[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may appropriations be made at this day: and thus were most, if not all, of the appropriations at present existing originally made; being annexed to bishopricks, prebends, religious houses, nay, even to nunneries, and certain military orders, all of which were spiritual corporations.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[]) 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[].
[] Seld. review of tith. c. 9. Spelm. Apology. 35.
[t] 2 Inst. 584.
[] 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.
[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] 40l. and the person receiving 10l. and is incapable of any ecclesiastical preferment for seven years afterwards.
[x] See 2 Burn. eccl. law. 103.