Abridgment of Ecclesiastical Laws, Treatise · Chapter 18
CHAP. XVIII.
Of Vicars, Vicarages, and Benefices.
1. The Vicar and Vicarage deſcribed according to Law.
2. What difference between Vicarage and Parſonage; their ſeveral Rights and Intereſts reſpectively.
3. Whether a Vicarage Endowed may be Appropriated, and how?
4. The Chaplain of the Vicar of Hallifax his Caſe for his Salary.
5. Vicars may Sue in the Eccleſiaſtical Courts for Penſions.
6. How a Vicarage may be created.
7. The Reſolution of Court touching the Vicar's Tithes, in reference to the Parſon's Glebe.
8. Caſes in Law touching the Parſons and the Vicar's Tithes, where Compoſition or Preſcription is in the Caſe.
9. Who is Patron of the Vicarage, whether the Parſon or the Patron?
10. In what caſe the Vicar may Sue in the Eccleſiaſtical Court for an addition or increaſe of Maintenance.
11. In what caſe a Vicarage ſhall determine; and what ſhall be an union of Parſonage and Vicarage.
12. Benefice how defined by the Canon Law, with the Reaſons of that definition.
13. Benefices Eccleſiaſtical extend to Eccleſiaſtical Dignities by the Canon Law, but not ſo within the Statute of 21 H. 8.
14. Of what an Eccleſiaſtical Benefices conſiſts according to the Canoniſts.
15. Cautionary Laws relating to Benefices; by what marks or ſigns an Eccleſiaſtical Benefice is known at the Canon Law.
16. The common diſtinction of Eccleſiaſtical Benefices at the Common Law.
17. A Caſe in Law touching a Vicarage, whether Diſſolved, or not?
18. Vicarages of Two ſorts, how compared to a Commendam.
(1.) VICAR is he who hath that Spiritual Living called a Vicarage, being no other than a certain part or portion of a Parſonage, allowed to the Miniſter for his Maintenance, introduced at that time when Impropriations firſt began; both which Livings as they are commonly called the Church:The Parſon, Patron and Ordinary may create a Vicarage. 8 R. 2. annuity 53. Omnis Vicaria eſt Eccleſia, per Coke, in the Kings Caſe againſt Zakar. Bulſtr. par. 3. ſo both ſuch as ſerve in them, are called the Patron's Clerks. The Vicar is uſually appointed and allowed to ſerve the Cure, by him who hath the Impropriation of the Parochial Tithes; for at the Original of ſuch Impropriations a certain portion of the Parſonage was allotted and ſet apart from the reſt to maintain the Vicar, who was to ſerve the CureaPlow. 495.; So that now the Prieſt of a Parochial Church, where the Predial Tithes are Impropriated, is called the Vicar, h. e. vice Rectoris. And it ſeems Anciently they did ſometimes ſtyle themſelves Perpetual Vicars, becauſe every Vicarage, Corporation-like, hath a conſtant Succeſſion.
(2.) A Parſonage and a Vicarage (as appears in Britton and Wade's Caſe) are two diſtinct Benefices, and both have Curam animarum, the Parſon habitualiter, the Vicar actualiter; and although the Vicarage be Spiritual, yet the Corporation is Temporal, which the Pope could not diſſolvebMich. 16 Jac. B. R. Britton and Wade's Caſe. Cro. 2. par. 516, 517, 518.: And in the Caſe between Parry and Banks, it was Reſolved, That after the Statute of 31 H. 8. which made Parſonages Lay-Fees, the Ordinary could not diſſolve a Vicarage, when the Parſonage is in a Temporal hand; for that were to deſtroy the Curec12 Jac. in the Excheq. Parry and Bank's Caſe. Hugh. Abr. verb. Appropriations.. Vicarages being originally endowed out of Parſonages, the Vicar was to have aid of the Parſon, if he were impleaded for any thing touching the Vicarage, and the Parſon was ſubject to every charge of the Vicaraged31 H. 6. 13. by Yelverton.. And anciently the Vicar was not held as Tenant of the Freehold of the Glebe of the Vicaragee8 Aſſ. 3…. 15 Aſſ. 8. acc., but the Freehold thereof was in the Parſon, and the Vicar could not maintain an Aſſize in his own Namef12 E 3. Fitzh. tit. Brief, 256.. But now it ſeems the Freehold of the Glebe of the Vicarage is in the Vicar himſelf, and not in the Parſon, for that the Poſſeſſions of the Vicar and Parſon are ſevered, and each of them ſhall have ſeveral Writs concerning their reſpective Rights, and ſhall not joyn in one Writ gParſon's Law, cap. 23.: and the Vicar ſhall have and maintain a Writ of Juris Ʋtrum againſt the Parſon, who is the Patron of the Globe of the Vicarage, for the ſame GlebehIbid.. This Vicarage being a certain portion of a Parſonage allowed to the Vicar for his Maintenance as aforeſaid, is in ſome places a ſum of Money certain, in others a part of the Tithes in kind, commonly the ſmaller Tithes, and in ſome places a part of the great Tithes alſo: And Vicarage-Lands occupied by the Vicar, do in ſome places pay no Tithe to the Parſon iCro. J…r. 60. Cro. 2. 44. Broo. Diſme… 10..
(3.) In Ward's Caſe it was ſaid by Mountague. That a Vicarage endowed might be Appropriated, but not to the Parſon, to which Haughton and Doderidge agreed, 31 H. 6. Fitz. tit. Indicavit, is, that ſuch a Vicarage may be diſſolved: An Appropriation may be by the King ſole where he is Patron, but there is no Book that it might be by the Patron ſole. Grindon's Caſe in Plowden, and 17 E. 3. 39. an Appropriation cannot be without the King's Licenſe. In that caſe it was agreed, That Tithe-Lamb and Wool was included within ſmall TitheskTrin. 16 … B. R. Nicholas—and W. Ward's Caſe. Poph. Rep., which Tithe belongs to the Vicar.
(4.) A Chaplain that was under the Vicar of Hallifax, Libells againſt him in the Eccleſiaſtical Court for his Salary. And he preſcribes, That the Vicar ought to pay the Chaplain four pounds a year; and the Vicar prays a Prohibition, (1) for that he alledges, That the Chaplains were Eligible by himſelf; and becauſe that Chaplain was not Elected by him, he is not Chaplain; but he is in of his own wrong, &c. (2) That Preſcription for Salary was Triable at the Common Law. Yelverton, The Salary is Spiritual as the Cure it ſelf is Spiritual, for which it is to be paid. As the Caſe in Dyer, 58. Pl 4. But a Prohibition was granted, until it was determined to whom the Election appertained; and that now depends by Prohibition in this CourtlTrin. 3 Car. C. B. The Vicar of Hathfax C…ſe. Hetley's Rep..
(5.Penſion.) G. Vicar Sues in the Eccleſiaſtical Court the Dean and Chapter of Wells, Parſon of a Church, for a Penſion, and they pray a Prohibition, and it was denied; For that Penſion is a Spiritual thing, for which the Vicar may ſue in the Spiritual CourtmGoodwin verſ. Dean and Chapter of Well. Noy's Rep..
(6.) The Parſon, Patron, and Ordinary may Create a Vicarage and Endow it without the Aſſent of the King; but the Ordinary cannot Create a Vicarage without the Patrons Aſſent. 16 E. 3. Quare Impedit, 145. And in or during the Vacancy, the Patron of a Parſonage and the Ordinary may Create a Vicarage. 8 R. 2. Annuity 53. per Belk. And before the Statutes of Diſſolutions, a Parſon Impropriate and the Ordinary might Create a Vicarage, for the Parſon was Parſon and Patron. Ibid. nRoll's Abridg. verb. Vicarage..
(7.) It was Reſolved per Curiam, That if a Vicar be endowed out of a Parſonage of all the white Tithes growing and renewing within the Pariſh on all the Land of the Pariſh; the Vicar ſhall not therefore have the Tithe of the Parſon's Globe, for that is excepted; nor the Tithes of the Land, which at the time of the Endowment of the Vicarage was parcel of the Glebe, but ſince ſevered from the Glebe, for that at the time of the Endowment that Land was exempted out of the EndowmentoTrin. 38 Eliz. B. R. Elen…o & Ma…ſton. Rollib. verb. Vi… Endowment. …3..
(8.) If there be a Compoſition made between the Parſon and the Vicar, That the Parſon ſhall have all the Tithe of Corn and Hay, and the Vicar the other Tithes, and afterwards the Pariſhioners ſow certain Lands with Saffron, or the like, the Parſon ſhall not have the Tithe of the Saffron, but the Vicar. By Coke ſo Adjudged pTrin 7 Jac. B. R. Roll. ib. nu. 4.. It hath alſ… been Reſolved, It a Vicar be Endowed of the Small Tithes by Preſcription, and afterwards the Land which had been Arable time out of mind, is converted from Arable, and there grow ſmall Tithes, the Vicar ſhall have them, for his Endowment doth not go to the Land, but Minutis Decimis in every place within the PariſhqPaſch. 38 Eliz. B. R. inter Bedingfield and Freak.. And if a Vicar be endowed of the third part of all the Tithes of a Mannor, he ſhall have Tithes as well of the Freehold as Copyhold, for all makes the MannorrP. 38 El. B. R. Higham and Beſt. Adjudged..
(9.) The Parſon, and not the Patron of the Parſonage, of Common right is Patron of the Vicarage, for that it is derived out of the Parſonage. Dubitatur 17 E. 3. 51. b. Contra, 5 E. 2. Quare impedii, 165. per Paſſ. And if a Parſon Appropriate create a Vicarage, he ſhall be Patron thereof. 17 E. 3. 51. he is both Parſon and PatronsRoll. Abr. verb. Vicarage.. So likewiſe if there be a Vicar and a Parſon Appropriate, the Ordinary and the Parſon Appropriate may in time of vacation of the Vicarage re-unite the Vicarage to the ParſonagetMich. 7 Jac. B. R. Stafford's Caſe..
(10.) If there be a Parſonage Appropriate in an Eccleſiaſtical perſon, which never came to the King by the Statute of Monaſteries, and a Vicarage Endowed be there alſo; and the Parſon make a Leaſe of the Parſonage for Lives, according to the Statute of 32 H. 8. The Vicar may in that caſe ſue in the Eccleſiaſtical Court againſt the Parſon and his Leſſee, who comes in by the Statute for Addition of Maintenance, and the Ordinary may well compel them to increaſe his Maintenance, for over all Appropriations ſuch power of increaſing the Vicar's Maintenance was reſerved to the Ordinary, and the Leſſee comes in ſubject to that chargeuHill. 9 Car. B. R. inter Hitchcock and Thornborough..
(11.) If the Vicarage be diminiſhed, he ſhall have more of the Parſonage, if what remains be not ſufficient. And if the Parſonage be impoveriſhed and ſo decayed, that the Parſonage by it ſelf, nor the Vicarage, have ſufficient to ſuſtain them, in that caſe the Vicarage ſhall determine and be reſtored to the Parſonage: And to this the Doctors alſo do accordw31 H. 6…4. Roll. Abr.. It hath been alſo held, If a Parſon Appropriate, who is Patron of the Vicarage of the ſame Church, by Agreement between him and the Ordinary, preſent the Vicar to that Parſonage, it is an union of the Parſonage and Vicarage; but if a Leſſee of a Parſonage preſent the Vicar to the Parſonage, that ſhall not bind the Leſſorx44 E. 3. 33. b. 44 Aſſ. 37.. And if there be a Vicarage and Parſonage (and both void) and one preſent his Clerk as Parſon, and he is ſo Inducted; that ſhall unite the Parſonage and Vicarage again y11 H. 6. 33.. And in caſe that there be a Vicar Endowed who is Preſentative, and alſo a Parſon Preſentative, it ſeems that the Parſon hath not the Cure of Souls, but the Vicarz5 E. …. Quare impedit, 165. per Paſſ▪..
(12.) Benefice [Beneficium] according to a general acceptation may comprehend all Eccleſiaſtical Livings, be they Dignities or other, as in the Statute of 13 R. 2. where they are divided into Elective and Donative a13 R. 2. St. 2. cap. 2.: But according to a more ſtrict and proper acceptation, Duarenus ſeems to give it an apt definition, where he ſays, it is Res Eccleſiaſtica, quae Sacerdoti vel Clerico, ob Sacrum Miniſterium utenda, in perpetuum concedatur bDuaren. de Benef. lib. 2. cap. 4.. [Res] becauſe it is not the Miniſtry it ſelf or the Office, but rather the profit thence ariſing that is the Benefice. [Eccleſiaſtica] becauſe ſuch profit is dedicated to God and his Church. [Sacerdoti, &c.] becauſe where a thing Eccleſiaſtical is granted to Lay-men, it is not properly ſaid to be a Benefice in this ſenſe. [Ob Sacrum Miniſterium] becauſe as Dedicated to God, they are for the uſe of ſuch as wait on his Altar. [ Ʋtenda] becauſe they have rather the Uſuf…uit thereof, than any Fee or Inheritance therein. [In perpetuum] becauſe they are annexed to the Church for ever. Benefices with Cure of Souls ſeem moſt properly to be the Parſonages and Vicarages of Parochial Churches. Sir H. Hobart Chief Juſtice, in Colt and Glover's Caſe againſt the Biſhop of Coventry and Lichfield, ſays, (ſpeaking of the Statute of 21 H. 8. cap. 25.) That Biſhopricks are not within the Law under the word [Benefices]: So that if a Parſon take a Biſhoprick, it avoids not the Benefice by force of that Law of Pluralities, but by the Ancient Common Law, as it is holden, 11 H. 4. 60.
(13.) This word Beneficium Eccleſiaſticum extendeth not only to Churches Parochial and the Benefices thereof, but alſo to Dignities and other Eccleſiaſtical promotions; as to Deanaries, Archdeaconries, Prebends, &c.cCoke's Inſt. par 3. cap. 71.. Lindw. de vit. & hon. Cle. c. Exterior. Sir Edw. Coke affirms, that it appears in the Books of their Lawd9 E. 3. 22. 29 E. 3. 44. 10 E. 3. 1. Regiſt 58. 21 H. 8. c. 13. verſ. finem., That Deanaries, Archdeaconries, Prebends, &c. are Benefices with Cure of Souls; but they are not comprehended under the Name of Benefices with Cure of Souls within the Statute of 21 H. 8. by reaſon of a ſpecial Proviſo; which they had been, if no ſuch Proviſo had been added†Such in any Collegiate or Cathedral Church or any Parſonage with a Vicar Endowed, or any Benefice perpetually Impropriate, are no… Benefices with Cure of Souls within the Stat. of 21 H. 8. againſt Pluralities., viz. Deans, Archdeacons, Chancellors, Treaſurers, Chaunters, Prebends, or a Parſon where there is a Vicar endowedeCoubi ſupra..
(14.) The Canoniſts do hold, That an Eccleſiaſtical Benefice conſiſts of the Sacred Function, and of the Provinces thereunto belonging f…an. ſi quis … q. 3.; It is a diſtinct portion of Eccleſiaſtical Rights joyned to the Spiritual Function, and until it be ſet apart, ſeparate, and diſtinguiſhed from Temporal Intereſts, it is not properly an Eccleſiaſtical Benefice; it is termed a portion, in that it includes Fruits, for a Benefice without Fruits cannot properly be ſo called.
(15.) By the Jus Commune no man can at once and at the ſame time poſſeſs two Benefices with Cure of Souls, as incompatible. Tot. deciſ. Rotae 445. tit. de Praeb. in novis. Non datur Beneficium niſi propter Officium, he that performs not the one, ought to be deprived of the other. C. fin. de Reſcript. in 6. Can. Eoſ. Cano. ſi quis Sacerdotum 81. diſtinct. All p…cuniary Contracts, all mercenary Trading and Merchandizing for Benefices is to be abhorred; Eccleſiaſtical Benefices are of ſuch a Spiritual Conſtitution, that they are not capable of being bought or ſold; they fall not within the walk of human Commerce, but ought to be conferr'd gratis. And for Non-reſidence the Parſon ought by the very Letter of the Law to be deprived of his Benefice and the Fruits thereof. c. Ʋni. de Cleric. non reſiden. in 6. Panormitan obſerves Six ſigns whereby an Eccleſiaſtical Benefice may be known: As (1) That according to the Jus Commune it ought to be beſtowed by one who hath a right and power in him ſo to do, meaning the true Patron. (2) That he who doth give or beſtow it, do reſerve nothing thereof or therein for himſelf, directly or indirectly. (3) That it be given purely as a proviſion and maintenance for the Clerk. (4) That it hath ever ſomething of Spiritualty annex'd to it. (5) That in its nature it be perpetual. (6) That all manner of Contracts and Bargains concerning it be utterly rejected. Panorm. Conſil. 47. Anchor. de Regul. prim. de reg. jur. in 6. q. & Decius in Rub. de Reſcript.
(16.) Whatever is enjoyed as a Benefice, is had and obtained either by way of Title, or Canonical Inſtitution: Lindw. de cohabit. Cle. & Mulier. c. ut Clericalis. verb. Beneficiati. Eccleſiaſtical Benefices being commonly diſtinguiſh'd into Preſentatives and Donatives; for a Parochial Church may be Donative, and exempt from all Ordinaries Juriſdiction. For if the King doth found a Church or Chappel, he may exempt the ſame from the Ordinaries Juriſdiction; in which caſe the Lord Chancellor and Lord Keeper ſhall Viſit the ſame. 20 E. 3. Excommeng. 9. 21 E. 3. 60. Parſons Law, cap. 28. Or if the King by his Letters Patents doth Licenſe a Common perſon to Found a Church or Chappel, exempt from the Ordinaries Juriſdiction, the ſame ſhall be Viſited by the Founder, and not by the Ordinary: 6 H. 7. 4. per Keble, 8 Aſſ. 29. F. N. B. 42. acc. And if ſuch Clerk Donative be diſturbed in his Incumbency, the Patron or Founder ſhall have a Quare impedit Praeſentare, and declare upon the Special matter. But if a Patron of a Church Donative doth once preſent unto the Ordinary, and his Clerk be Admitted and Inſtituted, it is now become Preſentable, and it ſhall never be Donative after, and then the Ordinary ſhall Viſit the ſame, a Proxie ſhall be paid, and Lapſe ſhall incur to the Ordinary, as in all other Benefices preſentablegCo. 1. par. Inſt. 344. & 22 H. 6. 26.; but ſo long as it remains Donative, it is without the Juriſdiction of the Ordinary. For a Donative is a Benefice meerly given and collated by the Patron to a man without either Preſentation to, or Inſtitution by the Ordinary, or Induction by his Order hF. N. B. 35. E.. All Biſhopricks were anciently Donative by the KingiCoke, l. 3. fol. 75. b.: and it is ſaid, that there are certain Chauntries, which may be given by Letters PatentskF. N. B. fo. 33. c. & 42. b.. The Original Donatives in England is ſuppoſed to be from what Mr. Guinn mentions in the Preface of his Readings, viz. That as the King might anciently Found a Free Chappel and exempt it from the Dioceſan's Juriſdiction: So he might alſo by his Letters Patents Licenſe a Common perſon to Found ſuch a Chappel, and to Ordain that it ſhall be Donative and not Preſentable, and that the Chaplain ſhall be deprivable by the Founder and his Heirs, and not by the BiſhoplCowell, Interpr. verb. Donative.. Whether ſuch Donatives are properly Benefices Eccleſiaſtical may well admit of an Enquiry; for where Petr. Gregorius ſpeaks of Chappels Founded by Lay-men, not approved by the Dioceſan, nor by him as it were Spiritualiz'd, he there ſays plainly, that they are not accounted Benefices, nor can they be conferr'd by the Biſhop; but the Founders and their Heirs may give ſuch Chappels, if they ſo pleaſe, without the Biſhop: Petr. Gregor. de Benefic. cap. 11. nu. 10. & Guid. Pap. Deciſ. 187. And Lindwood makes a very prolix queſtion on the ſame reaſon, whether St. Martins Le Grand Lond. be Eccleſiaſticum Beneficium, or not, Arguing it pro and con, but concludes in the Affirmative. Lindw. de Cohab. Cler. & Mul. cap. ut Clericalis.
(17.) The Prior of D. was ſeized of the Advowſon of the Church of N. Mich. 16 Jac. B. R. Britton and Wade's Caſe. Cro. par. 2.appropriated to his Priory, and alſo of the Vicarage of N. endowed with ſmall Tithes: The Appropriation and Endowment were both in the time of King John, and continued till the time of Hen. 6. when the Pope granted by his Bulls, That the Prior ſhould appoint one of his Monks to officiate the Cure, who ſhould be removed ad nutum Prioris: The point was, Whether the Vicarage was diſſolved? Reſolved (1) That a Vicarage Perpetual could not be diſſolved after the Statute of 4 H. 4. and that the Pope could not make any Ordinance againſt that Statute, nor Diſpence by his Bulls with the Law, though they tend in Ordine ad Spiritualia. (2) There were no words that amount to a Diſſolution, but the words only are, That the Vicar ſhould be ad nutum Prioris. (3) The Parſonage and Vicarage are two diſtinct Benefices, and both have Curam animarum, the Parſon habitualiter, and the Vicar actualiter; and although the Vicarage be Spiritual, yet the Corporation is Temporal, which the Pope cannot diſſolve. (4) That in this caſe the Vicarage was not Diſſolved: vid. 12 Jac. in the Exchequer, Parry and Bank's Caſe accordingly, there vouched.
(18.) In the Canon Law there are two ſorts of Vicarages, viz. Vicaria Temporalis and Vicaria Perpetua; En le Caſe de Commenda. Davis Rep. fo. 83.; The Vicaria Temporalis is compared to the Commenda Temporalis, for that ſuch Temporal Vicar non habet Titulum, ſed ſervit alieno nomine, & proprie Curam non habet: otherwiſe it is de Vicaris perpetua, quae eſt incompatibilis cum alio Beneficio, & habet Curam animarum, & talis Vicarius habet Titulum Canonicum; And a Quare Impedit lies againſt ſuch perpetual Vicarage. F. N. B. 32. h. Regiſt. 31. a. And ſuch a Vicar ſhall have a Juris Ʋtrum of Lands annext or given to him in perpetuity, by the Statute of 14 Ed. 3. cap. 17. vid. 40 Ed. 3. 28. b. where Finchden ſaid, That although it had been held, that a Vicar ſhould not have Action of his Poſſeſſions againſt any perſon, yet that now the Law is changed in that point; and good reaſon, when he is endowed to him and his Succeſſors in perpetuity.