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The distinction therefore of a parson and vicar is this : the parson has for the most part the whole right to all the ecclesiastical dues in his parith ; but a vicar has gènerally an appropriator over him, entitled to the beit part of the profits, to whom he is in effect perpetual curate, with a standing salary. Though in some places the vicara re has been confiderably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute 29 Car. II, c. 8. enacted in favour of poor vicars and curates, which rendered such temporary augmentations (when made by the appropriators) perpetual.
The method of becoming a parson or vicar is much the same. To both there are four requisites neceflary: holy orders; presentation; institution; 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 these com, mentaries; any farther than as they are necessary requisites to make a complete parson or vicar. By common law, a deacon, of any age, might be institụted and inducted to a parsonage or vicarage: but it was ordained by statute 13 Eliz. c. 12. that no person under twenty-three years'of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be ipo facto deprived : and now, by statute 13 & 14 Car. II. c. 4. no person 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 seems to be the true, though not the common, notion of simony) the person giving such orders forfeits Y 401. and the person receiving 101. and is incapable of any ccclesiastical preferment for seven years afterwards.
Any clerk may be presented ? to a parsonage or vicarage; that is, the patron, to whom the advowson of the church
belongs, may offer his clerk to the bishop of the diocese to be instituted. Of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these commentaries. But when a clerk is presented, the bishop may refusehim upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty days a. Or, 2. If the clerk be unfit": which unfitness is of several kinds. First, with regard to his person; 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 se: 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 refusald. Or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. In any of which cases the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron of such his cause of refusal, who being usually a layman, is not supposed to have knowledge of it; else he cannot present by lapse: 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 must 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 muit determine it's validity, or, whether it be sufficient cause of refusal: but if the fact be denied, it must be determined by a jury. If the cause be of a spiritual nature, (as, herely, particularly alleged) the fact if denied fhall also be determined by a jury; and if the fact be admitted or found, the court upon consultation and advice of learned divines shall decide it's sufficiency'. If the cause be want of learning, the bishop need not specify in what points the clerk is deficient,
: 2 Roll. Abr. 355.
Glanv. l. 13. c, 20. c 2 Roll. Abr. 355. 2 Inft. 632. Stat. 3 Ric. II. c. 3. 7 Ric. II. c. 12.
d 5 Rep. 58.
but only allege that he is deficient &: for the statute 9 Edw. II, ft. 1. c. 13. is express, that the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. But because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk unft; 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 h.
If the bishop hath no objections, butadmits the patron's prefentation, theclerk so admitted is next to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by institution the care of the souls of the parilh is committed to the charge of the clerk. When a vicar is institute ed, he (besides the usual forms) takes, if required by the bishop, an oath of perpetual residence; for the maxim of law is, that vicarius non habet vicarium: and, 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 appointed to remedy: efpecially 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 parfon, 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 i. Upon institution also the clerk may enter on the parsonage house and glcbe, and take the tithes; but he cannot grant or let them, or bring an action for them, till induction.
8 5 Rep. 58. 3 Lev. 313. 12 Int. 632.
i Co. Litt. 344.
INDUCTION is performed by a mandate from the bishop to the arch-deacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk'corporal poffession 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 per. fona impersonata, or parson imparfoneek.
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 ecclesiastical cognizance; those only excepted which are laid upon him by statute. And those are indeed fo numerous, that it is impracticable to recite them here with any tolerable conciseness or accuracy. Some of them wemay 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! I shall only just mention the ar-'. ticle of residence, upon the supposition of which the law doth stile 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 5 l. to the king, and 5 l. to any person that will fue for the fame: except chaplains to the king, or others therein mentioned “, during their attendance in the houíhold 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, k Co. Litt. 300.
man's law, published under the name of I These are very numerous: but there Dr. Watson, but compiled by Mr Place are few which can be relied on with cer- a barrister. tainty. Among these are bishop Gib. m Stat. 25 Hen. VIII. c. 16. 33 fon's codex, Dr. Burn's ecclefiaftical law, Hen. VIII. c. 28. and the carlier editions of the clergy- Ştat, 28 Hen. VIII. C. 13. *
for study. Legal residence is not only in the parish, but also in the parsonage house, if there be one : for it hath been refolved, that the statute intended reíience, not only for ferving the cure, and for hospitality ; but also for maintaining the house, that the succeilor also may keep hospitality there: and, if there be 10 parfonage house, it hath been hoiden that the incumbent is bound to hire one, in the fame or some neighbouring parish (p), to answer the purposes of residence. 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 ecclefiaftical benefices, to be paid off by annually decreasing imtallments, and to be expended in rebuilding or repairing the houses belongs ing 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 fo. 1. By death. 2. By cellion, in taking another benefice. For by statute 21 Hen. VIII. c. 13. if any one having a benefice of 8l. per annuin, 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 ; which no one is entitled to have, but the · chaplains of the king and others therein mentioned, the bre
thren 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 session. 3. By confecration ; for, as was mentionet before, when a clerk is promoted to a biihoprick, all his other
[in the case of Wilkinson qui tom againit Allot, Exfter terdi, 16 Geo. Ill. B. R. reported in Cowper's Reports, 429, it was adjudged, that if there be no purfona ge-house, that is no excule for the incumbent's refiding out of the parilh ;- that the ftature of non-residence is a beneficial law, and, though a penal onk, has received a ftrict conítruction againit fuch as have ofiended; -- and that, though there be no parionage-house, yet the pro. vision of the statute must be performed cypres; and therefore he nult refidejomewhere in the parish.]