BENEFICE. 



BENEFICE. 



78 



those of the queen and royal family, and other persons who are 

 allowed by the statute to retain a certain number of chaplains, and 

 also the brethren and sons of all temporal lords, the brethren and sons 

 of knights, and all doctors and bachelors of divinity and law, admitted 

 to their degrees in due form by the universities. The privilege is not 

 extended to the brethren and sons of baronets, as the rank of baronet 

 did not exist at the time when the statute was passed. [CHAPLAIN.] 



The statute expressly excepts deaneries, achdeacouries. chancellor- 

 ships, treasurerships, chauterships, prebends, and sinecure rectories. 

 Donatives are within the statute, if a donative is the first living ; but 

 if a donative is the second living taken without a dispensation, the first 

 is not made void by the statute, the words of which are " instituted 

 and inducted to any other," words not applicable to donatives. But it 

 seems that both in the cases excepted by the statute, and in the case 

 where the second living is a donative, a dispensation is equally necessary 

 in order to hold both preferments, as otherwise the first would be 

 voidable by the canon law. 



The stat. 36 Geo. III. c. 83 has brought chapels and churches, 

 augmented by Queen Anne's bounty, within the Statute of Pluralities, 

 by enacting that such churches and chapels shall be considered as pre- 

 sentative benefices, and that the licence to serve them shall render 

 other livings voidable in the same manner as institution to presentative 

 benefices. It appears that both by the common law, and by the pro- 

 visions of stat. 37 Hen. VIII. c. 21, and 17 Car. II. c. 3, a union or 

 consolidation of two benefices into one might with consent of patrons, 

 ordinaries, and incumbents, be made in such a manner as not to be 

 affected by the Statute of Pluralities. 



For the manner of obtaining dispensations from the archbishop, and 

 for the form of such dispensations, and the confirmation thereof by 

 the lord chancellor, and the provisions which the canon law requires 

 to be inserted in such dispensations, see Burn's ' Eccles. Law,' title 

 ' Plurality.' 



6. Another mode of avoidance of a benefice, is by deprivation under 

 a sentence of an ecclesiastical court. The principal causes on which 

 sentence of deprivation is usually founded, are heresy, blasphemy, 

 gross immorality ; or conviction of treason, murder, or felony. 



6. A benefice may be avoided by act of the law ; as where the 

 incumbent omits or refuses to subscribe the Thirty -Nine Articles, or 

 declaration of conformity to the Liturgy, or to read the Articles or 

 Book of Common Prayer, in pursuance of the statutes which render 

 those acts necessary. But the most remarkable mode of avoidance 

 which is to be classed under this head, is that for simony, in pursuance 

 of the stat. 31 Eliz. c. 6. By this statute for the avoiding of simony, 

 it i* among other things enacted, that if any patron, for any sum of 

 money, reward, profit, or benefit, or for any promise, agreement, grant, 

 bond, of or for any sum of money, reward, gift, profit, or benefit, shall 

 present or collate any person to an ecclesiastical benefice with cure of 

 Houla or dignity, such presentation or collation shall be utterly void, 

 and the crown shall present to the benefice for that turn only. The 

 statute also imposes a penalty upon the parties to the simoniacal con- 

 tract to the amount of double the value of a year's profit of the 

 benefice, and for ever disables the person corruptly procuring or 

 accepting the benefice from enjoying the same. And by stat. 12 Anne, 

 gees. 2. c. 12, a purchase by a clergyman, either in his own name or 

 that of another, of the next presentation for himself, is declared to be 

 simony, and u attended with the same penalties and forfeiture as are 

 imposed by the statute of Elizabeth. Upon the construction of this 

 statute of Elizabeth it has been held, that if the next presentation can 

 be shown to have been purchased with the intention of presenting a 

 particular person, who, upon a vacancy taking place, is presented 

 accordingly, this fact is sufficient to render the transaction simoniacal. 

 An exception has however been made in the case of a father providing 

 for his son by the purchase of a next presentation, but the principle of 

 this exception has lately been denied. 



The circumstance of the incumbent being at the point of death at 

 the time of the contract, may also vitiate the transaction : except 

 where the fee simple of the advowson is purchased, in which case it 

 has been decided that the knowledge of the state of the incumbent's 

 health does not make the purchase simoniacal. 



It ha* been a question much agitated in our courts, whether a 

 presentation is valid where the person presented enters into a bond or 

 agreement, either generally to resign the benefice at the patron's 

 request, or to resign it in favour of a particular person specified in the 

 iraent. After several contrary decisions in the courts below, it 

 was finally decided by the House of Lords towards the latter end of 

 the last century, that general bonds of resignation were simoniacal and 

 illegal. A similar decision has since been made by the same tribunal 

 with respect to bonds of resignation in favour of specified persons. 

 As there u no objection on the grounds of public policy to the last- 

 mentioned instruments, if restrained within due limit*, the interference 

 of the legislature has been thought necessary in order to regulate 

 transactions of this nature. On this account, after a retrospective Act 

 (7 & 8 Oo. IV. c. 25) had been passed, to remedy the hardships that 

 might otherwise have been occasioned by the List-mentioned judgment 

 of the House of Lords, it was finally enacted by the 9 Geo. IV. c. 94, 

 that every engagement, li-md .fide made for the resignation of any 

 spiritual office or living, in favour of a person, or one of two persons 

 to be specially named therein, being such persons as were mentioned 



in a subsequent section of the Act, should be valid and effectual in the 

 law, provided such engagement were entered into before the presenta- 

 tion of the party entering into the same. By the section referred to, 

 where two persons are specially named in the engagement, each of 

 them must be, either by blood or marriage, an uncle, sou, grandson, 

 brother, nephew, or grandnephew of the patron (provided the patron 

 is not a mere trustee), or of the person for whom the patron is a 

 trustee, or of the person by whose direction the presentation is intended 

 to be made, or of any married woman whose husband in her right in 

 patron, or of any other person in whose right the presentation is inten- 

 ded to be made. The deed containing the engagement to resign must 

 be deposited for inspection with the registrar of the diocese wherein 

 the benefice is situated, and every resignation made in pursuance of 

 such an engagement must refer to the same, and state the name of the 

 person for whose benefit it is made and becomes void, unless that 

 person is presented withiu six months. The statute is limited in its 

 operation to cases where the patronage is strictly private property. 



There are certain benefices of which the patronage is either by 

 custom or act of parliament vested in certain public officers or corpo- 

 rations. Thus, the lord chancellor has the absolute patronage of all 

 the king's livings which are valued at 201. per annum or under in the 

 king's books. It is not known how this patronage of the chancellor 

 was derived ; but it appears from the rolls of parliament in the 4th 

 Ed. III., that the chancellor at that time had the patronage of all the 

 king's livings of the value of 20 marks or under, and it is not im- 

 probable that at the time of making the new valuation of benefices 

 in the reign of Henry VIII., a new grant was made to the chancellor 

 by the crown, in consideration of the altered value of ecclesiastical 

 property. By stat. 3 James I. c. 5, popish recusanta are disabled from 

 exercising any right of ecclesiastical patronage ; and the patronage of 

 livings in the gift of such persons is vested in the two universities, 

 according to the several counties in which the livings are situate. 

 This disability was confirmed by the subsequent statutes 1 Will. & 

 Mary, c. 26, 12 Anne, seas. 2 c. 14, and extended to cases where the 

 right of patronage was vested in a trustee for a papist ; and is not 

 removed (along with the other disabilities affecting Roman Catholics) 

 by stat. 10 Geo. IV. c. 7. But the last-mentioned act provides, that 

 where any ecclesiastical patronage is connected with any office in the 

 gift of the crown, which office is held by a Roman Catholic, the 

 patronage, so long as the office is so held, shall be exercised by the 

 Archbishop of Canterbury. 



The Church of Ireland being the same with that of England, the 

 ecclesiastical polity of each is hi its main principles the same. The 

 same law of ecclesiastical patronage, the same classification of benefices, 

 the same circumstances of lay inipropriations, and, in short, the same 

 ecclesiastical privileges and disabilities may prevail in each country. 

 But a most important alteration in the distribution of the revenues of 

 the Irish Church was effected by the 3 & 4 Will. IV. c. 37, amended 

 by 4 & 5 Will. IV. c. 90. By this Act, certain ecclesiastical com- 

 missioners are established as a corporation, for the augmenting of small 

 livings out of the funds, which come into their hands by virtue of 

 the Act, and for other ecclesiastical purposes. The funds in ques- 

 tion arise, partly from the revenues of certain bishoprics which are 

 abolished, and the surplus revenues of the rest above certain limits 

 fixed by the Act ; partly from the money paid by the tenants of lands 

 held under bishops' leases renewable for ever, for a conversion of such 

 leasehold interest into a perpetuity ; and partly from a tax levied on 

 all ecclesiastical dignities and benefices, according to a scale of taxation 

 specified in a schedule to the Act ; in consideration of which tax all 

 first fruits are abolished. The commissioners are invested with extra- 

 ordinary powers by the Act. Thus, they have authority to disappro- 

 priate benefices united to dignities, and to unite them to vicarages in 

 lieu thereof. They have also the power of suspending the appointment 

 to benefices which are in the gift either of the crown, of archbishops, 

 bishops, or other dignitaries, or of ecclesiastical corporations, where it 

 appears that divine service has not been performed within such bene- 

 fices for three years before the passing of the Act. The subject of the 

 better regulation of Ihe revenues and discipline of the Irish Church 

 occasionally engages the attention of the legislature. 



We have mentioned. the attempts of the popes to acquire the right 

 of patronage to all ecclesiastical benefices in Europe, and the successful 

 measures that were taken in England for resisting their pretensions. 

 After ineffectual attempts had been made at the councils of Constance 

 and Basle, in 1414 and 1433, to check the papal encroachments, each of 

 the principal European governments seems to have asserted in some 

 measure its own ecclesiastical independence, either by entering into 

 concordats with the pope, or assximing the right of controlling his pre- 

 tensions by national legislation. The latter course seems to have been 

 "adopted by Spain towards the end of the 15th century. (Hallam's 

 ' Middle Ages,' vol. ii. p. 361.) The emperor of Germany in 1448 

 entered into a concordat at Aschaffenburg with the pope, which is said 

 to be still the law of the Catholic states of Germany. By this treaty, 

 the pope obtained the right of collation to all benefices that fell vacant 

 during six altarnate months of the year. By the Pragmatic Sanction of 

 Charles VII. of France, published in 1438, all mandates and reservations 

 with respect to benefices in that country were abolished for the future. 

 This ordinance was followed, in the beginning of the 16th centuiy, by 

 the concordat of Francis I. and Leo X., which remained till the time of 



