Dean of the Arches; and in both these cases it was decided, that as in the right of making statutes, &c. the right was in the dean and chapter; and the dean being absent, in the vice-dean and chapter. And even if the dean and chapter should be equally divided in numbers as to the filling up any appointment or the like, the dean has no casting vote."

successors only is bad.

A statute made by the dean and chapter is to be con- A statute made sidered as within the exceptions before mentioned, and to bind their therefore void if it were to bind their successors, and not themselves; and this is so declared by the canon law; but it would appear also to be void at common law, and this seems particularly to have been referred to by Lord Ellenborough, in the case of Garnett v. Gordon.x

Such statutes

The limitation above mentioned, "that statutes made by a majority are binding only so far as they are not con- are not binding trary to the laws of the land, or to the general policy of general policy if contrary to the law," has given rise to many cases of dispute as to the of law. validity of such statutes.

the ecclesiasti

strictly.

Thus in a case before the King's Bench in the year And if contrary 1813, it appeared that the Bishop of Exeter, together with to the policy of the chapter, had been in the habit of making private sta- cal establishtutes; and that, by a statute so made in 1663, it was de- ment to be conclared, that whenever any canon residentiary should cease strued most to be such by promotion to any higher degree or dignity in the Church of England, he should nevertheless retain to his own use the profits of the canonry for the following year. The court did not find it necessary to decide whether such a statute was valid, because in the case before it the dean had ceased to be such by a voluntary resignation, in order to attain his promotion to another deanery; but Lord Ellenborough said, that such a statute was liable to powerful objections, and contrary to the policy of the ecclesiastical establishment; and at all events to be construed strictly, and, according to its very letter, unfavourably for the interests of those who had ceased to be canons: and the court therefore availed itself of the intervening resignation to decide that the dean was not entitled to the profits of the canonry which had accrued subsequently."

a vacation.

In this case the profits of the canonry spoken of were Profits of a those which he had as a member of a corporation aggre- canonry during gate; the proper application of which during a vacation seems to be, that they should be divided among the dean and chapter."

Rogers's E. L. 295.

"Buller, J., in Bishop of Chichester v. Harward, 1 Durn. & East, 651,

1 M. & S. 205.

Y Garnett v. Gordon, 1 M. & S. 205.

Godolph. Abr. 52.

Visitors of deans and chapters.

Extent of their jurisdiction.

But in the case of The King against The Bishop_of Durham, hereafter mentioned, the merits of the question are stated to have been, that Dr. Sterne, the succeeding prebendary, claimed two and a half years' profits which had accrued during the vacancy of the stall from the time. of the death of Dr. Benson, which profits the other prebendaries had received and divided between them. The case is reported upon other grounds, and it does not appear how the question was settled. As to those profits which a canon or prebendary may have in his separate capacity as a sole corporation, it is directed by statute that they should go to his successor, toward payment of his first fruits.b

a

It is incident to all corporations that the law has provided proper persons to visit, inquire into, and correct all irregularities that may arise in them; and, with regard to all ecclesiastical corporations, the ordinary is their visitor: so constituted by the canon law, and from thence derived to us. The bishop of the diocese is consequently the visitor of every dean and chapter; but the exact limit of his power as such visitor does not seem to be very accurately defined; it would seem, however, that his visitatorial power extends no further than to the enforcing a proper performance of the duties of the Church: though we are rather furnished with authority as to what is not, than as to what is within his power as visitor. Thus in the case of The King against The Bishop of Durham, a mandamus was applied for to compel the bishop to exercise his visitatorial authority in ordering the restitution of the profits of a vacant prebend, which had been divided among the other prebendaries during a vacation; it was considered, however, that this would be to compel him to interfere in a matter of property, as to which he could have no jurisdiction. And Lord Mansfield in that case observed, that there might be executors or representatives of deceased parties in the case, over whom the bishop could have no pretence to have jurisdiction, and that this alone would be decisive. A vacant canonry in the cathedral church of Chichester was not filled up, there having been two candidates for the office; and the dean and chapter, who should have made the appointment, being equally divided on the subject. In this state of circumstances, the bishop had admonished them to fill up the vacancy, and this proving ineffectual, he had cited them to appear before him to submit to his power as visitor, and to answer

why he should not, by his power and authority, ordinary and visitatorial, fill up the vacancy, by reason that the right of so doing had devolved upon him for that time by default of the chapter in not filling up the vacancy in due time; he had then appointed a canon, and commanded the dean and chapter to admit him. Under these circumstances a prohibition was granted against the bishop by the Court of King's Bench: Mr. Justice Ashurst observing, that the person elected would be entitled to benefits which he would receive out of the funds of the church, a matter of property beyond the limits of the visitatorial authority; but he seemed to doubt, whether the bishop in such a case might not have appointed a person temporarily, and until the vacancy was filled up, so that the duties of the church might have been properly performed. But the opinion of Mr. Justice Buller seemed to be against even such a limited exercise of the visitatorial authority. It follows, therefore, that there is no lapse to the bishop in the case of a prebend or canonry. It seems further from the words of Mr. Justice Buller in the above case, that if the right of election to a vacant prebend should be in the chapter, that is in the other prebendaries, they have a right to vote by proxy.f

In some particular cases the visitatorial power of the Compositions. bishop over the dean and chapter is restricted by what are termed compositions, as is the case in the two ancient ecclesiastical bodies of St. Paul's and Lichfield. By the remissness and absence of the bishops of Lichfield from their see, in going to Chester, and then to Coventry, the deans had great power lodged in them as to ecclesiastical jurisdiction there, and, after long contests, the matter came to a composition in the year 1428, by which the bishops were to visit them but once in seven years, and the chapter had jurisdiction over their own peculiars. So, in the Church of Sarum, the dean has a very large jurisdiction, which is therefore probably of considerable antiquity, but upon contest, it was settled by composition between the bishop, dean and chapter, in the year 1391. And where there are no compositions, it depends upon custom, which limits the exercise, although it cannot deprive the bishop of his diocesan right."

The dean and chapter as a body are, of common right, Office of the dean and chapguardians of the spiritualties of the bishopric during a ter during vacavacation, although the archbishop now usually has that tion of the see.

Bishop of Chichester v. Harward and Webber, 1 Durn. & East, 650. f Mr. J. Buller, in Bishop of Chichester v. Harward and Webber.

Burn's E. L. Dean.

Deans of Westminster and Manchester

without bishop.

Chapter without bishop or dean.

Where two sees

have been consolidated, what acts to be done by each chapter.

Ecclesiastical commission.

right by prescription or composition; but when the archbishopric is vacant, the dean and chapter of the archiepiscopal see are guardians of the spiritualties throughout the province.h

In some places there is a dean and chapter where there is no episcopal see, as is the case at Westminster and Manchester, and these are called chapters of a collegiate church, as the others are called chapters of a cathedral; and some chapters there are in which formerly there was no dean, as that of St. David's, where the bishop was the head of the chapter, but now, as observed in the last section, the precentor of that cathedral has the style of dean.

And as there may be a dean and chapter without a bishop, and a bishop and chapter without a dean, so there may also be a chapter without either bishop or dean, as is the case in the collegiate church of Southwell; but in all these excepted cases the chapter retains its character and rights as a corporation aggregate, so that what has been already said of it in this respect is in all cases applicable. Where two sees have been consolidated, a bishop may have two chapters, or deans and chapters, as where the see of Lismore had been united to that of Waterford, in which case the chapter of Lismore only confirmed the grant of lands belonging to the see of Lismore; and in like manner the chapter of Waterford only confirmed the grant of lands belonging to the see of Waterford, and the judges held such confirmation to be good and sufficient, on the ground that it must have been so intended at the time of the union; but otherwise they held that both chapters ought to have confirmed. Such double confirmation, however, appears to have been deemed unnecessary, and accordingly, in the recent union of the sees of Gloucester and Bristol, it is particularly provided that all episcopal acts requiring confirmation by the dean and chapter, are to be confirmed by the dean and chapter to whom the right would have belonged, if the sees had not been united.

A considerable alteration has recently been made in the constitution of the various chapters throughout England and Wales, by the recommendation and under the sanction of the ecclesiastical commission, the nature and objects of which have been already mentioned.

h Godolph. Abr. 55; Rogers's E. L. Rogers's E. L. Godolph. Abr. 58. 1 Order in council, gazetted on the 7th, registered on the 8th Oct. 1836, at Bristol, Blandford, and Gloucester.

The commissioners having in the years 1835 and 1836 made four several reports with reference to the suspension of appointments to dignities and offices in cathedral and collegiate churches, an act of parliament was passed," which, after reciting some material parts of these reports, declares that no appointment, presentation, or collation, should for the space of one year be made to any canonry, Suspension of prebend, or dignity in any cathedral church in England or cathedral apWales then vacant, or to become vacant during the con- certain cases. pointments in tinuance of the act: provided that this should not be construed to apply to any archdeaconry or deanery, except only the deanery of Wolverhampton; nor to the dignity of precentor of St. David's; nor to any canonries of York, St. Paul's in London, Carlisle, Chichester, and Lincoln; nor to the canonries of Christchurch annexed to the regius professorships of divinity and Hebrew at Oxford; nor to the prebend in the church of Worcester annexed to the Margaret professorship of divinity at Oxford; nor to the two prebends of Westminster, which the commissioners recommended to be annexed to the parishes of St. Margaret and St. John, Westminster; nor to the fourth prebend of Durham, to be annexed to the archdeaconry of Durham; nor to the prebends in the cathedral churches of Gloucester, Norwich, and Rochester, respectively annexed to the masterships of Pembroke College, Oxford, and Catherine Hall in Cambridge; the provostship of Oriel College, Oxford; and the archdeaconry of Rochester respectively; nor to any prebend then enjoyed by the Bishops of Lincoln, Lichfield, Exeter, and Salisbury, in the chapters of their respective sees; nor to any benefice without cure of souls in the patronage of any college in either of the universities, or of any private patron; nor to any canonry of Christchurch, Oxford, by the vacancy of which the canonries would be reduced below the number of six; nor to any prebend or canonry in the chapter of any other cathedral or collegiate church in England, or royal chapel of Windsor, or the collegiate churches of Ripon or Westminster, by the vacancy of which the prebends or canonries in such chapters respectively would be reduced below the number of four; nor to any canonry in the chapter of either of the cathedral churches of Wales, by the vacancy of which the canonries in such chapters would be reduced below the number of two.

The intention ultimately contemplated might have been anticipated from the exceptions above specified, which, in

m6 & 7 Will. 4, c. 67.