QUALIFICA

TIONS, AND

LITIES.

person so summoned to obey such summons, or, upon his appearance, APPOINTMENT, to show to the bishop such cause as may be deemed by the bishop sufficient for such refusal or neglect, the bishop may thereupon grant a RESPONSIBI certificate of the facts, under his hand and seal, to the person entitled to the possession of such house, building, land, or premises, who may thereupon go before any neighbouring justice of the peace; and such justice, upon production of such certificate, and proof of such wrongful retention of possession, is required to issue his warrant under his hand and seal, directed to the constables or other peace officers of the district, parish, or place within which such house, building, land, or premises is or are situate, or to the constables or other peace officers of any neighbouring district, parish, or place requiring them forthwith to expel and remove from the house, building, land, or premises, and from every part and parcel thereof, the person so wrongfully retaining possession thereof, and to deliver the peaceable possession thereof to the person so entitled to the same; and such constables or other peace officers are required promptly and effectually to obey and execute such warrant, according to the exigency thereof; and also to levy, upon the goods and chattels of the person so by them expelled and removed, the necessary costs and expenses of executing such warrant, the amount whereof, in case the same be disputed, is to be forthwith settled and determined by the justice of the peace by whom the warrant was issued, or by any other justice of the peace residing in or near to the district, parish, or place, whose decision thereupon is to be final, and who is authorised to make such order in that behalf as to him shall seem reasonable.

In Peak v. Bourne (1) the Court strongly inclined that a parish clerk was Appointment a temporal officer as to the right of his office, and that he might make a of deputy parish clerk. deputy. It was urged that such a right existed, upon the common distinction between a judicial and a ministerial officer, as a parish clerk certainly is; and in Anon. (2) it was held, that a mandamus did not lie to restore one to the office of deputy parish clerk.

By stat. 7 & 8 Vict. c. 59. s. 5. the exercise of the office of parish clerk by a sufficient deputy, who shall faithfully perform the office and properly demean himself, is not such a wilful neglect of his office on the part of the parish clerk as to render him liable, for such cause alone, to be suspended or removed therefrom.

There is no law which declares that the person to be appointed the parish clerk shall be a person residing in the parish, but only that he shall be known to the minister to be of honest conversation, and sufficient for his reading, &c.; consequently, clergymen can appoint some friend to be their parish clerk, who can appoint a deputy; and thus the trouble of removing a parish clerk can be evaded.

In Peake v. Barne (3) it was held, that a deputy parish clerk may act without a licence from the ordinary.

Stat. 7 & 8
Vict. c. 59.

Parish clerk

need not be a parishioner.

(1) 2 Str. 942.

(2) Lofft, 434.

(3) 2 Lee (Sir G.), 587.

SALARY.

Constitution of
Archbishop
Boniface.

Canon 91.

Proceedings

must be taken in the temporal courts for recovery of the salary.

3. SALARY.

By a constitution of Archbishop Boniface (1), "if the parishioners shall maliciously (2) withhold the alms (3), accustomed (4) from the aquæbajulus, they shall be earnestly admonished (5) to render the same; and, if need be, shall be compelled by ecclesiastical censure."

By canon 91." the said clerks so chosen shall have and receive their ancient wages, without fraud or diminution, either at the hands of the churchwardens, at such times as hath been accustomed, or by their own collection, according to the most ancient custom of every parish.”

In case such customary allowance be denied, the foregoing constitution and the practice thereupon direct where it is to be sued for, viz. before the ordinary in his ecclesiastical court. That constitution calls those wages eleemosynas consuetas; and in the Register (6) there is a consultation provided in a case of the same nature, for what the writ calls largitio charitativa (as being originally a free gift) which, by parity of reason, may be fairly extended to the present case. (7)

But by the common law if a parish clerk claim by custom to have a certain quantity of bread at Christmas of every inhabitant of the parish, or the like, and sue for this in the Spiritual Court, a prohibition lies. (8)

In Parker v. Clerk (9) the clerk of a parish libelled the churchwardens for so much money due to him by custom every year, and to be levied by them on the respective inhabitants in the parish; after sentence in the Spiritual Court, the defendants suggested for a prohibition, that there was no such custom as the plaintiff had set forth in his libel. It was objected against granting the prohibition, that it was then too late, because it was after sentence, especially since the custom was not denied; for if it had, and that Court had proceeded, then and not before was the proper time to move for a prohibition. But by Chief Justice Holt, "It is never too late to move the King's Bench for a prohibition, where the Spiritual Court had no original jurisdiction, as they had not in this case, because a clerk of a parish is neither a spiritual person, nor is this duty in demand spiritual, for

(1) Lyndwood, Prov. Const. Ang. 143.
(2) Maliciose:- Possent enim parochi-
ani eos forsan de facto repellere, quia per
eos, vel de corum consensu, non sunt intro-
ducti; quorum tamen malitiis obviandum
est, nec est per judicem justum hujusmodi
malitiis indulgendum. Ibid.

(3) Eleemosynas: Ex hoc potes colli-
gere, quod tales clerici non possunt aliquid
vendicare per viam certi beneficii [al' Præ-
sentationis, MS. Eton] sive dotationis.
Sed ipsorum sustentatio per eos colligi et
levari debet à parochianis secundum morem
et consuetudinem patriæ. Ibid.

(4) Consuetas:- Hæc enim consuetudo considerari debet secundum morem antiquitùs observatum; quæ etiam, in quantum concernit augmentationem cultûs divini in ecclesiasticis officiis, voluntariè immutari non debet; sed ad hoc parochiani compelli possunt per episcopum. Ibid.

Et nota, quod in hac materià posset dici

consuetudo laudabilis, illa quæ forsan est introducta, ut unusquisque paterfamilias die quolibet dominico clerico deferenti aquam benedictam aliquid secundum exigentiam status sui tribuat. Et quod in Natali Domini habeat à singulis domiciliis unum panem, et etiam certa ova ad pascha, et in autumno certas Garbas. Posset etiam dici consuetudo laudabilis, ut clericus talis, singulis anni quarteriis, aliquid certum habeat in pecuniâ, ad suam sustentationem, quod colligi debeat et levari in totâ parochii. Ibid.

(5) Moneantur :- Non solùm per ipsos curatos, sed potiùs per locorum ordinarios. Ibid.

it is founded on a custom, and by consequence triable at law; and therefore SALARY.
the clerk may have an action on the case against the churchwardens for
neglecting to make a rate, and to levy it, or if it had been levied and not
paid by them to the plaintiff."

In Pitts v. Evans (1) a prohibition was granted to a suit in the Spiritual Courts by the clerk of St. Magnus for 1s. 4d. assessed on the defendant's house at a vestry in 1672, to be paid to the parish clerk: because the Court held that he was a temporal officer, and if he were not so, he could not sue there for such a rate, as it was due by custom, for which he could maintain assumpsit, if not a quantum meruit, or a bill in equity.

By stat. 58 Geo. S. c. 45. and stat. 59 Geo. 3. c. 134. the Church Building Commissioners can, with consent of the vestry, settle the amount of the clerk's fees in any parish, and, with the consent of the bishop, can determine the amount of his fees in district or parochial chapelries; and also direct that the salaries to the clerk may be assigned out of the pew-rents. (2) The commissioners are likewise authorised, under certain circumstances, to make special arrangements respecting the proportions of fees to be assigned to the clerk of the new parish and of the old parish respectively. Respecting the mode by which clerks can recover their fees, it has been enacted by stat. 59 Geo. 3. c. 134. s. 10. that when any parish shall be divided, under that act, or stat. 58 Geo. 3. c. 45., all fees, dues, profits, and emoluments belonging to the parish clerk or sexton respectively of any such parish, whether by prescription, usage, or otherwise, which shall thereafter arise in any district or division of any parish divided under stat. 58 Geo. 3. c. 45., shall belong to, and be recoverable by, the clerks and sextons respectively of each of the divisions respectively of the parish to which they shall be assigned, in like manner, in every respect, and after the same rate as they were before recoverable by the clerk and sexton respectively of the original parish; and that the commissioners in every such case might ascertain and make compensation, in manner directed by stat. 58 Geo. 3. c. 45. in cases of compensation by reason of loss of fees, for any loss of fees, dues, profits, and emoluments which any clerk or sexton may sustain by reason of any such division.

When Church

Building Commissioners can

settle the amount of the clerk's fees.

Apportioning clerk's fees be

tween two

parishes. Mode of reco

vering salary under stat. 59

Geo. 3. c. 134.

s. 10.

Clerks and sextons of parish may recover their fees, &c.

divisions of

PARSON. (3)

A parson, persona ecclesiæ, is one that has 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. 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),

(1) 2 Str. 1108.

(2) Vide ante, tit. CHURCH BUILDING STATUTES PARISH.

(3) Vide tit. ADVOWSON APPROPRIA

TIONS CURATES-ENDOWMENTS ORDINA-
TION- PRESENTATION PRIVILEGES AND
RESTRAINTS OF THE CLERGY-VICARS
VICARAGES.

D

PARSON.

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 glebes, 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. (1)

GENERALLY.

Exempt jurisdictions.

PECULIARS. (2)

Exempt jurisdictions - Extract from the Ecclesiastical Commissioners' Report. - Royal peculiars Archbishops' peculiars — Peculiars of bishops in another diocese - Pecu liars of bishops in their own diocese, exclusive of archdiaconal jurisdiction Stat. 2 Gul. 4. c. 61.—Chapels within exempt or peculiar jurisdictions to be subject to the bishop within whose diocese the altar is locally situate- Powers of archbishops and bishops as to exempt or peculiar benefices under stat. 1 & 2 Vict. c. 106. ss. 108 & 109. — When jurisdiction is giren to archbishops or bishops, concurrent jurisdictions to cease - Pecahars Of deans, prebendaries, and others When bishops cannot be required to perform episcopal offices.

2. DIOCESES IN WHICH PECULIAR AND EXEMPT JURISDICTIONS HAVE BEEN ABOLISHED UNDER STAT. 6 & 7 Gul. 4. c. 77. s. 10. p. 881.

1. Generally.

Exempt jurisdictions are so called, not because they are under no ordinary, but because they are not under the ordinary of the diocese, but have one of their own. These are therefore called peculiars, and are of several sorts. (3)

As first, royal peculiars, which are the king's free chapels, and are GENERALLY. exempt from any jurisdiction but the king's (1); and therefore such may Royal pecube resigned into the king's hands as their proper ordinary, either by ancient liars. privilege, or inherent right. (2)

Peculiars of the archbishops are exclusive of the bishops and archdea- Archbishop's cons; which sprung from a privilege they had, to enjoy jurisdiction in such peculiars. places where their seats and possessions were; which privilege the archbishops appear to have exercised, from the numerous letters dated from their several seats. (3)

In these peculiars (which within the province of Canterbury amount to more than one hundred, in the several dioceses of London, Winchester, Rochester, Lincoln, Norwich, Oxford, and Chichester), jurisdiction is administered by several commissaries, the chief of whom is the dean of the Arches, for the thirteen peculiars within the city of London; and of these Lyndwood (4) observes, that their jurisdiction is archidiaconal. (5)

Peculiars of bishops are exclusive of the jurisdiction of the bishop of the diocese, in which they are situated, of which sort the bishop of London had anciently four parishes within the diocese of Lincoln, and every bishop who had a house in the diocese of another bishop (6) might therein exercise episcopal jurisdiction, independent of such bishop; and therefore Lyndwood (7) says, the signification of bishopric is larger than that of diocese, because a bishopric may extend into the diocese of another bishop, by reason of a peculiar jurisdiction which the bishop of another diocese may have therein. (8)

Respecting peculiars of bishops in their own diocese, exclusive of archidiaconal jurisdiction, Lyndwood (9) writes thus: Sunt quædam ecclesiæ, licet

any exemptions or privileges they might enjoy.

In the reign of Queen Elizabeth, a suggestion was made in convocation, or prepared for consideration there, that it should be proposed to parliament to subject peculiar and exempt sites and jurisdictions of monasteries to the diocesan. Bishop Randolph was occupied with the same design, and made it the subject of several charges to his clergy, in the diocese of Oxford.

In 1812, a bill, for the better regulation of ecclesiastical courts, was brought into parliament by Sir W. Scott, and having passed the House of Commons, was afterwards dropped in the House of Lords. A principal clause in that bill provided, That the power of hearing and determining contested causes of ecclesiastical cognisance should be exercised only by ecclesiastical courts, sitting under the immediate conmission and authority of archbishops and bishops, and not by inferior or other ecclesiastical courts.'

(2) 1 Stilling. Ca. 337. Lyndwood, Prov. Const. Ang. 125. Crowley v. Crowley, 3 Hagg. 758. n. Smith v. Smith, ibid.

757.

(3) Gibson's Codex, 978.
(4) P. 79.

(5) Gibson's Codex, 978.

(6) House in the diocese of another bishop: -But now most of those houses are either exchanged, or being built into private houses, are held on lease of the bishoprics to which they belonged; and seemingly no houses now remain which can be considered as places of residence in another diocese, but Lambeth and Addington palaces, "Winchester House," "St. James's Square;" and Ely House," in Dover Street, Piccadilly. It is not, however, very clear that such prelates can now exercise all their episcopal functions out of their respective dioceses: - and the question of the exemption of these places of residence from the jurisdiction of the bishop in whose diocese they are locally situated, is one of some difficulty. Stephens' Ecclesiastical Statutes, 282. in not.

(7) P. 318.

(8) Gibson's Codex, 978. Vide Stephens'
Ecclesiastical Statutes, 248-250. in not.
(9) P. 220.

Peculiars of bishops in

another diocese.

Peculiars of bishops in their

own diocese,