Friday, May 30, 2008

Blackstone ss40

"Section 40. Part 2 of Chapter 11 of the Commentaries on the Laws of England, Book 1. - This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information, or to volunteer, please visit: librivox DOT org" "Recording by [your name]" "Commentaries on the Laws of England by William Blackstone (pronounced "Blexstun"), book 1. Chapter 11, Part 2"

V. The next, and indeed the most numerous order of men
in the system of ecclesiastical polity, are the parsons and vicars of
parishes: 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 ecclesiae, 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
honourable title that a parish priest can enjoy; because such a
one, (sir Edward Coke observes) and he only, is said vicem seu
personam ecclesiae 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; whom
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 fourfold division;
one for the use of the bishop, another for maintaining
the fabrick of the church, a third for the poor, and the fourth
to provide 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 it's constant supply. And
therefore they begged and bought, for masses and obits, and some-*times
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
licence, and consent of the bishop, must first be obtained; because
both the king and the bishop may sometime 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[o]. 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[p].

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 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 sine-cure; 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, religious 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].

These appropriating corporations, or religious houses, were
wont to 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 annually; and that the
vicarage shall be sufficiently endowed. It seems the parish 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 removeable
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, small, or vicarial, tithes; the
greater, or predial, tithes being still referred 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 many things, as wood in particular,
is in some countries a rectorial, and in some a vicarial

The distinction therefore of a parson and vicar is this; that
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. 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.

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 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; and then he is, in the language of the law, a clerk in
orders. 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. 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, 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 knowlege of it; else he cannot present by lapse:
but if the cause be temporal, there he is not bound to give

If an action at law be brought by the patron 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, (as,
for instance, outlawry) the judges of the king's courts must determine
it's 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 it's 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
statute 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 shall write to the metropolitan,
to reexamine him, and certify his qualifications; which
certificate of the arch-bishop 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, an oath
of perpetual residence; 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 mischiefs which they
were appointed 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 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 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 any action for them, till induction.

Induction is performed by a mandate from the bishop to
the arch-deacon, 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].

The rights of a parson or vicar, in his tithes and ecclesiastical
dues, fall more properly under the second book of these commentaries:
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 enquiries, but for the rest I must refer myself to such authors
as have compiled treatises expressly upon this subject[l]. I shall
only just mention the article of residence, upon the supposition of
which the law doth stile every parochial minister an incumbent.
By statute 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
houshold of such as retain them: and also except[n] all heads of
houses, magistrates, and professors in the universities, and all students
under forty years of age residing there, bona fide, for study.
Legal residence is not only in the parish, but also in the parsonage
house: 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.

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, in the king's
books, (according to the present valuation[p],) accepts any other,
the first shall be adjudged void; unless he obtains a dispensation;
which no one is entitled to have, but the chaplains of the king
and others therein mentioned, the brethren and sons of lords and
knights, and doctors and bachelors of divinity and law, admitted
by the universities
of this realm. And a vacancy thus made, for
want of a dispensation, is called cession. 3. By consecration; for,
as was mentioned before, when a clerk is promoted to a bishoprick,
all his other preferments are void the instant that he is con-
secrated. But there is a method, by the favour of the crown, of
holding such livings 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. 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 clerk[q]. 4. By
resignation. But this is of no avail, till accepted by the ordinary;
into whose hands the resignation must be made[r]. 5. By deprivation,
either by canonical censures, of which I am not to speak; or
in pursuance of divers penal statutes, which declare the benefice
void, for some nonfeasance or neglect, or else some malefeasance
or crime. As, for simony[s]; for maintaining any doctrine in derogation
of the king's supremacy, or of the thirty nine articles, or
of the book of common-prayer[t]; for neglecting after institution
to read the articles in the church, or make the declarations against
popery, or take the abjuration oath[u]; for using any other form
of prayer than the liturgy of the church of England[w]; 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[x]; in all which and similar cases[y] the benefice
is ipso facto void, without any formal sentence of deprivation.

VI. A curate is the lowest degree in the church; being
in the same state that a vicar was formerly, an officiating temporary
minister, instead of the real incumbent. Though there
are what are called perpetual curacies, where all the tithes are
appropriated, and no vicarage endowed, (being for some particular
reasons[z] 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
it's 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[a]: and that, if any rector or vicar nominates a curate
to the ordinary to be licenced, the ordinary shall settle his stipend
under his hand and seal, not exceeding 50l. per annum, nor less
than 20l. and on failure of payment may sequester the profits of
the benefice[b].

Thus much of the clergy, properly so called. There are also
certain inferior ecclesiastical officers of whom the common law
takes notice; and that, principally, to assist the ecclesiastical jurisdiction,
where it is deficient in powers. On which officers I
shall make a few cursory remarks.

VII. Churchwardens are the guardians or keepers of
the church, and representatives of the body of the parish[c]. They
are sometimes appointed by the minister, sometimes by the parish,
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 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
put in their place. As to lands, or other real property, as the
church, church-yard, &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[d] a shilling forfeiture on all such as do not repair to church
on sundays and holidays, and are empowered to keep all persons
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 assault or trespass[e]. There are also a multitude
of other petty parochial powers committed to their charge
by divers acts of parliament[f].

VIII. 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[g]. The parish clerk was formerly
always 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 arch-deacon to swear
him in, for the establishment of the custom turns it into a
temporal or civil right[h].

End of section 40