known right, and the constant practice of the English bishops. Indeed the greater monasteries did oftentimes, by exemptions [76] and appeals to the court of Rome, evade and deny this power of the diocesan, in order to obviate which refuge, the bishop in his instrument of consenting to appropriation, began to express the positive condition of saving a competent portion for a vicar, to be taxed and ordered by him in due consideration to hospitality and other burdens; and afterwards to be moderated and augmented as should seem to the ordinary fit and proper. But whether this power was explicitly reserved or not, it was thought an antecedent right which the bishop might claim from the original constitution of the church. And even the common law did allow and enforce this practice, the year books affirming, that the ordinary may increase or diminish the vicar's portion. And for any thing which appears upon record, though this episcopal right was too often evaded by resort to the court of Rome, yet it was never questioned in any of our ecclesiastical or civil courts before the Reformation (g).

And so much concerning the original appropriation of churches. We come next to consider more particularly the endowment of vicarages consequent thereupon.

An appropriation is the annexing of a benefice to the proper and perpetual use of some religious body politic, which thereby becomes perpetual incumbent. At first, appropriations were made to sole corporations spiritual, as abbots, priors, &c. who could perform divine service in person, but were afterwards extended to corporations aggregate, who discharged that function by a vicar (r). But though appropriations can only be made to spiritual persons who are bound to provide for the service of the church and thereby become perpetual parsons (s), yet divers grants of parsonages, &c. were made by the crown at different times to laymen, and particularly by Hen. 8, which are confirmed by statute 31 Hen. 8, c. 13, ss. 18, 19. And these are called impropriations, though the terms appropriate and impropriate are sometimes used indiscriminately, as in the statute 29 Car. 2, c. 8. The actores fabulæ, as they were called by Dyer, in an appropriation, are the patron, king, and ordinary; for it was necessary that the patron should obtain the king's license in chancery and the consent of the ordinary, as both the king and ordinary had an interest in lapses (which, after the act of appropriation, could not take place), and were also considered to be proper guardians of the rights of the church. If the benefice was full, it was necessary to have the concurrence of the incumbent, to give the appropriation immediate effect (t).

(9) Kennet on Impropriations. (r) Plow. 496, 497; 1 Black. Com. 384.

(s) Hob. 307.

(t) Plow. 497; Grendon v. Bishop of Lincoln, 8 Rep. 11.

[The term impropriate is used as synonymous with appropriate 1 Eliz. c. 19, and also in 1 & 2 Ph. & M. c. 4. În a petition to parliament, temp. Hen. 8, the term is impropried, and in the 10 Hen. 6, for further enforcing 15 Ric. 2, c. 6, and 4 Hen. 4, c. 12, which did not receive the royal assent, the terms are, 66 Benefices held in proper use." So also in 15 Ric. 2, c. 6, An impropriation (u), of which there are in England three thousand eight hundred and forty-five, is properly so called when it is in the hands of a layman; and an appropriation is when it is in the hands of a bishop, college, religious house, or the like, though sometimes these terms are confounded and used promiscuously.

"It must be evident to any one who considers the history of impropriations, that a lay rector cannot have cure of souls and the statutes (v) of dissolution having directed that impropriations should be held by laymen as they were held by the religious houses from which they were transferred, it may be convenient that this point should be a little more fully considered.

"There is some confusion in the books in not always distinguishing between two sorts of appropriation which were fundamentally different. Appropriations are an abuse which took their rise in the darker ages. They are termed usually in the canon law 'annexiones, donationes, uniones,' &c., and the term appropriation, which was borrowed from the form of such grant in proprios usus,' appears to have been peculiar, or principally confined to England. Ducange cites a letter from England, it which it is used (x). It is seldom indeed to be found in any foreign canon without reference to this country, and there is scarcely a foreign writer who, in noticing it, does not say, quas in Anglia vocant appropriationes.

"There were two sorts of appropriation, or rather appropriation was authorized to be made with different privileges in two forms (y), the one pleno jure, sive utroque jure, tam in spiritualibus quam in temporalibus, where the interests in the benefice, both temporal and spiritual, were annexed to some religious house, and the other, non utroque jure, though pleno jure, as it is described, in temporalibus, where temporal interests only were conveyed, such as the tithes or patronage of the benefice; but the cure of souls resided in an endowed perpetual vicar.

"In the first species, the religious house had the cure of souls and all rights, and performed the duties of the church by its own members, or by stipendiary curates, and the distinction on this point is summarily described in a passage from the

(u) [Ayliffe, 90.]

(v) [27 Hen. 8, c. 28; 31 Hen. 8, c. 13.]

(x) [Gloss. 592.]

(y) [X. 5, 33, 3. Panormitan et Hostiensis, in loc. cit.]

proceedings of the Court of Audience: 'Cum ecclesia conceditur alicui monasterio, pleno jure, in temporalibus, tunc episcopi debent instituere vicarium perpetuum; ubi vero unitur mensæ episcopali, vel abbatiali, et spectat ad illam, pleno jure, tam in spiritualibus, quam in temporalibus,-tunc ponitur in ea presbyter temporalis, ad nutum removibilis, ad exercitium cura, quæ principaliter residet in eo cujus mensa est unita (z).' This description of these two species of appropriation is to be met with also in frequent passages of the Aurea summa Hostiensis, a learned commentator of the thirteenth century (a).

["Against holding benefices pleno et utroque jure, great complaints were made in the Gallican Church, in which on no subject was dissatisfaction more loudly or more frequently expressed. And it is mentioned, as a fundamental maxim in that church, that, since the council of Constance (b), it has become a legitimate cause of revocation in that kingdom.

"In England it was ordained by the constitution of Othobon that all religious houses which possessed churches in proprios usus, should present vicars with competent endowment to the diocesan for institution, within the space of six months; and that if they failed so to do, the bishop was empowered to fill up the vacancy; this however, proved insufficient against the power of the monks. The civil legislature next interfered, and passed the statutes 15 Ric. 2, c. 6, 4 Hen. 4, c. 12, which require that vicarages should be regularly endowed. Such was the general and legal character of appropriations in England by the canon law, and by the statutes of the realm. The vicarage became a benefice with cure of souls, and the monks held in proprietatem, in some sort, as a lay fee (c)."

[Before the General Council of Lateran, 1179, appropriations might have been made to laymen, but by that council, which was incorporated into the English law, laymen were made incapable of appropriations granted to them (d). By the 29

(z) [Vicar's Plea, 107; Selden on Tithes, c. 12; Ayliffe's Parer. 86; Lyndwood, 157, 158.]

(a) ["Ubi ecclesia ad monasterium pertinet pleno jure, habet monasterium in eâ institutionem, destitutionem, investituram, fidelitatem, obedientiam, correctionem, et quædam alia: epis. copus nihilominus desuper est; nisi privilegium, vel præscriptio, vel contraria consuetudo obest: sed ubi pleno jure non pertinet, tunc habet ibi monasterium temporalia, et repræsentationem presbyteri vicarii tantum, qui non debet ab episcopo recipi, nisi per monachos sufficiens portio assignetur." On a further discussion how the bishop

could grant such powers in pleno jure, being greater than what he himself possessed, the answer is, "non potest transferre, nisi ex causâ, puta, propter paupertatem mensæ religiosorum, quæ non sufficit ad sustentationem ipsorum," &c. Lib. i. 296, et seq. De officio ordinarii.]

(b) [A. D. 1414, Concil. Gener. tom. xii. 254; Vicar's Plea, 4.]

(c) [Lord Stowell, in Duke of Portland v. Bingham, 1 Consist. 162; Gibs. 719; Mallet v. Trigg, 1 Vern. 42.— ED.]

(d) [Decret. Greg. 9, 1. 3, t. 30, c. 19; 2 Inst. 641; Bishop of Winton's case, Giom. 137; 1 Salk. R. 136.]

Restrictions by Statute.

[ 177 ]

Hen. 8, c. 28, and 31 Hen. 8, c. 13, the statutes of the dissolution of monasteries, churches appropriate were granted to the king, and his grantees had thereby not only the same interest in the appropriation that the religious houses had, but also an interest by the regal grant of an estate given them by parliament, and consequently had a fee or possession which, when the statutes of dissolution were made, was not of spiritual cognizance while in the hands of the king, and therefore could not be so in those of his patentees.-ED.]

II. Endowment of Vicarages upon Appropriation.

1. By the statute of the 15 R. 2, c. 6, "In every license to be made in the chancery, of the appropriation of any parish church, it shall be expressly contained, that the diocesan of the place, upon the appropriation of such churches, shall ordain according to the value of such churches, a convenient sum of money to be paid and distributed yearly of the fruits and profits of the same churches, by those that will have the said churches in proper use, and by their successors, to the poor parishioners of the said churches, in aid of their living and sustenance for ever; and also that the vicar be well and sufficiently endowed."

And by the statute of the 4 Hen. 4, c. 12, "From henceforth, in every church appropriated, there shall be a secular person ordained vicar perpetual, canonically instituted and inducted, and covenably endowed by the discretion of the ordinary, to do divine service, and to inform the people, and to keep hospitality there: and no religious shall in any wise be made vicar in any church appropriated.

From henceforth.] This statute extendeth not to appropriations made before this time (g).

There shall be a secular Person ordained Vicar perpetual.] In the case of Bonsey and Lee, T. 1684, it was decreed, that where there is no vicarage endowed, the impropriator of the small tithes is bound to maintain a priest; and upon an information by the attorney-general for that purpose, the king may assign to the curate such an allowance or proportion of the small tithes as he shall think fit: but otherwise it is, where the vicar is endowed, though but of never so small a matter (h).

In appropriated churches, where no vicar has been endowed, the officiating minister is appointed by the appropriator or impropriator, and is called perpetual curate (i).

Instituted and inducted.] Institution and induction seem to be the specific difference between a vicar and a perpetual curate: both can only be in a church that was appropriated. But this (i) Note to Bl. Com. vol. i. 387. Ed. Chr.

(g) 2 Roll. Rep. 127.
(h) 1 Vern. 247.

must be understood, only where the curacy is parochial: for, as to curates of chapels, there seems to be no similitude between them and curates of parishes. But yet it seems this cannot be so for then quare what is the difference between a donative vicarage and a perpetual curacy? for it is commonly said, that vicarages may be donative, and even rectories may be so (k). And yet it is contrary to this act that any vicarage, created on an appropriation since the act, should be donative and therefore donative vicarages must have been such as were made on appropriations before the act, or upon appropriations ad mensam monachorum, which are not within the act; and these last, if any such there were, seem to differ only in name from perpetual curacies. A vicar is in for life; a curate, as it seems, at will (1). The former is always (qu. or at least usually) endowed, the latter never (m), except since Queen Anne's bounty (n). A donative is always endowed, but a perpetual curacy is never, as it seems (o). And if so, then the endowment is a specific difference between a donative vicarage and a perpetual curacy. Note also, where there is a curate, the parson is incumbent; where there is a vicar, the vicar is incumbent (p).

Covenably endowed.] So as without endowment, the appropriation was not good (q).

By the discretion of the Ordinary.] Before this, it could not be done but with the consent of the patron; but there was no necessity of the license of the king (as in the case of appropriation), because no damage accrued to the crown (r).

No Religious shall in any wise be made Vicar in any Church appropriated.] But if the benefice was given ad mensam monachorum (s), and so not appropriated in the common form, but [ 78 ] granted by way of union pleno jure; in that case, it was served by a monk of their own body, who was removable at their own pleasure. Which is the foundation of stipendiary curacies, where the impropriators are bound to provide divine service, but may do it by a curate, not instituted, but only licensed by the bishop. So the monks served them; and because the acts of dissolution gave the lands to the king in such manner and form as the monks held them, they who derive from the crown have reckoned themselves under no restraint to present a vicar to the bishop for institution. But though the canon law is clear that such benefices as were united mensæ monachorum might be served by monks (t), without institution; yet the law also was, that in case such cures were supplied by seculars, they must have institution; and there being now no supply but

(k) Vide post, vol. ii. tit. Donative. (1) Bunb. 234.

(m) Bunb. 273.

(n) Vide stat. 1 Geo. 1, st. 2, c. 10. (0) Bunb. 234.

(p) Serjt, Hill's MSS. Notes.

(g) 12 Co. 4.

(r) 2 Roll. Abr. 334.

(s) Vide infra, vol. ii. p. 55.

(t) As to nunneries, that was not so. Dugd. Warw. 750-752.