CHAPTER II

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.

The Legal Position of the Clergy · 第 2 / 9 章