The Legal Position of the Clergy Part 2

7. A clerk who has been admitted to a benefice by either inst.i.tution, 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 inst.i.tution 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: Inst.i.tution 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 G.o.d'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 G.o.dly admonitions, and submitting himself to their G.o.dly 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 inc.u.mbent 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 inc.u.mbent 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 inc.u.mbents 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 inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent of his diocese from officiating within the diocese elsewhere than in the consecrated buildings within his own parish. If an inc.u.mbent 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 inc.u.mbent 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 a.s.sembly for religious worship either (_a_) conducted by the inc.u.mbent 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 inc.u.mbent to officiate and exercise the cure of souls is actually superseded in favour of a chaplain appointed without his consent. Where a n.o.bleman 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 inc.u.mbent 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 inst.i.tution within his diocese; and where this is done, the inst.i.tution and chapel are withdrawn from the cure of souls and control of the inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent, which, though he cannot himself revoke it, is not binding on his successors.[80] Unless the inc.u.mbent 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 inc.u.mbent 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 inc.u.mbents 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 inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent, 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 inc.u.mbent 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 inc.u.mbent. If they do not report negligence, the bishop has only power to require the inc.u.mbent to nominate one or more curates to perform or a.s.sist in performing the duties, and to make the appointment himself if the inc.u.mbent 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 inc.u.mbent to nominate, and may inhibit the inc.u.mbent from performing all or any of the duties, subject to an appeal by him to the tribunal const.i.tuted by the Benefices Act, 1898.[85] Evidence given before the commissioners is privileged.[86]

16. An inc.u.mbent 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 inc.u.mbent'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 inc.u.mbent 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 inc.u.mbents 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 inc.u.mbent 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 inc.u.mbent.[93] If a benefice continues for a year under sequestration for non-residence or an inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent, or while holding a licence not to reside on the benefice or not to reside in the parsonage house thereof.[95]

19. Inc.u.mbents 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 inc.u.mbent 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 inc.u.mbent to receive the t.i.the 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 circ.u.mstances, 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 inc.u.mbents dies before being inducted to his new living, both resignations are void, as well as the inst.i.tution and induction of the other to the deceased's old living, if that has taken place.[99] The Benefices Act, 1898, precludes an inc.u.mbent, 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 ent.i.tled 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 Inc.u.mbents Resignation Acts, 1871 and 1887, a pension may be awarded out of the revenue of the benefice to an inc.u.mbent 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 inc.u.mbent, 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 inc.u.mbent 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 inc.u.mbent of unsound mind, not so found. If any part of the income of the benefice is derived from t.i.the rentcharge or glebe lands, the pension is to vary like the t.i.the 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 inc.u.mbent 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 inc.u.mbent _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 inc.u.mbent 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 inc.u.mbent wilfully omits to read publicly the Thirty-nine Articles and his declaration of a.s.sent 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 inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent 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 inc.u.mbent 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 b.a.s.t.a.r.dy 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 p.r.o.nounced in suitable cases in proceedings against an inc.u.mbent 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).