in subtile inventions for the increase of their own power and emoluments. At the first establishment of parochial clergy, the tithes were distributed between the bishop and the incumbent. But when the bishops' sees became otherwise endowed, the bishops were prohibited from demanding their usual share of the tithes, and hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that the principal part of the tithes should be appropriated to the use of their fraternities, subject to the burden of repairing the church and providing for its constant supply; the endowment of which was construed to be a work of the most exalted piety. And therefore they begged, and bought for masses and obits and sometimes for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporations. But it was necessary, in order to complete such appropriation effectually, to obtain the king's license and the bishop's consent; because some time or other either the king or the bishop might have an interest by lapse in the presentation to the benefice, which can never happen if it be appropriated to the use of a corporation, which never dies; and also because the law reposes a confidence in them, that they will not consent to anything prejudicial to the interests of the church. The patron's consent is also necessarily implied; because, as was before observed, appropriation can be originally made to none, but to such spiritual corporation as is also the patron of the church. The whole being indeed nothing else, but an allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any clerk, they themselves undertaking to provide for the church. When the appropriation is thus made, the appropriators and their successors are perpetual parsons of the church, and must sue and be sued, in all matters concerning the rights of the church, by the name of parsons. This appropriation may be severed, and the church become disappropriate, two ways: as first, if the patron or appropriator presents a clerk, who is instituted or inducted to the parsonage; for the incumbent to be instituted and inducted, is to all intents and purposes a complete parson; and the appropriation, being once severed, can never again be reunited, unless by a repetition of the same solemnities. And when the clerk so presented is distinct from the vicar, the rectory, thus vested in him, becomes what is called a sinecure; because he has no cure of souls, having a vicar under him to whom that cure is committed. Professor Christian is of opinion, that the appropriator cannot create a sinecure rector. But if he should either by design or mistake present his clerk to the parsonage, it is held that the vicarage will ever afterwards be dissolved, and the incumbent will be entitled to all the tithes and dues of the church as rector. Wherever a rector and vicar are presented and instituted to the same benefice, the rector is excused all duty, and has what is properly called a sinecure. But where there is only one incumbent, the benefice is not in law a sinecure, though there should be neither a church nor any inhabitants within the parish. Also if the corporation which has the appropriation is dissolved, the parsonage becomes disappropriate at common law, because the perpetuity of person is gone, which is necessary to support the appropriation. In this manner were most, if not all of the appropriations at present existing, originally made; being annexed to bishoprics, prebends, religious houses, nay even to nunneries and certain military orders, all of which were spiritual corporations. And although, subject to the same conditions, appropriations may be made at the present day, yet it surely may be questioned whether such a power any longer exists. It cannot be supposed that at this day, the inhabitants of a parish, who had been accustomed to pay their tithes to their officiating minister, could be compelled to transfer them to an ecclesiastical corporation, to which they might perhaps be perfect strangers. Appropriations are said to have originated from an opinion eagerly inculcated by the monks, that tithes and oblations, though payable to some church, yet were an arbitrary donation, which might be given, as a reward for religious services to any person from whom he received those services. Till the monks got complete possession of the revenues of the church, they spared no pains to recommend themselves as the most deserving objects of the gratitude and benefaction of the parish.* There probably have been no new appropriations, since the dissolution of the *Burns' Ecc. Law. monasteries by Henry VIII.* At which time the appropriations of the several parsonage which belonged to those respective religious houses (amounting to more than one-third of all the parishes in England) would have been by the rules of the common law disappropriated, had not a clause in these statutes intervened to give them to the king in as ample a manner as the abbots, &c., formerly held the same at the time of their dissolution. Although this was far from being defensible, it was not without a precedent. The same thing was done in former reigns, when the alien priories, that is, such as were filled by foreigners only, were dissolved and given to the crown. From these two roots have sprung all the lay appropriations of secular parsonages which we now see in the kingdom. Having been granted out after the Reformation by the crown; and Sir Henry Spelman says, "these are now called impropriations, as being improperly in the hands of laymen.' These appropriating corporations, or religious houses, were wont to depute one of their own body to perform divine service, and administer the sacraments, in those parishes in which the society or corporation was the parson. This officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore was called vicarius or vicar. His stipend was at the discretion of the appropriator, who was however bound of common right to find somebody to be responsible to him for the temporalities, and to the bishop for the spiritualities. But this was done in so scandalous a manner, and the parishes suffered so much by the appropriators' (that is the monks') neglect, that the legis lature was forced to interpose. Accordingly it was enacted, that in all appropriations of churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent sum to be distributed among the poor parishioners annually; and that the vicarage shall be sufficiently endowed. It seems the parishes were frequently sufferers, not only by the want of divine service, but also by withholding those alms which had formerly been collected for the poor; and therefore in this act a pension is directed to be distributed among the poor parochians, as well as a sufficient stipend to the vicar. But being liable to removal at the pleasure of the appropriator, he was not likely to insist too rigidly on the legal sufficiency of the stipend; and therefore by a later statute§ it is ordained, that the vicar shail be a secular person, not a member of any religious house; that he shall be vicar perpetual, and not removable at the caprice of the monastery; that he shall be canonically instituted and inducted, and be sufficiently endowed, at the discretion of the bishop for these three express purposes: " to do divine service, to teach the people, and to keep hospitality." The endowments in consequence of these statutes, have usually been by a portion of the glebe or land belonging to the parsonage, and a particular share of the tithes which the appropriators found it most troublesome to collect, and which are therefore generally called privy or small tithes, the greater or prædial tithes being still reserved to their own use. || But one and the same rule was not observed in the endowment of all vicarages: hence some are more liberally, and some more scantily endowed; and hence the tithes of many things, as wood in particular, are in some parishes rectorial, and in others are vicarial tithes. From this act we may date the establishment of vicarages. Before this time the vicar in general was nothing more than a temporary curate, and when the church was appropriated to a monastery, he was generally one of their own body, that is, one of the regular clergy. The monks, who lived secundum regulas, that is, according to the rules of their respective houses or societies, were denominated regular clergy, in contradistinction to the parochial clergy, who performed their ministry in the world, in seculo, and who from thence were called secular clergy. All the tithes or dues of the church, of right belonged to the rector, or to the appropriator or impropriator, who have the same rights as the rector; and the vicar is only entitled to that portion which is expressed in his endowment, or what his predecessors have enjoyed by immemorial prescription, which is equivalent to a grant or endowment. And where there is an endowment, he may in general recover all that is contained in it; and he may still retain what he and his predecessors have enjoyed by prescription, though not expressed in it; for such a prescription amounts to evidence of another * 27 and 31 Henry VIII. Henry IV., c. 1. + Selden on Tithes. 15 Richard II., c. 6. ¶ Henry IV. tonsistent endowment. Lord Eldon has declared, that if a vicar enjoys property not mentioned in an endowment, and has never within the time of memory possessed what is expressly contained in it, a jury might presume that he had the former in lieu of the latter. These endowments frequently invest the vicar with some part of the great tithes; therefore the words rectorial and vicarial tithes have no definite signification. But great and small tithes are technical terms, and which are, or ought to be, accurately defined and distinguished by the law. The distinction, therefore, of a parson and a vicar is this. The parson has, for the most part, the whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing salary. At the dissolution of the monasteries, all these appropriations were transferred to the crown, and were by the king granted out to different families, and are now called impropriations. In some appropriated churches, no perpetual vicar has ever been endowed; in which case the officiating minister is appointed by the appropriator and is called a perpetual curate. In some places the vicarage has been considerably augmented by a large share of the prædial tithes, and was greatly assisted by the statute 29 Charles II., enacted in favour of poor vicars and curates, which rendered such temporary augmentations as were made by the appropriators perpetual. The method of becoming a parson or vicar is much the same. To both four requisites are equally necessary: holy orders, presentation, institution, and induction.* By common law, a deacon of any age might be instituted and inducted to a parsonage or vicarage. It was ordained in the reign of Elizabeth, that no person under twenty-three years of age, and in deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest within one year after his induction, he should be ipso facto deprived. Now by statutet no person is capable of being admitted to any benefice, unless he has been first ordained a priest, and then in the language of the law he is a clerk in orders; and he cannot take the order of priesthood till he be full four and twenty years of age. But if he obtain orders, by money or corrupt practices, (which seems to be the true, though not the common notion of simony,) the person giving such orders forfeits L. 40, and the person receiving, L.10, and is incapable of any ecclesiastical preferment for seven years afterwards. Any clerk may be presented to a parsonage or vicarage, so may also a layman, but he must take priest's orders before his admission: that is, the patron, to whom the advowson of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. But when a clerk is presented, the bishop may refuse him on many accounts: as, 1. If the patron is excommunicated, and remains in contempt forty days. Or, 2. if the clerk be unfit, which unfitness is of several kinds. First, with regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, and the like. Next with regard to his faith or morals; as for any particular heresy, or vice that is malum in se. If the bishop alleges only in generals, as that he is an inveterate schismatic, or objects a fault that is malum prolibitum merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal. Or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. In any of which cases the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of learning, or other matter of ecclesiastical cognizance, then the bishop must give notice to the patron of such cause of refusal, who, being usually a layman, is not supposed to have knowledge of it, else he cannot present by lapse; but if the cause be temporal, then he is not bound to give notice. If a patron brings an action at law against the bishop for refusing his clerk, the bishop must assign the cause. If the cause be of a temporal nature, and the fact admitted, the judges of the king's court must determine its validity, or whether it be a sufficient cause of refusal; but if the fact be denied, it must be determined by a jury. If the cause be of a spiritual nature, (as heresy,) the fact, if denied, shall also be determined by a jury. If the fact be admitted or found, the court upon consultation and advice of learned divines shall * See Art. United Church of England and Ireland, post. 13 and 14 Charles II., c. 4. # Burns' Ecc. Law. decide its sufficiency. If the cause be want of learning, the bishop need not specify in what points the clerk is deficient, but only allege that he is deficient, because the examination of the fitness of a person presented to a benefice belongs to the ecclesiastical judge. But because it would be nugatory in this case to demand the reason of refusal from the ordinary, if the patron were bound to abide by his determination, who has already pronounced his clerk to be unfit: therefore if the bishop returns the clerk as deficient in literature, the court shall write to the metropolitan to re-examine him, and certify his qualifications; and the archbishop's certificate is final. If the bishop makes no objections, but admits the patron's presentation, the clerk so admitted, is next to be instituted, which is a kind of investiture of the spiritual part of the benefice; for by institution, the care of the souls of the parish is committed to the clerk's charge. At his institution, the vicar, if required by the bishop, took an oath of perpetual residence; but this is not now required. When the bishop is also the patron, and confers the living, the presentation and institution are one and the same act, and are called a collation to a benefice. By institution or collation the church is full, so that there can be no fresh presentation till a new vacancy, at least in the case of a common patron; but the church is not full against the king till induction. Nay, even if a clerk is instituted upon the king's presentation, the crown may revoke it before induction, and present another clerk. Upon institution also, the clerk may enter on the parsonage house and glebe, and take the tithes ; but he cannot grant or let them, or bring an action for them, till after induction. And when a clerk is presented, instituted, and inducted into a rectory, he is then, and not before, in full and complete possession, and is called in law persona impersonata, or parson imparsonce. A parson or vicar's right to the tithes and ecclesiastical dues, will be described under the head of tithes. The duties laid on him by statute are so numerous, that they cannot be recited here. I shall only mention the article of residence, on the supposition of which the law styles every parochial minister an incumbent. A clergyman willingly absenting himself from his benefice for one month together, or for two months in the year, incurs a penalty of five pounds: ill health, or inevitable absence, is however an exception to the penalties. The bishop, in his court, may compel the residence of all clergy who have the cure of souls within his diocese. This extends to all archdeaconries, deaneries, and dignities in cathedral and collegiate churches. Those who have two benefices or dignities, upon each of which residence is required, must reside upon one or the other. Chaplains to the king or others, are however exempted during their attendance in the household; and also all heads of houses, magistrates, and professors in the universities, and all students under thirty years of age, residing there bona fide for study. The king can give a license to his chaplains for nonresidence, even whilst they do not attend his household; but noblemen's chaplains are only excused during their actual attendance on their lords or ladies. Legal residence is not only in the parish, but also in the parsonage house, if there be one; for it has been resolved that residence is intended not only for serving the cure and for hospitality, but also for maintaining the house, that the successor may also keep hospitality there. And if there be no parsonage house, then the incumbent is bound to hire one, in the same or some neighbouring parish. An act of parliament* provides for raising money on ecclesiastical benefices, to be paid off annually by decreasing instalments, and to be expended in rebuilding or repairing the houses belonging to such benefices. This act enables the incumbent, when there is no parsonage house, or where it is so ruinous as not to be repaired with one year's income of the living, to borrow, with the consent of the patron and bishop, upon mortgage of the living, a sum not exceeding two years' clear value, to be laid out in repairs, building, or the purchase of a house. We have seen that there is but one way of becoming a parson or vicar; but there are many ways of ceasing to be one. 1. By death. 2. By cession, in taking another benefice; for by statute if any one having a benefice of L.8 per annum, or upwards, according to the present valuation in the king's books, accepts any other, the first shall be adjudged void, unless he obtains a dispensation, which none is entitled to have but the king's chaplain, and *17 Geo. III., c. 53. others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law admitted by the universities; and a vacancy thus made for want of a dispensation is called a cession. In the case of a cession under the statute, the church is so far void upon institution to the second living, that the patron may take notice of it, and present if he pleases; but there is great reason to think, that lapse will not incur from the time of institution against the patron, unless notice be given him; but lapse will incur from the time of induction without notice. 3. By consecration; for, as was before mentioned, when a clerk is promoted to a bishopric, all his other preferments are void from the moment of his consecration. But there is a method by the favour of the crown, of holding such living in commendam. Commenda, or ecclesia commendata, is a living commended by the crown to the care of a clerk, to hold till a proper pastor is provided for it. This may be temporary, for one, two, or three years, or perpetual; being a kind of dispensation to avoid the vacancy of the living, and is called a commenda retinere. These commendams are now seldom or never granted to any but bishops, and in that case the bishop is made commendatory of the benefice, while he continues bishop of such a diocese only, as the object is to make it an addition to a small bishopric. It would be unreasonable to grant it to a bishop for his life, who might afterwards be translated to one of the richest sees. There is also a commenda recipere, which is to take a benefice de novo, in the bishop's own gift, or the gift of some other patron consenting to the same; and this is the same to him as institution and induction are to another clergyman. 4. By resignation. This is of no avail, till accepted by the bishop, into whose hands the resignation must be made. But it seems to be clear, that the bishop may refuse to accept a resignation, upon a sufficient cause for his refusal. Whether he can, merely at his will and pleasure, refuse to accept a resignation, without any cause, and who shall finally judge of the sufficiency of the cause, and by what mode he may be compelled to accept, are questions undecided. 5. By deprirvation. Either, first, by sentence declaratory in the ecclesiastical court, for fit and sufficient causes allowed by the common law; such as attainder of treason or felony, or conviction of other infamous crimes in the king's courts: for heresy, infidelity, gross immorality, and such like. Or, secondly, in pursuance of divers penal statutes, which declare the benefice void; for some nonfeasance or neglect, or else some malfeasance or crime; as, for simony, for maintaining any doctrine derogatory of the king's supremacy, or of the thirty-nine articles, or of the book of common prayer. For neglecting after institution to read the liturgy and articles in the church, or to make the declarations against popery, or take the abjuration oath. For using any other form of prayer than the liturgy of the church of England; or for absenting himself sixty days in one year from a benefice belonging to a popish patron, to which the clerk was presented by either of the universities. In all which and similar cases, the benefice is ipso facto void, without any formal sentence of deprivation. VI. A curate, though in full priest's orders, is the lowest degree in the church. He is in the same state that a vicar formerly was, an officiating temporary minister, instead of the proper incumbent. There are also what are called perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, but instead the perpetual curate is appointed by the appropriator. With regard to the other species of curates, they are the objects of some particular statutes, which ordain, that such as serve a church during its vacancy, shall be paid such stipend as the bishop thinks reasonable, out of the profits of the vacancy. If that be not sufficient, by the successor, within fourteen days after he takes possession. Likewise, if any rector or vicar nominates a curate to the bishop for license to serve the cure in his absence, the bishop shall settle his stipend under his hand and seal, not exceeding L.50 per annum, nor less than L.20; and on failure of payment may sequester the profits of the benefice. The act of George III. has made such considerable alterations in the law respecting curates, that it may be proper to repeat some of its provisions. When any person becomes incumbent of a benefice, and does not reside upon it, (unless he has a legal exemption from residence, or a license to reside out of the parish, or the house * 21 Henry VIII. |