Their origin. Perpetual curacy is a benefice. What is a per consequently not a secular ecclesiastic; and the like exemption from the necessity of appointing a vicar was sometimes also granted by dispensation, or on account of the nearness of the church.m At the dissolution of the monasteries, when appropriations were transferred from spiritual societies through the king to single lay persons, to them also, for the most part, was transferred the appointment of the vicars in the parishes where they were the appropriators, and in places where, by means of exemptions, there was no regularly endowed vicar; and as they were appropriators of the whole ecclesiastical dues, the charge of providing for the cure was laid on them, for neither in fact, nor in presumption of law, nor habitualiter, could a lay rector as such have cure of souls; they were consequently obliged to nominate some particular person to the ordinary for his license to serve the cure; and such curates thus licensed became perpetual, in the same manner as vicars had been before, not removable at the caprice of the appropriator, but only by due revocation of the license of the ordinary." A perpetual curacy was formerly adjudged not to be an ecclesiastical benefice, so that it was tenable with any other benefice; but now perpetual curacies are expressly declared to be benefices within the meaning of that word, in the Benefices Pluralities Act, and a perpetual curate is consequently liable to its restrictions, in the same manner as any other incumbent.o In some cases it might be a matter of considerable diffipetual curacy. culty to determine whether a place is a perpetual curacy or a chapelry only; and the more so, since for most practical purposes the question would be quite immaterial, and therefore less likely to have been judicially determined; but as an aid in deciding certain other questions which might arise, it might be important; and the following are the rules laid down by Lord Hardwicke for determining whether it is perpetual curacy or not. Three tests to determine it. To determine this, he says, consider it first as to the rights and privileges appearing to belong to the chapel itself; next as to the right of the inhabitants within the district; thirdly, as to the rights and dues belonging to the curate of the chapelry. If all these rights concur to show the nature of a perpetual curacy, that must determine it. m See 1 Black. Com. 387. n Gibs. 819; Duke of Portland v. Bingham, 1 Hagg. Rep. 162; AttorneyGeneral v. Brereton, 2 Ves. sen. 427. • See 1 & 2 Vict. c. 106. church. As to the first consideration, it appears this is a chapel First test: belonging to a country town. It has belonging to it all Rights belongsorts of parochial rights, as clerk, warden, &c., all rights ing to the of performing divine service, baptism, sepulture, &c., which is very strong evidence of itself that this is not barely a chapel of ease to the parish to which it belongs, but stands on its own foundation, capella parochialis, as it is called in Hobart; and this differs it greatly from the chapels in London, which are barely chapels of ease, commencing within time of memory, which have not baptism or sepulture; all which sort of rights belong to the mother church, and the rector or vicar of the parish, who has the cure of souls, has the nomination, as the rector of St. James's or St. Martin's has, but they have no parochial rights, which clearly belong to this chapel. Nor have any of the inha- Right of sepulbitants of this chapelry a right to bury in the parish church ture. of Northop, and that right of sepulture is the most strong circumstance, as appears from 3 Selden's Hist. Tithes, fol. column 1212, to show that it differs not from a parish church. The next circumstance to determine this question is the Second test: right of the inhabitants, viz. to have service performed Rights of the there, and baptism, and christening, and having no right inhabitants. to resort to the parish church of Northop for these purposes, nor to any other place, if not here; nor are they or have they been rateable to the parish church of Northop. It was determined in the case of Castle Birmidge, Hob. 66, that the having a chapel of ease will not exempt the inhabitants within that district from contributing to repairs of the mother church, unless it was by prescription, which would then be a strong foundation that it must be considered as a curacy or chapelry. All Third test: curate. Next, as to the rights and dues of the curate. these concur to show it to be a perpetual curacy, and not Rights of the at all at the will and pleasure of the vicar; for the curate has always enjoyed the small tithes and surplice fees, nor is there any evidence to show that the vicar has received the small tithes. A nomination to a perpetual curacy may be by parol. Nomination to, "Most regularly," Lord Hardwicke says, "it ought to may be by be in writing;" but, he adds, "I do not know that it has parol. been determined that it is necessary. A presentation to a church need not be in writing, but may be by parol; if so, I do not see why a nomination to a perpetual curacy may not be by parol." The parish to which it was contended that this was a chapel only. 4 See Attorney-General v. Brereton, 2 Ves. sen. 427. r Ibid. Is an interest for life. A perpetual curate has an interest for life in his curacy, in the same manner and as fully as a rector or vicar, that is to say, he can only be deprived by the ordinary, and that in proper course of law; and, as Lord Hardwicke observes, it would be a contradiction in terms to say that a perpetual curate is removable at will and pleasure. The ministers of the new churches to which separate parishes or ecclesiastical districts have been assigned under the provisions of the Church Building Acts, are perpetual curates, so that they are severally bodies politic and corporate, with perpetual succession; and consequently may accept grants made to them and their successors; and they are to be licensed and to be removable in the same manner as other perpetual curates. This is also the case with those ministers who are appointed to new districts or parishes under the Church Endowment Act. And as license operates to all such ministers in the same manner as institution would in the case of a presentative benefice, it would render voidable any other livings which such ministers might hold, in the same manner as institution.' Parties here treated of. Lecturer, office of. SECTION 9. Of Ministers of Chapels of Ease, Proprietary The ecclesiastical persons above mentioned will be conveniently considered together in the present chapter, since the law, so far as it is here treated of, that is, so far as it affects these persons in their relation to the bishop and to the incumbent of the parish, applies equally, or very nearly so, to all who being neither rectors, vicars, perpetual nor stipendiary curates, nor such ministers of new churches as are to be legally deemed perpetual curates, officiate nevertheless in some church or chapel by virtue of a license from the bishop or archbishop; which license is to these persons what institution is to the rector or vicar. The office of lecturer is always engrafted upon some already existing ecclesiastical establishment, where the spiritual wants of the parish are already in part supplied by there being antecedently some person appointed to perform the rites and service of the church;" and, in its See Attorney-General v. Brereton, 2 Ves. sen. 427. t See 1 & 2 Will. 4, c. 38, s. 12; 2 & 3 Vict. c. 49, s. 2; 6 & 7 Vict. c. 37, s. 12. " 15 East, 142. the word. strictest sense, a lecturer would be a spiritual person Extended licensed to read the service in a parish church at some meaning of other times and on some other occasions than those when the service is performed by the incumbent or his curate; but as the minister of the parish has the same ecclesiastical rights out of his church as in it, and throughout his whole parish, and is entitled to perform the service in every consecrated building in his parish,' a lecturer would be in the same position as regards him, whether he was to officiate. in the parish church or in some chapel situate within the parish. Consequently, that term has been often used as denoting all spiritual persons, licensed as such to officiate. at some time independently of the minister, whether in the parish church or in some chapel within the parish. But these cases must not be confounded with those of ministers of churches or chapels which, although in some sense within the parish, have a separate ecclesiastical district assigned to them.* As to the foundation of such offices, it can only be Foundation of. done with the assent of patron, incumbent and ordinary, What consent for as it was said in argument in the case of The King v. necessary. Bishop of Exeter, it would be productive of great public inconvenience if every person who chose to dedicate a small freehold in a parish to the use of a lecturer, could therefore appoint whom he pleased to preach in the parish church without the assent of the incumbent. By the same rule, any number of persons might do the same to the entire overthrow of all order and discipline in the Church. And it was by that case completely established, that it was not competent to any person to engraft a lectureship by compulsion on the Church; for that otherwise it might be done for the most capricious purposes, and in abuse of the regular institutions of the Church, and might overthrow the whole establishment. In consequence of the objection by the vicar, in whose Immemorial parish a lectureship was founded, the Bishop of Exeter custom. refused to license the lecturer, who thereupon applied for a mandamus to compel him. It was objected that the period when this lectureship was founded, anno domini 1658, proved not only that it was not immemorial, but that it could not have a legal origin for want of one of the proper parties to assent to the endowment; for that this, together with other sees in the kingdom, was at that time vacant. Upon which Lord Ellenborough says, "This cannot exist by immemorial custom, which the law presumes to have had a legal commencement, because it is ▼ 2 Hagg. R. 46. * See Book III. Chap. I. y 2 East, 462, Express act of parliament. Endowment what proof of custom. Incumbent may, a traced to its commencement in 1658, and it could not then have had a legal commencement; because, even if the bishop, the rector and the vicar could by their joint consent engraft it on the Church, there were no such persons then at all existing having competent authority to accept the endowment on the part of the Church. In another case, the circumstance that the lectureship was not endowed, but depended upon voluntary contributions, was considered sufficient proof that it could not have existed by immemorial usage; and so in another case, where there was no endowment, but the lecturer received a certain sum from the parish officers out of the money raised by the poor rates; which was like the case of a rank modus, and carried upon the face of it evidence of having had a commencement since the establishment of poor rates, and consequently within the time of legal memory. b Besides immemorial usage, a lectureship may be established in a parish by express act of parliament; and this is the case with the lectureships in several of the metropolitan parishes. If the lectureship be endowed, that circumstance, according to Lord Mansfield, affords a strong argument to support the custom, and to show that it had a legal commencement; but if the period of the endowment and the commencement of the usage under it could be shown, the argument would be of no force. Lord Northington appears to have considered that a mere arbitrary agreement between patron, parson and ordinary, to a foundation of a chapel of ease in the parish, could not be supported; but that if such an agreement included a compensation to the parson, it might be good.d Upon which opinion it is observed by Abbott, C. J.: "Perhaps that expression requires some qualification; and where nothing is taken from the income of the incumbent, the consent of the parson, patron and ordinary, without a compensation, may be sufficient." The effect of an endowment and immemorial custom in all cases, ob- proved, would be, that the bishop could not refuse to ject to any particular appoint- license, or the incumbent refuse his assent to an appointment generally; but as to their right to refuse in the case of any particular person who might be appointed, that, whether the foundation were proved to be legal or not, is undoubted, unless the immemorial usage proved be that ment. 2 The King v. Bishop of Exeter, 2 East, 462. a The King v. The Bishop of London, 1 T. R. 331. e See 4 Barn. & Cres. 568. |