have seen, that when the bishop refuses institution to the clerk, he must give notice of the fact to the patron, specifying very particularly the grounds of his refusal; and it is upon this basis so provided, the patron proceeds: The process in quare impedit,' says Burn, (tit. Advowson) are summons, attachment, and distress peremptory. And the sheriff must summon the defendant (the bishop) by good summoners.' This process, it would appear, may be conducted in a variety of courts; as of Assize, Nisi Prius, Common Pleas, King's Bench, and, finally, in Parliament. Issue being joined, the first point seems to be, to ascertain the truth, and decide upon the validity of those grounds alleged by the bishop as his reason for refusing admission and institution. A variety of reasons which are held valid, are stated in law books, such as, that the presentee is guilty of perjury, manslaughter, incontinence, heresy, schism, &c. If the fact of these crimes be denied, the matter must go to proof before a jury, consisting, perchance, of mechanics or yeomen, totally illiterate, who will have to decide, it may be, whether the acts alleged are schismatic, or the dogmas heretical. Should the fact be established, and the crime sufficient to warrant it, sentence is of course given in favour of the bishop.

But, on the other hand, should the bishop allege only in general, as that he (the presenter) is schismaticus inveteratus, or objects a fault that is (not malum in se, but,) malum prohibitum, merely as haunting taverns, playing at unlawful games, or the like, it is not good cause of refusal.* The bishop, indeed, must be very specific in the charge alleged. It is not enough that he affirm the presentee is non idoneus, or that he is criminosus, or hereticus, or schismaticus inveteratus, and it has been ruled that such pleas are inadmissible.+

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Should the patron gain the plea, he obtains from the court writ, ad admittendum clericum, addressed to the bishop, reciting the judgment of the court and ordering him to admit and institute the clerk, . . . and if upon this order he does not admit him, the patron may sue the bishop in a writ, quare non admisit, and recover ample satisfaction in damages. Again, should the bishop, during the dependence of a suit between two litigants for the right of presentation, collate his own clerk, as if the patronage had fallen

Blackstone, b. i. c. 11.

Watson, c. 26. We would beg leave here, in transitu, to query, when Lord Aberdeen in his bill required the grounds, on which a presentee was rejected, to be very distinctly recorded by the presbytery, whether it was not his intention to drag the case into the civil courts for trial, both of the fact and of the law, and also of the validity of the ground alleged, as is done in England? When we see the determined efforts that are made to assimilate our courts and powers to those of the Church of England, we certainly cannot banish some such suspicion from our mind."

Blackstone, b. iii. c. 16.

to him by lapse, the party who gains the plea, provided he had served the bishop with a writ of ne admittas, can extrude the incumbent thus collated, not only from the temporalities, but also from the spiritualities of the parish by a writ of quare incumbravit. Further, should the bishop, during the dependence of the suit, institute the clerk of the party who loses the plea, then the rightful patron, by a writ of scire facias, can order the bishop to deprive the clerk, at present in possession, both of the benefice and of the cure of souls.

The Court of Session has not yet given any analogous decisions in Scotland, merely, we are more thoroughly persuaded, because no case has of late occurred which required the application of the principles we have here referred to. Should, however, such a case occur, we feel convinced, by the principles recently avowed by that Court, that not only would they deprive a clerk, illegally presented and admitted, of the fruits of the benefice, but order the presbytery also to deprive him of the cure. At all events, should the legal patron present his clerk, and the presbytery assign, as the reason for not inducting him, that the parish was full, the very principles on which the Auchterarder case was decided would come into play, and (not a doubt of it) with the same result which, in such circumstances, would happen in England. It is true, indeed, that various decisions have been given by their Lordships' predecessors, which went upon other principles and led to other results. But that, it ought to be remembered, was before it was discovered that the best basis on which to rest decisions in ecclesiastical cases were the Black Acts,-the opinions of continental divines, Papal extravagants, and, above all, fanciful analogies drawn from the laws of England. The old judges, happily for the church, were not aware of their powers. Good easy-minded men, they never dreamt that the Court in which they presided was supreme, not only in things civil, but equally so in things spiritual; nor did it ever occur to them that ministers, in their most sacred functions, were as much subject to their control as the pettiest civil officer in the land.

Having thus shown the manner in which an incumbent in England becomes possessed of a benefice, we may show how he is deprived of it. We have already remarked that the bishop has the most unlimited authority over the curate, can prevent his obtaining a cure, or remove him at pleasure. It has also been evident that in the admission, institution, and induction of presentees the bishop is not destitute of all power. But we come now to show that when the presentee has become an incumbent, the bishop has

• Blackstone, b. iii. c. 16. Watson, c. 26.

almost no power whatever to deprive him of his benefice, let his opinions be the most heretical and his conduct the most immoral. Previous to his induction, or at all events to his presentation, the clerk, like our preacher, had no standing in the eye of the civil law. But the moment he has had livery and seisin' of his freehold, which is his benefice, he is placed almost beyond the reach of the ecclesiastical power.

It is a maxim in English ecclesiastical law, that whatever is a sufficient reason for refusing institution is a valid ground of deprivation. The converse of this maxim must also hold good, viz., that whatever is not sufficient to bar a presentee's induction into a parish, cannot be sufficient to eject him from it. But then we have seen, on the authority of Blackstone, that a mere malum prohibitum, as contradistinguished from a malum in se, is no valid objection to a presentee; that is, as we understand it, an act must not only be prohibited by the church courts, but must be evil in itself, (and of that the temporal courts must be the sole judges,) before its commission can expose either a presentee or an incumbent to any ecclesiastical penalty.

It is another maxim in Anglican ecclesiastical jurisprudence, that induction in the case of a clergyman is analogous to livery and seisin' in that of a land-owner,-the parish being the freehold of the one as the estate is of the other. A presentation itself is, indeed, regarded as very much altogether a civil matter, having, however, some ecclesiastical elements in the way of its leading to an actual possessory property. But the moment induction has terminated the process of both civil and ecclesiastical possession,that is possession of the cure and the benefice,-the matter becomes almost altogether a matter of pure civil cognizance. The stern jealousy with which the law of England has ever watched over the transfer and possession of property, at once throws around the inducted clergyman its broad ægis, from behind whose impenetrable protection he can safely defy almost any assault from ecclesiastical antagonists, and can maintain his possession of a parish let his violations of mere ecclesiastical law be as numerous and as aggravated as they will.

Instead of proving all this by reference to statutes and precedents, as we have done under the former head, we doubt not it will be more satisfactory to far the greater part of our readers, as it will be shorter and easier for ourselves, to give an instance or two in illustration and proof. The third, indeed, of the following cases ought to have been introduced under the former head, as it relates to a case of admission. Besides, however, illustrating the point then under consideration, it will go some length to prove the point at present before us. The cases are taken from the work we have

placed at the head of this paper. That work was written by a living clergyman of the Church of England,-a warm, indeed an enthusiastic admirer and most zealous advocate of that Church,a man of experience and eminence in his profession,-standing upon most intimate terms with several of the prelates, from whose own lips, and not from a less respectable authority, he has derived his information on the cases he reports.

"I have taken no pains," he says himself, "to hunt for instances; and in the retirement of a country parsonage, at a distance from public records, even of the humblest description, I have no facilities for adducing those cases which would make the most for my purpose. A few instances I may be permitted to give: the three first were mentioned to me in the freedom of personal intercourse by the bishops themselves to whom they occurred." P. 28.

"The first instance was that of a prelate who, . . . having felt compelled to proceed against a clerical delinquent on two distinct charges, he informed me that on one of these charges the accused person had been found guilty, but that the proceedings on the graver charge were still pending in consequence of the scandalous delay of the ecclesiastical courts. The result was, that the culprit died before the termination of the proceedings, and the bishop, for this painful but necessary exercise of his episcopal function, was saddled with costs to the amount of some hundreds of pounds." Pp. 28, 29. “Another venerable prelate . . . felt called upon to proceed against one of his clergy for open and habitual drunkenness. The clergyman was found guilty and suspended; the bishop, however, had to pay L.150. This, as he observed, was of no consequence to a diocesan possessed of a princely revenue (as happened to be the case with him); but to a bishop of limited income such costly exercise of discipline might be a serious inconvenience." P. 29.

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The reader may be surprised that a clergyman found guilty of open and habitual drunkenness,' should only be suspended.' We have shown above, however, that haunting taverns and ale houses' is only a malum prohibitum,' which is no bar to a presentee's induction into a benefice; and with admirable consistency it has been determined, that open and habitual drunkenness' afterwards is no valid ground for depriving him of his living! Such is Anglican ecclesiastical law. Such is prelatic discipline.

Indeed, it would appear as if deposition is seldom or never inflicted in the Church of England; and that for two reasons: First, that Church seems to have retained the Popish dogma, that orders impress a character which cannot be erased. It was on some such ground that Horne Tooke was refused a seat in the House of Commons. And yet even the Church of Rome by her process of degradation is supposed to erase the sacerdotal character. But then deposition, in the second place, would involve deprivation of the fruits of the benefice. And, as the latter is a civil act, and would of course call in the interference of the civil courts, the prelates seem to think it best to remain satisfied with suspending a delinquent from the exercise of his spiritual functions, allowing him, all the time, to enjoy the temporalities.

VOL. XVI. NO. 1.

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Upon no other supposition can we account for some facts that have fallen under our own observation. A minister of the English Church, some six or seven years ago, was detected in circumstances that left not a shadow of doubt that he had been guilty of a very gross crime. The bishop of the diocese is decidedly the best prelate in England; and yet the delinquent was only suspended. Another case, but not so gross, has, not long ago, led also to suspension. But, in both instances, the suspended delinquents continue to enjoy the temporalities, and the people are compelled to maintain a curate to supply their place.

Two inferences we may draw from these facts for the special benefit of our Moderates, and our law-of-the-land men. First; whenever the civil courts interfere in spiritual cases, discipline is at an end. And secondly, a temporary suspension of the relation between benefice and cure frequently happens in England, that happy land of precedents and perfection; although some of our judges seem to regard such suspension as both illegal and absurd.

"My third instance," says our author, "is that of a prelate . . who refused institution upon a simoniacal presentation, and was obliged to defend such refusal in a court of law. The decision was in his favour; and the judge who pronounced it, added, that the bishop had only done his duty, and could not have acted otherwise. The proceedings entailed an expense of more than a hundred pounds upon the bishop, who, in speaking of it, remarked that with his large family it was a little hard to be obliged to pay a hundred pounds for doing his duty. The regular revenue of the bishopric which he then held, did not, I believe, at the time, exceed a thousand pounds." P. 30.

Now we put it to the conscience of those parties whose manifest intention it is to assimilate the law and practice of Scotland to those of England, whether they believe that to make conviction in cases of clerical delinquency so difficult and expensive as it was in the above instance, would really benefit either the country or the Church? Of one thing we are certain, the Court of Teinds must be much more liberal in allowing some part of the unexhausted teinds to parochial clergymen, than hitherto they have been, if discipline is to be so expensive, and is to be exercised at all. Nor can we doubt, indeed, that the income of our presbyteries is to be increased, when so unanswerable an argument can be adduced in its favour, as that under the altered circumstances we are so soon to experience, the greater part of it will find its way into the pockets of the 'gentlemen of the long robe,' who will be employed in such cases of discipline.

"Another instance," says our author, . . . "is that of a prelate, whose conscientious endeavour to exercise episcopal control and correction upon a delinquent clergyman, cost him several hundred pounds." But he concludes, "such instances are without number, aud the public papers have very recently repeatedly brought before us a case of considerable aggravation.