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diff --git a/40606-0.txt b/40606-0.txt new file mode 100644 index 0000000..a854fc3 --- /dev/null +++ b/40606-0.txt @@ -0,0 +1,7393 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 40606 *** + +Transcriber's Notes: + +In this version, the oe ligature has been replaced by the two +letters, e.g. dioececis.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 + + Printed by BALLANTYNE, HANSON & Co. + London & Edinburgh + + + + + =Handbooks for the Clergy= + + + Edited by the Rev. 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