Chapter 35

A PARSON, _persona ecclesiae_, is one that hath full possession of all the rights of a parochial church. He is called parson, _persona_, because by his person the church, which is an invisible body, is represented; and he is in himself a body corporate, in order to protect and defend the rights of the church (which he personates) by a perpetual succession[n]. He is sometimes called the rector, or governor, of the church: but the appellation of _parson_, (however it may be depreciated by familiar, clownish, and indiscriminate use) is the most legal, most beneficial, and most honourable title that a parish priest can enjoy; because such a one, (sir Edward Coke observes) and he only, is said _vicem seu personam ecclesiae gerere_. A parson has, during his life, the freehold in himself of the parsonage house, the glebe, the tithes, and other dues. But these are sometimes _appropriated_; that is to say, the benefice is perpetually annexed to some spiritual corporation, either sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing for the service of the church, as any single private clergyman. This contrivance seems to have sprung from the policy of the monastic orders, who have never been deficient in subtle inventions for the increase of their own power and emoluments. At the first establishment of parochial clergy, the tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for maintaining the fabrick of the church, a third for the poor, and the fourth to provide for the incumbent. When the sees of the bishops became otherwise 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 it's 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 licence, and consent of the bishop, must first be obtained; because both the king and the bishop may sometime 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[o]. 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[p].

[Footnote n: Co. Litt. 300.]

[Footnote o: Plowd. 496-500.]

[Footnote p: Hob. 307.]

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 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[q]. And when the clerk so presented is distinct from the vicar, the rectory thus vested in him becomes what is called a _sine-cure_; 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.

[Footnote q: Co. Litt. 46.]

[Footnote r: Sine-cures might also be created by other means. 2 Burn. eccl. law. 347.]

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, religious 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].

[Footnote s: Seld. review of tith. c. 9. Spelm. Apology. 35.]

[Footnote t: 2 Inst. 584.]

[Footnote u: Sir H. Spelman (of tythes, c. 29.) 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 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 annually; and that the vicarage shall be _sufficiently_ endowed. It seems the parish 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 removeable 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, small, or vicarial, tithes; the greater, or predial, tithes being still referred 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 many things, as wood in particular, is in some countries a predial, and in some a vicarial tithe.

[Footnote w: Seld. tith. c. 11. 1.]

THE distinction therefore of a parson and vicar is this; that 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. 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) perpetual.

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 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 & 14 Car. II. c. 4. no person is capable to be admitted to any benefice, unless he hath been first ordained a priest; and then he is, in the language of the law, a clerk in orders. But if he obtains orders, or a licence to preach, by money or corrupt practices (which seems to be the true, though not the common notion of simony) the person giving such orders forfeits[y] 40_l._ and the person receiving 10_l._ and is incapable of any ecclesiastical preferment for seven years afterwards.

[Footnote x: See 2 Burn. eccl. law. 103.]

[Footnote y: Stat. 31 Eliz. c. 6.]

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 ecclesiastical 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 knowlege of it; else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice[e].

[Footnote z: A layman may also be presented; but he must take priests orders before his admission. 1 Burn. 103.]

[Footnote a: 2 Roll. Abr. 355.]

[Footnote b: Glanv. _l._ 13. _c._ 20.]

[Footnote c: 2 Roll. Abr. 356. 2 Inst. 632. Stat. 3 Ric. II. c. 3. 7 Ric. II. c. 12.]

[Footnote d: 5 Rep. 58.]

[Footnote e: 2 Inst. 632.]

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 a temporal nature and the fact admitted, (as, for instance, outlawry) the judges of the king's courts must determine it's 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 it's 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 reexamine him, and certify his qualifications; which certificate of the arch-bishop is final[h].

[Footnote f: 2 Inst. 632.]

[Footnote g: 5 Rep. 58. 3 Lev. 313.]

[Footnote h: 2 Inst. 632.]

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 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; for the maxim of law is, that _vicarius non habet 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 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 any action for them, till induction.

[Footnote i: Co. Litt. 344.]

INDUCTION is performed by a mandate from the bishop to the arch-deacon, 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].

[Footnote k: Co. Litt. 300.]

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. Some of them we may remark, as they arise in the progress of our enquiries, but for the rest I must refer myself to such authors as have compiled treatises expressly upon this subject[l]. I shall only just mention the article of residence, upon the supposition of which the law doth stile every parochial minister an incumbent. 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 5_l._ to the king, and 5_l._ to any person that will sue for the same: except chaplains to the king, or others therein mentioned[m], during their attendance in the houshold 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: for it hath been resolved[o], that the statute intended residence, not only for serving the cure, and for hospitality; but also for maintaining the house, that the successor also may keep hospitality there.

[Footnote l: These are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop Gibson's _codex_, and Dr Burn's ecclesiastical law.]

[Footnote m: Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.]

[Footnote n: Stat. 28 Hen. VIII. c. 13.]

[Footnote o: 6 Rep. 21.]

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 8_l._ _per annum_, or upwards, in the king's books, (according to the present valuation[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. 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 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_. 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 by canonical censures, of which I am not to speak; or in pursuance of divers penal statutes, which declare the benefice void, for some nonfeasance or neglect, or else some malefeasance or crime. As, for simony[s]; for maintaining any doctrine in derogation of the king's supremacy, or of the thirty nine articles, or of the book of common-prayer[t]; for neglecting after institution to read the articles in the church, or make the declarations against popery, or take the abjuration oath[u]; for using any other form of prayer than the liturgy of the church of England[w]; 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[x]; in all which and similar cases[y] the benefice is _ipso facto_ void, without any formal sentence of deprivation.

[Footnote p: Cro. Car. 456.]

[Footnote q: Hob. 144.]

[Footnote r: Cro. Jac. 198.]

[Footnote s: Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.]

[Footnote t: Stat. 1 Eliz. c. 1 & 2. and 13 Eliz. c. 12.]

[Footnote u: Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c. 6.]

[Footnote w: Stat. 1 Eliz. c. 2.]

[Footnote x: Stat. 1 W. & M. c. 26.]

[Footnote y: 6 Rep. 29, 30.]

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 real incumbent. Though there are what are called _perpetual_ curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some particular reasons[z] exempted from the statute of Hen. IV) but, instead thereof, such 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 it's vacancy shall be paid such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not sufficient, by the successor within fourteen days after he takes possession[a]: and that, if any rector or vicar nominates a curate to the ordinary to be licenced, the ordinary shall settle his stipend under his hand and seal, not exceeding 50_l._ _per annum_, nor less than 20_l._ and on failure of payment may sequester the profits of the benefice[b].

[Footnote z: 1 Burn. eccl. law. 427.]

[Footnote a: Stat. 28 Hen. VIII. c. 11.]

[Footnote b: Stat. 12 Ann. st. 2. c. 12.]

THUS much of the clergy, properly so called. There are also certain inferior ecclesiastical officers of whom the common law takes notice; and that, principally, to assist the ecclesiastical jurisdiction, where it is deficient in powers. On which officers I shall make a few cursory remarks.