Philip Vernon Smith

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.

(iv.) The 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] Vict. c. 135:[69]

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]