for no person can accept a dignity or benefice in Ireland until he has first resigned all his preferments in England; so that in this case the patron, and not the king, has the benefit of the avoidance. The avoidance may be prevented by a licence from the crown to hold the benefice in commendam. Grants in commendam may be either temporary or perpetual. They are said to be derived from an ancient practice in the Roman Catholic church, whereby, when a church was vacant, and could not be immediately filled up, the care of it was commended by the bishop or other ecclesiastical superior to some person of merit, who should take the direction of it until the vacancy was filled up, but without meddling with the profits. This practice, however, in process of time being abused for the purpose of evading the provisions of the canon law against pluralities, became the subject of considerable complaint, and of some restraints, by the authority of popes and councils, and particularly of the celebrated Council of Trent in the sixteenth century. (See Father Paul's Treatise on Benefices.') A benefice may be granted in commendam to a bishop after consecration, but then the patron's consent must be obtained, in order to render the commendam valid. If the incumbent of a donative be promoted to a bishopric, no cession takes place, but it seems that he may retain the donative without a commendam. (Viner's Abr. tit. "Presentation," K. 6.)

6

4. If an incumbent of a benefice with cure of souls accepts a second benefice of a like nature without procuring a dispensation, the first, by the provisions of the canon law, is so far void, that the patron may present another clerk, or the bishop may deprive; but till deprivation no advantage can be taken by lapse. The stat. 21 Henry VIII. c. 13, which was repealed by 1 & 2 Vict. c. 106, provided that where a person, having a benefice of the value of 81. per annum or upwards, according to the valuation of the king's books, accepted any other, the first should be adjudged void, unless he obtained a dispensation in conformity with the pro

not in conformity with the statute were declared void, and heavy penalties were imposed upon persons endeavouring to procure them. But by virtue of such dispensations, spiritual persons of the king's council might hold three benefices with cure, and the other persons qualified by the statute to receive dispensations might each hold two such benefices.

The persons who might receive dispensations were, the king's chaplains, those of the queen and royal family, and other persons who were 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 was 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.

The statute expressly excepted deaneries, archdeaconries, chancellorships, treasurerships, chanterships, 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 George III. c. 83, 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 presentative 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 provisions of statute 37 Henry VIII. c. 21, and 17 Charles 11. 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. Under § 72 of 1 & 2 Vict. c. 106, benefices may be divided or consolidated with the consent of patrons, and there is a clanse for apportioning in certain cases the incomes of two benefices belonging to one patron. (Burn's Eccles. Law, tit. "Union.")

For the manner of obtaining dispensations from the archbishop, and for the form of such dispensations, and of the confirmation thereof by the lord chancellor, and the provisions which the canou law requires to be inserted in such dispensations, see Burn's Eccles. Law, tit. "Plurality."

The subject of Pluralities is now regulated by 1 & 2 Vict. c. 106, entitled 'An Act to abridge the holding of Benefices in Plurality, and to make better provision for the residence of the clergy. By this act no persons holding more benefices than one shall hold therewith any cathedral preferment or any other benefice. The term "cathedral preferment" comprehends every dignity and office in any cathedral or collegiate church. An archdeacon may hold two benefices with his archdeaconry under the limitations of the act. Two benefices held by one person must be within ten miles of each other, and a licence of dispensation must be obtained from the archbishop of Canterbury. No person is to hold a benefice with a population of more than three thousand persons, if he has already a benefice with a population exceeding five hundred persons; and two benefices cannot be held if their joint yearly value exceeds 1000l. If, however, the yearly value of one of the benefices be under 150l., and the population does not exceed 2000, two benefices may be held together, although their joint value exceed 1000l.; but the incumbent must give to the bishop a statement in writing of the reasons why the two benefices should be held together, and the bishop may require him to reside nine months in the year on one of them.

5. 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 statute 31 Elizabeth, c. 6. By this statute for the avoiding of simony, it is 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 souls 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 contract 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 statute 12 Anne, sess. 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 is 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 indeed 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. (2 B. & C. 652.)

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 has 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 benetice at the patron's request, or to resign it in favour of a particular person specified in the instrument. 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 lately been made by the same tribunal with respect to bonds of resignation in favour of specified persons. As there is no objection on the grounds of public policy to the last-mentioned instruments, if restrained within due limits, 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 Geo. IV. c. 25) had been passed, to remedy the hardships that might otherwise have been occasioned by the lastmentioned judgment of the House of Lords, it was finally enacted by the 9 Geo. IV. c. 94, that every engagement, bona 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 law, provided such engagement were entered into before the presentation 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, son, grandson, brother, nephew, or grand-nephew 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 is patron, or of any other person in whose right the presentation is intended 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 within 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 corporations. Thus, the lord chancellor has the absolute patronage of all the king's livings which are valued at 20l. 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 4 Edward 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 improbable 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 or ecclesiastical property

By the Municipal Corporations Act (5 & 6 Will. IV. c. 76) all advowsons, rights of presentation or nomination to any benefice or ecclesiastical preferment in the gift of any body corporate, according to the meaning of the act, were required to be sold under the direction of the ecclesiastical commissioners, and the proceeds invested in government securities, the interest on which was to be carried to the account of the borough fund (§ 139). The act 1 & 2 Vict. c. 31, was passed for facilitating this transfer of patronage.

By stat. 3 Jac. I. c. 5, popish recusants 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 William and Mary, c. 26, 12 Anne sess. 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

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 a parson, rector, or vicar is acquired and maintained.

Every parson, or rector of a parish with cure of souls, and, where the parsonage is appropriated, every vicar, or perpetual 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 freehold of the parsonagehouse 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 prevailed to a great extent in England, and has been attended with very remarkable consequences, the tithes are now often vested in laymen, who have vicars or curates under them to perform the spiritual duties. [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 successors. 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 curâ animarum. (Burn's Eccles. 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 ancient deed of appropriation preserved in the registry of the archbishop of Canterbury, the ground of the reservation is expressed 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 successors 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 possessions 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 confiscated by that act; and also to endow in perpetuity a schoolmaster or preacher in such places where the religious 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 impropriate rectories, as being (according to Spelman) improperly in the hands of

Queen Anne's Bounty, and which has had, or may hereafter have, a district assigned to it, is to be a perpetual curacy and benefice. The commissioners for building new churches may assign districts to them, and such church or chapel may be augmented by the governors of Queen Anne's Bounty.

The district churches built in pursuance of several recent acts (as 58 Geo. III. c. 45; 59 Geo. III. c. 134; 3 Geo. IV. c. 72; 5 Geo. IV. c. 103; 7 & 8 Geo. IV. c. 72; 1 & 2 Will. IV. c. 38; 2 & 3 Will. IV. c. 61; 7 Will. IV. & 1 Vict. c. 107; 2 & 3 Vict. c. 49; 3 & 4 Vict. c. 60) are made perpetual cures, and the incumbents corporations.

A donative is a spiritual preferment, whether church, chapel, or vicarage, which is in the free gift of the patron, without making any presentation to the bishop, and without admission, institution, or induction by mandate from the bishop or any other; but the donee may by the patron, or by any other authorized by the patron, be put into possession. Nor is any licence from the bishop necessary to perfect the donee's title to possession of the donative, but it receives its full effect from the single act and sole authority of the donor. The chief further peculiarity of donatives is their exemption from episcopal jurisdiction.

The manner of visitation of donatives is by commissioners appointed by the patron. If the patron dies during the vacancy of a donative benefice, the right of nomination descends to the heir-atlaw, and does not belong to his executors, as is the case with the patronage of presentative livings. Donatives, if augmented by Queen Anne's Bounty, become liable to lapse, and also to episcopal visitation. (1 Geo. I. sess. 2, c. 10.) But no donatives can be so augmented without the consent of the patron in writing, under his hand and seal. Both perpetual curates and incumbents of donatives are obliged to declare their assent to the Thirty-nine Articles and the Book of Common Prayer, in the manner prescribed by the statute 13 Eliz. c. 12, and the Act of Uniformity above mentioned, and must also take the oaths of allegianco, supremacy, and abjuration, accord

ing to the provisions of statutes 1 Geo. I. sess. 2, c. 13, and 9 Geo. II. c. 26; and the right of patronage, both of perpetual curacies and donatives, is to be vindicated by writ of Quare Impedit. (Burn, Eccles. Law, tit. "Donative.")

Neither the augmentation nor the alienation of benefices with cure of souls was favoured by the old English law. To prevent augmentation was one of the ob jects of the statutes of Mortmain, one of which (23 Hen. VIII. c. 10) expressly makes void all assurances of lands in favour of parish churches, chapels, &c.

It might have been reasonably expected that, at the time of the dissolution of monasteries, the clergy would have received back those revenues which, being originally vested in them for religious purposes, had been subsequently appropriated by the monks. Such a measure, however, was not agreeable to the temper either of King Henry VIII. or his parliaments. When that king came to a rupture with the pope, he resolved to free his dominions from the payment of first-fruits and tenths to the papal treasury. The first of thes, taxes consisted of one year's whole profits of every spiritual preferment, according to a valuation of benefices made by the pope's authority; the second, of the tenth part of the annual profit of each benefice, according to the same valuation. The payment of these to the pope was prohibited by statute 25 Henry VIII. c. 20; and the next year, by statute 26 Henry VIII. c. 3, the whole of the revenue arising therefrom was annexed to the crown. The last-mentioned statute directed these taxes to be paid according to a new valuation of ecclesiastical benefices to be made by certain commissioners appointed for the purpose. This valuation is what is called the valuation of the king's books. The statute 26 Henry VIII. c. 3, was confirmed by statute 1 Eliz. c. 4. [FIRST FRUITS and TENTHS.]

The subsequent proceedings of Henry VIII., after the appropriation of the possessions of the monasteries, tended rather to enrich the collegiate and other corporations aggregate with the revenues of the church, than to revest them in their ancient possessors. Nor was the latter