the adding of new auxiliary churches." For the origin and nature of ecclesias [ADVOWSON.] tical patronage in England as a subject of It appears, however, from the last-property, the rules of law which apply to mentioned author, that if there were any it as such, the limitations within which new fee erected within a lordship, or and the forms according to which it must there were any people within the pre- be exercised, and the mode by which it cinct not dependent on the patron, they may be vindicated, together with the were at liberty to choose any neighbouring respective rights of the bishop or ordinary, church or religious house, and to pay their the archbishop, and the crown, in the case tithes and make their offerings wherever of lapse, see ADVOWSON; and also Burn's they received the benefits of religion. Ecclesiastical Law,' arts. "Advowson," This by degrees gave rise to the arbitrary "Benefice." The statute 3 & 4 Will. appropriation of tithes, which, in spite of IV. c. 27, made some important alterapositive enactment, continued to prevail till tions in the law on this subject. 1. By the end of the twelfth century, when Pope the old law, suits for recovery of adInnocent III. by a decretal epistle to the vowsons were not within the statutes of archbishop of Canterbury, enjoined the limitations; but § 30 of the above-menpayment of tithes to the ministers of the tioned act subjects them to a period of respective parishes where every man dwelt. limitation of three successive incumbenThis injunction, though not having the cies, or sixty years, during which the enforce of a law, has been complied with ever joyment of the benefice has been by virtue' since, so that it is now a universal rule of of a title adverse to that of the person inlaw in England, that tithes are due of com- stituting the suit. By § 33 the utmost mon right to the parson of the parish, unless period within which an advowson can be there be a special exemption. [TITHES.] recovered is limited to a hundred years The twelfth century was also the æra from the time of an adverse presentation, of an important change in the manner without any intermediate exercise of the of investiture of ecclesiastical benefices right of patronage by the person instiin England. (Blackstone, vol. ii. p. 23; tuting the suit, or by any persons from Father Paul, c. 24.) Up to this time the whom he derives his title. The act abosimple donation of the patron was suf- lishes certain ancient remedies for the disficient to confer a legal title to a benefice, turbance of the right of patronage, (§ 36); provided the person to whom it was given so that except in certain cases, specified was in holy orders, for otherwise he must in §§ 37, 38 of the act, the sole method of be first presented to the bishop, who had vindicating the right now is by writ of power to reject him in case of unfitness; Quare Impedit. [QUARE IMPEDIT.] but the popes, who had in the eleventh and twelfth centuries successfully contended against every other species of ecclesiastical investiture being exercised by laymen, now procured that the presentation of the patron should not be of itself sufficient to confer an ecclesiastical benefice, even though qualified by the discretionary power of rejection (in case the benefice was given to a layman) which was already vested in the bishop. This was the origin of the ceremonies of institution, which is the mode of investiture of the spiritualities; and induction, which is the mode of investiture of the temporalities of a benefice. Where the bishop was the patron of the benefice, the two forms of presentation and institution were united in that of collation. Although the popes, in denying to laymen the right of ecclesiastical investiture, had still left them in possession of the substantial part of the patronage of benefices, even this privilege was for some centuries not only very much questioned, but in many instances entirely wrested from them by papal encroachment (Father Paul, c. 30, et seq.; Hallam's Middle Ages, vol. ii. c. 7.) The first attacks by the popes upon the rights of private patrons (which took place towards the latter end of the twelfth century) assumed the form of letters of request called "mandates" or "expectatives," praying that benefices might be conferred on particular individuals. What was first asked as a favour was soon after claimed as a right, and rules were laid numerous extortions of the court of Rome, This remonstrance appears to have produced no effect, but it may be cited as a proof of the spirit of the times. The government of Edward II. was too feeble to act upon this spirit. The first prince who was bold enough to assert the power of the legislature to restrain the papal encroachments was Edward III. After complaining ineffectually to Clement VI. of the abuse of papal reservations, he (A.D. 1350) procured the famous Statute of Provisors (25 Edw. III. stat. 6) to be passed. This act provided that all elections and collations should be free ac vision, collation, or reservation should be made by the court of Rome of any archbishopric, bishopric, dignity, or other benefice, the king should for that turn have the collation of such archbishopric or other dignities elective, &c. down as to grants and revocations of expectatives. The popes next proceeded to claim the patronage of all benefices vacantia in curia, i. e. which fell vacant by the incumbents dying at the court of Rome. The number of these, through the management of that court, which contrived on various pretences to draw ecclesiastics of all ranks to Rome from different parts of Europe, became by degrees very considerable. But Clement V. in the beginning of the fourteenth century went beyond all his predecessors, by laying it down broadly as a maxim, that the full and free disposition of all ecclesiastical benefices belonged to the pope. (Cle-cording to law, and that in case any promentines, lib. ii. tit. 5. c. 1; F. Paul, c. 35.) It followed as a consequence from this principle, that the pope could make reversionary grants, or provisions, as they were called, during the lives of the incumbents; and that he could reserve such benefices as he thought fit for his own peculiar patronage. At the same time, dispensations from the canons against nonresidence and pluralities, and permissions to hold benefices in commendam, were freely granted, so that by these and similar means in some instances fifty or sixty preferments were held by the same person at once. The evils of this system were felt all over Europe. The best benefices were everywhere filled with Italian priests, ignorant alike of the language and habits of the people to whose spiritual wants they were bound to minister. England in particular suffered so much from papal encroachments during the reign of Henry III., that the English deputies at the Council of Lyon (about A.D. 1245) complained to the pope that the foreign clergy drew annually from England upwards of 70,000 marks. This remonstrance produced no effect, but the system at length became so intolerable, that a determined plan of opposition to it was gradually formed in the principal nations of Western Europe. In this opposition our own ancestors took the lead, and their efforts were in the end completely successful. The parliament assembled at Carlisle in the 35th year of Edward I. wrote a strong remonstrance to Pope Clement V. against the papal encroachments on the rights of patronage and the This statute was fortified by several others in this and the succeeding reigns, 27 Edw. III. stat. 1, c. 1; 38 Edw. III. stat. 1, c. 4; 3 Rich. II. c. 3; Rich. II. c. 12 (which enacts that no alien* shall be capable of being presented to any ecclesiastical preferment); 12 Rich. II. c. 15; 13 Rich. II. stat. 2, c. 2 and 3; 16 Rich. II. c. 5; 2 Hen. IV. c. 3; 7 Hen. IV. c. 8; 3 Hen. V. c. 4. These statutes, which inflict very severe penalties on persons endeavouring to enforce the authority of papal bulls and provisions in England, are sometimes called, from the initial words of the writ issued in execution of the process under them, the statutes of pramunire; and the offence of maintaining the papal power is itself (according to Blackstone, vol. iv. p. 112) called by the name of pramunire. The statutes against papal provisions (though not very strictly enforced) re Dr. Burn says:-"It seemeth that an alien, who is a priest, may be presented to a church." By 13 Rich. II, and 1 Hen. V. c. 7, Frenchmen were precluded holding benefices in England; and Lord Coke, on a review of the ancient statutes, is of opinion that the bishop ought not to admit an alien. The Bishop of Spalatro, an alien, was, however, appointed Dean of Windsor; and in Dr. Seaton's case, who was born in Scotland before the Union, it was held that he was capable to be presented to a benefice in England, and that so it would have been, had he been born in France, Spain, or in any friendly kingdom. mained unrepealed, in spite of the attempts | supremacy; and by statute 13 & 14 Car. of the popes and their adherents to ob- II. c. 4 (commonly called the Act of tain their abrogation. Uniformity), every parson and vicar shall, before his admission to be incumbent, subscribe a declaration of conformity to the Liturgy of the Church of England as by law established. The rights of ecclesiastical patronage, having been thus solemnly vindicated by the English parliament, have, in their fundamental principles, remained unaltered to the present time. The ceremonies of the presentation and institution in the case of lay patrons, and of collation where the bishop is patron, are still necessary to give a title to all benefices with a cure of souls, except those which are technically called perpetual curacies and donatives; and the title so given is incomplete without corporal induction into possession of the temporalities of the benefices. There are also certain acts enjoined either by the canon law or statute, the non-performance of which will subject the incumbent to the deprivation of the benefice into which he has been lawfully inducted. There is no difference between institution and collation as to the action itself, but they differ somewhat in their respective consequences. Thus, by institution, the church is said to be full against all persons but the king, and if it has been full for the space of six months, this is a sufficient answer to any action by private persons, or even by the king, where he claims as a private patron and not by royal prerogative, as in case of lapse or otherwise. But by collation the church is not full so as to render a plea to that effect available in the temporal courts, except against the collator. Every clerk before institution or collation is required by the canon law to take the oath against simony, and the oath of the canonical obedience to the bishop, and to declare by subscription his assent to the doctrine of the king's supremacy, to the Book of Common Prayer, and the Thirty-nine Articles. The subscription to the Thirtynine Articles is also imposed by statute 13 Eliz. c. 12, upon all persons to be admitted to any benefice with cure of souls. Moreover, the statutes 1 Eliz. c. 1, and 1 Will. and Mary, c. 8, § 5, require that every person collated or promoted to any ecclesiastical benefice shall, before he takes upon himself to supply or occupy the same, take the oaths of allegiance and The acts of institution or collation so far confer a right to the temporalities of the benefice, that the clerk may enter upon the glebe-land and take the tithes, but he cannot sue for them or grant them until induction. By induction the church becomes full, even against the king, and the clerk is seised of the temporalities of the benefice, and invested with the full rights and privileges of a parson, persona ecclesiæ; but by the Act of Uniformity he must, within two months after he is in actual possession of his benefice, upon some Sunday, openly before his congregation, read the morning and evening prayers, and declare his assent to the Book of Common Prayer, on pain, in case of neglect or refusal, of being ipso facto deprived of his benefice. The same statute obliges him, on pain of deprivation, to read publicly, within three months after his subscription to the declaration of conformity to the Liturgy, the bishop's certificate of his having made such subscription, together with the declaration itself: but the statute 23 Geo. III. c. 28, makes an exception where the incumbent is prevented by some lawful impediment, to be allowed and approved of by the ordinary of the place. The same penalty of deprivation is imposed by 13 Eliz. c. 12, in case of an incumbent failing, within two months after induction, to read publicly in the church the Thirty-nine Articles, and to declare his assent to them. The 23 Geo. III. c. 28, provides that, in case of sickness or other lawful impediment, it shall be deemed a sufficient compliance with the statute of Elizabeth if the incumbent reads the Articles, and declares his assent to them at the same time that he declares his assent to the Book of Common Prayer. Finally, by statute 1 Geo. I. sess. 2, c. 13, the parson must, within six months after his admission to the benefice, take the oaths of allegiance and abjuration in one of the courts at Westminster, or at the general quarter sessions of the peace, on pain of being incapacitated to hold the benefice, and of incurring certain other disabilities therein specified. Such are the means by which a clerk's legal title as a parson, rector, or vicar is acquired and maintained. Every parson, or rector of a parish with cure of souls, and, where the parsonage is appropriated, every vicar, or perpetual 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 parsonagehouse and glebe-lands, as well as the tithes of the parish, except where a special exemption from the payment of tithes exists by prescription or otherwise; but owing to the practice of appropriation, which formerly prevailed to a great extent 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 perform the spiritual duties. [ADvowSON.] 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 privilege of appointing a vicar to perform the spiritual duties of the church, while its revenues 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 curâ 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 patronage 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 indemnity, and payable by the body to whom the appropriation was made. In an ancient deed of appropriation preserved in the registry of the archbishop of Canterbury, 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 appropriators and their successors became perpetual 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 dissolution of the monasteries in England, if the legislature had not expressly provided against it. By the statutes 27 Henry VIII. c. 28, and 31 Henry VIII. c. 13, the possessions of these religious houses, and by a subsequent statute, 32 Henry VIII. 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 included, 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 empowers the king's commissioners, therein referred to, to ordain and sufficiently endow vicars in perpetuity in parish churches annexed to the religious fraternities whose possessions were confiscated by that act; and also to endow in perpetuity a schoolmaster or preacher in such places where the religious fraternities or incumbents of chantries were bound by the original foundation to keep a schoolmaster 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 present 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 appellation is now indiscriminately applied not only to lay individuals and corporations, but to all spiritual persons and corporations who, either by virtue of ancient appropriations or by grants from the crown since the dissolution of the religious fraternities, are entitled to the tithes and other revenues of the church without performing any spiritual duties. By statute 32 Henry VIII. c. 7, the remedies which the law had provided in the ecclesiastical courts for the subtraction of tithes are communicated to laymen, and their title to tithes is put on the same footing with that to land, by giving them the same or similar actions for vindicating their estates in those and other ecclesiastical 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 incidents 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 Statute of Limitations, 3 & 4 Will. IV. c. 27, actions and suits for their recovery are subject to the same periods of limitation as those for the recovery of land. Another consequence of appropriation in England, besides the vesting the possessions of the church in laymen, was the endowment of vicarages. The appropriating corporations at first used to depute 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 appropriated 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 podies 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 appropriation 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 sufficiently endowed." Still, as the vicar was removable at pleasure, he was not likely to insist very strictly on the legal sufficiency 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 appropriated." 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 customary 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 enjoyment 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 may be |