fourfold division: one, for the use of the bishop; another, for maintaining *the fabric of the church; a third, for the poor; and the fourth, to pro

vide for the incumbent. When the sees of the bishops became other- [*385] wise amply endowed, they were prohibited from demanding their usual share of these tithes, and the division was into three parts only. And hence it was inferred by the monasteries, that a small part was sufficient for the officiating priest; and that the remainder might well be applied to the use of their own fraternities, (the endowment of which was construed to be a work of the most exalted piety,) subject to the burthen of repairing the church and providing for its constant supply. And therefore they begged and bought, for masses and obits, and sometimes even for money, all the advowsons within their reach, and then appropriated the benefices to the use of their own corporation. But, in order to complete such appropriation effectually the king's license, and consent of the bishop, must first be obtained: because both the king and the bishop may some time or other 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 any thing that shall be to the prejudice of the church. The consent of the patron also is necessarily implied, because, as was before observed, the appropriation can be originally made to none, but to such spiritual corporation as is also the patron of the church; the whole being indeed nothing else, but an allowance for the patrons to retain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 service of the church. (0) 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 and inducted *to the parsonage; for the incumbent so instituted [ *386 ] and inducted is to all intents and purposes complete parson; and the appropriation, being once severed, can never be re-united again, unless by a repetition of the same solemnities. (7) 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 hath no cure of souls, having a vicar under him to whom that cure is committed. (r) 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, and subject to these conditions, may appropriations be made at this day and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religous houses, nay even to nunneries, and certain military orders, all of which were spiritual corporations. At the dissolution of monasteries by statutes 27 Hen. VIII, c. 28, and 31 Hen. VIII, c. 13, the appropriations of the several parsonages, which belonged to those respective religious houses, (amounting to more than one third of all the parishes in England) (s) would have been by the rules of the common law disappropriated, had not a clause in those 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. This, though perhaps scarcely defensible, was not without example; for the same 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. (t) And from these two roots have sprung all the lay appropriations or secular parsonages, which we now see in the kingdom; they having been afterwards granted out from time to time by the crown. (u)

(0) Plowd, 496-500.

(p) Hob. 307.

(g) Co. Litt. 46.

(r) Sinecures might also be created by other means. 2 Burn's Eccl. Law, 347.

(8) Seld. Review of Tith. c. 9; Spelm. Apology. 35.

(t) 2 Inst. 584.

(u) Sir H. Spelman (of tithes, c. 29,) says, these are now called impropriations, as being improperly in the lands of laymen.

*These appropriating corporations, or religious houses, were wont to

[ *387] depute one of their own body to perform divine service, and administer the sacraments, in those parishes of which the society was thus the parson. This officiating minister was in reality no more than a curate, deputy, or vicegerent of the appropriator, and therefore called vicarius, or vicar. His stipend was at the discretion of the appropriator, who was however bound of common right to find somebody, qui illi de temporalibus, episcopo de spiritualibus, debeat respondere. (w) But this was done in so scandalous a manner, and the parishes suffered so much by the neglect of the appropriators, that the legislature was forced to interpose: and accordingly it is enacted by statute 15 Ric. II, c. 6, 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 anually: 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, for which, among other purposes, the payment of tithes was originally imposed: 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 he, being liable to be removed at the pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the stipend: and therefore, by statute, 4 Hen. IV, c. 12, it is ordained, that the vicar shall be a secular person, not a member of any religious house; that he shall be vicar perpetual, not removable at the caprice of the monastery; and that he shall be canonically instituted and inducted. and be sufficiently endowed, at the discretion of the ordinary, for these three express purposes; to do divine service, to inform 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; [*388] the greater, or predial, 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 some vicarial tithes.

The distinction therefore of a parson and 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. (15) Though in some places the vicarage has been considerably augmented by a large share of the great tithes; which augmentations were greatly assisted by the statute 29 Car II, c. 8, enacted in favour of poor vicars and curates, which rendered such temporary augmentations, when made by the appropriators, per petual. (16)

The method of becoming a parson or vicar is much the same. To both there are four requisites necessary; holy orders, presentation, institution, and induction. The method of conferring the holy orders of deacon and priest, according to the liturgy and canons, (x) is foreign to the purpose of these Commentaries; any farther than as they are necessary requisites to make a complete parson or vicar. By common law, a deacon of any age might be instituted and inducted to a parsonage or vicarage; but it was ordained by statute 13 Eliz. c. 12, that no

(15) The law upon the subject of this and the preceding paragraph has been greatly changed by a series of statutes which are collected in Cripp's Law of Church and Clergy, 4th ed. vol. 3, c. 1.

(16) A radical change in the law of tithes was introduced by statutes 6 and 7 William IV, c. 71, the purpose of which was to commute this vexatious and irritating burden into a rent charge, adjusted to the average price of corn. The commutation, if not made voluntarily, might be compulsory, under the direction of tithe commissioners.

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; and now, by statute 13 and 14 Car. II, c. 4, no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; (17) and then he is, in the language of the law, a clerk in orders. But if he obtains orders, or a license *to preach, by money or corrupt practices, (which seems to be the true, though not [*389] the common, notion of simony,) the person giving such orders forfeits (y) 401. and the person receiving 10l., and is incapable of any ecclesiastical preferment for seven years afterwards.

Any clerk may be presented (z) to a parsonage or vicarage; 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. Of advowsons, or the right of presentation, being a species of private property, we shall find a more convenient place to treat in the second part of these Commentaries. But when a clerk is presented, the bishop may refuse him upon many accounts. As, 1. If the patron is excommunicated, and remains in contempt forty days. (a) Or, 2. If the clerk be unfit: (b) 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, or the like. (c) Next, with regard to his faith or morals; as for any particular heresy, or vice that is malum in se; but if the bishop alleges only in generals, as that he is schismaticus inveteratus, or objects a fault that is malum prohibitum merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal. (d) 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 ccclesiastical cognizance, there the bishop must give notice to the patron of such his 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, there he is not bound to give notice. (e)

*If an action at law be brought by the patron against the bishop for refusing his clerk, the bishop must assign the cause. If the cause be of [*390] a temporal nature, and the fact admitted, (as, for instance, outlawry,) the judges of the king's courts must determine its validity, or, whether it be 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, particularly alleged,) the fact, if denied, shall also be determined by a jury; and, if the fact be admitted or found, the court, upon consultation and advice of learned divines, shall decide its sufficiency. (f) 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: (g) for the statute 9 Edw. II, st. 1, c. 13, is express, that 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 unfit: therefore, if the bishop returns the clerk to be minus sufficiens in literatura, the court shall write to the metropolitan to re-examine him, and certify his qualifications; which certificate of the archbishop is final. (h)

If the bishop hath no objections, but admits the patron's presentation, the clerk so admitted is next to be instituted by him, which is a kind of investiture

(y) Stat. 31 Eliz. c. 6.

(2) A layman may also be presented; but he must take priest's orders before his admission. 1 Burn 103. (a) 2 Roll. Abr. 355. (b) Glanv. L. 13. c. 20. (c) 2 Roll, Abr. 356. 2 Inst. 632 Stat. 3 Ric. II, c. 3. 7 Ric. II, c. 12. (e) 2 Inst. 632.

(f) 2 Inst 632.

(g) 5 Rep. 58. 3 Lev. 313.

(d) 5 Rep. 58.
(h) 2 Inst. 632,

(17) [By canon 34, no one shall be admitted to the order of a deacon till he be twenty-three years old; and by that canon, and also by 13 Eliz. c. 12, no one can take the order of a priest till he be full four and twenty years old. 3 Burn's Ec. L. 27.]

of the spiritual part of the benefice; for by institution the care of the souls of the parish is committed to the charge of the clerk. When a vicar is instituted, he, besides the usual forms, takes, if required by the bishop, an oath of perpetual residence; (18) for the maxim of law is, that vicarius non habit vicarium: and as the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the law judges it very improper for them to defeat the end of their constitution, and by absence to create the very mischiefs which they [*391] were appointed to remedy: especially as, if any profits are to arise from putting in a curate and living at a distance from the parish, the appropriator, who is the real parson, has undoubtedly the elder title to them. When the ordinary 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 another 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. (i) 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 induction.

Induction is performed by a mandate from the bishop to the archdeacon, who usually issues out a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister, to whom their tithes are to be paid. This therefore is the investiture of the temporal part of the benefice, as institution is of the spiritual. And when a clerk is thus 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 imparsonee. (k)

The rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the second book of these Commentaries: and as to his duties, they are principally of ecclesiastical cognizance; those only excepted which are laid upon him by statute. And those are indeed so numerous, that it is impracticable to recite them here with any tolerable conciseness or accuracy. Seme

of them we may remark, as they arise in the progress of our inquiries; [*392] but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject. (7) I shall only just mention the article of residence, upon the supposition of which the law doth style every parochial minister an incumbent. (19) By statute 21 Hen. VIII, c. 13, persons wilfully absenting themselves from their benefices, for one month together, or two months, in the year, incur a penalty of 57. to the king, and 57. to any person that will sue for the same, except chaplains to the king, or others therein mentioned, (m) during their attendance in the household of such as retain them: and also except (n) all heads of houses, magistrates, and professors in the universities, and all students under forty years of age residing there, bona fide, for study. Legal residence is not only in the parish, but also in the parsonage house, if there be one for it hath been resolved, (o) that the statute intended residence,

(i) Co. Litt. 344.

(k) Co. Litt. 300.

(1) These are very numerous; but there are few which can be relied on with certainty. Among these are Bishop Gibson's Codex, Dr. Burn's Ecclesiastical Law, and the earlier editions of the Clergyman's Law, published under the name of Dr. Watson, but compiled by Mr. Place, a barrister (m) Stat. 25 Hen. VIII, c. 16. 33 Hen. VIII c. 28. (n) Stat. 28 Hen. VIII, c. 13.

(18) This oath is no longer required. See statutes 1 and 2 Vic. c. 106, s. 61. taken is prescribed by the "clerical subscription act, 1865."

(0) 6 Rep. 21. The oath to be

(19) Although an oath of residence is not now required, yet any spiritual person holding a benefice, who absents himself therefrom for any period exceeding three months, forfeits thereby a portion of the annual value, varying from one-third to three-fourths of the whole, according to the time of absence. See statutes 1 and 2 Vic. c. 106, and 13 and 14 Vic. c. 98. In particular cases the bishop may grant licenses for non-residence. See the statutes above cited for the law as to pluralities.

not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there: and, if there be no parsonage house, it hath been holden that the incumbent is bound to hire one, in the same or some neigbouring parish, to answer the purposes of residence. For the more effectual promotion of which important duty among the parochial clergy, a provision is made by the statute 17 Geo. III, c. 53, for raising money upon ecclesiastical benefices, to be paid off by annually decreasing instalments, and to be expended in rebuilding or reparing the houses belonging to such benefices.

We have seen that there is but one way whereby one may become a parson or vicar: there are many ways by which one may cease to be so. 1. By death. 2. By cession, in taking another benefice. For, by statute 21 Hen. VIII, c. 13, if any one having a benefice of 8l. per annum, or upwards (according to the present valuation in the king's books) (p) accepts any other, the first shall be adjudged void unless he obtains a dispensation which no one is entitled to have, but the chaplains of the king and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors of divinity and law admitted by the universities of this realm. And a vacancy thus made, for want of a dispensation, is called cession, (20) 3. By consecration; for, as was mentioned before, when a clerk is promoted to a bishoprick, all his other *preferments are void the instant that he is consecrated. But there is a [*393] method by the favour of the crown, of holding such livings 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. (21) 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 clerk. (q) 4. By resignation. But this is of no avail, till accepted by the ordinary; into whose hands the resignation must be made. (r) 5. By deprivation; 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, (s) or conviction of other infamous crime in the king's courts; for heresy, infidelity, (t) gross immorality, and the 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; (u) for maintaining any doctrine in derogation of the king's supremacy, or of the thirty-nine articles, or the book of common-prayer; (v) for neglecting after institution to read the liturgy and articles in the church, or make the declarations against popery, or take the abjuration oath; (w) for using any other form of prayer than the liturgy of the church of England; (2) 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; (y) in all which, and similar cases, (z) the benefice is ipso facto void, without any formal sentence of deprivation.

VI. A curate is the lowest degree in the church; being in the same state that a vicar was formerly, an officiating temporary minister, instead of the proper

p) Cro. Car. 456.

(8) Dyer. 103. Jenk. 210. (v) Stat. 1 Eliz. c. 1 and 2. (z) Stat. 1 Eliz. c. 2.

(q) Hob. 144.

(r) Cro. Jac. 198. (t) Fitz. Abr. tit. Trial, 54. (u) Stat. 31 Eliz. c. 6. 12 Ann, c. 12. 13 Eliz. c. 12. (w) Stat. 13 Eliz. c. 12. 14 Car. II, c 4. 1 Geo. I, c. 6. (y) Stat. 1 W. and M. c. 26. (z) 6 Rep. 29. 30.

(20) By s. 11 of 1 and 2 Vic. c. 106, the acceptance of preferment by any spiritual person holding any other preferment or benefice, vacates the former preferment. In general two livings cannot now be held by the same person, unless the benefices be within ten miles of each other, or, if the population of one such benefice exceed 3000, or their joint yearly value exceed 10007., unless the yearly value of one be less than 1507, and its population more than 2000, in which case the two may be held jointly. See statutes above mentioned.

(21) These commendams are now abolished. Statutes 6 and 7 Wm. IV, c. 77.

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