Every parson, or rector of a parish with cure of souls, and, where the parson age is appropriated, every vicar, or per petual curate, though in his natural capacity an individual, is in contemplation of law a body corporate, with perpetuity of succession. The rector or parson is entitled to the freehold of the parsonage house and glebe-lands, as well as the tithes of the parish, except where a spe cial exemption from the payment of tithes exists by prescription or otherwise ; but owing to the practice of appropriation, which formerly prevailed to a great ex tent in England, and has been attended with very remarkable consequences, the tithes are now often vested in laymen, who have vicars or curates under them to per form the spiritual duties. [Auvowson.] This custom was not confined to spiritual corporations aggregate, but deans and other officers in. cathedrals, and in some places even parish priests,procured the pri vilege of appointing a vicar to perform the spiritual duties of the church, while its re venues were appropriated to themselves and their successors. Hence it happens that in some places a rector and vicar are instituted to the same church ; in which case the rector is excused from duty, and the rectory is called a sinecure benefice, as being sine curd animarum. (Burn's Eccles. Law, tit "Appropriation.") In order to effectuate an appropriation it was necessary that the patron should obtain the consent of the king and the bishop, as each of these had an interest in the pa tronage of the church in case of lapse, which, as a corporation never dies, could not take place after the appropriation ; and upon the making an appropriation, an annual pension was reserved to the bishop and his successors, called an in demnity, and payable by the body to whom the appropriation was made. In an an cient deed of appropriation preserved in the registry of the archbishop of Canter bury, the ground of the reservation is expressed to be for a recompense of the profits which the bishop would otherwise have received during the vacancy of the benefice. (Burn, Ibid.) After the appropriation the appropri ators and their successors became perpe tual parsons of the church ; but if the corporation were dissolved, the perpetuity of persons being gone, the appropriation ceased, and the church recovered its rights.
This principle would have come into extensive operation at the time of the dis solution of the monasteries in England, if the legislature had not expressly pro vided against it. By the statutes 27 Henry VIII. c. 28, and 31 Henry VIII. c. 13, theions of these religious houses, anr subsequent statute, 92 Henry V III. c. 24, those of the Knights of St. John of Jerusalem, were all vested in the crown. In each of these statutes parsonages and tithes are expressly in cluded, and the first two confirm the royal grants made or hereafter to be made of this property. Tithes are also included in two subsequent statutes, 37 Henry VIII. c. 4, and 1 Edward VI. c. 14, by which the possessions of chantries and religious fraternities are given to the crown. The last of these statutes em powers the king's commissioners, therein referred to, to ordain and sufficiently en dow vicars in perpetuity in parish churches annexed to the religious frater nities whose possessions were confiscated by that act ; and also to endow in perpe tuity a schoolmaster or preacher in such places where the religious fraternities or incumbents of chantries were bound by the original foundation to keep a school master or priest. The property acquired by the crown from the above-mentioned sources, and from the dissolution of alien priories in the reign of Henry V., was freely bestowed by the kings of England, especially Henry VIII., not only upon spiritual persons and corporations, but upon laymen. Hence it is that there are so many instances in England at the pre sent time of not merely the right to tithes, but the property of entire rectories being vested in laymen. These benefices are sometimes called lay, but more commonly impropriate rectories, as being (according to Spelman) improperly in the hands of laymen. The rector is in that case termed the impropriator but this appel lation is now indiscriminately applied not only to lay individuals and corporations, but to all spiritual persons and corpora tions who, either by virtue of ancient ap popriations or by grants from the crown since the dissolution of the religious fra ternities, are entitled to the tithes and other revenues of the church without performing any spiritual duties. By sta tute 32 Henry VIII. c. 7, the remedies which the law had provided in the eccle siastical courts for the subtraction of tithes are communicated to laymen, and their title to tithes isput on the same footing with that to land, by giving them the same or similar actions for vindicating their estates in those and other ecclesias tical profits against all adverse claimants whatsoever. In short, tithes and other
fruits of benefices when vested in laymen, are liable to the same process of execution for debt, and subject to the same inci dents of alienation, descent, escheat, and forfeiture as all Other incorporeal real property. Moreover, by statute 43 Eliz. c. 2, tithes impropriate are made liable to poor-rates. They are also included in the Land-tax Acts ; and by the late Sta tute of Limitations, 3 & 4 Will. IV. c. 27, actions and suits for their recovery are subject to the same periods of limita tion as those for the recovery of laud.
Another consequence of appropriation in England, besides the vesting the pos sessions of the church in laymen, was the endowment of vicarages. The appro priating corporations at first used to de pute one of their own body to reside and officiate in the parish churches by turns or by lot, and sometimes by way of penance ; but as this practice caused scandal to the church, especially in the case of monastic orders whose rules were thereby violated, the monks by degrees ceased to officiate personally in the ap propriated churches, and this duty was committed to stipendiary vicars or curates, who were, however, removable at the will of the appropriators. One of the numerous pretexts urged by the monastic oodles for obtaining appropriations had been, that they might be the better enabled to keep up hospitality in their re spective houses, and that they might relieve the poor. These duties, however, were so far neglected as to give rise to general discontent. In addition to which the officiating priests were very poorly paid, and oppressed with hard service, and consequently unable to answer the calls of hospitality and charity. At length the legislature, by way of a partial remedy to these evils, enacted (15 Richard II. c. 6), "That in every licence for the appro priation of a parish church it should be expressed that the diocesan bishop should ordain, in proportion to the value of the church, a competent sum to be distributed among the poor parishioners annually, and that the vicarage should be suffici ently endowed." Still, as the vicar was removable at pleasure, he was not likely to insist very strictly on the legal suffici ency of the endowment. Therefore, to establish the total independence of vicars upon the appropriators, the statute 4 Henry IV. c. 12, provided, "That from thenceforth in every church appropriated there should be a secular person ordained vicar perpetual, canonically instituted and inducted, and covenably (fitly) endowed by the discretion of the ordinary, to do divine service, and to inform the people, and to keep hospitality there; and that no religious, i. e. regular priest, should in anywise be made vicar in any church ap propriated." From the endowments made in pursuance of this statute have arisen all the vicarages that exist at the present day. The title of the vicar to tithes and other ecclesiastical dues, such as Easter offerings (which are said to be due to the parson or vicar of common right), and cus tomary payments for marriages, burials, and baptisms, depends primarily upon the deed of endowment. As, however, the rector and vicar are persons equally capable in law of holding such property, the deed is not always conclusive evidence in any question that may arise between these parties as to their respective rights; but it is said, that where either of them has for a long time had undisputed en joyment of any particular portion of the tithes or other fruits of the benefice, which is not consistent with the terms of the original deed, a variation of that deed by some subsequent instrument u.ay bq presumed in favour of such long enjoy ment. The endowments of vicarages have generally consisted of a part of the glebe-land of the parsonage, and what are technically called the small tithes of the parish. In some places also a por tion of the great tithes has been added to the vicarages. [Timm.] A vicarage by endowment becomes a distinct benefice, of which the patronage is vested in the impropriator or sinecure rector, and is said to be appendant to the rectory. It follows that the vicar, being endowed with separate revenues, is en abled to recover his temporal rights with out the aid of the patron.