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diff --git a/40606.txt b/40606.txt deleted file mode 100644 index 1582190..0000000 --- a/40606.txt +++ /dev/null @@ -1,7776 +0,0 @@ -Project Gutenberg's The Legal Position of the Clergy, by P. V. Smith - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: The Legal Position of the Clergy - -Author: P. V. Smith - -Release Date: August 28, 2012 [EBook #40606] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK THE LEGAL POSITION OF THE CLERGY *** - - - - -Produced by David Clarke, Ian Swainson and the Online -Distributed Proofreading Team at http://www.pgdp.net - - - - - -Transcriber's Notes: - -In this version, the oe ligature has been replaced by the two -letters, e.g. dioececis.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. -*dioikesis*, _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 _prima 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. Sec. 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. Sec. 6 (i.) below. - -[16] Bp. of Winchester _v._ Rugg (1868) L. R. 2 P. C. 223, 230. - -[17] As to this, see ch. ii. Sec. 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. Sec.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 _Horae -Decanicae 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. | | | | | - -+-----------+----------+----------+----------+-----------+-----------| - |L _s. d._ |L _s. d._|L _s. d._|L _s. d._|L _s. d._ |L _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.| | | | | - +-----------+----------+ | | | | - |L _s. d._ |L _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. Sec. 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 L200, 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. Secs. 4, 5 -below. - -[37] See ch. i. Sec. 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. Sec. 8. - -[47] 27 & 28 Vict. c. 94. See ch. i. Sec. 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 Sec. 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. Sec. 1. - -[64] See below, Sec.22. - -[65] See above, Sec.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 Sec. 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. Sec.. 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] Sec. 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 Sec. 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 L200 -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 Sec. 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 (Sec. 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 L500, 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 L150; 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. Sec. 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. Sec. 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. Sec. 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 L50 having one vote, and those assessed at -L50 and upwards having one vote for every complete L25 of their -assessment up to L150; 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 Sec. 3, and ch. v. Sec. 5 (A), ix. Sec. 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. Sec. 6 above, see Sm. -Churchw. 22-43. - -[145] Sm. Churchw. 34, 59-64. - -[146] Stat. 13 Edw. 1 (_Circumspecte agatis_); Canon 85; ch. ix. Sec. 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. Sec. 6 (i.); ch. iii. Sec. 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. Sec. 6 (i.) above. - -[166] As to the normal order independently of the Act, see the Rubrics -and note to Sec. 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. Sec. 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. Sec. 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 Sec. 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] Sec. 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 Sec.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 Sec. 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 Sec. 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 (Sec. 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. Sec. 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 L10. In the case of a burial under -the Act of 1880 (see Sec. 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. Sec. 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. Sec. 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. Sec. 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 L22 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. Sec. 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 L33, 6s. 8d. would buy 94.96 bushels of wheat, or 168.42 -bushels of barley, or 242.42 bushels of oats; so that L100 of rentcharge -was equivalent to those amounts of the three grains. The actual amount -of L100 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 L40 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 L50 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 L50, 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. Sec. 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. Sec. 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. Sec. 5, -pp. 685-9. - -[381] See above, ch. v. Sec. 10; ch. vi. Sec. 15; ch. vii. Secs. 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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