« AnteriorContinuar »
some other clergyman to perform it for him. It is done by giving the clerk possession of the church, as by holding the ring of the door, tolling the 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 impersonate, or parson imparsonee."1
The method of appointing to churches by collation, here mentioned by Blackstone, is the most ancient of all; for in the earliest times of the Christian church the bishop conferred all ecclesiastical offices, whether they consisted in a dignity with revenues attached to the title, or simply in a function with or without revenues. And the bishop even appointed the abbots of the regular clergy, on their election by the monks. The bishops, however, performed this, as well as other important parts of their functions, with the advice of their clergy, and sought the assent of the people; because they were thought to be more likely to obey those whose appointment they had approved.2 We must, however, observe, as to the share of the people in the appointment of their pastors, that when the numbers of the Christians became very great, serious inconveniences ensued therefrom, and it was consequently laid aside. Besides, there is nothing to shew any right of election in the people, though their approval was sought for the sake of peace. The canons of cathedrals, who, as we have seen, assumed about the twelfth century the func
1 Co. Litt . 300. Blackst. Com. b. i. c. xi. p. 387-390.
tions of the sole ordinary council of the bishop, to which they seemed entitled as the representatives of the primitive societies, or communities of the bishop and his clergy, claimed a right to participate in the appointment of all benefices in his gift Afterwards, the ecclesiastical patronage of the sees was divided between the bishops and their chapters. The result of that division, which was different in different places, is still to be seen. But by the canon-law, the bishop is the ordinary patron of all secular benefices, as contradistinguished from regular benefices, such as abbeys or priories of the monastic orders.1 y As for the right of patronage of churches, or advowson, as it is called in our law, it first arose from the gratitude of the church towards founders. Certain honorary privileges were allowed to founders of churches in very ancient times, such as inscriptions to their honour; and the churches which they founded were, at the beginning of the fifth century, even sometimes named after them,2 though the terms patron, and right of patronage, were not known before the thirteenth century.5 The time when founders first acquired the right of nominating to benefices is doubtful, but that privilege seems to date from the fourth, or the beginning of the fifth century.4 There are, however, more ancient proofs of its existence in the eastern than in the western church; as, for example, the instance of the empress Eudoxa, widow of the emperor Theodosius the younger, who died in 450. She herself chose the priests who were to govern the churches which she had built in Palestine.5 The right of presentation was at first
1 Fleury, Inst, au Dr. Eccl., tom. i. c. xv. p. 861. : Ibid. tom. i. c. xvi. p. 872. Van Espen, tom. iii. par. ii. tit. viii. c i. § 5.
3 Van Espen, ibid. $ 2. * Van Espen, ibid. § 6, &c.
'Hericourt, L. Eccles. f. vii. p. 489.
confined to the founder himself; but it was afterwards extended to his descendants, as we see in the 123d Novel of Justinian, c. xviii.;1 and this was the beginning of rights of patronage, or advowson.
The rights of patrons do not in all cases exclude the ordinary collator; for if the patron neglects to present -within six months, the patronage in general falls by lapse or devolution to the bishop.2
As for the duties of a parson or vicar, they are more matter of theological, or purely ecclesiastical, than of legal learning, except so far as they are defined by statute. And the chief article of the duty laid on the beneficed clergy by statute is residence, upon the supposition of which the law styles every parochial minister an incumbent. And on this head, a new code of regulations has been introduced by stat. 1 and 2 Vict. c. cvi. That statute enacts, that every spiritual person shall keep residence on his benefice, and in the house of residence, if any; and that if any such person shall, without license, absent himself for any period exceeding three months, or to be accounted at several times in any one year, he shall, when such absence shall exceed three months, and not exceed six months, forfeit one third of the annual value of the benefice; and when such absence shall exceed six months, and not exceed eight months, one half of such annual value; and thus according to the length of absence. The bishop, however, is empowered, where the usual residence of the benefice is unfit, to grant a license for the incumbent to reside in another. The heads of colleges in either
1 As to the right of founders of monasteries, hospitals, &c., to appoint administrators, priests, governors, &c., see L. 46, Cod. de sacros. Eccles., and Novel 57, c. ii
1 A right of advowson was subject to no limitation until the statute 3 and 4 W. IV. c. xxvii.
university, the warden of Durham, and the head masters of Eton, Winchester, and Westminster schools, are dispensed from residence on their benefices, provided they have but one with cure of souls, and were appointed before the passing of the act. Certain other persons, such as deans, professors in the universities, the queen's chaplains, and others, are allowed to be temporarily non-resident . And the bishops are authorised to grant licenses for nonresidence in certain cases, under particular regulations. If no license be granted, residence may be enforced by monition, followed by sequestration of the living. And the act contains various provisions for building and improving houses of residence.1
We have seen that there is but one way whereby a man may become a parson or vicar: there are many ways by which he may cease to be so. 1. By death. 2. By cession, or taking another benefice; for by stat. 1 and 2 Vict . c. cvi., not more than two preferments can be held together; and no two benefices with cure of souls, unless within ten miles of each other; or if the population of one such benefice is more than 3,000, or the joint yearly value shall exceed 1,000/.; and even in the cases where the act allows two preferments or benefices to be held together, a dispensation must be obtained for that purpose from the archbishop of Canterbury. By accepting of any preferment or benefice contrary to the act, the former preferment or benefice is vacated. 3. By consecration; for as it has been already mentioned, when a clerk is promoted to a bishopric, all his other preferments are void the in
1 And see stat. 17 Geo. III. c. Mii. for raising money upon ecclesiastical benefices, to be paid off by instalments annually decreasing, and to be expended in building and repairing residence-bouses. And stat . 55 Geo. III. c . cxlvii., authorising exchanges of glebe-lands with parishioners.
stant he is consecrated.1 4. By resignation duly accepted by the ordinary.1 5. By deprivation, by sentence of the ecclesiastical judge, or ipso facto by virtue of divers penal statutes which declare the benefice void for some nonfesance or neglect, or else some malfesance or crime.
A curate is the lowest degree among the beneficed clergy considered as such, being in the same state that a vicar was formerly,—an officiating temporary minister, instead of the proper incumbent. Though there are what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, being for some particular reasons3 exempted from the statute of Hen. IV., but instead thereof, such perpetual curate is appointed 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 ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor, within fourteen days after he takes possession.4 And by statute 1 and 2 Vict, c. cvi., the bishop is empowered to appoint a stipend to every curate of a non-resident incumbent, and to regulate it according to the duty which such curate has to perform. And in large benefices the bishop may require an assistant curate to be appointed, but the incumbent may appeal to the archbishop; and the bishop may also, subject to the same appeal, appoint a curate wherever the duty of the curate appointed by the incumbent is inadequately performed. The act also enforces the residence of curates.
We come now to certain inferior ecclesiastical officers,
1 The holding livings in commendam with a bishopric is abolished by stat. 6 and 7 W. IV. c. lxxvii. § 18.
» Cro. Jac. 198. 3 Burn, Eccl. Law, 427.
* Stat. 28 Hen. VIII. c. xi.