BOOK I. corrupt practices (which feems to be the true, though not the common, notion of fimony) the perfon giving fuch orders forfeits 401. and the perfon receiving 10 l. and is incapable of any ecclefiaftical preferment for seven years afterwards. ANY clerk may be prefented to a parfonage or vicarage; that is, the patron, to whom the advowfon of the church belongs, may offer his clerk to the bifhop of the diocese to be inftituted. Of advowfons, or the right of presentation, 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 bifhop may refufe 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. First, with regard to his perfon; as if he be a bastard (25), an outlaw, an excommunicate, an alien, under age, or the like. Next, with regard to his faith or morals; as for any particular herefy, 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 probibitum merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal a. Or, lastly, the clerk may be unfit to discharge the paftoral office for want of learning. In any of which cafes the bishop may refuse 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 refusal, who, being usually a layman, is not fupposed to have knowledge y Stat. 31 Eliz. c. 6. z A layman may also be presented; but he must take prieft's orders before his admiffion. 1 Burn. 103. a 2 Roll. Abr. 355. b Glanv. 7. 13. c. 20. 2 Roll. Abr. 356. 2 Inft. 632. Stat. 3 Ric. II. c. 3. 7 Ric. II. c. 13. d 5 Rep. 58. (25) Though this be claffed in the books among the causes of refufal, yet fuch is the liberality of the prefent times, that no one need apprehend that his preferment would be impeded by the incontinence of his parents, or by any demerit but his own. of it; elfe he cannot present 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 [ 390 ] bishop for refusing his clerk, the bishop muft affign the cause. If the caufe be of a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king's courts muft 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 cause be of a spiritual nature, (as, heresy, particularly alleged) the fact if denied fhall alfo be determinéd by a jury; and if the fact be admitted or found, the court upon confultation and advice of learned divines fhall decide its fufficiency. If the caufe be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he is deficients: for the ftatute 9 Edw. II. 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 arch-bishop is final ħ. If the bifhop hath no objections, but admits the patron's presentation, the clerk fo admitted is next to be inftituted by him; which is a kind of inveftiture of the fpiritual 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 (26), an oath of perpctual refidence; for the maxim of law is, e 2 Inft. 632. f 2 Init. 632. 5 Rep. 58. 3 Lev. 313. hz Inft. 632. (26) It does not appear that the bishop can difpenfe with the vicar's oath, which is, that he will be refident upon his vicarage, unlefs difpenfed withal by his diocefan. 1 Burn. Ec. L. 148. that that vicarius non habet vicarium: and, as the non-refidence 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 conftitution, and by abfence to create the very [391] mifchief which they were appointed to remedy: especially 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 fame act, and are called a collation to a benefice. By inflitution or collation the church is full, fo that there can be no fresh presentation till another vacancy, at least 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 clerk1. 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 minifter, to whom their tithes are to be paid. This therefore is the inveftiture of the temporal part of the benefice, as inftitution is of the fpiritual. And when a clerk is thus presented, instituted, 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 imparfonee *. THE rights of a parfon or vicar, in his tithes and ecclefiaftical dues, fall more properly under the fecond book of thefe commentaries: and as to his duties, they are principally of ecclefiaftical cognizance; thofe only excepted which are laid i Co. Litt. 344. k Co. Litt. 300. upon upon him by ftatute. And thofe 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 [392] arife in the progrefs of our inquiries, but for the rest I muft refer myself to fuch authors as have compiled treatises expressly upon this subject'. I fhall only just mention the article of refidence, upon the fuppofition of which the law doth ftile every parochial minister an incumbent. By statute 21 Hen. VIII. c. 13. persons wilfully (27) absenting themselves from their benefices, for one month together, or two months in the year, incur a penalty of 51. to the king, and 51. to any perfon that will fue for the fame (28): except chaplains to the king, or others therein mentioned ", during their attendance in the houshold of fuch as retain them (29): and alfo except " These are very numerous: but there are few which can be relied on with certainty. Among thefe are bishop Gibfon's codex, Dr Burn's ecclefiaftical law, and the earlier editions of the clergyman's law, published under the name of Dr Watson, but compiled by Mr Place m Stat. 25 Hen. VIII. c. 16. 33 Stát. 28 Hen. VIII. c. 13. (27) Ill health, or any inevitable abfence, is an exemption from the penalties of this ftatute. Gibf. Cod. 887. (28) This ftatute mult be put in fuit by a common informer within a year, or by the king within two years, fo that 12 penalties, or izol. may be recovered at once by a fubject for himself and the king, or the king may recover at once 25 penalties, or 2501. (See 4 vol. 308.) But, independent of this ftatute, the bishop in his court may compel the refidence of all clergy, who have the cure or care of fouls within his diocefe. 3 Burn. Ec. 281. Gibf: 887. This ftatuté is not confined to parfonages and vicarages, but extends to all archdeaconries, deanries, and dignities in cathedral and collegiate churches. Tofe who have two benefices or dignities, upon each of which refidence is required, must refide upon one or the other. But it has lately been decided, that the incum bent of an augmented curacy cannot be profecuted under the ftatute for the penalties of non-fefidence. 4 T. R. 665. (29) The king can give a licence to his chaplains for non-rea fidence, even whilft they do not attend his houfehold; but the chaplains of noblemen are only excufed during their actual attendance upon their lords or ladies. Burn. Ec. L. 290. VOL. I. 3 all heads of houses, magiftrates (30), and profeffors in the universities, and all students under forty years of age refiding there, bona fide, for ftudy. Legal refidence is not only in the parish, but also in the parfonage house, if there be one: for it hath been refolved, that the statute intended refidence, not only for ferving the cure, and for hospitality; but also for maintaining the house, that the fucceffor alfo may keep hofpitality there: and, if there be no parsonage house, it hath been holden that the incumbent is bound to hire one, in the fame or fome neighbouring parifh (31), to answer for the purposes of refidence. For the more effectual promotion of which important duty among the parochial clergy, a provision is made by the ftatute 17 Geo. III. c. 53. for raising money upen ecclefiaftical benefices, to be paid off by annually decreafing • 6 Rep. 21, (30) Viz. the chancellor, vice-chancellor, commiffary, doctors of the chair, (i. e. doctors who used to prefide in the public fchools,) and readers of lectures; and under this description only, can profeffors claim an exemption from refidence. (31) It has been decided, by the court of king's bench, that even where there is no parfonage houfe, the incumbent is bound to refide within the parish. Cowp. 429. If a clergyman had one benefice with a parfonage-houfe, and another benefice without a house, the Editor conceives that he is not bound to refide in that parish in which there is a house, for more important duties may impel him to refide within the parish where there is no house; and that fuch refidence would exempt him from the penalties of the ftatute. But where the archdeacon of St. Alban's had the living of Bushey within his archdeaconry, to which living there is a parfonage-houfe belonging, and he refided in the parish of Bushey, but not in the parfonage-houfe; it was held by the court of king's bench, that he was fubject to the penalties of non-refidence, though he was living within the limits of his archdeaconry, to which dignity there is no houfe appurtenant. 5 Burr. 2722. IF then the Editor's opinion be well founded, the decision must have been different, if he had refided in any other part of his archdeaconry out of the parifh of Bushey. inftallments, |