BOOK I. THE diftinction therefore of a parfon and vicar is this a the parfon has for the most part the whole right to all the ecclefiaftical dues in his parifh; 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, with a standing falary. Though in fome places the vicarage has been confiderably augmented by a large fhare of the great tithes; which augmentations were greatly affifted by the ftatute 29 'Car. II. c. 8. enacted in favour of poor vicars and curates, which rendered fuch temporary augmentations (when made by the appropriators) perpetual.

THE method of becoming a parfon or vicar is much the fame. To both there are four requifites neceflary: holy or ders; prefentation; inftitution; and induction. The method of conferring the holy orders of deacon and priest, according to the liturgy and canons, is foreign to the purpose of thefe commentaries; any farther than as they are neceffary requifites to make a complete parfon or vicar. By common law, a deacon, of any age, might be inftituted and inducted to a parfonage or vicarage but it was ordained by ftatute 13 Eliz. c. 12. that no perfon under twenty-three years' of age, and in deacon's orders, fhould be prefented to any benefice with cure; and if he were not ordained priest within one year after his induction, he fhould be ipfo facto deprived: and now, by statute & 14 Car. II. c. 4. no perfon is capable to be admitted to any bencfice, unless he hath been first ordained a priest; and then he is, in the language of the law, a clerk in orders. But if he obtains orders, or a licence to preach, by money or corrupt practices (which feems to be the true, though not the common, notion of fimony) the perfon giving fuch orders forfeits 40%. and the perfon receiving 10. and is incapable of any ecclefiaflical preferment for feven years afterwards.

13

ANY clerk may be presented to a parfonage or vicarage; that is, the patron, to whom the advowfon of the church

belongs, may offer his clerk to the bishop of the diocefe to be inftituted. Of advowfons, or the right of prefentation, being a fpecies of private property, we fhall find a more convenient place to treat in the fecond part of these commentaries. But when a clerk is prefented, the bishop may refuse him upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty days. Or, 2. If the clerk be unfit": which unfitnefs is of feveral kinds, Firft, with regard to his perfon; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the like. Next, with regard to his faith or morals; as for any particular heresy, or vice that is malum in fe: but if the bishop alleges only in generals, as that he is fchifmaticus inveteratus, or objects a fault that is malum prohibitum merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refufald. Or, lastly, the clerk may be unfit to difcharge the paftoral office for want of learning. In any of which cafes the bifhop may refufe the clerk. In cafe the refufal is for herefy, fchifm, inability of learning, or other matter of ecclefiaftical cognizance, there the bishop must give notice to the patron of fuch his cause of refufal, who, being usually a layman, is not supposed to have knowledge of it; elfe he cannot prefent by lapfe: but, if the cause be temporal, there he is not bound to give notice.

If an action at law be brought by the patron against the bishop for refusing his clerk, the bishop muft aflign the cause. If the cause be of a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king's courts must determine it's validity, or, whether it be fufficient caufe of refufal: but if the fact be denied, it must be determined by a jury. If the caufe be of a fpiritual nature, (as, heresy, particularly alleged) the fact if denied fhall alfo be deter mined by a jury; and if the fact be admitted or found, the court upon confultation and advice of learned divines fhall decide it's fufficiency. If the caufe be want of learning, the bishop need not specify in what points the clerk is deficient,

a 2 Roll. Abr. 355.

Glanv. 7. 13. c. 20.

cz Roll. Abr. 355. 2 Inft. 632. Stat. 3 Ric. II. c. 3. 7 Ric. II. c. 12.

d

5 Rep. 58.

e 2 Inft. 632.

f 2 Inst. 632.

but

but only allege that he is deficient: for the ftatute 9 Edw. II. e9 ft. 1. c. 13. is exprefs, that the examination of the fitness of a perfon presented to a benefice belongs to the ecclefiaftical judge. But because it would be nugatory in this cafe to demand the reafon of refufal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unfit; therefore, if the bishop returns the clerk to be minus fufficiens in literatura, the court shall write to the metropolitan, to re-examine him, and certify his qualifications; which certificate of the archbishop is final ".

If the bishop hath no objections, but admits the patron's prefentation, the clerk fo admitted is next to be instituted by him; which is a kind of inveftiture of the spiritual part of the benefice: for by inftitution the care of the fouls of the parish is committed to the charge of the clerk. When a vicar is inftituted, he (befides the ufual forms) takes, if required by the bishop, an oath of perpetual refidence; for the maxim of law is, that vicarius non habet vicarium: and, as the non-refidence of the appropriators was the caufe of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their conftitution, and by abfence to create the very mischief which they were appointed to remedy: efpecially as, if any profits are to arife from putting in a curate and living at a diftance from the parish, the appropriator, who is the real parfon, has undoubtedly the elder title to them. When the ordinary is alfo the patron, and confers the living, the presentation and institution are one and the fame act, and are called a collation to a benefice. By inftitution or collation the church is full, fo that there can be no fresh presentation till another vacancy, at leaft in the cafe of a common patron; but the church is not full against the king, till induction: nay, even if a clerk is inftituted upon the king's prefentation, the crown may revoke it before induction, and present another clerk, Upon inftitution alfo the clerk may enter on the parfonage houfe 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 to the arch-deacon, who usually iffues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal poffeffion 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 fufficient certainty of their new minister, to whom their tithes are to be paid. This therefore is the inveftiture of the temporal part of the benefice, as institution. is of the fpiritual. And when clerk is thus prefented, inftituted, and inducted into a rectory, he is then, and not before, in full and complete poffeffion, and is called in law perfona imperfonata, or parfon imparfonce *.

THE rights of a parfon or vicar, in his tithes and ecclefiaftical dues, fall more properly under the second book of these commentaries: and as to his duties, they are principally of ecclefiaftical cognizance; thofe only excepted which are laid upon him by ftatute. And those are indeed fo numerous, that it is impracticable to recite them here with any tolerable conciseness or accuracy. Some of them we may remark, as they arife in the progress of our inquiries, but for the rest I must refer myfelf to fuch authors as have compiled treatises exprefsly upon this fubject. I fhall only juft mention the article of refidence, upon the fuppofition of which the law doth file every parochial minifter an incumbent. By ftatute 21 Hen. VIII. c. 13. perfons wilfully abfenting themfelves from their benefices, for one month together, or two months in the year, incur a penalty of 5 1. to the king, and 5 l. to any perfon that will fue for the fame: except chaplains to the king, or others therein mentioned ", during their attendance in the houshold of fuch as retain them: and alfo except all heads of houses, magiftrates, and profeffors in the universities, and all students under forty years of age refiding there, bona fide,

for study. Legal refidence is not only in the parifh, but also in the parfonage houfe, if there be one: for it hath been refolved, that the ftatute intended refidence, not only for ferving the cure, and for hospitality; but also for maintaining the houfe, that the fucceffor alfo may keep hofpitality there: and, if there be no parfonage house, it hath been holden that the incumbent is bound to hire one, in the fame or fome neighbouring parish (p), to answer the purposes of refidence. For the more effectual promotion of which important duty among the parochial clergy, a provifion is made by the ftatute 17 Geo. III. c. 53. for raifung money upon ecclefiaftical benefices, to be paid off by annually decreasing installments, and to be expended in rebuilding or repairing the houses belong◄ ing to fuch benefices.

WE have feen that there is but one way, whereby one may become a parfon or vicar: there are many ways, by which one

any

may ceafe to be fo. 1. By death. 2. By ceffion, in taking another benefice. For by ftatute 21 Hen. VIII. c. 13. if one having a benefice of 81. per annum, or upwards (according to the prefent valuation in the king's books P,) accepts any other, the firft fhall be adjudged void, unlefs he obtains a difpenfation; which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and fons 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 difpenfation, is called feflion. 3. By confecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other

() [In the cafe of Wilkinfon qui tam againit Allot, Eafter term, 16 Geo. III. B. R. reported in Cowper's Reports, 429, it was adjudged, that if there be no parfonage-house, that is no excule for the incumbent's refiding out of the parish;—that the ftatute of non-refidence is a beneficial law, and, though a penal one, has received a strict conftruction against fuch as have offended; -and that, though there be no parionage-houfe, yet the provifion of the ftatute muit be performed cy pres; and therefore he mull refide fomewhere in the parish.]

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