mit and license him. Whereupon it was moved in the court of king's bench, for a mandamus to the bishop to admit and license the curate.

On fhewing caufe, it was infifted on behalf of the dean, that by the local ftatutes the dean's confent is neceffary, and confequently, that without this the nomination is not good. The claufes in the ftatutes refpecting this point are thefe four:

In chap. 5. De efficio decani.

·Statuimus etiam

et volumus, in omnibus caufis gravioribus, veluti in fesdi conceffione, terrarum et firmarum dimiffione, ac beneficiarum collatione, aliifque id genus rebus, decani (fi præfens fit) confenfus obtineatur, fin abfens fuerit (modo intra regni nofiri Angies li mites degat) confenfus ejus requiratur.

-Porro, quoni

In Chap. 6. De vifitatione terrarum. am crebra capituli mentio in iis ftatutis habetur; fub capituit nomine ubique intelligimus mediam ad minus partem totius numeri omnium canonicorum: Ea enim fola tanquam per capitulum recta haberi volumus, quibus media ad minus pars totius numeri omnium canonicorum fimul præfens adeft, et exprefe eidem confentiat: Nam abfentium canonicorum fuffragium (fi quid ferre voluerint) nullo modo valere finimus, nec alicujus roboris effe.

In Chap. 7. De dimiffione terrarum ad firmam. Præterea volumus, et nec decanus nec canonicorum ullus terras aut tenementa ulli locet aut ad firmam dimittat, fine confilio et confenfu capituli.Sacerdotia vero, id eft, rectoriam, vicariam, aut alia ejus generis ecclefiaftica beneficia, ad collationem ecclefiae noftræ fpectantia, decanus cum capitulo, aut (abfenie decano) vicedecanus cum capitulo conferendi aut epifcopo prefentandi jus et poteftatem habeant.

Statuimus et

In Chap. 18. De officio vicedecani.volumus, ut vicedecanus qui pro tempore fuerit canonicis et omnibus miniftris ecclefiæ noftræ (decano abjente, vel decanatu vacante) præfit et profpiciat, eofque in ordine contineat; et quæcunque fieri deberent per decanum præfentem, quod ad ecclefia negotia et regimen pertinet, ipfo abfente aut ipfius officio vacante, bene et fideliter faciat et miniftret.

For the dean it was urged, that by the 5th statute abovementioned, his confent, if he is prefent, muft perfonally be obtained; and if he is abfent, provided he be within the kingdom, his confent nevertheless is required.

To which it was answered, that the 7th ftatute explains this fully; whereby it appeareth, that the dean and chapter if the dean is prefent, and if he is abfent, the vicedean and chapter fhall nominate and prefent.

It was further infifted on behalf of the dean, that the bifhop is vifitor by the local ftatutes, and thereby is appointed the expounder and interpreter of the faid ftatutes when any doubt fhall arife. But this objection was overruled partly, as it fe-meth, becaufe Mr. Richardfon was no member of the chapter or body corporate fubject to the bishop's local vifitation, and having by his nomination obtained a temporal right, was therefore properly before the court, to have that right afferted; and partly, perhaps, because this matter of vifitation was not then before the court, but would come in regularly upon the bishop's return to the mandamus, if he fhould fo think fit thereupon to return himself visitor; and perhaps partly because this negative power, if given to the dean by the local ftatutes, might be deemed by the court to be conAnd the rule for a mantrary to the law of the land. damus was made abfolute: fetting forth, that whereas Henry Richardfon, clerk, had been nominated to the faid curacy, and had applied to the bishop to admit and licenfe him, and that the bishop had refufed fo to do, in contempt of the king, and to the damage and grievance of the faid Henry Richardfon, and to the manifeft prejudice of bis eftate; therefore the bishop is commanded (in the ufual form) to admit and licenfe him, or fhew cause to the contrary (1).

The bishop upon the mandamus admitted and licenfed the curate; fo that the whole caufe upon the merits came not to be determined. If the dean had appealed to the tifhop as vifitor, and the bifhop had determined for the dean's negative power; or if the bifhop had returned himself vifitor upon the mandamus, and thereupon had proceeded to vifit and determine as aforefaid; then upon a prohibition it would have come to be confidered, how far thefe local ftatutes in this particular are confiftent with the laws of the land, according to the third reftriction in the ftatute of the 6 An. before recited.

(5) And this introduces the act of the 33 H. 8. c. 27. Election by ma which is as follows: Albeit that by the common laws of this jority. realm of England, all affents elections grants and leafes, had made and granted, by the dean warden provoft mafter prefident or other governor of any cathedral church hofpital college or other corporation, with the affent and confent of the more or

(1) See Curates, 4 and 10, in the notes.

I 2

greater

greater part of their chapiter fellows or brethren of fuch corparation having voices of aflent thereunto, be as good and effectual in the law to the grantees and leffees of the fame, as if the refidue or the whole number of fuch chapiter fellows and brethren of fuch corporation, having voices of affent, had thereunto confented and agreed; yet the faid common laws notwithfanding, divers founders of fuch deanries hofpitals colleges and corporations within the faid realm, have upon the foundation and establishment of the fame deanries hofpitals colleges and other corporations, eftablished and made (amongst other their peculiar ats) local ftatutes and ordinances that if any one of fuch corporation, having power or authority to affent or difaffent, fbould and would deny any fuch grant or grants, that then no fuch leafe election or grant fhould be had granted or leafed; and for the performance of the fame, every person having power of affent to the fame, have been and be daily thereunto fworn, and fo the reflue may not proceed to the perfection of fuch elections grants and leafes, according to the courfe of the common laws of this realm, unless they should incur the danger of perjury: for the avoiding whereof, and for the due execution of the common law univerfally within this realm, and every place in one conformity of reafon to be used, it is enacted, that all and every peculiar act order rule and eftatute, heretofore made, or hereafter to be made, by any founder of any hofpital college deanry or other corporation, at or upon the foundation of any fuch hofpital college deanry or corporation, whereby the grant leafe gift or election of the governor or ruler of such hospital college deanry or other corporation, with the affent of the more part of fuch of the fame hofpital college deanry or corporation as have ar fhall have voice or affent to the fame, at the time of fuch grant leafe gift or election hereafter to be made, should be in any wife hindred or let by any one or more, being the leffer number of fuch corporation, contrary to the form order and courfe of the common law of this realm of England, shall be from henceforth clearly fruftrate void and of none effect; and that all oaths heretofore taken by any person of fuch hofpital college deanry and other corporation, fhall be, for and concerning the obfervance of any fuch order eflatute or rule, deemed void and of none effect; and that from henceforth no manner of perfon or perfons of any fuch hofpital college deanry or other corporation, fhall be in any wife compelled to take an oath for the obferving of any fuch order eftatute or rule; on pain of every perfon giving fuch oath, to forfeit for every time fo offending the fum of 51. half to the king, and half to him that will fue for the fame in any of the king's courts of record.

The

The act feemeth to be expreffed in terms fomewhat inaccurate and confused; but the manifeft intention is, to eftablish the rule of the common law, that a majority of the body corporate fhould bind the reft. In fome parts of the act the dean feemeth to be contradiftinguished from the chapter; fo as that the negative of the inferior number of the chapter only, exclufive of the dean, was hereby intended to be taken away; but the other parts of the act feem to explain this; expreffing, that all local ffatutes, whereby the grant leafe or election of fuch corporation fhould be any wife hindred by any one or more, being the leffer number of fuch corporation, contrary to the course of the common law, fhall be void. And it is certain, the dean is one and but one member of the body corporate.

Unto all which may be added, that the rule for the neceffity of a majority of the whole body to be confenting, is not only agreeable to the common law and (as it feemeth) to the declaration of the faid ftatute of the 33 H. 8. but alfo to the ancient canon law, which clearly determineth, that elections fhall be made by the major et fanior pars, that is, by a majority of legal votes (as is before fet forth at large under the title Cathedrals) (u).

(a) A majority of the chapter is neceffary to conftitute a valid election, but the court of king's bench will grant a mandamus to compel an election at the peril of thofe who refift, and perhaps the bifhop by ecclefiaftical cenfures may also compel them to do their duty, but he cannot by his ordinary or vifitatorial power fill up a vacancy which the chapter has not filled up in due time. Harward and Webber v. the Bishop of Chichester in prohibition, 1 T. Rep. 650. And the court doubted whether the bishop could in the case of such a vacancy make a temporary appointment. Per Buller J. many points have been decided by this court on great deliberation. It has been refolved, 1. That a mandamus will lie to compel the dean and chapter to fill up a vacancy among the canons refidentiary; and on fuch a mandamus the court will compel an election at the peril of those who relift. 2. That the election is in the dean and canons. 3. That the dean has no calting voice. 4. That the canons have a right to vote by proxy. 5. That there is no lapfe to the bishop in the case of a canonry. Ib. See more on elections, Cathedrals, 6. and Hospitals, 4.

Deans without juridiction.

Without a chap

ter.

Dean of Battle.

Dean of the
Arches.

V. Of deans of peculiars.

1. The word dean is alfo applied to divers that are the chief of certain peculiar churches or chapels; as the dean of his majesty's chapel royal, and the dean of the chapel of St. George at Windfor; not being the heads of any collegiate body, nor endowed with any jurifdiction, but only dignified and honored with the name and title. God. 52. 54.

2. And as there are fome deans without jurifdi&ion, fo there are alfo fome deans with jurifdiction, but without any chapter; as the dean of Croydon in Surrey, the dean of Battle in Suffex, the dean of Bocking in Essex, and many others. God. 52.

3. Altho' the bishop of Chichester doth admit the dean of the exempt jurifdiction of Battle within that diocefe, and doth commit to him the cure and jurifdiction of that church; yet the patron thereof is to inflitute and induct him, and the patrons accordingly have given the deans inftitution and induction for fome hundreds of years, and without queftion fuch inflitution and induction is good: but this deanry was originally given to the incumbents as a donative only by the patron, and the bishop admits or approves of the patron's prefentee, and commits to him the cure and jurifdiction, by compofition only. Watf. c. 15.

4. The dean of the Arches is the judge of the court of Arches, fo called of Bow-church in London, by reafon of the steeple thereof raifed at the top with ftone pillars in fashion like a bow bent archwife; in which church this court was ever wont to be held, being the chief and moft ancient court and confiftory of the jurifdiction of the archbishop of Canterbury; which parifh of Bow, together with twelve others in London, whereof Bow is the chief, are within the peculiar jurifdiction of the faid archbishop in fpiritual caufis, and exempted out of the bishop of London's jurifdiction. God. 100.

And it is fuppofed that he was originally ftyled dean of this court, by reafon of his fubftitution to the archbishop's official, when he was employed abroad in foreign embaffies; whereby both thefe names or ftyles became at laft in common understanding, as it were fynonymous God. 102.

5. There