Plowd. 496, 500. Seld. Review of Tith. c. 9. Spelm. Apo logy, 35. Spelm. of Tith. c. 29. Kid. c. 11. 1. tween a parson Method of becoming parson or vicar. nothing else but an allowance for the patrons to retain the tithes and glebe in their own hands without presenting any clerk, they undertaking to provide for the service of the church. This appropriation might be severed, and the church become disappropriate if the patron presented a clerk who was instituted and inducted, or if a corporation having the appropriation should be dissolved, by which the perpetuity of persons necessary to support the appropriation would be destroyed. At the dissolution of the monasteries by 27 Hen. 8, c. 27, and 31 Hen. 8, c. 13, the appropriations of the parsonages which they possessed (amounting to more than one-third of all the parishes in England) would have been, by the common law, disappropriated, had not a clause in those statutes given them to the king. Hence, and from the alien priories which in former reigns were dissolved and given to the crown have sprung all the existing lay appropriations, they having been afterwards granted out by the crown. The person deputed by these appropriating corporations to perform the duties of the church was no more than a curate or deputy, or vice regent of the appropriator, and, therefore, called vicarius or vicar. The distinction between a parson and vicar is this, that the parson has usually 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 (h). to any The method of becoming a parson or vicar is much the same. To both these holy orders, presentation, institution and induction are necessary requisites. By 13 Eliz. c. 12, no person under twenty-three, and in deacon's orders, can be presented benefice with cure; and by 13 & 14 Car. 2, c. 4, no person can be admitted to any benefice unless he has been first ordained a priest (i), when he becomes, in legal language, a clerk in orders. But if he obtains orders, or a license to preach, by money or corrupt practices, the person giving such orders forfeits 40%., and the person receiving, 10%, and is inca (h) All the tithes or dues of the church of common right belong to the rector, or to the appropriator or impropriator, who have the same rights as the rector; and the vicar is entitled only to that portion which is expressed in his endowment, or what his predecessors have immemorially enjoyed by prescription, which is equivalent to a grant or endowment.-See Mr. Christian's note to Blackstone, v. 1, p. 387. (i) By 44 Geo. 3, c. 43, no person can be admitted a deacon in England or Ireland before twenty-three complete, and no person can be admitted a priest before twentyfour complete. pable of any ecclesiastical preferment for seven years after- 31 Eliz. c. 6. wards. stitute. Bishop may 355. c. 20. 2 Roll. Abr. 356. 2 Inst. 632. 3 Rich.2, c.3. 7 Rich. 2. c. 2. The bishop may refuse to institute a clerk to a parsonage or vicarage if the patron is excommunicated and remains in contempt forty days, or if the clerk be unfit, with regard to his person, or if he be illegitimate, an outlaw, an excommunicate, an alien, or under age, or with regard to his faith or morals, or for any particular heresy or vice that is malum in se, or if he be unfit for want of learning. If an action at law be brought by the patron against the bishop for refusing his clerk, and the cause be of a temporal nature and the fact admitted, the judges of the king's courts must determine its validity; but if the fact be denied it must be determined by a jury. If the cause be of a spiritual nature, the fact, if denied, must be determined by a jury, and if the fact be admitted, the court, upon advice of learned divines, decides its sufficiency. the cause be want of learning, by 9 Edw. 2, st. 1, c. 13, the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge, and the metropolitan, after 5 Rep. 58. the refusal of the ordinary, re-examines him and certifies If 2 Inst. 632. his qualifications, which certificate is final. When a vicar is 2 Inst. 632. A instituted, he, besides the usual forms, takes, if required by the Institution. bishop, an oath of perpetual residence(j). When the ordinary Collation. 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. Induction is performed by a mandate from the bishop to Induction. 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, or tolling the bell, and is a form required by law, to give all the parishioners notice of their new minister to whom their tithes are to be paid. By 21 Hen. 8, c. 13, persons wilfully absenting themselves from their benefices are liable to certain penalties (k). () No such oath is to be required of or taken by any vicar, 1 & 2 Vict. c. 106, s. 61. (k) By 1 & 2 Vict. c. 106, the act 21 Hen. 8, c. 13, is repealed, and it is enacted, that not more than two preferments shall be held together, nor two benefices, unless within ten miles of each other; nor if the population of one such benefice is more than 3000, or the joint yearly value shall exceed 1000l. If the yearly value of one of the said benefices be less than 150l., and the population exceed two thousand persons, the two may be held jointly after statement of reasons to the bishop. A license or dispensation to hold two together must be obtained from the archbishop of Canterbury. Glebe lands may, in certain cases, be excepted out of any united benefice to augment the provision for an adjoining poor benefice by an exchange in such manner that the aug Avoidance of benefice. There are many ways by which a parson or vicar may cease to be so. By death; by cession in taking another benefice unless he obtains a dispensation; by consecration to a bishopCro. Jac. 198. rick; by resignation to the ordinary; by deprivation; by Dyer. 108. sentence of the ecclesiastical court for fit causes; or in pursuance of certain penal statutes which declare the benefice void for nonfeazance or neglect, or for malfeazance or crime. 31 Eliz. c. 6. 12 Ann. c. 12. Commendams. Hob. 144. There is a method of holding livings in commendam. Commenda, or ecclesia commendata, is a living commended by the crown to the care of a clerk to hold till a pastor is provided. This may be for one, two, or three years, or perpetual, being a dispensation to avoid the vacancy of the living, and is called a commenda retinere. There is too 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 thereto, and this is the same to him as institution and induction are to another clerk (/). Provisions are made for mentation shall be within the limits of such poor benefice annexing isolated places to contiguous parishes, or constituting them separate benefices. If the incumbent's house of residence be not kept in repair, he is liable to the penalties for non-residence. Residence may be enforced by monition or sequestration of the living, reserving the right of appeal against sequestration to the archbishop. A benefice continuing sequestered a year is void. On the avoidance of any benefice, the bishop may raise money to build house of residence, if necessary, by mortgage of glebe for thirty-five years, in which case the incumbent and his successor must pay yearly, besides the interest, one-thirtieth part of the principal, and insure the buildings against fire. Where new buildings are necessary for the residence of the incumbent, the bishop may purchase any conveniently situated house and land, to be conveyed to the patron in trust for the incumbent. The governors of queen Anne's bounty and the colleges in Oxford and Cambridge, and other corporate bodies, are empowered to lend money to promote the objects of the act. Acceptance of preferment contrary to this act vacates the former preferment, but the preferments and rights of possession existing (August 1838) are saved. Certain penalties are imposed for non-residence without a license or exemption, and not being resident on another benefice; but the head rulers of the colleges and halls within the universities of Oxford and Cambridge, the warden of the university of Durham, the head masters of Eton, Winchester, and Westminster schools, and the then principal or professor of the East India College, are exempted from the penalties of the act; and spiritual persons holding certain ecclesiastical preferments mentioned in section 38, are privileged, whilst actually performing the duties of such preferments. Performance of cathedral duties may be accounted residence under certain restrictions, and rights to exemption and licenses existing at the passing of the act are preserved. See also the acts 1 & 2 Vict. c. 23, and 1 & 2 Vict. c. 29, to amend the law for providing fit houses for the beneficed clergy, and the recent act, 2 & 3 Vict. c. 30, for apportioning the spiritual services of parishes in which two or more spiritual persons have care of souls generally throughout the parish. (7) See ante, notes (c) and (ƒ), pages 68 and 70. Commendams were usually only granted to bishops; and the act 6 & 7 Wm. 4, c. 77, provides that no ecclesiastical office or benefice is to be held in commendam by any bishop, unless he so held the same in August, 1836. Law. 427. A curate is the lowest degree in the church, being in the Curates. same state that a vicar was formerly, an officiating, temporary minister instead of the proper incumbent. Though there are what are called perpetual curacies, where all the tithes are appropriated and no vicarage endowed; but instead of such 1 Burn's Eccl. endowment a perpetual curate is appointed by the appropriator. If any rector or vicar nominates a curate to the ordinany to be licensed to serve the cure in his absence, the ordinary shall settle his stipend, and on failure of payment may sequester the profits of the benefice (m). There are also certain inferior ecclesiastical officers of whom the common law takes notice; as churchwardens who 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, 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 for so doing, and then called to account by their successors. Their office is to repair the church, and make rates and levies for that purpose, but these are recoverable only in the ecclesiastical court (n). They are also joined with the overseers in the care and maintenance of the poor. (0) Church- (m) By 1 & 2 Vict. c. 106, in cases where incumbents shall be absent from their livings nine months in the year, and shall neglect to appoint curates, the bishop may appoint; and where the incumbent does not reside, the curate must reside on the benefice, or within three miles of the church. If the duty be inadequately performed, the bishop may appoint a curate, with stipend, but the incumbent may appeal against such appointment. In large benefices the bishop may require the incumbent to appoint a curate, with stipend, although he shall be resident and engaged in attending to the duties. Bishops may enforce two services on Sundays in certain cases. Bishops may fix the stipends of curates of non-resident incumbents according to a specified scale, proportioned to the value and population of the benefice. In cases where the population is large the bishop may require the incumbent to nominate two curates. All agreements for stipends to curates contrary to this act are void. If the incumbent shall be nonresident for four months in the year, the bishop may assign the parsonage-house to the curate, without rent, and any portion of the glebe not exceeding four acres, at a rent to be fixed by the archdeacon and one neighbouring incumbent, and approved by the bishop; but the curate must pay the taxes, and in case of the vacancy of the benefice quit on having six weeks' notice. of (a) Payment of a church rate may be enforced by two justices, 55 Geo. 3, c. 127, s. 7. (6) By 7 Wm. 4 and 1 Vict. c. 45, the act of 58 Geo. 3, c. 69, requiring public notice every vestry and its object to be given during or immediately after divine service, and Parish clerks. 2 Roll. Abr. 234. Parish clerks and sextons are also regarded by the common law as persons who have freeholds in their offices, and though they may be punished they cannot be deprived by ecclesiastical censures. The parish clerk was formerly very generally in holy orders, and some are now so. 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 Cro. Car. 589. will grant a mandamus to the archdeacon to swear him in (p). The civil state. Titles of nobility. 4 Inst. 363. Duke. Seld. tit. hon. 2. 1. 12. Cambd. Britan tit. "Ordines." Spelman, Gloss. 191. CHAPTER XIL OF THE CIVIL STATE. THE lay part of the people of England may be divided into three states, the civil, the military, and the maritime. The civil state includes all orders of men not comprised under the division of clergy, or under the military or maritime states. All degrees of nobility and honor are derived from the king, and he may institute what new titles he pleases; hence all degrees of nobility are not of equal antiquity. Those now in use are dukes, marquises, earls, viscounts, and barons. A duke is superior to all others in rank after the royal family. Among the Saxons, the Latin name of dukes, duces, is frequent, and signified as among the Romans, the commanders of their armies; but after the Norman conquest, the kings themselves continuing for many generations dukes of Normandy, they would not honour any subjects with the title of duke till the time of Edw. 3. In the reign of Elizabeth the order became extinct, but was revived by her successor in the duke of Buckingham. A marquess, marchio is the next degree of nobility. This office formerly was to guard the frontiers and limits of the kingdom, which were called the marches, from the the several acts requiring a similar notice to be given of the assessing and collecting highway and poor-rates and land-tax and other matters, are repealed, and the custom of giving notice in the same manner of courts leet, courts baron, and customary courts is abrogated; and it is provided that all such notices shall be reduced to writing or print, and placed on the doors of the parish church or chapel of any parish or place previously to the commencement of divine service on the several days on which such notices were heretofore made or given. (p) The office of parish clerk is a temporal office; and though appointed by the minister, if removed by him without sufficient cause, a mandamus will lie to restore him; Rex v. Warren, Cowp. 370. |