to their own benefit and the injury of poor persons entitled to share in them, and imputing to the then bishop, formerly dean of Worcester, that he had been guilty of similar misconduct as dean, and had, as visitor, culpably, and with knowledge of the facts, omitted to correct it in the dean and chapter of Rochester. The dean and chapter removed the schoolmaster from his office for this publication and the reflections upon the dean and chapter and the bishop, therein contained, pronouncing him guilty of a grave offence, and unfit to be continued in the office of schoolmaster. They, however, under counsel's advice, revoked the dismissal, but immediately afterwards cited him to answer before them for the same offence, and they afterwards dismissed him again for the same publication.

A mandamus having issued at the instance of the schoolmaster, the dean and chapter made a return, and the schoolmaster pleaded several pleas. The facts appeared on the record as above stated. The return alleged that the schoolmaster had been removed, to wit, for lawful cause, and had not appealed to the visitor. The schoolmaster pleaded that the bishop had an interest in the cause of removal, which disqualified him from acting as visitor; and by another plea justified the publication, and denied that he was lawfully dismissed. On demurrer to the pleas, it was held,

(1.) That the bishop (if not interested) was the proper visitor in the case, for that statute 35 did not withdraw it from the general authority given to the visitor by statute 38, and the dean and chapter did not exercise a visitorial authority in dismissing the master.

(2.) That the bishop had not such an interest as disqualified him from acting as visitor.

(3.) That the prosecutor, therefore, should have appealed to the visitor, and not proceeded by mandamus. And that, assuming the dismissal to have been improper, the court was not authorized to interfere on the alleged ground that the dean and chapter were acting in excess of their jurisdiction (e).

Upon the same principles the dean and chapter have power Power to to remove a chorister, subject to an appeal to the visitor.

Thus a mandamus commanding the dean and chapter of a cathedral to restore a chorister, alleged that the office was a freehold in their gift, paid by salary out of their land revenues, and conferring a right to vote on the election of members of parliament, and that the chorister had been wrongfully amoved. Return, that, by ordinances of the founder, for the government of the cathedral, it was provided that, if any of the officers of the cathedral, including choristers, commit a small fault, he may be punished by the dean, but that, "if his crime be of a blacker dye (if it be judged equitable), he may be expelled by whom he was admitted," and that the bishop of the diocese

(e) The Queen v. Dean of Rochester (1851), 17 Q. B. p. 1.

remove

chorister.

Dean may

make a

deputy.

Sub-dean.

Braithwaite v.
Hook.

should be the visitor of the cathedral, to take special care that all its ordinances should be inviolably preserved, to punish and correct all offences committed by officers of the cathedral, and to do all things that are judged lawfully to appertain to the office of visitor. And that the chorister had not appealed to the bishop.

It was held, on demurrer to the return, that mandamus did not lie, as the remedy for the wrongful amotion complained of was by application to the visitor, who had sufficient and exclusive jurisdiction, although the foundation was spiritual and not eleemosynary, and the office was a freehold office, and that it was not necessary to return the cause of amotion (ƒ).

The dean may make a deputy or sub-dean, to exercise the spiritual jurisdiction; yet such deputy cannot charge the possessions of the church, so as to confirm leases, unless it be otherwise provided by the local statutes (g).

There is usually a sub-dean appointed from the canons.

But in the cathedral church of Chichester, from a very early period, there has been an officer called the sub-dean, who is not a member of the chapter, and is not inducted into a stall. Except on very rare occasions, the sub-dean has been also vicar of the parish in which the cathedral is locally situated. For many centuries, and until the year 1852, the north transept of the cathedral was used as a church by the parishioners of the same parish, and the churchyard adjoining the cathedral as their place of burial. No church-rate was ever levied upon the parish for the repairs of the north transept, but the whole expense of the maintenance of the north transept and the churchyard was defrayed by the dean and chapter, and the services regulated and controlled by them also. The inhabitants of the precincts of the close maintained their own poor apart. from the parish, and held an annual vestry in the south transept of the cathedral to lay a rate for that purpose; and they were not inhabitants of the parish, so as to be presented to the ordinary if they did not receive the sacrament in the parish church at Easter. The vicar and sub-dean kept the registers both of the parish and of the precincts of the close. Before the year 1813 the names of the inhabitants of the parish and of the close were entered promiscuously in the register books of baptisms, marriages, and burials. After 1813 the marriages of inhabitants of the parish and the close were still entered in the same book, but the baptisms and burials were entered in separate books for the parish and for the close. The vicar and sub-dean performed all the ordinary ministerial duties for, and received the usual fees from, the inhabitants of the parish and of the close, and for many years some of the inhabitants of the precincts of the close paid Easter offerings to the vicar and sub-dean. The Court of

(f) The Queen v. The Dean and Chapter of Chester (1850), 15 Q. B. p. 513.

(g) God. p. 55; Wats. c. 44, p. 475; Evans v. Ascuith, Noy, p. 93; Palm. p. 460; Latch. pp. 237, 250.

Arches held, that the right conceded to the parish by using the north transept for divine service and the churchyard for burials was only a limited privilege, and the incumbent of the parish had only such rights, as vicar, as were incidental to the privileges conceded, and were limited accordingly; that such rights were extinguished in 1852, when a new church was substituted for the north transept, and in 1854 when the cathedral churchyard was closed for burials by an order in council; that the subdean, as distinguished from the vicar, had separate rights and duties, namely, the discharge of spiritual functions within the close, and the ministerial fees arising from the duties so discharged; and that the appointment of sub-dean did not legally incapacitate the dean, when he thought fit, from personally discharging the spiritual duties in respect of the inhabitants of

the close.

chial.

In the same case it was said that if the foundation of the When cathecathedral and the grant of the adjoining land date before dral close the year 1189, and the institution of civil parishes, it will be extra-paropresumed that neither the site of the cathedral nor of the precincts are within the limits of any parish; and that an office held by a person called a sub-dean, in a cathedral, but independently of the dean, and not subject to the cathedral authorities, is an anomaly unknown to the law (h).

By 28 Hen. 8, c. 11, s. 1, the profits of a deanery during the Profits of a vacation shall go to the successor towards the payment of his deanery first-fruits.

during

vacation.

revenues

By 26 Hen. 8, c. 3, s. 22, where the dean or other chief How the firstgovernor of any cathedral or collegiate church, hath a certain fruits of the portion of the possessions alone limited to his office; and every thereof shall prebendary, vicar, petty canon, and other minister spiritual hath be charged. another portion alone and distinctly limited to his respective office; they shall be rated for their first-fruits separately and not jointly.

archidiaconal

Every see or cathedral (as such) is exempt from archidiaconal Cathedral exjurisdiction. Thus a bishop's see having been newly erected empted from within the limits of a certain archdeaconry, it was represented jurisdiction. that the archdeacon had presumed to exercise his jurisdiction over the bishop there consecrated and the church; and Gregory IX. decreed thereupon that this should no more be done, but that the bishop should be exempt from the archidiaconal jurisdiction, which decretal epistle became part of the body of the canon law (i).

to faculties.

Cathedrals are also exempt from the law requiring a faculty (k) From law as before an alteration is made in the fabric, utensils, or ornaments (1).

(h) Braithwaite v. Hook (before Dr. Lushington, Dean of Arches, November, 1861), 8 Jur. N. S. p. 1186, and Special Report. See p. 125, supra.

(1) Gibs. p. 171; X. i. 33, 16.

(k) Vide infra, Part VI., Chap. II., sect. 6.

(1) Boyd v. Phillpotts, L. R. 4 Adm. & Eccl. p. 297; Phillpotts v. Boyd, L. R. 6 P. C. p. 435.

Cathedral, the

of the whole

diocese.

The cathedral church is the parish church of the whole diocese parish church (which diocese was therefore commonly called parochia in ancient times, till the application of this name to the lesser branches into which it was divided made it for distinction's sake to be called only by the name of diocese) and it has been affirmed, with great probability, that if one resort to the cathedral church to hear divine service, it is a resorting to the parish church, within the natural sense and meaning of the statute (m).

Synodals.

Bishop's residence at cathedral.

Dean and

Upon which account it is ordained by a canon of Simon Mepham, Archbishop of Canterbury, that in certain cases, they who cannot be cited personally, nor in their dwelling-house, may be cited in their parish church; and if they have no parish church, or that does not appear, then they shall be cited in the cathedral (n).

And by Canon 65 of 1603: Excommunicates shall be denounced every six months, as well in the parish church, as in the cathedral church of the diocese.

In honour of the cathedral church, and in token of subjection to it, as the bishop's see, every parochial minister within the diocese paid to the bishop an annual pension, called anciently cathedraticum. This acknowledgment is supposed to have taken rise from the establishment of distinct parishes, with certain revenues, and thereby the separating of those districts from the immediate relation they had borne to the cathedral church. By a canon of the council of Bracara, this pension is called honor cathedræ episcopalis, and restrained (if it was not limited before) to two shillings each church: which canon became afterwards part of the canon law of the church, with this gloss upon the words two shillings (viz., at most; for sometimes less is given); and has been received in England, as in other churches, under the name of synodaticum, or synodals, because formerly paid at the bishop's synod at Easter (o). It seems, however, that in cases where the estates of bishops have vested in the ecclesiastical commissioners under 23 & 24 Vict. c. 124, synodals having become payable to the commissioners have practically been remitted in law.

Bishops shall be at their cathedrals, on some of the greater feasts, and at least in some part of Lent (p).

Bishops shall reside at their cathedral churches, and officiate there on the chief festivals, on the Lord's days, and in Lent, and in Advent (9).

chapter's re- chief sidence there.

By Canon 42 of 1603, "Every dean, master, or warden, or governor of any cathedral or collegiate church, shall be resident there fourscore and ten days, conjunctim or divisim, in every year at the least, and then shall continue there in preaching the word of God and keeping good hospitality; except he

n) Gibs. p. 171. (n) Gibs. p. 1003. (o) Gibs. p. 171.

(p) Lind. p. 130.

Otho. Athon, p. 55; et vide supra, p. 53.

shall be otherwise let with weighty and urgent causes to be approved by the bishop of the diocese, or in any other lawful sort dispensed with. And when he is resident, he with the rest of the canons or prebendaries resident shall take special care that the statutes and laudable customs of their church (not being contrary to the work of God or prerogative royal), the statutes of this realm being in force concerning ecclesiastical order, and all other constitutions now set forth and confirmed by his majesty's authority, and such as shall be lawfully enjoined by the bishop of the diocese in his visitation according to the statutes and customs of the same church or the ecclesiastical laws of this realm, be diligently observed; and that the petty canons, vicars-choral, and other ministers of their church, be urged to the study of the Holy Scriptures; and every one of them to have the New Testament not only in English, but also in Latin" (r).

By Canon 44, "No prebendaries nor canons in cathedral or collegiate churches having one or more benefices with cure (and not being residentiaries in the same cathedral or collegiate churches), shall, under colour of their said prebends, absent themselves from their said benefices with cure above the space of one month in the year, unless it be for some urgent cause, and certain time to be allowed by the bishop of the diocese. And such of the said canons and prebendaries, as by the ordinances of the cathedral or collegiate churches do stand bound to be resident in the same, shall so among themselves sort and proportion the times of the year, concerning residency to be kept in the said churches, as that some of them always shall be personally resident there; and that all those who be or shall be residentiaries in any cathedral or collegiate church, shall, after the days of their residency appointed by their local statutes or customs expired, presently repair to their benefices, or some one of them, or to some other charge where the law requireth their presence, there to discharge their duties according to the laws in that case provided. And the bishop of the diocese shall see the same to be duly performed and put in execution."

By Canon 24, "In all cathedral and collegiate churches, the AdministraHoly Communion shall be administered upon principal feast tion of the Holy Comdays, sometimes by the bishop (if he be present), and sometimes munion there. by the dean, and sometimes by a canon or prebendary: the principal minister using a decent cope, and being assisted with Vestments to the gospeller and epistler agreeably according to the Advertise- be worn. ments, published anno 7 Eliz. The said Communion to be administered at such times, and with such limitation, as is specified in the Book of Common Prayer. Provided that no such limitation by any construction shall be allowed of, but that all deans, wardens, masters, or heads of cathedral and collegiate churches, prebendaries, canons, vicars, petty canons,

(r) See now 3 & 4 Vict. c. 113, s. 3, infra, sect. 3.