were appointed to remedy: efpecially as, if any profits are to arife from putting in a curate and living at a distance from the pari, the appropriator, who is the real parfon, has undoubtedly the elder title to them. When the ordinary is alfo the patron, and confers the living, the prefentation and inftitution are one and the fame act, and are called a collation to a benefice. By inftitution or collation the church is full, so that there can be no fresh prefentation 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 presentation, the crown may revoke it before induction, and present another clerk1. Upon institution alfo the clerk may enter on the parfonage house 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 spiritual, And when a clerk is thus prefented, inftituted, 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 these commentaries: and as to his duties, they are principally of ecclefiaftical cognizance; thofe only excepted which are laid upon him by ftatute. And thofe are indeed fo numerous, that it is impracticable to recite them here with any tolerable concifenefs or accuracy. Some of them we may remark, as they arise in the progress of

our

i Co. Litt. 344.

k Ibid. 300.

our enquiries, but for the reft I must refer myself to fuch authors as have compiled treatifes exprefsly upon this fubject'. I shall only just mention the article of refidence, upon the fuppofition of which the law doth ftile every parochial minifter as incumbent. By statute 21 Hen. VIII. c. 13, persons wilfully absenting themfelves from their benefices, for one month together, or two months in the year, incur a penalty of 51. to the king, and 57. to any person that will fue for the fame: except chaplains to the king, or others therein mentioned ", during their attendance in the houshold of such as retain them; and also except all heads of houses, magiftrates, and profeffors in the universities, and all ftudents under forty years of age refiding there, bona fide, for fudy. Legal refidence is not only in the parifh, but alfo in the parfonage house: for it hath been refolved, that the ftatute intended refidence, not only for ferving the cure, and for hofpitality; but also for maintaining the house, that the fucceffor alsq may keep hofpitality there.

WE have seen 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 81. per annum, or upwards, in the king's books, (according to the present valuation ",) accepts any other, the first shall be adjudged void, unless he obtains a dispensation; which no one is intitled to have, but the chaplains of the king and others therein mentioned, the brethren and fons of lords and knights, and doctors and bachelors of divinity and law, admitted by the univerfities of this realm. And a vacancy thus made, for want of a dispensation, is called ceffion. 3. By confecration; for, as was mentioned before, when a clerk is promoted to a bishop

rick, all his other preferments are void the inftant that he is confecrated. But there is a method, by the favour of the crown, of holding such livings in commendam. Commenda, or ecclefia com mendata, 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 difpenfation to avoid the vacancy of the living, and is called a commenda retinere. There is alfo a commenda recipere, which is to take a benefice de novo, in the bishop's own gift, or the gift of fome other patron confenting to the fame; and this is the fame to him as inftitution and induction are to another clerk. 4. By refignation. But this is of no avail, till accepted by the ordinary; into whofe hands the refignation must be made. 5. By deprivation, either by canonical cenfures, of which I am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for fome nonfeafance or neglect, or else some malefeasance or crime. As, for fimony'; for main, taining any doctrine in derogation of the king's fupremacy, or of the thirty nine articles, or of the book of common-prayer'; for neglecting after inftitution to read the 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 popifh patron, to which the clerk was presented by either of the universities; in all which and fimilar cafes the benefice is ipfo facto void, without formal fentence of deprivation,

any

VI. A CURATE is the lowest degree in the church; being in the fame state that a vicar was formerly, an officiating temporary minister, inftead of the proper incumbent. Though there

394 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 such as serve 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 licenced, the ordinary fhall fettle his ftipened 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,

THUS much of the clergy, properly fo called. There are alfo certain inferior ecclefiaftical officers of whom the common law takes notice; and that, principally, to affift the ecclefiaftical jurifdiction, where it is deficient in powers, On which officers 1 fhall make a few curfory remarks,

VII. CHURCH WARDENS are the guardians or keepers of the church, and representatives of the body of the parish. They are fometimes appointed by the minifter, fometimes by the parish, fometimes by both together, as cuftom directs, They are taken, in favour of the church, to be for fome 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 ufe 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 the common law : but there is no method of calling them to account, but by first removing them; for none can legally do it, but those who are

z Burn. eccl. law. 417.

a Stat. 18 Hen. VIII. c. II.

b Stat. 12 Ann. ft. 2. c. 12.

put

c In Sweden they have Gmilar officers, whom they call kiorckio wariandes. Stiernhock. 1. 3. . 7.

put in their place. As to lands, or other real property, as the church, church-yard, &c. they have no fort of intereft therein; but if any damage is done thereto, the parfon only or vicar shall have the action. Their office alfo is to repair the church, and make rates and levies for that purpose: but these are recoverable only in the ecclefiaftical court. They are alfo joined with the overfeers in the care and maintenance of the poor. They are to levy a fhilling forfeiture on all such as do not repair to church on fundays and holidays, and are empowered to keep all perfons orderly while there; to which end it has been held that a churchwarden may justify the pulling off a man's hat, without being guilty of either an affault or trefpafs. There are also a multitude of other petty parochial powers committed to their charge by divers acts of parliament'.

VIII. PARISH clerks and fextons are alfo regarded by the common law, as perfons who have freeholds in their offices; and therefore though they may be punished, yet they cannot be de prived, by ecclefiaftical cenfures. The parish clerk was formerly very frequently in holy orders; and fome are fo to this day. He is generally appointed by the incumbent, but by custom may be chofen by the inhabitants; and if fuch cuftom appears, the court of king's bench will grant a mandamus to the arch-deacon to fwear him in, for the establishment of the custom turns it into a temporal or civil right".

Bbb 2

f See Lambard of churchwardens, at the