Ex parte Presentees to livings in Popish patronage. ordinary authority, and as much as in us lies, and the laws and statutes of this realm do permit, and not otherwise; so that you, the aforesaid rectory of C., with the aforesaid perpetual curacy of W., may, as one benefice, so long as you are perpetual curate of the said perpetual curacy of W., retain, and the fruits," &c., "of both the said benefices (the burdens and charges due on the same being by you sustained) receive, convert, and apply to your own use, freely and lawfully, any ecclesiastical ordinance to the contrary notwithstanding. Provided, nevertheless, that you have and keep a sufficient curate, licensed and approved by our ordinary authority, to instruct and teach the people of the parish in which you shall not reside; and provided also that, if you shall at any time hereafter be collated or instituted to any other benefice whatsoever, that then our union shall be null and void to all intents and purposes in the law, as if the same had never been granted." It was holden that, assuming that the bishop had power to unite the two benefices into one, without the assent of the crown, chapter or patron (as to which quære), the instrument, on the whole, did not show an intention to effect such a union. That therefore (W. and C. being fifty miles from each other) D., while resident at C., was non-resident at W. within stat. 1 & 2 Vict. c. 106; and the bishop might, under sect. 83, while D. was receiving the profits of both livings, appoint a stipend to the curate of W., and enforce the payment by monition and sequestration of W. It appears from the case of Er parte Bartlett (z) that an incumbent detained in prison as a punishment for a temporal offence may nevertheless be ordered to reside, and may be proceeded against for non-residence. Specially long residence was required by 1 Will. & Mar. c. 26, s. 2 of those presented to livings in the patronage of Papists. But this provision was repealed by 32 & 33 Vict. c 109, s. 1 (a). Restraints by SECT. 6.-Pluralities (b). By a canon made in the Council of Lateran, holden under Pope Innocent III. in the year of our Lord 1215, it is ordained, that whosoever shall take any benefice with cure of souls, if he shall before have obtained a like benefice, shall ipso jure be deprived thereof, and if he shall contend to retain the same, he shall be deprived of the other; and the patron of the former, immediately after his accepting of the latter, shall bestow the same upon whom he shall think worthy (c). p. 28. 12 Q. B. p. 488; 3 Ex. XII., sect. 3. (c) Sect. 29 of the 4th Council of Lateran, title "Quod nullus habeat accordance with above The following case was decided in the Arches Court under Decisions in the provisions of this canon :"A clerk in holy orders being in possession of a perpetual Canon. curacy with cure of souls, augmented by the Governors of Queen Anne's Bounty, and having without dispensation been instituted and inducted into another benefice with cure of souls, was holden to have forfeited the former, which was on sentence declared void" (d). The Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench, has decided that the acceptance of a second living rendered the first living void as to the patron, and though not so as to incur a lapse without notice by the ordinary, yet so as to render it void as to the incumbent, and, as it should seem, the sale of the advowson simoniacal (e). The following case also deserves attention: "By a local act of parliament (6 Geo. 2, c. xxviii), the hamlet of Bethnal Green, in the parish of Stepney, was divided from it and made a distinct parish under the name of St. Matthew, Bethnal Green, with a parish church; and the advowson was vested in the patrons of the original church; and it was enacted, 'That the rectory of the said new church or parish shall not be 'taken or held in commendam.' The rector of St. Matthew, Bethnal Green, while holding that benefice, accepted another. It was holden that the rectory did not thereby and by force of the local statute become void, but only voidable, the rectory not being rated in the king's books and the patrons not making a new presentation" (f). constitutions. "Before institution, it shall be inquired whether the presentee Restraints by hath any other benefice with cure of souls; and if he hath such provincial benefice, it shall be inquired whether he hath a dispensation; and if he hath not a sufficient dispensation, he shall by no means be admitted, unless he do first make oath, that immediately upon his taking possession of the benefice unto which he is instituted, he will resign the rest. Whereupon he who granteth institution shall immediately give notice to the bishops in whose dioceses such former benefices shall be, and also to the patrons, that they may dispose of the same" (g). "When confirmation is to be made of the election of a bishop, amongst other articles of inquiry and examination according to the direction of the canons, it shall be diligently inquired, whether he who is elected had before his election several benefices with cure of souls; and if he be found to have had such, it shall be inquired whether he hath had a dispensation, and duo beneficia cum curâ annexâ." Fol. edit. of General Councils, printed at Paris, 1671; Venice, 1730; Hughes, c. 14; Gibs. p. 903. (d) Burder v. Mavor (1848), 1 Roberts. p. 614; 6 N. C. p. 1. (e) Alston v. Atlay, 7 A. & E. pp. 289, 311; S. C., 6 Nev. & M. (f) King v. Alston (1848), 12 Q. B, p. 971. (g) Otho. Athon, p. 129, Canon 41. Regulation of whether the dispensation (if he shall exhibit any) is a true dispensation, and extendeth to all the benefices which he possessed" (h). According to which constitution we find, in the times of the Archbishops Peccham and Winchelsea, that confirmation was denied to three bishops, by reason of pluralities without proper dispensation (i). "He who shall have more benefices than one with cure of souls, without dispensation, shall hold only the last; and if he shall strive to hold the rest, he shall forfeit all. And it is further decreed, that he who shall take more benefices than one, having cure of souls, or being otherwise incompatible, without dispensation apostolical, either by institution or by title of commendam, or one by institution and another by commendam, except they be held in such manner as is permitted by the Constitution of Gregory published in the Council of Lyons, shall be deprived of them all, and be ipso facto excommunicated, and shall not be absolved but by us or our successors, or the apostolic see" (k). Having Cure of Souls.]-Whether it be a cathedral or parochial church, or a chapel having cure of the parishioners, either de jure or de facto, so that there be a parish wherein he can exercise parochial rites; also, whether it be a dignity or office, or church, as there are many archipresbyters, archdeacons and deans who have no church of their own, yet they have jurisdiction over many churches (1). Or being otherwise incompatible.]-Namely, dignities, parsonages, and other ecclesiastical benefices, which require personal residence either by statute, privilege or custom (m). In such manner as is permitted by the Constitution of Gregory.]— Namely, that he to whom the benefice is granted in commendam be of lawful age, and a priest, and that it be one only, and of evident necessity or advantage to the church, and to continue no longer than for six months (n). And shall not be absolved but by us or our Successors, or the Apostolic See.]-And by another constitution of the same archbishop, if any shall otherwise absolve them, they shall be accursed (o). By Can. 41 of 1603, "No licence or dispensation for the (h) Otho. Athon, p. 133. (0) Ibid. p. 339. Since 1 & 2 Bp. of Salisbury, 4 Taun. p. 831; Shute v. Higden, Vaugh. p. 131; Rex v. Bp. of London and Baldock, W. Jones, p. 404; Robins v. Gerrard, Mo. p. 448; Wolverstan v. Bp. of Lincoln, 2 Wils. pp. 174, 200; Bp. of Lincoln v. Wolferstan, 3 Burr. p. 1504; Boteler v. Allington, 3 Atk. p. 455; Bulwer v. Bulwer, 2 B. & Ald. p. 470; King v. Priest, W. Jones, p. 339. keeping of more benefices with cure than one, shall be granted dispensations to any but such only as shall be thought very well worthy for by canon. his learning, and very well able and sufficient to discharge his duty; that is, who shall have taken the degree of a master of arts at the least in one of the universities of this realm, and be a public and sufficient preacher licensed. Provided always; that he be by a good and sufficient caution bound to make his personal residence in each of his said benefices for some reasonable time in every year; and that the said benefices be not more than thirty miles distant asunder; and, lastly, that he have under him, in the benefice where he doth not reside, a preacher lawfully allowed, that is able sufficiently to teach and instruct the people" (p). And it is further provided by Canon 47, that whosoever has Canon 47. two benefices, shall maintain a preacher licensed, in the benefice where he does not reside; except he preach himself at both of them usually (q). The method which a presentee used under the old law to Manner of pursue in order to obtain a dispensation, is given in Ecton, obtaining a dispensation. Thesaurus Rerum Ecclesiasticarum (r). It is not necessary to notice the restraints and dispensations Restraints of by statute before August, 1838, under 21 Hen. 8, c. Î3 (s), and plurality by earlier statutes. 57 Geo. 3, c. 99. These statutes have been repealed by 1 & 2 Vict. c. 106, and Restraints and this latter act has been again amended by 13 & 14 Vict. c. 98, dispensations and 48 & 49 Vict. c. 54. These Acts have gradually simplified by statute the law on the subject of plurality. First of all not more than two preferments are to be held together. since August, 1838. c. 106. By 1 & 2 Vict. c. 106, s. 2, "No spiritual person holding more 1 & 2 Vict. benefices... than one shall accept and take to hold therewith any cathedral preferment or any other benefice; and no spiritual two preferperson holding any cathedral preferment and also holding any ments to be benefice shall accept and take to hold therewith any other held together. cathedral preferment or any other benefice; and no spiritual person holding any preferment in any cathedral or collegiate church shall accept and take to hold therewith any preferment in any other cathedral or collegiate church any law, canon, custom, usage, or dispensation to the contrary notwithstanding." Then follows the proviso for archdeacons which, as amended by 4 & 5 Vict. c. 39, s. 9, has already been given (t). "By section 124 the term 'cathedral preferment'. . . . shall Definition of (p) See Gibs. pp. 910, 911, for p. 30. notes on this Canon; Rex v. Bp. of Lichfield and Coventry, 2 Black. W. p. 968, as to the thirty miles dis tance. (1) Vide supra, pp. 423, 886. () P. 414, and Appendix, pp. 610, 611. See also Degge, pt. 1, ch. 4, (8) Confirmed by 25 Hen. 8, c. 21. See cases Anon., Dyer, p. 327 b; Rex v. Bp. of Chichester, Noy, p. 149; Colt and Glover v. Bp. of Coventry and Lichfield, Hob. p. 158. (t) Vide supra, pp. 200, 203. the term "cathedral 66 be construed to comprehend" (unless it shall otherwise appear preferment," from the context) every deanery, archdeaconry, prebend, canonry, office of minor canon, priest vicar, or, vicar choral, having any prebend or endowment belonging thereto or belonging to any body corporate consisting of persons holding any such office, and also every precentorship, treasurership, sub-deanery, chancellorship of the church, and other dignity and office in any cathedral or collegiate church, and every mastership, wardenship, and fellowship in any collegiate church;" and "the term 'benefice' and "benefice." 13 & 14 Vict. c. 98. Restrictions on holding two benefices. 48 & 49 Vict. c. 54. 1 & 2 Vict. c. 106. Distance how to be com puted. .. shall be understood and taken to mean benefice with cure of souls, and no other (unless it shall otherwise appear from the context), and therein to comprehend all parishes, perpetual curacies, donatives, endowed public chapels, parochial chapelries, and chapelries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel " (u). This definition of "benefice" is repeated in 13 & 14 Vict. c. 98. Secondly, after other provisions had been tried in the two earlier acts, the law as to holding two "benefices" in the sense above defined, i.e. what may be called two parochial benefices is thus settled by 48 & 49 Vict. c. 54, s. 14 : Any clergyman may, with such licence or dispensation as is by the first-mentioned act" (i. e. 1 & 2 Vict. c. 106) "required for the holding together of two benefices, take and hold together any two benefices, the churches of which are within four miles of one another by the nearest road, and the annual value of one of which does not exceed 2007., or if on one of the said benefices there be no church, then the distance between the two benefices, for the purposes of this act, shall be computed in such manner as shall be directed by the bishop of the diocese; but except as aforesaid, it shall not be lawful for any clergyman to take and hold together any two benefices." The computation of this distance is provided for by section 129 of 1 & 2 Vict. c. 106, which enacts, poses "... that the distance between any two benefices for the purof this act shall be computed from the church of the one to the church of the other by the nearest road or footpath, or by an accustomed ferry; and if on one of the said benefices there be two or more churches, then the distance shall be computed from or to the nearest of such churches, as the case may be; or if on one of such benefices there be no church, then in such manner as shall be directed by the bishop of the diocese in which the benefice proposed to be taken and held by any spiritual person in addition to one already held by him shall be locally situate." (u) It had been previously enacted should be tenable with the original church of the parish out of which such distinct or district parish or district has been taken. |