veniently provided of a pastor is said to be held in commendam. Thus, when a parson of a parish is made the bishop of a diocese, there is a cession of his benefice by the promotion; but if the king gave him power to retain his benefice, he continued parson thereof, and was said to hold it in commendam (m). The words "to prevent its becoming void," are not in Godolphin, and seem to have been added to the definition to make it extend to commendams retinere, which Lord Hobart says are not properly commendams, though usually called so, but merely faculties to retain, for according to him there is no difference between a commendam and a presentation, but that the one presents the parson to the church, the other commits the church to the parson. According to the same authority, commendams are of three degrees one, semestris, that the church may not be without a parson during the patron's respite of six months; another perpetua, or for life; the third limitata, or temporary, which limitation however is not allowed in commendams capere (n). There are constitutions of Othobon and of Archbishop Peccham restraining the acquisition of commendams (o). But it does not seem necessary now to give these in detail. in case of For by 6 & 7 Will. 4, c. 77, s. 18, it is enacted that "After Abolition of the passing of this act no ecclesiastical dignity, office or benefice commendam shall be held in commendam by any bishop, unless he shall so bishops. hold the same at the time of passing thereof; and that every commendam thereafter granted, whether to retain or to receive, and whether temporary or perpetual, shall be absolutely void to all intents and purposes." SECT. 4.-Sinecure. The origin of sinecures was thus : The rector (with proper consent) had a power to entitle a vicar in his church to officiate under him, and this was often done; and by this means, two persons were instituted to the same church, and both to the cure of souls, and both did actually officiate. So that however the rectors of sinecures, by having been long excused from residence, are, in common opinion, discharged from the cure of souls (which is the reason of the name), and however the cure is said in the law books to be in them habitualiter only, yet, in strictness, and with regard to their original institution, the cure is in them actualiter, as much as it is in the vicar (p). (m) God. p. 230. (n) Colt v. Bp. of Coventry, Hob. pp. 144, 153, where much learning on this subject is to be found; S. C. 1 Rolle, p. 451; and Mo. p. 898. See Le case de Com mendam, Davis, p. 68. (0) Othobon, Athon. pp. 131, 132 ; p. 719; Johns. p. 93. Sinecures, origin of. No sinecure where there is but one incumbent. Bishoprics, deaneries, archdeacon That is to say, where they come in by institution; but if the rectory is a donative, the case is otherwise, for there coming in by donation they have not the cure of souls committed to them. And these are most properly sinecures according to the genuine signification of the word (g). But no church, where there is but one incumbent, is properly a sinecure. If, indeed, the church be down, or the parish become destitute of parishioners, without which divine offices cannot be performed, the incumbent is of necessity acquitted from all public duty, but still he is under an obligation of doing this duty, whenever there shall be a competent number of inhabitants, and the church shall be rebuilt. And these benefices are more properly depopulations than sinecures (r). Bishoprics, deaneries, and archdeaconries were of old generally said to have the cure of souls belonging to them; some have ries, prebends. said the same of prebends, but with less reason. Bishops have the cure of their whole dioceses, and archdeacons do in many particulars share with them in their spiritual cures. The dean was said to have the cure of his canons, and of the rest belonging to the choir, who were all in old time to make their confessions to him, and receive absolutions from him; but it does not appear that the canons or prebendaries have or had the cure of souls in this or any other respect. They are indeed for the most part instituted, but not to the cure of souls (s). Possession of obtained. Possession of sinecures (not being exempt as is aforesaid) sinecures, how must be obtained by the same methods by which the possession of other rectories and vicarages is obtained, namely, by presentation, institution, and induction. And the reason is, because the vicarage had not its beginning by appropriation and endowment (which was a discharge to the parson from the cure), but by intitulation, that is, by being admitted to a title, or a share in the profits and cure of the rectory, together with the rector, and in subordination to him as vicar. For although by a constitution of Archbishop Langton there might not be two rectors or parsons in one church, yet there might be, and sometimes were, established in the same church both a rector and vicar with cure of souls and in such case, the rectory came to be a sinecure, not because it was really so in law, but because the rectors got themselves excused from residence, and by degrees devolved the whole spiritual cure upon the vicars (t). Not within the statutes of pluralities. Upon which ground, the possessors of sinecures were not bound to read the Thirty-nine Articles by 13 Eliz. c. 12. And in this only, institution to sinecures differed from institution to other benefices (u). Sinecures are not within the act 1 & 2 Vict. c. 106, as they were not within the old act against pluralities, such livings being not by the said statute deemed incompatible; but only those to which the cure of souls is actually and not only habitually annexed (x). By 3 & 4 Vict. c. 113, it is enacted as follows: 3 & 4 Vict. Sect. 48. "All ecclesiastical rectories without cure of souls in c. 113. Suppression the sole patronage of her Majesty, or of any ecclesiastical cor- of sinecure poration, aggregate or sole, where there shall be a vicar endowed rectories. or a perpetual curate, shall .. be suppressed; and as to any such ecclesiastical rectory without cure of souls, the advowson whereof or any right of patronage wherein shall belong to any person or persons or body corporate other than as aforesaid, the ecclesiastical commissioners for England shall be authorized and empowered to purchase and accept conveyance of such advowson or right of patronage, as the case may be, at and for such price or sum as may be agreed upon between them and the owner or owners of such advowson or right of patronage, and may pay the purchase-money and the expenses of and attendant upon such purchase out of the common fund hereinafter mentioned; and after the completion of such purchase of any such rectory, and upon the first avoidance thereof, the same shall be suppressed; and upon the suppression of any such rectory as aforesaid all ecclesiastical patronage belonging to the rector thereof as such rector shall be absolutely transferred to and be vested in the original patron or patrons of such rectory." Sect. 54. "Upon the suppression of any ecclesiastical rectory Endowments without cure of souls all the estate and interest which the rector of suppressed sinecure thereof, or his successor, has or had, or would have or have had, rectories as such rector, in any lands, tithes or other hereditaments or vested in endowments whatsoever, shall, without any conveyance thereof, ecclesiastical or any assurance in the law other than the provisions of this act, sioners. accrue to and be vested in the ecclesiastical commissioners for England and their successors for the purposes of this act." commis Sect. 55. "If in any case it shall appear to be expedient, on As to certain account of the extent or population or other peculiar circum- sinecure stances of the parish or district in which any such rectory without rectories. cure of souls shall be situate, or from the incompetent endowment of the vicarage or vicarages or perpetual curacy or curacies, dependent on such rectory, to annex the whole or any part of the lands, tithes or other hereditaments or endowments belonging to such rectory to such vicarage or vicarages, curacy or curacies, such annexation may be made, and any such vicarage or curacy may be constituted a rectory with cure of souls by the authority hereinafter provided; and wherever any rectory heretofore deemed a rectory without cure of souls has been held together with the vicarage dependent thereon for the period of twenty years last past, the same shall not be construed to be a rectory without cure of souls within the meaning of this act, but such (x) Degge, pt. i., ch. 13. Annexation cures of souls. last-mentioned rectory and vicarage shall continue and be permanently united and shall be a rectory with cure of souls; subject nevertheless to all the provisions of the thirdly-recited act (y), and to the provisions of this act which relate to the division of benefices or the apportionment of the incomes thereof. Sect. 71. "With respect to any benefice with cure of souls of sinecures to which is held together with or in the patronage of the holder of any prebend or other sinecure preferment belonging to any college in either of the universities, or to any private patron, arrangements may be made by the like authority and with the consents of the respective patrons, for permanently uniting such preferment with such benefice: provided that this act shall not apply to or affect any prebend or other sinecure preferment in the patronage of any college or of any lay patron in any other manner than is herein expressly enacted." (y) 1 & 2 Vict. c. 106. CHAPTER XIII. RESIGNATION OF BENEFICES. In this chapter the grave subject of the resignation of an office or benefice by a priest is considered (a). A resignation is where a parson, vicar, or other beneficed Resignation, clergyman, voluntarily gives up and surrenders his charge and what. preferment to those from whom he received the same (b). That ordinary who has the power of institution has power To whom to also to accept a resignation made of the same church to which be made. he may institute; and therefore the respective bishop or other person, who, either by patent under him, or by privilege or prescription, has the power of institution, is the proper person to whom a resignation ought to be made (c). And yet a resignation of a deanery in the king's gift may be made to the king, as of the deanery of Wells; and some hold, that the resignation may well be made to the king of a prebend that is no donative; but others, on the contrary, have held, that a resignation of a prebend ought to be made only to the ordinary of the diocese, and not to the king, as supreme ordinary, because the king is not bound to give notice to the patron (as the ordinary is) of the resignation; nor can the king make a collation by himself without presenting to the bishop, notwithstanding his supremacy (d). And resignation can only be made to a superior: this is a maxim in the temporal law, and is applied by Lord Coke to the ecclesiastical law, when he says, that therefore a bishop cannot resign to the dean and chapter (e), but it must be to the metropolitan, from whom he received confirmation and consecration (f). And it must be made to the next immediate, and not to the mediate superior; as of a church presentative, to the bishop and not to the metropolitan (g). |