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 (k) (35). The rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these Commentaries (36): 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 [ *392 ] must refer myself to such authors as have compiled treatises expressly upon this subject (1). I shall only just mention the article of residence (37), upon the supposition of which the Residence. law doth style every parochial minister an incumbent. By stat. 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 (m), during their attendance in the household of such as retain them (38) and also except (n) all heads of houses, magistrates (39), and pro How one may cease to be parson or vicar. 1. By death. 2. By cession. fessors in the universities, and all students under forty years 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) (p), accepts any other, the first shall be adjudged void, unless he obtains a dispensation (40), which no one is entitled to have, but the chaplains (41) of the king and others therein mentioned, the (0) 6 Rep. 21. (40) But both the livings must have cure of souls; and the statute expressly excepts deaneries, archdeaconries, chancellorships, treasurerships, chanterships, prebends, and sinecure rectories; a dispensation in this case can only be granted to hold one benefice more, except to clerks who are of the privycouncil, who may hold three by dispensation. By the canon law, no person can hold a second incompatible benefice without a dispensation; and in that case, if the first is under 8l. per annum, it is so far void that the patron may present another clerk, or the bishop may deprive; but, till deprivation, no advantage can be taken by lapse. So, by leave of the bishop (p) Cro. Car. 456. and patron, a clergyman may hold any number of benefices, if they are all under 81. per annum, except the last, and then, by a dispensation under the statute, he may hold one more.-CH. [A bill for mitigating, in some degree, the evils of non-residence and pluralities has been introduced into the house of lords during the present session, (1836), by the Archbishop of Canterbury. ED.] (41) The number of the chaplains of the king and royal family, who may have dispensations, is unlimited. An archbishop may have eight, a duke and bishop six, a marquis and earl five, a viscount four. The chancellor, a ba tion. brethren and sons of lords and knights (42), and doctors and bachelors of divinity and law (43), admitted by the universities of this realm. And a vacancy thus made, for want of a dispensation, is called cession (44). 3. By consecration; for, as 3. By consecrawas mentioned before (p), when a clerk is promoted to a bishoprick, all his other *preferments are void the instant [ *393] that he is consecrated. But there is a method, by the favour of the crown, 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 (p) Page 383. ron, and knight of the garter, three; a duchess, marchioness, countess, and baroness, being widows, two. The king's treasurer, comptroller, secretary, dean of the chapel, almoner, and the master of the rolls, two. The chief justice of king's bench, and warden of cinque ports, one. These chaplains only can obtain a dispensation under the statute. If one person has two or more of these titles or characters united in himself, he can only retain the number of chaplains limited to his highest degree; and if a nobleman retain his full number of chaplains, no one of them can be discharged, so that another shall be appointed in his room during his life. (4 Co. 90). The king may present his own chaplains, i. e. waiting chaplains in ordinary, to any number of livings in the gift of the crown, and even in addition to what they hold upon the presentation of a subject, without dispensation; but a king's chaplain being beneficed by the king, cannot afterwards take a living from a subject, but by a dispensation according to the statute. (21 Hen. VIII. c. 13, s. 29; 1 Salk. 161).-CH. (42) This privilege is not enjoyed by the brother and son of a baronet, for the rank of baronet did not then exist.-CH. (43) The words of the statute are, "all doctors and bachelors of divinity, doctors of laws, and bachelors of the law canon." Before the reformation, degrees were as frequent in the canon law as in the civil law. Many were graduates in utroque jure, or utriusque juris. J. U. D. or juris utriusque doctor, is still common in foreign universities. But Hen. VIII. in the 27th year of his reign, when he had renounced the authority of the pope, issued a mandate to the university of Cambridge, ut nulla legatur palam et publice lectio in jure canonico sive pontificio, nec aliquis cujuscunque conditionis homo gradum aliquem in studio illius juris pontificii suscipiat, aut in eodem in posterum promoveatur quovis modo. (Stat. Acad. Cant. p. 137). It is probable, that, at the same time, Oxford received a similar prohibition, and that degrees in canon law have ever since been discontinued in England.-CH. (44) In the case of a cession under the statute, the church is so far void upon institution to the second living, that the patron may take notice of it, and present if he pleases; but there is great reason to think, that lapse will not incur from the time of institution against the patron, unless notice be given him; but lapse will incur from the time of induction without notice. (2 Wils. 200; 3 Burr. 1504).-CH. 4. By resignation. 5. By deprivation: three years; or perpetual: being a kind of dispensation to avoid the vacancy of the living, and is called a commenda retinere (45). 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 (q). 4. By resignation (46). But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made (r) (47). 5. By deprivation; either, 1st, by sentence declaratory in the ecclesiastical court, for fit and (q) Hob. 144. (45) These commendams are now seldom or never granted to any but bishops; and, in that case, the bishop is made commendatory of the benefice, while he continues bishop of such a diocese, as the object is to make it an addition to a small bishoprick; and it would be unreasonable to grant it to a bishop for his life, who might be translated afterwards to one of the richest (See an account of the proceeding in the great case of commendams, Hob. 140, and Collier's Ec. Hist. Vol. 2, p. 710).-CH. sees. [It is probable that during the present session of parliament, (1836), all commendams will be done away with, and the revenues of the different bishopricks more nearly equalized.-ED.] (46) See Vol. 2, p. 280, and the note thereto. (47) It seems to be clear, that the bishop may refuse to accept a resignation, upon a sufficient cause for his refusal; but whether he can, merely at his will and pleasure, refuse to accept a resignation without any cause, and who shall finally judge of the sufficiency of the cause, and by what mode he may be compelled to accept, are questions undecided. In the case of the bishop of London and Fytche, the judges in general declined to answer whether a bishop was compellable to accept a resignation: one thought he was compellable by mandamus, if he did not shew sufficient cause; and another observed, if he could not be compelled, (r) Cro. Jac. 198. he might prevent any incumbent from accepting an Irish bishoprick, as no one can accept a bishoprick in Ireland till he has resigned all his benefices in England. But Lord Thurlow seemed to be of opinion that he could not be compelled, particularly by mandamus, from which there is no appeal, or writ of error. (See 3 Burn, 304, and the opinions of the judges in Cunningham's Law of Simony, though ill reported).— CH. [See the reference given in the last note. With regard to Lord Thurlow's opinion, as cited by Mr. Christian, that a bishop could not be compelled to accept a resignation, particularly by mandamus, from which there is no appeal or writ of error, a late annotator remarks-"this is stated too broadly; by proceeding in mandamus, the party is not in all cases necessarily excluded from bringing error. (See 3 P. Wms. 351; and 3 Comm. 265). Error would lie on the judgment given by the court on the validity or invalidity of the return." Lord Thurlow, however, did not state the rule too broadly with reference to cases similar to that under his consideration; and to none other was it intended to be applied. It appears from the case referred to, in Cox's Peere Williams, as well as from the same case in 1 Str. 543, that the court of King's Bench, in this country, quashed the writ of error brought to set aside the peremptory mandamus issued by the court of King's Bench in Ire for sufficient causes, such as what; sufficient causes allowed by the common law; such as at- 1. By sentence tainder of treason or felony (s), or conviction of other infamous crime in the king's courts; for heresy, infidelity (t), gross immorality, and the like: or, 2ndly, in pursuance of 2. In pursuance of divers penal statutes, which declare the benefice void, for penal statutes. some nonfeasance or neglect, or else some malefeasance or crime as, for simony (u); for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or of the book of common-prayer (v); for neglecting after institution to read the liturgy and articles in the church, or make the declarations against popery, or take the abjuration oath (w); for using any other form of prayer than the liturgy of the church of England (x); or for absenting him(s) Dyer, 108; Jenk. 210. (t) Fitz. Abr. tit. "Trial," 54. (u) Stat. 31 Eliz. c. 6; 12 Ann. c. 12. (v) Stat. 1 Eliz. c. 1 & 2; 13 Eliz. land; and that, upon an appeal to the house of lords, that house, in accordance with the unanimous opinion of all the judges, affirmed the judgment, quashing the writ of error. (See 2 Br. P. C. 558; 3 Br. P. C. 180, fol. edit). But, this distinction must be taken: although no writ of error lies from a peremptory mandamus; still, if the party against whom a writ of mandamus issues makes a return to the first writ, or to the alias or pluries, (not waiting till the peremptory writ issues), and the party who sued out the writ feels it necessary to plead to, or traverse, the return; then, if issue be joined, the party who sued out the mandamus may proceed to try such issue-as an issue joined upon an action on the case might have been tried. And if a motion in arrest of judgment in this quasi action is made, before a peremptory mandamus issues, a writ of error may be brought not upon the mandamus, but upon the judgment in the quasi action. (See post, Vol. 3, p. 265). [In order to give the party who thinks himself aggrieved time to take this further remedial proceeding, it is said (in a note appended to the case of c. 12. (w) Stat. 13 Eliz. c. 12; 14 Car. II. c. 4; 1 Geo. I. c. 6. (*) Stat. 1 Eliz. c. 2. Buckle v. Palmer, 2 Salk. 430) to be a rule not to issue a peremptory mandamus in such cases, till four days are past after the return of the postea. And if the motion in arrest of judgment succeeds, the peremptory mandamus, of course, will not be issued. But, if it has once issued, error upon such mandamus will not lie. And both principle and authority point this out as, in most cases, the least objectionable rule; for even a peremptory mandamus only gives possession to the party who has the apparent right, but by no means conclusively determines that right: if the title of the party, so put into possession, be really defective, that question may be put into course of trial by other proceedings, though not by writ of error. (See The King v. The Mayor of York, 5 T. R. 74, 75). [The proceedings on writs of mandamus were rendered more speedy and effectual with respect to rights of offices and franchises in corporations, by the statute of 9 Anne, c. 21; and the enactments of that statute are extended and made applicable to all other writs of mandamus, by the stat. of 1 Gul. IV. c. 21, s. 3.—ED.] |