and the commissioners may make compensation for any loss of fees or emoluments which any clerk or sexton may sustain by reason of such division. But as we have already observed, in speaking of the fees to be claimed by the parish clerk in such cases, there will be a considerable difference in the different parishes and districts. The only uniformity being in the mode by which the fees may be recovered. And this, in the case of the sexton, would be by action at common law, as in the case of the clerk.

BOOK II.

OF THE PROPERTY OF PERSONS ECCLE-
SIASTICAL, AND OF THE PROVISION
RECOGNISED BY LAW FOR THEIR SUP-

PORT.

CHAPTER I.

LANDS OF ECCLESIASTICAL CORPORATIONS.

Provisions for maintenance of the clergy.

Lands of ecclesiastical corporations.

SECTION 1.

Rights and Restrictions of Ecclesiastical Corporations in respect of their Lands.-Waste.

HAVING spoken of the various ranks and dignities of persons ecclesiastical, we come now to speak of the provision recognised by the laws of this country for their decent maintenance and support. The manner in which this is given, and the sources from which it is derived, are various, especially since new sources of income, formerly unknown to the law, have been introduced by recent statutes. Of these various provisions we now proceed to speak in their order,—a subject very extensive in its nature, and which will necessarily embrace a great variety of important collateral points. The first of these sources of revenue is that derived immediately from lands expressly given to some particular ecclesiastical persons for their support.

These lands they hold, in each instance, as a corporation; for every ecclesiastical person to whom lands are given, or on whom they devolve, is either a corporation sole, or a member of a corporation aggregate, for the purpose of holding such lands; for it has been found necessary, when it is for the advantage of the public to have particular rights kept up and continued, to constitute artificial persons, who may maintain a perpetual succession and enjoy a kind of legal immortality; and these artificial persons are corporations aggregate or sole; aggregate, as the dean and chapter of a cathedral or collegiate church;

of a

sole, as a bishop, a dean distinct from his chapter, each
individual member of that chapter, a parson or a vicar;
all of whom, in their artificial character, have legal ca-
pacities and advantages, especially in the holding of lands,
which in their natural persons they could not have had;
and the necessity, or at least use, of this institution, will
be very apparent if we consider the case of a parson
church. At the original endowment of parish churches,
the freehold of the church, the churchyard, the parsonage-
house, the glebe and the tithes of the parish, were vested
in the then parson, by the bounty of the donor, as a tem-
poral recompence to him for his spiritual care of the
inhabitants, and with intent that the same emoluments
should ever afterwards continue as a recompence for the
same care. But how was this to be effected? The free-
hold was vested in the parson; and if we suppose it vested
in him in his natural capacity, on his death it might de-
scend to his heir, and would be liable to his debts and
incumbrances, or at best the heir might be compellable,
at some trouble and expense, to convey these rights to
the succeeding incumbent. The law, therefore, has wisely
ordained that the parson, quatenus parson, shall never
die, any more than the king, by making him and his suc-
cessors a corporation; by which means all the original
rights of the parsonage are preserved entire to the suc-
cessor; for the present incumbent and his predecessor,
who lived seven centuries ago, are in law one and the
same person, and what was given to the one was given to
the other also.a

And what is here said by Blackstone, as to lands given to a parson, is equally applicable to the case of all lands given to any ecclesiastical corporation, whether sole or aggregate.

In this country the king's consent is absolutely neces- Ecclesiastical sary to the erection of any corporation, but such consent corporations by may be impliedly given; and it is to be implied in the common law. case of corporations which exist by force of the common law, to which our former kings are supposed to have given their concurrence; common law being nothing else than custom arising from the universal agreement of the whole community. Of this sort are all bishops, parsons, vicars (and, for this purpose of holding lands, churchwardens), who by common law have ever been held, so far as our books can show us, to have been corporations virtute officii; and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete

a 1 Black. Com. 470.

Right of ecclesiastical corporations in

legal idea of any of these persons, but we must also have an idea of a corporation capable to transmit his rights to his successors at the same time.b

All lands, therefore, which are held by ecclesiastical persons eo jure, are held by them in their corporate catheir property. pacity; and from this circumstance it is that there have not been wanting those who, regarding the whole body of ecclesiastics as forming one great corporation, consider all lands, which may be vested in any particular member or members of it, as not being wrongfully diverted if applied to the use of some other member or members. Nothing can be more fallacious than such a proposition. The ecclesiastical body is wanting in every legal requisite of a corporation; and the lands which are held by its different members were probably never given by the grantors, or intended to be given for any common purpose. Those who, from some local connection, or for the benefit of their own lands in the neighbourhood, richly endowed a particular ecclesiastical corporation there situate, could no more have contemplated the benefit of some distant village or district not then in existence, than he who gives his property to his heirs would contemplate its diversion to another family, if a family should be found more needy than his own. Every ecclesiastical corporation, whether aggregate or sole, holds his or their lands as distinct and independent of every other as the corporation of Bath holds its property independently of that of London. The university of Oxford is in itself a corporation, established for the purposes of education, while each college in that university is also a corporation for the same purposes. With far greater force, therefore, might it be said that the revenues of one college might be properly diverted to the aid of another, so long as those revenues were employed for the general purposes of edu

cation.

Legally, however, the only guide to the proper employment of the funds of a corporation is the will and intention of its founder, an intention either expressed directly, or to be implied from the fact, that the funds have from time immemorial been employed for one uniform purpose, nor is it easy to foresee the extent of difficulties and dangers which might ensue from the departure from a rule at once so simple, just and obvious.c

Although, therefore, a considerable part of the revenue for the support of members of the ecclesiastical body is derived immediately from land, there is no such thing as But see ante, Ecclesiastical Commission.

b 1 Black, Com. 472.

church land properly so called. But all lands of this nature are the property of some particular corporation; and consequently they are, in many respects, subject to the same laws as affect the land of other corporations, whether lay or ecclesiastical; and, for the consideration of our present purpose, it will not be necessary to make any dictinction between the lands of those whom we have mentioned as corporations sole, or those of corporations aggregate.

quasi tenants for

life.

Bishops, rectors, parsons, vicars, and other ecclesiastical persons, while they have, in their corporate capacity, the fullest possible right in their lands to themselves and their successors, are yet, in their individual capacity, considered, in most respects, as tenants for life of those lands, which they hold jure ecclesiæ. Archbishops and bishops Ecclesiastical were formerly considered as tenants in fee simple of the persons are lands which they held in such right. And in the case of Jefferson v. The Bishop of Durham, Rooke, J., observes, "I consider the bishop as having, to certain purposes, a fee simple in his bishopric; but he is seised, to a certain extent, as a public officer, for public trusts." As to rectors, parsons and vicars, Lord Coke says, that for the benefit of themselves and their successors, they were in some cases esteemed in law to have a fee simple qualified. But, if anything was to be done to the prejudice of their successors, the law esteemed them to have, in effect, but an estate for life: and since the several statutes hereafter to be mentioned, by which all ecclesiastical corporations are restrained from alienation, they are generally considered as quasi tenants for life only. Consequently, Waste. like all tenants for life, they are prohibited from destroying those things which are not included in the temporary profits of the land, because that would tend to the lasting loss of their successors. Such destruction is called waste, which all ecclesiastical corporations are disabled from committing. If, therefore, they cut down trees upon Punishable. their lands, except for reparation, they are punishable in the ecclesiastical courts, and may also be prevented from so doing, as hereafter mentioned.

By the statute 35 Edw. I., which we shall notice more Whether prohiparticularly hereafter, it is declared, that parsons shall not bition would be presume to fell trees growing in the churchyard, but when granted. the chancel or body of the church requires reparation. And Lord Coke has cited a case, where, upon complaint

d Vin. Abr.

1 Inst. 44a; ibid. 341 a and b; Cruise, Dig. tit. 3, ch. i. ; Litt. 648. f Vin. Abr. tit. Dilapidations.