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consistent endowment. Lord Eldon has declared, that if a vicar enjoys property not mentioned in an endowment, and has never within the time of memory possessed what is expressly contained in it, a jury might presume that he had the former in lieu of the latter. These endowments frequently invest the vicar with some part of the great tithes; therefore the words rectorial and vicarial tithes have no definite signification. But great and small tithes are technical terms, and which are, or ought to be, accurately defined and distinguished by the law.
The distinction, therefore, of a parson and a vicar is this. 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. At the dissolution of the monasteries, all these appropriations were transferred to the crown, and were by the king granted out to different families, and are now called impropriations. In some appropriated churches, no perpetual vicar has ever been endowed; in which case the officiating minister is appointed by the appropriator and is called a perpetual curate. In some places the vicarage has been considerably augmented by a large share of the prædial tithes, and was greatly assisted by the statute 29 Charles II., enacted in favour of poor vicars and curates, which rendered such temporary augmentations as were made by the appropriators perpetual.
The method of becoming a parson or vicar is much the same. To both fuur requisites are equally necessary: holy orders, presentation, institution, and induction.* By common law, a deacon of any age might be instituted and inducted to a parsonage or vicarage. It was ordained in the reign of Elizabeth, 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. Now by statutet no person is capable of being admitted to any benefice, unless he has been first ordained a priest, and then in the language of the law he is a clerk in orders; and he cannot take the order of priesthood till he be full four and twenty years of age. But if he obtain orders, by money or corrupt practices, (which seems to be the true, though not the common notion of simony,) the person giving such orders forfeits L.40, and the person receiving, L. 10, and is incapable of any ecclesiastical preferment for seven years afterwards,
Any clerk may be presented to a parsonage or vicarage, so may also a layman, but he must take priest's orders before his admission :f 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. But when a clerk is presented, the bishop may refuse him on many accounts: as, 1. If the patron is ex. communicated, and remains in contempt forty days. 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, and the like. Next with regard to his faith or morals; as for any particular heresy, or vice that is malum in se. If the bishop alleges only in generals, as that he is an inveterate schismatic, 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. 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, then the bishop must give notice to the patron of such 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, then he is not bound to give notice.
If a patron brings an action at law against the bishop for refusing his clerk, the bishop must assign the cause. If the cause be of a temporal nature, and the fact admitted, the judges of the king's court must determine its validity, or whether it be a sufficient cause of refusal ; but if the fact be denied, it must be determined by a jury. If the cause be spiritual nature, (as heresy,) the fact, if denied, shall also be determined by a jury. If the fact be admitted or found, the court upon consultation and advice of learned divines shall
* See Art. United Church of England and Ireland, post. f 13 and 14 Charles 11., c. 4.
# Burns' Ecc. Law.
decide its sufficiency. If the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he is deficient, because 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 to be unfit: therefore if the bishop returns the clerk as deficient in literature, the court shall write to the metropolitan to re-examine him, and certify his qualifications; and the archbishop's certificate is final.
If the bishop makes no objections, but admits the patron's presentation, the clerk so admitted, is next to be instituted, which is a kind of investiture of the spiritual part of the benefice; for by institution, the care of the souls of the parish is committed to the clerk's charge. At his institution, the vicar, if required by the bishop, took an oath of perpetual residence; but this is not now required. When the bishop 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 a new 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. Upon institution also, the clerk miay enter on the parsonage house and glebe, and take the tithes ; but he cannot grant or let them, or bring an action for them, till after induction. And when a clerk is presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law persona impersonata, or parson im parsonee.
A parson or vicar's right to the tithes and ecclesiastical dues, will be described under the head of tithes. The duties laid on him by statute are so numerous, that they cannot be recited here. I shall only mention the article of residence, on the supposition of which the law styles every parochial minister an incumbent. A clergyman willingly absenting himself from his benefice for one month together, or for two months in the year, incurs a penalty of five pounds: ill health, or inevitable absence, is however an exception to the penalties. The bishop, in his court, may compel the residence of all clergy who have the cure of souls within his diocese. This extends to all archdeaconries, deaneries, and dignities in cathedral and collegiate churches. Those who have two benefices or dignities, upon each of which residence is required, must reside upon one or the other. Chaplains to the king or others, are however exempted during their attendance in the household; and also all heads of houses, magistrates, and professors in the universities, and all students under thirty years of age, residing there bona fide for study. The king can give a license to his chaplains for nonresidence, even whilst they do not attend his household; but noblemen's chaplains are only excused during their actual attendance on their lords or ladies. Legal residence is not only in the parish, but also in the parsonage house, if there be one; for it has been resolved that residence is intended not only for serving the cure and for hospitality, but also for maintaining the house, that the successor may also keep hospitality there. And if there be no parsonage house, then the incumbent is bound to hire one, in the same or some neighbouring parish. An act of parliament* provides for raising money on ecclesiastical benefices, to be paid off annually by decreasing instalments, and to be expended in rebuilding or repairing the houses belonging to such benefices. This act enables the incumbent, when there is no parsonage house, or where it is so ruinous as not to be repaired with one year's income of the living, to borrow, with the consent of the patron and bishop, upon mortgage of the living, a sum not exceeding two years' clear value, to be laid out in repairs, building, or the purchase of a house.
We have seen that there is but one way of becoming a parson or vicar; but there are many ways of ceasing to be one. 1. By death. 2. By cession, in taking another benefice; for by statute* if any one having a benefice of L.8 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, which none is entitled to have but the king's chaplain, and
* 17 Gco. 111., c. 53.
olhers therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law admitted by the universities; and a vacancy thus made for want of a dispensation is called a cession. In the case of a cession under the statute, the church is so far void upon institution to the second living, that the patron may take notice of it, and present if he pleases; but there is great reason to think, that lapse will not incur from the time of institution against the patron, unless notice be given him; but lapse will incur from the time of induction without notice. 3. By consecration ; for, as was before mentioned, when a clerk is promoted to a bishopric, all his other preferments are void from the moment of his consecration. But there is a method by the favour of the crown, of holding such living in commendam. Commenda, or ecclesia 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. These commendams are now seldom or never granted to any but bishops, and in that case the bishop is made commendatory of the benefice, while he continues bishop of such a diocese only, as the object is to make it an addition to a small bishopric. It would be unreasonable to grant it to a bishop for his life, who might afterwards be translated to one of the richest Sees. There is also a commenda recipere, which is to take a benefice de novo, in the bishop's own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clergyman. 4. By resignation. This is of no avail, till accepted by the bishop, into whose hands the resignation must be made. But it seems to be clear, that the bishop may refuse to accept a resignation, upon a sufficient cause for his refusal. Whether he can, merely at his will and pleasure, refuse to accept a resignation, without any cause, and who shall finally judge of the sufficiency of the cause, and by what mode he may be compelled to accept, are questions undecided. 5. By deprivation. Either, first, by sentence declaratory in the ecclesiastical court, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, or conviction of other infamous crimes in the king's courts : for heresy, infidelity, gross immorality, and such like. Or, secondly, in pursuance of divers penal statutes, which declare the benefice void; for some non feasance or neglect, or else some malfeasance or crime; as, for simony, for maintaining any doctrine derogatory of the king's supremacy, or of the thirty-nine articles, or of the book of common prayer. For neglecting after institution to read the liturgy and articles in the church, or to 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 presented by either of the universities. In all which and similar cases, the benefice is ipso facto void, without any formal sentence of deprivation.
VI. A curate, though in full priest's orders, is the lowest degree in the church. He is in the same state that a vicar formerly was, an officiating temporary minister, instead of the proper incumbent. There are also what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, but instead the perpetual curate is ap. pointed by the appropriator. With regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during its vacancy, shall be paid such stipend as the bishop thinks reasonable, out of the profits of the vacancy. If that be not sufficient, by the successor, within fourteen days after he takes possession. Likewise, if any rector or vicar nominates a curate to the bishop for license to serve the cure in his absence, the bishop shall settle his stipend under his hand and seal, not exceeding L.50 per annum, nor less than L.20; and on failure of payment may sequester the profits of the benefice.
The act of George III. has made such considerable alterations in the law respecting curates, that it may be proper to repeat some of its provisions.
When any person becomes incumbent of a benefice, and does not reside upon it, (unless he has a legal exemption from residence, or a license to reside out of the parish, or the house
* 21 Henry VIII.
of residence), the bishop shall appoint a salary to the licensed curate, not less than L.80 per annum, or the annual value of the benefice, if the gross value does not amount to that sum; nor less than L.100 per annum, or the whole value, if the gross value does not amount to L. 100 per annum, and the population amounts to or exceeds 300; nor less than L 120 per annum, or the whole value where the gross value does not amount to L.120 per annum, and the population amounts to or exceeds 500; nor less than L. 150 per annum, or the whol. value as above, if it does not amount to L.159 per annum, and the population amounts to or exceeds 1000. Where the actual annual value of any benefice exceeds L.400, the bishop may assign L.100 per annum to the curate, though the population do not amount to 300; and wbere the income exceeds L.400, and the population does not amount to, or exceed 500, a farther provision of L.50 per annum. In all cases of nonresidence from sickness, age, or other unavoidable causes, the bishop may fix smaller salaries at his discretion. The salary of a curate who serves interchangeably with his incumbent at different benefices belonging to the same incumbent, shall not exceed that allowed under the act for the largest of these benefices, nor be less for that of the smallest. All contracts between incumbents and curates in fraud or derogation of this act are void ab inuio. Where the curate's salary is equal to the gross value of the benefice, it is to be subject to all deductions, for charges and outgoings legally affecting it, and to any loss or diminution of it not arising from default of the incumbent. And in all such cases the incumbent may deduct any sum expended in repairing the chancel, or house of residence with its appurtenances, and not exceeding one fourth of the salary. When the incumbent is nonresident for four months in the year, the bishop may allot the house of residence to the curate during the time he shall serve the cure, or during the incumbent's nonresidence. Or if the curate be assigned a salary not less than the gross annual value of the benefice, and lives in the house of residence, he shall then pay all the taxes and parish assessments of the house during his residence. On three months' notice from the bishop, the curate must deliver up possession of the house of residence to the incumbent, under a penalty of 40s. for each day of wrongful possession, and in the event of a vacancy, he is to quit the same within three months after the appointment of the new incumbent, on his requiring him so to do, with one month's notice to quit. Lastly, whenever the ecclesiastical duties of a benefice are inadequately performed, or the incumbent neglects to appoint a curate during his nonresidence, the bishop is empowered to license and appoint a curate with a salary.
VII. Church wardens are the guardians or keepers of the church, and representatives of the body of the parish. They are sometimes appointed by the minister, sometimes by the parish, and sometimes by both together, as custom directs. They are taken, in favour of the church, to be for some purposes a kind of corporation at the common law; that is, they are enabled by that name to have a property in goods and chattels, and to bring actions for them, for the use and profit of the parish. Yet they may not waste the church goods, but may be removed by the parish, and then called to account by action at common law; but there is no method of calling them to account, but by first removing them; for none but their successors can legally do it. As to lands or other real property, as the church, churchyard, &c., they have no sort of interest therein : but if any damage is done thereto, the parson only or vicar shall have the action. Their office also is to repair the church, and make rates and levies for that purpose; but these are recoverable only in the ecclesiastical court. They are also joined with the overseers in the care and maintenance of the poor. They are to levy a shilling forfeiture on all such as do not repair to church on Sundays and holydays; and are empowered to keep all persons orderly while there. To which end it has been held, that a church warden may justify the pulling off a man's hat, without being guilty of either an assault or trespass. There are also a multitude of other petty parochial powers committed to their charge by several acts of parliament.
Parish clerks and sextons are also regarded by the common law as persons who have freeholds in their offices; and therefore, though they may be punished, yet they cannot be deprived, by ecclesiastical censures. Formerly the parish clerk was frequently in holy orders, and some are so to this day. He is generally appointed by the incumbent, but by custom may be chosen by the inhabitants; and if such custom appears, the court of king's
bench will grant a mandamus to the archdeacon to swear him in, for the establishment of the custom turns it into a temporal or civil right.*
RELATIONS IN PRIVATE LIFE.
The principal relations in private life consist of, I. Husband and wife; II. Parent and child; III. Guardian and ward; IV. Master and servant.
I. HUSBAND AND WIFE.—That the holy estate of matrimony was instituted by God himself, is evident from the two first chapters in the Bible. Man was created on the sixth day in the image of God; or as the apostle explains these words, in “ righteousness and true holiness,”ť and “ renewed in knowledge, after the image of him that created him." i Immediately after the creation, and as it would appear, on the same day, God who alone could confer it, gave him dominion over every living creature, and over all the earth, commanding him to subdue it, and to increase and multiply in it. But for Adam there was not a help, meet for him. God took one of Adam's ribs and made of it a woman, which is an evident token of her natural dependance and subjection to him. Her Creator brought her unto Adam, a just precedent for the universal practice of the woman's father or nearest of kin giving her away. It is also another symptom of her natural inferiority. On this occasion Adam exercised his right of sovereignty, by naming her both Eve and woman, because she was bone of his bone, and flesh of his flesh. In virtue of his universal dominion and sovereignty, he enacted that statute, which has ever since. been recognized and obeyed in all countries both civilized and barbarous : “ Therefore shall a man leave his father and his mother, and shall cleave unto his wife, and they shall be one flesh."$ This statute was confirmed by our blessed Lord, repeating the identical words.// After the unfortunate transaction between Eve and the serpent, the Almighty again renewed Adam's charter. 66 Unto the woman he said, I will greatly multiply thy sorrow and thy conception : in sorrow thou shalt bring forth children, and thy desire shall be to thy husband, and he shall rule over thee." This divine institution has accordingly been observed in every country, and in every country there has been some religious way of entering into this holy estate. The church of Scotland acknowledges that " riage was ordained for the mutual help of husband and wife; for the increase of mankind with a legitimate issue, and of the church with an holy seed ; and for preventing of uncleanness.”'T And the church of
* Blackstone's Commentaries, with Professor Christian's Notes.--Burns' Ecclesiastical Law.-Gibson's Coder.—Tomline's Law Dict.-Bell's ditto. Eph. iv. 24. Col. iji. 10.
Gen. ii. 24. | Matth. xix. 5. Nark x. 7. « Confession of Faith, xxiv. soc. 2. Eph. v.31,