being admonished as aforesaid, the clerk is first to repair to the bishop, or such his vicar-general as aforesaid, on the third day after, if no more than nine days are mentioned in the duplex querela, or on the fifth day after, if fifteen days be appointed therein, and to exhibit his presentation, and to require admission and justice in all respects to be done to him, and offer himself ready to subscribe the Thirty-nine Articles of religion, and the declaration as required by law, and to take the oaths, and to do every other thing required by law to be of him performed, in respect of his admission and institution into that benefice. And this he is to do two times more, if not received, namely, every third or every fifth day, according to the time given in the duplex querela. But if he cannot come to the presence of the bishop, he is to protest his readiness to receive his admission and to subscribe as aforesaid, and to have at least two witnesses thereof. If the bishop shall not do the clerk justice within the time limited, then, after the expiration thereof, the party presented is to take care that the bishop be cited according to the tenor [161] of the duplex querela. If the person that is to cite the bishop cannot come to his presence, he is to signify to some of the bishop's servants that he hath a duplex querela at the instance of such a clerk presented to such a church, to be by him executed, and to desire that he may come to the presence of the bishop. If he may not come to the bishop's presence so that he cannot cite him, the presentee is to stay till the day on which the bishop should appear had he been cited; at which time he is to be called, and if he appear not by himself or proctor, a citation viis et modis is to be decreed, which is to be executed personally if the bishop may be spoken with, and if not, then by affixing it to the outward doors of the bishop's palace, or of the house where the bishop resides, or of his cathedral church. After the bishop is cited, whether by the first or second mandate, the person citing is to certify to the clerk or his proctor by his letters, or by subscribing upon the backside of the mandate, the day of executing the monition to institute, and the inhibition, the several days of the presentee's asking admission, and the day of his citing the bishop; and if the bishop refused expressly to admit, that is also to be certified. If the bishop appear not at the day, upon the petition of the presentee's proctor, the bishop, being thrice called, is by the judge pronounced contumacious; and as a punishment of his contumacy, the judge doth pronounce the right of instituting the presentee to his benefice to be devolved to the superior judge, and doth decree that the clerk shall be instituted, and that he will write to the archdeacon or ordinary of the diocese where the church is, commanding him to induct him. Then the clerk is remitted (if the proceedings be in the Court of Arches or Audience) to the archbishop to examine him; and the archbishop, approving of him, returns him with his fiat institutio to the judge; who, before he institutes, is wont to require a bond of the presentee to save him harmless on that account. But if the bishop doth appear, and doth allege some just cause why he refused the clerk, then they are to proceed to the trial of that as in other summary causes. If the cause alleged by the bishop be not proved, the judge pronounceth as before for his own jurisdiction, and the bishop is to be condemned in expenses; and so if he doth allege an [ 162 ] insufficient cause, as that the church is litigious, for this he ought to have tried. If the bishop will not defend the suit the pretended incumbent may do it, and allege that the church is full of himself; but then the judge will first pronounce sentence for his own jurisdiction, because the bishop hath alleged nothing to oppose it. But if the bishop will allow such incumbent to defend the suit in his own name, then the judge cannot decree for his own jurisdiction, until the cause is determined (k). And this way of proceeding in this case against a bishop is allowed of by the common law, and no prohibition lieth for the bishop (1). Which course of proceeding in the ecclesiastical court is the most proper remedy that the clerk can use in case he be refused by the bishop upon the account of any personal fault or defect, not only because by such course the clerk, in a short time, at less charge and less hazard of losing his living by errors (which are easily fallen into at common law), may gain institution, but also because, although his patron bring his action at common law for refusing his clerk for crime or insufficiency, such cause of refusal shall be tried by a spiritual judge, to wit, if a bishop refuse, by the metropolitan of the province (m). But this is not a proper remedy where another clerk has been instituted and inducted, though wrongfully; because he has then acquired a lay fee, of which the ecclesiastical court cannot deprive him, except for certain crimes (n). And the ecclesiastical judge in this case is to make certificate of his judgment to the temporal court, upon which they may proceed to sentence in a quare impedit or darrein presentment (o). If the Archbishop of York refuse, it is said that the cause of refusal shall be tried by himself only (p). But if the party in whom disability is alleged be dead before his second examination so as he cannot be examined, the trial (k) Clarke, Querela Dupl. Wats. c. 21; 1 Ought. 237-248. (1) Wats. c. 21. (m) Wats. c. 21; 3 Leon. 199. (n) Wats. c. 21; Hob. 15. (0) Wats. c. 21. (p) Ibid. of his ability or disability shall be by the country. So in a quare impedit against the Archbishop of Canterbury, if the ability of the clerk come in question, it is said that it shall be tried by the country, and not by any inferior ordinary, and the [163] same reason seems to be as to the Archbishop of York (q). 4. If the patron finds himself aggrieved by the ordinary's refusal of his clerk, he may have his remedy by quare impedit in the temporal court. Remedy for the Patron in the Temporal Court by Quare Im pedit. And in such case the ordinary must show the cause of his fusal specially and directly (not only that he is a schismatic, or heretic, for instance, but the particular schismatical acts or or heretical opinions that he is charged withal must be set forth). For the examination of the bishop doth not finally conclude the plaintiff; and without showing specially, the proper court cannot inquire and resolve whether the refusal be just And if the cause of refusal be spiritual, the court shall write to the metropolitan to certify thereof, or if the cause be temporal and sufficient in law (which the temporal court shall decide), the same may be traversed, and an issue thereupon joined and tried by the country (r). or no. But in case of refusal for insufficiency in learning, it was adjudged in parliament in the case of The Bishop of Exeter against Hele, to be a good plea on the part of the bishop, that the presentee was a person not sufficient or capable in learning to have the said church; and there resolved, that he need not set forth in what kinds of learning, or to what degrees he was defective(s). IV. Admission. In a larger sense admission is sometimes used to include also institution, but more frequently, and properly, admission is taken to be when the bishop upon examination doth approve of the presentee as a fit person to serve the cure of the church to which he is presented, and institution is that act by which he doth commit to him the cure thereof (t). And we find sometimes also the practice of investiture by the bishop in our ecclesiastical records, ipsum instituit et investivit annulo suo, which is frequently repeated in Archbishop Peckham's Register (and is in use to this day in the diocese of St. Asaph), and is mentioned as distinct from the admission, institution, and induction (u). [“Admitto te habilem," was the language of the bishop (x).—ED.] (q) Wats. c. 21. (r) 2 Inst. 631; 5 Co. 58. (u) Gibs. 808. (x) Co. Litt. 244 a; 3 Lev. R. 211; 2 Roll. Rep. 100. V. Institution, or Collation. between In 1. There is no difference between institution and collation Difference as to the action itself, but this: that the bishop doth not pre-stitution and sent to such livings as are in his own gift, but immediately Collation. instituteth his clerk in much the same form as he or his chancellor institute a clerk presented by any other patron. And as the bishop collates to benefices of his own gift jure pleno, so he doth to those which fall to him by lapse (y). [Another difference is created by the Stamp Act before referred to. [By 55 Geo. 3, c. 184, schedule, part 1, the following duty is imposed: [Collation by any archbishop or bishop to any ecclesiastical benefice, dignity, or promotion in England of the yearly value of 101. or upwards in the king's books £20 0 0 To any any other benefice, &c. £10 0 0 Institution granted by any archbishop, bishop, chancellor, or any other ordinary, or by any ecclesiastical court, in and to any ecclesiastical benefice, dignity, or promotion in England, where the same shall proceed upon a present ation £2 0 0 [And where it shall proceed upon the petition of the patron to be himself admitted and instituted, if the benefice, dignity, or promotion shall be of the yearly value of 107. or upwards in the king's books £30 0 0 [Or if the same shall be of any other description £15 0 0 But such petition shall not pay any stamp duty. Collation, institution, or admission by any presbytery or other competent authority to any ecclesiastical benefice in Scotland £2 0 0 [The reason of this difference in the duty between institution and collation is, that collation stands in the place of a presentation, for which, when the living is above 101. yearly value in the king's books, a 20. stamp is required.-ED.] Simony. 2. By Can. 40, "To avoid the detestable sin of simony, every Oath against archbishop, bishop, or other person having authority to admit, institute, or collate to any spiritual or ecclesiastical function, dignity, or benefice, shall before every such admission, institution, or collation, minister to every person to be admitted, instituted, or collated, the oath against simony," (which is inserted under the title Simony). giance and 3. By the 1 Eliz. c. 1, and 1 Will. c. 8, s. 5, "Every per- Oaths of Alleson who shall be promoted or collated to any spiritual or ec- Supremacy. clesiastical benefice, promotion, dignity, office, or ministry, before he shall take upon him to receive, use, exercise, supply, or occupy the same, shall take the oaths of allegiance and (y) Johns. 81. Oath of Canonical Obedience. Oath of Residence. Subscription to the Thirty. supremacy, before such person as shall have authority to admit him," which are inserted under the title Daths.) 4. Also the person to be instituted shall take the oath of canonical obedience in like manner (z). Which oath is as followeth: "I A. B. do swear, that I will perform true and canonical obedience to the bishop of C. and his successors, in all things lawful and honest: So help me God (a)." 5. And if it is a vicarage, he shall in like manner take the oath of personal residence in the same (b). Which is this: "I A. B. do swear that I will be resident in my vicarage of in the diocese of, unless I shall be otherwise dispensed withal by my diocesan: So help me God (c)." By 43 Geo. 3, c. 84, s. 37, no oath of residence shall be required of any vicar. Vide Residence, 9. And by a constitution of Otho, without the oath of residence, the vicar's institution shall be void (d). 6. By the 13 El. c. 12, requiring assent and subscription to nine Articles. certain articles therein specified, and contained in the book of articles agreed upon in convocation in the year 1562, it is enacted, that "no person shall be admitted to any benefice with cure, except he shall first have subscribed the said articles in presence of the ordinary." [ 165 ] Subscription To any Benefice with cure.] So that sinecures, archdeaconries, prebends, and the like, lay no obligations on any person to subscribe, by this statute (e). : Except he shall first have subscribed.] And the ordinary is not bound to offer the articles to the clerk to be by him subscribed, and to require him to do it; but the clerk is himself to offer to subscribe them and in this case upon the clerk's neglect to subscribe the articles, the church remains void, as never full of such clerk, and no sentence of deprivation is necessary, by reason that he never was incumbent, but the admission and institution are void (f). In presence of the Ordinary.] Before this statute, institution was frequently given (as inductions and instalments may be still) by proxy; as appears by innumerable instances in the ecclesiastical records (g). 7. By Can. 36, "No person shall, either by institution or to the Three collation, be admitted to any ecclesiastical living, except he shall first subscribe to these three articles following. Articles concerning the Supremacy. the Common Prayer, and "(1). That the king's majesty, under God, is the only supreme governor of this realm and of all other his highness's nine Articles. dominions and countries, as well in all spiritual or ecclesias the Thirty (z) Clarke, tit. 91. (a) Gibs. 810. (c) Gibs. 810. (d) Athon. 24. (e) Gibs. 808. (f) Wats. c. 15; 1 Anderson, 63. (g) Gibs. 808. |