vicarage; but it was ordained by statute 13 Eliz. c. 12, thať 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 (30); and then he is, in the language of the law, a clerk in orders. [*389] 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) 40l., and the person receiving 10l., and is incapable of any ecclesiastical preferment for seven years afterwards.

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 (31). 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 (32), 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 knowledge of it, else he cannot present by lapse; but, if the cause be temporal, there he is not bound to give notice (e).

*If an action at law be brought by the patron against the [ *390 ] bishop for refusing his clerk, the bishop must assign 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 must determine its 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 heresy, particularly alleged), the fact, if denied, shall 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 its sufficiency (f). 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 (g): for the stat. 9 Edw. II. st. 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 unfit; therefore, if the bishop returns the clerk to be minus sufficiens in literatura, the court

Institution.

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, but admits the patron's presentation, the clerk 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 parish is committed to the charge of the clerk. When a vicar is instituted, he, besides the usual forms, takes, if required by the bishop (33), an oath of perpetual residence (34); 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 [*391] *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 parson, has undoubtedly the elder title to them. When the ordinary is also the patron, and con-fers 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 glebe, and take the tithes; but he cannot grant or let them, or bring an action for them, till induction.

Collation.

Induction is performed by a mandate from the bishop to the archdeacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession 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 persona impersonata, or parson imparsonee (k) (35).

of a parson or

vicar.

The rights of a parson or vicar, in his tithes and ecclesias- Rights and duties tical dues, fall more properly under the second book of these Commentaries (36): 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 so numerous, that it is impracticable to recite them here with any tolerable conciseness or accuracy. Some of them we may remark, as they *arise in the progress of our inquiries; but for the rest I (*392] must refer myself to such authors as have compiled treatises expressly upon this subject (l). I shall only just mention the article of residence (37), upon the supposition of which the Residence. law doth style every parochial minister an incumbent. By stat. 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 5l. to the king, and 5l. to any person that will sue for the same, except chaplains to the king, or others therein mentioned (m), during their attendance in the household of such as retain them (38): and also except (n) all heads of houses, magistrates (39), and pro

fessors in the universities, and all students under forty years of age residing there, bondt fide, for study. Legal residence is not only in the parish, but also in the parsonage house, if there be one: for it hath been resolved (o), that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there: and, if there be no parsonage house, it hath been holden that the incumbent is bound to hire one, in the same or some neighbouring parish, 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 ecclesiastical benefices, to be paid off by annually decreasing instalments, and to be expended in rebuilding or repairing the houses belonging 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 so. 1. By death. 2. By cession, in taking another benefice. For, by statute 21 Hen. VIII. c. 13, if any one having a benefice of 8l. per annum, 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 (40), which no one is entitled to have, but the chaplains (41) of the king and others therein mentioned, the