2. c.12.

In Sweden they have similar officers, whom they call kiorckiowariandes. Stiernhook, 1.3. c.7.

as relates to the maintenance of
See Vol. III. p. 90. n.(3).

(16) So much of the statute of Anne curates is repealed by the 57 G.3. c. 99. (17) This is expressed cautiously. In the case of Withnell v. Gartham, 6 T.R.396. Lord Kenyon denied that they were in legal language a corporation, and pointed out many distinctions between them and a strictly corporate body. It is true, however, that they have merely as such officers a property in goods and chattels, of which individually they have never had possession;

EE 3