*nomination shall devolve to the king, who may by letters patent ap[*380] point such person as he pleases. This election or nomination, if it be of a bishop, must be signified by the king's letters patent to the archbishop of the province; if it be of an archbishop, to the other archbishop and two bishops, or to four bishops; requiring them to confirm, invest, and consecrate the person so elected: which they are bound to perform immediately, without any application to the see of Rome. After which the bishop elect shall sue to the king for his temporalties, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king's hands only. And if such dean and chapter do not elect in the manner by this act appointed, or if such archbishop or bishop do refuse to confirm, invest, and consecrate such bishop elect, they shall incur all the penalties of a pramunire. (5)

An archbishop is the chief of the clergy in a whole province; (6) and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause. (r) The archbishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province he exercises archiepiscopal. As archbishop he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation: but, without the king's writ, he cannot assemble them. (s) To him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his archiepiscopal court. During the vacancy of any see in his province, he is guardian of the spiritualities thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction therein. If an archiepiscopal see be vacant, the dean and chapter are the spiritual guardians, ever since the office of prior of Canterbury was abolished at the reformation. (t) The archbishop is entitled to present by lapse to all the ecclesiastical livings in the disposal of his *diocesan bishops, if not filled within six months. And the archbishop [*381] has a customary prerogative, when a bishop is consecrated by him, to name a clerk or chaplain of his own to be provided for by such suffragan bishop; in lieu of which it is now usual for the bishop to make over by deed to the archbishop, his executors and assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as the archbishop himself shall choose; which is therefore called his option: (u) which options are only binding on the bishop himself who grants them, and not on his successor. (7) The prerogative itself seems to be derived from the legatine power formerly annexed by the popes to the metropolitan of Canterbury. (w) And we may add, that the papal claim itself (like most others of that encroaching see) was probably set up in imitation of the imperial prerogative called primæ or primariæ preces; whereby the emperor exercises, and hath immemorially exercised, (x) a right of naming to the first prebend that becomes vacant after his accession in every church of the empire. (y) A right that was also exercised by the crown of Eng

r) Lord Raym. 541. (t) 2 Roll. Abr. 22. (2) Goldast Constit.

(8) 4 Inst. 322,323.

(w) Sherlock of Options, 1. (y) Dufresne V. 806. Mod. Univ. Hist. xxix. 5.

(u) Cowell's Interp. tit. option. Imper. tom. 3, page 406.

(5) [In Reg. v. Archbishop of Canterbury, 11 Q. B. 483, the question whether, under the above statute, it is imperative on the metropolitan to confirm the bishop designate without taking notice of objections put forward thereto, was discussed on an application for a mandamus, but the court being equally divided, no order was made.]

(6) [The archbishop of Canterbury hath the precedency of all the clergy; next to him the archbishop of York; next to him the bishop of London; next to him the bishop of Durham; next to him the bishop of Winchester; and then all the other bishops of both provinces after the seniority of their consecration; but if any of them be a privy councillor he takes place after the bishop of Durham. Stat. 31 Hen. VIII, c. 10; Co. Litt. 94.]

(7) [Options seem however to have been abolished, perhaps undesignedly, by statutes 3 and 4 Vic. c. 113, s. 42, which enacts that "it shall not be lawful for any spiritual person to sell or assign any patronage or presentation belonging to him by virtue of any dignity or spiritual office held by him, and that every such sale or assignment shall be null and void to all intents and purpose."]

land in the reign of Edward I; (2) and which probably gave rise to the royal corodies which were mentioned in a former chapter.(a) It is likewise the privilege, by custom, of the archbishop of Canterbury, to crown the kings and queens of this kingdom. And he hath also, by the statute 25 Hen. VIII, c. 21, the power of granting dispensations in any case, not contrary to the holy scriptures and the law of God, where the pope used formerly to grant them: which is the foundation of his granting special licenses, to marry at any place or time, to hold two livings, (8) and the like; and on this also is founded the right he exercises of conferring degrees,(9) in prejudice of the two universities.(b)

*The power and authority of a bishop, besides the administration of certain holy ordinances peculiar to that sacred order, consist principally [*382] in inspecting the manners of the people and clergy, and punishing them in order to reformation, by ecclesiastical censures.(10) To this purpose he has several courts under him, and may visit at pleasure every part of his diocese. His chancellor is appointed to hold his courts for him, and to assist him in matters of ecclesiastical law; (11) who, as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some university.(c) It is also the business of a bishop to institute, and to direct induction, to all ecclesiastical livings in his diocese.

Archbishopricks and bishopricks may become void by death, deprivation for any very gross and notorious crime, and also by resignation. All resignations must be made to some superior.(d) Therefore a bishop must resign to his metropolitan; but the archbishop can resign to none but the king himself.

II. A dean and chapter are the council of the bishop, to assist him with their advice in affairs of religion, and also in the temporal concerns of his see.(e) When the rest of the clergy were settled in the several parishes of each diocese, as hath formerly (ƒ) been mentioned, these were reserved for the celebration of divine service in the bishop's own cathedral; and the chief of them, who presided over the rest, obtained the name of decanus or dean, being probably at first appointed to superintend ten canons or prebendaries.

All ancient deans are elected by the chapter, by conge d' eslire from the king, and letters missive of recommendation; in the same manner as bishops: (12) but in those chapters, that were founded by Henry VIII out of the spoils of the dissolved monasteries, the deanery is donative, and the installation*merely [*383] by the king's letters patent.(g) The chapter, consisting of canons or prebendaries, are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each other.

The dean and chapter are, as was before observed, the nominal electors of a bishop. The bishop is their ordinary and immediate superior; and has, generally speaking, the power of visiting them, and correcting their excesses and enormities. They had also a check on the bishop at common law; for till the

(z) Rex, fc., salutem. Scribatis Episcopo Karl quod-Roberto de Icard pensionem suam, quam ad preces regis prædicto Roberto concessit, de cætero solvat; et de proxima ecclesia vacatura de collatione prædicti episcopi, quam ipse Robertus acceptaverit, respiciat. Brev. 11 Edw. I. 3 Pryn. 1264. (a) Ch. viii, page 284. (b) See the bishop of Chester's case. Óxon, 1721. (c) Stat. 37. Hen. VIII, c. 17. (d) Gibs. Cod. 822. (e) 3 Rep. 75. Co. Lit. 103, 300. (f) Page 113, 114.

(8) [Now regulated by statute 1 and 2 Vic. c. 106, ss. 5-7.]

(g) Gibs. Cod. 173.

(9) [But although the archbishop can confer all the degrees which are taken in the universities, yet the graduates of the two universities, by various acts of parliament and other regulations, are entitled to many privileges which are not extended to what is called a Lambeth degree; as, for instance, those degrees which are a qualification for a dispensation to hold two livings are confined by 21 Hen. VIII, c. 13, s. 23, to the two universities.]

(10) For proceedings by the bishop in the case of clergymen charged with offiences against the laws ecclesiastical, or concerning whom there may exist scandal or evil report, see 3 and 4 Vic. c. 86.

(11) [Besides his chancellor, the bishop has his archdeacon, dean and chapter, and vicar general to assist him. Every bishop may retain four chaplains. 21 Hen. VIII, c. 13, s. 16; 8 Eliz. c. 1.]

(12) [The ancient deaneries are now, however, by statutes 3 and 4 Vic. c. 113, s. 24, in the direct patronage of the queen, who appoints thereto by letters patent.]

statute 32 Hen. VIII, c. 28, his grant or lease would not have bound his successors, unless confirmed by the dean and chapter.(h)

Deaneries and prebends may become void, like a bishoprick, by death, by deprivation, or by resignation to either the king or the bishop.(i) Also I may here mention, once for all, that if a dean, prebendary, or other spiritual person be made a bishop, all the preferments of which he was before possessed are void; and the king may present to them in right of his prerogative royal. But they are not void by the election, but only by the consecration.(j)

III. An archdeacon hath an ecclesiastical jurisdiction, immediately subordinate to the bishop, throughout the whole of his diocese, or in some particular part of it. (13) He is usually appointed by the bishop himself; and hath a kind of episcopal authority, originally derived from the bishop, but now independent and distinct from his.(k) He therefore visits the clergy; and has his separate court for punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical cognizance.

IV. The rural deans are very ancient officers of the church,(?) but almost grown out of use; though their deaneries still subsist as an ecclesiastical division of the diocese, or archdeaconry. They seem to have been deputies of the [*384] *bishop, planted all round his diocese, the better to inspect the conduct of the parochial clergy, to inquire into and report dilapidations, and to examine the candidates for confirmation; and armed, in minuter matters, with an inferior degree of judicial and coercive authority.(m) (14)

V. The next, and indeed the most numerous, order of men in the system of ecclesastical polity, are the parsons and vicars of churches: in treating of whom I shall first mark out the distinction between them; shall next observe the method by which one may become a parson or vicar; shall then briefly touch upon their rights and duties; and shall, lastly, shew how one may cease to be either.

A parson, persona ecclesiæ, is one that hath full possession of all the rights of a parochial church. He is called parson, persona, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church, which he personates, by a perpetual succession.(n) He is sometimes called the rector, or governor, of the church: but the appellation of parson, however it may be depreciated by familiar, clownish, and indiscriminate use, is the most legal, most beneficial, and most honorable title that a parish priest can enjoy; because such a one, Sir Edward Coke observes, and he only is said vicem seu personam ecclesiæ gerere. A parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. But these are sometimes appropriated; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; which the law esteems equally capable of providing for the service of the church, as any single private clergyman. This contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtle inventions for the increase of their own power and emoluments. At the first establishment of parochial clergy, the tithes of the parish were distributed in a

(h) Co. Lit. 103.

(i) Plowd. 498.

(j) Bro. Abr. t. presentation, 3, 61. Cro. Eliz. 542, 790. 2 Roll. Abr. 352. 4 Mod. 200. Salk. 137.
(k) 1 Burn. Eccl. Law, 68, 69. (7) Kennet, Par. Antiq. 633. (m) Gibs. Cod. 972, 1550.
(n) Co. Litt. 300.

(13) If an archdeaconry be in the gift of a layman, the patron presents to the bishop, who institutes in like manner as to another benefice, and then the dean and chapter induct him; that is, after some ceremonies, place him in a stall in the cathedral church to which he belongs, whereby he is said to have a place in the choir. Wats. c. 15.

An archdeacon is a ministerial officer, and cannot refuse to swear a churchwarden elected by the parish. Lord Ray. 138.]

(14) [But this office, decanus ruralis, is wholly extinguished, if it ever had separate existence; and now the archdeacon, and chancellor of the diocese, execute the authority formerly attached to it.]

fourfold division: one, for the use of the bishop; another, for maintaining *the fabric of the church; a third, for the poor; and the fourth, to pro[*385] vide for the incumbent. When the sees of the bishops became otherwise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. And hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest; and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety,) subject to the burthen of repairing the church and providing for its constant supply. And therefore they begged and bought, for masses and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. But, in order to complete such appropriation effectually the king's license, and consent of the bishop, must first be obtained: because both the king and the bishop may some time or other have an interest, by lapse, in the presentation to the benefice; which can never happen if it be appropriated to the use of a corporation, which never dies and also because the law reposes a confidence in them, that they will not consent to any thing that shall be to the prejudice of the church. The consent of the patron also is necessarily implied, because, as was before observed, the appropriation can be originally made to none, but to such spiritual corporation as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the service of the church. (0) When the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church; and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons.(?)

:

This appropriation may be severed, and the church become disappropriate, two ways: as, first, if the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage; for the incumbent so instituted and inducted is to all intents and purposes complete parson; and the [*386] appropriation, being once severed, can never be re-united again, unless by a repetition of the same solemnities. (q) And, when the clerk, so presented, is distinct from the vicar, the rectory thus vested in him becomes what is called a sinecure; because he hath no cure of souls, having a vicar under him to whom that cure is committed. (r) Also, if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law; because the perpetuity of person is gone, which is necessary to support the appropriation. In this manner, and subject to these conditions, may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religous houses, nay even to nunneries, and certain military orders, all of which were spiritual corporations. At the dissolution of monasteries by statutes 27 Hen. VIII, c. 28, and 31 Hen. VIII, c. 13, the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in England) (s) would have been by the rules of the common law disappropriated, had not a clause in those statutes intervened, to give them to the king in as ample a manner as the abbots, &c., formerly held the same, at the time of their dissolution. This, though perhaps scarcely defensible, was not without example; for the same was done in former reigns, when the alien priories, that is, such as were filled by foreigners only, were dissolved and given to the crown. (t) And from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown. (u)

(0) Plowd, 496-500.

(p) Hob. 307.

(g) Co. Litt. 46.

(r) Sinecures might also be created by other means. 2 Burn's Eccl. Law, 347.

(s) Seld. Review of Tith. c. 9; Spelm. Apology, 35.

(t) 2 Inst. 584.

(u) Sir H. Spelman (of tithes, c. 29,) says, these are now called impropriations, as being improperly in the lands of laymen.

*These appropriating corporations, or religious houses, were wont to [ *387] depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. This officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called vicarius, or vicar. His stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, qui illi de temporalibus, episcopo de spiritualibus, debeat respondere. (w) But this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute 15 Ric. II, c. 6, that in all appropriations of churches, the diocesan bishop shall ordain, in proportion to the value of the church, a competent sum to be distributed among the poor parishioners anually: and that the vicarage shall be sufficiently endowed. It seems the parishes were frequently sufferers, not only by the want of divine service, but also by withholding those alms, for which, among other purposes, the payment of tithes was originally imposed: and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. But he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore, by statute, 4 Hen. IV, c. 12, it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removable at the caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes; to do divine service, to inform the people, and to keep hospitality. The endowments in consequence of these statutes have usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share of the tithes, which the appropriators found it most troublesome to collect, and which are *therefore generally called privy or small tithes; [*388] the greater, or predial, tithes being still reserved to their own use. But one and the same rule was not observed in the endowment of all vicarages. Hence some are more liberally, and some more scantily, endowed; and hence the tithes of many things, as wood in particular, are in some parishes rectorial, and in some vicarial tithes.

The distinction therefore of a parson and 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. (15) Though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute 29 Car. II, c. 8, enacted in favour of poor vicars and curates, which rendered such temporary augmentations, when made by the appropriators, perpetual. (16)

The method of becoming a parson or vicar is much the same. To both there are four requisites necessary; holy orders, presentation, institution, and induction. The method of conferring the holy orders of deacon and priest, according to the liturgy and canons, (x) is foreign to the purpose of these Commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. By common law, a deacon of any age might be instituted and inducted to a parsonage or vicarage; but it was ordained by statute 13 Eliz. c. 12, that no

(15) The law upon the subject of this and the preceding paragraph has been greatly changed by a series of statutes which are collected in Cripp's Law of Church and Clergy, 4th ed. vol. 3, c. 1.

(16) A radical change in the law of tithes was introduced by statutes 6 and 7 William IV, c. 71, the purpose of which was to commute this vexatious and irritating burden into a rent charge, adjusted to the average price f corn. The commutation, if not made voluntarily, might be compulsory, under the direction of tite commissioners.