there be one: for it hath been resolved, 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 (31), 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 belong ing to such benefices (32).

0 6 Rep. 21.

(31) It has been decided, by the court of king's bench, that even where there is no parsonage-house, the incumbent is bound to reside within the parish. Cowp. 429. If a clergyman had one benefice with a parsonage-house, and another benefice without a house, the Editor conceives that he is not bound to reside in that parish in which there is a house, for more important duties may impel him to reside within the parish where there is no house; and that such residence would exempt him from the penalties of the statute. But where the archdeacon of St. Alban's had the living of Bushey within his archdeaconry, to which living there is a parsonage-house belonging, and he resided in the parish of Bushey, but not in the parsonage-house; it was held by the court of king's bench, that he was subject to the penalties of non-residence, though he was living within the limits of his archdeaconry, to which dignity there is no house appurtenant. 5 Burr. 2722. If then the Editor's opinion be well-founded, the decision must have been different, if he had resided in any other part of his archdeaconry out of the parish of Bushey. (32) This act enables the incumbent, when there is no parsonagehouse, or where it is so ruinous as not to be repaired with one year's income of the living, to borrow, with the consent of the patron and ordinary, upon mortgage of the revenue of the living, a sum not exceed. ing two years clear value, to be laid out in repairs, building, or the

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 81. 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 (33), which no one is entip Cro. Car. 456.

And

purchase of a house. The interest of the money borrowed, is to be repaid by the incumbent yearly, and 5l. per cent. of the original sum ; or 10l. per cent. if he does not reside twenty weeks within a year. where the income is 1007. a year, and the incumbent does not reside twenty weeks within a year, the patron and the ordinary are empow. ered to undertake this without his consent. The governors of queen Anne's bounty may lend money upon such mortgages, at 41. per cent. interest; and 1007. upon a living under 401. a year without any interest. Colleges and other corporations may lend money for this purpose upon their own livings, without interest. For forms and mode of proceeding, consult the statute at large. It is very remarkable that, under this act, the money borrowed was directed to be discharged by paying 51. per cent. yearly upon the principal remaining due; the consequence was, that it would have been diminished by decreasing instalments, which would have produced an infinite series, or the whole could never have been paid. And it required another act, the 21 Geo. III. c. 66. which was passed merely for the purpose of correcting this palpable blunder, by which statute, the original sum must be paid, as stated, at the farthest, within twenty years.

(33) But both the livings must have cure of souls; and the statute expressly excepts deaneries, archdeaconries, chancellorships, treasurerships, chanterships, prebends, and sinecure rectories; a dispensation in this case can only be granted to hold one benefice more, except to clerks, who are of the privy council, who may hold three by dispensation. By the canon law, no person can hold a second incompatible benefice without a dispensation; and in that case, if the first is under 81. per annum, it is so far void that the patron may present another

tled to have, but the chaplains (34) of the king, and others therein mentioned, the brethren and sons of lords and

clerk, or the bishop may deprive; but till deprivation, no advantage can be taken by lapse. But independent of the statute, a clergyman by dis. pensations may hold any number of benefices, if they are all under 81. per annum, except the last, and then, by a dispensation under the statute, he may hold one more.

By the 41st canon of 1603, the two benefices must not be farther distant from each other than 30 miles, and the person obtaining the dispensation must at least be a master of arts in one of the universities. But the provisions of this canon are not enforced or regarded in the temporal courts. 2 Black. Rep. 968. See note 14. p. 83.

It had been doubted whether the statute 1 Geo. I. st. 2. c. 10. which enacts that all churches, curacies, and chapels augmented by queen Anne's bounty shall become perpetual cures and benefices, had thereby brought them under the statute of pluralities, so as to produce the avoidance of other livings. But to remove all doubts upon that subject the 36 Geo. III. c. 83. has declared that such augmented churches and chapels shall be considered as presentative benefices, and that the license to them shall render other livings voidable in the same manner as institution to presentative benefices: but that every clergyman should continue in quiet possession of any benefices which he held in conjunction with such augmented cures before the passing of that act, viz. 14th May 1796.

(34) The number of the chaplains of the king and royal family, who may have dispensations, is unlimited. An archbishop may have eight, a duke and bishop six, a marquis and earl five, a viscount four; the chancellor, a baron, and knight of the garter three; a dutchess, marchioness, countess, and baroness, being widows, two; the king's treasurer, comptroller, secretary, dean of the chapel, amner, and the master of the rolls, two; the chief justice of king's bench, and warden of cinque ports, one. These chaplains only can obtain a dispensation under the statute.

If one person has two or more of these titles or characters united in himself, he can only retain the number of chaplains limited to his highest degree; and if a nobleman retain his full number of chaplains, no one of them can be discharged, so that another shall be appointed in

knights (35), and doctors and bachelors of divinity and law (36), admitted by the universities of this realm. And a vacancy thus made, for want of a dispensation, is called ces

sion (37). 3. By consecration; for, as was mentioned [393] before, when a clerk is promoted to a bishoprick, all his other preferments are void the instant that he is consecrated. But there is a method, by the favor of the crown, of holding such livings in commendam. Commenda,

q page 383.

his room during his life. 4 Co. 90. The king may present his own chaplains, i. e. waiting chaplains in ordinary, to any number of livings in the gift of the crown, and even in addition to what they hold upon the presentation of a subject without dispensation: but a king's chaplain being beneficed by the king, cannot afterwards take a living from a subject, but by a dispensation according to the statute 21 Hen. VIII. c. 13. s. 29. 1 Salk. 161.

(35) This privilege is not enjoyed by the brother and son of a baronet, for the rank of baronet did not then exist.

(36) The words of the statute are, “all doctors and bachelors of di"vinity, doctors of laws, and bachelors of the law canon." Before the reformation, degrees were as frequent in the canon law as in the civil law. Many were graduates in utroque jure, or utriusque juris. J. U. D. or juris utriusque doctor, is still common in foreign universities. But Hen. VIII. in the 27th year of his reign, when he had renounced the authority of the pope, issued a mandate to the university of Cambridge, ut nulla legatur palam et publice lectio in jure canonico sive pontificio, nec aliquis cujuscunque conditionis homo gradum aliquem in studio illius juris pontificii suscipiat, aut in eodem in posterum promoveatur quovis modo. Stat. Acad. Cant. p. 137. It is probable that, at the same time, Oxford received a similar prohibition, and that degrees in canon law have ever since been discontinued in England.

(37) In the case of a cession under the statute, the church is so far void upon institution to the second living, that the patron may take notice of it, and present if he pleases: but there is great reason to think, that lapse will not incur from the time of institution against the patron, unless notice be given him; but lapse will incur from the time of induction without notice. 2 Wils. 200. 3 Burr. 1504,

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 (38). 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 9. 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made 1 (39). 5. By deprivation, either, first, by sentence declaratory in the

(38) These commendams are now seldom or never granted to any but bishops; and in that case, the bishop is made commendatory of the benefice, while he continues bishop of such a diocese, as the object is to make it an addition to a small bishoprick; and it would be unreasonable to grant it to a bishop for his life, who might be translated afterwards to one of the richest sees. See an account of the proceedings in the great case of commendams, Hob. 140. and Collier's Ec. Hist. 2 vol. p. 710.

(39) It seems to be clear that the bishop may refuse to accept a resignation, upon a sufficient cause for his refusal; but whether he can merely at his will and pleasure refuse to accept a resignation without any cause, and who shall finally judge of the sufficiency of the cause, and by what mode he may be compelled to accept, are questions unde cided. In the case of the bishop of London and Fytche, the judges in general declined to answer whether a bishop was compellable to accept a resignation: one thought he was compellable by mandamus, if he did not shew sufficient cause; and another observed, if he could not be compelled, he might prevent any incumbent from accepting an Irish bishoprick, as no one can accept a bishoprick in Ireland till he has resigned all his benefices in England. But lord Thurlow seemed to be of opinion that he could not be compelled, particularly by manda. mus, from which there is no appeal or writ of error. See 3 Burn. 304. and the opinions of the judges in Cunningham's Law of Simony, though ill reported.