Whether a mandamus will lie to admit or restore a curate. ment be within six months; for if the patron of a curacy do not nominate a clerk, there can be no lapse thereof (except in the case of the curacy having received the augmentation of Queen Anne's bounty), but the bishop may compel him to do it by spiritual censures (i). This was declared to be law in the case of Farchild v. Gayre, with regard to donatives (k), because though the church is exempted from the power of the ordinary, yet the patron is not; and it holds much more strongly in the case of curacies, where both church and patron are subject to the ordinary's jurisdiction, and where therefore he may likewise sequester the profits and appoint another to take care of the cure, till the patron shall nominate a fit and proper clerk (). In Rex v. Blooer (m) a mandamus was moved for to restore a claimant to his position, it was said, as incumbent of a donative, but it seems clearly to have been only the case of a chapel of ease under the mother church, both from the vicar and also the inhabitants claiming the right of nomination, and especially from the bishop's licence being obtained, which is contrary to Rex v. Blooer. the nature of a donative. It was thus:-A mandamus was moved for to be directed to one Samuel Blooer, a parishioner of Matfield, in Staffordshire, and an inhabitant of the chapelry of Calton within that parish (who had turned Mr. William Langley, the curate of that chapel, out of it after he had been eleven weeks in possession, and locked it up), commanding him to restore the said William Langley, clerk, to the place and office of curate of the said chapel. It appeared that this chapel was endowed with lands, and that the inhabitants of four different parishes contributed to the repair of it. The curate of it had a stipend. The vicar of Matfield swore in his affidavit that he believed he had the right of nomination to it, and that it had been executed, and that Mr. Langley was appointed and nominated by him. But there were contrary affidavits, wherein the deponents sware that they believed the right of nomination to be in the inhabitants. It appeared that Mr. Langley had a licence. Lord Mansfield, Chief Justice: "A mandamus to restore is the true specific remedy where a person is wrongfully dispossessed of any office or function which draws after it temporal rights; in all cases where the established course of law hath not provided a specific remedy by another form of proceeding; which is the case with regard to rectories and vicarages." And the rule was made absolute for a mandamus. No return was made to it, but the parties agreed to try the merits on a feigned issue. The issue seems to have been tried, but the result is not stated. Upon this case being afterwards mentioned, the court took occasion to say, "That they had reconsidered the point, and 1 Inst. P. 344; Gibs. P. 819. (m) 2 Burr. 1043; and see Rex v. Barker, 3 Burr. 1265. weighed all the principles and authorities applicable to it; and were fully satisfied that the properest and most effectual method of trying the right to officiate in such chapels, whether it depended upon nomination or election, was by mandamus." Nevertheless the authority of this case has been much shaken by subsequent decisions. It was observed by Mr. Justice Buller, in Rex v. The Bishop of Chester, that the grounds on Rex v. Bishop which the Court of King's Bench formerly granted or refused a of Chester. mandamus, are not explicitly stated; but the court had lately granted this discretionary writ only in cases where there was no other specific legal remedy, or where such remedy (as an assise) was obsolete. In the last-mentioned case, there was a cross nomination to a curacy, and one of the nominees applied to the court for a mandamus to the bishop to licence him, which the court refused, because he had a specific legal remedy by quare impedit (n). This reasoning seems also to have been adopted in a later case of Rex v. The Marquis of Stafford. The affidavits Rex v. Marin that case stated the usage to be, that the minister of the quis of Stafford. chapel of Willenhall ought to be nominated and appointed by the inhabitants of the town of Willenhall, having lands of inheritance within the town, and being so nominated, ought to be presented and allowed by the lord of the manor of Stowe Heath. That on a commission of charitable uses, in the reign of James I., it was agreed between the lord of the manor and the said inhabitants, that certain copyhold lands should be let, through the medium of trustees, for the reparation of the said chapel and the maintenance of a stipendiary priest or curate, to be nominated by a majority of the said inhabitants, and to be allowed by the lord, and by him presented to the ordinary for a licence to preach. The lord having refused to allow and present the nominee of a majority of the inhabitants, the latter prayed a mandamus, which the court refused, saying their right was either a mere trust, and then their remedy was in equity, or it was a legal right, in which case a quare impedit would lie (o). To every of the several kinds of curates or ministers the Licence. ordinary's licence is necessary before he shall be admitted to officiate. For by Canon 48 of 1603, "No curate or minister shall be Canon 48. permitted to serve in any place without examination and admission of the bishop of the diocese or ordinary of the place having episcopal jurisdiction, under his hand and seal; having respect to the greatness of the cure and meetness of the party. And the said curates and ministers, if they remove from one diocese to another, shall not be by any means admitted to serve without testimony of the bishop of the diocese, or ordinary of the place as aforesaid, whence they came, in writing, of their honesty, ability, and conformity to the ecclesiastical laws of the Requisites before a licence can be obtained. Church of England. Nor shall any serve more than one church or chapel upon one day, except that chapel be a member of the parish church or united thereunto; and unless such the said church or chapel where such a minister shall serve in two places, be not able in the judgment of the bishop or ordinary as aforesaid to maintain the curate" (p). In order to which, (1) He must produce his nomination in form aforesaid. (2) Then it must appear in the next place, that he is in holy orders of deacon at least, if he is to be licensed to be an assistant curate; and of priest, if he is to be licensed to a perpetual curacy; for by 14 Car. 2, c. 4, s. 10, no person shall be admitted to any benefice or ecclesiastical promotion before he shall be ordained priest; and it is the more necessary in this case, because he is the sole incumbent in the parish; and by the same statute, until he shall be ordained priest, he may not consecrate the sacrament of the Lord's Supper. Which words benefice or promotion do also extend to all chapels of ease which have received the augmentation of Queen Anne's Bounty; for by 1 Geo. 1, stat. 2, c. 10, s. 4 (q), it is expressly declared that they shall from thenceforth, that is, from the time of such augmentation, be perpetual cures and benefices. And this must appear to the ordinary, either of his own knowledge or by lawful testimony. Thus by a constitution of Archbishop Reynold, "No person shall be admitted to officiate until proof shall first be made of his lawful ordination "(r). And by a constitution of Archbishop Arundel, "No curate shall be omitted to officiate in any diocese wherein he was not born or ordained, unless he bring with him his letters of orders (s). (3) By the same constitution of Archbishop Reynold, "No person shall be admitted to officiate until proof shall first be made of his good life and learning" (t). And by the aforesaid constitution of Archbishop Arundel, "No curate shall be admitted to officiate in any diocese, wherein he was not born or ordained, unless he bring with him letters commendatory of his diocesan, and also of other bishops in whose dioceses he hath continued for any considerable time; which letters shall be cautious and express with regard to his morals and conversation, and whether he be defamed for any new opinions contrary to the catholic faith or good manners" (u). (4) He must under the law till quite recently have taken the oath of allegiance and supremacy (), for by the 1 Eliz. c. 1, s. 10, every person who shall be promoted to any spiritual or (p) See Gates v. Chambers, 2 Add. p. 177, as to application of this canon to preachers generally. (9) See p. 242, supra. Lind. p. 47. (t) Ibid. p. 47. (u) Ibid. p. 48. See Gibs. p. 896; and Bp. of Exeter v. Marshall, L. R. 3 H. L. p. 17. (x) Contained in 21 & 22 Vict. c. 48. ecclesiastical benefice, promotion, dignity, office or ministry, shall, before he take upon him to receive, exercise, supply, or occupy the same, take the said oaths before such person as shall have authority to admit him. But this qualification has been removed by the Promissory Oaths Act, 1871 (34 & 35 Vict. c. 48); and it seems that a curate does not come within the words of 28 & 29 Vict. c. 122 (y). (5) But such of the said curates as are admitted to a benefice with cure are to take all the oaths and declarations that are required of persons to be admitted to any benefice by 28 & 29 Vict. c. 122 (≈). (6) By Canon 36 of 1865, modifying Canon 36 of 1603, no Canon 36. person shall be suffered to preach, catechise, or to be a lecturer, or reader of divinity, in any parish church, chapel, or other place, except he be licensed either by the archbishop or by the bishop of the diocese, or by one of the two universities; and except he shall first subscribe the declaration of assent to the Thirty-nine Articles and Book of Common Prayer, which is the same as that given in 28 & 29 Vict. c. 122, s. 1 (a). And by Canon 37 of 1865, modifying Canon 37 of 1603, Canon 37. "None licensed as is aforesaid to preach, read, lecture, or catechise, coming to reside in any diocese, shall be permitted there to preach, read, lecture, catechise, or minister the sacraments, or to execute any other ecclesiastical function, by what authority soever he be thereunto admitted, unless he first make and subscribe the declaration aforesaid, in the presence of the bishop of the diocese wherein he is to preach, read, lecture, catechise, or administer the sacraments as aforesaid.” By the 11th article of Archbishop Wake's injunctions it is required, that in licences to be granted to serve any cure, the ordinary shall cause to be inserted, after the mention of the particular cure provided for by such licence, a clause to this effect, "or in any other parish within the diocese, to which such curate shall move with the consent of the bishop (b).” obtained. Also after licence obtained, it seems that they shall take the Requisites oath of canonical obedience, if thereunto required. Thus by a after licence constitution of Archbishop Winchelsea, "To curates received to officiate in any church, it ought to be enjoined in virtue of their obedience, that they duly attend on Sundays and holidays and other days when divine service is to be performed; and thereupon we do injoin, that oath shall be administered and made at their admission: and we do injoin, that they shall also make oath that they will not injure the rectors, or vicars, and governors of the churches or chapels wherein they shall officiate; but that they will humbly obey them, and give them due reverence" (c). (y) See p. 242, supra, and Chap. XI., sect. 7, infra. The act seems only to apply to benefices which are the subject of institution or collation, and to perpetual curacies. See Chap. XI., sect. 7, infra. Stipendiary priests. There is another constitution of the same archbishop, as to stipendiary priests, who shall celebrate the divine offices (d). But this constitution seems to have been intended, not with respect to curates in general, but only such of them as had salaries appointed by particular founders, for praying for the souls of them and their friends or posterity; for such were the stipendiary priests, who officiated in chantries founded and endowed for the purposes aforesaid. Such chapels anomalies. Ministers require licence and incum SECT. 4.-Ministers of Proprietary Chapels. Unconsecrated proprietary chapels are anomalies unknown to the ecclesiastical constitution, which have grown up in the last two centuries. The ministers of such chapels require the licence of the bishop, which be revoked by him at any time, and which cannot be may bent's consent. granted by him without the consent of the incumbent of the parish. Further, any new incumbent has a right to signify his dissent to the licence, and thereby effectually to forbid the minister from further officiating. The following are the cases upon this subject : In Keate v. Bishop of London (e), Keate was libelled against in several articles at the promotion of the rector of St. George's, Hanover Square, for baptising, marrying, and administering the sacrament in a chapel in the parish without a licence from the bishop, and for collecting money in the chapel in the offertory, and not paying the said money to the minister or churchwardens of the said parish. The court discharged a rule for showing cause why a prohibition should not go, for these are matters of spiritual conusance. This is probably the same case as that reported in a later stage as Trebec v. Keith, Feb. 12, 1742. Mr. Keith, minister of May Fair Chapel, which was a chapel of ease to St. George's parish, Hanover Square, of which the plaintiff was rector, being cited into the Bishop of London's court, for officiating as a clergyman of the Church of England without being licensed by the bishop, and having been denounced excommunicate forty days, for contumacy and contempt of the ecclesiastical laws, upon the bishop's certificate into chancery of this fact, the writ de excommunicato capiendo issued. It was moved to quash the writ, and one of the suggestions was, that Mr. Keith was within the Toleration Act. But by the Lord Chancellor Hardwicke: "The act of toleration was made to protect persons of tender (d) Lind. pp. 110, 114. See Johnson, Canons, vol. ii. pp. 322, 323. (e) Serj. Hill's MSS. |