One part of

every such instrument to be

registry of the

diocese.

presentation, &c. shall be intended to be made, or of any married woman, whose husband, in her right, shall be the patron or one of the patrons of such spiritual office, or of any other person in whose right such presentation, &c. shall be intended to be made.

No presentation, &c., nor any admission, &c., shall be void by reason of any such engagement, by any spiritual persons or others, to or with patrons or others, and his majesty shall not present or collate, or give or bestow such spiritual office, by reason of any such engagement; and such spiritual persons or patrons shall not be subject to any penalties or forfeitures, or to any prosecution or other proceeding, by reason of having made such engage

ment.

In order to bring any engagement within the operation and protection of the act, one part of the deed, instrudeposited in the ment or writing, by which such engagement shall be made, given or entered into, shall, within two calendar months next after the date thereof, be deposited in the office of the registrar of the diocese wherein the benefice, &c. shall be locally situate: in the cases of benefices, &c. within peculiars, to be deposited with the registrar of the peculiar jurisdiction.

Directions as to the instrument so deposited.

Fees to regis

trar.

Manner in

signation is to be made.

Such registrars shall respectively deposit and preserve the same, and shall give and sign a certificate of such deposit thereof.

Every such deed shall be produced at all proper and usual hours at such registry, to every person applying to inspect the same.

An office copy of such deed, &c., certified under the hand of the registrar (which copy so certified, the registrar shall in all cases grant to persons applying for the same), shall be admitted as legal evidence thereof in all courts whatsoever.

Every such registrar is entitled to a fee of two shillings for depositing such deed, instrument or writing, and for certifying such deposit thereof, to a fee of one shilling for every search to be made for the same, and to a fee of sixpence for every folio of seventy-two words of each certified office copy.

for

Every resignation to be made in pursuance of any such which such re- agreement, shall refer to the engagement in pursuance of which it is made, and state the name of the person whose benefit it is made: and it shall not be lawful for the ordinary to refuse such resignation, unless upon good and sufficient cause to be shown for that purpose. Such

resignation shall not be valid and effectual, except for the purpose of allowing the person for whose benefit it shall be made, to be presented, collated, nominated or appointed to the spiritual office thereby resigned, and shall be absolutely null and void, unless such person shall be presented, &c. as aforesaid, within six calendar months next after notice of such resignation, given to the patron of such spiritual office.h

All presentations, collations, gifts, or the bestowing of any such spiritual office by the king, either in the right of Act extends the crown or duchy of Lancaster; by archbishops, bishops only to private or other ecclesiastical persons, in right of any dignity, office patrons. or living; by corporations corporate or sole; by any other in right of any office or dignity; by trustees or feoffees for charitable or public purposes; or by any other person not entitled to the patronage of such spiritual office, as private property; are excepted from the operation of the act.'

Few questions of equal importance have been regarded Review of this with such diversity of opinion by the ablest lawyers as the subject. present; and there has been scarcely one such other instance, where the settled opinions of Westminster Hall have been twice successively overthrown by the decree of our highest judicial tribunal.

It seems clear, however, that special bonds of resignation, without any restrictions as to the parties named in them, were open to all the objections upon which general bonds of resignation had been held bad. That the decree of the House of Lords in the case of Fytche v. The Bishop of London was intended to decide, and did virtually decide, the whole question; and that it was only because that decree was opposed to the opinions of the profession, and because many may have thought with Lord Kenyon, "that when the question came again before the House of Lords, they would review their former decision," that the distinction between general and special resignation bonds was ever allowed to be set up.

The question, as now settled by legislative enactment, does not appear likely to be again disturbed. Any bond or contract to resign, except in the cases specified in the act, is not only so far illegal as to be incapable of being enforced, but makes the presentation void as simoniacal; and subjects the parties to such bond or contract to the penalties for simony, under the statute of 31st Elizabeth before mentioned. But there is nothing which makes it illegal for a clergyman to resign his living at any time in consequence of any understanding or agreement, not com* Vide Bagshaw v. Boselley, ante.

h Sect. 5.

¡ Sect. 6.

pulsory, with the patron; provided the bishop is willing to accept a resignation under such circumstances; or the resignation might, perhaps, in such a case, be effected, in the manner already mentioned, by institution to a second living.

Deprivation.

Causes of, where determinable.

SECTION 3.

Of Deprivation, Suspension and Degradation.

These three subjects here named may be conveniently considered together in the present section. For suspension in the usual form, ab officio et a beneficio, is in fact temporary deprivation, while suspension ab officio would be in the nature of a temporary degradation. That which would be equivalent to suspension ab officio, may be enforced where there is no benefice; as in the case of curates, lecturers, ministers of proprietary or other chapels, or, in fact, in the case of any clergyman who may be enjoined by the bishop not to officiate in his diocese. But in these cases, the mode adopted would probably be revocation of license in such manner as we have mentioned elsewhere. But the term suspension appears to have been very generally appropriated to cases of beneficed clergymen, suspended ab officio et a beneficio, and in that sense we shall consider it here: and from the following definition of deprivation by Degge, we shall see that that also is confined to cases of the same description.

Deprivation, he says, is an ecclesiastical censure, whereby a clergyman is deprived of his parsonage, vicarage or other spiritual promotion or dignity: and the causes of such deprivation are properly and naturally determinable by the ecclesiastical laws of this realm, but because generally there are estates of freehold dependant upon these promotions and dignities, and annexed to them inseparably, which rest at the sole determination of the common law, the courts of common law do sometimes inspect and regulate the proceedings of the ecclesiastical courts; and where they proceed against the rules of law, they frequently prohibit them (especially where such sentence for any offence is inflicted by act of parliament.)'

Deprivation is said to be called by the canonists by the names of deposition, degradation, or exauctoration, but in the sense in which we here consider it, it is different from any of those, for those would be the removing a person from

1 Degge, p. 1, c. 9.

or without sen

tence.

some degree, dignity, or order in the Church, but this would be the depriving him of his ecclesiastical preferments. Deprivation may be with or without sentence; the May be with cases where no sentence would be necessary being those where it is declared by statute, that upon the doing or omission to do a certain act, the party shall be ipso facto deprived; and these appear to be the only cases where a party can be deprived without sentence; for in regard to the other case mentioned in the books of a layman presented to a benefice, in which case it is said there is no need of a sentence of deprivation, it would seem that the word deprivation is altogether inapplicable; for as the admission, institution, &c. would be wholly null and inoperative in law, and confer no right or interest, there would be nothing of which such a party could be deprived. The several offences for which it has been declared by statute that the clergyman shall be ipso facto deprived, will be found under the different heads with which those offences are connected, but the following summary of them here may be useful:

Simony, by the 31st Eliz. c. 6.

Summary of

which party

Refusing to use the Book of Common Prayer, causes for or speaking or preaching anything in derogation may be dethereof, or using any other rite or ceremony, and prived without being twice convicted thereof, by 2 & 3 Edw. VI. sentence. and 1 Eliz. c. 2.

Not publicly reading the Thirty-nine Articles of Religion in the church whereof he has cure, in the time of common prayer, with declaration of his unfeigned assent thereto, within two months after induction, by 13 Eliz. c. 12.

Not reading the morning and evening prayer, and declaring his unfeigned consent thereto, according to the prescribed form, within two months after actual possession, or, in case of impediment, within one month after such impediment removed, by 13 & 14 Car. II. c. 4.

Not subscribing the declaration of conformity to the Liturgy of the Church of England, and not procuring a certificate under the hand and seal of the ordinary, who is required to make the same; and not publicly and openly reading the same, together with the declaration aforesaid, upon some Lord's day, within three months then next following in his parish church, in the time of divine service, by 13 & 14 Car. II. c. 4, and 1 Will. & M. sess. 1, c. 8.

Suspension or deprivation at discretion of the

bishop in most

cases.

Exception.

In cases of

clergymen ille gally trading, deprivation for third offence is not at the dis

cretion of the bishop.

The acceptance of a second preferment or benefice, contrary to the provisions of the act for preventing the holding benefices in plurality, by 1 & 2 Vict. c. 106.

If the benefice of any spiritual person continues for one whole year under sequestration, issued under the act 1 & 2 Vict. c. 106, for disobedience to the bishop's monition, requiring such person to reside on his benefice; or if such spiritual person, under the provisions of the same act, incurs two such sequestrations within the space of two years, such spiritual person is deprived, and the benefice becomes void, by 1 & 2 Vict. c. 106.

The cases mentioned above do not, as it seems, necessarily require the intervention of the ecclesiastical court, and consequently do not now require a proceeding under the act for better enforcing church discipline. In all other cases of deprivation, as well as in all cases of suspension, it is necessary that there should be a regular proceeding," which would be either regulated by statute in the particular case, or if there was no particular direction, then by a proceeding under the Church Discipline Act.

For almost every offence for which sentence of deprivation might be passed, sentence of suspension only might be substituted by the bishop, if that should appear to him sufficient to meet the circumstances of the case; but there are some particular cases for which the punishment of deprivation appears to be so far directed by statute, as to leave no discretion to the bishop, although the offending party must be cited before him, and sentence regularly passed.

Thus if any spiritual person shall trade or deal in any manner contrary to the provisions of the act 1 & 2 Vict. c. 106, it shall be lawful for the bishop of the diocese, where such person shall hold any cathedral preferment, benefice, curacy, or lectureship, or shall be licensed, or otherwise allowed to perform the duties of any ecclesiastical office whatever, to cause such person to be cited before his chancellor or other competent judge, and it shall be lawful for such chancellor or other judge, on proof in due course of law of such trading, to suspend such spiritual person for his first offence, for such time not exceeding one year, as to such judge shall seem fit; and on proof, in like manner, before such or any other competent ecclesiastical judge, of a second offence committed by such spiritual person, subsequent to such sentence of suspension, such spiritual person shall, for such second offence,

m Gibs. 1046.