1 installments, and to be expended in rebuilding or repairing the houses belonging to fuch benefices (32). We have feen that there is but one way, whereby one may become a parfon or vicar: there are many ways, by which one may cease to be fo. 1. By death. 2. By ceffion, in taking another benefice. For by ftatute 21 Hen. VIII. c. 13. if any one having a benefice of 8 1. per annum, or upwards (according to the present valuation in the king's books ",) accepts any other, the first shall be adjudged void, unless he obtains a dispensation (33), which no one is entitled to have, but the P Cro. Car. 456. (32) This act enables the incumbent, when there is no parfonage. house, or where it is fo ruinous as not to be repaired with one year's income of the living, to borrow, with the confent of the patron and ordinary, upon mortgage of the revenue of the living, a fum not exceeding two years clear value, to be laid out in repairs, building, or the purchase of a house. The intereft of the money borrowed, is to be repaid by the incumbent yearly, and 5 per cent. of the original fum; or 10l. per cent. if he does not refide twenty weeks within a year. And where the income is 100l. a year, and the incumbent does not refide twenty weeks within a year, the patron and the ordinary are empowered to undertake this without his confent. The governors of queen Anne's bounty may lend money upon fuch mortgages, at 41. per cent. intereft; and 100/. upon a living under 40 l. a year, without any intereft. Colleges and other corporations may lend money for this purpose upon their own livings, without intereft. For forms and mode of proceeding, confult the ftatute at large. It is very remarkable that, under this act, the money borrowed was directed to be difcharged by paying 51. per cent. yearly upon the principal remaining due; the confequence was, that it would have been diminished by decreasing inftallments, which would have produced an infinite feries, or the whole could never have been paid. And it required another act, the 21 Geo. III. c. 66. which was paffed merely for the purpose, to correct this palpable blunder, by which statute, the original fum must be paid, as ftated, at the fartheft, within twenty years. (33) But both the livings must have cure of fouls; and the ftatute expressly excepts deaneries, archdeaconries, chancellorships, treasurerfhips, L12 BOOK 1. chaplains (34) of the king and others therein mentioned, the brethren and the fons of lords and knights (35), and doctors and treasurerfhips, chanterships, prebends, and finecure rectories; a difpenfation in this cafe can only be granted to hold one benefice more, except to clerks, who are of the privy-council, who may hold three by difpenfation. By the canon law, no person can hold a fecond incompatible benence without a difpenfation; and in that cafe, if the first is under 8 1. per annum, it is fo far void that the patron may present another clerk, or the bishop may deprive; but till deprivation, no advantage can be taken by lapfe. But, independent of the ftatute, a clergyman by difpenfations 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. By the 41ft canon of 1603, the two benefices must not be farther distant from each other than 30 miles, and the perfon obtaining the difpenfation, must at least be a master of arts in one of the univerfities. But the provifions of this canon are not enforced or regarded in the temporal courts. 2 Black. Rep. 968. See note 14. p. 83. (34) The number of the chaplains of the king and royal family, who may have difpenfations, is unlimited. An archbishop may have eight, a duke and bishop fix, a marquis and earl five, a viscount four. The chancellor, a baron, and knight of the garter, three; a duchess, marchionefs, countefs, and baronefs, being widows, two. The king's treasurer, comptroller, fecretary, dean of the chapel, amber, and the master of the rolls, two. justice of king's bench, and warden of cinque ports, one. Thefe chaplains only can obtain a difpenfation under the ftatute. The chief If one perfon 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. 9o. The king may present his own chaplains, i. e. waiting chaplains in ordinary, 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 difpenfation; but a king's chaplain being beneficed by the king, cannot afterwards take a living from a fùbject, but by a dispensation according to the ftatute. S. 29. 1 Salk. 161. to (35) This privilege is not enjoyed by the brother and fon of a baronet, for the rank of baronet did not then exist. bachelors 1 bachelors of divinity and law(36), admitted by the universities of this realm. And a vacancy thus made, for want of a difpenfation, is called ceffion (37). 3. By confecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other preferments are void the inftant that he is confecrat- [ 393 3 ed. But there is a method, by the favour of the crown, of holding fuch livings in commendam. Commenda, or ecclefia 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 three years; or perpetual: being a kind of dispensation to avoid the vacancy of the living, and is called a commenda retinere (38). There is alfo a commenda recipere, which is to take a benefice de novo, in the bishop's (36) The words of the ftatute 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 utriufque juris. J. U. D. or juris utriufque doctor, is ftill common in foreign universities. But Hen. VIII. in the 27th year of his reign, when he had renounced the authority of the pope, iffued a mandate to the university of Cambridge, ut nulla legatur palam et publice lectio in jure canonico five pontificio, nec aliquis cujufcunque conditionis bomo gradum aliquem in ftudio illius juris pontificii fufcipiat, aut in eodem in pofterum promoveatur quovis modo. Stat. Acad. Cant. p. 137. It is probable, that, at the fame time, Oxford received a fimilar prohibition, and that degrees in canon law have ever since been discontinued in England. (37) In the cafe of a ceffion under the ftatute, the church is fo far void upon institution to the second living, that the patron may take notice of it, and prefent if he pleases; but there is great reafon to think, that lapfe will not incur from the time of inftitution against the patron, unless notice be given him; but lapfe will incur from the time of induction without notice. 2 Wilf. 200. 3 Burr. 1504. (38) Thefe commendams are now feldom or never granted to any but bishops; and in that cafe, the bishop is made commmendatory of the benefice, while he continues bishop of fuch a diocese. as the object is to make it an addition to a small bishoprick; and BOOK I. own gift, or the gift of some other patron confenting to the fame; and this is the fame to him as inftitution and induction are to another clerk 1. 4. By refignation. But this is of no avail, till accepted by the ordinary; into whofe hands the resignation must be made1 (39). 5. By deprivation; either, first, by fentence declaratory in the ecclefiaftical courts, for fit and fufficient caufes allowed by the common law; fuch as attainder of treafon or felony f, or conviction of other infamous crime in the king's courts; for herefy, infidelity', grofs immorality, and the like; or, fecondly, in pursuance of divers penal statutes, which declare the benefice void, for fome nonfeafance or neglect, or else fome malefeafance or crime; as, for fimony; for maintaining any doctrine in derogation s Fitz. Abr. t. Trial. 54. q Hob. 144. • Cro. Jac. 198. t Stat. 31 Eliz. c. 6. 12 Ann. c. 12, it would be unreasonable to grant it to a bishop for his life, who might be tranflated afterwards to one of the richest fees. See an account of the proceedings in the great cafe of commendams, Hob. 40. and Collier's Ec. Hift. 2 vol. p. 710. (39) It leems to be clear, that the bishop may refuse to accept a refignation, upon a fuficient caufe for his refufal; but whether he can merely at his will and pleafure refufe to accept a refignation without any caufe, and who fhall finally judge of the fuffi ciency of the caufe, and by what mode he may be compelled to accept, are questions undecided. In the cafe of the bishop of London and Fytche, the judges in general declined to answer whether a bishop was compellable to accept a refignation: one thought he was compellable by mandamus, if he did not fhew fufficient caufe; and another obferved, if he could not be compelled, he might prevent any incumbent from accepting an Irish bishoprick, as no one can accept a bishoprick in Ireland till he has refigned all his benefices in England. But lord Thurlow feemed 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. of of the king's fupremacy, or of the thirty-nine articles, or of the book of common-prayer; for neglecting after institu tion to read the liturgy and articles in the church, or make the declarations against popery, or take the abjuration oath"; for using any other form of prayer than the liturgy of the church of England"; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was prefented by either of the universities *; in all which and fimilar cafes y the benefice is ipfo facto void, without any formal fentence of deprivation. VI. A CURATE is the lowest degree in the church; being in the fame ftate that a vicar was formerly, an officiating temporary minifter, inftead of the proper incumbent. Though there are what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, (being for fome particular reafons exempted from the ftatute of Hen. IV.) but, instead thereof, fuch perpetual curate is appointed by the appropriator. With regard to the other fpecies of curates, they are the objects of fome particular ftatutes, which ordain, that fuch as ferve a church during it's vacancy fhall be paid fuch ftipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not fufficient, by the fucceffor within fourteen days after he takes poffeffion *: and that, if any rector or vicar nominates a curate to the ordinary to be licensed to serve the cure in his abfence, the ordinary shall settle his stipend under his hand and feal, not exceeding 50l. per annum, nor less than 20%. and on failure. of payment may fequefter the profits of the benefice (40). v Stat. 1 Eliz. c. 1 & 2. 13 Eliz. c. 12. u Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. 1 Geo. I. c. 6. Stat. Eliz. c. 2. x Stat. 1 W. & M. c. 26. y 6 Rep. 29, 30. b ZI Burn. eccl. law. 427. [394] (40) It was provided in 1603, by canon 33, that if a bishop ordains any perfon not provided with fome ecclefiaftical preferment, except a fellow or chaplain of a college, or a master of arts of 5 years ftanding, who lives in the univerfity at his own expence, |