[Footnote h: _per clerum et populum._ Palm. 25. 2 Roll. Rep. 102. M.

Paris. _A.D._ 1095.]

[Footnote i: _Decret._ 1. _dist._ 63. _c._ 22.]

[Footnote k: Palm. 28.]

[Footnote l: "_Nulla electio praelatorum (sunt verba Ingulphi) erat

mere libera et canonica; sed omnes dignitates tam episcoporum, quam

abbatum, per annulum et baculum regis curia pro sua complacentia

conferebat._" _Penes clericos et monachos fuit electio, sed electum a

rege postulabant._ Selden. _Jan. Angl._ l. 1. Sec. 39.]

[Footnote m: _Decret._ 2. _caus._ 16. _qu._ 7. _c._ 12 & 13.]

[Footnote n: Mod. Un. Hist. xxv. 363. xxix. 115.]

THIS concession was obtained from king Henry the first in England, by

means of that obstinate and arrogant prelate, arch-bishop Anselm[o]:

but king John (about a century afterwards) in order to obtain the

protection of the pope against his discontented barons, was prevailed

upon to give up by a charter, to all the monasteries and cathedrals in

the kingdom, the free right of electing their prelates, whether abbots

or bishops: reserving only to the crown the custody of the

temporalties during the vacancy; the form of granting a licence to

elect, (which is the original of our _conge d'eslire_) on refusal

whereof the electors might proceed without it; and the right of

approbation afterwards, which was not to be denied without a

reasonable and lawful cause[p]. This grant was expressly recognized

and confirmed in king John's _magna carta_[q], and was again

established by statute 25 Edw. III. st. 6. Sec. 3.

[Footnote o: M. Paris. _A.D._ 1107.]

[Footnote p: M. Paris. _A.D._ 1214. 1 Rym. _Foed._ 198.]

[Footnote q: _cap._ 1. _edit. Oxon._ 1759.]

BUT by statute 25 Hen. VIII. c. 20. the antient right of nomination

was, in effect, restored to the crown: it being enacted that, at every

future avoidance of a bishoprick, the king may send the dean and

chapter his usual licence to proceed to election; which is always to

be accompanied with a letter missive from the king, containing the

name of the person whom he would have them elect: and, if the dean and

chapter delay their election above twelve days, the nomination shall

devolve to the king, who may by letters patent appoint such person as

he pleases. This election or nomination, if it be of a bishop, must be

signified by the king's letters patent to the arch-bishop of the

province; if it be of an arch-bishop, to the other arch-bishop and two

bishops, or to four bishops; requiring them to confirm, invest, and

consecrate the person so elected: which they are bound to perform

immediately, without any application to the see of Rome. After which

the bishop elect shall sue to the king for his temporalties, shall

make oath to the king and none other, and shall take restitution of

his secular possessions out of the king's hands only. And if such dean

and chapter do not elect in the manner by this act appointed, or if

such arch-bishop or bishop do refuse to confirm, invest, and

consecrate such bishop elect, they shall incur all the penalties of a

_praemunire_.

AN arch-bishop is the chief of the clergy in a whole province; and has

the inspection of the bishops of that province, as well as of the

inferior clergy, and may deprive them on notorious cause[r]. The

arch-bishop has also his own diocese, wherein he exercises episcopal

jurisdiction; as in his province he exercises archiepiscopal. As

arch-bishop, he, upon receipt of the king's writ, calls the bishops

and clergy of his province to meet in convocation: but without the

king's writ he cannot assemble them[s]. To him all appeals are made

from inferior jurisdictions within his province; and, as an appeal

lies from the bishops in person to him in person, so it also lies from

the consistory courts of each diocese to his archiepiscopal court.

During the vacancy of any see in his province, he is guardian of the

spiritualties thereof, as the king is of the temporalties; and he

executes all ecclesiastical jurisdiction therein. If an archiepiscopal

see be vacant, the dean and chapter are the spiritual guardians, ever

since the office of prior of Canterbury was abolished at the

reformation[t]. The arch-bishop is entitled to present by lapse to all

the ecclesiastical livings in the disposal of his diocesan bishops,

if not filled within six months. And the arch-bishop has a customary

prerogative, when a bishop is consecrated by him, to name a clerk or

chaplain of his own to be provided for by such suffragan bishop; in

lieu of which it is now usual for the bishop to make over by deed to

the arch-bishop, his executors and assigns, the next presentation of

such dignity or benefice in the bishop's disposal within that see, as

the arch-bishop himself shall choose; which is therefore called his

option[u]: which options are only binding on the bishop himself who

grants them, and not his successors. The prerogative itself seems to

be derived from the legatine power formerly annexed by the popes to

the metropolitan of Canterbury[w]. And we may add, that the papal

claim itself (like most others of that encroaching see) was probably

set up in imitation of the imperial prerogative called _primae_ or

_primariae preces_; whereby the emperor exercises, and hath

immemorially exercised[x], a right of naming to the first prebend that

becomes vacant after his accession in every church of the empire[y]. A

right, that was also exercised by the crown of England in the reign of

Edward I[z]; and which probably gave rise to the royal corodies, which

were mentioned in a former chapter[a]. It is also the privilege, by

custom, of the arch-bishop of Canterbury, to crown the kings and

queens of this kingdom. And he hath also by the statute 25 Hen. VIII.

c. 21. the power of granting dispensations in any case, not contrary

to the holy scriptures and the law of God, where the pope used

formerly to grant them: which is the foundation of his granting

special licences, to marry at any place or time, to hold two livings,

and the like: and on this also is founded the right he exercises of

conferring degrees, in prejudice of the two universities[b].

[Footnote r: Lord Raym. 541.]

[Footnote s: 4 Inst. 322, 323.]

[Footnote t: 2 Roll. Abr. 223.]

[Footnote u: Cowel's interpr. tit. option.]

[Footnote w: Sherlock of options. 1.]

[Footnote x: Goldast. _constit. imper._ _tom._ 3. _pag._ 406.]

[Footnote y: Dufresne. V. 806. Mod. Un. Hist. xxix. 5.]

[Footnote z: _Rex, &c, salutem. Scribatis episcopo Karl. quod--Roberto

de Icard pensionem suam, quam ad preces regis praedicto Roberto

concessit, de caetero solvat; et de proxima ecclesia vacatura de

collatione praedicti episcopi, quam ipse Robertus acceptaverit,

respiciat._ _Brev._ 11 Edw. I. 3 Pryn. 1264.]

[Footnote a: ch. 8. pag. 273.]

[Footnote b: See the bishop of Chester's case. Oxon. 1721.]

THE power and authority of a bishop, besides the administration of

certain holy ordinances peculiar to that sacred order, consists

principally in inspecting the manners of the people and clergy, and

punishing them, in order to reformation, by ecclesiastical censures.

To this purpose he has several courts under him, and may visit at

pleasure every part of his diocese. His chancellor is appointed to

hold his courts for him, and to assist him in matters of

ecclesiastical law; who, as well as all other ecclesiastical officers,

if lay or married, must be a doctor of the civil law, so created in

some university[c]. It is also the business of a bishop to institute

and to direct induction to all ecclesiastical livings in his diocese.

[Footnote c: Stat. 37 Hen. VIII. c. 17.]

ARCHBISHOPRICKS and bishopricks may become void by death, deprivation

for any very gross and notorious crime, and also by resignation. All

resignations must be made to some superior[d]. Therefore a bishop must

resign to his metropolitan; but the arch-bishop can resign to none but

the king himself.

[Footnote d: Gibs. cod. 822.]

II. A DEAN and chapter are the council of the bishop, to assist him

with their advice in affairs of religion, and also in the temporal

concerns of his see[e]. When the rest of the clergy were settled in

the several parishes of each diocese (as hath formerly[f] been

mentioned) these were reserved for the celebration of divine service

in the bishop's own cathedral; and the chief of them, who presided

over the rest, obtained the name of _decanus_ or dean, being probably

at first appointed to superintend _ten_ canons or prebendaries.

[Footnote e: 3 Rep. 75. Co. Litt. 103, 300.]

[Footnote f: pag. 108, 109.]

ALL antient deans are elected by the chapter, by _conge d'eslire_ from

the king, and letters missive of recommendation; in the same manner as

bishops: but in those chapters, that were founded by Henry VIII out of

the spoils of the dissolved monasteries, the deanery is donative, and

the installation merely by the king's letters patent[g]. The chapter,

consisting of canons or prebendaries, are sometimes appointed by the

king, sometimes by the bishop, and sometimes elected by each other.

[Footnote g: Gibs. cod. 173.]

THE dean and chapter are, as was before observed, the nominal electors

of a bishop. The bishop is their ordinary and immediate superior; and

has, generally speaking, the power of visiting them, and correcting

their excesses and enormities. They had also a check on the bishop at

common law: for till the statute 32 Hen. VIII. c. 28. his grant or

lease would not have bound his successors, unless confirmed by the

dean and chapter[h].

[Footnote h: Co. Litt. 103.]

DEANERIES and prebends may become void, like a bishoprick, by death,

by deprivation, or by resignation to either the king or the bishop[j].

Also I may here mention, once for all, that if a dean, prebendary, or

other spiritual person be made a bishop, all the preferments he was

before possessed of are void; and the king may present to them in

right of his prerogative royal. But they are not void by the election,

but only by the consecration[i].

[Footnote j: Plowd. 498.]

[Footnote i: 2 Roll. Abr. 352. Salk. 137. [Transcriber's Note:

Footnotes j and i are in this order in the original.]]

III. AN arch-deacon hath an ecclesiastical jurisdiction, immediately

subordinate to the bishop, throughout the whole of his diocese, or in

some particular part of it. He is usually appointed by the bishop

himself; and hath a kind of episcopal authority, originally derived

from the bishop, but now independent and distinct from his[k]. He

therefore visits the clergy; and has his separate court for punishment

of offenders by spiritual censures, and for hearing all other causes

of ecclesiastical cognizance.

[Footnote k: 1 Burn. eccl. law. 68, 69.]

IV. THE rural deans are very antient officers of the church[l], but

almost grown out of use; though their deaneries still subsist as an

ecclesiastical division of the diocese, or archdeaconry. They seem to

have been deputies of the bishop, planted all round his diocese, the

better to inspect the conduct of the parochial clergy, and therefore

armed with an inferior degree of judicial and coercive authority[m].

[Footnote l: Kennet. par. antiq. 633.]

[Footnote m: Gibs. cod. 972.]

V. THE next, and indeed the most numerous order of men in the system

of ecclesiastical polity, are the parsons and vicars of parishes: in

treating of whom I shall first mark out the distinction between them;

shall next observe the method by which one may become a parson or

vicar; shall then briefly touch upon their rights and duties; and

shall, lastly, shew how one may cease to be either.

A PARSON, _persona ecclesiae_, is one that hath full possession of all

the rights of a parochial church. He is called parson, _persona_,

because by his person the church, which is an invisible body, is

represented; and he is in himself a body corporate, in order to

protect and defend the rights of the church (which he personates) by a

perpetual succession[n]. He is sometimes called the rector, or

governor, of the church: but the appellation of _parson_, (however it

may be depreciated by familiar, clownish, and indiscriminate use) is

the most legal, most beneficial, and most honourable title that a

parish priest can enjoy; because such a one, (sir Edward Coke

observes) and he only, is said _vicem seu personam ecclesiae gerere_.

A parson has, during his life, the freehold in himself of the

parsonage house, the glebe, the tithes, and other dues. But these are

sometimes _appropriated_; that is to say, the benefice is perpetually

annexed to some spiritual corporation, either sole or aggregate, being

the patron of the living; whom the law esteems equally capable of

providing for the service of the church, as any single private

clergyman. This contrivance seems to have sprung from the policy of

the monastic orders, who have never been deficient in subtle

inventions for the increase of their own power and emoluments. At the

first establishment of parochial clergy, the tithes of the parish were

distributed in a fourfold division; one for the use of the bishop,

another for maintaining the fabrick of the church, a third for the

poor, and the fourth to provide for the incumbent. When the sees of

the bishops became otherwise amply endowed, they were prohibited from

demanding their usual share of these tithes, and the division was into

three parts only. And hence it was inferred by the monasteries, that a

small part was sufficient for the officiating priest, and that the

remainder might well be applied to the use of their own fraternities,

(the endowment of which was construed to be a work of the most exalted

piety) subject to the burthen of repairing the church and providing

for it's constant supply. And therefore they begged and bought, for

masses and obits, and sometimes even for money, all the advowsons

within their reach, and then appropriated the benefices to the use of

their own corporation. But, in order to complete such appropriation

effectually, the king's licence, and consent of the bishop, must first

be obtained; because both the king and the bishop may sometime or

other have an interest, by lapse, in the presentation to the benefice;

which can never happen if it be appropriated to the use of a

corporation, which never dies: and also because the law reposes a

confidence in them, that they will not consent to any thing that shall

be to the prejudice of the church. The consent of the patron also is

necessarily implied, because (as was before observed) the

appropriation can be originally made to none, but to such spiritual

corporation, as is also the patron of the church; the whole being

indeed nothing else, but an allowance for the patrons to retain the

tithes and glebe in their own hands, without presenting any clerk,

they themselves undertaking to provide for the service of the

church[o]. When the appropriation is thus made, the appropriators and

their successors are perpetual parsons of the church; and must sue and

be sued, in all matters concerning the rights of the church, by the

name of parsons[p].

[Footnote n: Co. Litt. 300.]

[Footnote o: Plowd. 496-500.]

[Footnote p: Hob. 307.]

THIS appropriation may be severed, and the church become

disappropriate, two ways: as, first, if the patron or appropriator

presents a clerk, who is instituted and inducted to the parsonage:

for the incumbent so instituted and inducted is to all intents and

purposes complete parson; and the appropriation, being once severed,

can never be re-united again, unless by a repetition of the same

solemnities[q]. And when the clerk so presented is distinct from the

vicar, the rectory thus vested in him becomes what is called a

_sine-cure_; because he hath no cure of souls, having a vicar under

him to whom that cure is committed[r]. Also, if the corporation which

has the appropriation is dissolved, the parsonage becomes

disappropriate at common law; because the perpetuity of person is

gone, which is necessary to support the appropriation.

[Footnote q: Co. Litt. 46.]

[Footnote r: Sine-cures might also be created by other means. 2 Burn.

eccl. law. 347.]

IN this manner, and subject to these conditions, may appropriations be

made at this day: and thus were most, if not all, of the

appropriations at present existing originally made; being annexed to

bishopricks, prebends, religious houses, nay, even to nunneries, and

certain military orders, all of which were spiritual corporations. At

the dissolution of monasteries by statutes 27 Hen. VIII. c. 28. and 31

Hen. VIII. c. 13. the appropriations of the several parsonages, which

belonged to those respective religious houses, (amounting to more than

one third of all the parishes in England[s]) would have been by the

rules of the common law disappropriated; had not a clause in those

statutes intervened, to give them to the king in as ample a manner as

the abbots, &c, formerly held the same, at the time of their

dissolution. This, though perhaps scarcely defensible, was not without

example; for the same was done in former reigns, when the alien

priories, (that is, such as were filled by foreigners only) were

dissolved and given to the crown[t]. And from these two roots have

sprung all the lay appropriations or secular parsonages, which we now

see in the kingdom; they having been afterwards granted out from time

to time by the crown[u].

[Footnote s: Seld. review of tith. c. 9. Spelm. Apology. 35.]

[Footnote t: 2 Inst. 584.]

[Footnote u: Sir H. Spelman (of tythes, c. 29.) says these are now

called impropriations, as being _improperly_ in the hands of laymen.]

THESE appropriating corporations, or religious houses, were wont to

depute one of their own body to perform divine service, and administer

the sacraments, in those parishes of which the society was thus the

parson. This officiating minister was in reality no more than a

curate, deputy, or vicegerent of the appropriator, and therefore

called _vicarius_, or _vicar_. His stipend was at the discretion of

the appropriator, who was however bound of common right to find

somebody, _qui illi de temporalibus, episcopo de spiritualibus, debeat

respondere_[w]. But this was done in so scandalous a manner, and the

parishes suffered so much by the neglect of the appropriators, that

the legislature was forced to interpose: and accordingly it is enacted

by statute 15 Ric. II. c. 6. that in all appropriations of churches,

the diocesan bishop shall ordain (in proportion to the value of the

church) a competent sum to be distributed among the poor parishioners

annually; and that the vicarage shall be _sufficiently_ endowed. It

seems the parish were frequently sufferers, not only by the want of

divine service, but also by withholding those alms, for which, among

other purposes, the payment of tithes was originally imposed: and

therefore in this act a pension is directed to be distributed among

the poor parochians, as well as a sufficient stipend to the vicar. But

he, being liable to be removed at the pleasure of the appropriator,

was not likely to insist too rigidly on the legal sufficiency of the

stipend: and therefore by statute 4 Hen. IV. c. 12. it is ordained,

that the vicar shall be a secular person, not a member of any

religious house; that he shall be vicar perpetual, not removeable at

the caprice of the monastery; and that he shall be canonically

instituted and inducted, and be sufficiently endowed, at the

discretion of the ordinary, for these three express purposes, to do

divine service, to inform the people, and to keep hospitality. The

endowments in consequence of these statutes have usually been by a

portion of the glebe, or land, belonging to the parsonage, and a

particular share of the tithes, which the appropriators found it most

troublesome to collect, and which are therefore generally called

privy, small, or vicarial, tithes; the greater, or predial, tithes

being still referred to their own use. But one and the same rule was

not observed in the endowment of all vicarages. Hence some are more

liberally, and some more scantily, endowed; and hence many things, as

wood in particular, is in some countries a predial, and in some a

vicarial tithe.

[Footnote w: Seld. tith. c. 11. 1.]

THE distinction therefore of a parson and vicar is this; that the

parson has for the most part 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, with a standing salary. Though in some places the

vicarage has been considerably 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 necessary: holy orders; presentation;

institution; and induction. The method of conferring the holy orders

of deacon and priest, according to the liturgy and canons[x], is

foreign to the purpose of these commentaries; 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 instituted 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

_ipso facto_ deprived: and now, by statute 13 & 14 Car. II. c. 4. no

person is capable to be admitted to any benefice, 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]

40_l._ and the person receiving 10_l._ and is incapable of any

ecclesiastical preferment for seven years afterwards.

[Footnote x: See 2 Burn. eccl. law. 103.]

[Footnote y: Stat. 31 Eliz. c. 6.]

ANY clerk may be presented[z] 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

refuse him upon many accounts. As, 1. If the patron is excommunicated,

and remains in contempt forty days[a]. Or, 2. If the clerk be

unfit[b]: 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[c]. 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

_schismaticus 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 refusal[d]. 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 knowlege of it; else he cannot present by lapse:

but if the cause be temporal, there he is not bound to give notice[e].

[Footnote z: A layman may also be presented; but he must take priests

orders before his admission. 1 Burn. 103.]

[Footnote a: 2 Roll. Abr. 355.]

[Footnote b: Glanv. _l._ 13. _c._ 20.]

[Footnote c: 2 Roll. Abr. 356. 2 Inst. 632. Stat. 3 Ric. II. c. 3. 7

Ric. II. c. 12.]

[Footnote d: 5 Rep. 58.]

[Footnote e: 2 Inst. 632.]

Commentaries on the Laws of England, Book the First · 第 32 / 41 段