The Legal Position of the Clergy

by Philip Vernon Smith

[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]