BENEFICED CLERGY
1. In the case of all benefices, admission is granted by the bishop, as
primarily charged with the cure of souls throughout his diocese; but,
unless there is good legal reason to the contrary, he is bound to admit
the clerk who is presented by the patron of the benefice, if the
presentation is made within six calendar months after the benefice
became vacant. If that period passes without a presentation being made,
the right of appointment lapses to the bishop. If he does not appoint
within a further like period, it goes to the archbishop of the province,
and if he fails to appoint within another period of six calendar months,
it devolves finally on the Crown.[32] The period for lapse dates from
the day of the vacation of the benefice if it occurred by death or
acceptance of another living.[33] But if the vacancy was created by
resignation or deprivation or avoidance of the benefice for
non-residence, or if a clerk who is presented is rejected for want of
ability or moral character, the period will only begin to run from the
time when notice of the fact is given by the bishop to the patron,[34]
except in the case of an ecclesiastical patron who (unless the case
comes under the Benefices Act, 1898, ss. 2, 3) is not entitled to such
notice.[35] Moreover, in reckoning the period for lapse, no account is
to be taken, in the case of the first and second presentations by a
patron in respect of the same vacancy, of the time between a
presentation and the bishop's refusal to admit the presentee, or of the
period between that refusal and a decision of a court upon it, nor, in
the case of a collation by the bishop, of the time between the service
of the prescribed notice on the churchwardens and the expiration of a
month from that service.[36]
2. The original connection of advowsons or rights of presentation with
manors or estates[37] led to their passing by devolution or devise on
death, or by gift or sale during life, to the heir of the patron, or to
a devisee, donee, or purchaser of the manor or estate; and it soon
became recognised in law that they could be alienated by themselves like
any other property, apart from the manors to which they were originally
appendant. Moreover, until 1899 the law allowed a patron to grant or
sell the right of next presentation, or the right of presentation during
his lifetime, or any other limited interest in the patronage, reserving
the fee-simple of the advowson to himself. By an Act of 1713,[38] a
clergyman was prohibited from purchasing a next presentation and then
presenting himself; but this has been held not to prevent him from
presenting himself after purchasing an estate in fee, or even an estate
for life in the advowson.[39] And if the benefice is vacant at the time
of the transfer, the transfer does not carry with it the right to
present a clerk to fill up the existing vacancy.[40] This, however, was,
until 1899, frequently got over by an agreement that the transferor
should present such clerk as the transferee might nominate. But the
Benefices Act, 1898,[41] introduced several salutary restrictions on the
transfer of advowsons. Under sect. 1 of that Act:--
(_a_) A transfer of an advowson (otherwise than on marriage, death, or
bankruptcy, or on the appointment of a new trustee) is invalid unless it
(i.) transfers the whole interest of the transferor in the advowson
(except that he may reserve to himself a life interest in making a
family settlement, and the equity of redemption in making a mortgage);
(ii.) is made more than twelve months after the last filling up of the
benefice; and (iii.) is registered in the diocesan registry within one
month after its date, or such extended period as the bishop may under
special circumstances permit.
(_b_) The advowson must not be put up to auction unless sold with a
manor or not less than 100 acres of land belonging to the same owner in
the same or an adjoining parish.
(_c_) Subsection (3) of the same section also makes invalid any
agreement to exercise patronage in favour of or on the nomination of a
particular person, and also, in connection with the transfer of an
advowson, any agreement (i.) to retransfer the advowson; (ii.) to
postpone payment of any part of the purchase money, or to pay interest
until a vacancy in the living, or for more than three months; (iv.) to
make any payment in respect of the date at which the vacancy may occur;
or (v.) that the living shall be resigned in favour of any person. If
the patron of a benefice is a Roman Catholic, the University of Oxford
or of Cambridge has the right to present.[42] A Jew who owns an advowson
may present; but if a Jew holds an office under the Crown to which a
right of presentation is attached, the right passes to the Archbishop of
Canterbury.[43]
3. Every clerk in priest's orders, who has not relinquished the rights
and privileges attaching to those orders under the Clerical Disabilities
Act, 1870,[44] or become incapable of holding preferment under the
Clergy Discipline Act, 1892,[45] is qualified to be appointed to a
benefice. But, unless he has been so ordained by a bishop of the Church
of England or of the Church of Ireland, or by a commissary of an English
bishop under 15 & 16 Vict. c. 52, he is subject to the provisions of the
Colonial Clergy Act, 1874,[46] or, if ordained in Scotland, of the
Episcopal Church (Scotland) Act, 1864,[47] as to the previous consent or
licence of the archbishop of the province or bishop of the diocese; and
a clerk ordained priest as an alien or for service in the colonies under
the Ordination of Aliens Act, 1784, or the Ordinations for Colonies Act,
1819, is subject to the same provisions.[48] The bishop may, however,
independently of the Benefices Act, 1898, refuse to admit him on the
ground of insufficient learning,[49] or of vicious conduct, heresy, or
offences against ecclesiastical law in matters of ritual--anything, in
short, which, if it occurred after admission, might be a ground for
depriving him of the benefice.[50] And, under sect. 2 of that Act, the
bishop may do so, (_a_) if at the date of the vacancy not more than a
year has elapsed since a transfer within the purview of sect. 1[51] of
the right of patronage of the benefice, unless the transfer is proved
not to have been effected in view of the probability of a vacancy within
the year; or (_b_) if not more than three years have elapsed since the
presentee was ordained deacon; or (_c_) if the presentee is unfit owing
to physical or mental infirmity, serious pecuniary embarrassment, grave
misconduct, or neglect of duty in an ecclesiastical office, evil life,
or scandal caused by his moral conduct since ordination; or (_d_) if he
has, with reference to the presentation, been knowingly party or privy
to a transaction or agreement invalid under the Act.[51] The 39th Canon
lays down that a bishop shall not institute to a benefice a clergyman
who has been ordained by another bishop, without production of his
letters of orders and a sufficient testimony of his former good life and
behaviour if the bishop requires it,[52] and his appearing on due
examination to be worthy of his ministry. What this examination covers
is not clearly definable; but it has not such a wide scope as the
examination contemplated in Canon 48, which does not apply to presentees
to livings.[53] Under the 95th Canon a bishop is allowed twenty-eight
days for inquiry as to the fitness of a presentee; but this is merely
directory, and he is not precluded from continuing the inquiry after
their expiration.[54]
4. If a bishop refuses to admit a presentee on a ground specified in
sect. 2 of the Act of 1898, or on account of any other unfitness or
disqualification sufficient in law, not having reference to doctrine or
ritual, he is to signify in writing his refusal, and the ground for it,
to the patron and the presentee; and either of them may within one month
thereafter require that the matter be heard by a court consisting of the
archbishop of the province (or if it was the archbishop who refused to
admit, the archbishop of the other province) and a judge of the Supreme
Court, nominated by the Lord Chancellor. The judge is to decide all
questions of law and fact, and if the judge finds that there is no fact
sufficient in law to constitute unfitness or disqualification, the
archbishop is to direct the admission of the presentee. But if the judge
finds that such fact does exist, the archbishop is to decide whether the
presentee is actually in consequence unfit to serve the benefice, and
adjudge whether admission ought under the circumstances to be refused.
In either case his judgment is to be final.[55] When the bishop has
refused to admit a presentee, the patron cannot present him again in
respect of the same vacancy.[56] If the bishop refuses to admit the
presentee of a clerical patron and the refusal is upheld by the court,
the patron has the same right of further presentation as if he were a
lay patron.[57] If a bishop refuses to admit a presentee on the ground
of doctrine or ritual, the old alternative remedies remain, either (_a_)
of a suit of _duplex querela_ by the presentee in the ecclesiastical
court of the province, or (_b_) of an action of _quare impedit_ by the
patron in the High Court of Justice.[58]
5. Before the bishop admits a clerk to a vacant benefice, he must send
to the churchwardens in a registered letter a formal notice of his
intention so to do, with a statement of the ecclesiastical preferments
which the clerk has held, and a direction that the notice is to be fixed
for one month on the principal door or notice-board of the church; after
which it is to be returned to the bishop with a certificate, signed by
the churchwardens, that the direction has been complied with.[59] The
object of this proceeding is to give to the parishioners the opportunity
of communicating to the bishop the existence of any fact known to them
which would constitute a valid and legal ground for the bishop to refuse
the presentee.
6. The bishop admits a presentee by formal institution in the case of a
rectory or vicarage (the presentee kneeling before him), and by licence
in the case of a perpetual curacy. In the case of admission to the
benefices of new ecclesiastical parishes, which though by law perpetual
curacies, are titular vicarages,[60] the practice varies. Admission by
licence is the correct course; but by the desire of the presentee
himself institution is sometimes granted. Where the bishop is himself
the patron, he cannot present, and therefore admits by collation, which
corresponds to the two processes of presentation and institution.[61]
Before institution, collation, or admission by licence, the clerk makes
two declarations and takes two oaths.[62]
(i.) A declaration of assent, namely--
I assent to the Thirty-nine Articles of Religion, and to the
Book of Common Prayer, and of the ordering of Bishops, Priests,
and Deacons. I believe the Doctrine of the Church of England as
therein set forth, to be agreeable to the Word of God; and in
Public Prayer and Administration of the Sacraments I will use
the Form in the said Book prescribed and none other, except so
far as shall be ordered by lawful authority.[63]
(ii.) A declaration against simony, namely--
I, A. B., hereby solemnly and sincerely declare in reference to
the presentation made of me to the rectory (or vicarage, &c.)
of ---- as follows:
1. I have not received the presentation of the said rectory (or
vicarage, &c.) in consideration of any sum of money, reward,
gift, profit, or benefit directly or indirectly given or
promised by me, or by any person to my knowledge or with my
consent, to any person whatsoever; and I will not at any time
hereafter perform or satisfy any payment, contract, or promise
made in respect of that presentation by any person without my
knowledge or consent.
2. I have not entered, nor, to the best of my knowledge and
belief, has any person entered, into any bond, covenant, or
other assurance or engagement, otherwise than as allowed by
sections one and two of the Clergy Resignation Bonds Act,
1828,[64] that I should at any time resign the said rectory (or
vicarage, &c.).
3. I have not by myself, nor, to my knowledge, has any person on
my behalf, for any sum of money, reward, gift, profit, or
advantage, or for or by means of any promise, agreement, grant,
bond, covenant, or other assurance of or for any sum of money,
reward, gift, profit, or benefit whatsoever, directly or
indirectly procured the now existing avoidance of the said
rectory (or vicarage, &c.)
4. I have not, with respect to the said presentation, been party
or privy to any agreement which is invalid under section one,
subsection three, of the Benefices Act, 1898.[65]
(iii.) The oath of allegiance, namely--
I, A. B., do swear that I will be faithful and bear true
allegiance to His Majesty King Edward the Seventh, His Heirs and
Successors according to Law. So help me GOD he oath of canonical
obedience, namely--
I, A. B., do swear that I will perform true and canonical
obedience to the Bishop of C. and his successors in all things
lawful and honest. So help me GOD.[66]
Moreover, on the first Lord's Day on which he officiates in church in
his benefice, or such other Lord's Day as the ordinary allows, he is to
read publicly the Thirty-nine Articles, and make the declaration of
assent, adding after "Articles of Religion," the words, "which I have
now read before you."[67]
7. A clerk who has been admitted to a benefice by either institution,
collation, or licence is thereby invested with the cure of souls of the
parish, and with the right to the temporalities; and, in the case of
admission by licence, nothing more is requisite to place him in full
enjoyment of the benefice. But, in the case of institution or collation,
the further process of induction is necessary to invest him with the
actual possession of its temporalities. The bishop issues his mandate
for the purpose to the archdeacon or some other person, who, in
obedience thereto, goes to the church, and, placing the clerk's hand
upon the key or ring of the door, inducts him into the real, actual, and
corporal possession of the church, with all its rights, profits, and
appurtenances.[68]
8. The following fees in connection with the admission to benefices were
settled in June 1895, under the Acts 1 & 2 Vict. c. 106, and 30 & 31
Vict. c. 135:[69]
Key for Column Z below.
A: Collation to a benefice
B: Institution to a benefice
C: Licence to a perpetual curacy
D: Induction to a benefice (whether of one parish, or of two or more
united parishes)
-+-----------+----------+----------+----------------------------------+
| |Registrar | | |
|Vicar |or other |Secretary |During existing vested interests. |
|General |Officer |of Arch- +----------+-----------+-----------+
Z|or |by usage |bishop | | | Record |
|Chancellor.|performing|or Bishop.|Apparitor | Sealer. | Keeper. |
| |the duty. | | | | |
-+-----------+----------+----------+----------+-----------+-----------|
|£ _s. d._ |£ _s. d._|£ _s. d._|£ _s. d._|£ _s. d._ |£ _s. d._ |
A| 16 8 |2 2 4 |4 4 0 | 3 6 | 4 6 | 4 6 |
B| 16 8 |2 2 4 |4 4 0 | 3 6 | 4 6 | 2 6 |
| | | | | | |
C| 9 4 |1 15 8 |2 2 0 | | 1 0 | 1 0 |
+-----------+----------+ | | | |
|Arch- |Arch- | | | | |
|deacon's |deacon's | | | | |
|Official. |Registrar.| | | | |
+-----------+----------+ | | | |
|£ _s. d._ |£ _s. d._| | | | |
D| 10 0 | 13 0 | | 1 0 | 1 0 | 2 6 |
-+-----------+----------+----------+----------+-----------+-----------|
9. Admission to a benefice confers the right and imposes the duty of the
cure (Lat. _cura_) or care of souls within the parish attached to the
benefice. The nature of this duty can be gathered from the Form of
Ordering of Priests, the rubrics and provisions of the Book of Common
Prayer, and the Canons of 1603. Every clergyman, at the time of his
ordination as priest, solemnly promises (_a_) so to minister the
doctrine and sacraments and the discipline of Christ as the Lord has
commanded, and as the Church and Realm of England have received the
same, and to teach the people committed to his cure and charge with all
diligence to keep and observe the same; (_b_) to be ready to banish and
drive away all erroneous and strange doctrines contrary to God's Word,
and to use both public and private exhortations, as well to the sick as
to the whole, within his cure, as need requires and occasion is given;
(_c_) to be diligent in prayers and in reading of the Holy Scriptures,
and in such studies as help to the knowledge of the same, laying aside
the study of the world and the flesh; (_d_) to frame and fashion himself
and his family according to the doctrine of Christ, and to make both
himself and them wholesome examples and patterns to the flock of Christ;
(_e_) to maintain and set forward quietness, peace, and love among all
Christian people, and especially among those committed to his charge;
and (_f_) reverently to obey his ordinary and other chief ministers,
following with a glad mind and will their godly admonitions, and
submitting himself to their godly judgments. While the cure of souls
thus embraces the general care of the spiritual and moral welfare of the
people, it includes the following particulars, which will be separately
considered: (i.) Residence; (ii.) Performance of Divine Service,
including the Administration of the Sacraments, Preaching and
Catechising; (iii.) Solemnisation of Marriage; (iv.) Burial of the Dead;
and (v.) Private Ministrations, including the Visitation of the Sick.
10. Speaking generally, and with the exceptions and under the
restrictions to be presently mentioned, the incumbent and clergymen
permitted by him have the sole right of ministering within his parish;
and a clergyman who intrudes and performs any clerical function in it
without his permission, commits an ecclesiastical offence.[70] But the
bishop, as the chief pastor, has the right to officiate in any church
and parish within his diocese whenever he pleases. And an incumbent
cannot authorise another clergyman to officiate in his church or parish
without the licence of the bishop; but this rule has been held not
applicable in its absolute strictness to merely occasional and isolated
acts of ministration.[71] The few cases in which two or more incumbents
have had the cure of souls within the same parish, have been dealt with
by recent legislation.[72] The 28th and 57th Canons prohibited the
practice of persons leaving their own parish church and communicating or
causing their children to be baptized elsewhere. But this prohibition is
not now in force; and by a general understanding and comity, especially
in towns subdivided into several ecclesiastical parishes, not only do
Church people frequent at will the particular church which they prefer,
but the incumbent of that church pays spiritual visits in sickness and
at other times to regular members of his congregation who reside in
another parish.
11. The ministrations of the incumbent himself are restricted by Canon
71, under which, except where a person is prevented from going to church
by infirmity or sickness, no minister may preach or administer the Holy
Communion in any private house in which there is not a chapel dedicated
and allowed by the ecclesiastical law of the realm, nor, where there is
such a chapel, in any other place but the chapel, and even there only
seldom on Sundays and holy-days in order that the lord or master of the
house and his family may at other times resort to their own parish
church and there receive the Holy Communion at least once every year. An
incumbent can perform Divine service in any consecrated building in his
parish without a licence from the bishop; but, strictly speaking, he
requires the bishop's licence to authorise him to do so in any
unconsecrated building, whether within or outside his parish, or
anywhere in another diocese; and a bishop can inhibit an incumbent of
his diocese from officiating within the diocese elsewhere than in the
consecrated buildings within his own parish. If an incumbent
transgresses in any of these respects he is liable to be sued for an
ecclesiastical offence.[73] Moreover, strangely enough, the Acts which
legalised the worship of Dissenters not only withdrew them from the care
of the incumbent of the parish but also restricted his action among
Church people. For these Acts prohibited any meeting for Protestant
religious worship of more than twenty persons, besides the family and
servants of the house where it was held, except at a place duly
certified for the purpose.[74] But in 1855 it was enacted that these
prohibitions should not apply to any assembly for religious worship
either (_a_) conducted by the incumbent or curate in charge of the
parish or any person authorised by him, or (_b_) meeting in private
premises, or (_c_) meeting occasionally in a building not usually
appropriated to religious worship.[75]
12. There are also special cases in which the right of an incumbent to
officiate and exercise the cure of souls is actually superseded in
favour of a chaplain appointed without his consent. Where a nobleman has
a chapel within or attached to his residence he has the right to appoint
a chaplain to serve it.[76] The chapels of public and endowed schools
under the Acts of 1868 and 1869 are free from the jurisdiction and
control of the incumbent of the parish in which they are situate.[77]
Moreover, a bishop may license a clergyman to administer the Lord's
Supper and perform services other than the solemnisation of marriage,
and, subject to the direction of the ordinary, to dispose of the
offertory and collections, in the chapel of any college, school,
hospital, asylum, or public or charitable institution within his
diocese; and where this is done, the institution and chapel are
withdrawn from the cure of souls and control of the incumbent of the
parish.[78] During the eighteenth and first part of the nineteenth
century, before the Church Building and New Parishes Acts had afforded
facilities for creating new parishes, unconsecrated proprietary chapels
were built in various places, with the consent of the bishop of the
diocese and incumbent of the parish, to meet the wants of overgrown town
populations. These chapels can only be served by ministers acting under
the licence of the bishop, (which he can at any time revoke),[79] and
with the consent of the incumbent, which, though he cannot himself
revoke it, is not binding on his successors.[80] Unless the incumbent
waives the right to the alms collected in the chapel, they must be
accounted for to him. The chapel is private property, and no one can
claim to attend it as of right.[81]
13. The right to the cure of souls in a parish naturally carries with it
the right of the incumbent to a voice in the erection of a new church in
the parish and the severance of any portion of the parish from his
benefice and its formation into a new ecclesiastical district or parish.
The various modes in which these objects may be effected are mentioned
in the note to Ch. I. § 6 above. The enactments on the subject provide
opportunities for the incumbents of the existing parishes, which would
be affected by any contemplated action in the matter, to lay their views
and objections, if any, before the bishop and the Ecclesiastical
Commissioners; but their views need not necessarily be accepted and
their objections may be overruled.
14. An incumbent cannot hold more than one benefice at the same time,
except that upon a certificate of the bishop as to the facts, and with a
licence or dispensation from the archbishop of the province (from the
refusal of which there is an appeal to the King in Council), he may hold
a second, the church of which is within four miles of that of the first
by the nearest road, if the annual value of one of the benefices does
not exceed the net sum of £200, after deducting rates, taxes, tenths,
dues, and permanent charges, but not the stipend of a curate. But where
the population of one of the parishes is over 3000, the joint holding
will only be lawful if that of the other is under 500.[82]
15. The bishop is invested with certain specific powers in case of the
inadequate performance of the ecclesiastical duties of a benefice,
including not only the regular and due performance of Divine service on
Sundays and holy days at the usual hours, but also all such duties as
the incumbent is bound by law to perform, or the performance of which
was solemnly promised by him at his ordination,[83] and the performance
of which has been required of him in writing by the bishop; and
including also, in the four Welsh dioceses and the county of Monmouth,
such ministrations in Welsh as the bishop directs to be performed by
him, not being more than one service in Welsh on every Sunday in any
church, and without interfering with due provision for the
English-speaking portion of the people. If the bishop has reason to
believe that these duties are inadequately performed by an incumbent, he
may issue a commission of inquiry to four commissioners, viz. the
archdeacon or rural dean of the archdeaconry or deanery in which the
benefice is situate; the canon residentiary, prebendary, or honorary
canon of the cathedral church of the diocese elected triennially for the
purpose by the dean and chapter; the beneficed clergyman elected
triennially for the purpose by and out of the beneficed clergy of the
archdeaconry; and a lay justice of the peace of the county nominated on
the requisition of the bishop by the chairman of quarter sessions or
lord-lieutenant of the county; and the incumbent may, if he desires, add
a beneficed clergyman of the diocese or a justice of the peace as a
fifth commissioner. If the commissioners or a majority of them report
that the duties are inadequately performed, the procedure may be
different, according as they do or do not add that this is due to the
negligence of the incumbent. If they do not report negligence, the
bishop has only power to require the incumbent to nominate one or more
curates to perform or assist in performing the duties, and to make the
appointment himself if the incumbent fails to do so, subject to an
appeal to the archbishop.[84] But if they report negligence, the bishop
may make the appointment without previously requiring the incumbent to
nominate, and may inhibit the incumbent from performing all or any of
the duties, subject to an appeal by him to the tribunal constituted by
the Benefices Act, 1898.[85] Evidence given before the commissioners is
privileged.[86]
16. An incumbent is ordinarily bound to reside in his benefice, or in
one of them if he holds two, or in the parsonage or vicarage house (if
any);[87] and, even though he keeps a curate, it is his duty, unless
excused for some valid reason by the bishop, to read the prayers and
administer the sacraments at least once a month.[88] If he is absent in
any year more than 90 days altogether, he is liable to forfeit, by way
of penalty, one-third; if more than 180 days, one-half; if more than 240
days, two-thirds; and, if for the whole time, three-fourths of the
year's income of the benefice; unless he has the bishop's licence, or if
the bishop has refused it, the archbishop's licence, for
non-residence.[89] This licence may be granted on account of (i.)
mental or physical infirmity; (ii.) the dangerous illness of the
incumbent's wife or child residing with him (but in that case for six
months only, renewable from time to time by leave of the archbishop on
the recommendation of the bishop); (iii.) the absence or unfitness of a
house of residence; (iv.) the occupation by the incumbent of a house of
his own in the parish, provided he keeps the house of residence in good
repair.[90] Exceptions are made in favour of incumbents holding certain
official positions;[91] and the bishop, with the sanction of the
archbishop, may grant a licence to reside outside the benefice, where he
thinks it expedient so to do. A licence for non-residence is only valid
until the 31st of December in the year next after that in which it was
granted; and it may at any time be revoked, subject, in the case of a
bishop's licence, to an appeal to the archbishop.[92]
17. In lieu of or after proceeding for pecuniary penalties, the bishop
may issue a monition and order requiring a non-resident incumbent to
reside on and perform the duties of his benefice, and in case of
non-compliance with the order may, subject to an appeal to the
archbishop, sequester the revenues of the benefice until residence is
resumed, and direct their application in payment of the penalties, the
expenses of the monition and sequestration, the repair and upkeep of
the chancel, house of residence, and other property of the benefice, the
satisfaction of any creditor's sequestration, and the augmentation or
improvement of the benefice or its property, allowing, if he pleases, a
certain proportion to the incumbent.[93] If a benefice continues for a
year under sequestration for non-residence or an incumbent incurs two
sequestrations for non-residence within two years, and is not relieved
in respect of either on appeal, it becomes void as if the incumbent were
dead.[94]
18. The law also makes provision for the performance of the
ecclesiastical duties of a benefice by curates in the case of an
incumbent who does not reside thereon for nine months in each year and
does not with the consent of the bishop perform the ecclesiastical
duties while residing on another benefice of which he is the incumbent,
or while holding a licence not to reside on the benefice or not to
reside in the parsonage house thereof.[95]
19. Incumbents who are non-resident with the bishop's licence cannot
without the bishop's permission resume the duties of their benefice
before the expiration of their licence; nor can they, if non-resident
for more than twelve months, interfere during that period with the
curate entrusted with those duties by the bishop.[96]
20. In reckoning the periods prescribed by law as to non-residence, a
month is a calendar month, except where it is to be made up of an
aggregate of lesser periods, in which case thirty days are to be deemed
a month. A year is to be reckoned as commencing on January 1, and ending
on the following December 31, both inclusive.[97]
21. An incumbent vacates his benefice by (i.) death, (ii.) resignation,
(iii.) admission to other preferment which he cannot by law hold
therewith, or (iv.) deprivation.
22. Resignation must be tendered to the bishop, and unless made in view
of an exchange must be unconditional. It should be made either in person
or by a deed attested by two witnesses. The presence and attestation of
a notary in addition are usual but are not essential. The resignation
may be made at the request of the bishop to avoid scandal and legal
proceedings, and he may agree to postpone the declaration of the vacancy
to a fixed date in the future in order to enable the incumbent to
receive the tithe rentcharge accruing before that date. Its acceptance
by the bishop need not be signified in any particular form or even in
writing, and is implied if the resignation was tendered at the bishop's
request. It cannot be revoked after its acceptance by the bishop.
Whether it can, under any circumstances, be revoked previously to
acceptance by him is not clear.[98] If, however, it is made for the
purpose of an exchange, it does not take effect unless the exchange is
carried out; so that if either of the exchanging incumbents dies before
being inducted to his new living, both resignations are void, as well as
the institution and induction of the other to the deceased's old living,
if that has taken place.[99] The Benefices Act, 1898, precludes an
incumbent, when he is presented, from entering into any engagement for
resigning the benefice except under the Clergy Resignation Bonds Act,
1828, sects. 1, 2, which allow such an engagement with a view to the
appointment to the benefice, when resigned, of a single specified
individual whomsoever, or of one of two specified individuals, each of
whom is by blood or marriage an uncle, son, grandson, brother, nephew,
or great-nephew of the person or one of the persons entitled in equity
to the patronage of the benefice, or of a married woman whose husband is
in her right the patron or one of the patrons.[100] The corrupt taking
of any pension money or other benefit for the resignation or exchange of
a benefice is prohibited by 31 Eliz. c. 6, s. 7. But under the
Incumbents Resignation Acts, 1871 and 1887, a pension may be awarded out
of the revenue of the benefice to an incumbent who, after a continuous
holding of the benefice for not less than seven years, retires therefrom
on the ground of incapacity to perform the duties by reason of permanent
mental or bodily infirmity. The bishop, if he thinks fit, on the
representation of the incumbent, appoints a commission to inquire and
report as to the expediency of the resignation, and, if the majority of
the commissioners consider it expedient, as to the amount of the
pension; which must not exceed one-third of the net annual value of the
benefice, exclusive of the house of residence. If the patron refuses
consent to the resignation, the question of its acceptance is to be
decided by the archbishop. If the incumbent is a lunatic, found such by
inquisition or certificate of a master of lunacy, the resignation may be
carried out in his name by the committee of his estate; but no provision
exists for effecting the resignation of an incumbent of unsound mind,
not so found. If any part of the income of the benefice is derived from
tithe rentcharge or glebe lands, the pension is to vary like the tithe
rentcharge with the corn averages; but it will not otherwise be affected
by a change in the value of the benefice.[101] It will cease if the
pensioner relinquishes the rights and privileges of holy orders under
the Clerical Disabilities Act, 1870, or is admitted to another benefice;
and if he undertakes clerical duties for a remuneration elsewhere than
in the benefice which he resigned, the bishop may decide that his
pension shall cease or be diminished altogether or for a limited time;
and the archbishop, on appeal, may confirm, annul, or vary the bishop's
decision.[102] A sum due from the retiring incumbent to his successor
for dilapidations may be deducted out of the pension, so that the
deductions do not without the bishop's consent exceed in any year
one-half of the pension; but no other debt can be set off against
it.[103]
23. Except in the case already mentioned of an incompleted
exchange,[104] an incumbent _ipso facto_ vacates his benefice on
admission to another preferment which cannot at law be held with
it.[105]
24. Deprivation is either (_a_) by operation of law or (_b_) by
sentence. (_a_) It takes place _ipso facto_ (i.) if the presentation or
admission to the benefice has been simoniacal, or if a person who has
been corruptly ordained is admitted to the benefice within seven years
afterwards;[106] (ii.) if the incumbent is convicted a third time of a
breach of the provisions of the Acts of Uniformity as to using the Book
of Common Prayer and no other, and as to not preaching in derogation
thereof;[107] (iii.) if the incumbent wilfully omits to read publicly
the Thirty-nine Articles and his declaration of assent after his
admission to the benefice;[108] (iv.) if the benefice continues a whole
year under sequestration for disobedience to the bishop's monition or
order requiring the incumbent to reside on the benefice, or if he incurs
two such sequestrations within two years, and is not relieved as to
either of them on appeal;[109] (v.) if an inhibition for enforcing
obedience by the incumbent to a monition or order under the Public
Worship Regulation Act, 1874, remains in force for more than three
years, or a second inhibition for the same purpose is issued within
three years from the relaxation of a former inhibition, and the bishop
does not intervene;[110] or (vi.) in the case of an incumbent presented
or collated since 1898, if within a year after his admission his
benefice is sequestrated on his bankruptcy or in aid of an execution
against his property, or if such a sequestration, issued after that
period, continues for a year, or if he incurs two such sequestrations
within two years, unless the bishop otherwise directs.[111] Moreover
(vii.) the bishop is to declare a benefice vacant if the incumbent is
convicted of treason or felony or, on indictment, of a misdemeanour, and
is sentenced to imprisonment with hard labour or any greater punishment,
or he has a bastardy order made against him, or in a divorce or
matrimonial cause he is either found to have committed adultery or an
order for judicial separation is made against him; but if, after being
so convicted, he receives a free pardon from the Crown before the
benefice is filled up, he is to be reinstated in it.[112] (_b_) Sentence
of deprivation is pronounced in suitable cases in proceedings against an
incumbent for a serious offence against morality under the Clergy
Discipline Act, 1892, or for an offence in respect of doctrine or ritual
or other matter of ecclesiastical cognisance under the Church Discipline
Act, 1840.[113]
Footnotes
[32] Wats. ch. xii. pp. 109-120; Gibs. Cod. 768-770.
[33] Wats. ch. ii. pp. 5, 6; Gibs. Cod. 769.
[34] Wats, ch ii. p. 6; Gibs. Cod. 769; (1571) 13 Eliz. c. 12, s. 7;
(1838) 1 & 2 Vict. c. 106, s. 108.
[35] 2 Burn, 357.
[36] Benefices Act, 1898 (61 & 62 Vict. c. 48), s. 5. Comp. §§ 4, 5
below.
[37] See ch. i. § 5.
[38] 13 Ann. c. 11 (12 Ann. st. 2, c. 12), s. 2.
[39] Walsh _v._ Bp. of Lincoln (1875) L. R. 10 C. P. 518.
[40] Alston _v._ Atlay (1837) 7 A. & E. 289.
[41] 61 & 62 Vict. c. 48.
[42] (1605) 3 Ja. 1, c. 5, ss. 19-21; (1688) 1 Will. & Mar. sess. 1, c.
26; (1898) 61 & 62 Vict. c. 48, s. 7.
[43] (1858) 21 & 22 Vict. c. 49, s. 4.
[44] 33 & 34 Vict. c. 91.
[45] 55 & 56 Vict. c. 32, ss. 1, 6.
[46] 37 & 38 Vict. c. 77. See ch. i. § 8.
[47] 27 & 28 Vict. c. 94. See ch. i. § 8.
[48] 24 Geo. 3, sess. 2, c. 35; 59 Geo. 3, c. 60; 37 & 38 Vict. c. 77,
s. 9.
[49] Willis _v._ Bp. of Oxford (1877) 2 P. D. 192. This includes, in the
four Welsh dioceses, inability to preach, administer the sacraments,
perform other pastoral duties, and converse in Welsh, subject to an
appeal to the archbishop; (1838) 1 & 2 Vict. c. 106, s. 104; Marquis of
Abergavenny _v._ Bp. of Llandaff (1888) 20 Q. B. D. 460.
[50] Ayl. Par. 39-42; Heywood _v._ Bp. of Manchester (1884) 12 Q. B. D.
404.
[51] See § 2 above.
[52] The "sufficient testimony" consists, by long-established practice,
of a testimonial by three beneficed clergymen, countersigned by the
bishops of their dioceses if they are not beneficed in the diocese of
the bishop to whom the testimonial is given, that the presentee has been
personally known to them for three years last past; that they have had
opportunities of observing his conduct, and during the whole of that
time they verily believe that he has lived piously, soberly, and
honestly, and that they have not heard anything to the contrary thereof,
nor that he has at any time held, written, or taught anything contrary
to the doctrine or discipline of the Church, and that they believe him
to be, as to his moral conduct, a person worthy to be admitted to the
benefice.
[53] Bp. of Exeter _v._ Marshall (1868) L. R. 3 H. L. 17.
[54] Gorham _v._ Bp. of Exeter (1849) 2 Rob. Eccl. 1; 13 Jur. 238.
[55] (1898) 61 & 62 Vict. c. 48, s. 3.
[56] _Ib._ s. 6 (1).
[57] _Ib._ s. 6 (2).
[58] Ayl. Par. 233-5.
[59] Benefices Act, 1898 (61 & 62 Vict. c. 48), s. 2 (2); Benefices
Rules, 1898, ru. 11, 12, sch. form (7).
[60] (1868) 31 & 32 Vict. c. 117.
[61] Gibs. Cod. 813.
[62] 28 & 29 Vict. c. 122 (Clerical Subscription Act, 1865), ss. 1, 5,
12; 31 & 32 Vict. c. 72 (Promissory Oaths Act, 1868), ss. 2, 8, 9, 14;
61 & 62 Vict. c. 48 (Benefices Act, 1898), s. 1 (4) sch.
[63] This may be the authority of the King in Council, under which the
names of the sovereign and members of the Royal Family are changed in
the prayers for them (Gibs. Cod. 280), and other forms are from time to
time prescribed; or that of the archbishop or bishop, so far as they
have power in the matter. See below, ch. v. § 1.
[64] See below, §22.
[65] See above, §2 (_c_).
[66] Clarke Proxis, tit. xci.; Gibs. Cod. 810. This oath does not mean
that the clerk will obey all the commands of the bishop against which
there is no law, but that he will obey all such commands as the bishop
by law is authorised to impose; Long _v._ Bp. of Capetown (1863) 1 Moo.
P. C. N. S. 411, at p. 465.
[67] (1865) 28 & 29 Vict. c. 122, s. 7.
[68] Johns, vol. i. p. 84; Wats. ch. xv. p. 155, sq.
[69] _London Gazette_, July 2, 1895.
[70] Duke of Portland _v._ Bingham (1792) 1 Hag. Cons. 157, 161; Carr
_v._ Marsh (1814) 2 Phill. 198, 206; Farnworth _v._ Bp. of Chester
(1825) 4 B. & C. 555, 568; Bliss _v._ Woods (1831) 3 Hag. Eccl. 486,
501-512; Nesbitt _v._ Wallace (1901) P. 354.
[71] Canon 48; Yates _v._ Chambers (1824) 2 Add. 177, 191.
[72] (1839) 2 & 3 Vict. c. 30; (1840) 3 & 4 Vict, c. 113, s. 72; (1869)
32 & 33 Vict. c. 94, s. 4.
[73] Cripps, 580; Moysey _v._ Hillcoat (1828) 2 Hag. Eccl. 30, 46; Bp.
of Down _v._ Miller (1861) 11 Ir. Ch. Rep. App. i., ix.; 5 L. T. N. S.
30; Kitson _v._ Drury (1865) 11 Jur. N. S. 272.
[74] (1688) 1 Will. & Mar. sess. 1, c. 18; (1812) 52 Geo. 3, c. 155.
[75] 18 & 19 Vict. c. 86 (Liberty of Religious Worship Act).
[76] Degge, 188 (pt. i. ch. 12).
[77] 31 & 32 Vict. c. 118, s. 31; 32 & 33 Vict. c. 56, s. 53.
[78] 34 & 35 Vict. c. 66 (Private Chapels Act, 1871).
[79] Hodgson _v._ Dillon (1840) 2 Curt. 388.
[80] Richards _v._ Fincher (1874) L. R. 4 A. & E. 255.
[81] Bosanquet _v._ Heath (1860) 9 W. R. 35; 3 L. T. N. S. 290.
[82] (1838) 1 & 2 Vict. c. 106, ss. 4, 6, 7, 9, 10; (1850) 13 & 14 Vict.
c. 98, ss. 1-4; (1885) 48 & 49 Vict. c. 54, s. 14.
[83] See § 9 above.
[84] (1838) 1 & 2 Vict. c. 106, ss. 77, 85-87, 105; (1885) 48 & 49 Vict.
c. 54, ss. 1-8.
[85] 61 & 62 Vict. c. 48, s. 9.
[86] Barratt _v._ Kearns (1905) 1 K. B. 504.
[87] Gibs. Cod. 885; (1838) 1 & 2 Vict. c. 106, ss. 32, 34, 35; Bluck
_v._ Rackham (1845-6) 1 Rob. Eccl. 367; 5 Moo. P. C. 305; 4 Not. of Ca.
85, 534; 9 Jur. 497; 11 _Ib._ 325; 9 Q. B. 691.
[88] (1662) 14 Cha. 2. c. 4 (Act of Uniformity) s. 5.
[89] (1838) 1 & 2 Vict. c. 106, ss. 32, 42, 114-121.
[90] (1838) 1 & 2 Vict. c. 106, ss. 33, 41-51, 57.
[91] _Ib._ ss. 37-39.
[92] _Ib._ ss. 46, 49.
[93] (1838) 1 & 2 Vict. c. 106, ss. 54-58.
[94] _Ib._ ss. 108, 112, 113.
[95] See below, ch. iii. §. 2 (_c_).
[96] (1885) 48 & 49 Vict. c. 54, s. 12.
[97] (1838) 1 & 2 Vict. c. 106, ss. 120, 121.
[98] Reichel _v._ Bp. of Oxford (1887) 35 Ch. D. 48; aff. (1889) 14 App.
Ca. 259; comp. _Ib._ 665.
[99] Gibs. Cod. 821; Wats. ch. iv. p. 28; Colt _v._ Bp. of Coventry and
Lichfield (1612) Hob. 140, 152.
[100] 9 Geo. 4, c. 94; 61 & 62 Vict. c. 48, s. 1 (4), sch.
[101] Robinson _v._ Dand (1886) 17 Q. B. D. 341.
[102] (1871) 34 & 35 Vict. c. 44; (1887) 50 & 51 Vict. c. 23; Maning
_v._ Hardy (1904) 20 Times Law Rep. 776.
[103] Gathercole _v._ Smith (1881) 17 Ch. D. 1; 7 Q. B. D. 626; (1887)
50 & 51 Vict. c. 23. s. 6.
[104] § 22 above.
[105] (1838) 1 & 2 Vict. c. 106, s. 11; (1850) 13 & 14 Vict. c. 98, s.
7.
[106] (1589) 31 Eliz. c. 6, ss. 4-6, 9.
[107] (1559) 1 Eliz. c. 2, s. 2; (1662) 14 Cha. 2, c. 4, s. 20.
[108] (1662) 14 Cha. 2, c. 4, ss. 2, 38; (1865) 28 & 29 Vict. c. 122, s.
7. See § 6 above.
[109] (1838) 1 & 2 Vict. c. 106, ss. 58, 120.
[110] 37 & 38 Vict. c. 85, s. 13.
[111] 61 & 62 Vict. c. 48 (Benefices Act, 1898), s. 10.
[112] (1870) 33 & 34 Vict. c. 23, s. 2; (1892) 55 & 56 Vict. c. 32
(Clergy Discipline), s. 1.
[113] 3 & 4 Vict. c. 86; 55 & 56 Vict. c. 32.