BEN 



219 



BEN 



IT. stat. 2. c. 2 and 3 ; 16 Rich. II. c. 5 ; 2 Hen. IV. c. 3 ; 

 7 Hen. IV. c. 8 ; 3 Hen. V. c. 4. These statutes, which 

 inflict very severe penalties on persons endeavouring to 

 enforce the authority of papal bulls and provisions in Eng- 

 land, are sometimes called, from the initial words of the 

 writ issued in execution of the process under them, the 

 statutes of preemunire ; and the offence of maintaining the 

 papal power is itself (according to Blackstone, vol. iv. p. 

 1 1 2) called by the name of preemunire. [See PRMU- 

 NIRE.] The statutes against papal provisions (though not 

 very strictly enforced) remained unrepealed, in spite of the 

 attempts of the popes and their adherents to obtain their 

 abrogation. 



The rights of ecclesiastical patronage having been thus 

 solemnly vindicated by the English parliament, have, in 

 their fundamental principles, remained unaltered to the 

 present time. The ceremonies of presentation and institu- 

 tion in the case of lay patrons, and of collation where the 

 bishop is patron, are still necessary to give a title to all 

 benefices with cure of souls, except those which are techni- 

 cally called perpetual curacies and donatives ; and the title 

 so given is incomplete without corporal induction into pos- 

 session of the temporalities of the benefices. There are, 

 also, certain acts enjoined either by the canon law or statute, 

 the non-performance of which will subject the incumbent 

 to deprivation of the benefice into which he has been law- 

 fully inducted. 



There is no difference between institution and collation 

 as to the action itself, but they differ somewhat in their re- 

 spective consequences. Thus, by institution, the church is 

 said to be full against all persons but the king, and if it has 

 been full for the space of six months, this is a sufficient 

 answer to any action by private persons, or even by the king, 

 where he claims as a private patron and not by royal prero- 

 gative, as in case qf lapse, or otherwise. But, by collation, 

 tlie church is not full, so as to render a plea to that effect 

 available in the temporal courts, except against the collator. 

 Every clerk before institution or collation is required by the 

 canon law to take the oath against simony, and the oath of 

 canonical obedience to the bishop, and to declare by subscrip- 

 tion his assent to the doctrine of the kinjj's supremacy, to 

 the Book of Common Prayer, and the Thirty-nine Articles. 

 Tlie subscription to the Thirty-nine Articles is also imposed 

 by statute 13 Eliz. c. 12, upon all persons to be admitted to 

 any benefice with cure of souls. Moreover, the statutes 

 1 Eliz. c. 1, and 1 Will, and Mary, c. 8, sec. 5, require that 

 every person collated or promoted to any ecclesiastical bene- 

 fice shall, before he takes upon himself to supply or occupy 

 the same, take the oaths of allegiance and supremacy ; and 

 by statute 13 and 14 Car. II. c. 4 (commonly called the Act 

 of Uniformity), every parson and vicar shall, before his ad- 

 mission to be incumbent, subscribe a declaration of confor- 

 mity to the Liturgy of the Church of England as by law 

 established. 



The acts of institution or collation so far confer a right to 

 the temporalities of the benefice, that the clerk may enter 

 upon the glebe land and take the tithes, but he cannot sue 

 for them or grant them until induction. By induction the 

 church becomes full, even against the king, and the clerk is 

 seised of the temporalities of the benefice, and invested with 

 the full rights and privileges of a parson, persona ecclesice; 

 but by the Act of Uniformity he must, within two months after 

 he is in actual possession of hU benefice, upon some Sunday, 

 openly before his congregation, read the morning and even- 

 ing prayers, and declare his assent to the Book of Common 

 Prayer, on pain, in case of neglect or refusal, of being ipso 

 facto deprived of his benefice. The same statute obliges 

 him, on pain of deprivation, to read publicly, within three 

 months after his subscription to the declaration of confor- 

 mity to the Liturgy, the bishop's certificate of his having 

 made such subscription, together with the declaration itself ; 

 but the statute 23 Geo. III. c. 28 makes an exception 

 where the incumbent is prevented by some lawful impedi- 

 ment, to be allowed and approved of by the ordinary of the 

 place. The same penalty of deprivation is imposed by 13 

 Eliz.c. 12, in case of an incumbent failing, within two months 

 after induction, to read publicly in the church the Thirty- 

 nine Articles, and to declare his assent to them. The 23 

 Geo. III. c. 28, provides, that, in case of sickness or other 

 lawful impediment, it shall be deemed a sufficient compliance 

 with the statute of Elizabeth if the incumbent reads the 

 Articles, and declares his assent to them at the same time 

 that he declares his assent to the Book of Common Prayer. 



Finally, by statute 1 Geo. I. sess. 2, c. 13, the parson must, 

 within six months after his admission to the benefice, take 

 the oaths of allegiance and abjuration in one of the courts at 

 Westminster, or at the general quarter-sessions of the peace, 

 on pain of being incapacitated to hold the benefice, and of 

 incurring certain other disabilities therein specified. Such 

 are the means by which a clerk's legal title as parson, rector, 

 or vicar is acquired and maintainecl. 



Every parson or rector of a parish with cure of souls, and 

 where the parsonage is appropriated, every vicar, or per- 

 petual curate, though in his natural capacity an individual, 

 is in contemplation of law a body corporate, with perpetuity 

 of succession. The rector or parson is entitled to the free- 

 hold of the parsonage house and glebe lands, as well as the 

 tithes of the parish, except where a special exemption from 

 the payment of tithes exists by prescription or otherwise; but 

 owing to the practice of appropriation, which formerly pre- 

 vailed to a great extent in England, and has been attended 

 with very remarkable consequences, these are frequently 

 vested in laymen, who have vicars or curates under them 

 to perform the spiritual duties. [See ADVOWSON.] This 

 custom was not confined to spiritual corporations aggregate, 

 but deans and other officers in cathedrals, and in some places 

 even parish priests, procured the privilege of appointing a 

 vicar to perform the spiritual duties of the church, while its 

 revenues were appropriated to themselves and their suc- 

 cessors. Hence it happens that in some places a rector 

 and vicar are instituted to the same church ; in which case 

 the rector is excused from duty, and the rectory is called a 

 sinecure benefice, as being sine curd animarum. (Burn's 

 Eecles. Law. tit. Appropriation.) In order to effectuate an 

 appropriation it was necessary that the patron should obtain 

 the consent of the king and the bishop, as each of these 

 had an interest in the patronage of the church in case of 

 lapse, which, as a corporation never dies, could not take 

 place after the appropriation ; and upon the making an 

 appropriation, an annual pension was reserved to the bishop 

 and his successors, called an indemnity, and payable by the 

 body to whom the appropriation was made. In an antient 

 deed of appropriation preserved in the registry of the arch- 

 bishop of Canterbury, the ground of the reservation is ex- 

 pressed to be for a recompense of the profits which the bishop 

 would otherwise have received during the vacancy of the 

 benefice. (Burn, ibid.) 



After the appropriation the appropriators and their suc- 

 cessors became perpetual parsons of the church ; but if the 

 corporation were dissolved, the perpetuity of persons being 

 gone, the appropriation ceased, and the church recovered its 

 rights. 



This principle would have come into extensive operation 

 at the time of the dissolution of the monasteries in England, 

 if the legislature had not expressly provided against it. By 

 the statutes 27 Henry VIII. c. 28, and 31 Henry VIII. 

 c. 13, the possessions of these religious houses, and by a 

 subsequent statute, 32 Henry VIII. c. 24, those of the 

 Knights of St. John of Jerusalem, were all vested in the 

 crown. In each of these statutes parsonages and tithes are 

 expressly included, and the first two confirm the royal 

 grants made or hereafter to be made of this property. Tithes 

 are also included in two subsequent statutes, 37 Henry 

 VIII. c. 4, and 1 Edward VI. c. 14, by which the posses- 

 sions of chantries and religious fraternities are given to the 

 crown. The last of these statutes empowers the king's 

 commissioners, therein referred to, to ordain and sufficiently 

 endow vicars in perpetuity in parish churches annexed to 

 the religious fraternities whose possessions were confis- 

 cated by that act; and also to endow in perpetuity a 

 schoolmaster or preacher in such places where the religi- 

 ous fraternities or incumbents of chantries were bound 

 by the original foundation to keep a schoolmaster or 

 priest. The property acquired by the crown from the 

 above-mentioned sources, and from the dissolution of alien 

 priories in the reign of Henry V., was freely bestowed by 

 the kings of England, especially Henry VIII., not only 

 upon spiritual persons and corporations, but upon laymen. 

 Hence it is that there are so many instances in England at 

 the present time of not merely the right to tithes, but the 

 property of entire rectories being vested in laymen. These 

 benefices are sometimes called lay but more commonly im- 

 propriate rectories, as being (according to Spelman) im- 

 properly in the hands of laymen. The rector is, in that 

 case, termed the irapropriator ; but this appellation is now 

 indiscriminately applied not only to lay individuals and cor- 



2F2 



