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Title: The Legal Position of the Clergy
Author: Smith, P. V.
Language: English
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Transcriber's Notes:
In this version, the oe ligature has been replaced by the two
letters, e.g. dioececis.
Text enclosed by underscores is in italics (_italics_).
Text enclosed by equal signs is in bold face (=bold=).
The original text contained Greek letters which have been
transliterated in this version and enclosed in asterisks,
e.g. *paroikia*.
Minor punctuation errors in the original text have been corrected
in this version.
Handbooks for the Clergy
EDITED BY
ARTHUR W. ROBINSON, B.D.
VICAR OF ALLHALLOWS BARKING
BY THE TOWER
THE LEGAL POSITION OF
THE CLERGY
THE LEGAL POSITION OF
THE CLERGY
BY
P. V. SMITH, LL.D.
CHANCELLOR OF THE DIOCESE OF MANCHESTER
AUTHOR OF "THE LAW OF CHURCHWARDENS AND SIDESMEN
IN THE TWENTIETH CENTURY," ETC.
LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK AND BOMBAY
1905
_All rights reserved_
PREFACE
In the following pages an endeavour has been made to give a succinct
sketch of the legal position of the parish clergy of the Church of
England in respect both of spiritualities and of temporalities. The
book, being intended for their use, does not touch upon the subject of
ordination by which they acquired the status of deacons or priests. Nor
does it deal with the episcopate or the non-parochial clergy, except so
far as these subjects are connected with the parochial system.
Like all other human arrangements, our English Church law is, of course,
far from being ideally perfect. It may be safely affirmed that there has
never been either a Church or a State in which the law has actually been
what it ideally ought to have been. It is important to recognise the
difference between the two positions; for there has sometimes been a
disposition on the part of individuals to confuse them, and to treat
what they consider to be the ideal law, as if it were the actual law,
and as if, as such, it demanded their loyal obedience. Such an attitude,
whether in ecclesiastical or civil matters, is anarchical in its
tendency; for it sets up private judgment instead of the constituted
authority as the criterion of what ought or ought not to be done. It can
only be justified where the actual law is absolutely inconsistent with
the fundamental principles of morality or of Christian truth. The object
of the present treatise is to state succinctly what the law is,--not
what it ought to be; and no opinion is expressed or suggestion offered
as to points in which amendment would be proper or expedient.
Within the limited compass of the book it is obviously impossible to
enter into details; and the reader who desires information as to these
will find them in the authorities to which reference is made. It must
also be borne in mind that the general law on the subject of buildings,
property, and pecuniary rights is, in various places, modified by
special local enactments or customs. These can only be ascertained on
the spot, or by consulting the Acts of Parliament in which they are
embodied or recorded.
One other word of caution is desirable. In explaining the legal position
of the parochial clergy, it is, of course, necessary to indicate the
exact limits of their rights. If they venture beyond these limits, they
are manifestly in the wrong. But no community, either ecclesiastical or
civil, could maintain its well-being, or even its coherence, if every
individual were on all occasions to take advantage of the full tether
of his legal rights. It will frequently be wise and proper for the
clergy, in their relations with their ecclesiastical superiors or with
the lay officials and other laity of the parish, not to adopt the most
uncompromising attitude which the letter of the law permits to them. The
dictates of love and of Christian forbearance, and of consideration for
the claims of others, as well as of expediency, will not warrant the
infringement by an individual of the ordinances of either the Church or
the State. But they will more than justify him in refraining from taking
up a position of defiance which these ordinances may strictly entitle
him to assume.
P. V. SMITH.
_Easter, 1905_.
CONTENTS
LIST OF ABBREVIATIONS pages xxi-xxiv
CHAPTER I
GENERAL LEGAL POSITION
1. Spiritual, ecclesiastical, and civil status of the clergy. 2.
Sources of Church law. 3. Written and unwritten law--Foreign
Canon law--Pre-Reformation Canons--Acts of Parliament--Canons of
1603--Canons of 1640--Other canons. 4. Decisions of Church
courts--Distinction between judicial and legislative action. 5.
Legal status of the ancient Parish--Rector or Parson--Patronage
or Advowson--Vicar--Perpetual curate. 6. Dissolution of the
Monasteries--Impropriate rectories--New churches and
ecclesiastical parishes--Assistant parochial clergy--Titular
vicars--Incumbent--Curate. 7. Minister in charge--Lecturer. 8.
Status of clergy ordained elsewhere than in England or Ireland,
or ordained for service in the colonies or foreign
countries--Scottish clergy. 9. Benefices--Beneficed and
unbeneficed clergy. 10. Bishops, their relation to the
clergy--Suffragan bishops--Chancellors. 11. Archdeacons. 12.
Rural Deans. 13. Judicial procedure--Church Discipline Act,
1840--Public Worship Regulation Act, 1874--Clergy Discipline
Act, 1892. 14. Abstinence of Clergy from secular pursuits. 15.
Civil exemptions--Municipal and Parliamentary qualifications and
disqualifications. 16. Restrictions as to labour, business, and
trade--Lawful exceptions--Penalties for unlawful trading. 17.
Protection in performance of religious rites--Act against
brawling. 18. Indelibility of Orders--Relinquishment of clerical
status pages 1-24
CHAPTER II
BENEFICED CLERGY
1. Admission by bishop on presentation of patron--Lapse to
bishop, archbishop, or Crown. 2. Transfers of advowsons or
rights of presentation--Next presentations--Power of patron to
present himself--Restrictions under Benefices Act, 1898. 3.
Qualification for admission--Grounds for refusal by
bishop--Testimony as to fitness. 4. Procedure in case of refusal
by bishop. 5. Publication of notice of intended admission. 6.
Mode of admission--Institution--Licence--Collation--Declarations
of assent and against simony--Oaths of allegiance and canonical
obedience--Reading of Thirty-nine Articles. 7. Effect of
admission--Induction. 8. Fees on admission. 9. Cure of
Souls--Duties laid down in Ordination Service--Residence--Divine
service--Marriages--Burials--Private ministrations. 10.
Exclusive right of administration--Superior right of
bishop--Modern comity as between town parishes. 11. Private
ministrations--Service in unconsecrated buildings--Meetings for
worship. 12. Private chapels--Chapels of
institutions--Unconsecrated proprietary chapels. 13. Formation
of new parishes--Approval or otherwise of incumbent. 14. Holding
of two benefices. 15. Neglect of duty--Commission of
inquiry--Procedure on adverse report of Commission. 16.
Residence on benefice--Forfeitures for non-residence--Bishop's
licence of non-residence--Grounds for licence. 17. Monition,
sequestration, and avoidance of benefice for non-residence. 18.
Performance of duties where incumbent is non-resident. 19.
Restrictions on interfering with duties during period of
non-residence. 20. Reckoning of time as to residence. 21.
Vacation of benefice by death, resignation, admission to other
preferment, or deprivation. 22. Resignation; unconditional
except upon an exchange--Engagement to resign illegal except
under Clergy Resignation Bonds Act, 1828--Corrupt resignations
and exchanges--Pensions under Incumbents Resignation Acts. 23.
Vacation of benefice on admission to other preferment. 24.
Deprivation _ipso facto_--Declaration of vacancy by bishop on
conviction of incumbent in certain cases--Sentences of
deprivation under Acts of 1840 and 1892 pages 25-54
CHAPTER III
UNBENEFICED CLERGY
1. Classes of unbeneficed clergy--Bishop's licence--Declaration
of assent--Examination and admission by bishop--Discretion of
bishop--Revocation of licence. 2. Curates or ministers in
charge--(_a_) On vacancy of benefice--(_b_) On sequestration of
benefice for incumbent's bankruptcy or debt--(_c_) On
incumbent's non-residence--(_d_) On incumbent's neglect of
duties--(_e_) On formation of Peel district. 3. Assistant
curates--Stipend--Notice to quit or relinquish
curacy--Discretion of incumbent as to employment--Appointment
where duties are inadequately performed; or where circumstances
of parish require it. 4. Performance of duty by other
clergy--Discretion of incumbent--Licence of bishop--Production
of licence and entry of names of preachers in a book. 5.
Lecturers and preachers--Performance of other ministerial duties
pages 55-64
CHAPTER IV
LAITY OF THE PARISH
1. Relations between incumbent and lay officials. 2. The
vestry--Constitution, meetings, and voting in ancient parishes,
and in new parishes--Vestries Act, 1818--Present
functions--Select vestries. 3. Churchwardens--Election in
ancient and new parishes--Admission. 4. Parson's or vicar's and
people's wardens--Duties: (_a_) Care of fabric and ornaments of
the church and of the churchyard--(_b_) Seating of
parishioners--(_c_) Provision of requisites for service--(_d_)
Maintenance of order in church and churchyard--(_e_) Collection
and concurrence in disposal of offertory money--(_f_) Charge of
church and benefice during vacancy, if appointed
sequestrators--Restrictions on powers. 5. Sidesmen. 6. Church
trustees. 7. Parish clerk--Appointment and removal. 8. Sexton.
9. Beadle. 10. Organist and choristers. 11. Officiating of lay
readers and other laymen. 12. Other lay work--Visiting of poor
and sick--Sunday schools--Church elementary schools. 13.
Parochial church councils pages 65-79
CHAPTER V
DIVINE SERVICE
1. Duty of clergy as to uniformity of service--Divergence by
lawful authority--Liberty under Act of 1872. 2. Morning and
Evening Prayer--Litany--Bishop may order two full services, and
a third service, with sermon. 3. Notices during Divine
service--Notices on church door--Banns. 4. Offertory--Other
collections in a church or chapel--Duty of incumbent as to money
entrusted to him. 5. Questions as to the legality of various
church ornaments, vestments, and ceremonies--Legal decisions as
to (_A_) Stone Holy Table--Crucifix--Cross--Candlesticks--
Flower-vases--Pictures--Sculptures--Credence table--Second Holy
Table-- Chancel gates--Baldacchino--Voice of parishioners in
vestry--(_B_) Attire of clergy at Holy
Communion--Surplice--Hood--Albe--Vestment or
chasuble--Tunicle--Stole--Chaplain's scarf--Biretta--Black
gown--(_C_) Incense--Processions with lighted candles--Lighted
candles at Holy Communion--Mixed chalice--Wafers--Agnus Dei and
other hymns--Position of minister--Genuflexions--Elevation--Sign
of the Cross--Ablutions--Reservation. 6. Baptism not to be
refused--Time for the ceremony--Private baptism in urgent
cases--Godparents--Reception in church after private
baptism--Conditional baptism--Immersion or affusion--Notice to
bishop in cases of adult baptism--Deacon may baptize--Lay
baptism. 7. Times for and notice of Holy Communion--Communion
not to be unlawfully refused--Who are to be repelled from
it--Procedure in such cases--Jenkins _v_. Cook--Persons coming
from other parishes--Persons attending dissenting places of
worship--Persons baptized in another communion and not
confirmed. 8. Sermons and homilies--Provisions of rubrics,
Canons, and Acts of Parliament. 9. Catechising. 10. Churching of
women pages 80-99
CHAPTER VI
MARRIAGE
1. Duty of minister to solemnise marriage between persons
legally competent--Unlawful solemnisation, when a
felony--Marriage, when void. 2. Original places for banns and
marriages--Churches of new parishes--Licences for banns and
marriages in chapels--Parishes having no regular services in
parish church--Where parish church is being rebuilt or
repaired--No reconsecration necessary where church is rebuilt or
enlarged and position of Holy Table altered. 3. Persons legally
competent to intermarry--Religion or absence of religion of the
parties no ground for refusal to solemnise marriage. 4.
_Minimum_ age--Consent of parents or guardians in case of
unions--Marriage without consent, in absence of notice--Marriage
below lawful age. 5. Marriage of lunatic or _non compos_, void.
6. Absence, unheard of, for seven years--Relief from punishment
for bigamy--Invalidity of remarriage. 7 Divorce abroad--Divorce
in England under Act of 1857--Remarriage of divorced persons. 8.
Marriage of foreigners--Requirements of laws of foreign
States--Precautions to be observed. 9. Prohibited degrees of
kindred and affinity. 10. Publication of banns--Time and
form--Seven days' notice--Publication and marriage without
notice and due inquiry--Publication where parties dwell in
different parishes or districts--Where one dwells in Scotland,
or in Ireland--What constitutes dwelling--Correct names to be
published--Status need not be published--Publication to be from
book and signed--Forbidding of banns. 11. Marriage, with consent
of minister, on registrar's certificate--Not permitted on
registrar's licence. 12. Marriage on licence of bishop or
Archbishop of Canterbury--Grant of bishop's licence--Previous
affidavit before surrogate--Duty of minister on production of
licence--Names in licence--Grant of licence a favour and not a
right. 13. Marriage, where and when to be solemnised--Priest or
deacon may marry--Penalty for solemnising marriage at improper
place or time. 14. Reading of service after marriage at a
registry office--Second solemnisation of marriage. 15. Fees for
banns, certificate of banns, and marriage. 16. Marriage register
books--Certificate of marriage. 17. Presumption of marriage of
persons coming to Holy Communion--Proof of no marriage--Validity
of marriage governed by law of place of solemnisation--Capacity
to contract marriage governed by law of domicile---Marriage
between British subjects in a foreign country or on board ship
pages 100-120
CHAPTER VII
BURIAL
1. Right of burial by clergyman of the parish where death
occurs--Bells to be rung--Burial in case of death in another
parish--Relief in case interment is refused--No right to
particular hour or spot of burial--Incumbent or churchwardens
cannot sell or grant grave-spaces in perpetuity or brick
graves--Reservation of exclusive right of burial on grant of
addition to churchyard--Faculty for exclusive grave space in
other cases--Burial of non-parishioners not dying within the
parish. 2. Burial of bodies cast up by the sea or tidal or
navigable water. 3. Burial of person dying unbaptized or
excommunicate and of _felo de se_--Burial of child of dissenter
or person who has received lay baptism--Interment cannot be
required without convenient warning. 4. Bringing of corpse into
church and burial under church. 5. Fees--Prepayment not
enforceable--Customary amount--On burial of
non-parishioners--Tables of fees--Special fees for brick graves,
iron coffins, and other extras--Fees and rights of burial where
new ecclesiastical parish has its own burial ground. 6. Use of
Burial Service in unconsecrated ground--Use of special
form--Permission of burial without Church rites and with or
without some other service on notice under Act of 1880--Day and
time for burial--Fee. 7. Delivery of registrar's certificate of
death or order of coroner at funeral. 8. Fees on interments in
cemeteries under Cemeteries Clauses Act, 1847. 9. Burial
Acts--Consecrated and unconsecrated parts of burial
grounds--Chapels--Fees of incumbents, clerks, and sextons--Sale
of rights to vaults and monuments--Burial Act, 1900--Tables of
fees--Restrictions on future fees to incumbents, churchwardens,
and sextons--Commutation of fees. 10. Cremation--Burial of
cremated remains. 11. Faculty for removal of body from one
unconsecrated place of interment to another--Licence of Home
Secretary for removal in other cases pages 121-134
CHAPTER VIII
PRIVATE MINISTRATIONS
1. Visitation and Communion of the Sick---Canon 67--Order for
the Visitation--Confession and absolution of the
sick--Regulations as to Communion. 2. Preparation for
Confirmation. 3. Spiritual advice and
comfort--Confession--Absolution. 4. Ordinary visitation and
intercourse pages 135-140
CHAPTER IX
TEMPORALITIES
1. Possessions and revenues of benefices of ancient parishes and
new ecclesiastical parishes. 2. Incumbent a corporation
sole--Restrictions on his acquisition and holding of landed
property--Licence in mortmain--Mortmain and Charitable Uses
Acts--School Sites Acts--Inability to hold as a corporation land
upon trusts. 3. Freehold of church and churchyard of ancient
parish in rector--Chancel repairable by rector--Enforcement of
repairs--Possession and custody of church in incumbent and
churchwardens--Right of incumbent to keys and control of organ
and bells--Canon 88--Right of rector to profits of soil of
churchyard--Felling of trees in churchyard--Freehold of church
and churchyard of new parish in incumbent--Exemption from rates
and contributions to making new streets--Removal of part of
church as a dangerous structure. 4. Rights of bishop and
parishioners in church and churchyard--Power of incumbent as to
ordinary tombstone sand inscriptions in churchyard--Glass shades
for wreaths--Appeal to consistory and higher courts--Faculties
for monuments in church and other alterations and additions in
church and churchyard--Application by incumbent and
churchwardens after resolution of vestry--Consent of rector to
alteration in chancel--Faculty for vault or space for exclusive
burial--Removal of earth or bones from churchyard, or other
desecration--Faculty for diversion of ancient footpath through
churchyard, and for throwing part of churchyard into
highway--Restoration of wall wilfully thrown down--Easement of
light and air over churchyard--Laying out of closed churchyard
as a garden and removal of gravestones--Restrictions as to
building on closed or disused burial-grounds. 5. Glebe,
rectorial and vicarial--Exemption from tithe--Waste--Cultivation
of glebe--Cutting down of trees--Opening and working of mines
and quarries and gravel pits. 6. Statutory facilities for
parsonage houses and other buildings and repair of
chancels--Gilbert Acts--Loans by, and mortgages to Queen Anne's
Bounty--Purchase of land--Building and improving of farm
buildings and labourers' dwellings--Gifts and bequests of
parsonage houses and glebe--Sale and exchange of parsonage
houses and glebe. 7. Letting of parsonage house where incumbent
has licence to reside elsewhere. 8. Farming or letting of
glebe--Agricultural, building, and mining leases. 9. Repair of
parsonage house and glebe buildings--Ecclesiastical
Dilapidations Act, 1871. 10. Diocesan surveyors--Proceedings
(_a_) on vacancies in benefices and (_b_) in other
cases--Exemption from liability for five years after certificate
of surveyor. 11. (_a_) Inspection and report by surveyor on a
vacancy--Objections to report--Order of bishop--Debt from late
incumbent, or his estate, to new incumbent--Payment of amount
recovered to Queen Anne's Bounty--Loan of amount not
recovered--Balance to be paid by new incumbent--Dilapidation
Account--Liability where a vacancy occurs between inspection of
buildings and certificate of completion of works. 12. (_b_)
Inspection of buildings on complaint of archdeacon, rural dean,
or patron, or on request of incumbent--Inspection after and
during sequestration of benefice--Report--Objections--Decision
of bishop--Loans--Dilapidation Account--Execution of
repairs---Charge of cost on income in case of benefice under
sequestration--Vacancy before execution of works--Liability of
sequestrator spending excessive amount on repairs. 13. Payment
of money out of dilapidation account on certificate of
surveyor--Liability and duty of incumbent--Rebuilding or
remodelling instead of repairing. 14. Insurance of parsonage
house, glebe buildings, and chancel against fire--Production of
receipts for premiums at visitations--Payment and application of
insurance money and reinstatement of buildings in the event of
fire--Sequestration of benefice to raise any requisite balance.
15. Exemption from Act of 1871 of buildings let on lease under
which tenant is liable--Inspection by surveyor. 16. Faculty or
consent of bishop and patron to alterations in
buildings--Liability of incumbent for alterations not so
sanctioned--Power of bishop to authorise removal of unnecessary
buildings--Movable sheds or garden frames. 17. Vacation of
benefice--Cesser of rights of former incumbent--Right of widow
to two months' residence in parsonage house--Inspection of
premises pending settlement of
dilapidations--Emblements--Apportionment of rents, tithe
rentcharge, and other income. 18. Tithe commutation rentcharge
under Act of 1836 and amending Acts--Assessment in lieu of great
or rectorial tithes and small or vicarial tithes--Extraordinary
tithe rentcharge in respect of hop and other gardens and
orchards--Act of 1886--Assessment of tithe rentcharge with
regard to prices of wheat, barley, and oats--Variation according
to septennial average prices. 19. Payment of tithe rentcharge
and recovery by distress on appointment of receiver--Recovery
from railway company. 20. Dues (i.) ordinary and (ii.)
special--Variety by law and custom--Payments on the customary
four offering days--Easter offerings--Rights of vicar of new
ecclesiastical parish. 21. Mortuaries. 22. Dues for special
services or concessions. 23. Pew rents under special or general
Acts of Parliament--Under Church Building and New Parishes
Acts--Recovery of pew rents. 24. First fruits and
tenths--Exemption of small benefices--Number of benefices
remaining liable. 25. Income or property tax--On parsonage
house, glebe lands, and tithe rentcharge--On landed property in
occupation of incumbent--On other stipend, fees, perquisites,
and profits--Legal deductions--Test as to whether receipts are
or are not liable to tax--Voluntary contributions to minister in
respect of his office--Grants from Curates' Augmentation
Fund--Grants from Queen Victoria Clergy Fund pages 141-168
INDEX pages 169-174
LIST OF ABBREVIATIONS
_A. C._ Law Reports (House of Lords and Privy
Council) 1891 onwards.
_A. & E._ Adolphus & Ellis's Reports (King's Bench)
1834-41.
_Add._ Addam's Reports (Ecclesiastical) 1822-6.
_Ambl._ Ambler's Reports (Chancery) 1737-83.
_App. Ca._ Law Reports (House of Lords and Privy
Council) 1875-90.
_Atk._ Atkyn's Reports (Chancery) 1735-54.
_Ayl. Par._ Ayliffe's _Parergon Juris Canonici
Anglicani_, 1726.
_B. & C._ Barnewall & Cresswell's Reports (King's
Bench) 1822-30.
_B. & Ad._ Barnewall & Adolphus' Reports (King's Bench)
1830-34.
_B. & Ald._ Barnewall & Alderson's Reports (King's
Bench) 1818-22.
_B. & Sm._ Best & Smith's Reports (Queen's Bench)
1861-70.
_Beav._ Beavan's Reports (Chancery) 1838-66.
_Bl. Comm._ Blackstone's Commentaries on the Laws of
England.
_Burn._ Burn's Ecclesiastical Law, 4 vols.
_Canon._ One of the Constitutions and Canons
Ecclesiastical agreed upon in the Canterbury
Convocation begun in 1603.
_C. B._ Common Bench Reports, 1845-56.
_C. B. N. S._ Common Bench Reports, New Series, 1856-65.
_C. & K._ Carrington & Kirwan's Reports (Nisi Prius)
1843-1853.
_C. P. D._ Law Reports (Common Pleas Division) 1875-80.
_Ch._ Law Reports, Chancery Division, 1891
onwards.
_Ch. D._ Law Reports, Chancery Division, 1875-90.
_Cl. & F._ Clark & Finnelly's Reports (House of Lords)
1831-46.
_Clarke, Proxis_ Francis Clarke's _Proxis in Curiis
Ecclesiasticis,_ 1666, 1684.
_Co. Inst._ Coke's Institutes of the Laws of England,
Second Part.
_Co. Litt._ Coke upon Littleton (with notes by Hargrave
and Butler).
_Co. Rep._ Coke's Reports, 1598-1616.
_Com. Dig._ Comyn's Digest.
_Cowp._ Cowper's Reports (King's Bench) 1774-78.
_Cripps._ Cripps's Law relating to the Church and
Clergy, 6th ed., 1886.
_Cro. Jac._ Croke's Reports (temp. James I.) 1603-1625.
_Curt._ Curteis's Ecclesiastical Reports, 1834-44.
_Degge._ Sir Simon Degge's Parson's Counsellor.
_Dr. & Sm._ Drewry & Smale's Reports (Chancery)
1859-65.
_E. & B._ Ellis & Blackburn's Reports (Queen's Bench)
1854-8.
_Eccl. & Adm._ Ecclesiastical & Admiralty Reports (Spinks)
1853-5.
_El. & El._ Ellis & Ellis' Reports (Queen's Bench)
1858-61.
_Ex._ Exchequer Reports, 1847-56.
_Ex. D._ Law Reports (Exchequer Division) 1875-1880.
_Geary_ Geary's Law of Marriage and Family
Relations (A. & C. Black, 1892).
_Gibs. Cod._ Gibson's _Codex Juris Ecclesiastici
Anglicani_.
_Hag. Cons._ Haggard's Consistory Reports, 1729-1821.
_Hag. Eccl._ Haggard's Ecclesiastical Reports, 1827-1832.
_H. & C._ Hurlstone & Coltman's Reports (Exchequer)
1862-66.
_H. L. C._ House of Lords Cases, 1847-66.
_Hob._ Hobart's Reports, 1611-20.
_Ir. Ch. Rep. App._ Irish Chancery Reports (Appendix).
_J. & H._ Johnson & Hemming's Reports (Chancery)
1859-62.
_J. P._ Justice of the Peace, 1837 onwards.
_Johns._ John Johnson's Clergyman's Vade Mecum,
6th ed., 1731.
_Jur._ Jurist (Reports) 1837-54.
_Jur. N. S._ Jurist, New Series (Reports) 1855-66.
_K. B._ Law Reports (King's Bench) 1901 onwards.
_L. J. (Ch., C.P.,_ Law Journal 1823-31; New Series 1832 onwards
_ Ex. Q.B.)_ (Chancery, Common Pleas, Exchequer, Queen's
Bench).
_L. J. Eccl._ Ditto (Ecclesiastical Cases).
_L. J. M. C._ Ditto (Magistrates' Cases).
_L. J. P. M. & A._ Ditto (Probate, Matrimonial, and Admiralty
Cases).
_L. R. A. & E._ Law Reports, 1865-75 (Admiralty and
Ecclesiastical).
_L. R. C. P. Ex. Q. B._ Ditto (Common Law).
_L. R. Ch._ Ditto (Chancery Appeals).
_L. R. Eq._ Ditto (Equity).
_L. R. H. L._ Ditto (House of Lords).
_L. R. H. L. Sc._ Ditto (Scotch and Divorce Appeals).
_L. R. P. C._ Ditto (Privy Council).
_L. T. N. S._ Law Times (New Series) Reports,
1859 onwards.
_M. & S._ Maule & Selwyn's Reports (King's Bench)
1813-17.
_M. & W._ Meeson & Welsby's Reports (Exchequer)
1836-47.
_Marsh._ Marshall's Reports (Common Pleas) 1813-1816.
_Mer._ Merivale's Reports (Chancery) 1815-17.
_Moo. P. C._ Moore's Privy Council Reports, 1836-62.
_Moo. P. C. N. S._ Ditto, New Series, 1862-73.
_N. R._ New Reports (Equity and Common Law) 1862-65.
_Not. of Ca._ Notes of Cases (Ecclesiastical and Maritime)
1841-50.
_P._ Law Reports, Probate Division, 1891 onwards.
_P. D._ Law Reports, Probate Division, 1875-90.
_Phill._ Phillimore's Reports (Ecclesiastical)
1809-1821.
_Phill. Eccl. Law_ Phillimore's Ecclesiastical Law of the
Church of England, 2 vols., 2nd ed., 1895.
_P. Wms._ Peere Williams' Reports (Chancery)
1695-1735.
_Q. B._ Queen's Bench Reports (Adolphus & Ellis)
1841-52.
_Q. B._ Law Reports (Queen's Bench) 1891-1900.
_Q. B. D._ Law Reports (Queen's Bench Division)
1875-1890.
_Rob. Eccl._ Robertson's Reports (Ecclesiastical)
1844-1853.
_Sc. L. R._ Scottish Law Reporter, 1865 onwards.
_Sm. Churchw._ Smith's Law of Churchwardens and Sidesmen
in the Twentieth Century (Wells, Gardner,
& Co., 2s.).
_Str._ Strange's Reports, 1715-47.
_Strype's Annals_ John Strype's Annals of the Reformation (ed.
1824) 4 vols.
_Sw. & Tr._ Swabey & Tristram's Reports (Probate and
Divorce) 1858-65.
_Taun._ Taunton's Reports (Common Pleas) 1807-1819.
_Times Law Rep._ Times Law Reports, 1884 onwards.
_T. R._ Durnford & East's Term Reports (King's
Bench) 1785-1800.
_Trist. Cons. Judgm._ Tristram's Consistory Judgments, 1872-90.
_Ventr._ Ventris' Reports (King's Bench) 1668-91.
_Ves._ Vesey Junior's Reports (Chancery) 1789-1816.
_Wats._ Watson's Clergyman's Law, 4th ed., 1747.
_Willes_ Willes Reports (Common Pleas) 1737-58.
_Wils._ Wilson's Reports (Common Law) 1743-74.
_W. R._ Weekly Reporter, 1853 onwards.
_Yo. & Jer._ Younge & Jervis's Reports (Exchequer)
1826-30.
CHAPTER I
GENERAL LEGAL POSITION
1. In every country where a Christian Church is permitted to exist, the
power and authority of her clergy to exercise their functions will rest
upon a triple basis and be subject to twofold restrictions and
limitations. In the first place, (i.) they derive their spiritual
authority from their ordination, and this authority is independent of
the particular Church to which they belong. But, in the next place, they
are bound on the one hand (ii.) to obey the regulations of the Church of
which they are the ministers, and must also, on the other hand, (iii.)
conform to the laws of the country in which they labour. For they can
only actively exercise their functions by the licence or permission of
the ruling power of that country, and subject to any conditions which it
may choose to impose. These principles apply equally whether the Church
is what we call established or not. The only difference is that if the
Church is established, her own regulations are part of the law of the
land; whereas, if she is not established, the law of the land sanctions
or suffers the existence of these regulations as a private contract or
arrangement between the ministers and other members of the Church. But
even in the case of an established Church, her ministers will obviously
be restricted in the exercise of their functions by civil regulations
which do not form part of the ecclesiastical law. Thus there may be
nothing in the law of his Church to prevent a clergyman from holding a
religious service or preaching in a crowded thoroughfare. But in England
and other civilised countries any attempt to do so would be checked by
the existing laws against the obstruction of highways. In the following
pages no attempt will be made to point out the non-ecclesiastical laws
and limitations to which a parish priest is subject. For though they
necessarily affect himself and his spiritual work, they do so only
indirectly. They touch him not as a minister or even as a Christian, but
as a citizen; and they touch his spiritual work only in so far as that
work has a material and civil element.
2. Confining then our attention to the ecclesiastical law under which
the parish priest holds his position and acts in this country, we note
in the first place, that the Church being here established, this
ecclesiastical law is equally the law of the Church and the law of the
State. This is true whatever be its origin, and however it came into
force; and it has always had this double aspect, since (with the
exception of the brief interval of the Commonwealth--a period which is
not recognised in our jurisprudence as having had any legal existence)
there never has been a time in our history when the Church of England
has not been the Established Church of the nation. Portions of our
Church system and Church law have had an exclusively ecclesiastical
origin, by canon or otherwise, and have been adopted or acquiesced in by
the State. Further portions have been created by the joint or concurrent
action of the Church and the State. Other portions again have been due
to the sole action of the civil legislature, which has received the
tacit assent of the Church but has never been confirmed by any formal
ecclesiastical ratification. From whichever of these three sources any
particular point of our Church law may have been derived, its validity
and obligation is the same. It binds the Church and her ministers and
members irrespectively of its origin, and is at present in force unless
it has either been formally repealed or become obsolete and fallen into
desuetude.
3. Again, like our civil law, our ecclesiastical law is in part written
and in part unwritten or customary. Foreign canon or conciliar law or
papal law is only binding in England so far as it has been received by
immemorial custom, and has thus become part of our unwritten law, or
has been incorporated into our written law by the ratification of an Act
of Parliament, or a canon or constitution of our own Church; and the
binding force of the English Pre-Reformation canons, ordinances, and
provincial constitutions stands on the same footing. For the Commission
authorised by the Act for the Submission of the Clergy of 1533 to
examine the English canons and constitutions, and, with the king's
assent, declare which of them should be in force and which should be
abrogated, was never appointed, although the time for its appointment
was extended by Acts of 1535 and 1543, and the scope of its inquiry was
extended by the latter Act so as to include foreign canons and
ordinances.[1] Consequently the only written Church law is to be found
in Acts of Parliament and the Prayer-Book,[2] and in Post-Reformation
canons, which, however, except so far as they are confirmed by Act of
Parliament, or declare the unwritten law of the Church, are only binding
on the clergy.[3] Of these the chief are those known as the Canons of
1603, which were agreed upon at the sitting of the Canterbury
Convocation begun in that year, and were separately passed two years
afterwards by the York Convocation. Many portions of them are, however,
now obsolete; and Canon 36 and the last words of Canon 102 have been
superseded by new canons made in 1865-66 and 1888. The Canons of 1640
were passed after the dissolution of Parliament, which, according to the
custom of the realm, put an end also to the existence of Convocation,
and they have no legal force.[4]
4. Much discussion has arisen upon a fourth source of Church law,
namely, the decisions of our ecclesiastical courts. It is important to
draw a clear distinction between legislative and judicial functions. A
court, whether ecclesiastical or civil, has nothing to do with enacting
laws. Its province is confined to interpreting them, when their meaning
is obscure or disputed. No doubt, in the course of this interpretation,
it will sometimes make law by deciding in a particular way a point on
which the legislature has left the matter in doubt, and has not itself
clearly laid down the law. Many questions affecting the clergy and the
Church have, in fact, been thus determined by our civil as well as by
our ecclesiastical tribunals. But if one of our civil courts, in
interpreting the civil law, delivers a decision which does not commend
itself to the common sense of the nation, it is recognised that the
remedy lies not in altering the constitution of the court and
endeavouring to obtain a fresh legal decision which shall upset the
other, but in obtaining an Act of Parliament expressly overruling the
unsatisfactory decision. If this is not done, the law may have been
technically judge-made, but it is acquiesced in and assented to by
Parliament and the nation. The same principle applies to the decisions
of ecclesiastical courts. The natural way of getting rid of an obnoxious
decision is not by fresh adjudication, but by legislation. Until it has
been reversed by one or other of these means, the decision of a court,
which _de facto_ possesses ecclesiastical jurisdiction, is binding upon
the Church as part of her law for the time being. We have somewhat lost
sight of this principle, owing to the extreme difficulty of obtaining
any definition or alteration of Church law by a legislative process.
But the true remedy lies in a healthy revival of the exercise of
ecclesiastical legislation, and not in an endeavour to make the
ecclesiastical judicature, whether as now existing or after a reform of
the courts, discharge legislative functions which are wholly outside its
proper province.
5. The legal position of the parochial clergy depends for its ultimate
origin upon the legal status of the ancient _Parish_. The word is the
English form of the Greek *paroikia* (habitation), and the Latin
_parochia_, an expression originally synonymous with diocese (Gr.
*dioikêsis*, _i.e._ administration; Lat. _dioecesis_, used of a
district or part of a province in the Roman Empire), and applied to the
territory assigned to the jurisdiction of a bishop, which was served by
him and a college of clergy under him. But under Archbishop Theodore
(668-690) or shortly after his time the process was begun of encouraging
the lords of manors and great landowners to build churches for
themselves and their dependants, and devote the tithes of their manors
or estates to the maintenance of divine worship in these churches, and
the performance of religious duties among the residents on the estates.
This process was gradually extended throughout the country, and,
wherever it was adopted, the tithes were assigned either to the priest
for the time being in charge of the church, who was in that case called
the _rector_ (governor of the church) or _parson_ (Lat. _persona_)[5] or
to a monastery, the members of which were then expected to serve the
church. The manor or estate, including any detached and outlying
portions, became the parish of the church, and developed into a
territorial unit not only for ecclesiastical but also for many civil
purposes. Where the church was served by a single rector, the landowner
who had endowed it and his successors after him were given in return the
right of nominating to the bishop a clerk in Holy Orders to become
rector of the church, or, in other words, they acquired the _patronage_
or _advowson_[6] of the benefice. The frequent cases of neglect in the
service of the parish, where a monastery was rector, led, in the
thirteenth century, to the requirement that in such cases a succession
of individual priests should be appointed to discharge the duty, with a
definite portion of the endowments of the benefice as their stipend for
so doing. As a rule the great tithes, being those of corn, grain, hay,
and wood, were reserved to the monastery, and were in consequence
styled rectorial tithes, while the officiating priest, who was styled a
_vicar_, was endowed with the remaining or small tithes, which
consequently were called vicarial. But in a few instances the
officiating priest, instead of becoming entitled to the small tithes,
only received a fixed monetary stipend. Where this occurred, he was
called a _perpetual curate_. It was the rule that rectories, whether in
the hands of a monastery or a succession of individual priests, should
be endowed not only with the tithes of the parish, but also with a house
and lands, which are called glebe; and sometimes these houses and lands,
or a part of the lands, were assigned towards the stipend of the vicar.
6. Towards the close of Henry VIII.'s reign the monasteries were
dissolved, and their rectories and the rectorial tithes of the parishes
and other endowments attached thereto, and the right of nominating
vicars or perpetual curates to the parishes passed, with the rest of the
monastic property, in some cases into the hands of the Crown or of
private individuals who received grants of them from the Crown, while in
other cases they went to the endowment of episcopal sees or of colleges,
hospitals, or other public institutions. Whichever happened, the rectory
and rectorial tithes became thenceforth _impropriate_, and the vicar or
perpetual curate was left with the vicarial tithes and other endowments,
or a stipend, as the case might be, to serve the parish as the beneficed
parish priest. Later on, and particularly during the nineteenth century,
the growth of the population and the rapid increase of our urban
centres, owing to the steady migration from the villages to the towns,
has rendered the building of new churches and the creation of new
ecclesiastical areas a matter of pressing importance; and the same
causes have necessitated the employment in the larger parishes of
additional clergy, whether stipendiary or voluntary. In some cases an
old parish has been divided into distinct and separate parishes, each of
which has received a portion of the old church endowments, and has
become a rectory, vicarage, or perpetual curacy, according to the
_status_ of the old parish;[7] or a vicarage has been converted into a
rectory upon a surrender of the rectorial tithes by the impropriator.[8]
But, as a rule, new ecclesiastical districts or parishes have been
formed and churches built without resorting to the old endowments; and
the Church Building and New Parishes Acts provided that the ministers
put in charge of these new districts or parishes and churches should be
perpetual curates, and should, like the old rectors, vicars, and
perpetual curates, be corporations, with perpetual succession.[9] But
in 1868 it was enacted that the incumbent of every parish and new
ecclesiastical parish, who was authorised to publish banns, and
solemnise marriages, churchings, and baptisms in his church, and was not
a rector, should, for the purpose of designation only, be styled a
vicar, and his benefice should for the same purpose be styled a
vicarage.[10] The modern generic title, which includes every beneficed
parish priest, is _incumbent_. The proper and ancient term for rectors,
vicars, and all other parochial clergy, whether beneficed or
unbeneficed, is _curate_, as having the cure of souls within the
parish.[11] But in modern practice this term, when used by itself, is
generally applied to the unbeneficed or assistant curates in a parish.
7. Two other classes of parochial clergy remain to be mentioned. Where,
for any reason, the incumbent is for a prolonged period disabled from
performing the duties of his office, a substitute will be appointed
under the designation of Minister in Charge. Again, in some parishes,
lectureships have been endowed, and are held by a lecturer, who, in
respect of his duties as such, is independent of the incumbent.
8. Under the Colonial Clergy Act, 1874, a priest or deacon (i.) not
ordained by an English or Irish or Scottish bishop, or a bishop acting
on the request and under the commission of an English bishop, or (ii.)
ordained for service out of the British dominions or for service in the
colonies by either of the two archbishops or the Bishop of London,[12]
(_a_) cannot, unless he holds or has held preferment or a curacy in
England, officiate in any church or chapel in England without the
written permission of the archbishop of the province, and without making
and subscribing a declaration similar to the Declaration of Assent
prescribed by the Clerical Subscription Act, 1865;[13] and (_b_) is not
entitled to be admitted to any preferment or to act as curate in England
without the previous consent in writing of the bishop of the diocese.
But a person who holds preferment or a curacy in an English diocese
under the Act of 1874, and who has held preferment or acted as curate
for a period or periods exceeding in the aggregate two years, may, with
the written consent of the bishop, request from the archbishop of the
province a licence to exercise his clerical office according to the
provisions of the Act; and this licence, if issued by the archbishop and
registered in the provincial registry, will place him in the same
position as if he had been ordained for service in England by an English
bishop.[14] Moreover, a clergyman ordained by a bishop of the Scottish
Episcopal Church, unless he holds or has previously held preferment in
England or Ireland, (_a_) is liable to a penalty if he officiates in
England more than once within three months without notification to the
bishop of the diocese, or if he officiates contrary to an injunction of
the bishop; and (_b_) is not entitled to be admitted to any preferment
in England without the bishop's consent, which he may withhold without
assigning any reason; and (_c_) before being admitted or licensed to any
preferment or curacy in England, must make and subscribe before the
bishop of the diocese, the Declaration of Assent prescribed by the
Clerical Subscription Act, 1865.[15]
9. All rectories, vicarages, and perpetual curacies, whether ancient or
established under the Church Building and New Parishes Acts, or under
any special Act of Parliament, fall within the term _benefice_, and are
of freehold tenure. The term is also applied to non-parochial
ecclesiastical offices of a like tenure, such as a deanery, canonry, and
archdeaconry. But in the present treatise, which deals only with the
parochial clergy, it will be used exclusively of the above-named
parochial benefices (which are in popular language called _livings_);
and the clergy who hold these benefices will be called beneficed clergy
or incumbents. The other parochial clergy will be referred to as
unbeneficed clergy or curates. The legal position of the unbeneficed
clergy as regards status and property is so different from that of
incumbents that it will be convenient to treat of them separately. But
the spiritual duties of the two classes, and the discipline to which
they are amenable, are similar and can be discussed together. They are
alike subject to the same superior ecclesiastical officials and to the
same judicial proceedings; and their civil privileges and disabilities
in respect of their clerical office are identical. By virtue of their
position as parochial clergy they are brought into certain relations
with the bishop of the diocese, the archdeacon of the archdeaconry, and
the rural dean of the deanery in which their parish is situate.
10. The bishop is not only the ruler and administrator, but also the
chief pastor of the whole of his diocese. As such, he, assisted by his
chaplain, has the right whenever he pleases, without the consent of the
incumbent, to conduct service or preach in the church of any parish in
such lawful manner as he thinks proper. This right extends to
consecrating a church within the parish[16] and, of course, to holding
ordinations and confirmations. Moreover, he can require from the clergy
all reasonable information respecting their parish and parishioners.
They owe to him canonical obedience,[17] and deference in matters which
do not fall within the limits of obedience. With the exception that his
withdrawal of a licence from a curate is subject to an appeal to the
archbishop, he possesses absolute control over the unbeneficed clergy in
his diocese, having the right to inhibit them from officiating within
it. But he has no such power over the beneficed clergy in respect of
their services in their own church and other matters involved in the
cure of souls attaching to their benefice. In respect of these matters,
their office being a freehold for life, they are independent of him
except in such particulars and to such extent as the law has expressly
prescribed, and they can only be constrained by him against their will
through the instrumentality of legal proceedings. But, equally with the
unbeneficed clergy of the diocese, it is their duty to attend the
bishop's triennial visitations; and their absence without sufficient
cause renders them liable to ecclesiastical censure and punishment.
Moreover, as will be noticed in the course of this treatise, the bishop
has been given, by express enactments, divers powers in relation to both
beneficed and unbeneficed clergy on matters of detail, subject in many
cases to an appeal to the archbishop of the province. By law and custom
part of the administrative functions of the bishop and almost the whole
of his judicial functions are discharged by his chancellor, who is at
once his vicar-general and the official principal of his consistory
court. Suffragan bishops, where they are appointed, have no independent
authority or jurisdiction, but simply so much as the diocesan bishop, in
his discretion, from time to time delegates to them.
11. The archdeacon is in his archdeaconry next in point of dignity after
the bishop and the suffragans (if any) and the chancellor of the
diocese.[18] He is sometimes called _oculus episcopi_, being the
bishop's vicar, charged with the duty of inspecting that portion of the
diocese which is under his charge and of reporting to the bishop
anything which is amiss. Besides this general supervision, he holds an
annual visitation of his archdeaconry, and admits the churchwardens and
sidesmen, except in years of episcopal visitation, when he is inhibited
from performing his functions, and these are exercised instead by the
bishop in person, or, as regards the admission of churchwardens and
sidesmen, by the chancellor.[19] At his annual visitation, and at other
times, as occasion arises, it is the business of the archdeacon to
satisfy himself that churches, and especially chancels, are in a proper
condition, and to require that any necessary repairs be executed; to
take note of the ornaments and utensils of churches, and to ascertain
that the services and offices of the Church are everywhere duly
performed and administered. The clergy are bound to assist the
archdeacon in his inspection and inquiries and to attend his
visitations.[20] Various duties assigned to him by statute are noticed
in subsequent chapters.
12. Rural deans have within their deaneries the same functions and
powers of inspection and report as an archdeacon in his archdeaconry. It
is their duty to hold from time to time chapters consisting of the
beneficed clergy of the deanery or their curates as proxies for them. In
the present day these chapters are usually attended not only by the
incumbents but also by all the licensed unbeneficed clergy of the
deanery.[21]
13. Judicial procedure in the case of clerical offences is regulated by
three statutes of the last century: (i.) The Church Discipline Act,
1840,[22] provides that on a complaint or the existence of evil report
against a clergyman the bishop may, with the consent of the parties, at
once pronounce sentence, and, in the absence of such consent, may, if he
thinks fit, issue a commission of inquiry. If the commission reports
that there is _primâ facie_ ground for proceedings, the bishop may
either try the case in person with assessors, or else send it by
letters of request direct to the provincial court. The latter course has
in practice been generally adopted, and an appeal may be carried to the
Judicial Committee of the Privy Council. (ii.) The Public Worship
Regulation Act, 1874,[23] introduced an alternative procedure in matters
of ornament and ritual. On the representation of the archdeacon or a
churchwarden or any three parishioners, the bishop, unless he is of
opinion that no proceedings should be taken upon it, is to require the
parties to state whether they are willing to submit to his directions in
the matter, and if they assent he is to hear the case and pronounce
judgment as he thinks proper, and no appeal is to lie from his judgment.
But if they decline to submit the case to the bishop, it is to be heard
by the judge appointed under the Act, who is in fact the same person as
the judge of the two provincial courts, and an appeal lies from his
decision to the Judicial Committee. (iii.) The Clergy Discipline Act,
1892,[24] prescribed a new mode of dealing with offences against
morality. In certain cases where the offence is proved by a conviction
and sentence or an order of a temporal court, the offending clergyman is
to be incapable of holding preferment, and the bishop is to declare
vacant any preferment which he holds without any further trial. But in
all other cases proceedings are to be taken in the consistory court
before the chancellor of the diocese, with the addition of four
assessors to try any question of fact, if either party demands them.
Either party may appeal against the judgment of the consistory court on
a question of law, and the accused clergyman may, with the leave of the
appellate court, appeal on a question of fact. The appeal may at the
option of the appellant be either to the provincial court or to the
Judicial Committee of the Privy Council, but if it is made to the
provincial court the decision of that court is final. The net result of
the three Acts is that (i.) offences of the clergy in respect of
morality can only be dealt with under the Act of 1892; (ii.) proceedings
for offences in respect of ritual and the ornaments of the church or the
minister may be taken either under the Act of 1840 or under that of
1874; and (iii.) offences in respect of doctrine, as well as all other
offences which do not come under (i.) or (ii.), must be dealt with under
the Act of 1840.
14. Priests, at their ordination, are reminded of their duty to forsake
and set aside, as much as possible, all worldly cares and studies, and
are exhorted to apply themselves wholly to their sacred office, and draw
all their cares and studies that way; and they promise, among other
things, to lay aside the study of the world and the flesh. No similar
expressions occur in the form for the making of deacons; but our law
recognises no distinction between the two orders of clergy in respect
of their civil privileges and disabilities.
15. A clergyman, whether priest or deacon, is not compellable to serve
on a jury, though it is not illegal for him to do so. He may be
appointed a justice of the peace or guardian of the poor, may be a
member of a parish or district council, and may act as chairman,
alderman, or councillor of a county council, and as mayor, alderman, or
councillor of any of the Metropolitan boroughs. But he is disqualified
from being mayor, alderman, or councillor of any other municipal
borough;[25] and he cannot be elected a member of the House of
Commons;[26] though, if he is a peer, he may sit in the House of Lords.
16. Canon 75 not only forbids ecclesiastical persons to resort, except
for their honest necessities, to taverns or alehouses, or to board or
lodge therein, or to spend their time in drinking or riot or playing at
dice, cards, or tables, or any other unlawful games, but also prohibits
them from engaging in any base or servile labour. And a clergyman who
holds any cathedral preferment, benefice, curacy, or lectureship, or is
licensed or is otherwise allowed to perform the duties of any
ecclesiastical office, is subject to certain specific legal restrictions
as to engaging in business or trade. (_a_) He may not acquire for
occupation, use, or cultivation more than eighty acres of land without
the written permission of the bishop, which must be restricted to a
specified number of years not exceeding seven. (_b_) He may not engage
in any trade or dealing for profit except where it is carried on by more
than six partners, or by a company, or where the concern, or a share in
it, has devolved on him under a will or settlement, or by inheritance or
marriage or bankruptcy; and in none of the excepted cases may he act as
a director or managing partner, or carry on the concern in person. These
restrictions, however, do not extend to keeping a school or seminary, or
being employed as a schoolmaster or tutor, or being concerned in
education for profit, or buying or selling or otherwise acting in
relation to such school, seminary, or employment. Nor of course do they
prevent an incumbent from farming, if he pleases, his own glebe lands.
Nor do they interfere with the sale, even at an enhanced price, of goods
which a clergyman actually buys for the use of his household, but
afterwards does not want to keep, nor with the sale of books to or
through a bookseller or publisher. He may also be a manager, director,
partner, or shareholder in any benefit society, or fire or life
assurance society, and may sell minerals from mines on his own lands,
and also (provided he do not do so in person at a market or other public
sale) may buy and resell for profit cattle, corn, and other things
required for the occupation, cultivation, and improvement of glebe or
other lands lawfully held by him. The penalties for unlawfully trading
are, for the first offence, suspension for not exceeding one year, for
the second offence suspension for a longer period, and for the third
offence deprivation _ab officio et beneficio_.[27]
17. Both clergymen and other ministers of religion are specially
protected in the performance of religious rites, including rites of
burial, in a church or other place of worship, or a churchyard or
burial-place. It is a misdemeanour punishable by imprisonment with or
without hard labour, to offer violence to them or arrest them upon any
civil process while engaged in or going to or returning from the
performance of these rites, or to obstruct or endeavour to obstruct them
in the performance.[28] The maintenance of order in a church or other
place of worship, whether Divine service is being performed or not, and
in a churchyard or burial-place, is also provided for by the Act
against brawling passed in 1860.[29]
18. A clergyman cannot divest himself of his orders;[30] and Canon 76
prohibited him from forsaking his calling or conducting himself as a
layman under pain of excommunication. But now, by statute, after
resigning all preferments held by him, he can surrender all clerical
rights and powers, and free himself from all clerical disabilities, if
he executes a deed of relinquishment in the prescribed form, and causes
it to be enrolled in the Central Office of the Supreme Court of
Judicature, and delivers an office copy of the enrolment to the bishop
of the diocese in which he last held preferment, or (if he has never
held preferment) in which he resides, and gives notice of having done so
to the archbishop of the province in which the diocese is situate. And a
clergyman who takes this course is relieved from all censures or other
proceedings for so doing, but is rendered incapable of afterwards
officiating or acting as a minister of the Church of England or taking
or holding any preferment therein.[31]
Footnotes
[1] 1 Bl. Comm. 14, 79-83, and n. (11) by J. T. Coleridge (afterwards
Judge) in 16th ed. (1825); (1533) 25 Hen. 8, c. 19, ss. 1-3; c. 21
(preamble); (1535) 27 Hen. 8, c. 15; (1543) 35 Hen. 8, c. 16.
[2] _i.e._ "The Book of Common Prayer and Administration of the
Sacraments and other Rites and Ceremonies of the Church, according to
the use of the Church of England, together with the Psalter or Psalms of
David, pointed as they are to be sung or said in Churches, and the Form
or Manner of making, ordaining, and consecrating of Bishops, Priests,
and Deacons," which is annexed to the Act of Uniformity of 1662 (14 Cha.
2, c. 4). Similarly the Thirty-Nine Articles of Religion are enjoined on
the clergy by (1571) 13 Eliz. c. 12, the Clerical Subscription Act, 1865
(28 & 29 Vict. c. 122), and the Canon made in 1865 and ratified by the
Crown in 1866.
[3] Middleton _v._ Crofts (1736) 2 Str. 1056; 2 Atk. 650; Bp. of Exeter
_v._ Marshall (1868) L. R. 3 H. L. 17.
[4] Gibs. Cod. 956. The Act of 1661 (13 Cha. 2, st. 1, c. 12), which
restored the ecclesiastical jurisdiction of archbishops, bishops, and
other spiritual judges and officers, contained a proviso that nothing
therein contained should extend to confirm "the canons made in the year
1640, nor any of them, nor any other ecclesiastical laws or canons not
formerly confirmed, allowed, or enacted by Parliament or by the
established laws of the land as they stood in the year of our Lord
1639."
[5] So called "because by his person the church, which is an invisible
body, is represented: and he is in himself a body corporate in order to
protect and defend the rights of the church (which he personates) by a
perpetual succession." 1 Bl. Comm. 384. The term _parson_ is often
popularly, but incorrectly, applied to vicars and other clergymen.
[6] The owner of this right was called the _patronus_ or _advocatus_ on
account of his duty to patronise, advocate, or defend the privileges of
the church and benefice. Hence his right to nominate the rector was
styled _advocatio_ or advowson.
[7] (1818) 58 Geo. 3, c. 45, ss. 16-19.
[8] (1822) 3 Geo. 4, c. 72, ss. 13, 14.
[9] (1818) 58 Geo. 3, c. 45, s. 25; (1831) 1 & 2 Will. 4, c. 38, s. 12;
(1839) 2 & 3 Vict. c. 49, ss. 2, 8; (1845) 8 & 9 Vict. c. 70, ss. 9, 17.
The churches provided under the Church Building Acts and New Parishes
Acts may be classified as follows: i. Church of a distinct and separate
parish formed under the Church Building Act, 1818 (58 Geo. 3, c. 45, s.
76); ii. Church of a district parish formed under 58 Geo. 3, c. 45, s.
21; iii. Church or chapel of a consolidated chapelry formed under the
Church Building Act, 1819 (59 Geo. 3, c. 134, s. 6); iv. Church or
chapel of a district chapelry formed under 59 Geo. 3, c. 134, s. 16; v.
Church or chapel built or appropriated under the Church Building Act,
1831 (1 & 2 Will. 4, c. 38, s. 2), with or without a particular district
formed under s. 10 of that Act; vi. Chapel of ease constituted the
church of a separate spiritual parish under 1 & 2 Will. 4, c. 38, s. 23;
vii. Church of a Peel parish formed under the New Parishes Act, 1843 (6
& 7 Vict. c. 37, s. 15); viii. Church of a new parish formed under the
New Parishes Act, 1856 (19 & 20 Vict. c. 104, ss. 1, 2); ix. Church of a
district parish, consolidated district chapelry, or particular district,
which under 19 & 20 Vict. c. 104, s. 14, has become a separate
ecclesiastical parish in consequence of the Ecclesiastical Commissioners
having authorised in such church the publication of banns and the
solemnisation of marriages, churchings, and baptisms; x. Church, without
a district, built on a site the conveyance of which has been accepted by
the Ecclesiastical Commissioners (8 & 9 Vict. c. 70, s. 7).
[10] 31 & 32 Vict. c. 117, s. 2. Under the Parish of Manchester Division
Act, 1850 (13 & 14 Vict. c. 41, s. 2), the benefice of every new parish
within the area of the ancient parish of Manchester is a rectory.
[11] See the Prayer for the Clergy and People in Morning and Evening
Prayer and the Prayer for the Church Militant.
[12] (1784) 24 Geo. 3, sess. 2, c. 35, s. 1; (1819) 59 Geo. 3, c. 60, s.
1.
[13] 28 & 29 Vict. c. 122, s. 4. See ch. ii. § 6 (i.) below.
[14] (1874) 37 & 38 Vict. c. 77.
[15] (1864) 27 & 28 Vict. c. 94. See (1865) 28 & 29 Vict. c. 122, s. 4;
ch. ii. § 6 (i.) below.
[16] Bp. of Winchester _v._ Rugg (1868) L. R. 2 P. C. 223, 230.
[17] As to this, see ch. ii. § 6 (iv.) and note.
[18] Ayl. Par. 95. The Dean of the Cathedral has an independent position
and dignity in respect of the Cathedral Church, which is outside the
general diocesan and archidiaconal jurisdiction; _Ib._
[19] Reg. _v._ Sowter (1901) 1 K. B. 66; rev., 396.
[20] Phill. Eccl. Law, Pt. i. ch. v. pp. 194-207; Pt. iv. ch. xi. §3,
pp. 1051-1054; 1 Burn, 93-97. According to a table of fees settled under
the authority of the Act 30 & 31 Vict. c. 135, and published in the
_London Gazette_ of March 19, 1869, the fees to be paid by each parish
at either an episcopal or an archidiaconal visitation are 18s.; viz. 2s.
to the chancellor or archdeacon (as the case may be), 12s. 6d. to the
registrar, and 3s. 6d. to the apparitor.
[21] Ayl. Par. 205; Gibs. Cod. 971-973; 2 Burn, 119-125; Dansey's _Horæ
Decanicæ Rurales_ (2nd ed., 1844), Pts. iv, v.
[22] 3 & 4 Vict. c. 86.
[23] 37 & 38 Vict. c. 85.
[24] 55 & 56 Vict. c. 32.
[25] Cripps, 67, 68; (1882) 45 & 46 Vict. c. 50, ss. 12 (1) (_b_), 14
(3); (1888) 51 & 52 Vict. c. 41, s. 2 (2) (_a_); (1899) 62 & 63 Vict. c.
14, s. 2 (4), (5).
[26] (1801) 41 Geo. 3 (U. K.), c. 63.
[27] (1838) 1 & 2 Vict. c. 106, ss. 28, 31; (1841) 4 & 5 Vict. c. 14.
[28] (1861) 24 & 25 Vict. c. 100 (Offences against the Person), s. 36.
[29] 23 & 24 Vict. c. 32.
[30] Barnes _v._ Shore (1846) 8 Q. B. 640; 1 Rob. Eccl. 382.
[31] 33 & 34 Vict. c. 91 (The Clerical Disabilities Act, 1870).
CHAPTER II
BENEFICED CLERGY
1. In the case of all benefices, admission is granted by the bishop, as
primarily charged with the cure of souls throughout his diocese; but,
unless there is good legal reason to the contrary, he is bound to admit
the clerk who is presented by the patron of the benefice, if the
presentation is made within six calendar months after the benefice
became vacant. If that period passes without a presentation being made,
the right of appointment lapses to the bishop. If he does not appoint
within a further like period, it goes to the archbishop of the province,
and if he fails to appoint within another period of six calendar months,
it devolves finally on the Crown.[32] The period for lapse dates from
the day of the vacation of the benefice if it occurred by death or
acceptance of another living.[33] But if the vacancy was created by
resignation or deprivation or avoidance of the benefice for
non-residence, or if a clerk who is presented is rejected for want of
ability or moral character, the period will only begin to run from the
time when notice of the fact is given by the bishop to the patron,[34]
except in the case of an ecclesiastical patron who (unless the case
comes under the Benefices Act, 1898, ss. 2, 3) is not entitled to such
notice.[35] Moreover, in reckoning the period for lapse, no account is
to be taken, in the case of the first and second presentations by a
patron in respect of the same vacancy, of the time between a
presentation and the bishop's refusal to admit the presentee, or of the
period between that refusal and a decision of a court upon it, nor, in
the case of a collation by the bishop, of the time between the service
of the prescribed notice on the churchwardens and the expiration of a
month from that service.[36]
2. The original connection of advowsons or rights of presentation with
manors or estates[37] led to their passing by devolution or devise on
death, or by gift or sale during life, to the heir of the patron, or to
a devisee, donee, or purchaser of the manor or estate; and it soon
became recognised in law that they could be alienated by themselves like
any other property, apart from the manors to which they were originally
appendant. Moreover, until 1899 the law allowed a patron to grant or
sell the right of next presentation, or the right of presentation during
his lifetime, or any other limited interest in the patronage, reserving
the fee-simple of the advowson to himself. By an Act of 1713,[38] a
clergyman was prohibited from purchasing a next presentation and then
presenting himself; but this has been held not to prevent him from
presenting himself after purchasing an estate in fee, or even an estate
for life in the advowson.[39] And if the benefice is vacant at the time
of the transfer, the transfer does not carry with it the right to
present a clerk to fill up the existing vacancy.[40] This, however, was,
until 1899, frequently got over by an agreement that the transferor
should present such clerk as the transferee might nominate. But the
Benefices Act, 1898,[41] introduced several salutary restrictions on the
transfer of advowsons. Under sect. 1 of that Act:--
(_a_) A transfer of an advowson (otherwise than on marriage, death, or
bankruptcy, or on the appointment of a new trustee) is invalid unless it
(i.) transfers the whole interest of the transferor in the advowson
(except that he may reserve to himself a life interest in making a
family settlement, and the equity of redemption in making a mortgage);
(ii.) is made more than twelve months after the last filling up of the
benefice; and (iii.) is registered in the diocesan registry within one
month after its date, or such extended period as the bishop may under
special circumstances permit.
(_b_) The advowson must not be put up to auction unless sold with a
manor or not less than 100 acres of land belonging to the same owner in
the same or an adjoining parish.
(_c_) Subsection (3) of the same section also makes invalid any
agreement to exercise patronage in favour of or on the nomination of a
particular person, and also, in connection with the transfer of an
advowson, any agreement (i.) to retransfer the advowson; (ii.) to
postpone payment of any part of the purchase money, or to pay interest
until a vacancy in the living, or for more than three months; (iv.) to
make any payment in respect of the date at which the vacancy may occur;
or (v.) that the living shall be resigned in favour of any person. If
the patron of a benefice is a Roman Catholic, the University of Oxford
or of Cambridge has the right to present.[42] A Jew who owns an advowson
may present; but if a Jew holds an office under the Crown to which a
right of presentation is attached, the right passes to the Archbishop of
Canterbury.[43]
3. Every clerk in priest's orders, who has not relinquished the rights
and privileges attaching to those orders under the Clerical Disabilities
Act, 1870,[44] or become incapable of holding preferment under the
Clergy Discipline Act, 1892,[45] is qualified to be appointed to a
benefice. But, unless he has been so ordained by a bishop of the Church
of England or of the Church of Ireland, or by a commissary of an English
bishop under 15 & 16 Vict. c. 52, he is subject to the provisions of the
Colonial Clergy Act, 1874,[46] or, if ordained in Scotland, of the
Episcopal Church (Scotland) Act, 1864,[47] as to the previous consent or
licence of the archbishop of the province or bishop of the diocese; and
a clerk ordained priest as an alien or for service in the colonies under
the Ordination of Aliens Act, 1784, or the Ordinations for Colonies Act,
1819, is subject to the same provisions.[48] The bishop may, however,
independently of the Benefices Act, 1898, refuse to admit him on the
ground of insufficient learning,[49] or of vicious conduct, heresy, or
offences against ecclesiastical law in matters of ritual--anything, in
short, which, if it occurred after admission, might be a ground for
depriving him of the benefice.[50] And, under sect. 2 of that Act, the
bishop may do so, (_a_) if at the date of the vacancy not more than a
year has elapsed since a transfer within the purview of sect. 1[51] of
the right of patronage of the benefice, unless the transfer is proved
not to have been effected in view of the probability of a vacancy within
the year; or (_b_) if not more than three years have elapsed since the
presentee was ordained deacon; or (_c_) if the presentee is unfit owing
to physical or mental infirmity, serious pecuniary embarrassment, grave
misconduct, or neglect of duty in an ecclesiastical office, evil life,
or scandal caused by his moral conduct since ordination; or (_d_) if he
has, with reference to the presentation, been knowingly party or privy
to a transaction or agreement invalid under the Act.[51] The 39th Canon
lays down that a bishop shall not institute to a benefice a clergyman
who has been ordained by another bishop, without production of his
letters of orders and a sufficient testimony of his former good life and
behaviour if the bishop requires it,[52] and his appearing on due
examination to be worthy of his ministry. What this examination covers
is not clearly definable; but it has not such a wide scope as the
examination contemplated in Canon 48, which does not apply to presentees
to livings.[53] Under the 95th Canon a bishop is allowed twenty-eight
days for inquiry as to the fitness of a presentee; but this is merely
directory, and he is not precluded from continuing the inquiry after
their expiration.[54]
4. If a bishop refuses to admit a presentee on a ground specified in
sect. 2 of the Act of 1898, or on account of any other unfitness or
disqualification sufficient in law, not having reference to doctrine or
ritual, he is to signify in writing his refusal, and the ground for it,
to the patron and the presentee; and either of them may within one month
thereafter require that the matter be heard by a court consisting of the
archbishop of the province (or if it was the archbishop who refused to
admit, the archbishop of the other province) and a judge of the Supreme
Court, nominated by the Lord Chancellor. The judge is to decide all
questions of law and fact, and if the judge finds that there is no fact
sufficient in law to constitute unfitness or disqualification, the
archbishop is to direct the admission of the presentee. But if the judge
finds that such fact does exist, the archbishop is to decide whether the
presentee is actually in consequence unfit to serve the benefice, and
adjudge whether admission ought under the circumstances to be refused.
In either case his judgment is to be final.[55] When the bishop has
refused to admit a presentee, the patron cannot present him again in
respect of the same vacancy.[56] If the bishop refuses to admit the
presentee of a clerical patron and the refusal is upheld by the court,
the patron has the same right of further presentation as if he were a
lay patron.[57] If a bishop refuses to admit a presentee on the ground
of doctrine or ritual, the old alternative remedies remain, either (_a_)
of a suit of _duplex querela_ by the presentee in the ecclesiastical
court of the province, or (_b_) of an action of _quare impedit_ by the
patron in the High Court of Justice.[58]
5. Before the bishop admits a clerk to a vacant benefice, he must send
to the churchwardens in a registered letter a formal notice of his
intention so to do, with a statement of the ecclesiastical preferments
which the clerk has held, and a direction that the notice is to be fixed
for one month on the principal door or notice-board of the church; after
which it is to be returned to the bishop with a certificate, signed by
the churchwardens, that the direction has been complied with.[59] The
object of this proceeding is to give to the parishioners the opportunity
of communicating to the bishop the existence of any fact known to them
which would constitute a valid and legal ground for the bishop to refuse
the presentee.
6. The bishop admits a presentee by formal institution in the case of a
rectory or vicarage (the presentee kneeling before him), and by licence
in the case of a perpetual curacy. In the case of admission to the
benefices of new ecclesiastical parishes, which though by law perpetual
curacies, are titular vicarages,[60] the practice varies. Admission by
licence is the correct course; but by the desire of the presentee
himself institution is sometimes granted. Where the bishop is himself
the patron, he cannot present, and therefore admits by collation, which
corresponds to the two processes of presentation and institution.[61]
Before institution, collation, or admission by licence, the clerk makes
two declarations and takes two oaths.[62]
(i.) A declaration of assent, namely--
I assent to the Thirty-nine Articles of Religion, and to the
Book of Common Prayer, and of the ordering of Bishops, Priests,
and Deacons. I believe the Doctrine of the Church of England as
therein set forth, to be agreeable to the Word of God; and in
Public Prayer and Administration of the Sacraments I will use
the Form in the said Book prescribed and none other, except so
far as shall be ordered by lawful authority.[63]
(ii.) A declaration against simony, namely--
I, A. B., hereby solemnly and sincerely declare in reference to
the presentation made of me to the rectory (or vicarage, &c.)
of ---- as follows:
1. I have not received the presentation of the said rectory (or
vicarage, &c.) in consideration of any sum of money, reward,
gift, profit, or benefit directly or indirectly given or
promised by me, or by any person to my knowledge or with my
consent, to any person whatsoever; and I will not at any time
hereafter perform or satisfy any payment, contract, or promise
made in respect of that presentation by any person without my
knowledge or consent.
2. I have not entered, nor, to the best of my knowledge and
belief, has any person entered, into any bond, covenant, or
other assurance or engagement, otherwise than as allowed by
sections one and two of the Clergy Resignation Bonds Act,
1828,[64] that I should at any time resign the said rectory (or
vicarage, &c.).
3. I have not by myself, nor, to my knowledge, has any person on
my behalf, for any sum of money, reward, gift, profit, or
advantage, or for or by means of any promise, agreement, grant,
bond, covenant, or other assurance of or for any sum of money,
reward, gift, profit, or benefit whatsoever, directly or
indirectly procured the now existing avoidance of the said
rectory (or vicarage, &c.)
4. I have not, with respect to the said presentation, been party
or privy to any agreement which is invalid under section one,
subsection three, of the Benefices Act, 1898.[65]
(iii.) The oath of allegiance, namely--
I, A. B., do swear that I will be faithful and bear true
allegiance to His Majesty King Edward the Seventh, His Heirs and
Successors according to Law. So help me GOD he oath of canonical
obedience, namely--
I, A. B., do swear that I will perform true and canonical
obedience to the Bishop of C. and his successors in all things
lawful and honest. So help me GOD.[66]
Moreover, on the first Lord's Day on which he officiates in church in
his benefice, or such other Lord's Day as the ordinary allows, he is to
read publicly the Thirty-nine Articles, and make the declaration of
assent, adding after "Articles of Religion," the words, "which I have
now read before you."[67]
7. A clerk who has been admitted to a benefice by either institution,
collation, or licence is thereby invested with the cure of souls of the
parish, and with the right to the temporalities; and, in the case of
admission by licence, nothing more is requisite to place him in full
enjoyment of the benefice. But, in the case of institution or collation,
the further process of induction is necessary to invest him with the
actual possession of its temporalities. The bishop issues his mandate
for the purpose to the archdeacon or some other person, who, in
obedience thereto, goes to the church, and, placing the clerk's hand
upon the key or ring of the door, inducts him into the real, actual, and
corporal possession of the church, with all its rights, profits, and
appurtenances.[68]
8. The following fees in connection with the admission to benefices were
settled in June 1895, under the Acts 1 & 2 Vict. c. 106, and 30 & 31
Vict. c. 135:[69]
Key for Column Z below.
A: Collation to a benefice
B: Institution to a benefice
C: Licence to a perpetual curacy
D: Induction to a benefice (whether of one parish, or of two or more
united parishes)
-+-----------+----------+----------+----------------------------------+
| |Registrar | | |
|Vicar |or other |Secretary |During existing vested interests. |
|General |Officer |of Arch- +----------+-----------+-----------+
Z|or |by usage |bishop | | | Record |
|Chancellor.|performing|or Bishop.|Apparitor | Sealer. | Keeper. |
| |the duty. | | | | |
-+-----------+----------+----------+----------+-----------+-----------|
|£ _s. d._ |£ _s. d._|£ _s. d._|£ _s. d._|£ _s. d._ |£ _s. d._ |
A| 16 8 |2 2 4 |4 4 0 | 3 6 | 4 6 | 4 6 |
B| 16 8 |2 2 4 |4 4 0 | 3 6 | 4 6 | 2 6 |
| | | | | | |
C| 9 4 |1 15 8 |2 2 0 | | 1 0 | 1 0 |
+-----------+----------+ | | | |
|Arch- |Arch- | | | | |
|deacon's |deacon's | | | | |
|Official. |Registrar.| | | | |
+-----------+----------+ | | | |
|£ _s. d._ |£ _s. d._| | | | |
D| 10 0 | 13 0 | | 1 0 | 1 0 | 2 6 |
-+-----------+----------+----------+----------+-----------+-----------|
9. Admission to a benefice confers the right and imposes the duty of the
cure (Lat. _cura_) or care of souls within the parish attached to the
benefice. The nature of this duty can be gathered from the Form of
Ordering of Priests, the rubrics and provisions of the Book of Common
Prayer, and the Canons of 1603. Every clergyman, at the time of his
ordination as priest, solemnly promises (_a_) so to minister the
doctrine and sacraments and the discipline of Christ as the Lord has
commanded, and as the Church and Realm of England have received the
same, and to teach the people committed to his cure and charge with all
diligence to keep and observe the same; (_b_) to be ready to banish and
drive away all erroneous and strange doctrines contrary to God's Word,
and to use both public and private exhortations, as well to the sick as
to the whole, within his cure, as need requires and occasion is given;
(_c_) to be diligent in prayers and in reading of the Holy Scriptures,
and in such studies as help to the knowledge of the same, laying aside
the study of the world and the flesh; (_d_) to frame and fashion himself
and his family according to the doctrine of Christ, and to make both
himself and them wholesome examples and patterns to the flock of Christ;
(_e_) to maintain and set forward quietness, peace, and love among all
Christian people, and especially among those committed to his charge;
and (_f_) reverently to obey his ordinary and other chief ministers,
following with a glad mind and will their godly admonitions, and
submitting himself to their godly judgments. While the cure of souls
thus embraces the general care of the spiritual and moral welfare of the
people, it includes the following particulars, which will be separately
considered: (i.) Residence; (ii.) Performance of Divine Service,
including the Administration of the Sacraments, Preaching and
Catechising; (iii.) Solemnisation of Marriage; (iv.) Burial of the Dead;
and (v.) Private Ministrations, including the Visitation of the Sick.
10. Speaking generally, and with the exceptions and under the
restrictions to be presently mentioned, the incumbent and clergymen
permitted by him have the sole right of ministering within his parish;
and a clergyman who intrudes and performs any clerical function in it
without his permission, commits an ecclesiastical offence.[70] But the
bishop, as the chief pastor, has the right to officiate in any church
and parish within his diocese whenever he pleases. And an incumbent
cannot authorise another clergyman to officiate in his church or parish
without the licence of the bishop; but this rule has been held not
applicable in its absolute strictness to merely occasional and isolated
acts of ministration.[71] The few cases in which two or more incumbents
have had the cure of souls within the same parish, have been dealt with
by recent legislation.[72] The 28th and 57th Canons prohibited the
practice of persons leaving their own parish church and communicating or
causing their children to be baptized elsewhere. But this prohibition is
not now in force; and by a general understanding and comity, especially
in towns subdivided into several ecclesiastical parishes, not only do
Church people frequent at will the particular church which they prefer,
but the incumbent of that church pays spiritual visits in sickness and
at other times to regular members of his congregation who reside in
another parish.
11. The ministrations of the incumbent himself are restricted by Canon
71, under which, except where a person is prevented from going to church
by infirmity or sickness, no minister may preach or administer the Holy
Communion in any private house in which there is not a chapel dedicated
and allowed by the ecclesiastical law of the realm, nor, where there is
such a chapel, in any other place but the chapel, and even there only
seldom on Sundays and holy-days in order that the lord or master of the
house and his family may at other times resort to their own parish
church and there receive the Holy Communion at least once every year. An
incumbent can perform Divine service in any consecrated building in his
parish without a licence from the bishop; but, strictly speaking, he
requires the bishop's licence to authorise him to do so in any
unconsecrated building, whether within or outside his parish, or
anywhere in another diocese; and a bishop can inhibit an incumbent of
his diocese from officiating within the diocese elsewhere than in the
consecrated buildings within his own parish. If an incumbent
transgresses in any of these respects he is liable to be sued for an
ecclesiastical offence.[73] Moreover, strangely enough, the Acts which
legalised the worship of Dissenters not only withdrew them from the care
of the incumbent of the parish but also restricted his action among
Church people. For these Acts prohibited any meeting for Protestant
religious worship of more than twenty persons, besides the family and
servants of the house where it was held, except at a place duly
certified for the purpose.[74] But in 1855 it was enacted that these
prohibitions should not apply to any assembly for religious worship
either (_a_) conducted by the incumbent or curate in charge of the
parish or any person authorised by him, or (_b_) meeting in private
premises, or (_c_) meeting occasionally in a building not usually
appropriated to religious worship.[75]
12. There are also special cases in which the right of an incumbent to
officiate and exercise the cure of souls is actually superseded in
favour of a chaplain appointed without his consent. Where a nobleman has
a chapel within or attached to his residence he has the right to appoint
a chaplain to serve it.[76] The chapels of public and endowed schools
under the Acts of 1868 and 1869 are free from the jurisdiction and
control of the incumbent of the parish in which they are situate.[77]
Moreover, a bishop may license a clergyman to administer the Lord's
Supper and perform services other than the solemnisation of marriage,
and, subject to the direction of the ordinary, to dispose of the
offertory and collections, in the chapel of any college, school,
hospital, asylum, or public or charitable institution within his
diocese; and where this is done, the institution and chapel are
withdrawn from the cure of souls and control of the incumbent of the
parish.[78] During the eighteenth and first part of the nineteenth
century, before the Church Building and New Parishes Acts had afforded
facilities for creating new parishes, unconsecrated proprietary chapels
were built in various places, with the consent of the bishop of the
diocese and incumbent of the parish, to meet the wants of overgrown town
populations. These chapels can only be served by ministers acting under
the licence of the bishop, (which he can at any time revoke),[79] and
with the consent of the incumbent, which, though he cannot himself
revoke it, is not binding on his successors.[80] Unless the incumbent
waives the right to the alms collected in the chapel, they must be
accounted for to him. The chapel is private property, and no one can
claim to attend it as of right.[81]
13. The right to the cure of souls in a parish naturally carries with it
the right of the incumbent to a voice in the erection of a new church in
the parish and the severance of any portion of the parish from his
benefice and its formation into a new ecclesiastical district or parish.
The various modes in which these objects may be effected are mentioned
in the note to Ch. I. § 6 above. The enactments on the subject provide
opportunities for the incumbents of the existing parishes, which would
be affected by any contemplated action in the matter, to lay their views
and objections, if any, before the bishop and the Ecclesiastical
Commissioners; but their views need not necessarily be accepted and
their objections may be overruled.
14. An incumbent cannot hold more than one benefice at the same time,
except that upon a certificate of the bishop as to the facts, and with a
licence or dispensation from the archbishop of the province (from the
refusal of which there is an appeal to the King in Council), he may hold
a second, the church of which is within four miles of that of the first
by the nearest road, if the annual value of one of the benefices does
not exceed the net sum of £200, after deducting rates, taxes, tenths,
dues, and permanent charges, but not the stipend of a curate. But where
the population of one of the parishes is over 3000, the joint holding
will only be lawful if that of the other is under 500.[82]
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]
24. Deprivation is either (_a_) by operation of law or (_b_) by
sentence. (_a_) It takes place _ipso facto_ (i.) if the presentation or
admission to the benefice has been simoniacal, or if a person who has
been corruptly ordained is admitted to the benefice within seven years
afterwards;[106] (ii.) if the incumbent is convicted a third time of a
breach of the provisions of the Acts of Uniformity as to using the Book
of Common Prayer and no other, and as to not preaching in derogation
thereof;[107] (iii.) if the incumbent wilfully omits to read publicly
the Thirty-nine Articles and his declaration of assent after his
admission to the benefice;[108] (iv.) if the benefice continues a whole
year under sequestration for disobedience to the bishop's monition or
order requiring the incumbent to reside on the benefice, or if he incurs
two such sequestrations within two years, and is not relieved as to
either of them on appeal;[109] (v.) if an inhibition for enforcing
obedience by the incumbent to a monition or order under the Public
Worship Regulation Act, 1874, remains in force for more than three
years, or a second inhibition for the same purpose is issued within
three years from the relaxation of a former inhibition, and the bishop
does not intervene;[110] or (vi.) in the case of an incumbent presented
or collated since 1898, if within a year after his admission his
benefice is sequestrated on his bankruptcy or in aid of an execution
against his property, or if such a sequestration, issued after that
period, continues for a year, or if he incurs two such sequestrations
within two years, unless the bishop otherwise directs.[111] Moreover
(vii.) the bishop is to declare a benefice vacant if the incumbent is
convicted of treason or felony or, on indictment, of a misdemeanour, and
is sentenced to imprisonment with hard labour or any greater punishment,
or he has a bastardy order made against him, or in a divorce or
matrimonial cause he is either found to have committed adultery or an
order for judicial separation is made against him; but if, after being
so convicted, he receives a free pardon from the Crown before the
benefice is filled up, he is to be reinstated in it.[112] (_b_) Sentence
of deprivation is pronounced in suitable cases in proceedings against an
incumbent for a serious offence against morality under the Clergy
Discipline Act, 1892, or for an offence in respect of doctrine or ritual
or other matter of ecclesiastical cognisance under the Church Discipline
Act, 1840.[113]
Footnotes
[32] Wats. ch. xii. pp. 109-120; Gibs. Cod. 768-770.
[33] Wats. ch. ii. pp. 5, 6; Gibs. Cod. 769.
[34] Wats, ch ii. p. 6; Gibs. Cod. 769; (1571) 13 Eliz. c. 12, s. 7;
(1838) 1 & 2 Vict. c. 106, s. 108.
[35] 2 Burn, 357.
[36] Benefices Act, 1898 (61 & 62 Vict. c. 48), s. 5. Comp. §§ 4, 5
below.
[37] See ch. i. § 5.
[38] 13 Ann. c. 11 (12 Ann. st. 2, c. 12), s. 2.
[39] Walsh _v._ Bp. of Lincoln (1875) L. R. 10 C. P. 518.
[40] Alston _v._ Atlay (1837) 7 A. & E. 289.
[41] 61 & 62 Vict. c. 48.
[42] (1605) 3 Ja. 1, c. 5, ss. 19-21; (1688) 1 Will. & Mar. sess. 1, c.
26; (1898) 61 & 62 Vict. c. 48, s. 7.
[43] (1858) 21 & 22 Vict. c. 49, s. 4.
[44] 33 & 34 Vict. c. 91.
[45] 55 & 56 Vict. c. 32, ss. 1, 6.
[46] 37 & 38 Vict. c. 77. See ch. i. § 8.
[47] 27 & 28 Vict. c. 94. See ch. i. § 8.
[48] 24 Geo. 3, sess. 2, c. 35; 59 Geo. 3, c. 60; 37 & 38 Vict. c. 77,
s. 9.
[49] Willis _v._ Bp. of Oxford (1877) 2 P. D. 192. This includes, in the
four Welsh dioceses, inability to preach, administer the sacraments,
perform other pastoral duties, and converse in Welsh, subject to an
appeal to the archbishop; (1838) 1 & 2 Vict. c. 106, s. 104; Marquis of
Abergavenny _v._ Bp. of Llandaff (1888) 20 Q. B. D. 460.
[50] Ayl. Par. 39-42; Heywood _v._ Bp. of Manchester (1884) 12 Q. B. D.
404.
[51] See § 2 above.
[52] The "sufficient testimony" consists, by long-established practice,
of a testimonial by three beneficed clergymen, countersigned by the
bishops of their dioceses if they are not beneficed in the diocese of
the bishop to whom the testimonial is given, that the presentee has been
personally known to them for three years last past; that they have had
opportunities of observing his conduct, and during the whole of that
time they verily believe that he has lived piously, soberly, and
honestly, and that they have not heard anything to the contrary thereof,
nor that he has at any time held, written, or taught anything contrary
to the doctrine or discipline of the Church, and that they believe him
to be, as to his moral conduct, a person worthy to be admitted to the
benefice.
[53] Bp. of Exeter _v._ Marshall (1868) L. R. 3 H. L. 17.
[54] Gorham _v._ Bp. of Exeter (1849) 2 Rob. Eccl. 1; 13 Jur. 238.
[55] (1898) 61 & 62 Vict. c. 48, s. 3.
[56] _Ib._ s. 6 (1).
[57] _Ib._ s. 6 (2).
[58] Ayl. Par. 233-5.
[59] Benefices Act, 1898 (61 & 62 Vict. c. 48), s. 2 (2); Benefices
Rules, 1898, ru. 11, 12, sch. form (7).
[60] (1868) 31 & 32 Vict. c. 117.
[61] Gibs. Cod. 813.
[62] 28 & 29 Vict. c. 122 (Clerical Subscription Act, 1865), ss. 1, 5,
12; 31 & 32 Vict. c. 72 (Promissory Oaths Act, 1868), ss. 2, 8, 9, 14;
61 & 62 Vict. c. 48 (Benefices Act, 1898), s. 1 (4) sch.
[63] This may be the authority of the King in Council, under which the
names of the sovereign and members of the Royal Family are changed in
the prayers for them (Gibs. Cod. 280), and other forms are from time to
time prescribed; or that of the archbishop or bishop, so far as they
have power in the matter. See below, ch. v. § 1.
[64] See below, §22.
[65] See above, §2 (_c_).
[66] Clarke Proxis, tit. xci.; Gibs. Cod. 810. This oath does not mean
that the clerk will obey all the commands of the bishop against which
there is no law, but that he will obey all such commands as the bishop
by law is authorised to impose; Long _v._ Bp. of Capetown (1863) 1 Moo.
P. C. N. S. 411, at p. 465.
[67] (1865) 28 & 29 Vict. c. 122, s. 7.
[68] Johns, vol. i. p. 84; Wats. ch. xv. p. 155, sq.
[69] _London Gazette_, July 2, 1895.
[70] Duke of Portland _v._ Bingham (1792) 1 Hag. Cons. 157, 161; Carr
_v._ Marsh (1814) 2 Phill. 198, 206; Farnworth _v._ Bp. of Chester
(1825) 4 B. & C. 555, 568; Bliss _v._ Woods (1831) 3 Hag. Eccl. 486,
501-512; Nesbitt _v._ Wallace (1901) P. 354.
[71] Canon 48; Yates _v._ Chambers (1824) 2 Add. 177, 191.
[72] (1839) 2 & 3 Vict. c. 30; (1840) 3 & 4 Vict, c. 113, s. 72; (1869)
32 & 33 Vict. c. 94, s. 4.
[73] Cripps, 580; Moysey _v._ Hillcoat (1828) 2 Hag. Eccl. 30, 46; Bp.
of Down _v._ Miller (1861) 11 Ir. Ch. Rep. App. i., ix.; 5 L. T. N. S.
30; Kitson _v._ Drury (1865) 11 Jur. N. S. 272.
[74] (1688) 1 Will. & Mar. sess. 1, c. 18; (1812) 52 Geo. 3, c. 155.
[75] 18 & 19 Vict. c. 86 (Liberty of Religious Worship Act).
[76] Degge, 188 (pt. i. ch. 12).
[77] 31 & 32 Vict. c. 118, s. 31; 32 & 33 Vict. c. 56, s. 53.
[78] 34 & 35 Vict. c. 66 (Private Chapels Act, 1871).
[79] Hodgson _v._ Dillon (1840) 2 Curt. 388.
[80] Richards _v._ Fincher (1874) L. R. 4 A. & E. 255.
[81] Bosanquet _v._ Heath (1860) 9 W. R. 35; 3 L. T. N. S. 290.
[82] (1838) 1 & 2 Vict. c. 106, ss. 4, 6, 7, 9, 10; (1850) 13 & 14 Vict.
c. 98, ss. 1-4; (1885) 48 & 49 Vict. c. 54, s. 14.
[83] See § 9 above.
[84] (1838) 1 & 2 Vict. c. 106, ss. 77, 85-87, 105; (1885) 48 & 49 Vict.
c. 54, ss. 1-8.
[85] 61 & 62 Vict. c. 48, s. 9.
[86] Barratt _v._ Kearns (1905) 1 K. B. 504.
[87] Gibs. Cod. 885; (1838) 1 & 2 Vict. c. 106, ss. 32, 34, 35; Bluck
_v._ Rackham (1845-6) 1 Rob. Eccl. 367; 5 Moo. P. C. 305; 4 Not. of Ca.
85, 534; 9 Jur. 497; 11 _Ib._ 325; 9 Q. B. 691.
[88] (1662) 14 Cha. 2. c. 4 (Act of Uniformity) s. 5.
[89] (1838) 1 & 2 Vict. c. 106, ss. 32, 42, 114-121.
[90] (1838) 1 & 2 Vict. c. 106, ss. 33, 41-51, 57.
[91] _Ib._ ss. 37-39.
[92] _Ib._ ss. 46, 49.
[93] (1838) 1 & 2 Vict. c. 106, ss. 54-58.
[94] _Ib._ ss. 108, 112, 113.
[95] See below, ch. iii. §. 2 (_c_).
[96] (1885) 48 & 49 Vict. c. 54, s. 12.
[97] (1838) 1 & 2 Vict. c. 106, ss. 120, 121.
[98] Reichel _v._ Bp. of Oxford (1887) 35 Ch. D. 48; aff. (1889) 14 App.
Ca. 259; comp. _Ib._ 665.
[99] Gibs. Cod. 821; Wats. ch. iv. p. 28; Colt _v._ Bp. of Coventry and
Lichfield (1612) Hob. 140, 152.
[100] 9 Geo. 4, c. 94; 61 & 62 Vict. c. 48, s. 1 (4), sch.
[101] Robinson _v._ Dand (1886) 17 Q. B. D. 341.
[102] (1871) 34 & 35 Vict. c. 44; (1887) 50 & 51 Vict. c. 23; Maning
_v._ Hardy (1904) 20 Times Law Rep. 776.
[103] Gathercole _v._ Smith (1881) 17 Ch. D. 1; 7 Q. B. D. 626; (1887)
50 & 51 Vict. c. 23. s. 6.
[104] § 22 above.
[105] (1838) 1 & 2 Vict. c. 106, s. 11; (1850) 13 & 14 Vict. c. 98, s.
7.
[106] (1589) 31 Eliz. c. 6, ss. 4-6, 9.
[107] (1559) 1 Eliz. c. 2, s. 2; (1662) 14 Cha. 2, c. 4, s. 20.
[108] (1662) 14 Cha. 2, c. 4, ss. 2, 38; (1865) 28 & 29 Vict. c. 122, s.
7. See § 6 above.
[109] (1838) 1 & 2 Vict. c. 106, ss. 58, 120.
[110] 37 & 38 Vict. c. 85, s. 13.
[111] 61 & 62 Vict. c. 48 (Benefices Act, 1898), s. 10.
[112] (1870) 33 & 34 Vict. c. 23, s. 2; (1892) 55 & 56 Vict. c. 32
(Clergy Discipline), s. 1.
[113] 3 & 4 Vict. c. 86; 55 & 56 Vict. c. 32.
CHAPTER III
UNBENEFICED CLERGY
1. The unbeneficed clergy engaged in parochial work may be divided into
(i.) curates or ministers in charge; (ii.) assistant licensed curates;
(iii.) unlicensed assistants; and (iv.) lecturers or preachers. An
unbeneficed clergyman has no recognised legal status unless he obtains a
licence from the bishop of the diocese, for which the fee is 10s.[114]
At the time of being licensed (unless, having been ordained the same
day, he has already done so) he must make and subscribe the Declaration
of Assent prescribed by the Clerical Subscription Act, 1865; and on the
first Lord's Day on which he officiates in the parish to which he is
licensed he must publicly repeat the same declaration in the presence of
the congregation during Divine service.[115] Canon 48 requires that
before a curate or minister is permitted to serve in any place he must
be examined and admitted by the bishop, having respect to the greatness
of the cure and the meetness of the party. Nor, if he removes from one
diocese to another, is he to be admitted to serve without the testimony
of the bishop of that from which he came, as to his honesty, ability,
and conformity to the ecclesiastical laws of the Church of England. But
this Canon gave no absolute right to stipendiary curates to be admitted
to serve after examination and upon good episcopal testimony. They
might, notwithstanding, "be placed and displaced at the bishop's
discretion without any process at law." He is under no obligation to
grant a licence to a curate, and cannot be compelled to do so.[116] It
is now, however, enacted, with respect to the removal of curates, that
the bishop, after giving him sufficient opportunity of showing reason to
the contrary, may summarily revoke the licence granted to any curate and
remove him for any cause which appears good and reasonable to the
bishop. But the curate may within one month after service upon him of
the revocation appeal to the archbishop of the province, who may confirm
or annul the revocation as he thinks proper.[117]
2. Curates or ministers in charge are appointed in a variety of cases.
(_a_) If a benefice is vacant, the sequestration of it is granted by the
bishop to the churchwardens or some one or more other persons; and
subject to the direction of the bishop, if he gives any, the
sequestrators are charged with the selection of the person or persons to
serve the cure during the vacancy, and the bishop may assign to him or
them a stipend not greater in the case of each than at the rate of £200
per annum, and so that the aggregate amount assigned do not exceed the
net annual income of the benefice. The sequestrators pay the costs of
serving the cure out of the revenue of the benefice, and account for the
balance to the succeeding incumbent, upon whom on the other hand any
deficiency falls if these costs exceed the net revenue received by the
sequestrators.[118] (_b_) Where under the bankruptcy of the incumbent,
or under a judgment recovered against him, a benefice remains under
sequestration for six months, the bishop from the expiration of the six
months till the close of the sequestration is to take order for the
services in the church of the benefice, and may appoint and license for
the purpose one or more curates or additional curates to reside in and
serve the parish, subject to revocation at any time, and with such
stipends out of the revenue of the benefice as he thinks fit within
certain prescribed limits according to the population of the parish, and
not exceeding in the whole two-thirds of the annual value of the
benefice.[119] (_c_) Where an incumbent is absent from his benefice for
a period or periods exceeding altogether three months in any one
calendar year, he must leave a curate or curates licensed or approved by
the bishop to perform the ecclesiastical duties of the benefice. If he
fails to do so, or if after the death, resignation, or removal of any
such curate he does not within one month notify the fact to the bishop,
or does not within four months nominate another proper curate to the
bishop, the bishop may appoint and license a proper curate, with
directions as to residence and with a stipend according to a prescribed
scale, varying with the value of the benefice and the population of the
parish and the grounds of the non-residence of the incumbent. A curate
who is appointed to serve in a benefice on which the incumbent does not
reside during four months in the year is to be required by the bishop to
reside within the parish, or within three miles of the church of the
benefice, if no convenient residence can be procured within the parish,
except in cases of necessity approved by the bishop. If the population
of the benefice exceeds 2000, the bishop may require the incumbent to
nominate two or more curates, and, if this is not done, may himself
appoint them. A scale of curates' stipends where the incumbent is
non-resident is provided by law, varying according to the annual value
of the benefice and other circumstances, and the bishop may direct that
the curate shall reside in the parsonage house.[120] (_d_) Where a
commission appointed to inquire into the matter has reported that the
ecclesiastical duties of a benefice are inadequately performed owing to
the negligence of the incumbent, the bishop may either require the
incumbent to nominate a curate or curates with sufficient stipend to be
licensed to perform or assist in performing the duties, or may himself
appoint a curate or curates to perform all or any of the duties, subject
to an appeal to the court constituted under the Benefices Act,
1898.[121] A minister in charge has the rights and powers of an
incumbent in certain particulars, such as the choice of a churchwarden,
and, if the benefice is vacant, but not if the incumbent is bankrupt,
the appointment of the parish clerk.[122] (_e_) Where under the New
Parishes Act, 1843, what is called a Peel district is constituted, and a
minister is licensed to it by the bishop, he occupies a somewhat
ambiguous position during the interval before it becomes a separate
ecclesiastical parish upon the consecration of a church within its
area. He is in many respects in the position of a perpetual curate,
being a corporation sole, subject to the jurisdiction of the bishop and
archdeacon, and independent of the incumbent of the parish so far as his
licence extends. But he has no power to take marriages or burials, and
the inhabitants of the district retain their ecclesiastical position as
parishioners of the parish out of which the district is formed.[123]
3. Assistant unbeneficed clergy are contemplated by the canons, in which
they are styled curates; and with the licence of the bishop any
incumbent may employ one or more curates to assist him in serving the
parish. A curate frequently comes in the first instance on probation
without being licensed, and his tenure of office is then entirely
dependent on the will of the incumbent.[124] But after he is licensed it
becomes more secure; and, in the meantime, if a difficulty occurred
about the remuneration for his services, the law would give it to him
upon a _quantum meruit_. In order to obtain a licence, the curate must
present to the bishop a declaration by the incumbent undertaking to pay
to him a specified annual sum as his stipend and a declaration of his
own intention to receive the whole of that stipend; and the licence
will specify the amount of the stipend.[125] Any dispute between an
incumbent and a curate respecting the curate's stipend is to be decided
by the bishop, who may enforce payment of it by monition and
sequestration of the benefice.[126] If the benefice becomes vacant, a
curate must quit upon six weeks' notice from the new incumbent, if given
within six months from the date of admission to the benefice. But in
other cases, unless the bishop revokes his licence (see § 1 above), a
curate can only be required to quit after six months' notice given by
the incumbent with the previous written permission of the bishop, or of
the archbishop, if the bishop refuses it and the archbishop grants it
upon an appeal to him within one month after the bishop's refusal. On
the other hand, unless he obtains the express written consent of the
bishop, a curate before relinquishing a curacy to which he has been
licensed must give three months' notice of his intention to the
incumbent and the bishop, upon pain of forfeiting to the incumbent, as a
debt retainable out of his stipend or recoverable at law, such sum not
exceeding half a year's stipend as the bishop may in writing
direct.[127] Ordinarily, an incumbent who is himself resident and
performing the duties of his cure has complete discretion whether he
will employ any, and, if so, how many curates, and what duties shall
from time to time be performed by any whom he employs. But, besides the
cases of the incumbent's non-residence and negligence in the performance
of duties noticed above (§ 2 (_c_), (_d_)), the bishop has power, if a
commission issued by him reports that the duties of a benefice are
inadequately performed, to require the incumbent, although himself
engaged in performing them, to nominate an assistant curate or curates;
and, if he fails to do so within three months, the bishop may himself
appoint one or more, as the case may require, with a stipend
proportionate to the value of the benefice and the population of the
parish. The incumbent has an appeal to the archbishop, who may confirm
or amend the bishop's action.[128] Moreover, where the annual value of a
benefice exceeds £500, and either the population amounts to 3000, or
there is a second church or chapel with a hamlet containing 400 persons,
the bishop may require the incumbent to nominate an assistant curate,
and, on his failing to do so within three months, may himself appoint
one with a stipend not exceeding £150; subject to a similar appeal to
the archbishop as in the case where the duties have been inadequately
performed.[129]
4. An incumbent has an absolute discretion as to permitting or refusing
any other clergyman, not being licensed as a curate to the parish, to
officiate within his parish, with this qualification, that he has no
right to permit any clergyman to officiate in his parish who by law is
debarred from taking duty in the diocese. With regard to this, no
unbeneficed clergyman has, strictly speaking, a right to officiate
publicly in a diocese, either in church or elsewhere, without the
licence or consent of the bishop, and his doing so is an ecclesiastical
offence.[130] But if the bishop has not actually inhibited him from
officiating, a clergyman may take merely temporary duty without
obtaining the formal licence of the bishop.[131] If, without being
either beneficed or licensed to a curacy in the diocese, he frequently
takes duty therein, he should obtain a general licence from the bishop
for the purpose. Canons 50 and 52 direct incumbents and churchwardens
not to suffer any one to preach in their churches without showing his
licence to preach, and require the names of strangers who preach with
the date of their preaching and the name of the bishop by whom they were
licensed, to be entered in a book for the information of the bishop of
the diocese.
5. In some parishes provision has been made for the election or
appointment of lecturers or preachers for the sole purpose of delivering
lectures or preaching sermons. In any such parish the bishop, if he
thinks fit, with the assent of the incumbent, may require the lecturer
or preacher to perform other ministerial duties as assistant curate or
otherwise, and may vary the duties from time to time. If the duties so
prescribed are not performed, the defaulter may be removed from his
office.[132]
Footnotes
[114] (1838) 1 & 2 Vict. c. 106, s. 82. For the stamp duty on licences,
and exemptions therefrom, see (1891) 54 & 55 Vict. c. 39, sch.
"Licence."
[115] 28 & 29 Vict. c. 122, ss. 1, 8; see ch. ii. § 6 (i.).
[116] Johns, vol. i. p. 95; see Ex parte Carlyon (1903) _Times_, Dec.
19; s.c. nom. R. _v._ Bp. of Liverpool (1904) _Times_, May 4.
[117] (1838) 1 & 2 Vict. c. 106, s. 98; Poole _v._ Bp. of London (1859)
5 Jur. N. S. 522; (1861) 14 Moo. P. C. 262; 7 Jur. N. S. 347.
[118] (1536) 28 Hen. 8, c. 11; (1838) 1 & 2 Vict. c. 106, ss. 99-101;
Dakins _v._ Seaman (1842) 9 M. & W. 777; (1885) 48 & 49 Vict. c. 54, s.
10.
[119] 34 & 35 Vict. c. 45 (Sequestration Act, 1871).
[120] Canon 47; (1838) 1 & 2 Vict. c. 106, ss. 75, 76, 81-98, 120-122,
130; (1885) 48 & 49 Vict. c. 54, s. 9.
[121] See ch. ii. § 15; (1838) 1 & 2 Vict. c. 106, ss. 77, 85-87, 105;
(1885) 48 & 49 Vict. c. 54, ss. 1-3; (1898) 61 & 62 Vict. c. 48, s. 9.
[122] Hubbard _v._ Penrice (1746) 2 Str. 1245; Reg. _v._ Allen (1872) L.
R. 8 Q. B. 69; Pinder _v._ Barr (1854) 4 E. & B. 105; Lawrence _v._
Edwards (1891) 1 Ch. 144; 2 Ch. 72.
[123] 6 & 7 Vict. c. 37, ss. 11-14.
[124] Martyn _v._ Hind (1776) 2 Cowp. 437, 440.
[125] (1865) 28 & 29 Vict. c. 122, ss. 3, 6.
[126] (1838) 1 & 2 Vict. c. 106, s. 83.
[127] (1838) 1 & 2 Vict. c. 106, ss. 95, 97. The notices require no
special formalities; Tanner _v._ Scrivener (1888) 13 P. D. 128.
[128] (1838) 1 & 2 Vict. c. 106, s. 77; (1885) 48 & 49 Vict. c. 54, ss.
2-8.
[129] (1885) 48 & 49 Vict. c. 54, s. 13.
[130] Trebec _v._ Keith (1742) 2 Atk. 498; Barnes _v_. Shore (1846) 1
Rob. Eccl. 382; Freeland _v._ Neale (1848) _Ib._ 643. As to beneficed
clergy, see above, ch. ii. § 11.
[131] Gates _v._ Chambers (1824) 2 Add. 177.
[132] 7 & 8 Vict. c. 59 (Lecturers and Parish Clerks Act, 1844), ss. 1,
6.
CHAPTER IV
LAITY OF THE PARISH
1. There is no general law as to the relations between an incumbent and
the lay officers of a parish. They vary in ancient and in new
ecclesiastical parishes, and in particular places are modified by
custom.
2. The vestry in an ancient parish consists of the ratepayers who are
inhabitants of the parish or who, though not residents therein, are
rated for the relief of the poor in respect of the parish, and of
occupiers of hereditaments so rated. A meeting of the vestry is called
by the incumbent and churchwardens by a notice in print or writing, and
signed by the incumbent or a churchwarden or overseer, and affixed on or
near the doors of all the churches and chapels in the parish in which
the service of the Church is performed, on some Sunday at least three
clear days before the meeting is to be held.[133] The incumbent is _ex
officio_ chairman of every vestry meeting. In case of his absence, or of
there being no incumbent, the members of the vestry present elect one
of themselves as chairman. In case of an equality of votes the chairman,
as such, has a casting vote in addition to his previous right to vote as
a member of the vestry.[134] In the event of a poll being demanded, it
is taken by open voting, and the members of the vestry have from one to
six votes, according to the amount of their assessment, those assessed
at an annual value of under £50 having one vote, and those assessed at
£50 and upwards having one vote for every complete £25 of their
assessment up to £150; all at or above that figure having six votes and
no more. In a new ecclesiastical parish or district a meeting in the
nature of a vestry is composed of the same persons as would, if the
parish or district were an ancient parish, be entitled to vote in the
vestry thereof. But the Vestries Act, 1818,[135] only applies to ancient
parishes. Consequently there is no plural voting in the quasi-vestry of
a new parish, nor need the notice summoning a vestry meeting be given on
a Sunday three clear days before the meeting.[136] But in other respects
a vestry or a meeting in the nature of a vestry in a new parish is
regulated by the same procedure as in an ancient parish. Since the
abolition of compulsory church rates in 1868, and the transfer of their
secular duties to other bodies, the functions of these vestries or
meetings, whether in old or in new parishes, have been for the most part
confined to the election of churchwardens and the approval, or the
contrary, of applications for faculties.[137] In some places under a
local Act or by the adoption of the Vestries Act, 1831,[138] the
functions of the vestry are exercised by a select vestry consisting of a
limited number of householders elected by the parishioners.
3. With regard to churchwardens, the general law as to their appointment
in ancient parishes is declared by the 89th and 90th Canons. They are to
be chosen, if possible, by the joint consent of the minister and
parishioners. But if these cannot agree upon the choice, the minister is
to choose one and the parishioners another. A stipendiary curate being
at the time in charge of the cure stands in the place of the incumbent
in the choice of churchwardens.[139] The election is to be annual, in
Easter week; but the same persons are re-eligible for any number of
years. By custom, however, there may be only one churchwarden or more
than two; and, as is the case in the City of London, both may by custom
be elected by the parishioners, or by the lord of the manor, or one by
the incumbent and the other by the outgoing churchwardens. The election
ordinarily takes place at the Easter vestry, but an election at another
time is valid.[140] The election of both churchwardens is the act of the
whole vestry, whether the minister and parishioners agree in their
choice, or the minister chooses one and the parishioners the other. In
the latter alternative, therefore, the vote of the minister is exhausted
in choosing his own warden, and he cannot also vote as a parishioner in
the election of the other warden; though if there is an equality of
votes in this election, he apparently can, as chairman of the vestry,
decide it by a casting vote.[141] In the case of all churches built
under the Church Building or New Parishes Acts, except those which have
no district attached to them, two churchwardens are to be annually
chosen at Eastertide, one by the minister and the other by the persons
entitled to attend and vote at a meeting in the nature of a vestry for
the parish or district attached to the church.[142] If the church has no
district attached to it, the choice of the second warden is vested in
the pewrenters, or, if there are no rented pews, the minister selects
both wardens.[143] Churchwardens, after their appointment, have no legal
right to exercise their office until they have been admitted by the
archdeacon at his visitation, or by the bishop or his chancellor during
the years of episcopal visitation, when the archdeacon is inhibited and
cannot act. Till then, their predecessors remain in office,
notwithstanding that their year has expired, and their successors have
been appointed.[144]
4. The two churchwardens are sometimes distinguished as the parson's or
vicar's warden and the people's warden. But there is no legal precedence
or seniority between the two, and though chosen differently their duties
are identical.[145] These may be enumerated as follows: (_a_) The care
of the fabric of the church, with its ornaments and furniture, and of
the churchyard; and the duty of keeping them in proper repair and
condition and of adequately insuring against fire so far as funds are in
hand for the purpose, except, as regards the chancel, where the rector
is liable for its repair.[146] They have no proprietary rights in the
church or its fixtures or in the churchyard, but the movable articles in
the church, including the bells and bell-ropes, and sums of money given
to the church, belong to them as a corporation for that purpose.[147]
(_b_) The seating of the parishioners and other churchgoers in the
church, including the chancel, subject, however, as regards the chancel
of an old parish church, to the right of the rector, whether spiritual
or lay, and his family, to the chief seat, and to his disposal of the
other chancel seats if the bishop or churchwardens take no action
respecting them. In this duty the churchwardens act as the officers of
the bishop, and are subject to his control if any complaint is made
against them. Neither the vestry nor the incumbent, nor any individual
parishioner, can interfere with their discretion in the matter, except
by appealing to the bishop. (_c_) The provision at the expense of the
parish of sacramental bread and wine and a surplice for the minister, as
required by Canons 20 and 58. (_d_) The maintenance of order in the
church and churchyard during Divine service. (_e_) The collection of the
money at the offertory, and concurrence with the minister in its
disposal to pious and charitable uses. (_f_) The charge of the church
and benefice and of providing for the cure of souls during a vacancy in
the living, if, as is usually the case, they are appointed
sequestrators, but not otherwise.[148] Churchwardens can neither add to,
alter, or remove any part of the church or its fittings without a
faculty, nor can they interfere with the clergyman in his ministrations
unless his conduct is such as to be riotous, violent, or indecent within
the meaning of the Act of 1860 against brawling.[149] The rights and
duties of the incumbent on the one hand, and of the churchwardens on the
other, in respect of the church and churchyard and the money and
property of the Church, are so interlaced, that on many points friction
cannot be avoided without that harmonious co-operation which should
always exist between them, or, if this is unfortunately impossible, at
any rate without mutual forbearance and concession.
5. The 90th Canon directs that the minister and parishioners in every
parish, if they can agree, shall yearly in Easter week choose two or
three or more discreet persons as sidemen (or, as they are now called,
sidesmen) to assist the churchwardens in performing the duties of their
office. If no agreement is come to, they are to be appointed by the
bishop. This Canon only applies to ancient parishes, and therefore
sidesmen appointed, as is frequently the case, in new ecclesiastical
parishes have, strictly speaking, no legal status. They are, however,
frequently treated as if they possessed it, and in these, as well as in
ancient parishes, assist the churchwardens in seating the people and
taking the collections in church. No practical harm is likely to result
from this unless they undertook such a duty as, for instance, the
forcible ejection of a person misbehaving in church, in which case their
right to do so might be called in question.
6. In addition to the churchwardens a body of Church trustees may now be
appointed in any parish to accept contributions and hold funds for
certain defined ecclesiastical purposes.[150] They are to consist of the
incumbent and two householders or owners or occupiers of land in the
parish, chosen in the first instance and on the happening of a vacancy,
one by the patron and the other by the bishop, the incumbent being
chairman. They are a body corporate under the name of the Church
Trustees of the parish in which they are appointed, with perpetual
succession and a common seal, and power to sue and be sued in their
corporate name. As circumstances from time to time require, they may
pay over funds in their hands to the churchwardens to be applied to the
defined ecclesiastical purposes of the parish generally or to one or
more of them specifically, due regard being had to any particular
directions of the donors. Funds not so paid over may be invested in
government or real securities and accumulated, with a view to the
capital or income being applied at a subsequent time. At least once a
year the trustees must lay before the vestry all accounts and
particulars of their receipts and expenditure during the preceding year,
and of the balance of funds in their hands.[151]
7. The appointment and duties of the parish clerk vary in old and new
parishes, and depend in some cases on custom. In old parishes the office
is a freehold, and the right of appointment usually rests with the
incumbent, who can exercise it even when the living is sequestrated
owing to his bankruptcy; but in case of his being under suspension, it
devolves on the curate in charge. The right, however, may by custom
belong to the parishioners in vestry. An old writer compared the parish
clerk to a bat, as being half-bird, half-beast, or half-clerical and
half-lay, though he considered that his clerical wings outbalanced his
lay body. But it is now held that the office is temporal, and not
spiritual.[152] A person in holy orders may, however, with the consent
of the bishop, be appointed parish clerk under the Lecturers and Parish
Clerks Act, 1844, and, if so appointed, he is removable in the same way
as a stipendiary curate. The same Act provides for the suspension or
removal by the archdeacon, of a parish clerk not in holy orders, who has
been guilty of neglect or misbehaviour in his office, or of misconduct
which renders him unfit to hold it.[153] In all new ecclesiastical
parishes, on the other hand, the appointment of the clerk rests with the
incumbent, and, in the case of churches and chapels provided under the
Church Building Acts of 1818 and 1819, is made annually; while in the
case of those provided under the New Parishes Acts of 1843, 1844, and
1856, the clerk does not vacate his office at the end of each year, but
may at any time be removed by the incumbent, with the consent of the
bishop, for misconduct.[154]
8. There is no universal rule as to the appointment, duties, and tenures
of office of the sexton or sacristan. Where, in accordance with the
etymology of his name, his duties are confined to the custody of the
sacred vessels and vestments, the care and cleaning of the church, the
opening and closing of the doors, and the ringing of the bells, his
appointment, in the absence of a contrary practice, will naturally rest
with the churchwardens. Where, on the contrary, he has only to do with
the churchyard and grave-digging, his appointment will be presumed to be
in the hands of the incumbent. If, however, he is charged with both sets
of functions, the incumbent and the churchwardens jointly will be
presumed to have the right of appointing him. On the other hand, in some
few ancient parishes he is elected by the vestry. The office may be held
by a woman, and in some places is a freehold for life; but usually it is
held during pleasure, and the power of removal rests in the same hands
as that of the appointment.[155] In new ecclesiastical parishes the
sexton is to be appointed by the incumbent, and, with the consent of the
bishop, is removable by him for misconduct.[156]
9. Another old parochial office was that of beadle--the bidder, crier,
or messenger of the parish--whose duty was to attend in that capacity on
the incumbent, churchwardens, and vestry. His position and duties were
rather civil than ecclesiastical, but the vestry could sanction his
salary being paid out of the church rate. He was also frequently
employed to keep order in the church and churchyard during Divine
service; and the Church Building Act, 1831, enumerates the payment of
the salaries of beadles and pew-openers as well as of the clerk, as one
of the expenses incidental to the performance of Divine service, to be
paid out of the rents of pews in churches built under that Act.[157]
10. The organist and choristers, and any other lay officials beyond
those already mentioned, who may be employed in or about the church or
churchyard, are under the exclusive control and direction of the
incumbent, and, as a rule, are appointed by him. But in some parishes
the organist is, or was, when paid out of the church rate, selected by
the vestry. Whether he is appointed by them or by the incumbent, his
office is not a freehold; but he as well as the other officials now
under consideration may be dismissed from office on proper notice, the
length of which should be laid down at the time of appointment. If no
time is then fixed, the proper length of notice may, in case of dispute,
be a very difficult question to decide. It will depend in part on the
terms of the engagement, and of the salary. If the salary be so much per
month, probably one month's notice of dismissal would suffice. Not less
than three months' notice would be requisite if the salary is so much
per quarter; while if the salary is an annual sum, even this notice
might perhaps be insufficient. Whatever be the mode of appointment and
terms of the engagement of the organist, the incumbent has, within the
bounds of legality, and so far as he does not voluntarily surrender it,
the absolute right to control the use of the organ and the performance
of music in the church, both during Divine service and at other
times.[158] But, unless he is prepared to defray the cost out of his own
pocket, this right must, of course, in practice, be limited by the
extent to which the parishioners or congregation are willing to give the
necessary financial support to his arrangements.
11. The old rank of reader, which was formerly one of the minor orders,
was temporarily revived after the Reformation to supplement the lack of
clergy, and seems to have been continued in some remote districts till
the close of the eighteenth century.[159] It has in recent times been
resuscitated as a lay office.[160] Moreover, the practice has of late
years increased of the lessons being read in church by laymen at the
request of the incumbent, without the express sanction of the bishop.
But an incumbent ought not, without that sanction, to permit a layman to
take any other part in any service in a consecrated building. The
officiating of a layman in an unconsecrated building does not stand
quite on the same footing; but, as a matter of Church order and
regularity, the approval of it by the bishop should be procured, through
the layman being expressly authorised as a lay reader, or in some other
manner, especially if the building is licensed for Divine worship. All
such laymen must, of course, act with the consent, and under the
direction, of the incumbent of the parish.
12. Laymen and women engaged in less formal kinds of parochial work
(among which is the visiting of the poor and sick contemplated by Canon
13 as one of their occupations on Sundays and other holy days) are
responsible to the incumbent alone, and should act with his permission
and under his directions. The Sunday schools, with their superintendents
and teachers, are under his sole control. His powers with regard to the
religious instruction given in any Church elementary school in the
parish depend upon the terms of the trust-deed or scheme (if any)
regulating the school, and upon the subsection in the Education Act,
1902, that religious instruction given in a public elementary school not
provided by the local authority shall, as regards its character, be in
accordance with the provisions (if any) of the trust-deed relating
thereto, and shall be under the control of the managers; provided that
nothing in the subsection is to affect any provision in a trust-deed for
reference to the bishop or superior ecclesiastical or other
denominational authority, so far as such provision gives to the bishop
or authority the power of deciding whether the character of the
religious instruction is or is not in accordance with the provisions of
the trust deed.[161]
13. Parochial church councils, where they exist, like ruridecanal and
diocesan conferences, rest at present on a purely voluntary basis.
Whatever, therefore, may be their advantages, and however desirable may
be their incorporation into our regular Church system, the parish clergy
stand as yet in no legal relation to them.
Footnotes
[133] (1818) 58 Geo. 3, c. 69; (1837) 7 Will. 4 & 1 Vict. c. 45; (1869)
32 & 33 Vict. c. 41, ss. 7, 19; Dawe _v._ Williams (1824) 2 Add. 130,
139; Ormerod _v._ Chadwick (1847) 16 M. & W. 367; 16 L. J. M. C. 143;
Burnley _v._ Methley Overseers (1859) 1 El. & El. 789; Rand _v._ Green
(1860), 6 Jur. N. S. 303; 9 C. B. N. S. 470; 30 L. J. C. P. 80.
[134] (1818) 58 Geo. 3, c. 69, s. 2; Wilson _v._ M'Math (1819) 3 Phill.
67; 2 B. & Ald. 241; Reg. _v._ D'Oyly (1840) 12 A. & E. 139; 4 Jur.
1056; R. _v._ Bp. of Salisbury (1901) 1 K. B. 573, 579, aff. 2 K. B.
225.
[135] 58 Geo. 3, c. 69 (commonly called Sturges Bourne's Act).
[136] Reg. _v._ Barrow (1869) L. R. 4 Q. B. 577.
[137] See § 3, and ch. v. § 5 (A), ix. § 4.
[138] 1 & 2 Will. 4, c. 60.
[139] Hubbard _v._ Penrice (1746) 2 Str. 1245.
[140] Butt _v._ Fellowes (1843) 3 Curt. 680.
[141] Stoughton _v._ Reynolds (1736) 2 Str. 1045; R. _v._ Bp. of
Salisbury (1901) 1 K. B. 573; aff. 2 K. B. 225.
[142] (1818) 58 Geo. 3, c. 45, s. 75; (1838) 1 & 2 Will. 4, c. 38, s.
25; (1843) 6 & 7 Vict. c. 37, s. 17; (1845) 8 & 9 Vict. c. 70, ss. 6, 7;
(1856) 19 & 20 Vict. c. 104, ss. 14, 15.
[143] (1838) 1 & 2 Will. c. 38, s. 16; (1845) 8 & 9 Vict. c. 70, s. 7.
[144] Canon 118; Bray _v._ Somer (1862) 2 B. & Sm. 374: 8 Jur. N. S.
716; Bremner _v._ Hull (1866) L. R. 1 C. P. 748; Reg. _v._ Sowter (1901)
1 K. B. 66; rev. _Ib._ 396. For further particulars as to the
qualifications and election of churchwardens of ancient parish churches
and the churches enumerated in the note to ch. i. § 6 above, see Sm.
Churchw. 22-43.
[145] Sm. Churchw. 34, 59-64.
[146] Stat. 13 Edw. 1 (_Circumspecte agatis_); Canon 85; ch. ix. § 3
below.
[147] Att.-Gen. _v._ Ruper (1722) 2 P. Wms. 125.
[148] Sm. Churchw. pt. iii. ch. i.-iii.; pp. 50-84.
[149] 23 & 24 Vict. c. 32. A clergyman can be proceeded against for
brawling either under that Act or in the Church courts as an
ecclesiastical offender.
[150] Viz. "the building, rebuilding, enlargement, and repair of any
church or chapel, and any purpose to which by common or ecclesiastical
law a church rate is applicable." (1868) 31 & 32 Vict. c. 109, s. 9.
Besides necessary church repairs, sacramental bread and wine, and other
articles needed for Divine service, a church rate could, with the
consent of a majority of the vestry, be applied to provide an organ and
other church furniture, and to pay the salaries of organist,
pew-openers, and other lay officials, but not the stipend of the
incumbent or a curate. 1 Burn, 388 _a_, _b_.
[151] (1868) 31 & 32 Vict. c. 109, s. 9.
[152] Canon 91; The Parish Clerk's Case (1610) 13 Co. Rep. 70; Pinder
_v._ Barr (1854) 4 E. & B. 105; Lawrence _v._ Edwards (1891) 1 Ch. 144;
2 Ch. 72.
[153] 7 & 8 Vict. c. 59.
[154] (1819) 59 Geo. 3, c. 134, s. 29; (1856) 19 & 20 Vict. c. 104, s.
9; Reg. _v._ Ossett (1851) 16 Q. B. 975; Jackson _v._ Courtenay (1857) 8
E. & B. 8.
[155] Ile's Case (1671) 1 Ventr. 153; R. _v._ Thame (Churchwardens)
(1719) 1 Str. 115; Olive _v._ Ingram (1739) 2 Str. 1114; R. _v._ Taunton
St. James (Churchwardens) (1776) 1 Cowp. 413; R. _v._ Minister, &c., of
Stoke Damerel (1836) 5 A. & E. 584, 590, sq.; Cansfield _v._ Blenkinsop
(1849) 4 Ex. 234.
[156] (1856) 19 & 20 Vict. c. 104, s. 9.
[157] 1 & 2 Will. 4, c. 38, s. 16.
[158] Wyndham _v._ Cole (1875) 1 P. D. 130.
[159] 3 Burn, 452; Strype's Annals, vol. i. ch. xiii., XXX. pp. 178-81,
345, sq.; (ed. 1824, pp. 265-69, 514-16); Martyn _v._ Hind (1776) 2
Cowp. 437, 438-39, 444.
[160] Particulars as to readers and their powers and functions in
consecrated buildings and elsewhere will be found in another Handbook of
the present Series: _Lay Work and the Office of Reader_, by Dr.
Yeatman-Biggs, afterwards made Bishop of Worcester.
[161] 2 Edw. 7, c. 42, s. 7 (6).
CHAPTER V
DIVINE SERVICE
1. Every deacon and priest before his ordination, and, as mentioned
above, every incumbent, before he is admitted to his benefice, and every
stipendiary curate, on entering upon his curacy, declares that in public
prayer and administration of the sacraments he will use the form
prescribed in the Book of Common Prayer and none other except so far as
ordered by lawful authority.[162] This uniform use is enjoined by the
Acts of Uniformity and the Prayer Book itself, which has legal force as
part of the Act of 1662, and by the 14th Canon, except so far as
modifications are permitted under the Act of Uniformity Amendment Act of
1872, which, like the Act of 1662, was passed at the instance of
Convocation.[163] No clergyman, therefore, may alter, add to, or
diminish the form of worship therein prescribed, including the
lessons.[164] The expression "lawful authority" occurs in the Act of
1662, which directs that in those portions of the Prayer Book which
relate to the King, Queen, or Royal progeny the names shall be altered
from time to time as occasion requires according to the direction of
lawful authority. This is explained by Bishop Gibson to mean, according
to practice, the authority of the Sovereign in Council.[165] The
archbishops and bishops have no authority, combined or singly, to order
modifications of or additions to the forms of Divine service, except to
the extent permitted by the Act of 1872. The Preface to the Prayer Book
"Concerning the Service of the Church" expressly contemplates that in
lieu of diversity of use in different dioceses and parts of the realm,
all shall henceforth have but one use. The only function of the prelates
which it recognises in the matter is the power of the bishop to set at
rest any doubts which may arise as to the construction of the Prayer
Book and the proper practice thereunder, with liberty to him, if he is
himself in doubt, to refer to the archbishop. But the Act of 1872
permits (_a_) the use, upon a special occasion approved by the ordinary,
of a special form of service approved by him, and containing nothing
except anthems or hymns, which does not form part of the Holy Scriptures
or Book of Common Prayer, and also (_b_) the use, on any Sunday or holy
day, as supplementary to the services prescribed by the Prayer Book, of
an additional form of service, approved by the ordinary as to its form
and mode of use, and containing no portion of the Communion Service and
nothing except anthems or hymns which does not form part of the Holy
Scriptures or Book of Common Prayer. The same Act authorises the use of
a shortened order for Morning or Evening Prayer on any day except
Sunday, Christmas Day, Ash Wednesday, Good Friday, and Ascension Day;
and the use of the Morning Prayer, the Litany, and the Communion
Service, in varying order as separate services,[166] and the saying of
the Litany after the third collect in Evening Prayer, without prejudice
to any legal powers vested in the ordinary, and either with or without a
sermon, lecture, or homily; and also the preaching of a sermon without
being preceded by a service appointed by the Prayer Book, provided that
it be preceded by a service authorised by the Act, or by a collect from
the Prayer Book with or without the Lord's Prayer.
2. The Prayer Book contains an "Order for Morning and Evening Prayer
daily to be said and used throughout the year"; and under the prefatory
heading "Concerning the Service of the Church," it is directed that all
priests and deacons are to say daily the Morning and Evening Prayer
either privately or openly, not being let by sickness or some other
urgent cause. And the curate who ministers in a parish church, being at
home and not being otherwise reasonably hindered, is to say the same in
the church, after summoning the people by a bell to come and hear God's
word and pray with him. A bishop, however, has no power to enforce daily
services;[167] and daily service has been held not to be requisite under
a trust to perform the service "in strict and literal accordance with
the order of the Book of Common Prayer."[168] But the Act of Uniformity
of 1662, s. 1, expressly enacts that the morning and evening prayers
contained in that Book shall, on every Lord's Day, and on all other days
and occasions, and at the times therein appointed, be openly read by
every minister or curate in every church, chapel, or other place of
public worship.[169] And the 14th and 15th Canons direct that the Common
Prayer shall be said or sung distinctly and reverently upon such days as
are appointed to be kept holy by the Prayer Book and their eves, and
that the Litany shall be said or sung when and as prescribed in the
Prayer Book; and in particular on Wednesdays and Fridays weekly, though
they be not holy days, the minister at the accustomed hours of service
is to resort to the church and say the Litany after warning the people
by tolling a bell. A later enactment empowers the bishop, at his
discretion, to order two full services (each, if he so directs, to
include a sermon or lecture) on every Sunday throughout the year or any
part of the year in the church or chapel of any benefice, whatever its
annual value or population, and also in certain cases where a benefice
is composed of more than one parish or chapelry, in the church or chapel
of each of them.[170] And where he considers that the population
requires it, he may direct the celebration on Sundays and the great
festivals of a third service, being either the Morning or Evening
Service with a third sermon, and for the performance of this third
service may insist on a curate being nominated, whose salary is to be
provided by the pews being specially let for the service or by
subscription.[171] It is rarely necessary in the present day to put in
force these powers, since in most parishes the number of services
considerably exceeds the legal _minimum_.
3. Under the rubrics following the Nicene Creed and at the beginning of
the Marriage Service, as modified by the Parish Notices Act, 1837,[172]
the minister is alone authorised to give out notices during Divine
service; and he may not publish either during or after Divine service
notices of proceedings in ecclesiastical courts, or of vestry meetings,
or of any other matter except banns of matrimony, announcements of the
Communion, and of holy days and fasting days during the ensuing week,
and of anything else prescribed by the Prayer Book or enjoined by the
King or the ordinary. Other notices must be put up at or near the church
door. Banns are to be published at the time of Morning Service (or of
Evening Service if there is no Morning Service) immediately after the
Second Lesson. Other lawful notices are to be given at the close of the
Nicene Creed.
4. The only rubrical provision for the collection of money during Divine
service is at the time when the offertory sentences are read, whether a
Communion follows or not. The money is then to be received by the
deacons, churchwardens, or other fit person,[173] and is to be disposed
of to such pious and charitable uses as the minister and churchwardens
think fit; wherein if they disagree, it is to be disposed of as the
ordinary shall appoint. Money collected at other times during Divine
service ought to be brought up to the minister to be placed on the Holy
Table, like the offertory money; but, unlike this, it is under the sole
control and disposal of the incumbent; unless it is collected for church
expenses or repairs for which the churchwardens are responsible, in
which case it should be handed over to them.[174] And if the purpose for
which the collection is made is announced beforehand, there is, of
course, a legal as well as moral obligation to apply the money collected
to that purpose. Offertory alms collected in a chapel are at the
disposal of the incumbent and wardens of the parish church.[175]
5. Questions arose during the last century as to (_A_) the legality of
certain ornaments of the Church, (_B_) the dress of the clergy, and
(_C_) ceremonies in connection with Divine service, and especially with
the Holy Communion; having regard, among other considerations, to the
Ornaments Rubric in the Prayer Book. According to the legal decisions on
these questions:[176] (_A_) The Holy Table must be of wood and,
according to Canon 82, should be covered during Divine service with a
carpet of silk or other decent stuff, and with a fair linen cloth at the
time of the ministration.[177] A crucifix, except as a mere
architectural decoration or as part of an historical representation of
the Crucifixion, is illegal; but a cross is legal, provided it be not
upon or in actual or apparent contact or connection with the Holy
Table.[178] Candlesticks and vases of flowers are legal even in such
contact or connection,[179] and so are pictures or sculptures of an
historical or allegorical character, whether in a reredos or elsewhere
in the church, except those known as the Stations of the Cross, which
have been held liable to superstitious abuse.[180] The legality of
isolated figures, whether painted or sculptured, depends on whether from
their character and position there is no likelihood of their being
superstitiously reverenced.[181] A credence table is legal and
proper.[182] A second Holy Table is only legal if placed in a part of
the church closed in, by lattice work or otherwise, as a separate place
of worship for services attended by few worshippers.[183] Chancel gates
are permitted, if required for the protection of the chancel when the
church is accessible for private prayer; but they must be always kept
open during Divine service.[184] The erection of a baldacchino or canopy
over the Holy Table is not permissible.[185] But the introduction of
legal ornaments and additions into a church will not ordinarily be
sanctioned without the approval of the parishioners, expressed by a
resolution of the vestry.[186] (_B_) The legal attire of the ministering
clergy at the Holy Communion, as well as in other ministrations, has
been decided to be that laid down by the Advertisements of 1566, which
are followed in Canons 24, 25, and 58, and prescribe the wearing of a
surplice with the proper hood of the university degree (if any); except
that in cathedral and collegiate churches the celebrant and gospeller
and epistler shall wear copes. The rubric of the First Prayer Book of
Edward VI., had directed that the celebrant should wear a white albe
plain with a vestment (_i.e._ a chasuble) or cope, and any assistant
priests or deacons should wear albes with tunicles.[187] Stoles, as
distinguished from the scarves of chaplains, have no legal
authority.[188] A biretta (the foreign form of a college cap) must not
be worn during the Communion Service.[189] In preaching (except,
possibly, during the Communion Office) the surplice or the black gown
are equally legal.[190] (_C_) The ceremonial use of incense and
processions with lighted candles are illegal,[191] but a celebration of
Holy Communion with two lighted candles on or above the table is
permissible.[192] The administration of the mixed chalice is legal, but
the wine and water must not be ceremonially mixed during the
service.[192] Wafers, not consisting of bread "such as is usual to be
eaten," have been held illegal.[193] The singing of the Agnus Dei or of
any other hymns during the administration of the elements is
permissible.[194] A minister may stand either on the north or the west
side of the table during the service; but not so as to hide the manual
acts from the people.[192] He must not kneel or bow before the elements
during the Prayer of Consecration, or elevate them above his head during
administration; nor may he use the sign of the cross during the
absolution or benediction.[195] Ablutions of the paten and chalice
after the benediction, being no part of the service, are not
illegal.[196] Reservation of any parts of the consecrated elements at
the close of the Communion Service is illegal.[197]
6. No minister is to refuse or delay to christen according to the form
of the Book of Common Prayer any child brought to him to the church for
that purpose on a Sunday or holy day, after notice given to him
overnight or in the morning before the beginning of Morning Prayer. The
ceremony should take place immediately after the second lesson at either
Morning or Evening Prayer. The congregation can then testify the
receiving of the newly baptized into the number of Christ's Church, and
all present are reminded of their own profession made to God in their
baptism. But if necessity requires, children may be baptized on any
other day.[198] The law is the same as regards children of Church people
and of Dissenters, and as regards legitimate and illegitimate children.
If a minister is duly informed of the weakness and danger of death of an
unbaptized infant in the parish, and is desired to go and baptize him,
he must not refuse or so delay that the infant dies through his fault
unbaptized.[199] But in every other case a male child must have two
godfathers and one godmother, and a female child one godfather and two
godmothers; and a minister will, of course, not admit as a sponsor a
person notoriously leading an immoral life or otherwise manifestly unfit
for the office. Godparents must have received the Holy Communion, and a
father cannot be godfather for his own child.[200] In 1865 the
Canterbury Convocation, with the Royal licence, framed a new canon
repealing this prohibition; but the canon was never ratified by the
Crown, nor was any similar canon passed by the York Convocation. The
Form for the ministration of Private Baptism in houses contains a
service for the public reception in church, as one of the flock of true
Christian people, of a child who, in case of emergency, has been
baptized at home, and also a formula of conditional baptism to be
substituted for the words of actual baptism in cases where there is a
doubt whether the essential parts of the Sacrament were observed in the
private performance of the ceremony. The rubrics direct immersion in the
case of the public baptism of infants, if the godparents certify that
the child can endure it, and affusion, if they certify that the child is
weak. Naturally, affusion alone is directed in the case of private
baptism. In the case of the baptism of adults, immersion or affusion are
directed as alternatives, the discretion being left with the minister
and not with the godparents. The rubric directs that, before adult
persons are to receive baptism, not less than one week's previous
notice shall be given to the bishop, or a person appointed by him, by
the parents or some other discreet persons, in order that due care may
be taken for their examination as to their knowledge of the principles
of the Christian religion, and that they may be exhorted to prepare with
prayers and fasting for the reception of that holy Sacrament. The
baptismal services throughout contemplate the performance of the
ceremony by a priest; but in the Form of Making of Deacons a deacon is
expressly authorised to baptize infants in the absence of the priest.
Lay baptism is valid in case of emergency; but, of course, a layman is
not at liberty to use the baptismal service.
7. The Holy Communion is to be administered in every parish church and
chapel so often and at such times as that every parishioner may
communicate at least twice in the year (whereof the feast of Easter
shall be one).[201] Warning is to be given to the parishioners "publicly
in church at Morning Prayer" on the Sunday before every time of
administering the Holy Communion,[202] and the present rubric requires
that so many as intend to be partakers of the Sacrament shall signify
their names to the curate, meaning the incumbent, at least some time the
day before. In the First Prayer Book of Edward VI. this rubric ran: "So
many as intend to be partakers of the Holy Communion shall signify
their names to the curate overnight or else in the morning afore the
beginning of Matins or immediately after."[203] The incumbent must not
deny the Sacrament, without lawful cause, to any person that devoutly
and humbly desires to receive it.[204] But he is directed both by the
Canons and by the rubric to repel from Communion, until repentance, open
and notorious evil livers, and those who have wronged their neighbours
by word or deed so as to offend the congregation, and those between whom
he perceives malice and hatred to reign. The Canons add to the list
common and notorious depravers of the Book of Common Prayer, or the
Ordering of Bishops and Priests, or the Thirty-nine Articles, or
depravers of the sovereign authority of the King in causes
ecclesiastical, and those who refuse to kneel when receiving the
Communion or to be present at public prayers according to the order of
the Church of England. When any one is so repelled, the incumbent must
report the matter to the ordinary within fourteen days, or sooner if
required by the offending person or by the ordinary himself, and must
obey his order and direction in reference to it. The rubric directs that
the ordinary shall proceed against the offender according to the Canon,
that is to say, by such ecclesiastical censures and punishments as can
be inflicted.[205] In Jenkins _v._ Cook[206] the meaning of a "common
and notorious depraver of the Book of Common Prayer" was discussed, and
the Judicial Committee of the Privy Council held that it did not include
a person who omitted certain parts of the Bible from his family reading
because he held them, in their generally received sense, to be
incompatible with religion or decency. But while they assumed that being
a depraver of the Prayer Book would be as valid a cause for denying
Communion as being an open and notorious evil liver, they did not
actually decide whether the Canons, which do not as such bind the laity,
can of their own authority prescribe causes, sufficient or lawful, for
denying Communion within the meaning of the Act of 1547.[207] It would
not be expedient in the present day for an incumbent, under Canons 28
and 57, to refuse the Communion to persons merely because they came from
outside his parish to communicate in his church instead of in their own
parish church. Nor can he lawfully refuse it to a person who
occasionally attends or even communicates in a dissenting place of
worship.[208] The question of admitting to Communion persons who have
been baptized in another communion or Christian body, and have not been
confirmed in the Church of England, is one of more difficulty. The
rubrics in the Communion Office itself are silent on the subject. But
the exhortation at the close of the Public Baptism of Infants directs
that the child shall be brought to the bishop to be confirmed without
delay after a sufficient course of instruction. The rubric at the close
of the Baptismal Service for Adults declares the expediency of every
person so baptized being confirmed by the bishop with all convenient
speed after baptism, that so he may be admitted to the Communion; and
the rubric at the end of the Order of Confirmation prescribes that there
shall none be admitted to the Communion until such time as he be
confirmed, or be ready and desirous to be confirmed. These rubrics must
be read together, and are clearly framed with a view to persons baptized
in the Church of England. In fact the Prayer Book nowhere contemplates
the case of a person who, having been validly baptized in another
communion or body, afterwards joins the Church of England, or the case
of a person belonging to some other communion who, while temporarily
resident in England, desires, without forsaking his own communion, to
communicate with his fellow Christians of our Church. As the rubrics
stand, such persons, unless and until actually confirmed, have no right
to require a clergyman to admit them to Communion, and he commits no
legal offence by refusing to do so. On the other hand, a considerable
number of such persons do, as a matter of fact, communicate in our
Church without having been confirmed or being desirous to be confirmed;
and a clergyman who admits them, in the absence of any direction of the
bishop to the contrary,[209] may be acting in a wise and Christian
manner.
8. The rubrics of the Communion Office prescribe that a sermon or one of
the authorised homilies shall follow the Nicene Creed whenever that
portion of the office is used, whether a Communion actually takes place
afterwards or not. And the 45th Canon enjoins the preaching of one
sermon every Sunday of the year. The power of the bishop to require a
second and even, in certain cases, a third sermon has already been
noticed.[210] But, inasmuch as the Prayer Book contains no direction
that sermons shall follow Matins or Evensong, such sermons may be
regarded as in the nature of separate or additional services. The 55th
Canon prescribes that all sermons, lectures, and homilies shall be
preceded by what is called the Bidding Prayer and the Lord's Prayer. But
this rule is not in practice observed in the case of sermons in the
middle of the Communion Service or immediately following some other
service. Under the Act of Uniformity Amendment Act of 1872, Morning and
Evening Prayer, the Litany, and Holy Communion may any of them be used
with or without the preaching of a sermon or lecture or the reading of a
homily; and a sermon or lecture may be preceded either by one of the
services appointed by the Prayer Book or by a service authorised by that
Act, or by a Collect taken from the Prayer Book, with or without the
Lord's Prayer.[211]
9. Regular catechising is enjoined both by the Canons and by the Prayer
Book. But the direction in the 59th Canon, that it shall take place for
half-an-hour or more before Evening Prayer, is superseded by the rubric
at the end of the Catechism, which requires the incumbent of every
parish diligently upon Sundays and holy days, after the second lesson
at Evening Prayer, openly in the church to instruct and examine so many
children of his parish sent to him as he shall think convenient, in some
part of the Catechism.
10. The Churching of Women is regulated by the rubrics at the
commencement and close of the service for the occasion in the Prayer
Book. It is contemplated as the first service in which a woman takes
part after recovery from childbirth; but no specific time is prescribed
for it beyond the recommendation that she should receive the Holy
Communion if there be a Communion. In former times a woman was not to be
churched after an illegitimate birth unless she had previously done
penance or acknowledged her fault before the congregation at the time of
her churching. Since penance has fallen into disuse, a clergyman must
exercise his own discretion in such cases; but he will, of course,
neither church nor admit to Communion a woman who impenitently continues
a sinful life. The rubric directs that "accustomed offerings" shall be
offered at a churching, but their amount is not regulated by any general
or well-established rule.[212]
Footnotes
[162] Ch. ii. § 6 (i.); ch. iii. § 1; (1865) 28 & 29 Vict. c. 122, ss.
1, 4-8.
[163] (1559) 1 Eliz. c. 2; (1662) 14 Cha. 2, c. 4; (1872) 35 & 36 Vict.
c. 35; Westerton _v._ Liddell (1857) Moore's Special Report, 187; Martin
_v._ Mackonockie (1868) L. R. 2 P. C. 365, at p. 383; 38 L. J. Eccl. 1,
at p. 11.
[164] Newbery _v._ Goodwin (1811) 1 Phill. 282.
[165] Gibs. Cod. 280; see note to ch. ii. § 6 (i.) above.
[166] As to the normal order independently of the Act, see the Rubrics
and note to § 7 below.
[167] Cripps, 576.
[168] _Re_ Hartshill Endowment (1861) 30 Beav. 130.
[169] This applies only to a church served by a distinct minister, and
not where there are two churches in one parish. But even in such a case
the incumbent has no right wholly to close one church and hold all the
Sunday services in the other; Rugg _v._ Bp. of Winchester (1868) L. R. 2
P. C. 223; 38 L. J. Eccl. 23.
[170] (1838) 1 & 2 Vict. c. 106, s. 80.
[171] (1818) 58 Geo. 3, c. 45, ss. 65, 66.
[172] 7 Will, 4 & 1 Vict. c. 45.
[173] The appointment of such person rests with the incumbent or
principal officiating minister; a clergyman in priest's orders is not a
"fit" person to collect the offertory money. Cope _v._ Barber (1872) L.
R. 7 C. P. 393.
[174] Sm. Churchw. 80; Reg. _v._ O'Neill (1867) 31 J. P. 742; Howell
_v._ Holdroyd (1897) P. 198. An incumbent often takes sole charge not
only of money collected in church but of money collected by appeals
within and outside the parish. He should in all such cases lodge it at a
bank on a separate account, and notify in his appeal that this will be
done. He cannot otherwise reasonably expect to be entrusted with money
by strangers; and if the money is mixed with his own, it may be
difficult or impossible to disentangle it in the event of his sudden
illness and death.
[175] Moysey _v._ Hillcoat (1828) 2 Hag. Eccl. 30, at p. 56.
[176] As stated in ch. i. § 4, these decisions are part of our Church
law, until reversed or altered by future judicial decisions or by
legislation. As intimated in the Preface, no opinion is here expressed
as to their correctness, or as to what the law ought to be on the points
with which they deal. It has been questioned whether in the Ornaments
Rubric and in the Act of Uniformity of 1559 (1 Eliz. c. 2), from which
it is derived, the mention of such ornaments as were in the Church by
authority of Parliament in the second year of Edward VI. refers to the
ornaments sanctioned by the First Prayer Book of Edward VI., the use of
which was enjoined by the Act of Uniformity of 1549 (2 & 3 Edw. 6, c.
1), or to those previously in use. It may be observed that this Act is
referred to as made in the second year of the reign in the later Act of
Uniformity of 1552 (5 & 6 Edw. 6, c. 1, s. 4), and the Book itself is
associated with that year in the 36th Article. In the Bp. of
Winchester's Case (1596) 2 Co. Rep. 40 a, the Payment of Tithes Act of
the same session (2 & 3 Edw. 6, c. 13) is referred to as made in the
Parliament holden in the second year of Edward VI. See also Westerton
_v._ Liddell (1857) Moore's Special Report, 156, 160; Martin _v._
Mackonockie (1868) L. R. 2 P. C. 365, at p. 390; Elphinstone _v._
Purchas (1870) L. R. 3 A. & E. 66, 94.
[177] Faulkner _v._ Litchfield (1845) 1 Rob. Eccl. 184; Westerton _v._
Liddell (1857) Moore's Special Report, 176-185. A variety of embroidered
cloths is permissible; _Ib._188. But the decision in _Re_ St. Luke's,
Chelsea (1904) P. 257, that marble is "stuff" within Canon 82, seems
open to question.
[178] Phill. Eccl. Law, 733-5; Liddell _v._ Beal (1860) 14 Moo. P. C. 1,
14; Durst _v._ Masters (1876) 1 P. D. 373; Ridsdale _v._ Clifton (1877)
2 P. D. 276; Bradford _v._ Fry (1878) 4 P. D. 93, 106; _Re_ St.
Matthias, Richmond (1897) P. 70; _Re_ St. Ethelburga (1900) P. 80; _Re_
St. John Baptist, Paignton (1905) P. 111.
[179] Liddell _v._ Beal, _ubi sup._; Elphinstone _v._ Purchas (1870) L.
R. 3 A. & E. 66.
[180] Boyd _v._ Phillpotts (1874) L. R. 4 A. & E. 297; (1875) 6 P. C.
435; Hughes _v._ Edwards (1877) 2 P. D. 361; _Re_ St. Mark, Marylebone
(1898) P. 115; Davey _v._ Hinde (1901) P. 95; (1903) P. 221.
[181] _Re_ St. Lawrence, Pittington (1880) 5 P. D. 131; _Re_ St. John,
Pendlebury (1895) P. 178.
[182] Westerton _v._ Liddell (1857) Moore's Special Report 187,8;
overruling Faulkner _v._ Litchfield (1845) 1 Rob. Eccl. 184.
[183] _Re_ Holy Trinity, Stroud Green (1887) 12 P. D. 199; _Re_ St.
Mark, Marylebone (1898) P. 115.
[184] _Re_ St. Agnes, Toxteth Park (1885) 11 P. D. 1; _Re_ St. John
Baptist, Timberhill (1895) P. 71.
[185] White _v._ Bowron (1873) L. R. 4 A. & E. 207; 43 L. J. Eccl. 7.
[186] Groves _v._ Rector of Hornsey (1793) 1 Hag. Cons. 188; Clayton
_v._ Deane (1849) 7 Not. of Ca. 46, 53; Vicar of Tottenham _v._ Venn
(1874) L. R. 4 A. & E. 221; Peek _v._ Trower (1881) 7 P. D. 21; Nickalls
_v._ Briscoe (1892) P. 269. See also note (1) on p. 146 below.
[187] Ridsdale _v._ Clifton (1877) 2 P. D. 276. See note (1) on p. 87.
[188] Elphinstone _v._ Purchas (1870) L. R. 3 A. & E. 66.
[189] Enraght's case (1881) L. R. 6 Q. B. D. 376; (1882) 7 A. C. 240.
[190] _Re_ Robinson: Wright _v._ Tugwell (1897) 1 Ch. 85.
[191] Sumner _v._ Wix (1870) L. R. 3 A. & E. 58; The Archbishops on
Incense and Lights in Processions: Hearing at Lambeth (1899) _Times_,
Aug. 1 (also published by Macmillan & Co., 1899, price 1s.)
[192] Read _v._ Bishop of Lincoln (1891) P. 9; (1892) A. C. 644.
[193] Ridsdale _v._ Clifton (1877) 2 P. D. 276. The First Prayer Book of
1549 prescribed unleavened wafers, but directed that each must be
divided and distributed in two or more pieces, in order, no doubt, that
the symbolism indicated in 1 Cor. x. 17 might not be wholly lost.
[194] Read _v._ Bishop of Lincoln, _ubi sup._ The legality of the usual
hymns and music has been long recognised; Hutchins _v._ Denziloe (1792)
1 Hag. Cons. 170.
[195] Martin _v._ Mackonockie (1868) L. R. 2 P. C. 365; (1869) L. R. 3
P. C. 52; Read _v._ Bishop of Lincoln, _ubi sup._
[196] Read _v._ Bishop of Lincoln, _ubi sup._
[197] Archbishops' Hearing at Lambeth (1900) _Times_, May 2. See ch.
viii. § 1.
[198] Canon 68; Prayer Book Rubric.
[199] Canon 69.
[200] Canon 29.
[201] Canon 21; Prayer Book Rubric.
[202] Canon 22.
[203] This rubric, with the substitution of "Morning Prayer" for
"Matins," was repeated in the Prayer Books of 1552 and 1559. On the
other hand, in our present Prayer Book, where the allusion to Morning
Prayer is omitted from the rubric, the intention that it shall, in the
ordinary course, precede the Holy Communion is indicated by the fact
that Matt. xxvi. and John xviii. have been removed from the Gospels for
Palm Sunday and Good Friday, where they had previously stood with the
succeeding passages which form our present Gospels for those days, and
have been made the Second Lessons at Morning Prayer. In the earlier
Prayer Books no special second lessons were assigned for those two days.
But as to the use of Morning Prayer, the Litany, and the Holy Communion
together, or in varying order as separate services, see now § 1 above.
The Prayer Book does not seem to contemplate Communion more than once in
the day. Where the Office is used oftener, it must be repeated entire on
each occasion.
[204] (1547) 1 Edw. 6, c. 1, s. 8.
[205] Canons 26, 27, 109; Prayer Book Rubric.
[206] (1875) L. R. 4 A. & E. 463, rev. on app. (1876) 1 P. D. 80.
[207] See p. 94 above, and note (2) on that page.
[208] Swayne _v._ Benson (1889) 6 Times Law Rep. 7.
[209] The passage in the statement _Concerning the Service of the
Church_ at the beginning of the Prayer Book, respecting the bishop
taking order for the appeasing of doubts concerning the manner of
understanding and carrying out the contents of the Book, might apply to
the treatment of such persons.
[210] § 2 above.
[211] 35 & 36 Vict. c. 35, ss. 5, 6.
[212] Phill. Eccl. Law, Pt. iii. ch. viii. pp. 645-7.
CHAPTER VI
MARRIAGE
1. With the exceptions mentioned in §7 below, the incumbent or minister
of the church of an ancient or new ecclesiastical parish, or of a church
or chapel specially authorised for the publication of banns and
solemnisation of marriages, is bound, in the case of persons who are
legally competent to be married in that church or chapel, to publish or
permit the publication of banns and solemnise or permit the
solemnisation of marriage, either after due publication of banns or
under a licence from the bishop or the Archbishop of Canterbury, and he
may consent to the solemnisation of the marriage upon a proper
registrar's certificate. If he improperly refuses publication of banns
or solemnisation of marriage, it is an ecclesiastical offence for which
he is liable to be punished under the Clergy Discipline Act, 1840, but
it is a question whether he would be liable to a civil action or an
indictment for the refusal.[213] On the other hand, a clergyman who
knowingly and wilfully solemnises a marriage in an unauthorised building
or outside the lawful hours (unless under special licence from the
Archbishop of Canterbury), or without due publication of banns (unless
under licence from him or from the bishop, or upon a proper registrar's
certificate), will be guilty of felony; and a marriage solemnised with
the knowledge of the parties thereto elsewhere than in an authorised
building or without publication of banns or the registrar's certificate,
unless with a sufficient licence, will be void.[214]
2. The ancient parish churches were the original places for the
publication of banns and solemnisation of marriages;[215] but the
churches of new ecclesiastical parishes now stand upon the same footing
in that respect as those of ancient parishes; and where a portion of an
ancient parish has been formed into a new ecclesiastical parish,
residents in the new parish are not deemed for those purposes to be
within the old parish.[216] Moreover, if, besides the church, there is a
public chapel in a parish, and the bishop thinks it necessary so to do
for the convenience of the inhabitants, he may grant a licence, with
such qualifications as he may deem fit, for banns and marriages in the
chapel, in the case of residence within a district specified in the
licence; subject to an appeal on the part of either patron or incumbent
to the archbishop of the province, who may confirm, revoke, or vary the
licence. But the licence will not preclude residents in the district
from having their banns published and marriages solemnised in the parish
church, if they prefer this course.[217] In the case of parishes having
no parish church in which Divine service is usually performed every
Sunday, and in the case of extra-parochial places, the church or chapel
of an adjoining parish or chapel may be resorted to for banns and
marriages.[218] But the bishop may license for banns and marriages in
extra-parochial places and chapelries any church or chapel situate
within their limits.[219] Where the church of a parish is pulled down or
disused for Divine service owing to being rebuilt or repaired, the
publication of banns and solemnisation of marriages may take place in
any building within the parish licensed by the bishop for the
performance of Divine service during the rebuilding or repair of the
church, or if there is no such building, then in the church of an
adjoining parish; or, if there is a consecrated chapel within the
parish, the bishop may direct that they shall take place within that
chapel, and may, with the consent of the incumbent, give directions
respecting the fees. Licences for marriages in the church of the parish
are to be construed as licences for marriages in the building, church,
or chapel in which they may be temporarily solemnised.[220] Where a
church has been rebuilt, repaired, or enlarged, and the position of the
Holy Table altered, the validity of marriages and other ceremonies is
not affected by the fact, if such is the case, of there having been no
re-consecration.[221]
3. Persons are legally competent to intermarry who (_a_) are of a legal
age to contract marriage, (_b_) are of sound mind, (_c_) have not at the
time a wife or husband living with whom they have contracted a marriage
which is recognised by English law and has not been declared void or
been dissolved by a divorce a _vinculo_ recognised by English law, and
(_d_) are not within the prohibited degrees of consanguinity or
affinity. A Christian and a non-Christian may be married in church, as
well as Christians of different denominations; and a clergyman cannot
make religion or absence of religion a ground for refusing to perform
the ceremony.[222]
4. The _minimum_ legal age for contracting marriage is fourteen for the
husband and twelve for the wife. In the case of minors the consent of
parents or guardians is necessary to their marriage after banns. In the
case of the marriage by licence of a minor who is not a widower or
widow, the consent to the marriage must be obtained from the father if
living, and if he is dead, from some one guardian of the minor (if any).
The mother, whether still a widow or remarried, is by law a guardian of
the minor unless she has been removed from the office by the High Court
of Justice. If she has been so removed and she remains a widow, and
there is no guardian in existence, her consent to the marriage is
necessary. Where no requisite consenting party is in existence, the
marriage may be solemnised without consent. If the father, mother, or
other guardian is of unsound mind, or abroad, or unreasonably withholds
consent, the Lord Chancellor or some other Chancery judge may on
petition make declaration that the marriage is proper, which will
supersede the necessity for the consent.[223] This consent of parents is
not required in the case of a minor who is illegitimate.[224] A
clergyman is not punishable who, without notice of the fact, solemnises
the marriage of a party under the lawful age, or the marriage of a minor
without the consent of parent or guardian; and the marriage of a minor
above the marriageable age without such consent, if it actually takes
place, is valid, and cannot be made void.[225] But the marriage of a
person under the lawful age can be declared void by him or her on
attaining that age. If, however, he or she then consents to the union,
no remarriage is necessary.[226]
5. The marriage of a person who is a lunatic or of unsound mind is void,
since such a person is not capable of consenting to the ceremony.[227]
On the same principle, if a person is forced to go through the ceremony
against his or her will, it is no marriage and void.[228]
6. Where a married person is absent and unheard of for seven years, a
presumption of death arises, and the other party marrying again after
the lapse of that time is not punishable for bigamy.[229] But the
remarriage will of course be void if it subsequently appears that the
absent party was actually alive at the time when it was solemnised.
7. A divorce decreed by a competent Christian tribunal between persons
domiciled in the country where it is obtained is regarded as valid in
England, if valid according to the law of that country.[230] But if a
person domiciled in England obtains a divorce in another country to
which he has gone for the purpose, that divorce will not be recognised
as legal here.[231] If persons obtain a dissolution of marriage by a
judicial decree in England, the Divorce Act, 1857, authorises them to
marry again after the time for appealing against the decree has expired,
or after the marriage has, on appeal, been declared to be dissolved, in
like manner as if the marriage had been dissolved by death. A person
divorced in England has, therefore, a legal right to require his or her
banns to be published and marriage to be solemnised in church in like
manner as if he or she were a widower or widow, with the exception that
no clergyman is by law bound to marry a person whose marriage has been
dissolved on account of the person's own adultery; but in case of his
refusal to do so he must permit any other clergyman willing to perform
the ceremony to use his church for the purpose.[232] In the banns in
such cases the person has to be described, if at all (see § 10), as
"unmarried." In the case of a person whose divorce elsewhere than in
England is valid according to English law, it would seem that although
he or she can legally remarry in England, yet a clergyman is under no
legal obligation to publish the banns or perform the ceremony or permit
it to be performed in his church. The practice as to granting marriage
licences in the case of divorced persons varies in different
dioceses.[233]
8. Although marriages duly solemnised in England according to English
law between foreigners, or between a foreigner and a British subject,
are valid throughout the British Empire, these marriages will not
necessarily be valid in countries to which the foreigners belong, unless
the legal requirements of these countries are complied with. Under
arrangements made with France and Belgium, the French Consul and the
Belgian Minister respectively will, on application, ascertain in any
particular case that the legal requirements of their country have been
complied with, and will furnish a certificate to that effect. No similar
arrangement has as yet been made with any other foreign State. The
following instructions have therefore been issued in the diocese of
London, and may, with advantage, be observed elsewhere, namely:--(_a_)
Where both parties to an intended marriage are foreigners, or one of
them is a foreigner of any nationality except French or Belgian, or is a
foreigner without a permanent residence in England, the marriage should
in all cases be by licence, which will only be granted if the chancellor
of the diocese is satisfied that the law of the country, to which the
foreigners concerned belong, is complied with.[234] (_b_) Where a
foreigner of French or Belgian nationality, whose permanent residence is
in England, is a party to an intended marriage after banns with an
English subject, the incumbent of the parish should require before
solemnising it the production of a certificate from the French Consul or
Belgian Minister, as the case may be, that all the legal requirements
necessary to the recognition of the marriage as valid in France or
Belgium have been complied with.
9. Marriages of persons within the prohibited degrees of kindred and
affinity specified in the Table set forth by the authority of Archbishop
Parker in the year 1563 are unlawful and void.[235] The degrees include
illegitimate as well as legitimate relatives and connections; but an
illegitimate _liaison_ with a woman or a man does not make her or him a
wife or a husband within the meaning of the Table. Thus a man cannot
marry his wife's illegitimate daughter or her half-sister, whether
legitimate or illegitimate; but he can marry the daughter or sister of a
woman with whom he has had unlawful connection.[236]
10. Under the Marriage Act, 1823, which slightly differs in language
from Canon 62 and the rubrics in the Prayer Book, banns must be
published on three Sundays (without an alternative of holy-days), and
after the second lesson (instead of after the Nicene Creed) in morning
service or in evening service if there is no morning service,[237]
according to the form of words prescribed by the rubric. A slight
deviation from this form will not invalidate the publication. A
clergyman is not obliged to publish banns, unless the parties, at least
seven days before the time required for the first publication, deliver
or cause to be delivered to him a notice in writing bearing the date of
the delivery, and setting forth their true Christian names and surnames,
and the house or houses of their respective abodes within the parish or
other district over which his authority as to banns and marriages
extends, and the time during which they have respectively dwelt or
lodged therein.[238] It is not imperative upon him to require this seven
days' notice, nor is he punishable for publishing the banns without it,
or previously to its expiration. But he is liable to ecclesiastical
censure if he dispenses with it, and, without due inquiry, publishes
banns between persons not entitled to have their banns published, and
then proceeds to marry such persons, even though his action was not
knowing and wilful.[239] Where the parties dwell in different parishes
or other definite districts for banns and marriages, the banns must be
published in the church or chapel of both parishes or districts.[240] If
one of the parties resides in Scotland, his or her banns may be
published there according to Scottish law or custom, in contemplation of
a marriage in England, after publication of the banns of the other party
here.[241] And if one of the parties resides in England and the other in
Ireland, the banns may be published in each country according to the law
or custom prevailing there, although it may differ from the manner
required in that part of the United Kingdom in which the marriage is to
be solemnised.[242] A person dwells where he eats, drinks, and sleeps.
He can only be said to dwell at the place where he temporarily sojourns
if he has no permanent abode. But he may dwell in more than one place,
if he has a permanent abode in each.[243] The true Christian names and
surnames, in which the banns are to be published, mean the full
Christian name and surname of each party, and the omission of part of
the Christian name, no less than the substitution of a wrong name, by
the fraud of both parties, will render the marriage void. But where a
party has abandoned his baptismal and family names and is known by
repute by different names, his banns ought to be published in his
acquired names; and publication in his original names, if intended to
deceive, will be improper, and will invalidate the marriage.[244] There
is no legal requirement that the status of the parties should be
published, and the description of the woman as a widow, when she was, in
fact, a spinster, is not an undue publication.[245] The banns must be
published from a book and not from loose papers, and after publication
must be signed by the officiating minister or some person under his
direction.[246] If, in the case of a minor, a parent or guardian openly
forbids the banns at the time of their publication by declaring or
causing to be declared his or her dissent to the marriage, the
publication will be void, and no marriage can be lawfully solemnised
upon it.[247] No other forbidding of the banns will render the
publication void. It can, at the utmost, only furnish a ground for
caution and inquiry as to further proceeding with the matter.
11. On the production and delivery of a certificate of the
superintendent registrar of births, deaths, and marriages of the
district in which a church or chapel is situate, that due notice of an
intended marriage in that church or chapel has been given, and also, if
one of the parties resides in another district, of a similar certificate
of the superintendent registrar of that district, the marriage may be
solemnised in such church or chapel, with the consent of the minister
thereof, but not otherwise, in like manner as after due publication of
banns. But a superintendent registrar cannot grant a licence for a
marriage in a church or chapel of the Church of England.[248]
12. A marriage may be solemnised, without banns or registrar's
certificate, under a licence of the bishop of the diocese or the
Archbishop of Canterbury for that purpose. A bishop's licence is granted
by the chancellor of the diocese, through the diocesan registry, for the
marriage of the parties in the church or chapelry of the parish in which
one of the parties has dwelt for fifteen days immediately preceding. The
licence, and also the form of affidavit leading to it, together with all
information on the subject, can be obtained either direct from the
diocesan registry or through a clergyman who is a chancellor's
surrogate. Before it is issued, an affidavit must be made before a
surrogate by one of the parties to the intended marriage that there is
no legal impediment to it, and that one of the parties has for fifteen
days immediately preceding the issue of the licence had his or her usual
place of abode in the parish or other district for banns and marriages,
in the church or chapel of which the marriage is to be solemnised.[249]
An ordinary or special licence can also be granted by the Archbishop of
Canterbury. His ordinary licence is issued under the same conditions and
has the same effect as a bishop's licence. But his special licence may
authorise the parties to be married in any church and at any time,
irrespectively of their places of residence and of the canonical hours.
On production of a licence for a marriage in a specified church, it is
the duty of the incumbent to perform the ceremony, unless he knows that
the licence has been fraudulently obtained; and it is not his business
to ascertain that one of the parties has actually resided within the
parish.[250] The requirement as to correctness of the names of the
parties is not so strict in the case of a licence as in the case of
banns; and the suppression in the affidavit leading to the licence of
part of the name of one of the parties for the purpose of concealment
has been held not to invalidate the marriage.[251] The grant of a
marriage licence is a matter of favour and not of right.[252]
13. The marriage must be solemnised in the church or chapel, or one of
the churches or chapels, in which the banns have been published, or in
the church or chapel named in the registrar's certificate or in the
marriage licence, within due time after the requisite preliminary
formalities have been gone through. It should not be solemnised on the
same day as the last publication of the banns; but if it does not take
place within three months after the complete publication of banns or
grant of the licence (as the case may be), it is not to be solemnised
until after the banns have been duly republished on three Sundays, or a
new licence has been duly obtained.[253] Similarly if a marriage
intended to be sanctioned by a registrar's certificate does not take
place within three calendar months after notice has been entered by the
superintendent registrar, it is not to be solemnised until a new notice
has been given and the entry duly made, and a certificate thereof given,
as required by the Marriage Act, 1836.[254] Except under the authority
of a special licence, it must be solemnised between the hours of eight
in the forenoon and three in the afternoon, but the incumbent may
appoint his own time for it within those hours.[255] It may be
solemnised by either a priest or a deacon,[256] but a clergyman cannot
solemnise his own marriage.[257] By canon and statute it must not take
place in a private place, but in a church or chapel, and in time of
Divine service, and before at least two witnesses. But the canonical
regulation as to marriages being solemnised during Divine service is
now, by custom, universally disregarded; and even a marriage celebrated
in the vestry of a church and in the presence of one witness only has
been held to be valid, though such a precedent ought not to be
followed.[258] A clergyman who knowingly and wilfully solemnises a
marriage elsewhere than in a church or chapel where banns may be
lawfully published, or at any other time than between eight in the
forenoon and three in the afternoon (unless by special licence from the
Archbishop of Canterbury), or without due publication of banns, unless
under a marriage licence or on a registrar's certificate, is guilty of
felony and punishable accordingly.[259]
14. On production of a certificate of marriage at a registry office, and
payment of the customary fees (if any), a clergyman may, if he sees fit,
read or celebrate the marriage service over the parties in his church;
but this is not to invalidate the previous marriage, nor is the reading
or celebration to be entered as a marriage in the parish register.[260]
There have, however, been cases of a subsequent marriage in church, not
only after a marriage before a registrar, but also after a marriage out
of England, the wife's maiden name being used on the occasion.[261]
15. The right to fees for publication of banns, giving a certificate of
banns where the marriage takes place in the other church in which they
were published, and the marriage itself, can only depend in ancient
parishes upon custom, presumed to date from time immemorial. A claim to
a marriage fee of 13s. (10s. for the rector and 3s. for the clerk) was
disallowed on the ground that the amount was unreasonably large and
could not have been paid in the time of Richard I.[262] In new
ecclesiastical parishes a claim for these fees can only be enforced if
they have been set out in a table of fees settled by the Church Building
Commissioners or their successors, the Ecclesiastical Commissioners,
under the Church Building Act, 1819, or by the chancellor of the diocese
under the new Parishes Acts, 1843 and 1856.[263]
16. Marriage register books in duplicate are furnished by the
Registrar-General to the incumbent of every church or chapel in which
marriages may be solemnised; and it is the duty of every clergyman who
solemnises a marriage to enter immediately afterwards in duplicate in
two of the books the prescribed particulars of the marriage; and the
entry is to be signed by him and by the parties married and by two
witnesses. An incumbent is to allow searches in all marriage register
books in his custody at a fee of 1s. for one year and 6d. for every
additional year to which the search extends, and 2s. 6d. for a
certificate (besides 1d. for the stamp). In every January and succeeding
third month he must send in to the superintendent registrar of births,
deaths, and marriages for the district, either directly or through a
subordinate registrar, a certified copy of all the entries made by him
since his last return, and will receive 6d. for every such entry. And
whenever a register book is filled, he is to send one copy to the same
registrar and keep the other copy with the registers of baptisms and
burials of his parish or chapelry.[264]
17. If persons residing in the parish present themselves for Holy
Communion as married, a clergyman has no right, (_a_) in the absence of
any ground for suspicion to the contrary, to demand proof of their
marriage before admitting them, or (_b_) to refuse to admit them on a
mere suspicion that they are not married and therefore living in sin. If
he refuses them Communion, he must be prepared to show either (_a_) that
they actually are not married, or (_b_) that he had good grounds for
believing this to be the case. He is bound to recognise as man and wife
persons who have been duly married according to the law affecting them
at the time of the marriage, whether ecclesiastically or civilly, and
whether in this country or elsewhere; provided that the law was
Christian and monogamous; for a marriage according to a law, custom, or
rite which contemplates polygamous unions is void in our law.[265] If
there is any doubt as to the validity of their marriage, he will always
be on the safe side in adopting the affirmative view and acting upon the
assumption of their being validly married. In the absence of evidence to
the contrary, the law will presume a valid marriage from the fact of
long reputation and cohabitation as man and wife, without actual proof
of the ceremony having taken place.[266] A marriage is legally valid if
performed according to the mode and with the formalities required by the
law of the place where it is solemnised.[267] But the capacity of the
parties to contract marriage is governed by the law of their domicile;
and therefore persons domiciled in this country between whom a marriage
would be illegal here, cannot contract a lawful marriage by going for
the purpose into another country where such a marriage is legal, and
there going through the ceremony.[268] Under the English common law a
marriage between British subjects in a foreign country or on board ship,
where no statute law binding upon them imposes any further formalities,
is recognised as valid in this country if solemnised without banns or
licence in the presence of a clergyman of the Church of England, whether
priest or deacon (not being one of the parties to it).[269] A marriage
between British subjects may also be solemnised outside the United
Kingdom in accordance with the regulations of the Foreign Marriage Act,
1892 (55 & 56 Vict. c. 23), before a person authorised thereunder to act
as a marriage officer, as it might have been before that Act under the
Acts thereby repealed.
Footnotes
[213] Davis _v._ Black (1841) 1 Q. B. 900; Reg. _v._ James (1850) 3 C. &
K. 167.
[214] (1823) 4 Geo. 4, c. 76, ss. 21, 22.
[215] _Ib._ s. 2.
[216] (1818) 58 Geo. 3, c. 45, ss. 27-29; (1819) 59 Geo. 3, c. 134, ss.
6, 16, 17; (1830) 11 Geo. 4 & 1 Will. 4, c. 18, s. 3; (1843) 6 & 7 Vict.
c. 37, s. 15; (1844) 7 & 8 Vict. c. 56; (1845) 8 & 9 Vict. c. 70, s. 10;
(1856) 19 & 20 Vict. c. 104, s. 11; Tuckniss _v._ Alexander (1863) 32 L.
J. Ch. 794; 11 W. R. 938; Fuller _v._ Alford (1883) 10 Q. B. D. 418.
[217] (1836) 6 & 7 Will. 4, c. 85, ss. 26-34; (1837) 7 Will. 4 & 1 Vict.
c. 22, ss. 33, 34; _Re_ St. George's Proprietary Chapel (1890) Tristr.
Cons. Judg. 134.
[218] (1823) 4 Geo. 4, c. 76, s. 23.
[219] _Ib._ ss. 3-5; (1857) 20 Vict. c. 19, s. 9; (1860) 23 & 24 Vict.
c. 24.
[220] (1823) 4 Geo. 4, c. 76, s. 13; (1824) 5 Geo. 4, c. 32; (1830) 11
Geo. 4 & 1 Will. 4, c. 18, s. 2.
[221] (1867) 30 & 31 Vict. c. 133, s. 12.
[222] Jones _v._ Robinson (1815) 2 Phill. 285; Reg. _v._ James (1850) 3
C. & K. 167.
[223] Canons 62, 100, 104; (1823) 4 Geo. 4, c. 76, ss. 8, 16, 17, read
with (1886) 49 & 50 Vict. c. 27, ss. 2, 4, 6, 7.
[224] Horner _v._ Liddiard (1799) 1 Hag. Cons. 337.
[225] (1826) 4 Geo. 4, c. 76, ss. 8, 23.
[226] Co. Litt. 79 a. b. n. (1).
[227] (1811) 51 Geo. 3, c. 37. A lunatic cannot marry until he has been
judicially declared sane; _Ib._
[228] Scott _v._ Sebright (1886) 12 P. D. 21; Geary, 23-27.
[229] (1861) 24 & 25 Vict. c. 100, s. 57.
[230] Harvey _v._ Farnie (1882) 8 App. Ca. 43.
[231] Dolphin _v._ Robins (1859) 7 H. L. C. 390; Briggs _v._ Briggs
(1880) 5 P. D. 163.
[232] (1857) 20 & 21 Vict. c. 85, ss. 57, 58; (1868) 31 & 32 Vict. c.
77. s. 4.
[233] As to marriage licences, see § 12 below.
[234] For an epitome of the foreign requirements for the validity of
marriages in Europe and North and South America, see A Summary of
Foreign Marriage Law, by Canon Glendinning Nash, 1903, published by the
S.P.C.K., price 6d.
[235] (1540) 32 Hen. 8, c. 38; Canon 99; (1835) 5 & 6 Will. 4, c. 54. As
to the Table, see Co. Litt. 235 a. n. (1); 2 Co. Inst. 683; Gibs. Cod.
411-415; 2 Burn, 439-50; Cardwell's Documentary Annals of the Church of
England, vol. i. pp. 316-20 (no. lxiv); Sherwood _v._ Ray (1837) 1 Moo.
P. C. 353, note on pp. 355-9.
[236] R. _v._ Brighton (1861) 1 B. & Sm. 447; Wing _v._ Taylor (1861) 2
Sw. & Tr. 278.
[237] 4 Geo. 4, c. 76, s. 2; Wynn _v._ Davies (1835) 1 Curt. 69, at p.
81.
[238] (1823) 4 Geo. 4, c. 76, s. 7.
[239] Canon 62; (1823) 4 Geo. 4, c. 76, s. 21; Priestley _v._ Lamb
(1801) 6 Ves. 421; Nicholson _v._ Squire (1809) 16 Ves. 259; Warter _v._
Yorke (1815) 19 Ves. 451; Wynn _v._ Davies (1835) 1 Curt. 69, at pp. 83,
84.
[240] (1823) 4 Geo. 4, c. 76, s. 2; (1837) 7 Will. 4 & 1 Vict. c. 22, s.
34; (1860) 23 & 24 Vict. c. 24.
[241] (1886) 49 & 50 Vict. c. 3.
[242] (1899) 62 & 63 Vict. c. 27.
[243] Macdougall _v._ Paterson (1851) 11 C. B. 755; 21 L. J. C. P. 27;
Att.-Gen. _v._ McLean (1863) 1 H. & C. 750; Alexander _v._ Jones (1866)
L. R. 1 Ex. 133; 35 L. J. Ex. 78.
[244] Tongue _v._ Allen (1835) 1 Curt. 38; (1836) 1 Moo. P. C. 90;
Midgley _v._ Wood (1860) 30 L. J. P. M. & A. 57; R. _v._ Billingshurst
(1814) 3 M. & S. 250. Where the woman was an illegitimate child, and had
the banns published in the name of her mother, which she had never in
fact borne, Sir John Dodson, in adjudging the marriage void, said that
he had some doubt whether, in the case of an illegitimate child, the
publication of the banns in the name of its mother, instead of the name
of notoriety and repute, would necessarily be such an undue publication
as would nullify the marriage. No doubt the name which a person under
such circumstances had fully acquired was that in which the publication
of banns should take place; but there might be a case in which, without
fraudulent intent, and from an innocent misapprehension of what was
correct, the name of the mother might be used instead of that
subsequently acquired; Tooth _v._ Barrow (1854) 1 Eccl. & Adm. 371, at
p. 374.
[245] Mayhew _v._ Mayhew (1812) 3 M. & S. 266.
[246] (1823) 4 Geo. 4, c. 76, s. 6.
[247] _Ib._ s. 8.
[248] (1836) 6 & 7 Will. 4, c. 85, ss. 1, 11, 15, 16; (1837) 7 Will. 4 &
1 Vict. c. 22, s. 36; (1856) 19 & 20 Vict. c. 119, s. 11.
[249] Canons 101-104; (1823) 4 Geo. 4, c. 76, s. 14.
[250] Tuckness _v._ Alexander (1863) 2 Dr. & Sm. 614; 32 L. J. Ch. 794.
[251] Bevan _v._ M'Mahon (1861) 30 L. J. P. M. & A. 61.
[252] Prince of Capua _v._ Count de Ludolf (1836) 30 L. J. P. M. & A. 71
(n.).
[253] (1823) 4 Geo. 4, c. 76, ss. 9, 19. It is safest to construe this
period as lunar months, _i.e._ twelve weeks; see 2 Bl. Comm. 141; Lacon
_v._ Hooper (1795) 6 T. R. 224.
[254] 6 & 7 Will. 4, c. 85, s. 15.
[255] (1886) 49 & 50 Vict. c. 14; Canons of 1888.
[256] Wats. ch. xiv. p. 146; Reg. _v._ Millis (1844) 10 Cl. & F. 534,
859, 860.
[257] Beamish _v._ Beamish (1861) 9 H. L. C. 274.
[258] Canon 62; (1823) 4 Geo. 4, c. 76, s. 28; Wing _v._ Taylor (1861) 2
Sw. & Tr. 278; 7 Jur. N. S. 737.
[259] (1823) 4 Geo. 4, c. 76, s. 21.
[260] (1856) 19 & 20 Vict. c. 119, s. 12.
[261] Phill. Eccl. Law. 629; Piers _v._ Piers (1849) 2 H. L. C. 331; 13
Jur. 569.
[262] Bryant _v._ Foot (1867) L. R. 2 Q. B. 161; aff. (1868) 3 _Ib._
497.
[263] 59 Geo. 3, c. 134, s. 11; 6 & 7 Vict. c. 37, s. 15; 19 & 20 Vict.
c. 104, ss. 14, 15.
[264] (1836) 6 & 7 Will. 4. c. 86, ss. 30, 31, 33, 35, 40-44, sch. (C);
(1837) 7 Will. 4 & 1 Vict. c. 22, ss. 25-29.
[265] Hyde _v._ Hyde (1866) L. R. 1 P. & D. 130; _Re_ Bethell (1888) 38
Ch. D. 220.
[266] Goodman _v._ Goodman (1859) 28 L. J. Ch. 745; The Breadalbane Case
(1867) L. R. 1 H. L. Sc. 182; Geary, 140-142.
[267] Ruding _v._ Smith (1821) 2 Hag. Cons. 371, at pp. 390, 391.
[268] Brook _v._ Brook (1861) 9 H. L. C. 193; 4 L. T. N. S. 93.
[269] Reg. _v._ Millis (1844) 10 Cl. & F. 534; 8 Jur. 917; Culling _v._
Culling (1896) P. 116.
CHAPTER VII
BURIAL
1. Every person dying in this country and not within the exceptions
mentioned below (§ 3) has a common law right to be buried in the
churchyard or burial ground of the parish in which he dies, by the
clergyman of the parish.[270] Canon 67 prescribes that besides the
passing bell (see Ch. VIII. § 1 below) there shall be rung after a
person's death no more than one short peal, and one other before the
burial and one other after the burial. If he dies out of his own parish,
the persons who are responsible for his burial may claim that he be
buried in his own parish.[271] If the clergyman or the persons having
charge of the ground refuse interment, the ecclesiastical court is the
proper tribunal to give relief, and it will compel the interment. The
High Court would also compel it by mandamus.[272] But a parishioner has
no right to be buried at a particular hour or (except in the case of a
private vault or a prescriptive right to a special spot) in a particular
part of the churchyard. The incumbent can fix his own time for the
funeral, and he and the churchwardens can exercise a discretion as to
where each body shall be buried.[273] And neither incumbent nor
churchwardens, nor both together, can make a valid sale or grant to
individuals or families of a grave-space in the churchyard for their use
in perpetuity. Any such attempted transaction is worthless in point of
law. An exclusive right of burial in not more than one-sixth part of
land given as an addition to a churchyard may be reserved by the donor
to himself, his heirs, and assigns in perpetuity,[274] but with this
exception no such exclusive right can be acquired in a spot within a
churchyard except by faculty.[275] A person not a parishioner and not
dying within the parish can only be buried in the parish churchyard,
otherwise than in a private vault, by the favour and with the permission
of the incumbent and churchwardens,[276] or under a faculty obtained
from the Ecclesiastical Courts.[277]
2. As regards the burial of bodies cast up on the shore of the sea or of
any tidal or navigable water, the rights and duties are the same as if
they were the bodies of parishioners of the parish in which they were
cast up.[278]
3. Persons are excluded from a right to Christian burial who have not
been baptized, or die excommunicate, or have committed suicide and been
found _felo-de-se_.[279] Under the Interments (felo de se) Act,
1882,[280] the remains of a person on whom a verdict of _felo de se_ has
been passed are to be buried under the direction of the coroner in the
ground in which they would be rightfully interred if there had been no
such verdict, and in one of the ways prescribed or authorised by the
Burial Laws Amendment Act, 1880.[281] A clergyman has no right to refuse
interment with the full Burial Service to the child of a
dissenter,[282] or a person who has only received lay baptism,[283] or
has died in a state of intoxication.[284] But a refusal to bury is no
offence if the clergyman has not received convenient warning of the
intended interment.[285]
4. The incumbent may refuse to allow a corpse to be carried into
church;[286] and, in the absence of a faculty or prescriptive right, the
absolute discretion as to permitting or refusing burial under the church
itself rests, in the case of an ancient parish church, with the rector,
whether lay or spiritual, as regards the chancel, and with the incumbent
as regards the rest of the church.[287] This discretion, for sanitary
reasons, is now practically in abeyance. And no burial is permissible
beneath a church built under the Church Building Acts or within twenty
feet of its external walls.[288]
5. A clergyman cannot make the burial of a parishioner conditional on
the payment of a fee.[289] And, in cases not provided for by some local
or general statute or by a legally established table of fees, any
subsequent right to recover a fee must depend on the immemorial custom
of the particular parish.[290] But on the burial of non-parishioners
special fees may be previously stipulated for;[291] and the
churchwardens may by custom have a right to a portion of the fees for
the benefit of the parish or the poor.[292] In the absence of such
custom it is reasonable that part of these fees should go to the
churchwardens for the benefit of the parish; since the burial of
non-parishioners diminishes the space available for the interment of
parishioners. Except where there is an ancient custom to that effect or
under the provisions of the Burial or Cemetery Acts, no fee is payable
to the incumbent of a parish in which a person dies who is buried in
another parish.[293] The Church Building Act, 1819, enabled the Church
Building Commissioners and their successors, the Ecclesiastical
Commissioners, to fix a table of burial and other fees for a parish with
the consent of the bishop and the vestry, and also for any extra
parochial place or district chapelry or parochial chapelry,[294] but
this power is not now usually exercised. The chancellor of the diocese
is empowered and required to fix the fees for burials and other offices
in the churchyards and churches of new parishes,[295] and, sitting as
ordinary in the consistory court, he can prescribe the fees to be
demanded in an ancient parish for any matter connected with burial which
is in excess of the bare common law right of burial, as, for instance,
for the privilege of being buried in a brick vault or in an iron
coffin.[296] Where a new ecclesiastical parish is formed, and has a
churchyard or burial ground, either of its own, or in which its
residents have a right to be interred, whether provided ecclesiastically
or by a burial authority, it becomes for the purposes of burial a
distinct parish from the mother parish, so that the residents in each
have no rights of burial in the churchyard or burial ground of the
other, and the incumbent of the mother parish has no right to fees in
respect of interments in the churchyard or burial ground of the new
parish.[297]
6. A clergyman may use the Burial Service in unconsecrated ground,[298]
and in cases where the Burial Service is not permissible, or where the
persons responsible for the burial request it, he may use instead a
special form prescribed or approved by the ordinary.[299] On receiving
forty-eight hours' previous notice in writing to that effect from a
relative, friend, or legal representative of a deceased person entitled
to burial in a churchyard or burial ground, the incumbent of the parish
or chaplain of the ground must permit the interment of the deceased
without the performance of the rites of the Church of England, and
either without any service at all or with some other Christian and
orderly religious service conducted by a person or persons not in holy
orders of the Church of England. The notice must state the proposed day
and hour of the interment, which may be varied if inconvenient to the
person receiving the notice; and he may, on stated grounds, object
altogether to its taking place on a Sunday, Good Friday, or Christmas
Day. On every such interment the incumbent or chaplain is entitled to
the same fee, if any, as he would have received if it had been
accompanied by the Burial Service.[300]
7. When a clergyman performs a funeral service, the certificate of the
registrar of having registered or received notice of the death, or
(where there has been a coroner's inquest) the order of the coroner
authorising the burial, is to be delivered to him by the person who
obtained it; and a clergyman who performs a funeral service without the
delivery of such a certificate or order must, within seven days, give
written notice of the fact to the registrar of births and deaths for the
sub-district in which the death took place; and if he fails to do so, he
is liable to a penalty not exceeding £10. In the case of a burial under
the Act of 1880 (see § 6 above) the certificate or order is to be
delivered to the relative or friend or legal representative of the
deceased who has charge of or is responsible for the burial; and a
similar obligation, under a similar penalty, lies on him of giving
notice in case no certificate or order is delivered to him.[301]
8. In the case of interments in cemeteries established by special Acts
which incorporate the Cemeteries Clauses Consolidation Act, 1847,[302]
or contain similar provisions, the incumbent and clerk of the
ecclesiastical parish from which any bodies are removed for burial are
entitled to receive such fees as are prescribed by the special Act. They
are to be accounted for and paid by the cemetery company
half-yearly.[303]
9. Owing to the insufficiency of existing burial accommodation and the
importance of closing churchyards in the centres of large towns, a
series of Burial Acts, together with an Act known as the Public Health
(Interments) Act, 1879,[304] have been passed from 1852 onwards,
enabling burial boards and other local authorities to provide burial
grounds. The Acts contemplate that parts of these grounds shall be
consecrated and parts remain unconsecrated, and the earlier Acts
contemplated the erection of chapels on each of these parts. But
questions having arisen as to the amount of discretion possessed by a
local burial authority with regard to procuring the consecration of any
and what portion of a burial ground acquired by them, an Act was passed
in 1900 which, after authorising burial authorities to apply to the
bishop for the consecration of any part of their burial ground approved
by the Home Secretary, added that if a burial authority do not so apply
within a reasonable time after being requested to apply, and the Home
Secretary is satisfied that a reasonable number of persons within the
burial district desire that a portion of the ground be consecrated, and
that the consecration fees have been paid or reasonably secured, he may
himself apply to the bishop for the consecration of an approved portion
of the ground, and the bishop may consecrate it, and the burial
authority will be bound to make the necessary arrangements for the
consecration.[305] And with regard to chapels, burial authorities are
empowered to erect at their own cost, on any part of their burial ground
not consecrated or set apart for a particular denomination, a chapel for
the joint common use of all denominations. They may also, at the request
and cost of residents within the burial district of a particular
denomination, erect and maintain a chapel for the funeral services of
that denomination on ground appropriated for their use. If a burial
authority fail to do this within a reasonable time after the request has
been made and the cost has been tendered or adequately secured, the Home
Secretary may, if he thinks fit, order and compel the burial authority
to erect and maintain the chapel or give facilities for its being
done.[306] Where a burial ground has been provided by a local authority
under the Burial Acts, the incumbents, clerks and sextons, of the
ecclesiastical parishes for which the ground has been provided, had, in
respect of the burial of inhabitants of those parishes in the
consecrated part of the ground, the same right to fees as they had in
the churchyard for which the ground is substituted, or would have had in
that churchyard if it had been the parochial burying place for their
respective parishes.[307] And the burial authority were empowered to
sell rights of burial in vaults and permit the erection of monuments,
with a reservation of such fees to the incumbent of each parish as he
would have been entitled to in the old churchyard, or as might be fixed
by the vestry of the parish with the approval of the bishop.[308] But
the law as to fees in these burial grounds was considerably modified by
the Burial Act, 1900. Under this Act (i.) burial authorities are to
submit to the Home Secretary for his approval, either with or without
modification, a table of fees to be received by them (of the same amount
in the consecrated and unconsecrated parts of their burial ground) in
respect of services rendered by any minister of religion or sexton; and
if an authority fails to submit a table, the Home Secretary may himself
make one. The fees are to be collected by and payable to the burial
authority with their other fees, and are to be paid over to the minister
or sexton in such manner as may be agreed upon, or as may be directed by
the Home Secretary in default of agreement. (ii.) In the ground of a
burial authority no fee in respect of any right of exclusive burial or
the erection of a monument or any matter other than services rendered by
the incumbent[309] is to be payable either to the incumbent or to the
churchwardens, or any trustees or other persons to which fees were
previously payable by law or custom for any parochial purpose or the
discharge of any debt or liability, with the following exceptions,
namely: (_a_) where on 10th July 1900 fees other than for services
rendered were paid in a burial ground attached to or used for the
purposes of a parish, the like fees are to continue payable during the
incumbency of the then incumbent or during fifteen years from that date,
whichever is the longer period, or if they were not paid to the
incumbent or to a person claiming through him, then during fifteen years
from that date; and the burial authority are to collect and pay them in
like manner as fees for services rendered; and (_b_) the Ecclesiastical
Commissioners may, at the request and with the approval of the incumbent
or other interested person, agree with a burial authority for a
periodical or other payment in commutation of the fees other than for
services rendered; and where the fees are paid to an incumbent or a
person claiming through him, the Ecclesiastical Commissioners are to
apply the commutation money in the first instance in compensating the
existing incumbent, and the residue in augmenting the benefice. (iii.)
No fee other than fees payable to a sexton for services rendered by him,
is to be paid to any clerk or other ecclesiastical officer in respect of
interments in the ground of a burial authority; except that a clerk or
other ecclesiastical officer who, on 10th July 1900, was entitled to
fees in respect of interments in any such ground, might apply to the
burial authority for compensation for their abolition, and they were to
pay him such equitable amount of compensation as might be agreed upon or
be directed by the Home Secretary in default of agreement. (iv.) The
foregoing provisions extend to cases where an annual sum had been
substituted for fees under 15 & 16 Vict. c. 85, s. 37.[310]
10. A body may be cremated instead of being buried;[311] and a faculty
has been granted for the interment of an urn containing the ashes of a
cremated body below the floor of a church, in spite of the church and
churchyard having been closed for burials under the Burial Acts.[312]
And there is no reason why, upon the committal of cremated ashes to
consecrated ground, the Burial Service should not be used as fully as
over an uncremated body. But the disinterment, for the sake of being
cremated, of a body which has been once buried is not permitted.[313]
11. A body which has been buried in consecrated ground cannot be
disinterred for reinterment elsewhere in consecrated ground, except
under the authority of a faculty, which will be granted in proper cases
upon the petition of the representatives of the deceased, with the
consent of the incumbent and churchwardens and a certificate of the
local medical officer of health that the proceeding will not be
dangerous from a sanitary point of view.[314] And except in the case of
removal from one consecrated spot for reinterment in another, a body, or
the remains of a body, which has been interred in any place of burial
may not be removed without the licence of the Home Secretary and with
such precautions as he may prescribe.[315]
Footnotes
[270] Com. Dig. tit. Cemetery (B); Gilbert _v._ Buzzard (1821) 2 Hag.
Cons. 333; R. _v._ Coleridge (1819) 2 B. & Ald. 806; R. _v._ Stewart
(1840) 12 A. & E. 773, 777.
[271] Cripps, 759.
[272] Canon 68; Ex pte. Blackmore (1830) 1 B. & Ad. 122; R. _v._
Coleridge, _ubi sup._
[273] Ex pte. Blackmore (1830) 1 B. & Ad. 122; Fryer _v._ Johnson (1755)
2 Wils. 28.
[274] (1867) 30 & 31 Vict. c. 133, ss. 9-11; (1868) 31 & 32 Vict. c. 47.
[275] The churchyard is not merely the property of a single departed
generation, but is also the common property of the living and of
generations yet unborn, and is subject only to temporary appropriations.
An exclusive title to a portion of it is sometimes given by faculty to
some family or individual possessing a good claim to be favoured by such
a distinction. But even a bricked grave, in the absence of a faculty, is
an aggression upon the common interests of the parishioners, and carries
the pretensions of the dead to an extent which violates the rights of
the living. Per Sir W. Scott (afterwards Lord Stowell), Gilbert _v._
Buzzard (1821) 2 Hag. Cons. 333, at p. 353.
[276] Bardin _v._ Calcott (1789) 1 Hag. Cons. 14, 17; Littlewood _v._
Williams (1815) 6 Taun. 277; Sm. Churchw. 73.
[277] _Re_ Sargent (1890) 15 P. D. 168.
[278] (1808) 48 Geo. 3, c. 75; (1886) 49 & 50 Vict. c. 20; Sm. Churchw.
73.
[279] Canon 68 and Prayer Book Rubric.
[280] 45 & 46 Vict. c. 19.
[281] 43 & 44 Vict. c. 41.
[282] Kemp _v._ Wickes (1809) 3 Phill. 264.
[283] Mastin _v._ Escott (1841) 2 Curt. 692; aff. (1842) 4 Moo. P. C.
104; 6 Jur. 765.
[284] Cooper _v._ Dodd (1850) 14 Jur. 724.
[285] Titchmarsh _v._ Chapman (1843) 7 Jur. 1020; (1844) 8 _Ib._ 626,
1077; (1845) 9 _Ib._ 159.
[286] 1 Burn, 267.
[287] Frances _v._ Ley (1615) Cro. Jac. 366. But the rector cannot grant
the exclusive right to a vault; Bryan _v._ Whistler (1828) 8 B. & C.
288.
[288] (1818) 58 Geo. 3, c. 45, s. 80.
[289] Gilbert _v._ Buzzard (1821) 2 Hag. Cons. 333.
[290] Andrews _v._ Cawthorne (1745) Willes 536; Gibs. Cod. 453; Spry
_v._ Marylebone (1839) 2 Curt. 5, 11; Spry _v._ Gallop (1847) 16 M. & W.
716; Bryant _v._ Foot (1868) 37 L. J. Q. B. 217.
[291] Nevill _v._ Bridger (1874) L. R. 9 Ex. 214; 43 L. J. Ex. 147.
[292] Littlewood _v._ Williams (1815) 6 Taun. 277; 1 Marsh. 589.
[293] Gibs. Cod. 452.
[294] 59 Geo. 3, c. 134, s. 11.
[295] (1843) 6 & 7 Vict. c. 37, s. 15; see (1856) 19 & 20 Vict. c. 104,
ss. 14, 15.
[296] Gilbert _v._ Buzzard (1821) 2 Hag. Cons. 333.
[297] Cronshaw _v._ Wigan Burial Board (1873) L. R. 8 Q. B 217; Hughes
_v._ Lloyd (1888) 22 Q. B. D. 157.
[298] Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), s. 12.
[299] _Ib._ s. 13.
[300] Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), ss. 1-8.
[301] (1874) 37 & 38 Vict. c. 88, ss. 17, 49; (1880) 43 & 44 Vict. c.
41, s. 11; (1881) 44 & 45 Vict. c. 2.
[302] 10 & 11 Vict. c. 65.
[303] _Ib._ sects. 52-57; Vaughan _v._ South Metropolitan Cemetery Co.
(1860) 1 J. & H. 256; 30 L. J. Ch. 265; Bowyer _v._ Stantial (1878) 3
Ex. D. 315.
[304] 42 & 43 Vict. c. 31.
[305] 63 & 64 Vict. c. 15 (Burial), s. 1.
[306] 63 & 64 Vict. c. 15 (Burial), s. 2.
[307] (1852) 15 & 16 Vict. c. 85, s. 32; (1857) 20 & 21 Vict. c. 81, s.
5; St. Margaret's Rochester Burial Board _v._ Thompson (1871) L. R. 6 C.
P. 445; Gell _v._ Mayor of Birmingham (1864) 10 L. T. N. S. 497; Day
_v._ Barnsley Burial Board (1865) 6 N. R. 156; Cronshaw _v._ Wigan
Burial Board (1873) L. R. 8 Q. B. 217; 42 L. J. Q. B. 137; Ormerod _v._
Blackburn Burial Board (1873) 21 W. R. 539; White _v._ Norwood Burial
Board (1885) 16 Q. B. D. 58; Stewart _v._ West Derby Burial Board (1886)
34 Ch. D. 314; Wood _v._ Headingley-cum-Burley Burial Board (1892) 1 Q.
B. 713.
[308] (1852) 15 & 16 Vict. c. 87, s. 33.
[309] This will include services rendered by a clergyman acting for the
incumbent, as well as by the incumbent himself. See 15 & 16 Vict. c. 85,
s. 32.
[310] 63 & 64 Vict. c. 15, s. 3.
[311] Reg. _v._ Price (1884) 12 Q. B. D. 247.
[312] _Re_ Kerr (1894) P. 284.
[313] _Re_ Dixon (1892) P. 386.
[314] Gibs. Cod. 454; Reg. _v._ Sharpe (1857) 26 L. J. M. C. 47.
[315] (1857) 20 & 21 Vict. c. 81 (Burial), s. 25.
CHAPTER VIII
PRIVATE MINISTRATIONS
1. The only private ministration for which detailed directions are
provided in the Prayer Book (other than Private Baptism, which has been
already noticed in Ch. V. § 6) is the Visitation of the Sick with the
Communion of the Sick in appropriate cases. With reference to this the
67th Canon directs that when any person is dangerously sick in the
parish, the minister or curate having knowledge thereof shall resort to
the sick person (if the disease is not known or reasonably suspected to
be infectious) to administer instruction and comfort according to the
order of the Communion Book if he be no preacher; or if he be a
preacher, then as he shall think most needful and convenient. And when
any one is passing out of this life a bell is to be tolled, and the
minister shall not then be slack to do his duty. The Order for the
Visitation contains several alternative forms to suit different
circumstances. Among these is the provision for confession and
absolution. The minister is in all cases to examine the sick person
whether he repent him truly of his sins and be in charity with all the
world, and is to exhort him to forgive from the bottom of his heart all
who have offended him. This direction does not contemplate any
confession either particular or general, except so far as profession of
repentance involves admission of sins to be repented of. But the
minister is further to move the sick person to make a special confession
of his sins if he feel his conscience troubled with any weighty matter;
and after this confession, if he humbly and heartily desires it, the
priest is to pronounce a prescribed form of absolution. It appears,
therefore, that confession is only contemplated if the sick person's
conscience is troubled with some weighty matter, and absolution is only
to be pronounced if (_a_) there has been confession, and (_b_) the sick
person desires it. Communion of the sick may take place either along
with or apart from the visitation. In either case there must be three,
or at least two, in addition to the minister, to communicate with him,
except in time of plague or similar contagious illness, when the
minister may communicate with the sick person alone. In every case he
must receive the Communion himself first, and then administer to the
sick person's friends, and to the sick person last. After a special
Collect, Epistle, and Gospel, the Order of Holy Communion is to be
followed from the words "Ye that do truly and earnestly repent you of
your sins" onwards. The Church of England at present permits no
administration of any reserved Sacrament to the sick nor any further
abbreviation of the service.[316] If the sick person is too ill to
receive the Communion in the prescribed way, or is otherwise impeded, he
is to be instructed that, without doing so with his mouth, he eats and
drinks the Body and Blood of Christ to his soul's health if he truly
repents of his sins, and steadfastly and thankfully believes in the
redemption wrought by Christ's death on the Cross for him.
2. The Prayer Book requires the incumbent of every parish to bring or
certify in writing to the bishop all persons within the parish whom he
thinks fit to be presented to the bishop for confirmation. No special
mode of preparation for that rite is prescribed beyond public
instruction in the Catechism (see above, Ch. V. § 9). But this _minimum_
is rightly in the present day not considered sufficient. Special
confirmation classes and private interviews with intending confirmees
are now almost universal, and form one of the most responsible and
important parts of the pastoral duties of the clergy.
3. Besides the ordinary occasions of Confirmation and Sickness, the
minister may be called upon to give spiritual advice or comfort to
persons whom he knows to be living evil lives or to be at enmity with
their neighbours, or who are troubled in conscience about coming to Holy
Communion, or generally about their spiritual state. In the first Prayer
Book of Edward VI. the Exhortation to be said in giving previous notice
of Holy Communion where the people were negligent in coming to it,
contained injunctions to reconciliation and charity among neighbours and
restitution of wrongs, without which "neither the absolution of the
priest can anything avail them nor the receiving of this holy sacrament
doth anything but increase their damnation." And it then referred to
confession and absolution in these terms:--
"And if there be any of you whose conscience is troubled and
grieved in anything lacking comfort or counsel, let him come to
me or to some other discreet and learned priest taught in the
law of God, and confess and open his sin and grief secretly,
that he may receive such ghostly counsel, advice, and comfort
that his conscience may be relieved, and that of us (as of the
ministers of God and of the Church) he may receive comfort and
absolution to the satisfaction of his mind and avoiding of all
scruple and doubtfulness: requiring such as shall be satisfied
with a general confession not to be offended with them that do
use, to their further satisfying, the auricular and secret
confession to the priest; nor those also which think needful or
convenient, for the quietness of their own consciences,
particularly to open their sins to the priest, to be offended
with them that are satisfied with their humble confession to God
and the general confession to the Church: but in all things to
follow and keep the rule of charity, and every man to be
satisfied with his own conscience, not judging other men's minds
or consciences where as he hath no warrant of God's word to the
same."
In the present Prayer Book, all allusion to "auricular" confession is
omitted. The minister simply exhorts that if any person cannot by his
own confession to God, with full purpose of amendment of life and by
reconciliation with any neighbours whom he may have offended, quiet his
own conscience with a view to receiving Holy Communion, he should come
to the incumbent of the parish, or to some other discreet and learned
minister of God's word, and open his grief, "that by the ministry of
God's holy word he may receive the benefit of absolution together with
ghostly counsel and advice to the quieting of his conscience and
avoiding of all scruple and doubtfulness." The procedure is clearly
contemplated as exceptional, as respects (_a_) the persons who have
recourse to it, (_b_) the occasions on which they do so, and (_c_) the
sins or stumbling-blocks on which they consult the minister.
4. In addition to these more formal ministrations, a diligent clergyman
will pay frequent visits to his parishioners, and hold interviews or
correspondence with them on any questions of intellectual perplexity or
of practical difficulty in their daily life in reference to which they
may desire his counsel or assistance; but his action in these matters is
not regulated by law, and lies outside the scope of the present
treatise.
Footnote
[316] Archbishops' Hearing at Lambeth (1900) _Times_, May 2. The Prayer
Book of 1549 directed that if on the same day there was a celebration in
church, the priest should reserve (at the open Communion) so much of the
Sacrament of the body and blood as should serve the sick person and so
many, if any, as should communicate with him, and so soon as convenient
after the open Communion should go and minister the same first to any
appointed to communicate with the sick person, and last of all to the
sick person himself, after having previously made the general confession
and added the absolution and the comfortable words of Scripture as in
the Communion Office; and after the administration he was to say the
Collect "Almighty and everliving God, we most heartily thank," &c. But
if the day were not appointed for the open Communion, then the curate
should come and visit the sick person afore noon and celebrate the Holy
Communion according to the Order for the Communion of the Sick. But
these directions were omitted in 1552, and have not since been restored.
CHAPTER IX
TEMPORALITIES
1. The legal possessions and revenues of the benefice of an ancient
parish consist of (i.) the church and churchyard (subject to the use of
both for the benefit of the people), (ii.) the parsonage house and glebe
lands and buildings, (iii.) the tithe, (iv.) any modern endowments,
including perpetual annuities granted by the Ecclesiastical
Commissioners, (v.) ordinary dues and offerings, (vi.) mortuaries, and
(vii.) fees; and some of these possessions and revenues are also
attached to the benefice of a new ecclesiastical parish, which has,
moreover, in certain cases a further source of revenue in (viii.)
pew-rents.
2. The incumbent for the time being, whether of an ancient or new
parish, has a freehold interest for his life, if he so long remains
incumbent, in the possessions of the benefice, and for the purpose of
holding them is a corporation sole, with a continuous succession in
himself and all future incumbents. As such, he is subject to the general
laws respecting corporations, and also to those which regulate the
acquisition and holding of landed property for charitable purposes,
except so far as the law has made special exemptions in his favour.
Accordingly, except to the extent expressly permitted by statute, he
cannot in his corporate capacity, with perpetual devolution to his
successors in office, (_a_) acquire or hold additional landed property
without a licence in mortmain or in a manner inconsistent with the
provisions of the Mortmain and Charitable Uses Acts, 1888 and 1891,[317]
or (_b_) hold landed property upon any trust or for any purpose other
than as part of the possessions of the benefice.[318]
3. The rights of an incumbent in the church and churchyard differ
according as the benefice is an ancient or a new parish, and in the
former case according as it is a rectory or a vicarage. The freehold of
the whole church in an ancient parish (except where a chapel or aisle or
a pew belongs to a private individual), and of the churchyard, belongs
to the rector, whether he be the incumbent or not;[319] and the chancel
is repairable by him, except where there is a custom for the
parishioners to keep it in repair. His duty in this respect can be
enforced by suit in the ecclesiastical court, and the churchwardens
cannot safely repair the chancel themselves and then sue him for the
cost.[320] But the incumbent and churchwardens (subject to the rights of
the bishop) have the possession and custody of the whole church,
including the chancel, and a lay rector cannot interfere with their
proper use of it; nor can any person claim to enter it, when not open
for Divine service, without their permission.[321] And the incumbent has
the paramount right to keep the keys of the church and to control the
use of the organ and the ringing of the bells.[322] But ringers are not
liable to criminal proceedings in the ecclesiastical court for ringing
the church bells without his consent, unless it was done against his
express desire.[323] Moreover, Canon 88 contemplates that the
churchwardens and sidesmen should have some control over the
bellringing; for it enjoins upon them not to allow the bells to be rung
superstitiously upon holy-days or eves abrogated by the Prayer Book, nor
at any other times without good cause to be allowed by the incumbent and
by themselves. And as regards the churchyard, unless there is a special
provision to the contrary in connection with his endowment, a vicar, as
against the rector impropriate, is only entitled to the possession of
the churchyard for spiritual purposes. The rector has a right to the
profits of the soil, and he or his tenants can depasture it with
sheep.[324] But a rector is only at liberty to fell the trees in the
churchyard when they are required for the repair of the chancel, or when
the body of the church requires repair and he voluntarily allows the
parishioners to use them for the purpose.[325] In new parishes the
freehold of the church and churchyard and of the vaults belonging
thereto is vested in the incumbent, except where it has been vested in
the vestry under a local Act and they have not consented to part with
it.[326] Neither incumbents nor rectors impropriate are liable in
respect of the church and churchyard to rates, nor to contributions
towards the expense of making and paving new streets.[327] So, too, an
incumbent was held not liable as owner for expenses incurred by a local
authority under a statute in removing a part of the church which had
become a dangerous structure.[328]
4. The rights of the incumbent are, moreover, qualified and controlled
by the rights of the bishop on the one hand and of the parishioners on
the other. He has a general authority from the bishop to decide as to
allowing or disallowing the erection in the churchyard of tombstones
with inscriptions, not being of an unusual character in respect of size
or otherwise, as well as glass shades for wreaths and other additions to
the contents of the churchyard.[329] But any person interested may
appeal against his decision to the bishop's court, which has power to
determine the matter, subject to appeal to the higher tribunals.[330] He
cannot, however, authorise the erection of monuments or tablets in the
church itself, nor monuments of abnormal size in the churchyard. These,
as well as other additions to or alterations in the church or
churchyard, require the sanction of a faculty either from the bishop's
consistory court or, if there refused, from the provincial court or the
Judicial Committee of the Privy Council. A faculty for the purpose will,
in proper cases, be granted on the application of the incumbent and
churchwardens supported by a resolution of the vestry.[331] If there is
a rector impropriate, his consent will be necessary to any proposed
change in the chancel. As already noticed (Ch. VII. § 1 above), the
incumbent cannot validly, on his own authority, sell grave spaces in
perpetuity in the churchyard; and a faculty will not be granted for a
vault or space for exclusive burial unless it is clearly improbable that
it will inconveniently diminish the available ground for the burial of
the parishioners.[332] It is an offence on the part of any one to remove
earth and bones from the churchyard[333] or to desecrate it in any other
way; but a faculty will in a proper case be granted for diverting the
course of an ancient footpath through a churchyard when necessary for
the enlargement of the church;[334] and for throwing a portion of a
churchyard, which is not required for interments, into a highway.[335]
A wall of a churchyard which has been wilfully pulled down does not
require a faculty for its restoration.[336] A faculty has been granted
to secure for ninety-nine years an easement of light and air to the
lower windows of an adjoining house through the railings of a
churchyard, on payment of an annual rent of £22 to the rector for the
time being.[337] Where a churchyard or other burial ground has been
closed or is no longer used for burials, a faculty may be obtained for
laying it out as a garden with footpaths, and removing the tombstones
and placing them against the walls of the church or churchyard;[338] but
the erection upon it of any building, except for the purpose of
enlarging a church, chapel, or other place of worship, is unlawful, and
no faculty can be granted for it.[339]
5. Every ancient church ought of right to have glebe as well as a manse
or parsonage house attached to it.[340] In a parish where there is an
impropriate rectory and a vicarage, glebe may be attached to both or
either. Rectorial glebe is not liable to pay vicarial tithe to the
vicar, nor is vicarial glebe liable to rectorial tithe to the
rector.[341] Since the interest of the incumbent in the house of
residence and glebe is limited to his life or tenure of the benefice,
he cannot deal with them in a way prejudicial to the rights of the
patron or of his successors in the incumbency. His powers of selling,
exchanging, and leasing are strictly defined by statute. He must not
commit what is technically called "waste"--that is to say, any spoiling
or destruction of houses, gardens, or other glebe of the benefice, or of
the trees thereon, to the detriment of his successors. In cultivating
the glebe lands himself, he is not restricted to any particular mode of
cultivation, nor accountable to his successors for neglect or
mismanagement.[342] But he must not cut down trees, except so far as
they may be required for the repairs of the buildings of the benefice,
including the chancel of the church, if he is the rector and is liable
to repair it.[343] He may not on his own account open mines, quarries,
or gravel-pits under or upon the glebe land, nor work those which have
been unlawfully opened; but he may work those which are already lawfully
open;[344] and even as regards minerals or gravel unlawfully taken by
him, if he is not restrained at the time, his successor cannot maintain
an action for damage against his representatives after his death.[345]
6. In modern times the provision of parsonage houses and of other
necessary buildings on glebe lands, and the repairs of chancels liable
to be repaired by rectors, have been facilitated by special legislation.
In 1777 and 1781 the Gilbert Acts were passed,[346] which, as amended by
Acts of 1826 and 1838,[347] enabled an incumbent, with the consent of
the bishop and patron, or, during a vacancy in the living, the bishop,
to borrow money for the purpose of providing a parsonage house, or
rebuilding it in case of its having become ruinous, upon the security of
a mortgage of the income of the benefice for thirty-five years. The loan
was not to exceed the amount of the gross net income of the benefice,
and was to be repayable with interest by thirty yearly instalments. The
Governors of Queen Anne's Bounty were empowered to lend money for the
purposes of the Acts; and, in practice, the loans are generally
obtained from them. A later statute[348] extended these provisions to
the purchase of land convenient to be used with the parsonage house or
existing glebe land, and to the repair of the chancel in cases where it
is repairable by the incumbent, and to the building or improving of farm
houses or buildings or labourers' dwelling-houses on the glebe land; and
subsequent Acts have extended the time for repayment of the loans.[349]
Another series of enactments has specially sanctioned gifts and bequests
for providing parsonage houses and glebe;[350] and under a third series
incumbents are empowered to sell the parsonage houses and glebe lands of
benefices, or exchange them for others of greater value or more
conveniently situated, and to acquire new parsonage houses and
additional glebe lands.[351]
7. When an incumbent has a licence from the bishop to reside elsewhere
than in the parsonage house, he may let the house, subject to an
obligation on the part of the tenant to give up possession on the bishop
ordering the incumbent to resume residence therein.[352]
8. An incumbent may either himself farm his glebe (see Ch. 1. § 16
above) or let it to tenants. The tenants, however, will have no rights
against his successors unless the leases to them are made in accordance
with the statutory provisions for the purpose. These provisions enable
an incumbent, subject to certain restrictions and with the consent of
the bishop and patron, to let the glebe on farming leases for fourteen
years or, in some cases, for twenty years,[353] and under special
conditions to grant leases of it for longer periods for building and
mining purposes.[354]
9. An incumbent, as having an interest in the parsonage house and other
buildings of the benefice only during his incumbency, was always bound
to keep them in repair for the benefit of his successors.[355] His exact
liability in this respect and also in respect of insuring against fire
is now regulated by the Ecclesiastical Dilapidations Act, 1871.[356]
10. Under this Act diocesan surveyors are appointed in every diocese to
inspect and report as to requisite repairs and to certify as to their
due execution. The proceedings vary according as they take place (_a_)
upon a vacancy in the benefice, or (_b_) at other times. But in either
case, after they have taken place, a certificate of the diocesan
surveyor that the requisite works have been completed in the parsonage
house and other buildings (including walls and fences, and, in the case
of a rector liable for its repair, the chancel of the church) will (in
the absence of wilful waste or of loss or damage by fire where the
incumbent has not kept up a sufficient fire insurance) confer exemption
from liability for dilapidations, in respect of those buildings, for the
next five years.
11. (_a_) Within three months after a benefice has become vacant,[357]
unless the late incumbent was for the time being free, in respect of all
the buildings of the benefice, from liability to dilapidations, the
diocesan surveyor will inspect the buildings or such of them as have not
been included in the exempting certificate, and will report to the
bishop what works and what sum, if any, are required for making good the
dilapidations. Either the new incumbent, or the late incumbent or his
executors or administrators, may send to the bishop objections to the
report, and the bishop will make an order specifying the repairs to
which the late incumbent or his estate is liable and the cost of them.
The amount of the cost thereupon becomes a debt from the late incumbent
or his estate to the new incumbent and may be recovered as such.[358]
Any money received in respect of it is to be paid to the Governors of
Queen Anne's Bounty, and they, with the consent of the bishop and
patron, may lend on the security of the possessions of the benefice, any
part of the cost which they have not received from the new incumbent.
Any additional balance required to make up the total amount of the cost
of the repairs must be paid to them by the new incumbent, and in case of
non-payment may be raised by sequestration of the profits of the
benefice. All the sums received or lent by them are to be placed in the
first instance to a dilapidation account. If a vacancy occurs in a
benefice between the time of an inspection of the buildings and the
certifying of the completion of the works, the former incumbent or his
estate will be liable for any portion of the cost of the required
repairs remaining unpaid by him, as a debt due to the new incumbent. But
the new incumbent, whether he recovers that portion or not, will be
under the same liability to pay for the outstanding cost of the repairs
as the former incumbent would have been had he continued to hold the
benefice; and any amount which he fails to recover from the former
incumbent or his estate may with the consent of the bishop and patron be
lent to him by the Governors of Queen Anne's Bounty on the security of
the profits of the benefice.
12. (_b_) On a written complaint of the archdeacon, the rural dean, or
the patron, that the buildings of a benefice are dilapidated, or at the
request of the incumbent himself, the bishop, although no vacancy has
occurred, may direct the diocesan surveyor to inspect the buildings,
unless, in the case of a complaint on the subject, the incumbent is
himself ready to put the buildings in proper repair, and the bishop is
satisfied that this is actually done. Such inspection may also be
directed within six months after the sequestration of a benefice, and is
to be renewed in every fifth year while the sequestration continues. The
surveyor, in like manner as in the case of a vacancy, will report to the
bishop the works needed and their probable cost. The incumbent or the
sequestrator may state objections to the report, and the bishop will
give his decision in writing. If the benefice is not under
sequestration, the Governors of Queen Anne's Bounty may, with the
consent of the bishop and patron, lend on the security of the
possessions of the benefice the whole or any part of the cost of the
required works. The amount of the loan will be placed to a Dilapidation
Account, and it will be the duty of the incumbent to execute the
required works in the prescribed manner. If he fails to do so, the cost
may be raised by sequestration of the benefice, and the same course will
be taken as if that had occurred before the dilapidation proceedings had
commenced. In the case of a benefice under sequestration, the cost of
the required works is to be a charge on the income of the benefice which
comes into the hands of the sequestrator, and out of that income, after
providing for the performance of the duties of the benefice, he is to
pay the amount of the cost to the Governors of Queen Anne's Bounty, to
be placed by them to a dilapidation account. The proceedings are not to
be affected by any vacancy occurring in the benefice before the works
are executed, except so far as modification may be made in them as the
result of the report of the surveyor after his inspection consequent on
the vacancy, and except that if the benefice was under sequestration,
any unexpended amount standing to the dilapidation account of the
sequestrator is to be carried to the dilapidation account of the new
incumbent in reduction of the amount payable by the former incumbent or
his estate. A sequestrator who spends more on the repairs than is
authorised by the surveyor's report is personally liable for the
excess.[359]
13. When the surveyor certifies from time to time, until the whole of
the repairs have been executed, that a certain sum ought to be paid in
respect of the required works, such sum is payable out of the money
standing to the dilapidation account, and when all this money is
exhausted, must be paid by the incumbent himself. It is his duty to
cause the repairs to be executed, unless with the consent of the bishop
and patron he decides to rebuild or to alter or remodel any structure.
In that case, if the repairs are superseded or rendered unnecessary, the
money standing to the dilapidation account may be applied towards the
cost of the new work.
14. It is the duty of an incumbent to keep the parsonage house and other
buildings of the benefice (including the chancel of the church in the
case of a rector liable for its repairs) insured against loss or damage
by fire to the satisfaction of the Governors of Queen Anne's Bounty, in
the joint names of the incumbent and themselves, in at least
three-fifths of the value of the buildings; and the receipt for the
current year's premium in respect of the insurance must be exhibited at
the next visitation of the bishop or archdeacon. The money received in
respect of any destruction or damage of a building which the insurance
office does not cause to be reinstated at its own expense, is to be paid
to Queen Anne's Bounty, and dealt with in the same manner as money
standing to a dilapidation account. If the building cannot be reinstated
for the amount for which it was insured, the diocesan surveyor is to
certify the additional sum required for the purpose, with the same
liberty to the incumbent or sequestrator to object and the same final
order of the bishop as in the case of a report as to dilapidations. The
prescribed sum is to be paid to Queen Anne's Bounty, if the benefice is
not sequestrated, by the incumbent (with power to the bishop, in default
of payment, to raise the amount by sequestration of the benefice), or,
if the benefice is under sequestration, by the sequestrator, in the same
way as dilapidation money is payable by the incumbent or the
sequestrator, as the case may be; and the money so paid to Queen Anne's
Bounty will be paid out on certificates of the surveyor during the
progress of the works, as in the case of dilapidation repairs.[360]
15. The provisions of the Act do not apply to buildings let on lease
where the lessee is liable to insure, rebuild, and repair; but the
diocesan surveyor has power to inspect any such buildings.[361]
16. Although there is no positive rule of law on the subject, an
incumbent should, as a matter of prudence, obtain a faculty, or at any
rate the written consent of the bishop and patron, before making any
substantial alteration in the parsonage house or other buildings of the
benefice. If he fails to do so, he proceeds at the risk of himself and
his estate; and if his action is afterwards challenged, it will lie upon
him or his executors to prove that it was justifiable.[362] The
precaution should never be omitted in the case of removing a building
without erecting another in its place. With regard to any building
belonging to or forming part of a parsonage house which appears to be
unnecessary, the bishop, on the application of the incumbent, and with
the written consent of the patron, is expressly empowered to authorise
its removal; and any net proceeds of the removal will be applied to the
improvement of the benefice in such manner as the bishop and patron may
agree.[363] The foregoing remarks do not apply to structures such as
movable sheds or garden frames, which are not regarded in law as affixed
to the soil and therefore hereditaments like the land on which they
stand, nor to fancy structures with which the succeeding incumbents
ought not to be burdened.[364]
17. Upon the vacation of a benefice, the incumbent or his estate ceases
to be entitled to the income and house of residence of the benefice. But
on the death of a married incumbent who was at the time occupying the
house of residence, his widow has a right to remain in occupation for
two months after his death;[365] and in every case, until the question
of dilapidations is settled, the late incumbent or his executors or
administrators may, at reasonable hours, with a surveyor, enter upon the
premises of the vacated benefice.[366] If the vacancy occurs otherwise
than by resignation, the late incumbent or his executors or
administrators have a right to emblements, that is to say, to reap and
enjoy any crops which he sowed before the vacancy occurred but which
have not ripened until afterwards.[367] Where, however, the glebe land
is not cultivated by the incumbent himself, but is let to tenants, the
current rents are in all cases apportionable between the late incumbent,
or his estate, and the new incumbent, up to and from the date of the
occurrence of the vacancy; and the same rule applies to tithe rentcharge
and to any other income from endowments.[368] Subject to these rights
and to provision being made out of the revenue of the benefice for the
service of the cure during the vacancy,[369] the new incumbent, on his
admission, becomes entitled to the temporalities of the benefice as from
the date when the vacancy took place.
18. Under the Tithe Act, 1836,[370] and various amending Acts, a tithe
commutation rentcharge has now been substituted for all the ancient
tithes, except tithes of fish or of fishing, personal tithes (other than
the tithes of mills), mineral tithes, payments instead of tithes within
the City of London, permanent rentcharges or other payments in lieu of
tithes calculated on the rent or value of houses or lands in a city or
town under a custom or private Act, and tithes commuted or extinguished
under a previous Act. And any of the excepted tithes and payments, as
well as Easter offerings, mortuaries, and surplice fees, could be
brought within the operation of the Acts by special provisions inserted
in the parochial agreements framed under the Acts and approved by the
Tithe Commissioners.[371] Where the rectory is impropriate and there is
a vicarage, the tithe commutation rentcharge payable to the rector has
been assessed in lieu of the rectorial or great tithes, namely, those
on corn, hay and wood, and the rentcharge payable to the vicar has been
assessed in lieu of the vicarial or small tithes, those on fruits,
herbs, live stock, poultry, milk, cheese, and eggs. Under the earlier
Acts an extraordinary tithe rentcharge was leviable on lands for the
time being cultivated as hop gardens, orchards, fruit plantations, and
market gardens; but this special rentcharge has since been abolished,
the lands which had been in practice liable to it having been made
liable to a fixed additional rentcharge instead.[372] The ordinary tithe
rentcharge varies with the average prices of wheat, barley, and oats
during the preceding seven years. It was originally assessed on the
footing that £33, 6s. 8d. would buy 94.96 bushels of wheat, or 168.42
bushels of barley, or 242.42 bushels of oats; so that £100 of rentcharge
was equivalent to those amounts of the three grains. The actual amount
of £100 nominal rentcharge in any year is accordingly the sum which
would buy those amounts of the three grains at the septennial average
prices published in the _London Gazette_ at the beginning of the
year.[373]
19. Tithe commutation rentcharge is payable half-yearly by the owner of
the land on which it is assessed. If it is in arrear for more than three
months, it may be recovered on application to the county court, (_a_)
if the owner is in occupation of the land, by distress, or, if there is
no sufficient distress, by proceedings to obtain possession of the land
under section 82 of the Tithe Act, 1836, and (_b_) in other cases, by
the appointment of a receiver of the rents and profits of the land.[374]
Special facilities are given for the recovery of tithe rentcharge
payable in respect of land in the hands of a railway company which is in
arrear for twenty-one days or upwards, by distress upon the goods of the
company on any part of its line.[375]
20. The dues payable to the clergy are of two kinds: (i.) ordinary dues
and offerings, and (ii.) dues or fees payable for special services or
special concessions. Both kinds vary considerably by law or custom in
different places, and, as regards the former, an Act of 1548 provides
that all persons who by the laws or customs of the realm ought so to do,
shall yearly pay their offerings to the parson or vicar of the parish in
which they dwell at the accustomed four offering days, or in default
thereof at the next following Easter. Generally speaking, Easter
offerings are the only offerings of this description which are still
payable.[376] They are enjoined by the rubric at the end of the
Communion Office and are due of right, and are recoverable under the
Small Tithes Recovery Act, 1696,[377] before two justices, subject to an
appeal to quarter sessions. Their legal amount, in the absence of custom
to the contrary, is twopence per head, or, in London, fourpence per
house.[378] But these sums were fixed when the value of money and the
wealth of the country were very different from what they are at present;
and it is reasonable that voluntary Easter offerings should now be made
on quite another scale. The vicar of a new ecclesiastical parish has the
same right to Easter offerings as the incumbent of the ancient parish
out of which it was carved.[379]
21. Mortuaries or offerings at the time of a person's death are due in
certain places by custom, and, where so due, are recoverable in the
ecclesiastical courts. But by an Act of 1529, they were limited to 10s.
as the maximum and to small amounts where the deceased died worth less
than £40 in movable goods, none being payable if the deceased was not a
householder and worth at least ten marks in movable goods, and a penalty
was attached to demanding an illegal amount.[380]
22. Dues or fees payable for special services or concessions have
already been mentioned in connection with churchings, marriages and
burials, including in the last mentioned category those payable for the
funeral itself, for the grave, and for any tombstone or monument to be
erected upon it.[381]
23. In some cases the incumbent's stipend depends wholly or in part upon
pew rents. They can only legally be taken where authorised by a special
or general Act of Parliament. In some churches they have been sanctioned
by a special Act, which prescribes their application, and the proportion
(if any) which shall go towards the incumbent's stipend. They are also
sanctioned in certain cases by the Church Building Acts and New Parishes
Acts. Where pew rents are fixed under these Acts, the incumbent is
entitled to such portion of them as may be settled in the manner therein
prescribed;[382] and he can recover that portion from the churchwardens
by an action at law.[383] An incumbent, who has a vote for a
parliamentary borough as a resident therein, and who receives for his
own use part of the pew rents of the church, which is also situate in
the borough, but which is his freehold, has a parliamentary vote for the
county as a freeholder, since he does not occupy the church within the
meaning of 2 & 3 Will. 4, c. 45, s. 24.[384]
24. The incumbents of certain ancient benefices above the yearly value
of £50 are liable to the payment to Queen Anne's Bounty of first fruits
in the first year of their incumbency and tenths in succeeding years.
The first fruits are the amount of one year's value of the benefice as
recorded in the _valor beneficiorum_ or King's Books compiled in the
sixteenth century, and the tenths are one-tenth of the same amount. They
were originally paid to the Pope, and were annexed by Henry VIII. to the
Crown, until Queen Anne bestowed them on the Bounty which bears her
name, to form a fund for the augmentation of poor livings. Where they
are payable, first fruits are due three months after admission to the
benefice, and tenths annually at Christmas. An incumbent is only
chargeable with the whole of the first fruits if he remains incumbent at
the end of two years from the occurrence of the vacancy which he was
appointed to fill. He is liable to none, or to one-fourth, one-half or
three-fourths, if he dies or is removed within the first, second, third,
or fourth half-year after that event.[385] Two Acts passed in 1706 and
1707[386] discharged from the payment of first fruits and tenths all
benefices which at the time were under the annual value of £50, except
that those of which the tenths had been previously granted away by the
Crown to other parties were still to continue liable to tenths only.
Other exemptions have been granted in favour of particular benefices at
different times; and in 1837, out of 10,498 benefices with and without
cure of souls, only 4898 remained liable to tenths, 4500 of that number
being also liable to first fruits.[387]
25. Income or property tax is payable by an incumbent under schedule (A)
in respect of his house of residence, glebe lands, and tithe
rentcharge.[388] In respect of any landed property (other than a house
of residence) actually occupied by him, income tax is also payable on
one-third of its annual value, except that if he occupies it for the
sole purpose of husbandry and can show that his profits fell short of
that one-third, the tax is payable on the actual amount of the
profits.[389] The tax is also payable by him in respect of all other
stipend, fees, perquisites and profits accruing to him by reason of his
incumbency. But in estimating these a clergyman or other minister of
religion may deduct money paid and expenses incurred wholly,
exclusively, and necessarily in the performance of his ministerial
duties. In two Scotch cases these deductions were held to include the
expense of visiting members of his congregation, attending church
meetings enjoined on him as part of his duty, outlay on stationery, and
communion expenses; but no deduction was allowed in respect of part of
the manse used as an office for his clerical business, or for the cost
of books or for a voluntary contribution made by him towards the stipend
of an assistant minister.[390] There is sometimes a difficulty in
determining whether sums of money which are granted or given to a
clergyman, but are not part of his legal or recognised stipend, are
taxable perquisites or profits accruing to him by reason of his office
or not. The true test, namely, whether the gift is made to him in
respect of his office or is personal to himself, is not easy to apply in
particular instances. In another Scotch case it was held that a
voluntary contribution made by parishioners to their minister, and
received by him in respect of the discharge of the duties of his office,
was taxable.[391] A grant to a curate by the Curates' Augmentation Fund
in recognition of upwards of fifteen years' faithful service is not
taxable, not being made in respect of performing present duties. But a
grant to an incumbent from the Queen Victoria Clergy Fund, being made in
respect of the poverty of his benefice, was decided by the Court of
Appeal to be taxable, although the Divisional Court below had held the
contrary.[392]
Footnotes
[317] 51 & 52 Vict. c. 42; 54 & 55 Vict. c. 73.
[318] Under the School Sites Acts, 1841, 1844 and 1851 (4 & 5 Vict. c.
38, 7 & 8 Vict. c. 37, 14 & 15 Vict. c. 24), land may under certain
restrictions be conveyed to the minister and churchwardens and overseers
of the poor, or to the ministers and churchwardens, of a parish, for the
purpose of the education of the poor, and when so conveyed will remain
vested in them and their successors as if they were a corporate body;
but, except where authorised by a special local Act, it cannot be
conveyed to the incumbent and churchwardens, or to the churchwardens
alone, in perpetuity for any other purpose. (In the City of London,
however, churchwardens can, by custom, acquire and hold land as a
corporation for ecclesiastical or parochial purposes.) The Bodies
Corporate (Joint Tenancy) Act, 1899 (62 & 63 Vict. c. 20), does not give
any further power to an incumbent to hold property as a corporation
jointly with another corporation or with individuals upon any
ecclesiastical or charitable trusts; since the holding authorised by the
Act is to be subject to the same conditions and restrictions as attach
to its holding by a body corporate in severalty; and an incumbent as
above mentioned could not, without a licence in mortmain, hold as a
corporation by himself any property upon similar trusts, unless
empowered to do so by express statutory authority.
[319] Jones _v._ Ellis (1828) 2 Yo. & Jer. 265, 266, 273; Batten _v._
Gedye (1889) 41 Ch. D. 507.
[320] Morley _v._ Leacroft (1896) P. 92; Neville _v._ Kirby (1898) P.
160.
[321] Jarratt _v._ Steele (1820) 3 Phill. 167; Jones _v._ Ellis _ubi
sup._; Griffin _v._ Dighton (1864) 5 B. & Sm. 93, aff. 108; 33 L. J. Q.
B. 29, aff. 181.
[322] Harrison _v._ Forbes (1860) 6 Jur. N. S. 1353; Redhead _v._ Wait
(1862) 6 L. T. N. S. 580.
[323] Daunt _v._ Crocker (1867) L. R. 2 A. & E. 41; 37 L. J. Eccl. 1.
[324] Greenslade _v._ Darby (1868) L. R. 3 Q. B. 421; 9 B. & Sm. 428.
[325] Stat. (_temp incert._) _Ne rector prosternat arbores in
cemiterio._
[326] (1856) 19 & 20 Vict. c. 104, s. 10.
[327] (1833) 3 & 4 Will. 4, c. 30; Angell _v._ Paddington Vestry (1868)
9 B. & Sm. 496; L. R. 3 Q. B. 714.
[328] Reg. _v._ Lee (1878) 4 Q. B. D. 75.
[329] M'Gough _v._ Lancaster Burial Board (1888) 21 Q. B. D. 321; 52 J.
P. 740.
[330] Keet _v._ Smith (1875) L. R. 4 A. & E. 398; rev. (1876) 1 P. D.
73. The bishop himself decides disputes as to monumental inscriptions on
stones in the consecrated portion of a burial ground provided under the
Burial Acts; (1852) 15 & 16 Vict. c. 85, s. 38. As to the consecrated
parts of cemeteries established by companies under the Cemeteries
Clauses Act, 1847, see 10 & 11 Vict. c. 65, s. 51.
[331] Sm. Churchw. 52-57. A faculty is not necessary for mere repairs or
redecoration where no alteration is made in the structure or the design,
nor for trifling additions such as movable seats or hassocks. But a
change in the mode of lighting or heating the church ought to be
sanctioned by faculty. The grant of a faculty, besides ensuring that all
is done legally and carefully, prevents any ill-feeling being cherished
in the parish on the score of the alteration having been made without
the knowledge or consent of some of the parishioners; since the
application for the faculty affords to all who are interested in the
matter an opportunity for submitting their views upon it. The regular
mode of obtaining the approval of the parishioners to it is by a
resolution of the vestry. But the opinion of the vestry is not
conclusive; and a distinction will sometimes be made between the votes
of those members of the vestry who are Church people and those who are
not; see note (3) on p. 89 above.
[332] Rosher _v._ Vicar of Northfleet (1825) 3 Add. 14; Pitcher _v._ The
Same (1825) _Ib._ 15.
[333] Adlam _v._ Colthurst (1867) 36 L. J. Eccl. 14.
[334] Vicar of Tottenham _v._ Venn (1874) L. R. 4 A. & E. 221, 225.
[335] _Re_ Bideford Parish (1900) P. 314.
[336] Rector of St. Stephen's, Wallbrook _v._ Sun Fire Office Trustees
(1883) Trist. Cons. Judgm. 103.
[337] _Re_ St. Martin's Orgars (1870) _Ib._ 145. Comp. Rector of St.
Stephen's, Wallbrook _v._ Sun Fire Office Trustees, _ubi sup._
[338] _Re_ St. George in the East (1876) 1 P. D. 311.
[339] (1884) 47 & 48 Vict. c. 72; (1887) 50 & 51 Vict. c. 32, s. 4.
[340] Com. Dig. tit. "Dismes" (B. 2).
[341] 2 Burn, 302.
[342] Bird _v._ Relph (1833) 4 B. & Ad. 826.
[343] Degge, ch. viii.; Sowerby _v._ Fryer (1869) L. R. 8 Eq. 417. The
right to cut timber for the purpose of repairs includes the right to
sell timber at a distance from the site of the repairs and buy other
timber with the proceeds of the sale; Wither _v._ Dean of Winchester
(1817) 3 Mer. 421.
[344] Holden _v._ Weekes (1860) 1 J. & H. 278; Ecclesiastical
Commissioners _v._ Wodehouse (1895) 1 Ch. 552.
[345] Ross _v._ Adcock (1868) L. R. 3 C. P. 655.
[346] 17 Geo. 3, c. 53; 21 Geo. 3, c. 66.
[347] 7 Geo. 4, c. 66; 1 & 2 Vict. c. 23; 1 & 2 Vict. c. 106, s. 62.
[348] (1865) 28 & 29 Vict. c. 69.
[349] (1881) 44 & 45 Vict. c. 25; (1887) 50 & 51 Vict. c. 8; (1896) 59 &
60 Vict. c. 13.
[350] (1777) 17 Geo. 3. c. 53, s. 21; (1803) 43 Geo. 3, c. 108; (1811)
51 Geo. 3, c. 115; (1815) 55 Geo. 3, c. 147, s. 5; (1856) 19 & 20 Vict.
c. 104, s. 27; (1865) 28 & 29 Vict. c. 69, s. 4. As to the consent of
the Board of Agriculture being requisite to a grant of common land, see
(1899) 62 & 63 Vict. c. 30, s. 22.
[351] (1815) 55 Geo. 3, c. 147; (1816) 56 Geo. 3, c. 52; (1820) 1 Geo.
4, c. 6; (1825) 6 Geo. 4, c. 8; (1826) 7 Geo. 4, c. 66; (1838) 1 & 2
Vict. c. 23; c. 29; (1839) 2 & 3 Vict. c. 49; (1842) 5 & 6 Vict. c. 54;
(1846) 9 & 10 Vict. c. 73, s. 22; (1858) 21 & 22 Vict. c. 57; (1860) 23
& 24 Vict. c. 93, s. 41; (1861) 24 & 25 Vict. c. 105, s. 3; (1865) 28 &
29 Vict. c. 57; (1888) 51 & 52 Vict. c. 20. See also The Sale of Glebe
Land Rules 1897 (Weekly Notes (1897) p. 117); Ecclesiastical
Commissioners _v._ Pinney (1899) 1 Ch. 99; 2 Ch. 729; aff. (1900) 2 Ch.
737.
[352] (1838) 1 & 2 Vict. c. 106, ss. 59, 60.
[353] (1842) 5 & 6 Vict. c. 27.
[354] (1842) 5 & 6 Vict. c. 108; (1858) 21 & 22 Vict. c. 57; (1861) 24 &
25 Vict. c. 105; Ecclesiastical Commissioners _v._ Wodehouse (1895) 1
Ch. 552.
[355] Wise _v._ Metcalfe (1829) 10 B. & C. 299; Martin _v._ Roe (1857) 7
E. & B. 237.
[356] 34 & 35 Vict. c. 43. The Act is amended so far as respects the
rates of fees thereunder by (1872) 35 & 36 Vict. c. 96; and so far as
respects mortgages for loans, by that Act and (1896) 59 & 60 Vict. c. 13
and the intermediate Acts specified in the schedule thereto, and, in the
case of extraordinary tithe redemption, by (1886) 49 & 50 Vict. c. 54,
s. 12.
[357] The time is not essential, Caldow _v._ Pixell (1877) 2 C. P. D.
562.
[358] _Re_ Monk: Wayman _v._ Monk (1887) 35 Ch. D. 538. Consequently if
on an incumbent's death the benefice is under sequestration, the
sequestrator is not liable for the dilapidations; Jones _v._ Dangerfield
(1875) 1 Ch. 438. On an exchange, the claim for dilapidations may be
waived on both sides, with a view to their falling, in the case of each
benefice, on the incoming instead of on the outgoing incumbent; Wright
_v._ Davies (1876) 1 C. P. D. 638.
[359] Kimber _v._ Paravicini (1885) 15 Q. B. D. 222.
[360] (1871) 34 & 35 Vict. c. 43, ss. 54-57.
[361] _Ib._ ss. 58, 59.
[362] Huntley _v._ Russell (1849) 13 Q. B. 572; 13 Jur. 837; 18 L. J. Q.
B. 239.
[363] (1871) 34 & 35 Vict. c. 43, s. 71.
[364] Huntley _v._ Russell, _ubi sup._; Martin _v._ Roe (1857) 7 E. & B.
237; 3 Jur. N. S. 465; 26 L. J. Q. B. 129.
[365] (1838) 1 & 2 Vict. c. 106, s. 36.
[366] (1871) 34 & 35 Vict. c. 43, s. 29.
[367] (1536) 28 Hen. 8, c. 11, s. 4; Bulwer _v._ Bulwer (1819) 2 B. &
Ald. 470.
[368] (1738) 11 Geo. 2, c. 19, s. 15; (1834) 4 & 5 Will. 4, c. 22;
(1836) 6 & 7 Will. 4, c. 71, s. 86; (1870) 33 & 34 Vict. c. 35.
[369] See ch. iii. § 2 (_a_) above.
[370] 6 & 7 Will. 4, c. 71.
[371] 6 & 7 Will. 4, c. 71, s. 90. The Statutory powers of the Tithe
Commissioners are now vested in the Board of Agriculture.
[372] (1839) 2 & 3 Vict. c. 62, s. 28; (1860) 23 & 24 Vict. c. 93, ss.
42, 43; (1886) 49 & 50 Vict. c. 54; (1897) 60 & 61 Vict. c. 23.
[373] (1882) 45 & 46 Vict. c. 37 (Corn Returns).
[374] (1891) 54 & 55 Vict. c. 8.
[375] (1844) 7 & 8 Vict. c. 85, s. 22.
[376] 2 & 3 Edw. 6, c. 13, s. 10 (see (1887) 50 & 51 Vict. c. 59, sch.).
The four offering days are Christmas, Easter, Whitsuntide, and the feast
of the dedication of the parish church; Gibs. Cod. 705.
[377] 7 & 8 Will. 3, c. 6.
[378] Wats. ch. iii. p. 585; Carthew _v._ Edwards (1749) Ambl. 71;
(1866) L. R. 1 Q. B. 632; Phill. Eccl. Law, Pt. v. ch. iv. § 2, pp.
1242-1245.
[379] (1843) 6 & 7 Vict. c. 37, s. 15.
[380] (1285) 13 Edw. 1, st. _Circumspecte agatis_; (1529) 21 Hen. 8, c.
6; Wats. ch. iiii. pp. 595-598; Phill. Eccl. Law, Pt. iii. ch. x. § 5,
pp. 685-9.
[381] See above, ch. v. § 10; ch. vi. § 15; ch. vii. §§ 5, 6, 8, 9.
[382] Sm. Churchw. 67-71; (1818) 58 Geo. 3, c. 45, ss. 62-66, 73-79;
(1819) 59 Geo. 3, c. 134, ss. 6, 26, 27, 30-33; (1822) 3 Geo. 4, c. 72,
ss. 23-25; (1824) 5 Geo. 4, c. 103, ss. 10, 11, 18; (1831) 1 & 2 Will.
4, c. 38, ss. 4, 5, 22; (1845) 8 & 9 Vict. c. 70, s. 11; (1838) 1 & 2
Vict. c. 107, s. 18; (1856) 19 & 20 Vict. c. 104, ss. 6-8; (1884) 47 &
48 Vict. c. 65, s. 4.
[383] Lloyd _v._ Burrup (1868) L. R. 4 Ex. 63.
[384] Wolfe _v._ Clerk of Surrey County Council; Reeve _v._ The Same
(1904) 1 K. B. 439.
[385] (1559) 1 Eliz. c. 4, s. 6; Wats. ch. xv. pp. 174-9; Phill. Eccl.
Law, pt. v. ch. viii. pp. 1355-64.
[386] 6 Ann. cc. 24, 54.
[387] Report of Select Committee on First Fruits and Tenths and
Administration of Queen Anne's Bounty (presented to the House of Commons
and ordered to be printed 7th June 1837), p. iv.
[388] In estimating the value of tithe rentcharge, the necessary cost of
collection may be deducted, Stevens _v._ Bishop (1887) 19 Q. B. D. 442;
aff. (1888) 20 Q. B. D. 442.
[389] 59 & 60 Vict. c. 28 (Finance Act, 1896) ss. 26, 27.
[390] 16 & 17 Vict. c. 34 (Income Tax Act, 1853) s. 52; Charlton _v._
Inland Revenue Commissioners (1890) 27 Sc. L. R. 647; Lothian _v._
Macrae (1883) 22 Sc. L. R. 219.
[391] Inland Revenue _v._ Strang (1878) 15 Sc. L. R. 704.
[392] Turner _v._ Cuxon (1888) 22 Q. B. D. 150; Herbert _v._ M'Quade
(1901) 2 K. B. 761; rev. on app. (1902) 2 K. B. 631.
INDEX
Ablutions, 91
Absolution, 135 _sq._, 138-140
Admission to benefice, 25-37;
to curacy, 55;
of churchwardens, 69
Advowson, 8;
sale and transfer of, 26-28
Agnus Dei, 90
Albe, 89
Allegiance, oath of, 35
Apportionment of income on vacancy, 160
Archbishop, 15, 25, 28, 31 _sq._, 56, 101, 113
Archdeacon, 17 _sq._, 69, 74, 154
Articles, Thirty-nine, 34, 36, 53, 87 (n.)
Authority, lawful, 34, 81
Baldacchino, 89
Bankruptcy, 57, 58
Banns, 85, 100, 109-112, 115
Baptism, 91-93;
lay, 93, 123
Beadle, 75 _sq._
Bells, 70, 83, 121, 135, 143 _sq._
Benefice, 14;
admission to, 25-37;
holding of two, 44, 52
Beneficed clergy, 14-16, 25-54
Benefices Act, 26-33, 46
Bigamy, 105
Biretta, 89
Bishop, 15-17, 27, 39, 55 _sq._, 70, 83, 129, 145;
suffragan, 16
Body, cast up by sea, 123;
removal of, 133 _sq._, 147
Brawling, 24, 71
Brick grave, 122 (n.), 126
Buildings, 149-159;
removal of, 158 _sq._
Burial, 121-134
Burial Acts, 128-133;
Act of 1880, 123, 126 _sq._;
Act of 1900, 129-133
Candles, Candlesticks, 88, 90
Canons, Canon Law, 3-5
Canonical obedience, 15, 35
Catechising, 98 _sq._
Cemetery, 128, 145 (n.), 147 _sq._
Ceremonies, 86, 90, 91
Certificate of surveyor, 152 _sq._;
of registrar for marriage, 101, 112-115
Chalice, mixed, 90
Chancel, 143-146; seats in, 70;
gates, 88
Chancellor, 16 _sq._, 69, 117, 125 _sq._
Chapel, private, 42;
of school or institution, 42;
proprietary, 42 _sq._;
of burial-ground, 129 _sq._
Chasuble, 89
Choristers, 76
Church, rights in, 69-71, 142-148;
burial under, 124;
of new parish, 11, 43, 101
Church Discipline Act, 18-20, 54
Church Trustees, 72 _sq._
Churching, 99
Churchwardens, 33, 59, 67-71, 85 _sq._, 122 _sq._, 142 (n.)
Churchyard, 69-71, 142-148
Clergy, civil privileges and disabilities, 21-24;
duties, 20-22, 38 _sq._;
ordained for service abroad, 12 _sq._, 29;
protection, 22, 24;
relinquishment of office, 24;
secular occupations, 21-23;
unbeneficed, 14, 55-64
Clergy Discipline Act, 19 _sq._, 54, 100
Clergy Resignation Bonds Act, 50
Clerical Disabilities Act, 24
Clerk, parish, 59, 73 _sq._, 130-132
Collation, 33-37
Collection of money, 70 _sq._, 85 _sq._
Colonial Clergy Act, 12 _sq._, 29
Commission of inquiry, 18, 45 _sq._, 59
Communion service, 82, 90 _sq._;
administration, 93-97;
refusal of, 94-97, 118-120;
of sick, 136 _sq._
Confession, 135 _sq._, 138-140
Confirmation, 96 _sq._, 137 _sq._
Consecration, 103;
of burial-ground, 128-130
Conviction, 54
Cope, 89
Coroner's order, 127 _sq._
Corporate status of incumbent, 141 _sq._
Council (borough, county, district, parish), 21;
parochial church, 79
Courts, ecclesiastical, 5-7
Credence table, 88
Cremation, 133
Cross, 87;
sign of, 90
Crucifix, 87
Curate, 48, 55-64;
assistant, 10, 12, 14, 60-61;
in charge, 12, 56-60;
perpetual, 9 _sq._
Curates' Augmentation Fund, 168
Cure of souls, 38
Dangerous structure, 145
Deacon, 20 _sq._, 93, 115
Dean, 17 (n.);
rural, 18, 154
Declaration of assent, 34 _sq._, 55
Deprivation, 48, 52-54
Dilapidations, 152-159
Diocese, _Dioececis_, 7
Dissenters, 91, 96 _sq._, 103 _sq._, 123, 126 _sq._
Divorce, 106 _sq._
Dues, 163 _sq._
Easter offerings, 63 _sq._
Ecclesiastical Dilapidations Act, 152-160
Elevation, 90
Emblements, 160
Established Church, 1-3
Exchange, 50, 52
Excommunicate, burial of, 123
Faculty, 71, 88, 122 _sq._, 133,145-148
Farming, 22 _sq._, 151
Fees, 36 _sq._, 55, 117, 124-6, 130-133, 164
Fire insurance, 69 _sq._, 157
First fruits, 165 _sq._
Flower vases, 88
Foreigner, marriage of, 197 _sq._;
ordination of, 12 _sq._, 29
Genuflexions, 90
Gilbert Acts, 149 _sq._
Glass shades, 145
Glebe, 22 _sq._, 148 _sq._, 151 _sq._, 160
Godparents, 92
Gown, black, 90
Grave, private, 122 _sq._, 126, 146
Guardian of poor, 21;
of minor, 104 _sq._
Homily, 97 _sq._
Hood, 89
House, parsonage, 148-159
House of Commons, 21;
of Lords, 21
Hymns, 77, 90, and note
Illegitimate child, baptism of, 91;
marriage of, 105, 111 (n.)
Images, 88
Immersion, 92
Incense, 90
Income Tax, 167 _sq._
Incumbent, 12;
rights and duties of, 38-43, 63 _sq._, 141-168
Incumbents' Resignation Acts, 51 _sq._
Induction, 36 _sq._
Institution, 33-37
Ireland, banns in, 110;
clergy of, 12 _sq._, 29
Judicial decisions, 5-7, 87 (n.);
procedure, 18-20
Jury, exemption from, 21
Justice of the peace, 21
Keys of Church, 143
Laity, 65-79;
baptism by, 93, 123
Lapse, 25 _sq._
Leases, of glebe, 151 _sq._;
of buildings, 151, 158
Lecture, Lecturer, 12, 64, 98
Lecturers and Parish Clerks Act, 64, 74
Licence, admission by, 33-37;
for marriage, 101 _sq._, 113-116;
in mortmain, 142;
to officiate, 55-64;
for unconsecrated building, 41, 43, 102
Litany, 82, 84
Lunatic, resignation of, 51;
marriage of, 105
Marriage, 100-120;
validity of, 101, 118-120
Mines, 149
Minister in charge, 12, 56-60
Minor, marriage of, 104 _sq._
Money, collection of, 70 _sq._, 85 _sq._
Monument, 145 _sq._
Mortmain and Charitable Uses Acts, 142
Mortuaries, 164
Neglect of duties, 44-46, 59, 62
Non-parishioner, burial of, 121-123
Non-residence, 46-49, 58 _sq._, 151
Notices, 85
Offertory, 70 _sq._, 85 _sq._
Orders, indelibility of, 24
Organ, Organist, 76 _sq._, 143
Ornaments, 86-89;
Rubric, 86, 87 (n.)
Parish, _parochia_, 7;
new, 10 _sq._, 43, 102, 164
Parson, 8
Parsonage house, 148-159
Patronage, 8, 25-28
Peel district and parish, 11 (n.), 59 _sq._
Pension on resignation, 51 _sq._
Pew, private, 143;
rents, 164 _sq._
Pictures, 88
Prayer, Morning and Evening, 82-85
Prayer Book, 34, 80-85;
First of Edward VI., 87 (n.), 89, 93 _sq._, 137 (n.), 138 _sq._
Preaching, 63 _sq._, 97 _sq._.
Presentation, 25-33;
next, 27
Private ministrations, 40 _sq._, 135-140
Prohibited degrees, 103, 108 _sq._
Property Tax, 167 _sq._
Public Worship Regulation Act, 19 _sq._, 53
Quarries, 149
Queen Victoria Clergy Fund, 168
Rates, 145
Reader, 77 _sq._
Rector, rectory, 8-10, 143-146
Register of marriages, 117 _sq._
Registrar, certificate of, 101, 112-115;
licence of, 112 _sq._;
service after marriage before, 116
Religious worship, liberty of, 41 _sq._
Removal of body, 133 _sq._, 147
Reservation, 91, 137
Residence, 46-49, 58 _sq._, 151;
house of, _see_ Parsonage House;
for marriage, 110, 113
Resignation, 25, 49-52
Roman Catholic patron, 28
Rural Dean, 18, 154
Sacristan, _see_ Sexton
Scarf, 89
School Sites Acts, 142
Schools, 78 _sq._
Scotland, banns in, 110;
clergy of, 12 _sq._, 29
Sculptures, 88
Seats (_see also_ Pew), 70
Sequestration, 47 _sq._, 53, 56 _sq._, 71, 154-158
Sermon, 82, 84, 97 _sq._
Service, Divine, 80-99
Sexton, 74 _sq._, 130-132
Sick, visiting of, 78;
Visitation of, 135 _sq._;
Communion of, 136 _sq._
Sidesmen, 71 _sq._
Simony, 50, 52;
declaration against, 34 _sq._
Stole, 89
Sturges Bourne's Act, 65-67
Suicide, 123
Surplice, 70, 89 _sq._
Surrogate, 113
Surveyor, diocesan, 152, 155 _sq._
Table, Holy, 87;
second, 88
Tax, income, 167 _sq._
Tenths, 165 _sq._
Testimonials, 30 _sq._, 56
Tithes, 7-10, 148, 160-162
Tombstone, 145 _sq._;
removal of, 147 _sq._
Trading, 22 _sq._
Trustees, Church, 72
Tunicle, 89
Unbaptized, burial of, 123
Unbeneficed clergy, 14-16, 55-64
Unconsecrated buildings, 41-43
Uniformity, Acts of, 53, 80-84, 87 (n.), 98
Vacancy, 48-54, 56 _sq._, 71, 153 _sq._, 159
Vault, 122 _sq._, 126, 144, 146
Vestments, 86, 89 _sq._
Vestry, 65-67, 89, 146;
marriage in, 116
Vicar, Vicarage, 9, 11, 33
Visitation, 16, 17, 69;
of sick, 135 _sq._
Wafers, 90
Waste, 148 _sq._
Welsh language, 44 _sq._
Widow, occupation of parsonage house by, 159
THE END
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