UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 ? 
 
 SCHOOL OF LAW 
 LIBRARY
 
 PRACTICAL TREATISE 
 
 ON 
 
 THE LAWS 
 
 RELATING TO 
 
 THE CHURCH AND THE CLERGY 
 
 BY 
 
 HENRY WILLIAM CRIPPS, M.A. 
 
 OF Lincoln's inn and the middle temple, barrister at law, 
 
 AND FELLOW OF NEW COLLEGE, OXFORD. 
 
 LONDON : 
 
 S. SWEET, 1, CHANCERY LANE, 
 
 Hato ^joofeseller ants ^^ubltsjer. 
 
 IIODGES AND SMITH, GRAFTON ST. DUBLIN. 
 
 LS45.
 
 T 
 cS&BSc 
 
 l«45 
 
 I-ONDON : 
 
 PniNI»l> nV r. IKIWOIITII ANUSDNI', 
 Hf.l.l. YAIID, TKMIM.I UAH.
 
 ^ 
 
 & 
 
 TO 
 
 THE RIGHT REVEREND 
 
 JAMES HENRY, LORD BISHOP, 
 
 AND TO 
 
 THE CLERGY, 
 
 OF 
 
 THE DIOCESE OF GLOUCESTER AND BRISTOL, 
 
 Cijc foUoiuing CvcatiiSe 
 
 IS 
 
 MOST RESPECTFULLY DEDICATED 
 
 BY 
 
 THE AUTHOR. 
 
 ^ 7936fi9
 
 PREFACE. 
 
 In the following pages it has been endeavoured, as 
 far as possible, to combine two objects; and to com- 
 pile a legal work which should be at the same time one 
 of easy reference to the Lawyer and of practical utility to 
 the Clergyman. For this reason, the author has, in many 
 instances, to request the especial indulgence of the former, 
 to whom it might otherwise appear that matters of history, 
 of elementary law, and of practice, occupy too consider- 
 able space. The more important decisions of the Ecclesi- 
 astical Courts have also, in many instances, been inserted 
 at greater length than might appear necessary for eluci- 
 dating the particular proposition to which they refer. All 
 such matters have been introduced for the purpose of ren- 
 dering the present w^ork a Complete and Practical Guide 
 to the Clergy : and many of the more important judg- 
 ments, especially those of Lord Stowell, could scarcely 
 have been further abiidged without taking away much of 
 their utility ; as they will often be found to afford a safe 
 guidance upon other matters than those actually decided, 
 and upon questions which may not hitherto have arisen. 
 
 A very considerable part of the contents of the present 
 work is taken from and is a digest of the statute law 
 The several recent statutes on church matters have been 
 condensed and analyzed as far as possible : but there is 
 
 h-VC^ *
 
 VI PREFACE. 
 
 much which it was found impossible to condense without 
 rendering it obscure : and in cases where the directions of 
 the statutes require to be accurately observed, it has been 
 thought best to give the very words of the enactments. 
 In other cases, and especially in the different Church 
 Building Acts, where much has been from time to time 
 re-enacted without apparent reason, and where much 
 which is not actually repealed, is nevertheless practically 
 useless, such a course would only have perplexed : and it 
 has been thought sufficient in such cases to give the sub- 
 stance only of what is now in force. 
 
 The author has also to express his thanks to the several 
 clergymen who have furnished him with many useful 
 suggestions and much practical information ; and for the 
 ready manner in which such information has invariably 
 been given. It is hoped, that in consequence of such 
 communications nothing which can safely be affirmed, 
 and which can be of legal interest or importance to their 
 profession, will be found omitted in the following work.
 
 CONTENTS. 
 
 BOOK I. 
 
 OF PERSONS ECCLESIASTICAL. 
 
 CHAPTER I. Page 
 
 THE CHURCH OF ENGLAND, THE CHURCH ESTABLISHMENT, AND 
 
 QUEEN S SUPREMACY 
 
 1 
 
 ORDINATION 
 
 CHAPTER II. 
 
 THE CONVOCATION 
 
 CHAPTER III. 
 
 22 
 
 CHAPTER IV. 
 
 GOVERNMENT AND DISCIPLINE OF THE ECCLESIASTICAL BODY 
 
 30 
 
 CHAPTER V. 
 
 THE ECCLESIASTICAL COMMISSION 
 
 43 
 
 CHAPTER VI. 
 
 rOTVERS, PRIVILEGES AND RESTRICTIONS OF ECCLESIASTICAL 
 PERSONS GENERALLY 
 
 57 
 
 CHAPTER VII. 
 
 RIGHTS, PRIVILEGES AND DUTIES OF ECCLESIASTICAL PERSONS 
 
 SEPARATELY .. .. .. .. .. .. .. 67 
 
 Section!. Archbishops and Bishops 
 
 2. Bishops.. 
 
 3. Deans .. 
 
 4. Deans and Chapters . . 
 
 5. Canons . . . . 
 
 6. Arclideacons 
 
 7. Rural Deans .. 
 
 8. Rectors, Vicars and Peipetual Curates 
 
 9. Of Ministers of Cliapels of Ease, Proprietary Chapels, &c 
 
 and of Lecturers 
 10. Stipendiary Curates 
 
 67 
 74 
 98 
 103 
 120 
 130 
 143 
 144 
 
 152 
 155
 
 VIU 
 
 CONTENTS. 
 
 CHAPTER VIII. 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, &C. .. 
 
 Section 1. Chaccellors and other Officers of Ecclesiastical Courts 
 
 2. Churchwardens .. .. 
 
 3. Parish Clerks .. 
 
 4. Sextons, Slc. .. .. .. .. •■ •• 
 
 Page 
 
 17b 
 
 178 
 180 
 204 
 212 
 
 BOOK II. 
 
 OF THE PROPERTY OF PERSONS ECCLESIASTICAL, AND OF THE 
 PROVISIONS RECOGNIZED BY LAW FOR THEIR SUPPORT. 
 
 CHAPTER I. 
 
 LANDS OP ECCLESIASTICAL CORPORATIONS 216 
 
 Section 1. Rights and Restrictions of Ecclesiastical Corporations in re- 
 spect of their Lands .. .. .. .. .. 216 
 
 2. Leases by Ecclesiastical Corporations. . .. .. .. 222. 
 
 3. Purchase and Alienation of Lands by Ecclesiastical Corpora- 
 
 tions .. .. .. .. .. .. .. 239 
 
 4. Exceptions from tlie Statutes of Alortmain, Exchanges of Glebe 
 
 Lands .. .. .. .. .. .. .. 243 
 
 5. Exceptions from the Statutes of Mortmain, Lands taken as 
 
 Glebo, iSic. by virtue of certain Statutes .. .. .. 248 
 
 6. Houses of Residence upon Glebe Lands, and building new 
 
 Houses .. .. .. .. .. .. .. 263 
 
 7. Rights as between successive Tenants for Life — Dilapidations. 276 
 
 CHAPTER II. 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 Section 1. 
 2 
 
 Discharge of Lands from Payment of Tithes by Nonpayment 
 for a certain length ol Time 
 
 Discharge, &;c. by having foimcrly been Parcel of the Posses- 
 sions of a Privileged ( )rder, or as iiaving been or being now 
 the Properly of Ecclesiastical ('orporationsorof the Crown. 
 
 3. Discharge, (Sec. by Compositions Real 
 
 4. Discharge, &c. by Private Acts of Parliament 
 
 ."). Discharge, iS;c. by some established Modus Decimaiidi 
 
 6. Disihargu, (Sec. by Rent-Charge in lieu thereof 
 
 7. Discharge, \c. by Lands given in lieu thereof 
 
 H. .MiTger and lAtiiiguisliment of lithe and Tithe RcntC'harge. 
 
 f>. Hates and Asscssmenlg to which Tithe and Tithe Renl-Chaigc 
 
 arc liable . . .. . . . . .. . . '. . 
 
 10. Uccovery of Tithe Rent-Charge 
 
 291 
 296 
 
 298 
 303 
 307 
 308 
 318 
 332 
 335 
 
 338 
 365 
 
 CllAPTl'.R III. 
 
 OF OVVKKINOH AM) OIlVKNTIflNH 
 
 368 
 
 ni\pri:i{ iv. 
 
 nv rillUT Kilt IT'^ AMI TI'.NTlJ.-i, AND OF TIIKIR ArFLICATION 
 
 363
 
 CONTENTS. 
 
 IX 
 
 BOOK III. 
 
 OF THINGS ECCLESIASTICAL. 
 
 CHAPTER I. 
 
 ECCLESIASTICAL PAUISUES AND DISTRICTS .. 
 
 CHAPTER II. 
 
 CHURCHES.. 
 
 Section 1. Cathedral and Collegiate Churches .. 
 
 2. Parish Churches 
 
 3. Chapels and Churches not Parochial .. 
 
 CHAPTER III. 
 
 SEATS AND TEWS IN CHURCHES 
 
 Section!. In Old Parish Churches 
 
 2. In Churches built under recent Statutes 
 
 CHAPTER IV. 
 
 OF THE GOODS, UTENSILS AND ORNAMENTS OF CHURCHES. 
 
 CHAPTER V. 
 
 CHURCHYARDS 
 
 Page 
 375 
 
 385 
 
 385 
 387 
 396 
 
 400 
 
 400 
 409 
 
 415 
 
 425 
 
 BOOK IV. 
 
 OF THE PROVISION MADE BY LAW FOR THE SUPPORT OF 
 THINGS ECCLESIASTICAL. 
 
 CHAPTER I. 
 
 CHURCH RATES 437 
 
 BOOK V. 
 
 OF BENEFICES. 
 
 CHAPTER I. 
 
 OF THINGS ESSENTIAL TO THE OBTAINING COMPLETE POSSESSION 
 
 OF A BENEFICE .. ., .. .. .. ., .. 465 
 
 Section 1. Advowsons and Presentations .. .. .. .. .. 465 
 
 2. Presentation, Admission and Institution .. .. .. 476 
 
 3. Simoniacal Presentations .. .. .. .. .. 485 
 
 4. Induction 496 
 
 5. Requisites after Induction . . . . . . . . . . 499 
 
 6. Of Lapse 505
 
 X CONTENTS. 
 
 CHAPTER II. 
 
 OP THIXGS INCIDENT TO THE POSSESSION OF A BEN 
 
 Section 1. Residence 
 
 2. Pluralities 
 
 3. Exchange of Benefices. . 
 
 4. Forming and Dissolving Unions of Benefices 
 
 CHAPTER III. 
 
 OP THE MANNER IN ■WHICH A BENEFICE OR THE PROFITS 
 
 
 Page 
 
 VEFICE. . 
 
 .. 512 
 
 • • 
 
 .. 512 
 
 • • • • 
 
 .. 524 
 
 • a • • 
 
 .. 534 
 
 • • • • 
 
 .. 541 
 
 THEREOF MAT BE LOST 
 
 555 
 
 Section 1. Sequestration .. .. .. .. .. .. .. 555 
 
 2. Kesignation . . . . . . . . . . . . . . 565 
 
 3. Suspension, Deprivation and Degradation . . . . . . 582 
 
 BOOK VI. 
 
 OF THE DUTIES OF A CLERGYMAN IN THE DISCHARGE OF 
 
 HIS HOLY OFFICE. 
 
 PUBLIC WORSHIP . , 
 
 CHAPTER I. 
 
 .. 590 
 
 BAPTISM 
 
 MARRIAGE 
 
 IIURIAL 
 
 CHAPTER II. 
 
 CHAPTER III 
 
 CHAPTER IV 
 
 613 
 
 633 
 
 672 
 
 CHAPTER V. 
 
 ADMINLSTRATION OP THE LORD's SUPPER 
 
 694 
 
 BOOK VII. 
 
 or THE DUTIES OF A ( LICRGYMAN IN IIlS INTERCOURSE 
 WlTir HIS I'AUISIIIONEIIS. 
 
 fll M'TKR I. 
 
 I'AlllMll VKHTItll'.H 
 
 Hcclion 1 . (icncral Vcntrir* 
 
 2. ScUcI \■c^l^lt■^ liy ('iiHldiii 
 :i. S«lrri VcHlric* by Slalulc 
 
 701 
 
 701 
 714 
 717
 
 CONTENTS. XI 
 
 CHAPTER II. Page 
 
 OF UNION WORKHOUSES AND THE DUTIES OF THE CLERGYMAN 
 
 THEREIN .. .. .. .. .. .. .. .. 726 
 
 CHAPTER III. 
 
 OF DISSENTERS FROM THE ESTABLISHED CHURCH, AND OF THE 
 
 LAWS AFFECTING THEM 734 
 
 BOOK VIII. 
 
 OF OFFENCES AGAINST RELIGION 752
 
 TABLE OF CASES. 
 
 Page 
 Adey v. Theobald 183, 189. 746 
 
 Allen Evans v. Chamberlain of 
 London . . . . . . 742 
 
 Anthony v, Seager .. 183 
 
 Aibuckle v. Cowtan ., 560,561 
 AtkynsD. Willougliby de Broke 314 
 Attorney-General v. Brereton 
 
 150, 151, 152 
 
 t). Forster .. 183 
 
 V. Lord Eardley 293 
 
 V. IMoses and 
 
 others 243 
 .LordHotham 325 
 
 • V. 
 
 ■ V. 
 
 Austin V. Lucas 
 V. Twyne 
 
 Warren 
 Wyecliffe 
 
 429 
 477 
 311 
 543 
 
 B. 
 
 Bacon v. Bishop of Carlisle . • 501 
 Bagshawe V. Boselly .. 576,581 
 Baker v. Athill . . . . 360 
 
 Downing and Wood 707, 710 
 ..489 
 473 
 493, 495 
 ..84 
 
 11. 
 
 V. Mounford 
 
 Barker u. Lomax 
 Barrett u. Glubb 
 Barton v. Wells 
 Bastard's case 
 Batt V. Wilkinson 
 Baugh V. Haines 
 Bean v. Lee 
 Beazley v. Beazley 
 Beecher's case 
 Beck V. Cree 
 Bennett v. Apperley 
 V. Bonaker 
 
 V. Skeffington 
 
 Berry v. Banner 
 Benie v. Beaumont 
 
 536 
 716 
 225 
 310 
 637 
 64 
 313 
 556 
 597 
 305 
 715 
 
 313 
 
 Bird i;. Ralph . . 278, 279, 286 
 Birnie v. Weller and another 184 
 
 Bishop I'. Hatch .. 561,562 
 
 Bishop of Chichester v. Harward 105 
 
 V. Harwaid 
 
 and Webber ..107 
 
 London v. Fylche 
 
 567,671,575,576 
 
 St. David's case .. 70 
 
 Lincoln v. Wolferstan 491 
 
 Bowles r. Lord Arundel .. 311 
 
 Page 
 Bowles V Walker . . 468 
 
 Breeks v. Woolfrey . . . . 432 
 
 Brown's case .. .. 310 
 
 V, Ramsden . . . . 289 
 
 V, Speuce . . . . 603 
 
 Brownlow t). Goldsborough .. 391 
 Bryan D. Whistler .. .. 433 
 
 Buller I'. Epis. Exeter .. .. 472 
 
 Bulwer v. Bulwer . . . . 497 
 
 V. Hase . . . . 422 
 
 Burder v. Veley . . 455, 463 
 
 Burdin v. Callcott . . . . 424 
 
 Burgoyne v. Free . . . . 587 
 
 Butterwotth and Baiker v. Walker 
 
 and Waterhouse . . . . 420 
 
 Buxton V. Batenian . . 392 
 
 Byerly v. Windus . . . . 409 
 
 Byrte v. Manning . . . . 489 
 
 Caddington i;. Withy . . . . 560 
 
 Carleton i^. Hulton . . . . 406 
 
 Carvin r. Pym .. .. 386 
 
 Castle D. Birmidge .. 151 
 
 Chanter D. Glubb .. ..344 
 Chapman D. Bishop of Lincoln 311 
 
 V. Thomson . . 309 
 
 Chatfield I'. Prym .. ..306 
 Chesterton v. Farlar 
 Churchwardens of St 
 
 445, 448 
 John, 
 
 Ramsgate, v. Parishioners and 
 Vicar of same . . . . 420 
 
 Clovell V. Cardinal • . 696 
 
 Cockburn 11. Harvey .. ..718 
 
 Cooper D. VVickham .. 200 
 
 Cottle n. Warrington .. •■ 560 
 
 Craven v. Saunderson 387, 452 
 
 Crispe's case . . 468, 469 
 
 Cross V. Salter . . . . . . 409 
 
 Curate of Orpington's case 286 
 
 D. 
 
 Davis V. Black . . 665, 696 
 
 Dawes v. Williams 204, 703 
 
 Dean of Ely v. Stewart . . 222 
 
 Downes D. Craig .. 538,541 
 
 Dr. Sand's case . . . • 286 
 
 Duke of Portland v, Bingham 146
 
 XIV 
 
 TABLE OF CASES. 
 
 Page 
 
 E. 
 
 Edwards i>. Bishop of Exeter 476 
 Ellis I'. Gough and Griffin . . 446 
 Errington v. Howard . . 559 
 
 Escott II. Mastin . . . . 627 
 
 Ex parte DutBeld and another 191 
 
 Greenhouse 387, 390 
 
 Meymott .. 560,561 
 
 VVinfield .. .. 191 
 
 Eyre V. Countess of Shaftesbury 647 
 
 Faulkner t). Elger .. 703,710 
 
 Fletcher u. Lord Sondes 
 
 569, 570, 574, 576 
 Frances v. Ley . . 392, 677 
 
 Fuller ti. Lane . . 392, 393 
 
 Fytche's case .. .. .. 577 
 
 Fylche v. Bishop of London 584 
 
 Gale r. Carpenter 
 
 313 
 
 Gardener v. Griffith 
 
 473 
 
 Garnelt u. Gordon 
 
 105 
 
 Gaudern v. Selby . . 
 
 455 
 
 Gilbert!;. Buzzard .. 680, 
 
 692 
 
 Glover t;. Hind 
 
 613 
 
 Goodall and Gray v. Wiiiimore 
 
 
 and Ferm 
 
 716 
 
 Goulding v. Feriu 
 
 715 
 
 Grant's case 
 
 309 
 
 Green r. Fope .. 
 
 747 
 
 Greenwood i'. Bishop of London 
 
 
 492. 
 
 493 
 
 Grcnfell v. Canons of Windsor . . 
 
 127 
 
 Griffin 11. Stanhope . . 
 
 288 
 
 Groves and Wrigiit i'. Hector of 
 
 
 Hornsey .. .. 395, 
 
 421 
 
 H. 
 
 Ifanies v. Swain . . 
 Hanicaslle r. Smitlison 
 lliiifitnl I'. Morris 
 Harris r. Diew . . 
 
 Hart r. Mar^h . . 
 MawkiriH i>. Kolly .. 
 
 >'. Rouvc 
 
 Hvrl>crt'* caM 
 Mo.illirnic V. Miiinwiiring 
 HL-Hkc-tli II. (jr.iy 
 l|pyp» f. KxeltT {^ollcgo 
 Hilroat 1'. Moyicy 
 Milliard i'. Sinpli ton 
 Jlorkinorc u. Ivcliaids .. 
 
 305 
 
 312 
 
 637 
 
 407 
 
 38 
 
 277 
 
 438 
 
 <>I7 
 
 305 
 
 573 
 
 5(i7 
 
 397. 700 
 
 670 
 
 .. 313 
 
 568. 
 
 Page 
 
 Hodgson I'. Dillon .. 398,163 
 Howlet r. Carpenter .. 241 
 
 Hubbard i-. Beckford . . 557, 286 
 HulseiJ.Monk .. .. 313 
 
 Hutchins i-. Denziloe 
 
 193, 609, 610, 700, 702 
 Hutchinson's case . . . . 490 
 
 J. 
 
 Jarrett V.Steele .. .. 391 
 Jefferson I'.The Bisliop of Durham 
 
 219, 220 
 Jeffrey's case . . . . . . 448 
 
 K. 
 
 Kele V. Bishop of Exeter and others 
 
 478 
 Kemp i. Wickes .. .. 616 
 
 Kenrick II. Taylor .. .. 408 
 
 Kent u. Burgess .. .. 636 
 
 King's Procurator- General v. 
 Stone . . . . . . 585, 586 
 
 Kirby v. Readhead . . . . 359 
 
 Knight f. Moseley .. .. 221 
 
 L. 
 
 Lagden v. Flack . . . . . . 302 
 
 Lanchester D.Thompson .. 445 
 Lawrence 1. Jones ., .. 358 
 
 D. Yeates .. 360 
 
 Leman v. Goulty . . . . 202 
 
 Liiido r. Hulisarius .. .. 637 
 
 Litilewood V. Williams 198, 676, 690 
 Lloyd i;. Peltijean .. .. 636 
 
 y. Small 314 
 
 Lord Kircudbright v. Lady Kir- 
 cudbright 22 
 
 Lord Maynaid v. Brand and Phil- 
 pot 390 
 
 Lucy II. Bishop of St. David's 96 
 
 M. 
 
 Mackenzie v. Robinson 
 
 474 
 
 Magdalen College case . . 
 
 .. 241 
 
 I\laidiiiaii r. Malpas 
 
 .. 423 
 
 INlainwaring n.CJiles 
 
 406 
 
 Man Icy v. IJarbct 
 
 .. 713 
 
 Mau-liioiicss of Rockenliain v. 
 
 (irillilh 
 
 5r.8 
 
 I\l;iiii()lt ii.Taipley 
 
 .. 434 
 
 .Mailin v.Niilkin 
 
 .. 181 
 
 iMasliri v. Fsrolt 
 
 625 
 
 May 1. Gilbert .. 392 
 
 393,401 
 
 Middlcluii V. Crofis 
 
 .. 26, 32
 
 TABLE or CASES. 
 
 XV 
 
 Page 
 
 M iddleton r. Saverin .. 635 
 
 Miller v. Bloomfield . . 449, 450 
 
 Millet i;. Rose .. .. •• 647 
 
 Mirehouse v. Rennell . . 72, 124 
 
 Mitchell V. Fordliam . . . . 342 
 
 Monk t;. Huskisson .. .. 300 
 
 Morgan t). Clerk .. .. 243 
 
 V.Curtis .. .. 406 
 
 Murthwaite v, Pearce . . 311 
 
 Muscat »;. Price .. .. .• 314 
 
 N. 
 
 Newberry v. Godwin 
 Newson v.Bawldry 
 Nicholson v. Masters 
 
 V. Squire .. 
 
 Nightingale v. Marshall 
 North v. Barber 
 Norton v. Hammond 
 
 590, 591, 595 
 
 .. 421 
 
 444 
 
 646, 647 
 
 212 
 
 280, 290 
 
 .. 299 
 
 Pack v.Tarpley 
 Partridge v. Whiston 
 Peak V, Bowin 
 Penrose v. Shepherd 
 Pigott y.Bearblock 
 Pole i;. Gardener 
 Ponget u.Tomkins . 
 Potter V. Chapman 
 Prevost y. Bennett . 
 Price V. Pratt 
 Priestly w. Lamb 
 Priichett i;.Honeyborne 
 
 562 
 
 .. 576 
 
 205 
 
 .. 311 
 
 444,445,448 
 
 .. 313 
 
 646 
 
 .. 73 
 
 313 
 
 286 
 
 645, 646, 647 
 
 300 
 
 Q. 
 
 Quiller v. Newton 
 
 431 
 
 R. 
 
 Rennell v. Bishop of Lincoln 72, 123 
 Rex D.Adams .. .. 345 
 
 r. Archdeacon of Chester 707 
 
 u. Archdeacon of Middlesex 190 
 
 «. Archbishop of Canterbury 477 
 
 ■ V, Archbishop of Canterbury 
 
 and Bishop of London 156,479,509 
 D.Bathurst .. .. 162 
 
 V. Bishop of Durham .. 106 
 
 V. Bishop of Exeter . . 153, 156 
 
 V. Bishop of Lincoln 72, 123 
 
 V. Bishop of London . . 470 
 
 — — V. Bishop of Litchfield . . 528 
 
 D. Bishop of Oxford .. 487 
 
 I'. Bishop of Winchester . . 186 
 
 V. Boldero . . . . 342 
 
 V. 
 ■ V. 
 
 V. 
 
 V. 
 
 Page 
 Rex V. Burridge . . . . 62 
 
 V, Carlisle . . . . 753 
 
 V. Clear 202 
 
 V. Coleridge . . • . 679 
 
 V. Chapelwardens of Ila- 
 
 worlh .. .. 445 
 
 V. Churchwardens of Durs- 
 
 ley . . 448, 458 
 
 v. Commissary of Winchester 710 
 
 V. Davies . . . . 208 
 
 ». Daubeney .. ..214 
 
 j;. Fenton . . . . 460 
 
 Field 154 
 
 Gaskin .. .. 208 
 
 Great Hambledon .. 343 
 Inhabitants of Hinckley . 184 
 .Jeft'eries .. .. 357 
 
 Joddrell .. 346,351 
 
 Justices of Gloucester- 
 shire .. .. 748 
 i;. Justices of Sussex . . 354 
 V. Justices of Derbyshire 747 
 V, Lacy . . . . 343 
 V, Lambeth . . . • 342 
 V. Martin . . . . 185 
 V. Milnrow . . . . 462 
 V. Poynder .. . . 183 
 v. Rector of Birmingham 188 
 V. Reeves . . . . 358 
 V. Reynell .. ..430 
 Sheriff of Lancashire .. 460 
 Stoke Damerel .. 212 
 Sillifant .. ..462 
 V. St. Mary, Lambeth . . 442 
 V. St. Margaret's and St. 
 
 John's .. 459 
 
 V. St Pancras . . . . 724 
 
 V. St. Michael's, Pembroke 458 
 V, Sparkes . . . . 594 
 
 D.Taylor .. .. 675,741 
 
 D. Teussil .. .. 490 
 
 V. Woolston .. ..741 
 
 D. Capel .. 348,351 
 
 y. D'Oyley .. 186,702 
 
 V, Exeler, Chapter of St. 
 
 Peter's .. 101 
 
 V. Guardians of Braintree 
 
 Union .. .. 731 
 
 V. Hedger . . . . 708 
 
 D.Smith 209 
 
 D. St. Mary, Lambeth 187, 704 
 
 V. 
 D. 
 
 V. 
 
 V. St. Saviour's, Southwark 
 V. St. Clement's, Ipswich . . 
 D. Stewart 
 V. Woodman 
 
 Reynolds v. Monkton 
 Reynoldson d. Blake 
 Rich D. Bushnell . . 
 Richards v. Dyke 
 Richardson v. Chapman 
 Rickeils d. Bodenham . . 
 Ridley v. Storey 
 
 458 
 
 460 
 
 675 
 
 .. 717 
 
 193 
 
 154, 542 
 
 391, 678 
 
 357,461 
 
 73 
 
 .. 461 
 
 305
 
 XVI 
 
 TABLE OF CASES. 
 
 Page 
 
 , 10 
 
 , 405 
 
 476 
 
 Roberts r. Pain . . 
 
 Rogers r. Brookes and Wife 
 
 Rogers r. Holled 
 
 S. 
 
 Sanders v. Davis . . . . 536 
 
 Salkeld v. Johnsoa . . 297, 298. 307 
 Saunders r. Head . . . . 35, 89 
 
 Sawbridge i'. Benton . . 303, 306 
 Scorey V. Baker .. .. 311 
 
 Scott i;. Airey . . . . . . 294 
 
 Scrimsliire r. Scrimshire .. 635 
 
 Shorley t). Underliill .. ..149 
 
 Shirock v. Boucher . . . 498 
 
 Silver r. Bishop of Norwich . . 559 
 Slocombe v. St. John . . 185 
 
 Smith r. Dickson .. .- 441 
 
 Spooner v. Brewster . . 408, 424 
 Spy V. Flood . . . . 706 
 
 r. Guardians of Marylebone 690, 
 
 693 
 Stallwood V. Tredgear . . . . 644 
 
 Startup r. Dodderidge .. 310 
 
 Stephens v. Wall .. ..491 
 
 Stock r. Booth . . . . 405 
 
 Stockman r. Wither . . . . 220 
 
 Strachey v. Francis . . . . 428 
 
 Sloughton r. Reynolds . . .. 706 
 
 Sullivan v. Sullivan . . 646 
 
 Taw ney's case .. .. 444 
 
 The Bisiiop of London %'. Fytche 568 
 Tlicobald 1. Crichmore .. 463 
 
 J honias and lluyhes v. Morris. . 394 
 Thorpe r. IMancell .. .. 179 
 
 Thorp I. Mattingley .. 303,304 
 
 Thompson v. TrafTord 
 Tong V, Robinson 
 Topsail V. Ferrers . . 
 Travis v. Oxtan . . 
 
 Page 
 223 
 
 . 469 
 691 
 
 ,. 310 
 
 V. 
 
 Veley v. Burder 437, 438, 439, 455, 
 457, 463, 464 
 
 • n. Gosling .. .. 457 
 
 Vernon v. Sloane . . . . 360 
 
 W. 
 
 Walker v. Hammersley 
 
 Waite V. Bishop . . 555, 
 
 Warton i;. Yorke 
 
 Walker v. Gunner and Drury 
 
 AVarden of St. Paul's v 
 
 Dean 
 West V, Turner . . 
 Wilson V. M'iMalh .. 
 Wise I'. Rletcalf 
 
 404, 
 The 
 
 495 
 556 
 647 
 401, 
 405 
 
 301 
 
 .. 170 
 
 702, 705 
 
 281,540 
 
 Wither v. Dean of Winchester 221, 
 
 222 
 504 
 470 
 
 Woodcock V. Smith 
 Woodley v. Episc. Exeter 
 Wolferstan v. Bishop of Lincoln 
 
 and Whitehead 
 Wright V. Elderton . . 
 V. Sniythies 
 
 497 
 359 
 288 
 468 
 360 
 457 
 559, 
 560 
 
 Whinfield v. Watkins 286, 566, 557, 
 
 558 
 
 Wyvie's case 
 
 Whieldon v. H.irvey 
 
 White !'. Beard 
 
 V. Bishop of Peterborough 
 
 ERRATUM. 
 Page 3 — Marginal note, dele " Bishop."
 
 BOOK I. 
 
 OF PERSONS ECCLESIASTICAL. 
 
 CHAPTER I. 
 
 OF THE CHURCH OF ENGLAND THE CHURCH ESTA- 
 BLISHMENT — AND THE queen's SUPREMACY. 
 
 The Church, as is well known, in its most extended sense, jj^^ ^^^^ 
 signifies all those who are by profession Christians, all church, 
 believers in the Gospel generally, who constitute the visible 
 Church of Christ on earth.'' But it has also a more limited 
 meaning, in which it is used in the latter part of the 
 nineteenth of our Articles, in which it signifies only the 
 Christians of one country, city, or persuasion. In this 
 latter sense we use it in this work ; in which we are speak- 
 ing only of the Church of England : a particular Church 
 included in an universal. But it has occasioned much 
 difficulty and confusion, that the term by which in this 
 case we designate the particular and universal, is the 
 same ; and has been very generally used indiscriminately. 
 
 Probably neither of these meanings can be taken as the 
 primary one of the word Church, as it is of the Greek 
 IxxXijcr/a, and of the word thence derived in the Latin, for 
 there the primary idea is evidently the elect, or the as- 
 sembly, or the general body of the faithful : secondarily 
 only, the temple or place where they meet together for 
 rehgious worship. Our word, which is nearly similar to 
 that of most of the northern nations, was probably for- 
 merly pronounced with the consonants hard, as now in 
 Scotland, and derived from the Greek to xugjaxov, belong- 
 ing to the Lord, or as it has been further, with probability, 
 suggested, xugioO oTxoj, or oix/a, the Lord's House, thence 
 applied secondarily to those who there assemble.** 
 
 Such at least is the usually received derivation of the 
 word. It may, however, be suggested, that this derivation 
 by no means precludes the possibility, or perhaps the pro- 
 
 * Tomline on the Nineteenth Article. 
 
 ^ See 2 Burn's E. L. 321, and Rogers's K. L. 
 
 B
 
 2 OF THE CHURCH OF ENGLAND, 
 
 bability, of a primary meaning in our word, such as that 
 oC eoclesia, and such as we have used it in this chapter. 
 Kugiaxoj, or belonging- to the Lord, is equally applicable to 
 either meaning; and if we take the word ojx»«, or perhaps 
 even oTxoj, in a meaning which would be strictly classical, 
 to signify a household or family, or a fraternity,'' we have 
 a primary meaning to our word Church, even more ap- 
 propriate and satisfactory than that of the Latin word 
 ecclesia. 
 Persons eccle- This Churcli or Christian fraternity has been and is 
 siasiical. governed, or presided over, by certain ecclesiastical per- 
 
 sons of various degrees of authority ; and they, together 
 with the whole body, are subject to one supreme head. 
 Formerly Previously to the time of the Reformation in this country, 
 
 regular and thesc ecclesiustical persons were divided into regular and 
 secular. Regular, because they lived under certain rules, 
 and were professed in some of the orders of religion, and 
 had vowed three things — true obedience, perpetual chastity, 
 and wilful poverty ; such as abbots, priors, monks, and 
 others of such orders regular. And secular, such as did 
 not live under any of such orders, and so called for dis- 
 tinction's sake, as bishops, deans and chapters, arch- 
 deacons, canons, parsons, vicars, and such like. And 
 Littleton probably alludes to this distinction, when he 
 speaks of men of religion and of holy church.*^ But 
 in the reign of Henry VIIL, when the monastic rule of 
 life was abrogated, the regular ecclesiastical ])ersons ceased 
 to be any longer recognized by the laws of the country as 
 a j)art of the church establishment;* with these therefore 
 we have no further care, 
 roniieciionof '^"'^0 exact j)osition which the Church of England as such 
 
 ihe Church will) occuj)ics with rcspect to the civil government, and the 
 the Stale. wiiole comnuuiity of the state, is matter of political reason- 
 
 ing and speculation, rather than of law ; a subject upon 
 wliich opinions have been, and probably ever will be, 
 widely dillerent; and upon which it would therefore be 
 unwise to enter at any length in a treatise upon those 
 legal subjects which admit of no doubt nor speculation, 
 but which have been firndy settled and determined. 
 
 Tlie subject however of this union, connection, or alli- 
 ance, between the (Jburch and the State, whichever of the 
 above terms may be deemed most aj)])ropriate, is one which 
 dir«'ctly or indirectly has a strong bearing uj)on many ques- 
 tions of l'.cclesiasli(!al Law. And without noticing the 
 extreme opinions on the one hand, tliat ihe (■hurch and her 
 
 •■ Sec the use of ihi-t word \>y .\eiio|ihon, l.vsias, and Isociates. 
 <• Co Kill. c. (i, i:);J. ' A. b. 1530.
 
 CHURCH ESTABLISHMENT, AND QUEEN S SUPREMACY. tl 
 
 religion are mere creatures of the State ; on the other, that 
 the temporal power is wholly dependant or subordinate ; 
 and without hazarding any opinion in a question of so much 
 difficulty, it may be useful to mention the condensed 
 opinions of those who are entitled to most weight on this 
 subject. In a recent work, in which the whole question Opinion of 
 has been fully considered,' the opinion of Hooker, in his l^'shop Hooker. 
 Ecclesiastical Pohty, is stated to have been, " That the 
 same persons compose the Church and the Commonwealth 
 of England universally ; that the same subject is therefore 
 intended vuider the respective names of the Church and 
 the Conmion wealth ; and that it is thus variously named 
 only in respect of accidents, or properties and actions, 
 which are different. His opponents, it is said, contended 
 for a personal separation, which precluded the same man 
 from bearing sway in both ; he for a natural one, which 
 did not forbid such an union of authorities. He con- 
 sidered that the Church and the Commonwealth are in this 
 therefore personally one society ; which society is termed 
 a Commonwealth, as it liveth under whatsoever form of 
 secular law and government; a Church, as it has the 
 spiritual law of Jesus Christ. That in this society, con- 
 sidered as a Church, the king is the highest uncommanded 
 officer : that his chief ecclesiastical powers are in right of 
 his headship : the right of calling or dissolving the greater 
 assemblies ; that of assent to all Church ordinances, which 
 are to have the force of law; the advancement of prelates; 
 the highest judicial authority; and in general an exemp- 
 tion from the ordinary church censures to which others 
 are liable. That the conveyance of power is not to each 
 sovereign in succession, but to one originally, from whom 
 the rest inherit ; and the body cannot help itself but with 
 consent of the head, while there is one. That the king's 
 judicial power is subject to Church Law ; and it is the 
 head of all, simply because not confined to a district, but 
 legally reaching to all. That kings have authority over 
 the Church, if not collectively, yet divisively understood ; 
 that is, over each particular person in that Church where 
 there are kings. That the Commonwealth, when the 
 people are Christians, being ipso facto the Church, the 
 clergy alone ought not to have the power of making laws. 
 Quod omnes tangit ah omnibus tractari et approbari debetJ" 
 And the fact is, that canons of the clergy in their synods 
 liave generally taken no effect as laws, without the appro- 
 bation of governors. In this country, as we shall have to 
 observe in speaking of the convocation, the laws made by 
 
 f Gladstone on Church and State. 
 
 b2
 
 4 OF THE CHURCH OF ENGLAND, 
 
 the clergy in their assembhes have no power to bind the 
 laitv, unless confirmed by the parliament, in which case, 
 it is the act of the parliament, not of the clergy, which 
 gives them force and validity. " The king's power of 
 assent," he says, " is a power derived to him fiom the 
 whole body of the realm ; the religious duty of kings is 
 the weightiest part of their sovereignty." 
 Opinion of The opinions of Bishop Warburton on this subject, are 
 
 Bishop War- in the same place stated to be, " That civil society, being 
 burton. defective in the control of motives, and in the sanction of 
 
 reward, has, in all ages, called in the aid of religion to 
 supply the want : the State contemplates for its end the 
 body and its interests; has for its means, coercion; for its 
 general subject-matter, utility. The Church is a religious 
 society of distinct orioin ; havino- for its end, the salvation 
 of souls; for its subject-matter, truth ; for its instrument, 
 persuasion ; regulating motives as well as acts, and pro- 
 mising eternal reward. Though separate, these societies 
 would not interfere, because they have different provinces, 
 but the State having needs as above stated, and the Church 
 wanting protection against violence, they have each rea- 
 sons sulHcient for a voluntary and free convention. Ac- 
 cordingly the societies united, not indeed under any formal 
 engagement, with all the stipulated conditions ; but like 
 sovereign and people in the original contract. That is, the 
 theory of the alliance accurately represents the true idea 
 according to which they ought to unite. The conditions 
 of the union are, that the Church receives a free main- 
 tenance for the clergy, a share for her security in the 
 legislative body, and a coactive power, to be used in her 
 Spiritual Courts for a purpose, which is also a state pur- 
 jjose, namely, the correction of certain forms of vice. In 
 return (or which she surrenders to the State her original 
 indc|)endcncy, and subjects all her laws and movements 
 to the necessity of the State's previous approval. If there 
 be more than one such religious society or church, the 
 State is to contract with the largest, to which will natu- 
 rally belong the greatest share of political influence." 
 Opinion of 'I he opinion of Dr. Paley differs somewhat considerably 
 
 Dt.Viky. i\,,iu the foregoing; he says,« " that the authority of a 
 
 • liiirch establishment is founded only on its utility. That 
 the single end we ought to projjose by it, is the preser- 
 vation and comnnniication of religious knowledge. That 
 every other end, and every other idea, that have been 
 mixed with this, as the making the Church the engine or 
 even the ally of the state, converting it into the ujeans of 
 
 » Monil anil I'oIiliiMl I'lulosopliy, ciiap. x.
 
 CHURCH ESTABLISHMENT, AND QUEEN 's SUPREMACY. 5 
 
 strengthening or diffusing influence ; or regarding it as a 
 support of regal, in opposition to popular, forms of govern- 
 ment, have served only to debase the institution, and to 
 introduce into it numerous corruptions and abuses. That 
 the notion of a religious establishment comprehends three 
 things, — a clergy, or an order of men secluded from other 
 professions, to attend upon the offices of religion ; a legal 
 provision for the maintenance of the clergy ; and the con- 
 fining of that provision to the teachers of a particular sect 
 of Christianity." 
 
 From the above opinions of these eminent writers, which Church esta- 
 we have here selected on account of their diversity, it will blishment asse- 
 be seen that this question is very speculative ; and pro- church. "^""^ 
 bably, in order to arrive at any tangible view of this ques- 
 tion in a legal sense, we must separate the Church Esta- 
 blishment from the general idea of the Church, or consider 
 the persons ecclesiastical as representing the Church of 
 England. 
 
 The connection between the Church and State will then Connection be- 
 be most obvious, in the fact that the sovereign head of the t^'een the 
 State is the head also of the Church Establishment, the ^j'^^'t ''"'^ 
 
 „ ,.,. . ^ ,. ,. ', blate by means 
 
 source irom which its superior otncers derive their autho- ofthesamediief 
 
 rity, and the ultimate resort in all causes in which the magistiate. 
 
 ecclesiastical establishment is concerned. The seats of 
 
 the bishops in the Upper House, and the votes allowed to 
 
 the clergy in the electing members of the Lower House of 
 
 parliament, may be other instances of this connection ; 
 
 but the union of the civil and ecclesiastical polity is chiefly 
 
 evident in the incidents which arise from the unity of their 
 
 head. 
 
 Before the Reformation, therefore, when the supremacy Did not exist 
 of the Pope was acknowledged in all matters ecclesias- Ijefore the Re- 
 tical, there was, legally speaking, no union between Church °"^^"°°* 
 and State in this country ; and the evils of such a dis- 
 union were apparent in the constant jealousy and quarrels 
 which existed between the civil and ecclesiastical autho- 
 rities. The clergy in those times seem always carefully 
 to have repudiated any connection with or depend ance on 
 the State. Not only was their ecclesiastical jurisdiction 
 entirely independent of the civil, — extending over a great 
 variety of causes, — trespassing upon the province of the 
 laity, and threatening an universal supremacy over all 
 persons and causes ; but they claimed, and for a time ob- 
 tained, an absolute exemption from the justice of the State. 
 Of such matters we shall speak hereafter in treating of 
 the former privileges of the clergy''. At present we only 
 notice them to remark, that when such a state of things 
 
 '' Vide pes', Chap. VI.
 
 6 OF THE CHURCH OF ENGLAND, 
 
 existed, it would be obviously impossible to consider that 
 
 there was any real connection or alliance between the civil 
 
 and the ecclesiastical polity. 
 
 Establishment This alliance, therefore, may be said to have commenced 
 
 of the king's la the 22d year of the reign of Henry VIII. ; in which 
 
 supremacy in when the whole cleroy of this realm were supposed 
 
 ccclesiaslical . ' . »l' „ • .1 • 
 
 mailers. to have nicurrcd the penalties 01 a prc^imoiire, they mi- 
 
 plored the clemency of the king, and petitioned in convo- 
 cation for a remission of those penalties; and in their 
 petition, the king was, for the first time, styled the pro- 
 tector and supreme head of the Church and clergy of 
 England. The words, as Gibson has given them, being — 
 ** Ecclesiae et cleri Anglicani cujus singularem protectorem 
 unicum et supremum dominum, et quantum per Christi 
 legem licet etiam supremum caput ipsius majestatem re- 
 cognoscinuis'." This, therefore, it will be observed, passed 
 with the important qualification " so far as is permitted 
 by the law of Christ." And in an act of parliament passed 
 shortly afterwards, reciting that the king's majesty justly 
 and rightfully is, and ought to be, the supreme head of 
 the Church of England, and so had been recognised by 
 the clergy of this kingdom in their convocation, it is 
 enacted, that the king shall be reputed the only supreme 
 head in earth of the Church of England, and shall have 
 annexed to the imperial crown of this realm as well 
 the title and style thereof, as all jurisdictions, authorities, 
 and commodities, to the said dignity of supreme head of 
 the Church appertaining. ** And after this declaration of 
 the law, those who denied the supremacy of the king 
 subjected themselves to capital punishment. This act, 
 however, was repealed in the first year of the reign of 
 iMary ', and the su|)remacy of the Pope over the Church 
 of these realms was once more established by law. But 
 by one of the first acts of the parliament which met soon 
 after the accession of Elizabeth, the supremacy in eccle- 
 siastical affairs was restored to the crown ; and from that 
 time continuously to the present, the sovereign of these 
 reahns has been alike tlie head of the State and of the 
 Church of England, — supreme over all persons and all 
 causes ecclesiastical as well as civil ; and to deny such 
 .supremacy, or to assert the supremacy of the Pope, are 
 ofH-ncfs which are severely punishable by our law'". 
 
 In this character of supreme governor and head of the 
 I-.staMished Church in (liis country, tlu; sovereign may be 
 considered as a person ecclesiastical ; but he is not subject 
 to, or affected by, any of those restrictitms, which we shall 
 
 • (iibii. V!3, i> -(, lit,,, (t, i. 1. I Mar. scss. 1. c. 1. 
 
 "• Sec 1 Kdw. 0. <•. \2 ; I LWi.c. I.ss. 27,30 ; C, Uh. c. 1, s. 2.
 
 CHURCH ESTABLISHMENT, AND QUEEN 8 SUPREMACY, 7 
 
 hereafter have to mention, as affixed to ecclesiastical per- 
 sons generally. 
 
 In virtue of his authority as supreme head of the Church, "is piemgaiives 
 the sovereign convenes, prorogues, restrains, regulates and ^'^ ^ 
 dissolves all ecclesiastical synods or convocations. This 
 was an inherent prerogative of the crown, long before the 
 time of Hen. VIII., as appears by the statutes 8 Hen. VI. l" '''<^ convoca- 
 c. 1, and the many others, both lawyers and historians, 
 vouched by Sir Edward Coke; and would be, besides, 
 sufficiently evident from the nature and origin of the con- 
 vocation ; so that the statute 25 Hen. VIII. c. 19, which 
 restrains the convocation from making or putting in exe- 
 cution any canons repugnant to the king's prerogative, or 
 the laws, customs and statutes of the realm, was merely 
 declaratory of the old common law ; that part of it only 
 being new, which makes the king's royal assent actually 
 necessary to the validity of every canon °. 
 
 From this prerogative also, of being the head of the Appointment of 
 Church, arises the king's right of nomination to vacant bishops, &c. 
 bishopricks, and certain other ecclesiastical preferments, 
 which will more properly be considered when we come to 
 treat of the different ranks of persons ecclesiastical. 
 
 As the head of the Church, the king is likewise the Appeal to king 
 dernier resort in all ecclesiastical causes ; an appeal lying >n P"*y council, 
 ultimately to him from the sentence of every ecclesiastical 
 judge ; which right was restored to the crown by statute 
 25 Hen. VIII. c. 19°. This appeal to the sovereign in 
 ecclesiastical causes now lies to the judicial committee of 
 his privy council, or, as it is legally expressed, to the 
 sovereign in council; of which court, and its jurisdiction, 
 we shall speak in considering the government and dis- 
 cipline of the ecclesiastical body p. 
 
 In all matters of doctrine, worship, discipline and go- Church of Ire- 
 vernment, the Church of Ireland is governed by the same ^° ' 
 laws as the Church of England ; and the Churches of 
 England and of Ireland are, since the union of these 
 countries, united into one Protestant Episcopal Church, 
 called the United Church of England and Ireland ; and 
 the continuance of this Church of Ireland is to be deemed 
 an essential part of the Union"!. All matters, therefore, 
 which are treated of in the present volume, unless where 
 any exception is particularly specified, relate equally to 
 the United Church of England and of Ireland. 
 
 " 1 Black. Com. 279. ° Ibid. i' See post, Ch. IV. 
 
 n 39 & 40 Geo. 3, c. 67, art. 5.
 
 ( 8 ) 
 
 CHAPTER II. 
 
 OF ORDINATION. 
 
 Persons eccle- In Speaking of persons ecclesiastical, the first point for our 
 siasucal a sepa- consideration will be, the manner in which they are, as it 
 [(3ig_ were, set apart from the rest of their fellow citizens, made 
 
 a separate order in the state, and qualified to discharge the 
 duties of their holy office. 
 How separated. The Apostles having appointed certain persons to be 
 the standing governors and preachers of the Christian 
 Church, it has been thought necessary that there should 
 be a power lodged somewhere to set apart some distinct 
 orders of men for the exercise of those public offices ; and 
 this is by the ceremony of ordination ; a rite of a character 
 so sacred, that in the Roman Catholic Church it is ac- 
 counted a sacrament, as an outward visible sign of an in- 
 ward sjiiritual grace conferred. And in that Church there 
 were several orders to w hich a man might be ordained ; 
 which distinctions are not admitted in the Church of Eng- 
 land ; but the only orders in our Church, as declared by 
 different statutes, are those of bishops, priests, and dea- 
 cons.* 
 
 With respect to the ordering of bishops we shall speak 
 more particularly hereafter; for as every bishop, prior to 
 his ordination, is already an ecclesiastical person, the sub- 
 ject is foreign to our present purpose. 
 
 The word ])riest is in all Christian languages nearly the 
 same; all evidently taken from the Greek Trpsa-^vTipos; and 
 in like manner the word deacon, with little variation, is to 
 be found in all the same lanouaoes, and is deduced from 
 the (ireek ciaxovoj. 
 
 It does not appear necessary here to consider the va- 
 rious canonical iiupedinients which formerly existed to the 
 taking of orders; they were expressed with a somewhat 
 inniute particularity ; but all such as could be considered 
 reasonublo are suliiciently included and embodied in the 
 preface! to the form of ordaining deacons, which gives these 
 simple directions only. 
 
 The bishop knowing by himself, or by sufficient testi- 
 
 • 3 i:dw. i 6 & (j Eiiw. G ; i3& 14 Car. 2 ; Uibs. Cod. 1 15. 
 
 DifTerent kinds 
 of orders. 
 
 Bishops. 
 
 Priests and 
 deacons. 
 
 Canoniciil itn- 
 IMMJiriicnls to 
 orders. 
 
 (Qualification of 
 a deacon as to 
 inoraliiy.
 
 OF ORDINATION. 9 
 
 mony, any man to be of virtuous conversation, and without 
 crime, and, after examination and trial, finding him learned 
 in the Latin tongue, and sufficiently instructed in Holy 
 Scripture, may admit him a deacon.^ 
 
 And, with respect to priest's orders, it is directed by the Of a priest, 
 statute 13 Eliz. c. 12, that none shall be made minister 
 (which is to be considered here as synonymous with the 
 word priest), unless it appear to the bishop that he is of 
 honest life, and professeth the doctrine expressed in the 
 Thirty-nine Articles, nor unless he is able to answer and 
 render to the ordinary an account of his faith in Latin ac- 
 cording to the said articles, or have special gift or ability 
 to be a preacher. 
 
 The above requisites therefore being observed, the others Bishop the sole 
 are not now necessary; and with regard to the moral and judge of the 
 personal qualifications of the candidate, it appears that the o"f life candidate 
 bishop in his discretion is the sole and proper judge, un- 
 fettered in the exercise of his judgment by any particular 
 tests which might formerly have been imposed. 
 
 And, as a guide to the bishop in the exercise of his dis- Testimonials of 
 cretionary power, it is declared that the candidate shall conduct, 
 then exhibit letters of testimonial of his good life and con- 
 versation under the seal of some college of Oxford or 
 Cambridge, where before he remained, or of three or four 
 grave ministers, together with the subscription and testi- 
 mony of other credible persons, who have known his life 
 and behaviour for three years next before;'^ which regula- 
 tion applies to priests and deacons equally. And if the can- 
 didate has quitted college, and has been residing elsewhere, 
 a notice, usually termed a " Si quis," must be published 
 in the church of the parish where the candidate has usually 
 resided, the object of which will be best understood by the 
 form thereof given in the appendix;^ and a certificate that 
 such has been properly published must be sent with the 
 testimonials to the bishop. 
 
 There are other qualifications, however, besides those of 
 moral conduct, the observance of which is indispensable. 
 
 No bishop shall admit any person into holy orders un- Qualification in 
 less he, desiring to be a deacon, is three-and-twenty years respect of age. 
 old, and to be a priest, four-and-twenty years complete; 
 and as to priest's orders, the canon is affirmed in that re- 
 spect by statute,^ and it being consequently a part of the 
 statute law of the realm that none shall be admitted priest 
 (or minister), being under the age of four-and-twenty years, 
 
 ^ Preface to form of ordaining deacon. 
 
 •^ Canon, 34. See forms of testimonials in Appendix. 
 
 d See App. No. I. e 13 Eliz. c. 12.
 
 10 
 
 OF ORDINATION. 
 
 Ordioalion of 
 persons under 
 I he proper age is 
 void. 
 
 As to lapse ia 
 consequence of 
 such void ordi- 
 nation. 
 
 Where such a 
 fjuestion would 
 be triable. 
 
 Qualification in 
 re()|)cct of title. 
 
 there can be no dispensation ; but with regard to deacon's 
 orders, the regulation being by the canon law only, the 
 qualification of age might possibly be dispensed with ; and 
 by viKue of a faculty or dispensation from the Archbishop 
 of Canterbury, allowed sometimes to persons of extraoi'- 
 dinary abilities, a person might be admitted to deacon's 
 orders sooner.*^ And so essential is this qualification of 
 proper age considered, that it is declared by statute, that in 
 case any person shall, from and after the passing of that act 
 (1804), be admitted a deacon before he shall have attained 
 the age of three-and-twenty years complete, or admitted 
 a priest before he shall have attained the age of four-and- 
 twenty years complete, in every such case, the admission 
 of every such person as deacon, or priest, respectively, 
 shall be void in law, as if such admissipn had not been 
 made ; and the person so admitted-shall be wholly inca- 
 j)able of having, holding, or enjoying, or being admitted to 
 any parsonage, vicarage, benefice, or other ecclesiastical 
 promotion, or dignity whatsoever, in virtue of such his 
 admission as deacon or priest respectively, or of any qua- 
 lification derived or supposed to be derived therefrom : 
 provided that no title to confer or present by lapse shall 
 accrue by any avoidance or deprivation ij) so facto by virtue 
 of this statute, but after six months' notice of such avoid- 
 ance or deprivation given by the ordinary to the patron.s 
 
 Previously to the time of passing this statute, where a 
 person, who had been presented to a parish church, was 
 libelled against in the spiritual court as not having been 
 properly qualified in age at the time of his ordination, a 
 prohibition was prayed, on the suggestion that if the matter 
 was true, a temporal loss, viz. deprivation, would follow, 
 and that it was tlierefore triable in the temporal court j but 
 the prohibition was refused;'' and should such a case now 
 arise, although, in consequence of the statute, the only 
 jiossible matter to be tried would be the fact of the right 
 age of the party, it seems that the spiritual court would still 
 be jnoj)er ("or that piu'pose. 
 
 'I'he next indispensable qualification is, that the candi- 
 date to be admitted into holy orders should have some 
 (•(•rl;iin phice where he may use his function ; and this is 
 called his title to orders, — without which, if any bishop 
 shall admit any person into the ministry, then he shall 
 keep .111(1 maintain him with all things necessary till he do 
 prclcr him unto some ecclesiastical living: and if the said 
 bishop shall irfuse so to do, he shall be suspended by the 
 
 ' Sec 44 Geo. 3. v.. 43 ; and Koycrs's K. i..G0'2. 
 
 » 44 Geo. 3, c. 43. "' K. 1 .fac. 2 ; Rohcris v, Vaiti.
 
 OF ORDINATION, 11 
 
 trclibishop, assisted by another bishop, from giving- of 
 orders for the space of a year. ' 
 
 Such titles to orders may be had of the seven following 
 different kinds. ' 
 
 The party desirous of being ordained must, at that time. Different kinds 
 exhibit to the bishop of whom he desireth imposition of <^'^ ^'^*^''^- 
 hands, a presentation to himself to some ecclesiastical 
 preferment, then void, in the diocese; or he must bring to 
 the said bishop a certificate, that either he is provided of 
 some church within the said diocese where he may attend 
 the cure of souls, or of some minister's place vacant "either 
 in the cathedral church of that diocese, or in some other 
 collegiate church therein also situate, wherein he may 
 execute his ministry ; or he must bring a certificate that 
 he is a fellow or jn right as a fellow ; or that he is to be 
 a conduct or chaplain in some college in Cambridge or 
 Oxford ; except by the bishop himself that doth ordain 
 him minister he be shortly after to be admitted either to 
 some benefice or curateship then void."" And another title 
 to orders is mentioned in the 33d canon together with 
 these ; namely, that of being a Master of Arts of five years' 
 standing that liveth of his own charge in either of the uni- 
 versities. But such is not now considered as a sufficient 
 title ; nor would it be allowed as such by any bishop, 
 according to the opinion of those best qualified to form a 
 judgment on the subject.' 
 
 Some of these appear to have been considered as good 
 titles to orders before the time of the canon, while others 
 appear to have been established or extended by the canon. 
 
 In cases where letters dimissory (to be afterwards spoken Bishop, giving 
 of) are given, it is the business of the bishop giving them, 'liters dimis- 
 not of him to whom they are sent, and by whom the can- ^hal there is a 
 didate is actually ordained, to see that there is a good title; good title. 
 and he shall consequently be liable to the penalty, if there 
 should be no good title.'" 
 
 The next qualification necessary for the taking of holy Qualification 
 orders is one which must necessarily depend in a great j" respect of 
 measure on the discretion and judgment of the bishop ; '^'^^°' ^' 
 viz. that the candidate shall be sufficiently learned in lite- 
 rature, and in the knowledge of the Holy Scriptures, and 
 in the religious doctrine of the Church ; for no bishop shall 
 admit any person into sacred orders except he hath taken 
 some degree of school in either of the two universities ; or, 
 
 ' Canon 33. ^ Ibid. 
 
 ' Communicated lo the author as the present practice of the bishops. 
 
 '» Rogers's E L. G04 ; (Jib. s. 144.
 
 12 OF ORDINATION. 
 
 at the least, except he be able to yield an account of his 
 faith in Latin, according to the 39 Articles." And, by the 
 statute of EHzabeth before quoted, none shall be made 
 minister [priest] unless it appear to the bishop that he is 
 of honest life, and professeth the doctrine expressed in the 
 39 Articles ; nor unless he be able to answer and render 
 to the ordinary an account of his faith in Latin, according 
 to the said articles, or have special gift or ability to be a 
 preacher. 
 Examination. -^.nd in order to ascertain whether the candidate for holy 
 
 orders has this last-mentioned qualification, the bishop, 
 before he admit any person into holy orders, shall dili- 
 gently examine him in the presence of those ministers that 
 assist him at the imposition of hands;" and if the bishop 
 have any lawful impediment, he shall cause the said minis- 
 ters carefully to examine every such person so to be or- 
 dained ; and if any bishop or suffragan shall admit any to 
 sacred orders who is not so examined and qualified, the 
 archbishop of his province, having notice thereof, and being 
 assisted therein by one bishop, shall suspend the said bishop 
 or suffragan, so offending, from making either deacons or 
 priests for the space of two years. p 
 Arciideacon the Which examination, according to Lindwood, pertaineth 
 proper person to of common right to the archdeacon, and in the canon law 
 examine. jj- |g j^j^j down as One branch of the archidiaconal office ; 
 
 and this is also supposed to be the case in our form of 
 ordination, both of priests and deacons, where the arch- 
 deacon's office is to present the persons that are apt and 
 meet.'' 
 
 But there appears to be no reason deducible from con- 
 venience, or otherwise, why the common law right should 
 not remain the same, and the injunctions of the canon be 
 obeyed ; for the archdeacon, who, from his dignity, should 
 always be fitted for the performance of such a duty, might 
 well be appointed the examining chaplain to the bishop; 
 and in fact this jiractice has latterly begun to prevail in 
 the best ordered dioceses of this country. 
 Oaths and sub- The next indispensable qualification for holy orders is, 
 scri|.ii()n neces- that the candidate, before he receive or take any such 
 ordmaiiion! orders, shtill take the oaths of allegiance and supremacy 
 before the ordinary or commissary ; nor can he be ad- 
 mitted to the oftice of deacon or minister, unless he shall 
 first subscribe to all the articles of religion agreed upon in 
 convocation in the year 1562, which alone contain the 
 confession of the true Christian faith, and the doctrine of 
 
 " ('.iiion 31. " Canon Sf). 
 
 P Canon 3-1. q 3 Burn's K. I.., Ordination.
 
 OF ORDINATION. 13 
 
 the sacraments ; and he must further subscribe to the fol- 
 lowing articles : '^ 
 
 First. That the king's majesty, under God, is the only King's supre- 
 supreme governor of this realm and of all other his high- macy. 
 ness's dominions and countries, as well in all spiritual or 
 ecclesiastical things or causes as temporal : and that no 
 foreign prince, person, prelate, state, or potentate, hath, 
 or ought to have, any jurisdiction, power, superiority, pre- 
 eminence, or authority, ecclesiastical or spiritual, within 
 his majesty's said realm, dominions and countries. 
 
 Second. That the book of Common Prayer, and of boo^ of Con,. 
 ordering of bishops, priests and deacons, containeth in it mon Prayer, 
 nothing contrary to the word of God, and that it may 
 lawfully so be used, and that he himself will use the form 
 in the said book prescribed, in public prayer and admi- 
 nistration of the sacraments, and none other. 
 
 Third. That he alloweth the book of articles of religion Thirty-nine 
 agreed upon by the archbishops and bishops of both pro- ^ "^ ^^' 
 vinces, and the whole clergy, in the convocation at London, 
 in the year of our Lord God 1562, and that he acknow- 
 ledgeth all and every the articles therein contained, being 
 in number nine-and-thirty besides the ratification, to be 
 agreeable to the word of God. Which subscription, as it 
 seemeth by the same and following canon, must be before 
 the bishop himself. And for the avoiding all ambiguities, 
 such person shall subscribe in this form and order of 
 words, setting down both his Christian and surname, viz. 
 I, N. N., do wiUingly, and ex animo, subscribe to these 
 three articles above mentioned, and to all things that are 
 contained in them. 
 
 Of these several qualifications before mentioned, it will The conferring 
 be observed that some are fixed in their nature and indis- °^ 'Jf^^''^ '^ ^^^' 
 pensably necessary ; that others depend in a great measure 
 upon the discretion and judgment of the bishop. But it 
 does not necessarily follow that a person, having all these 
 qualifications, could demand as right that he be ordained ; 
 for it is after all discretionary in the bishop whom he will 
 admit to the order of priest or deacon, and he is not obliged 
 to give any reason for his refusal. For by the statute, 
 rubric, and canon, he is not required, but permitted to 
 admit persons having such qualifications as we have men- 
 tioned, and prohibited from admitting any who have them 
 not ; but he is not enjoined to admit any persons although 
 they have these qualifications. Consequently if a bishop 
 should refuse to ordain, or to give his reasons for such 
 refusal, or if he should give them and they should appear 
 
 r 1 Eliz. c. 1 ; I Will. 3, c.8; 13 Eliz. c. 12; Can. 36.
 
 14 OF ORDINATION. 
 
 to be insufficient, it does not appear that the rejected can- 
 didate would have any remedy. 
 Candidates A candidate for holy orders, being qualified as we have 
 
 must be or- j^gj.g mentioned, and approved of by the bishop, is to be 
 dbcese'where ordained by the bishop of his own diocese ; that is, of the 
 their title is. diocese where his title, or place where he may use his 
 function, happens to be. And no person shall admit any 
 person into sacred orders which is not of his own diocese, 
 except he be either of one of the universities of this realm, 
 or except he shall bring letters dimissory from the bishop 
 of whose diocese he is."" 
 Fellows of col- With respect to the first of these exceptions, the being 
 leges ordained of ouc of the Universities, means the being a fellow, or in 
 by the bishop of J.- .}^ fellow, of somc college, on which title he may 
 
 tlie diocese , » i • , i i • .• ° • -^i i ^ 
 
 where their col- be ordained ; but this exception is permitted, not com- 
 
 lege is situated, manded, by the canon ; and in the ancient acts of ordi- 
 nation, the fellows of New College, Oxford ; Saint Mary 
 Winton, and King's College, Cambridge, and no others, 
 are mentioned as possessed of a special privilege from the 
 pope to be ordained by what bishops they pleased; and 
 they are said to be sufficienter dimissi, in virtue of that 
 privilege, and without letters dimissory; but it does not 
 appear that at that time the fellows of any other college 
 were possessed of a similar privilege, and now, in practice, 
 there is no exception to the general rule in this respect, 
 either as to the fellows of the particular colleges above 
 mentioned, or of any other ; but as all ordination is dis- 
 cretionary in the bishops as to whom they will ordain or 
 not, it appears to be a rule by them estabUshed, and con- 
 sequently of full force, that the title of a fellow of a college 
 in one of the universities shall be a title only in that diocese 
 in which tlie university is situated, so that fellows in the 
 University of Oxford are ordained by virtue of that title 
 by the Bishop of Oxford only ; and those in the Univer- 
 sity of Cambridge, in like manner, by the Bishop of Ely.* 
 A return to the ancient jiractice, for which there obviously 
 exist many and well founded reasons. Nevertheless, it ap- 
 pears that a bishop of any other diocese, who might choose 
 to make an exception in this matter, might do so, without 
 incurring any of the penalties before mentioned for ordain- 
 ing a person without a title : and probably even now there 
 may be individual cases which, for special reasons, are 
 made exceptions. 
 
 Letters dimis- I'ho other exception to the rule above mentioned, viz. 
 
 scry. 
 
 • Canon 34. 
 
 • C!ommunicnted to ihc author as the present practice of the bishops.
 
 OF ORDINATION. 15 
 
 the case of letters dimissory from another bishop, is an ex- 
 ception apparent rather than real : for these letters dimis- 
 sory are nothing more than a license from the bishop of the 
 diocese, where the candidate has his title, by virtue of which 
 license the candidate to whom it is granted may be ordained 
 by the bishop to whom it is sent : and in such a case the Duty of bishop 
 bishop granting the letters dimissory must take care that g'^ammg them, 
 the candidate has every proper qualification as to age, 
 morals, acquirements, &c., and that he has the qualifica- 
 tion of title within his diocese, and he would be liable to 
 the penalties imposed in each case if the candidate were 
 ordained improperly, and without these qualifications. 
 
 The bishop therefore, to whom the letters dimissory are 
 directed, has merely to perform the ministerial act of or- 
 dination; for doing which he is not responsible, if any 
 qualification should be found to have been wanting; for 
 he is to presume that the persons recommended to him 
 are fit and sufiicient. 
 
 During the vacancy of any see, the right of granting wiio to grant 
 letters dimissory within that see rests in the guardian of during a va- 
 the spiritualties; and, in consequence, the right of ordain- cancyofthesee. 
 ing also, where such guardian is of the episcopal order; 
 and if a bishop be in parts remote, it seems that his vicar- in certain otiier 
 general may grant letters dimissory, and those who enjoy cases. 
 jurisdictions entirely exempt from the bishop." 
 
 Where a spiritual corporation, aggregate or sole, exer- 
 cises peculiar jurisdiction, a candidate for ordination on a 
 title within such jurisdiction receives a letter dimissory 
 from such corporation to the bishop of the diocese, where 
 the cure giving such title is locally situate. But where 
 the peculiar is subject to any other jurisdiction than that 
 of such a corporation, the candidate for ordination, or the 
 person possessing such jurisdiction, prefers his petition to 
 the local bishop to ordain, who, on being satisfied with the 
 title. Sec. consents to do so.'' 
 
 But archdeacons and oflicials cannot grant letters di- Archdeacons 
 missory, neither can the archbishop as metropolitan ; but, ^^'^ officials 
 at the time of his metropolitan visitation of any diocese, ™^^ °° ^^^^ ' 
 he may grant letters dimissory, and also ordain the clergy 
 of the diocese visited.^ 
 
 If any bishop shall ordain a person of another diocese Bishop ordain- 
 without the special license of the bishop of that diocese, '"S candidate 
 he shall be suspended from ordaining any person to that riioces'e"wiiliout 
 order which he shall have so conferred, until he have license. 
 
 » Gibs. Cod. 164 ; Ayl. Parer. 482. 
 
 " (Communicated to the author as being the usual practice. 
 
 y Gibs. Cod. 164 i Ayl. Parer. 482.
 
 16 
 
 OF ORDINATION. 
 
 Foreigners may 
 be ordained by 
 English bishops. 
 
 Persons or- 
 dained for the 
 colonies. 
 
 Restrictions on 
 persons or- 
 dained for tlie 
 colonies from 
 officiating iii 
 Kngiand. 
 
 made a proper satisfaction. And the person so ordained 
 by him shall be suspended from the exercise of such order 
 until he obtains a dispensation from his own bishop, that 
 is, the bishop by whom he ought to have been ordained, 
 who may ratify such ordination ; and of such dispensations 
 there are to be found many instances in our ecclesiastical 
 records.^ 
 
 In speaking of these several preliminary qualifications, 
 which are to be observed previously to the setting apart of 
 any person for the discharge of the sacred office, it may be 
 well to mention that such remarks are intended to apply 
 only to such as are to become persons ecclesiastical, and 
 to exercise their holy office within this realm ; for by the 
 statute of 24 Geo. III. c. 35, after reciting that divers sub- 
 jects of foreign countries are desirous that the Word of 
 God and the sacraments are to be administered to them 
 according to the Liturgy of the Church of England by sub- 
 jects of the said countries, ordained according to the form 
 of ordination in the Church of England, the Bishop of 
 London, or any other bishop to be by him appointed, is 
 empowered to admit to the order of deacon or priest, for 
 the purposes aforesaid, persons, subjects, or citizens out of 
 his majesty's dominions, without requiring them to take 
 the oath of allegiance ; but such persons so ordained can- 
 not exercise their office within his majesty's dominions. 
 
 And by statute 59 Geo. III. c. GO,"" the archbishops of 
 this realm, or the Bishop of London, or any bishop autho- 
 rised by any or either of them, may admit to the holy 
 orders of deacon, or priest, any person whom, on examina- 
 tion, he shall find duly qualified specially for the purpose 
 of taking on himself the cure of souls, or officiating in any 
 spiritual capacity in his majesty's colonies, or foreign pos- 
 sessions, and residing therein; and a declaration of or 
 written engagement to perform such purpose, under the 
 hand of such person, being deposited in the hands of such 
 archbishop or bishop, shall be held a sufficient title with a 
 view to such ordination ; and it shall be distinctly stated 
 in his letters of ordination that he has been ordained for 
 cure of souls in his majesty's foreign possessions. 
 
 No person admitted into holy orders for these purposes 
 shall be caj^able of holding, or being admitted to, any be- 
 nefice, or other ecclesiastical dignity soever, within the 
 United Kingdom, or of acting as curate therein, without 
 the previous consent and approbation in writing under the 
 hand and seal of the bishop of the diocese in which any 
 
 » Gibs. 142. 
 
 » Sect. 1.
 
 OF ORDINATION. 17 
 
 such benefice, kc, is locally situate, nor without like con- 
 sent of such one of the said archbishops or bishop of 
 London, by whom, or by whose authority he has been ori- 
 ginally ordained, or in case of the demise or translation of 
 such archbishop or bishop, of his successor in the same 
 see; provided that no such consent, &c. shall be given, 
 unless the applicant first produces a testimonial of his good 
 behaviour during his residence abroad from the bishop in 
 whose diocese he has ofticiated ; or if no such bishop, from 
 the governor in council of the colony in which he may 
 have been resident, or from the colonial secretary of state. 
 
 No person admitted into holy orders by Bishops of And on those 
 Quebec, Nova Scotia, or Calcutta, or by any other bishop ordained by co- 
 or archbishop than those of England or Ireland, shall be ^°''"' ^''^°^'' 
 capable of officiating in any church or chapel of England 
 or Ireland without special permission from the archbishop 
 of the province where he proposes to officiate, or of hold- 
 ing or being admitted to any ecclesiastical j^referment in 
 England or Ireland, or acting as curate therein, without 
 the consent and approbation of the archbishop and of the 
 bishop of the diocese, wherein any such preferment or cu- 
 racy is situate. 
 
 No person, after 2d July, 1819, ordained deacon or priest 
 by a colonial bishop, who, at the time of such ordination, 
 did not actually possess episcopal jurisdiction over some 
 diocese, district, or place, or was not actually resident 
 therein, shall be capable of at any time holding preferment 
 within his majesty's dominions, or of being stipendiary 
 curate or chaplain, or officiating in any place or manner 
 as a minister of the Established Church of England and 
 Ireland. And all admissions, inductions, and appoint- 
 ments to curacies made contrary to this act shall be void. 
 
 The restrictions under which persons thus ordained are 
 placed show how essentially necessary the qualifications 
 for ordination before mentioned are considered for minis- 
 ters of the Established Church in this country. 
 
 It appears that so early as the fourth or fifth century. Time of ordina- 
 the Jejunia quatuor teviporum, or the Ember-weeks, tion. 
 became the fixed period for ordination. And these are 
 understood to be the certain seasons alluded to by the 
 canons of Lanfranc, at which it was there enjoined that 
 ordination should be performed. And by statute'' the 
 bishop may admit to the order of priest or deacon at the 
 times appointed by the canon, or else upon some urgent 
 occasion, upon some other Sunday or holiday, in the face 
 
 b 3&4Edw. 6; 13 & 14 Car. 2.
 
 18 OF ORDINATION. 
 
 of the cliurcli. Gibson says that the practice has been for 
 the bishop to have the archbishop's dispensation for de- 
 parting from the canon. Formerly, he says, it was a spe- 
 cial prerogative of the see of Rome ; and the upper house 
 of convocation in ]Mary's reign resolved that the bishops 
 should be authorised by the pope to give orders extra 
 quatuor tempora." At the present day, ordinations are 
 generally on the Sundays next following the Ember-weeks; 
 but orders are frequently conferred at other times also ; 
 and it does not appear now to be the practice to obtain a 
 dispensation from the archbishop for so doing. 
 Form ofordina- It does not appear to be useful here to speak in detail 
 t'o"" of the form or manner of ordaining priests and deacons, 
 
 which is to be found in many of our books of Common 
 Prayer. 
 
 It is directed by the thirty-first canon that the giving of 
 orders should be in the cathedral or parish church where . 
 the bishop resides. So that, as Dr. Burn observes, the 
 bishop's jurisdiction as to conferring of orders is not con- 
 fined to one certain place, but he may ordain at the parish 
 church where he shall reside.'^ But in practice even the 
 parish church does not seem to be considered essentially 
 necessary, in the case of a bishop ordaining out of his 
 cathedral church or out of his diocese ; for a late Bishop 
 of Hereford, who was also warden of Winchester College, 
 and consequently resided at the latter ])lace, was in the 
 habit of conferring orders within the chapel belonging to 
 the college. Nor does there appear to be any legal or 
 valid objection to such a course; but regularly, it is said, 
 leave ought to be obtained of the bishop within whose 
 diocese the ordination is performed;^ which, as Gibson 
 says,' is agreeable to the rule of the ancient canon law, 
 which directs that a bisho]> shall not ordain within the 
 diocese of another without his consent. But it does not 
 appear that the bishop so conferring orders incurs any 
 penalty, though he should ordain without such consent. 
 Pecs for. No fee or money shall be received either by the arch- 
 
 bishop or any bisho]> or surrogate, either directly or indi- 
 rectly, for admitting any person into sacred orders; nor 
 shall any other person or persons under the said arch- 
 bishop, bishop, or suffragan, for parchment, writing, wax, 
 "^(•alini^, or any other respect thereto api)ortaing, take above 
 lO.v., imdor such pains as are already by law prescribed.*^ 
 Every parson, vicar and curate is rf^quired to show his 
 
 ' Godolph. Abr. App. 19 ; and see Rogers's E. L. GOG. 
 
 •' John*. 34 ; .3 burn's E. L. 28. 
 
 «• Johns. 34. t Gibs. 139. ? Canon 35.
 
 OP ORDINATION. 19 
 
 letters of orders to the bishop at his first visitation, or at 
 tlie first visitation after his admission, to be allowed or 
 disallowed, and, if approved, to be signed by the registrar; 
 the whole fees to be paid but onee in the whole time of 
 every bishop, and afterwards but half the fees.'' 
 
 Blackstone, in more than one place, observes' that the Simoniacal or- 
 obtaining orders, or a license to preach, by money or any J'nat'O"'- 
 corrupt practice is the true, though not the common, notion 
 of simony; and certainly the sin of Simon Magus, from 
 which the name is generally considered to be derived, is 
 much nearer allied to this kind of simony than to any 
 other. 
 
 And in the earliest mention of simony in the ecclesias- ^ar'y mention 
 tical constitutions of this country, at a council held at °]Q^^y ti°e ' 
 Winchester in 1070, there are two heads, of which the se- canon law. 
 cond is, " of ordaining men promiscuously, and by means 
 of money." And in Lanfranc's Canons in the same year, 
 it is ordered that no one be ordained by simoniacal heresy. 
 In Corboyl's Canons, in 1126 and 1127, it is said to be 
 forbidden by the apostolical see that any should be or- 
 dained or preferred by means of money. 
 
 And by Canon 35 it is ordered, that no fee or money 
 shall be received, either by the archbishop, or any bishop, 
 or surrogate, either directly or indirectly, for admitting any 
 person into sacred orders ; nor shall any other person or 
 persons under the said archbishop, bishop, or suftragan, 
 for parchment, writing, wax, sealing, or any other respect 
 thereto appertaining, take above 10s., under such pains as 
 are already by law prescribed. 
 
 Thus we see that, from an early period, this kind of 
 simony was known to and forbidden by the laws of the 
 Church; but whether, notwithstanding the prohibition, the 
 crime continued as open and notorious as that of the si- 
 mony more commonly so termed (the corrupt presentation 
 to benefices for gift or reward), we have no authority for 
 determining. 
 
 By the statute 31 Eliz. c. 6, for the prevention and Forbidden by 
 punishment of simony generally, this kind of simony is ^'^^" ^' 
 provided against; and it is enacted that if any person shall 
 receive or take any money, fee, or reward, or any other 
 profit, directly or indirectly, or shall take any promise, 
 agreement, covenant, bond, or other assurance, to receive 
 or have any money, fee, reward, or any other profits, di- 
 rectly or indirectly, either to himself or to any other of his 
 friends (all ordinary and lawful fees only excepted), for or 
 
 '' Canon 137. '1 Comm. 388 ; 2 Comm. 275 ; 4 Comm. 62. 
 
 c2
 
 20 OF ORDINATION. 
 
 to procure the ordaining or making of any minister, or 
 g-ivino- of any orders or license to preach, he shall for 
 every°such offence forfeit the sum of 40/. ; and the party 
 so corruptly ordained or made minister, or taking orders, 
 shall forfeit the sum of lOZ. And if at any time within 
 seven years next after such corrupt entering into the mi- 
 nistry, or receiving of orders, he shall accept or take any 
 benefice, living, or promotion ecclesiastical, then immedi- 
 ately from and after the induction, investing, or installation 
 thereof or thereunto had, the same shall be eftsoons merely 
 void ; and the patron shall present, collate unto, give and ' 
 dispose of the same, as if the party so inducted, invested, 
 or installed, had been naturally dead."" 
 Corrupt bar- As to what might be considered a corrupt bargaining for 
 
 gaining for or- taking orders, the opinion of Lord Eldon in the following 
 case appears important; and it appears to be immaterial that 
 the case was decided on other grounds than those to which 
 Lord Eldon alludes ; for his observations on the subject 
 are general, and involve a principle upon which the de- 
 cision of that particular case would not have thrown much 
 light. 
 
 The late Lord Kircudbright, by his bond, dated the 1st 
 of October, 1793, bound himself to his eldest son, the pre- 
 sent lord, in the penal sum of 300/., with a condition to be 
 void, if Lord Kircudbright, the father, his heirs, executors, 
 &c. should pay to his said son an annuity of 100/., until 
 his said son should be instituted and placed in the posses- 
 sion of a living in the Church of England; and from such 
 time, if the said John Lord Kircudbright, his heirs, execu- 
 tors, (fcc, should pay to his said son, his executors. Sec, so 
 unich money as, with the net income of such living, should 
 produce the clear yearly sum of 150/., to commence on the 
 day on which he should be inducted into such living, and 
 continue until he should be in the actual possession and 
 enjoyment of a living, which should produce the clear an- 
 nual sum of 160/. 
 
 By an agreement in writing between the same parties, 
 and of the same date, reciting the bond, and that previous 
 to the laic Lord Kircudbiight's entering into such bond, it 
 was agreed that his said son should enter into holy orders, 
 and should accept a living in the Church of England, con- 
 forniabh! to tlu; said bond, as soon as the same could be 
 procured for iiim, the present Lord Kircudbright in con- 
 sef|uonce thereof did thereby declare and agree that he 
 would forthwith enter into holy orders, and would accept 
 itnd f;ike to such living as might be procured for him, as 
 
 •' Scot. 10,
 
 OF ORDINATION. 21 
 
 soon as the same could be gotten ; and tliat, in case he 
 should at any time decKne or refuse so to do, the said re- 
 cited bond should be of no avail. 
 
 The Lord Chancellor' expressed great doubt as to the 
 validity of the bond of the late Lord Kircudbright, ob- 
 serving, that it was void on a great many accounts. It is 
 a corrupt agreement for taking holy orders, such as the 
 court ought to decree to be delivered up. The policy of 
 the ecclesiastical constitution of this country requires that 
 a man should take orders without any reference whatsoever 
 to considerations of this nature. There is no objection to 
 the bond itself, except as connected with this agreement 
 at the same time for a pecuniary consideration to take 
 holy orders. Another objection to this bond is, that the 
 father is put under these circumstances ; that he is to so- 
 licit the benefit of patronage for this pecuniary considera- 
 tion moving from himself, the policy of the law supposing 
 the patron to look out for persons the best that can be 
 recommended to him, which excludes pecuniary considera- 
 tion. 
 
 The case stood over in order that this point might be 
 considered ; and on a subsequent day the Lord Chancellor 
 said : " This case raises a very considerable and important 
 question to the purity of the Church Establisjiment, whe- 
 ther, the principles of it requiring from the candidates for 
 holy orders that they should pledge themselves solemnly 
 as to the motives inducing them to enter into that profes- 
 sion, and considering the purity of their motives as one 
 principal test of their sufficiency, if this had been an instru- 
 ment between strangers, the court would support it; in- 
 volving this question, whether one party might not have 
 come here, stating that he was willing to take orders, pro- 
 vided this fund was set apart; and whether he could call 
 upon the court to set apart a portion of the assets, and 
 decree him to take orders. The next consideration is, 
 whether, if there would be any objection to this transaction 
 in the case of strangers, it may not prevail between father 
 and son. It is not necessary in this case to decide either 
 of those questions ; but I should be very unwilling to part 
 with this subject, without saying that, however familiar it 
 may be, that this transaction is right, I desire it not to 
 be understood that any court of justice has acceded to that 
 opinion. I should have been very unwilling to put these 
 parties to the expense of arguing the point in a court of 
 law, and would rather have taken the short mode of speak- 
 ing to some of the judges upon it. Last night I mentioned 
 
 I Lovd pidon,
 
 22 
 
 OF ORDINATION. 
 
 Notice neces- 
 sary before or- 
 dination. 
 
 it to one of the chief justices, who told ine his mind was 
 impressed with the same doubt upon this subject as mine. 
 If the attention of people was called to this, the difficulty 
 would not be felt. But circumstances, that are very ill 
 reconciled to what is required upon the resignation and 
 acceptance of livings, and the absence of all contract by 
 ecclesiastical men upon those subjects, happen with a fre- 
 quency making them so familiar, that men, who, if well 
 informed, would be the last to act incorrectly, will do so, 
 unless they take the trouble to inquire whether such prac- 
 tices are reconcilable either to law or to our ecclesiastical 
 constitution.""" 
 
 A party, who intends to become a candidate for orders, 
 must give a written notice of such his intention to the 
 bishop, by whom he seeks to be ordained. But as to the 
 time at which this notice is to be given, no positive rule 
 can be laid down. It is a matter entirely within the dis- 
 cretion of the bishop ; and, consequently, varying in dif- 
 ferent dioceses — one year, six months, or three months, 
 are the different periods usually required. This notice 
 should state the age, college, academical degree, and usual 
 place of residence of the candidate, together with the names 
 of any persons of respectability to whom he is best known, 
 and to whom the bishop may apply, if he thinks fit, for 
 any further information concerning him." 
 
 CHAPTER III. 
 
 OF THE CONVOCATION. 
 
 Clergy a dis- 
 tinct order in 
 tlie blate. 
 
 Their councils 
 andas»cMiblics. 
 
 Certain persons, qualified in such manner as we have 
 mentioned in our last chapter, having been thus by ordi- 
 nation set apart from the rest of tlieir countrymen, may, 
 for most purposes, be considered as constituting a separate 
 order in the state; having, in many respects, a polity 
 peculiar to themselves, and containing various gradations 
 of rank, from one supreme head and governor, down to 
 the large body of })arochial clergy and stipendiary cu- 
 rates". 
 
 Of these various ranks and dignities, of their power 
 and authority, uiid of llic manner in which they are de- 
 
 ■" /..■»<< Kircudlni^hl v. l.ntli, Khcudbrighl, 3 Ves. 51. 
 '■ 1 lie diil.;rcni forms and IcstimonialH, &c. wiiii wiiicli the candidate for 
 ordination must be provided will be found in the Appendix, No, T. 
 • KfC Black. Com. book 1, chap. 2.
 
 OF THE CONVOCATION. 23 
 
 pendent upon, and subservient or subordinate to, one an- 
 other, we shall proceed to speak in their order ; but first, 
 we speak of their existence as a recognised separate body 
 in the state, in those representative councils in which for- 
 merly they often were, and in which they still may be, 
 convoked, and of their power, privileges and authority 
 when there assembled. 
 
 Such assemblies are called the Convocation, custom Convocation. 
 having- specially determined the sense of that word to an 
 ecclesiastical use. 
 
 At a very early period in our annals, and so far back as Ancient coun- 
 we have any authentic account of the great councils of ^.''^ °f ^"^^'e- 
 the realm or parliament, the bishop and some of our other ^'^^^"^^• 
 prelates were consulted, and acted in them together with 
 the laity. In which parliaments it is probable that the 
 opinions of these ecclesiastics was of preat weio;ht, as 
 
 I'll n O' 
 
 bemg the only persons of any learnmg, who in those days 
 of ignorance met to make laws and regulations ; and, in- 
 dependently of these parliaments, the archbishop of each 
 province, when the kingdom was divided into provinces, 
 had the power of calling together his suffragan bishops, 
 and these bishops again, each in his own diocese, had the 
 power of calling together their clergy. 
 
 After the Norman conquest, the prelates and superior Taxation of the 
 clergy were taxed in respect of their baronies, but the clergy the origin 
 body of the clergy were exempt from the charges assessed ^^^^ convoca- 
 upon the laity ; and it was only when the pope laid a tax 
 upon the Church for the use of the king, that the clergy, 
 obliged to yield to this union of the spiritual and tem- 
 poral power, contributed to the public revenues ; and 
 sometimes the bishop of the diocese, being prevailed upon 
 by the king, held a meeting of his clergy, in which they 
 censented to grant subsidies in the way of a benevolence. 
 But Edward I., desirous of a more certain method of ob- 
 taining supplies, remodelled the whole form of represen- 
 tation ; and it was a part of his scheme, that, for the pur- 
 poses of taxation, the spiritual and the temporal estates 
 should be charged separately, though in the same manner, 
 namely, by the consent of the representative body ; and 
 hence the origin of the convocation, the inferior clergy 
 being called together by their representatives, in order that 
 they might tax themselves. 
 
 The bishops, who were already convoked in respect of Convocation 
 their baronies in the temporal parliament, were, as a part ""''^^ the 
 of this scheme, to sit with the assembled clergy. The ""^^'^^ ^^ 
 convocation, therefore, in its origin, was for the purpose 
 of taxation and no other; it was altogether unlike the
 
 24 
 
 Gradual as- 
 sumption of 
 authority. 
 
 Two convoca- 
 tions. 
 
 Power of convo- 
 cation limited 
 by Stat. 25 
 lien. 8. 
 
 The Act of Sub 
 mission. 
 
 OF THE CONVOCATION. 
 
 convocation of the foreign synods, which were composed 
 solely of the bishops, collected to declare what was the 
 doctrine, or what should be the discipline of the Church ^ 
 
 It is easy, however, to conceive how the clergy, when 
 once convoked, gradually assumed the same power as 
 existed in those foreign synods to which their convocation 
 might appear to bear some analogy. Accordingly, that 
 their power might not be made to depend on temporal 
 authority, they objected to meet, except by a summons 
 from the archbishop of their province, who summoned 
 them in pursuance of the king's writ ; and in order that 
 the summons might not appear to be solely in pursuance 
 of the king's writ, the archbishop, it is said, for the most 
 part, varied in his summons from the king's writ, both as 
 to the time and place of the meeting. And still, lest it 
 might appear that their power was derived from temporal 
 authority, they sometimes, in assertion of their privilege, 
 met on the summons of the archbishop, without the king's 
 writ : the validity of which convocations the king acknow- 
 ledged by demanding his supplies. So that the king's 
 writ came to be considered by the clergy as no more than 
 one motive for their convening : but as the authority of 
 the archbishop extended only over his own province, a 
 consequence followed necessarily which was never con- 
 templated in the origin of the convocation ; for, instead of 
 forming one, they now composed two ecclesiastical synods 
 under the summons of each of the archbishops ; and thus 
 they sat separately, and made canons by which each re- 
 spective province was bound. 
 
 But tlie power of the convocation, whatever it may at 
 any former time have been, as to which it is not always easy 
 to reconcile the authorities, was restricted, or perhaps, more 
 properly speaking, defined, by a statute which has been 
 called the Act of Submission, passed in the 25th year of 
 Hen. VIII. For Lord Coke, speaking of a part of this 
 enactment, says'', it was but an affirmance of what was 
 before the statute; for it was held before, that if a canon 
 be against the law of the land, the bishop ought to obey 
 the connnandment of the king according to the law of the 
 land. That enactment is as follows : — 
 
 \V hereas the king's humble and obedient subjects, the 
 clergy of this realm of England, have not only acknow- 
 ledged, according to the truth, that the convocation of the 
 same clergy is, always liath been, and ought to be, as- 
 .scndilcd only by the king's writ; but also, submitting 
 themselves to the king's majesty, have promised in verbo 
 <» 2 Burn's E. L., Convocation, c 12 Co. 72,
 
 OF THE CONVOCATION. 25 
 
 saccrclotii, that they will never from henceforth pre- 
 sume to attempt, allege, claim, or put in use, enact, pro- 
 mulge, or execute any new canons, institutions, ordi- _, 
 nances, provincial or other, or by whatsoever name they 
 shall be called in the convocation, unless the king's most 
 royal assent and license may to them be had, to make, 
 promulgate and execute the same, and that his majesty 
 do give his most royal assent and authority in that behalf; 
 it is therefore enacted, according to the said submission, 
 that they, nor any of them, shall presume to attempt, 
 allege, claim, or put in use any constitutions or ordi- 
 nances provincial, by whatsoever name or names they 
 may be called, in their convocations in time coming (which 
 always shall be assembled by authority of the king's writ), 
 unless the same clergy may have the king's most royal 
 assent and license to make, promulge, and execute such 
 canons, constitutions, and ordinances, provincial or sy- 
 nodal ; upon pain of every one of the said clergy doing 
 contrary to this act, and being thereof convicted, to suffer 
 imprisonment and make fine at the king's will'*. 
 
 The convocation of the province of Canterbury, there- Constitution of 
 fore, of which alone v.e need speak, for that of York ^''e convocation, 
 appears never to have been important, since the above act 
 of submission, is summoned only by the archbishop's writ, 
 under the king's direction. It consists, since the Reform- 
 ation (that is, since the extinction of abbacies and prior- 
 ships,) of the suffragan bishops forming the upper house ; 
 of the deans, archdeacons, a proctor or proxy for each Proctors, 
 chapter, and two from each diocese elected by the parochial 
 clergy, who together constitute the lower house. ^ But of the province 
 in the province of York two proctors are elected for every of York, 
 archdeaconry : otherwise the number would be so small 
 as scarcelv to deserve the name of a provincial synod. 
 The parochial clerg\' have consequently as great an interest 
 in convocation there as the cathedral clerav. But in the 
 province of Canterbury the lower house of convocation 
 consists of twenty-two deans, twenty-four proctors of the 
 chapters, fifty-three archdeacons, that is, ninety-nine of 
 the cathedral clergy ; while there are but forty- four proc- 
 tors for the parochial clergy.* Only parsons, vicars and By whom 
 perpetual curates are capable of giving their votes in chosen, - 
 chusing proctors for the parochial clergy." If any of the 
 proctors die, the archbishop issues his mandate to the 
 bishop of that diocese to elect another ; and this, by virtue 
 of the power inherent in him to summon his suffragan 
 
 d 25 Hen. 8, c. 19. « Hallam, Const. Hist, of Engl. ch. 16. 
 
 f Wake. 34 j 2 Burn's E. L., Convocation. s Johns. 150.
 
 26 OF THE CONVOCATION. 
 
 bishops, who being to obey him in all things lawful and 
 honest, and the clergy their bishop in the like manner, 
 they by that command make an election to supply the 
 place of one of their proctors.'' And as there are two 
 houses of convocation, so there are two prolocutors ; one 
 of the bishops of the higher house, chosen by that house, 
 another of the lower house, and presented to the bishops 
 for their prolocutor.' 
 Office of the In this assembly subsidies were granted, and ecclesi- 
 
 convocation. astical canons enacted ; and in a few instances under 
 Henry VIII. and Elizabeth, they were consulted on mo- 
 mentous questions affecting the national religion;'' but 
 this was as to their advice only, because the parhament 
 have always insisted that their laws, by their own natural 
 force, bind the clergy, as the laws of all christian princes 
 Laws made by, did in the first ages of the church ; whereas, on the other 
 do not bind the hand, the laws made by the convocation, even when they 
 "^* had received the royal assent and approbation, could not 
 
 bind the laity. 
 Even in mailers Although, howevcr, this latter proposition is now so 
 of ecclesiastical clearly established, it does not appear to have been always 
 junsdicuon. considered so free from doubt in matters of ecclesiastical 
 jurisdiction ; for in a case in the King's Bench in 1736,' 
 it was said, — This is a question of very extensive learning 
 and of great consequence, upon which there is some ap- 
 pearance of variety in the law books ; and the great length 
 and careful nature of the judgment in that case may be 
 taken as a strong proof that the law was not previously 
 considered as fully settled. But nothing can be more 
 Judgment of clear and conclusive than the language of Lord Hard- 
 ier.! Hard. wicke in that case. " To argue first," he savs, " from the 
 general nature and fundamental principles of this consti- 
 tution, nothing is so undoubtedly such, as that no new laws 
 can be made to bind the whole people of this land, but 
 by the king with the advice and consent of both houses 
 of parliament, and by their united authority : neither the 
 king alone, nor the king with the concurrence of any par- 
 ticular number or order of men, have this high power. To 
 cite authorities for this would be to prove that it is now 
 day. The binding force of these acts of parliament arises 
 from tliat prerogative which is in the king as our sovereign 
 liege lord, from that personal right which is inherent in 
 the peers and lords of parliuiuent, to bind themselves and 
 their heirs and successors in their honours and dignities, 
 and \'vi)\\\ the delegated power vested in the commons as 
 
 '■ (iill.. Kxch.se, 59; 2 Hum's E. L., Convocation. ' 4 Inst. 322. 
 
 ilallam, ante. i Middlclon v. Crofts, 2 Atkyns, 650.
 
 OF THE CONVOCATION. 27 
 
 the representatives of the people : and therefore Lord 
 Coke says,'" these represent the whole commons of the 
 realm, and are trusted for them : by reason of this repre- 
 sentation every man is said to be party to, and the con- 
 sent of every subject is concluded in, an act of parliament : 
 but in canons made in convocation, and confirmed by the 
 croAvn only, all these are wanting except the royal assent ; 
 here is no intervention of the peers of the realm, nor any 
 representations of the commons." 
 
 It follows from what has been here said, that no regu- 
 lations made by the convocation could be binding even 
 upon churchwardens, much less upon the people generally, 
 even as regards church or churchyard, or other things 
 ecclesiastical, or even as to the mode or ordering of Divine 
 service. And as regards the clergy themselves, the follow- Limited power 
 ino- summarv of what has been decided by the judges to o' fhe convo- 
 
 , s f. ,, ' • ,11 » ,1 -. 1 • ■ 1 .1 i cation in makiDg 
 
 be the full meanmg ot the Act of t?ubmission shows that canons. 
 the power of the convocation over them is very limited ; 
 for it has been resolved upon that statute," 
 
 1. That a convocation cannot assemble at the convoca- 
 tion without the consent of the king. 
 
 2. That after their assembly, they cannot confer to 
 constitute any new canon without the assent or license of 
 the king. 
 
 3. When they, upon any conference, conclude any ca- 
 nons, yet they cannot execute any of their canons without 
 the royal assent. 
 
 4. that they cannot execute any after the royal assent, 
 but with these four limitations. 
 
 a. That they be not against the prerogative of the 
 
 king, nor 
 
 b. Against the common law, nor 
 
 c. Against any statute law, nor 
 
 d. Against any custom of the realm. 
 
 The power of the convocation to make ecclesiastical Decline of the 
 regulations, is, moreover, by inference still further hmited convocation. 
 by other acts of parhament, such as by the acts of 
 uniformity under Elizabeth and Charles 11. ; and espe- 
 cially by that confirming (and thereby rendering unalter- 
 able,' without the sanction of parliament,) the Thirty-nine 
 Articles. 
 
 Accordingly the ])ower of convocation being thus limited, 
 it appears that from the time of the Act of Submission, 
 they had very little to do but to grant subsidies, which, 
 however, after that time, were always confirmed by an 
 act of parliament : an intimation that the legislature did 
 
 '"4lnst. 1. "T. 8Ja.; Burn, ante.
 
 28 
 
 OF THE CONVOCATION. 
 
 Self-taxation 
 by the clergy 
 discontinued. 
 
 Cessation of all 
 business in the 
 cuQvocation. 
 
 Subncf|ucnl 
 tovival of the 
 convocation. 
 
 not wholly acquiesce in their power of binding the clergy 
 in a matter of property:" nevertheless the clergy con- 
 tinued to tax themselves in convocation as before, and 
 these assemblies were regularly kept up until the thir- 
 teenth year of Charles II., when the clergy gave their 
 last subsidy. And by a private agreement, as it has been 
 called, between the Archbishop and Lord Chancellor 
 Clarendon, the clergy agreed silently to waive the privilege 
 of taxing their own body, and to permit themselves to be 
 includecT in the money bills prepared in the House of 
 Commons. The first public act relating to this was in 
 1665, by which the clergy were, in connnon with the laity, 
 charged^ with the tax imposed in that act, and were dis- 
 charged from the payment of the subsidies they had before 
 granted in convocation : but in this act there is an express 
 saving of the right of the clergy to tax themselves in con- 
 vocation if they think fit.'' The two subsidies which the 
 convocation had already granted were thus remitted as 
 a sort of recompence, and the clergy were thenceforth 
 allowed to vote at elections. Upon this it has been re- 
 marked, that the clergy made a barter of power for profit, 
 — but the power they gave up was merely nominal, — and 
 there can be little doubt, but that the power of self-tax- 
 ation had proved a useless and expensive privilege ; for 
 the infiuence of the king in the convocation would always 
 be very considerable, by reason of the ecclesiastical prefer- 
 ment in his gift; and the subsidies granted by them would 
 consecpiently be higher than the fair proportion which 
 they ought to bear in comparison with the laity. And as 
 the authority and pre-eminence of the church at that time 
 stood very high, it could not then have seemed the aban- 
 donment of an important privilege. ^ 
 
 The original object therefore, for which the clergy had 
 been sununoned to meet in convocation, no longer existed 
 after the early part of the reign of Charles II. The power of 
 making fresh canons, which they had gradually assumed, 
 had been, by the Act of Submission, so far limited, as to 
 be almost nugatory; and it was a natural consequence of 
 this cessation of all business, that the convocation, after a 
 few formalities, either adjourned itself, or was postponed 
 by a royal writ. 
 
 JJiit aflcr the Revolution of 1688, at a time when party 
 spirit was very high, no less among ecclesiastics than 
 among the laify, the sittings of the convocation were 
 
 Hallam's Const. Hist. Ch. 16. 
 
 P Onslow's Note on liurnet, Oxf. ed. 4, 508. 
 
 'I Ilallam's Const. Hist. ch. 16.
 
 OF THE CONVOCATION. 29 
 
 revived : questions affecting the Church and doctrine were 
 agitated there with much violence, and the convocation 
 for a time appeared to assume an importance which it had 
 never attained previously. For as all their proper offices 
 were at an end, they began to assume "the difficult and 
 dangerous task of fixing the standard of orthodoxy, and 
 in 1711, the two houses of convocation concurred in cen- 
 suring the tenets of Mr. Whiston, a professor at Cam- 
 bridge, as favourable to Arianism. But a doubt arose as 
 to their power. The archbishop doubted whether the 
 assembly could proceed against a man for heresy : the 
 judges were consulted, and the majority of them gave it as 
 their opinion that the convocation had a jurisdiction. 
 Four of them however professed the contrary sentiment, 
 wdiich they maintained from the statutes made at the Refor- 
 mation. The queen, in a letter to the bishops, said, that 
 as there was now no doubt of their jurisdiction, she ex- 
 pected they would proceed in the matter. But fresh 
 scruples arising, they determined to examine the book 
 without proceeding against the author. And this was 
 censured accordingly. The queen did not signify her 
 pleasure on this matter, and the affair remained in sus- 
 pense. In the year 1717, the convocation proceeded to 
 examine two performances of Dr. Hoadley, Bishop of Ban- 
 gor, and it was then that such confusion arose, that it was 
 found necessary to put a stop to the proceedings by a pro- 
 rogation. Since which time the convocation has never sat 
 for business."" The question, therefore, which might be- 
 come important, must be considered as still doubtful ; 
 whether, if the sittings of the convocation should be revived, 
 they would have any legal right of examining questions of 
 orthodoxy, or proceeding against siq^posed heretics? 
 
 Any more detailed history of the last days of the convo- Disputes and 
 cation would be little edifying. The greater part of the qua^els. 
 time of the lower house was taken up in quarrelling with 
 the bishops in the upper house ; and in fact the inferior 
 clergy in convocation appeared, to be far more powerful 
 and energetic, perhaps because less responsible from their 
 numbers than their superiors ; so that this anomalous posi- 
 tion arose, that the parochial clergyman might have to 
 choose between his allegiance to his diocesan or to the 
 convocation. The wisdom of ancient times, which had left 
 doubtful matters of doctrine to the decision of the superior 
 clergy, and the anomalies which had been introduced in 
 our country by a departure from that practice, now began 
 to be apparent : and it was in a hap})y hour for the peace 
 r Smollett's Hist, of England, cli. 9.
 
 30 OF THE CONVOCATION. 
 
 Its final proio- and tranquillity of the established church that the convo- 
 gation. cation was finally prorogued in the year 1717. We have 
 
 gone thus far into the legal history of the convocation, 
 because it is dormant only, not extinct, and might at any 
 time be resuscitated in such manner as it existed formerly 
 by virtue of the queen's writ. Yet it is difficult to con- 
 ceive for what useful purpose a convocation could now be 
 Reason against summoned. They could not escape the taxes assessed upon 
 the probability them by the parliament: if they should choose to vote 
 revival'!^ ° "^ additional supplies, and the vote should be assented to by 
 the king, yet it would now be obviously illegal, according 
 to the interpretation before given to the Act of Submission, 
 as being contrary to the custom of the realm. In matters 
 of church discipline and doctrine, it is clear that a council 
 of the prelates, to whose authority in such matters their 
 inferior clergy are bound to defer, would be the most fit to 
 determine such questions as might arise. Experience has 
 sufficiently shown that the constitution of a double house 
 is altogether ill adapted for such a purpose ; and that in 
 any attempt to settle a controversy, the two houses of con- 
 vocation, by coming to different conclusions, might pro- 
 bably increase rather than remedy the evil. In the making 
 of fresh canons, their power would be found much more 
 limited, even than when they last met, by the various acts 
 of parliament aft'ecting ecclesiastical matters which have 
 been passed since that time, and especially by the powers 
 given to the ecclesiastical commissioners. In fact, the 
 . whole of the power which the convocation once exercised 
 appears now to be transferred elsewhere, and to be capable 
 of being exercised by other parties in a more full and com- 
 plete manner. Should a convocation now attempt the 
 enacting of canons, such an attempt would be in practice 
 as useless as it would be difficult in point of law ; and it is 
 scarcely possible but that it would mischievously interfere 
 with other powers which have been conferred by statute, 
 or grown up by custom, in the interval since the convoca- 
 tion has been discontinued. 
 
 CHAPTER IV. 
 
 OF THE GOVERNMENT AND DISCIPLINE OF THE 
 ECCLESIASTICAL BODY. 
 
 m'of Jh^e'^cor' ^^ °"^' ^^^^ chapter we have spoken of what in times past 
 vocation, might liavc been considered the legislative council of the
 
 OF THE GOVERNMENT OF THE ECCLESIASTICAL BODY. 31 
 
 ecclesiastical body. But however these councils may have 
 taken upon themselves, at times, to condemn particular 
 opinions, it does not appear, as we have already seen, that 
 they legally had, or in fact ever exercised, any power or 
 authority to admonish, suspend, or deprive, or in any 
 manner to punish the individual members of their body. 
 
 For all immoral conduct, irregularity in discharge of 
 duty, for preaching or maintaining false doctrines, and for 
 all those various offences, ecclesiastical or other, which we 
 shall notice in the course of this work, every ecclesiastical 
 person maybe called to account by his ecclesiastical superior. 
 
 The ecclesiastical superior here spoken of is usually Ecclesiastical 
 termed the ordinary ; and he, whether archbishop, bishop, courts. 
 or archdeacon, has his peculiar ecclesiastical court of justice, 
 for the hearino- and determining of matters and causes of 
 ecclesiastical cognizance within his jurisdiction. But into 
 the history and present state of those courts, it is not 
 thought advisable here to enter ; the constitution of these 
 courts will probably soon undergo a considerable change, 
 and the existence of many of them will be abolished : and 
 so far as our present subject is concerned, their authority 
 has been superseded by the act for the better enforcing 
 church discipline, which we shall presently have to men- 
 tion. 
 
 The course of proceedings in these courts in tlie correc- All proceedings 
 
 tion of persons ecclesiastical was tedious and unsatisfactory, ^^amst cleigy- 
 
 i',i -inAn .^ i jp i- men.assuch, are 
 
 and in the year io40 there was passed an act or parlia- to be accordino- 
 
 raent "" for the better enforcing church discipline, by which to the provisions 
 all other modes are superseded, and by which all proceed- of"3&4 Vict, 
 ings at the present day, and for the future, are and will be 
 regulated. For by that act it is expressly declared, that 
 no criminal suit or proceeding against a clerk in holy orders 
 of the United Church of England and Ireland, for any 
 offence against the laws ecclesiastical, shall be instituted 
 in any ecclesiastical court, otherwise than is enacted or 
 provided in that act.'' 
 
 In everv case of any clerk in holy orders of the United Commission to 
 Church of England and Ireland, who may be charged with l^^g^a^cp 
 any offence against the laws ecclesiastical ; or concerning 
 whom there may exist scandal or evil report, as having 
 offended against the said laws, the bishop of the diocese, 
 on the application of any party complaining thereof, or if 
 he so think fit, of his own mere motion, may issue a com- 
 mission under his hand and seal to five persons, of whom 
 one shall be his vicar-general, or an archdeacon or rural 
 
 a 4th Inst. 388 ; Godol. Ab. 83. ^ Z h A. Vict. c. 86. 
 
 c Sect. 23.
 
 32 OF THE GOVERNMENT AND DISCIPLINE 
 
 dean within the diocese, for the purpose of making inquiry 
 into the grounds of such charge or report." 
 All kinds of Offences against the laws ecclesiastical here mentioned 
 
 offences may be ^youl^ seem to include every offence which could })Ossibly 
 Sli'io! ""^""^^'^ be committed by an ecclesiastic, whether of criminal or 
 immoral conduct, or of maintaining false doctrine, or of 
 irregularity in the discharge of his duty. So that whether 
 the charge be that of felony, or of drunkenness, for example, 
 or other immorality, or of improperly performing the mar- 
 riage service, refusing to bury or baptize, publishing doc- 
 trines in derogation of the book of common prayer or its 
 contents, &:c., the mode of proceeding is in every case the 
 same ; and this preliminary inquiiy is in the first instance 
 to be made into the truth or falsehood of the charge. Nor 
 would a conviction in a criminal court, as it seems, super- 
 sede the necessity of first issuing the commission. 
 What do not Here, however, it may be observed, that offences against 
 
 offences^ the laws ecclesiastical are such only as may be known and 
 
 defined ; that is, it would not be in the power of any bishop 
 to make any new law or ordinance to be observed by the 
 clergy of his diocese, disobedience to or disregard of which 
 would constitute an ecclesiastical offence. The bishop has 
 the general superintendence of the morals of his clergy ; and 
 for any immoral conduct they may be punished Ijy him 
 under the provisions of this act. But the case would be 
 altogether different in respect of matters of ecclesiastical 
 law. In these the office of the bishop is that of a judge; 
 he may enforce the existing law, but he cannot make a new 
 one, much less exact obedience to it. For the clergy, 
 although bound to obey their diocesan, so long as he acts 
 according to law, ov^^e a still higher allegance to the laws 
 of their country, and would be bound to disobey their dio- 
 cesan, if he should command any thing contrary to the 
 general law. And so in that variety of matters as to which 
 tliere exists no positive law, the bishop would be equally 
 imable to make one for his diocese or the archbishop for 
 his province which it would be any ecclesiastical offence 
 to disobey. Nor does there now exist any method by which 
 laws could be made binding upon the clergy either in mat- 
 ters civil or ecclesiastical, except by the authority of par- 
 liameiit.'^ And even should the convocation be reassembled, 
 it will be seen from the last chapter how difficult, if not 
 impossible, would be any attempt to exercise such an 
 authority.' 
 •' Soct. :i. 
 
 '■ S,..e Mi,ldlel,m v. Crofts, 2 Atk. 650, and ihe whole judgment tlieie pro- 
 nounced. 
 
 ' Jt is here suggested liiat possibly it might be advantageous to the peace of
 
 less 
 
 OF THE ECCLESIASTICAL BODY. 33 
 
 A notice of the intention to issue the commission imder Preliminaries 
 the hand of the bishop, containing an intimation of the ^^'"''^ issuing 
 nature of the alleged offence, with the names, addition, 
 and residence of the party applying for the commission, 
 must be sent by the bishop to the accused party fourteen 
 days at least before issuing the commission ; and it should 
 be remembered that every particular required in this notice 
 must be strictly and exactly complied with.s 
 
 The commissioners, when appointed, are to proceed to Proceedings of 
 examine witnesses upon oath, to ascertain whether there '''^ commis- 
 
 • • • sioriGi's 
 
 be sufficient prima facie grounds for instituting any further 
 proceedings against the accused party. Notice of the time 
 and place of their meeting for these purposes must be 
 given under the hand of one of them to the accused party 
 seven days at least before the meeting ; and the accused 
 party, or an agent on his behalf, may attend the proceed- 
 ings of the commissioners, and may cross-examine the 
 witnesses produced in support of the charge, or produce 
 and examine witnesses for their defence ; or the commis- 
 sioners may themselves summon any witnesses whom they 
 may think necessary or proper.'' 
 
 These prehminary proceedings are to be public, unless Proceedings to 
 on the special application of the accused party, in which ^^ P"'^''^ ""'^^' 
 
 1 ^ • -^ 1 11 1- . .1 J ii 11 on the applica- 
 
 case the commissioners shall direct that the whole or any (,(,„ of the ac- 
 
 part of the proceedings shall be private : upon which sub- cused. 
 ject it does not appear that they may exercise any discre- 
 tion, but the application of the accused party for a private 
 hearing must be allowed. And when these proceedings, 
 whether public or private, shall have been closed, one of 
 the commissioners shall openly and publicly declare the 
 opinion of the majority, whether there be sufficient prima 
 facie ground for instituting further proceedings.' 
 
 The commissioners, or any three of them, shall transmit Depositions of 
 to the bishop, under their hands and seals, the depositions ^Jfj^J^i^'g^rep^ort. 
 of the witnesses taken before them, and the opinion of the 
 majority of the commissioners present at the inquiry, as 
 to whether there be any ground for further proceedings, 
 which report is to be filed in the registry of the diocese ; 
 and if the party accused hold any preferment in any other 
 diocese, the bishop to whom the report is made is to trans- 
 mit a copy thereof and of the depositions to the bishop 
 of such other diocese ; and also, upon the apphcation of 
 
 the church if a power were given to the ecclesiastical commissioners, now includ- 
 ing all the bishops, lo determine doubtful matters of a certain class ; which de- 
 termination might, if confirmed hy tiie queen in council, thencefoitii have the 
 authority of law. The expediency and propiiety of leaving such matters to par- 
 liamentary decision appears doubtful. 
 s Sect. 3. '■ Sect. 4. ' Ibid. 
 
 D
 
 34 
 
 OF THE GOVERNMENT AND DISCIPLINE 
 
 Sentence may 
 be pronounced 
 by consent at 
 any stage of the 
 proceedings. 
 
 Articles lo be 
 drasvn up, 
 
 and served on 
 the accused. 
 
 bishop may 
 suiTimon the 
 acfused before 
 liim. 
 
 Frorecdings by 
 the bishop. 
 
 the party accused, he is to cause a copy of the same to be 
 dehvered to him on payment of a reasonable sum, not 
 exceeding two-pence for each foho of ninety words.^ 
 
 At this" stage of the proceedings, or at any other, if both 
 the party accused and the party complaining consent in 
 writing, the bishop may, without any further proceedings, 
 pronounce such sentence as he may think fit : provided it 
 does not exceed the sentence which might have been pro- 
 nounced in due course of law. And all such sentences 
 are good and effectual, and to be enforced by the same 
 means, as if pronounced after a regular hearing as here- 
 after mentioned.' 
 
 If the commissioners report that there is ground for fur- 
 ther proceedings, and the bishop, or the party complaining, 
 thereupon thinks proper to proceed further against the 
 accused, articles are to be drawn up to be approved and 
 sioned by an advocate practising in Doctors' Commons, 
 Avhich, together with a copy of the depositions taken be- 
 fore the commissioners, are to be filed in the registry of 
 the diocese : and the party complaining and the accused, 
 or any one on behalf of such parties, is entitled to inspect 
 these documents without fee ; and on demand may have 
 from the registrar copies of the same, on payment of a sum 
 not exceeding two-pence for each folio of ninety words."^ 
 A copy of the articles so filed in the registry of the 
 diocese is to be forthwith served upon the party accused 
 personally, or by leaving them at the residence house of 
 any preferment holden by him, or, if there be no such 
 house, at his usual or last known place of residence : and 
 such articles cannot be proceeded on until fourteen days 
 have expired after the day on which the copy was so 
 served." 
 
 And here it may be observed, that every notice and 
 requisition given or made in pursuance of this act must be 
 served on the party to whom it relates in the same man- 
 ner as here directed with respect to the service of the 
 articles.'* 
 
 At any time after the expiration of the fourteen days 
 the bisiiop may rerpiirc the party accused to appear before 
 liim personally or by his agent, at the option of the ac- 
 cused, to answer the articles within such time as the bishop 
 may think |)r()per; and if the party, when he appears, 
 admits tlie truth of the articles, the bishop, or his commis- 
 sary appointed for that purpose, may at once pass sentence 
 on iiini according to the ecclesiastical law.P 
 
 ^ Sect. 5. 
 n .Sect. 8. 
 
 ' Sect. 6. 
 " Sect. 10. 
 
 "' Sect. 7. 
 V Sect. 9.
 
 OF THE ECCLESIASTICAL BODY, 35 
 
 If, on the other hand, the party accused refuses or neg- Assessors, 
 lects to appear, or, upon appearance, makes any other 
 answer to the articles than an unquaUfied admission of 
 their truth, the bishop may proceed to hear the cause, with 
 the assistance of three assessors, to be nominated by him; 
 and, upon hearing the cause, the bishop shall determine 
 the same, and pronounce sentence.'' 
 
 Of the three assessors here spoken of, one must be either 
 
 An advocate, who has practised not less than five years 
 in the court of the archbishop of the province ; or, 
 
 A Serjeant at law; or, 
 
 A barrister of seven years standing at the least; and 
 another of them must be either 
 
 The dean of his cathedral church, or one of his cathedral 
 churches, if more than one within the diocese ; or, 
 
 One of his archdeacons, or his chancellor.'" 
 
 All sentences thus pronounced by the bishop or by his Substituted for 
 commissary, in pursuance of this act, are as good and proceedings in 
 effectual in law, and may be enforced by the same means, [.J courr*^^''' 
 as a sentence pronounced by an ecclesiastical court.* 
 
 It may be here observed that it is provided, that in case when bi&liop is 
 the bishop, who would otherwise have to act in any of patron of the 
 these proceedings, happens to be the patron of any pre- ^^'°°' 
 ferment held by the party accused, the archbishop of his 
 province shall in all cases act in his stead, save only in 
 the sending a case by letters of request to the court of ap- 
 peal ; which a bishop, being the patron, is allowed to do 
 notwithstanding. 
 
 In any case in which the bishop may think fit, he is Case may be 
 empowered, either in the first instance, or after the report s^"' to court of 
 of the commissioners that there is ground for further pro- of request.^ 
 ceedings, and before filing" the articles, but not afterwards, 
 to send the case by letters of request to the court of appeal 
 of the province, to be there heard and determined.* Nor 
 will it be any valid objection to the sending such letters of 
 request that the bishop has already given notice of issuing 
 a commission, and that such notice has not been with- 
 drawn. It will be considered in such a case as sending 
 the case by letters of request in the first instance ; " in 
 which case the judge of that court may make any orders 
 of court for the purpose of expediting the suit, or improving 
 the practice of the court, or may alter or revoke such 
 orders ; and, except by the permission of the judge, there 
 cannot in such cases be any appeal from any interlocutory 
 decree.'^ 
 
 1 Sect. 11. >• Ibid, ^ Sect. 12. 
 
 * Sect. 13. " Sanders v. Head, 3 Curt. 32. ' Sect. 13. 
 
 d2
 
 36 OF THE GOVERNMENT AND DISCIPLINE 
 
 Appeal. If judgment is pronounced in the first instance by the 
 
 bishop, the first appeal is to the archbishop, to be heard 
 in the court of appeal of the province : and the appeal 
 from that court, whether the cause shall have been heard 
 there in the first instance by letters of request, as before 
 mentioned, or upon appeal from the decision of the bishop, 
 is to the queen in council; and to be heard before the 
 judicial committee of the privy council." A minister there- 
 fore, accused as before mentioned, has the privilege of four 
 several hearings before he can be finally condemned. 
 First. Before the commissioners of the bishop. 
 Second. Before the bishop or commissary and his as- 
 sessors. 
 
 Third. Before the court of appeal of the province. 
 Fourth. Before the judicial committee of the privy 
 council. 
 Appeal to privy With respect to the last of these hearings before the 
 council. pi'ivy council, it is provided that every archbishop and 
 
 bishop, who may be members of the privy council, shall 
 be considered members of the judicial committee of the 
 privy council for the purposes of hearing every such ap- 
 peal ; nor can such appeal be heard unless one at least of 
 such archbishops or bishops be present. But the arch- 
 bishop or bishop who may have issued the commission, or 
 heard the case, or sent it by letters of request to be tried, 
 is excepted from the privilege of sitting as a member of 
 the judicial committee when such cause is heard, ^ 
 Powers of ilie In all or any of these proceedings the commissioners, 
 
 ecclesiastical bishop, commissarv, assessors, or iudoe have the same 
 
 court tri\nslGr~ . '«/o^ 
 
 reii to parties povvers for compelling the attendance of witnesses, the 
 ronstitutcJ pioductiou of ncccssary documents, and for the examining 
 judges. witnesses upon oath, as belong to the ecclesiastical courts.^ 
 
 Every such suit or proceeding must be instituted within 
 two years after tlie commission of the offence complained 
 of, within which time it may be instituted, notwithstanding 
 any act to the contrary;'' but if, after the two years have 
 elapsed, a minister should be convicted of an offence in a 
 comt of connnon law, such suit or proceeding may be 
 brought at any time within six calendar months after such 
 conviction.'' Nothing, therefore, short of an actual con- 
 viction in a court of law for an offence will justify any 
 proceedings in consequence of the offence, sup])osing two 
 years to have elapsed since it was committed. So that, if 
 
 * >^cct. 15. y Sect. IG. ' Sects. 17, 18. 
 
 * See '27 G. 3, c. 4i, declared by tiiis act not to a))ply to cases contemplated 
 by it. 
 
 *> Sect. 20.
 
 OF THE ECCLESIASTICAL BODY. 37 
 
 the charge should not be made known to the bishop within 
 that time, no notice can be taken of it ; and if the charge 
 should be one of general immorality, consisting of a num- 
 ber of minor acts, any evidence to support the charge 
 must be confined to those acts committed within the two 
 years. 
 
 Ministers of peculiars, or exempt places, are neverthe- Blinisters of 
 less subjected to the proceedings under this act. The Peculiars, &c. 
 peculiars of any archbishopric or bishopric, though locally .'o wj'om sub- 
 situate in another diocese, are, for the purposes of the act, 
 subjected to the archbishop or bishop to whom they be- 
 long ; and all other peculiars are, for the purposes of the 
 act, subjected to the authority of the archbishop or bishop 
 within the limits of whose province or diocese they are 
 situate. And where any pecuhar is locally situate between 
 the limits of the two provinces, or between the limits of 
 any two or more dioceses, the same is subjected to the 
 authority of the archbishop or bishop of the cathedral 
 church to whose province or diocese such peculiar is nearest 
 in local situation.*^ 
 
 Before judgment pronounced, and at any time during Bishops may 
 the pendency of any such proceedings, if it should appear Jnhibit the ac- 
 to the bishop that great scandal is likely to arise from the forming service 
 party accused continuing to perform the service of the pending the 
 church, or that his ministry will be useless while the charge proceedings, 
 is pending, the bishop may cause a notice to be served on 
 him, inhibiting him from performing any service of the 
 church within the diocese, from the expiration of fourteen 
 days after service of the notice, and until sentence shall 
 have been pronounced. But if the party accused be an 
 incumbent, he may, within fourteen days after service of 
 the notice, nominate a fit person to the bishop to perform 
 the services of the church during the time while he is so 
 inhibited. And if such person is approved of by the bishop, 
 he may be licensed by him accordingly ; or in case no fit 
 person shall be nominated by the incumbent, the bishop 
 shall make such provision for the service of the church as 
 he sliall think necessary. In all cases, the stipend to such 
 person is to be assigned by the bishop, and is not to ex- 
 ceed the stipend by law required for the curacy of the 
 church,"^ and not exceeding the moiety of the net annual 
 income of the benefice, the payment of which stipend may, 
 if necessary, be provided for by sequestration. And such 
 inhibition and license may be revoked by the bishop at 
 any time that he may think fit.*" 
 
 » Sect, 22. d See post, Stipendiary Curates, e Sect. 14.
 
 38 OF THE GOVERNMENT AND DISCIPLINE 
 
 In a case where articles containing a great variety of 
 charges had been exhibited against a clergyman, sentence 
 of suspension had been passed in the Ecclesiastical Court; 
 and after sentence, the defendant moved for a prohibition, 
 on the suggestion that some of the articles contained 
 charges cognizable in courts of common law ; but it was 
 not denied that others were of ecclesiastical cognizance. 
 The prohibition was refused, on the ground that it must be 
 presumed, after sentence, that the Ecclesiastical Court had 
 proceeded upon those matters which were within its cog- 
 nizance.' 
 
 Punishments. Jt does not appear necessary here to enter into the va- 
 
 rious punishments, which may be imposed by the bishop, 
 or by the Ecclesiastical Courts, or judicial committee of the 
 privy council, for offences against the laws ecclesiastical, 
 of which a minister may under these proceedings have 
 been found guilty, as they will for the most part be found 
 mentioned under other heads, when we come to mention 
 the ofiences themselves more particularly. It may be 
 sufficient here to state, that they vary, from the slight pu- 
 nishment of a monition to abstain from such conduct for 
 the future, to the heavy penalty of an imprisonment for 
 life, which the Ecclesiastical Courts are, in some cases, 
 empowered to inflict for second or third offences of the 
 same nature; but by far the most usual punishment is that 
 of suspension ah ojficio et a henejicio, from performance of 
 duty, and from the emoluments of the living, for a greater 
 or less period, according to the nature of the offence. Of 
 the consequences of such a sentence, as also of that of the 
 greater one of deprivation, and of the mode in which they 
 are enforced, we shall have to speak in another chapter." 
 
 Uliimaic appeal We have seen that the ultimate appeal in each case from 
 
 causcsr'^^ '^* ^'^^ sentence of the bishop or archbishop, and in fact, it 
 may be added, from all decisions of any ecclesiastical tri- 
 bunal, is to the king in council, as supreme head of the 
 Church ; and that sucli iipjjcals arc now heard and deter- 
 mined by tiic judicial cununittcc of his privy council. Be- 
 fore tiie Reformation, the ultimate apj)eal in the ecCTCsi- 
 astical causes was to the Pope ; and when tiiat was taken 
 
 Formcily. awiiy, in the twciity-fifth year of Henry VIII., a court of 
 
 delegates was constituted for each separate case, by com- 
 mission under th(.' great seal, to certain persons delegated 
 tliercby f<> he;ir and (U'terinine the particular cause. In 
 ordiir.n V eases, th(! d<Oegat(!S were three j)uisne judges, one 
 from each court of connuon law, and three or morccivihans; 
 
 ' linn V. Mmh, Tj Ail. \ I'.ll. 50). 
 
 « Vidt pott, Suspension, Deprivation, and Degradation.
 
 OF THE ECCLESIASTICAL BODY. 39 
 
 but in special cases, a fuller commission was sometimes 
 issued, consisting of spiritual and temporal peers, judges 
 of the common law, and civilians, usually three of each 
 description.'' 
 
 The decision of the court of delegates was final, no fur- 
 ther appeal lying as matter of right; but a petition might 
 have been presented to the king in council for a commis- 
 sion of review. This petition was referred to the Lord 
 Chancellor, who, after hearing counsel on both sides, ad- 
 vised the king thereon. 
 
 By tlie Stat. 2 & 3 Will. IV. c. 92, the jurisdiction of At present. 
 the court of delegates was, by the recommendation of the 
 ecclesiastical commissioners, transferred to the privy coun- 
 cil ; and various directions were given that the appellants 
 to this new tribunal should have precisely the same rights 
 and privileges, and that the council should have the same 
 powers as if the appeal had been to the court of delegates. 
 
 The court of the judicial committee of the privy council. Judicial com- 
 in its present form, was directed, and its proceeding regu- ™'"^^ °^ '*'? 
 lated, by a statute passed in the following year ; and that ^"^^ 
 court of ultimate appeal in all causes ecclesiastical is by 
 the statute' constituted as follows : — 
 
 The President for the time being of his Majesty's Privy Constitution of 
 Council, the Lord High Chancellor of Great Britain for ih« court. 
 the time being, and such of the members of his Majesty's 
 Privy Council as shall from time to time hold any of the 
 offices following, that is to say, the office of Lord Keeper 
 or First Lord Commissioner of the Great Seal of Great 
 Britain, Lord Chief Justice, or Judge, of the Court of 
 King's Bench, Master of the Rolls, Vice-Chancellor of 
 England, Lord Chief Justice, or Judge, of the Court of 
 Common Pleas, Lord Chief Baron, or Baron, of the Court 
 of Exchequer, Judge of the Prerogative Court of the Lord 
 Archbishop of Canterbury, Judge of the High Court of 
 Admiralty, and Chief Judge of the Court in Bankruptcy, 
 and also all persons members of his Majesty's Privy Coun- 
 cil, who shall have been president thereof, or held the 
 office of Lord Chancellor of Great Britain, or shall have 
 held any of the other offices herein before mentioned, shall 
 form a committee of his Majesty's said Privy Council, and 
 shall be styled " The Judicial Committee of the Privy 
 Council." Provided nevertheless that it shall be lawful for 
 his Majesty from time to time, as and when he shall think 
 fit, by his sign manual, to appoint any two other persons, 
 being privy councillors, to be members of the said com- 
 mittee.'' 
 
 h 4 Inst. 339. * 3 & 4 Will. 4, c. 41. ^ Sect. 1.
 
 40 OF THE GOVERNMENT AND DISCIPLINE 
 
 Number of No matter shall be heard, nor shall any order, report or 
 
 judges present, lecouimendatioii be made, by the said judicial committee, 
 in pursuance of this act, unless in the presence o^ at least four 
 members of the said committee ; and no report or recom- 
 mendation shall be made to his majesty, unless a majority 
 of the members of such judicial committee present at the 
 hearing shall concur in such report or recommendation: 
 provided, that nothing herein contained shall prevent his 
 majesty, if he shall think fit, from summoning any other 
 of the members of his said privy council to attend the 
 meetings of the said committee.' 
 
 But it shall be lawful for his majesty, by order in coun- 
 cil, or special direction under his royal sign manual, having 
 regard to the nature of the said appeal or other matter, 
 and in respect of the same not requiring the presence of 
 more than three members of the said committee, to order 
 that the same be heard ; and when so ordered, it shall be 
 lawful that the same shall be accordingly heard % not less 
 than three of the members of the said judicial committee, 
 subject to such other rules as are applicable to the hearing 
 and making report on appeals and other matters by four 
 or more of the members of the said judicial committee."' 
 When bishops And in several of those cases of appeals in ecclesiastical 
 are to sit as causes which have been mentioned, it is provided, that every 
 judges. bishop and archbishop of the United Church of England 
 
 and Ireland, who may be a member of the privy council, 
 shall be a member of the judicial committee, for the pur- 
 pose of hearing such appeals ; so that in those cases which 
 are, in the more strict sense of the word, ecclesiastical, the 
 ultimate court of appeal is of a mixed character, composed 
 partly of laymen and partly of ecclesiastics ; wherein, if as 
 many of the latter as are qualified should choose to attend, 
 they would probably usually constitute a majority." 
 Proceedings of The following are the regulations for the proceedings of 
 the court. ^^^^ court upon the hearing of appeals. 
 
 In uny matter, which shall be referred to such committee, 
 they may examine witnesses by word of mouth (and either 
 before or after examination by deposition), or direct that 
 the d(!positions of any witness shall be taken in writing by 
 the registrar, or by such other person or persons, and in 
 stich manner, order and course, as his majesty in council 
 or the said judicial committee shall appoint and direct; 
 iuid the said registrar, and such other person or persons so 
 to be appointed, shall have the same powers as are now 
 
 ' Seel. 5. "> 6 & 7 Will. 4, c. 38. " See post, Bishops, &c.
 
 OF THE ECCLESIASTICAL BODY. 41 
 
 possessed by an examiner of the High Court of Chancery 
 or of any court ecclesiastical." 
 
 In any matter which shall come before them, it shall be witnesses, 
 lawful for the said committee to direct that such witnesses 
 shall be examined, or re-examined, and as to such facts as 
 to the said committee shall seem fit, notwithstanding any 
 such witnesses may not have beeii examined, or no evidence 
 may have been given on any such facts in a previous stage 
 of the matter ; and it shall also be lawful for his majesty 
 in council, on the recommendation of the said committee, 
 upon any appeal, to remit the matter which shall be the 
 subject of such appeal to the court, from the decision of 
 which such appeal shall have been made ; and, at the same 
 time, to direct that such court shall rehear such matter, 
 in such form, and either generally or upon certain points 
 only; and upon such rehearing take such additional evi- 
 dence, though before rejected, or reject such evidence before 
 admitted, as his majesty in council shall direct. 
 
 The committee may further direct issues to try any fact, May direct 
 and may direct the depositions to be read at such trial, and issues to be tiied. 
 may make such orders as to the admission as are used to 
 be made in like cases by the Court of Chancery ; and may 
 direct new trials of such issues generally, or upon certain 
 points only.'' 
 
 The committee may also refer any matters to be examined References to 
 and reported on to the registrar, or to such other person the registrar, 
 or persons as shall be appointed by his majesty in council, 
 or by the said judicial committee, in the same manner and 
 for the like purposes as matters are referred by the Court 
 of Chancery to a master of the said court; and for the 
 purposes of this act, the registrar, and the person or per- 
 sons so to be appointed, shall have the same powers and 
 authorities as are now possessed by a master in chancery.'' 
 
 The president for the time being of the privy council 
 may require the attendance of any witnesses, and the pro- 
 duction of any deeds, evidences or writings, by writ to be 
 issued by such president, in such and the same form, or 
 as nearly as may be, as that in which a writ of subpoena 
 ad testificandum, or of subpoena duces tecum, is now issued 
 by his majesty's Court of King's Bench at Westminster; 
 and every person disobeying any such writ so to be issued 
 by the president, shall be considered as in contempt, and 
 shall also be liable to such penalties and consequences as 
 if such writ had issued out of the Court of King's Bench, 
 and may be sued for such penalties in the said court."" 
 
 " 3 & 4 Will. 4, c. 41, s. 7. P Sects. 10, 11, 12, 13. 
 
 1 Sect. 17. f Sect. 19.
 
 42 OF THE GOVERNMENT AND DISCIPLINE 
 
 Time for appeal- All appeals shall be made within such time respectively 
 ing. as the same may now be made, where such time may be 
 
 fixed by any law or usage ; and where there is no such 
 law or usage, then within such time as shall be ordered by 
 his majesty in council ; but with regard to the time of ap- 
 pealing in ecclesiastical matters, such as appeals from 
 sentences of the bishops under the Church Discipline Act, 
 from their orders as to residence, &c., from orders de- 
 claring bishops incapacited, and several others, the time 
 within which the appeal must be prosecuted is expressly 
 limited in each case, and will be found mentioned in each 
 case in the places where those subjects are treated of. 
 Orders enforced The judicial committee have the power of committing to 
 against persons pngon for Contempt of court •' and in all causes of appeals 
 fumacious. ^°"' ^'"^^^^ ecclesiastical courts, in which any person, duly mo- 
 nished or cited, or required to comply with any lawful 
 order or decree, and neglecting or refusing to pay obedi- 
 ence to such lawful order or decree, or committing any 
 contempt of the process in ecclesiastical causes, shall reside 
 out of the dominions of her majesty, or shall have privilege 
 of peerage, or shall be a lord of parliament, or a member 
 of the House of Commons, it shall be lawful for the said 
 judicial committee, or their surrogates, to pronounce such 
 person to be contumacious and in contempt, and, after he 
 shall have been so pronounced contumacious and in con- 
 tempt, to cause process of sequestration to issue under the 
 said seal of her majesty against the real and personal es- 
 tate, goods, chattels and effects, wheresoever lying within 
 the dominions of her majesty, of the person against or upon 
 whom such order or decree shall have been made, in order 
 to enforce obedience to the same, and payment of the ex- 
 penses attending such sequestration, and all proceedings 
 consequent thereon ; and to make such further order in 
 respect of, or consequent on, such sequestration; and in 
 respect to such real and personal estate and effects seques- 
 trated thereby, as may be necessary; or for payment of 
 monies arising from the same to the person to whom the 
 same may be due; or into the registry of the High Court 
 of Admiralty and Appeals, for the benefit of those who may 
 be tiitimately entitled thereto.* 
 (•osisofapi)calii. Tlic costs, as well of defending any decree or sentence 
 a|)j)riUc(l fiom, as of prosecuting any appeal, or in any 
 inainicr intervening in any cause of aj)peal, and the costs 
 on either side, or of any party, in the court below, and the 
 costs of opposing any matter which shall be referred to 
 the judicial connnittec, and the costs of all such issues as 
 • 6 & 7 Vict. c. 38, sect. 7. » Sect. 8.
 
 OF THE ECCLESIASTICAL BODY. 43 
 
 shall be tried by their direction respecting any such appeal, 
 shall be paid by such party as the said judicial committee 
 shall order". And such costs arising out of any eccle- 
 siastical cause of appeal shall be taxed by the registrar 
 of the High Court of Admiralty of England for the time 
 being, who may be appointed to be registrar of the queen 
 in ecclesiastical causes, and who is empowered to appoint 
 an assistant registrar, and who shall, while he shall be 
 registrar of the High Court of Admiralty, hold his office of 
 registrar of her majesty in ecclesiastical causes ; and shall 
 do all such things, and shall have the same powers and 
 privileges in respect to the same as belong to his prede- 
 cessors in the office of registrar of her majesty in eccle- 
 siastical causes.'' 
 
 The surroo'ates and examiners of the Arches Court of 
 Canterbury, and such persons as shall from time to time 
 be appointed surrogates or examiners of the said court, 
 shall be surrogates and examiners of the judicial com- 
 mittee of the privy council in all causes of appeal from 
 ecclesiastical courts.^' 
 
 CHAPTER V. 
 
 'THE ECCLESIASTICAL COxMMISSION. 
 
 This commission, which must now and henceforth be re- Oiigin of. 
 garded as a most important part of our Church establish- 
 ment, and to which a great part of the power and authority, 
 both of the parliament and of the supreme head of the 
 Church has been delegated, is of very recent origin. In 
 the early part of the year 1835, the general feeling of 
 dissatisfaction with all existing institutions which then for 
 a time pervaded the nation, had extended to the Esta- 
 blished Church ; and the chief authorities of the Church 
 at that time, mistaking a transient effervescence for an 
 expression of settled hostility to the establishment, be- 
 came anxious to effect of themselves those extensive 
 changes which they feared would otherwise be carried on 
 by others. The consequence of this feeling on the part 
 of the heads of the Church was the establishment of the 
 Ecclesiastical Commission, which, by reason of the several 
 powers that have at subsequent times been conferred upon 
 it, may ])robably be productive of much good to the Church 
 establishment ; and may be able, in some degree, to com- 
 pensate for the unfortunate errors which caused its origin. 
 " Sect. 12. * Sect. 13. y Sect. 3.
 
 44 THE ECCLESIASTICAL COMMISSION. 
 
 Error com- For, iti its Origin, the im])ortant principle on which the 
 mi d in its inviolability of the Church estabhshment depends, that 
 °"°'°" the Church generally possesses no property as a corpo- 
 
 ration, or which is applicable to general purposes ; but 
 that each particular ecclesiastical corporation, whether 
 aogre«ate or sole, has its property separate, distinct, and 
 inalienable, according to the intention of the original en- 
 dowment, was given up without an effort to defend it. 
 The wealthier endowments of our ecclesiastical corpora- 
 tions aggregate, — the reward and dignified ease of many 
 who had spent their lives in the arduous discharge of the 
 duties of their professions, and the inducement alike to 
 the higher ranks of society and to brighter talents to un- 
 dertake those duties, and which had rendered the body of 
 our clergy so superior to those of other countries, — were 
 overthrown and ruined without a struggle. The regrets, 
 both of laymen and ecclesiastics, and the dissatisfaction 
 of the commissioners themselvees at the results of the 
 labours of their commission, have unfortunately come too 
 late. Establishments which had survived the Reforma- 
 tion were not found sufficiently utilitarian to survive the 
 scrutiny of commissioners, who were, for the most part, 
 selected from ecclesiastics. But the Church cannot com- 
 plain of a spoliation which would proljably never have 
 been attempted, had its members shown the slightest re- 
 sistance ; nor unless those members had themselves been 
 desirous to effect the extensive change. 
 
 The consequence of this feeling was, that in February, 
 1835, two commissions were issued to persons therein 
 named, directing them to consider the state of the several 
 dioceses in England and Wales, with reference to the 
 amount of their revenues, and the more equal distribution 
 of episcopal duties, and the prevention of the necessity of 
 attaching by commendara to bishoprics, certain benefices 
 with cure of souls, and to consider also the state of the 
 several cathedral and collegiate churches in England and 
 Wales, with a view to the suggestion of such measures as 
 might render them conducive to the efficiency of the Es- 
 tablished Church, and to provide the best mode of pro- 
 viding for the cure of souls, with special reference to the 
 rcisidcncc of the clergy on their respective benefices. And 
 it was provided, that in the meantime, where certain spe- 
 cified dignities or benefices should become vacant, all the 
 |jro(its and emoluments arising from them should be paid 
 to the fn-asurer of (^ueen Anne's Bounty, to whom were 
 granted the same remedies for recovering these profits, 
 &c. as a successor would have had, provided that he should
 
 THE ECCLESIASTICAL COMMISSION. 45 
 
 have no power to grant a lease or present to benefices. 
 And it was provided, that such treasurer should keep an 
 account of all receipts, and allow all costs, expenses, and 
 outgoings which would have fallen on the deceased in- 
 cumbent.^ 
 
 These commissioners, by their report, recommended that First report of 
 commissioners should be appointed by parliament for the the commis- 
 purpose of preparing and laying before the king in council sioners. 
 such schemes as should appear to them to be best adapted 
 for carrving into effect a number of recommendations which 
 were mentioned in a very general manner in their report, 
 and that the king in council should be empowered to make 
 orders ratifying such schemes and having the full force of 
 law. 
 
 In consequence of this recommendation, it was enacted,'' Original mem- 
 that the following persons, namely, the Archbishop of ^^'^^ °f ^!'^ 
 Canterbury for the time being ; the Archbishop of York, •^°'^'"'^^^°"* 
 and the Bishop of London for the time being; the Bishop 
 of Lincoln; the Bishop of Gloucester; the Lord Chan- 
 cellor; the Lord President of the Council; the Lord High 
 Treasurer, or the First Lord of the Treasury ; and the 
 Chancellor of the Exchequer, for the time being respec- 
 tively, and such one of his ^NLajesty's principal Secretaries 
 of State as shall be for that purpose nominated by his 
 Majesty under his royal sign manual (such Lord Chan- 
 cellor, Lord President, Lord High Treasurer, or First Lord 
 of the Treasury, Chancellor of the Exchequer, and Secre- 
 tary of State, being respectively members of the L'nited 
 Church of Great Biitain and L'eland), the Earl of Har- 
 rowby, the Right Honourable Henry Hobhouse, and the 
 Right Honourable Sir Herbert Jenner, should, for the pur- 
 poses of the act, be one body politic and corporate, by the Constituted a 
 name of " The Ecclesiastical Commissioners for England." corporation. 
 And that by that name they should be a corporation, 
 having perpetual succession and a common seal, and sue 
 and be sued, and have power and authority to take, pur- 
 chase, and hold lands and hereditaments, to them and 
 their successors, for the purposes of the act, notwith- 
 standing the Statutes of Mortmain.'^ 
 
 As to the successors of the commissioners thus named, Their successors, 
 it was provided that when any vacancy should occur, by 
 death, resignation or otherwise, among the two last-named 
 bishops, and the three last-named lay commissioners, or 
 among such of the future commissioners as should not 
 have become such commissioners by virtue of any dignity 
 or office, according to the provisions of the act, it should 
 » 5&6 Will. 4, c. 30. 1^ 6 & 7 Will. 4, c. 77. <= Sect. 1.
 
 46 
 
 THE ECCLESIASTICAL COMMISSION. 
 
 be lawful for his majesty to fill up such vacancy by appoint- 
 ino- under his royal sign manual, instead of any such com- 
 missioner, being a bishop, some other bishop of England 
 or Wales, and mstead of any such commissioner being a 
 layman, some other layman, being a member of the said 
 church, to be a commissioner ; and that every such bishop 
 or person so to be appointed should accordingly become 
 to all intents and purposes one of the commissioners for 
 the purposes of the act.'* 
 Additional com- But in addition to the persons who were thus at first 
 missioners. constituted commissioners, the following persons have 
 been since appointed, and are now members of the com- 
 mission, namely, all the bishops of England and Wales for 
 the time being respectively, the Lord Chief Justice of Eng- 
 land, the Master of the Rolls, the Lord Chief Justice of the 
 Common Pleas, the Lord Chief Baron of the Exchequer, 
 the Judge of the Prerogative Court, the Judge of the High 
 Court of Admiralty, for the time being respectively (such 
 Chief Justices, Master of the Rolls, Chief Baron, and 
 Judges being respectively members of the United Church of 
 England and L-eland), the Deans of the cathedral churches 
 of Canterbury and St. Paul, in London, and of the collegiate 
 church of St. Peter, Westminster, for the time being re- 
 spectively ; and also four such lay persons (being members 
 of the said United Church) as shall be duly appointed by 
 her majesty, under her royal sign manual, and such other 
 two lay persons (being members of the said United Church) 
 as shall be duly appointed by the Lord Archbishop of 
 Canterbury for the time being under his hand and archie- 
 piscopal seal.^ 
 Their successors. As to the successors of these commissioners, it is pro- 
 vided that when any vacancy shall occur among such six 
 last-mentioned commissioners, by death, resignation or 
 otherwise, it shall be lawful for her majesty, or for the 
 said archbisliop, as the case may be, to fill up such vacancy 
 by the appointment of some other lay person (being a 
 member of the said United Church) to be a commissioner ; 
 and the person so apj)ointed shall thereupon become and 
 be an ecclesiastical commissioner.' 
 
 All these commissioners have now equal power ; but it 
 should be remarked, that those last named were not added 
 to the commission until after the overthrow of the cathe- 
 dral and collegiate^ establishments, the annihilation of two 
 bishoprics, and a variety of other extensive and important 
 alterations, had l)een recommended, and so far acted on, 
 
 J Sect. 2. 
 
 ' 3& 4 Vict. c. 113, s. 78. 
 
 f Sect. 79.
 
 THE ECCLESIASTICAL COMMISSION. 47 
 
 as to render it impossible for the commission to retrace its 
 steps. 
 
 All these commissioners, not being bishops or arch- Subscribing de- 
 bishops, before acting under the commission, are, at the claiation. 
 first meeting they attend, to subscribe in the book of the 
 minutes of the proceedings of the commissioners, the 
 following declaration : 
 
 " I do hereby solemnly, and in the presence of God, 
 testify and declare, that I am a member of the United 
 Church of England and Ireland as by law established. 
 Witness my hand, this day of ."s 
 
 The commissioners hold their appointments as long as The quorum, 
 they well demean themselves in the execution of their 
 duties, and five of them constitute a quorum, provided 
 that due notice of the meeting has been given to all. But Superior power* 
 no proceeding which requires the common seal of the of the episcopal 
 corporation is to be finally concluded, nor is the seal to commissioners. 
 be affixed to any deed or instruinent, unless two at least 
 of the episcopal commissioners are personally present ; 
 and if any two episcopal commissioners, being the only 
 episcopal commissioners present, object to the ratification 
 of such proceeding, or to the affixing of the common seal, 
 such ratification or affixing is not to take place until a 
 subsequent meeting.'^ But if any commissioner is out of 
 England or Wales, or has intimated to the secretary that, 
 for any specified time, he will be unable to attend the 
 meetings, no notice of the meetings need be sent to him ; 
 but in such a case nothing can be done at a meeting 
 affecting such commissioner, being a bishop or dean, or 
 affecting his see or diocese, or cathedral or collegiate 
 church, without his consent in writing previously obtained. 
 
 The commissioners may, at any meeting duly convened, Adjournment of 
 continue and adjourn such 'meeting from day to day, for meetings. 
 any such number of days as they shall deem necessary ; 
 and their proceedings, and all acts, matters and things 
 done and executed by them, on each and every of such 
 days of adjournment, shall be as valid and effectual to all 
 intents and purposes as if they had been done and exe- 
 cuted on the first day of such meeting. But no proceed- 
 ing, which requires to be ratified and confirmed by the 
 common seal, shall be finally concluded by affixing such 
 seal on any such day of adjournment, unless notice of 
 the intention to propose any such proceeding for final 
 consideration and decision shall have been sent, together 
 with every notice issued for such first day of meeting. 
 
 e 6 & 7 Will. 4, c. 77, s. 3 ; 3 & 4 Vict. c. 113, s. 80. 
 *■ 6 & 7 Will. 4, c. 77, s, 5.
 
 48 
 
 THE ECCLESIASTICAL COMMISSION. 
 
 The chairman. 
 
 Treasurer and 
 secretary. 
 
 Powers of the 
 
 commissioneis 
 to make in- 
 quiries. 
 
 Schemes by the 
 commissioners. 
 
 At each meeting of the commissioners, the commissioner 
 first in rank and precedence there present shall preside as 
 chairman ; and in case of the equahty in rank of all the 
 commissioners so present, then the senior commissioner, 
 in the order of appointment, shall so preside ; and the 
 chairman at all such meetings shall not only vote as a 
 commissioner, hut shall also, in case of the equality of 
 votes, have the casting or decisive vote.' 
 
 The commissioners were directed to appoint a secretary, 
 treasurer, and other officers, removable at pleasure. The 
 amount of whose salaries was to be regulated by the 
 Lords of the Treasury, or by any three of them ; the secre- 
 tary to keep a book, and enter the minutes of the proceed- 
 ings, and the names of the commissioners present; the 
 entry of the proceedings to be signed by the chairman. 
 
 But it has been since enacted, that the offices of trea- 
 surer and secretary shall be united, and be one office; and 
 shall be held so long as the person occupying them shall 
 well demean himself: and that, upon any vacancy, the 
 commissioners shall appoint a successor by an instrument 
 in writing under their common seal.'' 
 
 The commissioners, by summons under the hand of the 
 chairman, may require the attendance of any person 
 whom they shall think fit to examine touching any matter 
 within their cognizance, and may make any inquiries, and 
 call for any answers or returns, as to any such matter, 
 and administer oaths, and examine upon oath, and cause 
 to be produced before them upon oath, all statutes, char- 
 ters, grants, rules, regulations, bye-laws, books, deeds, 
 contracts, agreements, accounts, and writings whatsoever, 
 or copies thereof respectively, in anywise relating to any 
 such matter ; or, in lieu of requiring such oath, the com- 
 missioners may, if they think fit, require any such person 
 to make and subscribe a declaration of the truth of his 
 examination.' 
 
 The commissioners, being thus constituted, and enabled 
 to make due inquiry, are, from time to time, to prepare 
 and lay before the queen in council such schemes as 
 appear to them to be required, several of which are no- 
 ticed in other parts of this work. And, in such schemes, 
 they are to recommend and propose such further measures 
 as Muiy ap[)ear to them necessary for carrying out such 
 schemes. But previously to laying any such scheme 
 before the queen in council, notice thereof is to be given 
 to any corporation, aggregate or sole, which may be af- 
 
 'Sect. G. I* 3&4 Vict. c. 113, s. 91. 
 
 ' 6 & 7 Will, 4, c. 77, s. 9.
 
 aw. 
 
 THE ECCLESIASTICAL COMMISSION. 49 
 
 fected thereby ; and the objections, if any, of such corpo- 
 ration, are to be laid before the queen in council, together 
 with such scheme."^ 
 
 When any such scheme shall have been approved by Orders in coun- 
 the queen in council, she may make an order or orders c'' confirming 
 
 ratifyino- the same, and sijecifyino- the time or times when ff"';'"^"^ "^^^ 
 1 ? 1 1 ■" 1 f^ 1 11 1 n^ ine lorce 01 I 
 
 such scheme, or the several parts thereof, shall take effect, 
 and direct every such order to be registered by the regis- 
 trar of each of the dioceses, whereof the bishop, or within 
 which any cathedral or collegiate church, dignitary, chap- 
 ter, member of a chapter, ofhcer, incumbent, or any other 
 person or body corporate, may or shall be in any respect 
 affected thereby." 
 
 And, in any such order, it is declared to be sufficient to 
 refer to the act, under the authority of which the order is 
 made, and it is not necessary to recite any of the provisions 
 of such act. 
 
 Every such order, as soon as may be after the making Gazetted, 
 of it, is to be inserted in the London Gazette ; and, so soon 
 as it is so gazetted, it is in all respects, and as to all things 
 contained in it, to have the same force and effect as an act 
 of parliament." 
 
 A copy of every order so made is to be laid before each 
 House of Parliament in the month of January in every 
 year, or, if parliament is not then sitting, within one week 
 after the next meeting thereof. 
 
 The registrar of every diocese, to whom any such order Order to be 
 shall be delivered, shall forthwith register the same in the registered, &c 
 registry of his diocese; and if any such registrar shall 
 refuse or neglect to register any such order, he shall for 
 every day during which he shall so offend, forfeit 20/. ; 
 and, if his offence shall continue for the space of three 
 months, he shall forfeit his office, and it shall be lawful 
 for the bishop of the diocese to appoint a successor there- 
 to. For such registration the registrar shall not be entitled 
 to receive any fee or reward, but on every search for any 
 such order he shall be entitled to receive a fee of three 
 shillings ; and for every copy or extract of any such order 
 certified by him, he shall be entitled to receive fourpence 
 for every folio of ninety words ; and the copy of every such 
 entry, certified by the registrar, shall be admissible as evi- 
 dence in all courts and places whatsoever.? 
 
 This power given to the commissioners of proposing and 
 regulating schemes, which, when approved by the queen 
 in council, have the full effect of law, (the substituting 
 
 '» Sect, 10. " Sect. 12. " Sect. 12, 13, 14. 
 
 P 3& 4 Vict. c. 113, SS.88, 89.
 
 50 
 
 THE ECCLESIASTICAL COMMISSION. 
 
 Revenues at 
 their disposal. 
 
 Sources from 
 which these 
 revenues are 
 derived. 
 
 Existing sees. 
 
 them for two of the estates of the reahii in matters eccle- 
 siastical,) is one of the two important features in their con- 
 stitution : the other, to the consideration of which we now 
 come, is, that they are a corporation for the purpose of 
 holdinii' an immense amount of the revenues of the Esta- 
 blished Church, as one common fund applicable to any 
 purpose they may think fit to propose in their scliemes ; 
 unfettered bv any reference to the probable intentions of 
 the original donor ; by custom or usage, however long and 
 well established ; or by any of those important restrictions 
 to which those revenues, in the hands of their former 
 owners, have from time immemorial been subject. 
 
 We have already mentioned that it was provided upon 
 the issuing of the first commission, that the profits and 
 emoluments to arise from the vacant dignities and bene- 
 fices, which were not to be filled up, should be paid to the 
 treasurer of Queen Anne's Bounty, who was to keep an 
 account, &c. ; and, as to those funds, it was provided by 
 the 3 & 4 Vict. c. 113, that the treasurer should deliver to 
 the ecclesiastical commissioners a full and particular ac- 
 count of all monies received or paid by him under the 
 former acts for that purpose, and of all things done by 
 him, and of all proceedings then pending, and pay and 
 deliver over to the- commissioners, or to their account, all 
 monies then remaining in his hands, exchequer bills, secu- 
 rities for money, books of account, &c. And that the 
 receipt of the commissioners under their common seal 
 should be an effectual discharge for every thing therein 
 expressed to be received by them.'' 
 
 By schemes of the ecclesiastical commissioners, con- 
 firmed by orders in council in 1837, by virtue of the 6 & 
 7 Will. iV. c. 77, it was ordered that the Bishop of Ely 
 should pay annually to the ecclesiastical commissioners, 
 by half yearly j)ayments, the fixed sum of 2.500/., and that 
 alter the respective deaths of the present bishops. 
 
 The see of Canterbury should pay annually . £7300 
 
 York 1100 
 
 London ..... 5000 
 
 Winchester ..... 3G00 
 
 Bath and Wells .... 1000 
 
 Worcester 2300 
 
 Siidi payments to bo made to the ecclesiastical commis- 
 sioners liali-yearly ; the first j)ayment to be made in each 
 case at the end of six mouths after the first avoidance of 
 the see. And as to the emoluments of the (li<rnities and 
 l)fn<.ficeH thenceforth to be suspended, it was enacted that 
 
 '1 3&: 4 Vi<;l. c. 11.3, s. GO.
 
 THE ECCLESIASTICAL COMMISSION. 61 
 
 all the profits and emoluments of each and every sus- Suspendcl 
 ponded canonry, wliethor consistin»i; of or arising from canonries. 
 rents, fines, compositions, dividends, sti])ends, or other 
 emoluments whatsoever, shall forthwith, as to every such 
 canonry vacant at the passing of the act, and as to every 
 other immediately upon and from the vacancy thereof, and 
 from time to time, be paid to the ecclesiastical commis- 
 sioners for England for the purposes of this act, in like 
 manner as the holder of such canonry, if he had remained 
 in possession, or the successor thereto, if a successor had 
 been appointed, and had duly qualified himself by resi- 
 dence and otherwise, according to the statutes and usages 
 of his church, to receive his full portion of the emoluments 
 thereof, would have been entitled to receive the same ; and 
 that all the estate and interest, if any, which such suc- 
 cessor would have had in any lands, tithes and other 
 hereditaments (except any right of patronage), annexed or 
 belonging to, or usually held and enjoyed with, such ca- 
 nonry, or whereof the rents and profits had been usually 
 taken and enjoyed by the holder of such canonry, as such 
 holder separately, and in addition to his share (if any) of 
 the corporate revenues of such chapter, shall forthwith, as 
 to all vacancies then subsisting, and as to all others im- 
 mediately upon such vacancies respectively, accrue to and 
 be vested absolutely in the ecclesiastical commissioners for 
 England, and their successors, for the purposes of the act, 
 without any conveyance thereof, or any assurance in the 
 law, other than the provisions of this act: provided ne- 
 vertheless that the profits and emoluments arising from 
 corporate revenues belonging to the canonries suspended 
 in the chapters of the cathedral churches of Chester, Lich- 
 field, and Ripon respectively, shall become, as the va- 
 cancies occur, part of the divisible cor]:)orate revenues of 
 the said chapters respectively : provided also that nothing 
 therein contained should be construed to affect the right 
 of any chapter, according to the statutes or customs of 
 such chapter in force at the passing of the act, to make 
 due provision out of the divisible corporate revenues for 
 the maintenance of the fabric, the support of the grammar 
 school, if any, and all other necessary and proper expen- 
 diture/ 
 
 And the estate and interest here mentioned is declared And their sepa- 
 to extend to all lands and tenements (except any house rate estates. 
 within the precincts of such church belonging to any ca- 
 nonry, or usually held and enjoyed therewith, or any small 
 portion of land situate within the limits and precincts of 
 
 f 3 & 4 Vict. c. 113, s. 49. 
 
 e2
 
 cQ THE ECCLESIASTICAL COMMISSION. 
 
 any cathedral or collegiate church, or in the vicinity of any 
 residence house, which may be reserved to such church, 
 or permanently annexed to any residentiary house by the 
 authority of tlie statute 3 & 4 Vict. c. 113), tithes, or other 
 hereditaments, endowments, and emoluments, of what 
 nature or kind soever, which, if the last-mentioned act had 
 not been passed, any successor to such dignity, prebend, 
 or office, would have been entitled to possess or receive, 
 if dulv qualified in all respects, according to the statutes 
 and usaoes of his church, to possess or receive the same, 
 and if qualified and ready at all times personally and duly 
 to perform all the duties'and services of such his prebend, 
 dignity, or office.^ 
 Separate estates But not only the emoluments of these suspended dig- 
 of remaining nities, &c. but evcn the separate estates of those deaneries 
 canoniies. ^^^^^j (.auoiuies, which are not suspended, are swept into 
 
 this counnon corporate fund ; for it is enacted that all the 
 estate and interest which the holder of any deanery or 
 canonry not suspended by or under the provisions of this 
 act, and his successors, have and would have in any lands, 
 tithes, and other hereditaments, or endowments whatso- 
 ever, annexed, or belonging to, or usually held or enjoyed 
 with such deanery or canonry (except any right of pa- 
 tronage), or whereof the rents and profits had been usually 
 taken and enjoyed by the holder of such deanery or ca- 
 nonry, as such holder separately, and in addition to his 
 share of the corporate revenues of such chapter, shall, 
 without any conveyance or assurance in the law, other 
 than the provisions of this act, accrue to and be vested 
 absolutely in the ecclesiastical commissioners.' 
 Suspended ^^ ^^ further enacted, that all lands, tithes, and other 
 
 deauerics, &c. hereditaments, excepting any right of patronage, and all 
 other the emoluments and endowments whatsoever be- 
 longing to the deaneries of Wolverhapton, Middleham, 
 lleytcsbury, and Brecon, and to the dignity or office of 
 sid)-dcan, cliancellor of the church, vice-chancellor, trea- 
 surer, provost, precentor, or succentor, aiul to any prebend 
 not residentiary in any cathedral or collegiate church iir 
 England, or in the cathedral churches of St. David's and 
 I.Iaii(l;i(r, or in the collegiate church of IJrecon, or enjoyed 
 \t\ the iiulder of any such deanery, dignity, oiiice, or pre- 
 bend, a.s such holder, shall, as to all such of the said 
 deaneries, dignities, offices and prebends resjiectivcly, as 
 may be vacant at the time of the passing of the act, iiume- 
 diately ii|)()h its so passing, and as to all others immedi- 
 ately u|)on the vacancies thereof" respectively, without any 
 • 4 & 6 Vict. c. 39, i. G. • 3 & 4 Vict. c. 1 13, s. 50.
 
 THE ECCLESIASTICAL COMMISSION. 63 
 
 conveyance or assurance in the law, other than the provi- 
 sions of" the act, accrue to and be vested al)sohitely in the 
 ecclesiastical commissioners for England and their succes- 
 sors for the purposes of the act : provided that all other 
 rights and privileges whatsoever now by law belonging to 
 any of such dignities, offices, or prebends, except the last- 
 mentioned deaneries, shall continue to belong thereto, 
 except so far as any of such rights or privileges may be 
 controlled or affected by any of the provisions of the act 
 respecting the right of election now exercised by any 
 chapter : provided that nothing therein contained shall in 
 any manner apply to or affect any dignity, office, or pre- 
 bend, which is permanently annexed to any bishopric, 
 archdeaconry, professorship, or lectureship, or to any 
 school, or the mastership thereof, or the prebend of Burg- 
 ham, Bursalis, Exceit, and Wyndham, in the cathedral 
 church of Chichester." 
 
 And also that upon the suppression of any ecclesiastical Sinecure rec- 
 rectory without cure of souls, all the estate and interest '°™^' 
 which the rector thereof, or his successor, has or had, or 
 would have or have had in any lands, tithes, or other he- 
 reditaments whatsoever, shall, without any conveyance 
 thereof, or any assurance in the law other than the provi- 
 sions of the act, accrue to and be vested in the ecclesias- 
 tical commissioners.'' 
 
 As to the whole of this corporate fund, it is enacted that Revenues 
 the ecclesiastical commissioners shall for the purpose of commissioners. 
 enforcing payment of all profits and emoluments to be 
 paid to them, and of obtaining possession of all lands, 
 tithes, or other hereditaments vested in or accruing to 
 them, and of recovering the rents and profits thereof, have 
 and enjoy all rights, powers and remedies at law and in 
 equity, which belonged, or belong, or would belong, or 
 have belonged to the holder of the deanery, canonry, pre- 
 bend, dignity, or office, or the rector of the rectory, in 
 respect of which such profits, &c., are by the provisons of 
 the act to be paid, or to accrue to, and be vested in the 
 commissioners. y 
 
 The commissioners, in respect of all lands, tithes, tene- 
 ments, or other hereditaments already vested or liable to 
 be vested in them, shall be deemed to be the owners or 
 joint-owners thereof respectively, as the case may be, for 
 all the purposes of the several acts for the commutation of 
 tithes. 
 
 Having now seen from what sources and in what manner Application of 
 this large corporate fund in the hands of the commissioners ^''^^"^ levcuues. 
 
 " 3 & 4 Vict. c. 1 13, s. 61 . " Ibid, s. 54. J Sect. 57,
 
 54 
 
 Special pay- 
 ments. 
 
 Fund divided 
 inlo two parts. 
 
 For the in- 
 creased effi- 
 ciency of the 
 Establibhed 
 Cliurch. 
 
 THE ECCLESIASTICAL COMMISSION. 
 
 has been or is to be acquired, it remains to be seen in what 
 manner, and subject to what restrictions, it is to be appUed 
 and disposed of. 
 
 Certain special payments are, in the first place, either 
 directed or allowed to be made by the commissioners out 
 of the fund thus at their disposal. The various provisions 
 for archdeaconries will be found mentioned in their proper 
 place : and in any cathedral church on the old foundation 
 in which any contribution to the fabric fund of such church 
 has heretofore, either usually or occasionally, been made 
 out of the rents or proceeds of any lands, tithes, or other 
 hereditaments, so to be vested in the ecclesiastical com- 
 missioners, it shall be lawful for the commissioners to con- 
 tribute to such fund such sum as they shall deem neces- 
 sary, out of the rents or proceeds of the same lands, tithes, 
 or other hereditaments, not exceeding in amount the pro- 
 portion of such rents, &c. which has usually been applied 
 to the like purposes. "" The commissioners are also allowed, 
 out of the fund, to pay all necessary law charges, and to 
 make allowance for costs, charges, expenses and trouble 
 to any person employed by them in receiving or paying 
 money, auditing accounts, surveying, valuing, &c. or per- 
 forming any duty connected with what they are empowered 
 to do. Subject to these special deductions, the fund may 
 be considered as divisible into two parts : first, the epis- 
 copal fund, formed by fixed contributions from the larger 
 bishoprics, out of which fixed annual payments are made 
 in augmentation of the incomes of the smaller; and se- 
 condly, a common fund, applicable to the augmentation of 
 poor livings, endowments of new churches, employment of 
 additional ministers, (fee." 
 
 For it is enacted that, with the exception of the special 
 applications before alhided to, all the monies and revenues 
 to be paid to the commissioners, and all the rents and pro- 
 fits of the lands, &c. vested, and to be vested in them, 
 together with all accumulations of interest produced by 
 and arising therefrom, shall be from time to time car- 
 ried over to a connnon fund, and by payments or invest- 
 ments made out of such fund ; or if in any case it be 
 deemed more expedient, by means of an actual convey- 
 ance and assignment of such lands, tithes, or other here- 
 ditaments, or of a portion thereof, additional ])rovision shall 
 be made for the cure of souls in parishes where such as- 
 sistance is most required, in such manner as shall, by the 
 
 » Sect. 53. 
 
 » Scf sect. 67 ; circular issued by order of the commissioners in 1844 ; and 
 ■ee post, boui( iii. ch:ip. i.
 
 THE ECCLESIASTICAL COMMISSION. 55 
 
 authority of the commissioners, be deemed most conducive 
 to the efficiency of the Estabhshed Church : provided that 
 in making any such additional provision out of any tithes, 
 or any lands, or other hereditaments allotted or assigned 
 in lieu of tithes so vested in the commissioners, or out of 
 the rents and profits thereof, due consideration shall be 
 had of the wants and circumstances of the places in which 
 such tithes now arise or have heretofore arisen.'' 
 
 But, as a considerable time might have elapsed before Commissioners 
 the commissioners, under the above provisions, miaht have ^° borrow of 
 acquired a sufficient disposable fund, it has been enacted Bounty ^ 
 that the commissioners shall forthwith borrow, and the 
 governor of Queen Anne's Bounty with the Archbishop of 
 Canterbury shall forthwith lend, the sum of £600,000, 
 three per cent., part of a sum standing in their names : and 
 the commissioners are further empowered to borrow, and 
 the governors of Queen Anne's bounty are further em- 
 powered to lend, if they think fit, any further sums of 
 stock. Upon the transfer of any such stock into their 
 names in the books of the governor and company of the 
 Bank of England, the commissioners are to pay to the 
 governors, by half-yearly payments, on the 10th of April 
 and the 14th of October in each year, a sum equal to the 
 amount of the dividends which such stock, or so much 
 thereof as shall on such days respectively remain unre- 
 placed, would produce; the commissioners being at any 
 time allowed to replace the whole or any part of such 
 stock.*" 
 
 All monies in the hands of the commissioners, and all Provisions for 
 the lands, tithes, and other hereditaments, which, under security and for 
 the provisions mentioned above, are in any way vested in JhL^^ioan'^' ° 
 the commissioners, are charged with and made a security 
 for such half-yearly payments, and for the repayment and 
 replacing the whole of the capital stock so lent : and the 
 governors, upon proof of default being made, are to have 
 all such remedies as they would have had, if the commis- 
 sioners had duly executed a deed under their common seal, 
 covenanting for such repayment.'' 
 
 After the expiration of thirty years from the date of the 
 lending such sum, or after the expiration of a like number 
 of years from the date of lending such further sum, the 
 governors may give notice in writing to the commissioners, 
 requiring them to replace the sum borrowed; upon which 
 the commissioners are to proceed to replace the sum by 
 yearly instalments, amounting at least to one-twelfth part 
 of such sums of stock respectively ; and, in default of their 
 
 i* Sect. 67. <; 6&; 7 Vict. c. 37, ss. 1,2, 3. ^ Sect. 4.
 
 56 
 
 THE ECCLESIASTICAL COMMISSION. 
 
 Commissioners 
 to have rights 
 of owuership 
 notwithstand- 
 ing in the lands 
 vested in them. 
 
 Meaning of the 
 '■ authority of 
 the commis- 
 sioners." 
 
 SO doing, the governors are to have then- remedy in the 
 same manner as for the half-yearly payment."^ 
 
 Notwithstanding the charge thus created, the commis- 
 sioners are to exercise all the full rights of ownership over 
 all money and all property vested in them under any of the 
 provisions mentioned above, the consent of the governors 
 not being necessary to the exercise of any of their rights 
 and powers ; but every sum of money received as the con- 
 sideration or purchase-money for the sale, transfer, or 
 conveyance by the commissioners of any of such lands, 
 tithes, tenements, or other hereditaments, or of any estate 
 or interest therein, and also every sum of money received 
 by them as the fine for the granting or renewing of any 
 lease, shall, unless it be deemed expedient by the commis- 
 sioners to apply any such sum, or any part thereof, in 
 replacing any stock so lent and transferred as aforesaid, 
 which they are empowered to do, be applied by them, so 
 soon as conveniently may be after the receipt thereof, in 
 the purchase of lands, tithes, rent-charges, tenements, or 
 other hereditaments, or of some estate or interest therein, 
 and shall in the meantime be invested in some govern- 
 ment or parliamentary stock, or other public securities in 
 England, the commissioners being at liberty to apply the 
 interest and dividends of such stock or securities, &;c.^ 
 
 But no part of the capital of such stock shall be so 
 applied, nor shall any such lands, tithes, tenements, or 
 other hereditaments, be sold, transferred, or conveyed, 
 except by the authority of a scheme prepared by the com- 
 missioners, and an order in council ratifying such scheme.^ 
 
 The several arrangements and rules for the application 
 of this fund,'' and the various other occasions in which the 
 authority of the ecclesiastical commissioners is required, 
 either by direct interference, or indirectly by their sanc- 
 tion, will be found in other parts of this work. And it 
 will be remembered, that in every case in which the au- 
 thority of the ecclesiastical commissioners is mentioned, 
 the authority of a scheme proposed by them and con- 
 firmed by an order in council is to be understood.' 
 
 « Sent. 5. f Sect. 6, 7. s Sect. 8. '' See post, Book 3, Chap. 1. 
 
 ' It will be seen from this chapter, that the powers and authorities hitherto con- 
 ferred u\»m the ecclesiastical commissioners are in respect of ecclesiastical pro- 
 perly, and in the allotment of ecclesiastical revenues only, in which cases par- 
 li.imciil has in ellccl delegated to them its authority. It appears to be well 
 worthy nl consideration, whether a similar power might not also be delegated to 
 Ihcin of making regulations, which, when confirmed by order in council, should 
 be hindmg on the clergy generally in matters of ecclesiastical discipline, and 
 the ohscrvance of fonns, riies, habits, .\c. Some such power of making rcgu- 
 lationn in these matters, as w;is formerly exercised, or attempted to be exercised 
 by the convocation, is rcfiuiicd to be vested somcwheie. The iiouses of par-
 
 ( 57 ) 
 
 CHAPTER VI. 
 
 OF THE POWERS, PRIVILEGES AND RESTRICTIONS 
 OF ECCLESIASTICAL PERSONS GENERALLY. 
 
 This venerable body of men, being separate and set apart Ancient privi- 
 froni the rest of the people, in order to attend the more '^'S^^ °^ '''^ 
 closely to the service of Almighty God, have thereupon ^ ^^^^' 
 large privileges allowed them by our municipal laws ; and 
 had formerly much greater, which were abridged at the 
 time of the Reformation, on account of the ill use which 
 the popish clergy had endeavoured to make of them. For 
 the laws having exempted them from almost every per- 
 sonal duty, they attempted a total exemption from every 
 secular tie. But it is observed by Sir Edward Coke,'' that 
 as the overflowing of waters doth many times make the 
 river to lose its proper channel, so in times past, eccle- 
 siastical persons, seeking to extend their liberties beyond 
 their true bounds, either lost or enjoyed not those which 
 of right belonged to them. '' 
 
 The power and extended privileges of the clergy alluded Era of iheir 
 to by Blackstone in the above sentence, appear to have greatest power, 
 attained their greatest height about the twelfth century of 
 our era. At that time they had acquired extensive juris- 
 diction in temporal as well as ecclesiastical matters, the 
 greater number of causes of every kind being then re- 
 ferable to their tribunals.*^ 
 
 The arbitrative authority of ecclesiastical pastors, if not origin of the 
 coeval with Christianity, grew up very early in the Church, legal power and 
 and was natural, or even necessary, to an insulated and J""sdiction of 
 persecuted society.*^ Accustomed to feel a strong aversion 
 to the imperial tribunals, and even to consider a recur- 
 rence to them as hardly consistent with their professions, 
 the early Christians retained somewhat of a similar pre- 
 judice even after the establishment of their religion. The 
 arbitration of their bishop still seemed a less objectionable 
 mode of settling differences ; and this arbitrative jurisdic- 
 tion was powerfully supported by a law of Constantine, 
 
 liament aie certainly unfitted for the purpose ; and the ecclesiastical commis- 
 sion, composed as it is of all the bishops and archbishops, of the most eminent 
 of the judges, and of the most responsible ministers of the crown, would appear 
 to be precisely such a tribunal as might be safely trusted with this authority. 
 
 » 2 Inst. 4. b 1 Black. Com. 376. 
 
 <^ See Hallam's Middle Ages. 
 
 ^ See 1 Corinthians, chap. 6, the first seven verses. The passage seems an 
 authority for our proposition.
 
 58 
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 
 
 Especially in 
 causes where 
 
 which directed the civil magistrate to enforce the execu- 
 tion of episcopal awards. Another edict, ascribed to the 
 same emperor, and annexed to the Theodosian code, ex- 
 tended the jurisdiction of the bishops to all causes which 
 either party chose to refer to it, even where they had 
 already commenced their suit in a secular court, and de- 
 clared the bishop's sentence not subject to appeal. This 
 edict, although subsequently acted upon, is said to have 
 been clearly proved to be a forgery.® 
 
 If it was considered almost as a general obligation upon 
 the primitive Christians to decide their civil disputes by 
 bod °were con- "eternal arbitration, much more would this be incumbent 
 cerned. upon the clergy. The canons of several councils, in the 
 
 fourth and fifth centuries, sentence a bishop or priest to 
 deposition who should bring any suit, civil or even cri- 
 minal, before a secular magistrate. This must, it should 
 appear, be confined to causes where the defendant was a 
 clerk, since the Ecclesiastical Court had hitherto no co- 
 ercive jurisdiction over the laity. It was not so easy to 
 induce laymen, in their suits against clerks, to prefer the 
 episcopal tribunal. The emperors were not at all disposed 
 to favour this species of encroachment till the reign of 
 Justinian, who ordered civil suits against ecclesiastics to 
 be carried only before the bishops ; yet this was accom- 
 panied by a provision, that a party dissatisfied with the 
 sentence might apply to the secular magistrate, not as an 
 appellant, but as a co-ordinate jurisdiction ; for if different 
 judgments were given in the two courts, the process was 
 ultimately referred to the emperor,* 
 
 But again, the character of a cause, as well as of the 
 parties engaged, might bring it within the limits of eccle- 
 siastical jurisdiction. In all questions simply religious, 
 the Church had an original right of decision;^ but, under 
 some pretence, many temporal causes also were considered 
 as falling within its jurisdiction ; for, according to the in- 
 terpretation of those times, the Church was bound to 
 prevent and chastise the commission of sin. Thus the 
 differences of individuals, which often involve some charge 
 of wilful injury, fell into their hands : cases of breaches of 
 contract whore an oath had been pledged. They also 
 took into their hands the execution of testaments, on ac- 
 count of the legacies to pious uses, which testators were 
 advised to bocpieath : a jurisdiction which they have ever 
 
 From the cha- 
 racter of the 
 cause or crime. 
 
 Since retuiiicd. 
 
 V 
 
 ".rjury, 
 
 saciiieg( , 
 
 lege, usury, incest and 
 
 adultery, uiid oirences of a criminal luiturc, tliey had such 
 
 ^' Sec 2 Hallaiirs Middle Ajjcs, 211. 
 
 ' Ibid. ; and I'luury, Hist. Eccles. t. vii. p. 292. 
 
 f Lex Arcadii et llonorii, apud Mem. de I'Acad^mie, t. 39, p. 674.
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 59 
 
 complete jurisdiction over, that the secular magistrates 
 usually refrained from the punishment of them . '' 
 
 But the clergy possessed besides more direct means of Other powers 
 acquiring temporal power. They were entitled to the of the clergy. 
 privilege of assisting in the deliberative assemblies of the 
 nation. Councils of bishops, such as had been convoked 
 by Constantine and his successors, were limited in their 
 functions to decisions of faith, or canons of ecclesiastical 
 discipline. But the northern nations did not so well pre- 
 serve the distinction between secular and spiritual legis- 
 lation. The laity seldom, perhaps, gave their suffrage to 
 the canons of the Church ; but the Church was not so 
 scrupulous as to trespassing upon the province of the 
 laity. Many provisions are found in the canons of na- 
 tional and even provincial councils, which relate to the 
 temporal constitution of the state. Thus one held at Cal- 
 cluith (an unknown place in England) in 787, enacted 
 that none but legitimate princes should be raised to the 
 throne, and not such as were engendered in adultery or 
 incest. ' 
 
 Into these questions of historical rather than of legal Benefit of 
 interest, the limits of our present work will not permit us '^^^''sy- 
 to enter more fully ; but there is one other of the former 
 privileges of the clergy, which is too important not to be 
 particularly mentioned, and which atone time had reached 
 to such a point as almost to render impossible the admi- 
 nistration of temporal justice. This privilege, which, as 
 Dr. Burn observes, one would almost imagine to be calcu- 
 lated to bring disgrace upon the order, rather than to 
 confer any real benefit upon it, was in fact little else than 
 immunity from the punishments which, in every organized 
 society, even in its rudest form, are appointed for certain 
 crimes. 
 
 The privilege has been called benefit of clergy, and had Origin of. 
 its origin in an old constitution of the pope, that no man 
 should accuse the priests of holy church before a secular 
 judge; and it is said to have been founded on the text 
 " Touch not mine anointed, and do my prophets no harm." 
 And if it had been thus limited, and the Church had been 
 prepared to inflict due punishment on her ministers, such 
 a privilege, in the ruder ages, would appear not unrea- 
 sonable • and, as Mr, Barrington observes, we are not to 
 judge of the propriety of the benefit of clergy by the Propriety of, in 
 present state of the country ; and he points out that, while i's origi 
 
 •i See Hallam's Middle Ages, chap. 7. 
 
 ' Ibid., where the powers mentioned in the text will be found very fully dis- 
 cussed. 
 
 nn.
 
 60 
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 
 
 Confirmed by 
 statute. 
 
 To whom and 
 to what crimes 
 afterwards ex- 
 tended. 
 
 it was confined in its objects to actual priests, the incon- 
 venience was far less than is commonly supposed ; be- 
 cause such crimes only were within the benefit as the mu- 
 nificently provided priesthood had little temptation to 
 commit;'' and besides, by the forfeiture of goods, which 
 attended the pleading this privilege, and by the power of 
 forbidding purgation, the courts were able, in most cases, 
 to impose a punishment adequate to the offence. 
 
 Lord Coke observes,' that this constitution of the pope, 
 being contrary to the common law, and to the dignity of 
 the crown, did not bind here until it was confirmed by act 
 of parliament in the 3rd year of Edward I., when it was 
 enacted that when a clerk is taken for guilty of felony, 
 and is demanded by the ordinary, he shall be delivered to 
 him, according to the privilege of holy church. And they 
 which be indicted of such offences by solemn inquest of 
 lawful men in the king's court, shall in no manner be 
 delivered without due purgation.'" 
 
 But although the constitution might not have been 
 legally binding before that time, there can be little doubt 
 but that the privilege was allowed in this country long 
 before, and that the statute was an affirmance of the 
 custom. 
 
 Originally the law was held that no man should be 
 admitted to the privilege of clergy but such as had the 
 hahltum et tonsnram clericalem ; but then, in order to 
 swell the list of their subjects and adherents, the bishops 
 gave the tonsure indiscriminately ; whicli sign of a clerical 
 state, though below the lowest of their seven degrees of 
 ordination, implying no spiritual office, conferred the pri- 
 vileges and immunities of the profession on all who wore 
 an ecclesiastical habit, and had only once been married. 
 Orphans and widows, the stranger and the poor, the pil- 
 grim and the leper, under the appellation of persons in 
 distress {miserahiles personce), came within the peculiar 
 cognizance and protection of the church : nor could they 
 be sued before any lay tribunal. And the whole body of 
 crusaders, or such as merely took the vow of engaging in 
 a crusade, enjoyed the same clerical privileges." 
 
 Bluckstone says, the clergy increasing in wealth, power, 
 honour, number and interest, began soon to set up for 
 themselves ; and that which they^obtained by the favour 
 of the civil government, they now claimed as their inhe- 
 rent right, and as a right of the highest nature, indefea- 
 
 ^ 4 Ulack. Com. 369, n. in Coleridge's edit. 
 
 ' 2 InM. 636. m 3 ^dw. ], c. 2. 
 
 " Ilallara's Middle Ages, chap. 7, and see authorities there mentioned.
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 61 
 
 sible and jure divino. By their canons, therefore, and 
 constitutions they endeavoured at, and where they met 
 with easy princes obtained, a vast extension of these 
 exemptions, as well in regard to the crimes themselves, of 
 which the list became quite universal, as in regard to the 
 persons exempted, among whom were at length compre- 
 hended, not only every little subordinate officer belonging 
 to the church or clergy, but even many that were totally 
 laymen. 
 
 But even this wide interpretation was not deemed suffi- To all who 
 ciently comprehensive : in process of time a much wider *^°"^"^ '■^^^• 
 and more comprehensive criterion was established ; every 
 one that could read (a mark of great learning in those 
 days of ignorance and her sister superstition) being ac- 
 counted a clerk or clericus, and allowed the benefit of 
 clerkship, though neither initiated in holy orders nor 
 trimmed with the clerical tonsure." 
 
 And, if any man that could so read were condemned If claimed by 
 to death, the bishop of the diocese might, if he chose, ^^^ bishop. 
 claim him as a clerk ; and he was to see him tried in the 
 face of the court whether he could read or not : the book 
 was prepared and brought by the bishop, and the judge 
 was to turn to some place as he should choose, and if the 
 prisoner could read, then the bishop was to have him 
 delivered over unto him, to dispose of in some places of 
 the clergy, as he should think meet ; but if either the 
 bishop would not demand him, or the prisoner could not 
 read, then was he to be put to death. p 
 
 But when learning, by means of the invention of print- Distinction 
 ing and other concurrent causes, began to be more generally afterwards made 
 disseminated than formerly, and reading was no longer a {imerTan""^'^ 
 competent proof of clerkship or being in holy orders, it clerks in orders. 
 was found that as many laymen as divines were admitted 
 to the privilegiiun clericale ; and therefore, by statute 
 4 Hen. VIII. c. 13, a distinction was once more drawn 
 between mere lay scholars and clerks that were really in 
 orders. And thouo-h it was thouoht reasonable still to 
 mitigate the severity of the law with regard to the former, 
 yet they were not put upon the same footing with actual 
 clergy, being subjected to a slight degree of punishment, 
 and not allow'ed to claim the clerical privilege more than 
 once. Accordingly the statute directs, that no person 
 once admitted to the benefit of clergy shall be admitted 
 thereto a second time unless he produces his orders ; and Proceedings 
 in order to distinguish their persons, all laymen who are ''"'^^^ ^^^^^y 
 allowed this privilege shall be burnt with a hot iron in the '^'" P'eaded. 
 ° 4 Black. Com. 365, 366. p Bacon's Use of the Law, 122.
 
 62 
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 
 
 Proceedings by 
 the ecclesi- 
 astical tribunal. 
 
 Purgation. 
 
 And consequent 
 perjury. 
 
 Purgation 
 aboUshed. 
 
 brawn of the left thumb. This distinction between learned 
 laymen and real clerks in orders was abolished for a time 
 by the statutes 28 Hen. VIII. c. I, and 32 Hen. VIII. c. 3 ; 
 but it is held'' to have been virtually restored by statute 
 1 Edw. VI. c. 12, which statute also enacts that the lords 
 of parliament and peers of the realm, having place and 
 voice in parliament, may have the benefit of their peerage ■" 
 equivalent to that of clergy, for the first oifence (although 
 they cannot read, and without being burnt in the hand), 
 for all offences then clergyable to commoners, and also 
 for the crimes of housebreaking, highway robbery, horse 
 steahng, and robbing of churches.^ 
 
 After this burning, the laity, and before it the real 
 clergy, were discharged from the sentence of the law in 
 the king's court, and delivered over to the ordinary, to be 
 dealt with according to the ecclesiastical canons. Where- 
 upon the ordinary, not satisfied with the proofs adduced 
 in the profane secular court, set himself formally to work 
 to make a purgation of the offender by a new canonical 
 trial, although he had been previously convicted by his 
 country, or perhaps by his own confession. This trial was 
 held before the bishop in person, or his deputy, and by a 
 jury of twelve clerks ; and there, first, the party himself 
 was required to make oath of his own innocence ; next, 
 there was to be the oath of twelve compurgators, who 
 swore they believed he spoke the truth ; then witnesses 
 were to be examined upon oath, but on behalf of the 
 prisoner only ; and lastly, the jury were to bring in their 
 verdict upon oath, which usually acquitted the prisoner; 
 otherwise, if a clerk, he was degraded or put to penance.* 
 Lord Hobart remarks, that the witnesses in this sort of 
 mock trial, and likewise the compurgators, who were upon 
 their oaths de credulitate, and also the jury, all had their 
 share in these perjuries ; and he further observes, that the 
 judge himself was not quite clear. Such a solemn farce, 
 as it has been rightly called, gave rise of necessity to the 
 most complicated perjury ; and a statute was therefore 
 passed in the reign of Queen Elizabeth, by which it was 
 enacted that for the avoiding of such perjuries and abuses, 
 after the offender has been allowed his clergy, he shall 
 not be delivered to the ordinary as formerly ; but, upon 
 such allowance, and burning in the hand, he shall forth- 
 
 '1 Hob. 294 ; 2 Hale, P. C. 375. 
 
 f See Duchess of Kingston's case, 1 1 Slate Trials, 262. 
 
 4 Black. Com. 3G7. 
 
 • See the case of Uei v. Burridge, 3 P. Wms. where the subject is fully con- 
 sidered.
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 63 
 
 with be enlarged and delivered out of prison, with proviso 
 that the judge may, if he thinks fit, continue the offender 
 in gaol for any time not exceeding a year." 
 
 Thus much of benefit of clergy, as it arose from and Abolition of the 
 was considered a privilege of the order. Other later sta- privilege. 
 lutes have been passed for regulating this benefit of clergy, 
 which it does not appear necessary here to mention, since 
 the benefit of clergy is now entirely abolished ;=* and from 
 what has been already said, it will be seen that for many 
 years previously to its abolition it had ceased to be a 
 peculiar privilege of the clergy in our present acceptation 
 of that word ; and, as Mr. Justice Foster remarks, it might 
 have been rather termed a benefit of the statutes, or a 
 relaxation of the rigour of the criminal law, and a con- 
 descension to the infirmities of human nature. The va- 
 rious statutes, therefore, by which it was regulated in later 
 times, would be therefore rather matter of criminal than 
 of ecclesiastical law. 
 
 Mr. Justice Blackstone, after mentioning the origin of 
 this extraordinary privilege, and giving a history of its 
 progress and gradual decline, concludes with the following 
 observation : " From the whole of this detail we may col- 
 lect, that however in times of ignorance and superstition, 
 that monster in true policy may for awhile subsist, of a 
 body of men, residing in the bowels of a state, and yet 
 independent of its laws ; yet, when learning and rational 
 religion have a little enlightened men's minds, society can 
 no longer endure an absurdity so gross as must destroy 
 its very fundamentals. For, by the original contract of 
 government, the price of protection, by the united force of 
 individuals, is that of obedience to the united will of the 
 community. This united will is declared in the laws of 
 the land, and that united force is exerted in their due and 
 universal execution." ^ 
 
 The privileges and exemptions of the clergy were for- Privileges for- 
 merly not only personal, but extended to their ecclesiastical ™erly extended 
 goods, so that their tithes and glebe lands were not subject ^^^ of^eccfesi- 
 to rates, nor liable to contribute towards any of those astics. 
 public charges, for which rates are usually imposed ; but 
 this does not appear to have been the case in this countiy 
 always ; for among the Saxons, it is said, the lands of the 
 clergy were charged to castles, bridges and reparations. 
 
 These exemptions, however, exist no longer; and the Exempt from 
 only privileges of ecclesiastical persons at the present day f^F^'°g '° ^^\' 
 
 J L CD 1 ^1 •'tain t6rnporai 
 
 are personal : thus, generally, they are neither bound to offices, 
 accept, though, on the other hand, they are not restrained 
 " 18 Eliz. c. 7. » 7 & 8 Geo. 4, c. 28. y 4 Black. Com. 372.
 
 64 
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 
 
 Acting as jus- 
 tices. 
 
 Exemptions 
 from certain 
 offices. 
 
 Privilege from 
 arrest. 
 
 IIow far it ex- 
 tends. 
 
 from serving in temporal offices, such as bailiff, reeve, 
 constable, 01° the like ; and this in regard of their continual 
 attendance on the sacred function; nor will it make any 
 difference, although the office be such as they might exer- 
 cise by deputy. "" 
 
 By a constitution of Othobon, the clergy are prohibited 
 from acting as justices, which is, in the constitution, ab- 
 surdly enough termed a horrid vice, which is to be extir- 
 pated. There is, however, contained in it a saving of the 
 privileges of the king,'' which saving, it has been observed, 
 entirely defeats the constitution ; but if that saving had 
 not been expressed, yet it is certain that the constitution 
 could not have altered the law of the land in this respect. 
 And it is well known that the kings of England in all ages 
 have asserted a right to employ what subjects they pleased, 
 of the clergy as well as laity, in any post of civil govern- 
 ment. 
 
 They are not bound to serve in war, nor to appear at a 
 court leet or view of frankpledge; neither can they be 
 compelled to serve on a jury ;^ yet that they are not pro- 
 hibited from so serving, appears rather from this, that it is 
 said if a layman be summoned on a jury, and before the 
 trial takes orders, he shall nevertheless appear and be 
 sworn .•= They are also privileged from arrest in civil suits 
 during their attendance on divine service;'' that is, as it 
 has been adjudged, in going to, continuing at, and in re- 
 turning from, the celebration of divine service.^ And they 
 are in hke manner privileged while carrying the sacrament 
 to any sick persons ; and this seems to be extended to the 
 clerks who are with them. But it must be observed, that 
 this is in the case of civil suits only ; and they are not 
 protected from being arrested at such times by warrant 
 duly issued against them, in case of an alleged or suspected 
 crime.' 
 
 Pitt had a warrant from a justice of the peace, and 
 served it upon Webley, as he was coming from church 
 from sermon, upon a week day. Whereupon Webley 
 libelled against him in the Spiritual Court ; and Pitt moved 
 for a ])rohibition, and framed the suggestion upon these 
 statutes, which prohibit arrests in time of divine service, 
 and in going and returning to and from the church. But 
 it was said that those statutes are where the matters are 
 betwixt one common person and another, but not where it 
 
 ' 1 Inst. 96 ; 3 Burn's E. L. 197. » Athon. 89; 3 Burn's E. L. 195. 
 
 ^ 2 Insl. 3, 4. c Beecher's case, A Leon. 190. 
 
 J 1 Black. Com. 377 ; stat. 50 EJw. 3, c. 5. 
 ^ 12 Co. 100; 2 Buls. 72. ' Cro. Jac. 321.
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 65 
 
 concerns the king and a common person, as here it did, 
 this arrest being made at the king's suit. And to this 
 opinion tke court seemed to incline, and that there was just 
 cause for a prohibition.^ 
 
 No person, who has been ordained to the office of priest Ecclesiastical 
 or deacon, nor any minister of the Church of Scotland, is persons cannot 
 
 1 1 P 1 • I i 1 i • !• . 1 Sit in the House 
 
 capable or benig elected to serve n\ parliament as a member ^j- Commons. 
 
 of the House of Commons; and if any person so ordained 
 shall at any time be elected, such election is void. And 
 if any person, being a member of the House, shall be so 
 ordained, or become a minister of the Church of Scotland, 
 his seat becomes instantly ipso facto void. And if, in 
 either of such cases, he presumes to sit or vote as a mem- 
 ber of the House of Commons, he is liable to forfeit the 
 sum of 500Z. to the party suing, for every day in which he 
 has so sat or voted. And he is, moreover, thenceforth 
 incapable of taking, holding or enjoying, any benefice, 
 living, or promotion ecclesiastical whatsoever, or any office 
 of honour or profit under the crown.'' 
 
 By a statute passed at the time of the Reformation, and liestiicted as to 
 by another in the latter part of the reign of George HI., trading ov farm- 
 ecclesiastical persons were restrained from trading, and "* 
 from taking farms of more than a certain value ; but these 
 statutes have been now repealed ; and by a recent act' 
 those restrictions, and the penalties for disobeying them, 
 are fixed as follows : — ■ 
 
 No spiritual person, holding any cathedral preferment Not to take 
 or benefice, or any curacy or lectureship, or who shall be f^rms of above 
 licensed or otherwise allowed to perform the duties of any without consent 
 ecclesiastical office whatever, may take to farm, for occii- of the bishop. 
 pation by himself, by lease, grant, words, or otherwise, 
 for term of life or of years, or at will, any lands exceeding- 
 eighty acres in the whole, for the purpose of cultivating the 
 same, without the permission in writing of the bishop of 
 the diocese, specially given for that purpose, under his 
 hand, and every such permission to any spiritual person to 
 take to farm, for the purpose aforesaid, any greater quantity 
 of land than eighty acres, shall specify the number of years, 
 not exceeding seven, for which such permission is given ; 
 and every such spiritual person, who, without such per- 
 mission, shall take to farm any greater quantity of land 
 than eighty acres, shall forfeit for every acre of land above 
 eighty acres forty shillings for each year during which he 
 shall occupy the same.'' 
 
 And no such spiritual person as before mentioned, by Not to engage 
 
 in trade, &;c. 
 f do. Jac. 321. '' 41 Geo. 3, c. C3. 
 
 M & 2 Vict. c. 106. " Sect. 28. 
 
 F
 
 66 
 
 OF THE POWERS OF ECCLESIASTICAL PERSONS. 
 
 Certain cases 
 excepted. 
 
 Punishment for 
 illegal trading, 
 &c. 
 
 liimself, or by any other for him, may engage hi or carry 
 on any trade or deahng for gain or profit, or deal in any 
 oQods", wares or merchandise, unless it shall be on behalf 
 of any number of partners exceedmg six, or in a case 
 where any such trade or dealing shall have devolved upon 
 any spiritual person, or upon any person for his use, by 
 virtue of any devise, bequest, inheritance, intestacy, settle- 
 ment, marriage, bankruptcy or insolvency.' 
 
 In none of which excepted cases, however, is it lawful 
 for such spiritual person to act as director or managing- 
 partner, or to carry on the business in person.' 
 
 These restrictions, however, do not extend to the case 
 of spiritual persons engaged in keeping schools, or in any 
 manner employed in giving instruction or education, so as 
 to prevent them from buying or selling, or doing any other 
 thing in the course of such management or employment; 
 nor to selling any thing bought bond fide for the use of the 
 family ; nor to selling any books to a bookseller or pub- 
 lisher; nor to being managers or directors in any benefit, 
 fire or life insurance company ; or to buying or selling- 
 cattle for the use of their own lands ; but so, nevertheless, 
 that no such spiritual person shall buy or sell any cattle 
 or corn, or other articles as aforesaid, in person, in any 
 market, fair, or place of public sale."^ And all spiritual 
 persons so trading illegally may be suspended for the first 
 offence for any time not exceeding one year ; for the se- 
 cond ofl'cnce, may be suspended for such time as the judge 
 shall think fit ; and for the third offence, shall be deprived 
 ah officio et bencjiclo." 
 
 ' Sect. 29. "■ Sect. 30. 
 
 " Sect. 31. See Chapter on Suspension and Deprivation, &c.
 
 ( 67 ) 
 
 CHAPTER VII. 
 
 OF THE RIGHTS, PRIVILEGES AND DUTIES, OF 
 ECCLESIASTICAL PERSONS SEPARATELY. 
 
 We now come to speak of the several ranks and degrees England how 
 in the frame and constitution of our ecclesiastical polity. J'^'ded force- 
 For as this country is divided into various ecclesiastical noseT. '^^ "'"'* 
 districts, of which each minor division is a part of and 
 included in a larger,-' so over each of these districts there 
 piesides some spiritual governor, who, in each minor dis- 
 trict, is subordinate in a corresponding manner to the pre- 
 sident of the larger division. Thus England is ecclesias- 
 tically divided into provinces — each province into dioceses 
 — each diocese into archdeaconries — each archdeaconry 
 into deaneries -and each deanery into parishes, towns and 
 hamlets, or district parishes. Of these several divisions, 
 the respective governors are — the king, archbishops, 
 bishops, archdeacons, rural deans, rectors, vicars or per- 
 petual curates, and stipendiary curates ; but, besides these, 
 there are some other ranks and offices which will be also 
 mentioned in their order. Of the king, and of his supre- 
 macy over the whole ecclesiastical body, we have already 
 spoken : of the rest, we shall here mention the manner of 
 their appointment, the rights, privileges and duties inci- 
 dent to their office, and the manner in which that office 
 may determine. 
 
 Section I. 
 Of Archbishops and Bishoj)S, 
 
 The word bishop, in the Saxon biscop, is the Greek 
 e7Ti7}i07ro§, overseer or superintendent, so called, it has been 
 said, from that watchfulness, charge, care and faithfulness, 
 which by his place and dignity he hath and oweth to the 
 Church.'^ ^ ■ 
 
 The bishops and all the inferior clergy in each province Archbishoprics. 
 are subject to an archbishop, who, next and immediately 
 under the king, has supreme jurisdiction and authority in 
 all causes and things ecclesiastical. Of these provinces, 
 there are two in England and Wales, which, for ecclesi- 
 astical purposes therefore, is thus divided : such are those 
 of Canterbury and York; and formerly there existed a 
 third, that of Cacrleon, in South Wales ; but, in the time 
 of Henry I., both that see, and all Wales, became subject 
 ^ See post, Book III. Chap. I. b Godolph. 22. 
 
 f2
 
 68 OF THE RIGUTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Dioceses of each to the Archbishop of Canterbury.'^ Each archbishop hath 
 province. Avithiii his province bishops of several dioceses. The 
 
 Archbishop of Canterbury hath under him within his pro- 
 vince, of ancient foundations, Rochester, London, Win- 
 chester, Norwich, Lincohi, Ely, Chichester, Sahsbury, 
 Exeter, Batli and Wells, Worcester, Coventry and Lich- 
 field, Hereford, LlandafF, St. David, Bangor, and St. 
 Asaph ; and thiee founded by King Henry VI IL, erected 
 out of the ruins of dissolved monasteries, viz. Gloucester 
 and Bristol, which were formerly distinct dioceses ; Peter- 
 borough, and Oxford. The Ai'chbishop of York hath 
 under him five, viz. Chester, erected by King Henry VIIL, 
 and annexed by him to the Archbishopric of York, Dur- 
 ham, Carlisle ; the Isle of Man, annexed to the Province 
 of York, by King Henry VIIL; and the newly erected 
 diocese of Ripon ; the Province of York also occasionally 
 claimed and had a metropolitan jurisdiction over all the 
 bishops of Scotland, until about the year 1466, when those 
 bishops withdrew themselves from obedience to him, and, 
 in the year 1470, the Bishop of St. Andrews was, by the 
 pope, created archbishop and metropolitan of all Scot- 
 land.'' 
 Arclii/ishop, The election of an archbishop does not differ from that 
 
 election of. ^f ^|^g election of bishops, which we shall afterwards have 
 to notice. But the election must be signified to the other 
 archbishop, and to two bishops ; or if not to the arch- 
 bishop, then to four bishops, requiring them to confirm, 
 elect and consecrate him, which they are bound to per- 
 form immediately, without any application to the see of 
 Rome;*^ the last application of that nature having been 
 made by Henry VIII. on behalf of Archbishop Cranmer.^ 
 Of Canierbury, The Archbishoj) of Canterbury is styled metropolitan or 
 liow M)itil,&e. jirimate; and, when he is vested in the archbishopric, is 
 said to be enthroned ; he writes himself by Divine Provi- 
 dence ; and has also the title of Grace, and Most Reverend 
 Father in God ; and he may retain and qualify eight chap- 
 lains.« 
 His prerogatives As archbisliop, he, upon receipt of the king's writ, calls 
 and (iigmiy. the bishojis and clergy of his province to meet in convo- 
 cation, but without the king's writ he cannot assemble 
 tlxiu. To him till appeals are made from inferior juris- 
 dictions within his ])roAincc; and as an appeal lies from 
 
 ' Uogcrs's E. L. 105. 
 
 •' Co. Lilt. 01 a ; 1 Hum's E. L. lf)5; si, .'33 Hen. 8, c. 31 ; Gkl Will. 4, 
 c. 77. 
 
 ' I liiark. .378. f Ilullam's Const. Hist. 
 
 K Goilolpli. 21 ; 1 Burn's K. L. 1[)8.
 
 OF ARCHBISHOPS AND BISHOPS. 69 
 
 each bishop of his province in person to ln"ni in person, so 
 it also Hes from the Consistory Courts of each diocese to 
 his Archiepiscopal Court. During the vacancy of any see 
 in his province, he is guardian of the spiritualties thereof, 
 as the king is of the teniporalties, and he executes all 
 ecclesiastical jurisdiction therein.'' 
 
 The Archbishop of Canterbury is, for some purposes, 
 superior to the other archbishop. He is styled Primate 
 and Metropolitan of all England, notwithstanding there is 
 in England another archiepiscopal province ; and for this, 
 among other reasons, that he has by stat. 25 Henry VIII. 
 c. 21, the povi'er of granting dispensations in any case not 
 contrary to the Holy Scriptures and the law of God, 
 where the pope used formerly to grant them in both pro- 
 vinces alike ; and this too is the foundation of his grant- 
 ing special licenses to marry at any place or time; to hold 
 two livings and the like ; and on this also is founded the 
 right he exercises of conferring degrees in prejudice of the 
 two Universities.' 
 
 Among the privileges of this archbishop may be con- 
 sidered that, by custom, of crowning the sovereign of this 
 kingdom, whether kings or queens, and that of having 
 prelates to be his officers. Thus the Bishop of London is 
 his provincial dean ; the Bishop of Winchester his chan- 
 cellor; the Bishop of Lincoln anciently was his vice-chan- 
 cellor; the Bishop of Salisbury his precentor; the Bishop 
 of Worcester his chaplain ; and the Bishop of Rochester, 
 in former times, carried the cross before him. He is the 
 first peer of the realm, and hath precedency not only 
 before all the other clergy, but next and immediately after 
 the blood royal, before all the nobility of the realm, and 
 before all the great officers of state. And by statute 31 
 Henry VIII. c. 10, the Archbishop of Canterbury is di- 
 rected to sit in parliament, on the right side of the parha- 
 ment chamber, first before the Archbishop of York and 
 all the other bishops.'' 
 
 The Archbishop of York has, by custom, the privilege Of York, 
 to crown the queen consort, and to be her perpetual chap- 
 lain ; and he has precedency before all dukes, not being 
 of the blood royal, and of all the great officers of state, 
 except the lord chancellor. And by the statute 31 Henry 
 VIII., c. 10, before mentioned, he is directed to sit in par- 
 hament next to the Archbishop of Canterbury." 
 
 The archbishop is superintendent throughout his whole Aichbisliops 
 
 generally, 
 '' 1 Black. Comm. 380. 
 
 ' Ibid. ; and see Christian's note to 1 Black. Comm. 378. 
 k Godolph. 14, &c. i Ibid.
 
 '0 
 
 OF THE RIGHTS, DUTIES, ETC. OP ECCLESIASTICAL PERSONS. 
 
 Duties of. 
 
 Visitation by. 
 
 Appeals to. 
 
 Secular autlio- 
 rily of, liovv 
 transferred. 
 
 Atiiiuiil ciiargc 
 on arch- 
 bisliopiics. 
 
 pi'ovince of all ecclesiastical matters, to correct and supply 
 the defects of other bishops, so that, for many purposes, 
 he has concurrent jurisdiction with them ; and therefore 
 his ecclesiastical acts done within his province are void- 
 able only, and not void, though done where the jurisdic- 
 tion belonged to a bishop or other ecclesiastical person 
 within his province ; as if he were to grant administration 
 where there were not bona notdhilia. So he hath pro- 
 vincial power over all bishops in his province, may hold a 
 court when he pleases therein, may officiate as judge in 
 person or by vicar-general ; may deprive them or convene 
 them before him, for misdemeanor in their function.™ 
 
 If the archbishop visit his inferior bishop, and inhibit 
 him during the visitation, and the bishop have a title to 
 collate to a benefice within his diocese by reason of lapse, 
 yet the bishop cannot institute his clerk, but the clerk 
 ought to be presented to the archbishop, and the arch- 
 bishop is to institute him, by reason, that during the inhi- 
 bition, the bishop's power of jurisdiction is suspended." 
 
 The jurisdiction of the archbishop on appeals in different 
 ecclesiastical matters has been very considerably in- 
 creased by various recent statutes, and, as we shall have 
 to remark in the case of bishops, not only has greater 
 power been given him, but, in some cases, other modes of 
 proceeding in the common law courts have been either 
 directly or indirectly superseded ; ° and the Church has 
 thus undoubtedly acquired an increased authority in 
 church matters. This will be found mentioned more par- 
 ticularly under other heads, as those of Church Discipline, 
 Residence, Pluralities, Curates, Offences against Religion, 
 &c. 
 
 The manner in which the decisions, &c. of the bishop 
 arc liable to be reviewed in almost every case by the arch- 
 bishop will be repeatedly mentioned hereafter. 
 
 Besides his ordinary jurisdiction as bishop, the Arch- 
 bishop of York had formerly a secular authority also in 
 certain parts of his diocese, but by an act of parliament 
 passed in the year 1836, it was enacted, that all his secu- 
 liir authority in the different places in which it had been 
 formerly exercised should cease and determine, and should 
 be triiusfcrred to and vested in the king.'' 
 
 liy an order in council confirming the recommendation 
 of tlie ecclesiastical commissioners, the sec of Canterbury 
 
 •" I Hum's K.J,. 230; iihhop „J St. David's case, Cs.x\.\\Aii^ ; 1 Ld, Ray. 
 Rep. 447, 639. 
 
 " Godolph. 19. " See post, Salaiies of Curates. 
 
 I' 6 & 7 Will. 4, c. 87.
 
 OF ARCHBISHOPS AND BISHOPS. 71 
 
 is to pay annually to the commissioners towards the aug- 
 mentation of the incomes of the small bishoprics 7300/., 
 and the see of York WOOL, and the sums are to be paid 
 by half-yearly payments. But this order does not affect 
 the present possessors ; so that the first of such payments 
 will have to be made at the end of six months from the day 
 of the avoidance of the see.'^ 
 
 The archbishop is entitled to present by lapse to all Right of arch- 
 ecclesiastical livings in the disposal of his diocesan bishops, '^'^''"P '° P""^' 
 .„ mil •?•• 1 sent by lapse. 
 
 if not nlled up withni six months. 
 
 But the archbishop has a further customary prerogative Options. 
 as to livings in the disposal of his diocesan bishops, which 
 is far more valuable than this of presenting by lapse ; for 
 every bishop, whether created or translated, is bound, 
 immediately after confirmation, to make a legal convey- 
 ance to the archbishop of the next avoidance of one such 
 dignity or benefice belonging to his see, as the said arch- 
 bishop shall choose and name, which is therefore com- 
 monly called an option. Of this we find early mention in 
 the records of the see of Canterbury, among the presen- 
 tations, institutions and collations of the archbishops, but 
 with these two variations, that in some places it is said to 
 be due ratione consecrationis ; and that anciently the per- Ancient kinds 
 son to be promoted was named to the bishop, and not the of. 
 dignity or benefice he was to be promoted to.* 
 
 The prerogative itself seems to be derived from the lega- 
 tine power formerly annexed by the popes to the metro- 
 politan of Canterbury. And we may add, that the papal 
 claim itself (like most others of that encroaching see) was 
 probably set up in imitation of the imperial prerogative, 
 called prima, or primaricc preces ; whereby the emperor 
 exercises, and hath immeraorially exercised, a right of 
 naming to the first prebend that becomes vacant after his 
 accession, in every church in the empire. A right that was 
 also exercised by the crown of England in the reign of 
 Edward I.' 
 
 And the ancient and immemorial usage is by Gibson 
 stated to have been for the archbishop to name a fit clerk 
 for whom the new bishop was to provide, quam primmn 
 facultas se obtalerit, as soon as he could, and to assign 
 him a pension in the meantime. 
 
 This practice was changed to the present, at the time of Present custoai 
 the Reformation, by Archbishop Cranmer ; from whose =»s to. 
 time it is said to have been the constant usage to convey 
 the advowson, either of the first dignity or benefice that 
 
 1 Order in Council, gazetted 18th July, 1838. '• 1 Black. Com. 380. 
 
 • Gibs. 115. ' Sherlock on Options; 1 Black. Comiu. 380.
 
 72 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 should fall, or of some one in particular, to the archbishop, 
 his executors and assigns, at first for twenty-one years, 
 and afterwards for the next avoidance ;" and the custom 
 appears now to be established, of conveying such one par- 
 ticular benefice belonging to the see as the archbishop 
 shall choose. 
 Are considered These options, when conveyed to the archbishop, are to 
 as personal pro- all purposes considered as chattels, and his personal pro- 
 P^fiy- perty. He may bequeath them by his will ; and, if he 
 
 does not bequeath them, they pass to his executor or ad- 
 ministrator. They are not considered as belonging to the 
 see, and seizable by the king amongst the other tempo- 
 ralties belonging to it.'' 
 
 If the archbishop die whilst the bishop granting the 
 option continues in his see, the option goes to the executor 
 or administrator of the archbishop, to be disposed of as 
 the archbishop may by will direct ; and although it is said 
 they may not be assets for the payment of his debts, yet 
 it is said by Gaselee, J., in giving judgment in the Com- 
 mon Pleas, in the case of RenneU against The Bishop of 
 Lincoln^ " If a creditor should take out administration, 
 what is there to prevent the administrator froin selling the 
 options before the vacancies happen ; or indeed, in a com- 
 mon case, to prevent a residuary legatee, or one of the 
 next of kin from calling upon the executor or adminis- 
 trator to do so." And this circumstance, that options 
 are transmissible to the personal representative, and do 
 not pass to the successor, was much relied upon, in the 
 question upon which there was considerable doubt as to 
 the right of the executor of a prebendary to the presenta- 
 tion to benefices attached to his prebend.^ 
 Lost if the If the bishop who grants the option should die, or be 
 
 bisiiop die, eve. tianslated or removed in any way from his see, before the 
 vacant. option falls vacant. Lord Hardwicke says, " I will give no 
 
 opinion to bind myself, but I am aj)prehensive that it will 
 l)e lost;" and he adds, "my reason is, these options are 
 made eftectual by deed of grant from the bishop : he can 
 grant for no longer than he is incumbent on the bishopric,^ 
 and Gibson speaks to the same effect." 
 Or if lie die The exccutors or administrators of the archbishop can- 
 
 afier vacancy ,,,,|_ piescMit after thc death of the bishop granting the 
 
 and before il is . ' , , , , i ° i • i • 
 
 filled up. oj)tion, altiiough the vacancy may have happened m his 
 
 lifetime: but the j)resentation hills to the crown during 
 the vacancy of the see; to iUustrate which Lord llard- 
 
 " Gibs. 115. V 3 liiiia. 210. 
 
 » Sec Miiilwiisc V. Ueniicll, V, liinp. 490. ^ I Amblei, lUO. 
 
 • Gibs. IIG; and tec 1 UUck. Com. 379.
 
 OF ARCHBISHOPS AND BISHOPS. 73 
 
 wicke puts this case, " Suppose a bishop has the advowson 
 of a hving within the diocese of another bishop (in which 
 case he has the presentation), and presents to it, and be- 
 fore institution dies ; after his death no institution can be 
 upon that presentation, but it falls to the crown. So if a 
 bishop has right of collation in his own diocese, and dies 
 before collation (which is equal to institution upon a pre- 
 sentation), it goes to the crown. If so, will the bishops 
 granting these presentations to other persons put the 
 crown in a worse situation ? The case of fruit fallen, with 
 respect to a bishop, is not like to fruit fallen in the time 
 of tenant for life ; in the former case, nothing goes to the 
 executors or administrators of the bishop."'' 
 
 Although Lord Hardwicke here speaks only of the exc- Or if it falls va- 
 
 cutors or administrators of the bishop, as disabled from cant (lunng the 
 ,• • 1 •-. -1 - .1 • • 1 • vacancy ol the 
 
 presentmg ni sucn a case, it seems that the prniciple ni- gg^^ 
 
 volved and the illustration put by him w^ould make the 
 
 case just the same if the vacancy should occur at such a 
 
 time during the lifetime of the archbishop ; and that the 
 
 archbishop would lose his option, if it were vacant at the 
 
 time of the vacancy of the see, by the bishop of which it 
 
 was granted. 
 
 And where a living is vacant under the same circum- 
 stances, and the right to fill it up has passed with the 
 other temporal rights of the see to the crown, although 
 the crown restore the temporalties of the see to the suc- 
 cessor, Avithout filling up the vacancy, the right to fill it 
 up remains with the crown.'' 
 
 Considerable litigation arose out of the trusts of the will 
 of Archbishop Potter, as to the persons for whom he had 
 bequeathed his options in trust, and the case is given at 
 considerable length in Dr. Burn's work on Ecclesiastical 
 Law ; it is, however, unnecessary to mention it here, since 
 the case seems to have been inserted there under a mis- 
 taken idea of its effect, for the legal question in dispute 
 was quite foreign to that of options, and was solely a 
 question as to the ])roper construction of a trust.'' 
 
 The archbishop of a province is also entitled to the seals 
 of a bishop deceased, which Gibson says is no more than 
 a just and reasonable provision against their being used to 
 ill purposes by executors and others; to prevent which 
 they are to be broken.^ 
 
 Whenever an archiepiscopal see is vacant, the dean and 
 
 ^ Potter V. Chitpman, 1 Ami). 100. 
 
 ■^ See Bennell v. Biihop of JAnrohi, 7 B. &c Cres. 186. 
 
 ^ Richardson v. Chupman, in Chancery and before the House of Lords, 
 
 e Uibs. 133.
 
 74 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 chapter of his diocese are guardians of the spiritualties.'" 
 And when the archbishopric of Canterbury is vacant, they 
 may grant faculties, licenses and dispensations throughout 
 both provinces, as their archbishop might have done.^ 
 Resignation, As all resignations must be made to some superior, an 
 
 &c. of arch- archbishop could resign to none but the king himself, 
 bishop. ^^^ ^g ^ bishop may be deprived by the archbishop, and 
 
 in such manner as will be hereafter mentioned, so probably 
 an archbishop might be deprived for sufficient cause by 
 the king as supreme head of the Church, although no 
 precedent for the exercise of such authority has ever hap- 
 pened, or is ever hkely to happen in this country. 
 
 Section II. 
 
 Of Bishops. 
 
 Having thus far spoken of the provinces, and the arch- 
 bishops who preside over them, we now come to the 
 second ecclesiastical division, namely, that of dioceses. 
 
 The bishop is the head of the clergy in his diocese, in- 
 spects the manners of the people and clergy therein, and, 
 if necessary, punishes them with ecclesiastical censures ; 
 and for this purpose he has several courts under him, and 
 may visit at pleasure every part of his diocese.'' 
 style and privi- His style, title and privileges are inferior to those of an 
 leges of. archbishop. When he is vested in his bishopric, he is 
 
 said to be installed ; he writes himself by Divine Permis- 
 sion, and has the title of Lord, and Right Reverend Father 
 in God ; and he may retain and qualify six chaplains. By 
 the preface to the form and manner of making, ordaining 
 and consecrating bishops, priests and deacons, which has 
 been confirmed by several acts of parliament,' every man 
 which is to be ordained or consecrated bishop shall be full 
 thirty years of age. The reason for which, as given by 
 the canon law, is that our Saviour was baptized and began 
 to preach at that age,'' but in ancient times there seems to 
 have been no such restriction as to age in this country, 
 r.isliops and For many centuries after the Christian era, the bishop 
 
 ihcir clergy for- was tlic universal incumbent of his diocese, and received 
 ""^'^*" all the profits, which were then but ofterings of devotion, 
 
 out of which he paid the salaries of such as officiated 
 under him as deacons and curates in places ap})ointed. 
 Afterwards, when churches became founded and endowed, 
 
 f Godolph. 44. B 25IIen. «, c.'21. '' 1 Black. Com. 302. 
 
 ' 3 & 4 Kdw. <;, c. 10 ; 5 & (i Kdw. 6, c. 1 ; 8 Eliz. c.l ; 13 & 14 Car. 2, 
 t* 4. " Dist. 78, c. 3 ; 1 Burn's E. L. 195.
 
 OF BISHOPS. 75 
 
 he sent out his clergy to reside and to officiate in those 
 churches, reserving to himself a certain number in his 
 cathedral, to counsel and assist him, which are now called 
 deans and canons, of whom we shall have to speak more 
 particularly in their proper order.' 
 
 The mode of election, confirmation and consecration is Eleciion, &:c. of 
 the same in the case of bishops and archbishops ; for it bishops. 
 must be observed, that each archbishop is also bishop, and 
 has his own diocese, wherein he exercises episcopal juris- 
 diction, as in his province he exercises archiepiscopal : 
 and the following is the history thereof given by Black- 
 stone. 
 
 The bishop is elected by the chapter of his cathedral History of. 
 church, by virtue of a license from the crown. Election 
 was, in very early times, the usual mode of elevation to 
 the episcopal chair throughout all Christendom ; and this 
 was promiscuously performed by the laity as well as the 
 clergy, till at length, it becoming tumultuous, the em- 
 perors and other sovereigns of the respective kingdoms 
 of Europe took the appointment, in some degree, into 
 their own hands, by reserving to themselves the right of 
 confirming these elections, and of granting investiture of 
 the temporalties, which now began almost universally to 
 be annexed to these spiritual dignities ; without which 
 confirmation and investiture, the elected bishop could nei- 
 ther be consecrated, nor receive any secular profits. This 
 right was acknowledged in the Emperor Charlemagne, a.d. 
 773, by Pope Hadrian the First and the Council of Lateran, 
 and universally exercised by other Christian princes ; but 
 the policy of the court of Rome at the same time began 
 by degrees to exclude the laity from any share in these 
 elections, and to confine them wholly to the clergy, which 
 at length was completely effected ; the mere form of elec- 
 tion appearing to the people to be a thing of little conse- 
 quence, whilst the crown was in possession of an absolute 
 negative, which was almost equivalent to a direct right of 
 nomination. Hence the right of appointing to bishoprics 
 is said to have been in the crown of England (as well as 
 other kingdoms in Europe) even in the Saxon times ; be- 
 cause the right of confirmation and investiture were in 
 effect (though not in form) a right of complete donation. 
 But when, by length of time, the custom of making elec- 
 tions by the clergy only was fully established, the })opes 
 began to except to the usual methods of granting these 
 investitures, which was per annulmn et baculum, by the 
 prince delivering to the prelate a ring, and pastoral staff 
 ' See Tithes, post; Godolph. 355.
 
 76 OF THE RIGHTS, DUTIES, ETC. OV ECCLESIASTICAL PERSONS. 
 
 or crosier, pretending that this was an encroachment on 
 the Church's authority, and an attempt by these symbols 
 to confer a spiritual jurisdiction ; and Pope Gregory VII., 
 towards the close of the eleventh century, published a bull 
 of excommunication against all princes who should dare 
 to confer investitures, and all prelates who should venture 
 to receive them. This was a bold step towards effecting 
 the plan then adopted by the Roman see, of rendering the 
 clergy entirely independent of the civil authority ; and 
 long and eager were the contests occasioned by this papal 
 claim. But at length, when the Emperor Henry V. agreed 
 to remove all suspicion of encroachment on the spiritual 
 character, by conferring investiture for the future per 
 sceptrum, and not per anmdum et baculum, and when the 
 kinos of Enoland and France consented also to alter the 
 form in their kingdoms, and receive only the homage 
 from the bishops for their temporalties, instead of invest- 
 ing them by the ring and crosier, the court of Rome 
 found it prudent to suspend for awhile its other preten- 
 sions.'" 
 
 This concession was obtained from King Henry I. by 
 Archbishop Anselm ; but King John, (about a century 
 afterwards,) in order to obtain the protection of the pope 
 against his discontented l)arons, was also prevailed upon 
 to give up by a charter, to all the monasteries and cathe- 
 drals in the kingdom, the free right of electing their pre- 
 lates, whether abbots or bishops, reserving only to the 
 crown the custody of the temporalties during the vacancy ; 
 the form of granting a license to elect, (which is the original 
 of our cough cVeslire,) on refusal whereof, tlie electors might 
 proceed without it; and the right of approbation after- 
 wards ; which was not to be denied without a reasonable 
 and lawful cause. This grant was expressly recognized 
 and confirmed in King John's Magna Cliarta, and was 
 again established by statute 25 Edw. III. stat. 6", s. 3. 
 Cotigc d'eslire. But by statute 25 Hen. VIII. c. 28, the ancient right of 
 nomination was in effect restored to the crown, it being 
 enacted that, at every future avoidance of a bishopric, the 
 king may send the dean and cha])ter his usual license to 
 proceed to election, which is always to be accompanied 
 with a letter missive from the kino- containino- the name 
 ot the person whom he would have them elect; and if the 
 dean and chapter delay their election above twelve days, 
 the nomination shall devolve to the king, who may l3y 
 letters-])iitent ap])oint such person as he ))leases. This 
 election or nomination, if it be of a bisho]), must be signi- 
 '" Modern Universal Mist. xxv. 363 ; xxix. Uo; 1 Black. Com. 378, 379.
 
 OF BISHOPS. 77 
 
 fied by the king's letters-patent to the archbishop of the 
 province ; if it be of an archbishop, to the other archbishop 
 and two bishops, or to four bishops, requiring- them to con- Confirmatioa of 
 firm, invest, and consecrate the person so elected, which "'*''°P^* 
 thev are bound to perform immediately, without any appli- 
 cation to the see of Rome. After which the bishop elect 
 shall sue to the king for his temporalties, shall make oath 
 to the king and none other, and shall take restitution of 
 his secular possessions out of the king's hands only. And 
 if such dean and chapter do not elect in the manner by this 
 act appointed, or if such archbishop or bishop do refuse to 
 confirm, invest, and consecrate such bishop elect, they 
 shall incur all the penalties of a prcemunlre.^ 
 
 Thus elected and confirmed, he is fallv invested to exer- Consecration of. 
 cise all spiritual jurisdiction ; but he is yet not completely 
 bishop until consecration ; since before that he may not 
 sue for his temporalties : ° which ceremony, however, being 
 wholly regulated by the prescribed form of consecration, 
 need not be mentioned here. But it must be observed that 
 a bishop is only once consecrated, and the ceremony is not 
 repeated upon his translation, although the election and 
 confirmation in the manner we have mentioned takes place 
 as often as he is translated ; p and he is said to be trans- Translation, 
 lated when he is preferred to some other see. 
 
 As to the place of consecration, the dean and chapter 
 of Canterbury claim it as an ancient right of that church 
 that every bishop of the province is to be consecrated in it, 
 or the archbishop to receive from them a license to conse- 
 crate elsewhere ; and we are assured that a long succession 
 of licenses to that purpose are regularly entered in the 
 registry of that church. And although between the years 
 1235 and 1300, that point %vas controverted with the chap- 
 ter, it ended in their favour, and in the further confirma- 
 tion of the privilege, which was first granted by Thomas 
 Becket, and afterwards confirmed by St. Edmund. And 
 in Cranmer's register there is a memorandum that no 
 bishop may be consecrated without the church of Canter- 
 bury but by the special license of the dean and chapter of 
 Canterbury, under the chapter seal.'' 
 
 All the dignities and benefices which a bishop was pos- Benefices held 
 sessed of before his election become void so soon as he has ^T bishop at 
 been consecrated; and, when he is translated, his former ^^^^ 
 see becomes void upon his confirmation ; and this distinc- 
 
 " Blackbt. Comm. 330. For the offence and penalties of a p-te/juoiire, see 
 post, }5ook VIII. 
 
 " Gibs. 114; Wats. c. 40. p Godolph. 29 ; Gibs. 114. 
 
 q Gibs. 111:1 Burn's E. L. 203.
 
 '78 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTECAL PERSONS. 
 
 Attendance in 
 parliament. 
 
 kneeling down and 
 of the king sitting 
 
 Not necessary 
 for llie validity 
 of an act of par- 
 liament. 
 
 tion is important in the case where the bishop is in pos- 
 session of a dignity or benefice granted in commendam. 
 
 Every person being chosen, elected, nominated, pre- 
 sented, invested and consecrated as aforesaid, and suing 
 his temporalties out of the king's hands, and making oath 
 to the king and to none other, as aforesaid, shall and may 
 be thrononized or installed as the case shall require, and 
 shall have and take ])is only restitution out of the king's 
 hands of all the possessions and profits, spiritual and tem- 
 poral, belonging to such archbishopric or bishopric, and 
 shall be obeyed in all things according to the name, title, 
 degree and dignity he shall be chosen or presented to ; 
 and do and execute every thing touching the same, as any 
 archbishop or bishop of this realm, without offending of the 
 prerogative royal of the crown, and the laws and customs 
 of the realm, might at any time theretofore do. And there- 
 upon the bishop, being introduced into the king's presence, 
 shall do his homaoe for his temporalties or barony by 
 
 putting his hands between the hands 
 in his chair of state, and by taking a 
 solemn oath to be true and faithful to his majesty, and 
 that he holds his temporalties of him ; and lastly, he shall, 
 within six months after his admission, take the oaths of 
 allegiance, supremacy and abjuration, in one of the courts 
 of Westminster, or at the quarter sessions of the peace. 
 
 A bishop, upon his election, shall be taken and reputed 
 as a lord elected ; and they are peers of the land, being sum- 
 moned to the parliament, as well as the other nobles of the 
 land ; but the right under which they sit there, whether in 
 respect of their baronies, or by usage and custom, may be 
 considered still a vexata questio into which it would be 
 unprofitable to enter here.'" It appears, however, that the 
 bishops sat in the wittenagemote under the Saxon mo- 
 narchs ; and the bisho})s created by Henry VI LI. sit in 
 parliament now, though these certainly do not hold their 
 lands by baronial tenure. 
 
 Although, according to the law and customs of parlia- 
 ment, the bishops must be summoned thereto, yet if they 
 absent themselves voluntarily, the king, the lords temporal, 
 and the commons, may make an act of parliament without 
 them ; for the lords spiritual and temporal arc now only 
 one estate,'' and consequently neither of them have any 
 separate negative ; and if a bill should pass their house, 
 there could be no doubt of its validity, though every lord 
 
 "■ Upon this question see Hargrave's note to Co. Lilt. 134; and Ilallam's 
 Middle A{jcs, chap. 8. 
 • IJyer, GO.
 
 OF BISHOPS. 79 
 
 spiritual should vote against it, as was the case with the 
 Act of Uniformity, passed in the first year of Elizabeth ; 
 and in the same manner, if the lords temporal present hap- 
 pened to be inferior in number to the lords spiritual, and 
 every one of the former should give his vote to reject the 
 bill, which should nevertheless be passed, it is presumed 
 there could be as little doubt of its validity, althoug-h Lord 
 Coke has, without much apparent reason, doubted wdiether 
 this would not be rather an ordinance than an act of par- 
 liament.' 
 
 It was holden by the judges in 7th Hen. VIII. that the Their right to 
 king may call a parliament without any spiritual lords. ^°}^ °" capital 
 This was also exemplified in fact in the two first parlia- 
 ments of Charles 11, , wherein no bishops were summoned 
 till after the repeal of the stat. 16 Car. I. c. 27." And we 
 have an example at the present day of acts done by the 
 lords temporal only, without the presence or concurrence 
 of the lords spiritual, for the lords spiritual have long been 
 wont to withdraw from the house when the question of 
 condemnation or acquittal on any capital charge is to be 
 decided ; this they probably did originally in obedience to 
 the canon law ; and although they have always protested 
 in such cases that such withdrawal should not be any in- 
 frinoement of their risfht if the canons were out of the 
 question, yet it must be considered doubtful whether then" 
 right (being now contrary to custom) could be successfully 
 insisted on. It appears however that there are several 
 instances wherein bishops did sit and vote, or in which 
 their right to sit and vote has been acknowledged in such 
 cases ; but none, as it seems, later than the reign of Henry V. 
 Gibson says upon this subject, that when it came to be a 
 question in the reign of King Charles II., the most eminent 
 civilians of that time were advised with by the bishops in 
 convocation, and unanimously gave an opinion under their 
 hands, that by their staying in the House of Lords while 
 cases of high treason were in agitation there, they were in 
 no danger of irregularity, which was the ancient penalty 
 annexed to the canon.'' But it does not follow from this 
 opinion that the bishops could have remained throughout 
 the whole trial, and while the question of life or death 
 came to be decided. Mr. Hawkins, as quoted by Dr. Burn, 
 observes, " that it is said in the Year Book of 10 Edw. IV. 
 c. 6, that upon the trial of a peer in parliament, the bishops 
 shall make a procurator, because they cannot consent to the 
 death of a man ; but this is said to be wholly grounded on a 
 
 *■ 4 Inst. 25; 1 Blackst. Coram. 156. 
 
 " Note to 1 Blackst. Coram. 156 ; Keilw. 184. '' Gibs. 125.
 
 80 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 canon not in force at this day ; neither do I find (says he) 
 any precedent wlierein they have been exckided against 
 their consent, or have withdrawn themselves, without a 
 protestation of their right, or making a proxy ; and the 
 judgment against the Spencers was expressly reversed for 
 this reason, among others, because the bishops were not 
 present ; and in the precedents chiefly insisted on of the 
 other side, it is not expressly said that they were not pre- 
 sent, and it doth not clearly appear but that they might be 
 included under the word peers. However, it hath been 
 always admitted that they have a right to vote in a bill of 
 attainder." ^ Upon this subject Blackstone says, " It has 
 been a point of some controversy whether the bishops have 
 now a right to sit in the court of the Lord High Steward, 
 to try indictments of treason and misprision. Some inchne 
 to imagine them included under the general words of the 
 statute of King William, ' all peers who have a right to 
 sit and vote in parliament;' but the expression had been 
 much clearer if it had been * all lords,' and not ' all peers,' 
 for though bishops, on account of the baronies annexed to 
 their bishoprics, are clearly lords of parliament, yet, their 
 blood not being ennobled, they are not universally allowed 
 to be peers with the temporal nobility ; and perhaps this 
 word might be inserted purposely, with a view to exclude 
 them. However, there is no instance of their sitting on 
 trials for capital offences, even upon impeachments or in- 
 dictments in full parliament, much less in the court we are 
 now treating of; for indeed they usually withdraw volun- 
 tarily, but enter a protest declaring their right to stay. It 
 is observable that in the eleventh chapter of the Constitu- 
 tions of Clarendon, made in parliament 11th Henry II., 
 they are expressly excused, rather than excluded, from 
 sitting and voting in trials, when they come to concern life 
 or limb : ' ejnscopi sicut cateri haroncs, debent interesse 
 judiciis cum baronibus, qiiousque perveniatur ad diminu- 
 tionem viembrorum, vel ad mortem :' and Becket's quarrel 
 with the king hereupon was not on account of the excep- 
 tion, (which was agreeable to the canon law,) but of the 
 general rule, that compelled the bishops to attend at all. 
 And the determination of the House of Lords in the Earl 
 of Danby's case, which hath ever since been adhered to, 
 is consonant to these constitutions, ' that the lords spiritual 
 have a right to stay and sit in court in caj)ital cases till the 
 court proceeds to the vote of guilty or not guilty.' "■ It 
 nnist be noted that this resolution extends only to trials in 
 full parliament ; for to the court of the lord high steward, 
 7 Hawkins, 423. » Lords' Journals, 15lli May, 1679.
 
 OF BISHOPS. 81 
 
 (ill which no vote can be given but merely that of guilty 
 or not guilty,) no bishop, as such, ever was or could be 
 summoned ; and though the statute of King William re- 
 gulates the proceedings in that court, as well as in the court 
 of parliament, yet it never intended to new model or alter 
 its constitution, and consequently does not give the lords 
 spiritual any right in cases of blood which they had not 
 before : and what makes their exclusion more reasonable 
 is, that they have no right to be tried themselves in the 
 court of the lord high steward, and therefore surely ought 
 not to be judges there ; for the privilege of being thus tried 
 depends upon nobility of blood rather than a seat in the 
 house, as appears from the trials of popish lords, or lords 
 under age, and (since the Union) of the Scots nobility, 
 though not in the number of the sixteen; and from the 
 trials of females, such as the queen consort or dowager ; 
 and of all peeresses by birth, and peeresses by marriage 
 also, unless they have, when dowagers, disparaged them- 
 selves by taking a commoner to their second husband." '"^ 
 
 The bishops sit in parliament next to the Archbishop of Order of their 
 York, whose place has been already mentioned, in the suimg in par- 
 following order: 1st, the Bishop of London; 2nd, the 
 Bishop of Durham; 3rd, the Bishop of Winchester; and 
 then the rest, according to their ancienties; but if either 
 of them is also a member of the privy council, then his 
 seat is next after the Bishop of Durham.'' 
 
 Bishops in respect of their persons are not peers with Not tried by 
 the nobility; so that they are not tried by the house of P^^'** 
 peers in cases of alleged crimes, like the lords temporal, 
 but they are tried by a jury in the same manner as com- 
 moners, as was the case with Archbishop Cranmer and 
 Bishop Fisher. 
 
 When any episcopal see is vacant, the archbishop of the Vacancy of a 
 province is guardian to the spiritualties ; and all ecclesias- ^^^' 
 tical jurisdiction is during that time exercised by him or 
 by his commissioners ; but he cannot as such consecrate or 
 ordain, or present to vacant benefices, or confirm a lease,*^ 
 
 During such vacancy, whether it be of an archbishopric 
 or bishopric, the king has the custody of all the lay re- 
 venues, lands and tenements which belong to the see, and 
 which are called the temporalties thereof; and the king's 
 revenue derived from this source was formerly very con- 
 siderable ; and Queen Elizabeth kept the see of Ely vacant 
 nineteen years, in order that she might receive the reve- 
 
 * Blackst. Comm. 263. 
 
 b 31 Hen. 8, c. 10, s. 3 ; Co. Litt. 94, >' Godolph. 21 , 39. 
 
 G
 
 82 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 nues; but now it is reduced to nothing; for as soon as 
 the new bishop is consecrated and confirmed, he usually 
 receives the restitution of his temporalties quite entire and 
 untouched from the king, at the same time that he does 
 homage to his sovereign, and then he has a fee simple in 
 his bishopric, and may maintain an action for the profits.'^ 
 All the bishops of his province, with respect to the arch- 
 bishop, are sometimes called his suffragans. 
 Suffragans. But formerly, and in the proper sense of the word, 
 
 those were called suffragan bishops, who being consecrated 
 in the same manner as other bishops, supplied their places 
 when the latter were absent upon embassies, or in mul- 
 tiplicity of business. They were called suffragan, from 
 suffragari, to assist or help; and they were also called 
 choriepiscopi, or bishops of the country, as a distinction 
 from the proper bishops of the see. They were conse- 
 crated by the archbishop of the province to execute such 
 power and authority, and to receive such profits as were 
 limited in their commissions, by the bishop or diocesan 
 whose suffragans they were. And as the bishop fixed 
 his residence at the principal city, so probably the suf- 
 fragans resided in the more considerable towns of the 
 diocese. But it does not appear that they had any title 
 as suffragan of any particular place, which has induced 
 an opinion that they were itinerant. Whether they were 
 in any manner subordinate or in subjection to the urban 
 bishop is somewhat doubtful ; but the most probable 
 opinion seems to be, that they were at one time equal 
 Avith the urban bishops, and subsequently became inferior. 
 All the particulars connected with this office are known 
 by little more than conjecture. The important fact ap- 
 pears however to be very generally acknowledged, that, 
 however good in theory, the institution worked practically 
 bad. Harmony, it is said, did not long together reign be- 
 tween the bishops and the suffragans ; until the Church 
 becoming at last weary of the continual clashing of the 
 episcopal and the choriepiscopal interests, determined in 
 the time of Ciiarlemagnc on the entire suspension of the 
 latter order.* 
 
 It is considered needless here to enter more fully into 
 this doubfCul sul)joct of the sees, nomination and conse- 
 cration, residence, or power of sulfragan bishops, since 
 Coadjutors. they have been now for many years clisused. As a suf- 
 fragan was formerly assistant to the bishop in matters of 
 
 "« (Jodolpli. 30; 1 IJurn's K. L. 24G. 
 
 * Sec Hor.T Htiriilcs J)c(anir,T, vol. i. p. 22 to 56; a recent work, in which 
 a vaiiety of autlioritics have Ixcn collalcd.
 
 OF BISHOPS. 83 
 
 orders, so also was one, termed a coadjutor, his assistant 
 in matters of jurisdiction. It was not necessary that he 
 should be episcopally ordained, since the duties merely 
 episcopal never devolved on him, but on the suffragan ; so 
 that the suffragan and coadjutor together, in their several 
 persons, ])erformed the offices of one bishop. The coadjutor 
 w^as probably less often appointed than the suffi-agan, and 
 anciently he was appointed when the bishop grew very old 
 or infirm, in order to succeed him.*^ 
 
 The Bishop of Durham had formerly, besides his ordinary Former secular 
 jurisdiction in his see as bishop, a further palatine juris- jur'sdiciion of 
 diction, as it was called, in the county of Durham ; and he rJurhamTnd° 
 was thereby entitled to all forfeitures of lands or goods for Ely transferred. 
 treason or otherwise, and all mines of gold and silver, 
 treasure trove, deodands, escheats, fines and amercements, 
 and nWjura regalia. But it was enacted, in the year 1836,s 
 that all the palatine jurisdiction, poAver, and authority, 
 which had been theretofore vested in and belonging to 
 him, as such bishop, should thenceforth be transferred to 
 and vested in the king, as a franchise and royalty separate 
 from the crown, in the same manner as it had been before 
 exercised and enjoyed by the bishop ; and that all the last 
 mentioned profits and emoluments should in like manner 
 be transferred and vested in the king. But it was pro- 
 vided, that nothing in the act should have the effect of 
 severing or separating from the bishopric, or of affecting 
 the rights of the bishop in any hereditaments, profits, or 
 emoluments of any kind or description whatever, except 
 those already mentioned ; and certain compensations were 
 given by the act to the persons affected by its provisions. 
 
 In hke manner, the Bishop of Ely had formerly secular 
 authority in certain places within his diocese; but by an 
 act passed in the same year,'' it was enacted that all his 
 secular authority should cease and determine, and thence- 
 forth become vested in the king, and compensation was 
 given to persons affected by the act, and various provisions 
 made for carrying the alterations into effect. 
 
 It appears that formerly the houses of the bishops, in Former privi- 
 which they were resident durino" their attendance on par- 't^g? of London 
 
 ,.,•', , , p, . ^ residences of 
 
 Jiament or the court, and upon their own proper occasions, bishops. 
 were extra diocesan ; and that while residing there, the 
 bishops might freely exercise jurisdiction in the same 
 manner as in their own dioceses ; upon which subject Sir 
 William Scott says, " I conceive by the ancient law that 
 bishops should be empowered to act in their London houses 
 
 f Ibid. g 6&7Will.4,c. 19. '' 6 & 7 Will. 4, c. 87. 
 
 g2
 
 84 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 as in their dioceses, and for that purpose their residences 
 in London were considered as a part of their dioceses." 
 We collect this from what is said by Bishop Gibson ; and 
 from the statute 33 Hen. VIII. c. 31, relating to the 
 bishopric of Chester, where it is provided " that he shall 
 be held resident in the diocese of Chester, and have juris- 
 diction in his house at Weston, within the diocese of Co- 
 ventry and Litchfield, during his abode there, as other 
 bishops have in the houses belonging to their sees, where- 
 soever they lie." It is said that this is only a private act, 
 and it is so in its enactments ; but it gives a general de- 
 scription of the bishop's jurisdiction in such places. It 
 refers to a rule of law which was going into desuetude ; 
 and in the statute 31 Hen. VIII. relative to the exchange 
 of houses between the Bishops of Carlisle and Rochester 
 and the Lord Russell, there is a clause providing " that 
 they should have the same authority in their new houses 
 at Lambeth and Chiswick, as they had exercised in their 
 old houses ; and Gibson says, that at the time when he 
 wrote, " there were none left but Lambeth House and 
 Croydon, belonging to the Archbishop of Canterbury ; 
 Winchester Place, now removed from Southwark to Chel- 
 sea; and Ely House, in Holborn." The same privilege 
 has not been attached to new houses, and is not annexed 
 to the present Ely House, though a visitatorial jurisdiction 
 is allowed in it by statute ; and Sir William Scott further 
 observes in the same case — " This is the claim of a layman 
 to a privilege noio extinct in the bishops ; and it is a claim 
 to a local privilege, whereas it was merely personal, and was 
 confined to the residence of the bishop; so that when Ely 
 House, in Holborn, had ceased to be the residence of the 
 bishoj), it was held to be no longer exempt from the juris- 
 diction of the Bishop of London."'' The origin of the pri- 
 vilege is said to have been principally founded on the 
 ancient rule, that their residence should be within their 
 diocese ; the cause and the nature of it was therefore 
 personal. 
 Duties of a The principal duties of a bishop towards his clergy will 
 
 bishop. |3g found to be comprised, in ordination, whereby he calls 
 
 thorn into existence as persons ecclesiastical ; in instituting 
 or licensing them to their benefices or cures ; in visiting 
 them and exercising superintendence over their morals; 
 and enforcing discipline and obedience to the laws eccle- 
 siastical ; for which purpose he has now been vested with 
 ample ])o\vcr; and in suspending or depriving them for 
 due cause. Over all the people in his diocese he exercises 
 ^ See Barton v. Wells, 1 Ilagg. Cons. 31.
 
 OF BISHOPS. 86 
 
 a general pastoral authority; but they are more particu- 
 larly brought under his notice at the time of their confir- 
 mation. 
 
 All these several duties, with the exception of those of 
 visitation and confirmation, will be found fully treated of 
 under other heads ; but these two will be mentioned here. 
 
 Visitation, as commonly understood, denotes the act of Visitation. 
 the bishop, or other ordinary, going his circuit through his 
 diocese, or district, with a full power of inquiry into such 
 matters as relate to church government and discipline.'' 
 
 By the canon law, visitations were to be once a year; Formerly a n- 
 but that was intended of parochial visitations, or a per- ""^' ^^ bishops. 
 sonal repairing to every church, as appears not only from 
 the assignment of procurations, but also by the indulgence, 
 where every church cannot be conveniently repaired to, of 
 calling together the clergy and laity from several parts into 
 one convenient place, that the visitation of them may not be 
 postponed. From this indulgence, and the great extent of 
 the dioceses, grew the custom of citing clergy and people 
 to attend visitations at particular places. But as to pa- Which has now 
 rochial visitations, or the inspection into the fabrics, man- devolved on 
 sions, utensils, and ornaments of the church, that care 
 hath been long devolved upon the archdeacons ; who, at 
 their first institvitions in the ancient church, were only to 
 attend the bishops at their ordination, and other public 
 services in the cathedral ; but being afterwards occasion- 
 ally employed by them in the exercise of jurisdiction, not 
 only the work of parochial visitation, but also the holding 
 of general synods or visitations, when the bishop did not 
 visit, came by degrees to be known and estabhshed 
 branches of the archidiaconal office as such, which by this 
 means attained to the dignity of ordinary, instead of dele- 
 gated jurisdiction ; and by these degrees came on the pre- Now triennial 
 sent practice of triennial visitations by bishops ; so as the by l^'shops. 
 bishop is not only not obliged by law to visit annually, 
 but (what is more) is restrained from it.' 
 
 Every corporation, whether lay or ecclesiastical, is visit- Who are visit- 
 able by some superior, and every spiritual person, being a ^^J"^' ^^'^ ^^ 
 
 •^ . , ^ . ? . 1 , 1 ,1 T ^ t^^^ ■ whom. 
 
 corporation sole, is visitable by the ordinary. Ihere is, 
 however, an exception to this rule in our ecclesiastical 
 polity; for, by composition, the Archbishop of Canterbury 
 never visits the Bishop of London. During a visitation, 
 all inferior jurisdictions are inhibited from exercising juris- 
 diction; but this right from the inconvenience attending 
 the exercise of it is usually conceded, so that the exercise 
 
 k Ayl. Parer. 514, > 4 Burn's E. L. 16j Gibs. 958.
 
 86 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Canon as to 
 visitation. 
 
 Exhibiting let- 
 ters of orders, 
 
 Fee for allow- 
 ing. 
 
 of jurisdiction in the inferior court is continued notwith- 
 standing. 
 
 By the 137th canon, it is enjoined that, forasmuch as a 
 chief and principal cause and use of visitation is, that the 
 bishop, archdeacon, or other assigned to visit, may get 
 some knowledge of the state, sufficiency, and abihty of the 
 clergy, and other persons whom they are to visit; we think 
 it convenient that every parson, vicar, curate, schoolmaster, 
 or other person licensed whosoever, do at the bishop's first 
 visitation, or at the next visitation after his admission, 
 show and exhibit unto him his letters of orders, institution, 
 and induction, and all other his dispensations, licences, or 
 faculties whatsoever, to be by the said bishop either al- 
 lowed or (if there be just cause) disallowed and rejected ; 
 and being by him approved, to be (as the custom is) signed 
 by the registrar, and that the whole fees accustomed to be 
 paid in the visitations, in respect of the premises, be paid 
 only once in the whole time of every bishop, and after- 
 wards but half of the said accustomed fees in every other 
 visitation during the said bishop's continuance. 
 
 Gibson says that none but the bishop, or other person 
 exercising ecclesiastical authority by commission from him, 
 hath right, de jure communi, to require these exhibits of 
 the clergy; therefore if any archdeacons require it, it must 
 be on the foot of custom, the beginning whereof, he says, 
 hath probably been encroachment, since it is not likely 
 that any bishop should give to the archdeacon and his 
 official a power of allowing or disallowing such instru- 
 ments as have been granted by himself or his predeces- 
 sors."" And the canon last mentioned appears to be in 
 observance now^, for it is the practice for each clergyman 
 to exhibit these letters of orders, &c., on his first attend- 
 ance at the bishop's visitation, and on the first appoint- 
 ment to an office, &:c., in any diocese, as well as upon 
 several other occasions." 
 
 The above appears to be all that is necessary to be ob- 
 served of the bishop's visitation ; for the ordinary duties of 
 a visitor, as an ecclesiastical superior, appear in a great 
 measure to have been usurped by the archdeacons, in 
 speaking of whom we shall have occasion again to return 
 to this subject of visitations. And the case of a rector who 
 refused to })ieach a visitation sermon, when required to do 
 so by the archdeacon, is there mentioned ; upon which it 
 may he here observed, that, if that case may be taken as an 
 authority to show that compliance with the order of an 
 
 '" Gib. 959. 
 
 » Communicated to the author as being the present-practice.
 
 OF BISHOPS. 87 
 
 archdeacon in such a matter might be enforced, it seems 
 a fortiori that the bishop's order in a similar case must be 
 obeyed." 
 
 To this general power of the bishop to visit his clergy, Peculiars. 
 there exist many cases of exception ; for there are certain 
 places, the incumbent and people of which are exempt 
 from his jurisdiction, and have an ordinary of their own, 
 which places are usually called peculiars.? 
 
 By the rubric at the end of baptism of those that are of Confinnation. 
 riper years, it is expedient that every person so baptized The rubiic as 
 shall be confirmed by the bishop so soon after his baptism '°' 
 as conveniently may be, that so he may be admitted to the 
 holy communion. 
 
 And by the rubric before the office of confirmation, so 
 soon as children are come to a competent age, and can 
 say in their mother tongue the Creed, the Lord's Prayer, 
 and the Ten Commandments, and also can answer to the 
 other questions of the catechism, they shall be brought to 
 the bishop. 
 
 " For as much as it hath been a solemn, ancient, and Canons as to. 
 laudable custom in the church of God, continued from the 
 Apostles' times, that all bishops should lay their hands 
 upon children baptized, and instructed in the catechism of 
 the Christian religion, praying over them, and blessing 
 them, which we commonly call confirmation, and that this 
 holy action hath been accustomed in the Church in former 
 ages, to be performed in the bishop's visitation every third 
 year; we will and appoint that every bishop, or his suf- 
 fragan, in his accustomed visitation do, in his own person, 
 carefully observe the said custom. And if in that year, by 
 reason of some infirmity, he be not able personally to visit, 
 then he shall not omit the execution of that duty of con- 
 firmation the next year after, as he may conveniently."*^ 
 
 Every minister that hath cure and charge of souls, for Duties of the 
 the better accomplishing of the orders prescribed in the ^mister as to. 
 Book of Common Prayer concerning confirmation, shall 
 take especial care that none shall be presented to the 
 bishop for him to lay his hands upon, but such as can 
 render an account of their faith according to the catechism 
 in the said book contained. And when the bishop shall 
 assign any time for the performance of that part of his 
 duty, every such minister shall use his best endeavour to 
 prepare and make able, and likewise to procure as many 
 
 " See post, Arclideacon's Visitation Sermon. 
 
 P The great probability thai the anomalies of peculiars will very soon be put 
 an end to has made it appear advisable to omit any further mention of them. 
 1 Canon 60.
 
 38 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 as he can to be then brought, and by the bishop to be 
 confirmed.'" 
 
 And by the rubric, whensoever the bishop shall give 
 knowledg-e for children to be brought unto him for their 
 'confirmation, the curate of every parish shall either bring 
 or send in writing, with his hand subscribed thereunto, the 
 names of 'all such persons within his parish, as he shall 
 think fit to be presented to the bishop to be confirmed.- 
 And if the bishop approve of them, he shall confirm them, 
 according to the form in the Book of Common Prayer. 
 
 The obligation therefore on the curate to bring or send 
 to the bishop the names of the children in his parish who 
 are to be confirmed, and on the bishop to confirm them, 
 unless he has cause for disapproval, seems positive. 
 
 The sixty-first canon above mentioned contains, as it 
 will be observed, oeneral directions as to the minister's 
 duty in respect of the persons to be confirmed ; any mi- 
 nister not observing those directions would be liable to 
 punishment for a breach of the laws ecclesiastical. The 
 particular manner in which the directions of that canon 
 may be carried out would be a matter for the discretion of 
 the bishop, who usually issues his directions to his clergy 
 for that purpose ; and those directions, so long as they are 
 consistent with the canon, it would seem that the clergy 
 are bound to obey ; and it is a matter in which, for many 
 reasons, church discipline and a due subordination to the 
 bishops is peculiarly necessary to be observed. 
 
 It will be observed that the canon and the rubric, al- 
 though prescribing the duties of the minister as being 
 incumbent on him in this matter, do not appear to render 
 it essential that persons, coming to be confirmed, should 
 have been first approved of by him; although without that 
 approval he could not present them to the bishop. For 
 there seems to be no restriction on the bishop as to whom 
 he will confirm ; and supposing them to be approved of 
 by him, there is nothing to prevent persons from present- 
 ing themselves, or the bishop from confirming them. On 
 the other hand, it seems that if the minister should refuse 
 or neglect to comply with the bishop's directions as to 
 preparing and sending his parishioners for confirmation, 
 this might be a good cause for the non-approval of such 
 persons by the bishoj). Consequently, that, in different 
 ways, the bishop hns the entire power of directing the 
 preparation of candidates for confirmation in any manner 
 he may think fit; and of all the various circumstances con- 
 nected with it ; and with the mode of bringing them to be 
 
 «■ Canon 61.
 
 OF BISHOPS. 89 
 
 confirmed : and this independently of the minister, if any 
 difficulty should arise respecting his co-operation and con- 
 
 currence/ 
 
 commis- 
 jers. 
 
 Lastly, the office of bishop and archbishop may deter- How the oiUce 
 mine by death ; by the substitution of other persons to -may determine. 
 perform the duties, on account of the incapacity of the 
 party holding the office ; by deprivation, for any very gross 
 and notorious crime, and also by resignation. 
 
 The disuse of the suffragans and coadjutors appears in Provisions for 
 some cases to have been found inconvenient : and an act f''^ ^^^^. °^ ^^^ 
 of parliament has accordingly been very recently passed,* a"y^S?p°Jr 
 which provides for the performance of the episcopal func- archbishop, 
 tions in case of the incapacity of any bishop or archbishop. 
 
 By that act it is provided, that whenever any archbishop Proceedings of 
 of England or Ireland shall have reason to beheve that any V''^ ' 
 bishop of his province is incapable, by reason of mental ^'°°' 
 infirmity, of duly performing his episcopal functions, it 
 shall be lawful for such archbishop to give a notice under 
 his hand to such bishop, that unless within fourteen days 
 from the service thereof satisfactory cause to the contrary 
 be shown by or on behalf of such bishop, the said arch- 
 bishop will issue a commission to inquire into the state of 
 the mental capacity of the said bishop ; and if within 
 fourteen days from the service of such notice cause to the 
 contrary be not sho\^n to the satisfaction of the arch- 
 bishop, it shall be lawful for such archbishop to issue a 
 commission to three persons, being members of the united 
 church of England and Ireland, one of whom shall be his 
 vicar-general, and another one of the bishops of the pro- 
 vince, to inquire into the facts of the case: provided always, 
 that the aforesaid notice shall be served by leaving a copy 
 thereof with the bishop or his secretary.' 
 
 For the purposes of this inquiry, the commissioners may 
 compel the attendance of witnesses : and they have the 
 same powers as now belong to the Consistorial Court, and 
 to the Arches Court respectively." And the witnesses on 
 both sides may be examined by the commissioners on oath, 
 such oath to be administered by one of them ; or they may 
 take evidence on affidavits to be sworn before one of the 
 commissioners, or before a master in chancery." 
 
 Notice of the time and place at which the first meeting Notices of meet- 
 of the commissioners shall be holden, for the purpose of 'Dgs, &c. 
 prosecuting the inquiry, shall be given in Avriting, under 
 the hand of one of the said commissioners, to the bishop ; 
 and shall be served upon him, by leaving one copy thereof 
 
 >■ See Sanders v. Head, Arches Court, 7 Jur. 728. 
 
 » 6 & 7 Vict. c. 62. t Sect. 1. " Sect. 2. " Sect. 3.
 
 90 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Report of com- 
 missioners. 
 
 Costs of the 
 inquiry. 
 
 Case of an 
 aichbisliop. 
 
 with the bishop or his secretary, and another copy thereof 
 with the registrar of his diocese, fourteen days at least 
 before the meeting ; and it shall be lawful for the bishop, 
 and his nearest friend or one of his next of kin, or his or 
 their counsel, proctor, or agent, to attend the proceedings 
 of the conunission, and to examine any of the witnesses ; 
 and all such proceedings shall be public, unless on the 
 special application of the bishop, or his nearest friend, or 
 any one or more of his next of kin, the commissioners shall 
 think fit to direct that the same or any part thereof shall 
 be private : provided that the said commissioners shall not 
 direct the proceedings or any part thereof to be in private, 
 nor shall take evidence upon affidavit, if the bishop, or his 
 counsel, proctor, or agent, object thereto.^' 
 
 The commissioners, or any two of them, shall transmit 
 to the archbishop, under their hands and seals, the de- 
 positions of witnesses taken before them, and all such 
 affidavits, and also a report of the opinion of the majority 
 of the commissioners, whether or not the bishop is inca- 
 pable, by reason of mental infirmity, of duly performing his 
 episcopal functions ; and such report shall be filed in the 
 registry of the diocese ; and the commissioners shall also, 
 upon the application of the bishop, or of his nearest friend, 
 or any one or more of his next of kin, or his or their 
 counsel, proctor, or agent, cause to be delivered to such 
 party a copy of the said report and the depositions and 
 affidavits.'' 
 
 The expenses of this inquiry are to be certified under 
 the hands of two of the commissioners, and when allowed 
 by the archbishop by whom the commission shall have 
 issued, are to be defrayed out of the revenues of the bishop- 
 ric ; " and this, as it seems, is to be the case, whether the 
 report of the commissioners be against the capacity of the 
 bishop or in his favour ; and there seems to be no appeal 
 from un award of costs of this kind, or any other mode of 
 providing for them, even if the commission should appear 
 to have been issued on frivolous grounds. 
 
 In case of the supposed inca])acity of an archbishop, 
 the like i)roceedings are to be adopted : except that in 
 Mich a (.use all things which woidd have been to be done 
 by the archbishop of the jjiovince in the case of a bishoj), 
 arc, in the case of an archbishop, to be done by the Lord 
 rimnrcjlor of Great Britain, or the Lord Chancellor of 
 Ireland, according as the ari-hbishop may be of England 
 or Ireland ; and of the three persons to be apj)ointcd coni- 
 
 u case, one shall be a bishop of the 
 
 nussioners m such 
 > Sect. 3. 
 
 Sect. 5. 
 
 » Sect. 6.
 
 OF BISHOPS. 91 
 
 province, another shall be the other archbishop, and the 
 third, if it be in England, shall be the Master of the Rolls 
 or one of the Vice-Chancellors, or if in Ireland, the Master 
 of the Rolls or one of the Barons of the Exchequer. In 
 every such case the report of the commissioners shall be 
 filed in the registry of the province, and the expenses of 
 the inquiry, when allowed by the lord chancellor, by whom 
 the commission may have been issued, are to be defrayed 
 out of the revenues of the archbishopric.'' 
 
 Every commissioner appointed for this purpose shall, at Oath of com- 
 or before the fiirst meeting of the conmiissioners for the missioners. 
 purpose of prosecuting the inquiry, take, before the arch- 
 bishop or lord chancellor issuing such commission, or 
 before a master extraordinary in chancery, the following- 
 oath : " I do swear, that I will faithfully, impar- 
 tially and honestly, according to the best of my skill and 
 knowledge, execute the several powers and trusts reposed 
 in me under a commission of inquiry issued by , 
 relating to the capacity of , Lord Bishop [or 
 Archbishop] of , duly to perform his (episcopal or 
 archiepiscopal) functions, and that without favour or affec- 
 tion, prejudice or malice. So help me God."*^ 
 
 At any time before the expiration of twenty-eight days Appeal from 
 after the filing of the reijort of the commissioners in the ^^^ ■^^w^ of 
 
 • , /- ,1 ^j- ^ • ,1 1, -i coramissiooers 
 
 registry oi the diocese or province, as the case may be, it ^^ ,i)g aw^^xi in 
 shall be lawful for the bishop or archbishop, concerning council. 
 whom such inquiry shall have been made, or for his nearest 
 friend, or any one or more of his next of kin, or his or their 
 counsel, proctor, or agent, to present a petition to her 
 majesty in council, or to the lord-lieutenant or other chief 
 governor or governors of Ireland, for the time being, in 
 council, praying that no such letters patent, as are here- 
 after mentioned, may be issued; and at the same time to 
 lodge with the clerk of the council an office copy of the 
 report of the commissioners, and of the depositions and 
 affidavits whereon the same is founded ; and the matter of 
 such petition shall be heard or considered on such report, 
 depositions, and affidavits, in England, before the judicial 
 committee of the privy council, in case her majesty shall 
 be pleased to refer it to the said committee ; and in Ireland, 
 before the lord-lieutenant, or other chief governor or go- 
 vernors of Ireland, for the time being, in council ; and a 
 copy of the order in council, containing the decision in the 
 matter of such petition, shall, by the clerk of the council, 
 be transmitted to the registry of the diocese or province, 
 as the case may be, and shall be there filed.*^ 
 
 ^ Sect. 7. c Sect. 8. <> Sect. 9.
 
 92 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Judicial com- Every archbishop and bishop of the United Church of 
 mittee of privy Enoland and Ireland, who may at the time be a member 
 conriitl'ted for of the privy council, shall be a member of the judicial corn- 
 such purpose, mittee of the privy council for the purposes of this act.'' 
 Appointment of When the incapacity of the bishop has been thus fully 
 a bishop to per- established, and at the expiration of twenty-eight days, if 
 coM/funcnons; ^^^^rc has been no petition of appeal, or if there has been 
 an appeal, then at any time after it has been pronounced 
 against, the archbishop or lord chancellor, as the case may 
 be, may make request to her majesty for remedy thereof; 
 and thereupon it shall be lawful for her majesty, by letters 
 patent, to appoint one of the bishops of the same province, 
 being a bishop of England or Ireland, and not being one 
 of the commissioners, to exercise all the functions and 
 powers, as well with regard to the temporalties as the 
 spiritualties, of the bishop or archbishop so found to have 
 become incapable; and in case of the death or incapacity, 
 deprivation, or suspension of the bishop so appointed, or 
 in case her majesty shall, on the petition of such bishop, 
 be pleased to relieve him from the further exercise of such 
 functions and powers, it shall be lawful for her majesty in 
 like manner to appoint another such bishop, and so as 
 and a spiritual often as the case shall happen : and it shall be lawful for 
 person to assist the bishop SO appointed, and the archbishop or lord chan- 
 
 in administra- ^^ xi 11 i i.i • • 
 
 tion of the tem- cellor, as the case may be, by whom the commission was 
 poraities. issued, or any successor of such archbishop or lord chan- 
 
 cellor, by an instrument in writing under their hands and 
 seals, jointly to commission and appoint a spiritual person 
 to assist in the administration of the temporalties of the 
 see, and in such matters of jurisdiction of the see or pro- 
 vince of the bishop or archbishop, so found to have become 
 incapable, as shall and may be lawfully committed to him, 
 which spiritual person shall give to the bishop and to the 
 archbishop or lord chancellor by whom he shall be ap- 
 pointed, a bond, with sufficient surety in a sufficient sum, 
 with a condition for his duly accounting for the monies 
 which may come to his hands by virtue of his office; and 
 it shall be lawful for the l)ishop so appointed, and the 
 same or any succeeding archbishop or lord chancellor, at 
 their {jleasure, to revoke and cancel such appointment ; 
 and in any such case, or upon the death or resignation of 
 such spiritual person, in like manner to commission and 
 appoint another sj)iritual person, on his giving such secu- 
 rity as before mentioned, and so from time to time as often 
 as the case shall happen ; and all things done by virtue of 
 this act, within the limits of his authority, by any such 
 
 f &ect, 10.
 
 OF BISHOPS, Q3 
 
 bishop or spiritual person, shall be done in the name of 
 the bishop or archbishop so found to have become inca- 
 pable, and under the seal of such bishop or archbishop, 
 where a seal is required to be used, and shall be as valid 
 as if done by such bishop or archbishop ; and the receipt 
 of the bishop or spiritual person, so appointed as aforesaid, 
 for such sums as he shall receive by virtue of his commis- 
 sion, shall be good and effectual discharges for the monies 
 which in such receipts shall be acknowledged to have been 
 received : provided that it shall not be lawful for such bishop Restrictions on 
 or spiritual person to present, collate, nominate or license exercise of au- 
 any clerk to any ecclesiastical benefice in the gift or pa- ''^""^^ ^^ *^^"'- 
 tronage of the bishop or archbishop so found to be inca- 
 pable, or to sanction the union or disunion of any benefice 
 in such gift or patronage with or from any other benefice, 
 without the approval of the archbishop or lord chancellor 
 by whom the commission was issued ; or, without the like 
 approval, to appoint or displace any officer of the see or 
 province ; and no lease or deed of conveyance, exchange, 
 or enfranchisement of any lands or possessions belonging 
 to the see or province, to be executed by any bishop or 
 spiritual person appointed as aforesaid, shall be valid un- 
 less approved and executed by the archbishop of the pro- 
 vince, or, in case of the incapacity of the archbishop, by 
 the lord chancellor of Great Britain, or the lord chancellor 
 of Ireland, as the case may be, and in each case sealed 
 also with the seal of the ecclesiastical commissioners for 
 England, or of the ecclesiastical commissioners for Ireland, 
 as the case may be>' 
 
 The bishop and the spiritual person thus appointed. Power to re- 
 shall, for the purpose of enforcing payment of the reve- cover revenues, 
 nues of the see, have severally all the same legal rights, 
 powers, and remedies, by action, suit, or distress, as might 
 have been exercised by the bishop or archbishop if no com- 
 mission had issued • but neither of them shall be account- 
 able for any monies which shall not have been actually 
 received by them respectively.'' 
 
 It shall be lawful for her majesty to assign to the spiri- Allowance lo 
 tual person to be appointed as aforesaid, a yearly allow- ^'^^ spiritual 
 ance, not exceeding one-sixth part of the revenues of the P'^'^^°"" 
 bishopric or archbishopric, which shall be defrayed out of 
 the revenues of the bishopric or archbishopric ; and such Revenues, how 
 spiritual person shall also, out of such revenues, defray '» ^^ applied, 
 and reimburse to the bishop to be appointed as aforesaid, 
 all expenses incurred by him in the execution of this act, 
 such expenses being first allowed by the archbishop or 
 e Sect. 11. h Sect. 12.
 
 94 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 lord chancellor, as the case may be ; and the remainder 
 of the said revenues, after such payments as aforesaid, and 
 such other payment, if any, as shall be made by the bishop 
 or the spiritual person who shall be appointed by virtue of 
 this act, in respect of rates, taxes, tenths, salaries, pen- 
 sions, repairs, insurances from fire, and other expenses in- 
 cident to the administration of the temporalties, or to the 
 exercise of the jurisdiction of the bishop or archbishop so 
 found to be incapable, shall be paid to such bishop or 
 archbishop, or to such other person or persons as shall be 
 by law entitled to receive the same.' 
 Bishop or arch- If a bisliop or arclibishop should have been duly found 
 bishop duly ^ lunatic Under a writ de lunatico inquirendo, and the in- 
 lunatic" '^ quisition should not be quashed, or the commission super- 
 seded, it is to stand in place of a report of the commis- 
 sioners, and may be acted on accordingly.'' 
 Provision in Lastly, it shall be lawful for her majesty, with the ad- 
 
 case of recovery ^j^g ^f j^gj. ppiyy council, upon a petition from the bishop 
 bisiiop or arch- or archbishop so found to be incapable, a lunatic, or of 
 bishop. unsound mind, setting forth that such incapacity, lunacy, 
 
 or unsoundness of mind hath ceased, to cause inquiry to 
 be made in such manner as to her majesty, with the advice 
 aforesaid, shall seem fit ; and if, upon such inquiry, it shall 
 appear to her majesty that such incapacity, lunacy, or un- 
 soundness of mind hath ceased, and that such bishop or 
 archbishop hath become capable of again duly performing 
 his episcopal or archiepiscopal functions, it shall be lawful 
 for her majesty, by letters patent under the great seal of 
 Great Britain or Ireland, as the case may be, to supersede 
 and annul the letters patent so first issued ; and thence- 
 forward, and also in case of the death of the bishop or 
 archbishop so found to be incapable, all powers and autho- 
 rities vested in any other bishop or spiritual person, on 
 behalf of such Ijishop or archbishop, shall cease.' 
 Deprivation Concerning the deposing or depriving of a bishop, there 
 
 diiierent from jg some confusion in the books; but in fact they are 
 ''°^' ' "■ distinct things. Deposition implies the taking away, or 
 j)utting a bishop iVom the ollice itself, or degrading him 
 from the order of bishop ; deprivation only takes from him 
 the exercise thereof in such a particular diocese, leaving 
 him still a bislioj) as much as he was before, and only 
 vacates iiis promotion. 
 
 As to the former of these, the power of deposing, Dr. 
 
 AylilFc says, that by a canon of the Council of Lateran, 
 
 bi>li(ips cannot be deposed by their metropolitan, without 
 
 the pope's leave or licence so to do; even as a bishop 
 
 Sect. 13. k Sect. 14. » Sect. 15.
 
 OF BISHOPS. 95 
 
 cannot, by his power alone, depose any clerk from his 
 orders, though he may by liimself' give a person orders,"" 
 
 And Dr. Godolphin says, that the consecration of a Bishop cannot 
 bishop is character indelihilis ; insomuch that, although it be deposed, 
 should so happen, that, for some just catise, he should be 
 deprived, or removed from the see, or suspended ah officio 
 et beneficio, both from his spiritual jurisdiction as to the 
 exercise and execution thereof, and also from the tempo- 
 ralties and profits of the bishopric ; yet he still retains 
 the title of a bishop ; for that it is supposed the order 
 itself cannot absolutely be taken from him." 
 
 But as to deprivation. Dr. Ayliffe says, that in England But may be de- 
 an archbishop may deprive a bishop, if his crime deserves P"^'^''- 
 so severe a punishment ; and that it is said in the canon 
 law, that a bishop who is unprofitable to his diocese ought 
 to be deprived, and no coadjutor assigned him, nor shall 
 he be restored again thereunto." 
 
 And Dr. Gibson says that the archbishop has a right to 
 deprive a suffragan bishop, and for the same refers to the 
 case of Lucy and Dr. Watson, Bishop of St. David; which 
 is indeed an express authority on the point, as it is related 
 in Lord Raymond's Reports : for it is there said by C. J. 
 Holt, "That there are archbishops who have authority c. J. Holtoa 
 over their suffragan bishops ; and there are primates who 'he general 
 are superior to them." The Archbishop of Spalata says in ^"s^ops" ^^^ ' 
 his book, that an archbishop has the same authority over 
 his suffragan bishops that the bishop has over his inferior 
 clergy ; and though there may be a co-ordination Jure 
 divino, yet there is a subordination jwe ecclesiastico qua 
 humano ; not of necessity from the nature of these offices, 
 but for convenience. And for what other purpose have 
 archbishops been instituted by ecclesiastical constitutions? 
 The power of an archbishop was very great here in Eng- 
 land anciently; the same jurisdiction of supremacy as the 
 patriarchs of Constantinople, &c. The pope used to call 
 him, alterius orhis pnpam ; and he exercised the same 
 jurisdiction with him. But afterwards, in the time of 
 Henry L and King Stephen, the pope usurped the autho- 
 rity of the archbishops ; in exchange for which they be- 
 came legati nati of the pope : and that is the reason why 
 this practice cannot be found to have been put in use for 
 so long a time : for when the archbishop had divested 
 himself of his supremacy, and the pope had gained all his 
 jurisdiction, the bishops being created by the pope, and 
 consequently having better interest at Rome, at least as 
 good as the archbishop, it was in vain to intermeddle. 
 
 >» Ayl. Parer. 124. ° 1 Burn's E.L. Bishop. » Ayl. Parer. 124.
 
 96 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 But at this day, by the act of Henry VIII, , this jurisdiction 
 is restored. It was always admitted that the archbishop 
 had metropolitical jurisdiction, and the bishops swear 
 canonical obedience to him ; and where there is a visita- 
 torial power, there is no reason to question the power of 
 deprivation ; for the same superiority which gives him 
 power to pass ecclesiastical censures upon the bishops, 
 will give him power to deprive ; it being only a different 
 degree of punishment for a different degree of offence. 
 This appears upon the statutes 26 Hen. VIII. and 1 Eliz, 
 c. 1, where, notwithstanding that there is not one word of 
 deprivation, but only to visit, repress, redress, reform, cor- 
 rect, and amend ; yet they have been construed to give a 
 power of deprivation. " And there is no case where a 
 jjerson hath power of visitation, but he hath also power of 
 deprivation. But when there was such a summary power 
 before the high commission, it is no wonder if such a 
 tedious proceeding before the archbishop was not used."P 
 This judgment was given upon the denial of a prohibition 
 which had been applied for by the bishop, and which was 
 refused by the whole court. A mandamus was then 
 moved for to order that the bishop's allegation should be 
 admitted ; but this was also refused. After the denial of 
 the prohibition, the bishop petitioned the lord chancellor 
 to have a writ of error upon such denial, and the chan- 
 cellor, having some doubt whether it would lie or not, 
 referred it to the attorney-general, who gave his opinion 
 that a writ of error would lie. The writ of error was 
 granted, and the whole record brought by the chief justice 
 into parliament ; and, u])on hearing his opinion, the lords 
 of ))arlianiont were of opinion tluit it would not lie. Upon 
 which Lord Raymond says that C.J. Holt told him that if 
 the lords had been of o))inion that the prohibition ought to 
 have been granted, he ncivcr would have granted it.'' 
 
 This case of Lucu v. Bishop of St. David's may be taken 
 as a most complete authority ; since it a})pears that through- 
 out the ])roceeding nothing was left undone by the bishop 
 to prevent the de))rivation. Pending the suit against him 
 before the aichbishop, he a])j)caled to the Delegates, and 
 then moved for a j)i-ohil)ition to them on divers suggestions, 
 which |)rohii)i(i(jii, however, was refused. The Delegates 
 overruled his ajipeal ; and then, when the archbishop had 
 pionouMced sentence of deprivation against him, he aj)- 
 peal(;d frf)m that sentence again to the Delegates; and, 
 
 I' Sec tlio wliolp ju()i;incnl, from wliicli llm above is extraclctl, in Kpisc, St. 
 David'i V. I.IICIJ, Lord Kaym. 11. 639. 
 
 t See note lo the above cases, Lord llaym. R. 545.
 
 OF BISHOPS. 97 
 
 seeing that they would be against him, he moved again 
 for a prohibition to stay their proceedings in the appeal, 
 upon which occasion it was that C.J.Holt delivered the 
 judgment of which his words quoted above are a part.'' 
 The bishop was obliged at last to submit to the sentence. 
 
 And as to the mode of proceeding in depriving a bishop, ."\locleof pro- 
 the archbishop (Tennison) in the above case called to his ^^eccimg m de- 
 assistance six other bishops, with whom he held a court 1'"^'"°'^ ^'^'°P- 
 at Lambeth, and cited the accused bishop to apj^ear before 
 him, or his vicar-general, in the hall of Lambeth House, 
 to answer, &c. To this it was objected, in one of the mo- 
 tions for a prohibition, that the bishop was not cited to 
 appear in any court of which the law takes notice ; but 
 by C.J. Holt, to permit the point of jurisdiction to be dis- 
 puted, would be to pei'mit the disputing of fundamentals ; 
 for the Archbishop of Canterbury has, without doubt, pro- 
 vincial jurisdiction over his suffragan bishops, which he 
 may exercise in any place of the province it shall please 
 him ; and it is not material to be in the Arches, for the 
 archbishop is not confined to exercise his metropolitan 
 jurisdiction there. It appears, however, that afterwards 
 the archbishop's jurisdiction was excepted against in the 
 House of Lords, under the pretence that he could not 
 judge a bishop but in a synod of the bishops of the pro- 
 vince, according to the rules of the primitive times. Li 
 answer to which it was shown, that from the ninth century 
 downward, both popes and kings had concurred to bring piaceofmeet- 
 this power singly into the hands of the metropolitans; ing. 
 that it was the constant practice in England before tlie 
 Reformation ; and by the provisional clause in the act of 
 the 25 Hen. VIIL empowering a new body of ecclesias- 
 tical law^s to be drawn, all former laws and customs were 
 to continue in force till that new code was framed ; which 
 confirmed the power the metropolitan was then possessed 
 of. Nor could the archbishop erect a new court, or pro- 
 ceed in the trial of a bishop, in any other way than in that 
 which was warranted by law or precedent. To this no 
 answer was made (nor could be made), but yet the business 
 was kept up by the bishop's friends, and at last dropped, 
 with an intimation that it was hoped the see would not be 
 filled till the house was better satisfied of the archbishop's 
 authority.'' 
 
 Although it appears that there could be little doubt as 
 to the legality of tiie proceedings of the archbishop in this 
 case, yet it seems, that on a subsequent occasion, it was 
 thought best to obviate any doubt upon the point last 
 
 ■• See 1 Loul Rajm. R, 539. « 2 Warn. 656. 
 
 H
 
 98 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Probable esta- 
 blished raelhod. 
 
 Resignation. 
 
 raised in the House of Lords ; and accordingly, in the 
 year 1822, when it was necessary to deprive the Bishop of 
 Clogher, the tribunal was constituted of the archbishop 
 and the other bishops of the province;* and this precedent 
 having been established, would probably be adhered to on 
 any future occasion, notwithstanding that the archbishop 
 alone might have full authority to deprive. Lastly, the 
 office of a bishop may be determined by resignation ; but 
 resignation can only be made to some superior ; conse- 
 quently the bishop must resign to his archbishop. 
 
 Office of dean 
 derived from 
 analogy to civil 
 government. 
 
 Different kinds 
 f>f deanH. 
 
 Section 3. 
 
 Of Deans. 
 
 The institution of deaneries, as also of the other eccle- 
 siastical offices of dignity and power, seems to bear a re- 
 semblance and relation to the methods and form of civil 
 government which obtained in the early ages of the Church 
 throughout the western empire, — accordingly in this king- 
 dom, for the better preservation of the peace, and more 
 easy administration of justice, every hundred consisted of 
 ten districts called tithings, and in every such tithing there 
 was a constable or civil dean appointed for the subordinate 
 administration of justice. In conformity to this secular 
 method, the spiritual governors, the bishops, divided each 
 diocese into deaneries, decennaries, or tithings, each of 
 which was the district of ten parishes or churches ; and 
 over every such district they appointed a dean, which in 
 the cities or large towns was called the dean of the city 
 or town, and in the country had the appellation of rural 
 dean." 
 
 The origin of deans being thus accounted for, there is 
 no necessity for supposing that the dean of a chapter was 
 of old necessarily appointed to superintend ten canons or 
 prel)endaries, as Blackstonc and some others have con- 
 sidered })robable ; for which supposition we have been 
 unable to find any more certain authority ; but it is pro- 
 bable that in the particular cases in which the name is 
 now applied, it was transferred to those offices which 
 apf)car(!(l analogous to those to which it was originally 
 given. 
 
 There are different kinds of deans : and one important 
 distinction nrisiug from tlio nature of the offices, is that of 
 deans of sj)iritual promotion, and deans of lay promotion ; 
 
 « 1 Burn's E. L. 238. n KenneU's Par. Ant. 633.
 
 OF DEANS. 99 
 
 the latter of whom we may at present disregard : the 
 former, whom we proceed to notice, may again be divided 
 into— 1. Deans of Provinces, or Deans of Bishops. 2. Ho- 
 norary Deans. 3. Deans of Peculiars. 4. Deans of Chap- 
 ters. 5. Rural Deans. "" Of these we speak in their order. 
 
 1 . We have before observed, that it is a part of the dig- Deans of pro- 
 nity of the Archbishop of Canterbury that he has prelates v'"c^^- 
 
 to be his officers, and that of these the Bishop of London 
 is his provincial dean ; and this is the sole example of a 
 dean of the first kind which we have to mention. To him 
 as such dean, the archbishop sends his mandate for sum- 
 moning the bishops of his province, when a convocation is 
 to be assembled,^' which is probably the origin of his being 
 called dean of the bishops. Whether he had anciently 
 any other office does not appear ; and since the bishops 
 have ceased to be thus convoked, his office is altogether 
 nominal. 
 
 2. Honorary deans are such as the Dean of the Chapel Honorary 
 Royal of St. James, who is said to be so styled on account '^eans. 
 of the dignity of the person over whose chapel he pre- 
 sides;^ and the Dean of the Chapel of St. George at 
 Windsor. But in the latter case, there being canons as 
 
 well as a dean, it seems to be something more than a 
 chapel, and, except in name, resembles a collegiate 
 church. 
 
 3. Deans of peculiars have sometimes both jurisdic- Deans of pecu- 
 tion and cure of souls; in which case they are considered ^'^''®" 
 deans of spiritual promotion ; as the Dean of Battle in 
 
 Sussex, which deanery was founded by William the Con- 
 queror in memory of his conquest; and sometimes they 
 have jurisdiction only without cure of souls, in which case 
 they may be and frequently are deans of lay promotion. 
 Of such kind are the Dean of the Arches, in London; the 
 Dean of Bocking, in Essex ; and the Dean of Croydon, in 
 Surrey. These, as it is said, are only by covenant or con- 
 dition, and they have a court and a peculiar, in which they 
 hold jurisdiction of all such matters and things as are ec- 
 clesiastical, and which arise within their peculiar, which 
 often extends over many parishes. But in speaking here 
 of the different persons ecclesiastical, it seems unnecessary 
 to give a more particular account of these latter kinds of 
 deans. 
 
 4. We now come to speak of that kind of deans which Deans of chap- 
 may be said to be by far the most important in our eccle- ^^^^' 
 siastical polity, viz. the deans of chapters. Of which kind 
 
 are the Deans of Canterbury, St. Paul's, and the like; 
 ^ 1 Rogers's E.L. 289. v Co. Litt. 95 a, n. 1. ^ Ayliffe'sParerg. 205. 
 
 h2
 
 100 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Rural deans. 
 
 Deans of tlie 
 old and of tlie 
 new foundation, 
 
 Election for- 
 merly. 
 
 and these are ecclesiastical governors secular over preben- 
 daries or canons in the cathedral or collegiate churches. 
 
 5. Rural deans are another kind of ecclesiastical officers 
 bearing this name ; but as they have no rank with those 
 whom we are now considering, we shall reserve the notice 
 of them for another place. 
 
 When in episcopal sees the bishops dispersed the body 
 of their clergy by affixing them to parochial cures, they 
 reserved a college of priests, or secular canons, for their 
 counsel and assistance, and for the constant celebration 
 of divine offices in the mother or cathedral Church, where 
 the tenth person had a presiding and inspecting power, 
 till the senior or principal dean swallowed up the office of 
 all the inferior, and, in subordination to the bishop, was 
 head or governor of the whole society. His office was to 
 have authority over all the canons, presbyters and vicars, 
 and to give possession to them when instituted by the 
 bishop ; to inspect their discharge of the cure of souls ; to 
 convene chapters, and to preside in them ; there to hear 
 and determine proper causes, and to visit all churches 
 once in three years within the limits of their jurisdiction. 
 The men of this dignity were called Archipresbyters, be- 
 cause they had a superintendence or primacy over all the 
 college of canonical priests ; and were hkewise called De- 
 cani Christianitatis, because their chapters were courts of 
 Christianity or ecclesiastical judicatures, wherein they cen- 
 sured their offendino- brethren, and maintained the dis- 
 cipline of the Church within their own precincts.'' 
 
 Deans of chapters may be divided into those of the old 
 and those of the new foundation ; the former being such 
 as existed prior to the Reformation ; the latter created by 
 Henry VIII. after the dissolution of the monasteries, viz. 
 Canterbury, Winchester, Worcester, Ely, Carlisle, Dur- 
 ham, Rochester, and Norwich ; Peterborough, Chester, 
 Gloucester, Bristol, and Oxford ; of these, the first eight 
 were new deaneries to the bishoprics of tlie old founda- 
 tion ; the five last were deaneries to the bishoprics of the 
 new foundation.'' 
 
 In tlie case of the deaneries of the old foundation, the 
 mode of election appears to have been very variable for 
 several reigns after the Norman conquest. But since the 
 reign of King .lohn, they liave been elected by the chapter 
 by co)if/c d'csllrc from the king, and Ictteis missive of 
 recommendation, in the same manner as in the case of 
 bishops. But, there was not any statute which compelled 
 the (•lui])tcr to yield to the recommendation by the pe- 
 •' Keniietl's I'ar. Ant. G31. '' Ilargravc's note to Co. Mtt. 95 a.
 
 OF DEANS. 101 
 
 nalties of prcemuidre in the case of cleans, as there was in 
 the case of bishops. And in a case where a deanery w^as 
 originally of private foundation, and the crown was neitiier 
 patron or founder, but the appointment was by election of 
 the chapter from among the canons residentiary, the Court 
 of Queen's Bench, in the absence of any clear proof of 
 the total transfer of the patronage from those to whom it 
 was originally confided by the charter of foundation, re- 
 fused a mandamus to proceed to a new election, and then 
 elect the nominee of the crown,*" But now it is enacted Direct patron- 
 that the deanery of every cathedral and collegiate church ^p^^*" ^JJJ^"^^ 
 upon the old foundation (excepting Wales) shall hence- jation now in 
 forth be in the direct patronage of the crown ; and the the crown, 
 sovereign may, upon the vacancy of any such deanery, 
 appoint by letters-patent, and the person appointed shall 
 thereupon be entitled to installation;'' and the deaneries 
 of the new foundation were always purely donative, and 
 the installation is by the king's letters-patent.'' 
 
 It is doubtful whether deans of chapters might formerly Who are quali- 
 ever have been laymen. Such no doubt there have been, ^^'^ '" ^^ '^^^^^^ 
 but only, as it appears, by special licence and dispensation 
 from the king ; but it was declared by statute,' that a 
 person must have been ordained priest in order to qualify 
 him for such an office ; and now it is further necessary that 
 he must have been six years complete in priest's orders.^ 
 
 There may be deans either in cathedral or collegiate Who are to be 
 churches; but although having the office and authority, styled deans. 
 they have not always had the name of dean, as the pre- 
 centor of the cathedral church of St. David, and the 
 warden of the collegiate church of Manchester ; but now 
 these are for the future to be styled deans. There were 
 also formerly, and there still exist, certain non-residentiary 
 deaneries, as those of Wolverhampton, Middleham, Hey- 
 tesbury, Brecon ; but as these respectively fall vacant, no 
 new nomination is to be made to them, and they are to 
 be suppressed. The deanery and archdeaconry of LlandafF 
 are henceforth united.'' 
 
 During a vacation the profits of a deanery go to the Profits during 
 succeeding dean, towards payment of his first fruits.' vacation. 
 Deans are required to preach in their cathedral or col- Preaching, 
 legiate churches, and also in other churches of the same 
 diocese where they are resident, especially in those places 
 where they or their church receive any yearly rents or 
 
 c Reg. V. Exeler, Chapter of St. Peter's, 4 P. & D. 252. 
 
 d 3 & 4 Vict. c. 113, s.2'4. e 1 Black. Com. 382. 
 
 f 13 & 14 Car. 2. s 3 & 4 Vict. c. 113, s. 27. 
 
 1' 3 & 4 Vict. c. 113, ss. 1, 21, 40. » 28 Hen. 8, c. 11.
 
 102 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 l)roiits, or to substitute such preachers as the bishop shall 
 think meet ; and for any neglect to do so, he may be 
 punished by the bishop.'' 
 Residence of It is directed by Canon 42, that every dean shall be 
 
 deans. resident in his cathedral church four score and ten days 
 
 conjunctim and divisim at the least in every year for the 
 preaching the word of God and keeping good hospitality, 
 unless he shall be let by weighty and urgent causes to be 
 approved by the bishop. But every dean who is appointed 
 to any cathedral or collegiate church after the 11th of 
 Auoust, 1840, is to reside for eisht months at the least in 
 An exemption every year.' This residence is an exemption to him from 
 from penalties residing on any benefice he may hold, and on which he 
 of non-residence -yvould be otherwise compelled to reside under the recent 
 on ene ce. Benefice Pluralities Act ; for by that act it is provided 
 that a dean of any cathedral or collegiate church during 
 the time that he is residing upon his deanery, and also 
 the dean or subdean in any of the royal chapels of St. 
 James's or Whitehall, while actually engaged in performing 
 the duties of his office, shall be exempted from the pe- 
 nalties and forfeitures imposed by that act for non-resi- 
 dence on any benefice which he may hold ; and he is 
 entitled to count the time during which he is so resident, 
 or engaged in performing his duties, as if he had legally 
 resided durino- the same time on some other benefice.'" 
 
 O 
 
 riuralities. By the same statute a dean is prohibited from holding 
 
 with his deanery more than one benefice, and from holding 
 any preferment in any other cathedral church." 
 Rank and dig- In rank and dignity a dean of this kind is next to a 
 niiy. bishop, being in ecclesiastical records frequently styled 
 
 archi presbyter, while archdeacon is archidiaconus only. 
 Indeed, in some respect a dean is co-ordinate with a bishop, 
 and the dean and chapter in some instances have a control 
 over their bishop. A dean and chapter together as a cor- 
 poration are also of higher rank than an archdeacon. 
 Average annual The average annual income of deans, notwithstanding 
 income of deans, the particular endowments of their respective cathedral or 
 collegiate churches, have by a recent act been fixed as 
 follows : of Durham, 3000/. ; of St. Paul's, Westminster 
 and Manchester, 2000/. ; of every other cathedral or col- 
 legiate church in England, 1000/.; of St. David's and 
 J^huidafl' respectively, 700/. ; and the arrangement of such 
 annuiil incomes, and the mode of providing for their pay- 
 
 " Canon 43. ' 3 & 4 Vict. c. 113, s. 3. 
 
 "' 1 & 2 Vict. c. 106, s. 38. Vide post. Residence. 
 " Vide post, riuralities.
 
 OF DEANS. 103 
 
 meiit by contribution, aug-mentution or endowment, is left 
 to the ecclesiastical commissioners." 
 
 The holding of a canonry or other office is not now Holding other 
 necessary to the holding the deanery of any cathedral office not neces- 
 church in England, nor to the entitling any dean to his ^^7 to entitle 
 full share of the divisible corporate revenues of such 
 church, although such share may not formerly have been 
 received by any preceding dean otherwise than as a canon, 
 
 &C.P 
 
 Section 4. 
 Of Deans and Chapters. 
 
 We shall further speak of the dean in connection with A corporation 
 the chapter, for these together form one ecclesiastical aggregate. 
 corporation aggregate, of which the dean is the head. 
 The chapter is a body of persons ecclesiastical, formerly 
 either canons or prebendaries, and now in all cases canons, 
 who, as we have seen, were originally selected by the 
 bishop from among his clergy as counsel and assistants to 
 him, and to him they are all subordinate ; but like all 
 other corporations they derive their corporate capacity 
 from the crown. Any act done by them in such corporate 
 capacity must be done by the dean and chapter, not by 
 the chapter only ; for it is essential to a corporation aggre- 
 gate that it should have a head, without which it is incom- 
 plete.'' Consequently, during the vacancy of the head- Vacancy of 
 ship, they are incapable of doing any valid act except headship. 
 that of appointing another ; and for the same reason they 
 are, during such time, incapable of receiving a grant. But 
 this is to be understood of an immediate grant ; for if, 
 says Lord Coke, during the vacation of the abathie of 
 Dale, a lease for life, or a gift in tail be made, the remainder 
 to the Abbot of Dale and his successors, this remainder 
 is good if there be an abbot made during the particular 
 estate.'" 
 
 The principal duties of the dean and chapter, with re- Duties of a 
 spect to the bishop, are stated to be threefold : 1st, to ^|^^" ^"^ 
 advise and assist him in matters of rehoion : 2nd, to elect '^^'^P^'^' 
 hmi on a vacancy, both of which duties may now pro- 
 bably be considered nominal ; and 3rd, to consent to his 
 grants, leases, &;c., which is still necessary, and without 
 which they are not binding. 
 
 ° 3 & 4 Vict. c. 113, s. 66 J 4 6c 5 Vict. c. 39, s. 2. 
 
 P 4 & 5 Vict. c. 39, s. 5. 
 
 1 1 Black. Com. b. 1, c. 18. ' Co. Litt. 263, 264.
 
 104 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Deans and chapters have sometimes an ecclesiastical 
 jurisdiction in several neighbouring parishes and deaneries ; 
 and this ecclesiastical jurisdiction is executed by their 
 officials, and they have also temporal jurisdiction in the 
 several manors belonging to them, as well as the bishops, 
 where their stewards keep courts. 
 
 A dean and chapter have the same power to make bye 
 laws and private statutes for the better government of 
 their own body, as is incident to every corporation aggre- 
 gate, that is to say, such statutes made by the majority 
 are bindino- on themselves and their successors so long as 
 they are not contrary to the laws of the land, or to the 
 general policy of law. And as to the constitution of the 
 majority, it matters not whether the dean be included in 
 it or not ; for the act of the majority is deemed the act of 
 the whole body, that is, of the dean and chapter, although 
 Dean has no the dean may happen to be dissentient : formerly it may 
 veto. have been a fertile source of dispute whether the dean 
 
 had any power which would be tantamount to a veto on 
 the majority of the chapters; but such questions were 
 set at rest by the statutes 33 Hen. VIII. c. 27, and 6 Anne, 
 0.21.^ 
 Nor any sepa- Disputes analogous to the preceding have arisen be- 
 rate power in tween the dean on the one hand, and the chapter on the 
 lie corporation, y^j^gj.^ regarding the right to make appointments to the 
 choir, or to nominate to preferments belonging to the 
 body ; a case of this kind was referred to three bishops, in 
 which the dean of Bristol and the chapter severally claimed 
 the right to appoint the officers of the cathedral. And a 
 similar case from (lloucester was referred to the Arch- 
 bishop of Canterbury, the Master of the Rolls, and the 
 
 ^V'ar(len, &c. ' Black. Comin. b. 1, e. 18, note. It may be useful to many of tlie clergy, 
 
 and fellows of wlio as fellows of colleges foim a part of a corporation aggregate, to know that 
 colleges. what is here said of the majority in the case of a dean and chapter is applicable 
 
 Power of also to the case of a wavden or heail, by whatever name he may be called, and 
 
 warden, &c. fellows. Even where a negative is expressly given by the statutes to the head 
 
 of any society, it is very questionable whether such statutes are not made void 
 by the act 33 Hen. 8, c. 27. I'ut it is in particular the usual language of col- 
 lege statutes to direct that many acts shall be done i)y 'j^ard'mnus it major pars 
 sociorinn or maf^isler or prirpositus ct mnjor pins. And it has been determined by 
 t!)e ('oiirt of King's Hencii, and by the visitors of (Uarc Hail, Cambridge, and 
 also Ijy the visitors of IJublin College, that this expression does not confer upon 
 the warden, master or provost any negative, but that his vote must be counted 
 with llie rest ; and that he is concluded by a majority of votes against him. 
 (See Christian's note to lilackstone, b. 1, c. 18.) The heads of some col- 
 leges, however, still contend for the power of initiating any business; and that 
 no valid act can be done at any meeting of the society, unless proposed by the 
 head. This jiowir is tantamount to and even greater than a veto ; and if 
 any such should appear to i)c given by the statutes, it is presumed that it 
 would be clearly void by force of the statute before mentioned, and also as 
 being contrary to the common law of the land.
 
 OF DEANS AND CHAPTERS. 105 
 
 Dean of the Arches ; and in both these cases it was de- 
 cided, that as in the right of making statutes, &c. the right 
 was in the dean and chapter ; and the dean being absent, 
 in the vice-dean and chapter.* And even if the dean and 
 chapter should be equally divided in numbers as to the 
 filling up any appointment or the like, the dean has no 
 casting vote." 
 
 A statute made by the dean and chapter is to be con- A statute made 
 sidered as within the exceptions before mentioned, and *» ^'"d their 
 therefore void if it were to bind their successors, and not is"^ad?°'^ °°^ 
 themselves ; and this is so declared by the canon law ; but 
 it would appear also to be void at common law, and this 
 seems particularly to have been referred to by Lord Ellen- 
 borough, in the case of Garnett v. Gordon.^ 
 
 The limitation above mentioned, " that statutes made Such statutes 
 by a maioritv are binding; only so far as they are not con- ?/^ "°^ binding 
 
 *^ •II contrsrv lo liiG 
 
 trary to the laws of the land, or to the general policy of general policy 
 law," has given rise to many cases of dispute as to the of law. 
 validity of such statutes. 
 
 Thus in a case before the King's Bench in the year And if contrary 
 1813, it appeared that the Bishop of Exeter, together with |° ^'^^ f'.'^y "^ 
 
 ' ^^111 •111- f 1 • • tlie ecclesiasti- 
 
 the chapter, had been m the habit or making private sta- cal establish- 
 tutes; and that, by a statute so made in 1663, it was de- ment to be con- 
 clared, that whenever any canon residentiary should cease ^|[,||f^| """^^ 
 to be such by promotion to any higher degree or dignity 
 in the Church of England, he should nevertheless retain 
 to his own use the profits of the canonry for the following 
 year. The court did not find it necessary to decide whe- 
 ther such a statute was valid, because in the case before 
 it the dean had ceased to be such by a voluntary resigna- 
 tion, in order to attain his promotion to another deanery ; 
 but Lord Ellenborough said, that such a statute was liable 
 to powerful objections, and contrary to the pohcy of the 
 ecclesiastical establishment; and at all events to be con- 
 strued strictly, and, according to its very letter, unfavour- 
 ably for the interests of those who had ceased to be canons: 
 and the court therefore availed itself of the intervenino- 
 resignation to decide that the dean was not entitled to the 
 profits of the canonry which had accrued subsequently.-' 
 
 In this case the profits of the canonry spoken of were Profits of a 
 those which he had as a member of a corporation aggre- canomy during 
 
 , T • (> 1 • 1 1 • • ^ vacation. 
 
 gate ; the proper application or which during a vacation 
 seems to be, that they should be divided among the dean 
 and chapter.'' 
 
 ' Rogers's E. L. 295. 
 
 " Duller, J., in Bishop of Chichester v. Harward, 1 Durn. & East, 651. 
 " 1 M. & S. 205. y Garnett v. Cordon, 1 M. & S. 205. 
 
 » Godolph. Abr. 52.
 
 106 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 But in the case of The King against The Bishop of 
 Durham, hereafter mentioned, the merits of the question 
 are stated to have been, that Dr. Sterne, the succeeding 
 prebendary, claimed two and a half years' profits which 
 had accrued during the vacancy of the stall from the time 
 of the death of Dr. Benson, which profits the other pre- 
 bendaries had received and divided between them. The 
 case is reported upon other grounds, and it does not ap- 
 pear how the question was settled.^ As to those profits 
 which a canon or prebendary may have in his separate 
 capacity as a sole corporation, it is directed by statute 
 that they should go to his successor, toward payment of 
 his first fruits.'' 
 Visitors of deans It is incident to all corporations that the law has pro- 
 and chapters. vided proper persons to visit, inquire into, and correct all 
 irregularities that may arise in them ; and, with regard to 
 all ecclesiastical corporations, the ordinary is their visitor: 
 so constituted by the canon law, and from thence derived 
 to us."^ The bishop of the diocese is consequently the 
 visitor of every dean and chapter ; but the exact limit of 
 his power as such visitor does not seem to be very accu- 
 rately defined ; it would seem, however, that his visitato- 
 rial power extends no further than to the enforcing a ])ro- 
 per performance of the duties of the Church : though we 
 are rather furnished with authority as to what is not, than 
 Extent of their as to what is within his power as visitor. Thus in the case 
 jurisdiction. ^f j^j^^ ^-^^^ against The Bishop of Durham,'^ a manda- 
 mus was applied for to compel the bishop to exercise his 
 visitatorial authority in ordering the restitution of the pro- 
 fits of a vacant i)rebend, which had been divided among 
 the other prebendaries during a vacation ; it w as con- 
 sidered, however, that this would be to compel him to 
 interfere in a matter of property, as to which he could 
 have no jurisdiction. And Lord Mansfield in that case 
 observed, that there might be executors or representatives 
 of deceased parties in the case, over whom the bishop 
 could have no jwetence to have jurisdiction, and that this 
 alone would be decisive. A vacant canonry in the cathe- 
 dral church of Chichester was not hlled up, there having been 
 two candidates for the office; and the dean and chapter, 
 who should have made the appointment, being equally 
 dividend on the subject. In this state of circumstances, the 
 bishop had admonished theui to fill up the vacancy, and 
 this proving ineffectual, he had cited them to appear be- 
 fore him to submit to his power as visitor, and to answer 
 
 a 1 Jiurrowg, '204. ^ 28 Hen. 8, c. 11. 
 
 •: 131dckst. b. 1, c. 18. ^1 1 Burrows, 204.
 
 OF DEANS AND CHAPTERS. 107 
 
 why he should not, by his power and authority, ordinary 
 and visitatorial, fill up the vacancy, by reason that the 
 right of so doing had devolved upon him for that time by 
 default of the chapter in not filling up the vacancy in due 
 time; he had then appointed a canon, and commanded the 
 dean and chapter to admit him. Under these circum- 
 stances a prohibition was granted against the bishop by 
 the Court of King's Bench : Mr. Justice Ashurst observ- 
 ing, that the person elected would be entitled to benefits 
 which he would receive out of the funds of the church, a 
 matter of property beyond the limits of the visitatorial 
 authority ; but lie seemed to doubt, whether the bishop in 
 such a case might not have appointed a person tempo- 
 rarily, and until the vacancy was filled up, so that the 
 duties of the church might have been properly performed. 
 But the opinion of Mr. Justice Buller seemed to be against 
 even such a limited exercise of the visitatorial authority.^ 
 It follows, therefore, that there is no lapse to the bishop in 
 the case of a prebend or canonry. It seems further from 
 the words of Mr. Justice Buller in the above case, that if 
 the right of election to a vacant prebend should be in the 
 chapter, that is in the other prebendaries, they have a 
 right to vote by proxy .'^ 
 
 In some particular cases the visitatorial power of the Compositions, 
 bishop over the dean and chapter is restricted by what are 
 termed compositions, as is the case in the two ancient 
 ecclesiastical bodies of St. Paul's and Lichfield. By the 
 remissness and absence of the bishops of Lichfield from 
 their see, in going to Chester, and then to Coventry, the 
 deans had great power lodged in them as to ecclesiastical 
 jurisdiction there, and, after long contests, the matter 
 came to a composition in the year 1428, by which the 
 bishops were to visit them but once in seven years, and the 
 chapter had jurisdiction over their own peculiars. So, in 
 the Church of Sarum, the dean has a very large jurisdic- 
 tion, which is therefore probably of considerable antiquity, 
 but upon contest, it was settled by composition between 
 the bishop, dean and chapter, in the year 1391. And 
 where there are no compositions, it depends upon custom, 
 which limits the exercise, although it cannot deprive the 
 bishop of his diocesan right.^ 
 
 The dean and chapter as a body are, of common right. Office of the 
 guardians of the spiritualties of the bishopric during a j^^^ ^""^ '^'^^P" 
 vacation, although the archbishop now usually has that tion of the see. 
 
 ^ Bishop of Chichester v. Harward and Webber, 1 Durn. & East, 650. 
 ^ Mr. J. Buller, in Bishop of Chichester v. Harward and Webber, 
 s Burn's E.L. Dean.
 
 108 OF THE RIGHTS, DUTIES, ETC. OP ECCLESIASTICAL PERSONS. 
 
 right by prescription or composition ; but when the arch- 
 bishopric is vacant, the dean and chapter of the archiepis- 
 copal see are guardians of the spiritualties throughout the 
 province.'' 
 Deans of West- In some places there is a dean and chapter where there 
 minster and jg j^q episcopal see, as is the case at Westminster and 
 without bishop. Manchester, and these are called chapters of a collegiate 
 church, as the others are called chapters of a cathedral ; 
 and some chapters there are in which formerly there was 
 no dean, as that of St. David's, where the bishop was the 
 head of the chapter, but now, as observed in the last 
 section, the precentor of that cathedral has the style of 
 dean. 
 Chapter without And as there may be a dean and chapter without a 
 bishop or dean, bishop, and a bishop and chapter without a dean, so there 
 may also be a chapter without either bishop or dean, as is 
 the case in the collegiate church of Southwell ; ' but in all 
 these excepted cases the chapter retains its character and 
 rights as a corporation aggregate, so that what has been 
 already said of it in this respect is in all cases applicable. 
 Where two sees Where two sees have been consolidated, a bishop may 
 have been con- J^avc two chapters, or deans and chapters, as where the 
 acts to be done ^66 of Lismore had been united to that of Waterford, in 
 by each chapter, which casc the chapter of Lismore only confirmed the 
 orant of lands belonoinf)- to the see of Lismore ; and in 
 like manner the chapter of Waterford only confirmed the 
 grant of lands belonging to the see of Waterford, and the 
 judges held such confirmation to be good and sufficient, 
 on the groiuid that it must have been so intended at the 
 time of the union ; but otherwise they held that both 
 chapters ought to have confirmed.'' Such double confirm- 
 ation, however, appears to have been deemed unneces- 
 sary, and accordingly, in the recent union of the sees of 
 Gloucester and Bristol, it is particularly provided that all 
 episcopal acts requiring coniirmation by the dean and 
 chapter, are to be confirmed by the dean and chapter to 
 whom the rioht would have belonged, if the sees had not 
 been united.' 
 Ecclesiastical A Considerable alteration has recently been made in the 
 
 constitution of the various chapters throughout England 
 and Wales, by the recommendation and under the sanc- 
 tion of the ecclesiastical commission, the nature and ob- 
 jects of which have been already mentioned. 
 
 '• Godolpli. Abr. 55; Rogers's E.L. ' Rogers's E. L. ^ Uodolph. Abr. 58. 
 ' Order in council, gazetted on the 7th, registered on the 8th Oct. 1836, at 
 Bristol, Blandford, and Gloucester. 
 
 commission.
 
 OF DEANS AND CHAPTERS. 109 
 
 The commissioners having in the years 1835 and 1836 
 made four several reports with reference to the suspension 
 of appointments to dignities and offices in cathedral and 
 collegiate churches, an act of parliament was passed,"" 
 which, after reciting some material parts of these reports, 
 declares that no appointment, presentation, or collation, 
 should for the space of one year be made to any canonry, Suspension of 
 prebend, or dignity in any cathedral church in England or cathedral ap- 
 Wales then vacant, or to become vacant during the con- ceriaiTcases! 
 tinuance of the act : provided that this should not be con- 
 strued to apply to any archdeaconry or deanery, except 
 only the deanery of Wolverhampton ; nor to the dignity of 
 precentor of St. David's ; nor to any canonries of York, 
 St. Paul's in London, Carlisle, Chichester, and Lincoln ; 
 nor to the canonries of Christchurch annexed to the regius 
 professorships of divinity and Hebrew at Oxford ; nor to 
 the prebend in the church of Worcester annexed to the 
 Margaret professorship of divinity at Oxford ; nor to the 
 two prebends of Westminster, which the commissioners 
 recommended to be annexed to the parishes of St. Mar- 
 garet and St. John, Westminster ; nor to the fourth prebend 
 of Durham, to be annexed to the archdeaconry of Durham; 
 nor to the prebends in the cathedral churches of Gloucester, 
 Norwich, and Rochester, respectively annexed to the mas- 
 terships of Pembroke College, Oxford, and Catherine Hall 
 in Cambridge ; the provostship of Oriel College, Oxford ; 
 and the archdeaconry of Rochester respectively ; nor to 
 any prebend then enjoyed by the Bishops of Lincoln, 
 Lichfield, Exeter, and Salisbury, in the chapters of their 
 respective sees ; nor to any benefice without cure of souls 
 in the patronage of any college in either of the universities, 
 or of any private patron ; nor to any canonry of Christ- 
 church, Oxford, by the vacancy of which the canonries 
 would be reduced below the number of six ; nor to any 
 prebend or canonry in the chapter of any other cathedral 
 or collegiate church in England, or royal chapel of Windsor, 
 or the collegiate churches of Ripon or Westminster, by the 
 vacancy of which the prebends or canonries in such chap- 
 ters respectively would be reduced below the number of 
 four ; nor to any canonry in the chapter of either of the 
 cathedral churches of Wales, by the vacancy of which the 
 canonries in such chapters would be reduced below the 
 number of two. 
 
 The intention ultimately contemplated might have been 
 anticipated from the exceptions above specified, which, in 
 
 "' 6& 7 Will. 4, C.G7.
 
 no OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 the cathedral and collegiate churches iu England, seemed 
 to point to four as the number of canons or prebendaries, 
 and in Wales to two only. 
 
 With regard to the emoluments of the prebends and 
 canonries which were thus to continue vacant, it was pro- 
 vided that all such profits and emoluments should, in as 
 full and effectual a manner as if a successor had been ap- 
 pointed to receive the same, be paid to the treasurer of 
 Queen Anne's Bounty, to whom were granted the same 
 remedies for recovering the same as a successor would have 
 had, save that he had no power to grant leases or to pre- 
 sent to benefices. 
 
 Such treasurer was directed to keep an account of all 
 receipts, and allow all costs, expenses, and outgoings 
 which would have fallen on the deceased incumbent. 
 
 But it was directed that nothing in the act should affect 
 the ])rofits or emoluments of any dignity, &c. then vacant, 
 which had been already divided or carried to any particular 
 account, according to the statutes, customs, or usages of 
 the cathedral or collegiate church in which such dignity 
 might be founded." 
 Permanent As the two acts of which we have last spoken, 5 & 6 
 
 d' ans'S ^' "^ ^^'^^^' ^^' ^' ^^' ^"^^ ^ "^ ^ ^^^^' ^' ^^' ^^^^ intended to be 
 chapfers! o^ly temporary in their operation, and have been since 
 
 repealed, it does not appear to be useful to enter more 
 fully into their provisions : neither will it be necessary to 
 explain the recommendations of the ecclesiastical commis- 
 sioners, in respect to the deans and chapters during the 
 succeeding years. For these, so far as they have been 
 adopted by the legislature, will appear from the provisions 
 of the important act of })arliament passed in the year 1840,° 
 by which their recommendations touching cathedral and 
 collegiate churches have with certain modifications become 
 law. 
 All members of liy that act it has been enacted, that henceforth all the 
 the chanter to mcmbers of chapters, except the dean, in every cathedral 
 canons. or collcgiatc church in England, and in the cathedral 
 
 churches of St. David and Tilaiulafi", shall be styled canons ;f 
 and subject to certain provisions contained iu the act, the 
 Number of number of these canons in the several following cathedral 
 canons in tlie or colIcgiatc chtu'clics throughout England and Wales is 
 
 never..! chapter*, p^,. „j^ j-,^,,^.^ ^^ 1^^ ^^ folloWS : 
 
 " 5 fc 6 Will. 4, c. 30, 8.3. <> 3 & 4 Vict.c. 113. I'Sect. 1.
 
 OF DEANS AND CHAPTERS. 
 
 Ill 
 
 Cathedral or Collegiate 
 Church. 
 
 Number 
 
 of 
 Canons. 
 
 Cathedral or Collegiate ^"^^^er 
 
 Church, f. 
 
 Canons. 
 
 Canterlniry 
 
 Durham 
 
 Ely 
 
 Westminster .... 
 
 Winchester 
 
 Exeter 
 
 6 
 6 
 G 
 G 
 5 
 5 
 4 
 4 
 4 
 4 
 4 
 4 
 4 
 4 
 
 Manchester .... 
 
 Norwich 
 
 St. Paul's London 
 Peterborough .... 
 
 Ripon 
 
 Rochester 
 
 4 
 4 
 4 
 4 
 4 
 4 
 
 Bristol 
 
 Carlisle 
 
 Chester 
 
 Chichester 
 
 Gloucester 
 
 Hereford 
 
 Lichfield 
 
 Salisbury 
 
 Wells 
 
 Windsor 
 
 Worcester 
 
 York 
 
 4 
 4 
 4 
 4 
 4 
 
 St. David's 
 
 LlandatF 
 
 2 
 
 2^ 
 
 The manner in which the reduction of canons from their The change how 
 present number to that fixed for the future is to take place *° "^^ effected. 
 in the different chapters is as follows : 
 
 Canterbury. — Six canonries shall be suspended in the 
 following order : the canonry firstly vacant shall be sus- 
 pended ; and the canonry now held by the Archdeacon of 
 Canterbury, and the canonry secondly vacant, shall be 
 subject to the provisions in the act contained'" respecting 
 the endowment of archdeaconries by the annexation of 
 canonries thereto; and the canonry thirdly vacant shall 
 be suspended, and the canonry fourthly vacant shall be 
 filled up by her majesty; and the two canonries fifthly and 
 sixthly vacant shall be suspended, and the then next va- 
 cant canonry shall be filled up by her majesty; and the 
 two canonries which shall then next be vacant shall be 
 suspended; and thereafter, upon every fourth vacancy 
 among the canonries not annexed to any archdeaconry, the 
 Archbishop of Canterbury shall appoint a canon, and all 
 other vacancies among such last mentioned canonries shall 
 be filled up by her majesty.^ 
 
 Durham, Worcester and Westminster. — Six canon- 
 ries shall be suspended in the following order: the first 
 two vacant canonries shall be suspended, and the canonry 
 thirdly vacant shall be filled up ; and the two canonries 
 fourthly and fifthly vacant shall be suspended, and the 
 then next vacant canonry shall be filled up; and the two 
 canonries which shall then next be vacant shall be sus- 
 pended.* 
 
 <i Schedule to 3 & 4 Vict. c. 113. 
 
 s Sect. 4. 
 
 •■ See post, Archdeacon. 
 ' Sect. 8.
 
 112 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Windsor.— Eight canoniies shall be suspended in the 
 followino- order : — The first two vacant canonries shall be 
 suspended, and the canonry thirdly vacant shall be filled 
 up ; and the two canonries fourthly and fifthly vacant shall 
 be suspended, and the then vacant canonry shall be filled 
 up ; and the two canonries which shall then next be va- 
 cant shall be suspended, and the then next vacant canonry 
 shall be filled up ; and the two canonries which shall then 
 next be vacant shall be suspended." 
 
 Winchester. — Seven canonries shall be suspended in 
 the following order: — The two canonries secondly and 
 thirdly vacant shall be suspended, and the canonry fourthly 
 vacant shall be filled up ; and the two canonries fifthly and 
 sixthly vacant shall be suspended, and the next vacant 
 canonry shall be filled up; and the two canonries eighthly 
 and ninthly vacant shall be suspended, and the then next 
 vacant canonry shall be filled up ; and the canonry which 
 shall then next be vacant shall be suspended."^ 
 
 ExETER. — Three canonries shall be suspended; the 
 canonry held in commendam with the bishopric of Exeter 
 shall immediately upon the vacancy thereof be suspended; 
 and the two canonries thirdly and fourthly vacant (not 
 being either of them the canonry so held in commendam) 
 shall be also suspended ; and the canonry secondly vacant 
 shall be subject to the provisions in this act contained re- 
 specting the endowment of archdeaconries by the annexa- 
 tion of canonries thereto.^' 
 
 Bristol, Chester, Gloucester, Norwich, Peterborough, 
 Ripon, Rochester, Salisbury and Wells. 
 
 Two canonries shall be suspended in the following order: 
 the first vacant canonry shall be suspended ; the canonry 
 secondly vacant shall be filled up ; the canonry thirdly 
 vacant shall be suspended ; the sub-deanery in the church 
 of Ripon shall, immediately upon the vacancy, be also 
 suspended ; and at Peterborough the canonry secondly 
 vacant shall I}e subject to the provisions in the act con- 
 tained for the endowment of archdeaconries by the an- 
 nexation of canonries thereto.'' 
 
 Ely.— The two canonries fourthly and fifthly vacant 
 shall be suspended. 
 
 FiicnriKLu. — Two canonries shall be suspended in the 
 following order: — The first vacant canonry shall be sus- 
 pcnd(!d ; and the canonry annexed to the rectory of tlu^ 
 church of St. Philip in Birmingham shall, inunediatcly 
 upon the; vacancy thereof, be detached from the said rec- 
 
 " Sect. fl. " Sect. 10. 
 
 y Sf(i. 11. Sco post, Aiclulcacon. ' Sect. 13.
 
 OF DEANS AND CHAPTERS. 113 
 
 tory, and be also suspended ; and this, therefore, whenever 
 it may happen.** 
 
 Hereford. — The first vacant canoiny shall be sus- 
 pended.'' 
 
 Southwell.— All the canoniies, except the one held by 
 the Archdeacon of Nottingham, as the vacancies happen, 
 shall be suspended.*^ 
 
 St. David's and Llandaff. — All appointments to 
 canonries shall be suspended until the number in each 
 cathedral is reduced to two.'' 
 
 The following- cases are excepted; so that the suspension Cases in which 
 is not to take place in the order above mentioned. 'I'c above lules 
 
 Canterbury.— The canonry held by the Archdeacon of ^'"" ^"^pension 
 
 ^ , , J J are not to apply. 
 
 Canterbury. '^' ■' 
 
 Ely. — Any canonry which may be annexed to any pro- 
 fessorship in the university of Cambridge. 
 
 Durham. — The canonry which is prospectively annexed 
 to the archdeaconry of Durham. 
 
 Westminster. — The canonries to which the rectories 
 of St. Margaret and St. John, Westminster, are respec- 
 tively to be annexed. 
 
 Gloucester. — The canonry annexed to the mastership 
 of Pembroke College, Oxford. 
 
 Rochester. — The canonries annexed to the provostship 
 of Oriel College, Oxford, and to the archdeaconry of 
 Rochester respectively. 
 
 Norwich. — The canonry annexed to the mastership of 
 Catherine Hall, Cambridge. 
 
 Salisbury. — The canonry connected with the residen- 
 tiary house called Leydeii Hall, 
 
 Also any canonry in any cathedral or collegiate church General exoep- 
 which shall hereafter, under the authority of this act, be ''°"- 
 permanently annexed to any archdeaconry or archdeacon- 
 ries, or any office in the University of Durham ; but if any 
 canonry so held, annexed, or connected, or to be annexed, 
 shall be vacant in such order, as that, according to the 
 before-mentioned jirovisions, it would be one of the canon- 
 ries to be suspended, the vacancy thereof shall not be 
 counted as a vacancy subject to sucli provisions.* 
 
 All the vacancies of canonries which existed at the time 
 of passing the act, by virtue of the act for their suspension, 
 which has been already mentioned, were directed to be 
 considered vacancies for the pur])oses before mentioned, 
 
 =^ Sect. 13. 'J Sect. 14. "^ Sect. 18. 
 
 '' Sect. 19. *= Sect. 15. 
 
 I
 
 114 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 One suspended 
 canonry may 
 be tilled up to 
 endow arch- 
 deaconries. 
 
 Power to re- 
 move the sus- 
 pension from 
 canonries under 
 special circum- 
 stances. 
 
 and to be counted for these purposes in the numerical 
 order in which they liad happened. "^ 
 
 In any cathedral church in which, by the suspension of 
 canonries, the number of canons shall be reduced to four, 
 one of such suspended canonries may, if it be deemed 
 necessary for the purpose of endowing any archdeaconry 
 or archdeaconries, be filled up, subject to the provisions in 
 the act contained respecting the endowment of archdeacon- 
 ries by the annexation of canonries thereto. 
 
 The suspension of these canonries might rather be called 
 a suppression of them, as it will ordinarily be complete 
 and final ; but it is nevertheless provided that a plan may 
 from time to time be laid before the ecclesiastical com- 
 missioners for England by any of the said chapters of the 
 several cathedral and collegiate churches, with the sanc- 
 tion of the visitors of the said churches respectively, for 
 removing the suspension from and re-establishing any 
 canonry or canonries which shall have been suspended by 
 or under the provisions of the act, by assigning, towards 
 the re-endowment of any such canonry or canonries, a 
 portion of the divisible corporate revenues remaining to 
 the said chapters respectively, after paying to the said 
 ecclesiastical commissioners the profits and emoluments 
 accruing to the said commissioners from the suspended 
 canonry or canonries ; so that the profits and emoluments 
 of such suspended canonry or canonries be not diminished 
 by the removal of such suspension ; and also by accepting 
 and assigning for the same purpose any further endow- 
 ment in money, or in lands, tithes, or other hereditaments, 
 such lands, tithes, or other hereditaments, not exceeding 
 in yearly value the sum of 200/. for each canonry from 
 which the suspension shall have been so removed ; and 
 also by annexing to any such canonry, from which the 
 suspension shall have been so removed, any suitable bene- 
 fice or other preferment in the patronage of the said chap- 
 ters respectively, or of any other patron, with the consent 
 of such patron, and where any bishop is patron, with con- 
 sent of the archbishoj); and any such plan may be carried 
 into effect by the authority in the act provided, '^ and such 
 alterations may be made in the existinu' statutes and rules 
 ol tlic said chapters respectively as the case may requn-e, 
 under I lie authority in the act j)rovided for making altera- 
 
 tions III <'\istini>- statutes-8 
 
 i'wo of the canonries of Westminster are henceforth for 
 
 •• Sect. ]r,. 
 
 ' See nnle, Kcclesiastical Commission. 
 
 ? Sect. 21.
 
 OF DEANS AND CHAPTERS. 115 
 
 ever to be annexed to the rectories of St. Margaret's and 
 St. John's, in that parish. 
 
 With regard to the right to any part of the property of Non-iesiden- 
 the chapter, it is dechired that no presentation, collation, -'^'^' P'^^^ends, 
 donation, admission, election, or other appointment to the right to any '^^ 
 dignity or office of subdean, chancellor of the church, endowment. 
 vice-chancellor, treasurer, provost, precentor, or succentor, 
 nor to any prebend not residentiary in any cathedral or 
 collegiate church in England, or in the cathedral churches 
 of St. David and Llandaff, or in the collegiate church of 
 Brecon, shall convey any right or title whatsoever to any 
 lands, tithes, or other hereditaments, or any other endow- 
 ment or emolument whatsoever now belonging to such 
 dignity, office or prebend, or enjoyed by the holder thereof 
 in right of such dignity, office or prebend, or any part 
 thereof; provided that this shall not be construed to de- 
 prive any present or future holder of any office in any 
 cathedral or collegiate church, actually performing duties 
 in respect of such office, of any stipend or other emolu- 
 ment heretofore accustomably assigned to such office, or 
 paid to the holder thereof, according to the statutes of 
 such church, out of the revenues thereof' 
 
 In every cathedral or collegiate church wherein there statutes and 
 exists any statute or custom for assigning to the dean or customs for 
 to any canon any land, tithes, or other hereditaments, in ^P'''°f,"^ii?,^,^, 
 
 •' 1 • "^ 1 ^1 p separate estates 
 
 addition to his share or the corporate revenues, or lor repealed. 
 appropriating separately to the dean or any canon during 
 his incumbency the proceeds of any land, tithes, or other 
 hereditaments, part of the corporate property of the chapter, 
 every such statute and custom, or every such part thereof, 
 as relates to such assignment or appropriation, shall be 
 repealed and annulled as to all deans and canons hereafter 
 appointed : provided nevertheless that any small portion 
 of land, situate within the limits and precincts of any 
 cathedral or collegiate church, or in the vicinity of any 
 residentiary house, may be reserved to such church, or 
 permanently annexed to such residentiary house, by the 
 authority in the act provided.' 
 
 As to the revenues of the Chapter of Durham, it is pro- Provision for 
 vided that so soon as conveniently may be, such arrange- the University 
 ments shall be made with respect to the deanery and of revenues of 
 canonries in the cathedral church of Durham and their the Chapter, 
 revenues, as upon due inquiry and consideration of an act 
 passed in the second year of the reign of his late majesty, 
 intituled, " An Act to enable the Dean and Chapter of 
 Durham to appropriate part of the Property of their 
 '' Sect. 22. ' Sect. 28 ; and see Ecclesiastical Commission. 
 
 i2
 
 116 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Church to the Estabhshment of an University in connexion 
 therewith for the Advancement of Learning," and of the 
 entiaiiements entered into by William, late Bishop of 
 Durham, and the dean and cha])ter of Durham, shall be 
 determined on, with a view to maintaining the said uni- 
 versity in a state of respectability and efficiency ; provided 
 that in such arranoements due reoard shall be had to the 
 just claims of any existing officer of the said university. 
 Provision for The canoniies at St. David shall be in the direct patron- 
 
 the Ciiapter of aoe of the Bishop of St. David's : and so soon as con- 
 ^^ • veniently may be, the canons may be respectively insti- 
 tuted or licensed, as the case may be, to the cure of souls 
 in the parish of St. David ; and the whole divisible corpo- 
 rate revenues shall be divided into twenty-four parts, ten 
 of which parts shall be assigned to the dean, and five to 
 each canon, and the remaining four parts shall be assigned 
 as an endowment to the archdeacon of Cardigan.' And 
 Andefl.lan- SO soon as conveniently may be, the canons of Llandaff 
 ''*^" may be instituted or licensed, as the case may be, to the 
 
 cure of souls in the parishes of Llandafi' and Whitchurch 
 resj>ectively ; and, after the reservation to the Lord Bishop 
 of Llandafi" of one seventh part (being his present share) 
 of the whole divisible corporate revenues, the remainder 
 thereof shall be divided among the three members of the 
 chapter, in the pro])ortions of half to the dean, and one 
 quarter to each of the canons.'" 
 And of Brecon. Due provision is henceforth to be made out of the endow- 
 ments belonging to the prebends in the collegiate church 
 of Brecon for the archdeaconries of Brecon and Carmar- 
 then. 
 Separate pa- Restrictions and alterations are imposed and made by 
 
 ironageofmem. ^jjg ^^.j. upon and in the riiiht of patronatie, whether vested 
 ter vested in the ''^ ^^^^ iudividtuil members of the chapter sej)arately or in 
 bisliop. the chapter collectively ; the patronage oi" the individual 
 
 members is taken away, and transferred, for it is declared 
 that the patronage of all benefices with cure of souls, pos- 
 sessed by deans, and other individual uu'mbers of chapters, 
 in riglit of any separate estates held by them as such mem- 
 bers, or possessed by prebeiuliiries, dignitaries, or officers 
 not icsidentiary, in ri^ht of their prei)ends, dignities, or 
 otiiccs res|)ectively, shall be transferred to and vested in 
 tlnr res|){>ctiv(' bishops ofthc dioceses in which the 1)cnefices 
 shall be respectively situate : provided, with respect to any 
 benefice nf)w or heretofore |)ossessed by any dean, in right 
 of any separate estate helil by liiiii ;i^' such di^iiii, that every 
 fiitiiic dean of the same deanery may, uj)on any vacancy 
 •^ .'^ccl. .37. ' Stcl. :)U. "' Sect. 40.
 
 OF DEANS AND CHAPTERS. 1 17 
 
 of such benefice, present liiniself thereto. Tiiat with re- 
 spect to benefices in the patronage of the ])rebenclaries of 
 the collegiate church of Southwell, the same shall, as soon 
 as conveniently may be, be transferred, so as to become 
 vested, as the prebends fall in respectively, partly in the 
 Bishop of Ripon and partly in the Bishop of Manchestei-, 
 in such ])roportion as shall l)e determined on ; and upon 
 the vacancy of any such last-mentioned benefice, before 
 the patronage thereof shall have been so transferred, it 
 shall be lawful for the Bishop of l{ij)on for the time being 
 to present thereto." 
 
 The patronage of the chapter is restricted only, it being Patronage of 
 directed that upon the vacancy of any benefice in the ^'"^ chapter 
 patronage of the chai)ter of any cathedral or collegiate S^"®'^ ^* 
 church, the chapter shall present or nominate thereto either On whom it 
 a )nember of such chapter or one of the arclideacons of the ^J^^^ }'^ '^°"* 
 
 iGrrcci 
 
 diocese, or a non-residentiary prebendary or honorary 
 canon, as the case may be, or any spiritual person who 
 shall have served for five years at the least in the office of 
 minor canon or lecturer of the same church, or of master 
 of the grammar or other school (if any) attached to or con- 
 nected with such church, or as incumbent or curate in the 
 same diocese, or as public tutor in either of the Univer- 
 sities of Oxford and Cambridge ; or who, so far as relates 
 to the cathedral church of Durham, shall have served for 
 the like term in the offic(! of professor, reader, lecturer, or 
 tutor in the said University of Durham, or shall have been 
 educated thereat, and shall be a licentiate or graduate in 
 theology therein, or who shall have served as incumbent or 
 curate within the same diocese for the period aforesaid ; and 
 that every such office of minor canon, lecturer, schoolmaster, 
 ])rofessor, reader, lecturer, or tutor, shall immediately, upon 
 the expiration of one year from the time of his institution 
 to such benefice, if not previously resigned, become and 
 be vacant; and that if neither a member of the chapter 
 nor an archdeacon of tlie diocese, nor a minor canon nor 
 lecturer, nor such schoolmaster, incumbent or curate, pro- 
 fessor, reader, lectmer, tutor, licentiate, or gi'aduate, as the 
 case may be, shall be presented or nominated to such 
 benefice within six calendar months from the time of the 
 vacancy thereof, the bishop of the diocese in which the 
 same is situate may, within the next six calendar months, 
 collate or license thereto any spiritual person who shall 
 have actually served within such diocese as incumbent or 
 curate for five years at the least ; and if no such collation 
 or license shall be granted within such time, the right of 
 
 Sect. 41.
 
 118 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Profits of sus- 
 pended canon- 
 ries to be paid 
 to and their 
 estates vested 
 in the commis- 
 sioners. 
 
 Proviso lor the 
 fabric fund. 
 
 Comroi&sioncrs 
 may in certain 
 case* coiilributc 
 to fabric fund. 
 
 presentation or nomination to such benefice for that turn 
 shall lapse to the archbishop of the province.P 
 
 All profits and emoluments of each and every canonry 
 suspended as before mentioned, whether consisting of or 
 arising- from rents, fines, compositions, dividends, stipends, 
 or other emoluments whatsoever, as to every such canonry 
 vacant at the passing of the act, and as to every other im- 
 mediately upon and from the vacancy thereof, are directed 
 from time to time to be paid to the ecclesiastical commis- 
 sioners for England, in like manner as the holder of such 
 canonry, if he had remained in possession, or the successor 
 thereto, if a successor had been appointed, and had duly 
 qualified himself by residence and otherwise, according to 
 the statutes and usages of his church, to receive his full 
 portion of the emoluments thereof, would have been enti- 
 tled to receive the same ; and all the estate and interest (if 
 any) which such successor would have had in any lands, 
 tithes and other hereditaments (except any right of patron- 
 age) annexed or belonging to or usually held and enjoyed 
 with such canonry, or whereof the rents and profits have 
 been usually taken and enjoyed by the holder of such 
 canonry as such holder separately, and in addition to his 
 share (if any) of the corporate revenues of such chapter, 
 as to all vacancies subsisting at the passing of this act, 
 and as to all others immediately upon such vacancies 
 respectively, is to accrue to and be vested absolutely in 
 the ecclesiastical commissioners for England and their suc- 
 cessors, without any conveyance or any assurance in the law, 
 provided that the profits and emoluments arising from cor- 
 porate revenues belonging to the canonries suspended in 
 the chapters of tbe cathedral churches of Chester, Lichfield 
 and Ripon respectively, shall become, as the vacancies 
 occur, part of the divisible corporate i-evcnues of the said 
 chapters respectively : provided also that this shall not be 
 construed to afiect the right of any chapter, according to 
 the statutes or customs of such chapter in force at the 
 passing of this tict, to make due provision out of the divi- 
 sible corj)oratc revenues for the maintenance of the fabric, 
 the support of tht; grammar school (if any), and all other 
 necessary and proper expenditure.i 
 
 In any cathedral church on tlie old foundation, in which 
 any contribution to the fabric fund of such church has 
 heretofore, either iistiHliy or occasionally, been made out 
 (jf the rents, profits or proceeds of any lands, tithes or 
 other herrditaments so vested or to be vested in the eccle- 
 siastical commissioners for Enghmd, it shall be lawful for 
 P Sect. '11. -1 Sect. 49.
 
 OF DEANS AND CHAPTERS. 119 
 
 tlie commissioners to contribute to such fund such sum us 
 they shall deem necessary out of the rents, profits or pro- 
 ceeds of the same lands, tithes or other hereditaments, not 
 exceeding in amount the projwrtion of such rents, profits 
 or proceeds which has usually been applied to like pur- 
 poses/ 
 
 So soon as conveniently may be, measures shall be taken Appropriation 
 by the deans and chapters of the several cathedral and °'^'es"'en'-e- 
 
 11 • 11 c 1 ^• IP -1 houses not 
 
 collegiate churches tor the disposal or such residence- wanted. 
 houses now under their control, and houses attached to any 
 dignity, office or prebend, in the precincts of the respective 
 cathedral or collegiate churches as may no longer be 
 required, in such way as they shall deem fit, according to 
 plans to be from time to time prepared by the respective 
 chapters, and, when approved by the visitors, to be sub- 
 mitted to the commissioners to be confirmed by them and 
 by order of the queen in council.' 
 
 The chapters of the several cathedral and collegiate Chapter, or vi- 
 churches shall from time to time, of their own accord, or ^"^"^^ '" *'''^'' 
 upon being required by the visitors of the said churches propose al^era- 
 respectively, propose to such visitors such alterations in tions in their 
 the existing statutes and rules as shall provide for the dis- statutes. 
 posal of the benefices in their patronage, so as to meet the 
 just claims of the minor canons of such churches, and so 
 as shall make them consistent with the constitution and 
 duties of the chapters respectively, as altered under the 
 authority of the act ; and all such alterations, if approved, 
 may be confirmed by the authority of such visitor ; and 
 in any case in which such alterations shall not be approved, 
 or in which such requisition shall not be complied with 
 within twelve calendar months, the visitor shall be at liberty 
 of himself to make the necessary alterations ; and all such 
 statutes and rules, when so altered, shall be submitted to 
 the commissioners, and may be confirmed by the order of 
 the queen in council ; and as to any alteration made by a 
 visitor alone, the commissioners shall communicate a draft 
 thereof to the chapter to be affected thereby, and shall, 
 together with any scheme to be prepared by them, lay 
 before her majesty in council such remarks as may within 
 three months have been made thereon by such chapter; 
 and out of the proceeds of the suspended canonries in any 
 chapter, provision may from time to time be made for 
 relieving the present canons of such chapter from the per- 
 formance of any additional duty, by reason of such suspen- 
 sion, by the employment of substitutes to be approved by 
 the respective bishops : provided that nothing herein con- 
 ' Sect. 53. » Sect. 58.
 
 120 Ol' THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 tiiined shall be construed to atlect any existing riglit of 
 chapters with their visitors to make statutes.* 
 
 Section 5. 
 
 Of Canons. 
 
 Canon a conio- Having spoken of the dean and chapter as members of 
 ration sole. ^ corporation aggregate, we proceed to speak of the canons 
 or prebendaries individually, of whom such chapters are 
 composed ; for it must be remembered that as the canons 
 collectively, with the dean, form a corporation aggregate, 
 so each individually, in respect of his office, is a corpora- 
 tion sole. 
 I'lebeiulary, A ])rebendary, according to Lord Coke, is so called a 
 
 meaning and pnchcnclo, from the assistance he aftbrds to the bishop," 
 ,e,.^. ' and, if this derivation could be supported, it would go far 
 to explain the original purpose of the office ; but, as in the 
 case of many other derivations of that celebrated author, 
 its correctness may be doubted ; and it has been said with 
 at least as much apparent reason, that a prebend is an 
 endowment in land, or a pension in money, given to a 
 cathedral or conventual church in prahendum, that is, for 
 the maintenance of a priest or canon, who was called a 
 prebendary, as supported by the said prebend.'' 
 Two kinds of. Prebendaries are of two sorts, simple and dignitary; a 
 
 simple ])rebendary is one mIio has no cure, and has no 
 more than his prebend for his support ; whereas a digni- 
 tary prebendary has a jurisdiction always annexed, he is 
 therefore called a dignitary, and his jurisdiction is gained 
 by prescription ;y and a prebendary generally may be said 
 to be one who has a stall in the choir and a voice in the 
 cha])ter. 
 Arc now styled Wc have tlius iar used the word prebendary only for 
 the sake of alluding to its derivation, for in fact the term 
 is now extinct, and every mendjer of the chajiter, in every 
 cathedral church in England, is henceforth to be styled a 
 canon.''- 
 riitronagc of Tlic bisiiop was always considered of common right to 
 
 have; the patronage of canonries; but formerly there existed 
 several exceptions: now, however, it a))pears that there is 
 no longer any private patronage in such cases, but the aj)- 
 ])ointment to all canonries is vested either in the bishop 
 of the diocese or in the crown. There can therefore be no 
 
 ciinons. 
 
 c:inonrius. 
 
 ' ■'^ect. 47. » Rep. 756. " Gibs. 195 ; 2 Burn's E. L. 88. 
 
 > 2 Hum's K. L. 88. » 3 & 4 Vict. c. 113, s. 1.
 
 OF CANONS. 121 
 
 longer any institution in the case of canons newly ap- 
 pointed ; l3ut where the bishop is patron he collates, and 
 the dean and chapter induct by placing the new canon in 
 a stall in the church to which they belong. In those cases Collation and 
 where the patronage is in the king, he appoints by letters- installation. 
 patent ; whereupon the person appointed is entitled to in- 
 stallation at once, as it seems, without collation.** And 
 formerly, where the canons were elected by the chapter, 
 a mandamus was granted to compel an election to fill a 
 vacancy ; and it was said that such was the proper mode 
 of proceeding, for that the authority of the bishop was in- 
 sufficient for that purpose : ^ but such cases could not now 
 occur. 
 
 Whether a peremptory mandamus would be granted to Mandamus lo 
 admit a canon to his stall and voice, seems to have been compel mstalla- 
 thought more doubtful ; and certainly none lies to restore "°"' 
 a canon who has been deprived by sentence of the visitor.*^ 
 
 If a prebendary accepts a deanery, his prebend is void Patronage when 
 by cession, and so if he be made a bishop; and in both the canon is 
 these cases the king presents to the prebend thus made "'^ ^ ^ '* °^' 
 vacant.'' Nor would this, as it seems, be altered by the re- 
 cent statutes, which expressly give the patronage of certain 
 canonries to the bishop of the diocese. 
 
 No person is qualified to be appointed canon until he Qualification, 
 has been six years complete in priest's orders, except in 
 the case of a canonry wliich is attached to a professorship, 
 headship, or other oftice in any University. '' 
 
 Canons are bound to preach in their cathedral or col- Duties. 
 legiate churches, and in other churches in the diocese, just 
 as we have already seen in the case of deans. But they 
 have not the cure of souls ; for which reason he who takes 
 title to a canonry is not obliged to read or subscribe the 
 Thirty-nine Articles; and for the same reason a canonry 
 and a parochial benefice might formerly have been holden 
 together without any dispensation. But now no spiritual How affected as 
 person holding more than one benefice shall accept, or to pluralities. 
 take to hold therewith, any cathedral preferment or any 
 other benefice ; and no spiritual person holding any cathe- 
 dral preferment, and also holding any benefice, may accept 
 or take to hold therewith any other cathedral preferment, 
 or any other benefice; and no spiritual person holding any 
 preferment in any collegiate or catiiedral church, shall ac- 
 cept or take to hold therewith any preferment in any other 
 cathedral or collegiate church, any law, canon, custom or 
 usage to the contrary notwithstanding ; but this does not 
 
 » 3 &: 4 Vict, c. 113, ss. 34, 35. ^ 1 T. Rep. 652. <= 1 Wils. 206. 
 d 2 Burn's E. L. 87. « 3 & 4 Vict, c, 1 13, s. 27.
 
 1-32 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 benefices. 
 
 extend to prevent a person holding any cathedral prefer- 
 ment, either with or without a benefice, from holding there- 
 with anv office in the same cathedral or collegiate church, 
 the duties of which are statutably or customarily performed 
 by jthe spiritual persons holding such preferment ; and a 
 further exception from this rule is made in favour of an 
 archdeacon, which we shall mention when we speak of 
 that dignitary.^ 
 
 Previously to this enactment it was the rule that no 
 person could hold more than one canonry in the same 
 church, which, as it is said, was agreeable to the rule of 
 the ancient canon law ; but as to canons in different 
 churches there was not the same restriction.- 
 Residence of By the canon law also it was provided that no pre- 
 
 canons on their bcndarics nor canons in cathedral or collegiate churches, 
 having one or more benefices with cure, (and not being 
 residentiaries in the same cathedral or collegiate churches,) 
 should, under colour of their said prebends, absent them- 
 selves from their benefices with cure above the space of one 
 month in the year, unless it was for some urgent cause 
 and certain time to be allowed by the bishop. And that 
 such of the said canons and prebendaries as, by the ordi- 
 nances of the cathedral or collegiate churches, stood bound 
 to be resident in the same, should so among themselves 
 sort and pioportion the times of the year as that some of 
 them always should be personally resident there ; and that 
 all residentiaries should, after the days of their residency 
 appointed by their local statutes or customs expired, pre- 
 sently repair to their benefices, or some or one of them, or 
 some other charge, where the law required their presence, 
 there to discharoe their duties accordinsi- to the laws in 
 that case provided ; and that the bishops of the diocese 
 should see the same to be duly performed and put in exe- 
 Now by statute, cution.'' A further provision regulating the residence of 
 prebendaries was nradc by the statute 59 Geo. III. c. 99, 
 s. 11, l)ut it appears unnecessary now to mention it, since 
 the matter is now regulated by the recent act 1 &: 2 Vict, 
 c. 106, which makes it lawful for any s])iritual person, 
 being i)r('bendary, canon, ])ricst, vicar, vicur clioral or 
 minor canon, in any cathedral or collegiate church, who 
 shall reside and perform the duties of such office during 
 the period for which he shall be required to reside and 
 perforin such (hities by tlie charter oi' statutes of such 
 catlie(hal or collegiate cluuch, to account such residence 
 a» if he had resided on some benefice; but this is not 
 
 Formerly regu 
 lated by the 
 canon law. 
 
 ' 1 & 2 Viol. c. 10(j, s. 2 ; and see title Pluralities. 
 « Gibs. 174. 1' Canon 44.
 
 OF CANONS. 12:3 
 
 to be construed as permitting or allowing any such ])rc- 
 bendary, canon, &c, to be absent from any benefice, on ac- 
 count of such residence and performance of duty, for more 
 than five months altogether in any one year, including the 
 time of such residence on his prebend, canonry, &c. ; and 
 every such spiritual person holding any such office in any 
 cathedral or collegiate church, in which the year for the 
 purposes of residence is accounted to commence at any 
 other period than the 1st of January, and who may keep 
 the periods of residence required for two successive years 
 at such cathedral or collegiate church, in \\'hole or in part, 
 between the 1st of January and the 31st of December in 
 any one year, may account such residence, although ex- 
 ceeding five months in the year, as reckoned from the 1st 
 of January to the 31st of December, as if he had resided 
 on some other benefice.' 
 
 The actual term of residence to be kept by every canon Temj of 
 is now appointed to be three months at the least in every I'esidence on 
 year. It seems, therefore, that an incumbent who also ^' ° '^' 
 holds a canonry is allowed in each year two months' term 
 of absence from his benefice, besides the time of his neces- 
 sary residence as canon.'' 
 
 It not unfrequently happened that the advowson of a Riglu of ad- 
 rectory was attached to a prebend ; and in such case, where vowsonaitaclicd 
 the prebendary died after the church had become vacant, '° ^ '^"^^ ^" ' 
 and before presentation, it has been a matter of much con- 
 troversy whether the right to present devolved upon his 
 executor or upon his successor; and in the first instance 
 it was decided that, because it was a spiritual trust reposed 
 in the prebendary in right of his ecclesiastical benefice, it 
 could not devolve upon the executor, since none could 
 exercise the right who was not clothed with the ecclesias- 
 tical character in respect of which the right accrued.^ But 
 this decision, pronounced in the Court of Common Pleas, 
 was brought before the King's Bench by writ of error, and 
 there seems to have been most fully argued and considered; 
 and there it appears to have been considered that the right 
 of presentation of a prebendary, in right of his prebend, was 
 not inalienable or inseparable on account of a personal trust 
 and confidence in the person who might happen to be pre- 
 bendary ; that the intention of the particular donor could 
 not be relied on ; that the right of presentation was a 
 chattel, and that it was against the known rule of law 
 that any corporation sole, except the king, could take a 
 chattel by succession. It was consequently decided that 
 
 i 1 & 2 Vict. c. 106, s. 37. k 3 ^^ 4 Vict. c. 113, s. 3. 
 
 ' Retmell v. Bishop of Lincoln, 3 Bing. 223,
 
 124 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 the right vested in the prebendary, not in his corporate, 
 but inhis individual capacity, and devolved upon his per- 
 sonal representatives; and the decision of the Court of 
 Common Pleas was reversed.'" The same case was again 
 brought before the House of Lords, when the decision of 
 the King's Bench was contirmed by the opinion of six 
 judges to one, the dissentient, however, being Lord Lynd- 
 hurst." 
 ISO ric^lit of l^ut this question, and the above decision on it, are now 
 
 paiionnge or rather subjects of history than of law ; for as it has been 
 separate estate ^^jj ^^ ^j^g i^gt chapter, all the patronage of the canons 
 div^dualiy.'"' individually has been taken from them, and transferred to 
 the bishops. 
 
 And all the separate estate and interest which the holder 
 of any canonry has or would have in any lands, tithes, or 
 other hereditaments or endowments whatsoever, annexed 
 to or usually held with his canonry, in addition to his share 
 of the corporate revenues of the chapter, is now absolutely 
 vested in the ecclesiastical commissioners." 
 Income, amount Henceforth, therefore, the only income of a canon is 
 of, and how that whicli he shares with the other members of the chap- 
 P^"*- ter, out of the revenues of the chapter ; but in most cases 
 
 a part only of the former revenues of the chapter is appli- 
 cable for this division ; for the ecclesiastical commissioners 
 are to make such arrangements in this respect as will 
 leave to the canons of Dmham, Manchester, St, Paul's and 
 Westminster respectively, an average annual income of 
 1000/. And such other arrangements are to be made by 
 the commissioners^, either by addition to, or deduction from, 
 the amount of the average annual income of the canons in 
 every other cathedral or collegiate church in England, as 
 will leave the average income at 500/., and in the cathe- 
 dral church of St. David's and Llandaff at 350/.^ But this 
 scale of payments and receipts may from time to time be 
 revised or varied ; but so as to preserve as nearly as pos- 
 sible the intended average annual incomes ; and so as not 
 to affect any canon in possession at tiie time of making 
 any such variation.'' 
 Wlictlicr the It is a question of considerable importance, but one 
 
 iiicotnc of a which Cannot yet be saitl to have been fully decided, whe- 
 paidrodd'be ^^^^*' ^^^"^^ pvofits of a canonry, which the canon has in his 
 assigned as a ca|)acity as a member of the chapter, and now therefore 
 valid security. Jij^ ,)„]y income, can legally and validly be assigned by 
 
 '" UeiineiL v. I' islmp of Lincoln, 7 Barn. & Cress. 117. 
 
 » Mireliiiuse V. Ueunell, 1 Clark & Fin. 527. 
 
 ° See JHSt chapter. 
 
 P ;) & 4 Vict, c, 1 1;), s. 66. '1 4 & 5 Vict. c. 39, s. 20.
 
 OF CANONS. 125 
 
 him, so that the assignee could enforce payment of them 
 to himself. The solution of this question seems to depend 
 on principles which have a much more extensive applica- 
 tion, than to the case immediately before us, and which it 
 would therefore be beyond the scope of this work to dis- 
 cuss. But in a case of a somewhat similar kind, where a Cases upon this 
 fellow of King's College at Cambridge had assigned his point- 
 fellowship, and the assignee applied to the vice-chancellor 
 to have a receiver appointed, and for an injunction against 
 the provost and scholars, and to restrain them from pay- 
 ing over the dividends, the application was dismissed with 
 costs.'' 
 
 On a fieri facias against Warburton, a fellow of Win- 
 chester College, the sherift' returned that he is a clergyman 
 beneficed, having no lay fee. Hereupon a fieri facias was 
 issued to the bishop to levy the same of his ecclesiastical 
 goods. The bishop sent his mandate to the warden and 
 fellows of the college, to sequester his salary. They an- 
 swer that they have not power to do it. The bishop moved 
 the court to know whether he might compel them by eccle- 
 siastical censures. By Holt, C. J. " If a prebendary hath 
 a sole body, the bishop, upon a levari facias of his eccle- 
 siastical goods, may sequester it ; but if he hath but a body 
 aggregate with the dean and chapter, he cannot sequester 
 it. In this case the profits of the fellowship are but casual 
 dividends, in which before division Warburton hath no 
 interest, so that they do not make an estate ; and it seems 
 in this case Warburton is not a clerk beneficed, and the 
 bishop may return that he hath no ecclesiastical goods. "^ 
 
 The following decision, on the other hand, was given by 
 Lord Langdale at the Rolls ; but the above cases do not 
 appear to have been cited in the argument, and the judg- 
 ment can scarcely be taken to have decided the question ; 
 regard being had to the special circumstances of the case, 
 the language of the judgment, and the expressed intention 
 of appealing. 
 
 Musgrave, one of the canons of Windsor in the year 
 1838, had assigned to Grenfell all the annual income, &c. 
 to which as one of such canons he was entitled ; it ap- 
 peared that the income arose from estates possessed by the 
 corporation, the rents and proceeds of which were usually 
 divided half-yearly between the dean and twelve canons ; 
 but it did not a]>pear that there was any pi'operty vested 
 in the dean and canons independently of the corporation. 
 There did not appear to be any spiritual duties attached to 
 the office, nor any cure of souls, but it was represented 
 "■ Lib, Reg. 6tli Aug, 1830. « S Curn's K. L. 201.
 
 126 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 that the corporation was governed by certain statutes and 
 ordinances, whereby certain duties were imposed upon the 
 members of the said corporation, to be by them performed, 
 each member of the said corporation bavins: the privilege 
 of residing in a house within the walls of the Castle of 
 Windsor; and that if any member of the corporation failed 
 to perform his appropriated duties, he, by virtue of the said 
 statutes and ordinances, forfeited his right to share in the 
 division of the surplus income of the said corporation ; and 
 in lieu thereof was entitled to receive a small fixed stipend 
 of the amount of 25/. a year only ; and that the members 
 of the corporation were in such cases entitled to the resi- 
 due of his share of the surplus income of the corporation. 
 That one of the duties by the said statutes and ordinances 
 imposed upon each of the said canons was, to reside in one 
 of the said houses within the walls of the Castle of Windsor, 
 and to attend divine service in the chapel of St. George, at 
 Windsor, twenty-one days in each year. Such being ad- 
 mitted to be the state of things, Musgrave had made default 
 in payment of the interest of the debt, to secure which the 
 profits of the canonry had been assigned, and Grenfell, 
 having filed his bill for the purpose of obtaining payment, 
 and to restrain the dean and canons from paying, and 
 Musgrave from receiving the income of the canonry, had 
 obtained such injunction accordingly, and a receiver had 
 been appointed. Musgrave moved to discharge the in- 
 junction, on the ground that the profits of a canonry were 
 not assignable, such an assignment being contrary to the 
 policy of law ; and also because the assignee could not 
 perform those duties on the non-])erformance of which the 
 income would be forfeited. On the latter of these argu- 
 ments it was said by the Master of the Rolls, " It cannot 
 be sujinosed that Mr. Musgrave will be so unwise as, rather 
 than give the plaintill" the benefit of that which he is clearly 
 entitled to, wholly to neglect to pciform the duty which 
 entitles him to the receipt of this income, and thus leave 
 the debt standing, and the interest accunnilating uj)on it. 
 I cannot ]u-esume that any such degree of absurdity will 
 mark his future conduct." As to the argument that the 
 assignment was contrary to the policy of law, lie said, "if 
 it had been made out that the duty to be pcrfornuxl by Mr. 
 Musgrave was a public duty, or in any way connected with 
 the public service, I should have thought it right to attend 
 very seriously to that argument, beciiuse there are various 
 duties in which it may be agiiinst public* policy that the 
 income arising for the j)crfoiinance of those duties should 
 be assigned ; because the public is interested not only in
 
 OF CANONS. 127 
 
 the performance from time to time of those duties, but also 
 in the fit state of preparation of the party having to per- 
 form them. If in this case tlie residence in Windsor Castle, 
 and the attendance on divine service, had Ijeen stated in 
 the answer, or in any way sliown to be for the benefit ot 
 the pubHc, or the maintenance of the dignity of the sove- 
 reign for the benefit of the pubhc, I slioidd liave thought 
 the case wortliy of a very (Utierent consideration; but from 
 all that is stated in the answer that is not the case ; it is a 
 service to be performed for the benefit of the party himself; 
 and therefore, upon the case as it now stands upon this 
 answer, and without saying that there may not be other 
 facts which may be material to be ultimately considered, it 
 appears to me that the security of the plaintiff is valid." 
 The motion was therefore refused with costs.' 
 
 It is believed that this decision would have been appealed 
 against had not the decease of Mr. Musgrave prevented 
 such a course from being adopted ; as it is, however, it 
 seems to contain all that can be said with any certainty 
 upon the subject. It appears from it, that an assignment 
 of such ecclesiastical preferment generally is not contrary 
 to public policy ; and that there must be some special cir- 
 cumstances in the case in order to render such an assign- 
 ment invalid ; but if the payment of profits were made to 
 depend on the performance of certain duties, and these 
 were not performed by the assignor, the assignee, as it 
 seems, would be quite unable in any way to enforce his 
 security. 
 
 An action by another mortgagee was brought in the 
 Court of Common Pleas against Mr. Musgrave, the same 
 party as in the above case ; and it was there decided that 
 an action of ejectment would not lie for- the canonry in 
 question, it being a mere office of which the sheriff could 
 not give possession, and that ejectment did not lie for the 
 residentiary house in which the canon resided, as it ap- 
 peared vested in the corporation, and not in the crown." 
 
 It does not appear that the alteration as to canonries 
 generally, or the new arrangements as to their annual in- 
 come, would have any effect upon this question. And, 
 notwithstanding the decision of Lord Langdale, it must 
 still be considered a very doubtful question, whether such 
 an interest as that of a canon in his canonry could be 
 assigned, so as to make any valid security to the assignee. 
 
 Provision has recently been made for the creation of a Honorary ca- 
 new kind of canonry, and a dignity hitherto unknown in "onries. 
 our ecclesiastical establishment, for by the statute 3 & 4 
 
 ' Grenfell v. Canons of Windsor, 2 Peavan, 544. " Same case, note.
 
 128 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Vict. c. 113, after reciting that it is expedient that all 
 bishops should be empowered to confer distinctions of 
 honour upon deserving clergymen, it is enacted that ho- 
 norary canonries shall be thereby founded in every cathe- 
 dral church in England, in which there are not already 
 founded any non-resideutiaiy prebends, dignities, or offices; 
 and the holders of such canonries shall be styled honorary 
 canons, and shall be entitled to stalls, and to take rank in 
 the cathedral church next after the canons, and shall be 
 subject to such regulations respecting the mode of their 
 appointment, and otherwise, as shall be determined on by 
 the confirmed recommendations of the ecclesiastical com- 
 missioners, and with the consent of the chapters of the 
 said cathedial churches respectively.'' 
 
 The number of honorary canonries thus founded in each 
 cathedral church is fixetl at twenty-four, and the appoint- 
 ment is with the bishops and archbishops respectively. 
 
 It was declared that any number, not exceeding eight, 
 might be appointed in each diocese in the year next after 
 the passing of the act (1841), after which time two only 
 might be aj)pointed in each year, until the number was 
 fdled up, except in the case of a vacancy among those 
 already ap[)uinted, in which case his place also might be 
 filled up.^' 
 
 These lionorary canons have no emolument whatever, 
 nor are they to take or hold any place in the chapter by 
 virtue of their appointment. 
 Where founded. The following are the cathedral churches in which only 
 these honorary canonries are founded: — Oanterbury, Bris- 
 tol, Carlisle, Chester, Durham, Ely, Gloucester, Norwich, 
 Oxford, Peterborough, Uipon, Rochester, Winchester, 
 Worcester and .Manchcstei', as soon as this last becomes a 
 cathedral cluucli.''' 
 Not arrounicd Those honorary canonries are not to be considered as 
 ascathniuil cathedral picfernient, so as in any way to ])revent or all'ect 
 pre«.t en . ^|^^ holding other benelices with them under the j)rovisit)ns 
 against holding plurality of benefices. Neither are they 
 subject to lapse, so that there is no obligation to the bislu)p 
 to fill th(!m u|) as vacancies occur, unless he may think 
 jMoper to do so.' 
 Minor cannnr.. ( )(' the origin of minor canons there does not appear to 
 be anything that may be said with certainty ; but as well 
 from the name itself, as from other names given to similar 
 (iliices in dilfereut j)laces, it a])])ears that they were a sort 
 (tf di!|)uly ap|)()in(ed to j)erlbrin the cathedral duties in the 
 
 « 3 & 4 Viii. c. 1 1:). s. 2:). V 3 ^^ i vict. c. II :5, s. '2:i. 
 
 ' 4 & 6 Vicl. c. 39, «. 2. ' Seel. .J.
 
 OF CANONS. 129 
 
 absence or in exoneration of the canons or prebendaries, 
 by whom they were usually aj){)ointed. Thus we find the 
 terms vicar, vicar choral, priest vicar, and senior vicar, 
 signifying the holders of offices similar to the minor ca- 
 nonries ; the word vicar, as we shall hereafter see, always 
 meaning a substitute, and commonly applied to the person 
 appointed to perform the duties for the rector or parson of 
 a benefice. 
 
 Henceforth the right of a))]iointing minor canons is in By whom ap- 
 all cases vested in the respective chapters,'' except in cases P^in'ed. 
 where the appointment has formerly been in the dean, in 
 which case the act makes no alteration ; but the right of 
 appointment remains with the dean, and his successors, as 
 before,*^ and is not to be exercised by any other person or 
 body whatsoever; and regulations were by the statute 3 & 
 4 Vict. c. 113, directed to be made by the confirmed re- 
 commendations of the ecclesiastical commissioners, for 
 fixing the number and emoluments of such minor canons 
 in each cathedral or collegiate church. But the number is Number of. 
 not in any case to be more than six nor less than two. 
 
 The stipend of any minor canon appointed after the Their stipend, 
 passing of that act is to be not less than 1501. per annum, 
 and arrangements were also by the same act authorised to 
 be made for securing to a minor canon already appointed, 
 and not otherwise competently provided for, an income not 
 exceeding 150/. per annum.'' 
 
 The office of minor canon, priest vicar or vicar choral, How affected as 
 having any emolument attached to it, is within the mean- to pluralities, 
 ing of the term cathedral ])referment in the Benefice Plu- 
 ralities Act;*^ and no minor canon appointed after August, 
 1840, may take or hold, together with his minor canonry, 
 any benefice beyond the limits of six miles from the ca- 
 thedral or collegiate church where he holds such appoint- 
 ment ; but he is not prevented from holding any benefice 
 within such distance.' 
 
 Minor canons are among those in favour of whom the 
 exercise of the right of patronage by the chapters is re- 
 stricted, and in whose favour therefore the right may be 
 exercised." 
 
 i* 3 & 4 Vict. c. 113, s. 45. c 4 & 5 Vict, c. 39, s. 15. 
 
 «> 3 & 4 Vict. c. .1 1 3, s. 45. e i ^ 2 Vict. c. 1 06. 
 
 f 3 & 4 Vict. c. 1 13, s. 46 ; and 4 & 5 Vict. c. 39, s. 15. 
 K 3 & 4 Vict. c. 113, s. 44. 
 
 K
 
 130 of the rights, duties, etc. of ecclesiastical persons. 
 
 Section 6. 
 Of Archdeacons. 
 
 Origin of. Deacons were all originally the attendants and assistants 
 
 of the bishop in Church affairs, and at a very early period 
 in the history of the Church, there was one chosen out 
 from the rest in several dioceses, to whom was given the 
 title of archdeacon. This office by degrees became uni- 
 versal, though it had relation only to the episcopal see. 
 The duties of their office were, to attend the bishop at the 
 altar and at ordinatioiw, to direct the deacons in their 
 several duties, and to assist the bishop in the management 
 of the revenues of the Church. But from thus being mere 
 assistants, they began in process of time to share with the 
 bishop in his authority, and by several steps and degrees 
 they attained to the power they now enjoy. '^ 
 Their powers Of common right it seems that archdeacons have no 
 
 liow acquired, power to usurp to themselves greater matters, but only to 
 report the same to the bishops. Beyond this, all the rights 
 that any archdeacon enjoys, of what kind soever they may 
 be, subsist by grants from the bishops, either made volun- 
 tarily, to enable archdeacons to visit with greater authority 
 and effect, or of necessity, as claimed and insisted on by 
 archdeacons, upon the foot of long usage and custom. But 
 whatever might have been the motive for these concessions 
 on the part of the bishoi)s, it seems that the powers en- 
 joyed by archdeacons beyond" those which they claim of 
 common right, accrued to them by express grant or com- 
 position; it being hard to imagine how deans and chapters, 
 archdeacons, or any other ])crsons, should be allowed to 
 prcsciibe against a bishoj) for any brunches of episcopal 
 jurisdiction, and nnich more for an exemption from it.' 
 
 Shortly after the Norman conquest, an archdeacon is 
 mentioned in a ciiapter of Will. 1. as the bis]ioj)'s vicar; 
 and the exercise of the ]>ower of the bishop in the admi- 
 nistration of his diocese, being deleoated to the archdeacon 
 in such character by long custom, grew into a claim, and 
 those claims being contested were settled by comj)osition. 
 The arcluieacon's general capacity as vicar general ceased, 
 and j)articular (hvisions were assigned to them, so that, in 
 general, at this day, the power or jurisdiction of the arch- 
 deacon is founded on custom and long; usajre in his own 
 church -.md diocese.'' And in general Ik^ may be said to 
 
 '• I Hlacks. 383 ; Gibs. 969. 
 
 ' (Jil)s. 969 ; Deggc, 1'. C. 231, 235 ; Rogers's E. L. 59. 
 
 ^ Gibs. 970; Co. Lilt. 91.
 
 OP ARCHDEAC0N8. 
 
 131 
 
 exercise a kind of episcopal authority, which, though ori- 
 ginally derived from the bishop, is now independent of 
 and distinct from his;' and until a very late period, he had 
 his court for the punishment of offenders by spiritual cen- 
 sures, and for hearing all other causes of ecclesiastical 
 cognizance. 
 
 Blackstone speaks of a kind of archdeacons with an Archdeacons 
 authority immediately subordinate to the bishop through- general, 
 out the whole of his diocese, and these, it seems, were such 
 as by the canon law were called archdeacons general ; but, 
 as it is observed in a note by Mr. Justice Coleridge, no 
 instance of this kind now remains in our Church; and it 
 seems doubtful whether this and the present kind of arch- 
 deacons were ever existing together, or whether the present 
 archdeacons have grown out of the former, which latter 
 opinion appears the most ])robable."' 
 
 There were in England formerly sixty archdeaconries : " Number of 
 but among the recommendations of the ecclesiastical com- archdeaconries, 
 missioners, recited in the stat. 6 & 7 Will. IV. c. 77, is ""r PsrAhL 
 the creation of new archdeaconries of Bristol, Maidstone, 
 Monmouth, Westmoreland, Manchester, Lancaster and 
 Craven, and that archidiaconal power be given to the Dean 
 of Rochester, within that part of Kent which will remain 
 in the diocese of Rochester ; and some of those recom- 
 mendations have been carried into effect in the manner 
 which is directed by that act. The power of creating 
 new archdeaconries has been since made more extensive ; 
 so that now, in any case in which it shall appear to the 
 commissioners, upon the representation of the bishop, to 
 be proper to divide any archdeaconry, on account of its 
 magnitude or other peculiar circumstances connected with 
 it, such archdeaconry may, by the confirmed recommen- 
 dation of the commissioners, be divided into two or more 
 portions, each of which may be constituted a separate 
 archdeaconry, and a district may be assigned to it, pro- 
 vided that no such division be made without the consent 
 of the bishop under his hand and seal." 
 
 The division of dioceses into archdeaconries, and the as- Number of 
 signment of particular divisions to particular archdeacons, archdeaconries. 
 are supposed to have begun a little after the Norman con- 
 quest ; when the bishops, as having baronies, and being- 
 tied by the constitutions of Clarendon to a strict attend- 
 ance upon the kings in their great councils, were obliged to 
 make larger delegations of power for the administration of 
 
 1 1 Blacks. 383. 
 " Co. Liu. 94. 
 
 ^ Note Coleridge's Ed. of Blacks, vol. i. 383 
 o 3&4 Vict. c. 113, s. 32. 
 
 k2
 
 132 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Rank of arch- 
 deacon. 
 
 How (o qualify 
 for office. 
 
 Duties of the 
 archdeacon. 
 
 Uniform juris 
 diction. 
 
 Visitations by. 
 
 their dioceses, than till that time they had been accustomed 
 to make.'' 
 
 In rank and dignity an archdeacon is inferior to a dean, 
 in the same way as a deacon is inferior to a priest ; for 
 the dean is styled Archipresbyter, while the archdeacon 
 is styled Archidiaconus. 
 
 No person is qualified to be appointed an archdeacon 
 until he has been six years complete in priest's orders."" 
 
 Archdeacons are by statute to read the Common Prayer, 
 and declare and subscribe their assent thereto before the 
 ordinary ; but they are not obliged to subscribe and read 
 the Thirty-nine Articles, because an archdeaconry is not 
 such a benefice with cure of souls as seems to be intended 
 by the statute 13 Eliz. before mentioned; but they are to 
 take the oaths in the same manner as other persons quali- 
 fying for oftices. ^ 
 
 By the canon law the archdeacon is styled the bishop's 
 eye, and his principal duties are stated to be to visit the 
 clergy in his archdeaconry, in such manner as the bishop 
 visits those of his diocese; and to this extent he is the 
 bishop's vicegerent. He has also the charge of parochial 
 churches within his diocese.' 
 
 But since his power, as we have before observed, is fre- 
 quently founded on custom and usage, it was formerly 
 not always uniform, but varied in different dioceses : thus 
 in the diocese of Carlisle the archdeacon had no jurisdic- 
 tion, but he retained that more ancient right of his office, 
 of examining and presenting persons to be ordained, and 
 of inducting persons instituted." But now all archdeacons 
 throiigliout England and Wales are to have and exercise 
 full and equal jurisdiction within their respective archdea- 
 conries, any usage to the contrary notwithstanding. "■ 
 
 In speaking of visitation by bishops, we have already 
 liad occasion to (observe, that the work of parochial visita- 
 tion, and also the holding of general synods or visitations, 
 came by degrees to be established as branches of the 
 archidiaconal office, which ])y lliis means attained to the 
 dignity of ordinary instead of delegated jurisdiction.^' 
 
 liy a constitution of Otholjon, it is ordained that arch- 
 deacons visit tlic churches profitably and faithfully, by 
 inquiring of the sacred vessels and vestments, and how 
 the service is performed, and generally of temporals and 
 Pjiiiituals, and what they fnui to want correction ih.it lh(!y 
 correct tliligeiitly.' And it was further ordained by tiiis 
 
 •I (;il).i. f)*0; 1 Warn. 27.'). 
 
 • l.J i-t U Car. '2, c. '1 ; Wats. c. l.'i. 
 
 " 1 IJurn'R K. J.. .%. X G. "I* 7 Will. 4, 0.77, s. If) 
 
 ' 4 lliirns i;. F,. 17. 
 
 ' 3&4 Vict. c. 113, s. 27. 
 
 « Godolph.Gl. 
 
 V Ante.
 
 OF ARCHDEACONS. 133 
 
 as well as by other constitutions, that they should not 
 extort money by giving- sentence unjustly ; directions not 
 very creditable to the Church at the time when they were 
 thouglit necessary. 
 
 By a constitution of Archbishop Reynolds, it was en- Duties of, in 
 joined that archdeacons and their officials in the visitation visitations, 
 of cliurche.?, have a diligent regard of the fabric of the 
 church, and especially of the chancel, to see if they want 
 repair ; and if they find any defects of that kind, limit a 
 certain time under a penalty, within which they shall be 
 repaired." But it must not be inferred from this consti- 
 tution that the archdeacon's official may visit in his own 
 right, for he can only do so in right of the archdeacon 
 when the latter is hindered ;"' and we may add, that neither 
 must it be inferred from this constitution that the arch- 
 deacon has any positive power of compelling the repairs 
 of the fabric of the church ; as to which we must refer to 
 what is said upon the subject of church rates ; and indeed it 
 may be said that the 86th canon seems to imply that no such 
 power ever existed in archdeacons directly, for it is there 
 directed that all archdeacons {inter alios) which have au- 
 thority to hold ecclesiastical visitations, by composition, 
 law or prescription, shall survey the churches of his or 
 their jurisdiction once in every three years, in his own 
 person, or cause the same to be done ; and shall from 
 time to time, within the said three years, certify defaulters 
 to the Hi"h Commissioners. In what manner the Hioh 
 Commissioners could or would have proceeded in such a 
 case does not appear; but since that time the High Com- 
 mission Court has been abolished. 
 
 By a constitution of Archbishop Langton, archdeacons, 
 in their visitation, are to see that the offices of the Church 
 are duly administered, and shall take an account in writing 
 of all the ornaments and utensils of churches, and of the 
 vestments and books ; and shall require them to be pre- 
 sented before them every year, that they may see what 
 has been added and what lost.'' 
 
 It is said that the archdeacon, although there be not a Times of. 
 cause, may visit once a year ; and if there be cause, he 
 may visit oftener : and that where it is said in the canon 
 law he ought to visit from three years to three years, this 
 is to be understood so that he shall visit from three years 
 to three years of necessity, but that he may visit every 
 year if he will.'^ 
 
 In speaking of the bishop's visitation, the exhibits of 
 letters of orders, Sec. to be made to him have been men- 
 » Lyndw. 53. ^ Ibid. c Lynd. 50. ^ Ibid. 49.
 
 134 OF THE RIGHTS, DUTIES, ETC. OV ECCLESIASTICAL PERSONS. 
 
 tioned ; and such exhibits of common right are to be made 
 to him only ; and therefore, if any archdeacons are entitled 
 to require exhibits in their visitations, it must be upon the 
 foot of custom, the beginning whereof hath probably been 
 an encroachment, since it is not likely that any bishop 
 should give to the archdeacon and his official a power of 
 allowino- or disallowina; such instruments as have been 
 granted by himself or his predecessors. 
 Presentments. At these archidiaconal visitations, the churchwardens 
 are to make presentments, and their duty in that particular 
 will be more fully spoken of hereafter. Anciently we find 
 nothing of churchwardens presenting; but the style is, 
 " the parishioners say," " the laymen say," and the like, 
 until a little before the Reformation, when the church- 
 wardens began to present, either by themselves, or else 
 with two or three more j)arishioners of credit joined with 
 them. And this last is evidently the original of that office 
 which our canons call the office of sidemen or assistants.^ 
 In the beginning of the reign of King James I., a com- 
 missary had cited many persons of several parishes to 
 appear before him at his visitation, and because they ap- 
 peared not, they were excommunicated. But a prohibi- 
 tion was granted, because the ordinary hath not power to 
 cite any into that court except the churchwardens and 
 sidemen. (To these he may give his articles, and inquire 
 by them.*^) 
 Canons relating The following canons relate to these presentments, and 
 to presentments, j^. jj^g heen thought best to insert them here in full. 
 
 Because it often cometh to pass, that churchwardens, 
 sidemen, questmen, and such other persons of the laity as 
 are to take care for the suppressing of sin and wickedness, 
 as much as in them lieth, by admonition, reprehension 
 and denunciation to their ordinaries, do forbear to dis- 
 charge their duties therein, either through fear of their 
 superiors, or through negligence, more than were fit, the 
 licentiousness of these times considered, we do ordain, 
 that hereafter every parson and vicar, or in the lawful 
 absence of any parson and vicar, then their curates and 
 substitutes, may join in every presentment with the said 
 churchwardens, sidemen and the rest above mentioned, 
 at the times of visitation, if they the said churchwardens 
 and tlie rest will present such enormities as are apparent 
 in the parish ; oi- if they will not, then every such parson 
 and viciii-, or in their absence as aforesaid, their curates, 
 may themselves present to their ordinaries at such times, 
 and when else thoy think it meet, all such crimes as they 
 <= Gibs. 960. f Noy, 123.
 
 OF ARCHDEACONS. 135 
 
 have in charge or otherwise, as by them (being the persons 
 that should have the chief care for the suppressing of sin 
 and impiety in their parishes) shall be thought to require 
 due reformation. Provided always, that if any man con- 
 fess his secret and hidden sins to the minister, for the 
 unburdening of his conscience, and to receive spiritual 
 consolation and ease of mind from him, we do not any 
 way bind the said minister by this our constitution, but 
 do straitly charge and admonish him, that he do not at 
 any time reveal and make known to any person what- 
 soever any crime or offence so committed to his trust and 
 secrecy (except they be such crimes as by the laws of this 
 realm his own life may be called in question for concealing 
 the same) under pain of irregularity, s 
 
 It shall be lawful for any godly disposed person, or for 
 any ecclesiastical judge, upon knowledge or notice given 
 unto him or them, of any enormous crime within his juris- 
 diction, to move the minister, churchwardens or sidemen, 
 as they tender the glory of God and reformation of sin, to 
 present the same, if they shall find sufficient cause to in- 
 duce them thereunto, that it may be in due time punished 
 and reformed. ^ 
 
 For the avoiding of such inconveniences as heretofore 
 have happened, by the hasty making of bills of presentments 
 upon the days of visitation and synods, it is ordered, that 
 always, hereafter, every chancellor, archdeacon, commis- 
 sary, and every other person having ecclesiastical jurisdic- 
 tion, at the ordinary time when the churchwardens are 
 sworn, and the archbishop and bishops, when he or they 
 do summon their visitation, shall deliver or cause to be 
 dehvered to the churchwardens, questmen, and sidemen of 
 every parish, or to some of them, such books of articles as 
 they or any of them shall require (for the year following) 
 the said churchwardens, questmen, and sidemen to ground 
 their presentments upon, at such times as they are to ex- 
 hibit them. In which book shall be contained the form of 
 the oath which must be taken immediately before every 
 such presentment ; to the intent that, having beforehand 
 time sufficient, not only to peruse and consider what their 
 said oath shall be, but the articles also whereupon they 
 are to ground their presentments, they may frame them at 
 home both advisedly and truly, to the discharge of their 
 own consciences (after they are sworn), as becometh honest 
 and godly men.' 
 
 Whereas, for the reformation of criminous persons and 
 disorders in every parish, the churchwardens, questmen, 
 s Can. 113. '' Can. 116. » Canon 119.
 
 fame. 
 
 136 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 sidemen, and such other church officers are sworn, and the 
 minister charged, to present as well the crimes and disorders 
 committed by the said criminous persons, as also the com- 
 Presentments mou fame which is spread abroad of them, whereby they 
 on common are often maligned, and sometimes troubled, by the said 
 delinquents or their friends; we do admonish and exhort 
 all judges, both ecclesiastical and temporal, as they regard 
 and reverence the fearful judgment-seat of the highest 
 Judge, that they admit not in any of their courts any com- 
 plaint, plea, suit or sviits, against any such churchwardens, 
 questmen, sidemen, or other church officers, for making 
 any such presentments, nor against any minister for any 
 presentments that he shall make : all the said present- 
 ments tending to the restraint of shameless impiety, and 
 considering that the rules both of charity and government 
 do presume that they did nothing therein of malice, but 
 for the discharge of their consciences.'' 
 
 No churchwardens, questmen, or sidemen of any parish, 
 shall be enforced to exhibit their presentments to any 
 having ecclesiastical jurisdiction, above once in every year 
 where it hath been no oftener used, nor above twice in 
 every diocese whatsoever, except it be at the bishop's visi- 
 tation : provided always, that, as good occasion shall re- 
 quire, it shall be lawful for every minister, churchwardens, 
 and sidemen, to present offenders as oft as they shall think 
 meet ; and for these voluntary presentments no fee shall 
 be taken.' 
 
 No churchwardens, questmen, or sidemen, shall be called 
 or cited, but only at the said time or times before limited, 
 to appear before any ecclesiastical judge whosoever, for 
 refusing at other times to ])repent any faults committed 
 in their parislies, and punishable by ecclesiastical laws. 
 Neither shall they or any of them, aftei' their })resontments 
 exhibited at any of those times, be any further troubled for 
 the same, except upon manifest and evident jM'oof it may 
 ap])ear that they did then willingly and wittingly omit to 
 present some such j)ul)lic crime or crimes as they knew to 
 be committed, or could not be ignorant that there was then 
 a public fame of them, or unless there be very just cause 
 to call them for the exj)l!ination of their former present- 
 ments : in which case of wilful omission, their ordinaries 
 shall proceed against them in such sort, as in causes of 
 wiHul perjury in a court ecclesiastical it is already pro- 
 vided.'" 
 
 'I'lic ollicc of all churchwardens and sidcuuMi shall be 
 reputed to continue until the new churchwardens that shall 
 ^ Canon lir,. i Canini 1 ICi. '" Canon 117.
 
 OF ARCUDEACONS. 137 
 
 succeed tliem be sworn, which shall be the first week after 
 Easter, or some week following, according to the direction 
 of the ordinary; which time so appointed shall always be 
 one of the two times in every year, when the minister, and 
 churchwardens, and sidemen of every parish, shall exhibit 
 to their several ordinaries the presentments of such enor- 
 mities as have happened in their parishes since their last 
 presentments. And this duty they shall perform before 
 the newly chosen churchwardens and sidemen be sworn, 
 and shall not be suffered to pass over the said presentments 
 to those that are newly come into that office, and are by 
 intendment ignorant of such crimes ; under pain of those 
 censures which are appointed for the reformation of such 
 dalliers and dispensers with their own consciences and 
 oaths." 
 
 For the presentments of every parish church or chapel, Fees for present- 
 the registrar of any court where they are to be exhibited menis. 
 shall not receive in one year above 4id., under pain, for 
 every offence therein, of suspension from the execution of 
 his office for the space of a month, toties quoties° 
 
 No minister shall in any wise admit to the receiving of Perjury of 
 the holy communion any churchwardens or sidemen, who, clmrcliwardens 
 having taken their oaths to present to their ordinaries all '" °°' present- 
 such public offences as they are particularly charged to '°^" 
 inquire of, in their several ])arishes, shall (notwithstanding 
 the said oaths, and that their faithful discharge of them is 
 the chief means whereby public sins and offences may be 
 reformed and pimished) wittingly and willingly, desperately 
 and irreligiously, incur the horrible crime of perjury ; either 
 in neglecting or in refusing to present such of the said 
 enormities and public offences as they know themselves to 
 be committed in their said parishes, or are notoriously 
 offensive to the congregation there; although they be 
 urged by some of their neighbours, or by their minister, or 
 by the ordinary himself, to discharge their consciences by 
 presenting of them, and not to incur so desperately the 
 said horrible sin of perjury. 
 
 In places where the bishop and archdeacon do, by pre- Arrangements 
 sciiption or composition, visit at several times in one and to prevent two 
 the same year ; lest for one and the selfsame fault any of °'' "^""^^ P'^V 
 his majesty's subjects should be challenged and molested the same offence. 
 in divers ecclesiastical courts, we do order and appoint, 
 that every archdeacon or his official, within one month 
 after the visitation ended that year, and the presentments 
 received, shall certify under his hand and seal, to the bishop 
 or his chancellor, the names and crimes of all such as are 
 detected and presented in his said visitation, to the end the 
 " Canon 118. o Canon 116,
 
 138 OF THE EIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 chancellor shall henceforth forbear to convent any person 
 for any crime or cause so detected or presented to the arch- 
 deacon. And the chancellor, within the like time after the 
 bishop's visitation ended, and presentments received, shall, 
 under his hand and seal, signify to the archdeacon or his 
 official the names and crimes of all such persons, which 
 shall be detected or presented unto him in that visitation, 
 to the same intent as aforesaid. And if these officers shall 
 not certify each other as is here prescribed, or after such 
 certificate shall intermeddle with the crimes or persons 
 detected and presented in each other's visitation; then 
 every of them so offending shall be suspended from all 
 exercise of his jurisdiction by the bishop of the diocese, 
 until he shall repay the costs and expenses which the 
 parties grieved have been at by that vexation. f 
 
 As to legal proof: in case the party presented denies 
 the fact to be true, the making good the truth of the pre- 
 sentment, that is, the furnishing the court with all proper 
 evidences of it, undoubtedly rests upon the person present- 
 ing. And as the spiritual court in such case is entitled by 
 law to call upon churchwardens to support their present- 
 ments ; so are churchwardens obliged, not only by law 
 (Dr. Gibson says), but also in conscience, to see the pre- 
 sentment effectually supported ; because, to deny the court 
 those evidences which induced them to present upon oath, 
 is to desert their presentment, and is little better, in point 
 of conscience, than not to present at all ; inasmuch as, 
 through their default, the presentment is rendered ineffec- 
 tual, as to all purposes of removing the scandal, or reform- 
 ing the offenclei'. And from hence he takes occasion to 
 wish that the parishioners would think themselves bound 
 (as on many accounts they certainly are bound) to support 
 their churchwardens, in seeing that their presentments are 
 rendered effectual. In any point which concerns the re- 
 pairs or ornaments of churches, or the providing conve- 
 niences of any kind for the service of God, when such de- 
 fects as these are presented, the spiritual judge immediately, 
 and of course, enjoins the churchwarden presenting, to see 
 the defect made good, and supports him in repaying him- 
 self by a legal and reasonable rate upon the parish.'' But 
 what he intends is, the supporting the churchwardens in 
 the prosecution of such immoral and unchristian livers, as 
 they find themselves obliged by their oath to present, as 
 fornicators, lululterers, common swearers, drunkards, and 
 sucli like ; whose example is of pernicious consequence, 
 and likely to bring many evils upon the parish." 
 
 I' Canon 121 . 'i Sed quccre, liow is such a rate to be cnfoiced "? 
 r Gibs. 966.
 
 OF ARCHDEACONS. 139 
 
 Such are the provisions and directions contained in the 
 canons relating to the duties of archdeacons in the subject 
 of visitations and presentments, which, inasmuch as they 
 are contained in all the books on this subject, are retained 
 here ; but it is evident that very many of those provisions 
 are inapplicable to the state of the Church at the present 
 day. It does not appear too much to say, that the lan- 
 guage of these canons in speaking of churchwardens not 
 presenting, seems unnecessarily harsh and severe. There 
 are moreover many cases in which it now appears settled, 
 that churchwardens may proceed against parties by indict- 
 ment, or anticipate threatened mischief by obtaining in- 
 junction, which appear to render several of the directions 
 of these canons less essential.^ 
 
 It has been decided, that an archdeacon cannot refuse May not refuse 
 
 to administer the oath of office to churchwardens. In a •^ ^^^'^^ "^, 
 
 T 1 Ti i> T> i. J T churcnwaraens. 
 
 case m Lord Raymond s Keports, a mandamus was di- 
 rected to the archdeacon of St. Asaph, to swear and admit 
 I. S., being duly elected by the parish according to the 
 custom, to be churchwarden. To which it was returned, 
 that I. S. was minus kahilis, being a poor dairyman, &c. 
 And the question was, whether the archdeacon can refuse 
 the churchwarden, elected by the parish by the custom, 
 for any cause whatsoever. And Mr. Northey, that he 
 could, argued that the churchwarden is quasi a spiritual 
 officer, because he has the care of the church, and all 
 things belonging to it ; and the archdeacon is more than 
 a minister, for the party is examined before him in the 
 spiritual court. But it was resolved, that the archdeacon 
 has no power in such case to refuse to swear and admit 
 the churchwarden. For the churchwarden is an officer of 
 the parish, and his misbehaviour will prejudice them, and 
 not the archdeacon ; for he has not only the custody, but 
 also the property of the goods belonging to the church, 
 and mav maintain actions for them ; and for that reason 
 it is an office merely temporal, and the archdeacon is only 
 a ministerial officer. And therefore a peremptory manda- 
 m-us was granted.* 
 
 It is customary for the archdeacon at his visitation to call ^'isitaiiou 
 upon one of his clergy to preach what is called a visitation sermon, 
 sermon, and, although it appears that formerly it was the 
 duty of the visitor himself to preach this sermon, it seems 
 to be doubtful whether the clergyman so called upon by 
 the archdeacon may refuse. 
 
 In the year 1626 Mr. Huntley, rector of Stourmouth, 
 was required by Dr. Kinsley, archdeacon of Canterbury, 
 ^ See post, Ch. VIII. s. 2. '1 Ld. Raym. 138.
 
 140 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 to preach a visitation sermon, which he refused. And 
 being- cited before the high commissioner, it was urged 
 that he was bound to the performance of that office in 
 pursuance of the archdeacon's mandate, by virtue of his 
 oath of canonical obedience. He answered, that he was 
 not a licensed preacher, according to the canons of 1603 ; 
 and especially, that he was not bound thereunto by his 
 said oath, which implieth only an obedience according to 
 the canon law, as it is in force in this realm ; and that 
 there is no canon, foreign or domestic, which requireth 
 him to do this ; but on the contrary, that the ancient canon 
 law enjoineth the visitor himself to preach at his own visi- 
 tation. But the court admonished him to comply, and on 
 his refusal, fined him 500^., and imprisoned him till he 
 should pay the same, and also make submission ; and 
 afterwards degraded and deprived him." Although, as Dr. 
 Burn remarks, this may be one instance among others 
 charged against the High Commission Court of carrying 
 matters with a high hand ; this may relate rather to the 
 excess of punishment than to the power of punishing ; and 
 it does not appear from the books that a case has ever oc- 
 curred by which the authority of this decision has been 
 reversed. 
 . , J , The iudoe of the Archdeacon's Court, where he does 
 
 Archdeacons "^- i ° • n i i ,t- • i i it r 
 
 Court. i^ot preside, is called the orncial, and an appeal lies irom 
 
 that court to the Bishop's Court, or if he be archdeacon 
 of an archbishopric, the appeal from his court is to the 
 Court of Arches. 
 
 If the jurisdiction is not peculiar, then the bishop and 
 archdeacon have concurrent jurisdiction, and the party 
 may commence his suit either in the Archdeacon's Court or 
 in the Bishop's, and he may choose which he pleases ; but 
 if the archdeacon has a peculiar jurisdiction, he is totally 
 exempt from the power of the bishop, and the bishop can- 
 not enter there and hold court ; and in such case if the 
 party who lives within the peculiar be sued in the Bishop's 
 Court, a j)roliibition should be granted. "^ 
 How arclidea- An arclidcacon is so far exem])t from the provisions and 
 .ona|rocic.l i>y ,.<-strictions of the Benefice Pluralities Act,^ that he is not 
 
 llic IMufiilitics , , 111- • 1 1 • 1 1 
 
 Act. thcrehy ])revented Iroin holding with Ins archdeaconry two 
 
 benefices, subject to the limitations of that act, as to dis- 
 tance, valiu! and population, one being within the diocese 
 of his archdeaconry; or, if a peculiar, then being locally 
 situate within such diocese. 
 
 Ihitil recently the endowments of archdeaconries 
 throughout Jingland were generally small. But now it 
 
 » John Uuutley't rase, 4 Burn's E. L. 19. J 1 & 2 Vict. c. 106. 
 
 " Rnbinton v. Godsalve, 1 Haym. R. 123.
 
 OF ARCHDEACONS. 141 
 
 has been enacted that, by the lecomiiiendations of the eccle- Power to in- 
 siastical commissioners duly confirmed and subject to the '^^^^^^ *^® ^"■ 
 consent of the bishop, any archdeaconry may be endowed a?cTidea"conl, 
 by the annexation either of an entire canonry, or of a and mode of 
 canonry charged with the payment of such portion of its efiecting. 
 income as shall be determined on, towards providino- for ^^ annexing 
 another archdeacon in the same diocese, or with such last 
 mentioned portion of the income of a canonry, or by aug- 
 mentation out of the common fund in the hands of the 
 commissioners ; provided that the augmentation shall not 
 be such as to raise the average annual income of any 
 archdeaconry to an amount exceeding 200/., and that no 
 canonry shall be so charged with the payment of a portion 
 of the income thereof to any archdeacon, unless the aver- 
 age annual income of such canonry, after the payment of 
 such portion as aforesaid, shall amount to or exceed 500/. 
 But no archdeacon shall be entitled to hold any endow- 
 ment or augmentation, or other emolument as such arch- 
 deacon under these provisions, unless he shall be resident 
 for the space of eight months in every year within the 
 diocese in which his archdeaconry is situate, or as to any 
 present archdeacon, within the diocese in which his arch- 
 deaconry was situate before the recent alteration of dio- 
 ceses.^ 
 
 Or the following more comphcated plan may be adopted Two archdea- 
 for the endowment of archdeaconries. Instead of appoint- conries annexed 
 ing one archdeacon to either of the new canonries respec- ^° ^ '^^"°"'"y- 
 tively founded in the cathedral churches of St. Paul's and 
 Lincoln, or of annexing a canonry in any cathedral or 
 collegiate church to an archdeaconry as aforesaid charged 
 with any payment to another achdeacon in the same dio- 
 cese, the rights, duties and emoluments of any canonry, 
 the average annual income of which may exceed 800/., 
 may be annexed to two archdeaconries jointly within the 
 same diocese, not otherwise competently endowed ; eacli 
 archdeacon taking his turn of residence for such time, and 
 taking such share of the emoluments as shall be directed 
 by the scheme and order authorizing such annexation ; 
 and each archdeacon shall during his turn of residence 
 have all the rights and privileges of a canon, except as to 
 the division of the emoluments.'* 
 
 As another mode of providing for the endowment of By annexing 
 archdeaconries, the patron of any benefice within the limits benefices. 
 of any archdeaconry may, with the consent of the bishoj) 
 of the diocese within which the archdeaconry is situate, 
 endow such archdeaconry by the annexation thereto of 
 * 3 & 4 Vict. c. 1 13, s. 34. * Ibid. sect. 35.
 
 142 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Annexed ca- 
 nonry may be 
 changed. 
 
 Endowments of 
 particular arcli- 
 deaconries. 
 
 such benefice ; such annexation to take effect immediately, 
 if the benefice be vacant at the time of the endowment, or 
 otherwise upon the then next vacancy thereof; and every 
 benefice so annexed, and every future holder thereof, is to 
 be subject to all the provisions and restrictions of the 
 Benefice Pluralities Act. But it is provided, that no such 
 annexation shall take effect as to any archdeacon in pos- 
 session at the time of the passing of the act,"* without his 
 consent ; and in default of such consent at the time when 
 any benefice would otherwise so as aforesaid become an- 
 nexed, or until such consent be given, during the incum- 
 bency of such archdeacon, the income and emoluments of 
 such benefice shall, after due provision thereout being 
 made for the cure of souls in the parish or district of such 
 benefice, be applied by the commissioners, either in im- 
 proving the existing house and buildings, or in providing 
 a new house of residence for such benefice, or in improv- 
 ing or augmenting the glebe belonging thereto, or if no 
 such improvement or augmentation be deemed necessary, 
 then for the benefit of any poor benefice or benefices within 
 the same archdeaconry.'' 
 
 Any canonry, or portion of the income of a canonry or 
 benefice annexed to any archdeaconry, may at any time, 
 upon the representation of the bishop of the diocese, and 
 by the confirmed recommendation of the commissioners, 
 be disannexed from such archdeaconry upon the vacancy 
 thereof, and annexed to any other archdeaconry in the same 
 diocese. ** 
 
 Thus far, as to the general provisions for the endow- 
 ment of archdeaconries. The endowment of certain par- 
 ticular archdeaconries is provided for as follows. 
 
 The Bishop of London and of Lincoln respectively may 
 from time to time appoint one of the archdeacons of their 
 respective dioceses to tlie new canonries in the respective 
 churches of St. Paul's and Lincoln, and every archdeacon 
 so appointed shall thereupon become and be a canon of 
 such cathedral church, and a member of the chapter, to 
 all intents and purposes, and entitled to all the same rights 
 and privileges as the other canons.^ The archdeaconry of 
 Nottingham is endowed by having annexed to it the newly 
 constituted rectory of Southwell, but the archdeacon is 
 subjrrt to the ])rovisions and restrictions of the Benefice 
 Phiralitics Act.' The archdeaconry of Cardigan is en- 
 dowed with four twenty-fourth parts of the divisible cor- 
 
 '■ Juno, 1841. « 4 & 5 Vict. c. 39, s. 9. '' Ibid. sect. 11. 
 
 ■• 3 & 4 Vict.c. 113, s. 33. f 4 & 5 Vict. c. 39, s. 12.
 
 OF ARCHDEACONS. 143 
 
 porate revenues of the cathedral church of St. David. ^ 
 The archdeacons of Brecon and Carmarthen are respec- 
 tively endowed out of the revenues of the collegiate church 
 of Brecon. "^ The archdeaconry of Llandaff is annexed to 
 the deanery, and is endowed with three-sevenths of the 
 whole divisible corporate revenues of the cathedral church.' 
 
 Upon the endowment of any archdeaconry by either of Former estates 
 the above modes, and with the consent of the bishop of , "^T^ T" 
 
 ' . . i dowed arcu- 
 
 the diocese and oi any archdeacon ni possession at the deaconries vest- 
 time of passing- the act,'' all lands, tithes, and other here- ed in commis- 
 ditaments, except any right of patronage belonging to such ^'°"®'^^" 
 archdeaconry at the time of such endowment, may, by the 
 confirmed recommendation of the commissioners, be vested 
 in them and their successors ; and any benefice annexed 
 to such archdeaconry may, by the same authority, be dis- 
 annexed therefrom, and the patronage of such benefice 
 shall thenceforth revert to the patron to whom it belonged 
 before such annexation, subject to any transfer of patron- 
 age provided for by the same act.' 
 
 / _^ 
 
 Section 7. 
 Rural Deans. 
 
 There can be no question but that in former times the Their office for- 
 rural deans were important officers in tlie church establish- merly. 
 ment. They appear to have been deputies of the bishop, 
 planted all round his diocese, the better to inspect the 
 conduct of the parochial clergy, to inquire into and report 
 dilapidations, and to examine the candidates for confirma- 
 tion ; and armed in minuter matters with an inferior degree 
 of judicial and coercive authority.'" Blackstone says of 
 them, that they are very ancient officers of the Church, 
 but almost grown out of use, though their deaneries still 
 subsist as an ecclesiastical division of the diocese or arch- 
 deaconry." 
 
 Recently their office has in many instances been re- 
 vived ; and an interesting work has been lately published, 
 in which the history of the origin, progress, and gradual 
 decay of their office has been traced with much care and 
 research." But legally speaking the office can be scarcely 
 said to exist, or to have any duties necessarily connected 
 with it ; for during the long period of its decay, custom 
 
 o 3 & 4 Vict. c. 113, s. 38. "' Ibid. sect. 39. » Ibid. sect. 40. 
 
 k August 11, 1840. ' Ibid. sect. 56. "' Gibs. Cod. 972, 1550. 
 
 " 1 Comm. 383. " Horae Decanicae Rurales.
 
 144 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 seems to have transferred all the necessary duties of such 
 an office to the archdeacon ; as in the visitation of churches, 
 houses of residence, kc. At the present day, therefore, 
 the duties of the rural dean would be only such as he 
 might be deputed to perform by the bishop or archdeacon, 
 for the performance of many of which it seems that the 
 office may very usefully be revived. 
 
 In several of the statutes which direct the issuing of 
 commissions by the bishop, the rural dean is mentioned, as 
 a party who is to be one of the commissioners : his duties 
 in such matters, as a commissioner, will be found men- 
 tioned where such commissions are treated of. 
 
 Distinclion be- 
 tween, con- 
 sidered. 
 
 Rectors and 
 parsons. 
 
 Meaning of 
 " |):irson." 
 
 Section 8. 
 
 Of Rectors, Vicars, and Perpetual Curates. 
 
 It will be obvious that the subjects which might be 
 treated of under this head are of great variety and extent; 
 the greater number of these, however, will be found treated 
 of under the subject of benefices and their incidents. But 
 the connexion between the rector and his rectory, the in- 
 cumbent and his benefice, is so close, that it is almost im- 
 possible to separate the consideration of the two subjects. 
 The manner, therefore, in which rectors and vicars may 
 become such, tlic incidents to them in that character, and 
 the manner in which their office may determine, althougli 
 apparently subjects which might be considered in the pre- 
 sent chapter, are reserved for the chapters on benefices ; 
 while at present we shall only consider the distinctive per- 
 sonal characters of the three kinds of incumbents above 
 mentioned. 
 
 The apjjellatiuii of rector is synonymous with that of 
 parson, wliich latter term, although frequently used indis- 
 criminately, as applicable also to vicars and even curates, 
 is, according to Hlackstone, the most legal, beneficial, and 
 lionourable title that a parish priest can enjoy. Parson, 
 in the legal signification, is taken for the rector of a church 
 ])arochial : he is said to be seised injure ccclcsifc. Such a 
 oiH'., and he only, is said viccm seu jjcrsonam ccclesicc (jercre. 
 He is called parson (jjcrsotia) because by liis person the 
 cliurcli, which is an invisible body, is represented ; and 
 lie is ill liimscir a body (•or|)orat(', in ()r<l('r to protect and 
 defend the lights of the church (which he personates) by 
 a jxTpetual succession.^ And, as Lord Coke says, the law 
 
 1' I ISlack. Com. 384.
 
 OF RECTORS, VICARS, AND PERPETUAL CURATES. 145 
 
 had an excellent end tlicrein, viz., that in his person the 
 church might sue for and defend her right. A parson, 
 therefore, is a corporation sole, and has during his life tlie 
 freehold in himself of the parsonage house, the glebe, the 
 tithe and other dues.i 
 
 But these are sometimes apj)rojniated ; that is to say, Apjjiopriaiions. 
 the benefice is per])etually annexed to some sj)iritual cor- 
 poration, either sole or aggregate, being the j)atron of the 
 living ; which the law esteems equally capable of providing 
 for the service of the church, as any single private clergy- 
 man. This contrivance seems to have sprung from the 
 policy of the monastic orders, who have never been de- 
 ficient in subtle inventions for the increase of their own 
 power and emoluments. At the first establishment of pa- 
 rochial clergy, the tithes of the parish were distributed, as 
 we shall observe in treating of tithes, in a four-fold divi- \ 
 
 sion : one for the use of the bishop, another for maintaining 
 the fabric of the church, a third for the poor, and the fourth 
 to provide for the incumbent. When the sees of the bishops 
 became otherwise amply endowed, they were prohibited 
 from demanding their usual share of these tithes, and tlie 
 division was into three parts only ; and hence it was in- 
 ferred by the monasteries, that a small part was sufficient 
 for the officiating priest, and that the remainder might 
 well be applied to the use of their own fraternities (the en- 
 dowment of which was construed to be a work of the most 
 exalted piety), subject to the burden of repairing the church, 
 and providing for its constant supply. And, therefore, 
 they begged and bought for masses and obits, and some- 
 times even for money, all the advowsons within their reach, 
 and then appropriated the benefices to the use of their own 
 corporation. But in order to complete such appropria- 
 tion effectually, the king's license and consent of the 
 bishop must first be obtained; because both the king and 
 the bishop may, some time or other, have an interest, by 
 lapse, in the presentation to the benefice, which can never 
 happen if it be appropriated to the use of a corporation, 
 which never dies, and also because the law reposes a con- 
 fidence in them, that they will not consent to anything 
 that shall be to the prejudice of the church. The consent 
 of the patron also is necessarily implied, because (as was 
 before observed) the appropriation can be originally made 
 to none but to such sj)iritual corpoiation as is also the 
 patron of the church ; the whole being indeed nothing 
 else but an allowance for the patrons to retain the tithes 
 and glebe in their own hands, without presenting any 
 
 1 Co. Liu. 300. 
 
 L
 
 146 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 clerk, they themselves undertaking to provide for the ser- 
 vice of tlie church.' 
 Impropriaiions. The tenus appropriation and impropriation ' are now so 
 commonly used indiscriminately, that it has become almost 
 unnecessary to mention the distinction between them ; but 
 appropriation, in contradistinction to impropriation, means 
 the annexing a benefice to the proper and perpetual use of 
 some spiritual corporation, either sole or aggregate, being 
 the patron of a living, which is bound to provide for the 
 service of the church, and thereby becomes perpetual in- 
 cumbent, the whole appropriation being only an allowance 
 for the spiritual patrons to retain the tithes and glebe in 
 their own hands, without presenting any clerk, tliey them- 
 selves undertaking to provide for the service of the church; 
 while impropriation is supposed to be properly used when 
 the profits of the benefice are held in lay hands, as being 
 improperly so.* But, in truth, tlie correctness of the dis- 
 tinction, even originally, seems doubtful ; they are used as 
 synonymous in statutes in the times of Elizabeth, of Mary, 
 and of Charles II.; and even prior to the Reformation, in 
 a petition to parliament in the time of Henry VIII., the 
 term used is " impropried." Both terms were borrowed from 
 the form of the grant " in proprios usiis," and they are pe- 
 culiar or principally confined to this country. Blackstone 
 says, that appropriations can be made at this day, upon 
 which Mr. Christian observes, it cannot be sui)posed that 
 at this day the inhabitants of a parish who had been ac- 
 customed to pay their tithes to their officiating minister, 
 could be compelled lo transfer them to an ecclesiastical 
 corporation, to which they might be perfect strangers," 
 and, " that there probai^ly have been no new appropria- 
 tions since the dissolution of monasteries." Upon this 
 same proposition, Mr. .Tiistice Coleridge observes, alluding 
 to the opinion of Mr. Christian, "The truth of this position 
 has been questioned, and the doubt is not likely to be 
 solved by any judicial decision. But I am not aware of 
 any principle which should jirevent an imi)ropriation from 
 being now h'gally made, sup])Osing the spiritual corpora- 
 tion already seised of the advowson of the church, or 
 enabled to take it by grant. The power of the king and 
 the ])ishop remain undiminished."" 
 Appioptiaiion "''^ a|)pr()priation may be seven^d, and the chuich be- 
 
 may bi- . severed, couu^ disa|)pr(tpriat(', two ways; as (irsl, if the patron or 
 ap|)rf)priator presents a clerk, who is instituted and inducted 
 to flic |)ars()nage; for the incumbent, so instituted and in- 
 
 ' I m.mk. Coin. :]04. « See Dnho of VortUml v. Biiv^ham, 1 Hag. 156. 
 ' I Itlack. Com. .384. " Sec nole lo" Blacks., «H<e.
 
 OF RKCTORS, VICARS, AND PERPETUAL CURATES. 147 
 
 ducted, is, to all intents and purposes, complete parson; 
 and the appropriation being once severed, can never be 
 re-united again, unless by a repetition of the same solem- 
 nities. And wlien the clerk so presented is distinct from 
 tlie vicar, the rectory thus vested in him becomes what is 
 called a sinecure, because he hath no cure of souls, having 
 a vicar under him, to whom that cure is committed. Also, 
 if the corporation which has the appropriation is dissolved, 
 the parsonage becomes disappropriate at common law ; 
 because the ])erpetuity of person is gone, which is neces- 
 sary to su]>port the appropriation." 
 
 These sinecure rectories here spoken of had their origin Sinecure rec- 
 in the following manner. The rector, with proper con- '°"^^- 
 sent, had a power to entitle a vicar in his church to officiate 
 nnder him, and this was often done ; and by this means 
 two persons were instituted to the same church, and both 
 to the cure of souls, and both did actually ofhciate. So 
 that however the rectors of sinecures, by having been long- 
 excused from residence, are in common opinion discharged 
 from the cure of souls (which is the reason of the name), 
 and however the cure is said in the law books to be in 
 them habitualiter only, yet, in strictness, and with regard 
 to their original institution, the cure is in them actualiter, 
 as much as it is in the vicar, that is to say, where they 
 come in by institution ; but if the rectory is a donative, 
 the case is otherwise ; for coming in by donation, they 
 have not the cure of souls committed to them. And these 
 are most properly sinecures, according to the genuine sig- 
 nification of the word.^ 
 
 But no church, where there is but one incumbent, is No sinecure 
 
 properly a sinecure. If indeed the church be down, or ^vliereiiieveis 
 ''•.',, , . p . , . -ii i 1 • 1 but one incum- 
 
 the parish become destitute of parislnoners, without whicli bent. 
 
 divine offices cannot be performed, the incumbent is of 
 necessity acquitted from all public duty ; but still he is 
 under an obligation of doing this duty, whenever there 
 shall be a competent number of inhabitants, and the 
 church shall be rebuilt. And these benefices are more 
 properly depopulations than sinecures."^ 
 
 But sinecure rectors and rectories are now in the course Suppression of 
 of gradual suppression, and will soon have entirely passed sinecure lec- 
 away, for it is declared by the stat. 3 &: 4 Vict. c. 113,'' 
 that all ecclesiastical rectories, without cure of souls, in 
 the sole patronage of her Majesty, or of any ecclesi- 
 astical corporation, aggregate or sole, where there shall be 
 a vicar endowed or a perpetual curate, shall, as to all 
 
 « 1 Black. Com. 385. f Johns. 85; 3 Burn's E. L. 372. 
 
 s Ibid. '' Sect. 48. 
 
 l2
 
 148 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 such rectories as may be vacant at the passing of that act,' 
 immediately upon its so passing, and as to all others im- 
 mediately upon the vacancies thereof respectively, be sup- 
 pressed ; and that as to any such ecclesiastical rectory 
 ■without cure of souls, the advowson whereof, or any right 
 of patronage wherein, shall belong to any person or per- 
 sons, or body corporate, other than as aforesaid, the eccle- 
 siastical commissioners for England shall be authorised 
 and empowered to purchase and accept conveyance of 
 such advowson or right of patronage, as the case may be, 
 at and for such price or sum as may be agreed upon be- 
 tween them and the owner or owners of such advowson 
 or right of patronage, and may pay the purchase-money, 
 and the exj)enses of and attendant upon such purchase, 
 out of the common fund in their hands ; and that after the 
 completion of such purchase of any such rectory, and 
 upon the first avoidance thereof, the same shall be sup- 
 pressed ; and that upon the suppression of any such rec- 
 tory as aforesaid, all ecclesiastical patronage, belonging to 
 the rector thereof as such rector, shall be absolutely trans- 
 ferred to, and be vested in, the original patron or patrons 
 of such rectory. 
 Vicar oiioin ^\^c office of vicar, as distinct from that of rector, would 
 
 of. ° sufficiently appear from what has been already said of the 
 
 latter. The vicarwas originally little more than a stipendiary 
 curate of the present day, being a minister deputed or sub- 
 stituted by the spiritual coipoiation, who held the revenues 
 of the benefice, to perform the ecclesiastical duties in tlieir 
 stead. Usually, though not always, he was one of their own 
 body; and his stipend was entirely at their discretion, and 
 he was removable at their caprice. The evil results of 
 such a practice are apparent; and an ineffectual attemjitto 
 arrest the evil was made by a statute in the reign of 
 Richard II., but this was found to be insufficient; and 
 accordingly it was enacted by statute 4 Henry IV. c. 12, 
 that the vicar should be a secular ecclesiastic, perpetual, 
 not removeable at the caprice of the monastery ; that he 
 shoidd ])e canonically instituted and inducted; that he 
 should be sufficiently endowed at the discretion of. the 
 ordinary to do divine service, to inform the people, and to 
 Endowment of. keep hospitality. It is under this latter statute therefore 
 that our vicarages in (heir j)iesent form came into existence, 
 and the (•iuh)wments of them have usually been by a por- 
 tion of the glebe or hind belonging to the parsonage; and 
 a particular share ol' the tithes which the ajjpropriators 
 found it most troublesome to collect, and which are there- 
 
 ' August 11, 1840.
 
 OF RECTORS, VICARS, AND PERPETUAL CURATES. 149 
 
 fore generally called privy or small tithes; the greater or 
 predial tithes being still reserved to tlieir own use. But 
 one and the same rule was not observed in the endowment 
 of all vicarages. Hence some are more liberally, and 
 some more scantily endowed ; and hence the tithes of many 
 things, as wood in particular, are in some parishes rec- 
 torial, and in some vicarial tithes. 
 
 The distinction therefore between a rector and a vicar ])istinciion be- 
 at the present dav is this, that the rector has oenerallv the '^f " ^^^^°'^ 
 
 1 J '^ ••i»''»i unci vic3r» 
 
 whole right to all the ecclesiastical dues withm his parish ; 
 the vicar is entitled only to a certain portion of those profits, 
 the best part of which are absorbed by the appropriator, to 
 whom, if appropriations had continued as in their origin, 
 he would in effect be perpetual curate, with a fixed salary. 
 
 The parson, and not the patron of the parsonage, is of Patrons of 
 common right, the patron of the vicarage. The parson, vicarages. 
 by making the endowment, acquires the patronage of the 
 vicarage. For in order to the appropriation of a parson- 
 age, the inheritance of the advowson was to be transferred 
 to the corporation to which the church was to be appro- 
 priated ; and then the vicarage being derived out of the 
 parsonage, the parson, of common right, must be patron 
 thereof. So that if the parson makes a lease of the par- 
 sonage (without making a special reservation to himself 
 of the right of presenting to the vicarage), the patronage 
 of the vicarage passeth as incident to it. But it was held 
 in the 21st James I. that the parishioners may prescribe for 
 the choice of a vicar. And before that, in the 16th James I. 
 in the case of Sliorley and Unclerlnll, it was declared by 
 the court, that though the advowson of the vicarage of 
 common right is appendant to the rectory, yet it may be 
 appendant to a manor, as having been reserved specially 
 upon the approj)riation.'^ 
 
 And if there be a vicar and parson appropriate, the Uniting rectory 
 ordinary and parson appropriate may, in time of vacation and vicarage. 
 of the vicarage, re-unite the vicarage to the parsonage.' 
 
 From what has been already observed of the distinction perpetual 
 between rector and vicar, it will be easy to anticipate what curates. 
 remains to be said of a perj^etual curate ; for a perpetual 
 curate is, in many things, in the same position as was a 
 vicar previous to the stat. of Henry IV. before mentioned. 
 The fact is, that certain cases were exempted from the 
 operation of that statute ; for if the benefice was given 
 ad mensam monachorum, and so not appropriated in the 
 common form, but granted by way of union plena jure, it 
 was allowed to be served by a curate of their own house, 
 k 1 Bum's E. L. 79. ' Rogers's E. L. 892.
 
 150 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Their origin. 
 
 Perpetual 
 curacy is a 
 benefice. 
 
 What is a per- 
 petual curacy. 
 
 Three tests to 
 (Iclennine it. 
 
 consequently not a secular ecclesiastic ; and the like ex- 
 emption from the necessity of appointing a vicar was 
 sometimes also granted by dispensation, or on account of 
 the nearness of the church."' 
 
 At the dissolution of the monasteries, when appropria- 
 tions were transferred from spiritual societies through the 
 king to single lay persons, to them also, for the most part, 
 was transferred the appointment of the vicars in the 
 parishes where they were the appropriators, and in places 
 where, by means of exemptions, there was no regularly 
 endowed vicar; and as they were appropriators of the 
 whole ecclesiastical dues, the charge of providing for the 
 cure was laid on them, for neither in fact, nor in presump- 
 tion of law, nor liahitualiter , could a lay rector as such 
 have cure of souls ; they were consequently obliged to 
 nominate some particular person to the ordinary for his 
 license to serve the cure ; and such curates thus licensed 
 became perpetual, in the same manner as vicars had been 
 before, not removable at the caprice of the appropriator, 
 but only by due revocation of the license of the ordinary." 
 
 A perpetual curacy was formerly adjudged not to be an 
 ecclesiastical benefice, so that it was tenable with any 
 other benefice ; but now perpetual curacies are expressly 
 declared to be benefices within the meaning of that word, 
 in the Benefices Pluralities Act, and a perpetual curate is 
 consequently liable to its restrictions, in the same manner 
 as any other incumbent." 
 
 In some cases it miiiht be a matter of considerable difti- 
 culty to determine whether a place is a perpetual curacy 
 or a chapelry only ; and the more so, since for most prac- 
 tical purposes the qtiestion would be quite immaterial, and 
 therefore less likely to have been judicially determined ; 
 but as an aid in deciding certain other questions which 
 might arise, it might be important ; and the following are 
 the rules laid down by Lord Hardwicke for determining 
 whether it is per])etiial curacy or not. 
 
 To determine this, he says, consider it first as to the 
 rights and privileges appearing to belong to the chapel 
 itself; next as to the right of the inhabitants within the 
 district ; thirdly, as to the rights and dues belonging to 
 the curate of the chapelry. If all these rights concur to 
 show the iKilnre o\' u per[)etu'<il curacy, that must deter- 
 mine i(. 
 
 '" Sec 1 niack. Com. 307. 
 
 " Gibs. 019; Dithe o/' I'oriliuul V. liiiii^huiii, 1 Ilagg. llep. 162; Atlorneii- 
 General v. liiercion, 2 Ves. son. 427. 
 " .See 1 & 2 Vict. c. 106.
 
 OF RECTORS, VICARS, AND PERPETUAL CURATES. l.jl 
 
 As to the first consideration, it appears this is a chapel First test : 
 belonging to a country town. It has belonging to it all llights belong- 
 sorts of parochial rights, as clerk, warden, &c., all rights J,"^^ ^V ''^ 
 of performing divine service, baptism, sepulture, (fee, which 
 is very strong evidence of itself that this is not barely a 
 chapel of ease to the parish to which it belongs, but stands 
 on its own foundation, capella jxirocluaUs, as it is called 
 in Hobart ; and this difiers it greatly from the chapels in 
 London, which are. barely chapels of ease, commencing 
 within time of memory, which have not baptism or sepul- 
 ture ; all which sort of rights belong to the mother church, 
 and the rector or vicar of the parish, who has the cure of 
 souls, has the nomination, as the rector of St. James's or 
 St. iNIartin's has, but they have no parochial rights, which 
 clearly belong to this chapel. Nor have any of the inha- Right of sepul- 
 bitants of this chapelry a right to bury in the parish church ^"'^• 
 of Northop,P and that right of sepulture is the most strong 
 circumstance, as appears from 3 Selden's Hist. Tithes, fol. 
 column 1212, to show that it differs not from a parish 
 church. 
 
 The next circumstance to determine this question is the Second test: 
 right of the inhabitants, viz. to have service performed Riglits of the 
 there, and baptism, and christening, and having no right i""abitants. 
 to resort to the parish church of Northop for these pur- 
 poses, nor to any other place, if not here ; nor are they 
 or have they been rateable to the parish church of Northop. 
 It was determined in the case of Castle Birmidge, Hob. 
 QQ, that the having a chapel of ease will not exempt the 
 inhabitants within that district from contributing to repairs 
 of the mother church, unless it was by prescription, which 
 would then be a strong foundation that it must be con- 
 sidered as a curacy or chapelry. 
 
 Next, as to the rights and dues of the curate. All Tliirdtest: 
 these concur to show it to be a perpetual curacy, and not R'gl^'s of the 
 at all at the will and pleasure of the vicar ; for the curate 
 has always enjoyed the small tithes and surplice fees, nor 
 is there any evidence to show that the vicar has received 
 the small tithes. i 
 
 A nomination to a perpetual curacy may be by parol. Nomination to, 
 " Most regularly," Lord Hardwicke says, " it ought to ^ay^be by 
 be in writing;" but, he adds, " I do not know that it has P^"^" ' 
 been determined that it is necessary, A presentation to a 
 church need not be in writing, but may be by parol ; if 
 so, I do not see why a nomination to a perpetual curacy 
 may not be by parol." ' 
 
 1' The parisli to which it was contended that this was a chapel only. 
 •1 See Altorneij'General v. Brereton, 2 Ves, sen. 427. '' Ibid,
 
 152 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Is an interest 
 for life. 
 
 A perpetual curate has an interest for life in his curacy, 
 in the same manner and as fully as a rector or vicar, that 
 is to say, he can only be deprived by the ordinary, and 
 that in proper course of lav\^ ; and, as Lord Hardwicke 
 observes, it would be a contradiction in terms to say that 
 a perpetual curate is le movable at will and pleasure.'' 
 
 The ministers of the new churches to which separate 
 parishes or ecclesiastical districts have been assigned under 
 the provisions of the Church Building Acts, are perpetual 
 curates, so that they are severally bodies politic and cor- 
 porate, with perpetual succession ; and consequently may 
 accept grants made to them and their successors ; and 
 they are to be licensed and to be removable in the same 
 manner as other perpetual curates. This is also the case 
 with those ministers who are appointed to new districts or 
 parishes under the Church Endowment Act. And as 
 license operates to all such ministers in the same manner 
 as institution would in the case of a presentative benefice, 
 it would render voidable any other livings which such 
 ministers might hold, in the same manner as institution.* 
 
 Parties here 
 treated of. 
 
 Lecturer, olFice 
 of. 
 
 Section 9. 
 
 Of Ministers of Chapels of Ease, Proprietary 
 C/iapels, &)C. and of Lecturers. 
 
 The ecclesiastical persons above mentioned will be con- 
 veniently considered together in the present chapter, since 
 the law, so far as it is here treated of, that is, so far as it 
 atfects these ))ersons in their relation to the bishop and 
 to the incumbent of the parish, ai)plies equally, or very 
 nearly so, to all who being neither rectors, vicars, per- 
 petual nor stij)endiary ciuates, nor such ministers of new 
 ciun-ches as are to be legally docnied perpc^.tual curates, 
 oiiiciatc nevertheless in some church or chapel by virtue 
 of a license from the bishop or archbishop ; which license 
 is to these persons what institution is to the rector or 
 vicar. 
 
 Tlu- olhce of lecturer is always engrafted upon some 
 already existing ecclesiastical establishment, where the 
 spiritual wants of the parish are already in part supplied 
 by there being antecedently some person a])))oinled to per- 
 i'orui the rites and service of the church;" aiul, in its 
 
 • See Allniuey-Ceuercil v. Ihevcinii, 2 Ves. sen. 427. 
 
 « See 1 & 2 Will. 4, c. 38, s. 12 ; 2 & 3 Vict. c. 49, s. 2 ; 6 & 7 Vict, 
 c. 37. 8. 12. 
 " 10 Kast, 112.
 
 OF MINISTERS OF CHAPELS AND LECTURERS. 153 
 
 strictest sense, a lecturer would be a spiritual person Extended 
 licensed to read the service in a parish church at some '"«a"'''g of 
 other times and on some other occasions than those when "^ ^°' ' 
 the service is performed by the incumbent or his curate ; 
 but as the minister of the parish has the same ecclesiastical 
 rights out of his church as in it, and throughout his whole 
 parish, and is entitled to perform the service in every con- 
 secrated building in his parish,'' a lecturer would be in the 
 same position as regards him, whether he was to officiate 
 in the parish church or in some chapel situate within the 
 parish. Consequently, that term has been often used as 
 denoting all spiritual persons, licensed as such to officiate 
 at some time independently of the minister, whether in 
 the parish church or in some chapel within the parish. 
 But these cases must not be confounded with those of 
 ministers of churches or chapels which, although in some 
 sense within the parish, have a separate ecclesiastical dis- 
 trict assigned to them." 
 
 As to the foundation of such offices, it can only be Foundation of. 
 done with the assent of patron, incumbent and ordinary, what consent 
 for as it was said in argument in the case of The King v. necessary. 
 Bisfiop of Exeter,^' it would be productive of great public 
 inconvenience if every person who chose to dedicate a 
 small freehold in a parish to the use of a lecturer, could 
 therefore appoint whom he pleased to preach in the parish 
 church without the assent of the incumbent. By the 
 same rule, any number of persons might do the same to 
 the entire overthrow of all order and discipline in the 
 Church. And it was by that case completely established, 
 that it was not competent to any person to engraft a 
 lectureship by comj^ulsion on the Church ; for that other- 
 wise it might be done for the most capricious purposes, 
 and in abuse of the regular institutions of the Church, 
 and might overthrow the whole establishment. 
 
 In consequence of the objection by the vicar, in whose immemorial 
 parish a lectureship was founded, the Bishop of Exeter custom, 
 refused to license the lecturer, who thereupon applied for 
 a mandamus to compel him. It was objected that the 
 period when this lectureship was founded, anno domini 
 1658, proved not only that it was not immemorial, but 
 that it could not have a legal origin for want of one of 
 the proper parties to assent to the endowment; for that 
 this, together with other sees in the kingdom, was at that 
 time vacant. Upon which Lord Ellenborough says, " This 
 cannot exist by immemorial custom, which the law pre- 
 sumes to have had a legal commencement, because it is 
 
 ^ 2 Ilagg. R. 46. X See Book III. Chap. I. y 2 East, 462.
 
 154 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Express act of 
 parliament. 
 
 Endowment 
 what proof of 
 custom. 
 
 Incumbentmay, 
 in all cases, ob- 
 ject lo any par- 
 ticular appoint- 
 ment. 
 
 traced to its commencement in 1 658, and it could not then 
 have had a legal commencement ; because, even if the 
 bishop, the rector and the vicar could by their joint con- 
 sent engraft it on the Church, there were no such persons 
 then at all existing having competent authority to accept 
 the endowment on the part of the Church.^' In another 
 case,"* the circumstance that the lectureship was not en- 
 dowed, but depended upon voluntary contributions, was 
 considered sufficient proof that it could not have existed 
 by immemorial usage ; and so in another case,'' where 
 there was no endowment, but the lecturer received a cer- 
 tain sum from the parish officers out of the money raised 
 by the poor rates ; which was like the case of a rank 
 modus, and carried upon the face of it evidence of having 
 had a commencement since the establishment of poor rates, 
 and consequently within the time of legal memory. 
 
 Besides immemorial usage, a lectureship may be esta- 
 blished in a parish by express act of parliament ; and this 
 is the case with the lectureships in several of the metropo- 
 litan parishes. 
 
 If the lectureship be endowed, that circumstance, accord- 
 ing to Lord Mansfield,*" affi^rds a strong argument to 
 support the custom, and to show that it had a legal com- 
 mencement ; but if the period of the endowment and the 
 commencement of the usage under it could be shown, the 
 argument would be of no force. 
 
 Lord Northington appears to have considered that a 
 mere arbitrary agreement between patron, parson and 
 ordinary, to a foundation of a chapel of ease in the parish, 
 could not be supported ; but that if such an agreement 
 included a com})ensation to the parson, it might be good.*' 
 Upon which opinion it is observed by Abbott, C i.:'^ 
 " Perhaps that expression requires some quaHfication ; and 
 where nothing is taken from tlie income o{ the incumbent, 
 the consent of the parson, patron and ordinary, without a 
 compensation, may be sufficient." 
 
 The effect of an endowment and immemorial custom 
 proved, woiUd be, that the bishoj) could not refuse to 
 license, or the incumbent refuse his assent to an ajipoint- 
 ment generally ; but as to their right to refuse in the case 
 of any particular person who might be appointed, that, 
 whether the foundation were j^roved to be legal or not, is 
 undoubted, uidess the innnemorial usage proved be that 
 
 ' Thf Kiiii: V. liishnp of Kicler, '2 East, 462. 
 
 * The hiufi V. The liiihop of London, 1 T. 11. 331. 
 
 '' The Kiiifr V. Field and others, 4 T. K. 126. 
 
 '^ I Term R. 333. •' 2 Ambl. 532. e See 4 Bam. & Cres. 568.
 
 OF MINISTERS OF CHAPELS AND LECTURERS. 155 
 
 the lecturer should be appointed independently of any 
 assent of" the incumbent ; for Lord Mansfield says, nothing- 
 can be so clear as that no person can use the pulpit of 
 a rector unless he consents ; or, in other words, no man 
 can be a lecturer without such consent ;'^ and the mere 
 fact of a number of successive nominations, without any 
 objection by the incumbent, cannot, it appears, oust him 
 of his right ; " so that in ordinary cases, even where the 
 lectureship is endowed, and has a legal origin, the assent 
 of each successive incumbent would be necessary to allow 
 the lecturer to officiate.'' 
 
 And, notwithstanding the license of the bishop, the Even though 
 incumbent may still refuse to allow the clergyman to offi- |!'^ bishop has 
 
 ** Oi/ llCGnSGCi 
 
 ciate. In the case of a chapel of ease within the parish, 
 Abbott, C. J., says,' "•' It appears to me that no person can 
 have a right to compel the vicar of the parish to allow 
 another, although licensed by the bishop, to officiate in a 
 public chapel, erected for the ease of the inhabitants of a 
 portion of the parish, and that no such person can officiate 
 without the consent of the vicar." And the words of 
 Mr. Justice Bayley, in his judgment in the same case, are 
 most decisive and important : " My opinion," he says, " is 
 founded upon this general position, that you have no right, 
 without the concurrence of the patron and incumbent, to 
 interfere either Avith the temporal rights or spiritual obli- 
 gations of the vicai". It has been conceded that if you 
 were to interfere with the temporal rights of the vicar, the 
 claim of a right of nomination, as resulting from the en- 
 dowment, could not be supported ; but it was argued that 
 its interference with the spiritual obligations of the vicar 
 did not stand upon the same footing. It appears to me 
 that if the vicar has the cure of souls coextensive with the 
 whole limits of his parish, that casts a very serious and 
 important duty upon him ; and he has a right, and is 
 bound, as the conservator parochice, to take care that no 
 person shall deliver doctrine in that parish except under 
 his sanction and authority. It is said that the bishop will 
 never appoint an unfit person ; but if the vicar has the 
 cure of souls in the parish, he has a right to act on his 
 own judgment, and is not bound to trust to the judgment 
 of the ordinary." "" And the same was assumed to be law 
 in the case of the King v. The Diskop of Exeter, above 
 mentioned, where it was mentioned as an additional rea- 
 son for refusing the mandamus, that it might, after all, 
 
 ' 1 T. R. 333. s 2 Eden, 365. '' See post, Duties of Ministers. 
 
 ' Farnicorih v. Bishop of Cliestev, 4 Barn. & Cres. 555. 
 k 4 Barn. & Cres. 570.
 
 156 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 License by the 
 bibhop. 
 
 be nugatory ; for that it appeared that the vicar's consent 
 
 was.-also withheld; by which of course it is assumed that 
 
 he might disregard the hcense of the bishop. 
 
 How far the in- But supposing the bishop to have Hcensed a lecturer to 
 
 cumbent might officiate where there was a proper endowment and founda- 
 
 ari)itiarily re- ^j^^^^ jj. j^g^y |^g doubtful how far the incumbent could, 
 
 arbitrarily and without reason assigned, refuse his consent. 
 The case does not seem to have occurred ; but that which 
 is afterwards said as to a bishop refusing to license, would 
 probably be applicable to the case of an incumbent refusing 
 to assent. The Court of Kino's Bench would see that the 
 incumbent had some grounds for refusal, although not com- 
 pelling him to state them fully or precisely ; but such a 
 case would be less likely to occur, since the bishop would 
 probably consider it a sufficient cause for refusing to 
 license, that the lecturer had not obtained the assent of 
 the incumbent; and this, in fact, was the sole alleged 
 reason for the refusal of the bishop in the case of The King 
 V. The Bishop of Exeter. 
 
 By the 19th section of the last Act of Uniformity,' it is 
 enacted, that no person shall be received as a lecturer, or 
 permitted, suffered or allowed to preach as a lecturer, or 
 to preach or read any sermon or lecture in any church, 
 chapel or other place of public worship within this realm 
 of England, or the dominion of Wales, and town of Ber- 
 Avick-upon-Tweed, unless he be first approved and there- 
 unto licensed by the archbishop of the province, or bishop 
 of the diocese." And as Lord Ellenborough says,'" " Where 
 a new institution of this kind was to be superinduced upon 
 the old and pre-existing foundations of the church, it 
 became perhajis the wisdom, it certainly was congenial with 
 the jealousy of the times in which this statute was passed, 
 which were recently after the civil and political troubles 
 and the contentions on matters of religion by which the 
 country had been agitated, to piovidc, ' that where a lec- 
 turer was to be admitted into any church or chapel, the 
 bishop shoidd be satisfied that he was a person to whom 
 the lecturing and teaching of the congregation coidd be 
 safbly connnittcd.' " 
 
 The leading case, as an authority to show the power of 
 th(! bishop to refuse to license, is that of The King v. The 
 Arclihishoj) of (J<interhitry and JSishop of London." In 
 that i-ase the bishop had stated upon affidavits, " that his 
 sole reason for refusing to license the Rev. R. P. to the 
 
 Friday Lectureship at the Church of St. Bartholomew, 
 
 El ' . . . . , . . ' 
 
 xcMange, was a conscientious opinion and conviction, 
 
 Dishop may re 
 fuse to license. 
 
 I 13 & 11 Car. 2, r. 4. 
 
 '" 15 East, 142. 
 
 » 15 t:ast, 117.
 
 OF MINISTERS OF CHAPELS AND LECTURERS. 157 
 
 arising from every circumstance which, after diligent in- 
 quiry, he had been able to learn concerning the said R. P.'s 
 conduct and ministry as a clergyman, that he could not, . 
 consistently with his duty as Bishop of London, approve What would be 
 of him as a fit person for such lectureship ; that through sufficient reason 
 the whole course of this transaction he had acted accord- fo[ hirretusau"^ 
 ing to the best of his judgment, merely from a sense of the 
 duty imposed upon him by his office, to approve of no one 
 whom he did not in his conscience think to be a fit person ; 
 that the said R. P. had been repeatedly admitted before 
 him with a view to his being approved and licensed to 
 preach the Friday Morning Lecture at St. Bartholomew ; 
 and that he has made diligent inquiry respecting the con- 
 duct and ministry of the said R. P. as a clergyman ; and 
 that being convinced from such inquiry that the said R. P. 
 was not a fit person to be permitted and allowed to preach 
 the said lecture, he had conscientiously, and according to 
 the duty of his office as Bishop of London, and for no 
 other motive or reason whatever, decided and determined, 
 after the said R. P. had been so admitted before him, and 
 after having heard him, that he could not approve or license 
 him thereunto ; and that such decision was formed by him, 
 and was still adhered to, upon a full and deliberate consi- 
 sideration of all the circumstances he had been able to 
 learn respecting the said R. P. ; and that in forming such 
 decision, and through the whole of this transaction, he 
 had acted according to the best of his judgment, and from 
 a conviction that the duty imposed upon him by his office 
 required that he should not approve of or hcense any one 
 to a lectureship whom he did not in his conscience believe 
 to be a fit person to fill the office." 
 
 This statement by the bishop was deemed by Lord Ellen- 
 borough to be sufficient; and he refused to grant any man- 
 damus. " If the bishop," he says, " had not in this case 
 inquired so as to enable himself to give a considerate ap- 
 probation or refusal on the subject, it might have been a 
 fit case for the interference of the court to fuither such 
 inquiry. But such a statement as that made by the bishop Extent to which 
 is conclusive, unless the court were prepared to decide that '^'^ Court of 
 the function of approbation is vested in them, and not in J^^fj fnSert. 
 the bishop ; and that notwithstanding the conscientious 
 judgment, which upon a full and deliberate consideration 
 of the subject he has come to, and his declared conviction 
 that he would be actino; in a manner whoUv inconsistent 
 with the duties of his episcopal function, and the trust re- 
 posed in him by the legislature, if he did license him, we 
 should nevertheless grant a mandamus to the bishop to
 
 158 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 say, ' Approve, though you do not approve ; take our 
 conscience to guide you, and not your own.' There is no 
 instance of such an appHcation for a mandamus to compel 
 a bishop to approve ; we can only compel him to inquire ; 
 we cannot divest him of that function which the legislature 
 has for wise purposes vested in him, and transfer it to our- 
 selves : all that the court can ever do is to see that the 
 function is well exercised by him in whom it is so vested ; 
 and there never yet has been an instance of a mandamus 
 to compel a bishop to approve and license a lecturer, where 
 the question turned on the approbation or disapprobation 
 of the bishop as to the fitness of the applicant. It has 
 been urged, however (and much stress was laid upon it in 
 the argument), that it was the duty of the bishop to have 
 instituted his inquiry upon the subject, in the manner and 
 by tlie means usually adopted in courts of law, that is, by 
 :\iode in wliich the formal production of the charges made against the ap- 
 tlie bishop may pUcant in a Judicial course, and by a public and solemn 
 refusal. ^ °'^ hearing of the several parties, their proofs and witnesses. 
 But, in the first place, what power has the bishop to compel 
 the attendance of parties and witnesses ? what power has 
 he to administer an oath 1 or what word is there in the act 
 of parliament that prescribes the mode by which he shall 
 attain a conscientious satisfaction on the subject. It only 
 requires him first to approve, that is, before he licenses j 
 and in so doing it virtually requires him to exercise his 
 conscience duly informed upon the subject; to do which 
 he must duly, impartially, and effectually inquire, examine, 
 deliberate, and decide. If the court have reason to think 
 that any thing is defectively done in this respect, it will 
 interpose its authoritative admonition. The mandamus to 
 license, if the party shall be found to be a fit person, is a 
 solemn and peremptory call upon the bishop to adopt the 
 requisite means for duly informing his conscience, in order 
 to the correct and effectual exercise of this most important 
 duty. What scales have we to weigh the conscience of the 
 bishop '. And how are we to know whether he properly or 
 inqtiopcrly disnp])rovcs ? May he not properly disapprove 
 of the candidate for a lecturer's license, on account of 
 many nuittcrs which cannot be conveniently stated to a 
 court of justice? May he not disa})i)rove for matters 
 within ins own personal observation and knowledge : for 
 the h;d)its of lifn ;iiiri convcM'sation of the ])erson, whicli 
 might be known to him from residing in the same university 
 or society with him ; from his conduct in life, down perhaps 
 to the very time when the bishop is called upon to signify 
 his approbation? Is he to exclude his own knowledge,
 
 OF MINISTERS OF CHAPELS AND LECTURERS. 159 
 
 the most material of any ? Does the law say upon what 
 proof he is to act ? or that he is to have witnesses upon 
 oath to the facts by which his judgment is to be guided ? 
 What authority has he to compel the attendance of wit- 
 nesses before him ? The word of the statute is approve ; 
 and he must exercise that ajjprohation according to his con- 
 science, upon such means of information as he can obtain ; 
 and every thing that can properly minister to his con- 
 scientious approbation or disap])robation, and fairly and 
 reasonably induce his conclusion on such a subject, though 
 it might not be evidence that would be formally admitted 
 in a court of law, may, I am of opinion, be fitly taken into 
 consideration."'" 
 
 It will be observed that the statute speaks of a license License from 
 from the bishop or archbishop ; and it was for that reason t'le archbishop. 
 that the mandamus in the above case was applied for 
 against both those parties. But Lord Ellenborough says, 
 " respecting the archbishop, I have no doubt that, as pro- 
 vincial and metropolitan, he has a function to exercise upon 
 this subject. My reason for saying so is, because the act 
 appears to me to have distinctly said so. I do not say 
 that the application should go in inverso ordine to the arch- 
 bishop in the first instance, and afterwards to the bishop ; 
 or that it is to go from the one to the other in the nature 
 of an appeal : but I think it is competent to the party, if 
 he please, to apply to the archbishop, as well as to the 
 bishop, for the license. The answer which has been given 
 is, that the instances that have occurred, to the knowledge 
 of the archbishop's officers, have been only in cases within 
 the archbishop's own peculiar diocese, which he has distinct 
 from liis provincial jurisdiction. But that he has exercised 
 the function only in those instances, merely proves that 
 such applications only have been made : it does not prove 
 negatively that which would have appeared if there had 
 been applications actually made to him for his interference 
 from others within his province at large, and rejected : 
 viz. a refusal of his interference, and an acquiescence (if 
 nothing appeared to the contrary) in that refusal; but 
 there is no such instance. Considering, however, tiiat it 
 was in a late stage of the business that the archbishop was 
 introduced at all into this rule ; and not being satisfied 
 that it is right to complicate in the same rule the question 
 of a mandamus to the bishop and to the archbishop, in 
 the sort of alternative mode which is held out in the terms 
 of this rule ; and as the question is quite a new one as it 
 
 "' This extract from the judgment is long-, but it would be impossible to lay 
 down any rule for guidance in such cases in language more clear and perspicuous.
 
 160 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 respects the archbishop ; I think, if there be anj^ applica- 
 tion for a mandamus to be addressed to the archbishop, 
 that it ought to be a substantive apphcation standing upon 
 its own ground." 
 Pouer to appeal No such substantive apphcation appears to have been 
 to archbishop „vade, but the words of Lord EUenborougli, tliat tlie arch- 
 bUhop! ^QiKsre. bishop had a function to exercise as provincial and metro- 
 politan, would imply that he considered there might be an 
 appeal from the bishop refusing to license, to the archbishop 
 of the province. 
 
 The more ancient lectureships seem to have had their 
 foundation in the pious intentions of individuals or of 
 parishes; in nujdern times, they have frequently been es- 
 tablished by act of pai liament, in order to afford the inha- 
 bitants of poj)ulous parishes more frequent opportunities of 
 attending the public service of the church. 
 Election and In London and other jiopulous places, wliere lectureships 
 
 nomination of ]iave been established, it has been very usual for the lec- 
 cctuiers. tiu'er to be chosen by election, sometimes by tlie vestry or 
 
 chief inhabitants, and sometimes by the inhabitants at 
 large ; and it has frequently happened that contests have 
 arisen as to the class of persons in whom the right of elec- 
 tion is vested. 
 
 And with respect to all such lectureships as depend 
 upon the voluntary contribution of the inhabitants, or 
 which are ])aid out of the rates, &c., it seems reasonable 
 the election should be with those by whom the stipend is 
 paid, and who migiit otherwise j)erhai)S refuse to contri- 
 bute ; but any election by them would be nugatory without 
 the assent of the incumbent. Other cases, where there is 
 an endowment, may de])end upon inmiemorial usage or act 
 of parliament, but exccj)t in such cases the right to nomi- 
 nate would, as it seems, be in the incumbent. 
 Nomination to As to cliapels of case, it is clearly laid down by Lord 
 cliapels of ease. JVortliiugton as undoubted law, that whenever a chapel of 
 ease is erected, the inciunbent of the mother church is 
 entitled to ncHuinate the minister; unless there is a special 
 agreement to the contrary, which gives a compensation to 
 the incumbent of the mother church : a mere arbitrary 
 agreement between ))atr<)n, |)arson and ordinary, without 
 such a com|)i'nsation, is not to be sii|)poi tetl. in the case 
 of j)r(!Scription, (^very thing is presumed to have been pro- 
 per. An agreement with, or com))ensation to, the parson 
 IS supposed." Hut in cpioting (his dictum of Lord North- 
 ington. Abbot, (Ij. says, perhaps that expression retpiires 
 some qualification ; and where nothing is taken from the 
 
 " 2 Ambler, 531.
 
 OF MINISTERS OF CHAPELS AND LECTURERS. IGl 
 
 income of the incumbent, the consent of the parson, patron 
 and ordinary, without a compensation, may be sufficient. 
 But still the doctrine which appears to have been the 
 foundation of the decision is distinctly this : that it is un- General rigl.i of 
 doubtedly law, that wherever a chapel of ease is erected, incumbent to 
 the incumbent of the mother church is entitled to nomi- "'^""""'»"^- 
 nate the minister, unless there is a special agreement to 
 the contrary, to which parson, patron and ordinary must 
 be parties. The cases of chapehies made distinct, and to 
 which districts have been attached under the Church Build- 
 ing Acts, are of course special exceptions. 
 
 Lord North ington further says, the consecration is ex- 
 press as a chapel of ease ; that is sufficient to support the 
 vicar's right to the nomination. Afterwards, in the same 
 instrument, the archbishop gives the nomination to tlie 
 inliabitants of Armley and Wortley, which he could not 
 do of his own authority ; and it is observable, he gives it 
 to the most improper people, as they were sectaries. There 
 is no jn-etence in this case of any agreement between patron, 
 parson and ordinary, either with or without a compensa- 
 tion to the vicar. The declaration of the vicar at the time 
 of the consecration could not bind his successors, if it did 
 himself : nothing he could do would have that effect, unless 
 it was by a proper deed luuler his hand. The nominations 
 to the curacy by the inhabitants are so many instances of 
 usurpation, but they did not take away the right of the 
 succeeding vicar to nominate upon a vacancy. 
 
 No person is to be received or admitted as lecturer or Qualifications of 
 reader in divinity, except he be licensed by the bishop or ^ 'ect"'f''- 
 archbishop of the diocese where he is to be placed, under 
 their hands and seals ; or by one of the universities, under 
 their seal ; and except he shall first subscribe to the three 
 articles concerning the king's supremacy, the Book of 
 Common Prayer, and the Thirty-nine Articles ; and any 
 bishop licensing without such subscription shall be sus- 
 pended from giving licenses to preach for twelve months; 
 and by 37th canon, none licensed as above are to be 
 jiermitted to preach, &:c. or exercise any ecclesiastical func- 
 tion, unless they first consent and subscribe to the three 
 articles above-mentioned, in the presence of the bishop 
 of the diocese wherein they are to exercise such functions, 
 &c. 
 
 By 13 & 14Car. 2, c. 4, s. 19, (the lastAct of Uniformity,) 
 no person shall be allowed or received as lecturer, untilhe 
 shall, in the presence of the archbishop of the province, 
 bishop of the diocese, or guardian of the spiritualties, in 
 case the see be void, read the Thirty-nine Articles men- 
 
 M
 
 162 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Powers of trus- 
 tees of a lec- 
 tureithip. 
 
 Ijcensc l)y the 
 bisliop is rcvo- 
 <ril)lf. 
 
 tioned in the statute, 13 Eliz. c. 12, with declaration of his 
 unf'eioned assent to the same ; and every person who shall 
 be appointed and received as a lecturer, kc. shall, the first 
 time he preaches, (before his sermon,) openly and publicly 
 and solemnly read the common prayers and service ap- 
 pointed to be read for that time of day, and then and there 
 iniblicly and openly declare his assent unto, and approba- 
 tion of the said book, and to the use of all the prayers, rites 
 and ceremonies, forms and orders, therein contained; and 
 shall, upon the first lecture day of every month afterwards, 
 as long as he is lecturer, then openly, &c. read the common 
 prayer, &;c. and after such reading openly, &c. before the 
 congregation there assembled, declare his unfeigned assent 
 unto the said book as aforesaid ; and, neglecting or refus- 
 ing to do so, shall be disabled to preach the said sermon 
 in the said or any other church, kc. until he shall openly, 
 &c. read the common prayer and service appointed by the 
 said book, and conform in all things therein prescribed, 
 according to the purport and true intent of the act. 
 
 County and borough justices are empowered, upon the 
 certificate of the ordinary, to commit any person, disabled 
 as last mentioned, preaching any sermon or lecture, while 
 he shall continue so disabled, to the county or other gaol 
 for three months." 
 
 Trustees of a lecture to be preached at a convenient hour 
 may appoint what hour they please, and may vary tlieir 
 appointment ; ^' but this must be subject to a provision of 
 the above statute,'' which declares that when any sermon 
 or lecture is to be preached, the common prayers and ser- 
 vice in and by the said book ajipointed to be read for that 
 time of the day shall be openly, publicly and solemnly 
 read by some priest or deacon in the church, chapel, or 
 place of jiublic worship, where the said sermon or lecture is 
 to be preached, before such sermon or lecture be preached, 
 and that the lecturer then to preach shall be present at the 
 reading thereof. If therefore the trustees were to appoint 
 a time for the lecturer to ]">reach, when it would be imj)os- 
 sible for the service to be first read, it seems that he might 
 refuse. ■■ 
 
 It has been decided that a license granted by the bishop 
 
 to a clergyman, to olliciate as minister of a i)roprietaiy 
 (•hapel, is revocable at the will of the bishop, and that 
 without a!iy particular cause assigned ; but that he has an 
 absolute ri<iht of Jiis own exclusive discretion to revoke 
 
 " Sume act, sect. 21. '' The King v. Batlmnl, 2 lilack. Rep. 210. 
 
 ■I Sect. 22. 
 
 "■ Sec a c»sc nicnlioncil in 2 lium'sK. L. 401, from Scrjt. Hill's MS. notes.
 
 OF MINISTERS OF CHAPELS AND LECTURERS. 163 
 
 sucli license, and that the exercise of such discretion is not 
 examinable in the Ecclesiastical Court/ After what has 
 been already observed as to the granting a mandamus to 
 the bishop to compel him to license, and the words of Lord 
 Ellenborough in the case of The King against The Bishop 
 of London and Archhishoji of Canterbury, this case appears 
 a very strong one ; for Lord Ellenborough appears to have 
 considered it necessary for the bishoj) to state some reason 
 for his refusal ; and the statement which satisfied the court 
 has been already mentioned ; but in the case of a revoca- 
 tion, which would seem to i-equire stronger grounds to 
 support it. Dr. Lushington considers that a proper motive 
 in the bishop is to be inferred without inquiry. Dr. Lush- 
 ington expressly says, that the mode in which the license 
 is worded' could not aftect the law of the case ; and there 
 seems to be no intelligible principle upon which the case 
 of a minister of a proprietary chapel would be distinguish- 
 able from that of any of those ministers whom we have 
 spoken of in the present chapter. 
 
 The observations of Dr. Lushington are principally con- 
 fined to the case immediately before him ; but some general 
 remarks would appear to carry the case much further, and 
 make it applicable to the case of all clergymen, who beino- 
 neither rectors, vicars, perpetual or stipendiary curates, 
 officiate by virtue of the bishop's license. " I think," he 
 says, " that the principle on which the law of the Church 
 of England stands in this matter is this : no clergyman 
 whatever of the Church of England has any right to offi- 
 ciate in any diocese, in any way whatever, as a clergyman 
 of the Clun-ch of England, unless he has a lawful authority 
 so to do ; and he can only have that authority when he 
 receives it at the hands of the bishop, which may be con- 
 ferred in various ways : as by institution (in the case of a 
 benefice) ; by license, where the party is a perpetual curate; 
 and by license, when the clergyman officiates as stipendiary 
 curate. I do not think it requisite to consider what is done 
 in the case of rectors, vicars and perpetual curates, because 
 these persons are now all regulated by the law of the land. 
 The point I have to consider is this : what is the nature of 
 a proprietary chapel, unconsecrated, and what is the nature 
 of a license granted by the bishop to the minister of such 
 a chapel ? by what power and authority he grants such 
 license; and whether, on the ground of having granted 
 such license, he is estopped from remedy by himself, ex- 
 cept in the mode required by law ? 
 
 « Iloclgson V. Dillon, 2 Curteis, 391. 
 
 ' The license in this case was absolute, and not durante bene placito. 
 
 m2
 
 164 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Proprietary " I need not state that the ancient canon law of this 
 
 chapels. country knew nothing of proprietary chapels or micon- 
 
 secrated chapels at all. The necessity of the times, the 
 increase of population, and want of accommodation in the 
 churches and chapels in the metropolis, and other large 
 towns, gave rise to the creation of chapels of this kind, and 
 to the licensino- of ministers of the Church of Enoland to 
 perform duty therein. The license granted by the bishop 
 on such occasions emanates from his episcopal authority. 
 He could not, however, grant such a license without the 
 consent of the rector or vicar of the parish," for the cure of 
 souls belongs exclusively to the rector or vicar. Here is 
 the consent of the rector obtained, not to an ordinary license 
 to a stipendiary curate, but to confer a nondescript title, 
 that of minister of an unconsecrated chapel. 
 
 " The bishop, therefore, confers this license by virtue of 
 his episcopal authority. What is to prevent his revocation 
 of it at any time he may think fit ? Is this a license which 
 will not only be good against him, but is it to prevail 
 against any successor who may come after him ? It is a 
 license granted only from the exigency of the moment, and 
 for no other reason whatever. Supposing, by new powers 
 boino- oiven under the Church Buildino- Acts, other churches 
 and chapels were to be consecrated according to the law 
 of the Church of England throughout the land, would not 
 the necessity for these unconsecrated chapels cease; and, 
 under such circumstances, could the grantee of such a 
 license continue to officiate, in direct opposition to the 
 bishop ? 
 Query, can a " It is not nccessary to examine the expediency of vesting 
 
 bishop by any sucli a powcr in the bisliop ; the cpiestion is, what is the 
 himselfTrom ^^^^ ' ^ think it is incumbent upon those who assert the 
 ilie power of alUrmativc, that is, who assert that it is in the power of 
 revoking. l\^^. l/ishop to confer a perauinent right, as against him- 
 
 self, to show that such a power has been conferred by the 
 ecclesiastical law. I am of opinion that no such power 
 has been granted, that it is not even in the powcr of the 
 bislio]) himself to estop himself; but that he is bound, 
 according to the exigency of the case, to revoke such a 
 license, if he thinks that the good of the Church requires it. 
 " I have heard no authorities (;ited on one side or the 
 other, which r((|uire the exauiinatiou of the court to ascer- 
 tain their ;ip]tli(';d)ilit.y ; and on (jencral prhtciplcs, I am of 
 opinion that the hisliop has aulhority to revoke, such a license. 
 
 " Hut it ilocs not appear tlial the roiisciit of tlic rector, i\c. is nccessary to 
 enable tlic liisliiip to license, but only tluil a license is nugatory, if that consent 
 is aflcrwaiils wiihiicM. See uiitf.
 
 OF MINISTERS OF CHAPELS AND LECTURERS. 165 
 
 as this, according to his own discretion ; he has exercised 
 that discretion in this case, a discretion not examinable by 
 me." 
 
 Section X. 
 Of Stipendiary Curates. 
 
 Curate is a word of ambiguous signification. In its first Curates. 
 and most proper sense it denotes any minister who has the 
 cure of souls. In its second and most common sense it 
 signifies a ministei', who, not being either rector or vicar, 
 exercises the spiritual office in a parish under either of 
 those persons. Where all the profits of the benefice, the 
 tithes both great and small, are appropriated, so that both 
 the rector and the vicar are or may be lay, there the curate 
 is perpetual, being the clerk employed to officiate by such Perpetual, 
 impropriators, and consequently he is in the same situation 
 as a vicar was formerly ; and such are those of whom we 
 have spoken in a former section. But where the rector or 
 the vicar are ecclesiastical persons, and have the tithes, 
 either great or small, there the curate is temporary only, 
 that is to say, removable upon divers causes and contin- 
 gencies; and he is usually termed stipendiary, as being gji^enjia,. 
 employed by such rector or vicar at a fixed stipend, either 
 as an assistant to him in the same church, or as officiating 
 for him in his absence in the parish church ; or it may be 
 in a chapel of ease within the same parish, belonging to 
 the mother church. 
 
 For the purpose of becoming a curate in any diocese the ]\iust ^g 
 license of the bishop of such diocese is necessary ; for it licensed, 
 is directed' that no curate or minister shall be admitted to 
 serve in any place, without examination and admission of 
 the bishop of the diocese or ordinary of the place having 
 episcopal jurisdiction under his hand and seal; having 
 respect to the greatness of the cure and the nieetness of 
 the party. Before this license is granted to tiie curate, he Reriuisiics be- 
 must subscribe the Thirty-nine Articles and the three ar- fore license will 
 tides of the thirty-sixth canon ; must declare his con- ^^ grafted. 
 formity to the United Church of England and Ireland ; 
 and must take the oaths of allegiance, supremacy and 
 canonical obedience; which latter is — " I, A. B., do swear 
 that I will pay true and canonical obedience to the Lord 
 
 Bishop of in all things lawful and honest. So help 
 
 me God." He must also send to the bishop the following 
 papers : 
 
 s Canon 48.
 
 166 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 ■ 1st. A nomination, varying in form according as the 
 incumbent nominating may be resident or nonresident.^ 
 2nd. Letters of orders of deacon and priest. 
 3rd. Letters testimonial, to be signed by three beneficed 
 clergymen. "^ 
 
 It is also recommended that the clergyman nominating 
 be not a subscriber to the testimonial. On the receipt of 
 these papers the bishop, if he be satisfied with them, will 
 either appoint the clergyman nominated to attend him to 
 be licensed, or issue a commission to some neighbouring 
 incumbent. The license will be sent by the bishop to the 
 registry office, and from thence forwarded to the church- 
 wardens. 
 Serving in the A curate is expected to remain in the diocese of the 
 diocese. bishop by whom he was ordained for two years at the 
 
 least; and if he should desire to remove into another dio- 
 cese before the expiration of such term, it is proper that 
 he should apply to the bisliop of that diocese, and also to 
 the bishop who ordained him, for their sanction, stating 
 the special circumstances that induce him to apply." 
 The law as to With the exception of what has been here mentioned, it 
 siipendiaiy cu- may be Stated that the whole law respecting stipendiary 
 raters regulated ^.m-^^^gg^ f\^Q mode of their appointment, and the stipend to 
 c. 106. ' be paid to them, is entirely dependent on and regulated by 
 
 the recent statute'' passed in the year 1838; by which act 
 the former statute,"^ by which such appointments and sti- 
 pends were regulated, is altogether repealed. Several pro- 
 visions, however, of the former act being transferred to and 
 consolidated with the present, little else therefore will be 
 necessary than here to give a digest of that part of the 
 statute which relates to this subject.'' 
 Cases where As to those cases in which a curate must necessarily be 
 
 bishop may ay- apiiointcd, and may be ai)pointed by the bishop absolutely, 
 
 point or rcciuirc •/ •' * i *! 4. 
 
 Ihe appointment '^ IS cmictcd, that— 
 
 of a curate. 1. It any Spiritual i)erson, holding any benefice, does 
 
 Incumbent non- Hot actually reside thereon nine months in each year (un- 
 lesideni. less he has the license and consent of the bishop to per- 
 
 form the duties of such benefice, being resident on another 
 of which he is incumbent, or has a legal exemption or 
 license for non-residence), or if, for a ])eriod exceeding 
 three months altogether, or at several times in any one 
 year he should be absent irom his benefice, without leaving 
 a cintite didy licensed to perform the duties; or — 
 
 y Sec A pp. No. 11. ' Ibid. 
 
 » For the foregoing, sec Hodgson's Instructions, pp. 12, 13. 
 '■ 1 & 2 Vict. c. 10(j. '• 57 Cieo. 3, c. 99. 
 
 "' As to all the remainder of this section, .sec 1 & 2 Vict. c. 106, ss. 75 — 
 102, both inclusive. 
 
 to
 
 OF STIPENDIARY CURATES. 107 
 
 2. If for a period of one month after tlie death, resigna- 
 tion or removal of his curate, who may liave been per- 
 forming the duty, he should neglect to notify the same to 
 the bishop ; or— 
 
 3. If for a period of four months after the death, resig- 
 nation or removal of such curate, he should neglect to 
 nominate to the bishop a proper curate, in either of these 
 three cases the bishop may appoint and license a proper 
 curate, with such salary as is allowed by the act, and of 
 which we shall presently come to speak, to serve the church 
 or chapel, with respect to Avhicli such neglect or default 
 shall have occurred. 
 
 In each of these cases the license must specify whether Curate in such 
 or not the curate is required to reside within the parish or cases required 
 place ,• and if he is not required to reside therein, then the *° reside, 
 license must specify the grounds upon which such non- 
 residence is permitted ; but even in these cases the distance 
 of his residence from the church or chapel which he is 
 so required to serve, must not exceed three miles, except 
 only in cases of necessity, to be approved of by the bishop, 
 and specified in the license. 
 
 So in the case of incumbents non-resident, with consent And so if ap- 
 or license of the bishop, and by whom a proper curate may pointed by in- 
 have been appointed, it is enacted, that such curate shall cumbent. 
 be required by the bishop to reside within the parish or 
 place where the benefice is situated ; or if there is no con- 
 venient house there, then within three statute miles of the 
 church or chapel to which he is licensed ; except as be- 
 fore, in cases of necessity, to be approved of by the bishop 
 and specified in the license; and such allowed places of 
 residence must also be specified in the hcense. 
 
 A 4th case, in which a curate may be appointed abso- where duty 
 lutely by the bishop is, that where the ecclesiastical duties bas been inade- 
 of any benefice are inadequately performed, and in order ^^"^^^gj ^^'^' 
 to ascertain whether or not this may be the fact, the bishop ^^^^ ^^^^^ 
 is empowered, in any case w^here he shall see reason to lained. 
 believe that such duties are improperly performed, to issue 
 a commission to four beneficed clergymen of his diocese ; 
 or if the benefice be his peculiar, and situate in another 
 diocese, then to four such clergymen of such last men- 
 tioned diocese, of whom one shall be the rural dean, if 
 any, of the district wherein such benefice is situate, direct- 
 ing them to inquire into the facts of the case; to which 
 commissioners the accused incumbent may add one other, 
 who must be an incumbent of a benefice within the same 
 diocese ; and if the majority of such commissioners shall 
 report in writing under their hands to the bishop that in
 
 168 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 their opinion the duties of such benefice are inadequately 
 performed, he may, by writing under liis hand, require the 
 person holding such benefice, although actually resident 
 or engaged in performing the duties thereof, to nominate 
 to him a fit person or persons, with sufficient stipend, to 
 be licensed by him to perform, or to assist in performing, 
 such duties, specifying therein the grounds of such requi- 
 SiipeuJ in such sition ; and if the person holding such benefice should 
 cases. neglect to make such nomination for three months, after 
 
 being required so to do, the bishop may appoint and 
 license a curate or curates, as the case may seem to him 
 to require, with such stipend as he may think fit, not ex- 
 ceeding the stipends allowed in cases of non-residence, of 
 which we shall presently come to speak ; nor, except in 
 cases of negligence, exceeding the half of the net annual 
 value of the benefice; and the bishop is to cause a copy 
 of every such requisition, and of the evidence on which the 
 same is founded, to be forthwith filed in the registry of his 
 court. 
 ^ ^.jI I An a])peal is given to the archbishop by the person 
 
 uicuiiiijcnt. holding such benefice, who may conceive himself aggrieved 
 by this proceeding, but such appeal must be made within 
 one month after service upon him of the requisition, or of 
 the ap])ointment or license of the curate, and the arch- 
 bislioj) may approve or revoke such requisition, or confirm 
 or annul such apjiointment, as the case may be. 
 Ciiiiiiu to be The next cases provided for by the statute are those of 
 
 ai)poiiitu(l in the large benefices, in which the bishop is enqoowered to 
 large benefices. |.^,q^,|,.g ^\^q appointment of a curate in addition to the resi- 
 dent incumbent, in certain cases where the circumstances 
 of the parish may seem to require it. 
 oi uliat value -^s whenever the annual value of any benefice into pos- 
 aiui population, sf^ssion of which the incumbent shall liave come subse- 
 quent to tlie 14th of August, IS38, (the time of the passing 
 of the act,) shall exceed 500/., and the })oi)ulation amount 
 to 3000; or where, although the population may be less 
 than 3000, there is a second church or chapel within the 
 same benefice, not less than two miles from the mother 
 church, and with a hamlet or district connected with it 
 containing 400 persons.* 
 Ahliuiij;li ill- In cither of which cases the bishoi) is enqiowered to re- 
 
 ciimbeni is (|iiir(' the jjcrsou holding such boiu'fice, although resident 
 lh( icon and engaged in perforuiing the dulies, to nominate 
 a cuiiitc \n !)(', licensed; and in dcliiult of his conq)lying 
 
 '■ in tillicr case ilie annual value of llie living; iiiust exceed 500/., wliicli, 
 llionyli soinewliat iloublful from llie words of tins |);ul of the section, is evident 
 from tlie proviso llial llie curate's salaiy sliould in no case exceed one-fiftii of the 
 annual value. 
 
 resident.
 
 OF STIPENDIARY CURATES. 169 
 
 with such requisition within three months after it has been 
 delivered to him, or left at his last place of abode, the 
 bishop is empowered to appoint and license a curate, with 
 such stipend as he may think ht, not exceeding the stipend 
 specified in the act for such cases, and not in any case 
 exceedino; one-fifth of the net annual value of the benefice. 
 And in these cases, as in the last mentioned, an appeal is Appeul. 
 given in the same manner to the archbishop. 
 
 But the most important sections of this act, so far as Amount uf 
 relates to stipendiary curates, are those by which the stipends to 
 amount of their stipend in each case is regulated. '^"'^ ^^' 
 
 In the case of non-resident incumbents, the bishop is Fixed by 
 not only empowered, but required to fix the stipend for bishop. 
 the curate according to the scale provided for each case by 
 the act; and every license to a stipendiary curate, whether 
 the incumbent is resident or not, must specify the amount 
 of his stipend; and, in case of any dispute between the And all disputes 
 incumbent and his curate resi)ectino- payment of the sti- *^" tins subject 
 pend, or of the arrears, the bishop is summarily and finally ,„ined by liim. 
 to hear and determine the same without appeal ; and so in 
 any case of wilful neglect or refusal to pay the stipend or 
 the arrears, the bishop can enforce payment, and, as it 
 seems, the compliance with his award and decision, by 
 monition and by sequestration of the profits of the benefice. 
 
 The statute 57 Geo. III. c. 99, which is repealed by 
 the act now under consideration, contained a similar pro- 
 vision for adjusting disputes between an incumbent and 
 his licensed curate by the bishop ; and it was decided that 
 that statute entirely ousted the common law courts of juris- 
 diction in disputes touching any stipend appointed by the 
 bishop to a curate under that act, or the payment of arrears 
 of such salary. The same would, a fortiori, be the case 
 under the present act, the words of which are more strin- 
 gent and particular, declaring the decision of the bishop 
 to be final, and without appeal. And in that case, when 
 it was urged in argument that the plea ought to have 
 specified the subject-matter of the disputes, Avhether they 
 related to the regularity of the appointment, the reason- 
 ableness of the amount of salary, or any other question, 
 Mr. Justice Coleridge remarks — " The words of the statute 
 are so large that there seems no kind of dispute which 
 they would not include." And it was l)y the same case 
 further decided, that, in an action of assumpsit by a curate 
 against his rector for such stipend, a plea founded on the 
 statute was properly pleaded in bar, and not in abate- 
 ment; and that a special plea founded on the statute is 
 sufficient, if it allege that disputes have arisen, and are
 
 170 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 depending, touching the stipend and the payment thereof, 
 and the arrears thereof; and that the action is brought 
 touching the stipend and the payment thereof, and of the 
 arrears thereof, touching which disputes have arisen within 
 the meaning of the statute, not further specifying the sub- 
 jects of dispute.^ All which, it will be observed, would be 
 equally applicable to the cases henceforth arising under 
 the present statute. 
 Incumbents But the exercise of this power by the bishop is thus far 
 
 exempted from restricted, that he may not appoint to the curate of any 
 the operation of |3gi-,g^(.g ^o which the Spiritual ])erson holding the same 
 this enactment. . . .t i i loin 
 
 was nistituted, &c. previous to tlie 2Utn oi July, lolo, any 
 
 stipend exceeding 75/. per annum, together with the use 
 of the house of residence, gardens and stables, or 15Z. in 
 addition to the 75/. in lieu of the house of residence, &c., 
 in case there is no house, or the bishop does not think it 
 convenient to assign it to the curate." 
 Scale of sti- Wheie the incumbent is non-resident, and shall have 
 
 pends where been instituted since the 20th of Jidy, 1813, the bishop is 
 nmiT sklenT ^'^ appoint a stipend for the curate according to the follow- 
 ing scale : — 
 
 1. The whole annual value of the living, if that be less 
 that 80/. per annum. 
 
 2. In no case, except as in the first, less than 80/. per 
 annum. 
 
 3. If the population amount to 300, and the annual 
 value of the living suffice, 100/. per annum. 
 
 4. If the population amount to 300, and the annual 
 value be less than 100/., the whole annual value. 
 
 5. If tlie population amount to 500, and the annual 
 value suffice, 120/. per annum. 
 
 6. If the population amount to 500, and the annual 
 value be less than 120/. per annum, the whole annual 
 value;. 
 
 7. If the population amount to 750, and the annual 
 value suffice, 135/. per annum. 
 
 8. If the population amount to 750, and the annual 
 value be less than 135/. per annum, the whole annual 
 value. 
 
 9. If the population amount to 1000, and tlie annual 
 vahie suffice, 150/. per annum. 
 
 10. If tlie ])o])ul;itiou amount to 1000, and the annual 
 value be less than 150/. per animm, the whole ttnnual 
 vahie.'' 
 
 In all these cases it will be seen that the amount of the 
 stipend is regulated by the numbers of the population, but 
 f Wen V. 'L'vrner, 6 Ad. & Ell. G14. k Sect. 03. '' Sect. 85.
 
 OF STIPENDIARY CURATES. 171 
 
 in each of those cases it may be regulated also by the an- 
 nual value of the benefice, for whenever that shall amount 
 to 400/., the bishop may assign to the curate, if he is re- wiicie value of 
 sident and serving no other cure, 100/. per annum in any benefice exceeds 
 case, although the population shall not amount to 300; ^oo/. per an- 
 and in all the above cases where the population exceeds 
 500, and the annual value exceeds 400/., the bishop may 
 add 50/. per annum to the amount specified in the above 
 scale, so that in the case of number 10 the curate's annual 
 stipend may be fixed by the bishop at 200/. per annum ; 
 the highest stipend, as it appears, which, under any cir- 
 cumstances, can be required by the bishop.' 
 
 The amounts of the stipends specified in the above scale, 
 according to the population, do not appear to be discre- 
 tionary in the bishop, but are such as he is required to 
 appoint. The addition, however, in the case of larger an- 
 nual value, may be made or not at his discretion ; but, 
 although the amount of stipend, according to the above 
 scale, may not generally be diminished, yet certain specified 
 cases are excepted, in which the bishop is allowed to exer- 
 cise his discretion. 
 
 As in every case where he shall be satisfied that the Smaller sti- 
 spiritual person holding the benefice is non-resident, or P^"^'^ '" certain 
 mcapable of performing the duties from age, sickness or 
 other unavoidable cause, and that from those, or from any 
 other special or peculiar circumstances, great hardship or 
 inconvenience would arise if the full stipend specified in 
 the act should be allowed to the curate, he may, with con- 
 sent of his archbishop, signified in writing uj)on the license 
 granted to the curate, assign a less stipend to the curate 
 than according to the above-mentioned scale, as he may 
 think proper. But in every such case it must be stated in the 
 license, that for special reasons the bishop has not thought 
 proper to assign to the curate the full stipend directed by 
 the act ; and such special reasons must be entered fully in 
 a separate book kept for that purpose in the registry of 
 the diocese, which shall be open to inspection, with leave 
 of the bishop, as in the case of application for licenses for 
 non-residence.'' 
 
 There is also another case specially mentioned in the where curaie 
 act, in which the bishop is allowed, at his discretion, to is engaged to 
 ajjpoint a less stipend than according to the above-men- benefices'or'^"^ 
 tioned scale ; as where an incumbent, having two benefices, one incumbent. 
 bona fide resides on one or other of them at different times 
 of the year, so as to make up altogether the full 7'equired 
 term of residence for a single benefice. An incumbent thus 
 * Sect. 86. •' Sect. 87.
 
 172 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 residing is not, it seems, to be considered non-resident on 
 either benefice ; and if he shall employ a curate to perform 
 the duties interchangeably from time to time upon the 
 benefice from which he is absent, during his actual resi- 
 dence upon the other benefice, the bishop may at his dis- 
 cretion assign to such curate any stipend not exceeding 
 what would be allowed according to the scale for the larger 
 of such two benefices, nor less than what would be allowed 
 for the smaller. And if an incumbent thus residing em- 
 ploys a curate or curates for the whole year upon each of 
 such benefices, the bishop may assign to either or each of 
 such curates any stipend less than that specified in the 
 scale, at his discretion ; and this without the consent of 
 his archbishop being necessary, as in the cases of age, 
 illness, &;c. before mentioned.' 
 JJiininislied If the bisliop should find it necessary or expedient to 
 
 stipend where license a Spiritual person huldino- any benefice to serve as 
 
 cvirdtG serves in ^ . ■* o •' 
 
 two adjoining curate of any adjoining parish or place, he may, at his 
 
 parishes. discretion, assign him a sti])end not less than 30/. per 
 
 annum below the stipend which would be allowed by the 
 
 scale; and so, if the bishop sliould find it necessary or 
 
 expedient to license the same person as curate for two 
 
 parishes or places, the stipend assigned him for each of 
 
 such curacies may be 30A below the stij:)end which would 
 
 be allowed by the scale, or less than such stipend by any 
 
 sum not exceeding 30/.'" 
 
 II stipend of the In every case where, according to the scale, the bishop 
 
 w 10 e annua ylj;iii have assigned to the curate a stipend equal to the 
 
 value, It IS liable '^ pit n i • i • i 
 
 toall ciiarges. whole annual value of tlie benehce, such stipend is to be 
 subject to deduction for all such charoes and outu'oinas as 
 may legally affect the value of the benefice, and to any 
 loss or diminution which may lessen such value, unless 
 caused by the wilful default or neglect of the person hold- 
 
 J'rovision in ing the benefice;" and in those i-ases the bishop may, U})on 
 
 suchcascagainsi j-h,, aijplicatlon of the i)erson holdins'- the benefice, allow 
 dilapidations. i • , , • i ' i , t 
 
 liiiii to retain each year so mucii money, not exceeding one- 
 Joiirth part of the annual value, as shall have been actually 
 expended during the year in the repairs of the chancel or 
 house of residence, and of the premises belonging thereto, 
 and in respect of which the person holding the benefice 
 would be liable for dilapidations." 
 
 In like manner, where the annual value of a benefice 
 docs not exceed 150/., the bisliop may allow the person 
 holding the same to deduct iiom the curate's salary so 
 much money as shall have been actually expended in such 
 repairs above the amount of the suri)his remaining after 
 I Sect. «8. »' Sect. 89. " Sect. 91. " Sect. 92.
 
 OF STIPENDIARY CURATES. 173 
 
 payment of the stipend, provided however tliat tlie sum '^u™ retained 
 deducted, after layino- out such surphis, shall not in any ^y '"cumbent 
 
 1 / ?i X Ti-i i- ]„ *^ not to be above 
 
 year exceed one-tourth part or the stipend.'' a fourtli of tlie 
 
 All agreements made between persons holding benefices stipend, 
 and their curates, in fraud or derogation of any of the Agreements for 
 provisions of this act, and especially all agreements whereby thTn"if \'|f ^ 
 any curate shall undertake or bind himself to accept any scale void. 
 stipend less than that assigned him by his license, are ac- 
 tually void to all intents and purposes ; so that such an 
 agreement cannot be pleaded or given in evidence in any 
 court of law or equity ; and even where any such less pay- 
 ment has been made and accepted, and receipt or discharge 
 given in pursuance of any such agreement, the curate and 
 his personal representatives nevertheless are and remain 
 entitled to the full amount of the stipend assigned by the 
 license. And the payment of so much as shall be proved, 
 to the satisfaction of the bishop, to remain unpaid, toge- 
 ther with the full costs of recovering the same, as between 
 proctor and client, may be enforced by monition or by 
 sequestration, to be issued by the bishop, on the applica- 
 tion of the curate or his representatives, provided however 
 that such application be made within twelve months after 
 such curate has quitted his curacy or died.'' 
 
 It does not appear from this provision of the act for how EfTert of the 
 long a period the arrears of a stipend which has not been '^*' enactment. 
 fully paid may be recovered ; it is presumed therefore that 
 any arrears might be claimed which had accrued within 
 six years preceding, the recovery of whicli would not be 
 barred by the Statute of Limitations. The receipt or dis- 
 charge declared to be void appears to be such a receipt as 
 upon the face of it purports to be for a less sum than that 
 assigned by the license ; but if a receipt should be given 
 for the full sum assigned in the license, although a lesser 
 sum had actually been paid in pursuance of some secret 
 agreement between the incumbent and his curate, it does 
 not appear that any parol evidence of this fact could be 
 allowed to contradict the written receipt; so that the 
 stringent })rovisions of the act in this respect may be, and, 
 it is supposed, frequently are, evaded in this manner. 
 
 The next provisions of this act with respect to stipen- 
 diary curates, are those whicli relate to their residence in 
 parsonage houses of the benefice. 
 
 Where a curate has been licensed to any benefice, the Residence of 
 incumbent of which is non-resident for four months in the c'"'^>es >n par- 
 year, and has been required by the bishoj) to reside in the '°' ' 
 house of residence, the bishop may assign him such house, 
 I' Sect. 92. '1 Sect. 90.
 
 174 
 
 OF THE RIGHTS, DUTIES, ETC. OF ECCLESIASTICAL PERSONS. 
 
 Taxes, rates 
 &c. of parson- 
 age houses in 
 such cases. 
 
 Curates, where 
 benefice is se- 
 questered. 
 
 Sequestrator to 
 pay curate sli- 
 ]icnd. 
 
 with the premises belonging to it, or any parts of them, with- 
 out payment of any rent, and any portion of glebe land 
 adjacent to the house, not exceeding four acres, at such 
 rent as shall be fixed by the archdeacon or the rural dean 
 of the district, and one neighbouring incumbent, and ap- 
 proved of by the bishop, during the time of such curate's 
 serving the cure on the non-residence of such incumbent ; 
 and if in such a case the possession of the premises thus 
 assigned is not given up to the curate, the bishop may 
 sequester the profits of the benefice, until possession is 
 given, and direct the application of the profits in such 
 manner as is directed in case of sequestration for non-resi- 
 dence,* or he may remit the same, or any part thereof, as 
 he may think fit.* 
 
 Where the stipend, which has been assigned to the 
 curate, is not less than the whole annual value of the 
 benefice, and in addition thereto he has been directed to 
 reside in the house of residence, he is liable to the same 
 taxes, parochial rates and assessments, in respect of such 
 house and premises, as if he had been incumbent. And 
 in every other case where the curate resides in the house 
 of residence by the direction of the bishop, the bishop 
 may, if he thinks fit, order the incumbent to pay the 
 curate all or any part of such sums as he may have been 
 required to pay, and may have paid within one year ending 
 at Michaelmas day next preceding the date of such order, 
 for any taxes, parochial rates or assessments, as may have 
 become due ; and the bishop may, if necessary, enforce 
 payment thereof by monition and sequestration. " 
 
 Where a benefice is under sequestration, except for the 
 piu'pose of providing a house of residence, '^ the bishop is 
 empowered and required, if the incumbent does not per- 
 form the duties, to appoint and license thereto a curate or 
 curates. If one curate only, his stijjend not to exceed 
 the highest rate allowed by the scale ; if more than one, a 
 stipend not exceeding one hundred pounds ; such stipend 
 or stipends to be paid by the sequestrators out of the 
 profits. But one curate only can be appointed, unless 
 the benefice has more than one church, or the population 
 exceeds two thousand. >^ 
 
 Upon the avoidance of any benefice by death, resigna- 
 tion or otherwise, the sequestrator appointed by the bishop 
 is to pay out of the profits to the curate or curates, ap- 
 pointed to perform the duties diu'ing the vacancy, such 
 stipend us may be appointed by the bishop, provided it 
 
 • Sect. 54. * Sect. 93. » Sect. 94. 
 
 " As provided by 1 & 2 Vict. c. 106, s. 54. v Sect. 99.
 
 OF STIPENDIARY CURATES. 175 
 
 does not exceed the stipend above directed, and in pro- 
 portion only to the time of the vacancy.'' But if the 
 profits of the benefice whicli come into the hands of the 
 sequestrator during the vacancy, are insufficient to pay 
 such stipend or stipends, then so much as shall remain Payment of 
 unpaid shall be paid to the curate or curates by the sue- stipend during 
 ceedinp- incumbent, out of the profits of the benefice : the ^^'^^"'^y ^y. 
 
 ^ , , J^ ' succeeding in- 
 
 payment of which the bishop is empowered and required cumbent m cer- 
 to enforce, if necessary, by monition and sequestration of tain cases. 
 the profits of the benefice.^ 
 
 Having now considered in what manner a stipendiary Review of the 
 curate is to be appointed and licensed, — in what cases he subject. 
 is to be employed, — in what manner, and according to 
 what rate he is to be paid, — how such payment is to be 
 enforced, and the matters I'elative to his residence on his 
 curacy, it remains only to consider how his office is to 
 determine, and by what causes or in what manner he may 
 be removed from his curacy. 
 
 No curate is allowed to quit the curacy to which he has Curate's quit- 
 been licensed, without three months' notice of his inten- ting his curacy. 
 tion so to do, given to the incumbent and the bishop, 
 unless with consent of the bishop, signified in writing 
 under his hand, upon pain of paying to the incumbent a 
 sum not exceeding the amount of his stipend for six 
 months, at the discretion of the bishop ; such sum to be 
 specified in writing under the hand of the bishop, and 
 either to be retained out of the stipend, where a sufficient 
 part thereof remains unpaid, or to be recovered by the 
 person holding the benefice by action of debt. ^ 
 
 Every curate, upon the vacancy of the benefice to the Curate to quit 
 cure of which he has been hcensed, and upon having six cure and par- 
 weeks' notice from the new incumbent admitted or insti- ,?n"!ftl^°n!!«;v 
 tuted to the benefice, must quit and give up the curacy; weeks' notice 
 and if he has been residing in the house of residence, he ^'^°'^ "^^^ '"" 
 must, upon having such notice, give up possession thereof ^""^ ^°'" 
 with the premises, provided that such notice must be given 
 within six months from the time of such admission. '^ But 
 in the case of all district churches and district chapelries, 
 the license of the stipendiary curate, appointed to serve 
 the chapel of such chapelry, shall not be rendered void by 
 the avoidance of the church of the parish or district parish 
 in which such chapel is situate ; but such license is to 
 continue in force, unless revoked by the bishop under his 
 hand and seal, notwithstanding such avoidance. And this 
 particular exception from the general rule appears to aid 
 in removing any doubt, if such might otherwise have ex- 
 
 '■ Sect. 100. » Sect. 101. ^ Sect. 98. <= Sects. 95, 96.
 
 xj^f^ <r«« '-»^ c^' 
 
 176 OF THE RIGHTS, DUTIES, ETC. OP ECCLESIASTICAL PERSONS. 
 
 isted, as to the cases to which the rule apphes. It seems, 
 therefore, that the new incumbent, upon his admission to 
 a benefice, where a Hcensed curate was residins; as curate 
 of the same church, might remove that curate upon due 
 notice, although he did not intend himself to reside on 
 such benefice. In every other case except this last, the 
 incumbent of any benefice, whether resident thereon or 
 not, with the bishop's permission in writing, may require 
 any curate who may have be en li ceiis ed afte r the passing 
 of the acf^ to quit and give upTusTuracyupon six months' 
 noticej^TTTITC bishop refuse this permission to an incum- 
 bent resident or desirous of residing, he may appeal from 
 such refusal to the archbishop ; but if a non-resident in- 
 cumbent is refused this permission by the bishoj), that 
 refusal is final, 
 
 Curate to de- ' And wherc the curate has been residino- in the house of 
 liver up par- residence, the incumbent, with such permission from the 
 
 sonage house on , . , .i i • i i • \p . .• 
 
 notice. bishop, or the bishop himsell at any tune, may, upon six 
 
 months' notice in writing, require him to give up the same 
 
 with the premises, and such ])ortion of the glebe land as 
 
 shall have been assigned to him ; and if the curate should 
 
 refuse to deliver up the premises, he shall pay to the 
 
 person holding the benefice forty shillings for every day of 
 
 wrongful possession, after service of such notice ; *■ which 
 
 ])enalty or forfeiture, being incurred by a person not hold- 
 
 ino- a benefice, would be to be sued for and recovered in 
 
 an action of debt. * 
 
 Disiinction of It will be observed, that in the case of an incumbent 
 
 tlie cases in \vlu) should have l)een refused permission to siive his curate 
 
 vviiicii an :ip. ^,^J(^i^^^. ^,j f,y{^i \\^q^ liousc, nrcmiscs ov glebe, no such ap- 
 
 P6tll IS Allowed* . • • . ^ * 
 
 ' ])eal to the archbishop is given as in the case last men- 
 tioned, the refusal of the bishop apparently being final. 
 It has been suggested hereupon, that a, diHiculty might 
 arise, if the l)ishop, having in both cases rcluscd permis- 
 sion, the archbishop should, upon apptial, reverse his deci- 
 sion in the onecase, in which only lu; has power to reverse 
 it, the curate being thus dismissed from tlu^ curacy, but 
 Icit in possession of the house of residence and glebe.'' 
 The notices. W ith respect to these notices, it may be recapitulated 
 
 that ;i new iii(Miinl)ent must give six weeks' notice, and 
 within six months alter athiiission, such notic(!s not being 
 necessarily in writing aect)rding to the act; althcjugh it 
 would |>!-ol)ably in all such casi's bt; better tlitit (hey shoultl 
 he ill writing. The notices in other cases, with |iermis- 
 si(»ii of the l)ish(i|), or by the bishop himself, must be ne- 
 cessarily si\ months, ;md must necessarily be in writing. 
 •' I Ith Atiijust, IICIH. '• Sect. 'IG. f Sect. 117. i' Hogns's l'-. I,.
 
 OF STIPENDIARY CURATES. ]77 
 
 But, in addition to tliese cases, a more summary power ijisi.op may re- 
 is given to the bisliop of removing- a curate at any time he voke licenses, 
 may think proper; and all curates are thus made iunne- 
 diately subject to the bishop as well as to the incumbent; 
 for the bishop is empowered, after having given the curate 
 sufficient opportunity of showing reason to the contrary'-, 
 summarily, and without further process, to revoke any 
 license granted to any curate, and to remove such curate 
 for any cause that he may think good or reasonable; but 
 the curate may, within one month after service u])on him 
 of the revocation, appeal against the same to the arch- Appeal by cu- 
 bishop.'' faie. 
 
 The bishoj) who grants or revokes any license to any Registry of li- 
 curate is to cause a copy of such license or revocation to ^^'^?^ ^^'^ '^^''°' 
 be entered in the registry of the diocese ; and an alpha- ^^ '°"' 
 betical list of such licenses and revocations is to be made 
 out by the registrar of the diocese, and entered in a book, 
 and kept for the inspection of all persons upon payment 
 of three shillings; and a copy of every such license and Copies to be 
 revocation is to be transmitted by the registrar to the transmuted, 
 churchwardens or chapelwardens of the parish or place to 
 which the same relates, within one month after the grant 
 of such license or revocation, to be by them deposited in 
 the parish chest ; and for every such copy so transmitted, Fees, 
 the registrar is entitled to demand a fee of three shillings 
 from the incumbent. And in case the archbishop shall 
 on appeal annul the revocation of the license, the bishop 
 by whom the revocation may have been made shall, im- 
 mediately upon receiving notice of that fact from the 
 archbishop, order in writing that the copies of such revo- 
 cation shall be forthwith withdraw n from the registry and 
 parish chest; and that such revocation shall be erased 
 from the list of revocations in the registry, which order is 
 binding upon the registrar and churchwardens respectively 
 to whom it is addressed. ' 
 
 '' Sect. 98. i Sect. 102. 
 
 N
 
 ( 178 ) 
 
 CHAPTER VIII. 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, &C. 
 
 Chancellor, 
 age and quali- 
 fication. 
 
 Official prin- 
 
 Section 1. 
 
 CluLncellors and other Officers of Ecclesiastical Courts, 
 
 A VERY extensive subject might be opened under the pre- 
 sent head, but it would necessarily be connected with a 
 variety of subjects, which are quite foreign to the pur- 
 poses of the present work. It will be sufficient, therefore, 
 to give the different titles, and to point out very briefly the 
 office of these parties respectively. 
 
 The chancellor must be at least a master of arts or 
 bachelor of civil law, so created in some university, of the 
 age of six-and-twenty, and he is to hold the bishop's 
 courts for him, and assist him in other matters of ecclesi- 
 astical law. Whatever causes therefore are triable in the 
 Bishop's Consistorial Court are triable by him as judge;" 
 but if one who is a divine, and not brought up to the study 
 of the civil law, should nevertheless be appointed chan- 
 cellor, this will not be a reason why the common law 
 courts would grant prohil)ition in any cause tried before 
 him, since it belongs to the spiritual court to examine the 
 abilities of spiritual officers.'' 
 
 The office of chancellor is said to include in itself two 
 
 cipal and vicar- others, those of official principal and vicar-general. 
 
 ^^'^'^"^ ' The office of official ])rincii)al of the Archbishop of 
 
 Canterbury has, for a long time, been united with that of 
 clean of tlu' arches; and that large jurisdiction in ecclesi- 
 astical matters, which is now exercised by the dean of the 
 arches, is exercised by him as official ])rincipal; for the 
 jurisdiction of the dean of the arciies is limited to the pecu- 
 liars of" th(' archbishop.' 
 
 The original jurisdiction of the official principal of the 
 archbishop is tliat which he has as judge of the peculiars 
 of the archbishoj), and that which he has by virtue of 
 letters of rcfpu'st in such causes as are called arduous 
 causes; of which malriinonial causes were always tcnncd 
 
 " (Janon 127. i' 1 Hum's K. I-. 290. 
 
 '• 3 JMack. Comm. 65 ; 1 llagg. 48. 
 
 .Furisdiclion of 
 official prin- 
 cipnl.
 
 CHANCELLORS AND OFFICERS OF ECCLESIASTICAL COURTS. 179 
 
 the chief. His appellate jurisdiction is very extensive, 
 including all manner of" appeals from the chancellors, 
 commissioners, officials, &c. of the bishops, deans and 
 chapters, and archdeacons, in the whole province of Can- 
 terbury, for he is to the judges of those courts, what the 
 archbishop is to the bishops, &c. whose courts they are : 
 and as the only appeal from the archbishop is to the 
 Queen, so from the decision of his official principal, the 
 only appeal is to the judicial committee of the privy coun- 
 cil." 
 
 The vicar-general appears to have only what is called Of the vicar- 
 voluntary jurisdiction, that is, in matters which require no Sonera. 
 judicial proceeding, as in granting probate of wills, letters 
 of administration, sequestration of vacant benefices, insti- 
 tution, &c. ; "^ but where different offices have been usually 
 held by the same party, it is difficult to define precisely in 
 which right the jurisdiction may have been exercised; 
 and this is the case with the vicar-general, for it seems to 
 be doubtful whether he has any power as such to inquire 
 into crimes and punish them. 
 
 The limits of a chancellor's jurisdiction will necessarily Limits of juris- 
 be those of the diocese of the bishop, w^hose chancellor he dicuon. 
 is ; and whatever causes are triable in the consistorial 
 court of that bishop, the chancellor is to try them. 
 
 Where an archdeacon has ecclesiastical jurisdiction, the Officials and 
 judge of his court is usually called the official. And where commissaries. 
 any bishop or other corporation, &:c. has ecclesiastical 
 jurisdiction in a peculiar, the judge of such a court is 
 usually called the commissary ; but the office and duties 
 of these officers, whatever may be their name, is the same 
 as that of the chancellor ; and from all of them there lies 
 an appeal to the official principal of the archbishop. 
 
 A surrogate is a deputy of an ecclesiastical judge for a Surrogates, 
 special purpose, namely, that of granting licenses of mar- 
 riage ; and before granting any such license, he must take 
 an oath before the ecclesiastical judge for the faithful per- 
 formance of his office to the best of his knowledge, and 
 must give a bond for 100^. for the due execution of his 
 office. By the canon law he is to be some clergyman ; 
 and some other qualifications are declared necessary, such 
 as skill in the civil and ecclesiastical law, &c., which, how- 
 ever, since they do not appear to be practically necessary 
 in any way, are not now usually regarded. 
 
 Our notice of the offices of chancellors and other eccle- 
 siastical judges is the more limited since the alteration in 
 
 •' See 2 Lee, 316 ; 1 Hagg. 535, 537 ; 23 Hen. 8, ch. 9. 
 
 ^ See Thorpe v. Mansell, I Hagg. Cora. 4. 
 
 n2
 
 180 ECCLESIASTICAL OFFICERS, SERVANTS, ScC. 
 
 the mode of proceeding against clergymen charged with 
 offences, in consequence of the Church Disciphne Act, 
 has transferred from them to the commissioners appointed 
 by the bishop for the occasion, and to the bishop himself, 
 that part of their jurisdiction which would have been most 
 connected with our present purpose. It is moreover pro- 
 bable that, within a very short time, an important altera- 
 tion may be made in all the inferior ecclesiastical courts, a 
 bill having already been introduced for that purpose, and 
 many of them will most probably be abolished. 
 
 Section 2. 
 
 Of Churchwardens. 
 
 Wliat they are. Churchwardens, as their name imports, are the proper 
 guardians or keepers of the parish church, and their duties 
 were originally confined to the care of the ecclesiastical 
 property of the parish, over which they exercise discre- 
 tionary powers for certain purposes. *^ But in addition to 
 the duties which are incident to them in that character, 
 several other duties have been cast upon them by custom 
 or by particular statutes, such as are those which they 
 have in connection with the overseers. Of these, how- 
 ever, some are foreign to the general scope and purpose of 
 this work. 
 Perfoiiii tlie In the ancient episcopal synods, the bishops were wont 
 
 duties of sales- to summou divcrs men out of each parish to give infor- 
 "^^"* mation of the disorders of the clergy :ind people, and 
 
 these, in process of time, became standing oflicers, called 
 synodsmen, sidesmen, or questmen;" and the whole of 
 the oflice of these persons seems by custom to have de- 
 volved ii])oii the churchwardens. 
 I'o \vli;it extent Cliurchwiirdens cannot, strictly speaking, be considered 
 'I.'Intwr ^ *^°'" ^^ ^ co)-poration ; for tliey cannot, e.\C('i)t by custom, as 
 in Loiulon, or by their particular charter, as at Walling- 
 Ibrd, or when authorised by statute, purchase lands or 
 take by grant. Jbif, they are a corporation, or (jiutsi cor- 
 j)oration, for certain j)urposes, and, it is said, that as the 
 ])arson of the church is a corporation for the taking lands 
 ibr the use and benefit of the church, and not capable of 
 taking goods or ])ersonalty '> in that behalf, so the chincli- 
 uardens are a corporation to take money or goods orotlun* 
 personal estates for the use of the cluu'ch, but are not 
 
 f 1 Black. Comm. ; 1 llagg. 173. K Kennelt, Par. Ant. 649. 
 
 '■ liut this is not now true universally.
 
 OF CHURCHWARDENS. ■ 181 
 
 enabled to take lands. But even with respect to the per- 
 sonal property, which they are capable ot" purcliasing or 
 taking in succession for the use of the ])arisliioners, they 
 are little else than a name to sue by, and in all actions, 
 &:c. by them, it must be laid ad damnum parochianoriim.^ 
 In this manner, however, they may sue for the goods of la wliai way 
 the church, and bring an action of trespass for them, and '''^y °"o'"^ '" 
 this whether against the parson or a parishioner, and 
 whether for goods taken in the time of their predecessors, 
 or in their own time.'' 
 
 But although they may thus take goods, yet as they are Their power 
 a quasi corporation for the benefit, and not for the preju- "J!*^!' '^'"'. »°°|'^ 
 dice of the parish, they cannot dispose of any of the church 
 goods without the consent of the majority of the pa- 
 rishioners legally declared in vestry, and the license of the 
 ordinary.' The parishioners are in fact the owners, the 
 churchwardens being temporarily entrusted by them with 
 the custody, so that if the churchwardens should dispose 
 of them, the parishioners would have no remedy to recover 
 them, for it would be as if they had themselves parted 
 with the goods.'" And it is the fiiult of the parishioners 
 if they choose and trust unfit persons. 
 
 That churchwardens are a corporation, so as to bind 
 their successors and the parishioners whom they represent 
 in matters beneficial to the church and parish, is well 
 exemplified by the rather singular case of the parish of 
 Hammersmith, where the wife of the incumbent Dr. Mar- 
 tin, having been annoyed by the ringing of the five o'clock 
 bell, and being about to remove in consequence, it was 
 agreed between him and the churchwardens, that the 
 former should, at his own expense, build a cupola, and 
 erect a clock and new bell ; in consideration of his doino- 
 which, the ringing of the five o'clock bell should cease 
 during the lifetime of himself and wife. Some years after- 
 wards, however, and after the cupola, kc. been erected, 
 the bell was again rung by order of the churchwardens, 
 but Dr. Martin obtained an injunction from the Court of 
 Chancery." It appears however from the judgment, that 
 in granting this injunction, the court was much influenced 
 by the fact that what had been done was, on the whole, 
 beneficial for the parish, and as such a matter must always 
 be open to doubt, it is suggested that it would be very 
 
 ' Viner's Abr., Churchwardens. 
 
 ^ See Rogers's E. L., Churchwardens. 
 
 1 Prideaux, 135; Ayl. Tarer. 171. 
 
 w Prideaux, 136; Vin. Abr. Churchwardens. 
 
 n Martin v. Nmkin, 2 P. Wms. 267.
 
 182 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 Persons dis- 
 qualified for tlie 
 office. 
 
 Persons not 
 compelled to 
 serve. 
 
 Dissenters. 
 
 Quakers not 
 compelled to 
 serve. 
 
 unsafe to deal with churchwardens in a similar manner, 
 for if the agreement could not be clearly proved to be 
 beneficial to the parish, it rather appears that it could not 
 be supported. 
 
 Aliens, papists, Jews, children under ten years of age, 
 and persons having been convicted of felony, are abso- 
 lutely disqualified to serve as churchwardens." 
 
 Peers of the realm, clergymen, memhers of parHame7if, 
 attorneys of the King's Bench, attorneys clerks in the 
 several courts of law, physicians, surgeons and apothe- 
 caries being free of their corporation or company, and 
 duly qualified to practise as such according to the statutes, 
 teachers in pretended holy orders, who are teachers of a 
 congregation, and duly qualified by 1 Will. III. c. 18, Ser- 
 jeants, corporals, drummers and private men of militia, 
 from the time of their enrolment to their discharge, com- 
 missioners, assistant commissioners or officers of customs, 
 persons employed in collection or management of accounts 
 for revenue of customs, clerks or persons acting under 
 them, all persons who have prosecuted a felon to convic- 
 tion for an offence in the parish where they would have 
 been chosen, all these are exempted from being chosen 
 or appointed to bear the oflice of churchwardens ; '' but 
 with respect to those persons whom we have here men- 
 tioned as exempt, it does not appear that they are ineligible, 
 and they may serve such office if they are willing. And 
 if any dissenter from the Church of England shall be 
 appointed churchwarden, and have any scruple to take 
 the office, he may appoint a deputy, "provided such deputy 
 he duly approved.'^ 13ut it appears now to be determined, 
 that a (Quaker would not be compelled to undertake the 
 discharge of this office, either by himself or by deputy. 
 One Theobald, a Quaker, having been cited for this pur- 
 pose by the Ecclesiastical Court, set forth in a petition his 
 various conscientious scruples which prevented him from 
 imdcrtaking the office, which applied equally, as he alleged, 
 to the case of a dejiuty, because qui facit per nlium facit 
 per se. Dr. Phillimore, sitting for the judge of the court, 
 observed that he was not aware of any authority in which 
 any court in a contested suit had compelled a (Quaker to 
 1ak(' u|)on himself the execution of such an office; anil 
 alluded to the various duties which a churchwarden was 
 ojillcd upon to perform, and which it w'o\dd be impossible 
 
 •■ 1 li.gg. I'.. 9, 10. 
 
 I' 1 I'.utn's Keel. Law, 3.% ; 2 Jlol. Abr. 272, 360 -,6 6^7 Will. 3, c. 4 ; 
 10 & II Will. 3, c. 23 ; 42 Ueo. 3, c. 90 : 9 Geo. 4, c. 76, s. 2 ; llogers's 
 E. L. 219. 
 
 •I 52 Geo. 3, c. 155.
 
 OF CHURCHWARDENS. 1^3 
 
 for a Quaker to perform with a clear conscience ; and he 
 more particularly referred to the case (hereafter mentioned) 
 where it had been held to be a justification of an assault 
 in a churchwarden, that he took off a man's hat who was 
 wearing it during Divine Service : whereas a Quaker would 
 not only not take ofi" the hat of another person, but it 
 would be part of the formal discipline of his caste to wear 
 his own. He added, " I infer from the dictum of Lord 
 Stowell in the case of Ant/tony v. Seager, that there is a 
 discretion in the court whether it should feel itself called 
 upon to enforce the performance of these duties. I do 
 not mean to say that all dissenters are exempted, nor to 
 specify whether any, or, if any, what class are exempted. 
 If the case comes before me, it will be time to distinguish 
 according to circumstances and facts ; but the Society of 
 Friends are known, — they are a marked and peculiar 
 caste, — and, having the means of knowing the consci- 
 entious scruples of this sect, a judge of an ecclesiastical 
 court ought seriously to pause, not only before he attempts 
 to violate the religious scruples of this class of persons, 
 but also for the purpose of asking himself w hether he can 
 conscientiously admit into the bosom of our Church per- 
 sons who are disqualified from obeying her directions, and 
 giving full force and effect to her institutions and ordi- 
 nances. The parish must proceed to another election."' 
 
 From this case it may be inferred that, notwithstanding 
 the provisions of the statute before mentioned, directing 
 that dissenters may, if elected, appoint a deputy, it is 
 uncertain whether the court would compel any one so to 
 do ; for it certainly is not easy upon principle to discover 
 any grounds why the indulgence thus conceded to the 
 Quaker should be withheld from other dissenters, whose 
 scruples may be equally conscientious. 
 
 With these exceptions it may be stated generally, that General rule 
 every parishioner must serve the office of churchwarden, that all pa- 
 if legally chosen into it ; nor is it essential to constitute a se've^iTchoseif 
 person parishioner that he should be actually residing 
 within the |)arish ; for if he occupy a farm, or be jiartner 
 in a house of trade situate within the parish, he will be 
 equally considered as a parishioner.^ And if a person be 
 in other respects eligible, it appears that the circumstance 
 of any ordinary infirmity would not be allowed as an ex- 
 cuse to exempt him from serving. Thus deafness seems 
 to have been considered as an insufficient cause for ex- 
 
 ^ Adey v. Theobald, 1 Curteis, 447. 
 
 s R. V. Poynder, 1 Bara,& Cres, 178 ; Auorney-General v. Fimter, 10 Ves. 
 33.
 
 184 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 J low chosen. 
 
 emption.' And where one had been chosen churcliwarden 
 and had been excused upon payment of a fine, and an- 
 other had then been chosen in his stead at the same 
 vestry meeting, it was held that the person secondly chosen 
 was bound to serve, and that the circumstances under 
 which he was chosen did not make it optional with him 
 whether he would serve or not." 
 Number of The 90th Canon, which prescribes the mode of choosing 
 
 churchwaideiis. churchwardens, speaks of them in the plural number ; 
 and in all statutes where they are mentioned, it is invari- 
 ably in the plural number ; yet a custom will prevail, even 
 where opposed to the words of the canon ; and if there is 
 a custom in a parish that there shall be only one church- 
 warden, it may be good for the reason that such a custom 
 might have existed before the canon, and in that case 
 could not have been destroyed or varied by it. But a 
 custom that there should be no churchwardens is neces- 
 sarily bad.'' 
 Election of. Having thus defined what churchwardens are, and who 
 
 may be appointed to the office, and become qualified to 
 act, we proceed to speak of the method of their election. 
 It is directed by the OOtli Canon, that churchwardens shall 
 be chosen by the joint consent of the minister and the 
 parishioners, if it may be ; but if they cannot agree upon 
 such a choice, then the minister shall choose one and the 
 parishioners another ; without which joint or several choice 
 none shall take upon themselves to be churchwardens. 
 But this canon prevails only in the absence of any custom 
 to the contrary ; and it may be doubted whether the canon 
 can be taken to be anything more than declaratory of the 
 custom, or of the common law, at the time when it was 
 made ; for by Coke, Chief Justice, a convocation hath 
 power to make constitutions for ecclesiastical things or 
 persons, but they ought to be according to the law or 
 custom of the realm ; and they cannot make church- 
 wardens that were eligible to be donative, without act of 
 parliament; and the canon is to be intended where the 
 parson had the nomination of a churchwarden before the 
 making of a canon.'' And it has been the opinion of great 
 authorities, that by the connnon law the right of choosing 
 both the churchwardens was in the j)arishioners, and that 
 the parson only nominated by custom ; but this is oj)posed 
 to the o])inion and decision of Park, J. in a case tried 
 before him at the Croydon Sunnner Assizes in 1829 ; for 
 
 » 3 Phil. 165. " Birnic v. Wcller and another, 3 Ilagg. 474. 
 
 * li, V. Inhabitanti nf Uinckleii, 12 East, 361. " Godol. 162.
 
 OF CHURCHWARDENS. 185 
 
 in that case the issue was to ascertain whether the rioht 
 of election was in the parishioners, to the exclusion of 
 the minister; and it was there held that in general the mi- 
 nister and the parishioners are to choose the two church- 
 wardens ; and if they do not concur, then the minister is 
 to choose one and the parishioners the other ; and though 
 the evidence established that, generally, for upwards of 
 200 years the minister and parishioners concurred, and 
 there was no evidence that the minister had ever sepa- 
 rately appointed one, still this was not enough to support 
 a supposed custom, in exclusion of the minister, because 
 their long concurrence was not sufficient to affect the 
 general right.^ This decision, however, would only seem 
 to show the necessity that the custom must be clearly and 
 satisfactorily proved ; for it is certain that at the present 
 time the right of choosing churchwardens is wholly regu- 
 lated by custom, which may in some cases have existed 
 independently of the canon, and probably, in many other 
 cases, sprung up in consequence of it ; and the only ques- 
 tion could be, what is the customary or common law 
 method that is to prevail in the absence of any special 
 custom satisfactorily proved, and that customary method, 
 according to the decision just mentioned, is the same as 
 that directed or affirmed by the canon. 
 
 In some parishes, as in London, both the churchwardens Special methods 
 are appointed by the parish ;^ in some others the lord of °^ choosing hy 
 
 11 J^ X^' CUSlOITl 
 
 the manor appoints one ; in others a select vestry or par- 
 ticular number of parishioners appoint one, or both ; and 
 in others the parson appoints one and the two old church- 
 wardens the other;" all these customary exceptions from 
 the general rule affirmed by the canon, must, as we have 
 already observed, be satisfactorily shown.^ And in all 
 cases where the custom is disputed, the question must be 
 tried by the common law courts, the spiritual courts having 
 no jurisdiction.^ Whenever the right of election is in the To be chosen 
 parishioners, it is to be exercised by the vestry, and the '" vcbiry. 
 parson, it is said, cannot intermeddle in the election.'' 
 But unless there is an express custom to exclude the par- 
 son, there seems no reason why he should not be present 
 there, as upon other occasions, although he should have 
 already nominated one churchwarden.^ 
 
 Where the parson has the right to nominate one church- When cuiaic 
 warden, a curate stands in his place, and may make the '"")' choose. 
 
 y Slocomhe v. St. John, Croydou Summer Assizes, 1829. 
 
 ^ R. V. Martin, 1 Ld. Rayra. 138. 
 
 a Godol. 153 ; 2 Inst. 653 ; 1 H. Bla. 28; 1 Mod. 182. 
 
 ^ Slocomhe v. St. John, ante. *= 2 Rol. Abr. 287. 
 
 d 2 Stra. 1045. « Rogers's E. L. 217 ; vide post, Vestry,
 
 186 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 presentment, vniless the parson should be under sentence 
 of deprivation, in which case the right to choose both re- 
 sults to the parishioners.* 
 Election of, how The method of conducting the election by the ])arish- 
 couducted. ioners is similar to that l)y which all other matters in 
 vestry are determined, and of which we shall have to speak 
 hereafter," but the proper method of conducting such an 
 election, especially in relation to the conduct of the minis- 
 ter, has been so clearly explained by Lord Denman in a 
 recent case, that no better guide can be given than in the 
 words of that judgment. " We think the proper place to 
 elect churchwardens is some convenient place in the pre- 
 cincts of the church, and that the rector has a common 
 law right and authority to preside at such election, as 
 being the functionary wdio is at the head of the parish for 
 ecclesiastical purposes ; and though the churchwardens 
 when thev are once elected are the temporal officers of the 
 parish, yet they are so far connected in ecclesiastical mat- 
 ters, that the rector has a clear and undisputed right to 
 interfere in bringing them into existence.'' 
 
 " Thei'e was another objection made during the argu- 
 ment, namely, that the chairman, having the casting vote 
 under the 58 Geo. III. c. 69, might, from that circum- 
 stance, in many cases, nominate both the churchwardens. 
 There is no doubt he may vote as a parishioner, the act 
 of parliament giving him that privilege ; and if any objec- 
 tion arises on this head, that objection can only be met 
 by saying that parliament itself should have guarded 
 against that inconvenience, but as it has not, I apprehend 
 this court cannot interfere with the discretion of the chair- 
 man, when presiding at such an election." ' 
 Proceedings of And custom may regulate such ])rocecdings ; as, if there 
 election may be ^g ^ custom to close the poU for the election at some i)ar- 
 cu^tom! ^ ticular time, and that a reasonable time, it is good : and 
 
 the parishioners must tender their votes within it."* 
 If poll is taken, Two scts of candidates having been proposed for church- 
 all rate pnycrs ^vardcus, the inhabitants in vestry assembled proceeded to 
 the election. A show of hands was taken, and on behalf 
 of those whom it api)carcd to be against, a poll of the 
 whole i)arish was demanded. It was then decided by 
 tliose assembled that a poll should not be taken of the 
 parishioners at large, but of the inhabitants then present 
 only ; inid (hnin'^ (he (inic (he poll was so taken fhe doors 
 
 ' 2 Stra. 1246 ; Carlli. 118. « Book VII. Cii. 1. 
 
 '' For mode of conducting sucli meeting, sec post, Mook VII. Ch. I. 
 ' Reg. V. D'Oi/leii, 4 I'cr. & Dav. (iO. 
 I* l{. V. bhhpp »)' Wincheilcr, 7 East, 673 j see post, iiook. VH. Cli. 1.
 
 OF CHURCHWARDENS. 187 
 
 were closed by order of the chairman ; several rated iii- 
 hubitants of the parish were said to have been excludetl, 
 and knocked for admission, but were not admitted mitil 
 the poll was over. 
 
 The only question in dispute stated by Sir J. Campbell 
 was, whether the poll ought to be taken of those present 
 only, or of all other rated inhabitants who might choose 
 to come in and record their votes. And it was said by 
 Denman, C. J. and Littledale J., the law is quite clear 
 that if a poll is taken, all the rated inhabitants have a 
 right to come in and record their votes ; but there is 
 nothing to show in tliis case that the result would have 
 been different if all the parish had come in, nor does it 
 appear that the effect of closing the doors was to exclude 
 any single parishioner from voting.' 
 
 And it may be stated generally, that the legality or ille- Legality of elec- 
 gality of an election of churchwardens will be determined ^'?'i '^^' t" 'J<^ 
 by the courts of common law,"' in the same manner as !;"n?,J7nt 
 other elections oi the same character, and this upon ap- courts. 
 plication for a mandamus ; and not only the legality of 
 the election, but also of the votes given at it. And if the 
 minister, or the parishioners, or the parties by whom the 
 election is to be made should neglect to elect or nominate 
 churchwardens, the ordinary cannot interfere ; but the 
 remedy is in the same manner, and they would be com- 
 pelled to do so by a mandamus." 
 
 So where it is contended that churclnvardens have been How the ques- 
 improperly nominated or elected, the most proper and tion of a wrong- 
 convenient course would seem to be for the party com- b" tried|'°" "'^^ 
 plaining of such election to apply for a mandamus com- 
 manding the rector and churchwardens, or such of them 
 to whom the same should of right belong, to convene a 
 meeting in vestry of the inhabitants for the election of a 
 churchwarden for the remainder of that year. This course 
 having been taken, and it appearing satisfactorily to the 
 court upon affidavits that the proceedings of the election 
 had been irregular, the court granted a mandamus to such 
 effect. Lord Denman observing, there is no other remedy 
 in this case so far as I can see ; no mode of trying the 
 right by action, because the office is not one of profit. If 
 there has been an improper election, it is not desirable 
 that the rates should remain in the hands of those who 
 may have been parties to such wrongful election, if the 
 election be void, still there are circumstances which render 
 
 ' Reg. V. Rector, Churchwardens, and Parishioners of St. Mary, Lambeth, 
 3 N. & P. 416. 
 
 ■" 7 Ad. & Eli. 259 J Burn, 1420. " 2 Barn. & Ad. 197.
 
 188 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 it tit that the parties should make a return, and show how 
 it is maintainable; the matter may then be put into a 
 proper train of inquiry. I give this as my opinion, be- 
 cause I do not at present see any other mode of correcting 
 that which may have been an improper proceeding. And 
 in this case Sir William Follett having referred io Anthony 
 V. Seager, as showing that resort might be had to the 
 Ecclesiastical Court, Littledale, J., observed, I do not see 
 my way so clearly to any other remedy, as to say that a 
 mandamus ought not to go." 
 
 We shall hereafter have occasion to speak more parti- 
 cularly of the churches and chapels built under the dif- 
 ferent acts of parliament passed for that purpose ; but we 
 must here observe, that the mode of electing church or 
 chapelwardens is directed differently imder each of those 
 Churchwardens ^^^^' ^'^^^ ^^'^ mode originally pointed out in the case of 
 in the newly chrn-clies built under the 58 Geo. III. c. 45, for electing 
 buili churclies churchwardens, was repealed in the following year by the 
 and chapels. .g ^^^^ jjj^ _^ j3^^ ^.^^j j^^ ^j^^ ^^^^^^, ^^^ j^ ^.^^ directed,!^ 
 
 that in every district, parish, or division of any district, 
 parish, or ])arish chaj)elry, or consolidated chapelry, in 
 which any church should be built, acquired, or approi)ri- 
 ated under the provisions of either of those acts, in which 
 there should be no distinct vestry belonging to such dis- 
 trict, a select vestry, consisting of so many persons as 
 should be directed by the commissioners in that behalf, 
 should be apjjointed by them with the advice of the bishop 
 of the diocese, out of the substantial inhabitants of the dis- 
 trict, or district or consolidated chapelry, for the care and 
 management of the concerns of the church or chapel and 
 all matters and things relating thereto : and that such se- 
 lect vestry should annually elect the church or chapel- 
 warden to be named on the part of the parish or chapelry, 
 and that they should also elect lU'W members of the select 
 vestry as vacancies might arise. The other cluuehwarden 
 in these cases is to be a])pointed absolutely by the incum- 
 bent. 
 
 Jiut in respect to churches and chapels built under the 
 provisions of the 1 k 2 Will. IV. c. 3S, it is directed, that 
 two fit persons shall be ai)j)ointed churchwardens for every 
 such clmicli or ciiajjel, to be chosen one by the incumbent 
 for the time being, and the other by the renters of pews.'' 
 
 And in the; cas(^ of chapels of ease;, which are made in- 
 dej)endcnt mider the ])owers of this latter act, it is directed 
 
 n. V. Uertor of Birtningham, !^c. 7 Ad. & Ell. 254. l' Sect. 30, 
 
 'I I & 2 Will. 4, c. 38, s. 16.
 
 OF CHURCHWARDENS. 189 
 
 that churchwardens shall be chosen, one by the minister, 
 and one by the pei'sons exercising the powers of vestry in 
 such new parish ; and that sucit persons shall be members 
 of the Estahlislied Church ;^ a limitation as to qualification 
 which it is shown by daily experience might most usefully 
 be extended to the case of all churchwardens wheresoever. 
 And if the reasons given for the judgment in the case of 
 Adey v. Theohald before quoted^ should be carried out, 
 the argument for disqualification in the case of dissenters 
 would be quite as strong as for exemption. 
 
 Churchwardens, being thus elected, are in the next place Must be sworn 
 to appear and present themselves to be sworn into their '"'° ^ ^^' 
 ofliice, at the next visitation after their election, which shall 
 be held either by the bishop, archdeacon, or other ordinary, 
 and until they are so sworn they can do no legal act ; but 
 the old churchwardens continue in oflice until the new ones 
 are sworn : and even if the old churchwardens should be 
 re-elected, they must still be re-sworn ; yet any act done 
 by them before they were so sworn would, it is presumed, 
 be legal and valid, as being done in their character of old 
 churchwardens, no new ones havino; been sworn. The In this ilie oiTice 
 duty of the ordinary in this respect is purely ministerial, of the ordinary 
 and he is not to be the judge of the fitness of the person }g °"if """"'' 
 presented to him on the ground of character or conduct; 
 for the churchwarden is the officer of the parish, and his 
 misbehaviour can only prejudice those by whom he has 
 been elected, who are the proper judges of his qualification. 
 Yet no act can be so completely ministerial, as not to leave 
 discretion to refuse to join in an illegal act; so that, if the 
 jmrish were to return one absolutely disqualified, as a Jew, 
 Papist, child under ten years old, or one convicted of 
 i'elony, the ordinary would be bound to reject him.' And And on refusal, 
 if the archdeacon or other ordinary should refuse to swear he wii be com- 
 them in, a mandannis would be immediately granted to ^amns. 
 compel him to do so ;" and the only good return that could 
 be made to such a mandamus would be in a case where the 
 writ states the foundation of the right of the party apply- 
 ing for it ; in which case the ordinary might deny the right 
 as so stated, as where the writ commanded to swear one 
 didy elected, and the return that he was not duly elected 
 was held good.'' But this rule must be observed with great 
 accuracy, for where the writ commanded to swear one 
 chosen churchwarden, the return that he was 7Wt duly chosen 
 was held bad ; and, without mentioning the dift'erent returns 
 
 ' Sect. 25. s See ante. ' Adey v. Theobald, 1 Curteis, ante. 
 
 " Comyn's Dig. Mandamus, A. ; Gibs. 216. 
 " 2Salk. 433; Sir. 1088; 8 Barn. & Cres. 681.
 
 190 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 Even if two sets 
 present them- 
 selves. 
 
 Or the election 
 be disputed. 
 
 And the man- 
 damus will be 
 absolute in the 
 first instance. 
 
 that may have been made to a mandamus of this kind, it 
 may be stated generally, that all are bad except the one 
 before mentioned, and that the return must not vary from 
 the writ ; from which, therefore, it appears that the only 
 question which it concerns the ordinary to inquire is, 
 whether the party who ])resents himself to be sworn was 
 duly elected, and this would of course include the question 
 as to qualification. And if two sets of churchwardens 
 present themselves to the ordinary, each having a colour- 
 able title, it seems that he must swear them both.^ For a 
 rule nisi having been obtained for a mandamus to an arch- 
 deacon and surrogate to swear in certain persons as church- 
 wardens and sidesmen of a parish, it appeared by affidavit 
 that the parties were colourably elected, but that the 
 validity of the election was disputed ; that there was an 
 usage in the archdeaconry to swear in the parties elected 
 on a certain day subsequent to the election, appointed 
 annually by the archdeacon ; and that the surrogate, being- 
 applied to, immediately after the election, to swear in the 
 parties, had said that they must wait till the day appointed, 
 but that he would not disobey a mandanms from this coiu't : 
 held, that this was a refusal, and that the usage, if a good 
 one, should be returned to the mandamus, and the court 
 made the rule absolute, without entering into the question 
 of the validity of tlie election.^ 
 
 And so purely ministerial does the act appear to be con- 
 sidered by the Court of Queen's Bench, that it seems they 
 will not contemplate the probability of any valid reason for 
 refusal being given, but will make the rule for a mandamus 
 absolute in the first instance. 
 
 An affidavit in support of an api)lication for a mandamus 
 stated that a party had been unanimously electetl church- 
 warden at a regular meeting of the inhabitants of the 
 parish in vestry assembled, and that he afterwards received 
 a notice from the ofiicers of the Ecclesiastical Court of the 
 bisho]) to attend the archdeacon's visitation to qualify, &:c. ; 
 tliat he sidjsequ(!ntly attended at the appointed time and 
 place, and jjresented himself to the archdeacon to take the 
 oath, and, in conseqiicnce of an informality, was directed 
 to present himself again on another day ; that he did so 
 present himself on that day, when objections were made to 
 him l)y another person, which he considered untenable, 
 h7it loldch were not stated in the affidavit, in consequence of 
 which, the archdeacon liad rcifuscd to swear him. Notice 
 ii:i(l been <iiven to tiu- archdeacon that the court would be 
 
 y 3 Ad. &E1I. 6ir). 
 
 » li. V. Archdeacon of Middlesex and anotlier, 3 Ad, & Ell, (51 'O,
 
 OF CHURCH-WARDENS. 191 
 
 applied to, and the court granted a rule absolute in the 
 first instance." 
 
 Another case, in the following year, fully confirms the 
 authority of the decision last mentioned. By the affidavits 
 in support of the application for a mandamus, it was stated 
 that two persons were duly elected, but that the validity of 
 the election was disputed, and other parties claimed to be 
 elected ; that, at the instance of the principal official, these 
 two persons presented themselves to be sworn in or make 
 the declaration, and that the official refused to allow them 
 to swear in or qualify.'' A rule absolute was granted in 
 the first instance. 
 
 Having now seen in what manner churchwardens may Duties of 
 be appointed, we proceed to consider the several duties to churchwardens. 
 be performed by them. Of these, there are some which 
 have been cast upon them by particular statutes, which are 
 altogether foreign to our consideration ; and we shall here 
 confine ourselves, generally, to the giving a full outhne of 
 such only of their duties as may in any sense be considered 
 ecclesiastical. 
 
 These duties may be classed under two heads : and, first, 
 we shall speak of that class which seems to have devolved 
 upon them as the successors of the ancient sidesmen or 
 questmen before spoken of. As such, it is their duty to 
 present whatever is presentable by the ecclesiastical law 
 of the country.*' 
 
 Twice, therefore, in each year, at the visitation of the Presentments, 
 archdeacon or other ordinary, they must present whatever 
 is amiss or irregular in their parish, either in the conduct 
 of the parson or the parishioners, and this whether they 
 know it of their own knowledge or from common fame.*' 
 
 And should they neglect or refuse to do this, they may 
 be compelled thereunto by the bishop, and proceeded 
 against in the ecclesiastical court, as wilful breakers of 
 their oaths. Formerly it was their duty to present such 
 as did not go to church f and in strictness this part of their 
 duty may still remain, never having been directly repealed 
 or superseded, though it would be inconsistent with the 
 provisions and with the spirit of the Toleration Act. It is 
 obvious that such a system of espionage would now be 
 odious and intolerable, and though often available for bad 
 or malicious motives, wholly inadequate to any good or 
 
 a Ex parte Winjield, 3 Ad. & Ell. 614. 
 
 ^ Es parte Diifl'ield and anctJier, 3 Ad. & Ell. 617. 
 
 '^ Prideaux on Churchwardens. 
 
 '1 Canon 115, 118; and see ante, " Visitations by Archdeacons." 
 
 *- Canon 90; 6 Edw.6, c. 1, s.2 ; 1 Eliz. c.2, s. 14 ; 3Jac.l,c. l,s.2.
 
 192 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 Must be made 
 before the new 
 chuicliwaidens 
 are sworn. 
 
 Presentable 
 offences. 
 
 To keep proper 
 order, cxc. at 
 churcli. 
 
 useful purpose ; and it may safely be numbered with things 
 past and never to be revived. 
 
 All presentments made by them must be made before 
 the new chiu-chwardens are sworn, for after that they are 
 fairly out of office, and have no longer any power to make 
 presentments, even as to any thing that may have arisen 
 during their time of holding office ; but any right or power 
 of presentment would devolve to the succeeding church- 
 wardens.'^^ As to the cases in which they would be bound 
 to present the conduct of the parson, we may give as 
 examples, if he should be irregular in the performance of 
 Divine service, or wilfully alter or omit any part thereof, or 
 introduce things not sanctioned by the Rubric ; or refuse 
 or neglect to perform any of his parochial duties, in visit- 
 ing the sick or administering the sacraments, or other 
 matters of like nature ; also, if he should be non-resident, 
 without such license or exemption as is allowed for thai- 
 purpose, for more than three months, either together or 
 accounted at several times in any one year ;" or if he should 
 in any manner be guilty of leading an immoral or irregular 
 life. 
 
 It would seem also to be a branch of this part of their 
 duties, that they are to see that curates are duly licensed 
 and approved of for that office ; that no strangers preach 
 in the church, unless they are satisfied that they are in holy 
 orders, and duly licensed to preach by the bishop ; that 
 there is no walking about, talking, or irreverence of any 
 kind in the church during the time of divine service;'' so 
 if any one should sit there with his hat on, a churchwarden 
 would be justified in taking it oft", so long as it was done 
 quietly and without disttubance.' But, in order that he 
 should be held justified, it would be essential that no un- 
 necessary violence were used. Two parties laid claim to 
 a pew ; the one by custom and j)rcscription, the other 
 because it had been assigned to him by the churchwardens ; 
 and on a Sunday, when the congregation were assembling, 
 and before the clergyman had entered, the first of these 
 claimants had taken his scat in the pew : the churchwar- 
 den desired him to leave it; and on his refusal, laid his 
 hand on him to turn him out, but he rose and walked out. 
 Tiicre was contradictory evidence as to the amount of vio- 
 h^ice actually used, and Rolfe, B., told the jury that the 
 chuichwardeu had a right to remove the party from the 
 pew in question, provided he used no unnecessary force ; 
 
 f Prideaux ; Anderdon on (Jliuidiwardens. 
 '' Canon 18, iii. 28 ; 2 Keble, 124. 
 
 ff 1 & 2 Vict. c. lOG. 
 ' 1 Saund. 1, M.
 
 OF CHURCHWARDENS. 193 
 
 if in the exercise of a fair discretion he thought it more con- 
 venient that the pew should be occupied by another party, 
 and if the removal could be eli'ected without any public 
 scandal or the disturbance of divine worship ; and he there- 
 fore left it only to the juiy to say whether any unnecessary 
 violence was used."" The jury considered that unnecessary 
 violence had been used, and returned their verdict for the 
 plaintiff, the party ejected from the pew, and who had 
 brought the action against the churchwarden for an assault. 
 
 But although churchwardens have thus far power and Not to interfere 
 
 authority to interfere in preserving order ancl decorum 7 ^'^^ ".'"''eiing 
 
 . ■• ■''- • t •• tliG service 
 
 during the time of divnie service, yet ni the administration 
 
 of divine service they have no power whatever to interfere. 
 This, as we shall afterwards notice, is more particularly 
 the immediate province of the clergyman, subject to the 
 control of the ordinary. Nor is it possible that the limits 
 of the duties of a churchwarden in this respect can be more 
 clearly and ably defined than in the following words of 
 Sir William Scott,' from which it plainly appears that all 
 actual interference, except in cases of overwhelming neces- 
 sity, which would justify any private person, no less than 
 a churchwarden, is illegal, while to observe and to com- 
 plain of or present what is amiss in these matters, is the 
 duty of a churchwarden, but a duty requiring discretion in 
 its exercise : " I conceive that originally the duties of Duties of 
 churchwardens were confined to the care of the ecclesiastical churchwardens 
 property of the parish, over which they exercise a discre- Lord'^Stowtll. 
 tionary power for specific purposes ; in all other respects 
 it is an office of observation and complaint, but not of con- 
 trol, with respect to divine worship ; so it is laid down in 
 Ayliffe, in one of the best dissertations on the duties of 
 churchwardens, and in the canons of 1571 : in these it is 
 observed, that churchwardens are appointed to provide the 
 furniture of the church, the bread and wine for the holy 
 sacrament, the surplice and the books necessary for the 
 performance of divine worship, and such as are directed 
 by law ; but it is the minister who has the use. If, indeed, 
 he errs in this respect, it is just matter of cotnplairit, which 
 the churchwardens are obliged to attend to ; but the law 
 would not oblige them to complain if they had a power in 
 themselves to redress the abuse. 
 
 " In the service the churchwardens have nothing to do 
 but collect the alms at the offertory ; and they may refuse 
 the admission of strange preachers into the pulpit, which 
 
 ^ Reynolds v. Monktoii, Bridgevvaler Summer Assizes, 1841, coram Eolfe, 
 B., 2 JVi. & R. 384. 
 
 ' Hutchins V. Denziloe and anolher, 1 Consis, T?. 173. 
 
 O
 
 194 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 Private persons 
 might interpose 
 in church in 
 cases of urgent 
 necessity, to 
 preserve deco- 
 lum. 
 
 Duties of 
 cliurchvvardens 
 as guardians of 
 the ciiurch, &;c. 
 
 they are authorized to do by the canon ; but when letters 
 of orders are produced their authority ceases."' Again, if 
 the minister introduces any irregularity into the service, 
 they have no authority to interfere ; but they may complain 
 to the ordinary of his conduct. I do not say there may 
 not be cases where they may be bound to interpose : in 
 such cases they may repress and ought to repress all inde- 
 cent interruptions of the service by others, and are the 
 most proper persons to repress them, and they desert their 
 duty if they do not. And if a case could be imagined in 
 which even a preacher himself was guilty of any act grossly 
 oifensive, either from natural infirmity or from disorderly 
 habits, I will not say that the churchwardens and even 
 private persons might not interpose to preserve the decorum 
 of public worship. But that is a case of instant and over- 
 bearing necessity that supersedes all ordinary rules. In 
 cases which fall short of such a singular pressure, and can 
 await the remedy of a proper legal complaint, that is the 
 only proper mode to be pursued by a churchwarden, if 
 private and decent application to the minister himself shall 
 have failed in preventing what he deems the repetition of 
 an irregularity. At the same time, it is at his own peril 
 if he makes a public complaint or even a private complaint 
 in an offensive manner of that which is no irregularity at 
 all, and is in truth nothing more than a misinterpretation 
 of his own." 
 
 Those ecclesiastical duties which seem to have devolved 
 upon churchwardens as the keepers and guardians of the 
 church and of all things appertaining to it, remain to be 
 considered in the next place, and are, at the present day, 
 more extensive and important than the preceding. 
 
 It is their duty, generally, to sec that every thing is fit 
 and in proper order for the clergyman duly to perform 
 divine service, — such as a convenient reading desk, &c. ; 
 and also what is necessary to enable him to perform all 
 other religious ceremonies enjoined by law, such as the 
 administering the sacrament, &c, ; and thus, for such pur- 
 poses, it is their duty to provide a stone font for baptisms, 
 set up in the proper place ; the communion table, a carpet 
 of (Iccrnt cloth to cover if, and a linen cloth at the time 
 of ininistrution ; also at the time of connnunioii to provide 
 a sufficient quantity of fine white bread and wholesome 
 wine, which must be brought to the comnmnion table in 
 a dear sweet stnnding ])ot of pewter, or of some purer 
 nu'tal. It is their duty also to set up the Ten Comnumd- 
 
 tliey sliould Itecp an entry of the nanie, &c. and report 
 
 ■" Not altogether 
 the same.
 
 OF CHURCHWARDENS. 195 
 
 raents at the east end of the church, and also to provide 
 a parchment book for registering baptisms, marriages and 
 burials, a coffer with three locks and keys to keep it in, of 
 the custody of which we shall speak hereafter : " nor does 
 the obligation as to providing these last appear to be 
 superseded by the recent acts providing for a civil register 
 of births, deaths and marriages ; and all the things above 
 mentioned are to be provided at the charge of the parish, 
 and vnider the discretion of the minister or ordinary .° 
 
 It is also a branch of this part of their duty to have the As sequestra- 
 sequestration and care of benefices during a vacancy or ^o'^s- 
 suspension. Upon any such avoidance they are to apply 
 to the chancellor of the diocese for the sequestration of the 
 profits thereof; and being thereupon authorized, they are 
 to manage the profits and expenses for the benefit of the 
 successor : they are also to take care that the church is 
 duly served by a curate, and to pay him out of the profits 
 such sum as the ordinary may fix. After the institution 
 of the new minister, they are to account to him. But it 
 should be observed, that although the churchwardens are 
 the proper officers for this purpose, and are bound to per- 
 form it if required, yet the ordinary may, if he pleases, 
 confide the trust to others.'' 
 
 But their principal and most important duty is to take As to fabric of 
 care that the fabric of the church, and all contained therein, ^^^ church, 
 whether added for the sake of convenience or by way of 
 ornament or otherwise, is maintained in a good and perfect 
 state, and for that purpose to make all such repairs as may 
 from time to time be necessary.^ And this being here laid 
 down generally, we must see in what manner it is restricted ; 
 for they have no power to deface, demohsh or remove any 
 thing in the interior of the church, even though it should 
 give offence to the parishioners ; '' but in every such case 
 the license of the ordinary must be first obtained, who has 
 pow'er to give order for the removal, and which order the 
 churchwardens are justified in executing, for of this matter 
 the ordinary is the sole and proper judge.' 
 
 Monuments, however, and every thing of that nature in As to monu- 
 memory of deceased persons, which have been once set up nients. 
 in the church with the consent of the proper parties, may 
 not be removed by the churchwardens, even though by the 
 consent of the ordinary ; for the ordinary would have no 
 
 " See post, for all things necessary to be provided, Book III. Chap. IV. 
 
 ° See Canons 80 — 83 ; Anderdon on Churchwardens. 
 
 P 28 Hen. 8, c. 11 ; 3 Bum's E. L. 340. 
 
 1 Canon 85, '■ 2 Cro. 366 ; Prideaux on Churchwardens. 
 
 ' 12 Co. 105 ; 3 Inst. 202. 
 
 o2
 
 196 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 power to give consent in such a case, and the heir of the 
 deceased would have his action against the churchwarden 
 meddhng with them/ 
 Repairing and But in the repairing or renewing any thing relating to 
 renewing (ai>nc, the fabric or utensils of the church, the churchwardens 
 utensils, &c. ^qq^ seek no advice nor consent, for they have been ex- 
 pressly invested by the parishioners with authority for this 
 purpose, and have been constituted the sole judges of what 
 is necessary to be done; and they cannot, consequently, be 
 called to account for any part of the parish money which 
 they may have expended in these matters, although laid 
 out improvidently. But any great indiscretion or impro- 
 vidence might perhaps be proper ground for the removal 
 of churchwardens, the proper mode of effecting which 
 would be by complaint to the ordinary ; " and as church- 
 wardens may not deface, demolish, or remove any thing 
 already existing in the fabric, or utensils of the church, so 
 neither can they add any thing new thereto without the 
 Adding to. express consent of the parishioners, and (if it affects the 
 What consents interior of the church) of the ordinary; for, as we have 
 are lequisiie, before seen, he is the sole judge of what is fit and decent 
 to be put tip in the church; and, if the churchwarden 
 should add any thing without the consent of such parties, 
 it might be taken down, and removed at the pleasure of 
 the ordinary, and the charges for the same be disallowed 
 by the parishioners. Wherever, therefore, the church- 
 wardens contemplate making any such addition as before 
 mentioned, two things are necessary : the consent of the 
 parishioners, and the license of the ordinary, must be ob- 
 tained. If the license of the ordinary be not obtained, 
 any individual parishioner might allege the same os a good 
 reason for not I'aying his j)ropoition of the rate made for 
 ])ayment of the ex|)enses of such addition.'' 
 Kepairs, &:c. of Wherever any such additions have been made, the same 
 additions. ^,.^ ^^^ ],^. considered theni-cfi^ilh as a part of the church or 
 
 its utensils, and to be repaired and renewed accordingly at 
 the sole discretion of the churchwardens. 
 A<Iditions and And with regard to what are to be considered as repairs 
 '''-'I^^'"' ""ly, and conscqtiently at the discretion of the church- 
 
 wai(h'ns, and what arc to be considered as additions re- 
 (jiiiiinij; the consent of the parishioners, or of the ordinary 
 and parishioners, it is said tlitit, if any necessary things 
 ])(;loMging to the church, such as doors, windows, reading 
 
 « Ibid.; and see "Ornaments of tlic ('liurdi," post, Book 111. Cli. IV.; 
 I'voll. Al.r. h'lrj. 
 
 " I'ridcMUX. 
 
 * See Andcrdon on Cliurciiwardcns ; and post, Book 111. Ch. JV. and liook 
 TV.
 
 OF CHURCHWARDENS. 197 
 
 desks, &c. have perished, or been lost or destroyed, the 
 replacing and restoring them at any distance of time are 
 to be considered as repairs ; and such necessary things 
 have been well defined to l^e all things fixed to the free- 
 hold, all things ordered to be provided by the canon law, 
 or by statute.^ 
 
 Another part of the duty of churclnvardens is to arrange Tlieir duty in 
 the distribution of seats in the church, and it is one which arranging seats, 
 belongs to them exclusively ; for though the opinion of "" 
 the vestry, and of the incumbent, ought to have great 
 weight with them, yet they are not bound to look to either 
 in the discharge of tliis duty/ We have already men- 
 tioned the case where an inhabitant was turned out of the 
 pew by a churchwarden, and it will be remembered that in 
 that case Rolfe, B., lays it down, that the churchwarden 
 had a right to remove the man from the pew, provided he 
 used no unnecessary force; if, in the exercise of a fair 
 discretion, he thought it right that the pew should be 
 occupied by another party. But the subject of the dis- 
 tribution of pews will be treated of more particularly here- 
 after, " 
 
 The cliurchwardens have also the custody of the keys of As to the bells, 
 the belfry; and are to take care that the bells are not run"- lielfrynnd ling- 
 Without proper cause ; but the mniister conjomtly with 
 them is to be the judge of the proper cause. ^ They would 
 seem therefore to have a clear right to interfere in the 
 belfry, or in the ordering of ringers. For the custody of 
 the keys implies that the belfry is to be opened or not at 
 their discretion ; and it is not the same case as with the 
 body of the church, which is to 1)e opened at stated times 
 for divine service ; and if the bells were improperly rung, 
 the churchwardens, according to the canon, would be the 
 responsible parties. '^ 
 
 The duty of churchwardens also so far extends to the Astodmich- 
 churchyard, as that tliey are bound to see that it is well '^^''^' 
 and sufficiently repaired, fenced, and maintained in such 
 manner as has been customary ; and that it be kept clear 
 from rubbish, thorns, &c. and in fact from any thing tliat 
 may be an annoyance to the parishioners ; and also, tliat 
 the churchways and stiles and gates are kept in good re- 
 pair.'' 
 
 y Prideaux ; and see post, Book III. Cii. IV. 
 z 2 Add. 432. 
 
 =1 See " Pews in Ciuirches," Book III. Ch. III. 
 b Canon 88. 
 -; Ibid. 
 
 ^ Prideaux, 36 ; 2 Roll. Abr. 217, 205 j 1 Curleis, 213 j and see " Church, 
 yard."
 
 198 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC, 
 
 Paths in church- 
 yard. 
 
 Consent of 
 churchwardens 
 to burial of 
 strangers in the 
 churchyard. 
 
 Remedies by 
 churchwardens. 
 
 But they cannot alter or vary the paths in the churcli- 
 yard without the permission of the incumbent, even though 
 it were done with the consent of, and for the benefit of the 
 parishioners ; and in a proceeding by the rector of a parish 
 against them for so doing, the defence set up, that it was 
 done for the advantage of the parishioners, was held to be 
 no justification.'^ 
 
 It has been said that the consent of the churchwardens 
 must be obtained before a stranger can be buried in their 
 churchyard ; and this may be true ; yet though the church- 
 wardens are proper parties to object to such burial, it is 
 very doubtful whether they have any absolute right to give 
 permission. For the permission of the incumbent, whose 
 soil is broken, would appear also to be requisite ; and al- 
 though not expressly determined, this appears to have been 
 so understood in the case of the parish of Hendon, decided 
 in 1815,' In that parish an agreement had for some time 
 existed between the churchwardens and the incumbent to 
 divide the fees which were paid for the burial of strangers : 
 and the incumbent having prevailed on the sexton to pay 
 the whole of the fees to him, the churchwardens brought 
 their action for a moiety, and it was held that they might 
 recover it. 
 
 Having now mentioned the various duties of church- 
 wardens (to many of which, however, it will be necessary 
 to recur under other heads), we come to speak of the re- 
 medies which the law enables them to pursue in the proper 
 discharge of their duties. And, first, since they are en- 
 trusted with the care of and have a special property in 
 the utensils of every kind belonging to the church, they 
 are to be the prosecutors or plaintiffs against any party 
 who should take away or do any damage to them.s In 
 such cases they must act jointly and together, for what 
 one of them does without the other has no force in law.'' 
 If the damage for which they bring their action were done 
 in their own time of office, then they may allege it in 
 damnum parochianorum or in damnum ipsorum ; but if done 
 in the time of any of their predecessors, or if the action 
 be against their predecessors, they must then allege it in 
 damnum jicirochianorum ; and if alleged in dammim ipsorum, 
 it would be bad.' In such cases the Ecclesiastical Court 
 has no jurisdiction, the remedy is by action at common 
 
 '• 1 Curteis, 260 ; 3 I'hill. 90. 
 f Littlewood v, Williitms, 6 Taunt. 277. 
 « Cro. Kliz. 1 '15, 179; 2 JJrownl. '215, 
 '' Cro. Jac. 234; l{ogers's K. L. 226. 
 ' Cro. I'Ai/.. 179; 1 Vent, 89.
 
 OF CHURCH WARDENS. 199 
 
 law; and If any of such utensils should be stolen, they 
 must be alleged in the indictment as the property of both 
 churchwardens. In an action brought by churchwardens, 
 it would be sufficient that they were churchwardens de 
 facto, that is, admitted and sworn into office, and acting 
 as such, although they might have been improperly elected.'' 
 We have before seen that churchwardens are fundi officio, 
 as soon as their successors are sworn ; and after that time 
 can commence no action. But if the action had been 
 commenced before their year expired, they might continue 
 it ex necessitate. ' 
 
 It is a consequence of the clearly established rule that Cannot be re- 
 no rate must be retrospective, that if a churchwarden imi^u'sed what 
 should expend money out of his own pocket for any of ptn^je'd b^gfore 
 such parochial purposes as before mentioned, he has no rate made, 
 legal method of obtaining any reimbursement of the same ; 
 and it would make no difference that the alterations or 
 additions on which the money was so expended were made 
 with the consent or by the direction of the ordinary ; but 
 whatever money is required for any such purpose, or for 
 the ordinary expenses attendant upon the service of the 
 church, is to be levied by rates duly made beforehand for 
 that purpose. And for this reason, if they neglect either 
 to make or to collect a rate until they are out of office, 
 they are then deprived of all legal power to do either;"" 
 so that their only safe course is first to have well surveyed 
 and computed the repairs, or whatever other legal purpose 
 they have in contemplation; and, having raised that money 
 by a rate, then, and not before, to give their order for 
 having the repairs, &c. executed." And if a church rate 
 were made for the purpose of reimbursing churchwardens, 
 the payment of it by any parishioner refusing could not be 
 compelled. ° 
 
 Churchwardens are clearly liable to be punished, if they 
 wilfully neglect, or improperly or corruptly discharge their 
 duties. P Thus, they are liable to be indicted, if they receive 
 money or other gifts corruptly, during the time they are 
 in office ; as where one was indicted for having accepted 
 a silver cup from J. S., for giving him the situation of 
 gallery keeper in the church of which he was the church- 
 warden, the matter was held clearly indictable. 
 
 And it seems that the Ecclesiastical Court has ample Remedies 
 
 authority to punish a churchwarden for any neirlect of agai"st church- 
 •> ^ ./ o wardens. 
 
 k 1 H. Black. 559, ' 2 Stra. 852. 
 
 '" Prideaux, 106. " 12 East, 558 ; 2 Ld. Eaym. R. 1012. 
 
 « 5 Ves. 547 ; 5 Madd. 4. See " Church Rates." 
 
 P 1 Sid. 281.
 
 ^00 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 duty committed to liis charge; but it must clearly appear, 
 both that the neglect is Avilful, and that the churchwardens 
 have not taken all the clearly legal means in their power; 
 and further, that some actual damage results therefrom. 
 Criiniual pro- That this last result must follow before the churchwardens 
 feeding. could be punishable, appears strongly from a recent case, 
 
 where a vestry having been called for the purpose of 
 making a rate, one of the churchwardens thought fit to 
 propose as a resolution, " that this vestry, considering 
 church-rates at all times bad in principle, and ])articularly 
 unjust in practice, and quite uncalled for at the present 
 time, resolved to adjourn all further consideration of the 
 subject, for which they have been called, until this day 
 twelvemonth." The resohition was carried, and no church 
 rate made; and the churchwarden was, consequently, 
 libelled in the Ecclesiastical Court; upon which occasion 
 Sir H. Jenner observed, *' A churchwarden is not punish- 
 able for expressing such an opinion, unless the consequence 
 followed that the church fell into a state of dilapidation; 
 this court cannot proceed to })unish a churchwarden merely 
 for a vote expressing what he believes to be true. The 
 only question is, whether the church is out of repair in 
 consequence of the resolution, and of the rate being refused. 
 In all cases of criminal proceedings the charge should be 
 fully stated, that by refusal of the rate, and through the 
 neglect or misconduct of the churchwardens, the church 
 is not in a suflicient state of repair."' 
 
 In another case of criminal j)roceeding against church- 
 wardens, it aj)peared that the archdeacon had ordered the 
 repairs to be undertaken, and had monished the church- 
 wardens to carry the order into ell'ect; that the vestry had 
 resolved that the church should be repaired ; that a con- 
 tract had been entered into for that purpose; that the 
 churchwardens refused to sign the contract; and that the 
 church was still out of re])air. T^ut even these allegations 
 were held insuOicient to support a criminal proceeding 
 against churehwiirdens ; and it was held that it did not 
 appear sufUciently dear from them that the churchwardens 
 had been guilty of any breach of duty cognizable in the 
 Ecclesiastical Coiu't ; for it did not ai)p<-'ar but that the 
 refusal to sign the contract niighl have been proper \nider 
 the circumstances; and therefore, that as the church was 
 not alleged to be out of repair, in consequence of any wilful 
 nei^leet l;y the ehurehwanlens, the sjieeial charges of de- 
 lincpjcncy were in fact no c barges at all ; that the court 
 would not infer wilful disobedience to the order of the 
 r Cooper v. Wickham, 2 Curt. 310.
 
 OF CHURCHWARDENS. 2Ul 
 
 archdeacon ; nor would it presume, in tlic al>sencc of evi- 
 dence, that the churchwardens had been guilty of any 
 neglect of duty, and that the mere fact of the church being 
 out of rei)air would certainly not justify the court in punish- 
 ing the churchwardens." 
 
 It may be inferred from the above cases tliat a criminal Difficuliies in 
 proceeding against churchwardens is one of considerable il'c conduci of. 
 difficulty, and requiring nuich care and technical nicety in 
 the conduct of it. There will usually be a succession of 
 acts to be charged as done, or omitted to be done, by 
 churchwardens, before it can be clearly shown that the 
 bad state of repair of the church can be attributed to them 
 exclusively ; all these acts must be such as it is a plain 
 breach of their duty to do, or omit to do, and in each of 
 them it seems that wilfulness in such breach of their duty 
 must be both alleged and proved. 
 
 But there is another mode of proceeding against church- Civil pioceed- 
 wardcns, wliich, in jnactice, would now probably much '"S''' 
 more often be had recourse to ; for, if no fault is attributed 
 to churchwardens personally, but a case arises as to the 
 propriety of repairs, and the churchwardens are willing to 
 do their duty, but obstacles beyond their control intervene, 
 the proper mode of proceeding is in a civil form : as if, to 
 a monition calling u|)on them to repair the church, they 
 should return that they had called a vestry, and that the 
 vestry refused a rate, they would be exculpated ; for they 
 are not only not bound to .s])end their own money, and 
 incur debt, but it would be illegal in them so to do.' 
 
 All churchwardens, at the end of their year, or within a Cliuichwardcns 
 month afterwards at the most, shall, before the minister 'o^^'^o""'- 
 and parishioners, give up a full account of such money as 
 they have received, and also what particularly they have 
 bestowed in reparation and otherwise for the use of the 
 church ; and, last of all, upon going out of their office, 
 tliey shall truly deliver up to the parishioners whatsoever 
 money, or other things of right belonging to the church or 
 parish, which may remain in their hands, that it may be 
 delivered over by them to the next churchwarden by bill 
 indented." 
 
 And if upon going out of office, they should refuse to itcmedics if 
 account, they may be presented at the next visitation by '''cy refuse. 
 the new churchwardens,— or, indeed, any inhabitant of the 
 parish may call them to account before the ordinary ; or 
 
 ' For these, and several olher questions, arising out of the duties of chuicli- 
 warilcDs in respect of repairs and rales, we must refer to the chapter on Church 
 Rates. 
 
 « Canon 89.
 
 202 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 May account to 
 select persons 
 by custom. 
 
 Allowing the 
 accounts. 
 
 Proving ilcms 
 of account. 
 
 their successors may have an action against them for the 
 church goods, or for any damage done to the parish con- 
 trary to their trust.'' The dehvery of this account may be 
 compelled by the spiritual court; but such a remedy is 
 wholly inadequate ; for it has been held that that court 
 has no authority to examine into the propriety of the 
 charges ; so that any illusory account which might be 
 given in, would seem to be an answer to, and put a stop 
 to such a proceeding ; for if any further steps were taken 
 in that court, after an account had been delivered, a pro- 
 hibition would be granted. ^ Neither have justices of the 
 peace any jurisdiction over churchwardens in respect of 
 church accounts ;^ but churchwardens are bound to allow 
 an inspection of their accounts ; and upon the party stating 
 some special reason for which he wishes to see the ac- 
 counts, a mandamus to compel them to allow such in- 
 spection will be granted. Nor will it be any sufficient 
 answer to such on application to the court, that a penalty 
 is imposed by statute 17 Geo. II. c. 38, for improperly 
 refusing such inspection.*^ 
 
 If the custom of the parish is for a certain number of 
 persons to have the government thereof, and the account 
 is given to them, the custom is good, and the account so 
 given is a good account.'' 
 
 If the account thus rendered is allowed by the pa- 
 rishioners, or the major part of them, in vestry assembled, 
 it is to be entered in the church book of accounts, which 
 every parish is to have for that purpose ; and those who 
 allow the account are there to set their hands to it, in 
 proof of their assent to the same, and the balance to be 
 handed over as already mentioned. 
 
 With respect to the items of the account, the oath of 
 churchwardens is generally taken as sufficient to prove 
 the i)ayment of all sums under forty shillings, unless they 
 are disputed by the parishioners, or suspicions are enter- 
 tained of the fairness of such items. It is however best 
 and most satisfactory for all parties, that vouchers of all 
 disbursements should if possible be produced. With re- 
 si)cct to the payment of all larger sums than forty shil- 
 lings, receipts or vouchers are always required to be pro- 
 duced, and can in no case be dispensed with ; ^ and if 
 required, it is necessary that those payments should also 
 be proved by witnesses j)resent at the making thereof, who 
 shall subscribe their names to the vouchers and receipts 
 
 * I'rideaux's Churchwardens. v LemuHV.Gimltii,3T. Tl. 3. 
 
 '■ 1 Kebic, 574. '^ U. v. Clear, 4 Bam. & Cres. 899. 
 
 '' 1 Burn's Justice, 644 j Gibs. 242. <• I'rideaux, 93.
 
 OF CHURCHWARDENS. 203 
 
 for the authenticity of the same ; and in default thereof, 
 these accounts will not be allowed to pass as binding on 
 the parishioners. And when they have thus accounted to 
 the satisfaction of the parishioners, and the account has 
 been thus allowed, they are fundi officio, and it shall not 
 afterwards be in the power, either of the parishioners or 
 of the spiritual court, to make them account again, unless 
 some fraud in their accounts be afterwards discovered/ 
 
 But if the ordinary has any reason to be dissatisfied 
 with the accounts of churchwardens respecting the church 
 goods, he may, although the same have been allowed in 
 vestry, call the churchwardens before him, and make them 
 produce a further account concerning them ; and if it 
 should then appear that they have disposed of any of the 
 goods or utensils of the church, with the consent of the 
 parishioners, but without his consent, in order to defray 
 in part or in the whole the necessary church rates or other 
 parochial rates or expenses, which must otherwise have 
 been defrayed by the parishioners out of their own pockets, 
 he may compel the said churchwardens to replace the 
 same at their own expense, or otherwise inflict such 
 punishment as he shall deem expedient. ^ And the reason 
 of this is obvious ; for were it otherwise, the parishioners 
 might all combine to defraud the church of all her costly 
 ornaments, plate, &c. in order to relieve themselves from 
 the payment of parish rates, or even for their own private 
 and fraudulent emolument. 
 
 It will be observed from what has been said on this 
 subject of accounts, that some further remedy than those 
 mentioned in our books on these subjects appears neces- 
 sary, in order to obtain a satisfactory account from church- 
 wardens. It does not appear at present that any case has 
 occurred, in which they have been compelled to account 
 by bill in Chancery, filed against them for that purpose ; 
 but as they are trustees of the funds placed in their hands 
 for the parish, there appears to be no reason why they 
 might not, like all other trustees, be called to account in 
 this manner by the proper parties. 
 
 The office of a churchwarden may determine before the office may de- 
 end of his year of service ; for if he ceases to inhabit the teimine before 
 parish, his place must be supphed by a new election. ' ^^^^ '^ ended. 
 And it is said to have been decided more than two cen- 
 turies ago, that the parishioners may displace their church- 
 wardens, though chosen for a time certain, before the ex- 
 piration of that time. And as to the mode by which they 
 
 <i Gibs. 194; Wood's Ins. book i. oh. vii.; Bun. 259. 
 
 e Prid. 94 ; 2 Roll.R. 71. f 1 Hagg. Cons. 383.
 
 204 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 may be displaced, Gibson says, that if" the churchwardens 
 misconduct themselves, the parishioners have a remedy by 
 complaint to the ordinary in order to their removal. ^ 
 
 Section 3. 
 
 Of Parish Clerks. 
 
 Origin of tlic For our knowledge of the origin of the office of parish 
 
 °^^^' clerk, we are principally indebted to a constitution of 
 
 Archbishop Boniface, which declares that the benefices of 
 holy water were from the beginning instituted from charity, 
 that poor clerks in the schools might be maintained with 
 the profits thereof, until they were by improvement qualified 
 for something greater,'' 
 
 Those who had these benefices of holy water were called 
 aqua hajuli, and were assistants to the minister in carry- 
 ing the holy water ; and it is doubtful whether the office 
 of parish clerk may ever originally have existed independ- 
 ently of that of the aqua bajulus ; but it is ])robable that 
 such an office did exist in some parishes, though by no 
 means universally ; such parish clerks being in holy orders 
 and assistants to the minister. And that after the consti- 
 tution of Archbishop Boniface, which directed that the 
 office of aqucc bajulus should be bestowed on a real clerk, 
 the assistant of the minister, in parishes where such ex- 
 isted, was the person on whom it was usually conferred, 
 until the two offices in time became united, and then the 
 aqtuc bajulus, in parishes where there had been no as- 
 sistant clerk, performed such duties as were performed in 
 other parishes where the oflices of aqmc bajulus and as- 
 sistant clerk had been united. 
 
 And in the above-mentioned constitution, it is declared 
 that the rectors and vicars, who are more concerned to 
 know who are fittest for such benefices, do endeavour to 
 place such clerks in the aforesaid offices, who, according 
 to their judgment, are skilled and able to serve them 
 agreeably in the divine administration, and iv/to will be 
 obedient to their commands.^ But it appears that the oc- 
 casion of making this constitution was, that disputes had 
 arisfu between rectors and vicars of churches and their 
 parishioners about conferring the said benefices ; and as 
 the constitution could not pievail against the custom, if 
 such existed, it has rather had the contrary effect from 
 what was intended by it; for it has been quoted against 
 
 F See Dawes V. ]\'ilUiims, 2 Add. 130. 
 
 •■ Johns. Constitutions of Doniface, 1261. . 'Ibid,
 
 OF PARISH CLERKS. 205 
 
 the canon next mentioned, as evidence to prove that the 
 power of the minister to appoint the clerk liad been con- 
 tested at a much earher period. 
 
 By the 91st canon it is ordained, that no parish clerk, Right of elect- 
 upon any vacation, shall be chosen in the city of London '"=.°f """^i- 
 or elsewhere, but by the parson or vicar ; or where there "^""o* 
 is no parson or vicar, by the minister of that place for the 
 time being', which choice shall be signified by the said 
 minister, vicar or parson to the parishioners, the next 
 Sunday following, in the time of divine service. But as 
 the canon could not prevail against a custom, the right of 
 nominating the parish clerk still continued to be a matter 
 of frequent contest between the minister and the parish- 
 ioners ; and we now may consider that the matter rests on 
 precisely the same grounds as we have already seen in the 
 case of election of churchwardens, namely, that where no 
 custom can be clarly proved to the contrary, the nomina- 
 tion shall be according to the canon ; but that if a custom 
 can be clearly estabhshed, the canon shall not prevail 
 against it, for no canon can repeal or alter a custom. 
 
 As to all churches or chapels built, acquired or appro- In new churches 
 priated under the earlier church building acts, it is ex- or chapels, 
 pressly enacted, that every clerk shall be annually ap- 
 pointed by the minister of such church or chapel, but in 
 the later acts no such enactment is to be found ; in these 
 churches or chapels therefore, since there can be no custom, 
 the appointment of the clerk would be according to the 
 canon. 
 
 The same canon directs that the clerk shall be of the Qualification, 
 age of twenty-one at the least ; known to the parson, vicar 
 or minister to be of honest conversation, and sufiicient for 
 his reading, writing, and also for his competent skill in 
 singing, if it may be. And where the appointment of the 
 clerk is with the minister, who may be supposed to derive 
 his right from the canon, he would be bound" by it, so 
 that he could not appoint a clerk under the age of twenty- 
 one; but where the appointment is with the parishioners, 
 as they exercise the right independently of, or rather in 
 defiance of the canon, there does not appear to be any- 
 thing to prevent them, if they please, from choosing a clerk 
 imder the age of twenty-one ; for although ])arish clerks, License not 
 after being chosen, were formerly licensed by the ordinary, always nrces- 
 who might thus perhaps have had some check upon an '''^'^* 
 appointment inconsistent with the canon, yet it was sub- 
 sequently settled that such license was unnecessary ; ' and 
 except in those cases under the recent act, to be presently 
 
 i Peak V. Bourne, Sir. 942 ; 2 Roll. Abr. 286.
 
 206 
 
 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 Clergymen may 
 be appointed to 
 the office and 
 required to act 
 as curates. 
 
 License in all 
 such cases 
 necessary. 
 
 Incumbents are 
 not to bo thereby 
 exempl(;(l from 
 providing oilier 
 curates, &c. 
 
 mentioned, where the clerk is a person in holy orders, no 
 mandamus would probably be granted to the ordinary to 
 swear or license a parish clerk. 
 
 From and after the 29th day of July, 1844, whenever 
 any vacancy shall occur in the office of church clerk, chapel 
 clerk, or parish clerk, in any district, parish or place, it 
 shall be lawful for the rector or other incumbent, or other 
 the person or persons entitled for the time being to appoint 
 or elect such clerk, if he shall think fit, to appoint or elect 
 a person in the holy orders of deacon or priest of the United 
 Church of England and Ireland to fill the said office ; and 
 such person so appointed or elected as aforesaid shall, 
 when duly licensed as after provided, be entitled to all the 
 profits and emoluments of such office, and shall also be 
 liable in respect thereof, so long as he shall hold the same, 
 to perform all such spiritual and ecclesiastical duties within 
 such district, parish or place as the said rector or other 
 incumbent, with the sanction of the bishop of the diocese, 
 may from time to time require;'' and this, it will be seen, 
 is a return to the ancient practice, and agrees with the 
 directions of the constitution of Archbishop Boniface. 
 
 And every such appointment or election of a person in 
 holy orders, if made by any other person or persons than 
 by the rector or other incumbent of such district, parish or 
 place, shall be subject to the consent and approval of such 
 rector or other incumbent of such district, parish or place ; 
 and no person in holy orders, so appointed or elected as 
 aforesaid, shall be competent to perform any of the duties 
 of his office, or any other spiritual or ecclesiastical duties 
 within such district, parish or place, or to receive or take 
 any of the profits or emoluments of his said office, unless 
 and until he shall have duly obtained from the bishop of 
 the diocese within which such district, parish or place is 
 situate, such license and authority in that behalf as are 
 required and usual in respect of stipendiary curates ; but, 
 nevertheless, such license and authority, when so obtained, 
 shall entitle the person so obtaining it to hold the said 
 office, and to receive and take the profits and emoluments 
 thereof, until he shall have resigned the same, or have been 
 susj)ended or removed, without any annual or other re- 
 aj)i)ointment or re-election thereto.' 
 
 But no rector or other incumbent in a parish, &:c. where 
 any person in holy orders shall have been appointed or 
 elected to fill the office of clerk, shall, by reason of any 
 such ])rovisions, be exempt from any duty or obligation of 
 employing within the same district, parish or place any 
 " 7 & 8 Vict. c. 59, s. 1. • Sect. 3.
 
 OF PARISH CLERKS. 207 
 
 curate or other assistant to which by any law or usage he 
 is or may be ah-eady hable ; but it shall be lawful for the 
 bishop of the diocese from time to time to require every 
 such rector or other incumbent to provide, or for the said 
 bishop to nominate and license, such other curates and 
 assistants to officiate within every such district, parish or 
 place, in addition either to the person or persons so in- 
 tended to be employed as aforesaid, or to such lecturer or 
 preacher, or to such church clerk, chapel clerk or parish 
 clerk, and to make regulations for the payment of the sti- 
 pends of such other curates and assistants, as fully and in 
 the same manner and subject to the same restrictions as 
 he might have done before.™ 
 
 A parish clerk, not being a person in holy orders, has a When parish 
 freehold in his office," and this whether appointed by deed ^'^■"J^ '^'J^. ^ . 
 or only by parol, for a parol appointment has been held office" 
 sufficient to confer this office upon him;° but w^here a 
 person in holy orders has been appointed under the recent 
 statute, he shall not, by reason of his appointment, acquire 
 any freehold or absolute right to or interest in such office, 
 or to the profits and emoluments thereof.^ 
 
 The principal difficulty in the law as regards parish clerks Removal of and 
 has arisen, not as to the manner of their election or nomi- deprivation, 
 nation, since that appears to be very clearly defined as 
 above stated, but as to the nature of that office, and con- 
 sequently as to the power of depriving them of it, and by 
 whom and in what manner it may be done. Although this 
 appears now to be sufficiently settled and defined by a sta- 
 tute made principally for that purpose, yet as that statute 
 is so recent that no case can at present have occurred under 
 it, it will be better to mention the state of the law as it 
 existed prior to the month of July, 1844. 
 
 The general effi^ct of several decisions on this subject Former deci- 
 was, that the minister had full right to remove his clerk ^''°." «" *'^'^ 
 from his office upon sufficient grounds, but that he could '^°'"^' 
 not remove him arbitrarily; and further, that although 
 there might exist sufficient grounds, yet that he was not 
 therefore to be removed in the first instance, and without 
 being summoned to answer the charges and accusations 
 made against him ; and that if the parish clerk should be 
 removed without these prehminaries, then that a manda- 
 mus would be granted to restore him to his office. Thus, 
 in an early case before Lord Kenyon, a minister was di- 
 rected by mandamus to restore the parish clerk whom he 
 had removed ; and, in his return to the mandamus, the 
 
 '" Sect. 4. ■> 2 Roll. Abr. 234. 
 
 « Salk. 536. p 7 & 8 Vict. c. 59, s. 2.
 
 208 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 minister set out what it was admitted would be sufficient 
 ground for the removal, but it did not show that the clerk 
 had ever been summoned to answer the charge before he 
 was removed. Lord Kenyon therefore says : " If we hold 
 this return to be sufficient we should decide contrary to 
 one of the first principles of justice, audi alteram "partem. 
 It is to be found at the head of our criminal law that every 
 party is to have a right of being heard before he is con- 
 demned, and I should tremble at the consequence of giving 
 up this principle. I have no doubt that the minister has 
 acted on the best motives, and notwithstanding our decision 
 he will be perfectly justified in renewing his accusation 
 against this person, and in removing him from his office in 
 a more formal manner."'' 
 
 Other cases were subsequently decided upon exactly the 
 same principle;"" and the return to the mandamus was 
 always insuflicient, however gross the alleged misconduct 
 of the clerk, unless it appeared that an opportunity had 
 been offered for his defence. 
 
 This principle, which in itself appears so just and rea- 
 sonable, was in a very recent case carried out to an extent 
 of which the wisdom does not seem so obvious, and 
 which was probably the immediate occasion of the provi- 
 sions of the new statute. 
 
 The j-eturn made by the minister to a mandamus, order- 
 ing him to restore the parish clerk whom he had deprived, 
 set out several cases of gross misconduct committed in the 
 church in the presence and hearing of the minister himself; 
 for which cause the minister stated that he had deprived 
 him of his office in due course of law. To this retinn the 
 objection was made, that it did not show that the clerk 
 had ever been summoned to explain or answer the charges. 
 For the vicar, it was contended, that he had a right to 
 remove on the view of the clerk's conduct, and that any 
 further evidence on such a matter must be altogether 
 suj)ernuous. But Lord Denman held that it was imj)or- 
 tant that the general rule laid down in J^ex v. Gasliin 
 should be adhered to even in this case. '' We do not 
 think," he says, " the application of this rule is excluded, 
 because the charge rests on the minister's personal obser- 
 vation, inasunich as that is not inconsistent with the dis- 
 proof of criminal motives and intentions, and with the 
 mitigation to which other facts might ])ossibly entitle the 
 accused. This [)rinci])le apjjcars to us valuable to the 
 judge, whom it tends to secure against dealing too hastily 
 from his own fu'st imj)ression ; and we think it indispen- 
 
 'I n. V. Gaskin, I). 1)., 8 T. K. 209. •• See Ti. v. DavUs, 9 1). & H. 234.
 
 OF PARISH CLERKS. 209 
 
 sable in all cases for the due administration of every judi- 
 cial power/ 
 
 But now, any person in holy orders who may have Present state of 
 been appointed or elected parish clerk, shall be at all *^^ '^"'; 
 times liable to be suspended or removed from his office, in ^'f ''.^ '" ^'"'^ 
 the same manner, and by the same authority, and for such 
 or the like causes, as those whereby any stipendiary cu- 
 rate may be lawfully suspended or removed ; and an appeal 
 to the Archbishop of Canterbury is given, as in the case 
 of a stipendiary curate.' 
 
 And with respect to parish clerks who are not in holy Clerks not in 
 orders, it is now provided, that if at any time it shall ap- '^°^y o^'lers. 
 pear, upon complaint or otherwise to any archdeacon or 
 other ordinary, that any person not in holy orders, hold- 
 ing or exercising the office of church clerk, chapel clerk 
 or parish clerk, in any district, parish or place within and 
 subject to his jurisdiction, has been guilty of any wilful 
 neglect of, or misbehaviour in his said office, or that by 
 reason of any misconduct he is an unfit and improper 
 person to hold or exercise the same, it shall be lawful for 
 such archdeacon or other ordinary forthwith to summon 
 such church clerk, chapel clerk or parish clerk to appear 
 before him, and also by writing under his hand, or by such 
 process as is commonly used in any of the courts ecclesi- 
 astical for procuring the attendance of witnesses, to call 
 before him all such persons as may be competent to give 
 evidence or information respecting any of the matters im- 
 puted to or charged against such clerk ; and such arch- 
 deacon or other ordinary may, if he see fit, examine upon 
 oath, to be by him administered in that behalf, any of the 
 persons so attending before him, resjjecting any of such 
 matters ; and may thereupon summarily hear and deter- 
 mine the truth of the matters so imputed to or charged 
 against such clerk ; and if, upon such investigation, it 
 shall appear to the satisfaction of such archdeacon or 
 other ordinary, that the matters so imputed to or charged 
 against such clerk are true, it shall be lawful for the said 
 archdeacon or other ordinary forthwith to suspend or re- 
 move him from his office ; and by certificate under his 
 hand and seal, directed to the rector or other officiating 
 minister of the parish, district or place wherein such clerk 
 held or exercised his office, to declare the office vacant; 
 and a copy of such certificate shall thereupon by such 
 rector or other officiating minister be affixed to the prin- 
 cipal door of the church or chapel in which sucli clerk 
 
 • Beg. V. Smith, Queen's Bench, Hil. T. 1844. 
 ' 7 & 8 Vict. c. 59, Stat. 2 ; and see ante, Stipendiary Curates. 
 
 P
 
 210 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 usually exercised his office; and the person or persons 
 
 who, upon the vacancy of such office, are entitled to elect 
 
 or appoint, may forthwith proceed to elect or appoint 
 
 some other person to fill the same." 
 
 Power to re- And in case any person, having ceased to be employed 
 
 move clerk so i^ such office, or having been duly suspended or removed 
 
 deprived from therefrom, shall at any time refuse or neglect to give up the 
 
 premises neiu in , 1^1*11* ii 
 
 right of his possession of any house, buildmg, land or premises, or any 
 office. part or parcel thereof, by him held or occupied by virtue or 
 
 in respect of such office, it shall be lawful for the bishop of 
 the diocese, upon complaint thereof to him made, to sum- 
 mon such person forthwith personally to appear before 
 him, and to show cause for such refusal or neglect ; and 
 upon the failure of the person so summoned to obey such 
 summons, or, upon his appearance, to show to the said 
 bishop such cause as may be deemed by the said bishop 
 sufficient for such refusal or neglect, the said bishop shall 
 thereupon grant a certificate of the facts aforesaid under 
 his hand and seal, to the person or persons entitled to the 
 possession of such house, building, land or premises, who 
 may thereupon go before any neighbouring justice of the 
 Jurisdiction of peace, and such justice, upon production of such certifi- 
 justices. cate and proof of such wrongful retention of possession, 
 
 shall, and he is by the act required to issue his warrant, 
 under his hand and seal, directed to the constables or other 
 peace officers of the district, parish or place within which 
 such house, building, land or premises is or are situate, or 
 to the constables or other peace officers of any neighbour- 
 ing district, parish or place, requiring them forthwith to 
 expel and remove from the said house, building, land or 
 premises, and from every part and parcel thereof, the per- 
 son so wrongully retaining; possession thereof, and to de- 
 liver the peaceable possession thereof to the person or 
 persons so entitled to the same ; and such constables or 
 other peace officers are required promptly and effectually 
 to obey and execute such warrant, and thereupon it shall 
 be lawful for them also to levy upon the goods and chat- 
 tels of the person so by them expelled and removed, the 
 necessary costs and expenses of executing such warrant, 
 the amount whereof, in case the same shall be disputed, 
 shall be forthwith settled and determined by the said jus- 
 tice of the peace by whom the said warrant was so issued, 
 or by any other justice of the peace residing in or near 
 the said district, parish or place, whose decision thereupon 
 shall be final, and who is authorised to make such order 
 in that behalf as to iiim shall seem reasonable." 
 " Sect. 5. "^ Sect. 6.
 
 PARISH CLERKS. 211 
 
 A parish clerk inay appoint a deputy to discharge the Deputy clerk, 
 duties of the office for him ; >' and if such deputy clerk 
 had been removed, no mandamus would have been granted 
 to restore him:^ it was consequently frequently found 
 useful for clergymen to appoint some friend to be their 
 parish clerk, who then immediately appointed a deputy, 
 and the trouble and difficulty of a formal process in order 
 to remove a parish clerk were thus got rid of : nor does it 
 appear that the law in this respect is in any manner altered 
 by the recent statute ; for there is no law which declares 
 that the person to be appointed the parish clerk shall be 
 a person residing in the parish, but only that he shall be 
 known to the minister to be of honest conversation, and 
 sufficient for his reading, kc. The process, therefore, 
 which the recent statute prescribes and renders necessary 
 for the removal of a parish clerk, may, as it seems, be 
 evaded by any minister who prefers that his clerk should 
 in fact be always a deputy. 
 
 The exercise of the office of parish clerk by a sufficient 
 deputy, who shall faithfully perform the office and properly 
 demean himself, is by the recent statute declared not to be 
 a wilful neglect of his office on the part of the parish clerk, 
 so as to render him liable for such cause alone to be sus- 
 pended or removed therefrom.'^ 
 
 It is directed by the canon already mentioned that the Fees to clerk, 
 clerk shall have and receive his accustomed wages either 
 at the hands of the churchwardens or by his own collec- 
 tion, according to the custom of the parish; and this 
 therefore being according to custom, the spiritual court is 
 not the proper place for the clerk to bring any suit for his 
 fees. He must consequently bring his action in the common 
 law courts either against the churchwardens, if the custom 
 be that he should be paid by them, or against any parish- 
 ioner who refuses to pay him, if it be the custom for them 
 to pay. As for the fee itself and its amount, it seems to 
 depend entirely upon custom ; and although it has been 
 said that where no fee is due by custom, the clerk might 
 maintain action for quantum meruit, or proceed by suit in 
 equity,'' it would appear very doubtful how far lie could 
 succeed in recovering any thing by either of those re- 
 medies. 
 
 The church-building commissioners are empowered, with 
 consent of the vestry, to fix the clerk's fees in any parish, 
 and, with the consent of the bishop, to fix his fees in dis- 
 trict or parochial chapelries ; and it is directed that the 
 
 y Strange, 942. ^ Lofft, 434. 
 
 a 7 & 8 Vict. c. 59, s. 5. ^ Stra. 1108 ; Rogers's E. L. 642. 
 
 p2
 
 212 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 fees so fixed may be recoverable in such manner as ancient 
 leoal fees may be recovered : ^ and it is also by the same 
 act directed that salaries to the minister and clerk may be 
 assioned out of the pew rents. The commissioners may 
 also" in certain cases make special arrangements as to the 
 proportions of fees to be assigned to the clerk of the new 
 ]iarish and of the old parish respectively. But there is 
 little to be said on this subject generally, for the commis- 
 sioners have an extensive discretionary power in the matter, 
 and the arrangement in each particular parish may be dif- 
 ferent. But however different the fees may be in amount, 
 they would be recoverable in the same manner as above 
 mentioned. 
 
 Section 4. 
 
 Sextons, ^"c. 
 
 Dr. Burn says, " the sexton, segsten, segerstane, sa- 
 crista, the keeper of the holy things belonging to the 
 divine worship, seemeth to be the same with the ostiarius 
 in the Rumish Church ;" originally the door-keeper or por- 
 ter, which seems indeed to approach near to this office at 
 present. 
 Nature of the The nature of the ofhce appears to depend entirely upon 
 
 office. the custom of the ])articular parish. In some, and indeed 
 
 in the greater number of parishes, the sexton is nominated 
 by the parson, and so it has been said to be in all cases 
 by the general law, and in the absence of any custom to 
 the contrary ; but in some other parishes he nuiy be chosen 
 by custom by the parishioners. And again, in some 
 parishes the sexton may be elected for life, and may con- 
 secpu'utly have a freehokl in his olhcc, while in others he 
 may lie elected onlv during pleasure.'' 
 \Vlienliecannot 1'' parishes in which by custom the appointment of sex- 
 be deprived, ton is for life, he becomes entitled to all those privileges 
 ^\ hicli are iiici(l(Mit to a I'reehold oilice ; so that in such ease, 
 althouuh he might be punished by ecclesiastical censures, 
 he could not be deprived of his office by such means." 
 JM.mdamus lo Since, however, it is doubtful whether the office be a 
 
 rtsioic 01 n.lmit. f,vehol(l or not, it seems that the Court of Queen's Bench 
 would not issue a DKinddinns to restore to the oilice, unless 
 the. appliciilion were accompanied by a eertilicate to show 
 that in the ])aiisli in (piestion he was chosen for life; lor 
 
 «^ .09 (ieo. ;3,c. l:iJ, s. 11. 
 
 •' Sec Uet V. S(ohe Damciel, Tj AJ. .Jv T,!!. 584 ; Ni\qhthigale v. Manhall, 
 2 I'.arn. & Ci ess. 313. 
 >■■ 2 Koll. llcp. '234.
 
 SEXTONS, ETC. 213 
 
 a return to a mandamus tluit the sexton in the parish in 
 question was not cliosen for hfc, but that lie might be 
 lemoved at pleasure, would be good : ' if, however, the 
 application were for a mandamus to admit to the office one 
 who had been nominated or elected, it does not appear that 
 such a certificate would be necessary, for the same reason 
 would not apjily. 
 
 Where a mandamus is granted, either to restore or to 
 admit, it would be directed, as it seems, to the church- 
 wardens, if the election were with the j)arishioners ; to the 
 parson, if the nomination was with him." 
 
 The right to elect or nominate a sexton being in dis- 
 pute between the parishioner and the rector in a parish, 
 the rector, or the curate at his request, nominated one 
 to the office. The parishioners thereupon required the 
 churchwardens to call a vestry for the purpose of electing 
 another party to the office ; and upon their refusal, ap- 
 plied for a mandamus to compel them to call a vestry for 
 this purpose. It was objected that the office was full, and 
 therefore that a mandamus would not be the proper 
 course, and Lord Denman observed, that such an objection 
 would generally be valid, unless the office were full by an 
 appointment clearly made without any authority whatever. 
 In this case, however, there were affidavits filed on both 
 sides, which made it appear at least a very doubtful ques- 
 tion with which party the right to nominate or elect really 
 rested. This, therefore, connected with the observation of 
 Lord Denman, would appear to have been a sufficient 
 answer to the application, inasmuch as the office having 
 been filled by the rector, nobody had in any way proved 
 that the right of ap])ointment was in any one else. But Right lo the 
 the oround upon which the ani)lication was actually re- o'hce may be 
 fused, and as to which all the judges of the court w^ere fusal to nay 
 unanimous, was, that there existed another remedy for the fees, 
 parishioners who felt themselves aggrieved, for that they 
 might dispute the right to the office by refusing to pay the 
 fees, or by bringing an action against the sexton who 
 should take them. Patteson, J., observed, that he had no 
 doubt but that if the court was satisfied that the first 
 appointment was void, they could grant a mandamus for 
 a new election ; and in this case the court seems to have 
 been much influenced by the fact, that the appointment 
 had been made by the party, who, pi-bnci facie, and ac- 
 cording to the general law, would have the right to ap- 
 point.'' 
 
 f 1 Cowp. 413 ; Str. 115, S See R. v. Stohe Damerel, ante, 
 
 h R,\,i)toke Damerel, An\.e,
 
 214 ECCLESIASTICAL OFFICERS, SERVANTS, ETC. 
 
 In the course of the argument on the above case. Lord 
 Denman inquired whether this was an office for which a 
 quo icarranto wou]d lie. The answer given in the argu- 
 ment would decidedly imply that it is not ; Coleridge, J., 
 also seemed to assume in his judgment that it could not ; 
 and the same learned judge, in a note to Blackstone's 
 Commentaries, on the subject of the writ of quo warranto, 
 says, it is perhaps speaking too generally to say that a 
 writ of quo warranto lies for the usurpation of any office: 
 as it was instituted only to protect the rights and prero- 
 gatives of the crown, it is limited to usurpations which 
 trench on them ; and accordingly the information which 
 has grown up in the place of it can only be filed in such 
 cases. In the cases of the King v. Daubeny^ and of the 
 King v. S/iejyperd and others,'' the court refused leave to 
 file informations in the nature of quo warranto, for the 
 alleged usurpation of the office of churchwarden on this 
 ground.' 
 Women may be It has been decided that a woman may be chosen for 
 chosen. g^j^^j exercise the office of sextoness, and also that women 
 
 can vote in the election of one. The reason which ap- 
 pears to have been given by the court in arriving at that 
 decision is not very complimentary to the sex, for upon 
 its being shown that women could not vote for members 
 of parliament, coroners, &c., the court said that as this 
 was an office which did not concern the public, or the care 
 or inspection of the morals of the parishioners, there was 
 no reason to exclude women who })aid rates from voting.'" 
 It does not however appear that the law would be so 
 universally, for the election would ordinarily be by the 
 vestry, and it would not probably have been the custom 
 for women to vote, in which case there can be little doubt 
 that such a custom would be supported as reasonable. 
 In new (lis- The office of sexton has not been overlooked in some 
 
 tiicis. of the new Church Building Acts. Thus it is enacted by 
 
 the 59 Geo. III. c. 134, that when any parish shall be 
 divided or district created, all fees, dues, profits and emolu- 
 ments belonging to the ]>arish clerk or sexton respectively 
 of any sucli parish which shall thereafter arise in any 
 district or division of any parish, shall belong to and be 
 recoverable by the clerks and sextons to whom they shall 
 be assigned, in like manner and after the same rate, in 
 case of the division of a parish, as they were recoverable 
 by the clerk or sexton rcsi)ectively of the original parish ; 
 
 ' 2Str. n9(j. ^ 4T. 11.381. 
 
 ' 3 Black. Comni. 2G2, Coleridge's cil. '" Sir. IIH.
 
 SEXTONS, ETC. 215 
 
 and the commissioners may make compensation for any 
 loss of fees or emoluments which any clerk or sexton may 
 sustain by reason of such division. But as we have 
 ah-eady observed, in speaking of the fees to be claimed by 
 the parish clerk in such cases, there will be a considerable 
 difference in the different parishes and districts. The only 
 uniformity being- in the mode by which the fees may be 
 recovered. And this, in the case of the sexton, would be 
 by action at common law, as in the case of the clerk.
 
 ( 216 ) 
 
 BOOK IT. 
 
 OF THE PROPEBTY OF PERSONS ECCLE- 
 SIASTICAL, AND OF THE PROVISION 
 RECOGNISED BY LAW FOR THEIR SUP- 
 PORT. 
 
 CHAPTER I. 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Section 1. 
 
 Rights and Restrictions of Ecclesiastical Corporations 
 in respect of their Lands. — Waste. 
 
 Provisious for Having spokeii of the various ranks and dignities of 
 maintenance of persons ecclesiastical, we come now to speak of the pro- 
 ihe clergy. yigion recognised by the laws of this country for their 
 
 decent maintenance and support. The manner in which 
 this is given, and the sources from which it is derived, are 
 various, especially since new sources oi' income, formerly 
 unknown to the law, have been introduced by recent 
 statutes. Of these various provisions we now proceed to 
 speak in tlieir order,— a s\d)iect very extensive in its nature, 
 and which will necessarily embrace a great variety of im- 
 j)urtant collateral jjoints. Tlic Hrst of these sources of 
 revenue is that derived immediately from lands expressly 
 given to some jiarticular ecclesiastical persons for their 
 sui)p<)rt. 
 Lands of cede- These lauds they huKI, in each instance, as a corpora- 
 siastical cor- tion ; for cvcry (■(•(•lesiastical ])erson to whom lauds are 
 porations. given, or on whom they devolve, is either a corporation 
 
 soh', or a member of a corporation aggregate, for the ])ur- 
 pose of holding such lands; for it has been found neces- 
 sary, when it is for the advantage of the public to have 
 jiai'ticiilar rights kcjd np and c(jntinued, to constitute 
 artificial persons, who may maintain a per|)etual succession 
 and enjoy a kind of legal innnortality ; anil these artificial 
 persons are cornorations aggregate, or sole ; aggregate, as 
 the dean and chapter of a cathedral or collegiate church j
 
 RIGHTS AND RESTRICTIONS. 217 
 
 solo, as a bishop, a dean distinct from his chapter, each 
 individual member of that chapter, a parson or a vicar; 
 all of whom, in their artificial character, have legal ca- 
 pacities and advantages, especially in the holding of lands, 
 which in their natural persons they could not have had ; 
 and the necessity, or at least use, of this institution, will 
 be very apparent if wo consider the case of a parson of a 
 churcli. At the original endowment of parish churches, 
 the freehold of the church, the churchyard, the parsonage- 
 house, the glebe and the tithes of the parish, were vested 
 in the then parson, by the bounty of the donor, as a tem- 
 poral recompence to him for his spiritual care of the 
 inhabitants, and with intent that the same emoluments 
 should ever afterwards continue as a recompence for the 
 same care. But how was this to be effected ? The free- 
 liold was vested in the parson ; and if we suppose it vested 
 in him in his natural capacity, on his death it might de- 
 scend to his heir, and would be liable to his debts and 
 incumbrances, or at best the heir might be compellable, 
 at some trouble and expense, to convey these rights to 
 the succeeding incumbent. The law, therefore, has wisely 
 ordained that the parson, quatenus parson, shall never 
 die, any more than the king, by making him and his suc- 
 cessors a corporation ; by which means all the original 
 rights of the parsonage are preserved entire to the suc- 
 cessor ; for the present incumbent and his predecessor, 
 who lived seven centuries ago, are in law one and the 
 same person, and what was given to the one was given to 
 the other also."" 
 
 And what is here said by Blackstone, as to lands given 
 to a parson, is equally applicable to the case of all lands 
 given to any ecclesiastical corporation, whether sole or 
 
 aggregate. 
 
 In this country the king's consent is absolutely neccs- Ecclesiastical 
 sary to the erection of any corporation, but such consent corporations by 
 may be impliedly given ; and it is to be implied in the common law. 
 case of corporations which exist by force of the common 
 law, to which our former kings are supposed to have 
 given their concurrence; common law being nothing else 
 than custom arising from the universal agreement of the 
 whole community. Of this sort are all bishops, parsons, 
 vicars (and, for this purpose of holding lands, church- 
 wardens), who by common law have ever been held, so 
 far as our books can show us, to have been corporations 
 virtute officii; and this incorporation is so inseparably 
 annexed to their offices, that we cannot frame a complete 
 
 =v 1 Black. Com. 470.
 
 218 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 legal idea of any of these persons, but we must also have 
 
 an idea of a corporation capable to transmit his rights to 
 
 his successors at the same time.*^ 
 
 Right of eccle- AH lands, therefore, which are held by ecclesiastical 
 
 siastical cor- persons eo jure, are held by them in their corporate ca- 
 
 porations m pacitv : and from this circumstance it is that there have 
 llien property. ^ / ' • ^ ^ ^• ,^ i i i i 
 
 not been wantmg those who, regardmg the whole body 
 
 of ecclesiastics as forming one great corporation, consider 
 all lands, which may be vested in any particular member 
 or members of it, as not being wrongfully diverted if 
 applied to the use of some other member or members. 
 Nothing can be more fallacious than such a proposition. 
 The ecclesiastical body is wanting in every legal requisite 
 of a corporation ; and the lands which are held by its 
 different members were probably never given by the 
 grantors, or intended to be given for any common pur- 
 pose. Those who, from some local connection, or for the 
 benefit of their own lands in the neighbourhood, richly 
 endowed a particular ecclesiastical corporation there situ- 
 ate, could no more have contemplated the benefit of some 
 distant village or district not then in existence, than he 
 who gives his property to his heirs would contemplate its 
 diversion to another family, if a family should be found 
 more needy than his own. Every ecclesiastical corpora- 
 tion, whether aggregate or sole, holds his or their lands 
 as distinct and independent of every other as the cor- 
 poration of Bath holds its property independently of that 
 of London. The university of Oxford is in itself a cor- 
 poration, estabhshed for the purposes of education, while 
 each college in that university is also a corporation for the 
 same purposes. With far greater force, therefore, might 
 it be said that the revenues of one college might be pro- 
 perly diverted to the aid of another, so long as those 
 revenues were employed for the general purposes of edu- 
 cation. 
 
 Legally, however, the only guide to the proper employ- 
 ment of the funds of a corporation is the will and intention 
 of its founder, an intention either cx])rcssed directly, or to 
 be implied from the fact, that the funds have from time 
 immemorial been employed for one uniform purpose, nor 
 is it easy to foresee the extent of difficulties and dangers 
 Aviiich might ensue from the departure from a rule at once 
 So simple, just \i\M\ obvious.'' 
 
 Although, therefore, a considerable part of the revenue 
 for the support of members of the ecclesiastical body is 
 derived immediately from land, there is no such thing as 
 
 '• 1 Black. Com. 472. '' But see ante, Ecclesiastical Commission.
 
 RIGHTS AND RESTRICTIONS. 219 
 
 church land properly so called. But all lands of this na- 
 ture are the property of some particular corporation ; and 
 consequently they are, in many respects, subject to the 
 same laws as affect the land of other corporations, whe- 
 ther lay or ecclesiastical ; and, for the consideration of 
 our present purpose, it will not be necessary to make any 
 dictinction between the lands of those whom we have 
 mentioned as corporations sole, or those of corporations 
 aggregate. 
 
 Bishops, rectors, parsons, vicars, and other ecclesiastical 
 persons, while they have, in their corporate capacity, the 
 fullest possible right in their lands to themselves and 
 their successors, are yet, in their individual capacity, con- 
 sidered, in most respects, as tenants for Hfe of those lands, 
 which they hold jure ecclesia.'^ Archbishops and bishops Ecclesiastical 
 were formerly considered as tenants in fee simple of the persons are 
 lands which they held in such right. And in the case of ?.p«"' 'eaauts for 
 Jefferson v. The Bishop of Durham, Rooke, J., observes, 
 " I consider the bishop as having, to certain purposes, a 
 fee simple in his bishopric ; but he is seised, to a certain 
 extent, as a public officer, for public trusts." As to rec- 
 tors, parsons and vicars. Lord Coke says, that for the 
 benefit of themselves and their successors, they were in 
 some cases esteemed in law to have a fee simple quali- 
 fied. But, if anything was to be done to the prejudice of 
 their successors, the law esteemed them to have, in effect, 
 but an estate for life : and since the several statutes here- 
 after to be mentioned, by which all ecclesiastical corpora- 
 tions are restrained from alienation, they are generally 
 considered as quasi tenants for life only.*^ Consequently, Waste, 
 like all tenants for life, they are prohibited from destroy- 
 ing those things which are not included in the temporary 
 profits of the land, because that would tend to the lasting 
 loss of their successors. Such destruction is called waste, 
 which all ecclesiastical corporations are disabled from 
 committing.'^ If, therefore, they cut down trees upon Punishable. 
 their lands, except for reparation, they are punishable in 
 the ecclesiastical courts, and may also be prevented from 
 so doing, as hereafter mentioned. 
 
 By the statute 35 Edw. I., which we shall notice more whether prohi- 
 particularly hereafter, it is declared, that parsons shall not ^''t'on would be 
 presume to fell trees growing in the churchyard, but when g""*<^^- 
 the chancel or body of the church requires reparation. 
 And Lord Coke has cited a case, where, upon complaint 
 
 d Vin. Abr. 
 
 e 1 Inst. 44 a ; ibid. 341 a and b ; Cruise, Dig. tit. 3, ch. i. ; Litt. 648. 
 
 f Vin. Abr. tit. Dilapidations.
 
 220 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 to the king in parliament,. that the Bishop of Durliam had 
 committed waste by destroying timber, a proliibition had 
 issued against him. In another case he is reported to 
 have said, that if a bishop cut down and sold trees, and 
 did not employ them for reparation, and any one would 
 move it, he would grant a prohibition out of the King's 
 Bench.'^ 
 
 The authority of this dictum has been doubted in a 
 modern case, in which the Court of Common Pleas held 
 that it had no power to issue an original writ of prohi- 
 bition, to restrain a bishop from committing waste in the 
 possessions of his see, at least at the suit of an uninter- 
 ested person, and doubted whether even the Court of King's 
 Bench had such a power.'' 
 
 It must not however be supposed that, because the 
 above dictum of Lord Coke has been doubted, such waste 
 could be committed with impunity. For, as in many other 
 cases, w^here the powers of the common law are insufficient, 
 the courts of equity afford a reasonable remedy ; and the 
 Court of Chancery has long exercised this kind of juris- 
 diction, and interfered to prevent waste by ecclesiastical 
 corporations; for there is a case' in which Lord Keeper 
 Coventry granted a j^rohibition at the suit of a patron 
 against a prebendary, for having wasted the trees of his 
 prebend, and this doctrine is now fully established. 
 Court of Chan- The Spiritual Court would still doubtless punish a party 
 eery would re- -^yho should be guilty of committing waste in the lands of 
 jimctlon. '" ^^^ ecclesiastical corporation, of which, for the time being, 
 he was tenant for life ; but this would be a very inade- 
 cpiate remedy for the patron or persons thereby injured. 
 The fittest mode of proceeding therefore would be, for any 
 party who would be thereby injured, to aj>j)ly to theComt 
 of Chancery for an injunction. And where the patronage 
 of any ])ref('rment to which such lands belong, as in the 
 case of bisl)0|)rics, &c. is in the crown, the attorney- 
 general would be the proper person at whose instance 
 such injunction should b(; obtained. 
 Digging sioncs, A bill was brought by a jjiilron against a rector, to stay 
 &c. waste in digging stones, i:c. on the glebe, other than what 
 
 was necessary for repairing and improving the rectory, 
 and for an account of what had been dug and sold. The 
 defenduiil deniuired as to the account, as also to the stay- 
 ing the digging oi stones, other than for repairs and im- 
 provements, and by way of answer set out that the quar- 
 ries were opened before. 
 
 If SldcUman v. Wither, Roil. Rep. 89. 
 
 •' Jefferson V. Bif^hop of Durham, 1 liOB. & Pul. 105. 
 
 I 2 Roil. Abr. 013.
 
 ' RIGHTS AND RESTRICTIONS, / 
 
 X 
 
 221 
 
 The court said, " The parson had a fee simple, qualified Restrictions as 
 under restrictions in right of the church, but he could not ^° "'^^^'^ e^ue- 
 do everything that a private owner of an inheritance could ; '^"^'' 
 he could not connnit waste, or open mines, but might 
 work those already opened. Even a bishop could not. 
 Talbot, Bishop of Durham, applied to parliament to enable 
 him to open mines, but it was rejected. Parsons may fell 
 timber, or dig stones to repair ; they have also been in- 
 dulged in selling such timber or stones, where the money 
 has been aj)plied in repairs."" Injunctions have been granted 
 even against bishops, to restrain them from felling large 
 quantities of timber, at the instance of the attorney-gene- 
 ral, on behalf of the crown, the patron of bishoprics. If 
 the demurrer had only gone to an account, it had been 
 good ; for the patron cannot have any profit from the 
 living, but it was too general, and must be overruled."' 
 
 Where it was sought to restrain a dean and chapter, by Cutting timber, 
 injunction, from cutting timber,'" Lord Eldon said, " If the 
 dean and chapter want the whole of the timber on the 
 premises for the purposes of repairs, there can be no doubt 
 that they would be justified in insisting that the whole 
 should be so applied. Unless the interests of deans and 
 chapters are capable of being distinguished from those of 
 other ecclesiastical bodies in some respect, which I am 
 unable to discern, they have this limited right to the tim- 
 ber." And, alluding to the dictum of Lord Ilardvvicke, Timber may be 
 that the timber might be sold if the money was applied in ^^^'^ =*"'^ 1"°- 
 repairs, he says, " If it were otherwise, the obligation im- 'epjrs.''^'*''' '" 
 posed upon them would tend greatly to defeat the general 
 intention of law, that the possessions of the church shall 
 constitute a fund for the maintenance of the church ; if 
 ecclesiastical bodies are compelled, in every instance, to 
 apply the identical timber, by removing it from the most 
 distant parts of the country in which it may happen that 
 their property lies. I shall only add, as a matter of general 
 observation, which may be applicable in the present in- 
 stance, that if there should ever happen, by cutting timber 
 for repairs, not to be enough left for the purposes of re- 
 pairs in future, that would necessarily be a matter of very 
 bad and serious consequence." 
 
 But such injunctions will not be granted at the suit of jiy whom iu- 
 uninterested persons, and the lessee of an ecclesiastical jiuutions may 
 corporation has not a sufl^icicnt interest; the patron only ^e obtained, 
 could apply to restrain a rector or vicar : the crown, by its 
 attorney-general, should apply to restrain a bishoj). And 
 
 ^ And see post, Book HI. Ch. V. ' Knighl v. Moseley, Amb. 176. 
 
 "' Wither v. Dean of Winchester, 3 Rier. 425.
 
 222 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 From what acts 
 they would be 
 restrained 
 generally. 
 
 it may probably be added that, in all cases, the patron or 
 patrons of the particular ecclesiastical corporations are the 
 persons properly interested, at whose suit an injunction 
 should be asked. If, however, such ecclesiastical corpo- 
 ration should have entered into a particular agreement 
 with its lessee or some other person not to cut timber, 
 &c., such person would probably have his right to apply 
 for an injunction, but this would be upon other principles." 
 From these cases it may be sufficiently inferred what 
 acts may legally be done by ecclesiastical corporations in 
 the lands which they hold jure ecclesuc, and from what 
 acts they would or ought to be restrained ; but that which 
 they cannot do themselves, they are, in certain cases 
 and under certain restrictions, empowered to enable their 
 tenants to do by their leases. Of these leases we shall 
 speak in the next chapter ; but it may here be observed, 
 that it lias been made lawful for them to grant or demise 
 by lease, provided it be made in such manner as we shall 
 after mention, any mines, minerals, quarries or beds be- 
 longing to them, together with the right of working, or of 
 opening and working the same ; and also all the usual 
 powers for eft'ectuating such purpose, although, as has 
 been already observed, they would have no power to open 
 a fresh mine or quarry in any other manner; and such an 
 act committed by them has been held to be waste. 
 
 Confirmation 
 of leases for- 
 merly. 
 
 Section 2. 
 
 Leases by Ecclesiastical Corporations. 
 
 Ecclesiastical corporations, whether aggregate or sole, 
 having, as we have seen, but a qualified interest in the 
 lands whereof they were seised in right of their churches, 
 &c., leases made by them of such lands were, at connnon 
 law, in many cases, not binding on their successors," and 
 the consent of, and confirmation by, some other parties 
 were considered necessary, without which such leases were 
 not valid as against the successor. Thus, the leases of 
 bisliops and archbishops were to be confirmed by the dean 
 and cha|)ter; those of deans by the bishop ami chapter; 
 tho.s(! of archdeacons, j)rebendarics, and the hkc, by the 
 bishop, dean and clr.ij)tcr; those of parsons and vicars by 
 the patron and ordinary; with variations in certain cases, 
 which it is not now necessary to enumerate.'' 
 
 n Sec Wither v. Dean of ]\'itirhfster. " Cruise, Dig. lit. 32, ch. v. 
 
 I' Gibs. 744 J Wats. c. 44 ; Ucan of Ely v, •'itcwart, 2 Alk. 43.
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. 223 
 
 But by the statute passed in the thirty-second year of Enabling sta- 
 Henry VIII. it was enacted, that all leases for terms of *'^'*^ "^ ''e°'y 
 years or for life, by any persons having an estate of inhe- 
 ritance in right of their churches, should be good and 
 effectual against the lessors and their successors : pro- 
 vided that nothing therein should extend to give any 
 liberty or power to any parson or vicar of any church or 
 vicarage to make any lease or grant of any of their mes- 
 suages, lands, tenements, tithes, profits or hereditaments 
 belonging to their churches or vicarages, otherwise or in 
 any other manner than they might have done before the 
 making of that act. This is called an enablins; statute: 
 but it went too far, in giving power to persons ecclesiastical 
 to make leases of their lands, and several statutes were Disabling sta- 
 consequently passed during the reign of Elizabeth, called '"'^s of Eliza- 
 disabling statutes, by which all alienations by ecclesiastical ^^'''' 
 persons are declared void, except leases for twenty-one 
 years or three lives.'' 
 
 But there are certain circumstances required to be ob- Leases under 
 served by these statutes, without Avhich such leases made statutes. 
 by persons ecclesiastical would not be binding on their 
 successors. 
 
 First. All such leases must be by deed indented, not by 
 deed-poll or by parol. 
 
 Second. They must be made to begin from the day of 
 the making thereof. 
 
 Third. If there be an old lease in being it must be sur- Surrender of 
 rendered or ended within one year next after makino- the ^''^ '®^^^* 
 new lease. Such surrender must be absolute, not con- 
 ditional ; for otherwise the intention of the statute mioht 
 be easily evaded by setting up such old lease again, upon 
 breach of the condition."" 
 
 Upon this third rule the following points have been 
 decided. A surrender in law by the taking a new lease, 
 either to begin presently or on a day to come, seems a 
 good surrender within the statutes ; for by taking such new 
 lease, though to commence on a future day, the first lease 
 is presently surrendered and gone, and shall not continue 
 till the day on which the new lease is to commence ; but 
 by acceptance of such new lease the first is immediately 
 surrendered, because both leases cannot exist together. 
 As the first cannot be dissolved or surrendered in part, it 
 must be surrendered for the whole.^ 
 
 A surrender upon condition that the lessor should make 
 a new lease within a week after, has been held good. 
 
 1 1 Eliz. c. 19; 13 Eliz.c. 10; HEliz. c.ll; ISEliz.c. 11; lJamesl,c.3. 
 ■^ See Cruise, Dig. ante. " Thompson v. Trafford, Poph. 9.
 
 224 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Concurrent 
 leases. 
 
 Lease lo A. for 
 lives of IJ., (;. 
 and J). ;:ooiI. 
 
 The lessor of the plaintiff, being a prebendary of Sarum, 
 brought an ejectment to avoid a lease made by his prede- 
 cessor, as not being conformable to the proviso in the 
 statute 32 Hen. VIII., because the surrender of the former 
 lease was with a condition, that if the then prebendary 
 did not, within a week after, grant a new lease, the sur- 
 render should be void ; whereby, as it was contended for 
 the plaintiff, the old term was not absolutely gone, but 
 the lessee reserved a power of setting it up again. The 
 court gave judgment for the defendant; this being within 
 the intent of the statute, which was, that there should not 
 be two leases standing out against his successor. Here 
 the new lease was made within the week ; from thence it 
 became an absolute surrender, both in deed and in law ; 
 the whole was out of the lessee, without further act to be 
 done by him. In the proviso in that statute there was the 
 word ended as well as surrendered, and could it be said 
 that the first lease was not ended? This was no more 
 than a reasonable caution in the first lessee to keep some 
 hold of his old estate till a new title was made to him.* 
 
 The statute 18 Eliz. c. 11, s. 2, enacts that all leases to 
 be made by any ecclesiastical or collegiate persons or 
 others within the statute 13 Eliz. c. 10, of any lands, &c. 
 whereof any former lease for years is in being, and not to 
 be expired, surrendered or ended within three years next 
 after the making of any such new lease, shall be void; 
 and by the 3d section of 1 8 Eliz. all bonds and covenants 
 for renewing any leases contrary to the 13 Eliz. or this 
 statute arc declared void. There are, however, some cases 
 in which a bishop, with the consent of the dean and chap- 
 ter, may make a concurrent lease. 
 
 The duration of all leases made under these statutes 
 must not exceed twenty-one years, or three lives, but may 
 be for fewer years or lives ; the intention of these statutes 
 being only to abridge the power of making long and un- 
 reasonable leases, by reducing them to a determinate num- 
 ber of years or lives, which they sliould not exceed, but 
 might be made as nuich under as the party pleased." 
 
 If a bishop makes a lease for four lives, and one of them 
 dies in the lifetime of the bisiiop, so that at his death there 
 are but three lives in being, yef. the lease will be void 
 against his successor. For as it was originally void, no 
 subscf|uent event could make it good.'' 
 
 Ha lease be made to A. for I lie lives of B., C. and D., 
 it is a good lease to one for the lives of three oihei- persons, 
 
 n i/M»i V. i'arter, 2 Stra. 1201. 
 10 Ucii. 62 a. 
 
 " 1 Inst. '11.
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. 225 
 
 and a lease to three persons for three lives, is all one 
 within the intent of these statutes, for in both cases three 
 lives are the measure of the estate created, which is all the 
 statutes require.^' It appears tu be understood that a lease 
 for sixty years, if three lives shall so long live, is good 
 within the stat. 32 Henry VIII." 
 
 All leases, made under these statutes, must be of lands 'i'" what tlie?e 
 or tenements, whereto resort may be had for the rent ^'^'"'^^s extend. 
 reserved by distress ; for otherwise the heirs or successors 
 of the lessors would be without any remedy for the reco- 
 very of the rent. These statutes do not therefore extend 
 to advowsons, tithes, or other incorporeal hereditaments.'' 
 
 The stat. 32 Henry VIII. does not extend to any leases 'i"o what manors 
 of manors or lands, which have not most commonly been or land stat. 32 
 letten to farm, or occupied by the farmer thereof l3y the gx^g^js ' 
 space of twenty years next before such leases thereof 
 made. The intention of this clause was to prevent the 
 persons enabled by the statute to demise, from making- 
 leases of their mansion houses and demesnes, so as to 
 bind their heirs or successors, as that practice would have 
 produced a great decay of hospitality. Various opinions Construction of 
 have been held upon the construction of this clause. The clause as to. 
 better of them seems to be that it consists of two parts in 
 the disjunctive : if either of them be observed, it is suffi- 
 cient to support the lease. The first is, which have not 
 most conmioidy been letten, which is general ; the other 
 is, or occupied by the farmers thereof, by the space of 
 twenty years. That the most natural and genuine mean- 
 ing of the clause is, that the lands to be leased must 
 either be such as have been most commonly letten, that 
 is, such as are not reputed part of the demesnes, or such 
 as have been occupied by the farmers thereof by the space 
 of twenty years.*' 
 
 If lands have been let or occupied for eleven years or 
 more, at one or several times within the twenty years next 
 before a lease for twenty-one years or three lives, it will 
 be sufficient ; and a demise by copy of court roll will be 
 considered as a sufficient letting within tlu; statute.'^ 
 
 The stat. 32 Henry VIII. further provides, that upon iieseivation of 
 every such lease there be reserved yearly during the same rent, 
 lease, due and payable to the lessors, their heirs and suc- 
 cessors, to whom the same lands should come after the 
 death of the lessors, if no lease had been thereof made, 
 and to whom the reversion thereof should appertain, ac- 
 
 y Baugh V. Hai)ies, Cro. Jac. 26. ^ 8 Rep. 69 b. 
 
 * 1 Inst. 44 b. •* Cruise's Dig. tit. xxxii. ch. v. 
 
 <^ Bacon's Abr. lit. Lease. 
 
 Q
 
 226 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 cording to their estates and interests, so mnch yearly farm 
 or rent or more, as had been most accustomably yielden 
 or paid for the manors, &c., so to be letten within twenty 
 years next before such lease thereof made. It has been 
 a constant practice nevertheless, ever since this statute 
 was made, for bishops to take great fines upon the renewal 
 of leases, of which the validity has never been questioned. 
 Leases of parts It was formerly doubted whether ecclesiastical persons 
 of lands which might make a lease of part of lands which had been 
 have been for- -ng^ijiHy let for a certain rent, reserving a rent pro rata. 
 certain rents. But now by the statute 39 & 40 Geo. III. c. 41, it is 
 enacted, that where any part of the possessions of any 
 ecclesiastical person shall be demised by several leases, 
 which was formerly demised by one, or where a part shall 
 be demised for less than the ancient rent, and the residue 
 shall be retained in the possession of the lessor, the several 
 rents reserved on the separate demises of the specific parts 
 shall be taken to be the ancient rents ; with a proviso that 
 where the whole of such premises shall be demised in 
 parts, the aggregate rents reserved shall not be less than 
 the old accustomed rent, and so in proportion where a part 
 shall be retained in possession by the lessor. 
 Leases must not The last rule to be observed in respect to leases under 
 be made with- these statutes is, that they must not be made without im- 
 out impeach- peachment of waste. For if, as the preamble speaks, long 
 and unreasonable leases are the chief cause of dilapida- 
 tions, and of the decay of hospitality, much more would 
 they be so if they were made dispunishable lor waste. 
 Leases by par- Parsons and vicars are expressly excepted out of the 
 sons and vicars, stat. 32 Henry VIII., so that they are not, as other sole 
 corporations, onabled by that statute to mak(^ any leases 
 to bind their successors without the confirmation of the 
 patron and ordinary, but remain as they did at common 
 law. They are however not restrained by the act of 13 
 Eliz. from making leases for twenty-one years or three 
 lives, but then sucli biases nmst not only be confirmed by 
 the patron and urchnury, but nuist also be made in con- 
 formity to the eight rules already mentioned, otherwise 
 they will not bind the successors. And they are restrained 
 by the act of 13 l">liz. from making leases for any longer 
 time, notwithstanding any confirmation or conlbrmity to 
 the rules before mentioned. 
 iJuildinp; leases Iv'clesjastical corporations, whether aggregate or sole, 
 rnajr t'e s'"""^'' have been recentlv empowered to <j,rant Ion'-' leases of 
 
 (or long terms , . , i ,• i I'l- ' • i i i i 
 
 of years. then' lands lor l)ml(lmg purj)oses, j)rovi(lca such leases tire 
 
 granted with tiie consent of particular ])arties, and with
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. 227 
 
 certain conditions and restrictions ; it being enacted '' that 
 all ecclesiastical corporations, whether aggregate or sole, 
 may, with the consent and under the restrictions specified, 
 by any deed duly executed, lease their houses or land for 
 any term not exceeding ninety-nine years, to take efl'ect 
 in possession, to any person who may be willing to im- 
 prove or repair the present or any future houses thereon, 
 or to erect other houses instead thereof, or to erect any 
 houses or other buildings on any lands whereon no l)tiild- 
 ing shall be standing, or who shall be willing to annex 
 any part of the same lands to buildings erected or to be 
 erected on the said lands, or otherwise to improve the said 
 ])remises or any part thereof; and with or without liberty 
 for the lessee to take down any buildings which may be 
 upon the lands in such leases respectively to be com- 
 prised, and to dispose of the materials thereof to such 
 uses and purposes as shall be agreed upon; and with or 
 without liberty for the lessee to set out and allot any part 
 of the respective premises to be comprised in any such 
 lease, as ways, yards or otherwise, for the general improve- 
 ment of the premises ; and also w^ith or without liberty for 
 the lessee to dig, take, and carry away and dispose of 
 such earth, &c. as it shall be found convenient to remove. 
 
 The restrictions and conditions, subject to which these Restrictions and 
 
 leases are to be granted, require to be very accurately ob- conditions to be 
 1 /. ^ • 1- S i- 1 observed in sucli 
 
 served ; roi", as ecclesiastical corporations are empowered leases. 
 
 to grant these leases only so long as these are attended 
 
 to, a lease, in which any of these are not complied with, 
 
 would have no validity to bind either the lessor or the 
 
 lessee. These restrictions are as follows : 
 
 1st. There shall be reserved by every such lease the best As to rent, 
 yearly rent that can be obtained for the premises therein 
 comprised, payable half-yearly or oftener ; and so as every 
 such lease be made, without taking any fine, or any thing 
 in the nature thereof, in respect of the making the same. 
 
 2nd. In every such lease made for the purpose of having Building and 
 buildings erected, there shall be contained a covenant on repair. 
 the part of the lessee, to build, complete and finish the 
 houses which may be agreed to be erected on the premises, 
 if not then already done, within a time or times to be spe- 
 cified for that purpose, and to keep in repair, during the 
 term, such houses. 
 
 3rd. There shall also be contained in the last mentioned Covenants to be 
 cases covenants on the part of the lessee substantially to contained in 
 rebuild or repair the same, within a time or times to be ^ 
 
 d 5&6 Vict. 0.108, s.l. 
 
 q2
 
 228 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 specified for that purpose; and to keep in repair during 
 the term the houses agreed to be rebuilt and repaired. 
 
 4th. In every lease, whether for building or not, there 
 shall be contained, on the part of the lessee, a covenant 
 for the due payment of the rent, and of all taxes, charges, 
 rates, assessments and impositions whatsoever, affecting 
 the same premises ; and also a covenant for keeping the 
 houses erected, and to be erected, on the premises to be 
 therein comprised (except any works or manufactories 
 which may not be insurable) insured from damage by fire, 
 to the amount of four-fifths at least of the value thereof, 
 in some or one of the public olhces in London, Westmin- 
 ster, Norwich, Bristol, Exeter, Newcastle-on-Tyne, York 
 or Liverpool, or of the Kent Fire Lisurance Company (the 
 particular office of insurance being named in the lease), 
 and to lay out the money to be received by virtue of such 
 insurance, and also all such other sums as shall be neces- 
 sary, in rebuilding, repairing, and reinstating such houses 
 as shall be destroyed or damaged by fire, and also to sur- 
 render the possession of and leave in repair the houses on 
 the premises therein comprised, on the expiration or other 
 sooner determination of the term thereby granted ; and 
 within twenty-one days after any assignment of such lease 
 shall be made, to deliver a^copy of such assignment to the 
 lessor or reversioner for the time being. 
 
 5th. Li every such lease there shall be contained a 
 power for the lessor or reversioner for the time being, and 
 his or their surveyors and agents, to enter upon the pre- 
 mises, and inspect the condition thereof; and also a con- 
 dition of re-entry for nonpayment of the rent, or for non- 
 ]>erformance of any of the covenants and conditions, and 
 with or without a proviso that no breach of any of the 
 covenants and conditions (except the covenant for payment 
 of the rent, and other such covenants or conditions, if any, 
 as may be agreed between the parties to be so excepted) 
 shall occasion any forfeiture of such lease, or give any right 
 of re-entry, unless judgment shall have been obtained in 
 an action for such Ijreach of covenant ; nor unless the da- 
 mages and costs to be recovered in such action shall have 
 reiiiaiiK^d unpaid for the space of three calendar months 
 after judgment shall have been obtained in such action. 
 Gth. The respective lessees shall execute counterj)arts. 
 Tovvf-iio reserve liut, notwithstanding the first of these restrictions, it is 
 ■' "■"'• enacted, that on any such building or rej)airing lease, the 
 coiporation granting such k^ase may reserve a small rent 
 during the six first years of ihe t(;rm, or thuing any of such 
 six first years, to be specified in such lease; and in addition 
 
 iiicn-n.-ci
 
 LEASES BY ECCLESIASTICAL COKPORATIONS. 22\) 
 
 to the rent to be so reserved, an increased rent to become 
 payable after the expiration of the time so specified; or 
 make any such increased lent, first payable at any time 
 not exceeding- six years after the commencement of the 
 term created by such lease, when a stipulated progress 
 shall have been made in the buildings, rebuildings or re- 
 parations, in respect of the erection, construction or repa- 
 ration, of which the same lease shall have been granted."^ 
 
 As to the consent which is necessary in order to give Consent of cer- 
 validity to such leases, it is declared that every lease, made '^"' P2'"es ne- 
 under the provisions of this act, shall be — leases. 
 
 1st. With the consent of the ecclesiastical commis- 
 sioners. 
 
 2nd. With the consent of the patron, when made by an 
 incumbent of a benefice. 
 
 3rd. Any lease by any corporation, whether aggregate 
 or sole, of any lands or houses, mines, kc, of copyhold or 
 customary tenure, or of any watercourses, ways or ease- 
 ments, in, upon, over, or under any such lands, where the 
 copyhold or customary tenant thereof is not authorised to 
 grant or make leases for the term of years intended to be 
 created by such lease without the license of the lord of the 
 manor, shall be made with the consent of the lord for the 
 time being of the manor of which the same shall be holden, 
 in addition to the other requisite consents ; and such con- 
 sent shall amount to a valid license to lease such lands, 
 houses, mines, &c. for the time for which the same shall 
 be expressed to be demised by such lease. ^ 
 
 The consent of every person, w^hose consent is required Tesilfied by exc- 
 to any deed, is to be testified by his being party to and cution of deed, 
 executing it.= 
 
 When the patronage of any benefice, the consent of the Parties to con- 
 patron of which is requisite, is in the crown, if such bene- sent in certain 
 fice shall be above the yearly value of 20/. in the king's 
 books, the instrument, by which such consent is to be 
 testified, shall be executed by the lord high treasurer, or 
 first commissioner of the treasury; and if such benefice 
 shall not exceed the yearly value of 20Z. in the king's books, 
 such instrument shall be executed by the lord chancellor, 
 lord keeper, or lords commissioners of the great seal ; and 
 if such benefice shall be within the patronage of the crown 
 in right of the duchy of Lancaster, such instrument shall 
 be executed by the chancellor of the duchy ; and when 
 the patronage shall be part of the possessions of the duchy 
 of Cornwall, the instrument by which such consent or 
 concurrence is to be testified shall, whenever there shall 
 e Sect. 2. f Sect. 20. S Sect. 21. 
 
 cases.
 
 230 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 be a Duke of Cornwall, whether he be of full age or other- 
 wise, be under his great or privy seal ; or if there be no 
 Duke of Cornwall, and such benefice shall be in the pa- 
 tronage of the crown in right of the duchy of Cornwall, 
 such instrument shall be executed by the same person or 
 persons, who is or are authorised to testify the consent of 
 the crown ; and such instrument, being so sealed or exe- 
 cuted, shall be deemed and taken, for the purposes of this 
 act, to be an execution by the patron of the benefice. ** 
 
 Where the patron of any benefice or lord of the manor, 
 whose consent is requisite, is a minor, idiot, lunatic, or 
 feme covert, or beyond seas, it shall be lawful for the guar- 
 dian, committee, husband, or attorney, as the case may be, 
 of such patron or lord, but in case of a feme covert not 
 being a minor, idiot, or lunatic, or beyond the seas, with 
 her consent in writing, to execute the instrument by which 
 such consent is to be testified.' 
 
 The person or persons, if not more than two, or the 
 majority of the persons, if more than two, or the corpora- 
 tion who or which would, for the time being, be entitled 
 to the turn or right of presentation to any benefice, if the 
 same were then vacant, shall, for the purposes of this act, 
 be considered to be the patron thereof; })rovided that, in 
 the case of the patronage being exercised alternately by 
 different patrons, the person or persons, if not more than 
 two, or the majority of the persons, if more than two, or 
 the corporation who or which would, for the time being, 
 be entitled to the second turn or right of presentation to 
 any benefice, if the same were then vacant, shall, for the 
 purposes of this act, jointly with the person or persons, or 
 corporation, entitled to the first turn or right of presenta- 
 tion, be considered to be the patron thereof.** 
 
 The same person may consent in more than one cha- 
 racter, if necessary. ' 
 
 Corporations aggregate are to signify their consent under 
 their common seal.'" 
 Lund may be In granting these leases, ecclesiastical corporations are 
 
 leased for empowered, in like manner, and subject to the same re- 
 
 sticcis, c. strictions and consent, to grant land, or streets, yards, 
 gardens, sewers, &:c., or give such privileges or easements 
 as may be tjjought reasonable." 
 Water, water- Besides the power given to them to grant land on build- 
 leaves, and way- ing leases, ecclesiastical c<)rj)orations are by the same act 
 
 leaves, &c., may (.,„p,^v(.,.<.,l ^yith sucli consent as luis bccn alr(*ady men- 
 be leased for 00 . ' , ' , ,. , ,, . -^ . 
 years. tioiied, to grant, by way oi lease, any water iiowmg in or 
 
 '■ Sects. 22, 2:^. ' Sect. 24. ^ Sect. 25. 
 
 ' Sect.2f). ■" Sect. 27. ■' Sect. 3.
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. 231 
 
 upon their lands, and also any way-leaves or water-leaves, 
 canals, water-courses, tram-roads, railways, and other 
 ways, paths, or passages, either subterraneous, or over the 
 surface of any lands, store-yards, wharfs, or other like 
 easements or privileges, in, upon, out of, or over any ])art 
 or parts of their lands, for any term or number of years, 
 not exceeding sixty years, to take eftect in possession." 
 
 The restrictions and conditions, subject to which these Subject to re- 
 last-mentioned leases may be granted, are the following : sifcuons. 
 
 1st. So as there be reserved on every such lease payable 
 half-yearly, or oftener, during the continuance of the term 
 of years thereby created, the best yearly rent or rents, 
 either in the shape of a stated or fixed sum of money, or 
 by way of toll or otherwise, that can be reasonably gotten 
 for the same, without taking any fine, or any thing in the 
 nature thereof, other than any provision or provisions w hich 
 it may be deemed expedient to insert in any such grant, 
 rendering it obligatory on the grantee or lessee to repair 
 or contribute to the repair of any roads or ways, or to keep 
 open or otherwise use, in any specified manner, any water 
 or watercourse, to be comprised in or affected by any such 
 lease. 
 
 2nd. So as there be contained in every such lease a 
 power of re-entry, or a power to make void the same, in 
 case the rent thereby reserved, or any part thereof, shall 
 not be paid within the time therein specified. 
 
 3rd. So as the respective grantees or lessees execute 
 counterparts of the respective leases.? 
 
 Ecclesiastical corporations are further, by the same act, iMining leases 
 empowered, with such consent as has been already men- ^^^ ^^ graated. 
 tioned, to lease for any term, not exceeding sixty years, to 
 take efl'ect in possession, any mines, minerals, quarries, or 
 beds, together with the right of working, or of opening 
 and working, the same, and of working any adjacent mine, 
 by way of outstroke or other underground communication, 
 and together also with such portion of land belonging to 
 such corporation, and all such rights of way and other 
 rights, easements, &:c. incident to mining operations, as 
 shall be deemed expedient; and every such lease shall 
 contain such reservations by way of rent, &c., and such 
 powers, restrictions, and covenants, as shall be approved 
 bi/ the ecclesiastical commissioners, due regard being had to 
 the custom of the country within which such mines, kc. 
 are situate ; and no fine, nor any thing in the nature thereof, 
 shall be taken for or in respect of any such lease.i 
 
 The act does not authorise the granting of a lease, or Houses of resi. 
 ° Sect. 4. p Sect. 4. i Sect. 6.
 
 232 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS, 
 
 (lence, willi 
 gaidtns, C\;c. 
 excepted from 
 tlie powers of 
 llic act. 
 
 EfTect of due 
 
 execution of 
 llie lease. 
 
 Leases may be 
 made on sur- 
 render of exist- 
 ing leases. 
 
 Existing under- 
 leases. 
 
 Surveyor to be 
 ajipointed. 
 
 the laying out or appro]M'iating the palace or usual house 
 of residence of any archbishop or bishop, or any other cor- 
 poration sole, or of any corporation aggregate, or any 
 member of any corporation aggregate, or of any offices, 
 outbuildings, yards, gardens, orchards, or pleasure-grounds 
 to any such palace or other house of residence, adjoining 
 or appurtenant, and which may be necessary or convenient 
 for actual occupation with such palace or other house of 
 residence, or the grant or lease of any mines, &.c. the grant 
 whereof may be prejudicial to the convenient enjoyment of 
 any such palace or house of residence, or the pleasure- 
 grounds belonging thereto, or the leasing of any lands 
 which any such corporation is expressly restrained from 
 leasing, by tlie provisions of any local or private act of par- 
 liament."^ 
 
 Such are the important new powers which are by this 
 act conferred upon ecclesiastical corporations, in respect to 
 leasing ; various details are also provided for ; power is 
 2,iven to confirm leases which would be voidable for infor- 
 mality, and to accept surrenders and grant new leases. 
 The act does not interfere with any existing powers of 
 leasing, by way of renewals or otherwise, but, after lands 
 have been once leased under the act, they are not to be 
 leased again, except at rack rent.^ 
 
 The execution of the leases by the necessary consenting 
 ])artics is to be conclusive evidence that the matters re- 
 quired to be done, previously to granting such lease, have 
 been performed. Leases under the act may be made on 
 tlie surrender of any existing leases; but under-leases, whicli 
 may have been granted previously to sucli surrender, need 
 not be surrendered ; but if any subsisting under-lease con- 
 tains a covenant for renewal, a renewal is not to be com- 
 pelled under the covenant except upon the terms of securing 
 to the under-lcssor a rent bearing the same proportion to 
 the whole rent, upon the new lease granted under this act, 
 as the amount which, tijion any ordinary renewal, ought to 
 have been paid by such under-lessee, would have borne to 
 the whole amount of the fines and fees attending such 
 renewal.' 
 
 Whenever any lease is to be granted under the authority 
 of this act, a con)petent surveyor is to be appointeil in 
 writing by the ecclesiastical commissioners, with the con- 
 sent of the cor|)orafioii |)ro|)osing to lease, and such sur- 
 V(!yor is to make any such report, map, plan, statement, 
 valuation or certificate, as shall be r(<piir<Hl by the coni- 
 niis.Hioneis, or by such corj)oration." 
 
 f Scct.y. ' Scct.8. ' Sect. 17. " bed. lU.
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. 233 
 
 The counterpart of every lease, &c. granted under the Counierpaiisof 
 authority of this act, and the map, plan, certificate, valua- '^"''^■'' ^*'- '" 
 tion and report relating- thereto, is, within six calendar and'trbcoLi 
 months after its date, to be deposited with the ecclesiastical to iuspcciion. 
 commissioners, who are thereupon to give to the corpora- 
 tion on whose behalf it has been deposited a certificate of 
 such deposit having been made. Documents so deposited 
 are to he produced, at proper hours, to the corporation 
 depositing them, or to the patron of the benefice, or to 
 any person applying to inspect them on their behalf; and 
 an office copy, certified under the seal of the commis- 
 sioners, which oflice copy the commissioners are in all 
 cases to give upon proper application made, is to be ad- 
 mitted and allowed in all courts as legal evidence of its 
 contents, and of its due execution by the parties who, 
 upon the face of such oflBce copy, shall appear to have 
 executed the same, and of the due execution by the lessee 
 of the counterpart thereof/ 
 
 If in the case of any lease, &c. granted under this act. Fines, &c. if 
 any fine, or any thing in the nature thereof, shall directly *^''*^"' '"^''^ 
 or indirectly have been paid or given by or on behalf of '""^ ''"" '''''^* 
 the lessee, and taken or received by the lessor, such lease, 
 grant or confirmation, shall be absolutely void.^ 
 
 The benefit of this act is likewise extended to lands Lands hdd ia 
 
 which are held in trust for ecclesiastical corporations; for t'."si for ecde- 
 whenever any lands are vested in any trustees for the be- poSl'ons'!"" 
 nefit of such corporations, in such manner that the net 
 
 income, or three-fourths of it at least, is payable for their 
 benefit, all the ])ovvers which are given by the act may be 
 exercised by such corporation ; but in order to give leo-al 
 effect to such leases, &c. the trustees must be made parties, 
 in addition to the other parties, whose concurrence is re- 
 quired by the act. Trustees are required to execute such 
 deeds when tendered to them for that purpose, after they 
 have been duly executed by the corporation, and the act 
 further jirovides for their indemnity in such cases.'' 
 
 The increased revenues which would accrue to eccle- Improved value 
 
 siastical corporations in consequence of the leases wdiich "^f ^* '° ^^ 
 ,, ' , , 1 1 ,1 • . ' . ,, paid to tliecoiu- 
 
 they are empowered to make under this act, is not m all missioners. 
 
 cases to be at their disposal, or for their benefit, but is to 
 go to increase the general fund in the hands of the eccle- 
 siastical commissioners. Thus, in the case of any see, the 
 revenues of which may be thus improved, the annual sum, 
 if any, directed to be charged upon the revenues of such 
 see, by any order in council, shall be forthwith directed to 
 be increased to the extent of such improvement ; or the 
 ^ Sect. 29. y Sect. 30. ^ Sect. 28.
 
 234 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 So of deans and 
 chapters. 
 
 Increased value 
 of benefices 
 above a certain 
 amount. 
 
 Pari f)f iiiipiovcil 
 value by iiiiiiiiig 
 leases to be in 
 all ca.scs paid to 
 the cominis- 
 sioDers. 
 
 annual sura (if any) directed by any like order to be paid 
 to the bishop of such see, shall by the like authority be 
 forthwith directed to be reduced to the like extent, or to 
 be altogether annulled, if not exceeding such improvement; 
 and if such improvement shall exceed the annual sum so 
 directed to be paid to such bishop, or if no annual sum 
 shall have been directed to be paid by or to such bishop, 
 then a fixed annual sum, equal to the excess in the one 
 case, or to the whole of such improvement in the other 
 case, shall by the like authority be forthwith directed to 
 be charged upon the revenues of such see ; and the in- 
 creased, or reduced, or new payment, shall take effect u])on 
 the avoidance of the see next after such improvement.'* 
 
 The improved value of the ])roperty of deans and chap- 
 ters, and archdeacons, is in like manner to be paid to the 
 commissioners, leaving to such corporations respectively 
 such amounts as have been already mentioned in speaking 
 of those parties.'' 
 
 In the case of any benefice, the annual value of which 
 shall be thus improved, it shall be lawful, by the authority 
 of the ecclesiastical commissioners, at any time within 
 three years from the date of such lease, to direct that from 
 and after the next vacancy of such benefice such portion 
 of the rent or other consideration reserved by such lease, 
 as by the like authority shall be deemed expedient, shall 
 be paid, and the same shall accordingly from time to time 
 be paid, to the ecclesiastical commissioners, and shall be by 
 them ap})lied in making additional provision for the cure 
 of souls : provided that notice shall be given to the jnitron 
 of such benefice, of any scheme affecting the same, three 
 calenilar months previously to such scheme being laid be- 
 fore the queen in council; and the objections (if any) of 
 such patron shall be laid belbre the (pieen in council, 
 together with such scheme . provided also, that the aver- 
 age annual income of such benefice shall not, under this 
 provision, be left at a less sum than (300/. if the population 
 amount to two thousand, nor at a less sum than 600/. if 
 the population amount to one thousand, nor in any other 
 case at a less sum than 300/. : i)rovided also, that, in 
 making any such provision for the cure of" souls, out of 
 rents, &cc. reserved by any siudi lease, the wants and cir- 
 cumstances of the places in which the lands demised by 
 such lease arc situate shall be |)rimarily considered.' 
 
 Ill the case of any mining leases griiiited Miuk'r this act, 
 it is prcjvidcd, that such j)ortinn of the improved value 
 accruing thereundiir, as by the like authority sliiill be de- 
 • Sect. 10. ^ Sect. 11. '■ Seel. la.
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. 235 
 
 termined, not being more than three-fourth parts, nor less 
 than one moiety of such improved value, shall forthuitli, 
 and from time to time as the same shall accrue, be })aid to 
 the ecclesiastical commissioners ; and the remainder of 
 such improved value shall be deemed to be an improve- 
 ment within the meaning of the provisions relating to the 
 incomes of archbishops and bishops, deans and canons, 
 archdeacons, and incumbents of iDenefices respectively; 
 that is to say, that in all cases where mining leases are 
 granted, some part of the rent is to be paid to the com- 
 missioners, whatever may be the value of the benefice. 
 
 Incumbents of benefices are also now empowered by an Farm leases by 
 act of parliament'' passed in the same year as the act '°cunabents. 
 which has been last mentioned, to demise their lands for 
 a term certain for farming purposes. 
 
 The lease for such purposes must be by deed, with the For terms of 
 consent of the patron and the bishop and of the lord of the ^^ y^^^^' 
 manor"; if the lands are copyhold, such consents to be 
 testified by their being parties to and executing the deeds; 
 and such lease may be for any term not exceeding fourteen 
 years, to take effect in possession. 
 
 The restrictions and conditions, subject to which such Subject to re- 
 leases may be granted, are, strictions, con- 
 
 1st. There shall be reserved in every such lease, payable ' 
 
 to the incumbent quarterly in every year during tlie con- 
 tinuance of the term thereby granted, the best yearly rent 
 that can be reasonably gotten for the same, without taking 
 any fine, or any thing in the nature thereof, for granting 
 such lease. 
 
 2nd. No such lessee shall be made dispunishable for 
 waste by any clause or words to be contained in such 
 lease. 
 
 3rd. The lessee shall thereby covenant with the incum- Covenants in 
 bent granting the lease and his successors : ''"^ '^^^^e- 
 
 a. For due payment of the rent thereby to be reserved, 
 and of all taxes, charges, rates, assessments and imjjosi- 
 tions whatsoever which shall be payable in respect of the 
 premises thereby leased. 
 
 b. That he will not assign or underlet any of the here- 
 ditaments comprised in such lease for all or any part of 
 the term thereby granted, without the consent of the bishop 
 of the diocese, and the patron and incumbent of the bene- 
 fice, to be testified by their respectively being parties to 
 and sealing and delivering the deed or instrument by which 
 any such assignment or under-lease may be ettected. 
 
 c. That he will in all respects cultivate and manage the 
 
 '» 5 Vict. c. 27.
 
 236 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 lands thereby leased according to the most im])roved system 
 of" husbandry in that part of the country where such lands 
 are locally situated, so far as such system may not be 
 inconsistent with any express stipulation to be contained 
 in such lease. 
 
 d. That he will keep and at the end of the term leave 
 all the lands comprised in such lease, together with the 
 gates, drains and fences of every description, and other 
 fixtures and things thereupon, or belonging thereto, in 
 good and substantial repair and condition. 
 
 e. That he will, at all times during the continuance of 
 the term, keep the buildings comprised in such lease, or 
 to be erected during the term upon the lands thereby 
 demised, or on any part thereof, insured against damage 
 by fire, in the joint names of the lessee and of the incum- 
 bent of the benefice for the time being, in three -fourths 
 at the least of the value thereof; and that he will lay out 
 the money to be received by virtue of any such insurance, 
 and all such other sums of money as shall be necessary in 
 substantially rebuilding, repairing and reinstating, under 
 the direction of a surveyor to be for that purpose appointed 
 by the incumbent of such benefice for the time being and 
 such lessee, by some writing under their respective hands, 
 such messuages or buildings as shall be destroyed or da- 
 maged by fire. 
 
 4th. There shall be inserted in every such lease a reser- 
 vation, for the use of such incumbent and his successors, 
 of all timber trees, and trees likely to become timber, and 
 of all saplings and underwoods, and of all mines and 
 minerals. 
 
 5th. There shall also be inserted a power of re-entry, 
 in case the rent thereby to be reserved shall be unpaid for 
 the space of twenty-one days next after the same shall 
 become due, or in case the lessee shall be convicted of 
 felony, or shall become a bankrupt, or shall take the 
 b(!nefit of any act of parliament for the relief of insolvent 
 debtors, or shall compound his debts, or assign over his 
 estate and effects for payment thereof, or in case any exe- 
 cution shall issue against him or his cflbcts, or in case 
 such less(.'e shall not from time to time duly observe and 
 j)erforni all the covenants and agreements on his j)art in 
 such lease to be contained. 
 
 6th. The lessee in each such lease shall execute the 
 
 same or a counterpart thereof. 
 
 Ccriain cove- Any stipidation, covenant, condition or agreement in 
 
 nanis ahull not .j,^y <^xxc\\ Icase, ou the part of the lessee, for the adoption 
 
 prciniiitns, &.c. '^"^ ^^^ ^^ ^"Y pi^ifticular mode or system of cultivation,
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. 237 
 
 or for the drainage, or subdividing, or emljanking or warp- 
 ing of all or any of the lands comprised in such lease, or 
 for the erection of any new or additional farm-houses, 
 barns, kc, which may be requisite, or for repairing or 
 making any substantial improvements on the premises, or 
 for the payment of any additional rent or rents, or penalty 
 on breach of any of the covenants or agreements contained 
 in any such lease, shall not be deemed or construed to be 
 a fine or consideration for granting such lease within the 
 meaning of the act : nor is any thing in the act to be 
 taken to jireclude the lessor from covenanting that the 
 lessee shall be entitled to have or take from off the demised 
 premises brick earth, stone, lime, or other materials for 
 the erection or repair of any buildings, or for the construc- 
 tion or repair of drains, or for any other necessary im- 
 provements, and sufficient rough timber, to be assigned 
 by the incumbent for the time being or his agent duly 
 authorised, for any of such purposes aforesaid, and for the 
 making or repair of gates and fences : and the custom of 
 the country as to outgoing tenants shall apply to each 
 lease to be granted under the act, except so far as the 
 lease shall contain any express stipulation to the contrary. 
 
 The term to be granted by any such lease may be twenty Term may be 
 instead of fourteen years where the lessee shall covenant in 20 years in cer- 
 his lease to adopt and use any mode or system of cultivation '^"^ ^^^^^" 
 more expensive than the usual course, or to drain or sub- 
 divide, or embank and warp, at his expense, any part of 
 the premises, or to erect, at his own expense, on the pre- 
 mises, any buildings, or to repair in a more extensive 
 manner than is usually required of lessees of farms any 
 buildings on the premises, or in any other manner to im- 
 prove the premises at his expense.^ 
 
 From the lands which may be demised under the power House and 
 thus conferred, there is an exception as to the parsonage- certain glebe 
 house, garden and premises, and as to ten acres of glebe ^^"''^ excepted, 
 which may be situated conveniently for occupation, and 
 which must be reserved out of such lease, unless the glebe 
 is more than five miles from the parsonage, in which case 
 the exception does not apply.' 
 
 The details and matters to be obsei-ved in the grant of Paiticulars to 
 these farm leases are, iTants onud" 
 
 That before any such lease is granted, a surveyor is to feases. 
 be appointed, who is to make maps, certificates, valuations 
 and reports, as directed in the act, respecting such jm'o- 
 posed lease ; or if there is any existing map of the lands, 
 it may be used by him for this purpose.^ 
 
 « Sect. 1. ' Sect. 2. « Sect. 3.
 
 238 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Consent requi- 
 site. 
 
 Incumbent's 
 part of maps, 
 &c. to be de- 
 posited in tlie 
 registry of the 
 diocese. 
 
 The execution of such lease by the bishop and patron 
 is to be conclusive evidence that the lands are proper to be 
 leased, that the rent is the best that can be gotten, and 
 that all the covenants are proper.'' 
 
 A lease granted under the act can only be surrendered 
 by a deed, to which bishop, patron and incumbent are all 
 parties ; and such surrenders have operation only from the 
 time when such deed is duly executed by such parties.' 
 
 In cases of peculiars belonging to bishops, such bishops 
 are to exercise within their peculiars the several powers 
 which they are called upon by the act to exercise.'' 
 
 The provisions of the act as to the persons by whom 
 consent is to be given in particular cases, are similar to 
 those of the act before mentioned for enabling: buildine; 
 leases to be granted ; and the powers of the act are made 
 to extend to lands, &c. held in trust for incumbents in the 
 same manner and according to the same provisions as 
 have been already mentioned in speaking of the former 
 act.^ 
 
 The part of every such lease belonging to the incum- 
 bent, or in case there shall not be more than one part of 
 any such lease, an attested copy thereof, and every sur- 
 render to be made under this act, together with the writing 
 by which a surveyor shall have been appointed, and the 
 map or plan, or copy of or extract from a map or plan, 
 certificate, valuation and report directed to be made before 
 the granting of such lease, shall, within six calendar months 
 next after the date of such lease, be deposited in the office 
 of one of the registrars of the diocese wherein such bene- 
 fice shall be locally situated, to be perpetually kept and 
 preserved therein, except where the benefice shall be under 
 the peculiar jurisdiction of any archbishop or bishop, in 
 which case the several documents before mentioned shall 
 be deposited in the office of the registrar of the peculiar 
 jurisdiction to which such benefice shall be subject ; and 
 such registrars respectively, or their deputies, shall, upon 
 any such dej)Osit being so made, sign and give to the 
 incumbent a certificate of such deposit ; and such lease 
 or attested copy and other documents so to be deposited 
 shall be produced at all proi)er and usual hours, at such 
 registry, to the incumbent of the benefice for the time 
 being, or to the ])atron of such benefice for the time being, 
 or to any person on their or either of their behalf applying 
 to inspect the same ; and an office copy thereof, respec- 
 tively certified under the hand of the registrar or his de- 
 
 •' Sect. 4. 
 '' Sect. 6. 
 
 » Sect. 5. 
 
 ' See these provisions ante.
 
 LEASES BY ECCLESIASTICAL CORPORATIONS. . 239 
 
 puty (and which office copy, so certified, the registrar or 
 his deputy shall in all cases, upon application in that 
 behalf, give to the incumbent for the time being of such 
 benefice,) shall, in any action against the lessee, and in all 
 other cases, be admitted and allowed in all courts what- 
 soever as legal evidence of the contents of such lease, or office copies to 
 of any such other document, and of the due execution of ^''- evidence. 
 the counterpart of such lease by the lessee, if there shall 
 be any counterpart, and of the due execution of the lease, 
 and of every other document, by the parties who, on the 
 face of such office copy, shall appear to have executed the 
 same : and every such registrar shall be entitled to the Fees to the 
 sum of five shillings for so depositing such documents registrar. 
 and for certifying the deposit thereof, and the sum of one 
 shilhng for each search and inspection, and the sum of 
 sixpence, over and besides the stamp duty (if any), for 
 each folio of seventy-two words of each office copy so 
 certified. 
 
 Section 3. 
 
 Purchase and Alienation of Lands hy Ecclesiastical 
 
 Corporations. 
 
 Ecclesiastical corporations may hold those freehold es- Prohibited from 
 tates that have been transmitted to them by their pre- purchasing 
 decessors. They are however prohibited by several ancient ^^'^^^^ ^' 
 and modern laws, usually called the statutes of mortmain, 
 from purchasing more lands without a license from the 
 crown. But the power of suspending statutes by regal 
 authority only, being declared illegal at the Revolution, it 
 was deemed prudent to give a parliamentary sanction to 
 licenses in mortmain. This was done by 7 & 8 Will. III. 
 c. 37, by which it was enacted that it should be lawful for 
 the king, his heirs and successors, to grant to any person 
 or persons, bodies politic or corporate, their heirs and suc- 
 cessors, licenses to alien in mortmain, and also to purchase, 
 acquire, take and hold in mortmain, in perpetuity or other- 
 wise, any lands, tenements, rents or hereditaments what- 
 soever." 
 
 It was formerly the practice, before a license of mortmain Licenses of 
 was granted, to sue out a writ of ad quod damnum, in monmaui. 
 order to ascertain whether such a license would be pre- 
 judicial to the king or others. But Mr. Hargrave says 
 that he was well informed that writs of this kind had not 
 
 n> 1 Inst. 99 a, n. 1.
 
 240 LANDS OP ECCLESIASTICAL CORPORATIONS. 
 
 been usual on granting mortmain licenses since the statute 
 7 & 8 Will. 1 11."^ 
 
 It would be unnecessary to enter in detail into any of 
 the provisions of these statutes of mortmain, because the 
 prohibition from acquiring lands is the general rule, from 
 which all the excepted cases will be noticed in the follow- 
 ing sections. Blackstone observes upon the address and 
 subtle contrivances by which ecclesiastics were for a long 
 time able to avoid the effect of the statutes, until succes- 
 sive parliaments, pursuing them through all their finesses, 
 at last, though with difficulty, gained the victory." 
 Prohibited from And as ecclesiastical corporations are restrained from 
 aliennting ge- acquiring lands, so are they by the statutes 1 Eliz. c. 19, 
 ^' and 13 Eliz. c. 10, restrained, generally, from every mode 
 
 of alienation except leasing, which has been already 
 treated of. As this restriction is also the general rule, it 
 Chargin? bene- ^^'^'^ ^^^ unnecessary to enter into details. It follows as a 
 fices. consequence, and is further declared by statute," that all 
 
 chargings of any benefice with cure with any pension or 
 any profit out of the same, so far as any such charge 
 would continue beyond the life of the incumbent granting 
 it, would be altogether void. During the life of the incum- 
 bent it appears to be considered that the chai-ge is not so 
 much upon the benefice as upon the interest of the incum- 
 bent therein, so that such charges are not attended to 
 until all the payments usually made out of the profits for 
 the use of the benefice in every way have been fully 
 satisfied.'' 
 J'roicction i'^^ alienation of lands, the property of ecclesiastical 
 
 against alien- corporations, is prevented to that extent, that they can 
 neither bar their successors by wilful alienation, nor by 
 their neglect to take care of their own, until a consider- 
 able lapse of time has been ])ermitted. Tims the right to 
 them cannot be barred by a fine levied by the parties in 
 possession, nor, since the passing of the statute of 3 &: 4 
 Will. IV. c. 72, by the more simple mode of assurance, 
 substituted in lieu of a fine. For ecclesiastical corpora- 
 tions (and in general all ecclesiastical persons), who were 
 seised in right of their churches only, and had not an 
 absolute estate in their ])ossessions, being restrained from 
 alienations, save in such manner as we have before men- 
 tioned, were not only prohibited from hwying fines, but 
 could not even bar their successors by their nonclaim. 
 
 '» See 1 Cru. Dig. 53, 54. " 2 Black. Com. 2(i(!. 
 
 " 13 VAh. c. 20, repcalcil by 43 Geo. 3, c. ft4, and revived iigaiii by 57 
 (ico. 3, c. 9!). 
 
 I' See post, Stqiicslralion. 
 
 at ion
 
 PURCHASE AND ALIENATION OF LANDS. 241 
 
 Thus in a case in 13 James I.'' where a fine and five Fine and non- 
 years nonclaim was set up in bar to an ejectment, brought '^'''»>"i "j. c^^e o^f 
 by the president and fellows of Magdalene College, one gregate. 
 of the points was, whether the president and fellows were 
 barred by the fine and nonclaim, and it was resolved, that 
 the right of the college was not barred, for the words 
 of the statute 13 Eliz., which prohibits all ecclesiastical 
 corporations from alienation, were, " That all leases, gifts, 
 grants, feoft'ments, conveyances, or estates to be made, 
 had or suffered by any master and fellows of any college, 
 &c., to any person or persons, (fee. (except leases), shall 
 be utterly void, and of none eflfect, to all intents, construc- 
 tions and purposes." So that when a fine was levied, 
 and no claim was made for five years, there was a convey- 
 ance permitted and suft'ered by the president and fellows 
 of the college ; and it would have been of no effect to have 
 prohibited the president and fellows themselves from 
 making conveyances of their lands, if they were allowed 
 to have a power by their permission and nonclaim to bar 
 their successors.'" 
 
 A bishop, dean, or any other ecclesiastical corporation Corporation 
 sole, might be himself barred by his own nonclaim ; as, if f^^^' "'*'^" 
 he neglected to make his claim within five years after a cia7m. 
 fine was levied of an estate, to which he was entitled in 
 right of his bishopric, &c. he would be barred during his 
 life ; but his successors would, in such a case, be allowed 
 five years to avoid the fine, from the time of their becom- 
 ing entitled to the lands ; and formerly this would have 
 extended to the case of each successor, as according to 
 the old doctrine, iiuUum tempus occurrit ecclesia. 
 
 But now by the statute 3 & 4 Will. IV. c. 27, it is en- Term of sixty 
 acted, "That it shall be lawful for any archbishop, bishop, years, or twoin- 
 dean, prebendary, parson, vicar, master of hospital, or ^"^"La'rs.' 
 other spiritual and eleemosynary corporation sole, to make 
 an entry or distress, or to bring an action or suit to re- 
 cover any land or rent within such period as is there men- 
 tioned, next after the time at which the right of such cor- 
 poration sole, or of his predecessor, to make such entry or 
 distress, or to bring such action or suit, shall have first 
 accrued, that is to say, the period during which two per- 
 sons in succession shall have held the office or benefice, in 
 respect whereof such land or rent shall be claimed, and 
 six years after a third person shall have been appointed 
 thereto, if the times of such two incumbencies, and such 
 term of six years, taken together, shall amount to the full 
 
 '1 Magdalen College case, 11 Rep. 78 b ; 1 Roll. Rep. 151. 
 ^ See Hoivlet v. Carpenter, 3 Keb. 775. 
 
 R
 
 242 
 
 LANDS OF ECCLESIASTICAL CORPOEATIONS. 
 
 Present stale of 
 the law. 
 
 Exception in 
 case of leases 
 under special 
 powers. 
 
 When allornoy- 
 gencral sliould 
 1)6 a parly in 
 setting aside too 
 long leases. 
 
 period of sixty years ; and if such times taken together 
 shall not amount to that full period, then during such 
 further number of years as will, with the time of the hold- 
 ing of such two persons and such six years, make up the 
 full period of sixty years. 
 
 Whether, therefore, the alienation of lands, formerly the 
 property of an ecclesiastical corporation sole, has been 
 made by fine, or by a substituted assurance in lieu thereof, 
 or by mere laches and nonclaim, the two first successors 
 cannot be bound thereby ; and the alienation is at any 
 time voidable at their instance, and so with the third suc- 
 cessor during the first six years of his incumbency ; nor 
 would it make any difference in his right, although the 
 two preceding incumbencies might have together lasted for 
 a century or more. And the alienation would be also void- 
 able at the instance of a succeeding incumbent, although 
 twenty or more incumbencies might have intervened, until 
 full sixty years had elapsed, since the time at which a right 
 to make such entry or distress, or to bring such action or 
 suit, as in the act mentioned, had occurred. So that the 
 two events must concur ere the successor can be barred 
 of his right ; the lapse of sixty years, and the lapse of two 
 whole incumbencies, with the first six years of the third. 
 
 But in a case where a special act of parliament em- 
 powered a vicar, with the approbation of the vestry for the 
 time being, to grant or demise a certain piece of land 
 (which had been assigned to him as a provision under a 
 former act) to any person or persons whomsoever, for such 
 term or number of years, at and under such rent, rever- 
 sions, and payments as to him and them should seem 
 meet ; and by virtue of the jiower so given to him, the 
 vicar had demised the piece of land for 999 years, so as 
 in fact to amount to a complete alienation of it, it was 
 attem])ted by a succeeding vicar to set aside the lease as 
 inequitable, and an information and bill were filed in 
 Chancery for tliat purpose. The Court held that, as the 
 provisions of the act of parliament appeared to have been 
 complied with, there was no case for its interference ; and, 
 notwithstanding the excessive length of the lease, the de- 
 murrer to the bill was allowed ; and in that case it was 
 also said, that the attorney-general was not a proper party 
 in a case of that kind, I)u1 tliaf tlu; vicar might alone have 
 filed ;i Iji II ; that the kingor his attorney-general liad no 
 other intcnsst in a suit of that nature, than that ol" vindi- 
 cating the rights of the church ; which interest was the 
 same in the case of tithes siditracttid, in which the attor- 
 ney-general never joins in a suit for the recovery of them.
 
 PURCHASE AND ALIENATION OF LANDS. 243 
 
 And it may be inferred generally, from what was said in 
 the above case, that except where the patronage is vested 
 in the crown, the attorney-general woidd not be a neces- 
 sary party in a proceeding to set aside the leases of eccle- 
 siastical corporations sole.^ 
 
 Section 4. 
 
 Exceptions from the Statutes of Mortmain. — Exchange 
 
 of Glehe Lands. 
 
 In consequence of the double restriction before spoken Difficulties of, 
 of, upon the purchasing or alienating lands, it was im- ^o^^'^y* 
 possible for ecclesiastical persons to effect any exchanges 
 of their lands, however beneficial such an exchange might 
 have been for all parties, w ithout some special act of par- 
 liament passed for that particular purpose, or as appears 
 by the books to have been done upon at least one occa- 
 sion,* a decree made in Chancery to confirm an exchange 
 of glebe for other lands. 
 
 In fact, so great was formerly the difficulty of effecting 
 a legal and valid exchange of glebe for other lands, that 
 Dr. Burn mentions a practice that had sometimes ob- 
 tained, without the sanction, or rather in defiance of the 
 law. 
 
 As exchanges, he says, in either of the ways above- 
 mentioned, viz. by special act of parliament, or by decree 
 in chancery, cannot be made without considerable ex- 
 pense, it hath been sometimes practised (especially in 
 laying together small quantities of land for the sake of 
 enclosure and improvement) for the incumbent to make 
 an exchange during his own time, in which his successors 
 will also find the same advantage, until by length of time 
 all remembrance where the lands formerly lay shall be 
 worn out ; which, although it doth not operate to effect a 
 legal title, yet no person being grieved thereby, will pro- 
 bably never be inquired into and disannulled." 
 
 A practice more unsafe, inefficient, and likely to be pro- 
 ductive of litigation, it is scarcely possible to conceive ; for 
 it is not always real, but as frequently supposed grievance, 
 or some quarrel aliunde that leads to litigation on such 
 matters ; and like all other matters in which the strict 
 legal method is departed from, the advantage to be imme- 
 
 * Attorney- Genera I v. Moses and others, 2 INIadd. 294. 
 
 * Morgan v. Clerk, Ch. R. 5 Car. and cited in Burn, E. L. 
 " 2BurD, E. L. 301. 
 
 r2
 
 244 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 diately derived could scarcely ever compensate for the 
 possible future inconvenience. 
 First allowed in The impossibility of effecting legal exchanges of glebe 
 particular cases, j^nds was found to be so great an inconvenience, that in 
 legislating for the augmentation of livings under Queen 
 Anne's Bounty, the opportunity was taken for excepting 
 such cases from the inconvenient general rules of restric- 
 tion ; and it was enacted, that it should be lawful for the 
 incumbent, patron, and ordinary of any such augmented liv- 
 ing or cure, to exchange all, or any part of the estate so 
 settled, for the augmentation thereof, for any other estate 
 in lands or tithes of equal or greater value, to be conveyed 
 to the same uses;" and subsequently all messuages and 
 lands belonging to such augmented livings, that is, whe- 
 ther belonging to such benefices originally or given to 
 them in augmentation, were permitted to be exchanged 
 in like manner.^' 
 Now permitted The general restrictions against exchange have, by the 
 generally. statute 55 Geo. III. c. 147, been removed ; and tlie pre- 
 
 sent state of the law upon that subject, so far as regards 
 direct exchange, is, for the most part, regulated by that 
 act, whereby it is made lawful for the parson, vicar, or 
 other incumbent for the time being, of any ecclesiastical 
 benefice, by deed indented and registered as is therein 
 mentioned, with the consent of the patron of such benefice 
 and of the bishop of the diocese, to grant or convey to any 
 })erson or persons, or corporations sole or aggregate, the 
 parsonage or glebe house, with the apjiurtenances, and 
 the glebe lands, and any pastures, feedings, or right of 
 common or way appendant, or any parts of the same be- 
 longing to any such benefice, in exchange for any house, 
 buildings, gardens, &cc., and any lands, whether lying 
 within the local limits of such benefice or not, so as that 
 the same be sitiuite conveniently for actual residence or 
 occupation by the incunil)ent thereof. This part of the 
 enactment would get rid of the prohibition against the 
 alienation of glebe lands ; but it was also necessary to get 
 rid of the Mortmain Acts, and to enal)le the ecclesiastical 
 rorj)oration to acc(!})t and take the lands given in ex- 
 change. It was tliercfore by the same act also made 
 lawful for the parson, vicar, or incumbent for the time 
 Ix'ing of such benefice, by the same or a like deed, and 
 with the like consent, to accept and take in exchange, to 
 him and his successors for ever, from any person or per- 
 
 '^ 1 Geo. 3, St. 2,r. 10. 
 
 y 43 (ieo. 3, c. 107 ; sec also the Gilbert Act ; but it seems quite unneces- 
 sary to speak of any powers of cxciinnge prior to 55 Geo. 3.
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 245 
 
 sons, or corporation sole or aggregate, any other house 
 buildings, &c. and any other lands, being of greater value 
 or more conveniently situate, in lieu of and exchange for 
 such lands, &c. so granted and conveyed. 
 
 The lands, &c. thus taken in exchange by the incum- 
 bent must be of greater value, or more conveniently 
 situated, than those given up by him in exchange ; so that 
 if the requisite consent were given, and the premises to 
 be taken in exchange were evidently more conveniently 
 situated, it seems that they might be of less value than 
 those given up by the incumbent for them; and such 
 lands, &c. must moreover be of freehold or copyhold te- 
 nure. 
 
 The house, buildings and appurtenances, lands, &c. so House, &c. 
 to be accepted and taken in exchange by the incumbent, '^''^" '". ^^' 
 shall for ever, after such grant and conveyance thereof, be ^y^,^ \q ^e the 
 the parsonage and glebe house, or glebe lands and pre- house of resi- 
 mises of the benefice, to all intents and purposes whatso- *^ence, &c. 
 ever, and shall be holden and enjoyed by the incumbent 
 and his successors accordingly, without any license or 
 writ of a<i quod damnum J- 
 
 If the whole or any part of the premises so annexed Copyhold be- 
 were, prior to the annexation, of copyhold tenure, they comes freehold 
 shall, after such annexation, become of freehold tenure, (q the incum- 
 notwithstanding any law to the contrary ; and in that case bent, 
 the lands given by the incumbent in exchange for them 
 shall become of copyhold tenure, in the same way as the 
 lands, in exchange for which they were given, were prior 
 to the annexation.^ 
 
 And so with respect to tithes ; for, as we shall hereafter When ex- 
 observe, by common law, the glebe lands given in ex- changed lands 
 change would at once become subject to tithe, so soon as tithes, 
 they ceased to be the property of the Church. But it is 
 enacted by this statute, that in case the lands conveyed to 
 the parson, &c. as the new glebe, were exempt or dis- 
 charged from tithe, or covered with any modus or com- 
 position in lieu thereof prior to such annexation, then the 
 old glebe lands given up by the parson, &c. in exchange 
 for them, shall, if situated in the same parish, and in the 
 absence of any express agreement between the parties to 
 the contrary, become exempt or discharged from tithes, or 
 covered by the modus or composition, as the case may be, 
 in like manner.'' 
 
 The object of the act is to make the exchange of so After exchange, 
 complete a nature, that the land formerly glebe, and given nQ^'o^g'^vicled. 
 up by the incumbent in exchange, shall, in the hands of 
 
 2 Ibid. 1 6Geo. 4, c. 8, s. 3. b 55 Geo, 3, c. 147. s. 2,
 
 246 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 its new possessor, be liable to every contingency to which 
 the land given up by him might have been liable ; and 
 therefore, and also for the purpose of quieting the posses- 
 sion of the incumbent in his new glebe, it is enacted, that 
 he shall not be evicted or ejected from the peaceable pos- 
 session or enjoyment of the house or lands given to him 
 in exchange by reason of any person or persons, or cor- 
 poration sole or aggregate, claiming any right thereto 
 through any title prior to that of, or through any defect 
 of title of, the person or persons, corporation sole or ag- 
 gregate, who may have granted or given up the same in 
 exchange. But any such person or persons, or corpora- 
 tion claiming such right, are by that act authorised and 
 empowered to use all such and the same powers and re- 
 medies in trying their right to, and in obtaining and reco- 
 vering possession of, any house, lands and premises which 
 may have been granted in exchange by the incumbent, as 
 they would have been enabled to use in trying the right 
 to, and in obtaining and recovering possession of, the house, 
 land or premises, in exchange for which the same shall 
 have been granted or given up by such incumbent under 
 the authority of the act. '^ 
 
 It was at first provided, that if copyholds were given in 
 exchange, they must have held of some manor belonging 
 to the benefice ; and also that only thirty acres could be 
 exchanged : but both these restrictions have been since 
 repealed.*^ 
 
 We must refer to the next section for the various details 
 which are to be observed and attended to prior to and in 
 the exchange of lands under this act ; for the various 
 directions in that respect are in the statute so comj)letely 
 intermixed with the directions relating to lands purchased 
 as glebe, tliat any attempt to analyse them separately 
 would lead to much unnecessary repetition.' 
 Timber may be By an act passed in the succeeding year,' incumbents 
 sold for e(iuuliiy ^j.g enabled, with consent of the patron and bishop, to 
 apply the monies to arise by sale of any timber cut and 
 sold from the glebe lands, the timber whereof belongs to 
 such benefice, either for equality of exchange, or towards 
 or in part of equality of exchange, or for the price or pur- 
 chase money, or towards or in part of the price or pur- 
 chase money of any house, outbuildings, yards, gardens 
 and appurtenances or lands, or any or cither of them, by 
 the last-mentioned act authorised to be taken in exchange 
 or to be purchased, and from and after such exchange or 
 
 <: riCt (ico. ;i, c. 147, s. 3. "' See 6 Geo. 4,c.li. 
 
 * .Sec ihu details next section. ' 56 Geo. 3, c. 52.
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 247 
 
 purchase, to be annexed to, and to be and become the 
 parsonage and glebe house and glebe lands of such be- 
 nefice. 
 
 Exchanges of land, in the particular case of unions of be- United bene- 
 nefices, Avill be found treated of under the head of Unions." ^ces. 
 
 Since, however, there might be many cases in which no House of resi- 
 direct exchange could be effected, power has been given f^ence, &c. may 
 
 in certain cases, and subject to certain restrictions, to I^fu!°'^\^"f ^"", 
 rr . 1 , 111 -1 , 1 -1 °^"^' purchased 
 
 eiiect what would be equivalent to an exchange ni the in its stead. 
 following manner. Where the residence house, &c. be- 
 longing to any benefice is inconveniently situated, or where 
 it is thought advisable to sell and dispose thereof, or where 
 any buildings, (fee. belonging to the benefice are so old 
 and ruinous, that it would be inexpedient to expend money 
 in repairing them,'' the incumbent of the benefice is au- 
 thorised and empowered, with the consent of patron, ordi- 
 nary and archbishop, to be signified by their executing the 
 deed of conveyance, to sell such house, &c. with any land 
 contiguous, not exceeding twelve acres, in any such manner 
 as to the patron, ordinary and archbishop may appear best, 
 and to convey the same away accordingly. The purchase 
 money in such a case is to be paid to the governors of 
 Queen Anne's Bounty, to be applied by them in the erec- 
 tion or purchase of some other house and offices or land 
 for the site of a house, with land contiguous, not exceed- 
 ing twelve acres, such purchase to be approved of by the 
 patron and ordinary, the approval being signified under 
 their hands, and deposited in the registry of the diocese.' 
 
 The manner in which the consent of the patron is to be Consents., how 
 testified in particular cases, is the same as that mentioned testified. 
 in the succeeding section, in the case of purchases and 
 exchanges under 55 Geo. III. c. 147. 
 
 The governors of Queen Anne's Bounty are also further Money from 
 empowered to lay ovit and invest such purchase monies in sale may be in- 
 such manner as they may think proper, adding the accii- v^*'^^'- ^'^^ ""^" 
 mulation of interest to the principal, and so from time to 
 time, so long as the same shall remain in their hands, or 
 until the same, or so much thereof as shall be required, 
 shall have been applied and disposed of by them as before 
 directed ; and in case, after the complete execution of the 
 duty or trust imposed on them, or of so much thereof as 
 shall be in their power, any sum of money shall remain in 
 their hands undisposed of, such surplus shall be appointed 
 by them to the benefice on account of which the same 
 shall have been received, and shall be applicable and dis- 
 
 s See post. •> ggg amendment by 2 & 3 Vict. c. 49, s. 17. 
 
 * 1 Vict. C.23, S3. 7,8, 9.
 
 248 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 sold 
 
 Consents, &;c. 
 
 posable by them for the benefit of such benefice, in such 
 
 manner and with such powers of investment, and other 
 
 powers and authorities in all respects, according to the 
 
 rules and regulations of the governors for the time being, 
 
 as if the monies, or the stocks or funds which might be 
 
 purchased therewith, had been appropriated by the said 
 
 governors to such benefice, out of the general funds and 
 
 profits of the said governors or otherwise, for the benefit 
 
 and augmentation thereof.'' 
 
 Lands annexed Power is also given to sell lands, kc. which have been 
 
 to benefices by purchased for or annexed to benefices, for the augmenta- 
 
 Queen Anne's ^^ thereof, bv the governors of Queen Anne's Bounty ; 
 
 Bounty may be ,. I'^.i'^ ,^,i ^ j 
 
 but in such cases, the consent or the governors, patron and 
 ordinary to every such sale shall be testified by their re- 
 spectively executing the deed or other assurance, by which 
 the lands, &c. shall be conveyed or assured ; except that 
 in the case of any copyhold land, which shall be conveyed 
 or assured by surrender, such consent may be testified by 
 any writing under the corporate seal, or the hand and seal 
 of each of the consenting parties, which writing shall be 
 produced to the lord or steward of the manor of which the 
 said premises shall be holden, and shall be a sufficient 
 authority to him for accepting from the incumbent and 
 other necessary parties a surrender of the same premises, 
 and such writing shall be entered with the surrender upon 
 the court rolls of the said manor.' If the lands, (fee. 
 which have been so ap])ropriated or annexed, and which 
 it is thought to be desirable to dispose of, are situate within 
 the j)arish, the consent of the archbishop is made requisite 
 in addition to the above.'" 
 
 Section 5. 
 
 Exceptions from the Statutes of Mortmain. — Lands taken 
 as Glebe, t^c. by virtue of certain Stattites. 
 
 Besides the ])owers of exchange spoken of in the last 
 section, several modern statut(>s have been ])asscd in favour 
 of the church, enabUug incumbents, as siu-h, to take and 
 hold, and giving every facility and encouragement to per- 
 sons disposed to give lands, &c. for the perpetual use of 
 tin; benefic-e. Of the extent to which the general revenues 
 of the clutrch may have been augiiienled by these means 
 wc have no accurate means of judging ; but it will be re- 
 
 k 2 6c 3 Vict. c. 49, s. H. ' Ibid- .s. 15. ■" Sett. 16.
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 249 
 
 niembered, that when kinds have once been given by virtue 
 of these statutes, they can never again be ahenated without 
 an equivalent received. 
 
 The first provision of this kind which we shall have to Grants by im- 
 mention (for in speaking of a subject somewhat compli- propf^iois of 
 Gated it will be best to keep the chronological order of the iVca'r. 2 
 statutes) is that by which power is given to the impro- a.d. 1665. 
 priators of tithes to unite the same to the parsonage or 
 vicarage of the chapel where they lie, or to settle the same 
 in trust for the benefit of the parsonage, vicarage, or curacy 
 where the parsonage is impropriate, without any license of 
 mortmain." 
 
 The whole of the statute which contains the above pro- 
 vision was by mistake repealed by the statute 1 & 2 Vict, 
 c. 106, but has been since revived by an act passed in the 
 6 & 7 Vict. c. 37 ; and the provisions of a statute passed 
 in the 29th year of Charles the Second, for the purpose of 
 confirming particular augmentations that had been then 
 made, would apply to those under the preceding act, so far 
 as giving to the persons in whose favour the augmentation 
 had been made all remedies for recovery of the tithes, &c. 
 granted to them. 
 
 Between the times of the passing the first and the last 
 statutes above-mentioned, and in the year 1831, an act 
 was passed, by which the ])rovisions of the first-mentioned 
 act were considerably extended. We have therefore spoken 
 of the power as given generally ; but the extending act 
 relates to details which appear to be unnecessary here : it 
 may be sufficient to say, that they are such as would en- 
 able the auomentation to be made whether the tithe has 
 been commuted for rent-charge or not. But no benefice 
 may by this means be augmented to above the yearly 
 value of 300/.; such annual value to be ascertained in 
 such manner as is hereafter mentioned in the case of 
 endowments made to new churches." 
 
 The next provisions to be mentioned are those by which Grants toQaeen 
 persons are empowered to grant and convey to the Go- ^^'"t^'s l^onniy 
 vernors of Queen Anne's Bounty Fund. For every person 2 & 3 Anne 
 having in his own right any estate or interest in possession, a.d. 1703. 
 reversion, or contingency, in any lands, is thereby empow- 
 ered, by deed inrolled in such manner and within such time 
 as is directed by 27 Hen. VIII. c, 16, or by will, to give 
 and grant to and vest in the said corporation, and their 
 successors, all such his estate, interest or property, or any 
 part thereof, towards the augmentation of the maintenance 
 
 » 17 Car. 2, c. 3, s. 7. 
 
 « See 1 & 2 Will. 4, c. 45, and post, 3 & 4 Vict. c. 60, s. 4.
 
 250 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 General power 
 lo give lands 
 or money ; 
 43 Geo. 3, 
 A.D. 1802. 
 
 For what pur- 
 poses. 
 
 iveslrictions. 
 
 of ministers officiating in a church or chapel where the 
 liturgy and rites of the said church shall be used, and 
 having no settled competent provision belonging to the 
 same ; and to be for that purpose applied according to 
 the direction of the benefactor by such deed or will ; and 
 in default of such direction, in such manner as by her 
 majesty's letters-patent shall be appointed. And such 
 corporation have full capacity and ability to take for the 
 purposes aforesaid as well from such persons as shall be 
 so charitably disposed to give the same, as from all other 
 persons as shall be willing to sell or alien any manors, 
 lands, tenements, goods or chattels, without any license or 
 writ of ad quod damnum. 
 
 Every person having in his own right any estate or 
 interest in possession, reversion or contingency, of or in 
 lands or tenements, or of property in any goods or chat- 
 tels, may, by deed inrolled in such manner and time in 
 England as by 27 Hen. VIII. c. 16, and in Ireland as by 
 10 Edw. II. c. 1, or by will in writing duly executed ac- 
 cording to law, such deed or will being duly executed three 
 months before death of grantor or testator, give and vest 
 in any person or body politic or corporate, their heirs and 
 successors respectively, any lands not exceeding five acres, 
 or goods and chattels not exceeding 5001., towards erect- 
 ing, rebuilding, repairing, purchasing, or providing any 
 house for residence for the officiating minister, or any 
 out-buildings, offices, churchyard, or glebe for the same 
 respectively, and to be for those })urposes applied accord- 
 ing to the terms of the deed or will, the consent of the 
 ordinary being first obtained ; and if no such limitation is 
 made in the deed, the gift shall be applied as shall be 
 appointed by the patron and ordinary, with consent of the 
 incumbent; and such grantees, their heirs, &c. may take 
 as well from persons charitably disposed to give the same, 
 as from all others willing to sell them, any lands, tene- 
 ments or chattels, without license or writ of ad q?tod dam- 
 num, notwithstandino- the Statute of Mortmain : but these 
 powers shall not extend to persons withm age, msane, or 
 femes coverts. Only one such gift or demise shall be 
 made by one person ; and wlicre either exceed five acres, 
 or bOOl. value in goods and chattels, the lord chancellor 
 on petition may order its reduction to that amount, and 
 make further reasonable order in the premises.^ 
 
 No glebe of more than fifty acres shall be augmented by 
 more tlian one acre ; and any excess therein shall be re- 
 duced by tlie lord chancellor.'" 
 
 P 43 Ceo. 3, c. 108, ss. 1, 2. 
 
 Sect. 3.
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 251 
 
 Every person having the fee simple of a manor may, by Grant of waste 
 deed under his hand and seal inrolled in chancery, with or lanJs ; 
 without such confirmation as the law requires, grant to the ^ ^^ jg^^] 
 minister of any parish church or chapel consecrated for the 
 service of the Church of England and Ireland, not exceed- 
 ing five acres, parcel of the waste of the manor, and lying 
 within the parish where such church or chapel shall be 
 erected, or within an extra-parochial district in which such 
 church, &c. shall be erected, for glebe on which to erect a 
 residence for the minister, freed from all rights of com- 
 mon.'" 
 
 The next provision of this kind which is to be noticed is 
 that which empowers the conversion into glebe of lands 
 which already belong to the benefice in some other right, 
 such annexations are to be made in the manner and sub- 
 ject to the restrictions following : 
 
 Any incumbent of any benefice of or to which any Power to annex 
 manor is parcel or appurtenant, and as parcel to which ^laf j^n^sTa°cel 
 any lands or tenements have been usually granted or de- of the benefice ; 
 mised or grantable, by deed indented and registered, with 55 Geo. 3, 
 the consent of patron and bishop, testified as presently ^•°' ^^^^' 
 mentioned, may annex to such benefice as glebe land or 
 parsonage house all or any part of such lands or tene- 
 ments, whether lying within the local limits of such bene- 
 fice or not ; which after such annexation shall cease to be 
 demisable as before by the incumbent, and shall become 
 the glebe land and parsonage house annexed to such 
 benefice for ever, without license or writ of ad quod dam- 
 num ; but such annexation shall not annul existing grants 
 or demises thereof.^ 
 
 Wherever there is no parsonage or glebe house upon a Power to give 
 
 benefice, or where, there being such a house, the same is P^f^'^^P ■ 
 
 11 1 • • • T 1 -J. i^ 1 house, IXC. in 
 
 too small and mconvenient, or mcommodiously situated, certain cases. 
 
 any person or persons, or corporation, being owners in fee 
 simple, are authorized and empowered to give, grant, and 
 convey to the parson or incumbent of such benefice, in 
 such manner as will be presently mentioned, any messu- 
 age, garden, lands, &c. or any right of way or other ease- 
 ment, whether lying within the local limits of such benefice 
 or not, so that the same may be conveniently situate for 
 actual residence or occupation by the incumbent thereof. 
 And every such messuage, garden, land, &c. so granted To continue 
 and conveyed shall for ever after become annexed to and ^"^'* ^°'' ^^^'"* 
 be deemed and taken to be the parsonage and glebe house, 
 •fee. to all intents and purposes whatsoever, and be holden 
 and enjoyed by such incumbent and his successors accord- 
 '■ 51 Geo. 3, c. 115, s. 2. » 55 Geo. 3, c. 147, s. 6.
 
 252 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Disposal of the 
 okl house. 
 
 Incapacitated 
 persons not 
 empowered. 
 
 Incumbents 
 empowered to 
 purchase lands 
 for glebe. 
 
 How fund for 
 sucli purchase 
 may be pro- 
 vided. 
 
 ingly, without any license or writ of ad quod damnum, the 
 Statutes of Mortmain or any other statutes to the contrary 
 notwitlistanding.* 
 
 After such annexation by gift has been made, the in- 
 cumbent may, by obtaining such consent as hereafter 
 mentioned, take down and remove the old parsonage or 
 glebe house, if it cannot be better applied to the perma- 
 nent advantage of the benefice ; and may apply the mate- 
 rials, or the produce of them if sold, towards some lasting- 
 improvement of the benefice." 
 
 Infants and lunatics, and femes covert without their 
 husbands, are excepted from the power given ; and not 
 authorised by this act to make such gift, grant, or con- 
 veyance. 
 
 It is also by the same act made lawful for the parson or 
 other incumbent for the time being of any benefice, the 
 existing glebe whereof does not exceed five statute acres, 
 with such consent and signified as hereafter mentioned, to 
 purchase any lands not exceeding in the whole twenty 
 statute acres, with the necessary out-buildings thereon, 
 whether being within the limits of such benefice or not : 
 but so as that the same be conveniently situated for build- 
 ing a parsonage or glebe house, or for gardens or glebe 
 thereof, or for any of the said purposes, and for actual 
 residence and occupation by the incumbent thereof, such 
 lands being of freehold or copyhold tenure; which lands 
 so purchased shall for ever after the grant thereof be and 
 become annexed to the glebe of such benefice to all intents 
 and purposes whatsoever, and be holden and enjoyed by 
 such incumbent and his successors accordingly, without 
 any license or writ of ad quod damnum ; and such lands 
 or such part of them as before the annexation were of 
 copyhold tenuie, shall after such annexation become and 
 be of freehold tenure.'' 
 
 This last enactment would have been nugatory, had not 
 some fluid been provided by means of which the purchase 
 could be cfi'cctcd, and it is tlicrefore by the next section of 
 the saiiie act enacted, that it shall be lawful for such in- 
 cumbent for the time being, with such consent, and signi- 
 fied as hereafter mentioned, to borrow, over and besides 
 such sums of money as he would be authorised to boiTow 
 under the Gilbert Act,^ such sum or sums of money as 
 shall be certified uj)on oath of some experienced surveyor 
 to be the just value of the lands to be purchased, not ex- 
 ceeding two years' clear income and produce of such bcne- 
 
 t Sect. 5. 
 
 " Ibid. 
 
 " Sect. 6. 
 
 ^ See post.
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 253 
 
 fice, after deducting all taxes and outgoings, except the 
 salary to the assistant curate."^ 
 
 And the repayment of the money so borrowed is to be Repay meui of 
 secured by a mortgage of the tithes, rents, and other emolu- ^""^ borrowed. 
 raents and profits of the benefice, to any person or persons 
 who shall advance such money, by one or more deed or 
 deeds, to be registered as hereafter mentioned, for the term 
 of twenty-five years, or until the principal and interest, 
 and all costs and charges attending the recovery thereof, 
 shall be fully paid off and satisfied. Sucli mortgage deeds 
 shall bind the incumbent and his successors ; and a coun- 
 terpart executed by the mortgagee is to be kept by the 
 incumbent.'' 
 
 The incumbent for the time being is to pay to the mort- 
 gagee or mortgagees yearly, as the same shall become due, 
 or within one month afterwards, as well the interest of the 
 principal money secured by such mortgage, as also the 
 further sum of 5/. per cent, of the principal originally ad- 
 vanced. But every such incumbent who does not reside 
 twenty weeks in every year upon such benefice (computing- 
 each year from the date of the first or only mortgage deed), 
 is to pay within the same period 10/. instead of 5/. per cent, 
 of the principal money originally advanced, until the whole 
 of such principal money originally advanced is fully paid 
 off. And every incumbent who, under the provisions be- 
 fore mentioned, is to pay off bl. per cent, only, must pro- 
 duce and deliver to the mortgagee, at the time of payment, 
 a certificate under the hands of two rectors or other offi- 
 ciating ministers of some parishes near adjoining, signify- 
 ing that he has resided twenty weeks upon the benefice 
 within the year for which such payment became due.'^ 
 
 In default of payment of the principal, interest and costs Provisions for 
 in such manner as before mentioned, the bishop is em- enforcing pay- 
 
 • 111 f* n t 
 
 powered to sequester the profits of such benefice untd 
 such payment shall be made. And if the principal or in- 
 terest, or any part thereof, shall be in arrear for forty days 
 next after the yearly day of payment whereon the same 
 shall have become due, the mortgagee or mortgagees, or 
 the executors, administrators, or assigns, may recover the 
 whole or any part thereof that may be unpaid, and the 
 costs incurred in such recovery, by distress and sale, in 
 such manner as landlords are empowered by law to recover 
 rents in arrear. 
 
 In order that the payment of such principal and interest Payment by 
 
 successor. 
 
 a Sect. 7. ^ Ibid. 
 
 <^ Such provisions appear scarcely necessary since the recent act for enforcing 
 residence.
 
 254 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Governors of 
 Queen Anne's 
 Bounty may 
 lend. 
 
 So with col- 
 leges, &c. 
 
 Consent neces- 
 sary to exchange 
 purchases, kc. 
 
 In case of pecu- 
 liars. 
 
 Power to al I 
 
 may, in case of an avoidance by death or otherwise, be 
 equitably adjusted between the incumbent avoiding such 
 benefice or liis representatives and his successor, such pay- 
 ment shall (in case any difterence shall arise in settling the 
 proportions thereof) be ascertained by two indifferent per- 
 sons, one to be named by each party ; and in case such 
 nominees shall not be appointed within two calendar 
 months next after such avoidance, or in case they shall not 
 agree within one month after they have been appointed, 
 the same shall be determined by some neighbouring cler- 
 gyman to be appointed by the bishop, whose determination 
 shall be final and conclusive between the parties.'^ 
 
 The governors of Queen Anne's Bounty are authorised 
 to lend money for the above purposes, in the same way and 
 under the same provisions as private persons, except that 
 the interest they are to receive for the money lent is not 
 to exceed 4/. per cent ; and where the clear annual value 
 of a benefice does not exceed 50/., they are authorised to 
 lend any sum not exceeding 100/. without interest, the 
 principal only being to be repaid in the manner aforesaid.^ 
 
 Colleges or halls in the Universities of Oxford or Cam- 
 bridge, or any other corporate bodies, being owners of the 
 patronage of benefices, may advance any sums of money 
 of which they have the power to dispose, to the incumbent 
 of any such benefice, secured in such manner as before 
 directed, either with or without interest.' 
 
 In any exchange,'^ purchase, annexation by gift or mort- 
 gage under the provisions of this act, the consent of the 
 patron and the bishop to every deed of exchange, convey- 
 ance or mortgage, shall, before the same shall be signed 
 and sealed by the incumbent, be signified by the said 
 bishop and patron respectively being made parties to and 
 signing and sealing the said deed, in the presence of two 
 or more credible persons, who by indorsement thereon shall 
 attest the same, and in which attestation it shall be ex- 
 pressed that the same deed was so signed and sealed before 
 the execution thereof by such parson or other incumbent ; 
 but in the case of peculiars, the authority given by the act 
 fo the bishop of the diocese is to be exercised by the arch- 
 bishop or bisho|) to whom such peculiars belong : with 
 respect to j)cculiars belonging to other persons or corpora- 
 tions than archbishops or bishops, the authority is to be 
 exercised by the bishop of flic diocese within which the 
 pecidiar is locally situated.'' 
 
 All owners of lands, whether under any legal disability 
 
 «« Sect. 7. 
 ' Sect. 9. 
 
 « Sect. 8 ; and Bce post, First Fruits and Tenths. 
 K See the last section. >> Sects. 10, 11.
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 255 
 
 or not, are empowered to exchange, grant or convey their owners to sell 
 Kinds for the purposes before mentioned, provided all the or convey, 
 directions of the act in that respect are properly observed. 
 In the case of an exchange, old glebe lands or the parson- 
 age-house so taken by them are to be settled to the same 
 uses as the lands given in exchange were previous to the 
 exchange being made, and all purchase-money received on 
 account of such lands belonging to any corporation, infant, 
 feme covert, lunatic, or person under any legal disal^ility, 
 is to be ])aid into the bank in the name of the accountant- 
 general of the Court of Chancery, to be invested in the 
 funds in his name, and the dividends to be paid to the 
 persons who would have been entitled to the rents of the 
 lands sold, if the same had not been sold, until the same 
 is laid out in the redemption of the land-tax, or in paying 
 oft' incumbrances, or in the purchase of other lands to be 
 settled to the same uses.' But none of such incapacitated Incapacitated 
 persons are by the act empowered to convey (except by person may only 
 way of exchange) more than five acres.*" acreT^ ^""^ 
 
 Wherever any exchange or purchase is about to be Notice requisite, 
 made under the authority of the act, three calendar months' 
 l)revious notice, describing the particulars, extent and situ- 
 ation of the premises respectively to be given or taken in 
 exchange or purchased, is to be given of the intention to 
 make such exchange or purchase, by the insertion thereof, 
 for three successive weeks, in some one and the same 
 county newspaper ; and also by fixing it on the door of the 
 church shortly before the commencement of the service on 
 three Sundays successively.' 
 
 Also, whenever any exchange or purchase is about to be Details to be 
 made under the authority of the act, a map or maps are observed prior 
 in cases of exchange to be made of so much of the glebe pVrchas'et&cf ' 
 lands as will enable the bishop to judge of the expediency 
 of the proposed exchange, &:c., and also of the parsonage- 
 house, buildings, or glebe, any part of which it is proposed 
 to exchange, as well as of the other lands, houses, and 
 buildings proposed to be taken in exchange ; and in the 
 case of purchase, the same shall be made of the whole of 
 the lands intended to be purchased. And in the case of 
 exchange a valuation shall be made both of the lands to 
 be given and of those to be taken in exchange ; and in the 
 case of purchase, a valuation is to be made of the lands 
 intended to be purchased, and such valuation shall include 
 and distinctly specify the value of timber and other trees 
 growing thereon, of rights of common, mines, minerals, <fec. 
 and of all other rights and profits belonging to the same.'" 
 * Sect. 12, k Sect. 13. ' Sect. 14. '" Sect. 15.
 
 256 ' LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 The map and the vakration is to be made by the same 
 surveyor, and in eitlier case is to be so made by him on 
 oath, which any justice of the peace is empowered to ad- 
 minister for that purpose. 
 Commission In all sucli cascs of exchange and purchase, the bishop, 
 
 bisho'^ ^^ ^'^^ ^^^^^' ^^® ^^^^ received such map or maps and valuation, 
 and if he so far approves of such exchange or purchase, 
 shall issue a commission of inquiry under his hand and 
 seal, directed to such persons as he shall think proper, not 
 being less than six in number, three of whom are to be 
 beneficed clergymen residing in the neighbourhood of the 
 benefice to which the proposed annexation is to be made, 
 and one of whom is to be a barrister of three years' stand- 
 ing at the least, to be named by the senior judge of the 
 last nisi prius commission for the county in which the 
 benefice is situated, or if in Middlesex, to be named by the 
 cliief justice of the King's Bench or of the Common Pleas 
 for the time being; or if in Lancaster or Durham, by the 
 chief justice or senior judge of the Common Pleas for 
 those counties palatine respectively. And the return to 
 which commission shall be signed by a majority of the 
 persons named in it, after an actual inspection of the pre- 
 mises, with the map and valuation before them, in which 
 majority it is essential that the three beneficed clergymen, 
 or two of the three beneficed clergymen and the barrister, 
 should be included ; and in no case shall any such exchange 
 or purchase be cfibcted until such conmiission shall have 
 been first issued and returned, and unless the return, made 
 in such manner as directed, shall certify that the exchange 
 or purchase is proper to be made, and will promote the 
 permanent advantage of the benefice.'" 
 Patron uniler ^u casc the patron of the benefice be an infant, lunatic, 
 
 disability. idiot, or feme covert, the guardian, committee, or hus])and 
 
 of every such patron, may execute the necessary deeds lor 
 them, by which execution they sliall l)e bound. 
 Patronage in la cascs where the patronage of any such livings is in 
 
 the crown. ^\^^ crown, if abovc the yearly value of 20/. in the king's 
 
 l)ooks, the consent of the crown as patron to any proceed- 
 ings under tl)e act is t(i be signified l)y the execution of 
 llu! deeds by the first lord of the treasury; if uiuler 20/. 
 then by the execution of the deeds by the lord chanceHor; 
 if in right of the Duchy of Lancaster, then by such exe- 
 cution by th(! chancellor of the duchy." 
 Dcc.ls, i'vr. to One i)art of all deeds and instruments made, and exe- 
 
 beilf:i.o.,ii(a (;nted in inusuance of this act with the maps and valit- 
 
 willi llio rt'ijis- ' 
 
 tr.ii. '<< Sect. l(j ; and sec also .'iG Geo. 3, c.2, s. 2, and G Geo. 4, c. H, s. 2. 
 
 " 55 Geo. 3, s. 117, s. 18.
 
 EXCEPTIONS FROM THE STATUTES OP MORTMAIN. 257 
 
 ations, coramissions of inquiry, and return thereto, sliall 
 within twelve months after date be entered in the office of 
 the registrar of the diocese wherein the benefice is locally 
 situate ; if within a pecidiar, then with the registrar thereof 
 for preservation therein, and such registrar shall sign a 
 certificate of deposit either on the same or a separate 
 parchment, which deeds shall be open to inspection at 
 proper hours, and an office copy certified by the registrar 
 shall be evidence thereof in all courts, which he shall 
 grant on request, and \0s. shall be paid by him besides 
 any stamp duty for the commission and previous requisites ; 
 5s. for depositing the same, and certifying the deposit ; 
 \s. for such search, and 6d. besides stamp duty for every 
 folio of seventy-two words of such office copy so certi- 
 fied." 
 
 The next set of provisions for the grant of lands as 
 glebe are contained in some of what are usually called the 
 Church Building Acts. 
 
 The commissioners appointed for carrying into execution Grants to the 
 the act passed in the fifty-eighth year of George III. for church building 
 
 .1 ^, , ., ,. ,•/ ,9.,. -^11 1 . '=' 1 commibSioners 
 
 promotnig the buikhng or additional churches m populous fo,- house of 
 parishes, and which commissioners have been by various residence, 58 
 acts of parliament continued up to the present time, were ^'^"- ^^*- ^' °' 
 empowered to accept and take from any person willing to 
 give the same any house, garden and appurtenances, not 
 exceeding ten acres in the whole, for the residence of the 
 spiritual person serving churches or chapels built under 
 the provisions of the Church Building Acts ; or any lands 
 not exceeding the said ten acres in quantity, for erecting 
 such buildings and appurtenances, and making such gar- 
 den ; and immediately upon the consecration of such 
 church or chapel, the same to become and be the house 
 and glebe belonging to such church or chapel, and to vest 
 in the incumbent for the time being as such.'' 
 
 The commissioners of woods and forests, with the con- 
 sent of the first lord of the treasury and the other lords, or 
 any three of them, in writing, or his majesty, by any grant 
 signed by the chancellor of the Duchy of Lancaster, or the 
 Duke of Cornwall, by any grant signed by the chancellor 
 of the Duchy of Cornwall,'' or any body politic, corporate 
 or collegiate, or corporation aggregate or sole, may grant 
 any such house or appurtenances and garden, for the resi- 
 
 " Sect. 19. t' 58 Geo. 3, c. 45, s. 33. 
 
 '1 Some doubt was expressed as to the power given in tlie case of lands of 
 the Duchy of Cornwall, which was conseejuently removed by 1 & 2 \'ict. 
 c. 107, s. 8. 
 
 S
 
 258 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 dence of the spiritual person who may serve the church or 
 chapel.'" 
 
 Although persons under any legal disability were ena- 
 bled by this statute to convey lands for the site of churches 
 or chapels, they were not enabled to convey any house for 
 residence of the incumbent on any lands for glebe, but 
 such power was limited to any person willing to give the 
 same and to his majesty, in such right as before men- 
 tioned. But now this has been altered by an act passed 
 in the present reign ; and all such bodies politic and per- 
 sons under disabihty as were by the former act empowered 
 to convey lands for the site of a church or chapel, are now 
 empowered to convey lands by sale and exchange only, 
 and only to the extent of five acres, for the site of a house 
 of residence for any incumbent ;^ persons not under any 
 such disabihty being still authorised to give and the com- 
 missioners to receive ten acres.* 
 
 The next provision relates to the purchase of lands hy 
 or under the direction of the bishop for benefices above 
 a certain value, and is to the following eftbct : 
 Purchase of Where new buildings are necessary to be provided for 
 
 g'^''^ 'j'y '^'' the residence of the incumbent of any benefice exceeding 
 Vict.' A. D. 1838. ^n value 100/. a year, and avoided after August 14, 1838, 
 and where such new buildings cannot be conveniently 
 erected on the glebe of such benefice, it shall be lawful for 
 the bishop to contract, or to authorise the person nomi- 
 nated by him" to contract, for the absolute purchase of 
 any house in a situation convenient for the residence of the 
 incumbent of such benefice; and also to contract for any 
 land adjoining to such house, or to contract for any land 
 upon which a fit house of residence can be conveniently 
 built; and to raise the purcliasc-money for such liouse or 
 land by mortgage of the glebe, tithes, rents, and other 
 profits and emoluments arising fi'om such benefice, in the 
 same manner as will be found mentioned in our next 
 chapter with respect to mortgages of benefices under the 
 same act. But no greater sum than four years' net income 
 of the benefice shall be charged upon it by such mort- 
 gage." 
 To be conveyed The buildings and lands thus purchased are to be con- 
 to pntron of ilic yevcd to tlu! patron of the benefice for the sole use and 
 bunefice. '' ' 
 
 >• Sect. 34. • 1 &2 Vict. c. in7.s. !). 
 
 ' Sucti at least appears to l)c; tlic propcn intprpntation of tlic clause, for in any 
 oilier point of view ii would be li liiiiilation ratiicr than extension of llie power, 
 whereas the spirit of the whole act aims at an extension. 
 
 " See post, foi this nomination. " 1 & 2 Viet. c. lOG, s. 70.
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 259 
 
 benefit of the incumbent for the time being, and shall be 
 annexed to such benefice, and go with the same in succes- 
 sion. The purchase-deeds are to be in a joarticular form 
 specified by the act, confirmed in writing by the bishop, 
 and registered as directed with respect to the other mort- 
 gage deeds under the same act.^ 
 
 The effect of this last provision is very important. The Effect of this 
 bishop is the party who is empowered to do, after the ^^^ P"""^'^'*^"' 
 future avoidance of benefices, all that which the incumbent 
 was empowered to do under those provisions of the 55th 
 Geo. III., Avhich in the present chapter have been already 
 fully explained. And since this is the case, it would seem 
 that it would have been far better, and would have ob- 
 viated some confusion, if all those former provisions (so 
 far as relates to any benefice in future vacant) had been 
 repealed. It appears quite unnecessary that such a power 
 should exist both in the bishop and the incumbent, espe- 
 cially as the incumbent in any case can only act with the 
 bishop's consent ; and according to the spirit of recent 
 legislation on these matters, it seems best that such pro- 
 ceedings should originate with and be conducted under the 
 direct authority of the bishop. 
 
 Where new churches are built under the statute 1 & 2 Endowment by 
 
 Will. IV. c. 38, or under 1 & 2 Vict. c. 107, (which are the ^^^, ^"^"^^ „,„ 
 ..'p.. 1-1P patron ot new 
 
 statutes providmg for givmg the riglit of patronage to such churches. 
 
 persons as shall endow a new church with a sum of lOOOZ.) 
 
 it is made lawful for such persons to make the endowment 
 
 by giving 40Z. per annum arising out of lands, &c. instead 
 
 of the gift of 1000/. And the trustees of such persons or 
 
 church building commissioners are empowered to take 
 
 and hold such annual sum so secured on lands, kc."" And 
 
 such trustees are further empowered to assign and transfer 
 
 any such endowments to the governors of Queen Anne's 
 
 Bounty, to be held by them on the same trusts, which 
 
 endowments such governors are empowered, if they agree 
 
 so to do, to accept.^ 
 
 The provisions of the older Church Building Acts, which Endowments in 
 
 allow endowments to be made in lands, have here been '^"'^ '° "^"^ 
 
 very slightly mentioned, as such endowments are per- ^^Wy^ 3 ^4 
 
 mitted with much less restriction by the provisions of Vict. a. d. 1840. 
 
 the last statute passed for the purpose of amending all the 
 
 former acts upon this subject; for now in any case where 
 
 by virtue of any of those acts an endowment, grant or 
 
 conveyance, consisting of or arising out of lands, &c., or 
 
 consisting of money to be laid out in lands or other here- 
 
 y Sect. 7 1 ; and see the next Chapter. 
 
 * 1 & 2 Will. 4, c. 37, s. 2. =» 2 & 3 Vict. c. 49, s. 12. 
 
 S2
 
 260 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Not exceeding 
 ;500/. per 
 annum. 
 
 How value to 
 be ascertained. 
 
 riiiufli Kndovv- 
 menl Act, 6 & 7 
 Vict. A. D. 1843. 
 
 Ilcclcsiastical 
 commissioners 
 tii:iy liolii hinds 
 (or rcrkiin pur- 
 poses. 
 
 ditanients, is authorised to be made for the purpose of a 
 site for any chvirch or chapel, or churchyard, or parsonage 
 house, or glebe, or for the use or benefit of any church or 
 chapel, or of the incumbent or minister thereof, or for the 
 repairs thereof, such endowment, grant or conveyance, 
 whether made before or after the passing of the amending 
 act, shall be good and valid, without any license or writ of 
 ad quod damnum, the statutes of mortmain, or any other 
 statute or law to the contrary notwithstanding.'' But this 
 does not authorise an endowment of more than the clear 
 annual value of 300/. ; and if any endowment is made to 
 exceed that value, the mortmain acts are at once to apply.*^ 
 
 It became necessary therefore to make some provision 
 for ascertaining such clear annual value, for which purpose 
 it is enacted that the church building commissioners, or the 
 bishop of the diocese, may cause such clear annual value 
 to be determined and ascertained by any two persons 
 whom they or he shall appoint for that purpose, by writing 
 under the common seal of the commissioners, or by writing 
 under the hand of the bishop, which writing is directed to 
 be afterwards annexed to the instrument by which such 
 endowment shall be cll'ected ; and a certificate of such 
 clear annual value, written and indorsed on the instru- 
 ment by which such endowment shall be oflected, and 
 signed by such persons as aforesaid, shall, for the ])urposes 
 of the act, be conclusive evidence of such clear annual 
 value.'' 
 
 Additional endowments to these churches or their mi- 
 nisters may at any time be made, so long as the total clear 
 annual value is not thereby increased to above 300/. 
 
 Finally, by the recent act, commonly called the Church 
 Endowment Act, which provides for the creation of new 
 ])arishes for ecclesiastical purposes, ])owers similar to those 
 cunferrcd upon the governors of Queen Anne's Bomity, 
 enablinii' them to hold lands in trust for the benefices 
 augmented by them, are conferred \\\)o\\ the ecclesiastical 
 commissioners for holding lands in trust for the incumbent 
 of the new )>arishcs created by that act : for every person 
 or body coiporate, having in his or their own right any 
 (estate or interest in possession, reversion or contingency, 
 ill :my lands, tithes, tenements or other hereditaments, 
 shall liav(! (nil |)ower, license and authority, by deed en- 
 I'olled in such maniKM- and within such time as is directed 
 by the statute 27th lien. \'lll. e. 16, in the case of any 
 lands, tithes, liiiemciiis m- otlu r iicicditamcnts, or without 
 deed in the case of goods or chattels, or by his or their 
 •' 3 .Sc 4 Vici.c. fiO, s. 2. ' ll.i<!. s. 3. •' Seet. 4.
 
 EXCEPTIONS FROai THE STATUTES OF MORTMAIN. 261 
 
 testament in writing, duly executed according to law, to 
 give and grant to and vest in the ecclesiastical connnis- 
 sioners all such their estate, interest or property in such 
 lands, &c., or any part or parts thereof", for and towards 
 the endowment or auomentation of the income of such 
 ministers, or for or towards providing any church or chapel 
 for the purposes and subject to the provisions of the act, 
 and to be for such purposes respectively applied, according 
 to the will or deed of such benefactors respectively, as by 
 such deed, &c. may be expressed ; or in the case of no 
 deed or instrument, as may in some other manner be di- 
 rected, and in default of such expression or direction, then 
 in such manner as shall be directed by the commissioners ; 
 and such commissioners shall have full capacity and abihty 
 to purchase, receive, take, hold and enjoy, for the purposes 
 aforesaid, as well from such persons as shall be so chari- 
 tably disposed to give the same, as from all other persons 
 who shall be willing to sell or alien any lands, tithes, tene- 
 ments or other hereditaments, goods or chattels, without 
 any license or writ of ad quod dammim, the statute of mort- 
 main, or any other statute or law to the contrary notwith- 
 standing.'' 
 
 In the preceding sketch of the statutes, which make General mics 
 exceptions from the general eflect of the mortmain acts in f'°[" '''° 1^'*^' 
 favour of persons ecclesiastical, we have omitted the se- ^^ '"^ ^ * " 
 veral permissions given for granting land for sites of 
 churches and churchyards, which do not appear to belong- 
 to this place. The multiplication of statutes, providing 
 in different manners for purposes not very essentially dif- 
 ferent, has caused many complaints to be made of their 
 obscurity. The result, however, of the preceding statutes, 
 so far as our present purpose is concerned, appears suffi- 
 ciently simple and intelligible. The following rules may 
 be deduced from them. 
 
 1. No person is by these acts empowered to make any 
 indiscriminate grant of lands in favour of any incumbent 
 or of any benefice he may select. The mortmain acts 
 would prevent him in all such cases generally. 
 
 2. But if any person is disposed to make such general 
 grant, there are two corporations, namely, " The Governors 
 of Queen's Anne's Bounty," and " The Ecclesiastical Com- 
 missioners," to whom they may make the grant, either 
 specifying particular purposes or not, who are empowered 
 to accept the benefaction, and by whom it will be rightly 
 applied. 
 
 3. In the case of old parishes, and whether there exists 
 
 d 6 &; 7 Vict. c. 37, s. 22.
 
 262 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 glebe land and a good house of residence or not, impro- 
 priators of tithes may reannex the same to the benefice, so 
 long as the annual value is not made to exceed 300Z. 
 
 4. In the same cases as in the last rule incumbents, to 
 whom in right of their benefice manorial lands belong, 
 may annex them, or any part of them, to the benefice as 
 glebe. 
 
 5. In the case of old parishes, where there is insufliicient 
 house of residence, and less than fifty acres of glebe lands, 
 persons are empowered to grant not exceeding five acres 
 for olebe : but the o-lebe must not be so made to exceed 
 fifty-one acres altogether. 
 
 6. In tlie same cases as in last rule lords of manors may 
 grant not exceeding five acres of the waste. 
 
 7. Where there is no house of residence, or an incon- 
 venient one, any person, not under legal disability, may 
 give one to the benefice, with gardens, appurtenances, &c. 
 
 8. Where the existing glebe does not exceed five acres, 
 the incumbent may purchase for glebe not exceeding 
 twenty acres, money for which purchase may be raised on 
 mortoaoe of the benefice, certain conditions and restric- 
 tions being observed. 
 
 9. Where a benefice exceeds \00l. per annum, and be- 
 comes void after 1838, and new buildings are necessary 
 for residence, the bishop may purchase for the benefice a 
 house or land for building ; money for which may be raised 
 as in rule 8. 
 
 10. In the case of new churches built under the church 
 building acts, persons not under legal disability may give 
 any lands, &c. as endowment in such manner as they think 
 fit, so long as the whole amount of the endowment does 
 not exceed in value 300Z. per annum. 
 
 11. In the same case as in last rule, persons may give 
 endowment in or out of lands, vesting the same in private 
 trustees, in the governors of Queen Anne's Bounty, or in 
 the ecclesiastical commissioners as their trustees ; and 
 private trustees may transfer such trust to the governors 
 of (^ueen Anne's Bounty. 
 
 Encroachments There is one other case in which it is possible that lands 
 on the waste, may be acquired as glebe, notwithstanding the statutes of 
 mf)rtniain, a case more frequent now than may be com- 
 monly supposed ; for it may very frequently have hap- 
 pened, especially since the building of parsonage houses 
 has become much more common than heretofore, that waste 
 lands or common or old roads may have been inclosed, or 
 ])onds filled up by the incundjcnt, conv<;ited into yard or 
 garden, and occupied as such with the parsonage house ;
 
 EXCEPTIONS FROM THE STATUTES OF MORTMAIN. 263 
 
 and in some counties, where waste lands in the villages is 
 very frequent, such conversion may have been of consider- 
 able extent. In cases where the incumbent enclosing such 
 lands has acquired a title to them by lapse of time, it may 
 be doubtful whether they would devolve upon his heir, or 
 would pass to his successors, as having been considered 
 part and parcel of and appurtenant to the parsonage. 
 But as the statutes of mortmain would operate to prevent 
 lands from becoming the property of an ecclesiastical cor- 
 poration, without some special enactment, it is presumed 
 that lands so acquired would pass to the heir of the in- 
 cumbent, to the great inconvenience of his successor. 
 
 Section 6. 
 
 Houses of Residence ujjon Glebe Lands, and building new 
 Houses under the Gilbert Act, and other Acts. 
 
 Having in the last section seen in Avhat manner and Origin of par- 
 under what restrictions lands may be acquired to the use nonage kouses. 
 of an incumbent, and become glebe, we come now to speak 
 more particularly of the houses erected upon such lands 
 for the residence of the incumbent therein.'' At the original 
 endowment of churches, it is probable that in many cases 
 some house of residence was given with the glebe land 
 for the accommodation of a residing minister, but that this 
 was by no means universal. 
 
 In the case of those benefices which lay contiguous to 
 some abbey or monastery, and where the monks, appro- 
 priating the revenues, provided for the performance of the 
 ecclesiastical duties by some member of their own bodies, 
 the houses of residence would of course soon become dila- 
 pidated, and in many cases be removed. In many other 
 cases, also, the incumbent, having but a life estate, would 
 only take care that the house was kept in such repair as 
 by the law of dilapidations he was compelled to leave it in 
 at his decease, while the change of times, and of the habits 
 of living, required a home larger and of a different descrip- 
 tion for the proper accommodation of the incumbent. 
 
 Consequently, until a very recent period, the houses for Recent altera- 
 the residence of ministers throughout the country were tions in style of 
 mean, inconvenient and ill-adapted for their purpose, when '°"^^'*' 
 the subject engaged the attention of the legislature; and 
 
 •^ The present section relates to houses built upon lands which are already 
 glebe, a subject, therefore, quite distinct from the preceding.
 
 264 LANDS OF ECCLESIASTICAL CORPOUATJON?. 
 
 the present law on this subject is ahnost entirely reguluted 
 by statute. 
 
 In speaking of the mode in which new glebe lands 
 may be accpiiied, we have ah'eady mentioned some of the 
 methods in which houses of residence may be provided ; 
 as where persons who are willing to give and grant houses 
 with the land are enabled under certain limitations or re- 
 strictions so to do; or where the incumbent is enabled, 
 with the consent of the patron and ordinary, to sell or 
 exchange the glebe or house of residence for the purpose 
 of obtaining some more convenient house ; or where he is 
 empowered to purchase land for the purpose of building 
 on it.* 
 New houses We now come to the methods by which an incumbent 
 
 built on liie old jg enabled to erect a suitable house upon glebe already 
 ^ ^^'^' belonging to the benefice, without personally incurring 
 
 more than a just proportion of the cost. 
 Tlie Gilbert The first act for this purpose, commonly called " The 
 
 ''^<^'- Gilbert Act," was passed in 1776,"^ but some of its pro- 
 
 visions have subsequently been extended and altered by 
 acts passed in the present reign; as there are still, how- 
 ever, some cases which may be entirely regulated by the 
 first act, and every case is in a great measure dependent 
 upon the ])rovisions contained in it, it will be best to state 
 the substance of it. 
 I'rocecdings Whenever the j)arson, vicar or other incumbent of any 
 
 ""^'<='"- benefice, being under the jurisdiction of the bishop or other 
 
 ecclesiastical ordinary, whereon there is no house, or one 
 so mean or ruinous that one year's net income and j)roduce 
 of such living would be insufficient to put it in repair, shall 
 think fit to api)ly for the assistance of that act, he must 
 first piocure from some skilful workman or surveyor a 
 certificate containing a statement of the condition of the 
 building on his glebe, and of the value of the timber and 
 other materials thereon lit to b(^ I'uiployed in such building 
 or repairs or to be sold, and also a ]ilan and estimate of 
 the work ])roposed to be done ; which statenumt and esti- 
 nuite nnist be verified ujjon oath before some magistrate, 
 or ordinary or extraordinary master in chancery; and he 
 nuist lay tlu; same, together with a parlicnlar account in 
 writiug, signcid by him and verified upon oatii taken in the 
 same nianiKM', of ihe animal profits of the living, before the 
 ordinary and pillions of (he living, and i>l)lain their con- 
 sent to such proposed lU'w l)uil(lings or repairs in writing, 
 Money ma) be in the jKiificular form prescribed by the act; and having 
 borrowtd for complied with tlicse reciuisitions he may borrow and take 
 ' See ante, preceding scclion. t' 17 Geo. 3, c. [>'<i, 
 
 buikliiij,'.
 
 HOUSES OF RESIDENCE. 265 
 
 iij) at interest siicli sum of" money us the said estimate 
 shall amount to, after deducting- the vahie of timber and 
 other materials which may be thought proper to be soUl ; 
 sucli sum not to exceed two years net income of sucli 
 hving, after deducting all rents, stipends, taxes and other 
 outgoings, except only the salary to the assistant curate, 
 where such curate is necessary. 
 
 As a security for the money so to be borrowed, he is 
 empowered to mortgage all the emoluments of the living 
 to the persons who advance the same, by one or more 
 deed or deeds, for the term of twenty-five years, until such 
 money, with interest for the same, and the costs attending 
 the recovery thereof, shall be paid. 
 
 The mortgage deeds are to be in the particular form 
 prescribed by the act, and will bind every succeeding in- 
 cumbent of the living, until the principal and interest arc 
 ])aid, as comjjletely as if he had himself executed them. 
 
 Every mortgagee is to execute a counterpart of every Mortgages to 
 such mortgage, to be kept by the incumbent for the time ^^ registered, 
 being, and a copy of every such deed is to be registered 
 in the office of the registrar of the bishop of the diocese 
 where the parish lies, or other ordinary having episcopal 
 jurisdiction therein, after having first been examined by 
 him with the original ; the fee for registering which is not 
 to exceed five shillings. Such deed is to be referred to 
 upon all necessary occasions; and the same, or a copy of 
 it, certified under the hand of the registrar, to be allowed 
 as legal evidence in case the mortgage deed should be 
 lost or destroyed ; the fee for inspecting the same at any 
 time to be one shilling. 
 
 On failure of payment of principal and interest, accord- 
 ing to the directions of the act, for forty days after the 
 same become due, the mortgagee may recover the same, 
 together with costs and expenses, by distraining in the 
 usual manner. 
 
 The money borrowed under these provisions is to be To be paid to 
 paid to a j)erson appointed to receive and apply the same ^" appointee. 
 by the ordinary, patron and incumbent. Such appoint- 
 ment to be by writing, and in a })articular form directed 
 by the act ; and the appointee to give a bond to the ordi- 
 nary, conditioned for the duly apj)lying the same according 
 to the act. His receipt to be a suflicient discharge to the 
 persons advancing the money ; and he is the proper party 
 to enter into contracts for such buildings or repairs as are 
 approved of by the patron, ordinary and incumbent, and 
 specified in writing on parchment, to be signed by them 
 according to a particular form pr(?scribcd by the act,
 
 266 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Duties, &c. of Such appointee is further to have the care of the execu- 
 the appointee, tioii of such contracts, and of the payment of the money, 
 and is to take the proper receipts ; and when the buildings 
 are completed and the money paid, he is to pass his ac- 
 counts before the ordinary, patron and incumbent; and 
 when these have been allowed by them in writing accord- 
 ing to a form prescribed by the act, such allowance is a 
 full discharge to the appointee in respect of them. 
 
 If any balance remain in the hands of the appointee it 
 may be laid out in any lasting improvement in building on 
 the glebe, or in the discharge of so much of the debt. This 
 is to be at the discretion of the ordinary, patron and incum- 
 bent, or of the ordinary and either one of the others, by 
 order signed by them in the form prescribed by the act. Of 
 all which further disbursements an account is to be kept 
 in the same manner as before ; and which accounts, when 
 made out and allowed, are to be deposited, together with 
 the vouchers, with the registrar ; and incumbents for the 
 time being shall have a right to inspect the same on paying 
 a fee of one shilhng for every such inspection. 
 
 The patron, ordinary and incumbent, or the ordinary 
 with either of the others, may make such allowance to 
 their appointee as they may think fit, not exceeding 51. 
 per cent. 
 Repayment of The incumbent for the time being of any living thus 
 principal. mortgaged is to pay yearly, as the same becomes due, or 
 
 within one month after, over and besides the interest of 
 the principal money, or of so much thereof as then re- 
 mains due, 5/. per cent, of the principal money originally 
 advanced upon such mortgage, until the whole of such 
 princij)al money be discharged. 
 
 And a provision was also made by this section for the 
 payment of 10/. per cent, of the principal money by non- 
 resident incumbents; but this provision has been altogether 
 repealed, and the cases to which it might be applicable 
 must now be so very rare, and must so soon cease alto- 
 gether, that it will bo unnecessary to mention it further. 
 Buildings lobe As soou as the buildings are completed, the incumbent 
 insured against j^^ ^.^ insurc them against fire in one of the public offices 
 in London or Westminster, at such sum as agreed on by 
 the jKitroM, ordinary and incumbent; and should such in- 
 surance not l)c pro[)erly kept uj), the ordinary is empoweied 
 to secpicster the profits of the living until the ju-o})er pay- 
 ment is made. 
 Tn some cases If the inciiinbcnt of any living worth more than 100/. 
 
 tliu ordinary p,.,. m,,,,,,,,^ uhcn; (here is iio house of residence, or one 
 ["focggdinds?"^ unfit for the purpose, should neglect to avail himself of
 
 HOUSES OF RESIDENCE. 267 
 
 the provisions of the act, and is non-resident in the parish 
 for twenty weeks in any year, and does not think fit to lay 
 out one year's income of the living where the same would 
 be sufficient to put the premises in repair, the ordinary is 
 empowered, with consent of the j^atron, to ]irocure such 
 plan, estimate and certificate ; and in the course of the 
 next year to proceed in such execution of the purposes of 
 the act as directed in the first section, which shall in all 
 respects be binding on the incumbent and his successors, 
 in the same way as if done with consent of the incumbent.'' 
 
 In all cases the ordinary, before signifying his consent Duties of ihe 
 to the morto;ao:e, shall cause inquiry to be made and cer- o'''^'"3''y •" ^'^ 
 
 • ^oo-' I */ C&S6S 
 
 tified to him by the archdeacon, chancellor of the diocese, 
 or other proper person living in or near the benefice, 
 according to a form prescribed by the act, of the state of 
 the buildings at the time the incumbent entered upon the 
 benefice, how long he has lived there, what money he has 
 received or is to receive for dilapidations, and how it has 
 been laid out. 
 
 And if it appear that the incumbent has wilfully suffered In certain cases 
 such buildino;s to cet out of repair, the same is to be cer- f^^^ ^° be paid 
 
 • ^ . ^ ^ * bv lucuinbcnta 
 
 tified to the ordinary, together with the amount of damage 
 
 thereby sustained; and such incumbent, if required by the 
 ordinary, shall pay the same to the appointee, under the 
 fourth section of the act, towards defraying the expenses 
 of building or repairs, before the ordinary gives his con- 
 sent. And all sums received for dilapidations from the 
 representatives of any former incumbent, and not already 
 expended in repairs, as well as any sums to be received, 
 as soon as received, shall be applied in part payment under 
 the estimate made according to section 1 ; or if mortgage 
 money has been paid off, then to be expended in some 
 additional improvement on the glebe, to be approved by 
 ordinary, patron and incumbent; and in the meantime, or 
 if no such improvements are required, the interest to be 
 paid to the incumbent for the time being. It does not, 
 however, appear likely that the latter part of this section 
 would ever be practically useful. 
 
 The tenth section of this act provided for the purchase 
 of a new house, more conveniently situate upon land not 
 being already glebe, and the eleventh section for the sale 
 of lands already glebe, to ])ay for new lands ; but as we 
 have already seen, such a transaction is now provided for 
 in a more general manner by recent statutes, according to 
 the provisions of which all such exchanges would now be 
 
 '' See post, the entire alleratiou ia these matters by 1 £c 2 Vict. c. 106. 
 ss. 62, 63.
 
 268 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 made, it would therefore be useless to explain any further 
 
 the provisions of these two sections.' 
 Rlouey may be The twelfth section of this act is very important, and 
 Dorrowcu iiom ^j^^ source therein pointed out from which the money may 
 Queen Anne s i r i /> i ^ • . 
 
 liounty. he borrowed tor the purj)oses ot the act has ni a great 
 
 measure superseded every other. By this section the 
 governors of Queen Anne's Bounty, a full account of 
 which fund will be found in another chapter,'' are autho- 
 rised to advance and lend any sum not exceeding 100/. for 
 promoting the several purposes of the act with respect to 
 any livings which do not exceed the clear annual value of 
 50/. ; and such mortgage as before directed is to be made 
 for securing repayment of the principal, but no interest is 
 to be paid in such case. In cases where the annual value 
 of a living exceeds 50/. the governors are empowered to 
 advance for the purposes of the act any sum not exceeding- 
 two years' income of such living, upon such mortgage and 
 security as before mentioned, and subject to the several 
 regulations of the act ; and the interest to be received in 
 such cases is not to exceed 4/. per annum. 
 Colleges, &c. Colleges in Oxford and Cambridge, and other corporate 
 
 beinj,r patrons, jjodics bein"- patrons of any such benefice, are authorised 
 
 may leiut. i i p i o ^ -i ^ 
 
 to lend lor the purposes ot the act, and upon the security 
 mentioned, any sums of money which they may have the 
 j)ower of disposing of, without taking any interest, but in 
 the same manner as may be done by the governors of 
 Queen Anne's Bounty in the case of livings under 50/. 
 per annum. 
 
 No deed or other writing under the authority of this act 
 is charged with any stamp duty or fee of office, except as 
 is mentioned in the act. 
 I'lovisions for The remaining sections of this act apply to particular 
 
 pariicular cases. ^^^<^(^^ only. In case of a patron under any disability, the 
 guardian, connnittee, or husband, as the case may be, is 
 empowered to act for them. 
 
 If the ordinary should be a body corporate aggregate, 
 (!V('rv act lecpiired to \n\ done by the ordinary shall be 
 done unchn- tlu; seal of such body. 
 
 If the incumbent of any chaj)clry or perpetual curacy 
 shall be nominated by the rector or vicar of the parish 
 whei-ein the sanu! is situiitftd, the consent of such rector or 
 vicar, in addition to that of the patron of sucii rectory, is 
 made necessary, 
 rairotiagc in Where the ])atronage of any such benefice is in the 
 
 ilie crown. crowu, if the iinnii;d vidiic exceeds 20/. in lh(3 king's books, 
 
 ' Sec inilc, llic two pic( eiliiig sections. 
 
 ^ See post, ciiapier on riist-fiuits and Tenths,
 
 HOUSES or residence. 2G9 
 
 the required consent is to be given by the first lord of the 
 treasury ; if under 20/., by the lord chancellor ; if in the 
 patronage of the crown in right of the Duchy of Lan- 
 caster, then by the chancellor of the duchy, according to 
 the form prescribed by the act ; and where any deed is by 
 the act directed to be executed by the patron, ordinary 
 and incumbent, it shall in these cases be valid if executed 
 by the ordinary and incumbent only, after consent ob- 
 tained from the first lord of the treasury, the lord chan- 
 cellor, or chancellor of the Duchy of Lancaster, as the 
 case may be, jirovided such consent be registered at the 
 register office aforesaid. 
 
 From the time of the passing of the act last mentioned, Hccent statutes, 
 no important alteration in the law took place until 1838, the 
 1st and 2nd years of her present Majesty; all mortgages 
 of benefices therefore made between those periods are and 
 will be entirely regulated by the provisions of the first- 
 named act, except in the particulars hereinafter especially 
 mentioned. 
 
 The provisions of the first act' of that year, however, need 
 be very briefly stated only, since a more full and compre- 
 hensive act, to which we shall presently refer, was passed 
 afterwards in the same session, and within three months of 
 the other ; for it has unfortunately happened here as in the 
 case of the church building acts, that enactments for the 
 same purposes have been multiplied without any apparent 
 utility, and that much has been specifically re-enacted 
 which might have been accomplished by reference to for- 
 mer acts ; so that it becomes a difficult matter, especially 
 for those for whose use they are principally designed, to 
 know which of the provisions of these statutes are prac- 
 tically repealed, or by which their own particular case is 
 to be regulated. 
 
 I3y this act of the 1 & 2 Vict. c. 23, it is made lawful Extension of 
 for any incumbent to take up at interest, for the purposes ||f^,||p|7i'iibt'rt 
 of the act of 17 Geo. IIL before mentioned, and also for Act. 
 the purpose of buying or procuring a proper site for a 
 house and other necessary buildings, or for either of such 
 purposes, any sum or sums of money not exceeding three 
 years' net income of such benefice ; as a security for the 
 repayment of which he is enabled to mortgage the emolu- 
 ments of his benefice for thirty-five years, or until the 
 money is paid. And from and after the expiration of the 
 first year of this term, (in which first year no ])art of the 
 principal sum to be borrowed is repayabh^,) the incund)ent 
 shall every year, computing such year from the day of the 
 
 ' 1 Vict. c. 23.
 
 270 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Alteration ia 
 mortgages to 
 Queen Anne's 
 Bounty already 
 existing under 
 the Gilbert Act. 
 
 date of the mortgage, pay to the mortgagee one-thirtieth 
 part of the principal sum borrowed, with interest for so 
 much as remains due, until the whole is paid off. In other 
 respects, as to the manner of the payment, the provisions 
 of the first act, and the forms there prescribed, are to be 
 applied. The important alterations, therefore, which are 
 introduced by this section are, 
 
 1. The power to purchase a site for building with the 
 money so taken up. 
 
 2. The power to take up the amount of three years' 
 income instead of two. 
 
 3. The exemption from repayment of any part of the 
 principal in the first year, 
 
 4. The extension of the time of repayment from twenty- 
 five years to thirty-five. 
 
 5. The repayment by thirtieth parts, instead of by twen- 
 tieth parts or 5 per cent. 
 
 The repeal of that provision in the first act, which com- 
 pelled a non-resident incumbent to repay by tenth parts 
 or 10/. per cent., to which we have before alluded, is effected 
 by the second section of this act as to all mortgages made 
 subsequently to it. 
 
 The third section of the act is that to which we have 
 alluded as making an alteration in the cases of mortgages 
 effected prior to it, and which were in existence at the 
 time of its passing ; for it is thereby enacted, that for the 
 future as to every mortgage which has been made to the 
 governors of Queen Anne's Bounty by any bishop under 
 the powers of any act specially enabling him, whereby 
 a greater yearly instalment than one-thirtieth part of the 
 principal sum is stipulated to be paid, or by the incumbent 
 of any benefice by virtue of the 17 Geo. III. c. 53, the 
 instalment of the principal sum to be repaid annually by 
 them shall be one- thirtieth of the principal sum originally 
 advanced, instead of the yearly instalment in the mortgage 
 sti])ulated to be paid; such substituted instalment to com- 
 mence in each case on the day when the next yearly 
 instalment by virtue of such mortgage shall become due ; 
 and the mortgages already made to the governors are in 
 these cases to remain in force until the whole principal sum 
 has been re])aid, in exactly the same manner as if they had 
 been in the first instances expressed to have been nrade for 
 the lojiger term.'" 
 
 The ])ower given by the Gilbert Act to borrow from 
 Queen Anne's liounty and from colleges, &c. remains the 
 same under this act, the extended provisions of the first 
 
 "' Sect. 3.
 
 HOUSES OF RESIDENCE. 271 
 
 section being applicable to such cases ; but there is no 
 provision which directs colleges, Sec. to make any alter- 
 ation in the annual receipts of the money already lent by 
 them upon mortgages actually in existence." 
 
 When any existino; house is unfit for the residence of 0\d houses may 
 
 the incumbent, and incapable of being so repaired and ^ conveneu to 
 1 1 1 • f> p 1 • -1 1 • 1 11 '^"^ buildings, 
 
 enlarged as to make it nt tor his residence, and it shall &c. 
 be certified to the bishop by some competent architect or 
 surveyor that it will be advantageous to the benefice that 
 such house should be suifered to remain, the incumbent, 
 having obtained the consent in writing of the bishop, 
 which consent must be registered in the registry of the 
 bishop, may allow the house to stand as a dwelhng-house, 
 or convert it into farming buildings for the use of the 
 occupiers of the glebe lands ; and after a new house of 
 residence has been built to the satisfaction of the bishop, 
 the old house shall be thenceforth converted to the pur- 
 poses aforesaid, and the new house taken to be the resi- 
 dence house of the benefice. ° 
 
 We have already had occasion to refer to some of the 
 remaining clauses of this act in speaking of the sale and 
 exchange of glebe lands ; the other clauses are similar to 
 those of 17 Geo. III. c. 53, the powers, provisions, &:c. 
 of which are extended and made applicable mutatis mu- 
 tandis to mortgages made in pursuance of this act. 
 
 We now come to speak of that part of the more full Mode of pro- 
 and important act? passed subsequently in the same ses- ceedmgmmort- 
 
 , * . . , ! . . 1 ^p , 1 -^ ga^es of bene- 
 
 sion, by which provision is made tor these purposes. fj^es becoming 
 
 By the 62d section of that act the bishop of the diocese, vacant after 
 upon the avoidance of any benefice, is required to issue a -A^^g^st 1838. 
 commission to four beneficed clergymen of his diocese, 
 or if the benefice be within his peculiar jurisdiction, but 
 locally situate in another diocese, then to four beneficed 
 clergymen of such other diocese, one of whom shall be 
 the rural dean (if any) of the rural deanery or district 
 wherein such benefice shall be situate, directing them to 
 inquire whether there is a fit house of residence within 
 such benefice, and what are the annual profits of such 
 benefice ; and if the clear annual profits of such benefice 
 exceed 100/., whether a fit house of residence can be con- 
 veniently provided on the glebe of such benefice or other- 
 wise ; and if the commissioners, or any three of them, 
 shall report in writing under their hands to the bishop 
 that there is no fit house of residence within such benefice, 
 and that the clear annual profits of such benefice exceed 
 1 Go/., and that a fit house of residence can be conveni- 
 ° Sects. 4 and 5. ° Sect. 6. p 1 & 2 Vict. c. 106.
 
 272 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 ently provided on the glebe of such benefice, or on any 
 land which can be conveniently procured for the site of 
 such house of residence, the bishop is required to procure 
 from some skilful and experienced workman or surveyor 
 a certificate containing a statement of the condition of the 
 buildings (if any), and of the value of the timber and 
 other materials (if any) thereupon, fit to be employed in 
 building or repairing, or to be sold ; and also a plan or 
 estimate of the work fit and proper to be done for building 
 or repairing such house of residence, with all necessary 
 and convenient offices ; and thereupon, by mortgage of 
 the glebe, tithes, rents, rent-charges and other profits and 
 emoluments of such benefice, to raise such sums as the 
 said estimate shall amount to, after deducting the value 
 of any timber or other materials which may be thought 
 proper to be sold, not excccdiiuj four ijcarti net income and 
 produce of such benefice, after deducting all outgoings 
 (except only the salary of the assistant curate, where such 
 a curate is necessary), which mortgage shall be made to 
 the persons who shall advance the money so to be levied 
 and raised for the term of thirty-five years, or until the 
 money so to be raised, with interest for the same, and 
 such costs and charges as may attend the recovery thereof, 
 shall be fully ])aid and satisfied ; and the same mortgage 
 shall be made by one or more deed or deeds in the form 
 or to the effect for that purpose contained in a particular 
 form prescribed by the act, and shall bind the incumbent 
 of such benefice for the time being, and his successors, 
 until the ])rincipal and interest, costs and charges, shall 
 be fully j)aid oil' and satisfied ; and every incumbent for 
 the time being is made liable to the payment of so nuicli 
 of the principal, interest and costs as shall become pay- 
 able during the lime he shall be such incumbent ; and 
 evei'y such incumbent and his rej)rcsentatives shall be 
 resj)ectivcly liable to the proj)ortion of the payments for 
 the year vvliich shall be growing at the time of the death 
 of such incnnnbcnt or avoidance of such benefice; which 
 said principal, interest and costs, and the proporti(m of 
 payujcnt growing at the time of the death of such incum- 
 l)cnt or of such avoidance, sliall and nray be recovered by 
 action of d(!bt in any court of record.'' 
 
 The bislioj) shall cause to be transmitted (o the |)aLron 
 and tlic incinid)cnt (if any) of such benefice copies of th<^ 
 report so 1o l)e made by sncli ((iniinissioners, and ol the 
 j)lan, estimate and certificate so to be made by sucli work- 
 man ol' stH\cyor, two calendar months at the least before 
 
 ■I 1 S; 2 Vitt. c. lOG, s. (i2.
 
 HOUSES OF IlESIDENrC. 273 
 
 making any such mortgage ; and in case the j)atron and 
 the incumbent, or either of them, shall object to the ])ro- 
 ])osed site for a residence, or to the j)roposed plan for 
 erecting or repairing such residence, or the amount pro- 
 ])osed to be raised, and shall deliver such objections in 
 writing to the bishoj) before tin; expiration of such period 
 of two calendar months, the bishoj) shall have full power 
 to direct that the plan proj)osed to be carried into efiect 
 shall be alter(!d or modified in such manner as he may 
 think fit. And if the bishoj) shall, after receiving the 
 report to be made by such conmiissioners, be of opinion 
 that it is not expedient under the special circumstances of 
 any such benefice, to levy and raise any sum or sums of 
 money by mortgage, or otherwise to take measures for 
 providing a fit house of residence for such benefice, he 
 shall state in detail such sj)ecial circumstances, and the 
 grounds of his oj)inion, in the next annual return made by 
 him to her majesty in council/ 
 
 The first important alteration to be remarked upon, as Alterations 
 introduced by these sections, is the very extensive power "i^de iiy the 
 conferred by them u])on tlie bishop. Previous to this ^°^^^ enact- 
 enactment, although the consent of the bishop was made increased 
 necessary to })roceeding under the 17 Geo. Ill, c. 53, yet power of the 
 his positive interference was restricted to cases where the l^'s'iops. 
 incumbent was non-resident on his benefice, and refused 
 to avail himself of the provisions of that act; nor even in 
 that case was he empowered to act without the consent of 
 the patron of the benefice. 
 
 By this enactment, however, the proceedings are to be 
 initiated by the bishoj) ; and when the report of his com- 
 mission is returned to him, he is to be sole judge whether 
 or not it is fittinti" that its recommendations shall be car- 
 ried into eil'ect ; and the objections of the ])atron or in- 
 cumbent, or of both of them, are only, as it appears, to 
 be attended to so far as the bishop may think fit. 
 
 The enactment of this 62d section appears to have been Requisition of 
 too general by some mistake ; for if it were strictly com- section 62 too 
 plied with, the Ijishop would be required to issue this com- g^"^^^'' 
 mission whenever and as often as any benefice under his 
 control became vacant, whether the house of residence 
 thereon was good or bad, or although it had recently been 
 erected ; and even in the case of a l)cnefice as to which a 
 commission has once issued, it would be necessary for the 
 bishop to direct another as soon as the benefice was again 
 vacant. The general practice, therefore, in the dift'erent 
 dioceses has been, and, it is believed, continues to be, to 
 
 >• Sect. 63. 
 
 T
 
 274 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Alteration in 
 tiie amount to 
 be raised. 
 
 treat the general directions of this section as a mistake, 
 and not to issue the commission on the avoidance of those 
 benefices whereon the bishop has sufficient reasons for 
 knowino; that a fit and proper house of residence exists.^ 
 
 The other important alteration introduced by these sec- 
 tions is in the amount of the money authorised to be raised; 
 which having been by the 17 Geo. III. c. 53, fixed at two 
 years' income of the living, and by 1 & 2 Vict. c. 23, ex- 
 tended to three years' income, is now fixed at four years' 
 income ; and it may be instructive as show ing the altered 
 style and character of the glebe houses in this country, 
 and possibly also the altered style of living of their occu- 
 piers, that it has now been thought advisable and ex- 
 pedient to provide for the erecting of houses, so as to 
 allow them to be of double value as compared with those 
 erected between a. d. 1777 and 1838. 
 Alteration in It would be quite unnecessary to repeat the enactments 
 
 certain details. ]^y w'hich the details of transactions of this iiature, and 
 under this statute, are to be regulated, as they differ from 
 those to be observed in accordance with the act 17 Geo. III. 
 c. 53, and which we have already fully mentioned in the 
 following particulars only. 
 
 The copy of the deed of mortgage directed by the former 
 act " to be registered in the office of the registrar of the 
 diocese where the parish lies, or other ordinary having 
 episcopal jurisdiction therein," is by this act directed to be 
 registered in the office of the registrar of the bishop of the 
 diocese. 
 
 Among the expenses directed by the latter act to be paid 
 out of the fund by the bishop's nominee, in addition to all 
 those directed to be paid by the former act, are the ex- 
 penses of preparing the mortgage deed and incident thereto, 
 and of making such certificate, plan and estimate, and 
 copies thor(!of. 
 Details in whicli All the directions as to the contracts of and by the no- 
 theiu is 110 alter- ininec, and as to the balance remaining in his hands; — his 
 ])assing his accounts; the executing counterpart of the 
 mortgage ; the ivnicdios in default of ]iaymenf by incinn- 
 bciit; the continuing charge upon successors; insvirancc 
 against fire ; apj)()rtioninent in case of death or avoidance 
 of the living ; application of money received for dilapida- 
 tions ; the authority to governors of (^u-en Anne's l^onnfy 
 to UmmI money at 4/. per cent, interest — to colleges in Ox- 
 ford and (^and)ridge and other corporate bodies, to lend 
 money without interest; allowance to the nominee of the 
 
 ations. 
 
 " Communicated to tlic author as tho usual practice by llic bisliop's oflicers.
 
 HOUSES OF IlESIDENCE. 275 
 
 O 
 
 bishop, — are precisely the same as those of the first-men- 
 tioned act, which we have ah-eady explained and analyzed, 
 and nii<^ht jjrobahly have been more simply provided for 
 by a reference to that act. 
 
 We have now gone through the several statutes pro- In what cases 
 viding for the erection of suitable and convenient houses sl'iii^n^^ci'rce^ *^*^ 
 of residence on lands lohich are already glehe. 
 
 It remains to be particularly observed, tliat the last of 
 these statutes does not operate as a repeal of the former 
 ones; and, moreover, that it is altogether inapplicable to 
 the case of any living, until there has been an avoidance 
 since the passing of the act. 
 
 It is clear, therefore, that any incumbent instituted prior 
 to that time, August 14th, 1838, who should wish to avail 
 himself of these provisions for building a new house of re- 
 sidence, must proceed accordin<r to the directions of the 
 17 Geo. III. c. 53, as altered by 1 k 2 Vict. c. 23. In 
 such a case, consequently, the extent of the amount to be 
 taken up at interest would be three and not four years' 
 value of the income of the living, and the details of his 
 proceeding would be regulated in all respects by the pro- 
 visions of the former acts, which should be adhered to 
 even in those cases where the latter act has introduced 
 any variance. 
 
 We have seen that the bishop, upon or at any time after Commission 
 the avoidance of any benefice, is required to issue his com- "l^y l^e .'ssued 
 mission. Whether or not this may be strictly consistent \^^ ^^Hf^ 
 with any discretionary power vested in him, it seems clear 
 from the following section, which directs the report to be 
 transmitted to the patron or incumbent (if any), that the 
 proceeding may be under this statute, notwithstanding 
 the benefice is filled.' 
 
 Since the passing of this last act, and in the year 1839,* Mortgages by 
 power has been given to archbisho])s and bishops to raise ^'^'lops for 
 money on the mortgage of their sees, for the purpose of P P • 
 building and otherwise providing fit houses for their resi- 
 dence. It would, however, appear scarcely necessary to 
 enter into the diflbrent provisions of the statute which 
 directs the manner in which this money is to be raised, 
 since the details are the same as those to be observed in 
 the case of money raised by an incumbent of a benefice. 
 
 * It will be obseived in this section, that provision is made for compelling the 
 insurance from fire of liouses built under the provisions of the Gilbert Act, and 
 Benefice Pluralities Act, and tlicre appears to be every reason why the same 
 should be made compulsory in the case of all houses of residence geneially ; for 
 this, at a moderate expense, might prevent the benefice from becoming charged 
 with the mortgage debt contracted tor rebuil iing in such a case. 
 
 ' 2 & 3 Vict. c. 18. 
 
 t2
 
 276 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 The interest of the sum borrowed is to be paid half- 
 yearly; one-thirtieth of the principal at the end of the 
 third year, and the same at the end of every subsequent 
 year, until the whole is repaid. The house purchased or 
 built must be within the province or diocese, in the case 
 of archbisiiops and bishops respectively. The money bor- 
 rowed is to he paid to a nominee or nominees in the same 
 manner, and whose duties are the same as those already 
 mentioned. The houses built or purchased are, in the 
 same manner, to be insured from fire. Power is also given 
 to purchase land for the purpose of a site and premises ; 
 nnd incapacitated persons are authorised to sell land for 
 such purj)oses. In the case of the avoidance of a see, the 
 archbishop or bishop avoidinp; it, or his executors, are to 
 pay a proportion of the half-yearly interest, and of the 
 annual instalment of the principal ; and the governors of 
 Queen Anne's Bounty are in like manner, as in the other 
 cases, authorised to advance the money at four per cent, 
 interest. 
 
 Section 7. 
 
 Rights as between Successive Tenants for Life. — 
 Dila'pldations. 
 
 An important branch of the law relatinp; to the real pro- 
 perty of ecclesiastical corporations sole, is that by which 
 the rights in it are adjusted as between the successive 
 tenants for life ; for under this is included tlu> subject of 
 dihipidations, and with the consideration of these subjects, 
 we siiall be enabled to conclude the present chapter. 
 Freelioldof Upon the death of the parson of a church, or of otlier 
 
 gieljc, ike. in ecclesiastical person seised jure ccc/esid', the Ireehold of 
 abeyance. jj|^ olebe, or Other ecclesiastical lands, is in abeyance," 
 
 that is, in expectation, remembrance or contemplation ot 
 law, until a successor is a))pointed ; and the fee simple in 
 sucli lands may be said to be always in abeyance, and 
 this is one of the few instances in which a freehohl estate 
 can be in abeyance ; for it is a principle of the highest 
 antifpiity in our law, that there should always be a known 
 and particularowiicr of every freehold estate, from reasons 
 derived partly from general convenience, and partly de- 
 ji\c(l from feudal tiuu's. 
 Crops growing 'i' ^'i!^'' !"'.y iiic'undx'iit, bef(U'e his death, has caused 
 at decease oi iniy t)f his gh^be lands to he niaiiiind and sown at liis own 
 inrmnlifi.t. pinjwr costs and charges willi any <'orn or grain, he may 
 
 " I.iu. (i71.
 
 RIGHTS AS BUTWEE.Nf .SUCCESSIVE TENANTS FOlt LITE. 277 
 
 make and declare liis testament of all the profits of the 
 corn growing upon the said lands so manured and sown. *^ 
 But, in such a case, it is presumed that the succeeding in- 
 cumbent would be entitled to some share, or to com[)eii- 
 sation in respect of the profit Avhich might have been 
 made by him of the glebe lands since the" time at which 
 they came into his possession ; for this is agreeable to the 
 equity of succeeding statutes as to ai)portionment, and of 
 the cases decided thereupon. ^ 
 
 In a case where a lease for years, made by a rector. Apportionment 
 had ceased by his death, the succeeding incumbent re- oi icm between 
 ceived from the lessee a sum of money as the rent due for ^"^^',^^n|s'^ '"" 
 the whole year, in the course of which the lessor had 
 died. But upon a bill filed by the executor of the de- 
 ceased rector against the succeeding incumbent, it was 
 held that the plaintiff was entitled to an apportionment.^ 
 
 This case was decided subsequently to and in pursuance 
 of the statute 11 Geo. II. c. 19, which enacts, that where 
 any tenant for life shall die before or on the day on which 
 any rent was reserved or made payable, upon any demise 
 or lease of lands, tenements or hereditaments, which de- 
 termined on the death of such tenant for life, the executors 
 or administrators of such tenant for life mav, in an action 
 on the case, recover from such under-tenant or under- 
 tenants of such lands, &c., if such tenant for life die on 
 the day on which the same was made payable, the whole, 
 or if before such day, then a proportion of such rent, ac- 
 cording to the time such tenant for life lived of the last 
 year or quarter of a year, or other time in which the said 
 rent was growino- due, makino- all just allowances, or a 
 proportionable part thereof, accordingly. And in order 
 that the payment of such year may be justly and equitably 
 ascertained and adjusted between the successors and the 
 parson, vicar, or incumbent, avoiding such living by death 
 or otherwise, or his representatives, in such proportions as 
 the profits of such living shall have been received by them 
 respectively for the year in which such death or avoid- 
 ance shall happen, it is enacted, that in case any difler- 
 ence shall arise in adjusting or settling the proportions 
 aforesaid, the same shall be determined by two indifferent « j 
 persons, the one to be named by the said successor, and 
 the other by the person making such avoidance, or his 
 representatives in case of his death ; and in case such 
 nominees shall not be apj)ointed within the space of two \ 
 calendar months next after such death or avoidance, or if 
 
 ^- 28 Hen. 8, c. 11. 
 
 y 11 Geo. 2, c. 19 J 4 & 5 Will. 4, c. 22. ^ Hau-hins v. Kelli/, 8 Ves. 308.
 
 278 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 No action by 
 a successor for 
 niiscultivatiou 
 of lands. 
 
 Secus, for non- 
 repair of 
 hedges, fences, 
 
 Duly of repair 
 on new lands 
 »cr|tiire(l as 
 glebe, fences, 
 
 they cannot agree in adjusting such proportions within 
 the space of one calendar month after they shall have 
 been appointed, the same shall be determined by some 
 neighbouring clergymen, to be nominated by the ordinary, 
 whose determination shall be final and conckisive between 
 the parties ; which nominations and determinations shall 
 be made according to the forms for that purpose contained 
 in the act. 
 
 And as to apportionments, the principle of the last- 
 tioned act is extended by the stat. 4 & 5 Will. IV. c. 22, 
 by which the principle of equitable apportionment is ap- 
 plied to all property which consists in periodical and fixed 
 money payments, such as rents, rent charges, &:c. Whe- 
 ther, therefore, under this statute, or independently of it, 
 there can be no doubt but that the rent of glebe and other 
 ecclesiastical lands would be fairly apportioned between 
 the deceased or outgoing and the incoming tenant for life ; 
 nor would the case be different in principle, where the 
 lands had been in the actual occui)ation of the former.* 
 
 But there is no law which compels the incumbent to 
 cultivate the glebe lands in a proper and husbandhke 
 manner, so that the successors may receive them in that 
 state; nor could there be any actions for dilapidations, 
 although the land had been miscultivated. For, as ob- 
 served by Lord Den man, in order to render the executors 
 of an incumbent liable for dilapidations, there must be 
 something of demohtion ; and there is, consequently, no 
 ground for saying they could be liable for mismanage- 
 ment of the glebe lands. And it was said by another of 
 the judges in the same case — '' An action by a landlord 
 against a tenant for the mismanagement of his farm, lies 
 on an implied contract to cultivate the lands in a husband- 
 like manner: no such contract can be implied between the 
 parson and his successor.'' 
 
 Bui the hedges, fences, gates, &c. upon glebe lands, are 
 among the things of which the beneficed parson has the 
 burden and charge of reparation ; and there is no doubt 
 tliat as to such things, the executors of a deceased iucuui- 
 benl ;irc liable to the successor for dihipidatious, if these 
 have been allowed to become decayed or ruinous.*" 
 
 And the decision come to after deliberation in this same 
 case is not only important in ilsell", but likely lo become 
 nnich more so from its applicability to the numerous cases 
 in witicli, under the recent statutes, new lands may be 
 iu-(piire(l as glebe; for it was ihere dccid(;d, that an ailot- 
 
 » Scci. '2. '' liiril V. Ilaliili, 4 Ham. & Ad. U'26. 
 
 ■■■ Liulcdalc,J., in liiul v. I(iili>h, 2 Ad. 6c KM. 773.
 
 RIGHTS AS BETWEEN SUCCESSIVE TENANTS FOR LIFE. 279 
 
 merit made to a vicar in lieu of tithes under an inclosure 
 act, is subject to the law and custom of England as to di- 
 lapidations equally with the ancient glebe ; and if wh(;n 
 the vicar comes into possession of it there are fences upon 
 it which he ought to repair, but which he dies leaving un- 
 repaired, his executors are liable at the suit of his successor. 
 In that particular case land was by the act to be first well 
 and sufficiently fenced, in such manner as the commis- 
 sioners should direct, at the public charge ; but for ever 
 afterwards to be repaired at the charge of the vicar and his 
 successors. And an appeal was given to parties aggrieved 
 by anything done in pursuance of the act, provided the ap- 
 peal was brought within four months. The fences which 
 were put up by the commissioners being calculated to Fast 
 only three or four years, became ruinous, and so remained 
 until the death of the incumbent, about eleven years after 
 the inclosure ; no steps having been taken by him to ob- 
 tain a remedy for the neglect to fence properly. It was 
 held, that as no appeal had been brought, the commis- 
 sioners must be considered to have done what was neces- 
 sary ; and that the representatives of the deceased vicar 
 were liable to the successor for dilapidation of the fences. 
 And it was expressly stated by Mr. Justice Littledale in 
 giving judgment, that this decision did not rest upon the 
 particular directions of the act, which cast the burthen of 
 repair on the vicar and his successors ; but that as it came 
 to the vicar in an inclosed and fenced state, he was bound 
 by the common law to keep it so, at his own expense.'^ 
 
 If a benefice were endowed with new land, or with an 
 allotment of common, or if any land were acquired to it as 
 glebe, by virtue of any exchange or by purchase under 
 the recent acts, or, as it is to be presumed, in any other 
 manner, and there were no fences upon it, the incun)bent 
 would not, in the absence of special enactment or agree- 
 ment, be bound to put up fences ; for that would only be 
 like the case above-mentioned of a mismanagement of the 
 glebe lands ;•■■ and there would be nothing of the nature 
 of demolition, so as to render his" representatives liable 
 for dilapidation. But if he were in any such cases to put 
 up fences, &c. he must then keep them in repair for the 
 future ; and if they should be left in a ruinous state, an 
 action for dilapidations in respect of them would lie.' 
 
 It becomes therefore of great importance in every case Duty of an in- 
 in which new land is to be acquired to any benefice as cumbent upon 
 glebe, that the incumbent should take care that all those tion of new 
 
 '' See judgment of Littledale, 2 Ad. & El. 781. '*°^®- 
 
 '' Bird V. liulph, supra. '" Littledale, J., supra.
 
 280 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 thing,**, in respect of which he would be Hable i'or dilapi- 
 dation, are at that time in a perfect state of repair ; for 
 upon tlic authority of the above case, it seems clear that 
 it would be no valid excuse or defence to an action for 
 dilapidations, to prove that any of these things were out 
 of repair, or likely to become out of repair, at the time 
 when they came into his possession. 
 Dilapiilaiions in But by far tlic most common cause of action for dilapi- 
 buililings, &c. datious is in respect of the house of residence and other 
 >/ ^feZ-^^"^^ /^buildings upon the glebe lands; and this subject appears 
 ^^ at a very early period to have engaged the attention of the 
 
 ^ //3 legislature and of the ecclesiastical courts. 
 
 "^ Wiiat it is. Dilapidation is said to be the pulling down or destroy- 
 
 ing in any manner any of the houses or buildings belong- 
 ing to a spiritual living, or suffering them to run into ruin 
 or decay, or wastintr or destrovin*i the woods of the 
 church, or connnitting or suffering any wilful waste ni or 
 upon the inheritance of the church. s 
 PiocceJings by A bishop as soon as he is installed, and a rector or vicar 
 Uie new incum- ^^ gQQi^ ^^ 1^(^. jg in(]uctod, ought to procure skilful work- 
 jnen to view the dilapidations or whatsoever shall want 
 '^ repairing, and write down for what sum a workman may 
 i or will repair or rebuild the same, and set their hands to 
 
 ' the same for a memorial thereof, when they shall be called 
 
 as witnesses thereunto. For after this inspection is made 
 the bishop, rector, vicar, S:c. may commence his suit for 
 dilapidations when lu; pleases. y\iid sucli workmen, in 
 !:;ui)j)ort of the action, ought to prove ihut such decay can- 
 not sufficiently b(^ repaired or amended for less than such 
 sum, and that they themselves would not do it for less; 
 and that such })roof may be sufficient, it is requisite that 
 there be two witnesses in every particular, and not one 
 witness to one kind of work only, and another to another.'' 
 J'.y rc])iLscnia- W lien the estimate has been thus mad(>, the representa- 
 tives of deceased tives of the late incumbent may examine other surveyors 
 to contradict tlu^ estimate made, and to prove it to be ex- 
 cessive ; and if this can be done satisfactorily, the amount 
 awarded would of course be reduced; or supposing the 
 defendants in such a case to have made a lender of the 
 sum they have deemed sufficient, or paid the same into 
 coiiil, :ind their csliuuile was iidjudgcd lo l)e correct, they 
 would be (Mititlcd to a verdict will) costs.' 
 Incases of Several f|ueslions concerning diUipidiitions are veiy 
 
 vf^aye. n(!arly ;illi((l (o lljose concerning waste, ofwliich we have 
 
 already spoken; these therefore it will be unnecessary to 
 
 If Deggo, lift. I' See 2 Hum, \\ L. 117. 
 
 ' ,\o,lli V. litirher, 3 I'liill. 307.
 
 KIGHTS AS IJliTWEliN SUCCESSIVE TENANTS FOU LIFE. 281 
 
 lepeat beic ; but it uiuy ])c laid down L;cnenilly, tlmt in 
 every case oC waste conniiitted or permitted by an eccle- 
 siastic on lands w bich be bolds yw/'c ccclesia.', and by wbieb 
 his successor might be damnified, the successor would 
 have his remedy for the injury in the usual action for di- 
 la])i(lations. 
 
 The case of Wise v. Metcalfe,^ decided in 182'J, is a i'liiiciplc on 
 leadino- authority to show the "extent of liability for dila- :''""'' '"'^''r'" 
 l)idations in the case oi house and buudmgs, and ni what calculmcd. 
 manner and according to what principle these dilapida- 
 tions are to be calculated. 
 
 In that case it appeared that the rectory house was an 
 ancient structure, built with timber, and plastered on the 
 outside, and had upon it the date of 1624. The barns were 
 also old, but not of equal age with the rectory house. 
 The dilapidations of the rectory house, barns, stables, out- rriuciplcs pro- 
 buildinos, and of the chancel of the church, amounted to po^eJ in Wise 
 399Z. 18,?. 6d., provided the principle u])on which the esti- ^" ^ '"-"'• 
 mate had been made was correct. The principle was, istpiiuciple. 
 that the former incumbent ought to have left the rectory 
 house, buiklings and chancel in good and substantial re- 
 pair ; the painting, papering and whitewashing being in 
 })roper decent condition for the immediate occupation and 
 use of his successor ; that such repairs were to be ascer- 
 tained with reference to the state and character of the 
 buildings, which were to be restored, where necessary, ac- 
 cording to their oriLiinal form, without addition or modern 
 improvement. It was proved by the several surveyors of 
 experience examined on the part of the plaintiff and also 
 of the defendant, that they had invariably estimated the 
 dilapidations between the incumbent of a living and the 
 representatives of his ])redecessors u})on the above prin- 
 ciple. 
 
 If however the rectory house, buildings and chancel 2ud principle, 
 were to be repaired in the same manner only as buildings 
 ought to be left by an outgoing lay tenant, who is bound 
 by covenant to leave them in good and sufficient repair, 
 order and condition, tlie expense of such reparations 
 amount to 310/., the painting, papering and whitewashing 
 not being included in the last estimate. 
 
 And if the former incumbent was only bound to leave 3rJ principle, 
 the rectory house, buildings and chancel wind and water 
 tight, or in that state of reparation which an outgoing 
 lay tenant of premises, not obliged by covenant to do any 
 repairs, ought to lea^c them, then the expenses of re- 
 
 ^ 10 Dain.& Cies.299.
 
 282 
 
 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 Principle laid 
 down by 
 Queen's Bench. 
 
 pairing the rectory, buildings and chancel amounted to 
 75/. 11 5. 
 
 The question for the determination of the court was, 
 which of these pro])osed principles of valuation was the cor- 
 rect one; and the damages were to stand for 399Z. ISs. 6d., 
 or 310/., or 75/. lis., according as they should decide. 
 
 This case was very fully argued ; and the custom of the 
 country in this respect underwent a very complete discus- 
 sion. Mr. Justice Bayley delivered the judgment of the 
 court, and after stating the several principles of valuation 
 that had been submitted to the court for their opinion, 
 continued : 
 
 " We are not prepared to say that any of these rules are 
 precisely correct, though the second approaches most 
 nearly to that which we consider as the proper rule. The 
 common law, as stated in some of the earliest precedents, 
 is as follows : ' Omnes et singuli prebendarii, rectores, 
 vicarii, Sec, pro tempore existentes, omnes et singulos do- 
 mos et edificia prebendariarum, rectoriarum, vicariarum, 
 &c., reparare et sustentare, et ea successoribus suis repa- 
 rata et sustentata, dimittere et relinquere teneantur : et si 
 hujusmodi prebendarii, rectores, vicarii, &c. hujusmodi 
 domos et edificia successoribus suis, ut prsemittatur, re- 
 parata et sustentata non dimiserint et reliquerint, sed ea 
 irreparata et dilapidata permiserint, eidem prebendarii &c. 
 in vitis suis, vel eorum executores sive administratores, &c. 
 post eorum mortem, successoribus prebendariorum, &c. 
 tantam pecuniae summam quantam pro rcparatione aut 
 necessaria, re-edificatione hujusmodi donuirum et edificio- 
 rum expendi aut solvi sufHoiet, satisfacere teneantur." 
 From this state of the common law two propositions may 
 be deduced, first, that the incundjent is bound not only to 
 repair the buildings belonging to his edifice, but also to 
 restore and rebuild tliem if necessary. Secondly, that lie 
 is bound only to re])air, and to sustain and rebuild tiiem 
 when necessary. Both these rules are very reasonable ; 
 the first because the revenues of the benefice are given as 
 a provision not for the clergyman only, but also ibr a suit- 
 abl(! residence for that clergyman, and ior the mainte- 
 nance of the chancel ; and if by natural decay, which 
 notwithstanding continual rcj)air nnist at last iiappen, the 
 l)uii(Mngs perish, these revenues form the only fund out of 
 which tlie nu ans of rejthieing them ran arise. The second 
 rule; is e(jually consistent with reason, in re(|uiring that 
 which is useful only, not that which is matter of ornament 
 or luxury. It follows from the first of these propositions 
 that the third uiode of computation cannot be the right
 
 RIGHTS AS BETWEEN SUCCESSIVE TENANTS FOR LIFE. 283 
 
 one, because a tenant not obliged by covenant to do re- 
 pairs, is not bound to rebuild or replace : the landlord is 
 the person who, when the subject of occupation perishes, 
 is to provide a new one, if lie thinks tit. And if the 
 second proposition be right, a part of the charges con- 
 tained in the first mode of computation must be disallowed; 
 for papering, whitewashing, and such part of the painting 
 as is not required to preserve wood from decay by ex- 
 posure to the external air, are rather matters of ornament 
 and luxury than utility and necessity. The authorities 
 cited from the canon law are in unison with what we con- 
 sider to be the rule of the common law. The earliest 
 provision on this subject is the provincial constitution of 
 Edmund Archbishop of Canterbury, passed a. d, 1236, 
 21 Hen. III. It is in the followino; terms : " Si rector ali- 
 cujus ecclesise decedens domos ecclesise reliquerit dirutas 
 vel ruinosas, de bonis ejus ecclesiasticis tanta portio de- 
 ducatur quae sufficiet ad reparandum hsec et ad alios de- 
 fectus ecclesise supplendos." That constitution therefore 
 directs the repairing "domos ecclesise dirutas vel ruinosas ;" 
 and Lindwood's commentary upon the words ad reparan- 
 dum is, " scilicet diruta vel ruinosa : et intellige Jianc 
 reparationem fieri debere secundum indigentiam et quali- 
 tateni rei reparandffi : ut scilicet impensse sint necessarise, 
 non voluptuosse." The next authority cited from the 
 common law was the following legatine constitution of 
 Othobon, promulgated a. d. 1268, 52 Hen. III. " Impro- 
 bam quorundem avaritiam prosequentes qui cum de suis 
 ecclesiis et ecclesiasticis beneficiis multa bona suscipiant 
 domos ipsarum et ceetera edificia negligunt ita ut integra 
 ea non conservent et diruta non restaurent." That is the 
 imputation against the clergy. The constitution then goes 
 on : " Statuimus et prsecipimus ut universi clerici suorum 
 beneficiorum domos et csetera edificia prout indiguerint 
 reficere studeant condecenter ad quod per episcopos suos 
 vel archidiaconos solicite moneantur. Cancellos etiam 
 ecclesise per eos qui ad hoc tenentur refici faciant ut supe- 
 rius est expressum. Archiepiscopos vero et episcopos, et 
 alios inferiores prselatos, domos et edificia sua sarta tecta 
 et in statu suo conservare et tenere sub divini jadicii attes- 
 tatione prsecipimus, ut ipsi ea refici faciant quse refectione 
 noverint indigere." The statute 13 Eliz. c. 10, speaks of 
 ecclesiastical persons sufibring their buildings, for want of 
 due reparation, partly to run to ruin and decay, and in 
 some part utterly to fall to the ground, which, by law, 
 they are bound to keep and maintain in repair ; and makes 
 the fraudulent donee of the goods of an incumbent liable 
 for such dilapidations as hath happened by his fact and de-
 
 284 LANDS OP ECCLESIASTICAL CORPOHATIONS. 
 
 fault. It" the incumbent was bound by law to keep and 
 maintain the dwelling-house in repair, any breach of his 
 duty in that respect would be a default. The 57 Geo. III. 
 c. 99, s. 14, enacts, that a non-resident spiritual person 
 shall keep the house of residence in good and sufficient 
 repair, and directs, that if it be out of repair and remain 
 so, the parson is to be liable to the penalties of non-resi- 
 dence luitil it is put in good and sufficient repair, to the 
 satisfaction of the bishop. There is nothing either in the 
 authorities cited from the canon law, or in these acts of 
 parliament, to show that the obligation of an incumbent 
 to repair is other than that which I have already stated 
 the common law threw upon him, viz. to sustain, repair, 
 and rebuild when necessary. 
 
 " Upon the whole we are of opinion that the incumbent 
 was bound to maintain the parsonage, (which we must 
 assume upon this case to have been suitable in })oint of 
 size and in other respects to the benefice,) and also the 
 chancel, and to keep them in good and sul)stantial repair, 
 restoring and rebuilding when necessary, according to the 
 original form, without addition or modern improvement; 
 and that he was not bound to supply or maintain any thing 
 in the nature of ornament, to which painting (unless ne- 
 cessary to preserve exposed timbers from decay) and white- 
 washing, papering, belong; and the damages in this case 
 should be estimated upon that footing. It will be found 
 that this rule will correspond nearly with the second mode 
 of computation, and piobably will be the same if the terms, 
 order and condition are meant, as they most likely are, not 
 to include matters of ornament or luxury." 
 
 It was afterwards referred to the master to calculate the 
 damages u])on this piinciple, and to report for what the 
 judgment should be entered up ; and he directed it to be 
 for '3691. 18.S. Gd., and for that sum there was judgment 
 for tlie plaintiff. 
 
 A very full report of the judgment in the above case has 
 been inserted ])ecause it ajjpears fully to embody all that 
 is necessary to be known upon this branch of the subject; 
 and ])y attention to the general principh; which is there 
 laid down as that by which dilapidations are to be calcu- 
 lated, each ])articular case, as it arises, may without difh- 
 culty be dclcnuiiicd. 
 Cnnnc<|ucnfc Tint if ;i beiiefic'f! had been for a long tinu' vacant, as 
 
 ofdtlay III claim jj^j. ^i,,,.,. ,„. f,,,,,. ycju's oy if tlic incundjcut had not sued 
 
 for dilapida- ,, . r," i • • i ,• • , ]] r j 
 
 i,„ns_ ' for some time after his nuhiction or mstallation, nor caused 
 
 the dilaj)idations to be viewed or estimated, he shall not 
 be entitled to recover the whole sum estimated for dilaj)i-
 
 RIGHTS AS BETWEEN SUCCESSIVE TENANTS FOR LIFE. 285 
 
 dations ; but consideration shall be had of the time elapsed 
 from the cessation of the last incumbency, and a propor- 
 tionable deduction made for the decays which n)ay rea- 
 sonably be supposed to have luip})ened during- such inter- 
 mediate time.' 
 
 But a further danger arises to an incumbent who neglects 
 to institute proceedings for dilapidations as soon as he is 
 inducted or installed, namely, in case of his decease before 
 any such claim has been made ; for the bishop, rector or 
 vicar may sue against the executors or administrators of" 
 the last incumbent, though the ruins or dilapidations hap- 
 pened not in their times, but in the times of their prede- 
 cessors ; and the reason is said to be, because those exe- 
 cutors and administrators have the like action against the 
 executors or administrators of their testator's predecessor, 
 and may recover the value of the repairs against them.'" 
 But this remedy over might very often be inadequate; 
 and although it is added by Conset, " tliat if the executor 
 shows he has used due diligence to procure the dilapida- 
 tions from the former bishop or incumbent, it would seem 
 to be an answer," the truth of that proposition is very 
 doubtful ; and certainly if there had been any delay or 
 neolioence, there could be no valid defence to the action. 
 
 It is provided by statute that all sums ot money to be Application of 
 recovered for or in the name of dilapidations by sentence, money fur dila- 
 com])osition or otherwise, shall, within two years after such I'"^^'"^""- 
 receipt, be truly employed upon the buildings and repara- 
 tions in respect whereof such money for dilaj)idations shall 
 be paid, on ])ain that every person so receiving and not 
 employing the same as aforesaid shall forfeit double as 
 much as shall be so by him received and not employed; 
 which forfeiture shall be to the queen's majesty, her heirs 
 and successors." 
 
 In the case of houses built under the Gilbert Act or 
 under the act of 1 & 2 Vict. c. 106, we have already seen 
 that there is express provision made for the manner in 
 which all sums received for or in the name of dilajjidations 
 are to be employed." 
 
 In case of the death of an incumbent within the two 
 years after he has received the money for dilapidations, it 
 seems that the same ought to be paid by his executors to 
 the successor, to be laid out by him, and not by the exe- 
 cutors, in repairs. P 
 
 A curate aj)pointed by the impropriator, and duly licensed, Who me liable. 
 
 ' 1 Ouglil. 255 ; Rogers's K. L. 31:3. 
 
 "' Conset, .3Go. " 14 Kliz. ell,?. 18. 
 
 ° See ante. ^ Cjil)s. C'otl. 754.
 
 286 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 which would be the common case in perpetual curacies, is 
 said to be not liable for dilapidations ; but where curacies 
 or chapels have been augmented by Queen Anne's Bounty, 
 they are considered as benefices, and the holders or their 
 representatives are liable for dilapidations/' 
 Buildings under All liouscs and buildings erected under the provisions 
 the Gilbert Act. ^f ^he Gilbert Act, or the 1 & 2 Vict. c. 106, would, as to 
 dilapidations, be included in the general rule before men- 
 tioned, that when any thing has once been placed on the 
 glebe lands, the incumbent must maintain it in a proper 
 state of repair.'' And although the house of residence has 
 in such a case been in a great measure built at the expense 
 of the incumbent, and previous to his incumbency there 
 liad been no house on the benefice, yet he would never- 
 theless be liable for dilapidations. 
 Church build- In the case of the churches and chapels built under the 
 iDg acts. ])rovisions of the several church building acts, wherever 
 
 any house has been built or purchased for the incumbent, 
 he is in like manner liable for dilapidations, if such house 
 should be left out of repair; for all ecclesiastical persons 
 that are beneficed are required to repair ; and by these 
 statutes the incumbents of such churches are declared to 
 be subject to all laws relating to the holding of benefices 
 and churches, and to all laws and jurisdictions ecclesias- 
 tical and common. And it seems that the liability to dila- 
 pidations is incident to all beneficed ecclesiastical persons. 
 An action for dilapidations of a prebendal house may be 
 maintained by a succeeding prebendary against his pre- 
 decessor.' 
 Living under [f j^ living is under sequestration, the sequestrators must 
 
 sequestration, j^^^^^ .^jj ^|^^ premises in rei)air; and the profits in their 
 hands are liable for this purpose just as if the incumbent 
 were himself in possession, for the sequestrator cannot be 
 in a bettor position than tlio incumbent would have boon, 
 nor exempt from any of those charges to which the incum- 
 bent would have been liable : and it follows from this, that 
 a succeeding incumbent may have his remedy for dilapi- 
 dations against the secpiestrators of the profits during the 
 preceding incund)cncy.' 
 
 Nor is it the executor of a deceased incumbent only who 
 is lial)le to be sued ibr dihii)idations ; but the incumbent 
 hims(!lf who leaves his benefice for some other preferment, 
 or for ;iny othcn* reason, is ulso linble to such an action; 
 
 1 See Curate nf Orpington's case, 3 Kcble,6l4; Price v. Pratt, 13unb.273; 
 1 Geo 1, Stat. 2, c. 10. 
 
 •■ Jiird V. Ualph, anlc. " Hr. Sands' case, Skin. 121. 
 
 t Hubbard v. Beckford, 1 Cons. 307 j WliiJiJieUl v. Watkins, 2 rhill. 8.
 
 RIGHTS AS BETWEEN SUCCESSIVE TENANTS FOR LIFE. 287 
 
 nay, even though he should exchange his benefice for some 
 other, upon the su])position of" equahty, he would never- 
 theless be liable." 
 
 As to the manner in which sums found due for dilapi- Payment of 
 dations are paid by the executors of the deceased incuni- '^e'jfs to be 
 bent, Gibson remarks, ^' Executors charged with dilapi- P"^'^'"''^'^- 
 dations are bound to make satisfaction for them before 
 payment of legacies." But Sir Simon Degge says there 
 has been a further question whether satisfaction for dila- 
 pidations should be preferred in payment before debts and 
 legacies ; and as the common law prefers the payment of 
 debts before damage for dilapidations, so the ecclesiastical 
 law prefers the damage for dilapidation before the pay- 
 ment of debts, upon which Gibson remarks that, being 
 the course of the common law, we must be content." 
 
 But whatever may be the disadvantage which a party Fraudulent gifts 
 claiming sums due for dilapidations may be placed under t° defeat claina 
 in this respect, an important benefit is intended to be con- [bus ^^"^'^' 
 ferred on him by the following statute of the 13 EHz. c. 10. 
 
 As divers ecclesiastical persons, being endowed and pos- 
 sessed of palaces, houses and other edifices and buildings 
 belonging to their ecclesiastical benefices or livings, have 
 not only suffered the same, for want of due reparations, 
 partly to run to great ruin and decay, and in some part 
 utterly to fall down to the ground, converting the timber, 
 lead and stones to their own benefit, but also have made 
 deeds and gifts, &c. of their goods and chattels in their 
 lifetime, to defeat and defraud their successors of such 
 remedies, (fee. as otherwise they might have had against 
 their executors or administrators by the laws ecclesiastical 
 of this realm, it is enacted, that if any archbishop, bishop, 
 dean, archdeacon, provost, treasurer, chaunter, chancellor, 
 prebendary, or any other having any dignity or office in 
 any cathedral or collegiate church, or if any parson, vicar, 
 or other incumbent of any ecclesiastical living whereunto 
 belong any house or houses or other buildings which by 
 law or custom he is bound to keep and maintain in repa- 
 ration, do make any deed of gift or alienation, or other 
 like conveyance of his moveable goods or chattels, to the 
 intent and purpose aforesaid, the successors of him that 
 shall make such deed of gift or alienation shall and may 
 commence suit and have such remedy in any ecclesiastical 
 court of this realm competent for the matter, against him 
 or them to whom such deed of gift or alienation shall be 
 so made, for the amendment and reparation of so much of 
 the said dilapidations and decays, or just recompense of 
 
 " See Exchange, post. '^ Gibs. Cod. 791 ; Rogers's E. L. 311.
 
 288 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 the same, as hath happened by his fact or default, in such 
 sort as he mioht or ou«;ht to have had if he to whom such 
 deed of oift or alienation shall be so made were executor 
 or administrator of him that made such deed or alienation. 
 Some doubt is expressed in Dr. Burn's book on eccle- 
 siastical law, as to whether this statute is still in force ; 
 but it does not appear that such doubts have any reason- 
 able foundation. It is to be observed, however, that the 
 statute speaks only of such gifts, &c. as are made to defeat 
 and defraud their successors; and it would therefore be 
 necessary, in order for the successor to set aside such gift, 
 &c., and to avail himself of this statute, that such fraudu- 
 lent intent should be proved ; and if this could be done, 
 it is presumed that any such gifts, &c. would be void- 
 able at common law, or at any rate in coin'ts of equity, 
 without the aid or assistance of the statute,^ for every such 
 gift, &c. woidd of necessity be without any consideration, 
 and no injury would in that case be done to the party to 
 whom it may have been made ; while if any sutHcient con- 
 sideration was made for the gift, &:c. it would seem that 
 no remedy could be had against the party to whom the 
 gift had been made. 
 Successor must An incumbent can only sue for dilapidations in an action 
 be seised of te- at commou law in respect of tenements of which he is 
 of wlilcli'lie'" ' ss'^'cd in right of his benefice ; and although it appeared, 
 sues. in an action of this kind, that successive rectors had been 
 
 in possession of certuin j)rcmises for fifty years last past, 
 the fee was shown to be in certain devises in trust under 
 circumstances which prevented the presumption of there 
 having l)een any conveyance duly enrolled to the use of 
 the benefice, and it was held theie could be no suit for 
 dilapidations ; and the counsel in that case referred to an 
 old case of Griffin \. Stanhope, in which it was said in 
 argument, and not denied, if a person show that for two 
 hundred years certain hind was parcel of his glebe, it is 
 not therefore of necessity that the other should produce a 
 confirmation IVoni the ])utron and ordinary, for the con- 
 tinuance; of the ])ossession nuikes it intendihie to be accord- 
 ing to law at the time it was made.'' 
 Also tlie prede- And so in a yet stronger case, in an action for dihipida- 
 cessorwhois ijons by a vicar against his predecessor, the plaintiff de- 
 (■lar(;(l tliat. the defendant was seised of tlu- premises in 
 question in right of his vicarage. But if a|)])eared that 
 i\\v. premises were cojtyhold, and were devised to the 
 master and senior fellcjus ol' 'IVinity ('ollege, Cambridge, 
 
 y See I Slorey, K(|uity Juiisp. tit. FimikI. 
 ' Wrif^hl V. Smtithirs, U) FiasI, K)!),
 
 ine 
 
 RIGHTS AS BETAVEEN SUCCESSIVE TENANTS FOR LIFE. 289 
 
 in trust to ])cnnit the vicar for the time being to receive 
 the rents and profits (the charges to the lord and expenses 
 for necessary reparation being first deducted). It was hekl 
 that, as there was no seisin in the vicar, the phiintiff could 
 not maintain this action." 
 
 Although the remedy thus given for dilapidations is as Insufliciency of 
 full as the nature of the case will admit of, yet it would H'e above ic-me- 
 not be universally sufficient ; for it might frequently happen 
 in such cases that the late incumbent might be insolvent, 
 and that he who had not sufficient funds to put his house 
 in pro])er repair for his own comfort during his life, would 
 not leave sufficient to enable others to do so after his de- 
 cease. Thus, insolvency of the incumbent and dilapida- 
 tions of his house of residence have been very frequently 
 found connected, the latter being the consequence of the 
 former. 
 
 Ample ])ovvers are therefore given to bishops and arch- Repairs may be 
 bishops, both by the common law and by statute, to ^°"?I^°",^'\. 
 
 J '. J -J . ' during lileti.., 
 
 compel uicumbents to keep the houses and premises on of incumbent 
 their glebe in a proper and sufficient state of repair; and 
 the punishment for dilapidations may be even deposition 
 or depiivation, for it is said, If any ecclesiastical person do 
 or suffer to be done any dilapidations, they may be punished 
 in the ecclesiastical courts, and the same is a good cause 
 of their deprivation of their ecclesiastical livings and digni- 
 ties.'' But these extreme measures do not ajjpear now to 
 be ever resorted to, but the usual method of preventing 
 dilapidations is that pointed out by the canon law. For 
 the rural deans are to inspect churches, <fcc., and houses 
 belonging to the parsons and vicars within their districts, 
 and to give information of decays and dilapidations to the 
 ordinary ; and it is also a part of the duty of the arch- 
 deacon to visit his subordinate clergy once at least in 
 every three years, for the purpose, inter alia, of surveying 
 the mansion-house of every incumbent, as well as to cause 
 the same, if need require, to be fitly repaired. 
 
 The archdeacon therefore, as it seems, or the bishop, 
 upon report made to him by the rural dean, should admo- 
 nish the incumbent to cause to be executed the necessary 
 repairs; and if the incumbent, being admonished, should 
 neglect or refuse so to do, the bishop, by ecclesiastical cen- 
 sures and other lawful remedy, and also by sequestration 
 of the j)rofits, may compel the repairs to be done.*^ 
 
 Supposing sequestration to be had recourse to, one-fifth 
 part of the annual value of the living is usually the amount 
 
 a ni-own V. llumsilcn, 8 Taunt. 559. « Aylifte's Parerg. ibid. 
 
 >> Degge, 77 ; Aylitrc's Parerg. 21C. 
 
 U
 
 290 LANDS OF ECCLESIASTICAL CORPORATIONS. 
 
 sequestered, and if the incumbent is dissatisfied he can 
 appeal ; but it seems that any less part than one-fifth might 
 be sequestered ; and where the ecclesiastical court is called 
 on to sequester, it was said by Sir J. NichoU that it seldom 
 lays apart more than one-fifth."^ Of the duties of the se- 
 questrators in such cases we shall have to speak hereafter, 
 when we come to the general subject of sequestrations.® 
 
 And here we may remark, that this proceeding may be 
 in like manner had recourse to, in order to compel the in- 
 cumbent to repair the chancel, wherever the charge of ex- 
 ecuting such repairs is cast upon him. 
 
 And in the case of the bishop himself, who should suffer 
 the episcopal palace or other structure with the repair of 
 which he was charged to become dilapidated, he might be 
 suspended bytlie archbishop, and the profits of his bishopric 
 in like manner sequestered, as was the case of Dr. Wood, 
 Bishop of Lichfield and Coventry, who was suspended by 
 Archbishop Sancroft, and the episcopal palace was built 
 out of the profits so sequestered.^ 
 Where incum- Another common cause of dilapidations was the non- 
 bent is non-re- residence of incumbents on their benefices. This has, 
 ^ however, been remedied by recent statutes, of which we 
 
 shall have to speak when we come to the subject of the 
 residence of the clergy; by one of those statutes it is 
 enactedjS that every spiritual person having a house of 
 residence on his benefice, and not residing therein, shall, 
 during such period of non-residence, keep such house in 
 good and sufficient repair ; and that the bishop may cause 
 a survey of such house to be made by some competent 
 person, the costs of which, in case the house is found to be 
 out of repair, shall be borne by such spiritual person ; and 
 if the surveyor shall report that such house is out of repair, 
 the bishop may issue his monition to the incumbent to put 
 the same in repair according to such survey or report, a 
 coj)y of which is to be annexed to the monition, and every 
 such non-resident spiritual person who shall not keep such 
 house in repair, or who shall not, upon such monition, and 
 within one month after service of the monition, show cause 
 to the contrary, to the satisfaction of the bisliop, or put 
 such house in repair within the space often months, to the 
 satisfaction of such bisho]), shall be liable to all those 
 penalties for non-residence of which we shall hereafter 
 speak, during the period such house of residence remains 
 out of rf'|)air ; whicli penalties arc in fiict sequestration, 
 the first application of the sequestered profits being to the 
 
 •1 Korlh V. Barber, 3 Phill. 307. « See post. 
 
 f Cited 12 Mod. II. 237. R 1 & 2 Vict. c. 106, s. 41.
 
 RIGHTS AS BETWEEN SUCCESSIVE TENANTS FOR LIFE. 291 
 
 purpose of putting the premises in repair.'' It should be 
 observed, however, that it docs not appear from the words 
 of the above section by whom the costs of the survey are 
 to be paid, in case the house, upon the occasion of such 
 survey, is not found to be out of repair. 
 
 This enactment, as has very frequently happened in the 
 recent statutes relating to ecclesiastical matters, appears 
 to have been made without a due consideration of the law 
 already existing, and in this case without consideration of 
 the powers already vested in the bishop and archdeacon, 
 for compelling the repair of dilapidations. Those powers, 
 however, are not repealed, nor in any manner interfered 
 with by this statute ; they appear to have been amply 
 sufficient, and well adapted for the purpose, nor is it easy 
 to see in what respect the present enactment introduces 
 any improvement; though it might probably create con- 
 fusion, by making it appear that the repairs of dilapidations 
 could be compelled by the bishop only in the case of a 
 non-resident incumbent. 
 
 In speaking here of the manner in which dilapidations 
 are to be prevented and reparation enjoined, we are speak- 
 ing generally only of permissive dilapidations or permissive 
 waste; not because the same remedies might not be had 
 recourse to in the case of wilful and actual dilapidations, 
 but because there are other methods which we have spoken 
 of under the subject of waste, which would be probably 
 better adapted to cases which might require an immediate 
 remedy, and a stop to be put to such wilful damage, such 
 as we have already noticed under the subject of waste. 
 
 CHAPTER II. 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 The provisions which we have hitherto mentioned for the General provi- 
 maintenance of persons ecclesiastical, are partial endow- sion for persons 
 ments only for the benefit of particular corporations, or by*^ leans' of'.' 
 form but a small part of the means of support to the great 
 body of the clergy. But we now come to consider that 
 general provision which has been established, of the tithe 
 
 '■ See post, Sequestration. 
 
 u2
 
 292 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 or tenth pait of the produce of our hands, for the proper 
 maintenance and support of the whole ecclesiastical body. 
 
 An honourable and competent maintenance for the mi- 
 nisters of the gospel is, undoubtedly, jure divino ; what- 
 ever the particular mode of that maintenance may be. 
 ■ For besides the positive precepts of the New Testament, 
 natural reason will tell us that an order of men, who are 
 separated from the world, and excluded from other lucra- 
 tive professions, for the sake of the rest of mankind, have 
 a right to be furnished with necessaries, conveniences, and 
 moderate enjoyments of life, at their expense, for whose 
 benefit they forego the usual means of providing theni.'"* 
 
 Accordingly all municipal laws have provided a liberal 
 and decent maintenance for their national priests or clergy ; 
 ours in particular have established this of tithes, probably 
 in imitation of the Jewish law. And perhaps, says Black- 
 stone, considering the degenerate state of the world in 
 general, it may be more beneficial to the English clergy 
 to found their title on the law of the land, than upon any 
 divine right whatsoever, unacknowledged and unsupported 
 by temporal sanctions.'' 
 Oiiginof. During the first ages of Christianity, the clergy were 
 
 supported by the voluntary ofierings of their flocks; but 
 this being a precarious existence, the ecclesiastics in every 
 country of Europe claimed, and in the covu'se of time 
 established, a right to the tenth part of all the produce of 
 lands. "■ At what time this right was claimed or finally 
 established in this country, it is impossible to ascertain 
 precisely; but the first mention of them which Blackstone 
 says that ho has met with in any written English law, is 
 in a constitutional decree made in a synod held a. d. 78G, 
 wherein tiie payment of tithes in general is strongly 
 enjoined. This canon or decree, which at first bound not 
 the laity, was (jflectually confirmed by two kingdoms of 
 the IIe[)tarchy, in their j)ariiamentary conventions of es- 
 tates, res|)ectively consisting of the kings of Mercia and 
 Nortliundjerland, the bishops, dukes, senators, and peo- 
 l)Ie.'' 
 
 The next authentic jucntion of thorn is in the luechis 
 Julicardi <l (i ulliniii'i., or tlu; laws agreed upon between 
 King Outhrun, the Dane, and Alfred, and his son Edward 
 the elder, successive kings of l^igland about the year 900, 
 'I'll is was a kind of treaty between those monarchs, which 
 may be Ibnnd at large in ihc Anglo-Saxon laws,' wherein 
 it was necessary, as Gutlirun was a Pagan, to ])rovide for 
 
 » 2 J'.lark. Com. '2-1. '-Ibid. ' 3 Cruise's Dig. 37. 
 
 ■' -1 i'.l.vk. Com. 25. '■ Wllkins, r,\.
 
 l- 
 
 le 
 an 
 
 OF TITHES AND TITIIK REiNT-CnARGE. 293 
 
 the subsistence ol" the Christian clergy under his dominion; 
 
 iind ;(ccor(Hnoly we find the payment of titiics not only 
 
 enjoined, but a penalty added upon non-observance, which 
 
 law is seconded by the laws of Athelstan about the year 
 
 930. This is, perhaps, as much as can be traced out 
 
 with regard to their legal origin.'' But without doubt the- ^Vclc esi.i 
 
 right had been fully admitted in Enolaud before the Nor- '''''''•;''^ '^^''^ 
 
 man conquest; the name ot tithes bemg acquned from a conqutst 
 
 Saxon word, siiinifvino- tenth." 
 
 lithes are of that class of things which are termed Definition of. 
 incorporeal hereditaments, which are rights issuing out of 
 things corporate, whether real or personal, or concerning 
 or annexed to, or exerciseable within the same; and they 
 may be defined to have been a right to the tenth part of 
 all the produce of lands, the stock upon lands, and the 
 jiersonal industry of the occupiers, but in their essence 
 they have nothing substantial or permanent; they consist 
 merely injure, and are only a right. So that an estate in 
 tithes is no more than a title to a share or portion of the 
 ])roduce of a certain tract of land, after it shall have been 
 se])arated from the general mass.'' 
 
 Tithes were originally a mere ecclesiastical revenue, 
 ecclesiastical persons only having a cajmcity to take them, 
 and ecclesiastical courts only having cognizance of them.' 
 Oiiginally, moreover, though every man was obliged to 
 pay tithes in general, yet he might give them to what 
 priests he pleased, which were called arbitrary consecration 
 of tithes, or he might pay them into the hands of the 
 bishop, who distributed among his diocesan clergy the 
 revenues of the Church, which were then in common ; but 
 when dioceses were divided into parishes, the period of 
 which cannot be ascertained with any decree of certainty, 
 the tithes of each parish were allotted to its own particular 
 minister, first by common consent, or by the appointment 
 of lords of manors ; and afterwards, as Blackstone says, by 
 the written law of the land."" But whether by statute or by 
 common law (for opinions vary iipon the subject) the right 
 of the parsons of the several parishes to tithes, and to de- 
 mand and enforce the render of them, became part of the 
 general law of the land.' 
 
 f 2 Black. Com. 26. e 3 Cruise's Dig. 37. i' ]5acon's Abr. Tithes. 
 
 ' II Kep. 13 ; 4 Leon. 47. k Com. b. ii. cli. 3. 
 
 ' Alloriieu General v. Lord Eardleii, 8 Price, 39; Sheltord's Law of Tithes, 
 In the present tieatise it is proposed altogether to avoid entering upon wiiat 
 may now be called the old law of tithes, although at the present time, and per- 
 haps for a very limited lime to come, matters connected with those subjects 
 may still engage the attention of the courts. By the old law, we mean that of
 
 294 OF TITHES AND TITHE RENT-CHARGE, 
 
 It would be much too wide a deviation from the general 
 purpose of this work, if we were to enter further into the 
 history of the origin of tithes, or upon the general subject 
 of appropriation, as it has little or perhaps no bearing upon 
 the present state of the law. 
 Exemptions Formerly it might have been laid down as a general 
 
 from tithe for- jg^^^y^ ^]^j^^ q\\ \.^h^^ Jq this country in the hands of laymen 
 "'^■^ y- were subject to the payment of tithes, until special ex- 
 
 emption could be shown, so much so, that by the old law 
 no layman was allowed to prescribe generally that his 
 lands were exempt from payment of tithes ; '" for without 
 special matter shown, it could not be intended that he had 
 any lawful discharge. And even though non-payment of 
 tithes from time immemorial could have been proved, the 
 maxim nullum tempus occur rit ecclesice prevailed, so that 
 no evidence of length of possession would have been re- 
 garded, for it was said the possession must have been un- 
 Ariangemeni of lawful." To this rule there would now be many exceptions, 
 the subject. j^^^ f^y ^j-jg purposes of practical arrangement, and more 
 easy consideration of the subject, it will be best to reverse 
 the rule, and to state that all lands in this country, with 
 Discharge of the exceptions hereafter mentioned, are freed and dis- 
 ail lands from charged from the actual render of tithes by some one of 
 "'''"• the following methods : 
 
 1 . By non-payment of any tithe for a certain length of 
 time. 
 
 2. By having formerly been parcel of the possessions of 
 a privileged order, or as having been formerly or being 
 now the property of ecclesiastical persons or bodies, or of 
 the crown. 
 
 3. By compositions real. 
 
 4. By private acts of parliament in individual cases. 
 
 5. By some established modus declmandl. 
 
 6. By rent-charge in lieu thereof 
 
 7. By lands given in lieu thereof. 
 
 the various things wiiich «cre or were not liiiieable, and of the manner in 
 which, and the lime when, liie tithes of diffi rent kinds of produce were payable. 
 '1 he complicated decisions on these subjects might be made to fill a iiiiml)er df 
 voliiines, and no very condensed account of them wouM be inklligible. As 
 the sulijecl therefore will soon have lost all itsinteicst, it has been thought best 
 to omit it altogclher. 
 
 '" lilack. Com. b. ii. eh. 3. " Scolt v. Aireii, 2 K. &: Y. 342.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 295 
 
 Section 1. 
 
 Discharge of Lands from Payment of Tithes hij Non-pay- 
 ment for a certain Length of Time. 
 
 The non-payment of tithes, even though from time im- 
 memorial, (which, in otlicr cases, would be sufficient to 
 establish a valid custom), was not formerly, as we have 
 already observed, any valid ground of exemption in this 
 case. But its validity as a ground of exemption, is now in claims by 
 fully established by, and consequently entirely depending laymen and 
 on,' the statute of the 2 & 3 Will. IV. c. 100, by which it '^Z^^iT 
 has been declared, that all prescriptions and claims of ° 
 or to any exemption from or discharge of tithes, shall, 
 in all claims for tithes by the king or any lay persons, not 
 being corporations sole, or by any bod};- corporate, be 
 deemed good and vahd in law, upon evidence showing, in 
 cases of claim to exemption or discharge, the enjoyment 
 of the land without payment or render of tithes, money, 
 or other matter in lieu thereof, for the full period of thirty 
 years next before the time of such demand, unless the 
 render or payment of tithes or of money, or other matter 
 in lieu thereof, shall be shown to have taken place at some 
 time prior to such thirty years, or unless it shall be proved 
 that such enjoyment was had by some consent or agree- 
 ment expressly made or given for that purpose by deed or 
 writing ; and if such proof in support of the claim shall be 
 extended to the full period of sixty years next before the 
 time of such demand, in such cases the claim shall be 
 deemed absolute and indefeasible, unless it shall be proved 
 that such enjoyment was had by some consent or agree- 
 ment expressly made or given for that purpose by deed or 
 writing. And where the render of tithes in kind shall be !„ claims by 
 demanded by any archbishop, bishop, dean, prebendary, corporaiions 
 parson, vicar, master of hospital, or other corporation sole, ^°'"' 
 whether spiritual or temporal, then every such prescription 
 or claim shall be valid and indefeasible, upon evidence 
 showing such enjoyment had as is hereinbefore mentioned 
 for and during the whole time that two persons in succes- 
 sion shall have held the office or benefice, in respect 
 whereof such render of tithes in kind shall be claimed, 
 and for not less than three years after the appointment and 
 institution or induction of a third person thereto, provided 
 that if the whole time of the holding of such two persons 
 shall be less than sixty years, then it shall be necessary to 
 show such enjoyment had not only during the whole of 
 such time, but also during such further number of years,
 
 296 OF TITHES AND TITHE RENT-CHARGE. 
 
 either before or after sucli time, or partly before and partly 
 
 after, as shall with such time be sufficient to make up the 
 
 full period of sixty years; and also for and during the 
 
 further period of three years after the appointment and 
 
 institution or induction of a third person to the same office 
 
 or benefice, unless it shall be proved that such enjoyment 
 
 was had by some consent or agreement expressly made or 
 
 given for that purpose by deed or writing. 
 
 Commencement Tins act, however, was not to have any operation in 
 
 of the operation ^yj^^ yi- actions already commenced at the time of its pass- 
 
 of the act. .^^^^ ^^, which miglit be commenced within one year after 
 
 the session of parliament in which it was passed," which 
 
 ended on the 16th of August, 1832. 
 
 The consequence of this was that a great number of 
 suits, amounting, it is said, to about 300, were immediately 
 instituted by parties claiming tithes, in order that they 
 might not be debarred by the cfiects of the act, but avail 
 themselves of the year of grace allowed them. It was, 
 therefore, considered advisable to enable the defendants in 
 this number of suits to cause all further proceedings to be 
 for a time suspended ; and it was ])r()vided by another act 
 of parhament passed in the 4 k 5 Will. IV., that such de- 
 fendants might, with the consent of the plaintiff, j^ay the 
 amount of the taxed costs and expenses, which might have 
 been incmred by the plaintiffs, into the Bank of England, 
 to the credit of such action or suit; and that when that 
 should have been done, all I'urther proceedings in such 
 actions or suits should be stayed, luitil the end of the next 
 session of parliament, which would be about one year from 
 that time. And that at the end of the next session, the 
 j>laintiirs in the actions or suits which hatl been so stayed 
 n)ight give notice to the defendants of tluir intention to 
 proceed, and i)roceed accordingly ; and that then after such 
 notice given, tlu; (h^fendanfs should be entitled to receive 
 out of court tlu' sums which they had so previously paid 
 in.'' If the plaintiif acceptetl the costs, and took th<?m out 
 of court, which he was empowered to do, all lurthcr |no- 
 ceedings were to be lor ever abandoned.' 
 Kxccpiion^ from Another exception from the o|)eration (ti' the above sta- 
 opcrdiionofaci. tutc is, wIkh! the lands, for which exemption by nonpay- 
 nu.'ut is chiiincd, arc or have been held or oeeui)ied by any 
 j)erson who woidd have been entitled to tlu; tithes tliereof; 
 or by the lessee or sublessee of any su.h person, in such 
 way as that the right to the tithes would have l)(;en during 
 any time iu the occuj)ier thereof, or in the jjcrson entitled 
 " Sect. 3. I' 4 ^ 5 W ill. -J. c, m, ss. 1, '2. '1 Sect. 3.
 
 ecclesiastical. 
 
 DISCHAUGE OF LANDS FROM PAYMENT OF TITHES. *297 
 
 U) the rent tliercol", in \vliic:li case the whole ol" sucli lime 
 is excluded in tlic computation of time bel'oie directed.' 
 
 The act alscj C(;ntuius the usual e.\cej)tion in favour of 
 j)ersons under legal disability, by declaring that the time, 
 during which any person otherwise caj)able of resisting 
 any claim should be inider such disability, or during which 
 any action or suit should have been ])cnding and diligently 
 prosecuted until abated by the death of a party, should be 
 excluded from the computation ; but these excej)tions are 
 not admissible in cases where it has been before declared 
 that the right or claim to nonpayment is to be absolute and 
 indefeasible.^ 
 
 In the absence, therefore, of any document in writing Gcucr.il mie in 
 showing the nonpayment to have been by consent, the case of persons 
 exemption is in all cases, without exception, absolute and 
 indefeasible, as against jiersons ecclesiastical, if it can be 
 j)roved that no payment has been made during the period 
 of two incumbencies and the first three years of a third, 
 supposing the period of the two incumbencies together to 
 amount to sixty years; but if it does not, then if it can be 
 jiroved that no payment has lieen made for sixty years, 
 and the first three years of a third incumbency, or rather, 
 it seems, it might have been said of a fourth, fifth, or any 
 other incumbency ; for though there had been twenty 
 incumbents within the space of sixty years, the claim might 
 still be prosecuted within three years after the induction 
 of the tw'enty-first. 
 
 This section had been written before the appearance of 
 the case of Salkeld v. Johnston,^ decided by the VHce- 
 Chancellor Wigram in the early part of 1842. The efi'ect 
 of that decision is, that the above statute does not create 
 any new ground of exemption, or destroy the right to tithes 
 in cases where the nonpayment or nonrendcr of tithes from 
 the time of legal memory would, before the statute, have 
 established no exemption. From that judgment, however, 
 there has been an appeal, which is not yet decided; for 
 which reason it appears best to leave what had been said 
 on the subject unaltered, especially as it is very probable 
 that if the case of Salheld v. Johnston should be confirmed, 
 some fresh legislative enactment would be passed to carry 
 out the obvious intention of the previous statute. That the 
 intention of that statute was to create a new ground of 
 exemption, however insufficiently it may have been ex- 
 pressed, can scarcely be doubted. 
 
 r Sect. 5. * Sect. 6. ' I Hare, 196.
 
 298 OF TITHES AND TITHE RENT-CHARGE. 
 
 Section 2. 
 
 Discharge of Lands from Payment of Tithes hy having 
 
 formerly been Parcel of the Possessions of a Privileged 
 
 Order, or as having been formerly or being noio the 
 
 Property of Ecclesiastical Persons or Bodies, or of the 
 
 Crown. 
 
 Effect of the last It will be obvious that the mode of exemption last men- 
 mode of excep- tioned, unless the case of Salkeld v. Johnston becomes law, 
 presel^°" ' ^ ^^ ^^ ^^ were a major proposition, which will include almost 
 all the cases which might be mentioned under the present 
 head ; for that gives exemption to all lands whatsoever, 
 after nonpayment of tithes for the time there mentioned. 
 The present includes a variety of cases, where the nonpay- 
 ment of tithes for a much longer period than there men- 
 tioned is in each case admitted and undoubted ; and in 
 most cases it would be easier and more simple to insist on 
 the exemption by statute ; for in the course of evidence 
 that would necessarily be proved as a part only of what 
 must be shown by those who claim exemption under this 
 head. A great part, therefore, of what would formerly 
 have been imjiortant under this head, is now become matter 
 of history, rather than of actual law, and may consequently 
 be passed over briefly. 
 Lands parcel of All abbots and priors, and other chief monks, were ori- 
 il.e possessions ginally subject to tlie payment of tithes, as well as other 
 oder!"^''^^^*^ persons, until Pope Paschal the Second exempted gene- 
 rally the religious orders from the payment of tithes in 
 respect of lands in their resjicctive actual possession; oi", 
 as it was expiessed, quamdiu jn'opriis manibus cxcoluntur ^^ 
 The three j)rivileged orders are Cistercians, Templars and 
 Hos|)itallers, which, on account of their order, have the 
 privilcue of bcino discharucd fiom the tithes of lands in 
 their own occupation.'' The privilege extends only to such 
 lands as these orders were possessed of at the time of the 
 last general council of Lateran, in the seventeenth year of 
 King John, a. d. 1215, when the privilege was strictly 
 limited to such lands as were in their possession before the 
 holding of that council. The (;xemj)tion granted by the 
 council was allowed by the general consent of the realm 
 as part of the law of the land ;-^ but the Cistercians endea- 
 voured to evade this decree of the council by purchasing 
 bulls of e\eiMj)tioii for their lands in tiie occupation of (heir 
 tenants or farmers, until by stat. 2 lien. IV. c. 4, the Cis- 
 
 » 2 Ilcp. 44 b, « roller, 171,3d ed. 
 
 y 2 Inst. 651 ; Utaveley v. UUilhome, Hard. 101 ; 1 Wood, 24.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 299 
 
 tercians and all other orders purchasing or putting such 
 bulls into execution incurred a praemunire/ The order of 
 Templars was dissolved by stat. 17 Edw. II. st. 1, by which 
 their lands were given to the prior of St. John of Jerusa- 
 lem, so that long prior to the time of dissolution of the 
 monasteries the Cistercians and Hosj)itallers were the only 
 privileged orders. 
 
 An exemption from tithes on the ground of the lands Must be shown 
 havino' belonired to one of the privileged orders, did not to have been 
 
 i. • X- 1 i J.1 i. r II such prior to Ihe 
 
 rest on prescription ; but the owner must lormerly have council of La- 
 shown satisfactorily that the monastery was seised of the teran, and at the 
 lands before the above mentioned council of Lateran, and ^lissolution of 
 also at the time of the dissolution; and in a case where 
 the owner of lands established the former, but failed to 
 establish the latter fact, the court decreed an account of 
 tithes.'* 
 
 The exemptions from tithes enjoyed by ecclesiastical 
 bodies would have ceased upon their dissolution, and the 
 lands would again have become subject to tithes, had it 
 not been enacted at the time of their dissolution,'' that all 
 persons who should come to the possession of the lands 
 of an abbey then dissolved, should hold them free and dis- 
 charged from tithe, in as large and ample a manner as the 
 abbeys formerly held them ; from which origin, Blackstone 
 says,*" have sprung all the lands which, being in lay hands, 
 do at present claim to be tithe free. 
 
 It must be observed, however, that this statute was no 
 discharge of lands from tithe, except where they had been 
 already discharged in the hands of the religious houses, 
 and that this was by no means universally the case ; for 
 none of these religious persons could be exempted from 
 payment of tithes but by his order, the pope's bull, com- 
 position real, prescription, or unity of possession. Never- what would be 
 theless, as they might have been exempted by any of these sufficient pre- 
 means, it has been held as a settled rule of common law, nbbe^y'hindrhad 
 that persons holding lands which were formerly the pro- been exempt, 
 perty of these religious houses might prescribe in non deci- 
 mando,'^ that is, to be fi'ee from the payment of tithes as 
 respects such lands, without being required to give any 
 further proof of the origin of the discharge than usage and 
 enjoyment from time immemorial ; which indeed is only 
 in conformity with the general rule of our common law, 
 that if a custom, which might have had a legal origin, shall 
 be proved to have existed from time immemorial, the legal 
 
 ^ 2 Inst. 632 ; Degge, 410, 411. 
 
 * Norton v. Hammond, 1 Younge & Jervis, 94. 
 
 " 31 Hen. 8, c. 13. <= 2 Black. Com. 32. ^' Ibid.
 
 300 OF TITHES AND TITHE REIST-CHARGE. 
 
 origin may be presumed : and, a fortiori, this would have 
 been the case if" the hinds were still in the hands ol" eccle- 
 siastical corporations, sole or aggregate, as bishops, deans 
 and cha])ters, parsons or vicars, or of the king, Avho for 
 this purpose is considered in his ecclesiastical character. 
 
 In order to support this prescription, three things nmst 
 be clearly shown; 1st, that the lands were abbey lands; 
 2nd, that they were held by the abbey at the time of its 
 dissolution ; and, 3rd, that they have been immemorially 
 discharged from tithes;" under which circumstances the 
 presumption is allowed that they had been properly dis- 
 charged by some one of the methods before mentioned, 
 but that the proofs or records of these discharges have 
 been lost. Where, as it has sometimes happened, there 
 were no ancient documents to support a presumption of 
 this kind, it was necessary to carry back the modern evi- 
 dence a considerable way ; and it was required that it 
 should be so clear and uniform as to satisfy the court that, 
 in acting upon the presumption, they were suj)porting an 
 usage of considerable antiquity. And it seems, from later 
 cases, that it might have been laid down generally, that if 
 lands could be proved to have been exempt beyond time 
 of memory, and that exemption might in any way have had 
 a legal oriuin, such exemption would have been affirmed.' 
 It will be obvious that in all these cases there can very 
 seldom be direct evidence of the exemption ol lands while 
 they were part of the possessions of a monastery or privi- 
 leged order, and it having been established that the pre- 
 sumptive evidence before mentioned was sulHcicnt, all the 
 cases have been decided upon that ground ; and the prin- 
 ciple is so abundantly clear, that it would aj)pear useless 
 to mention any of the great number of cases decided uj)on 
 their own |)articular circumstances, but adding nothing 
 important to the general rule. 
 Clown lands The king, in his ecclesiastical character, may not only 
 
 |)t from prescribe to be discharged from payment of tithes, but he 
 is cai)able of receiving ]iayment of tithes ; so that in those 
 ])laces which are not within any parisii, as in fort^sts and 
 the like, the king is entitled to the tithes; and this point 
 was resolved in parliament in the 5th lulward III. in a 
 suit liefwccn Ihe crown and the Hishoj) of Carlisle, who 
 claiuKjd the titlics of tin- forest of Inglewood/ And if the 
 lands are within a forest, and also within a parish, and in 
 the hands of the king, they do not pay tithes, neither do 
 
 « Prilchelt v. llmeijUornc, 1 V. 6t J. 149. 
 
 f Monk V. Ilnskifsnii, 1 Sim. 2H0. 
 
 9 i Hep. 44 a; 2 Insl. G47 ; I Koll. Ab. G57 ; Cruise's Dig. lit. xxii. 
 
 t'xein 
 lillics
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 301 
 
 tliey pay tithes in tlie hands of the king's lessee; but that 15ut not in il»e 
 privileti'e does not extend to his I'eoH'ee, so that, if he iirant ''^''.'^'^ "'^'^ 
 such lands to a subject, they would immediately become ^ 
 liable to the payment of tithe. 
 
 Spiritual persons or corporations may prescribe to be Spiritual corpo- 
 discharffed «"enerally, so that no tithe shall be paid of '■^^^'Of's /"^y 
 
 •/ ' » D re son lie i ii Jtoii 
 
 their lands, nor any recompence for them ; but without iiecinmndo. 
 such prescription they would not be discharged generally. 
 It is a maxim of law, that ecclesia decimas non solvit cc- 
 clesice ; and a spiritual ])erson may prescribe in non deci- 
 mando for himself, his i'armers and tenants, and also i'or 
 his copyholders, for It is to be presumed that the spiritual 
 person has greater fines and rents.'' 
 
 So the rector or parson of a parish is not liable to the Rectors and 
 pavment of tithes to the vicar, nor the vicar to the rector, ^'c-'^f^ of the 
 
 K ^^ ^ . ir ••! same cliurcli 
 
 And a lay rector is also exempted trom paying tithes to areexemj)t. 
 the vicar out of the glebe so long as he holds it in his own 
 hands ; but upon the death of the spiritual or lay rector, 
 or of the vicar, his executor is liable to the payment of 
 tithes out of the growing crop. But this rule, as to non- Exceptions to 
 payment of tithes between a rector and vicar, merely ap- ''"^ '"'^• 
 plies to the case of a rector and vicar of the same chuicii 
 and parish, where the ecclesia would be paying tithes to 
 itself; as w here the rector or vicar is in possession of glebe, 
 neither shall pay tithe to the other in respect of such 
 occupation ; in all other cases ecclesiastical persons must 
 prescribe in non dcciniando, and prove their prescrijttion 
 as we have already mentioned ;' but if such prescription or 
 exemption is not proved, a parson or vicar having glebe in 
 any other parish than that in which the church is situated, 
 to which it belongs, must pay tithe to the incumbent of 
 that parish wherein the glebe lies,"" for that sort of privi- 
 lege, as was said by Richards, C. B., is confined to clergy 
 of the same parish.' 
 
 It has been constantly held that land having no dis- Tlie exemption 
 charo-e in itself, that is, for which no prescription in non >s only valul 
 
 & ' ' . . . * ' , \vtiilc llie lands 
 
 decimando could be established, is discharged only in the arc in the hanJs 
 hands of the ecclesiastical owner, under the maxim ecclesia of the ecdesias- 
 decimas non solvit ecclesifc, a maxim which is binding so *"^''' owner, 
 long as the land is actually held by an ecclesiastic; but if 
 it is transferred into the hands of laymen, it becomes liable. 
 It was therefore held that the lessee of Trinity College, 
 Cambridge, who occupied glebe land, was not exem]it from 
 the payment of tithe to the vicar; for the privilege in such 
 
 '■ See 2 Eagle on Tithes, 227, 228; Cio. Eliz. 47!) ; Wals. 513. 
 ' 1 Rolls. Abr. G5;L k Wats. CI. h. 505. 
 
 ' ICiirJcn nf St, F(ihI\ V. The Peon, 4 Price, (J5.
 
 302 OF TITHES AND TITHE RENT-CHARGE. 
 
 cases, being only personal, does not travel from the parson 
 to the lay lessee.'" 
 Lands vested in In the maxiui ecclesia decimas non solvit ecclesia, the 
 churchwardens word ecclcsia signifies ecclesiastical persons and bodies 
 not exempt. only, and not the fabric of the church ; so that lands vested 
 in the churchwardens, and settled for the repairs of the 
 church, are not exempt from payment of tithes." 
 Effect of com- It remains to be seen in what manner the lands which 
 mutation to ]^y ^^y q^ ^|^g meaiis mentioned under this head are ex- 
 uponVontlnf^ent empted from tithes are to continue exempt from the pay- 
 liability to ment of tithe rent-charge. For it will have been observed 
 ^''''^- that, in many of the cases here mentioned, the exemption 
 
 is not absolute, but contingent upon particular circum- 
 stances ; the exemption from tithe rent-charge therefore 
 will be contingent in the same manner. Thus as glebe, 
 for example, under ordinary circumstances, is liable to 
 tithe w^henever it is not in the hands of the owner, so it 
 must be subject to a contingent rent-charge after the tithe 
 of a parish has been commuted. 
 
 In the form, therefore, of every parochial agreement for 
 a voluntary commutation of tithes, there must be set forth 
 what lands of the parish are or have been exempt from 
 the payment of any and what tithes, and under what cir- 
 cumstances." The tithe rent-charge upon these lands must 
 be valued in the manner provided for in compulsory agree- 
 ments, in which it is directed that the tithes of these lands, 
 since they cannot be valued according to the ordinary me- 
 thod prescribed for computing the value of tithes in general, 
 are to be valued according to the average value of the tithes 
 of lands of a like description and quality in that parish and 
 the neighbouring parishes, or as near thereto as the cir- 
 cumstances of each case may in the judgment of the com- 
 missioners require, and the value so estimated is to be 
 added to the value of the other tithes of the parish.'' In 
 the apportionment of the rent-charge among the different 
 owners, the amount so fixed for each of such lands, if they 
 liave been included in the valuation, will be apportioned 
 on them respectively, but will remain as it were dormant, 
 and will only become payable under the circumstances 
 under which we have before seen the lands would have 
 become liublc to tithe; so that such lands may in each 
 case hiivc the full licnelit of any exemption from or non- 
 liability to tithes reliiting to them; and so that where any 
 lands were exempted from tithes while in tlic occupation 
 of the owner, by reason of being glebe or heretofore parcel 
 
 '" Lnn-r/rn V. Flack, 2 Ilagg. Cons. K. 308. " 1 Roll. Abr. 653. 
 
 » 6& 7 Will. 4, c. 71,6. 21. i' Sect. 43.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 303 
 
 of the possessions of any privileged order, the same lands 
 shall in like manner be exempted from the payment of 
 the rent-charge apportioned on them whilst in the occu- 
 pation of the owner/' 
 
 Section 3. 
 
 Discharye of Lands from Payment of Tithes hy 
 Compusitiojis Real. 
 
 A real composition is where an agreement is made be- Nature of a real 
 tween the owner of lands and the parson or vicar, with the composiiion. 
 consent of the patron and ordinary, that his lands shall in 
 future be freed from the payment of all tithes, in considera- 
 tion of some land, or other real recompence, given to the 
 parson or vicar in lieu and satisfaction of such tithe/ This 
 kind of composition was formerly permitted because it was 
 supposed that the clergy would be no losers by it ; as the 
 consent of the ordinary, whose duty it was to take care of 
 the church in general, and of the patron, whose interest it 
 was to protect that particular church, were both required 
 to render the composition effectual. And such consent 
 was in some cases presumed : as where evidence was given 
 that the deed establishing the composition real once ex- 
 isted, but the deed could not be found, it was presumed 
 that the necessary parties had executed it, and that the 
 proper consent had been given.^ In this manner have 
 arisen all such compositions as exist at this day by force 
 of the common law. But experience showing that even Restrictions as 
 this caution was ineftectual, and the possessions of the i°- 
 church being by this and other means every day dimi- 
 nished, the disabling statute 13 Eliz. c. 10, was passed, by 
 which it was enacted, that no parson or vicar should make 
 any conveyance of any lands, tithes, tenements, or other 
 hereditaments, being parcel of the possessions of their 
 churches,to any persons, except leases for twenty-one years, 
 or three lives.* And thouoh there have been several de- 
 crees made by courts of equity to confirm compositions 
 made with the consent of the parson, patron, and ordinary, 
 subsequent to the stat. 13 Eliz., still they were not held to 
 be binding on the succeeding incumbents, even where 
 clearly for their benefit; of which it is supposed the follow- 
 ing case is the strongest instance that could be adduced. 
 
 To a rector's bill against occupiers of lands for an account 
 
 4 Sect. 71. '•2 lust. 490. 
 
 ' Saicbridge v. Benton, 2 E. & Y. 400 ; Thorpe v. Maltingleii, 3 Y. & C. 1 . 
 
 ' Cruise, Dig. B. Tithe, 22} Black. Cora. b. ii. c. 3.
 
 304 OF TITHES AND TITHE RENT-CHARGE. 
 
 of tithes, the defendants by their answer set up an ancient 
 agreement between a former rector of the rectory, and the 
 then owner of the lands occupied by the defendants, and 
 w ho was also the patron of the living ; by which agreement 
 certain lands enjoyed by the present rector were allotted to 
 the rector in exchange for his glebe lands, which were then 
 dispei'sed in the common fields, and a rent-charge of 40Z. 
 a year was granted to the rector ; in consideration of wliicli 
 exchange and annuity, the lands occupied by the defend- 
 ants were discharged from tithes. The defendants proved 
 that the agreement was not only approved by the then 
 bishop of the diocese, but had been established by a decree 
 of the Court of Chancery, and had been acted upon for 
 upwards of a century ; and that the arrangement was not 
 only beneficial to the rector at the time when it was entered 
 into, but that it was so with reference to tlie probable future 
 increase in the value of the tithes; and that it was advan- 
 tageous to the plaintift" at the time of the filing of the bill : 
 it was held, however, that the agreement was absolutely 
 void under the disabling statutes; and that, being void, the 
 decree of the Court of Chancery could not give it validity; 
 and an account of the tithes was decreed." 
 If confirmed by But now, since the 9th of August, 1832, every compo- 
 courisofcquiiy gj^j^,^ f^j, tithcs whicli uuiv liavc been made or confirmed 
 are now valid. , , , ,. '^ <• • • i-i i i • 
 
 by tlie decree of any court ot equity ni Lingland, m a suit 
 
 to which the ordinary, patron, and incumbent were parties, 
 and which has not been since set aside, abandoned, or de- 
 parted from, is, by the stat. 2 & 3 Will. IV. c. 100, confirmed 
 and made valid in law, and consequently binding upon all 
 succeediiiLr incumbents. 
 
 It was before observed that the operation of this act was 
 suspended for a year after it had been passed, and the case 
 last cited was one where the rector had availed himself of 
 that time to file his bill ; it is precisely (Uie of those cases 
 to which the last-mentioned provision of that act applies ; 
 and, as it was said by Alderson, B., in giving judgment, 
 iheic is no question that such an agr(>('ment may nvic be 
 \alid under Lord Teiiterdcirs Act. 
 
 A composition real, or grant of titlics made by a vicar, 
 who was originallv endowed with the tithes, to the lord of 
 a manor, in consideiation of his finding a i)ri(>st to ofliciale 
 in a c]ia|)cl, and reiuhuing certain benefits to the vicar, in 
 tlie year li33f), which was previously to the stat.32ITen.VlIf. 
 ('. 7, giving laymen a right lo recover tithes, and supported 
 by evidence of coiistaiil peiceplioii and eonqjliance with 
 the conditions f)n which it was made, was lu^id (o be valid, 
 " Tliiirpr V, Mittliii'itp}!, 3 Y. &: C. I.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 305 
 
 tliough it was not proved to Jiave been made with the 
 consent of tlie patron and ordinary, the court presuming-, 
 from the particuhxr circumstances of tlie case, that all the 
 necessary consents had been given/ 
 
 The statute only refers to cases of real compositions Compositions 
 where there has been a decree of a court of equity; where [^^i where there 
 that has not been the case, in order to establish the vali- cree oT" court" 
 dity, evidence must be given of such deed or agreement in of equity, 
 writing between all the proper parties, previous to the stat. 
 13 Eliz. c. 10, and it would not be sufficient to prove that 
 the ])ayment in lien of tithes commenced before that time, 
 founded on an agreement which might have been by parol, 
 and merely personal between the rector and the j)arish- 
 ioners only.^ It is not absolutely necessary to produce the 
 deed or agreement itself; but, if not produced, the evidence 
 must prove that it once existed ; and where the evidence Evidence of. 
 rests on re])utation, such reputation must be distinctly of 
 payments having been made under such a deed ; and that 
 those payments had their origin under an instrument made 
 within time of memory,'' otherwise it would only be evi- 
 dence of a prescriptive payment; and usage in such a case 
 is not sufficient ; for though that is in general a ground for 
 presuming deeds, even against the crown, yet in the par- 
 ticular instance of composition for tithes, it is settled, that 
 where the deed cannot be produced, some evidence must 
 be given referring to the deed, or showing that it did exist, 
 independent of mere usage; and the reason why this has 
 been so held is stated to be, that, if it were otherwise, the ,; 
 church would be defrauded, and every bad modus turned 
 into a good composition.'' The presuming a deed from 
 long usage is an invention, for the sake of jjeace, where 
 there has been a lon<>- exercise of an adverse rioht. For 
 nistance, it cannot be supposed that any man would sufi'er 
 his neighbour to obstruct the light of his windows, or to 
 use a way with carts or carriages over his lands for twenty 
 years, unless some agreement has been made between the 
 parties to that effi^ct, of which the usage is evidence. But 
 with respect to a compensation for tithes, the same reasoii 
 does not obtain, because temporary agreements are made 
 and continued for the convenience of parties during a suc- 
 cession of incumbents. There is no exercise of an adverse 
 right, which is generally deemed necessary to raise the 
 presumption;'' and indeed if such presmnption were raised 
 
 " liidley v. Storeij, 3 E. & Y. 918. y Beuiiell v. Skeffiiigton, 4 Price, 143. 
 
 '• Hawes v.Sa-ain, 2 Cox, 179. 
 
 '>■ Heathcote V. Mniiiwariiig, 3 Br. C. C. 217 ; 2 E. & Y. 366. 
 
 ^ Siielford on Tithes, 169. 
 
 X
 
 306 OF TITHES AND TITHE RENT-CHARGE. 
 
 from an usage which is only adverse to particular incum- 
 bents, it would directly contravene the maxim, Nullum 
 tempus occurrit ecclesia, which, previously to Lord Ten- 
 terden's Act, was always held to be good. 
 
 It may be inferred that clear proof of the possession, and 
 enjoyment of lands in lieu of tithe, would be received as 
 presumptive evidence of a composition real : as in a case*^ 
 where a real composition of five acres, called tithe acres, in 
 lieu of the tithes of a meadow of 200 acres, was set up, 
 Lord Hardwicke said, it is very reasonable to suppose 
 that the denomination tithe acres arose from the five acres 
 having been set apart from the rest in lieu of tithes. But 
 this, it must be remembered, is only another mode of proof; 
 and does not alter the necessity of proving that it existed 
 previous to the stat. 13 Eliz. ; for as it was said in another 
 case,'' where this mode of proof was attempted, "If any 
 conveyance had been made, it might have been subsequent 
 to that statute, and therefore not bindino;." 
 Distinctions m From what has been already said, it will be observed 
 or°of a cora° "^ ^^^^^ there must sometimes be much difficulty in distin- 
 position real. guishing between the case of a composition real and a 
 modus ; for, as it has been observed, they are the same 
 things in their nature and substance. A composition real, 
 however, must have had its origin within the time of legal 
 memory ; a modus must have existed from time immemo- 
 rial. A composition real must be proved by a deed, or 
 evidence of the existence of a deed ; a modus is proved 
 ^ from immemorial usage only.*" And now, since the recent 
 statutes, in order that land should be discharged from tlie 
 payment of tithes, by a composition real in lieu of them, it 
 seems necessary that a deed or agreement should be proved 
 of such a kind, and in such a manner, as we have men- 
 tioned, existing previous to the 13 Eliz.; or that a decree 
 in Chancery should have been made, to which all proper 
 persons were parties, and which has not since been set 
 aside or departed from. If neither of these circumstances 
 could be proved, it seems that the statute 2 & 3 Will. IV. 
 c. 100, providing for the exemption of lands from tithes by 
 noiipuyment, would not be applicable to cases where the 
 nonpayment had been on account of a composition real, 
 for whatever length of time it might have existed ; for as 
 that would have been, and must be |)roved to hav(^ been, 
 by (Iced or iigrcement, it would b(> one of the cases ex- 
 cepted from the operation of that statute, since it would 
 be proved that the (exemption was enjoyed by consent or 
 
 <: Snwhridf^e V lieiilon, ante. '' Chat field v, I'rym, 1 Price, 253. 
 
 •^Shelford Tillies, 1G8.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 307 
 
 agreement, expressly made or given, for that purpose, by 
 deed or writing.' 
 
 Section 4. 
 
 Discharge of Lands from Payment of Tithes hy 'private 
 Acts of Parliament in particular Cases. 
 
 Lands may be, and frequently have been, permanently indosure acts, 
 exempted from the payment of all tithes by special acts of 
 parliament, which of course override all general law, and 
 depend entirely upon the circumstances of each particular 
 case. Thus in many of the modern inclosure acts, the 
 lands inclosed are for ever freed and discharged from the 
 payment of all tithes, and a portion of land is allotted to 
 the spiritual or lay rector, or to the vicar, their successors 
 or heirs, as the case may be, in lieu of them.''' 
 
 Where common lands had been thus inclosed and al- 
 lotted, and a portion had been allotted to an estate which 
 was clearly tithe-free, i. e. of which the owner had pur- 
 chased the tithes from the lay impropriator, the land 
 allotted to him was held to be tithe-free also ; and that 
 the lay impropriator who had sold the tithes of the estate, 
 could not be entitled to the tithes of land allotted to the 
 owner of that estate in lieu of a right of common which 
 was appurtenant by custom to the land ; for in this case 
 no tithe would have been payable by the owner of the 
 estate for his cattle feeding upon the common land before 
 the inclosure act, and that act could not create a right 
 which did not exist previously.'^ 
 
 In some other acts of this kind a corn-rent has been Com-rent sub- 
 substituted in the place of tithes, and several private acts stituted. 
 have been passed for the express purpose of conmruting 
 tithes for a corn-rent. 
 
 In pursuance of an order of the House of Commons in Number of pri- 
 December, 1831, a return was made of the several parishes vate acts passed 
 in England and Wales, in which commutation of the whole [""^t^^f"!^'"^ 
 
 11 • 1 n 1 -111! 1-1 'ands trom 
 
 great or small tithes or such parish had been authorised tithes. 
 under any act of parliament, distinguishing the cases in 
 which allotments had been assigned in lieu of such tithes 
 from those in which corn-rents had been made payable ; 
 and further specifying in each case whether the tithes so 
 commuted were the property of the clerical rectors, of 
 impropriators, or of vicars. This return contained a chro- 
 nological list of upwards of 2000 acts containing clauses 
 
 <" 2 & 3 VVill. 4, c. 100, s. 1 ; and see SalkeUl v. Johnson, ante, 
 s Cruise's Dig. tit. xxii. '' 5 13arn.& Aid. 22. 
 
 x2
 
 308 OF TITHES AND TITHE RENT-CHARGE. 
 
 for the commutation of tithes, from the year 1757, 
 30 Geo. II. to the year 1830, the end of the reign of 
 Geo. IV. The above return does not contain the im- 
 printed acts, nor about thirty inclosure acts not in the 
 collection of the House of Commons. A farther return 
 has been made from the inclosure and other private acts, 
 in which provisions are included for the commutation of 
 tithes, of the proportion in lands, yearly money payments, 
 and corn-rent allotted in lieu of tithe ; distinguishing the 
 old inclosures, the open field lands, and the commons, and 
 the proportions for tithe allotted in the case of each de- 
 scription of land.' Several of these private acts, however, 
 only aft'ect the tithes of lands intended to be inclosed, 
 and not the whole of the tithes of the parish.'' 
 
 All these commutations under acts of parliament are 
 not in any way altered or affected by the recent act for 
 commutation of tithe, but in each case still depend upon 
 the provisions in the particular acts under which they may 
 have been made, being expressly excepted from the oper- 
 ation of the general act.' 
 
 Section 5. 
 
 Discharge of Lands from Tithes hi/ some established 
 Modus Deciniandi. 
 
 Definition of a ^^ modus dccimandi, commonly called by the simple 
 modus. name of a modus only, is where there is by custom a par- 
 
 ticular manner of tithing allowed different from the general 
 law of taking tithes in kind, which are the actual tenth 
 part of the annual increase. This is sometimes a pecu- 
 niary compensation, as two pence an acre for the tithe of 
 land ; sometimes it is a compensation in work and laboin-, 
 as that the parson shall have only tlu; twelfth cock of 
 hav, and not the Iciitli, in consideration of the owner's 
 uiakiii"- if, f'oi- liiiii ; soiuctimes that in lieu of a lar<2;c 
 (|ii;iiifiiy of (tikIc or iinpcilrct titiie, the parson shall have 
 a less (piantify when arrived to greater mntnrity, as a 
 couple of low Is in lien of tithe eggs, and the like. Any 
 means, in short, whereljy the. general law of tithing is 
 altered, and a new method oi' taking them is introduced, 
 is called a modus dccimandi or special manner of tithing.'" 
 My lh(!Conunon Inw, a modus, lik(^ every other prescrij)- 
 tiv(! right, is supposed to have connnenciHl before ihe lime 
 
 ' Shclford on Tillies, 27G ; Scss. Taper, No. 408. 
 
 k S.-(! ihn .ilmvc return. ' 6 & 7 Will. A, c. 71 . s, 90. 
 
 '" 2 ni.K k. Com. 2H.
 
 DISCHARGE OF LANDS FROM I'AYMliNT OF TITHES. 309 
 
 of hii^iil memory, or tlic first year of the reign of Richard 
 
 the First, a. d. 1189; and if it could be proved either by 
 
 extrinsic evidence, or by intrinsic evidence appearing from 
 
 the modus itself, to have commenced subsequently to tiiat 
 
 time, it would be bad. A modus, moreover, is always What uill be 
 
 presumed to have conmieneed by deed, because the con- rfcsumcd as to. 
 
 sent and confirmation of the patron and ordinary must 
 
 have been necessary ; but unhke the case of a composition 
 
 real, it is unnecessary to prove the existence of the deed, 
 
 or that it ever did exist; but after the constant annual 
 
 payment in lieu of tithes from time immemorial, a legal 
 
 connnencement will be presumed," 
 
 The following are the leading rules which are essential Leading rules 
 
 to the establishing a valid modus, and with each and ^^ to validity of 
 
 „,.,p , ' , -i-ni^. modus, 
 
 every or which the modus must comply, or it will be 
 
 bad, carrying with it intrinsic evidence of its invalidity. 
 
 1. It must be certain and invariable. 
 
 2. The thinp- given in lieu of tithes must be beneficial 
 to the parson and not for the benefit of a third person only. 
 
 3. It must be something difi'erent from the thing com- 
 pounded for. 
 
 4. It must be a payment for that particular species of 
 tithe which it pretends to be in lieu of. 
 
 5. It must be in its nature as durable as the tithes dis- 
 cliarged by it. 
 
 6. It must not be rank." 
 
 1. It must be certain and invariable : that is, certainty Must be ceriain 
 of the recom})ence given, certainty of the thing for which a°^ invariable, 
 the recompence is given, and also certainty of the person 
 to whom it is given, are necessary ; and the payment of 
 different sums, or to different persons, will at once prove 
 it to be no modus ; for it must originally have been a com- 
 position by which something fixed and invariable must 
 have been determined on. An uncertain or fiuctuating 
 payment, or, as it is called in legal language, a desultory 
 or leaping modus, could never have been settled from time 
 immemorial;!' as, for example, a modus to })ay a tithe Examples, 
 penny or a penny per annum, or thereabouts, for every 
 acre of land, would be void,'' since a certain right cannot 
 be taken away by substituting a precarious compensation. 
 And so a modus of one penny j^ayable by every occupier 
 of land in lieu of the tithe of hay, is bad, for there may 
 be the same number of houses and inhabitants, but the 
 land may be at one time in the occupation of many per- 
 
 n 2 P. W. 573 ; Grant's case, 2 Mod. 321. 
 
 2 Black. Com. 30. P Toller, 184. 
 
 <l Cliapmaii v. Bloiisoii, 2 P. W. 572.
 
 310 OF TITHES AND TITHE RENT-CHARGE. 
 
 sons or of one. By turning all the land into meadow, 
 and consolidating it in one hand, the clergyman's income 
 would be reduced to a single penny.' Such uncertainty is 
 fatal to the validity of a modus, because it renders the 
 clergyman's income precarious, shifting and desultory ; 
 changing with every change of occupation ; depending 
 not on the cultivation, but upon the acts of parties whose 
 interest is opposite to his, and who by an easy contrivance 
 may reduce the amount of payment. And for the same 
 reason it has frequently been decided that moduses I'egu- 
 lated or computed by the value or improved yearly rent 
 of land, are void for uncertainty. The leading authority 
 upon this point is Startup v. Dodderidge,^ in which case it 
 was decided that a custom to pay two shilHngs in the pound 
 of the true improved yearly rent of land in lieu of the tithes 
 of it, is void, as well as a custom to pay a proportion of 
 the true improved yearly value ; and the reasons given 
 were, that the land might be unlet, and then no tithes 
 would be paid ; or it might be let at an undervalue, with 
 a tine, and then the ])arson would be cheated ; and in 
 case the lands remained unlet, there was no person to 
 determine the value. And in another case a custom to 
 pay one shilling in the pound, and so in proportion, upon 
 the yearly rent of lands let at their full value, and accord- 
 ing to the yearly value of such lands as are not let at the 
 full value, in lieu of hay, lambs and all other small tithes 
 arising on such lands, was held to be a void modus in law, 
 upon the ground of uncertainty, and because it was im- 
 possible that the parson could ascertain tlie value without 
 annual and constant suits.' 
 
 And as to certainty of the person to whom it is to be 
 paid, a modus alleged to be paya])le to the parson or vicar, 
 or to the j)arson or curate, wnuld be void by the same rule." 
 
 iiul a modus is not considered uncertain and variable 
 because it is not invariably payable ; for lands may some- 
 times, and in certain conditions, be liable to tithes ni kind, 
 and at other times to a modus ; and therefore where the 
 parson nuist alwiiys have either his nio(his or his tithes, 
 there is not such uncertainty as will avoid the modus; but 
 each party has alternately a benefit; as if there is a modus 
 for hay on a certain j)i('ce of land which is sown with 
 corn, the parson will Ijc cnlitled to tithes in kind of the 
 corn, but tlu; modus will revive when the land is again 
 cultivated with hay." 
 
 ' Trail. V. OtUiu, 1 liro. T. C. 49, '2nd edit. ; 3 Wood, 622 ; Gwill. 1066 ; 
 8K. & Y. 1218. 
 
 • 2 Ld. Haym. 11. 1 J.-JS ; 1 K. & V. 666. ' Hean v. Lee, 1 Wood, 537. 
 " WhciUUm V. Ihirvey, 2 E. & V. 60. '' Ihown'i caie, 1 E. & \. 203.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 31 1 
 
 2. Tlie thing given in lieu of tithes must be beneficial What isj^iven 
 to tlie j)arson, and not for the benefit uf third parties, inlieuof liilies 
 Thus a modus to find straw for the body of the church is fi'cbfio^the"^* 
 invalid ; for as the parson is not bound to find straw for parson, 
 such a purpose, it is no benefit to him that the straw is 
 
 found by any particular person. ^ But it is said, that if it 
 had been alleged that the straw was given to him, and 
 that he had bestowed it upon the church, or that he had 
 a seat in the body of the church, it would have been good.'- 
 But, perhaps, the best illustration of this rule is, that a 
 modus to repair the church, in discharge of tithes, is not 
 good, as being an advantage to the parish only ; but that 
 a modus to repair the chancel is good, as being what the 
 parson would otherwise be bound to do, and therefore a 
 benefit to him.'' And a custom that the parson shall enjoy 
 a right of pasturage or of common of pasture in certain 
 lands, and an annual sura in lieu of tithes, was held 
 good.'' 
 
 3. It must be something different from the thing com- Musi be differ- 
 pounded for. ^ ^SJl^Vm^ 
 
 It will not be presumed that any parson would bo7iu po'ufdgj'for. 
 fide liave agreed to receive a part in satisfaction of the 
 whole that was due to him, and a modus of less than what 
 is due of the same species of tithe is consequently bad ; 
 as, for example, one load of hay in lieu of all tithe of hay, 
 or a certain number of sheaves of corn in lieu of all tithes 
 of corn f but if the modus were to pay the tithes to the 
 parson in some manner more beneficial than would by 
 law be required, then, although the parishioner pays less 
 than the tenth, the objection would not apply .'^ And so 
 if the modus were some fixed and invariable amount of 
 produce, to be paid at all events, whether the parishioner 
 might happen to have in each year a greater or less quan- 
 tity, or even none of that species of produce, the objection 
 would not be applicable ; for this is, in fact, a case of the 
 same kind as last mentioned, where the tithe is paid in a 
 manner more beneficial to the parson than the law re- 
 quires, and it will be presumed, that according to the 
 original agreement it may have been so.* 
 
 As an example of this rule, it may be mentioned, that 
 although a modus to pay thirty eggs of the produce of a 
 
 y Scnreii v. Baker, Cro. Eliz. 276. ^ Ibid. 
 
 ^ Chapman v. Bishop of Lincoln, 2 E. & Y. 17 ; 1 Roll. Abr. 649; Toller, 
 197. 
 
 b Murlhwaite v. Pearce, 1 Wood, 234 ; Bowles v. Lord Arundel, I Wood, 508. 
 
 •^ Penroie v. Shepherd, 1 E. & Y. 448. 
 
 <! 2 Eagle on Tillies, 134 ; Austin v. Lucas, 1 E. & Y. 142. 
 
 e 2 Eagle on Tithes, 232,
 
 312 OF TITHES AND TITHE RENT-CHARGE. 
 
 man's own hens, in di^clrarge of all tithe of eggs, would 
 be void, as that number may not be the tithe of all his 
 eggs ; yet a modus to pay thirty eggs for the tithe of all 
 the eggs a man may happen to have, would be good ; for 
 whether he happened to have more or less, or even if he 
 had no hens, the modus would nevertheless be payable/ 
 Must be a pny- 4. It must be a payment for that particular species of 
 k'^^'f *^f ttl'^' tithes which it pretends to be in lieu of; as a modus of 
 wiiich it is in one penny for every milch cow will discharge the tithe of 
 lieu of. milch kine, but it would not discharge the tithe of barren 
 
 cattle, for tithe is of common right due for both ; and, 
 therefore, a modus for one shall never be a discharge for 
 the other. *^ 
 JNIust be du- 5- It must be in its nature as durable as the tithes dis- 
 
 rableasihe charged by it; for tithe in kind, for which the land may 
 tiihediscliarged. always be resorted to, is a certain inheritance, and cannot 
 therefore be rightfully extinguished by a less certain re- 
 compense :'' thus a modus for every inhabitant of a house 
 to pay four-pence a year in lieu of the owner's tithes is 
 bad, for possibly the house may not be inhabited, and 
 then the recompence will be lost.' It is however suffi- 
 cient if the recompence is certain to all ordinary intents 
 and pur])oses, as a modus payable by all the inhabitant 
 householders of a parish is good, though liable to the pos- 
 sible reduction of that class, which is too remote a contin- 
 gency to render the modus void.*" 
 rayinentby in- '^'^^ distinction in these cases is evident and simple. A 
 habitants gc- jiaymentby the inhabitants of certain houses in the parish 
 "^^•^'b- is bad, because those houses may decay, and may not be 
 
 rebuilt; and as the modus depends upon their existence, 
 it is not therefore certain as to dinability ; but a payment 
 by all the inhabitants in the parish is as liable to increase 
 as to decrease, and it cainiot be decreased by consolidating 
 the lands in the hands of one person, but depends upon 
 the number of the inhabitants. And there is a clear dis- 
 tinction between a case c^f this kind and that somewhat 
 siuiilai', which we have already mentioned inider the iirst 
 rule ; for that was a penny payable by every occupier of 
 land within the paiish ; and if the land had been taken 
 away from tlie house, the inhiibitant of the house paid 
 nothing, and the occupier of the land to which it was 
 added j)iiid no more than before, so that the recompence 
 might have been reduced to a single penny; but in a 
 payment by the inhabitants, this could not have been the 
 case. 
 
 f 1 Holl. Abr. filR, |)1. 3 ; Bacon's Abr. I illies, U. 
 
 » 2 Mliick.Com. :)(). ''Ibi.l. ' Toiler, 202. 
 
 k Ilardcastle v.SmUlnoii, 2 Alk. 246.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 313 
 
 6, It must not be too hirgc, or, as it is commonly called, .Musi noibc 
 rank ; as if the real value of" the tithes be GO/, per annum, f""''- 
 and a modus is suggested of" 40/., this modus will not be 
 established, though one of" 40s. might have been valid.' 
 Indeed, properly speaking, the doctrine of rankness in a 
 modus is a mere rule of evidence, drawn from the impro- 
 bability of the fact, and not a rule of law. For in these 
 cases of prescriptive or customary moduses, it is supposed 
 that an original real composition was anciently made, 
 which being lost by length of time, the immemorial usage 
 is admitted as evidence to show that it once did exist, and 
 that from thence such usage was derived. Now time of 
 memory hath been long ago settled to commence from 
 the beginning of tlie reign of Richard I.,"" and any custom 
 may be destroyed by evidence of non-existence in any 
 ])art of the long period from that time to the present. 
 Wherefore, as this real composition is supposed to have 
 been an equitable contract, or the full value of the tithes, 
 at the time of making it, if the modus set up is so rank 
 and large, as that it, beyond dispute, exceeds the value of 
 the tithes in the time of Richard I., this modus is (in point 
 of evidence) felo de se, and destroys itself. For as it would 
 be destroyed by any direct evidence to prove its non- 
 existence at any time since that era, so also it is destroyed 
 by carrying in itself this internal evidence of a much later 
 origin." 
 
 This rule may at first sight appear strange ; but it must ^viiat moduses 
 be remembered, that although the modus maybe too large would be rank, 
 as such, yet it would always be far less than the actual 
 value of the tithes ; as moduses of 4s. or 5s. for every acre 
 of wheat ; of 2s. for every acre of lent corn, have been 
 held bad for rankness j° 3d. in lieu of the tithe of lambs ; 
 8d. for every colt ; 3d. a-year for every cow, and 6d. for 
 every calf, in lieu of tithes of cows, calves and milk; Sd. 
 an acre in lieu of tithes of hay, &c., have been held not 
 too large or rank.'' But no positive rule could be laid 
 down in such cases ; for, in fact, rankness, as it has been 
 said, is not weighed in very nice scales ;'' and other con- 
 siderations, besides those of mere value, may fairly be 
 supposed to have operated on the parties; and as the 
 
 1 11 Mod. Rep. 60 ; 2 Black. Com. 30. 
 
 "> 2 Inst. 238, 239 ; Litt. 170 ; 2 noil. Abr. 269, pi. 16. 
 
 n 2 Black. Com. 31. 
 
 " Gale V. Carpenter, 3 Wood, 173; 2 E. & Y.226; UnUe v. Monk, 3 
 Woo^, 211 ; 2 E. & Y. 234. 
 
 P Bertie v. Beaumont, 2 I'rice, 303 ; Hockmore v. Bichards, 1 Wood, 485 ; 
 1 E. & Y. 681 ; Frevnst v. Bennett, 2 Price, 272 ; 3 E. & Y. 705 ; Pole v . 
 Gardener, IE. & Y. 675 ; 1 Wood, 472. 
 
 '1 Beck V. Cree, 1 Younge, 211.
 
 314 
 
 OF TITHES AND TETHE RENT-CHARGE. 
 
 And how de- 
 cided. 
 
 Farm and dis- 
 trict modus. 
 
 How modus 
 may be dis- 
 charged. 
 
 Discharge of 
 park moduses. 
 
 question of rankness is one of fact, it may in each par- 
 ticular case be tried and determined by a jury. There 
 may, however, be cases in which the alleged modus is so 
 evidently and palpably rank, that a court of equity, in a 
 suit for tithes, would at once so decide, without putting 
 the parties to the expense of a trial at law."" Again, the 
 question might turn upon the construction of ancient do- 
 cuments, from which a court of equity, being more com- 
 petent to draw the proper inferences than a jury, would 
 do so, and not direct an issue. ^ 
 
 A modus for an acre or a portion, or a whole farm, or 
 district or tract of land, is much less liable to be aftected 
 by the question of rankness, than a modus to pay so much 
 for particular kinds of produce, as hay, wheat, cows, lambs, 
 (fee, because the actual value of these, at any given period 
 of history, is more readily ascertained than that of lands 
 in any particular place, and many reasons may have pre- 
 vented the tithes in general having been compounded for 
 at their proper price; the owner may have intended a 
 bounty for the clergyman ; or he may have wished to pay 
 for an exemption from tithes for the sake of improvements, 
 or in order to be rid of the annoyance which that right 
 sometimes occasioned.* 
 
 It remains only to be seen in what manner a modus, 
 valid according to all the above rules, may be discharged. 
 This may be by the destruction of the particular thing for 
 which the modus is payable ; as if a modus had been 
 payable for all the tithes arising in a park, and the park 
 be converted into tillage, the prescription is gone, and 
 tithes in kind would become payable." Not so, however, 
 if the modus had been payable for a certain number of 
 acres, which might happen to be a park, for then the con- 
 version into tillage would not alter in substance the thing 
 for wiiich the modus was nuidc payable." Questions as to 
 the destruction of a park modus, as may be inferred from 
 the above examples, are generally of much dithculty and 
 nicety. It has been observed, that where the considera- 
 tion consists of venison only, the result of the authorities 
 seems to be, that if the prescription be to pay a buck or 
 doe generally, without any reference to deer killed in the 
 l»;uk, l\u: modus will continue, notwithstanding the dis- 
 |)urking; but if the quantum of the venison be regulated 
 by the number of deer killed in the park, as if there be a 
 
 ' Lloyd v.. Small, 1 E. 6c V. 7'JG. 
 
 • Fuller V. Lord Graves, 3 K. & Y. 1180. 
 
 « Sec Atkyjis v. ]Viltimglil)ii de Broke, '2 E. & V. 406. 
 
 •• Muscat v. I'nce, 2 E. & "Y. 226. 
 
 » Degge, 392.
 
 the commuta- 
 tion of tithes. 
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 315 
 
 modus of a shoulder of every deer killed in the park, or, 
 as it seems, if the recompence consist of a buck or doe 
 payable out of the particular park, and the park be dis- 
 parked, the modus is suspended by the act of the party 
 himself, until the park is restored.^' 
 
 A modus may also be discharged by the frequent payment 
 of tithes in kind, or by neglect to ])ay the consideration as 
 the modus. So at least it is laid down ; but on the other 
 hand, it is difficult to see how a custom once clearly esta- 
 blished, and supposed to have had a legal origin, could be 
 destroyed •/■ the question has probably never occurred in 
 practice, and could not occur now. 
 
 The rules here mentioned as essential to the validity of Provisions as to 
 a modus, although, as we shall presently see, much less moduses, &:c. 
 likely to be useful, or be required to be applied now than 
 heretofore, are nevertheless an essential ]jart of the jnesent 
 law of tithes and tithe rent-charo;e. In the case of volun- 
 tary agreement for commutation of tithes, it is provided 
 that, if there shall be any suit pending, or any question as 
 to the existence of a modus, composition real, prescriptive 
 or customary payment, whereby the making and executing 
 such agreement shall be hindered, the parties, owners of 
 the lands and tithes respectively, being parties to such 
 suit, or interested in such question, may submit the same 
 to a reference ; which submission is to be made a rule of 
 court, upon such terms of reference as the parties may 
 agree upon; and the award of the arbitrator named in 
 such reference shall, for the purposes of the act, be final 
 and conclusive upon all parties. But no person, being the 
 owner of an estate in lands or in tithes, having a less estate 
 therein than of fee simple or fee tail, is empowered to 
 submit to any such reference, so as to bind persons in re- 
 mainder without the consent of the commissioners, who 
 may at their discretion, if they think fit, direct any person 
 in remainder, or who may be interested, to be made a party 
 to such reference.^ And in compulsory awards of commu- 
 tation of tithes, if it shall appear to the connnissioners, or 
 assistant commissioners, that any question concerning any 
 modus or composition real, prescriptive or customary pay- 
 ment, or claim of exemption from or non-liability to the 
 payment of tithes relating to the lands in question, shall 
 have been decided by competent authority before the 
 making of the said award, the commissioners or assistant 
 commissioners shall act on the principle established by 
 such decision, and shall make their award as if such deci- 
 
 y 2 Eagle on Tithes, 153. ' See 2 Inst. 653. 
 
 ^ 6&7 Will. 4, c. 71, s. 24.
 
 316 OF TITHES AND TITHE RENT-CHARGE. 
 
 sion had been made at the beginning of the period of seven 
 years mentioned in the act.*" 
 
 As for example, if a composition real or modus shall be 
 set aside before the award is made, the average value of 
 the tithes, for seven years preceding Christmas, 1835, of 
 the lands alleged to be covered by such composition reed 
 or modus, must be taken. If the composition real or modus 
 be established, then the amount of it must be apportioned 
 upon the lands covered by it,"" But if there shall be any 
 suit pending, or any question as to the existence of any 
 modus or composition real, or prescriptive or customary 
 payment, in respect of any lands, or any kind of produce 
 whereby the making any such award shall be hindered, 
 the commissioners or assistant commissioners may appoint 
 a time and place in and near the parish, for hearing and 
 determinino- the same ; and the decision shall be final and 
 conclusive on all persons.'' But if any person who is ni- 
 terested in the question, either as to the lands or tithes, is 
 dissatisfied with such decision, he may, if the yearly pay- 
 ment to be made or withholden, according to such decision, 
 exceeds 20/., cause an action to be brought against the 
 person in whose favour such decision may have been given, 
 within three calendar months after such decision shall 
 have been notified in writing, in such manner as the com- 
 missioners or assistant commissioners shall direct, to the 
 parties interested therein or their known agents.'' 
 Apportionment In the case of compulsory commutations, it is by the 
 oi tlic modus, same act provided, that if any modus shall be payable 
 instead of any of the tithes of the parish, the commissioners 
 or assistant commissioners shall estimate; the amount of 
 such modus, as the value of the tithes payable in respect 
 of such lands or their |)roduce, and shall add the amount 
 thereof to the value of iho other tithes of the parish ; so 
 that they will be included in the total sum ascertained to 
 be the amount of the rent-charge : but w'hen the several 
 sums i)ayable come to be apportioned upon the different 
 lands, the ascerluined sum ])ayablc as a nu)dus shall be 
 apj)ortioned on those lands which are covered by it ; so 
 that the several lands nuiy have in each case the fidl benefit 
 of every such modus/ 
 
 It will be observed that it is the necessary effect of these 
 enactuumts, that durin<>- the time that comnuitations of 
 tithes are taking place, qu(!stions as to moduses nuiy very 
 connnonly arise, and occupy the attention of the courts; 
 but that so soon as the comnmtations have been generally 
 
 •' Seel. 4 4. <; Shelfonl on Tillies, 239, n. 
 
 ^ liect. 45. « Sect. 4ti. f Sect. 44
 
 DISCHARGE OP LANDS FROM PAYMENT OF TITHES. 317 
 
 settled, such questions will be almost entirely at an end, Probable infie- 
 and the various rules, kc, as to inoduses, which we have n.uency of rjucs- 
 stated above, will be rather matters of history than of juscs for die°' 
 practical law ; for besides these j)rovisions, it is declared by future. 
 Lord Tenterden's Act," already mentioned, that all pre- 
 scriptions and claims of or for any modus, shall, in cases 
 where the render of tithes in kind shall bo demanded by 
 the crown, or by a Duke of Cornwall, or by any person 
 not being a corporation sole, or by any corporation aggre- 
 gate, be deemed good and valid in law, upon evidence 
 showing the payment or render of such modus for the full 
 period of thirty years next before the time of such demand; 
 unless the actual render of tithes in kind, or of money, or 
 other thing differing in amount, quality, or quantity, from 
 the modus claimed, shall be shown to have taken place at 
 some time prior to such thirty years ; or unless it shall be Time within 
 
 proved that such payment or render of modus was made ^'^'^'/ moJus 
 i i -^ , 11- ni'iy "^ ques- 
 
 by some consent or agreement, expressly made or given lioned. 
 
 for that purpose by deed or writing; and if such proof in 
 support of the claim shall be extended to the full period of 
 sixty years next before the time of such demand, in such 
 cases the claim shall be deemed absolute and indefeasible, 
 unless it shall be proved that such payment or render of 
 modus was made by such consent or aoreement as before 
 mentioned ; and where the render of tithes in kind shall be 
 demanded by an archbishop, bishop, dean, prebendary, 
 parson, vicar, master of hospital, or other corporation sole, 
 whether spiritual or temporal, precisely the same rule as to 
 the time which shall be a bar applies, as in the case of 
 claims of exemption on account of non-payment, mentioned 
 and explained above in the first section ;'' unless it shall be 
 proved that such ])ayment or render of modus was made 
 by some such consent or agreement as before mentioned.' 
 And with respect to this enactment, it is expressly pro- 
 vided in the act for the commutation of tithes, that nothing 
 contained in that act shall revive any right to tithes, which, 
 at the time of the passing thereof, was or thereafter might 
 be barred by any law in force for shortening the time re- 
 quired in claims of modus decimandi} 
 
 s 2 & 3 Will. 4, c. 100. '' See ante, section 1. 
 
 ' 2 & 3 Will. 4, c. 100, s. 1. "^ G & 7 Will. 4, c. 71, s. 49.
 
 318 OF TITHES AND TITHE RENT-CHARGE. 
 
 Section 6. 
 
 Discharge of Lands from Payment of Tithes hy Rent- 
 charge in lieu thereof. 
 
 Injustice of the There was perhaps no law to which the maxim, siimmum 
 old law of tithe. Jms summa injuria, might more forcibly have been applied, 
 than to the old law of tithes, which, with all its intricacies 
 and difficulties, it was almost impossible for the generality 
 of tithe-payers to understand, and for any breach of which 
 notwithstanding heavy penalties were imposed ; and it will 
 be seen from what has been already said, that long before 
 the recent statute for effecting a general commutation of 
 tithes, the contention, trouble, and inconvenience, with 
 which the collecting of them was attended, had in many 
 instances induced the clergy to make large sacrifices of 
 their rights rather than put the strict law in force, and 
 moduses and compositions real are in fact the old forms 
 in which voluntary commutations of tithes were formerly 
 effected. 
 Commutation In later times it became more obvious that the liability 
 
 of tithes before of the farmer at any time to have his tithes taken in kind, 
 the act. ^^g ^ serious drawback on agriculture, and on the im- 
 
 provement and cultivation of lands. In almost every 
 parish the tithes were practically commuted for a money 
 payment, and a composition was entered into between the 
 tithe owner and the tithe payers ; but as the ecclesiastical 
 rector or vicar was unable to bind his successors, such 
 compositions were necessarily liable to very considerable 
 fluctuation upon every change of incumbency, without re- 
 ference to the state of cultivation, or to any other reason 
 than the caprice of the titheowner or his surveyor. 
 Act forrommu- I>^ order to obviate this inconvenience, an act of parlia- 
 tation of tithes, ment was passed in the (ith and 7th years of Will. IV.,' 
 the object of which was, in the first place, to encourage 
 and give facilities for efl'ecting voluntary connnutations of 
 tithes ; and, in the next place, to eftect commutations 
 comi)ulsorily, where the parties should be unwilling or 
 uniibic to come to a vohnitary agreement; and in either 
 case to render connnutations, so made in conformity 
 with the provisions of th(^ act, permanent, so as to bind 
 nil siibsctpieiit incumbents. A rent-charge therefore on 
 all l.iiuls, which were svd))ect to the payment of tithes at 
 the time of the passing of the above act, is now, or shortly 
 will be substituted for the tithe of the produce of those 
 Tithe rent- lands; but lliis is in many ])articulars so far regulated by 
 ^''"g^' i 0&7\vill.4.c.71.
 
 DISCHARGE OF LANDS FROM THE PAYMENT OF TITHES. 319 
 
 the act, and in others so dependant on the old law of 
 tithe, that few of the incidents to rent-charges generally 
 will be found to apply to this. In many respects it is 
 an entirely new species of property, of which little more 
 is to be said than what is to be found in the acts of parlia- 
 ment by which it has been created ; and it is sufficiently 
 designated by the term tithe rent-charge. 
 
 The mode in which the change from tithe to tithe rent- 
 charge has been or is to be effected, is obviously, in a 
 legal point of view, of temporary interest only ; or perhaps 
 in the greater number of parishes, that interest is already 
 past. 
 
 It would be foreign therefore to the purposes of this 
 work, to enter fully into the subject of the law by which 
 the actual commutation of tithes is regulated. But as no 
 tithe rent-charge would be valid, unless in substance made 
 and agreed upon according to certain provisions of the act 
 of parliament, it will be useful to advert briefly to these, 
 in order that the validity of the commuted rent-charge 
 may in each case be tested by them. 
 
 It has been already observed, that the act provides two 
 methods of commutation. 1. By voluntary parochial 
 agreements. 2. By compulsory awards. 
 
 It appears unnecessary here to mention the different Voluntary com- 
 steps that must be taken in order to bring about voluntary niutaiion. 
 parochial agreements. It will be sufficient to state the par- 
 ticulars which every such voluntary parochial agreement 
 must contain, as essential to its validity ; and — 
 
 1 . It must bear date on the day on which the first sig- Necessary con- 
 nature is attached to it. tents of a volun- 
 
 2. It must, in itself, or in some schedule annexed to it, ^^""^^ parochial 
 set forth all the lands of the parish which are subject to ^^^^""^'^ ' 
 the payment of any kind of tithes, in which should be in- 
 cluded lands which may at any time become subject to 
 
 tithes, as glebe lands, barren lands, and lands formerly 
 the property or the privileged orders. 
 
 3. The true or estimated quantity in statute measure of 
 these lands. 
 
 4. In what state of cultivation these are at that time ; 
 whether arable, meadow or pasture, woodland or common 
 land, or howsoever otherwise. 
 
 5. Whether any modus, composition real, or prescrip- 
 tive or customary payment, is payable instead of all or 
 any of the tithes of such parish, and what lands or tithes 
 are covered thereby. 
 
 6. The tithe owner to whom all such tithes, moduses, 
 compositions or payments are payable j or if more than
 
 320 OF TITHES AND TITHE RENT-CHARGE. 
 
 one tithe owner, then it must be distinguished to which of 
 them each and every part of the tithes are payable, and in 
 what right each of such tithe owners is entitled to them. 
 As if the same person were vicar, and consequently in that 
 character entitled to the vicarial tithes, and also entitled 
 to the rectorial tithes, in the character of an impropriator, 
 the sums to be paid to him in respect of each interest 
 must be kept distinct. 
 
 7. Whether any and which lands of the parish have 
 been, or are, under any and what circumstances, exempt 
 from any and what tithes. 
 
 8. The amount in words at length of the sum agreed to 
 be paid (subject to variation as after-mentioned) instead 
 of the tithes of the lands comprised in the agreement, and 
 instead of all moduses, compositions real, prescriptive or 
 customary payments (if any) in respect of such lands, or 
 the produce of them ; distinguishing, if there be more than 
 one tithe owner, the sum payable to each : and where the 
 tithes of different lands in the parish are payable to diffe- 
 rent tithe owners, or to the same tithe owners in different 
 rights, distinguishing the sum payable in respect of such 
 different lands. 
 
 9. All such other particulars as the commissioners shall 
 from time to time by any order require to be inserted 
 therein.'" 
 
 Forms of docu- The tithe commissioners were by the act directed to 
 ments. frame such forms of agreement, or other documents, as 
 
 might facilitate the purposes of the act ; and, in accordance 
 with such direction, have framed and settled certain forms 
 which, so far as they are deemed of actual present import- 
 ance, are to be found in the Appendix." 
 Consents re- In all cases where the tithes belong to an ecclesiastical 
 
 qiiired to be corporation in right of any sj)iritual cliLiiiity or benefice, no 
 fary'commul'a"-' «"^"^^ agreement as bcfbrc mentioned shuU be deemed to 
 lions of ccdesi- have been executed by the owner of the tithes, unless the 
 astical tithes. following consent be given : (that is to say), in the case of 
 an archbishop or bishop, the consent of the crown, signi- 
 fied by the k)rd high treasurer or the first lord commis- 
 sioner of tlie treasury ; and in the case of an incitmbent 
 of any other benefice or ecclesiastical dignity, the consent 
 of the patron who would have been entitl(Hl to present if 
 the living were tlien vacant, so that if there was an alter- 
 nate; right of presentation, the person entitled to the next 
 tiini would be the person to give such consent. Every 
 such consent is to be given in writing, ami annexed to the 
 agreement," 
 
 "• Seel. 21. " See Apiirnil. No. 3; sect. 22. " Sect. 2G.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 321 
 
 It is further necessary, that the agreement thus made Agreement to 
 and consented to, should be executed by a sufTicient num- l^e confiinicJ l.y 
 
 berof the land owners and tithe owners of the parish, that '''.'^ '."''^ (""i"- 
 . . , , . -Ill 1-1 missioners. 
 
 is to say, such whose niterest ni the lands and tithes re- 
 spectively shall not be less than two-thirds of the lands 
 subject to tithes (two-thirds of the great tithes and two- 
 thirds of the small tithes), and that the tithe commis- 
 sioners, being satisfied that the same has been properly 
 made, should conlirm the same under their hands and 
 seal, and add to it the date of the confirmation, and pub- 
 lish the ftct of the confirmation, and the date of it, in 
 the parish, as they think fit.'' 
 
 But before the commissioners so confirm any agreement But to be pre- 
 relating to tithes belonging to any ecclesiastical person in viously sub 
 right of any spiritual dignity or benefice, they must com- ^^!^ll„ ^° 
 municate the same to the bishop of the diocese for his ob- 
 servations and opinion, and no such agreement shall be 
 confirmed by them, until he shall signify his approbation, 
 or until four weeks after it has been so transmitted to 
 him.i 
 
 When the amount of the rent-charge has been thus set- Apportionment 
 tied by the tithe owners and land owners, there is nothing o' '''e ''em- 
 further to be done by the former; but the owners of lands '^^^''S^- 
 subject to tithes, or their agents present at a meeting, may 
 appoint a valuer or valuers; and in case the majority in 
 respect of numbers, and the majority in respect of interest, 
 cannot agree upon the appointment, then they shall appoint 
 such even number of valuers as shall be agreed uj)on, half 
 to be chosen by a majority in respect of numbers, and the 
 other half by a majority in respect of interest. No formal 
 instrument is necessary for the purposes of this appoint- 
 ment ; but it is suftlcient if a memorandum of such a})point- 
 ment is entered on the minutes of the meeting and signed 
 by the chairman ; and when the valuers have been thus 
 appointed, they are to apportion the total sum agreed to 
 be paid by way of rent-charge, and tlie expenses of the 
 apportionment, among the several lands in the parish, but 
 so that in each case the several lands shall have the full 
 benefit of every modus and composition real, pvescriptivc 
 and customary payment, and of every exemption from or 
 nonliability to tithes relating to such lands respectively, in 
 such manner as has been already mentioned, and also 
 having regard to the several tithes to which the lands are 
 severally liable. The act contains other directions for the 
 proceedings of the valuers, but these in no way afiect the 
 tithe owner." 
 
 P Sect. 27. '1 Sect. 28. ^ Sect. 32. 
 
 Y
 
 322 OF TITHES AND TITHE RENT-CHARGE. 
 
 Compulsory In cases where the commutation of tithes has been 
 
 awar'J- effected by a compulsory award, it must have been effected 
 
 in the followins; manner. The tithe commissioners must 
 ascertain the clear average value (after making all just 
 deductions on account of the expense of collecting, pre- 
 paring for sale, and marketing, where such tithes have been 
 taken in kind,) of the tithes of the parish according to the 
 Uponanaverage average of seven years preceding Christmas, 1835; but if, 
 of seven jears^ during that time or any part of it, such tithes have been 
 prece ing o. ^Q^^^^^yy^^f[f,(\ fQj. qj. (demised to the owner or occupier of 
 such lands, in consideration of any rent or payment instead 
 of tithes, the amount of such composition or rent or pay- 
 ment shall be taken as the clear value of the tithes included 
 in such comjjosition, demise or agreement, during the time 
 for which the same shall have been made ; and the average 
 annual value during these seven years thus ascertained is 
 the sum to be aw-arded by the commissioners as a perma- 
 nent commutation of the tithes. 
 Exceptions. But it is provided that whenever it shall appear to the 
 
 commissioners that the party entitled to such rent or com- 
 position shall in any one or more of the seven years have 
 allowed and made any abatement from the amount of such 
 rent or composition, on the ground of the same having 
 been in any such year higher than the sum fairly payable, 
 then such diminished amount, after making such abate- 
 ment, shall be taken to have been the sum agreed to have 
 been paid for any such year or years.^ 
 Amount of rates. It is further to be observed that, in estimating the sum 
 &c. to be added, ^q ]^q awarded, no deduction therefrom is to be made on 
 account of any parlianu'utary, parochial, county and other 
 rates, charges and assessments to which the tithes are 
 liable ; and therefore, if in any case the tithes shall have 
 been demised or com])ounded for, on tlie principle of the 
 rent or composition being jraid free from such rates, charges 
 and assessments, or any part thereof, the commissioners 
 are to miik(^ i^uch an addition on account thereof as nuiy 
 be an equivalent. Thus the average value of the tithes in 
 kind for seven years preceding Christmas, 1835, or the 
 composition durnig that time in lieu of tliem, has been 
 ni;ul<' the usual criterion of their future value ; but it 
 would have been an obvious injustice in a case where so 
 much might have (lc|)ended ujjon the feelings of the incinn- 
 beiif (i)r the time being, to have made (his rnk; in(lexil)le ; 
 I'owcr 10 in- and it was therefore pr(n ided, tliat if notice in writing hy 
 crease or diiiii- ^|^j, patron, land owners or tithe owners, whose interest in 
 on ilie average. *'"' 'ands or tithes of (he parish should not be less than 
 
 • Sect. 37.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 323 
 
 one-half of the lands subject to tithes, one-half of the great 
 tithes, or one-half of the small tithes, in the parish, should 
 be iiiven to the commissionei's, that the averaire value to 
 be ascertained as above would not fairly represent the sum 
 which ought to be taken for calculating a permanent com- 
 mutation, the commissioners might diminish or increase 
 the sum to be so taken by a sum not more than one-fiftii 
 of such average value. But there was also a further pro- 
 vision, that if any case should appear to the commissioners 
 to be fraudulent or collusive, or which, on account of the 
 length of time which might have elapsed since the making 
 the composition then in force, or of the peculiar interest in 
 tlie lands and tithes of the parties to such composition, or Cases for sepa- 
 of any other special circumstances, ought in the judgment [?|^ adjudica- 
 of the commissioners to be separately adjudicated on, the 
 same should be reserved for separate adjudication. In Proceedings in. 
 cases of such separate adjudications the commissioners 
 shall award the rent-charge to be paid as a permanent 
 commutation for tithes, having regard to the average rate 
 which shall be awarded in respect of lands of a like descrip- 
 tion and similarly situated in the neighbouring parishes. 
 But such intended award is to be deposited in the parish ; 
 and the commissioners or assistant commissioners are to 
 hear and determine all objections to it, and may amend the 
 draft if they think fit accordingly.' 
 
 When all suits and differences shall have been deter- Award, 
 mined, and the total value ascertained, the commissioners 
 or assistant commissioners are to frame the draft of an 
 award which shall declare the amount of the rent-charge 
 to be paid in respect of the tithes of the parish ; and such 
 award must contain all particulars which are before directed Contents of. 
 to be contained in a voluntary parochial agreement." 
 
 A copy of the award thus made is to be deposited in Deposit of, and 
 some convenient place within the parish, where all parties ol^Je'-''o°^ •°' 
 interested may have access to it ; and a day for a meeting 
 to hear objections to it is to be appointed by the commis- 
 sioners ; such meetings may be adjourned from time to 
 time, and the commissioners, in consequence of objections 
 then raised, may, if they think fit, amend the award.'' 
 
 As soon as the connnissioners or assistant commissioners Must be con- 
 shall have made such amendments in the draft of the award firmed by the 
 
 . ., 1 • 1 II ii 1 1 II commissioners, 
 
 as to them or hnn shall seem necessary, they or he sliall 
 
 cause the same to be fairly written, and shall sign and 
 send it to the office of the commissioners ; and the com- 
 missioners shall satisfy themselves that all the proceedings 
 incident to the making of it have been duly performed ; 
 ' Sect. 39. " Sect. 50 ; and see ante. " Sect. 51. 
 
 y2
 
 324 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 And is then 
 binding. 
 
 Appoilionnient, 
 
 When the ap- 
 portionment 
 may bu made 
 by ilic commis- 
 sioners. 
 
 Parliculars of 
 an apportion- 
 ment. 
 
 find if they shall think that the award ought to be con- 
 firmed, shall confirm the same under their hands and seals, 
 and shall add to the award the date of such confirmation, 
 and shall j)ublish the fact of such confirmation and the 
 date thereof in the parish, in such manner as to them shall 
 seem fit; and every such confirmed award shall be binding 
 on all persons interested.-^' 
 
 As soon as the commissioners shall have confirmed any 
 such award, the tithe owner has no direct interest in the 
 further proceedings ; but the commissioners or some as- 
 sistant commissioner shall call a parochial meeting of the 
 owners of land subject to tithes in the parish, for the 
 purpose of choosing valuers to apportion the amount so 
 awarded among the lands of the parish, and shall give 
 notice thereof in writing under their or his hand, to be 
 fixed at the least twenty-one days before such meeting on 
 the principal outer door of the church, or in some public 
 and conspicuous place within the parish ; and valuers or 
 a single valuer may be chosen at such meeting by the 
 land owners then present in like manner; and the valuers 
 so chosen shall act with the same powers and be subject 
 to the same provisions as if the rent-charge so awarded 
 had been agreed to at a parochial meeting of the land 
 owners and tithe owners of the parish, and the valuers had 
 been thereupon chosen in the manner we have already 
 mentioned.^ 
 
 If upon the expiration of six calendar months after the 
 day of the date of the confirmation of any agreement or 
 award, no valuer or valuers shall have been apj)ointcd, or 
 the aj)portionmeut by such valuers or valuer shall not have 
 been made and sent to the ofBce of the commissioners, it 
 shall be lawful for the commissioners, or some assistant 
 commissioner, to apportion the rent-charge previously 
 agreed or awarded to be paid among the lands of the said 
 ])arish, having regard to the average tithable ])roduce and 
 l^roductive quality of the said lands, according to the dis- 
 cietion and judgment of the commissioners or assistant 
 commissioners, but subject to the j)rovisions to be pre- 
 sently mentioned, and so that the several lands may have 
 \\\c lidl l;enefit in each case of every modus, composition 
 real, pi('scri|)tive and customary payment, aiul of every 
 exi'm|>tion from or non-liability to litlics relating to the 
 said lands rf^spcctivcly, and having regard to the several 
 tithes ti) \vlii<li llic .-;iiil liinds are severally liable." 
 
 I'lic form ol' till' appDi lionment does not dillcr whether 
 it be the case of a voluntary pai'ochial agreement or of a 
 y Sect. 52. ' Sect. n:}. » Sect. .14.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 325 
 
 coiiipulsory award. In either case tlie following particulars 
 must be contained in it. 
 
 1. Whether it is founded on a voluntary parochial agree- 
 ment or on a compulsory award. 
 
 2. The names or descriptions, or the true and estimated 
 quantity of the lands comprised therein ; but in voluntary 
 agreements these particular descriptions of the land are 
 not necessary to be stated, and may be omitted, if three- 
 fourths of the landowners so request. 
 
 3. The names and descriptions of the several proprietors 
 and occupiers. 
 
 4. The nature of the land and its state of cultivation. 
 
 5. A reference, by a number set against the description 
 of such lands, to a map or plan to be annexed. 
 
 6. The amount of the rent-charge fixed upon the several 
 lands. 
 
 7. To whom and in what right the same is respectively 
 payable. 
 
 8. In case of a special apportionment, the particulars 
 of it.'^ 
 
 We have now passed briefly over the mode in which the Awards, agree- 
 commutation of tithes is to be eftected, — a subject, as ments, and ap- 
 already observed, of which the interest will be only tem- P^flXTmt 
 porary ; for when the agreement, award, and a})portion- peached but for 
 ment of which we have spoken, has been confirmed, they substantial dc- 
 shall not afterwards be impeached by reason of any mis- '^^ ^' 
 take or informality therein, or in any proceeding relating 
 thereunto. '^^ In the case of substantial defects, it might 
 be otherwise ; as if the commissioners should have deter- 
 mined a matter in which they have no authority; for 
 where any tribunal determines in a matter not within its 
 jurisdiction, the decision is a nullity.'' 
 
 And it has been provided, that notwithstanding any Provision for 
 parochial agreement or compulsory award may have been rectifjin^r enors 
 duly confirmed by the commissioners, vet if it shall appear I" i!!??!':,!^','*^' 
 to them at any period before the apportionment that by 
 reason of fraud, or by the omission or insertion, through 
 error, of the tithes or lands of any party thereto, or of the 
 name of any person who, whether as tithe owner or land 
 owner, ought or ought not to have been a party thereto, 
 or any other manifest error, that such agreement or award 
 would be unjust; and that if such fraud, omission, inser- 
 tion or manifest error had not occurred, the commissioners 
 would have come to a different conclusion, it shall be 
 lawful for them, if they see fit, and at their sole discretion, 
 
 b Sect. 55. <= Sect. 66. 
 
 <> See Atlorney-General v. Lord Holhum, 3 Russ. 415.
 
 326 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 Nature of tlie 
 present titlic 
 rcnl-ciiiiige. 
 
 Varies accoid- 
 ing to llie i>rice 
 of corn. 
 
 by a separate award to rectify such agreement or award 
 in any of the matters aforesaid in such manner as to them 
 shall seem just. And all the provisions and powers re- 
 lating to compulsory awards shall be applicable in every 
 such case as if no such agreement or award had been 
 made, or as if the same were made in respect of a separate 
 district. But it is provided that in every such separate 
 award, the matter so dealt with, and the grounds on which 
 the cominissioners have seen fit to make the same, shall 
 be recited or set out in the draft thereof, in addition to the 
 other particulars required to be set forth in compulsory 
 awards. And every such award shall, in the notice of 
 meetings for hearing objections thereto, be called " a sepa- 
 rate award by way of supplement" to the parochial agree- 
 ment or award in the parish to which such separate award 
 relates.*' 
 
 At any time before the confirmation of any apportion- 
 ment after a compulsory award, the land owners and tithe 
 owners having such interest respectively as is required for 
 making a parochial agreement, may enter into a parochial 
 agreement for the commutation of Easter offerings, mor- 
 tuaries, or surplice fees, or of the tithes of fish or fishing, 
 or mineral tithes, and all the provisions relating to pa- 
 rochial agreements, so far as in the judgment of the 
 commissioners they are applicable to the subject of the 
 j)roposed commutation, are to be observed and applied; 
 but such commutation nuist be made payable on the same 
 days as those fixed for the payment of the rent-charge.^ 
 
 We now enter upon that part of the law for the com- 
 mutation of titlies, which is in continuing and daily force, 
 and by which all payments in lieu thereof are to be regu- 
 lated. 
 
 The payment of a corn-rent is substituted for the tithe 
 of the produce of the land ; or rather the tithe being in 
 the first instance connnutcd for and estimated at a certain 
 money payment, that money payment is to be converted 
 into a corn-rent; and the prices at which the conversion 
 from money into corn is to be made, at the time of the 
 confirmation of each ajiportionment, according to the pro- 
 visions of tlie act, are 7s. 0\d. for a bushel of wheat, 
 35. 1 1 }2d. for a bushel of bailey, and 2s. 9^/. for a bushel 
 of oats.'^ 
 
 In the month of .January in every year, the comj)troller 
 of coin rrluins, or such other pcison as may be authorised 
 for that purpose by the privy council, shall cause an adver- 
 
 *■■ 2 & 3 Vict. c. 62, s. 8. f 2 & 3 \ id. c. 62, s. 9. 
 
 H 7 Will. 4 \ 1 Vict. C.69, s. 7.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 
 
 327 
 
 tisement to be inserted in the London Gazette, stating what 
 has been during the seven years ending on the Thursday 
 next before Christmas day then next preceding the average 
 price of an imperial bushel of British wheat, barley, and 
 oats, computed from the weekly averages of the corn re- 
 turns.'' And every rent-charge charged upon lands in and 
 by the agreement, award, and apportionment, in such 
 manner as we have mentioned, shall be deemed to be of 
 the value of such number of imperial bushels and decimal 
 parts of an imperial bushel of wheat, barley, and oats, as 
 the same would have purchased at the rates or prices 
 above mentioned, and fixed for this purpose, in case one- 
 third thereof had been invested in the purchase of wheat, 
 one-third in the purchase of barley, and tlie remaining 
 third in the purchase of oats.' 
 
 From the general mode of commutation here mentioned 
 there is an exception in the case of hops, fruit, and cop- 
 pice woods ; and the provisions in those cases are of a 
 nature which renders it necessary to explain them in detail, 
 for they are an essential part of the present law, and are 
 important not only during the time of the comumtation, 
 but remain so after the commutation has been settled. 
 
 In case any of the lands in the parish shall be coppices. Coppices, 
 and notice shall be given by the owner thereof, or by the 
 owner of the tithes thereof, to the commissioners or assist- 
 
 Exceptions from 
 the general 
 moJe of esti- 
 mating accord- 
 ing to price of 
 corn. 
 
 ant commissioners 
 
 acting 
 
 in that behalf, that the tithes 
 
 thereof should be separately valued, the commissioners or 
 assistant commissioners shall estimate the value of the 
 tithes thereof, with a due regard to the average value, esti- 
 mated according to the best of their judgment, of coppice 
 wood of the same kind cut during the period of seven 
 years preceding in that parish and the neighbouring pa- 
 rishes, estimating the same as chargeable to all parlia- 
 mentary, parochial, county, and other rates, charges, and 
 assessments to which the said tithes are liable, and shall 
 add the clear value of the tithes so estimated to the value 
 of the other tithes of the parish, ascertained as aforesaid ; 
 and the commissioners shall, in the report which they are 
 required to make to one of the principal secretaries of 
 state before the 1st day of May, in the year 1838, lay 
 down rules for the guidance of the assistant commissioners 
 in estimating the value of the tithes of coppice wood ; and, 
 unless parliament shall otherwise provide, such rules shall 
 be observed by the said commissioners and assistant com- 
 missioners.'' 
 
 ^ 6&7 Will.4, C.71, s. 56. 
 
 » Sect. 57. 
 
 k Sect. 41.
 
 328 OF TITHES AND TITHE RENT-CHARGE. 
 
 Hop grounds, In case any of the laiids in the parish shall be hop 
 
 orchards, or orounds, ovcliards or oardens, and notice shall be eiven by 
 ' the owner thereof to the commissioners or assistant com- 
 
 missioners, that the tithes thereof should be separately 
 valued, the commissioners or assistant commissioners shall 
 estimate the value of the tithes thereof, according to the 
 average rate of composition for the tithes of hops, fruit and 
 garden produce respectively, during seven years preceding 
 Christmas, 1835, within a district to be assigned in each 
 case by the commissioners or assistant commissioner, and 
 estimating the same as chargeable to all parliamentary, 
 parochial, county and other rates, charges antl assessments 
 to which the said tithes are liable, and shall add the value 
 so estimated to the value of the other tithes of the parish.'" 
 Ordinary and The amount which shall 1)6 charged by any apportion- 
 
 extraordinary ment upon anv hop grounds or market gardens in any 
 charge in such jj^^j.;^^ ^^ ^^ ^^^ assigned, shall be distinguished into two 
 parts, which shall be called the ordinary charge and the 
 extraordinary charge ; and the extraordinary charge shall 
 be a rate ])er acre, or less quantities of "round, according 
 to the discretion of the valuers or commissioners by whom 
 the apportionment shall be made. By the Tithe Amend- 
 ment Act," it was subsequently provided, that in case any 
 of the lands in a parish, the tithes whereof shall be in 
 course of commutation, shall be orchards or fruit planta- 
 tions, and notice in writing, under the hands of any of the 
 owners thereof, whose interest therein shall not be less 
 than two-thirds of the whole of the orchards and fruit 
 plantations in such parish, shall be given to the valuers 
 or commissioners, or assistant commisi^ioner, by whom any 
 apportionment shall be made, at any time before the draft 
 of such a])j)ortionment shall be framed, that the tithes 
 tlieroof should be distinguished into two parts, the amount 
 which shall be cluugcxl by any such apj)orlionment \q)on 
 the several orchards and fruit plantations in such parish, 
 shall be distinguished into two parts accordingly, and the 
 same shall be called the ordinary charge and tlie extraor- 
 dinary fruit charge; and tiie extraordinary charge shall be 
 a late per acre, and so in proportion for less quantities of 
 ground, according to the discretion of the valuers or com- 
 missioners, or assistant commissioner, by wliom such ap- 
 liortioiuuent shall be made." 
 Newly culii- -'^I'd all lands, the tithes whereof shall have been coni- 
 
 vntcdfriiii plan- inutcd, which shall be situate within llu; limits of any parish 
 tations to l)c j^ ^yi)j(.|, j,,i cxtraordinarv fruit charj-e shall have been dis- 
 subjecl to cx(ra . ■ i i i • ,• • i i ■ i i n i 
 
 ciiarge. tmguished at the tune or commutation, and winch sliali be 
 
 '" Sect. 40. » 2 \ 3 Vict. c. G2. " Sect. 26.
 
 DISCIIAIJGE VU LANDS FROM I'AVMKNT OF IITIIES. .329 
 
 newly cultivated us orchards or fruit plantations at any 
 time after such commutation, shall be changed with an 
 additional amount of rent-charge per acre equal to the 
 extraordinary fruit charge per acre in that parish : pro- 
 vided, that no such additional amount shall be charged in 
 respect of any plantation of apples, pears, plums, cherries 
 and filberts, or of any one or more of those fruits, during 
 the first five years, and half only of such additional amount 
 during each of the next succeeding five years of such new 
 cultivation, and no such additional amount shall be charged 
 in respect of any ])lantation of gooseberries, currants and 
 raspberries, or of one or more of those fruits, during the 
 first two years, and half only of such additional amount 
 during each of the next succeeding two years of such new 
 cultivation ; and no such additional amount shall be charoed 
 ni respect of any mixed plantation of apples, pears, plums, 
 cherries or filberts, and of gooseberries, currants or rasp- 
 berries, during the first three years, and half only of such 
 additional amount during each of the next succeeding three 
 years of such new cultivation.'' 
 
 And all lands, the tithes whereof shall have been com- Wlicn extra 
 muted, which shall be situated within the limits of any '^^^^o^ "'''y 
 parish in which an extraordinary fruit charge shall have 
 been distinguished; and which shall cease to be cultivated 
 as orchards or fruit plantations at any time after such com- 
 mutation, shall be charged, after the thirty-first day of 
 December next following such change of cultivation, only 
 with the ordinai'v charge upon such lands.'' 
 
 In case any lands within the limits of a jmrish in which Mixed pl.mta- 
 an extraordinary fruit charge shall have been distinouished, ''""^ "' ''"1'^ 
 shall have been or shall at any time be ])lanted with fruit, 
 and also with hops, the same shall, during the continuance 
 of such mixed j)lantation of hops and fruit, be liable to the 
 extraordinary ho]) charge only, or to the extraordinary 
 fruit charge only, payable in respect of the same lands, not 
 to both those charges, and the extraordinary charge to 
 which the lands so planted shall be liable shall be the 
 higher of the two for the time being.' 
 
 Where any land, liable to any such extraordinary charge Wlien subject 
 for the tithes of a mixed plantation of hops and fruit, shall, *° scpaiaic rcc- 
 at the time of the commutation, produce both rectorial and ,i^i\iiiics. 
 vicarial tithes, payable to diti'crent persons, the apportion- 
 ment shall set out the same, distinguishing the amount of 
 ordinary and extraordinary charge payable to each tithe 
 owner, and shall divide the whole acreable extraordinary- 
 charge between such tithe owners, according to the quan- 
 P Sect. 27. 1 Sect. 28. »• Sect. 29.
 
 330 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 Future mixed 
 plantations. 
 
 How such rent- 
 charge may be 
 fixed in certain 
 cases. 
 
 When tithe 
 rent-charge to 
 be payable. 
 
 tity of land producing rectorial tithe, and the quantity pro- 
 ducing vicarial tithe.^ 
 
 In all cases in which there shall be hereafter mixed plan- 
 tations of hops and fruit in any parish or district in which 
 an extraordinary fruit charge shall have been declared, the 
 rectorial and vicarial tithes whereof, but for the commuta- 
 tion, would have been payable to different owners, the 
 extraordinary charge payable in respect of the tithes of 
 such mixed plantation shall be divided between such owners 
 in proportion to the extent of land occupied by that pro- 
 duce, which would have paid tithes to each of them re- 
 spectively : provided, that payment of the share of each 
 tithe owner, when so ascertained, shall be taken to be sub- 
 ject to the provisions for lessening the amount of extraor- 
 dinary charge payable in respect of hop gardens and 
 orchards respectively at the beginning of such cultivation.* 
 
 For the purpose of fixing any charge for the tithes of 
 hops or fruit, or of any mixed plantation as aforesaid, the 
 commissioners may assign the parish or lands, in respect 
 of which due notice shall have been given, or any part or 
 parts of such parish or lands, as such district as before 
 mentioned, and may fix a charge upon such lands in re- 
 spect of the tithes of hops or fruit, as the rent-charge to 
 prevail and to be established in respect of the same, with- 
 out specific reference in the award to any other parish or 
 lands, but having regard to the general amount of com- 
 positions which they shall find to have prevailed in other 
 parishes of a similar description, and not to the money 
 payments in the parish under consideration, or the value 
 of the tithes in kind thereon." 
 
 In the absence of any special agreement" between the 
 parties, the payment of tithe rent-charge is to begin to be 
 due from the 1st of January next after the confirmation of 
 the apportionment ; at which time the lands are to become 
 absolutely discharged from the payment of all tithes, and 
 it is to be paid to the person mentioned in that behalf in 
 the agreement or award and apportionment, in the nature 
 of a rent-charge issuing out of the lands charged there- 
 with ; such yearly sum to be payable by two ecpial half- 
 yearly payments, on the 1st of January and the 1st of 
 July in every year; and after every 1st of January, the 
 sum of money thencefoith |iayuble as rent-charge shall 
 vary so as always to consist of the ])rice of the same 
 number of" bushels and decimal parts of a bushel of wheat, 
 
 • Sect 30. ' Sect. :jl. " Sect. 32. 
 
 * By the 2 & 3 Vict. c. 62, provision is made for fixing tlic time at which 
 the rent-charge may be made to commence.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 331 
 
 barley and oats respectively, according- to the prices as- 
 certained by the then next preceding advertisement. 
 
 But that which we have already mentioned as the dor- 
 mant rent-charge y apportioned upon any lands, which 
 during any part of the period of seven years preceding 
 Christmas, 1835, were exempted from titlie by reason of 
 having been inclosed under any act of parliament, or con- 
 verted from barren heath or waste land, is to be payable 
 for the first time on the 1st of July or the 1st of January 
 next following the confirmation of the apportionment, 
 which may be nearest to the time at which tithes were or 
 would have become payable for the first time in respect of 
 the said lands, if no commutation thereof had taken place. 
 
 In other cases, where the rent-charge would have been Parties em- 
 dormant or contingent whilst the lands were in the occu- powered to sub- 
 pation of the owner of them, by reason of having been for^a'^contfngent 
 parcel of the possessions of a privileged order, the re- rent-charge. 
 spective owners of the lands and tithes, or tithe rent- 
 charge, by the parochial agreement, or by a supplemental 
 agreement, made as the commissioners shall approve, may 
 agree to the payment (or, in cases of compulsory award, 
 the commissioners, with the consent of such respective 
 parties, may award the payment) of a fixed and conti- 
 nuing rent-charge, without regard to the change of occu- 
 pation or manurance of such lands, equivalent in value, 
 according to the judgment of the commissioners, to the 
 contingent rent-charge ; and such lands shall, after the 
 confirmation of the agreement or award, or after such 
 other time as shall be fixed, with the approval of the com- 
 missioners, be subject to such fixed rent-charge, instead 
 of the contingent rent-charge, to which such lands would 
 otherwise have been subject, and such fixed rent-charge 
 is made recoverable in the same manner as other tithe 
 rent-charpe.'' 
 
 Crown lands, which, by reason of their being of the 
 tenure of ancient demesne or otherwise, are exempt from 
 tithe while in the tenure, occupation or manurance of the 
 crown, or tenants of the crown, but become subject to 
 tithe when aliened or occupied by subjects not tenants of 
 the crown, may in like manner have a fixed instead of a 
 contingent rent-charge charged upon them ; but no such 
 fixed rent-charge shall be charged upon them without the 
 consent of the persons or officers who are, by the Tithe 
 Commutation Act, required to be substituted in cases of 
 commutation, where the ownership of lands or tithes is 
 vested in the crown.* 
 
 y Ante, sect. 2. ^ 2 & 3 Vict. c. 62, s. 11. » Ibid. sect. 12.
 
 332 OF TITHES AND TITHE RENT-CHARGE. 
 
 lietit-chaige The rent-charge, except in cases where it may bo spe- 
 
 subject to same cially provided in the agreement or award, is to be subject 
 aiuHnci'de"jts^ ^^ ^^^^ Same incumbrances and incidents as tlie tithe was 
 as the tithe. prior to the comnmtation ; so that tithe rent-charge, be- 
 longing to ecclesiastical and other persons, within the 
 enabling and disabling statutes, will become subject to 
 their provisions ; and any person having any intei'est in 
 or claim to, or charge or incumbrance upon any tithes, 
 will retain the same in or upon the rent-charge, and the 
 same remedies are given him for recovering it, as if liis 
 claim had accrued after the commutation.'' 
 Provision where The occupiers of land at a rack rent may dissent to the 
 a tenant at rack p;^yi^^ent of tithe rcnt-charo-e ; in which case the landlord 
 
 rent dissents ^ - , , ,, • ^ , ^ r \i x-^i i • ^i 
 
 from nsyment. ^"'^J Succeed to the rights of the tithe owner during tlie 
 tenancy, as to the perception or collection of tithes, or 
 receipt of any composition in lieu thereof, and may have 
 all the powers and remedies for enforcing render and pay- 
 ment of such tithes or composition, as the tithe owners 
 would have had if the commutation had not taken place.'' 
 
 Section 7. 
 
 Discharge of Lands from Payment of Tithe hy other 
 Lands y IV en in Lieu, thereof. 
 
 Lands noicx- Another mode in which lands may become exempt from 
 
 ceeding twenty the payment of tithes, is by other lands being given in 
 uUen'ilHieu of ^'^*'^ of tlio titlie or rent-charge. This, too, is pnnided for 
 titlies. by the Titiu! Commutation Act; for it is there (k^clared, 
 
 Parochial agree- that any parocliial agreement may be made acconhng to 
 the manner and innii })rescrib(Ml in ihe act for parochial 
 agreements as to rent-charge, for giving to any ecclesias- 
 tical owner of tithes or tithe rent-charge, any quantity of 
 land, not exceeding tw(>nty acres, by way of commutation 
 for the whole, or an eipiivalent ])art of such tithe rent- 
 charge; but in every case such agreement must be made 
 in such form, and contiiin such particulars, as the commis- 
 sioners sh;ill direct, spt^cilying tlie hand, whereof the tithe 
 or liflic Kiil-ciiarge shall be the subject of the agreement, 
 and giving fidl descriptions of the cpiantity, state of cal- 
 tiu'c, and animal v;i]ii(> of the lands, proposed lo be given 
 in exchange for such tith(!S<jr rcMit-charge. And the same 
 consent and confirmation arc made necessary to any such 
 ugreenu.'nt, as in the case of an agreement for a rent- 
 charge.'' 
 
 '- 6 ftc 7 Will. I, C.71, s. 71. c Ibid. sect. 79. 
 
 <• Ibid. sect. '29 ; and sec antet
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 333 
 
 If the agreement does not extend to the whole of the When not cx- 
 tithes of the parish, an agreement or award is to be made ^e'xl'.ne'" all 
 in tlie manner before mentioned for the other hinds ; and parish.' 
 unk^ss otlierwise agreed uj)on by the parties to the agree- 
 ment, the rent-charge is to be apportioned upon all the 
 lands of the parish, subject to the payment of tithes, except 
 the land so given by way of commutation." 
 
 So also in the case of a compulsory award, the owner In compulsory 
 of any lands chargeable with tithe rent-charge may at ^'^^f'^*- 
 any time, whether before or after the confirmation of the 
 apportionment, but during the continuance of the tithe 
 commission,' and witli tlic consent of the commissioners, 
 agree with any ecclesiastical person, being the owner of 
 the tithes, for giving land instead of the rent-charge 
 chargeable upon his lands. Every such agreement is to 
 be made under the hands and seals of the land owner 
 and tithe owner, and to contain all such particulars as 
 are required to be contained in a parochial agreement for 
 giving land instead of rent-charge ; and the same restric- 
 tions as to the quantity of land to be given, and as to the 
 necessity of consent and confirniation by parties, are equally 
 applicable to either case ; and in either case also, the land 
 so given must be free from incumbrances, except leases at 
 improved rent, land tax, or other usual outgoings, and 
 must not be of leasehold tenure, nor of copyhold or cus- 
 tomary tenure, subject to arbitrary tine or the render of 
 heriots ; so that those coi)yhold lands only which are liable 
 to fines certain, and free from heriots, may be taken in 
 lieu of rent-charge. = 
 
 But any amendment made in the draft apportionment Effect of amend- 
 before it is confirmed, and after any such agreement for 'PS ''"^^'^ appor- 
 giving land in lieu of rent-charge, by which amendment '°""^^" ' 
 the charge upon the lands refei-red to in such agreement 
 shall be altered, shall be taken to annul the execution of 
 the agreement for giving land, and any consent that may 
 have been necessary thereto.'' 
 
 It was in the first instance directed, that the conmiis- Title of Knuis 
 sioners should satisfy themselves as to the title of the g'ven in cx- 
 lands thus agreed to be given ; but this appears now to ^''*"S<^' 
 be unnecessary ; for it has been enacted, that where any 
 land has been or mav be taken by any ecclesiastical tithe 
 owner, under any agreement by virtue of these acts, such 
 land shall, upon the confirmation of any such agreement, 
 vest absolutely in such tithe owner and his successors, 
 free from all claims upon it; and without being subject to 
 
 e 6 & 7 Will. 4,c. 71, s. 29. '' 2 & 3 Vict. c. ()2.s. 19. 
 
 e See ibid., and tio: 7 Will. 4, c. 71, s. G2. i' Sect. (J2.
 
 334 
 
 OF TITHES AND TITHE REISTT-CHARGE. 
 
 lands 
 
 Eftect of lliis 
 upon pur- 
 chasers. 
 
 any question as to any right, title or claim thereto, or 
 affecting the same.' 
 Remedy for tlie The commissioners are to cause to be inserted in or in- 
 wmidlia°ve dorsed upon every such agreement, the amount of the 
 been entitled to rent-charge instead of which such land was given, and the 
 recover the lands upon wbicli the same was chargeable, and every 
 person who would have been entitled to recover any such 
 land given instead of rent-charge, or any rents or profits 
 issuing out of such land, shall be entitled instead to re- 
 cover against the parties who may have given such land 
 instead of rent-charge, his, her or their heirs, executors or 
 administrators, by way of damages, in an action on the 
 case, such compensation as he or she may be entitled to 
 for any loss thereby sustained, and such damages, and all 
 costs and expenses awarded to the plaintiff in such action, 
 shall forthwith attach upon and be payable out of the 
 lands exonerated by such agreement.'' 
 
 It would appear to follow from this enactment, that 
 lands in the hands of a bond fide purchaser, without notice 
 of any incumbrance, and indeed upon which no incum- 
 brance existed, might be charged with the payment of 
 these damages, although the owner would have been no 
 party to the action, and would perhaps have known no- 
 thing of its commencement; this enactment, therefore, will 
 render it necessary, or at least advisable, for any party 
 purchasing or advancing money on mortgage of lands 
 which have been exonerated from tithe rent-charge by 
 other lands given in lieu of them, to investigate and be 
 satisfied, with not only the title of those lands, but also 
 the title of those by the giving of which the others were 
 exonerated. It appears by the clause that the tlamages are 
 not necessarily recoverable, in the first instance, against 
 the parties defending the action ; or, if so intended, it is 
 not clearly expressed, that where the lands exonerated 
 have passed to a j)urchascr, the })erson in whose hands 
 they first became exonerated, or his representatives, shoukl 
 be primarily liable to pay the amount of the damages, for 
 these attach forthwith upon the lands ; so that the person 
 holding them would be unnecessaiily driven to a circui- 
 tous remedy of auotlicr action under his covenant for title 
 against the vendor or his representatives. It might, how- 
 ever, frerpieiitly ha]»))en that the representatives of his 
 vendor had nothing out of which he could n^cover; and 
 it seems, theiefore, tliat there should have been some j)ro- 
 vision for dire(!ting the action to be brought against the 
 holder of the lands, or that he should be a party to it; 
 -2 & 3 Vict. c. 62, 8. 20. ^ Ibid.
 
 DISCHARGE OF LANDS FROM PAYMENT OF TITHES. 335 
 
 since, in such a case as we have last mentioned, the action 
 would actually be brought against parties who had no in- 
 terest in defending it, while the party who was really to be 
 injured would have no opportunity of protecting himself. 
 
 All corporations, whether sole or aggregate, and all Corporations, 
 trustees or feoffees for any charitable purpose, who would ^*^j"7^ 7"^^^ 
 otherwise be restrained from alienation, are empowered to pJipLr 
 make valid conveyances and assurances of lands, and to 
 enter into all necessary agreements for the giving lands 
 instead of tithes. 
 
 An agreement for giving lands instead of tithe rent- Agreement for 
 
 charge, as soon as it has been confirmed bv the commis- ^'^'°° ^^°^^ *° 
 
 • . . t> •'■, ^ ^ ■, operate as a 
 
 sioners, is to operate as a conveyance ot such land to the conveyance, &c. 
 
 tithe owner; and when conveyed it is to vest in and be 
 deemed to be holden by him upon such uses and trusts in 
 every respect as the tithes or tithe rent-charge, in exchange 
 for which it has been given; and, for the purpose of making Persons under 
 and completing such agreement, all persons under legal 'I's'ibility. 
 disability, such as minors, idiots, lunatics, femes covert, 
 persons beyond sea, &c. are by their guardian, committee 
 of estate, husband or attorney respectively, or in default 
 thereof by such person as the commissioners may nominate 
 for that purpose, and whom the act empowers them to 
 nominate under their hands and seal, empowered to con- 
 vey lands. 
 
 It must be remembered that what is here said, unlike Time within 
 the mode by which the commutation of tithes to tithe rent- "'''"^'* '•^'?^^ 
 charge is directed, is not of temporary interest, but that at ""^ ^ ^'^^"" 
 any time during the continuance of the tithe commission it 
 may be effected, provided the directions here mentioned are 
 observed. 
 
 Section 8. 
 
 Of the Merger and Extinguishment of Tithe and Tithe 
 
 Rent-charge. 
 
 Formerly, although the tithe owner was also owner of 
 the lands out of which the tithes were issuing, there was 
 no mode by which a merger or extinguishment of them 
 might be effected. Impropriate tithes were still kept dis- 
 tinct from the land, and, notwithstanding unity of ])osses- 
 sion, they were held under separate titles. It was, however. Persons seised 
 provided by the first Tithe Commutation Act,' that it should i" <"ee simple or 
 be lawful for any person seised in possession of an estate merge rent"'*^ 
 in fee simple or fee tail of any tithes, or rent- charge in cliarge. 
 
 ' 6& 7 Will. 4, c. 71, s. 71.
 
 336 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 How merger lo 
 be effected ia 
 oilier cases. 
 
 Lands and 
 tillies settled lo 
 the same uses. 
 
 Copyliold lands. 
 
 Charges on 
 merpjed litlies. 
 
 lieu of tithes, by any deed or declaration under his hand 
 and seal, to be made in such form as the commissioners 
 should approve, and to be confirmed under their seal, to 
 release, assign or otherwise dispose of the same, so that 
 the same might be absolutely merged and extinguished in 
 the freehold and inheritance of the lands on which the 
 same should have been charged. It was afterwards, how- 
 ever, considered desirable considerably to extend this power 
 of merging tithe and tithe rent-charge ; and it was accord- 
 ingly enacted by the statute 1 & 2 Vict. c. 64, that any 
 person or persons who should, either alone or together,^'^ 
 be seised of or have the power of acquiring or disposing 
 of the fee simple in possession of any tithes or rent-charge 
 in lieu of tithes, by any deed or declaration under his or 
 their hand and seal, or hands and seals, to be made in 
 such form as the connnissioners should approve, and con- 
 firmed under their seal, might convey, ajipoint or otherwise 
 dispose of the same, so that the same might be absolutely 
 merged and extinguished in the freehold and inheritance 
 of the lands out of or on which the same should have been 
 issuing or charoed. 
 
 Every such deed or declaration is to be valid and effec- 
 tual for that purpose, although the same may not be exe- 
 cuted or made in the manner, or with the formalities, which 
 would have been essential to its validity if the act had not 
 been passed. And such deeds or declarations are by the 
 same act excmj>ted from any stamp duty." 
 
 In cases where tithe or tithe rent-charge, and the lands 
 out of which it is payable, are settled to the same uses, 
 the tenant for life in possession is by the act einjiowered 
 to merge and extinguish thcui in like maimer and form as 
 in the cases last mentioned." 
 
 And it is declared that the [)rovisions for the merger of 
 tithe and tithe rent-charge shall extend not only to free- 
 hold, but to all lauds, though they should be copyhold of 
 inheritance, or for lives, or of any otlujr teniue whatsoever.'' 
 
 By the statute 2 & 3 Vict. c. Q2, which has been com- 
 monly called th(^ Tithe Ani(;ndment Act, it is provided that 
 where any tithe or tithe rent-charge has been or shall be 
 merged, the lands in which such merger shall take ctiect 
 shall be subjed to any charge, inciimhranee or liability to 
 which the tithe oi- tii,he-reiit charge was subject previous 
 
 '" As whore there is a tenant lur life and u ti'iiinl in t.iil in rt'iuaiiidci-. 
 
 " Sects. 1,2. " Sect. 3. 
 
 I' Sect. A. For tiie form of a declaration merging tithes or litiic icnt-charge 
 when the mcrj^er is rffcrlcd i)y a sp|)iiratc in'^trunicnt, and also for the form of 
 a riaiisc lo l)f" introduced into an agiecMiient for conHoutalion of tithes for clfect- 
 ing llic same purpose, sec Appendix, No 1\'.
 
 MERGER AND EXTINGUISHMENT OF TITHE. 337 
 
 to the merger ; and that any such charge, incumbrance or 
 liability shall have priority over any charge or incumbrance 
 existing upon the lands at the time of such merger taking 
 efFect, but only to the extent of the value of such tithe o^- 
 tithe rent-charge ; and such lands and the owners of them 
 are made liable to the same remedies for the recovery of 
 any payment, and the performance of any duty in respect 
 of such charge, incumbrance or liability, or of any penalty 
 or damages for non-payment or non-performance thereof 
 respectively, as the tithe or tithe rent-charge, or tlie owner 
 thereof for the time being, were or was liable to previous 
 to such merocr. 
 
 All incumbrances, therefore, upon the tithe or tithe rent- 
 charge, which is or may be merged, are not only kept on 
 foot, but directed to be the first charge on the land, so 
 that incumbrances upon tithe and tithe rent-charge which 
 has been merged, appear to be in a better position than 
 before. 
 
 It will be a consequence of the provision before men- 
 tioned, that the lands are to be charged only to the extent 
 of the value of the tithe or tithe rent-charge merged in 
 them, that where there are incumbrances, the tithes should 
 be commuted for an equivalent rent-charge, before any 
 merger takes place, in order to preserve evidence of what 
 is the extent of such value. 
 
 Every person who is entitled to exercise the above powers Maybe appor- 
 for the merger of tithe and tithe rent-charge, may, with the '1°"^'' °^ P^''^ 
 consent of the commissioners under their hands and seal, ^^^^^" '^"''*' 
 and of the person to whom the lands in which such merger 
 shall take effect shall belong, either by the deed or decla- 
 ration by wln'ch the merger is effected, or by any other in- 
 strument made as the commissioners shall approve, spe- 
 cially apportion the whole or any part of any such charge, 
 incumbrance or liability, affecting the tithe or rent-charge 
 merged or })ro])osed to be merged upon any part of the 
 lands in which the merger is effected, or upon any other 
 lands of the same person held under the same title, and for 
 the same estate in the same parish ; or upon the several 
 closes or portions of such lands ; or according to a rate per 
 acre upon lands of different quality, in such manner and 
 proportion and to the exclusion of such of them, as the 
 person intending to merge the same may by any deed or 
 declaration direct. But no land shall be so exclusively 
 charged, unless its value in the opinion of the commissioners 
 shall be at least three times the value of the amount of the 
 charge, incumbrances, or liability charged thereon, over 
 
 z
 
 338 
 
 OF TITHES AND TITHE RENT-CHARGE. 
 
 Merger in glebe 
 lands. 
 
 Where copy- 
 holds are subject 
 to an arbitrary 
 fine, &c. 
 
 Extent of the 
 power to merge. 
 
 and above all other charges and incumbrances, if any, 
 affecting the same.'' 
 
 All the before-mentioned provisions for the merger of 
 tithe and tithe rent-charge are made to extend to glebe or 
 other land, in all cases where the same, and the tithes or 
 tithe rent-charge thereof, belong to the same person in 
 virtue of his benefice, or of any dignity, office, or appoint- 
 ment held by him ; and this will in many cases supersede 
 the necessity of apportioning a contingent, or what we have 
 before called a dormant, rent-charge upon glebe lands."" 
 
 In the case of copyhold lands subject to an arbitrary fine, 
 a fine equal to two years improved annual value may be 
 imposed. It is provided, therefore, that where tithe or 
 tithe rent-charge is merged in such copyhold lands, its 
 value is to be deducted in estimating the improved annual 
 value of the lands ; for this purpose there is to be endorsed 
 on the deed or declaration by which the merger is effected, 
 a certificate under the hands and seal of the commissioners, 
 setting forth the annual value of the tithe or tithe rent- 
 charge so merged ; and the production of such deed or in- 
 strument, or a duplicate thereof with the certificate en- 
 dorsed, or of an office copy of such deed or instrument and 
 certificate endorsed thereon, shall be sufficient evidence of 
 the annual value of such merged tithe or tithe rent-charge.* 
 
 The power therefore of merging tithe or tithe rent-charge 
 now extends to all cases where there is unity of possession 
 and unity of title, for an estate for life or any greater estate, 
 or where any two persons jointly have the power of acquiring 
 such estate. 
 
 Tithe rent- 
 charrje lo be 
 valiiL'il williout 
 (Icduclion for 
 ratus, iSic. 
 
 Section 9. 
 
 Oj the Rales and Assessments to which Tithes and Tithe 
 Rent-charge are liable. 
 
 The commissioners arc directed to estimate the value of 
 tithes, without making any deduction therefrom on account 
 of any ])ar]iamentary,. parochial, comity and other rates, 
 charges and assessments, to which tithes are liable ; and 
 wlieiiever the tithes shall liave been demised or compounded 
 for, on tlie principle of the rent or composition being paid 
 free from all such ratos, chiirges and assessments, or any 
 part thereof, the commissioners are to regard that circum- 
 stance, and to make such addition on account thereof as 
 
 <! See6.Sc 7 Will. 4. c. 71, 8.58; 7 Will. 4 ft 1 Vict. c. 69, s. 9. 
 ' 2& 3 Vict. c. G2, 8.6. 'Sect.?.
 
 RATES AND ASSESSMENTS. 339 
 
 shall be an equivalent.' A regard to this circumstance Usual method of 
 was in fact very generally necessary, for in most of the ■^'^'"J^' ''""^ '^°''" 
 agricultural parishes the valuation of tithes had always ^^^^' 
 proceeded upon the principle of deducting from the amount 
 to be paid the estimated amount of the rate; and this 
 latter, being retained by the occuj)ier, was a compensation 
 to him for the larger amount of rate assessed upon the land 
 held by him, in consequence of no rate being actually paid 
 upon the tithes. This system, although irregular and in- 
 formal, was probably found convenient, and worked no in- 
 justice, so long as the parish was entirely agricultural, and 
 nothing rated but the land. But in parishes partly agri- 
 cultural and partly manufacturing, or where large houses 
 were subjected to a heavy portion of the rate, the injustice 
 and inconvenience of such a system were obvious ; for the 
 land thereby enjoyed a benefit to which it was not properly 
 entitled, there being nothing to compensate the householder 
 and the manufacturer for the increased amount of rate 
 which they had to pay in consequence of the exemption of 
 the tithe. The system nevertheless continued to be very 
 common, up to the time of the commutation of tithes ; so 
 much so, that in many instances the liability of tithe to the 
 payment of any rates had been overlooked or forgotten, 
 and many of the parochial agreements first made and sent 
 to the commissioners contained no notice of or provision 
 for the rates, and were consequently returned by them, in 
 order that the sum equivalent to the rates might be added." 
 
 The rent-charge now payable instead of tithe is to be "Rent-charge to 
 subject to all parliamentary, parochial, county, and other g^Jg^j!|°gg° g.^ 
 rates, charges and assessments, in like manner as the tithes ^g tithe for- 
 commuted for such rent-charge have theretofore been sub- merly. 
 ject." And this consequently brings us to the consideration 
 of an extensive subject, it being necessary to inquire fully 
 to what rates and charges, in what manner, and in what 
 proportions, tithes were subject previously to the commu- 
 tation. 
 
 With respect to the original liability of tithes to temporal Rates and as- 
 charges, independently of any charges that might be created sessnients to 
 
 o '. ' -r • 1 • 1 1 °-i T 1/^1 ic -AT n which tithe was 
 
 on them by statutes, it is laid down by Lord Coke, l\uUus formerly liable. 
 
 pro decimis qucc sunt spiritucdes de aliqiia reparatione 
 
 pontis sell aliquihiis oneribus temporalibus onerari dehat." 
 
 But he adds, that if at that day tithes were in the hands of 
 
 temporal men, they are by reason of them contributory to 
 
 temporal charges. The exemption at common law there- 
 
 ' 6&7 Will. 4.0.71,3.37. 
 
 » See Report of the Tithe Commissioners, dated Nov. 1, 1837. 
 
 '^ 6& 7 Win. 4, c. 71, s. 69. 
 
 z2
 
 340 OF TITHES AND TITHE RENT-CHARGE. 
 
 fore was not on account of the peculiar kind of property, 
 as incorporeal hereditaments, but as being property held 
 by ecclesiastics, and was probably, by virtue of the chapter 
 of Magna Charta, " Quod libera sit ecclesia.'" We derive, 
 however, but little information from the common law on 
 this subject, for all burdens of a public nature to which 
 real estates are subject have been imposed by acts of par- 
 liament. This privilege of exemption, therefore, mentioned 
 by Lord Coke, has ceased to be of any value. 
 Poor rate. The first charge imposed upon real property by act of 
 
 parliament, was the poor rate, created by the 43d of Eliza- 
 beth, c. 2, by which it was enacted that competent sums 
 should be raised by the taxation of every inhabitant, par- 
 son, vicar, and other, and of every occupier of lands, 
 houses, tithes impropriate, propriations of tithes, coal- 
 mines, or saleable underwoods in the parish, for the pur- 
 poses therein specified ; and it is now and long since has 
 been fully established, that by virtue of these words all 
 Doubts as to tithes are rateable to the poor. It may however be an 
 whether ecde- interesting speculation, to inquire how far it is probable 
 was originally ^^^^^ ^^^^^ ^^'^^ Originally intended by the statute. The dis- 
 intended to tinction between tithes of the incumbent, and tithes im- 
 have been rated, propriate, must at that time have been fully understood ; 
 and as the special mention of coal-mines in the statute 
 has been always held to operate as an exception of all 
 other mines, so the mention of tithes impropriate, and 
 impropriations of tithe, might reasonably have operated 
 as an exception of all other tithes ; and so it would un- 
 doubtedly have been held, but for the es])ecial mention of 
 parsons and vicars, for it has been said by Bayley, J.,^ 
 " The motive for specifically naming tithes imj)ropriate and 
 impropriations of titlics probal)ly was, that all other de- 
 scription of tithes had alicady l)cen made chargeable by 
 the words parson and vicar, and the other description of 
 tithes were added to comprehend such as should be in the 
 hands of laymen, and which therefore would not come in 
 under the words ])arson and vicar, tlie object of tlie legis- 
 lature being to include; all |)ossil)lc descriptions of tithes 
 in whatever hands they might be." This is in substance 
 to say, that tlie parson and vicar are rateable for their 
 tithes by inij)lication, and l)ecausc it could only be with 
 that view tliat Ihcy are mentioned; but that reason could 
 only be satisfactory, if there were no other possible pio- 
 perty in respect of which the parson and vicar coidd be 
 rateable. It is obvious, lujwever, that they might have 
 been named, either in respect ol" the glebe and th<> parson- 
 y Rei V. Lacey, 5 IJarii. &: (Jres. 8G3 ; 5 Dowl. & Uy. 670.
 
 RATES AND ASSESSMENTS. 341 
 
 age house, or in respect of any other property whicli they 
 might have lici])pened to hokl in the parish; tlie addition 
 of" the words " and other," woukl make it appear as if it 
 were simply intended to name ecclesiastics and laymen as 
 persons equally liable to be rated ; the property in respect 
 of which they should be rated being next more particu- 
 larly specified. 
 
 If we regard the history of the period when, and the 
 circumstances under which the poor rate was first im- 
 posed, there is every reason why the tithes impropriate, 
 and which, previously to the dissolution of the monasteries, 
 had mainly contributed to the support of the poor, should 
 have been charged ; but the reason does not equally apply 
 to those tithes which, in the hands of the incumbent, 
 might have been supposed to bear already a large share of 
 such a burden. And as the parson was not chargeable at 
 common law, according to Lord Coke, the words and 
 intent of the act ought certainly to have been plain and 
 manifest in order to charge him. 
 
 However this may have been, it must at first have been First notice of 
 considered doubtful whether the incumbent was rateable ^^^" liability. 
 for his titlie under this statute ; for so long afterwards as 
 the twenty-fifth year of Charles II. we find the first men- 
 tion of a case which decides that parsons are liable to the 
 poor rate in respect of their tithes. In that case it is said 
 by Hale, C. J., that he ought to contribute, and that so it 
 had been held by all the judges in England in Serjeants' 
 Inn, in the parson of Pancras's case; and that they 
 were contributory to many other charges, notwithstanding 
 Magna Charta. 
 
 It would seem, however, that long after the above deci- 
 sion the question must have been considered doubtful, 
 or that in practice tithe must have been very commonly 
 considered as exempt, for so lately as in the fourth year 
 of George I,, a vicar assessed to the poor rate in respect 
 of his tithe, appealed to the sessions, and was actually 
 discharged by them. But the King's Bench held upon 
 appeal, that he was chargeable as vicar, and the order of 
 sessions was quashed. 
 
 In many parishes, even up to the time of the recent 
 commutation of tithes, no poor rate had ever been paid in 
 respect of them, and in many others, although it had been 
 allowed for in the valuatiou, that circumstance appeared 
 to have been unknown to and overlooked both by the 
 tithe owner and the parishioners.^ It may therefore be General prac 
 said that it is only since the passing of the Tithe Commu- J|',^gf Jf'^J^JInt 
 » See Ucport of Tithe Commissioners, note, ante. date*
 
 342 OF TITHES AND TITHE RENT-CHARGE. 
 
 tation Act, that the rating of titlie to the poor has been 
 
 generally Avell understood, and uniformly enforced, 
 
 AH payments ia It being established that the incumbent is rateable to 
 
 lieu of titlics the poor in respect of his tithes, it follows that he is 
 
 aie raieab e. equally rateable in respect of a modus, composition real, 
 
 or money payment in lieu of them, for the receipt of these 
 
 is in fact the receipt of the tithe, with the difference only, 
 
 that it is not tithe in kind,^ And so under an inclosure 
 
 act, by which the tithes are extinguished, and a sum of 
 
 money is given to the rector or vicar in lieu of tithes, the 
 
 money so substituted will continue rateable to the poor, 
 
 on the same principle that the tithes themselves were 
 
 Exceptions. before,'' unless there are express words of exemption in 
 
 the act to remove that rateability.*^ 
 Agreement to But if at the time of framing an inclosure act, an ar- 
 
 the contrary. rangement be made between the parson and his pa- 
 rishioners, that the commutation rent in lieu of tithes shall 
 be paid to him " free from all taxes and other deductions 
 whatsoever, except the land-tax," it is a bargain which 
 they are competent to make ; and the effect of it would be 
 that the commutation rent would not be liable to the poor 
 rate. In such a case it was said by Abbott, C. J., " The 
 rector contends that upon the fair construction of those 
 words, his exemption includes payments to be made for 
 the relief of the poor. His parishioners, on the other 
 liand, insists that taxes and deductions are not rates, and 
 therefore that the rector is liable to payment of the poor- 
 rates. Now it has been decided that parochial tax means, 
 or at least comprehends, poor rate ; and I think most 
 correctly. Is not the poor rate a tax ? Would there be 
 any thing absurd in speaking of a poor tax instead of a 
 ])Oor rate ? I consider the former expression equally ap- 
 j)ropriate with the latter; each means merely that a certain 
 aggregate sum is to be levied by division upon many ; and 
 the very language of the statute of Elizabeth is, that a 
 fund sliall be raised by taxation. Now money raised by 
 taxation is a tax. The poor rate is money raised by tax- 
 ation, cr<jo, the poor rate is a tax. I am therefore of opi- 
 nion, that flu; exempting clause in this net of parliament 
 inchidcs the j)oor rates, and that the phiinlill', upon this 
 record, is entitled to judgment."'' And, a fortiori, \\\c 
 parson was held not rateable, wliere in the act it had been 
 (leciured that the connnufation rent was to be j)aid free 
 from all rates, taxes, and ileductions whatsoever. 
 
 • ]\. V. I.nmhclh, 1 Str. 5'24. •> /?. v. lioldero, 4 Harn. & Crcs. 467. 
 
 « Mitchell V. l-'ordham, G liarn. & Crcs. 274 ; U. v. lioldero, aulc. 
 <" Per Abbott, C. J., in Mitchell v. Fordham.
 
 RATES AND ASSESSMENTS. 343 
 
 But where under a similar arrangement it was declared 
 only that the parson should receive tlie net value of the 
 tithes, it was held that this meant their value deducting 
 only the expense of collecting, and not deducting also 
 local burthens.'' 
 
 It has been decided that a vicar was not liable to be 
 rated for a rent-charge payable in lieu of tithes, which 
 were not extinguished by the act, but transferred to 
 a third party. It was provided by an act of parliament 
 that all lands, tithes, and hereditaments in a parish, should 
 be enjoyed by a party in severalty, with all the tithes 
 arising from them or any other lands, subject to the pay- 
 ment of the yearly sum of 100/. to the vicar of the parish 
 for the time being, payable quarterly, with a power of 
 distress ; and it was held that the vicar was not liable to 
 be rated because the tithes were not extinguished, but 
 transferred to the owner of the land; and that if he was 
 rated, there would be a double rating, that is, a rating of 
 the transferee for the tithe, and of the vicar for the money 
 payment.'^ Formerly it may have been a doubtful ques- 
 tion, if the parson let his tithes by deed, which of the two, 
 the lessee or the parson, was rateable for them. But all 
 questions of this nature will now be confined to those 
 cases only where there has been a private act of parlia- 
 ment, or where compositions, confirmed by a decree of" a 
 court of equity, have not since been set aside, and are 
 consequently valid by virtue of the 2 & 3 Will. IV. c. 100. 
 For in all the ordinary cases of tithe commuted under the 
 recent act, the party on whom the rate is to be assessed, 
 and the mode of recovering payment, are clearly desig- 
 nated and expressed.^ 
 
 Tithes and tithe rent-charge are also liable to the high- Highway rate, 
 way rate. The statute,'' directing this, made no distinction 
 between tithes of the incumbent and tithes appropriate, 
 but directs the assessment to be made upon every occupier 
 of lands, tenements, woods, tithes, (fee. within the jiarish ; 
 and by the 27th section of stat. 5 k6 Will. IV. c. 50, 
 which repeals the above act, the highway rates are directed 
 to be levied upon all property then liable to be assessed to 
 the relief of the poor : provided that the same rate should 
 also extend to such woods, mines and quarries of stones, 
 or other hereditaments, as had theretofore been usually 
 rated to the highways. 
 
 The cases above considered as to the exemption from 
 the poor rate of compositions under an inclosure act, or 
 
 « See R. V. Lacy, ' R. v. Great llamhledon, I Ad. & Ell. 145. 
 
 s See post. '' 13 Geo. 3, c. 78, s. 45.
 
 344 OF TITHES AND TITHE RENT-CHARGE. 
 
 by arrangement between the parties, are equally appli- 
 cable to the case of highway rates. Thus a rector was 
 held to be rateable to the repair of the highways in respect 
 of rents which were substituted for tithes under an inclo- 
 sure act, which directed that all great tithes payable to the 
 rector of the parish should be extinguished, and that the 
 commissioners should ascertain the net value of such tithes, 
 and affix a fair clear annual rent or sum of money per acre 
 in lieu of such tithes, and as an adequate compensation for 
 the same to the rector.'' 
 wiio is the oc- In strictness of language there cannot be an occupier of 
 cupier oftUlies tithe; tithe in its nature not being the subject matter of 
 way Act. ° ' occupation. But by the occupier of tithes within the 
 General Highway Act, 13 Geo. III. c. 78, is understood the 
 person who receives the tenth part of the produce. When 
 the owner of the tithe grants out and conveys any of the 
 tithe to another, that other is the occupier. Where the 
 right continues in himself, he is the occupier.' As for 
 example : A. being lessee of tithes, compounded for them 
 with the respective occupiers by parol agreements, under 
 which they retained the tithes accruing on their respective 
 lands to their own use, with the remaining nine parts, 
 from which no severance took place ; the tithes were not 
 bargained and sold when at maturity, but the agreements 
 were prospective, and had no reference either to any s])e- 
 cific mode of cultivating the lands, or to the amount of the 
 produce in any particular year. The composition money 
 was paid half-yearly, and it was held that the lessee was an 
 occupier of tithes within the meaning of the words in the 
 Highway Act, and liable to be rated as such,'' 
 Tithes not liable It may be here observed, that all property forming part 
 to church rates. Qf ^ rectory or vicarage is exempt from church rates, who- 
 ever may be the occu])ier; and that no [)arson or vicar can 
 be charged to the rej)airs of the church of any parish by 
 reason of their tithes or glebe therein : and the reason of 
 this is, because out of them they are bound to repair the 
 chancel, of which liability we have spoken in another 
 place.' 
 Proportions in VVe next proceed to inquire the rule by which tithe 
 
 which tithe rent- rcnt-charge is to be rated, and the proportion relatively 
 
 mX '''"'''' ^" "^''^''' ^"'^^ ^^ property in which the rate is to be im- 
 ])Osed. 
 
 No poor rate is to be allowed by any justices, or to be 
 of any force which is not made upon an estimate of the 
 
 'i Itei V. I.iio/, ante. ' Shclfoid on rilhcs, 40. 
 
 k Chauter V. 'aiiihb, <) Hani. v«t Crcs. 479. 
 
 I 17 Viner's Ahi. .077, 578 ; and see I'rideauK on Cliurchwardcns, 88, &c.
 
 RATES AND ASSESSMENTS. 345 
 
 net aiinuul value of the hereditaments rated, — that is, of 
 the rent at which the same might reasonably be expected 
 to be let from year to year, free of all usual tenants' rates 
 and taxes and tithe commutation rent-charge (if any), 
 deducting the probable average annual cost ot the repairs, 
 insurance and other expenses (if any) necessary to main- 
 tain them in a state to command such rent."' This enact- All rates to be 
 ment is an affirmance of the old cstablislied rule of rating, °"a{'JXc.''"' 
 that all lands are to be assessed in proportion to the net 
 rent which a tenant at rack-rent would pay, he discharging 
 all rates, charges and outgoings. Thus, prior to the sta- 
 tute above-mentioned, the question for the Court of Q. B. 
 in a case on appeal from the sessions was, in effect, whe- 
 ther the occupier of lands in a district of the parish of 
 Pagham, which was liable to be fiooded, and was pro- 
 tected from floods at a certain occasional expense, ought 
 to be rated at the same sum as the occupier of lands of 
 similar quality and of equal annual produce, lying in the 
 same parish, but not hable to the same expense ; and the 
 court was of opinion that he ought not : and in that case 
 Parke, B. adds : " It is not material whether the whole or 
 a certain aliquot part of the net profit be rated, provided 
 all lands of the same description are rated equally upon 
 that aliquot proportion of the profit ; and in practice it is 
 usual, and it is most convenient, to rate lands at the rack- 
 rent which they would pay to a landlord, or some certain 
 portion of it, the tenant paying all rates, charges and out- 
 goings, — which is, in effect, rating according to a part of What is taken 
 the net profit only ; but provided it be the same aliquot ^° j*;^^ "'^ '""""^ 
 part in all cases, it makes no difference." " 
 
 Further, if the subject of occupation be of a perishable 
 nature, or require any annual expense to secure its exist- 
 ence, an allowance ought to be made on this account; for 
 the total annual profit is not the net annual profit,— a part 
 must be set aside for the restoration and maintenance of 
 the subject of occupation. It is on this principle that 
 buildings have been permitted to be rated at less in pro- 
 portion than arable and other land. The cases, esi)ecially 
 those of a more recent date, in which the principle of rating 
 has been more fully discussed and considered, will be found 
 to have established this rule of rating, which is, in other 
 words, that all lands are to be assessed in proportion to 
 the net rent which a tenant at rack-rent would pay, he 
 discharging all rates, charges and outgoings." 
 
 The common law and the statute having alike established Eq'i.-iliiy in 
 
 ^ rating necessary, 
 
 m 6 & 7 Will. 4, c. 96, s. 1. 
 
 n Rex V. Adames, 4 Barn. & Ad. 61 ; 1 Nev. & Man. 662. ° IbiJ.
 
 346 
 
 OF TITHES AND TITHE RENT-CHARGE, 
 
 Application of 
 these rules to 
 the rating of 
 tithe rent- 
 charge. 
 
 Supposed dif- 
 ferent principle 
 on which tithe 
 and lands were 
 to be rated. 
 
 the above to be the correct rule of rating, as to the deduc- 
 tions proper to be made, another principle is to be applied, 
 for the great object to be aimed at in every rate is equality ; 
 so that, whatever be the proportion in which, according to 
 its true rateable value ascertained by the above rule, any 
 kind of property is rated, the same is the proportion in which 
 every other kind of property in the same parish is to be 
 rated. These principles, if correctly applied, appear not 
 only to be consistent with but necessarily connected with 
 one another. 
 
 It was however at one time imagined that, as between 
 the rate imposed upon lands and that imposed on tithe 
 and tithe rent-charge, there would be no equality unless 
 the net annual value of the lands to be rated was taken to 
 be, in addition to the rent at which the same might rea- 
 sonably be expected to be let, such further annual value or 
 profit as the farmer might obtain in consequence of his 
 labour and capital expended on them, or, which would 
 have been the same thing, unless the tithe or tithe rent- 
 charge was rated proportionably less. And in fact it at 
 one time appeared to be established by the following case 
 that such was the correct mode of computation in order 
 that equality might be attained ; for in the case of the 
 King v. Joddrell,^ it was said by Parke, J. : " The second 
 objection was, that the farmer s share of profit ought to 
 have been rated, or, which is the same thing, that the 
 appellant (the tithe owner) should have been rated propor- 
 tionably less ; and that objection should, in our opinion, 
 have prevailed. Of the whole of the annual jirofits or 
 value of land, a jiart belongs to the landlord in the shape 
 of rent, and part to the tenant ; and whenever a rate is 
 according to the rack-rent, it is in eftect a rate on a part 
 of the jirofit only. It must therefore, in the next place, 
 be ascertained what proportion the rent bears to the total 
 annual profit or value, and that will show in what propor- 
 tion all other property ought to be rated. If, for instance, 
 the rent is one-half or two-thirds of the total annual profit 
 or value of land, the rate on all other property shoidd be 
 on a half or two-thirds of its annual value. In tiiis case 
 it is clear that there was a share of profit received by the 
 tenant upon which there has been no rate ; and in that 
 respect the farmers were assessed in a less proportion of 
 the true annual profit or value than Iho appc^llant. The 
 sessions were tlu^refore wrong in disallowing this objecUon, 
 and they ought to ascertain the ratio which the rent of 
 land bears to its average annual jirofit or value, and assess 
 
 P 1 Barn. & Ad. 403.
 
 RATES AND ASSESSMENTS. 347 
 
 the appellant for his tithe rent in the same ratio." And 
 this doctrine apparently was adopted, and the above case 
 referred to as an authority on this point in a case decided 
 shortly afterwards. 
 
 The following passage in Nolan's Poor Laws is also in 
 favour of the doctrine. After mentioning the different 
 modes of valuation it is there said, " all these modes of 
 valuation proceed upon the assumption, that the rack-rent 
 is the criterion of that actual value upon which the tax is 
 laid : but this principle is fallacious ; rent being only so 
 much of the actual value as the tenant can afford to pay 
 his landlord, deducting the expense of cultivation, and a 
 reasonable remuneration for trouble and time. The rent 
 therefore is the landlord's profit ; the reasonable remune- 
 ration is the tenant's profit. Both come from the land, 
 and form parts of its productive value. When land is oc- 
 cupied by the proprietor, he receives both these profits ; 
 when it is demised to a tenant, they are divided." But it 
 was well observed by Mr. Justice Parke, in the conclusion 
 of his judgment in the case of The King v. Joddrell, 
 that " although the rate must be amended in conformity Difficulty of 
 with the principles there laid down, a precise and accurate applying sucii 
 application of those principles would be impracticable." 
 And he might have added, that the amount of the tenant's 
 profit in proportion to rack-rent would in fact differ in 
 every conceivable ratio in different parishes, or even in 
 different parts of the same parish, according to the quality 
 of the land ; nor does there appear to be any criterion by 
 which an approach to certainty could be attained. 
 
 But in truth an error is introduced, as we shall presently Error and iucor- 
 see was observed by Lord Denman, in the use of the words '^r^^^^ig"*^^''^ 
 " profits" and " value" as synonymous, for the annual 
 value of the land is correctly represented by the rack-rent 
 which the landlord obtains for it ; while the profit obtained 
 by the farmer is not so much arising from the land, as 
 from the capital and industry he employs upon it ; and as 
 larger capital and greater industry are employed, so pro- 
 bably will that profit be increased. That profit in fact is 
 only to be obtained by ai)plying the skill and indu^^try 
 of man to capital brought from another source, and quite 
 independent of the land itself. The annual profit of the 
 farmer is therefore independent of the land, it is the profit 
 not of the land, but of his capital or stock. And as to this 
 it is expressly said in Viner's Abridgment,'' a farmer is not 
 to be taxed to the poor for his necessary stock according 
 to the land he holds j but if he has a superabundant stock, 
 V 16 Vin. Abr. 426, Poor, E. pi. 6.
 
 348 OF TITHES AND TITHE RENT-CHARGE. 
 
 i. e. more than the land requires, he shall be taxed for 
 that." In the margin it is added, " it may be laid either 
 on lands or goods ; but a farmer being assessed for the 
 • land he occupies, shall not be assessed for his stock on it 
 necessary for manure, nor the profits for which he has 
 been already taxed, but for other stock he is taxable :" 
 and again it was resolved, by three judges against Holt, 
 C. J., that a farmer shall not be rated to the poor for his 
 necessary stock which he uses on his farm, for that would 
 be in eflect to make the land pay twice for one thing, viz. 
 for the rent, and also for the stock. But a farmer shall 
 be taxed for his riches and stock, in case the stock is more 
 than is necessary for the carrying on his farming, and pay- 
 ing his rent, for then it is like a stock in trade.'' 
 
 But even if the rate had been assessed upon this stock 
 or capital, the inequality, so far from being removed, would 
 only liave been increased and made more extensive, unless 
 inquiry had been made in every case into the profits of 
 the capital and labour of every individual occupier of 
 houses or lands in the parish, and several assessments 
 made accordingly. 
 The principle In fact the rule which appeared to be introduced and 
 
 sanctioned by the words of Mr. Justice Parke in the case 
 of Tlie King v. Joddrell, was equally inconsistent with 
 principle and authority ; and accordingly, in the following 
 case brought before the Court of Queen's Bench, such a 
 rule has been distinctly repudiated, and the judgment upon 
 this point been overruled. In the case of The Queen v. 
 Capel,^ which was an appeal by an incumbent from an 
 order of sessions, the aj>pellant objected to the assess- 
 ment as unequal and illegal, alleging that he was rated in 
 a larger j)roportion to tlie full yearly amount of the clear 
 profits of his tithes, and to the lull yearly value of his 
 dwelling-house, than the occupiers of lands in the parish, 
 who were not rated enough in respect of their rateable 
 ability as sucli occuj)i('rs, inasmuch as they were only 
 rated to the amount of their rents, which was a smaller 
 
 'I If any doul)t coiiKl liavc existed as to wlietlier a farmer would be liable to 
 be rated in respect of lii» stock in trade, it is presumed tiiat it would be now 
 removed by the slat. A bi. A \'i(t. c. ti!), whereby it is declared, that fioni and 
 after the passing of that act, it shall not be lawful for Ihc ovctsceisof any paiioli, 
 township or vijla^'c, lo tax any iniiabitanl thereof, as such iidiahitani, in respect 
 ol his abilily derived from the jjrofits of his stock in trade, or any other pro- 
 perty, for or towards the relief of the poor. 'J'lic duration of this act was liniiied 
 to one year, after which it was declared that its provisions should have no 
 cllcct ; but its duration has been by two subsequent statutes c.xleuded to Oc- 
 tober, 18'14, and will jirobably continue to be extended, until its provisiotis shall 
 be incorporated into some i-cncral act on the subject of rating. 
 
 r 12 Ad. & i;il. 383. 
 
 now overruled.
 
 RATES AND ASSESSMENTS. 349 
 
 proportion of the profits derived from the land, than the 
 sum at which the vicar was rated bore to the yearly value 
 of his tithes ; and that the said occupiers were not rated 
 for any part of the remainder of their profits, wliich 
 amounted on an average of the parish to two-thirds of 
 their rents : and that the occupiers of shops, warehouses, 
 wharfs and factories in the parish were not rated high 
 enough in respect of their rateable ability as such occu- 
 piers, inasmuch as the profits made from business carried 
 on in the same, which amounted to a sum equal to their 
 rents, were not included in the estimate of the annual 
 value thereof to such occupiers. And he contended, that 
 such a reduction in the assessment on his tithes and dwell- 
 ing-house ought to made, as would hear a just j^i'oportion 
 to the assessment made on the occupiers of lands, shops, 
 warehouses, wharfs and factories, or that an increase on 
 the assessments on the said occupiers in respect of their 
 ability as such occupiers ought to be made, in proportion 
 to their profits respectively. 
 
 In this case the statute above-mentioned, 6 &: 7 Will. IV. 
 c. 96, commonly called the Parochial Assessment Act, 
 and which we have already mentioned as giving the cor- 
 rect rule of rating, was relied upon by both parties ; the 
 respondents contending for the plain and obvious meaning 
 of the enactment in the first section ; the appellant con- 
 tending that the proviso immediately following the enact- 
 ment, at the conclusion of that section, was intended to 
 apply to the case of tithes, and that it showed the exist- 
 ence of the different liabilities in the case of tithes and 
 lands, which it was sought to establish. The words of 
 that proviso are as follows: "provided always, that no- 
 thino- herein contained shall be construed to alter or afi'ect 
 the principles or different relative liabilities (if any), ac- 
 cordino- to which the different kinds of hereditaments are 
 now by law rateable." 
 
 Lord Denman in giving judgment says, this rate strictly 
 complies with the enacting part of G & 7 Will. IV. c. 9G, 
 s. 1 ; and if that embraces tithes as well as land, and if 
 the proviso at the end does not interfere, that rate will be 
 good, even thouoh it could not be sustained on the prin- 
 ciples laid down in former decisions. But, supposing 
 tithes to be within the enacting part, it was strongly con- 
 tended that they must also be within the proviso. The lan- 
 guage of this proviso, it must be owned, is very inartificial; 
 and loose, to a dearee which renders the discovery of a 
 definite moaning to all its ])arts extremely diliicult. lo 
 speak of the princij)les on which rating has proceeded is
 
 350 OF TITHES AND TITHE RENT-CHARGE. 
 
 intelligible; but we also have to deal with the different 
 " relative liabilities," according to which different kinds of 
 hereditaments are " rateable." If principles " and liabi- 
 lities" are intended to express the same thing, tithes are 
 not witliin the proviso ; for the titheholder ivas never rate- 
 able on any 'principle different from the landholder. But 
 the word " liabilities" is supposed to go much further ; and 
 to set up the doctrine of Rex v. Joddrell to the extent of 
 showino; that land and tithes are under " different relative 
 liabihties," which difference the proviso meant to leave 
 untouched. On this much canvassed decision we cannot 
 refrain from making some few remarks. 1. It neither in- 
 troduced, nor affected to introduce, any new law. On the 
 contrary, the court cited it in a later case, as a recognition 
 of the old principle to which we have alluded. 2. The 
 tithe owner had not been allowed any deduction beyond 
 the parochial rates, whicli he paid on the gross amount of 
 the corn-rent substituted for his tithes. Either, therefore, 
 he was not rated on the principle of what his own corn- 
 rent was worth to let after the usual tenant's deductions, 
 or it was assumed, contrary to the fact, that the corn-rent 
 would let for exactly its gross amount, deducting only the 
 parochial rates. On the other hand, the respondents, the 
 land occupiers, Avere rated on their actual rents, although 
 it was admitted that a profit accrued to them from the 
 occupation, beyond the rent, the interest of capital em- 
 ployed, the expenses of cultivation, and compensation for 
 trouble, labour and superintendence : they therefore were 
 rated on their rack-rent : but it was a rent manifestly 
 below that which the land was annually worth. The ses- 
 sions, therefore, in efi'cct, found that the tithe composition 
 was rated at its yearly value, and the land below its yearly 
 value. The language of the court in that case must be 
 admitted to go further. It appears to lay down the fol- 
 lowing rule, of general application and of great import- 
 ance. " Of the whole of the annual j)rofits or value of 
 land, a part belongs to the landlord in the shape of rent, 
 and jmrt to the tenant ; and whenever a rate is according to 
 Ww. rack-rent (the usual and most convenient mode), it is, in 
 effect, a rate on a part of the profit only." Now, this im- 
 portant sentence expresses no general proposition of law, 
 nor any conclusion of fact from any premises stated in the 
 case: it is an assumption, in the most general terms, upon 
 a point much (picstioiud by tliose who have made such 
 matters their peculiar study. It is certainly inconvenient 
 to make such an assumption ; the very terms "profit" and 
 " value," used as synonymous, raise arguments as to their
 
 RATES AND ASSESSMENTS. 351 
 
 meaning ; and the whole proposition is controverted. In 
 this part of the argument, one consideration is supposed to 
 be of tlie utmost weight. If the landlord held the farm 
 in his own hands, the annual value would consist of the 
 amount of rent for which it might be let, with the addition 
 of the tenant's profit. He would, in that case, have no- 
 thing to deduct but the ordinary outgoings and his bailiff's 
 wages. But who shall say that these wages might not be 
 equal to the estimated profits of the tenant ? or in the 
 simpler case of the owner being entirely his own manager, 
 that his personal labour, withdrawn from other profitable 
 occupation, was not of equal value ? As a proposition 
 of law, we cannot assert this, nor as a fact deducible 
 from scientific axioms too clear for controversy. That No difference in 
 discussion we purposely decline, preferring to say merely the legal liabili- 
 
 that Rex v. Joddrell does not convince us that there was *'^^ °' ''^'i1 i 
 i./v. . 1, iTi'T- n 1 • 1 owner ana lanil 
 
 any dmerence m the legal habilities oi the tithe owner and owner. 
 
 the occupier of land. If any case shall arise in which the 
 facts show that the rule, though formally applied accord- 
 ing to the statute, will work injustice to the tithe owner, 
 there will be no more difficulty in relieving him than in 
 relieving one land owner as against another. But the 
 facts of this case call for no such interposition. 
 
 It is now therefore clearly settled, that there is no dif- 
 ference between tithe, or tithe rent-charge, and any other 
 hereditaments in their relative liabilities to be rated ; but 
 that tithe and tithe rent-charge are to be rated upon an 
 estimate of their net annual value. 
 
 The mode in which the net annual value is to be ascer- Net annual 
 tained in the case of tithes, and what deductions are value of tithe 
 allowed to be made before the rateable amount is fixed, [^"'■'^''^^'■g^' 
 
 ' now asccr- 
 
 will be seen from the following parts of the judgment in tained. 
 the case of The King v. Joddrell above mentioned, and 
 which remain unaffected by any subsequent decision. For 
 it will have been observed, that the case last mentioned 
 of The Queeji v. Capel, while it over-rules the supposed 
 principle which was sanctioned by the case of The King 
 v. Joddrell, recognizes and establishes the authority of 
 the last-mentioned case in all other respects. It was 
 there said by Mr, Justice Parke, " This was a question 
 between the rector of a parish and the farmers in it, as to 
 the extent to which he on the one hand, and they on the 
 other, ought to be rated. The tithes in the parish were 
 extinguished, and the rector had a corn-rent or compen- 
 sation in their stead. He was rated to the full extent of 
 all he received, with the deduction only of what he paid 
 for parochial dues. He claimed, as additional deduction.
 
 352 OF TITHES AND TITHE RENT-CHARGE. 
 
 the amount of his land-tax, the amount of what he paid 
 for ecclesiastical dues (which would include tenths, syno- 
 dals, &c.), and a compensation for performing or pro- 
 viding for the duties of his incumbency. The farmers 
 were rated at the bona fide amount of the rack-rent at 
 which the farms were letting, or which they were worth 
 to let, the tenants paying the corn-rent or compensation 
 for tithe ; and the rector contended that they ought to be 
 rated in addition upon that corn-rent or compensation 
 they paid him, and upon their share of profit beyond the 
 True rateable rent. The great point to be aimed at in every rate is 
 value of pro- equality ; and whatever is the proportion at which, accord- 
 ^ ^' ing to its true rateable value, any property is rated, is the 
 
 proportion in which every other property ought to be rated. 
 The first thing upon every rate, therefore, is to ascertain 
 the true rateable value of every property upon which the 
 rate is to be imposed ; and the next to see upon what 
 proportion of that value a rate is in fact to be imposed. 
 In the case of land, the rateable value is the amount of 
 the annual average profit or value of the land after every 
 outgoing is paid, and every proper allowance made, not, 
 however, including the interest of capital, as the sessions 
 have done, for that is a part of the profit. Tithe is an 
 outgoing, and therefore the corn-rent or compensation for 
 tithe in this case is not to be added to the amount upon 
 which the farmer is rateable ; and in respect of that por- 
 tion of the annual profit or value which consists of tithe 
 or corn-rent, the rector is himself to be assessed. The 
 last objection was, that the appellant ought to have had 
 the land-tax, ecclesiastical dues, and the expenses of pro- 
 viding for tlie duties of incumbency deducted from the 
 rateable value of the tithes. As to the land-tax, that is 
 always in practice ])aid in the first instance by tenants ; 
 and whether it is to be deducted or not in this case must 
 depend upon the answer to a previous (question, whether 
 the tenants in the parish deduct it from the rents specified 
 or not. If they do, the landlord pays it, in effect, out of 
 th(! rent he receives ; and the apjiellant, to be on the same 
 footing, must do the same; in that case it nmst not be 
 <leducted in making the rate on him. But if the tenants 
 pay the specified rents and the land-tax besides, then they 
 Ir.ivo, in effect, not been rnted upon that portion of the 
 annual profit or value with which the hiud-tax is paid, 
 but upon a part of the residue only, after dechicling the 
 land-lax. Upon this suj)|)osition the aijpellant must also 
 be rated in ;i pro|)(jition;i(e part of his |)rofi(, after de- 
 ducting the land-tax. The ecclesiastical dues ought to be
 
 RATES AND ASSESSMENTS. 3,-^3 
 
 allowed, because they are payable by the a])pelluiit hi 
 iesi)ect of his rectory, and the profits of the rectory con- 
 stitute the only fund out of which they can Ije ijaid ; but n 
 ,, -^ P . ,. p .1 1 /• (- • ' 1 Lxneiises of 
 
 tlie expenses or ])rovidmg lor tlie duties ol mcumbency providing for 
 
 ought not to be deducted, because those duties are per- duties oiincum- 
 sonal, and ought to be performed personally by the incum- dej"^^,"j' '" ''^ 
 bent. The last objection, therefore, ought to prevail in 
 ]:)art. 
 
 Having ascertained to what rates tithe and tithe rent- j^j^j^, ^f ^g_ 
 charge are liable, and in what proportions, on what amount, covery, &c. of 
 and subject to what deductions, they are to be assessed, rates charged 
 we next incjuire in what manner such rates may be re- charge! ^^"' 
 covered and enforced. This is now regulated by the Act 
 for the Commutation of Tithes, by which it is declared,* 
 that all rates and charges to which any tithe rent-charge 
 is liable shall be assessed upon the occupiers of the lands 
 out of which such rent-charge shall issue ; and in case 
 the same shall not be sooner paid by the tithe owner, they 
 may be recovered from such occuj)ier in like manner as 
 any poor rate assessed on him in respect of such lands. 
 And any occu])ier holding such lands und'-r any landlord, 
 and who shall have ])aid any such rate or charge in respect 
 of any such rent-charge, shall be entitled to deduct the 
 amount thereof from the rent next payable by him to his 
 landlord ; and any landlord or owner in possession who 
 shall have j)aid aay such rate or charge, or from whose 
 rent the amount of any such rate or charge shall have been 
 so deducted, shall be entitled to deduct the amount thereof 
 from the rent-charge, or by other lawful ways and means 
 to recover the same from the tithe owner, his executors or 
 administrators: provided, that the tithe owner shall have Right of tithe 
 and be entitled to the like right of demanding, inspecting owner to in- 
 and taking co})ies of every assessment containing such rate "^^^^^ ' '^ ''^'^' 
 or charge, and of appeal against the same, and the like 
 power of prosecuting such appeal, and the like remedies 
 in respect thereof, as any occupier or rate payer has or may 
 have in the case of poor rates, although such charge or rate 
 is by the act made assessable upon the occupier, and the 
 owner of the rent-charge is not mentioned by name in such 
 assessment. 
 
 The churchwardens and overseers of the poor are to 
 allow any inhabitant to inspect the poor rates, and to take 
 copies; and a penalty of 20/, is imj)osed for refusing such 
 inspection and copies.* But the demand of an inspection 
 must be made at a reasonable time and place ; and there- 
 fore, wliere the demand was made at a parishioner's own 
 
 " 6 & 7 Will. 4, c. 71, s. 70. t 17 Geo. 2, c. 3, ss. 2, 3. 
 
 A A
 
 354 OF TITHES AND TITHE RENT-CHARGE. 
 
 house at 8 o'clock in the evening, and not at the house of 
 the overseer, no penalty was incurred by the refusal." 
 
 The provisions of the 17 Geo. II. c. 3, appear to be 
 superseded by those of the 6 & 7 Will, IV. c. 96, which pro- 
 vides, that any person rated to the relief of the poor of the 
 parish, in respect of which any rate shall be made, may at 
 all seasonable times take copies thereof, or extracts there- 
 from, without paying any thing for the same ; and in case 
 the person or persons having the custody of such rate 
 shall not permit such person or persons so rated as afore- 
 said to take such copies or extracts, the person or persons 
 not permitting such copy or extract to be made shall forfeit 
 and pay any sum not exceeding 5/., to be recovered in a 
 summary way before any justice of the peace having juris- 
 diction in the parish or place. 
 
 It would, however, lead us too widely from our present 
 subject, if we were here to enter upon and explain those 
 remedies of the rate payer, which are above alluded to ; 
 for these the reader is referred to those works which have 
 treated more particularly of the law of rating.'^ 
 
 It was said by Mr. Justice Taunton, in The Kivg v. 
 The Justices of Sussex/ that where compositions for tithes 
 were entered into by the rector, the parish had a riglit to 
 put his name upon the rate for the entire sum, tliat they 
 might have his responsibihty for the whole. If that be so, 
 it does not appear to be altered or affected by the words 
 of the act last mentioned. 
 Assessmentmay By the statute 7 Will. IV. & 1 Vict. c. 69,^ it is enacted, 
 be made on oc- i]^.^^^ ^\i rates and charges, to which any tithe rent-charge 
 or on litiie^ ' shall be liable, may be assessed upon the owner of the 
 owner. rent-charge ; but it does not state positively that it shall 
 
 be assessed upon him ; and it is presumed, tlierefore, that 
 whether assessed upon the tithe owner, or upon tlie owner 
 of lands out of which the rent-charge shall issue, according 
 to the provisions of the first mentioned act,'"' it would in 
 cither case be equally correct, and that no objection could 
 be raised to such a rate. But in order to ]iiovide more 
 j)articularly foi' the distinguishing the several inten^sts in 
 respect of which the rate is imj)osed, and to prevent any 
 confusion as to liability in respect of the rent-charge, and 
 the land upon which it is charged, it is enacted by the 2 
 &. .S Vict. c. (i'J, that the assessor or collector of any rate 
 on tax shall, within forty days after a notice in writing 
 
 " Speiiceloii V. liohiiis.iii, ^i IJarn. i'*< Cress, fi.'ifi. 
 
 " See J)i('kcnsoirs (^iiarler Sessions; 'l'li»!ol):il(l on tin; J'oorLawsj Arcli- 
 l.olil. tit. Poor ; 17 (ico. 2, c. 3 ; G \ 7 Will. '1. c. Uii. 
 y 3 x\cv. & Wan. 2(i5. '■ Seel. 8, » G & 7 Will. 4, c. 71, s. 70.
 
 RATES AND ASSESSMENTS. 355 
 
 signed by any land owner or tithe owner interested tlierein, 
 specify in his assessment made for the purpose of levying- 
 and collecting such rate or tax, the names of the several 
 occupiers of tithes, lands and tenements subject to such 
 rate or tax, as well as the sum assessed on the tithes, lands 
 or tenements held by each occupier." The whole or any .Mode of reco- 
 part of the rate thus assessed upon the tithe owners may ^^'y "''^^ *s. 
 be recovered from any one or more of the occupiers of the tfih^eowne" 
 lands out of which such rent-charge shall issue, in case the 
 same shall not be sooner paid by the owner of the rent- 
 charge upon which it is assessed, in the same manner as 
 any poor rate assessed upon such occupier in respect of the 
 lands in his occupation may be recovered. Twenty-one 
 days' notice in writing, previous to any one of the half- 
 yearly days of payment of the rent-charge, must be given 
 to the occupier. And the collector's receipt for the pay- 
 ment of such rates and charoes shall be received in satis- 
 faction of so much of the rent-charge by the owner thereof. 
 But no occupier shall be liable to pay, at any one time, in 
 respect of such rates and charges, any greater sum than 
 the rent-charge payable in respect of the lands occupied 
 by him in the same parish shall amount to for the current 
 half year in which such notice shall have been given.*= 
 
 Section 10. 
 Recovery of Tithe Rent-charge. 
 
 Tithe rent-charge is now made recoverable by distress 
 and entry, that is, the remedy is directly upon the land 
 charged ; but no party is personally liable to pay it,'^ so 
 that the remedy cannot be by action. 
 
 If, therefore, the rent-charge remain unpaid for twenty- By distress and 
 one days, power is given to distrain after ten days' notice entry. 
 in the same manner as for rent reserved on a common 
 lease for years; but not more than two years' arrears can 
 be recovered. If the rent-charge be in arrear for forty 
 days, and there shall be no sufficient distress on the pre- 
 mises, anyjudoe of the courts of record at Westminster 
 may, upon affidavit of the facts, order a writ to be issued, 
 directed to the sheriff of the county in which the lands are 
 situate, requiring him to summon a jury to assess the ar- Mode of pro- 
 rears of rent-charge remaining unpaid, and to return the ceedmg. 
 inquisition thereupon taken. A copy of this writ, and a 
 
 I' 2 & 3 Vict. c. 62, s. 3. <^ 7 Will. 4 & 1 Vict. c. 69, s. 8. 
 
 '' 6 6c 7 Will. 4, c. 71,8.67. 
 
 A a2
 
 356 OF TITHES AND TITHE RENT-CHARGE. 
 
 notice of the time and place of its execution, is to be given 
 * to the owner of the land, or left at his last known place of 
 
 residence, or with his agent, ten days previous to its exe- 
 cution. This writ the sheriff is required to execute; and 
 the costs of the inquisition are to be taken by the proper 
 officer. The owner of the rent-charge may then sue out a 
 writ of Jiahere facias yosscss'wnem, directed to the sheriff, 
 commandin"' hini to cause the owner of the rent-charge to 
 have possession of the lands chargeable therewith until the 
 arrears of rent-charge found to be due, and the said costs, 
 and also the costs of such writ and executing the same, and 
 of cultivating and keeping possession of the lands, shall 
 be fully satisfied : provided, that not more than two years' 
 arrears over and above the time of such possession shall 
 be at any time recoverable.' 
 
 The party taking possession may be called to account 
 for the profits of the land, and of the receipts and pay- 
 ments in respect thereof, by the order of any such judge 
 as before mentioned ; and when he has accounted, a writ 
 of supersedeas to the before-mentioned order may be issued, 
 and by rule or order of court such judge may from time to 
 time give such summary relief to the parties as he may 
 think fit.* 
 In case of Distresses to be made undi.i' these ])rovisions upon the 
 
 Quakers. lands of Quakers may be made upon their goods, &c., 
 
 whether on the ])remises or elsewhere. And in all cases 
 of such distresses, the goods, kc. may be sold without its 
 being necessary to impound or keep them. But no writ 
 shall be issued for assessing or recovering any rent-charge 
 payal)le in respect of any lands in the possession of such 
 persons, unless it shall have been in arrear for forty days 
 next after any half-yearly day of j)ayment, without the 
 owner of the rent-charge being able to fnid any goods, Ike, 
 either on tlie ])reuhses or elsewhere, liable to be distrained, 
 sufficient to satisfy the arrears to which the lands are liable, 
 t(jg<!ther with the costs of the distress." 
 
 It has been observed that, in consecpiencc of the word 
 elsewhere being inserted in tlu^ second place, the owners 
 <;f the rent-cliarge may have some difficulty in ascertaining 
 the fact whether a (Quaker, who icsides at a distance, has 
 gfxnls liable to be distrained. JJefore the writ is issued, 
 an affidavit of the facts will be required ; one of which will 
 be, that the jjcrson entitled to the rent-charge cannot fuid 
 'J'o wlini lands any goods to distiain.'' 
 
 the power of Not withstandiu" the a|)|)orlionuient of the rent-charge, 
 
 distiess, &c. -? ii d > 
 
 extends. ■ .Sect. 82. ' Sect. 8;}. 
 
 (5 Socl. 81. '' Shelford on I'lllif , '271.
 
 RECOVERY OF TITHE RENT-CHARfiE. 357 
 
 tlie powers of distress and entry for recovery of it are to 
 extend to all lands within the parish, which may be occu- 
 pied by the owner under the same landlord, wliether the 
 arrears may have been chargeable on the lands on which 
 such distress is taken, or upon any other so occupied.' 
 
 If the rent-charge to be recovered does not exceed ten Smninniy jutis- 
 pounds, or if, in the case of (Quakers, it does not exceed ^" ''"" ^°' ^^'^°' 
 fifty pounds, and also if there is no claim of prescriptive ^^'^^' 
 exemption or modus in the case, the party to whom it is 
 payable is to make complaint to one or more justices of 
 the peace, who may summon the party against whom the 
 complaint is made to appear before him or them, and ad- 
 judge the case in writing under their hands and seals, and 
 also such costs, not exceeding ten shillings, as shall appear 
 just; or they may give costs, not exceeding the same 
 amount, to the party prosecuted, if they find the complaint 
 false and vexatious. From the decision of the justices an Appeal, 
 appeal is given to the sessions ; and if the sessions confirm 
 the order of the justices, they may give such costs against 
 the appellant as may seem just and reasonable.'' Where 
 the justices are patrons of the church, the parties are to 
 be summoned before the justices of an adjoining countv, 
 riding or division.' 
 
 No proceeding may be had in any other court to recover 
 tithes or tithe rent-charge under the value of ten pounds, 
 according to these ])rovisions, except in the cases before 
 mentioned, where the liability of the party is disputed;"' 
 and the effect of this ])rovision has been held to be to oust 
 the jurisdiction of the Ecclesiastical Court altogether in 
 such cases; so that a prohibition might be granted, if that 
 court should attempt to enforce an undisj)uted payment 
 under the above sum." The other provisions of the act last 
 referred to contain some further directions as to the reco- 
 very of tithe; which, however, have been embodied in the 
 other provisions mentioned in this section, and the act con- 
 taining which was passed subsequently. 
 
 ' Sect. 85. 
 
 k 7it8 VVill.3, C.6; 3& 4 Anne, c. 18 ; 53 Geo. 3, c. 127 ; R.wJeffenei, 
 1 B. & C. 604. 
 
 > 7 Geo. 4, c. 15. ■" 5 & 6 Will. 4, c. 74. 
 
 n Richards v. Di/ke, 2 Gale & Dav. 493.
 
 ( 358 ) 
 
 CHAPTER III. 
 
 OF OFFERINGS AND OBVENTIONS. 
 
 Definition of. OFFERINGS, &c. are defined by the canonists to be, " What- 
 soever things are offered by pious and faithful Christians 
 to God and holy Church, whether of things real or per- 
 sonal, and v/hether they are bequeathed by will or given 
 
 Are not due of in any other manner."'* And if such a definition be cor- 
 
 common right, j.^gj-^ j^ ^yould appear that such offerings cannot be due of 
 common right; but that having been originally given by 
 the pious and faithful, the custom of giving them generally 
 began to be observed in certain places ; the observance of 
 which custom would now, wherever it has been thus esta- 
 blished, be compelled. It may be true that it appears 
 from the canons, that while some offerings were free and 
 voluntary, others were certain and obligatory ; but as the 
 canons could not bind the laity to a payment to which 
 they were not otherwise compelled, these certain and obli- 
 gatory payments must be taken to be such as are due by 
 custom. 
 
 It has been doubted whether Easter offerings are not a 
 composition for ])ersonal tithes ; '' but the matter is alto- 
 gether speculative, nor can anything be asserted on the 
 subject with reasonable certainty. It is certain, however, 
 that ])ersonal tithes were never due of common right, but 
 only by sj)(;c'ial custom ; so that if Easter offerings were a 
 compensation for them, all claims of such offerings as due 
 of common right must be abandoned. There are, however, 
 some authorities in support of the common law right to 
 Easter offerings, and which would seem to warrant the ])ro- 
 ])osition tiuit they are due at the rate of two-pence for every 
 
 But by custom person of sixteen years of age and upwards.'' On the other 
 y' hand, it has been expressly laid down tliat Easter offerings 
 
 arc due, by custom only.'' But these authorities nr.iy pro- 
 Ir.ibly be satisfactorily r(!con(:iled by sup])osing tiiat in every 
 authority, whicli wotdd ap|)earto be in favour of the conunon 
 law right, and of a particuhir sum, the court was aUuding 
 
 » 2 TnM. 439 ; Wals. c. .02 : Dcgge. p. ii. c. 23. 
 
 ^ Sec 1 K. & V. 81H ; 2 Wood, 280. ^ Laurence v. Jones, IJunb. 173. 
 
 •J n. V. I!rr,es,2 K. & V.65.
 
 OF OFFERINGS AND OBVENTIONS. 359 
 
 to the case actually before them, in vvhicli a custom hud 
 in fact been proved. For as to the sum of two-pence, above 
 mentioned, it would be difficult to discover how or upon 
 what authority that particular sum came to be fixed on. 
 None of the earlier ecclesiastical writers make any allusion 
 to the payment of any particular sum as generally payable 
 even by custom. Watson, indeed, says that there are in 
 many places, by custom, two-pence payable for every com- 
 municant; and in certain cases decided in 1740, 1741, the 
 Court of Exchequer ordered payments of two-pence a-head 
 for every person above the age of sixteen to be established 
 as moduses or customary payments.* But a special cus- 
 tom may be proved for the payment of a greater or a less 
 sum than two-pence a-head ; or there may be a custom for 
 the master of a family to pay a certain gross sum of money 
 for Easter offerings for all the persons in his family.^ And 
 it may be observed, that such customs are inconsistent 
 with the notion that two-pence a-head could be payable 
 of common rig-ht. 
 
 As to the time at which these offerings would be pay- At what time 
 able, it is declared by the statute 2 & 3 Edw. IV. c. 13, payable, 
 that all and every person or persons who by the laws or 
 customs of this realm ought to make or pay their offerings, 
 shall yearly well and truly content and pay the same to 
 the parson, vicar, proprietor, or their deputies or farmers, 
 of the j)arishes where they shall dwell or abide, and that 
 such four offering days as at any time theretofore, within 
 the space of four years last past, had been used or accus- 
 tomed for the payment of the same ; and in default thereof 
 to pay for the said offerings at Easter then next following. 
 But this statute, as has been observed by several writers, 
 refers not to voluntary offerings, but only to such as were 
 established to be due by custom. And Dr. Burn observes, 
 that, concerning the offerings at Easter, it is directed by 
 the rubric at the end of the communion service, that yearly 
 at Easter every parishioner shall reckon with the parson, 
 vicar or curate, or his or their deputy or deputies, and pay 
 to them all ecclesiastial duties, accustomably due, then at 
 that time to be paid.^ 
 
 If there is no question about the custom, and that is now recover- 
 clearly admitted, Easter offerings may be sued for, and able, 
 ought to be sued for, in the spiritual court ; but the spi- 
 ritual court, as has been before observed, can have no 
 
 e 2 Wood, 390, 398. 
 
 f Wrirrhi V. FJdertoH, 1 Wood, 518; 1 E. & V. G94 ; Kirkhii v. Rcahead, 
 1 Wood, 19. 
 5 Burn's E. L., Offerings.
 
 360 
 
 OF OFFERINGS AND OliVENTlONS. 
 
 Suinmary juris- 
 diclioi) in re- 
 covery of. 
 
 Mortuaries 
 
 power to determine tlie existence or non-existence ot" a 
 custom. It", therefore, the custom were disputed, the eccle- 
 siastical judge would not be permitted to proceed in the 
 suit; and if he did so, the party might have a prohibition, 
 for the custom must be tried at common law. Whether 
 Easter olferings could be recovered by a suit in a court of 
 equity appears doubtful. The result of the authorities aj)- 
 pears to be, that in a suit for tithes the bill might pray an 
 account of Easter offerings also, but that neither could a 
 bill be filed for an account of Easter offerings only, nor 
 would any decree be made as to them if an account of 
 them had been prayed in a suit for tithes, and the bill as 
 to tithes had been dismissed.'^ 
 
 It would, however, appear very improbable that the 
 amount of Easter otferino-s souirht to be recovered should 
 exceed the sum of 10/., in which case the mode of recovery 
 would be the same as that already sj^oken of for the re- 
 covery of tithes which do not exceed that value ; and every 
 other mode of recovery, except that of proceeding under 
 the summary jurisdiction there mentioned, is altogether 
 superseded.' 
 
 Mortuaries are another species of customary ))ayments, 
 as to which there never has been any doubt but that they 
 are payable by special custom only ; and they are said to 
 have been given -pro recomj)ensatione svhtractionls decima- 
 rinn personaliiim, nccnon et ob!atioimw} The ])ayment of 
 them appears to have been decreed by a piovincial canon 
 made in the year 137b>, but there is no authority to show 
 how far the canon was ever obeyed, for tlu» laity could 
 never have been bound by it. It is ])rol)able, however, 
 that s1u)rtly previous to the Reformation some considerable 
 (hsputes had taken |)lace resi)ecting the payment of these 
 mortuaries, for in the 21st year of Henry VIII.' we find 
 a statute passed for restraining the excessive exaction of 
 them; by which act it was enacted, 1. That lU) mortuary 
 should be paid where the goods ol" the deceased were under 
 the vahu' often marks. 2. That no nu)rtuaries should be 
 given or dcinanded, cxccj)t in those places where; they had 
 been used to be })aid or given. 3. That there should be 
 but one mortuary paid for one ])eis()n, and after the rate, 
 that uhere the moveable goods were of the value of ten 
 n)arks and under thirty pounds, niXcr all debts j)aid, three 
 shillings and four-j)ence. Where the value amounted to 
 thirty pounds and under forty pounds, six shilhngs and 
 
 '> See Vernon v. Slouiie. Ciw. BbU ; 2 K. & Y. 169; Laurence v. Ycaleh, 2 
 Wood, 276; 1 K. .«t V. 828 ; Bnker v, AOuU, 2 K. & Y. 415. 
 ' 6ce6 \ 7 Will, t, c. 74. k 2 Inst. 4yi. ' C. 6.
 
 OF OFFERINGS AND OUVENTIONS. 361 
 
 eiglit-peiR'f. If tliey were oC tlio vuliic of I'oily pomid:-; 
 and upwards, ten shillings. 4. Tlnit no moituary should 
 be paid for any married woman, diild or person not keep- 
 ing' house, nor for any wayfaring man or ])erson who did 
 not reside where he died ; but that the mortuaries of" such 
 non-resident persons should be ])aid at their usual place 
 of abode. 5. That parsons, vicars, curates, parish priests 
 and other spiritual persons may receive bequests or legacies 
 notwithstanding the act. 6. No mortuaries to be paid in 
 Wales, Calais or Berwick, except where they have been 
 usually paid. 7. That the four Welsh bishops may take 
 mortuaries notwithstanding the act. 8. That where less 
 than the rates aforesaid have been paid, the same pay- 
 ments shall continue ; but that no mortuary shall be taken 
 in such places for persons exempted by the act. 
 
 Tithes in the city of London are a customary payment. Tithes in tlic 
 which seems to partake more of the nature of the payments '•'"y '''^ London, 
 spoken of in the present chapter than of tithes ; but the 
 special custom has been clearly established, and the pay- 
 ment is not voluntary. These tithes, or substitutions for 
 tithes, are an assessment upon each house in proportion to 
 the rent, and a variety of cases have been decided con- 
 nected with this subject; but as it is one of local interest 
 only, and unconnected with the general subject of tithes 
 or ofierings, it would be too great a deviation from the pur- 
 pose of this work to enter more fully into the subject.'" 
 
 Easter oflierings, mortuaries and surplice fees may now oiFciings, &c. 
 be commuted for a certain sum, by a parochial agreement at "i^y '«-' c''"»- 
 any time before the confirmation of the apportionment after "'""^^' " 
 a compulsory award for conuiuitation of tithes ; but the 
 payments so fixed must be made j)ayable on the same days 
 as the tithe rent-charge, and they are made recoverable in 
 the same manner. It is left to the judgment of the com- 
 missioners to decide what provisions and powers in the 
 acts for the commutation of tithes, as to j)arochial agree- 
 ments, shall be applicable to agreements of this kind." 
 
 '" For ihe law on this subject see 2 Eagle on 'I'itlies, ch. 17. 
 » 2 Sc 3 Yict. c. 62, s. 9.
 
 ( 362 ) 
 
 CHAPTER IV. 
 
 OF FIRST FRUITS AND TENTHS, AND OF THEIR 
 APPLICATION. 
 
 Primer seisin. Reliefs, which were incident to all the feudal tenures, 
 were a sum of money paid to the lord by the heir upon 
 his first comino- to the estate : and of a nature somewhat 
 smiilar to this was primer seisin, another feudal burthen, 
 which was only incident to the king's tenants in capite, 
 and which was a right which the king had, when any of 
 his tenants in capite died seised of a knight's fee, to receive 
 of the heir (provided he were of full age) one whole year's 
 profits of the lands, if they were in immediate possession, 
 and half a year's profits if the lands were in reversion 
 expectant on an estate for life.'' 
 
 This practice seems not to have long obtained in Eng- 
 land, if ever, with regard to tenure under inferior lords ; 
 but as to the king's tenures in capite, the prima seisina 
 was expressly declared, under Henry III. and Edward II., 
 to belong to the king by prerogative, in contradistinction 
 to other lords. The king was entitled to enter and receive 
 the whole profits of the land till livery was sued ; which 
 suit being commonly made within a year and a day next 
 after the death of the tenant, in pursuance of the strict 
 feudal rule, therefore the king used to take as an average 
 the first fruits, that is to say, one year's profits of the 
 
 lands. 
 
 I he origin of In this feudal custom we have the origin of the payment 
 
 /irst fruits. of the first fruits of benefices : for the popes claimed to be 
 
 the feudal lords of the cluuch ; and, in analogy to the 
 custom just mentioned, they laid claim to j)rofits of the 
 first year upon the institution of every clergyman. The 
 first introduction of this claim appears to have been by 
 Paiuhdph, the pojie's legate during the reigns of John and 
 Henry III., but at that time in tlic see of Norwich only, 
 and afterwards alt(!mpted to be made universal by Poj>es 
 Clement V. and .lohn XXII. But, as in most cases of 
 this kind, the exact time of their introduction, as a tax 
 genenilly acfpiiesced in, is not certiiin. And it is said, with 
 pri)ljubility, to have been a tribute; gradually by little and 
 little imposed, in the first place on such vacant benefices 
 
 » Co. Liu. 77 ; 2 Black. Com. 66. ^ Ibid.
 
 OF FIRST FRUITS AND TENTHS. 363 
 
 as the pope had himself bestowed ; and certainly there is 
 nothing to lead to the belief that, as a mere claim of a 
 payment to the pope, first fruits were ever universally, or 
 even generally, admitted in this country until the temporal 
 power and interest came to unite with that of the spiritual, 
 for the purpose of exacting them. This seems to have been 
 in the year 1253, when Pope Innocent IV. gave the first 
 fruits and tenths to King Henry III. for three vears, 
 whicli occasioned a taxation in the following year, some- 
 times called the Norwich Taxation, and sometimes Pope 
 Innocent's Valor.* 
 
 And this seems to confirm the above supposition ; for it 
 is not probable that the pope would have given up such 
 a revenue for three years, if he had been able to collect it 
 generally for himself; but if the claim had not then been 
 generally acquiesced in, it would have been a stroke of 
 policy in order thereby to get a confirmation of a doubtful 
 claim. In 1288, Pope Nicholas IV. granted the tenths to 
 King Edward I. for six years, towards defraying the ex- 
 penses of an expedition to the Holy Land ; and that they 
 might be collected to their full value, a taxation, by the 
 king's precept, was begun in that year, and finished, as 
 to the province of Canterbury, in 1291, and as to that of 
 York, in the followino- year, the whole beino- under the 
 direction of John, Bishop of Winchester, and Oliver, Bishop 
 of Lincoln.'* 
 
 But, nevertheless, it appears that in the same reign, at 
 a parliament held at Carlisle, great complaint was made 
 of intolerable oppressions of churches and monasteries by 
 William Testa (called Mala Testa) and the legate of the 
 j)ope, and principally concerning first fruits; at which 
 parliament the king, by the assent of his barons, denied 
 the payment of first fruits of spiritual promotions within 
 England, which were founded by his progenitors, and the 
 nobles and others of the realm, for the service of God, 
 alms and hospitality. And to this efif'ect he wrote to the 
 pope; and thereupon the pope relinquished his demand 
 of first fruit of abbeys ; in which parliament the first fruits 
 for two years were granted to the king.^ 
 
 The tenths, or decima?, were the tenth part of the an- Tonihs. 
 nual profit of each living by the same valuation, which 
 was also claimed by the holy see, under no better pre- 
 tence than a strange misapplication of that precept of the 
 Levitical law, which directs that the Levites should offer 
 
 <= See Hume's Hist, of England ; 1 Black. Com. 284 ; 2 Burn's E. L. 273, 
 and compare authorities there mentioned. 
 <* See Coleridge's note to I Black. Com. 284. 
 " 2 Burn's E. L. 274, and authorities there cited.
 
 364 01? FIRST FRUITS AND TENTHS. 
 
 the tenth part of their tithes, as a heave ofi'ering to the 
 Lord, and give it to Aaron the high priest. But this claim 
 of the pope met with a vigorous resistance from the Eng- 
 hsh parhament, and a variety of acts were passed to pre- 
 vent and restrain it, particularly the statute 6 Henry IV. 
 c. 1, which calls it a horrible mischief, a damnable custom. 
 But the popish clergy, blindly devoted to the will of a 
 foreign master, still kept it on foot; sometimes more se- 
 cretly, sometimes more openly and avowedly ; so that in 
 the leign of Henry VI II. it was computed, that in the 
 compas's of fifty years, 800,000 ducats had been sent to 
 Rome for tirst fruits only. And as the clergy expressed 
 Kirst iriiiis and this willingness to contribute so much of their income to 
 tenths annexed the head of the Church, it was thought proper (when, in 
 to the crown. j^|-,g g^^i^ie reign, the papal power was abohshed, and the 
 king was declared the head of the Church of England) to 
 ann'cx this revenue to the crown ; which was done by sta- 
 tute 26 Henry VIII. c. 3, and a new valor belief ciornm 
 was then made, by which the clergy are at present rated.* 
 It does not appear that it would be useful now to enter 
 into any detailed account of the different dealings with 
 first fruits and tenths at the time of the Reformation ; we 
 follow, therefore, the concise account given by Blackstone. 
 For nliat ;in<l By the last-mcntioncd statute, confirmed by that of 
 
 when payable. ] Efjy. (.. 4^ all vicaragcs under ten pounds a-year, aiul 
 all rectories under teii marks, are discharged from the 
 ]iaymeiit of first fruits; and if in such livings as continue 
 chargeable with this payment, the incumbent lives but 
 half a year, he shtill })ay only one cpiarter of his first 
 fruits; if but one whole year, then half of them : if a year 
 and a litdf, three cpiarters ; and if two years, then the 
 whole, and not otherwise. Likewise, by the statute 27 
 Henry VIII. c. S, no teiUhs are to be jv.iid for the first 
 year,"for then the first fruits are due. And, by other sta- 
 tutes of (^u'cn Amie, in the fifth and sixth years of her 
 reign, if a benefice ]h\ under 50/. i)er annum clear yearly 
 value, it shall be discharged of the )myment of first fruits 
 and tenths. Thus the richer clergy, being, by the criminal 
 bigotry of their p()i)ish predecessors, subjected at first to a 
 foreign exaction, were afterwards, when tiiat yoke was 
 shaken oH', liable to a like misa|)i)lication of their revenues, 
 through the rapacious disposition of the then reigning 
 monarch, till, at length, the piety of Queen Anne restored 
 to i\u'. ('hurch what had been thus indirectly ttdvcn from 
 it. This she did, not by remitting the tenths and first 
 fruits entirely, but in a spirit of the truest equity, by ap- 
 
 l Black. Com. 285.
 
 OF FIRST FRUITS AND TENTHS. 3(j;j 
 
 plying these supeifluities of the hirger benefices to make 
 up the deficiencies of the smaller. And to this end, slie 
 oranted her royal charter, which was confirmed by the 
 statute 2 & 3 Anne, c. 11, whereby all the revenues of first 
 fruits and tenths is vested in trustees for ever, to form a 
 perpetual fund for the augmentation of poor livings. This 
 is usually called Queen Anne's Bounty.''' 
 
 First fruits are to be paid or compounded for at rea- Compoundinj 
 sonable days, and upon good sureties, before the incum- ''^'^• 
 bent actually meddles with the profits of the benefice ; 
 and if he do meddle with the profits, without having 
 done so, he is to be taken as an intruder on the king's 
 possessions, and to forfeit double value.'' 
 
 The time when the first fruits become payable is directly Whendue. 
 upon the avoidance, and profits go to the successor to- 
 wards payment.' 
 
 Every archbisho]j and bishop has four years to com- In case of 
 pound for the payments of first fruits, to commence from "'=^""P^- 
 the restitution of his temporaltics; in every year to pay 
 one-fourth ; and if he die or be removed before the four 
 years arc cxj)ired, he shall be discharged of so much as 
 did not become due at his death, in the same way that 
 rectors and vicars are discharged.J 
 
 As to deans, archdeacons, prebendaries, I'ectors and In case of other 
 vicars, if they live to the end of the half-year next after clergy, 
 avoidance, so that they may have received the rents and 
 profits of that half-year, and before the end of the next 
 half-year die, or be lawfully evicted, &c., they, their heirs, 
 &c. shall only be charged with a fourth part of the first 
 fruits. If they live one whole year after avoidance, and 
 die or be evicted, kc. before the end of the half year then 
 next following, they shall be charged with only half of 
 the first fruits. If they live a year and a half and die, or 
 be evicted, Sec. before the end of the six months then next 
 following, they shall be charged with three parts of the 
 first fruits ; and if they live to the end of two wliole years, 
 and not be lawfully evicted, removed or put out as afore- 
 said, they shall pay the whole.'' 
 
 The tenths become due annually at Christmas, and if lentlis, when 
 not paid before the last day of the folUnving April, process ''"e. an<l le- ^^^ 
 may be issued against the defaulter, whereby the same "^^' '"^ "' '^'^°" 
 may be levied against him or his executors, &c., and the 
 defaulter is to forfeit double value;' or if nothing is to be 
 found that can be levied, the process may be against the 
 successor ; for it seems that the debt is considered as due 
 
 f I bill. 1' 20 Hen. 8,0. 3, ss. 2,5. * 28 Hen. 3. c. 11 , s. 3. 
 
 J 6 Anne, c. 17, s. 5. "^1 Kliz. c. 4, ss. 30, 31, 32, 33. 
 
 1 3 Geo. 1, c. 10, s. 3. 
 
 keiin'T.
 
 366 OF FIRST FRUITS AND TENTHS. 
 
 from the benefice. But, in such case, the successor may 
 distrain upon the goods of his predecessor, remaining on 
 the ])remises, and retain the same till the predecessor, if 
 lie be alive, or, if he be dead, till his executors or adminis- 
 trators shall pay the same ; and if the same shall not be 
 paid in twelve days, then he may cause the goods to be 
 appraised by two or three indifferent persons to be sworn 
 for the same ; and, according to the same aj)praising, may 
 sell so much as shall pay the same, and also the reasonable 
 costs of distraining and appraising ; and if no such distress 
 be found, then such predecessor, if he be alive, and, if he 
 be dead, his executors and administrators, may be com- 
 pelled to the payment thereof by bill in Chancery, or by 
 action or plaint of debt at common law."' 
 Account of sums These first fruits and tenths were formerly paid to an 
 payable to be. ^ ^ collection of the same, but are now paid directly 
 
 sent to clergy , . ,. \ ■> -r> . \ • 
 
 on their instiiu- to the treasurer of Queen Anne s Bounty, who, nnme- 
 
 tion. diately after the receipt of every return of institution made 
 
 by the bishops of the respective dioceses in England or 
 
 Wales, or other ordinaries, is to deliver or transmit by the 
 
 post or otherwise, to every clerk or other person instituted 
 
 to any ecclesiastical benefice, an account or statement in 
 
 writing of the payments (if any) which are to be made by 
 
 him in respect of the first fruits and yearly tenths of such 
 
 benefice, and of the times and manner of making such 
 
 payments." 
 
 Notice of arrears And whenever it appears to such treasurer that any 
 
 to be sent to person liable to the payment of first fruits or tenths shall 
 
 parties omitting { . , ^ i , i , .1 i- 1 
 
 to pay. have omitted or neglected to pay the same respectively 
 
 for one calendar month over the proper time of jiayment, 
 he shall thereupon give to each such person a notice in 
 writing, or transmit the same by the post, addressed to 
 liini at the ])lace of residence belonging to the benefice, 
 or other ecclesiastical i)rofcrmont, in respect of which such 
 payment is rccjuircd, stating the amount then appearing 
 to be due from such person in resi)ect of first fruits and 
 t(!nths respectively; and such notice shall from time to 
 time l)e rej)cated its often as tlu^ treasurer may deem ex- 
 pedient, and in particular between the 'iUth day of Sep- 
 tember and the 2oth day of December in every year, such 
 a notice shall be given, sent or transmitted as aforesaid, to 
 every archbishop, bishop or other dignitary, rector, vicar 
 or other person, from whom any fust fruits or yearly 
 t(!nths, or auy sum or smns oC money in respect thereof, 
 may then ajjpt^ar to be due, in order that the payments of 
 
 "• 26 lien. 8,c.3, s. 18 ; 27 Hen. 8, c. 8, s. 4; 3 Geo. l,c. 10. 
 " 1 Vict. c. 20. s. 3.
 
 OF FIRST FRUITS AND TENTHS. 3g7 
 
 sucli first fruits and tonths may in no case be omitted or 
 neglected tln-oiigh ignorance or inadvertence." 
 
 But this notice, ex (jratiti, to tlie clergyman from vvliom 
 such payment is due, docs not alter or aficct the remedies 
 before mentioned, such as the enforcing payment by pro- 
 cess or otherwise.'' 
 
 From the general payment of fii-st fruits and tenths Exceptions from 
 certain cases are excepted ; for after (Juecn Anne iiad an- '.'^'^''"y '° pay 
 
 - , 1 ,, ^ / . p I" \ first fruils and 
 
 propriated the revenue arismg from the payment of first tcmhs. 
 fruits and tenths to the augmentation of small livinos, it 
 was considered a proper extension of this principle to 
 exempt the smaller livings from the burden of those de- 
 mands; to which end, a certificate of such livings as did 
 not exceed bOl. per annum at their improved value at that 
 time, was made into the exchequer by the bishops, in order 
 to the above exemption. '* 
 
 But this exemption did not affect any existing rights ; 
 so that where the tenths of any such benefices had been 
 granted away by any of the queen's predecessors, in per- 
 petuity, those grants remained good."" 
 
 The dean and canon of St. George's, Windsor, and all 
 their possessions, are also discharged from the payment 
 of first fruits and tenths. Hospitals and their possessions, 
 employed for the relief of poor people, or any school, or 
 the revenues thereof, as existent in the first year of Queen 
 Elizabeth, and grants theretofore made to the universities, 
 or any college or hall therein, or to the college of Eton 
 and Winchester, are also exempted. 
 
 Having now seen in what manner first fruits and tenths Application of, 
 are assessed and collected, and the jiayment of them en- 
 forced, it remains to be seen in what manner they are to 
 be applied under the provisions of Queen Anne's Bounty. 
 But first, it a|)pears necessary to give a brief account of 
 the corporation in whom these funds are vested, and by 
 whose authority they are to be applied and distributed. 
 
 The power to create this corporation was given to the Governors of 
 queen by the statute 2 & 3 Aime, c. 2, and in pursuance Queen Anne's 
 of that statute, the following persons, namely, the arch- l^o^'^y- 
 bishops, bishops, deans, speaker of the House of Com- 
 mons, Master of the Rolls, privy councillors, lieutenants 
 and custodes rotulorum of the counties, the judges, the 
 queen's serjeants-at-law, attorney and solicitor-general, 
 advocate-general, chancellors and vice-chancellors of the 
 two universities, mayor and aldermen of London, and 
 mayors of the respective cities, and, by supplemental 
 
 ° Same statute, s. 9. i' Sect. 10. 
 
 1 5 Anne, c. 24 J and see ante, ■" Same stat. sect. 3.
 
 3G8 OF FIRST FRUITS AND TENTHS. 
 
 charter, the officers of the Board of Green Clotli, the 
 queen's counsel, and the four clerks of the privy council, 
 were made a corporation by the name of '* The Governors 
 of the Bounty of Queen Anne, for the Augmentation of 
 the Maintenance of the poor Clergy," and to such corpo- 
 ration was granted the revenue of hrst fruits and tenths. 
 
 Duties of. It was directed that this corporation should keep four 
 
 general courts at least in every year, at some convenient 
 place within London and Westminster (notice being in 
 that behalf first given in the Gazette, or otherwise, fourteen 
 days before), the said courts to be in the months of March, 
 June, September and December ; that the said governors, 
 or so many of them as shall assemble, not less than seven 
 in nuudjer at any one meeting, whereof a privy councillor, 
 bishop, judge, or one of the queen's counsel to be one, 
 shall be a general court, and dispatch business by ma- 
 jority of votes, with power to aj)point committees for the 
 easier dispatch of business. 
 
 They were also diiected to inform themselves of the 
 true yearly value of the maintenance of every such parson, 
 vicar, curate and minister, olllciating in any such church 
 or cha])cl as aforesaid, for whom a nuiintcnance of the 
 yearly value of 80/. is not sufficiently provided, and the 
 distances of such churches and chapels from London, and 
 which of them are in towns corporate or market towns, 
 and which not, and lujw they are sup])liod with jireaching 
 ministers, and wiierc the incumbents have more than one 
 living. 
 
 Officers of. To h;i\ c a secretary and treasurer, and such inferior 
 
 officers, substitutes and servants, as they shall think lit, 
 to be chosen by a majority ot" votes at a general court, and 
 to continue during the pleasure of the governors; the 
 secretary and treasurer to be first sworn at a general 
 court for the due and faithful execution of their offices, 
 and the tr(!asurer to give security for his faithful account- 
 in;-- for the monies he shall receive by virtue of the said 
 ollice. 
 
 A.Imiiiing oilier To luive power to admit into their said corporation, all 
 
 ii.einbers of the sucli i)ersons who shall be piously disposed to contribute 
 
 (•oiiioration. , ', , , . ' •, ' . , 
 
 towards such augnu illation, as the said governors, in a 
 general court, shall think fit, and cause to be entered in a 
 hook kept for that j)ur|iose the names of all the contri- 
 butors, with their several contributions, to the eiul a pei- 
 j)ctual memorial may be had thereof, and whereby the 
 treasurer may be charg<;d with the more certainty in his 
 account. 
 
 Also to draw up rules and orders for the better rule and
 
 OF FIRST FRUITS AND TENTHS. 3G9 
 
 governmeut of the corporation, and distribution of their 
 revenues, which rules and orders have been accordingly 
 established as follows. 
 
 1st. That the augmentations to be made by the said UuKsoftlie 
 corporation shall be by the way of purchase, and not by •^°n'"'"^*'*^"- 
 the way of pension. 
 
 2nd. That the stated sum to be allowed to each cure 
 which shall be augmented be 200/., to be invested in a 
 purchase, at the expense of the corporation. 
 
 3rd. That as soon as all the cures not exceeding 10/. per 
 annum, which are f\t\y qualified, shall have received 200/., 
 the governors shall then proceed to augment those cures 
 that do not exceed 20/. per annum, and shall augment no 
 other till those have all received 200/. ; except in the cases 
 and accordino- to the limitations hereafter named. And 
 that when all the cures not exceeding 10/. a year, which 
 are fitly qualified, shall have received 200/., the like rules, 
 orders and directions shall be from thenceforth by the 
 governors observed and kept, in relation to cures not ex- 
 ceeding 20/. a year, as are now in force, and ought to be 
 by them observed and kept, in relation to cures not ex- 
 ceeding 10/. a year. 
 
 4th. That in order to encourage benefactions from others, 
 the governors may give the sum of 200/. to cures not ex- 
 ceeding 45/. a year, where any persons will give the same 
 or a greater sura, or the value thereof in lands, tithes, or 
 rent-charges. 
 
 oth. That the governors shall every year, between Christ- 
 mas and Easter, cause the account of what money they 
 have to distribute that year to be audited ; and when they 
 know the sum, public notice shall be given in the Gazette, 
 or such other way as shall be judged proper, that they 
 have such a smii to be distributed in so many shares, and 
 that they will be ready to apply those shares to such cures 
 as want the same, and are, by the rules of the corj)oration, 
 qualified to receive them, where any persons will add the 
 like or a greater sum to it, or the value in land or tithes, fur 
 any such particular cure. 
 
 Gth. That if several benefactors offer themselves, the 
 governors shall first comply with those that offer most. 
 
 7th. Where the sums ofiered by other beneftictors are 
 equal, the governors shall always prefer the poor living. 
 
 8th. Where the cures to be augmented are of equal value, 
 and the benefactions offered by others are equal, there they 
 shall be preferred that first offer. 
 
 Oth. Provided that the preference shall be so far given 
 to cures not exceeding 20/. a year, that the governors shall 
 
 B B
 
 370 OF FIRST FRUITS AND TENTHS. 
 
 not apply above one-third part of the money they have to 
 distribute that year to cures exceeding that vakie. 
 
 10th. Where the governors have expected till Michael- 
 mas what benefactors will offer themselves, then no more 
 proposals shall be received for that year ; but if any money 
 remain after that to be disposed of, in the first place two 
 or more of the cures, in the gift of the crown, not exceed- 
 ing 10/. a year, shall be chosen by lot, to be augmented 
 preferably to all others ; the precise number of these to be 
 settled by a general court, when an exact list of them shall 
 be brought in to the governors. 
 
 11th. As for what shall remain of the money to be dis- 
 posed of after that, a list shall be taken of all the cures in 
 the Church of England not exceeding 10/. a year; and so 
 many of them be chosen by lot, as there shall remain sums 
 of 200/. for their augmentation. 
 
 12th. Provided, that when all the cures not exceeding 
 20/. a year, which are fitly qualified, shall be so augmented, 
 the governors shall then proceed to augment those of 
 greater value, according to such rules as shall at any time 
 hereafter be proposed by them, and approved by the crown. 
 
 13th. That all charitable gifts in real or personal estates, 
 made to the corporation, shall be strictly applied according 
 to the particular direction of the donor or donors thereof, 
 where the donor shall give particular direction for the dis- 
 position thereof; and where the gift shall be generally to 
 the corporation, without any such particular direction, the 
 same shall be applied as the rest of the fund or stock of 
 the corporation is to be applied. 
 
 14th. That a book shall be kept, Nvherein shall be entered 
 all the subscriptions, contributions, gifts, devises, or a])- 
 pointraents, made or given, of any monies, or of any real 
 or personal estate whatsoever, to the charity mentioned in 
 the charter, and the names of the donors thereof, with the 
 particulars of the matters so given ; the same book to be 
 kept by the secretary of the corporation. 
 
 15th. That a memorial of the benefactions and augmen- 
 tations made to each cure shall, at the charge of the cor- 
 ])()i;iti()n, be set up in writing on a stone, to be fixed in the 
 cliuich of the cure so to be increased, there to renuiin in 
 per|)etua] memory thereof, 
 
 I'ith. When the treasurer shall have received any sum 
 of money for the use of the eoi|)oration, he shall, at the 
 next general court to be holden after such recei])t, lay an 
 account thereof before the governors, who may order and 
 direct the sanu! to bo placed out, for the improvement 
 thereof, uj)ou some public fund or other security, till they
 
 OF FIRST FRUITS AND TENTHS. 
 
 371 
 
 have an opportunity of laying it out in proper purchases 
 for the augmentation of cures. 
 
 17th. That the treasurer do account annually before 
 such a committee of the governors as shall be appointed 
 by a general court of the said corporation, who shall audit 
 and state the same ; and the said account shall be entered 
 in a book to be kept for that purpose, and shall be laid 
 before the next general court after such stating, the same 
 to be there re-examined and determined. 
 
 18th. The persons whose cures shall be augmented shall 
 pay no manner of fee or gratification to any of the officers 
 or servants of this corporation. 
 
 But in addition to the above, all such rules and orders 
 as shall from time to time be by the governors agreed upon, 
 prepared and proposed to the king, according to the true 
 intent of the said letters patent, and by him approved 
 under his sign manual, shall be as good as if they were 
 established under the great seal. 
 
 Besides the revenue of first-fruits and tenths given to 
 this corporation, they have been empowered to accept from 
 any benefactors, for the same purposes as those of their in- 
 corporation, any property in any goods or chattels, whether 
 given by deed or in any other manner, and any estate in 
 lands, &c., which must, however, be granted by deed en- 
 rolled in such manner, and within such time, as is directed 
 by the 27 Henry VIII. c. 16, for enrolment of bargains 
 and sales, or by will duly executed. But no incapacitated 
 persons are by the act empowered to give or grant.* 
 
 The corporation having been created for these purposes, 
 it was found necessary to provide some means by which 
 they might be accurately informed of the benefices which, 
 according to their rules, were to receive augmentation ; and 
 accordingly it was ordered by the statute passed in the first 
 year of George I., that the bishops of every diocese, and 
 the guardians of the spiritualties sedc vacante, should from 
 time to time, as they shall see occasion, as well by the oath 
 of two or more witnesses (which they, or others commis- 
 sioned by them, under their hands and seals, were em- 
 powered to administer), as by all other lawful ways and 
 means, inform themselves of the clear improved yearly 
 value of every benefice with cure of souls, living and curacy, 
 within their several dioceses, or within any peculiars or 
 places of exempt jurisdiction within the limits of their 
 respective dioceses, or adjoining and contiguous thereunto, 
 although the same were exempt from the jurisdiction of 
 any bishop in other cases, and how such yearly values 
 
 ' 2 6<: 3 Anne, c.ll, ss. 4, 5. 
 B B 2 
 
 Additional rules 
 may be made 
 from time to 
 time by the go- 
 vernors. 
 
 Grants to the 
 corporation. 
 
 Bishops to re- 
 port as to value 
 of benefices.
 
 372 OF FIRST FRUITS AND TENTHS. 
 
 arise, ^^itll the other circumstances thereof; and certify the 
 same under their hands and seals, or seals of their respec- 
 tive offices, to the governors of the bounty." A provision 
 which has been since extended to the case of those livinos 
 not exceeding the clear yearly value of 50/., which had 
 been already returned in the manner we have mentioned, 
 for the purpose of being discharged from first-fruits.'^ 
 Maintenance of As the auomentation is intended for the maintenance 
 curate or incum- ^^^^^ only of parsons and vicars, but also of curates and 
 other ministers officiating in churches or chapels, when 
 any part or portion of the first-fruits or tenths shall be 
 annually or otherwise applied or disposed of towards the 
 maintenance of any minister officiating in any church or 
 chapel, such part or portion shall from thenceforth for ever 
 be in the like manner continued to the minister from time 
 to time so officiating in the same church or chapel ; and 
 every such minister, whether parson, vicar, curate or other 
 minister for the lime bein«>' so officiatino- in such church or 
 chapel, shall enjoy the same for ever.^' 
 House may be Where a living has been or shall be augmented, and 
 built Willi au^'- |]jp,,g jg j^Q parsonage house suitable for the residence of 
 
 mental ion mo- ... i, ° p -i^- i 
 
 ney. the mmister, the governors from tmie to tune may apply 
 
 the money apjM'opriated for such augmentation and remain- 
 ing in tiieir iiands, or any part thereof, in such manner as 
 they deem advisable, in or towards the building, rebuilding 
 or purchasing a house and other erections within the parish, 
 suitable for the residence of the minister thereof, which 
 house shall be thereafter deemed the parsonage house of 
 such living.^ 
 History and Tiie augmentation of diffi.'rent benefices by means of this 
 
 future prospects boiuitv fund is rather matter of history than of law. Its 
 ofaugmentation. oiwiiiUou, as observed by Mr. Christian in a note upon 
 this subject in Blackstone's Commentaries, has been slow 
 and inconsiderable, for the number of livings certified lo 
 be under 50/. was no less than 5,597, of which '2,.'j3S did 
 not exceed 20/. a year each, and 1 ,033 between 30/. and 50/. 
 a year, and the rest between 20/. and 30/. ; so that there 
 wen; 5,597 benefices in tliis comitry which had less thnn 
 2;}/. a year upon an average. Ur. Ijurn calculates that 
 liom th(! fund alone it will recpiire 339 years from the year 
 1711, when it connnenced, before all tliosc livings can be 
 raised to 50/. ; and if private; benefactors should contribute 
 half as much as the fund, (which is very im))rol)al)le,) it 
 will ic(piire 22() years. IJut even taking this supposition 
 fo have been trtie ever since the establishment, it will fol- 
 
 " 1 Ceo. 1. S.2, r.Ki. s. I. " 45 Geo. :}, c. (M. 
 
 > fj A line, c. 21, s. 4. ' 43 Geo. 3, c. 147, s. 3.
 
 OF FIRST Fruits and tenths. 373 
 
 low tliat the wi'ctclied pittance from each of 5,507 Hviugs, 
 both from tlie roval bouatv and i)iivate benefaction, cannot 
 upon an average have yet been augmented 9/. a year." 
 Yet it must be observed, that in this calculation he has not 
 taken into consideration the great increase in the rentals 
 of all estates since the valuation of these small livings was 
 made in the time of Queen Anne. Dr. Burn computes 
 the clear amount of the bounty to make 55 augmentations 
 yearly, that is, at 11,000/. a year; but Sir .John Sinclair'' 
 says that " this branch of the revenue amounted to about 
 14,000/. per annum." Mr. Christian goes on to make the 
 followinir suooestion, which would be entitled to more 
 consideration if it were not from the insuperable difficulty 
 of interference with the rights of property where benetices 
 are in private patronage : " If the whole of the profits and 
 emoluments of every benefice for one year were appropri- 
 ated to this purpose, an effect would be produced in twenty 
 or thirty years which will require 300 by the present plan. 
 This was what was originally understood by the first-fruits, 
 and what actually, within the last 300 years, was paid and 
 carried out of the kingdom to support the superstition and 
 folly of popery. If, upon any promotion to a benefice, it 
 was ])rovided that there should be no vacancy or cession 
 of formei" preferment till the end of the year, who could 
 complain ? The person promoted would be deprived of 
 no right or property which he had previously enjoyed ; 
 and even if there were any minds so sanguine as to con- 
 sider themselves certain of success, it would be but a tem- 
 porary disappointment of their hopes ; and taxes arc never 
 paid with so much cheerfulness and alacrity as u])on the 
 accession of good fortune. It would certainly soon yield 
 a supply which would communicate both comfort and re- 
 spectability to the indigent clergy." A great effect would 
 be produced if one half or any considerable portion were 
 so applied. '^^ 
 
 The conditions upon which certain livings are augmented, Condiiious and 
 
 and the consequences to those livings of such augmenta- conse-iuences of 
 
 i, . , A 1 f> i ^1 • \ .^ P . augmentation, 
 
 tion, remani to be noticed. And, first, the right ot patron- 
 age may be changed in consequence of sucli augmentation ; 
 for it is provided, that where the governors give 200Z. to 
 any cure not exceeding 35/. per annum, any other person 
 giving the same or any greater sum in lands or tithes, all 
 agreements with benefactors, with the consent and appro- 
 bation of the governors, touching the patronage or right of 
 presentation or nomination to such augmented cure, made 
 
 * 2 Rum's E. L. 268. ^ Hist. Rev. pari iii. p. 198. 
 
 « See the note to Christian's edition of Blackstone, I Com. '286.
 
 374 
 
 OF FIRST FRUITS AND TENTHS, 
 
 Agreements in 
 particular cases. 
 
 Agreement with 
 patron for a sti- 
 pend. 
 
 Augmented be- 
 nefices become 
 perpetual cures, 
 and cease lo be 
 donatives. 
 
 for the benefit of such benefactor, shall be good and effec- 
 tual in law ; and the patronage of such augmented churches 
 shall be vested in such benefactors or others as fully as if 
 the same had been granted by the king inider his great 
 seal.'' 
 
 And provisions are further made for rendering such 
 agreements effectual in cases where they could not be so 
 otherwise, — as agreements made by guardians on behalf 
 of idiots and lunatics ; agreements made by parson or 
 vicar, which must be with consent of the ordinary and 
 patron ; agreements made by a husband seised in right 
 of his wife, in which case the wife is to be made a party. 
 And all such agreements are as effectual for supplying 
 cures vacant at the time of the augmentation, as for the 
 advowson and nomination to future vacancies. 
 
 Where it fulls to the lot of any living to be augmented, 
 the governors may do so upon certain conditions made 
 with the patron ; and before they make the augmentation 
 may stipulate with the patron of any donative, or the im- 
 propriator of any rectory, without endowment of vicarage, 
 or parson or vicar of any mother church, for a perpetual, 
 yearly or other payment or allowance to the minister or 
 curate of such living, and for charging with and subjecting 
 the impropriate rectory or mother church or vicarage there- 
 unto in such manner and by such remedies as shall be 
 thought fit; and such agreements made with the king- 
 under his sign manual, or others, are rendered valid. And 
 if such iuipropriator, other than the king, and such parson 
 or vicar, docs not make such agreement, the governors 
 may refuse such augmentation, and ap{)ly the money for 
 other purposes of the bounty.'' 
 
 All benefices augmented by the bounty fund become 
 perpetual curacies ; so that the ministers thereof become 
 ])crpetiud cor])orations, and all the incidents to perpetual 
 curacies thereupon attach to them ; and all donatives so 
 augtnented become subject to the visitation and jurisdiction 
 of the bishop ; Init the rights of patrons arc so far resj)cctcd 
 in this matter that no donatives can be augmented, so that 
 such a change cannot take place without the consent of 
 the patron under his hand and seal.*^ 
 
 •' 1 Geo. 1, stal. 2, c. 10, s. 8. 
 
 « Sect. lb". 
 
 f Sect. 4, 14, 15.
 
 ( 375 ) 
 
 BOOK III. 
 
 OF THINGS ECCLESIASTICAL. 
 
 Having now taken a general view of persons ecclesiastical 
 and of ecclesiastical officers, and of the provision made by 
 law for their maintenance, we proceed in order next to 
 consider things spiritual or ecclesiastical ; under which 
 head we shall first consider the subject of parishes or dis- 
 tricts, into which the whole of this country is divided 
 for ecclesiastical purposes, and for the better and more 
 effectual pastoral superintendence by its ministers. No 
 inconsiderable part of the subject which will be here 
 treated of, is contained in the different Church Buildino- 
 Acts ; but it would cause much needless repetition if, in 
 speaking of those subjects, we were to follow out the con- 
 tents of those acts beyond the subject immediately before 
 us. The difficulty of those acts arises principally from 
 the attempt to digest each act separately. In the present 
 work therefore it has been endeavoured, as far as ])ossible, 
 to treat them as if consolidated, which possibly at some 
 future time they may be, and to refer to them only for 
 each point as it arises in its proper place. 
 
 CHAPTER I. 
 
 ECCLESIASTICAL PARISHES AND DISTRICTS. 
 
 The ecclesiastical division of England is primarily into Ecclesiastical 
 
 two provinces. Each province is divided into dioceses: ^'^'*'°" "'^ 
 
 IT • 11 • 111 • h.nglana. 
 
 each diocese nito archdeaconries ; each archdeaconry into 
 
 rural deaneries ; each deanery into parishes. Of the eccle- 
 siastical person who presides over each of these divisions 
 and subdivisions, we have already spoken in the First Book.
 
 076 
 
 o/( 
 
 ECCLESIASTICAL TARISIIES AND DISTRICTS. 
 
 Parishes. 
 
 Ijound.j 
 
 But the last division, that of parishes, requires to be here 
 particuhirly noticed, on account of some important recent 
 alteration in the law. 
 
 A parish is that circuit of ground which is committed to 
 the charge of one parson or vicar, or other minister, hav- 
 ing cure of souls therein. These districts are computed to 
 be near ten thousand in number. How ancient the divi- 
 sion of parishes is, may at present be difficult to ascertain, 
 for it seems to be agreed on all hands, that in the early 
 ages of Christianity in this island parishes were unknown, 
 or at least signified the same that a diocese does now. 
 There was then no appro])riation of ecclesiastical dues to 
 any particular church ; but every man was at liberty to 
 contribute his tithes to whatever priest or church he 
 pleased, provided only that he did it to some ; or if he 
 made no special appointment or appropriation thereof, they 
 were paid into the hands of the bishop, whose duty it was 
 to distribute them among the clergy, and for other pious 
 purposes, according to his own discretion." 
 
 We find the distniction of parishes, nay even of mother 
 churches, so early as in the laws of King Edgar, about the 
 year 970. Before that time the consecration of tithes was 
 in general arbitrary ; that is, every man paid his own (as 
 has been before observed) to what church or parish he 
 ])leased. But this being liable to be attended with either 
 fraud, or at least caprice, in the persons paying, and with 
 either jealousies or mean compliances in such as were com- 
 petitors for receiving them, it was now ordered by the law 
 of King Edgar, " dentur omnes decima prlmaruc eccles'uv 
 ad (juam jnirocliia pertincty However, if any thane or 
 great lord had a church within his own demesnes, dis- 
 tinct from the mother church, in the nature of a private 
 chapel, then, provided such church had a cemetery or con- 
 secrated |)lace of burial belonging to it, he might allot 
 one-third of his tithes for the maintenance of the oHiciating 
 minister; but if it had no cemetery, the thane must him- 
 self have maintained his chaplain by some other means ; 
 but, in such case, all his tithes were ordained to be paid 
 jn-biuir'ur ecclesia', or to the mother church.'' 
 
 It seems pretty clear and certain, that the boundaries of 
 ])arishes were originally ascertained by those of a manor 
 or manors; since it very seldom hap])ens that a manor 
 extends itself over more parishes than one, though there 
 an; often many manois in one parish. The lords, as 
 Christianity spread itself, b(!gan to build churches upon 
 their own deniesncs or wastes, to accommodate their 
 » 1 Black. Com. 113. ^ Scldon on Tithes, ch. 2,
 
 ECCLESIASTICAL PARISHES AND DISTRICTS. 377 
 
 tenants in one or two adjoining lordshij)s ; and in order to 
 have divine service reoularlv i)erfornied tlierein, obliiied 
 all their tenants to a[)j)ro])riate their tithes to the main- 
 tenance of tlie one officiating minister, instead of leaving 
 them at liberty to distribute them among the clei-gy of 
 the diocese in general; and this tract of land, the tithes 
 whereof were so appropriated, formed a distinct parish, 
 which will well enough account for the frequent inter- 
 mixture of parishes one with another. For if a lord had 
 a parcel of land detached from the main of his estate, but 
 not sufficient to form a parish of itself, it was natural for 
 him to endow his newly erected church with the tithes of 
 those disjointed lands, especially if no church was then 
 built in any lordship adjoining to those outlying parcels/ 
 
 Thus parishes were gradually formed, and parish Places extra- 
 churches endowed with the tithes that arose within the P^"""*^'""'- 
 circuit assigned. But some lands, because they were in 
 the hands of irreligious and careless owners, or were 
 situate in forests and desert ])laces, or for other now un- 
 searchable reasons, were never united to any parish, and 
 therefore continue to this day extra parochial.'' 
 
 Although this original division into parishes lemains New divisions of 
 unchanged, so far as all civil purposes are concerned, yet, P^''^''^?. 
 in many instances, a considerable change has taken ])lace, 
 so far as regards all ecclesiastical purposes. 
 
 For if the church building commissioners shall think it Separate pa- 
 exj)edient to divide any parish into two or more separate "^'^^" 
 parishes for all ecclesiastical purposes, they may, with 
 consent of the bishop of the diocese, under his hand and 
 seal, apply to the patron of the church of the parish for 
 his consent, and upon his signifying it under his hand and 
 seal, they shall represent the whole matter to the king in 
 council, stating the proposed bounds of such division, with 
 the relative proj)ortions of glebe lands, tithes, moduses, 
 and other endowments, and the estimated amount of fees, 
 oblations, offerings, or other ecclesiastical dues or ])rotits 
 within each division ; and if his majesty in council shall 
 direct such division to be made, such order shall be valid 
 for effecting such division. But this is not to take eti'ect 
 until the death of the person who is then incumbent; and 
 until his death, the new churches of such divided parishes 
 remain chapels of ease.* 
 
 The commissioners are also empowered, with the same KcdoMasiir..! 
 consent as last mentioned, to unite and consolidate any ('o„'sl,n,iaiicl 
 such contiguous parts of parishes and places into a separate cliapclrits. 
 
 c 1 Black, Com. 114. '> Ibid. 
 
 «■ 53 Geo.3, c. 45, ss. IG, 18.
 
 378 
 
 ECCLESIASTICAL PARISHES AND DISTRICTS. 
 
 and distinct district for all ecclesiastical purposes, and to 
 cause such district to be named and ascertained by de- 
 scribed bounds ; and such name and bounds, when ap- 
 proved by his majesty in council, to be inrolled in chan- 
 cery, and in the registry of the diocese, and to make grants 
 or loans for building, or to build any chapel, with or 
 without cemeteries, in and for the use of the inhabitants 
 of such district, in such manner and inider such regu- 
 lations as may to the commissioners appear most expedient, 
 and to constitute any such district a consolidated chapelry; 
 and every such chapelry shall be under the superintendence 
 of such spiritual person as shall be appointed to serve any 
 such chapel, and such spiritual person shall have cure of 
 souls in such district; and the right of presentation and 
 appointment of such spiritual person shall thenceforth 
 belong to such persons, and be exercised in such manner 
 as may be agi-eed by the patrons of the churches or chapels 
 of such parishes and extra-parochial places, with the ap- 
 probation of the commissioners; and banns of marriage 
 may be published, and marriages, christenings, churchings, 
 and burials, may be solemnized in any such chapel, after 
 the consecration thereof; and the pew rents shall be fixed, 
 and salaries to the minister and clerk assigned therefrom ; 
 and all fees and offerings within such chapelry, according 
 to such table of fees as the commissioners shall make, with 
 the approbation of the bishop, may be recovered in like 
 manner as if such chajielry was a distinct parish ; and the 
 commissioners shall make compensation in manner directed 
 by said act, for any loss sustained by the incumbent of 
 any contiguous parish or place which shall form part of 
 any such district, by reason of any fees, oblations, and 
 ofi'erings being transferred to the spiritual person serving 
 any such chapel ; and all such chapelries shall be deemed 
 benefices, and be subject to the jurisdiction of the bishop 
 and archdeacon where the altar of the chapel shall be 
 locally situate, and to all laws in force concerning pre- 
 sentation and appointment to benefices and churclies, and 
 lapse, and all other laws relative to holding benefices and 
 churches/ 
 Apportionment In every case where the commissioners shall think it 
 of glebe, &c. in expedient to divide any parish, or extra-j)arochial place, 
 into separate parishes for ecclesiastical ])urposes, the com- 
 missioners may, with the same consents, apportion the 
 proportion of glebe land, tithes, nioduscs, or otiier endow- 
 ments or emoluments, which it may be expedient to assign 
 to each division, without regard to wlictiier the proportions 
 
 f 59 Geo. 3, c. 134, s. 6. 
 
 such cases.
 
 ECCLESIASTICAL PARISHES AND DISTRICTS. 379 
 
 are locally situate, or arise within the division to which 
 they may be assigned, or elsewhere.*? In all such cases 
 the commissioners may apportion any existing charges on 
 the benefice, and also apportion the fees, &;c. to the clerk 
 and sexton. 
 
 Where the commissioners may not think it expedient to 
 constitute separate parishes, but that it is expedient to di- 
 vide into ecclesiastical districts, such division may be made 
 and confirmed by order in council, in the same manner as 
 with separate parishes. And this may be done at separate 
 times, and any extra-parochial place be made a district 
 parish or district chapelry, and subdivisions may be made 
 of the same. But the nomination to a chapel of a chapelry Subdivisions of 
 district, so taken from the separate or district parish, is to ecclesiastical 
 belong to the incumbent of the separate or district parish solidated cha- 
 out of which it is taken, and the subdivision is not to take pelries. 
 effect in his lifetime, without his consent."^ 
 
 Boundaries of new parishes created by any complete Boundaries of 
 division, and of ecclesiastical districts, shall be ascertained, "^^^ parishes, 
 and the description of such bounds enrolled in chancery, 
 and registered in the registry of the diocese, and notice 
 thereof given, as the commissioners shall direct. Upon 
 representation of the commissioners, made with consent of 
 the bishop, signified under his hand and seal, such boun- 
 daries may be altered by the king in council within five 
 years after enrolment ; which alterations shall be enrolled 
 and registered as aforesaid. Sucli boundaries shall con- 
 tinue the boundaries of such parishes or districts, and such 
 districts shall become district parishes, and be called by 
 such names as given to them in the instrument enrolled, 
 and shall be separate district parishes, and the churches 
 and chapels assigned to them, when consecrated, shall be 
 district parish churches, for all purposes of ecclesiastical 
 worship and performance of ecclesiastical duties ; and as 
 to all marriages, christenings, churchings and burials, and 
 the registry thereof, and in relation to all fees, oblations 
 and offerings, and as to all other purposes, except as in 
 the act excepted. Divisions made into district parishes 
 only are not to affect any land, glebe, tithes, moduses or 
 endowment of the original church : into separate parishes 
 or district parishes, not to affect any parish or place, or 
 the persons residing therein, otherwise than in the act pro- 
 vided, or any poor or other parochial rate, or the persons 
 interested therein, except church rates.' 
 
 But the boundaries, whether of separate parishes or of Alteration of 
 
 the bouudaries. 
 ? Sect. 8. '■ 58 Geo. 3, c. 45, s. 21 ; I & 2 Vict. c. 107, s. 12. 
 
 ' 58 Geo. 3, c. 45, ss. 22, 23, 24, 30, 31.
 
 380 ECCLESIASTICAL PARISHES AND DISTRICTS. 
 
 district parishes, or district chapelries, may be altered by 
 an order in council, at any future time, without restriction, 
 upon the representation of the church building commis- 
 sioners, the requisite consents being obtained.'^ 
 New district The commissioners may also, in the same manner, and 
 
 chapelries. with such consents as required in case of division into 
 
 ecclesiastical districts, assign a particular district to any 
 chapel of ease, or parochial chapel, already existing : and 
 such districts shall be under the immediate care of the 
 curate appointed to serve such chapel, but subject to the 
 superintendence and control of the incumbent of the parish 
 church ; and all such curates shall be nominated by the 
 incumbent of the parish to the bishop for his license, ex- 
 ce])t where the nomination shall be vested in another 
 person, and in such case, by that person ; subject to all 
 the laws in force relative to stipendiary curates, except 
 assigning to them salaries : provided that the commissioners 
 may, with consent of the bishop, determine whether any 
 and what part of the fees or dues lor marriages, baptisms, 
 churchings and burials shall be assigned to such curate, 
 and whether banns of marriage shall be published, and 
 marriages or baptisms, churchings or burials shall be so- 
 lemnized in any such chapel or not, and in any case in 
 which marriages shall be allowed in any such chapel, the 
 commissioners shall cause the boundaries of the district 
 assigned to such chapel to be enrolled in the Court of 
 Chancery and in the registry of the diocese, and no such 
 chapelry shall become a benefice by reason of any aug- 
 mentation of the maintenance of the curate by any grant 
 or bounty under any act for augmenting small livings.' 
 
 All acts, laws and customs relating to publishing banns 
 of marriage, marriages, christenings, churchings and bu- 
 rials, and the registering thereof, and to all ecclesiastical 
 fees, oblations, or offerings, shall apply to all districts and 
 consolidated or district chajjelries, and divisions of any 
 j)arishes or extra-parochial places, whereof the bt)undaries 
 shall be enrolled in chancery, and in the churches and 
 chajxils whereof banns shall l)e allowed to be ])ublished, 
 and marriatres, christeninirs, churchinLrs or burials shall be 
 
 111 
 
 allowed to be soIenn)i/ed, and to the churches and chapels 
 
 thereof, and to the ecclesiastical j)ersons having cure of 
 
 souls therein, or serving the same, in like numner as if the 
 
 same had been ancient, separate, and distinct parishes and 
 
 ])arish cliurclK^s by law.'" 
 
 District (lia- And wluinever such a district as last-mentioned has 
 
 pclry may l)c \)eci\ assigned, it shall be lawful for the conimissicjners, 
 
 made a separate 
 
 parish. i* 3 \ 4 Vict. c. (iO, s. b. ' 01) Geo. 3, c. 131, s. 16. '" Sect. 17.
 
 ECCLESIASTICAL PARISHES AND DISTRICTS. 381 
 
 with consent of the ordinary, patron and incinuljcnt, or on 
 refusal of the incumbent, with consent of the ordinary, on 
 the next avoidance, to convert any sucii district chapelry 
 into a separate and distinct parish for ecclesiastical pur- 
 poses, or into a district ])arish, where a suitable residence 
 and competent maintenance can be procured and esta- 
 blished for the minister and his successors; and compensa- 
 tion shall be provided, to the satisfaction of the commis- 
 sioners and incumbent, for all fees, oblations, offerings and 
 ecclesiastical dues, which may, by such conversion, be 
 transferred to the minister of such separate and distinct or 
 district parish ; and such conversion shall be made under 
 the seal of the commissioners, and registered in the regis- 
 try of the diocese, and enrolled in chancery, and a dupli- 
 cate lodoed in the chest of the church of the original 
 parish, and in the church or chapel of the separate or dis- 
 trict parish." 
 
 And if at any time it appears expedient, such district Subdivision of 
 chapelries maybe subdivided into other district chapclries, 'I's'hli cliapel- 
 in like manner as they might have been originally divided; 
 and, in such case, the right of nomination to the chapel or 
 chapels of such new district chapelry or district chaj)c'lries, 
 shall be exercised by the incumbent of the ])arish out of 
 which such first assigned district chapelry shall have been 
 taken, unless the right of nomination thereto shall lie 
 legally vested in some other party ; and, in that case, such 
 right of nomination shall belong to him or tiiem, or to such 
 party or parties as shall be agreed upon by him or them, 
 and the said commissioners, with consent of the bishop ; 
 and tlie chapel or chapels of such new district chapelry or 
 district chapelries sluill respectively be subject to the pro- 
 visions and regulations respecting district chapelries." 
 
 The conuiiissioners may also assign a district chapelry District may be 
 to any church or chapel, requisite consent being olHained, f^s'i,";^'' '^' ^"y 
 
 .1 1 X- 1 1 n tliiircli or 
 
 in the same manner as above-mentioned ; and the go- ,.|,,,|,ei. 
 vernors of Queen Anne's Bounty may augment such 
 church or chapel, either before or after such district cliu- 
 pelry has been founded or assigned. p 
 
 If any person is willing to endow a chapel of ease v.ith Chapcliies. if 
 such a provision as the bishop shall deem sufficient to en- '■''T'!!!^^^" 
 sure a competent provision for the minister, it shall be spparaie pa- 
 lawful for the l)ishop, with the consent of the patron and lishcs. 
 incumbent of the parish, by writing under his hand and 
 seal, to declare that such chapel, when so endowed, shall 
 thenceforth be separate from and independent of tin; j)arisli 
 
 •> 3 Geo. 4, c. 72, s. 16. » 3 & 4 Vicl. r. GO, s. 1 . 
 
 i> 2 & 3 Vict. c. 40, s. 3.
 
 382 
 
 ECCLESIASTICAL PARISHES AND DISTRICTS. 
 
 Division of dis- 
 tricts for cei'tain 
 specified eccle- 
 siastical pur- 
 poses only. 
 
 Probable efTect 
 of the (Church 
 Endowment 
 Act. 
 
 New districts 
 formed by the 
 ecclesiastical 
 commissioners. 
 
 church ; and that the chapeh-y, township or district be- 
 longing or supposed to belong thereto, shall be thence- 
 forth a separate and distinct parish for all spiritual pur- 
 poses.'' 
 
 In certain cases, where new churches have been built 
 and endowed, the commissioners may assign a district, 
 which shall be under the immediate care of the minister 
 who shall have been duly licensed to serve such church or 
 chapel, so far only as regards the visitation of the sick and 
 other pastoral duties, and shall not be deemed a district 
 for any other purpose whatsoever : provided that it shall 
 be lawful for the commissioners, with the consent of the 
 bishop of the diocese, in all such cases as shall come be- 
 fore them, and for the bishop alone in all other cases, to 
 determine whether baptisms, churchings or burials shall 
 be solemnized or performed in any such church or chapel, 
 or not ; and the commissioners or bishop respectively, as 
 the case may be, shall cause a description of the boun- 
 daries of the district assigned by them to such chm-ch or 
 chapel to be registered in the registry of the bishop of the 
 diocese ; and shall also cause their order and direction in 
 writing, as to all offices to be performed in any such church 
 or chapel, to be registered in the registry of the diocese.'" 
 
 All the newly constituted ecclesiastical divisions of this 
 country, by whatsoever name they may be called, whether 
 parishes, districts, or chapelries, have hitherto been made 
 under some of the above-mentioned provisions ; and there 
 will still be very many cases in which the divisions and 
 subdivisions of parishes, &c., for ecclesiastical purposes, 
 must be made under and regulated by those j^rovisions. 
 But although those provisions are not in any manner su- 
 perseded, they will probably be less frequently had recourse 
 to in the future divisions of parishes, in consequence of the 
 provisions recently made by the Church Endowment Act, 
 by wliicli in many cases (although, as it will be observed, 
 not in all) the same purposes may be effected. 
 
 For now, if at any time it shall be nuide to appear to the 
 ecclesiastical commissioners that it would jiromote the 
 interests of religion, that any part or parts of any j)aris]i, 
 chapclry, district, or any extra-parochial place, should be 
 constituted a sej)aratc district for spiritual j)urj)oses, it 
 shall be lawful, by their authority, with the consent of the 
 bishop of the diocese, undc-r his hand and seal, to set out 
 by metes uud boiuuls and constitute a sej)arate district 
 accordingly, such district not then containing within its 
 limits any consecrated church or chapel, in use for the 
 '1 1 & 2 Will. 4, c. 38, s. 23. "■ 1 & 2 Will, 4, c. 38, s. 10.
 
 ECCLESIASTICAL PARISHES AND DISTRICTS. 383 
 
 purposes of divine worsliip, and to fix and declare the 
 name of such district : provided that the draft of any scheme 
 for constituting any such district shall be delivered or 
 transmitted to the incumbent, and to the patron or ])utrons, 
 of the church or chapel of any parish, chapelry or district, 
 out of which it is recommended that any such district 
 should be taken, in order that such incumbent, patron or 
 patrons, may have an opportunity of offering or making to 
 the commissioners, or to such bishoj), any observations 
 upon or objections to the constituting of such district ; and 
 that such scheme shall not be laid before her majesty in 
 council until after the expiration of one calendar month 
 next after such copy shall have been so delivered or trans- 
 mitted, unless such incumbent, and patron or patrons, 
 shall in the meantime consent to the same : provided also, 
 that in every scheme for constituting any such district, the 
 commissioners shall recommend to her majesty in council 
 that the minister of such district, when duly licensed, shall 
 be permanently endowed, under the provisions of that act, 
 to an amount of not less than the annual value of 100/, ; 
 and also, if such endowment be of less than the annual 
 value of 1501., that the same shall be increased, under the 
 like provisions, to such last-mentioned amount at the least, 
 so soon as such district shall have become a new parish.^ 
 
 A map or plan, setting forth and describing such metes Tlie mnps, 5cc., 
 and bounds, shall be annexed to the scheme for constitutino- of '''c new dis- 
 
 • • • • Irict 
 
 such district, and transmitted therewith to her majesty in 
 council, and a copy thereof shall be registered by the re- 
 gistrar of the diocese, together with any order issued by 
 her majesty in council for ratifying such scheme ; but it 
 shall not be necessary to publish any such map or plan in 
 the London Gazette/ 
 
 Upon any such district being so constituted, a minister 
 shall be nominated thereto and licensed, and shall have 
 power to perform within such district all such pastoral 
 duties appertaining to the office of a minister, according 
 to the rites and usages of the united Church of England 
 and Ireland, as shall bo specified and set forth in his 
 license ; and when a building shall be licensed within 
 such district for divine worship, he shall also perform such 
 services and offices as shall be specified and set forth in 
 the same or any further license granted in that behalf by 
 the bishop of the diocese ; and such minister shall perform 
 such pastoral duties, services and offices respectively, inde- 
 pendently of the incumbent or minister of the church of 
 any parish, chapelry or district, out of which such new 
 « 6 & 7 Vict. c. 37, s. 9. ' Sect. 10.
 
 384 ECCLESIASTICAL PARISHES AND DISTRICTS. 
 
 district or any part thereof shall have been taken ; and 
 shall, so far as the performance of the same may be autho- 
 rised by such license or licenses, have the cure of souls in 
 and over such new district : provided that no burials shall 
 be performed in such licensed building, and that nothing 
 shall empower such bishop to include in such license the 
 solemnization of marriages. 
 The new district When any church or chapel shall be built, purchased, or 
 IS to become a acquired in any district constituted as aforesaid, and shall 
 wlieiuhecinucli ^^^^'6 been approved by the commissioners by an instru- 
 is consecrated, ment in writing under their common seal, and consecrated 
 as the church or chapel of such district for the use and 
 service of the minister and inhabitants thereof, such district 
 shall, from and after the consecration of such church or 
 chapel, be a new parish for ecclesiastical purposes, and 
 shall be known as such by the new name of " The new 
 Parish of ," instead of '' The District of ," accord- 
 ing to the name already fixed for such district; and such 
 chmch or chapel shall become and be the church of such 
 new parish accordingly, and any license granted by the 
 bishoj), licensing any building for divine worship, shall 
 thereupon become void ; and it shall be lawful to publish 
 banns of matrimony in such church, and, according to 
 the laws and canons in force in this realm, to solemnize 
 therein marriages, baptisms, churchings, and burials, and 
 to require and receive such fees upon the solemnization of 
 such oihces, or any of them, as shall be lixed by the chan- 
 cellor of the diocese in which such new parish shall be 
 situate ; and which fees, and also the fees for churchings 
 to be received by the minister of such district, such chan- 
 cellor is empowered and re({uired to iix accordingly; and 
 the like Easter oH'erings and dues may be received within 
 the limits of such new parish, l)y the perpetual curate 
 thereof, as were before ])ayable to the incumbent of the 
 cluuch of the principal parish, of which such new parish 
 oiiginally formed a part. 
 
 All the laws ecck;siastical in respect of the ordinances 
 of th(! church are to be in forc(! in the new parish, but the 
 peipcliial ciii'ate is not to receive; any fee f.ir h-.ipfism or 
 for registciiiig bajjlisnis." 
 
 " Sect. 15.
 
 ( 385 ) 
 
 CHAPTER TT. 
 
 OF CHURCHES. 
 
 Section 1. 
 
 Calliedral and Collegiate Churches. 
 
 Cathedral churches were piobubly unknown in Ens2;land Oiigln of 
 prior at least to the tiuu; of the Enij)eror Constuntiue ; but, cathedrals. 
 after his conversion, the other converts in those clays and 
 in the following- times, who were many of them governors 
 and nobles, settled lands of considerable extent upon those 
 who converted them ; and the hrst oratories, or places of 
 public worship, are said to have been built upon those 
 lands. These first oratories were called cathedra or sedes ; 
 cathedrals, sees or seats, from the clergy's constant resi- 
 dence theieon ; and it is said that every town which hath 
 a see of a bishop placed in it is thereby entitled to the 
 honours of a city ; '' but, query, whether it is not also 
 necessary that it should be a borough incor[)orate, and 
 whether the new sees erected, or to be erected, under the 
 authority of the ecclesiastical commission, and some of the 
 Welsh sees, would rightly confer the name of city on the 
 places wherein they are situated .' 
 
 The distinction between cathedral and collegiate churches 
 consists principally in the see of the bisho[) at the former, 
 for a dean and clVaptci- are common to both ; and while 
 cathedrals are subject only to the visitation of the arch- 
 bishoj), and to the king, when the archbishopric is vacant, 
 collegiate churches arc visitable by the bisho|) oi' the dio- 
 cese, unless where it has been expressly j)rovided otherwise 
 by the founder ; conse([uently, every cathedral or see, so 
 soon as it is erected, is exempt from and independent of the 
 visitation of the archdeacon. Thus, a bishop's see having Kxempt fiom 
 been-newlv erected within the limits of a certain arch- thearchdeacon's 
 deaconry, it was represented that the archdeacon had pre- ^ 
 sumed to, exercise his jurisdiction over the bishop there 
 consecrated, and the church; and Gregory IX. decreed 
 thereupon, that this should no more be done, but that the 
 bishop should be exempt from the archidiaconal jurisdic- 
 a Godolph. Abr. 347 ; 1 Inst. 109. 
 
 c c
 
 386 
 
 OF CHURCHES. 
 
 tion.'' And as this decretal epistle became a part of the 
 canon law, it may be presumed that the same would now 
 be held in the case of any new sees erected under the re- 
 commendation of the ecclesiastical commission. 
 
 Besides the proper revenues of cathedral churches to be 
 applied towards the repairs thereof, there are divers for- 
 feitures by the several canons of Archbishop Stratford to 
 be applied to the same purpose ; namely, for the unfaithful 
 execution of wills, for extorting undue fees for the probate 
 of wills, and half the forfeitures for excessive fees at the 
 
 Cathedraticum, admission of curatcs ; and also the cathedraticum, which 
 is or formerly was paid in honour of the cathedral church, 
 and in token of subjection to it, by every parochial minister 
 within the diocese. 
 
 This annual pension, as it has been called, is restrained 
 by the canon law to two shillings at most from each parish, 
 and it has been sometimes called synodaticum or synodcds, 
 because generally paid at the bishop's synod at Easter; 
 but all these payments are now fallen into disuse, and such 
 claims could not now probably be successfully revived. 
 Yet, notwithstanding the discontinuance of this acknow- 
 ledgment, the cathedral church is the parish church of 
 the whole diocese ; which diocese was, in fact, anciently 
 called pnrochia, until the application of this name to the 
 lesser branches, into which it was divided, made it, for dis- 
 tinction's sake, to be called only by the name of diocese; 
 and it has been affirmed therefore, that if one resort to the 
 cathedral church for the purpose of hearing divine service, 
 it is a resorting to the parish church within the sense and 
 meaning of the statute; and this further appears, for that 
 it is ordained by a canon of Archbishop ]Me]iham, that, in 
 certain cases, they who cannot be cited personally nor in 
 their dwelling-house, nuiy be cited in their parish church, 
 and if they have no parisii church, or that does not appear, 
 then they sliall be cited in the cathedral ; and that also by 
 canon 65, that exconimuni(;atos shall be denounced every 
 six months, as well in the parisli church as in the cathedral 
 church of the diocese. ° 
 
 Ornaments The See of a bisliop Is entitled to the ornaments of the 
 
 wliicli go to the fliapel at his decease; and allhouu'li other chatlcls belong 
 successor. j ^i ^ /• ^i i i ' i i ii i • 
 
 to tlie (executor ol tlie deciuised, and sliail not go ni suc- 
 cession, yet the ornaments of a chapel of a preceding 
 Ijishop are m(!rcly in succession;'' and this is agreeal)le to 
 analogy, for ordinary things erected in the church for the 
 honour of the dead person sliall go to his heir as hcir- 
 loon)s, as in manner of an inheritance. 
 
 The catliedral 
 the parish 
 church of the 
 diocese. 
 
 b Gibs. 171. 
 
 Ibid. 
 
 Ibid. ; Corvin v. Pym, 12 Rep. 186.
 
 CATHEDRAL AND COLLEGIATE CHURCIIE8. 387 
 
 Of the ljisho})rics of the now foundatioii we huve before Newcatliedials, 
 spoken; as to the cathedral churches of the same it was 
 enacted,^ that the king sliould have power to declare by 
 letters-patent, or other writing under the great seal, such 
 number of cities, sees for liishops, cathedral churches and 
 dioceses, by metes and bounds, as shall appertain, and 
 out of the revenues of the dissolved monasteries to endow 
 them in such manner as he should deem expedient ; and, 
 as to such cathedral churches, it will be sufficient to ob- 
 serve that the law regarding them difl'ers not from that 
 regardino- the churches of the old foundation. 
 
 The collegiate church of Ripon is now made a cathedral 
 church, and the chapter is invested with the rights and 
 powers of other cathedral churches ; consequently, the 
 visitation of the l)ishop is exchanged for that of the metro- 
 politan of the province, and it has become exempt from 
 the archidiaconal visitation;* and provision has also been 
 made for an episcopal residence and demesne for the see. 
 The collegiate church of Manchester will probably be 
 shortly changed in like manner. 
 
 Section 2. 
 Parish Churches. 
 
 Of churches, other than cathedral and collegiate, by far Definition of a 
 the largest proportion, as well as the most important, are 1'^"^'' church, 
 those of the different parishes. If a church or chapel has 
 a public cemetery belonging to it, a communion table, pews 
 in right of houses, christenings there, and Easter dues paid 
 its minister, these things are strong to show that it is a pa- 
 rochial church or chapel ; '-' to which definition there should 
 probably be added, that the church should have existed 
 from time immemorial, and that the inhabitants of the 
 district belonging to it should never have contributed to 
 the repairs of a mother church ; for these things would 
 show it to be a chapel only, dependant upon some mother 
 church. According to Degge and Kennet, baptism and 
 sepulture are proofs of a parochial chapel, and this is true, 
 but they are certainly not sufficient proofs ; and this will 
 be seen by what is said of this subject under the title of 
 church rates.'' 
 
 The test or definition by which a parish church or chapel Diflerent kinds 
 may be tried is of course not applicable to parish churches o*"- 
 
 « 31 Hen. 8, c. 91. ^ Order in Council, dated 5th October, 183G. 
 
 8 Ex parte Greenhouse, 1 Rladd. 108. 
 
 '' See also Craven v. Saunclerson, 7 Ad. & Ell. 880. 
 
 cc2
 
 cliuiches. 
 
 388 OF CHURCHES. 
 
 declared so by special or general acts of parliament, 
 and, as well for many practical purposes, as here for 
 more easy consideration, parochial churches may be thus 
 classed ; namely, original parish churches, substituted 
 parish churches, separate parish churches, and new dis- 
 trict parish churches.' It will be obvious, however, that 
 the greater part of what we shall have here to remark will 
 be equally applicable to all, since all are parochial churches 
 equally. 
 
 Original paiisli ^hc ancient manner of foundino- churches of this kind 
 was, that the intended founder made application to the 
 bishop of the diocese and obtained his license, then the 
 bishop or his commissioners set up a cross, and set forth 
 the ground where the church was to be built ; and then 
 the founders might proceed in the building of the church, 
 and when the church was hni.shed the I^ishop was to con- 
 secrate it.^ 
 
 No person therefore could erect a church without leave 
 of the bishoj) ; and after it is erected the law takes no 
 notice of it as a church until it is consecrated by the 
 bishop ; for this reason, therefore, the question of a church 
 or not a church, a chapel or not a chapel, is to be tried and 
 certified by the bishop.' But if the question be whether, 
 admitting it to have been consecrated, it be a church or 
 only a chapel, such a question would not be triable in the 
 ecclesiastical courts, und prohibition would lie, for such a 
 question shall be tried by the country.'" 
 
 Consecration of 'H^q consecration of churches was first enjoined by Eu- 
 genius, the first priest of Home who styled liimsclf the pope, 
 in the year 154, and this was aftewards enforced in tliis 
 country by a constitution of Othobon." 
 
 In cases of urgent necessity it appears that, by consent 
 of the bishoj), divine service might be |)ref(jrmcd and the 
 sacraments administered in churches and chapels not con- 
 secrated ; as where the chinch was destroyed by (iie, and 
 service j)erformed in tents, or in the open air, before the 
 consecrated altar; and more esjiecialiy where a church 
 was shut u\) and under repair, and banns had been ])ub- 
 lislied ill the church of an adjoining parish, a marriage 
 solenniiscd on the site of the old church was held good." 
 
 r.ndowinoiit lo And no church may be consecrated until a competent 
 
 he fi.st provided, endowment is i)rovided; and the canon law goes further, 
 requiring the endownu-nt to be made not only before eon- 
 
 ' Sf;e tlif! scveial cluircli buililing acts; ami ante, I'.ook 111. (Ii. I.; see also 
 tl)e (Miiirch I'",n<lowment Act. 
 
 I' Still. K, (;,; I I'Miin's i:. L. 3-2:<. ' .') Inst. 203. 
 
 •■' 2 lUII. Aln. 291 ; Wals. c. 2:5. " 1 llurn's K. L. 3'2i. 
 
 " Stdllwiwil V. Tie(l<;itv, 2 riiill. -I'M. 
 
 churches.
 
 PARISH CHURCHES. 3^9 
 
 secration, btil to l)c usccrtained Jtnd (.•xliil)il,(,'<l bcCoic tlioy 
 begin to build.'' This cudowiuent in the ohi (•hiifehcs was 
 commonly made by the lord of the manor, by an allotment 
 of the manse and glebe; and other persons also at the 
 time of the dedication often contributed small portions of 
 land, which is the reason why, in many [iarishcs, the glebe 
 is not only distant from the manor, but is in remote divided 
 parcels. 
 
 It does not aj)pear necessary here to say much as to the ''""" of conse- 
 forni of the consecration, for it is to be found in some of *^'^''"""- 
 the Books of Connnon Prayer; and this is now usually, 
 or perhaps universally used, and is the form sent down by 
 the bishops in 1712 to the lower house of convocation, 
 and altered and afterwards agreed to ; vet it never received 
 the royal assent, and consequently is not enjoined to be 
 observed ; and in fact, although it might be unwise to 
 depart from what has been prescribed by far weightier 
 authority than could now be obtained, and from what has 
 in addition been sanctioned by custom, yet in our Church 
 at the present day every bishop is left to his own discretion 
 as to the form he mi<>ht choose to observe in the consecra- 
 tion of churches.'' 
 
 If a church has been j)olluted by the shedding of blood, Recoobccratiun 
 it seems there should be a reconciliation ; and if it has been ^"^ rcconcilia- 
 entirely or ahiiost entirely destroyed by fire, a reconsecra- 
 tion ; but if the walls were entire and the communion table 
 not injured, then there ought to be no reconsecration : and 
 where a chapel at Hereford liad for some time been applied 
 to secular purposes, and had been made a stall for cattle, 
 and a place for laying up provender, yet, as the walls were 
 entire, a reconciliation and not a reconsecration w;is deemed 
 proper. 
 
 But where the church at South jNIulling had been pol- 
 luted in a similar manner, and had been also rebuilt, and 
 then used for divine services, the n)iuister, churchwardens 
 and parishioners were interdicted by the archbishop fiom 
 entering the church until there hatl been a reconsecration. 
 In a case where a reconciliation was judged sufficient, the 
 tenor of the reconciliation was, " The same chapel from all 
 canonical impedinuMit, and from every ))rofanation (if any 
 there were) contracted and incurred, as much as in us lieth, 
 and so far as lawfully we may by the authority aforesaid, 
 we do exempt, relax and reconcile the same." ' 
 
 Probably there is no very certain rule which could bo 
 
 1' Gibs. 189. 
 
 1 The form is set out very fully in Dr. Bum's work on tcclesiaslitai Law, 
 
 r Oibs. 189.
 
 390 
 
 OF CHURCHES, 
 
 Tower or belfry. 
 
 laid down as to the cases in whicli reconciliation or recon- 
 secration would be proper ; but if any precedent may be 
 derived from the cases mentioned, wherever a church has 
 been rebuilt, it would seem proper that there should be a 
 reconsecration ; for it would appear from the form of con- 
 secration that it is not the soil only on which the church 
 is built, but the walls and the whole building that are con- 
 secrated; and consequently the new building, though upon 
 the old site, would as much require to be consecrated as if 
 it had been erected elsewhere. 
 
 A church having once been consecrated, and by that 
 solemn rite dedicated to the service of God, and separated 
 from all unhallowed uses, cannot be unconsecrated but by 
 act of parliament.'^ 
 Fabric of the Parochial churches may be said generally to consist of 
 
 '^''^''<^''* four parts : the belfry tower or steeple — the chancel — the 
 
 nave or body of the church — and the aisles. These parts 
 form the fabric of the church, which has been said to con- 
 sist of the walls, windows, and covering ; and each of these 
 parts we shall consider briefly before we speak of the pews, 
 goods, utensils, or ornaments contained in them. 
 
 With regard to the tower or belfry very little is to be 
 found in our books ; but it has been established that it is 
 part of the church itself; for where a church was injured 
 by lightning, and the parish repaired the body and the 
 roof, but refused to rebuild the spire, the ecclesiastical 
 court issued a monition to repair and reinstate ; and it 
 beino- suooested that there were insurmountable difficulties, 
 the court said if there were such, reference must be had to 
 the court.' 
 The chancel. The chancel, cancel/us, seemeth properly to be so called 
 
 a cancclUs, from the lattice-work partition betwixt the quire 
 and the body of the church, so framed as to separate the 
 one from the other, but not to interrupt the sight." At 
 the time of the Reformation this distinction between the 
 chancel and the body of the church was fiercely attacked 
 as tending oiilv to magnify the priesthood. But though 
 the king and parliament yielded so far as to allow tlu; daily 
 service to be read in the body of the church, if the ordi- 
 nary should think fit, yet they would not allow the chancel 
 itself to bo taken away or allorcd ; "^ and therefore it is by 
 the rubiic ordained that the chancels shall remain as they 
 have done in times past. And as divine service was for- 
 merly performed by the minister in the chancel, it thus 
 
 » See Eiiiitrtc Cneeuhoitse, 1 Madd. 100. 
 
 < Lnril T\I<i>)iuml v. Ihand and Vhiljwl, 3 I'liill. 501. 
 
 « 1 IJurn's !■;. I,. x Gibs. 199.
 
 PARISH CHURCHES. 391 
 
 came to be considered more ])eeuliarly and especially be- 
 longing to him. And Lord Coke says, in the chancel the 
 freehold is in the parson, and is parcel of his glebe ;^ yet Paison's light 
 it appears now to be clearly established that this is not so ; '" ^'"^ chancel, 
 and that whatever property or riglit the parson or rector 
 may have in the chancel, he has not that full and exclusive r 
 
 property which he may be said to have in his glebe ; for ^<j^-- 
 the jurisdiction of the ordinary extends to the chancel as r. . 
 well as to othei' ])arts of the church ; and it would be most oc)<c/>^ 
 inconvenient if it were not so ; for when lay impropriations ^(^"oj^ 
 began, the rights and property in the chancel passed to 
 the lay rectors: and it is this which in fact has given rise / J 
 to frequent litigation on the subject; and it now seems to f 
 be decided that the rector has the freehold in the chancel 
 in the same way as, and no further than, he has in the 
 church and the churchyard. He is not therefore entitled 
 as of rioht to make a vault or affix tablets in the chancel 
 without leave of the ordinary ; nor is he entitled to a faculty ^ ^-S^^^ 
 for such purposes without laying before the ordinary the - V 
 
 particulars, in order to satisfy him that the tablets or vault -o*'^ 
 
 will not interrupt the parishioners in the use and enjoy- / /li/j^ ^l 
 ment of the chancel. The burden of repairing the chancel, ^ 
 
 in the absence of a custom to the contrary, rests of com- 
 mon right on the rector ; but so also the parishioners are 
 bound of common right to repair the body of the church ;^ 
 but as this confers no right on the parishioners to oust the 
 jurisdiction of the ordinary, so neither does it confer a 
 similar right in the rector. And as to the use of the chan- Right lo the use 
 eel, it clearly belongs to the parishioners for the decent ° "'^ ^ ^^^^ ' 
 and convenient celebration of the holy communion, and the 
 solemnization of marriage. ^ 
 
 This however is during the administration of divine ser- 
 vice only, for the possession of the whole church is in the 
 minister and churchw^ardens ; and no person has a right 
 to enter it, when not open for divine service, except by 
 their permission.'^ 
 
 Several different origins have been proposed for the word The nave, 
 nave ; the most simple as well as the most probable of 
 which appears to be that of vuog, as pronounced with the 
 digamma ; vavg has also been suggested ; and it is singular 
 that in some of the modern languages the word by which 
 this part of the church is signified is the same as that sig- 
 nifying a ship. Dr. Burn says it is a Saxon word, nave or 
 
 ^ Brownlow v. Goldsbovough, Ought. 4. 
 
 » See 3 M. & K. 389. 
 
 ^ Sir .T. JSficholl, in Rich v. BushneU, 4 Hagg. 
 
 c Jarrett v. Steele, 3 Phill. 170.
 
 392 OF CHURCHES. 
 
 nap, and probably signiTics the middle of" a wheel, being 
 that part in which the spokes are fixed, and is f'roni thence 
 transferred to signify the body or middle part of the church. 
 The freehold of the nave or body of the church is in the 
 parson, who would consequently be the proper person to 
 bring an action against any one injuring or carrying away 
 that which is part and parcel of or affixed to the freehold ; 
 but custom or the common law has cast the burden of 
 repairing it upon the parishioners. And as the freehold is in 
 the parson, he has a special duty upon him to see that the 
 body of the church is well and sufficiently repaired, and 
 that rates for that purpose are duly made.'' The parish- 
 ioners have a right to the use of the body of the church at 
 such times as it is properly open, and this whether they 
 make any payment to the rates or not : " a right which 
 must be borne in mind when we come to the important 
 subject of the seats or pews in the church, and the right to 
 the disposal or occupancy of them. 
 The aisles. The word aisle is probably deiived from the French aile, 
 
 ala, or wing ; for the Norman churches were built in the 
 form of a cross with the nave and two wings. 
 Wlien privaie An aisle is frequently established as belonging either 
 
 property. wholly or in part to ])rivate families or individuals, or rather 
 
 to j)articular estates within the j)arish, the owners of which 
 it is j)resumed originally erected the aisle for the accom- 
 modation of their household, which their successors in the 
 estate claim as apj)urt('nant to the ancient mansion or 
 dwelling-house; but in order to com])lete such exclusive 
 right, it is necessary not only that it shoidd have existed 
 immemorially, but tliat the owners of the estate, in respect 
 of which it is clainu'd, should from time (o time have borne 
 the expens(; of repairing lluit wliich tlu:y claim as having 
 been set up by their predecessors; for tlie constant sitting 
 and burying in the aisle alone, without reparation, will not 
 gain any peculiar property therein ; but the aisle having 
 been repaired at the connuon chargi; of the parish, the 
 common right of the ordinary takes place, so that he might 
 appoint whom he [ileased to sit there, notwithslanding any 
 usage to tlu; contrary.' 
 
 In these! cases it is picsumed that the aisle was originally 
 erecteil by the person to whose (jstate it is attached, with 
 the consent of the i)arson, patron and ordinary ; l)ut, for 
 the reasons we have before mentioned, no such title to an 
 aisle can be Liood if the presei-i])li()ii be to a man and his 
 
 <) 3 I'lii)1.35. ' 1 Ilag(5. 317. 
 
 ' See 3 Inst. 202 ; I'mucis v. Leu, do. Jac. 366 ; Bmloii v. Uaiemaii, Siderf, 
 88 ; JV/")/ V. Githert, 1 IJulsl. ; VuUtr v. l.ant, 2 Add. 433 ; Dcgge, 144.
 
 PARISH CHL'HCHES. 393 
 
 heiis; but the uislc must ulwuys be sujjpuseW to be held 
 iu respect of the house, and will always go with the house 
 to hiin that inhabits it.*-' 
 
 It was said in a modern case by Sir J. Nicholl, " The Conscfiucnces 
 parish church of L. appears to be an old collegiate church, "*^* 
 with three chancels, as they are called, or more properly 
 aisles ; the number of pews in these aisles is twenty- 
 three, but the aisles themselves, and the pews in them, 
 are the mere private property of three several parish- 
 ioners who keej) them in repair, and the sittings in these 
 aisles are not open in any sense to the general accommo- 
 dation of the parishioners :"' and it being thus clearly esta- 
 blished that tliere may be such a right, if any disturbance 
 of it were to take place, the owner would have his remedy 
 by action at common law against the trespasser, whether 
 it were the ordinary or one of the parishioners.' 
 
 And as the aisles themselves and the seats in them may, 
 according to the w'ords above quoted, be mere private pro- 
 perty, it seems that they may be held by persons not resi- 
 dent in the parish, or that they may be prescribed for as 
 annexed to a house situate out of the parish ; ^ being there- , 
 fore in this respect altogether difi'erent from the private 
 pews and faculty seats in the body of the church, to be 
 presently s})oken of. 
 
 If increased accommodation in a church is required, and Alteiing anl 
 mioht be provided bv means of alterations made, the enlarging 
 
 11 1 1 ■ 1 p p 1 I- /• churches for 
 
 churchu ardens ought to apply tor a faculty or license trom increased ac- 
 the ordinary for that pm-pose. And this is the only way commodation. 
 in which alterations or enlargements in a church can be 
 legally effected.' If the population of a parish has so in- 
 creased that the church is unequal to general accommo- 
 dation, an extension of the buildings, or a more convenient 
 api)lication of the space within, must be resorted to. In 
 granting a license or faculty for either of these purposes, 
 the court would consider the ex))ense to the parish ; whe- 
 ther the symmetry and proportions of the church would 
 be violated by the alteration, and whether the inside would 
 be rendered dark and incommodious. It would also pay 
 great attention to the fact that it was against the wishes 
 of the majority of the inhabitants, although not bound by 
 such a circumstance, and it would also pay the same due 
 attention to the opposition of the incumbent, although 
 neither will that necessarily sway the decision of the court, 
 for the court is not bound to regard it.'" 
 
 ? 12 Coke, 106; 1 B. & A. 498 ; 1 Sid. 88 ; 5 T. R. 298. 
 
 l> Fuller V. Lane. 2 Add. 433. ' May v. Gilbert, 2 Bulst. Coke, J. 
 
 k 2 Add. 424 ; 6 B. i C. 18 ; 1 Hagg. 32"l. 
 
 I Gibs. Cod. w See 1 Pliill. 233 j 1 Hagg. Consis. ; 2 Add. 429.
 
 394 OF CHURCHES. 
 
 And it follows from the fact that the decision of the 
 court in such cases is independent of the wishes of the 
 parishioners or of the incumbent, that if alterations were 
 ordered by a vestry, and a faculty were applied for to con- 
 firm them, it would matter little whether the vestry had 
 been legally constituted. Thus in a case where a vestry- 
 room and gallery had been added in a parish church by an 
 order of vestry, and an application made for a faculty ap- 
 proving and conhrming the work, it was objected that the 
 vestry giving the order had not been assembled on a legal 
 notice, none having been affixed on the church door, con- 
 formably to 58 Geo. III. c. 69, s. 1, and that the altera- 
 tions were unnecessary ; but it was proved that the notice 
 of vestry was published in the church ; that it Avas held in 
 the usual manner, and continued by adjournment; that 
 the general concurrence of the parish was evident; that 
 the objection was not taken till long after, when disputes 
 had arisen upon other subjects ; and that there was a want 
 of increased accommodation. Upon consideration of the 
 case, the court asked the counsel whether they could hope 
 . to maintain, with success, either that a faculty could not 
 legally be granted, or that it would not be a proper exer- 
 cise of the discretion of the ordinary to confirm the erection 
 of these useful accommodations in the church of an opu- 
 lent and populous parish. The case coming on, on appeal, 
 the counsel consented to a reversal of the sentence of the 
 court below, which had refused a faculty, upon an under- 
 standing that no costs should be given, with a view to 
 promote harmony and reconciliation." 
 In cases of (lis- If there should be any dispute in a parish as to whether 
 pule. increased accommodation in the chin-ch be necessary, and 
 
 as to where, and in what manner it should be eflected, then 
 When nodis- the ordinary is the sole judge in such a case. But if the 
 P"''-"- incumbent, churchwardens and parishioners were unani- 
 
 mously of opinion, that such increased acconunodation was 
 necessary, and that it should be made in a particular part, 
 it seems that there is no necessity for the interposition of 
 the ordinary ; for as there is no controversy, there can be 
 no need of a judge:" but it cannot by this be intended 
 that the ordinary n)iglit not interpose, if he thou<ght proper, 
 or that it would not be his duty to interpose, if he con- 
 sidered the synunetry or beauty of the climcli to be in any 
 manner vif)lafcd by the alteration. 
 What dtirimcni It is uot easily to be deduced from the decided cases, 
 
 might he per- ^yhat kind of detriment to the church would be sufficient 
 
 niittcd to gala 
 
 increased ac- " Thomas and Ilni^lus v. Morri$, 1 Add. 470. 
 
 commodalion. " Johns. 163 ; Ayl. Tarer. 484 ; Rogers's E. L, 171.
 
 PARISH CHURCHES. 395 
 
 to induce the court not to deciee u faculty for the purpose 
 of making- tlie proi)osed alterations ; for generally it may 
 be supposed that no alteration, such as erecting galleries, 
 or filling up the open space with pews, could be made 
 without some detriment to the fabric of the church, or 
 without in some degree destroying its beauty and sym- 
 metry. 
 
 In a case where a large majority of parishioners as- 
 sembled in vestry voted that an ai)plical,ion should be 
 made to the ordinary for a faculty to erect a gallery for 
 the acconnnodation of the increased po])ulation of the 
 parish, which increase was distinctly proved by the build- 
 ing of new houses, and the many applications to church- 
 wardens for pews, which they were unable to satisfy from 
 want of room ; it was objected that such a gallery would 
 endanger the fabric and darken the pews, but not that the 
 expense would burthen the parish, nor that the symmetry 
 and proportion of the church would be violated : the ob- 
 jections made were rebutted, and the faculty was decreed 
 without costs. P And it is presumed, that every such case 
 will be decided on its own peculiar grounds, and that no 
 general principle would be applicable. 
 
 It follows necessarily from what has here been said, that 
 nothing could justify the incumbent or the parishioners 
 separately, and from the mere wish of one of them, without 
 the concurrence of the others, and without the authority of 
 the ordinary, in making any such alterations as have been 
 mentioned. 
 
 If the vestry and the bishop and incumbent are all con- 
 senting, but not otherwise, the churchwardens may borrow 
 and raise on the rates money necessary for defraying the 
 expenses of enlarging the accommodation in churches or 
 chapels, making rates for payment of the interest, and 
 providing a fund of not less than the interest annually for 
 repayment of the princi])al, or for repaying the principal 
 in any other manner that may be agreed upon ; and where 
 a church is thus enlarged, one-half of the additional ac- 
 commodation thus obtained shall be allotted to uninclosed 
 or free seats ;i but this subject will be found afterwards 
 more fully treated of under the head of church rates. 
 
 P Groves and White v. Reclor oj' Horiisey, 1 Hagg. R. 188. 
 1 58 Geo. 3, c. 45.
 
 396 of churches. 
 
 Section 3. 
 Of Chapels and Churches not Parochial. 
 
 What is a The definition of" the term chapel is by no means so 
 
 '^'•■''P^'- easy now as formerly, since many chapels of ease have 
 
 become, in effect, churches, under the provisions of the 
 church building acts ; many more are in the course of 
 being so converted ; and the church building acts, in 
 many instances, speak of churches and chapels indiscrimi- 
 nately. 
 
 Some kinds of chapels, however, there are, as to which 
 no change has taken place, as private chapels ; but of the 
 law relating to these, there is not much to be observed. 
 
 Private chapels. Private chapels are those of which several are existent 
 in this country, which have been founded by wealthy per- 
 sons residing at some distance from their parish church. 
 No obligations whatever in respect of them are entailed upon 
 the inhabitants of the places where they may have been 
 built; but the chapels themselves, with their ornaments, 
 &c. and the ministers ofliciatinsj; therein, are maintained 
 entirely at the expense of the individual to whom they 
 belong. Such chapels have no certain endowment, and, 
 consecpientlv, the minister has no IVeehold in his office ; 
 but the owner of the chapel may dismiss him at any time 
 he thinks proper, and appoint another in his j)laoe.' But, 
 practically, they are not altogether free from the control 
 of the ordinary; for a minister cannot officiate in these 
 chapels, more than elscw hcr<^, without a license from the 
 ordiniuv, who niay, th(reft)rc, by n-fiisal of the license, 
 have some control over the ap])ointment : nor can divine 
 service be performed in any building of this kind, unless 
 it is licensed for that purpose bv the bishop, who in the 
 license may express any particular services which he au- 
 thorises to be performed there.^ In giving directions as 
 to the service to be jjcrformed in chaj)els ol this kind, the 
 canon law a])i)ears very careful lest such service, should 
 lead to the desertion of the parish church; and therefore 
 directs, that tlu; <'haphiii)s of such j)laces shall preach and 
 administer the connnunioii very seldom on Sundays and 
 holidays, so that botii the h)rds and masters of the said 
 hfuises, and their families, may resort to (heir parish 
 churches, and there receive the holy counuunion, at least 
 once every year.* 
 
 Free chapels. Free ( li;ii)els are of the same nature as private chapels, 
 
 ' 4 Barn. it. Cres. 573. ' 1 Burn'a H. L. 296 ; and see Lindw. 233. 
 
 • Canon 71 ; see 23 Kliz. c. 1.
 
 OF CHAPELS AND CHURCHES NOT PAROCHIAL. 397 
 
 except that, orio'inally, they were probably all of royal 
 foundation. Bishoj) Tanner, as quoted by Dr. Burn, says 
 of them, " free chapels were |)laces of religious worship, 
 exempt from all ordinary jurisdiction, save only, that the 
 incumbents were generally instituted by the bishop, and 
 inducted by the archdeacon of the place. Most of these 
 chapels were built n\)on the manors and ancient demesnes 
 of the crown, whilst in the king's hands, for the use of 
 himself and retinue, when he came to reside there. And 
 when the crown ])arted with those, estates, the chapels 
 went along with then), and retained their first freedom; 
 but some lords having had free cha|)els in manors that do 
 not aj)pear to have been ancient demesne of the crown, 
 such are thought to have been l)uilt and privileged by 
 grants irom the crown." 
 
 Another anomalous kind of chapel, unknown to the con- Proprietary 
 stitution and to the ecclesiastical establishment of the cliapels. 
 Church of England, but which, in more recent times, has 
 become very connnon, is that of proprietary chapels. In 
 a matter of such recent origin, and which has been so 
 truly termed an anomaly, there is little to be said with cer- 
 tainty ; and of the ministers officiating in such chapels, 
 we have already sj)oken in the first book."^ As regards the 
 chapels themselves, they have hitherto been, for the most 
 part, unconsecrated, but not universally ; and there a|)- 
 pears to be no certain rule u|)on the subject, each case 
 ])robably depending u])on the discretion of the bishoj), and 
 the wishes of the pro[)rietors. Such chapels have no sort 
 of parochial lights; and, like the private chapels already 
 mentioned, no burthen whatever can be entailed upon the 
 inhabitants of the place where they are situated, in respect 
 of them; the rej)airs are the care of the owners and pro- 
 prietors, and if the chajjel should become out of re])air, or 
 if the pews should be unlet, and the proprietors should 
 deem their speculation unprofitable, they might, if they 
 ])leased, close the building as a chapel for religious wor- 
 ship ; or, supposing it not to have been consecrated, might 
 convert it to any pinpose they deemed more profitable:-^ but 
 if any building has been once consecrated, it could not be 
 converted to secular purposes, nor could it l)eeome again 
 unconsecrated, except by special act of j)arliament.'' 
 
 It may be observed that, whenever any circumstances 
 connected with such chapels have come before the courts, 
 they appear to have been rather unfavourably reganled ; 
 and seem to have been considered as innovations, which it 
 
 " 'I'aiiner's Nolit. IMonast. Pref. 20. -^ Chap. V^III. sect. i). 
 
 y See Uilcodi v. Mousey, 2 Ilagg. 50. » Ante, sect. 2.
 
 398 OF CHURCHES. 
 
 was not desirable to encourage : as Dr. Lusliington ob- 
 serves, " they have arisen from the increase of population, 
 and from the necessity of the times ; but if under the 
 church building acts other churches and chapels were 
 to be consecrated, according to the law of the Church of 
 England, the necessity for these chapels would cease."'' 
 In such a case the bishop would probably refuse to renew 
 his license to officiate in these buildings ; and the church 
 would no longer be scandalized by the existence of recog- 
 nized companies making joint stock speculations upon the 
 religious feelings of their neighbours. 
 Chapels of ease. In speaking of the different divisions into which many 
 parishes have recently been divided, we have already ob- 
 served, that to several chapels ecclesiastical districts have 
 been assigned, such chapels in that case lose their character 
 of chapels of ease, with all the various restrictions to which, 
 as such, they would be subject ; and arc thenceforth, in 
 point of law, to be considered as parochial churches so far 
 as ecclesiastical matters are concerned. Several of the old 
 chapels of ease, however, still remain imchanged; and some 
 of the new churches, built under the church building acts, 
 Under church are also chapels of ease temporarily. For as to these last, 
 building acts, ^j^ cases where parishes have been divided, and new churches 
 built, which are intended to become the churches of the 
 new divisions, whether by the name of parishes or districts, 
 it is nevertheless provided, in many cases, that such divi- 
 sions shall not take complete effect until the death of the 
 existing incumbent; and that, during such incumbency, the 
 new churches shall be deemed chapels of ease. 
 
 (^ha])ols of ease may also become such, nndei' Ihe church 
 buiidinii' acts, in cases where from local circmnstances it 
 may be thought advisable to convert a chapel of ease, al- 
 ready existing in a parish, into the parish church, and to 
 convcit the parish church into a ('hap(>l of case : which the 
 church building conniiissioucrs, with the consent of the 
 bisho]), jiatroii, and the vestry of the j)arish, are entitled 
 to do ; so that the change may take place upon the next 
 avoidance ; or, if the incuuibcnit (consents, in additicMi to 
 the above named, then the change nuiy be made during 
 his incumlxMicy. Rut in chapels of ease which become 
 such in this manner, the chancels continue to be repaired 
 by the persons who were liable to repair tliciu before the 
 change. 
 
 The /irst of the chuich building acts gav(! authority to 
 the commissioners, in cases where they might think it ex- 
 pedient, to build or aid in the building of new chapels, to 
 » Ilodpson V. Dlllou, anle. i' 1 & 2 Vict. c. 107, s. 16.
 
 OF CHAPELS AND CHURCHES NOT TAROCniAL. 399 
 
 be served by the curates appointed by the incumbent of 
 the parish in which tliey were situate : and in other cases, 
 as we have ah-eady observed, to create district chapchics ; 
 but power has been given to the commissioners subse- 
 quently to convert these last into separate parishes, with 
 consent of the patron, ordinary, and incumbent, or, in case 
 of the refusal of the incumbent, upon the next avoidance of 
 the living.' 
 
 The repairs of a chapel of ease are to be made in the Repnirs of. 
 same manner as the repairs of the church, by rates on the 
 land, (ice. within the cliapelry, and are to be enforced by 
 ecclesiastical authority ; but if there be any land charged 
 by prescription to such repairs, the land must be first re- 
 sorted to, but it does not therefore follow that the land of 
 the chapelry would not still be liable, if the land specially 
 charged should be found insufficient.'' The cases in which Liability of 
 an ancient chapel of ease would be free from contribution chapelry to re- 
 to the repair of the mother church are hereafter spoken of. thurcli."^" 
 The new district chapels and churches are governed in this 
 respect generally by the same law, but they remain subject 
 to the repair of the original parish church for twenty years 
 only after they are consecrated ; after which the parish 
 church is repaired by that portion only of the former parish 
 which still remains attached to it. And the repair of the 
 new chapels, to which no district is attached, are to be 
 made by the parish, generally, in or for which they are 
 built.^ 
 
 A bishop cannot consecrate a chapel of ease, or autho- Rights of in- 
 rise a person to preach in it, without the consent of the cumbentover 
 incumbent : for the latter, as already observed, is the minis- 
 ter throughout his whole parish, and except in those cases 
 where, under the jn-ovisions of some of the church building- 
 acts, it is expressly ordered otherwise, the incumbent would 
 by the common law have the appointment of the minister 
 of every chapel within his parish, whether ancient or newly 
 erected. 
 
 The officers of a chapel of ease have, in most cases, the 
 same ecclesiastical duties within their cha])clry, as those of 
 the parish church within the parish. 
 
 <: 3 Geo. 4, c. 72, s, 16. '> Gibs. 209; Degge, pt. 1, c. 12. 
 
 e 58 Geo. 3, c. 45, ss. 70, 71.
 
 ( 400 ) 
 
 CHAPTER ITT. 
 
 OF SEATS AND PEWS IN CHURCHES. 
 
 ^^. A^^ /^^V^ 
 
 Section 1. 
 
 In old Parish Churches. 
 
 Before the Re- Before the time of the Reformation no seats were allowed 
 foiinaiion. in churches, nor any distinct ajDartment in the church as- 
 
 signed to distinct inhabitants, except for some very great 
 persons ; the seats that were, were movable, and the 
 property of the incumbent, and so in all respects at his 
 disposal : and many wills of incumbents are to be seen, 
 whereby they did of old bequeath the seats in their church 
 to their successors, or others, as they thought fit. Athon 
 and Lindwood are silent in the case. The common law 
 books mention but two or three cases before this time, and 
 those relating to the chancels, and to the seats of j)ersons 
 of great quality. But it does not follow that the distinct 
 apartments here spoken of were pews in the body of the 
 church ; but aisles or private chapels may very i)rol)ably be 
 intended. It is only natural to suppose that the person 
 by whom the church was lirst fomuled may have reserved 
 some particular part of it to the use ol' himself, and the 
 successive owners of his domains ; and although it is now 
 the received opinion that a seat in the nave of a church 
 may be prescribed for as belonging to a house, yet it was 
 formerly much doubted, and in fact denied ; and overruled 
 with regard to the right of the ordinary and the jurisdic- 
 I'resent stale of tiou of spiritual authority.' Hut the state of the law, as at 
 (lie law. present settled, with respect to pews in churches, is very 
 
 clear and satisfactory ; for, as is said by T^ord Coke, as the 
 church is a place dedicated and i-onsecrated to the service 
 of God, and is common to all the inhabitants, it therefore 
 belongs to the bisho]) to order it in sucli manner as the 
 service of God may best be celebrated, and that there be 
 Higl.t of (lispos- no contention in the church.'' Prlmd Jhcic, therefore, in 
 ii.^' of all seals ^|,(. absence of any jirescriptiou bv custom, or of any faculty 
 JheonlTnalyalul dearly established, which would b(^ exceptions to the gene- 
 churcliwardens. ral rule, and also with the exception as to tlie chief seat 
 
 » Gibs. 221. '' 1-2 llcp. lOS.
 
 IN OLD PARISH CHURCHES. 401 
 
 In tlie chancel (which custom appropriates to the rector, 
 wliether lay or ecclesiastical, and sometimes to the vicar), 
 the bishop, as ordinary of the diocese, or in practice tlu^ 
 churchwardens, as the parochial officers of the ordinary 
 for this and similar purposes, have the sole right of dis- 
 posing, ordering, and arranging all seats and pews in the 
 body of the church ; and, as it seems now to be the better 
 opinion, in the chancel also. And as the churchwardens 
 exercise this power as the officers of the ordinary, it seems 
 to follow that there could be no such thing as a custom in 
 a parish for the churchwardens to make distribution of 
 seats independently of the ordinary; although this appears 
 to have been doubted.'^ For the right, however long it 
 might have been exercised, could not have been adverse 
 to the ordinary; but, on the contrary, would be presumed 
 to have been exercised by him through his officers, or with 
 his permission and concurrence ; so that, as was said by 
 North, C. J., the churchwardens cannot in this matter 
 jostle out the authority of the ordinary.'' 
 
 It being established that the parishioners have the right 
 to the use of the church, and that the churchwardens, as 
 the officers of the ordinary, are to regulate and arrange 
 that use, it remains to be seen in what manner the parish- 
 ioners, or any particular parishioner, might compel the 
 churchwardens to make such arrangements in their ftivour, 
 and what remedy the parishioners, for whom the church- 
 wardens neglected to provide a seat, would have against 
 them; and this would seem to be the same whether a 
 parishioner had been removed from a seat by the church- 
 wardens, or whether no seat had been provided for him. 
 
 The case of Walter v. Gunner and Drurij was a pro- Proceeding by 
 ceeding against the churchwardens of Teddington, calling parUiiomis to 
 on them to show cause why they had not seated or caused f,.om"hrH.urch- 
 to be seated the plaintifi' and his family in the parish wardens, 
 church, according to his situation and condition, he being 
 a principal inhabitant and parishioner, and having duly 
 applied to them to be so seated. An appearance was 
 given for the churchwardens, under protest, admitting the 
 averment set forth in the citation, that he is a ])rincipal 
 inhabitant, and that he had applied to them, at the same 
 time alleging, that tliis was not sufficient in law to entitle 
 Mr. Walter to cite them in this form; and further, that the 
 church was so small, and the num1)er of inhabitants so 
 much increased, that many persons were obliged to submit 
 to considerable inconvenience: some in sitting with others, 
 some in having no seats ; that many scats were held by 
 
 '^ Gibs. Cod. 226. '' Mi'.V v. Gilbert, 2 IJulst. R. 151. 
 
 D D
 
 402 OF SEATS AND PEWS IN CHURCHES. 
 
 custom, attached to houses in such a manner, that though 
 the owners did not use them, they were occupied by their 
 tenants; that the churchwardens have not interfered with 
 such customary possession; that the house which Mr. Wal- 
 ter occupies was built by a Jew, who never a])plied for a 
 seat; that in 1796, Mr. Walter applied for a seat, and a 
 vestry was called, at which it was determined that persons 
 should have permission to erect pews in a gallery on pay- 
 ment of five pounds to the parish ; that this offer had not 
 been accepted ; that the plaintiff had refused to pay the 
 church rate unless he was seated ; that it was then pro- 
 posed that a vacant place should be enclosed ; and notice 
 was given to him that a vestry would be held for that pur- 
 pose, but he did not attend ; that the churchwardens are 
 desirous of accommodating all persons as well as they can 
 without disturbing the possession of others; that they had 
 no right to dispossess them ; but were ready to submit to 
 any order which the court might make upon them. 
 
 On the other side it was alleged, that, by law and 
 usage, all pews, except those held by faculty or other legal 
 title, ought to be distributed amongst actual parishioners ; 
 that many of the largest were assigned to persons not 
 living or having lands in the parish ; that others were an- 
 nexed to houses, and let out by the owners to persons not 
 living in the parish ; that it was in the power of the church- 
 wardens, by a legal exercise of their authority, to seat the 
 complainant ; that his house was one of the largest in the 
 parish; and though he had applied in 1796, and the fol- 
 lowing years, nothing effectual had been done. It was 
 replied, that the pew held by Seton is reputed to be annexed 
 to the house of Mr. Retford, and that part ol iiis family 
 used to sit there ; and the other, occupi(xl by Lady Murray, 
 was annexed to another house, called Comb House, which 
 was now a school ; nnd that the j)e\v being too small for 
 the boys, they were allowiid to occupy seats in the gallery 
 at a certain rent; that the churchwardens did not consider 
 themselves to be authorised, by virtue of their office, to 
 disturb the ])osscssion of these |)arties. 
 The most ron- SirW. Scott said, ** I think (lu; process has issued very 
 vcnicni mode of properly ill this case, and tlidl this is a couvcnunl mode of 
 proceeding. procecdi7)f/, hy citing the churchwardens, in a civil suit, to 
 show cause, ifc, as in this citation. I do not think that it 
 was lUTcssary to alleg(> that any parliciiliir pew \v;is vacant, 
 as it would be a snllicient return, on the part of the cliuich- 
 wardeiiH, to aver, that they were unable to comply with the 
 request, on account that there were no such vacancies. If 
 that return was made and duly established, I fear it might 
 Ije entitled to nuich consideration; as in the enlarged
 
 IN OLD TARISII cnimciiES. 403 
 
 population of parishes in the vicinity of this town, it may 
 really not be in the power of the churchwardens to make 
 immediate additions to the fabric, or to build chaj)cls at 
 once for the accommodation of the inhabitants. The 
 return, in this case, is not of that kind. It consisted of 
 two parts ; that notice was given of a vestry, and that an 
 offer was made that the party mi<2;ht erect a pew, on a 
 condition which is not strictly legal, that he should pay the 
 parish for it. It is clearly the law on this subject, that a 
 parishioner has a right to a seat in the church, without 
 such payment; but I think the return is bad on another 
 ground, for altliough it might be sufficient if there was no 
 pew vacant, yet if there are existing pews improperly occu- 
 pied, the mere offer of a permission to erect a pew is not a 
 good return. 
 
 " The other part of the return is bad also, since it pleads 
 a custom which is evidently illegal, and cannot be sup- 
 ported; that pews are appurtenant to certain houses, and 
 are let by the owners to persons who are not inhabitants 
 of the parish. All private rights in pews must be held Private liglitsia 
 under a faculty, or by prescri})tion, which presumes a P^|^'^ """*' ^® 
 faculty, and no faculty was ever granted to that effect ; for faculty or pre- 
 the ordinary must have exercised his discretion, to depo- scription. 
 pulate the church of its own proper inhabitants, if he could 
 have granted such a fticulty. The plea goes on to state 
 that the churchwardens have not ventured to disturb such 
 occupiers ; to which it is answered justly, that they have 
 not done their duty, for they ought to have prevented an 
 occupancy of that kind. 
 
 " There is something stated also of a custom, that others, 
 who have not pews appurtenant, pay a rent for seats, which 
 is applied in easement of the parish rate ; a practice which 
 has been constantly reprehended by the ecclesiastical 
 courts, and discouraged as often as it has been set up. 
 Then the return is, I think, sufficient, and the party has 
 shown that there are pews occupied by persons not living 
 in the parish, and that a particular individual has olitained 
 a large portion of the church, and let his own pew to a 
 non-resident person. There is one pew appurtenant to the 
 house of Mr. Retford, who does not live in the parish, and 
 who covenants with his tenant that he shall not occupy it, 
 in order that he may let it out to others. T/iis is clearly Sub-leiting 
 illegal If a pew is rightly appurtenant, the occupancy of p«.»s illtgal. 
 it must pass with the "house ; and the individuals cannot, 
 by contract between themselves, defeat the general right 
 of the parish. It appears that the house has been built 
 only eighty years, which is not sufficient to establish a 
 
 D D 2
 
 404 OF SEATS AND PEWS IN CHURCHES. 
 
 prescriptive right ; because it might be presumed that 
 evidence of the grant of a faculty was not extinct in that 
 time ; but even if there was a prescriptive right, it could 
 not be exercised by transferring it to persons not inhabitants 
 of the house or of the parish. Such possession cannot be 
 maintained. There is also another instance in which the 
 parish has given way to the partial convenience of one 
 person, who holds a house to which a pew may be appur- 
 tenant. When, however, he was indulged with a gallery, 
 the parish ought to have required him to exchange his own 
 pew for that accommodation. He ought to be required to 
 go back to his own proper pew, or give it up to the parish, 
 as it is now used in the same improper manner by inhabi- 
 tants of another parish. 
 
 " The court, therefore, is bound to overrule the protest, 
 but I shall not do more, or give any costs against the 
 churchwardens; for they have been acting under the 
 general sense of the parish, and it is difficult for such per- 
 sons to bear up against it. It is possible that the parties 
 whose rights are asserted may have something more to 
 allege in defence of them, and they must not be precluded. 
 But I shall overrule the protest, giving sucli parties an 
 opportiniity to intervene."' 
 
 We have given a somewhat long report of the above case, 
 because it appears to give an excellent practical view of 
 the law, and also of what is right and most desirable to be 
 practically done in sucli a case, and because, in the words 
 of Sir W. Scott, it appears to be a convenient mode of pro- 
 ceeding, in a case where a parishioner is unable to obtain 
 from the churchwardens a seat in his parish church, for it 
 appears that the return could not be good and sufficient, 
 unless it showed the state of the church to be such as 
 would render it impossible to give any sitting to the 
 ])laintiiT. 
 Or whoie ilicy 'i'lie same mode of proceeding might be adopted by a 
 l.av.: l.ocii If.- |)arty whom the churchwardens had removed from his seal, 
 diuiclnv'^nu'ns. ^'^'' scatcd tlicrc another party ; but in such a case, although 
 the court shoidd decide that the churchwardens had acted 
 |)r<>p(Mlv in displacing (he plain! ill', yet they will not go 
 lieyond tiiis, so as to coidirm the ])ossession of the person 
 whom tlie churchwardens have placed in the \n'\v, as that 
 mighl lie injurious, by taking the pew more out of the 
 contnji of th(! ehurchwaidc-ns." 
 Vestry have no Tile vestrv hav(! no authority on the subject, ol ordering 
 auiliuiiiy. ,,,. jiirangiug of pews, for they are not tlu^ representatives 
 
 of the ordinary, and have no delegati d authority from him; 
 « W'altir V. Gunner and Dmni, I Jliigy. Cons. 317. " 1 Hagg, 40.
 
 IN OLD 1'Aia.sii cnuRCiiEb. 406 
 
 nor arc the churchvvurdens bouiul to follow their directions, 
 although the opinion of" the vestry should of" coiusc; he 
 treated with respect, and is entitled to its due weight;'' anil 
 even as to the exceptions to the general rule before men- 
 tioned, a faculty is not a denial of the juiisdietion of the 
 ordinary ; but it is thereby su])posed that some ])receding 
 ordinary has granted away from himself and his successors 
 all control over a particular pew, and has thus estopped 
 himself and them from intermeddlino; with it durint>- the 
 continuance of such faculty.' 
 
 The general rule therefore being thus suliiciently esta- i:xcei)iions to 
 blished, it remains for us oidy to consider the exceptions ilic|,'encr;ilriylit 
 
 already alluded to. ^ of .he ordinary. 
 
 In order to exclude the jurisdiction of the ordinary from wiiai is ncccs- 
 the disposal of a pew, it must be shown that the posses- ^^^y i" P'.ove 
 sion is ancient, and going beyond memory. But ])roof of 1"''^'''° "8 '■ 
 ancient possession only will be insufficient; for it must 
 generally, and except in such a case as we shall presently 
 mention, be also shown that it has been repaired time out 
 of mind by the predecessors of the party claiming it;''' and 
 the merely repairing it for thirty or forty years will not Ue 
 sufficient." But if ancient possession, and repair time out 
 of mind, can be shown conjointly, then these will be suffi- 
 cient to show a faculty, or a prescription which will presume 
 a faculty; since it does not appear possible that such a 
 prescription could have any other legal commencement 
 than by grant of a faculty. 
 
 A case in the year 1783'' was supposed to have shaken 
 the law as to the necessity of jjroving ancient ])ossession 
 in all cases ; for in that case the plaintiff, having i)roved 
 that he had been put into possession of the pew thirty-six 
 years before by tlic rector and churchwardens, was held 
 entitled to it by the jury before wdiom the case was tried; 
 and the motion made for a new trial, on the ground that this 
 was no evidence, was refused by the Court of K. B. But 
 npon looking to the judgment of Lord Mansfiold upon the 
 motion for the new trial, it will be fou.nd to confirm altoge- 
 ther the law as to immemorial right. "The plaintiff"," he 
 says, " in support of his claim, proves that he was put into 
 possession of this pew thirty-six years ago. The rpiestion 
 is, whether this act of the rector and churchwardens was 
 to give possession under (in old immemorial right, or in 
 consequence of a new gift. There are strong reasons to 
 
 ^ See next chapter, On Ornaments of the Church ; 2 Add. 4'25. 
 y See Sir W.Scott's judgment ill W'alier v. (Unnu'i- and Diurii, 
 ' Stock V. lUnh, I T. R. 430. " 1 Hagg. 323. 
 
 b Rogen V. Brooki and Wife, cited I T. R. 431.
 
 406 OF SEATS AND PEWS IN CHURCHES. 
 
 induce us to suppose tluit it was not a gift : a gift cannot 
 be made without a faculty, and there is none in this case. 
 Moreover, in this case the pew was not claimed as against 
 the ordinary, but as against another party in the parish. 
 
 In many cases the proof as to repairing will be negative 
 only ; for it may be that the pew has never wanted repairs : 
 so that if immemorial right could be shown, it would be 
 sufficient to show that neither the parish nor any other 
 party had ever repaired the pew.*" 
 
 By a recent statute '^ the time for claiming any easement 
 by prescription is shortened ; and an actual enjoyment for 
 twenty years, without interruption, is made equivalent to 
 enjoyment from time immemorial. But such a claim may 
 still be defeated in any other way in which the same is now 
 liable to be defeated. And after an enjoyment for forty 
 years the right is declared to be absolute, unless it can be 
 shown that it was enjoyed by some consent expressly given 
 for that purpose by deed or writing. As no decision has 
 taken place on the subject, it cannot here be determined 
 whether this statute will apply to the case of pews ; * but 
 if it does, it will be seen that the claim by twenty years' 
 possession may still be defeated by showing repairs to have 
 been done by other parties. 
 
 It is also said that as there may be an exclusive right 
 to a particular pew, so there may be an exclusive right 
 to a seat in a particular pew, which will exclude the juris- 
 diction of the ordinary ; and even a ])riority of a seat 
 in a particular pew may be prescribed for ; ' if the latter 
 fact were so, it would indeed of necessity estabhsh the 
 "Whether prio- truth of the former. In the case of Curleton v. Hulton,^ 
 rityofscaican Carlctou claimed the upper place in a seat ; Ilulton dis- 
 1^^^^ '' turbc;d him. The Arclibishop of York sent an inhibition 
 
 to Carleton till the matter should be determined before 
 him ; but prescription was surmised, and thereupon pro- 
 hibitiun obtained, because as well priority of seat as the 
 seat itself might be claimed by prescrij)tioii. It nmst be 
 observed, however, that this case is not any direct autho- 
 rity on the j)()int, although the only one that can be found. 
 It is difficult to conceive in what legal manner such a pre- 
 scription coidd have its origin ; and it is certain that that 
 which is considered the best evidence in the case of private 
 pews, namely, that they have innnemorially been repaired 
 
 ' For the liw on tliis suhjecl generally, see Mainwaiing v. Giles, 5 13. & A., 
 anil cases tiicrc cited ; Morgan v. Cititis, 3 Man. &; \\y. D89. 
 •' 'i.'v 3 Will. 4,c. 71. 
 
 '■ See Martin's (.'onvcyaucini^, by Davidson, vul. iii., ]>. 274, n. 
 f 2 Add, -120; 3 M. tt R.SM. 
 « Noy, 70 ; Palm. 424 ; Gibs. Cod. 222.
 
 IN OLD PARISH CHURCHES. 407 
 
 by the owners, would be inapplicable to establish the rigiit 
 to any jiarticular sitting, or to the priority of sitting in any 
 particular pew. 
 
 The exclusive right to any particular pew is always an- Piivaie right 
 nexed to some particular house ; for no man can have an always annexed 
 individual property in a pew, transmissible to his assigns ° "'"^' 
 or to his heirs or executors. There is no such thing as a 
 right to a pew in the body of the church in gross or at 
 large ; but it is a right which can only be held as ajjpur- 
 tenant to some particular house ; and it can be enjoyed and 
 exercised by a person only so long as he resides in such par- 
 ticular house ; '' and it seems therefore that to whomsoever 
 the house might be granted or transferred, to him also would 
 be transferred the right to the pew ; and since it is thus 
 inseparably annexed to inhabitancy, it could not be pre- 
 scribed for in respect of an estate within the parish on 
 which there was no mansion.' 
 
 The right to sit in a particular pew, when once it has Right may be 
 been created by a faculty, or presumed faculty, may be 'I'^'^'e^J- 
 apportioned : thus, where a faculty was granted to a man 
 and his family, owner and occupier of the dwelling-house, 
 and the house was afterwards divided, the occupier of a 
 part of the site of the dwelling-house, though a small part, 
 has some right, and such as will enable him to maintain 
 an action against the churchwardens for disturbing him in 
 the enjoyment of it. And it was said by Littledale, J.:'' 
 " The plaintiff having a right to use the pew, the church- 
 wardens had no right to interfere as they did, and were 
 wrong-doers. It may certainly happen, in consequence 
 of a house having been subdivided, that three or four fami- 
 lies may become entitled to use a pew belonging to the 
 original messuage; and they may require more accommo- 
 dation, and a question may arise, how many persons are 
 entitled to use the pew in respect of each of their sub- 
 divisions ; that is, however, a matter to be settled among 
 the respective owners. The right to enjoy the ])ew was 
 annexed to the old dwelling-house altogether; the jdain- 
 tiff lives in a part of that house; he therefore has some 
 right to enjoy the pew, and may maintain an action in 
 respect of it. 
 
 In these remarks, as we have said, we have been speak- Seats in public 
 ing only of seats and pews in the nave or body of the aisles, 
 church ; but if the aisles are public aisles, as is frequently 
 and indeed commonly the case, they are then to be consi- 
 
 '■ 5 B. & A. 360. ' 1 Thill. 325. 
 
 k Harris v. Dreiu, 2 B. & Ad. 167.
 
 40 S OF SEATS AND TEWS IN CHURCHES. 
 
 dered, to all intents and purposes, as a ])ait of" the body of 
 the church, 
 TUniclieb for We have now seen in wliat manner there may exist 
 
 disiuib.incu of .^i rio'lit to a seat or pew in the body of the cliinch, j)ara- 
 ^V'i'mS' ^'' "it)unt to the jurisdiction of the ordinary or churchwardens ; 
 vatoiigi . _^^^^ .^ follows, from the establishment of this right, that 
 
 the person enjoying it may have his action at common law 
 as well against the" ordinary or churchwardens as against 
 any stranger who should disturb him in the enjoyment of 
 it : and this should be an action on the case, for an action 
 of trespass will not lie for entering into a pew, because the 
 plaintiti' cannot have exclusive possession, that being in 
 the parson.' And the usual and the legal mode of stating 
 that the right of sitting in a particular pew has been an- 
 nexed to a house by a faculty in the declaration, is, '' That 
 the plaintiff was possessed of a certain messuage, and that 
 by reason thereof he ought to have for himself and family, 
 inhabiting the said messuage, the use and benefit of a cer- 
 tain pew."' '" And this form, it is said, would be equally 
 juopcr whether the action were against the ordinary or 
 churchwarden, or against a stranger. 
 
 This however can scarcely be considered as satisfactorily 
 settled ; and it appears that, in an action against the ordi- 
 nary or chm'chwardens foi' disturbance, it would be the 
 safer plan to allege reparation. In an old case of Kenrich 
 V. Taylor,'' on a special action upon the case against the 
 defendant for disturbing the plaintiff in his pew, which l\c 
 claims by prescription, as ni)purtonant to his messuage in 
 the ])arisl), tlu; declaration sets forth that the ])laintilf, and 
 all those whose estate he hath in the said messuage, have, 
 time out of mind, repaired the ])ew : a verdict was given 
 for the plaintiff, subject to the opinion of the court u])on a 
 case which stated th;it at the trial there was no evidence 
 given that the jjlaintiff, or any of the owners of the mes- 
 suage, had ever r(!j)air(Ml or been obliged to repair the pew, 
 or that the pew had ever wanted rc])airing. The (pu-sliou 
 was, whether the |)laintilf can nuiintain this action without 
 j)roving rej)airs done to the pew. It was argued for the ])lain- 
 tilf that this being an action by one in possession against 
 a mere stranger and wrong-doer, there was no iiecessity 
 to prove any repairs; ami tliat then' was a great dilR-rence 
 between an action against a stranger, and a contest with 
 the ordinary in prohil)ition ; for at conmion law the ordi- 
 nary has the disj)osal of ;dl the seats in the church; and 
 although they be l)uilt and repaired at the expense of the 
 
 I .0 1$. vV A. .'J6() ; 1 T. 15. 430 ; >-cc Upoonev v. Ihetvilev, 3 King. 13(j. 
 '" Uo^crb's K. L. 175 i 1 1. U. 430. " I Wils. 32U.
 
 IN OLD PARISH CHURCHES. 409 
 
 v.'liulc parish, yet that will not oust him of" his jurisdiction, 
 and thi'icfore a special title must be provoil a;j,ainst them 
 by building or repairing' the seat; l)ut possession alone; is 
 suliicient against a mere stranger. And of tliis opinion 
 was the court, who said that this being a possessory action 
 against a stranger and a mere wrong-doer, the plaint ill' 
 was not obligeil to prove any repairs done by hinisell or 
 others whose estate he hath ; for it is a rule in law that 
 one in possession need not to show any title or considera- 
 tion for such possession. But it is otherwise where one 
 claims a j)ew or an aisle against the ordinary, who un- 
 doubtedly hath prima facie the disposal of all the seats in 
 the cliurch, and against him a title or consideration must 
 be shown in the declaration and proved : and although 
 the soundness of tlie distinction in this case may have bc^en 
 questioned by later cases, yet those cases arc also doubtful; 
 and in a late case for perturbation of seat in the Ecclesias- 
 tical Court, Sir J. Nicholl appeared to think that in the 
 Ecclesiastical Court it was absolutely necessary to allege 
 reparations from time to time in setting up a prescriptive 
 title." 
 
 But a party whose right or presumed right to a parti- 
 cular pew or sitting has been invaded, is not obliged to 
 proceed in the courts of common law, for he also has his 
 remedy in the Ecclesiastical Courts, and this, as it appears, 
 in several forms,'' and even where a prescription is claimed ; 
 although, properly speaking, the Ecclesiastical Court could 
 have no jurisdiction in such a case, yet the defendant, if 
 he pleases, may admit the prescription to be tried there, 
 as a defendant does a modus or a pension by prescrip- 
 tion.'' 
 
 Perturbation of seat, as it is called, is a proceeding of Pcriurbaiion of 
 this kind in the ecclesiastical courts, and is a remedy given scat, 
 to a party whenever he has been disturbed in the posses- 
 sion or enjoyment of his pew, whether the disturbance 
 proceed from a chmchwarden or a mere stranger."" 
 
 Section 2. 
 
 Seats and Pews in Churclies built under the Church 
 Huildiny Acts. 
 
 In the last section the law has been treated of with 
 regard to the arrangement and distribution, the right oi 
 
 « 3 Add. 6. 1' Vuierh v. Windns, 3 15. Cv C. 1. 
 
 '1 Cms V. iSuUer, 3 T. 11. G39, ' r Kogers's Jo. L,
 
 410 
 
 OF SEATS AND PEWS IN CHURCHES 
 
 property in, and the selling and letting of pews in all the 
 New churches old parish churches built prior to the year 1818. But, 
 or chapels. ^y[^\^ regard to the churches built subsequently to that 
 time, in pursuance of the different acts of parliament from 
 time to time passed for that purpose, new principles have 
 been introduced, and the law upon all these points is for 
 the most ])art governed by the statutes under which these 
 churches may have been erected. 
 Seat for Prior to the consecration of any church or chapel built 
 
 minister. subsequent to tlie above date, under provisions of the act* 
 
 passed in that year, a seat or pew sufficient to hold six 
 persons at least shall be set apart in the body or ground 
 floor of the church or chapel, near the pulpit, for the use 
 of the minister and his family ; and other seats, not among 
 the free seats, for not less than four persons, for the minis- 
 ter's servants. 
 Free seats. Pews, sittings or benches in every such church or chapel, 
 
 marked with the words "free seats," amounting to not less 
 than one-fifth of the whole sittings in every such church 
 or chapel which shall be built wholly or in part out of any 
 rates, or with money raised on the credit of any rates, 
 shall be appropriated for the use of poor persons resorting 
 thereto for ever ; upon which pews or sittings no rent shall 
 be charged.' Though not less than one-fifth of the whole 
 sittinos are to be free seats, there is no restriction as to 
 any larger j^roportion which, under the circumstances oi 
 each particular case, it may be thought expedient to ap- 
 propriate for free sittings. 
 Tews to be let. The hitter part of tliis section is in affirmance of the old 
 princij)le, by which all seats in the church are free ; and 
 the first part seems a sort of substitution for the rights of 
 the minister in tlie chancel of the old churches. Proper 
 pews are also to be assigned and provided for the use of 
 the church and cha])cl wardens." But tlie other pews or 
 sittings are to be let at a rate to be fwcd upon by the com- 
 missioners who, under the provisions of the same statute, 
 are to be appointed to examine into the state of the parishes 
 in Euifland ;m(l ^Valcs, and to ascertain the most efieetual 
 means of church accommodation. 
 Choice of. The letting is to be to the subscribers (being jiarishioners) 
 
 to any such chtnrli or cliapcl, who, at the rates thus fixed, 
 an; to have choice of the pews ; the priority of choice being 
 given to sul;scrihers in order, according to tlie amount of 
 their subscription, and wliere the subscriptions are equal 
 in unioinit, Uku according to the order of their subscrip- 
 tion. 
 
 • Chap. 45. » Sett. 75. " See 59 Geo. 3, c. 134.
 
 BUILT UNDER THE CHURCH BUILDING ACTS. 411 
 
 And if the amount of any subscription should be deemed Panics cmiilcd 
 sufficiently laroe, vvlietlicr given for the purpose of pur- ^" '^''*^*-' I'*^^'*- 
 chasing a site for or building a church or chapel,'^ the com- 
 missioners are empowered to receive it in lieu of the pew 
 rent which such subscriber would otherwise pay ; who may 
 thereupon be discharged, either wholly or in part, and 
 either for a limited time or for life, according to the amount 
 subscribed, from payment of his pew rent ; and in such 
 case, if the subscriber should afterwards remove from the 
 parish, he would be allowed, at tlie discretion of the com- 
 missioners, to assign the remainder of the term in the pew 
 so granted to him to any other parishioner inhabiting the 
 parish. y 
 
 And the commissioners are also empowered to transfer Rights lo pews 
 any such rights to pews, with the consent of the owners may be as- 
 of them, which have been thus acquired, to the church or ^'^°^ ' 
 chapel of the division in which such persons shall reside 
 (go to reside?), so that free seats may be made instead 
 thereof in the churches or chapels from which such rights 
 shall have been transferred ; and the persons whose rights 
 shall have been thus transferred shall have the same rights 
 (but in no case any more extensive rights in the pews so 
 assigned to them) as they had in their former pews, and this 
 without the necessity of any faculty or other process. In 
 these cases every such assignment is to be registered in the 
 registry of the diocese, and a duplicate to be deposited in 
 the church or chapel in which such pews shall have been 
 so assigned.^ And if any lessee of any pew or seat for a 
 longer term than one year shall cease to be an inhabitant 
 of any such parish or district (not having availed himself of 
 any of the provisions before mentioned), or if he shall not 
 have attended at such church or chapel for one year, his 
 lease shall determine at the end of the tiien current year. ' 
 
 It will be observed how much care has been taken in old principle of 
 these statutes, even where a right to a pew has been ac- inhabiiancy 
 quired, to retain the ancient princij)le, and to confine the P'^'^^'^'"^^ 
 use of their church exclusively to the inhabitants of the 
 parish; and in the original granting of such rights it is 
 expressly provided, that the church or chapel wardens of 
 any such church or chapel shall not let or sell any seats 
 or pews except to parishioners during their continuing 
 inhabitants of the ])arish,'' 
 
 Every sale of any pew or seat shall be subject to the Sale of pews 
 reserved rent fixed by virtue of these acts, except in the "o'J« ^^J^,^^, 
 case of such a discharge as we have already mentioned ; 
 
 ^ 1 & 2 Will. 4, c. 38, s. 21. y 58 Geo. 3, c 45, s. 33. 
 
 » 3 Geo. 4, c. 72, s. 23. * Ibid. s. 24, b 59 Geo. 3, c. 134, s. 31.
 
 412 OF SEATS AND PEWS IN CHURCHES 
 
 and the sale shall be by private contract, and nut by public 
 auction.*^ 
 Proceeds of sale The amount of rents and payments for the seats or pews, 
 or leuing. vvhen received, is to form a fund, according to the order 
 
 of the commissioners, out of which provision is to be made 
 for the minister and clerk.'^ 
 Amount of rent. In every such church or chapel the pews or seats (except 
 those set down as free seats and the seats appropriated to 
 the minister and his servants) are to be charged with the 
 yearly rents set opposite the figures or numbers marked 
 upon them in a list or schedule to be made and signed by 
 the commissioners, and annexed to the deed of consecra- 
 tion ,• which are to be j)aid by the occupiers of the pews 
 or seats to the persons apjwinted by the churchwardens, 
 by two payments, on the Monday after the 25th December, 
 and on the 24th June, in the vestry room, between nine in 
 the morning and four in the afternoon. But the church- 
 wardens, witli the consent in writing of the incumbent, 
 patron and bishop, may alter any such pew rents ; and a 
 new list or schedule of rents, and of the pews on which 
 they are charged, shall in such case be signed by the 
 churchwardens, incumbent, patron and bishop, and de- 
 posited with the deed of consecration. '^ 
 Recovery of If the rent of any seat or pew shall be unpaid for three 
 
 '<^"'^- months, and notice in writing demanding payment thereof 
 
 shall have been given to the owner or occupier, the church- 
 wardens may either enter upon and hold such seat or pew, 
 or let the same to any other person till the rent in arrear 
 and all costs shall be paid; or otherwise sell the same 
 seats or pews by auction to the best bidtier, and out of the 
 money tlience arising pay the rent in arrear, with the costs, 
 rendering the overplus to the owner; or the churchwardens 
 may recover the rent in arrear by action for use and occu- 
 pation against tlic owners or occupiers.' 
 j'iiyiiicnts to be Subsccpicutly, howcver, it was directed tliat all pew rents 
 iM;i<le in ad- should be jjayablc in advance ; that is, one year's rent shall 
 be paid on the admission to the pew or seat if given at 
 Lady-day or Michaelmas, and a half-year's rent above such 
 ])r()portion ; and thereafter half-yearly payments shall be 
 made in advance, connnencing on Lady-day or Michael- 
 mas following the taking; and every such pew or seat shall 
 be forfeited and become vacant by discontinuing any such 
 j)ayment in advance for two following half yt'-'i'S.*^ 
 
 Generally, tluuefore, the previous provision for recovery 
 of pew rents would be rendered inoperative, but that i)ro- 
 
 c Sect. 32. '' 58 Geo. 3, e. 45, s. 63. ^ Seels. 77, 70. 
 
 f 58 Oeo. 3, c. 45, s. 7y. » 69 Oco. 3, c. 134, s. 32,
 
 BUILT UNDER THE CHURCH BUILDING ACTS. 413 
 
 vision is not expressly repealed ; and if the pre-payment 
 had been for any time ouiitted, and the forfeiture conse- 
 qnent thereon had not been enforced, it seems that the pro- 
 vision of the first statute might usefidly and conveniently 
 be had recourse to for the purpose of recovering the arrears 
 of rent. 
 
 In every case in which pew rents are fixed according to Notice of 
 the provisions before mentioned, notice is to be gi\ en for ^'^''^"' F^'^- 
 six successive weeks at the end of each year of all the 
 pews vacant at the commencement of the next year, by 
 writing affixed on the doors of the church or chapel and 
 vestry room ; and all pews not taken at the rents fixed, when pews 
 within fourteen days after the commencement of the ensu- ""^y ^^ let to 
 ing year, shall be let to any inhabitant of an adjoining fQ|',a^"i\n"s 
 parish or place, in the churches or chapels of which there 
 shall not be sufficient accommodation for the inhabitants 
 thereof, at the rent fixed upon such pews, for any term not 
 exceeding the end of the year, when such pews shall be 
 again let in manner aforesaid, and so from year to year.'' 
 
 This power of letting pews in particular cases to the 
 inhabitants of adjoining parishes is also given as to 
 churches and chapels built under the 1 &2 Will. IV. c. 38, 
 by which it is enacted, that the pews and sittings in such 
 churches and chapels shall be let by the churchwardens 
 or chapehvardens, or by some person appointed by the 
 trustees, or person or persons buikling and endowing the 
 same, to act in that behalf, according to a scale of pew- 
 rents fixed by the trustees, or such person or persons as 
 aforesaid, and approved of by the bishop ; whicli scale it 
 shall be lawful for the trustees, kc. with consent of the 
 bishop, to alter from time to time as occasion may require, 
 provided that all such pews as shall not be taken at the 
 rent respectively fixed thereon, within fourteen days after 
 the commencement of the ensuing year, shall be let to 
 non-parishioners in the same manner, and for such time 
 only, as last mentioned. 
 
 The amount of pew rents thus received is to form a Application of 
 fund, out of which is to be paid the stipend to tiie minister "^""ey f'"'" 
 and clerk, but the parish is not to be answerable to them ' 
 for any greater amount of stipend than may be actually 
 received from pew rents; and any surplus, after paying 
 such stipend, is to be invested in government securities in 
 the names of trustees, and accumulated, fiist, for tiie pur- 
 pose of building or purchasing a house of residence for the 
 minister ; and second, for augmenting his stipend, reducing 
 the pew rents, or for increasing the accommodation in the 
 
 I' 3 Geo. 4, c. 72, s. 24.
 
 414 OF SEATS AND PEWS IN CHURCHES 
 
 church, as the bishop may direct : or if the commissioners 
 think it expedient, the surphis may be apphed towards 
 payment of any money borrowed at interest by annuity or 
 otherwise for building any church or chapel, or purchasing 
 for it any site, and defraying all expenses relative thereto, 
 and in repairing such church or chapel, or in aid of the 
 church rate, if the commissioners shall so think fit ; and 
 the church or chapehvardens, with consent of the com- 
 missioners, may borrow at interest, by annuity or other- 
 wise, any money for building such church or chapel, or 
 purchasing such site, or defraying the expenses relative 
 thereto, upon the credit of such pew rents ; and by writing 
 under their liands may charge such pew rents, svibject to 
 such stipend and expenses as aforesaid, with payment of 
 any such money with interest, or with annuities, as such 
 church or chapel wardens shall think fit. 
 Fuiilier assign- And after such an assignment of a certain stipend out 
 ment may be of the pew rents lias been made, the commissioners may 
 bent! ° '"'^""'" at any time, with the consent of the bishop of the diocese, 
 make a further assignment to the minister out of the pew 
 rents, or out of the accumulating fund already received 
 for pew rents, which further assignment is to be registered 
 in the registry of the diocese. I3ut this is not to be done 
 in any case where such surplus pew rents have been in- 
 vested in government securities in the names of trustees, 
 for the ]mr[)ose of forming a fund for the building or pur- 
 chasing a house of residence for the minister ; or where 
 such surplus pew rents have been charged by the commis- 
 sioners with the payment of any sums of money borrowed 
 for the building any church or chnpel, or for the pur- 
 chasing any site for same, and defraying all expenses 
 relative thereto, and in keeping such church or chapel in 
 repair.' 
 Tew rents In cascs wlu're, under the clnnch building acts, a dis- 
 
 wherc parish trict church or chapel has been made the ))arish church, 
 ciiurcii IS jij^^i ^jj^ parish church has been made the district churcli 
 
 changed. ' , i . -i i- • • -.i 
 
 or cliapel, the church luiikhng commissioners, with con- 
 sent of the l)isho|) of the diocese, may make provision, 
 under their conunon seal, for the, maintenance of the mi- 
 nister and clerk of the respoctive churches out of the pew 
 rents of either of such clnuches; but the rights of persons 
 liolding facidty seats or free; seats in the old parish church 
 arc to be respected. 
 
 In chin'ches l)uilt and endowiiii under ihc piovisions of 
 the Church Endowment Act, by the authority of the ccclc- 
 
 ' 3& 4 Vict. c. GO, s. 5.
 
 BUILT UNDER THE CHURCH BUILDING ACTS. 415 
 
 O 
 
 siastical commissionors, thoro appears to be no provision 
 of any kind as to pew rents. Sucli churches will there- 
 fore, it is presumed, be exactly on tlie same footing- as the 
 ancient parish churches in this respect, and any letting- of 
 pews therein will be unlawful. 
 
 CHAPTER IV. 
 
 OF THE GOODS, UTENSILS, AND ORNAMENTS OF 
 
 CHURCHES. 
 
 Having considered generally the right to tlie use of the 
 church by the parishioners, and the law relating to the 
 fixtures which have been placed there for their better ac- 
 commodation, we come now to speak of the goods and 
 ornaments which are necessary for the decent celebration 
 of divine service, and for the better instruction of the peo- 
 ple resorting thereto. 
 
 It seems that, from time immemorial, all such goods To be provided 
 were to be provided at the charge of the parish ; •' and pre- ^} '''e^charge of 
 vious to the Reformation these were nmch more numerous 
 than at present ; a list of which we subjoin, as, although 
 now obsolete, it exhibits a curious illustration of the form 
 of worship and the ceremonial of those days. 
 
 A legend. 
 
 An antiphon. 
 
 A grail. 
 
 A psalter. 
 
 A troper. 
 
 An ordinal. 
 
 A missal. 
 
 A manual. 
 
 The principal vestment, with a chasuble. 
 
 A dalmatic. 
 
 A tunic. 
 
 A choral cope and all its appendages. 
 
 A frontal for the great altar. 
 
 Three towels. 
 
 Three surplices. 
 
 One rochet. 
 
 » See directions ia canons 20, 58, 70, 80, 82, 99, &c.
 
 416 OF GOODS, UTENSILS, AND ORNAMENTS OE CHURCHES. 
 
 A cross foi' processions. 
 
 A cross for the dead. 
 
 A censer. 
 
 A lanthorn. 
 
 A liandbell to be carried before the body of Christ 
 in the visitation of the sick. 
 
 A pix for the body of Christ. 
 
 A decent veil for Lent. 
 
 Banners for the rogations. 
 
 A vessel for the blessed water. 
 
 An osculatory. 
 
 A candlestick for the taper at Easter. 
 
 A font with a lock and key. 
 
 The images in the church. 
 
 The chief image in the chancel, that is, the saint to 
 whom the church is dedicated, and the images in the 
 glass window's.'' 
 
 There are many of these terms which would require a 
 longer explanation than would be consistent with the 
 object of this work in speaking of things obsolete. It will 
 be obvious, however, that the things here enumerated were 
 not applicable to the reformed religion ; an alteration con- 
 sequently took place, and the goods and ornaments of the 
 church were settled by authority of parliament in the year 
 1548, the second year of the reign of Edward VI. This 
 settlement having been disturbed in the reign of Mary, 
 was confirmed inniiediatcly u{)on the accession of Eliza- 
 Ornaments of beth ; and by the second act j)assed in her reign,' it is 
 iiiecliuicli &.C. enacted that such ornaments of the church and of the 
 sei'tlcil. minister thereof shall be retained and used as were in the 
 
 Clnu'ch of I^nghuul, by authority of ])arliament, in the 
 second year of the reign of King lulward VI., until other 
 order shall be therein taken by tlie authority of the queen's 
 majesty, with the advice of her connnissioners appointed 
 and authorised under the threat seal of I'jUi'land for causes 
 ecclesiastical, or of the metropolitan of this realm. Pur- 
 suant to this last clause the (jueen, in the third y(>ar of her 
 reign, granted a connnission to the archbishop and three 
 others to reform the disorders of the chancels, and to add 
 lo the ornamenfs of them by ordering the C^onnnandmenls 
 to be phiced at the east end. These tlisoi'ders werci siieh 
 as liad l)ceii introduced during th(^. reign of Mary, all 
 which wt-vv. probably rcrfbrmed by the connnissioners; and 
 by the iiduic Ixdbre the book of Connnon Prav(>r, sucli 
 ornaments of the church and of the ministers thereof, at 
 all limes of tlujir ministration, shall be retained and be in 
 
 '• r.urn';. Ixcl. I.nw, " ( IimkIi." «• 1 Kliz. c. 2.
 
 OF GOODS, UTENSILS, AND ORNAMKNTS OV fllURCIIES. 417 
 
 Vise as were in this Churcli of I'vUgland, by authority of 
 parliament, in the second year of the reign of King Edward 
 tlie Sixth. 
 
 Such goods and ornaments are the followino- all which Necessary 
 it appears are deemed necessary for the service of the f,°„' J,,^" ^^' 
 church, and which the parishioners, at their own charge, 
 are therefore bound to i)rovide.'' 
 
 A convenient and decent table for the celebration of the Communion 
 Holy Communion, to be kept and repaired from time to ^' 
 time in a decent and seemly manner, and covered in time 
 of divine service with a carpet of silk or other decent stulf, 
 thought meet by the ordinary of the place, and with a fair 
 linen cloth at the time of the ministration, as becometh that 
 table, and so stand, saving when the said Holy Commu- 
 nion is to be administered. At such time the same shall 
 be placed in so good sort within the church or chancel, as 
 thereby the minister may be more conveniently heard of 
 the communicants in his prayer and administration, and 
 the communicants also more conveniently, and in more 
 number, may communicate with the said minister.'' 
 
 A comely and decent pulpit, to be set uj) in a convenient Pulpit, 
 place within the church, by the discretion of the ordinary, 
 and to be there seemly kept for the preaching of God's 
 word.*^ 
 
 A convenient seat for the minister to read service in.e Reading desk. 
 
 A decent and comely surplice with sleeves, to be worn Surplice, 
 by every minister saying the public prayers, or adminis- 
 terino- the sacrament or other rites of the Church ; and if 
 any question arise touching the decency, nuitter or come- 
 liness thereof, the same shall be decided by the discretion 
 of the ordinary.'' 
 
 A font of stone in every church and cha})el where bap- Font, 
 tism is to be ministered, the same to be set in the usual 
 places, in which only font the minister shall baptize pub- 
 Hcly.' 
 
 A strong chest, with a hole in the up))cr i)art thereof, Alms' chest, 
 having three keys, of which one shall remain in the cus- 
 tody of the parson, vicar or curate, and the other two in 
 the custody of the churchwardens for the time being; 
 which chest they shall set and fasten ir. the most conve- 
 nient place, to the intent that the parishioners may put 
 into it their alms for their poorer neighbours, which alms 
 and devotions of the people the keepers of the keys shall, 
 yearly, quarterly or oftener as need recpiireth, take out »•( 
 the chest and distribute the same in the presence of most 
 
 J See directions of llie canons. •= Canon 8'2. ' Canon 83. 
 
 s Canon 82. '' Canon 82. ' Canon 81. 
 
 E E
 
 418 
 
 OF GOODS, UTENSILS, AND ORNAMENTS OF CHURCHES. 
 
 Alms' basin 
 
 Chalice. 
 
 Bell. 
 
 Bier. 
 Bible. 
 
 Common 
 Prayer. 
 
 Register. 
 
 Taljle of de- 
 grees of ni;ir- 
 liago. 
 
 The Ten ('oni- 
 mandnicnts. 
 
 of the parish, or six of the chief of thein, to be truly and 
 faithfully delivered to their most poor and needy neigh- 
 bours.'' 
 
 A decent basin, in which the deacons, churchwardens 
 or other fit persons, are to receive the alms for the poor, 
 and other devotions of the people, whilst the sentences of 
 the offertory are in reading.' 
 
 The chalice, or cup for the wine, to be used at the Holy 
 Communion, or more than one cup if necessary; which 
 wine is to be brought to the communion table in a clean 
 and sweet standing pot or stoop of ])ewter, if not of purer 
 metal.'" 
 
 A bell to ring to church, and to toll at funerals, with 
 the ropes;" but no more than one boll appears to bo ne- 
 cessary. 
 
 A bicv for the dead." 
 
 A Bible of the largest volume ;'' and though it may bo 
 matter of speculation as to what was originally intended 
 l)y this, the discussion would now bo useless. 
 
 The Book of Common Prayer, and the book of homilies 
 allowed by authority. 
 
 A parchment l)ook, wherein shall be writt(>n the day 
 and year of every christening, wedding and burial within 
 the parish ; and for the safe keeping thereof, the chinch- 
 wardens shall provide one sure coffer with three locks and 
 keys, whereof one to remain with the minister, and the 
 other two with the clnu-chwardcns severally.'' 
 
 Proper books, of vellum or good and dura1)le ])apor, in 
 which all marriages and banns of marriage respectively 
 there pul)lished or solemnized, shall be registered, to be 
 carcfnliv kept and prosorvod for public us(\'" 
 
 i\\n\ this obligation on the j)arish to j)rovi(lo a suital)lc 
 register book, does not apjioar to 1)0 at all aflected by the 
 act of C) k 7 Will. IV^. c. HO', which provides for the esta- 
 blislnnent of" TIk; (u.-neral Register Ollice" in lx)ndon or 
 AVestniiustor.'' 
 
 A table oi" degrees of mai'riago prohibited, which is lo 
 l)c jjublicly set up in every church.' 
 
 Tin; Ton (/onnuandnionts, which are to be sot up ujion 
 tlu! oast end of rvcvy cliuich or cha|)ol, whoro the people 
 may best see or read fli( lu." I'mt as it is very possible 
 lli:it ill iiiMiiy churches ihov ooiiM nol easily bo rond or 
 seen by (lie people, if sol u|) ;il the east eml, if is pro- 
 
 ^ Canon IM. ' lluhric. "' Canon '20; l,inil.'252. 
 
 " !,inil. '2r)(» ; :i ir:i"i,'. Ifi. " l.inil. '2.02. i' Canon ftO. 
 
 •I Canon 70. ■" 2fi (ieo. 2, r. :j;3. • See post. 
 
 ' Canon 99. " Canon 8'2.
 
 OF GOODS, UTENSILS, AND ORNAMENTS OF CHURCHES. 419 
 
 sumed that they may be, as tliey frequently are, set ii[) 
 elsewhere in the body of the church, where they may be 
 more easily read. 
 
 Chosen sentences are also directed to be written upon f:iios<>n sen- 
 the walls in convenient places, and these most frequently tences. 
 are theXord's Prayer, the Apostles' Creed, &€." 
 
 The above appear to be all the thin<j;s which are held 
 ahsolutely necessary for the administration of divine service 
 in the church, and are all that the parish is absolutely 
 enjoined to provide ; and this originally, as will be ob- 
 served from the authorities in the notes, was for the most 
 part by the injunction of the canon law. But now by 
 the statute law also ; for the statutes mentioned above, 
 and also the 1 3th of Charles II. c. 4, which declare that 
 all such things shall be proper for the use of the church, 
 as were so considered in the second year of Edward VI., 
 are rendered permanent by the act of the 5th year of 
 Q. Anne, c. 5, which act was in the following year incor- 
 porated into the Act of Union,^ and which declares that 
 all acts for the establishment and preservation of the 
 Church of England, and the doctrine, worshij), disci])line 
 and government thereof, shall remain and be in full force 
 for ever. 
 
 With regard to these goods of the church, many of Pnrl.h not pro- 
 which arc clearly necessary to the performing of divine ^^^^jfj^^"^^*^'* 
 service, and without w'hich the fabric of the church might 
 be in fact useless, the question might probably arise which 
 Vf'iW hereafter be discussed more fully when w^e come to 
 speak of church rates : for the scruples of conscientious 
 dissent which lead men to disregard the law, where the 
 law can be evaded with comparative impunity, never seem 
 to have been contemplated in the ordering of matters of 
 this sort. If the parish should refuse to provide the sur- 
 plice, the Bible or Book of Common Prayer, the minister 
 would be prevented from performing, and certainly, it is 
 presumed, could not be compelled to perform the service; 
 and thus, it appears, that the majority of the rate ]iayers 
 might, as it were, place their parish under an interdict. 
 
 Besides these necessary articles which have been above Goods. 5ic. 
 enumerated, and which the parishioners are bound to pro- "J';'"''J^'^ ""' 
 vide at their expense, there are many other articles for "'^'^■<^"''^> ■ 
 which no provision is made by any special law : such arc 
 galleries erected in the church, bells, other than that ne- 
 cessary to ring to church and to toll at funerals, as before 
 mentioned, organs, clocks, chimes ; the king's arms, which 
 '' Canon H2. y 5 & G Anne, c. 5. 
 
 ee2
 
 420 OF GOODS, UTENSILS, AND ORNAMENTS OF CHURCHES. 
 
 are very commonly set up in churches, pulpit cloths, house 
 cloths, rushes or mats, furniture for the vestry, or such 
 like, and the salaries for the rinoers or the organist. 
 When paiisli As to some of these things, if they have been originally 
 
 would be gg^. ^p ^yit]^ ^\^Q consent of the parishioners, and under di- 
 
 repau of goods, rections of the ordinary — or if an organist or ringers have 
 &c. uot neces- been appointed in like manner — or if they are found to 
 ^^'y* have existed from time out of mind, then it appears that 
 
 the ])arish would be rightly chargeable with their repairs 
 or their continuance. But if any new ornament were to 
 be set up or added to the church, without the consent of 
 the parish, it appears that they could not be chargeable for 
 its repair or preservation. But very much appears to de- 
 pend on the discretion of the ordinary, who will take into 
 consideration the particular circumstances of the parish.^ 
 Organs. In cathedrals, for example, organs may be deemed ne- 
 
 cessary ; and the ordinary may compel their erection by 
 the dean and chapter. In parish churches it is otherwise ; 
 and in small or poor parishes it might be proper to dis- 
 courage them." 
 Unnecessary But if sucli an ornament had been presented to a parish 
 
 scnt'ed lo'^' ''"^^' church, or purchased by a subscription, and the consent 
 chuicli. of the ordinary given for its erection, it seems that the con- 
 
 sent or refusal of the parishioners to its erection would be 
 immaterial, because neither the expense of erecting it or 
 repairing it would in such a case fall upon them.'' And 
 with this agrees the judgment of Lord Stowell, in a case 
 somewhat similar, who said, " The law respecting churcli 
 ornaments is now generally understood and settled. The 
 consent of the j)aris/iione>s is not indispcnsobli/ nccesanry, 
 unless to charge the parish with any expense for supj)ort 
 of the ornament, after it has been put up ; but if there is 
 no charge incurred, the approbation of the majority of the 
 jjarishioners is not necessary, nor the disai)[)robati()n bind- 
 ing on th(! oidinary." And in that case Lord Stowell de- 
 creed a faculty lor accepting and erecting an organ olfered 
 to the cliurch, without a clause against future expenses 
 being charged to the parish, which was lich and po|)ulous.'' 
 And here Lord Stowell cai'ries out a ruh;, which he laid 
 down in another case, where he says, the court is not l^ound 
 by the wish of the majority, though it will pay great at- 
 tcnfioM Id il in ui'aiiling a lacully. 'J'hc court, may refuse 
 
 '■ Sto llie judgiiiciil of Sir \V. Sroll, case of Jliirloii on Trcul. 
 » Sef judgment of Sir W . SrnU, 1 Hagg. Cons. 2D8 ; Rogers's K. L. 434. 
 '' liutleruiirlh (iiid Barker ■v. Walker iiiiil \\'iiterliiiui.e,[\ Kur. HiCD. 
 ' L'hnrrhuardens of til. Johu, Ruinfgati;, v, I'tirhhioven untl Vicar oj same, 
 1 Hagg. Cons. 298.
 
 OP GOODS, UTENSILS, AND ORNAMENTS OF CHURCHES. 421 
 
 the whole parish joined together; or may grant, if it ap- 
 pears necessary, a prayer on the apjihcation of" one against 
 all the rest.'' 
 
 With regard to the salary of" an organist in a ciinich, Salary of 
 where an organ already existed, it was held by Sir Williuni orgnnisi. 
 Scott that it might be rightly paid by the churchwardens, 
 and charged by them in their accounts, with consent and 
 approbation of the vestry. And such, being the case, it 
 seems that the last-mentioned decision as to the acceptance 
 of the organ, without the clause against future expenses, 
 would in eflcct be the compelling certain parishioners, 
 against their wish, to a subsecpient annual e\j)enditure. 
 But the parishioners generally, that is, the majority in 
 vestry, must be consenting, because the ordinary could only 
 bind the parish to expenses for articles absolutely neces- 
 sary ; consequently, although he might refuse, in granting 
 a faculty to accept and erect an organ, to insert a clause 
 against future expenses being charged to the parisii, he 
 could not by the faculty positively direct the organist and 
 the repairs of the organ to be paid out of the j)arish rates ; 
 for that would be legally objectionable on the ground last- 
 mentioned,* and equally so, though the vestry wished it. 
 Rails about the altar seem to stand on the same ground, 
 as being ornaments not absolutely necessary. 
 
 In a case, where the communion table of ancient time Majority of pa- 
 had been placed in the chancel, and there were ancient "sluoners may 
 
 ., , '• 1 • 1 . c ■ ^\ ■ 1 • . decide in some 
 
 rails about it which were out ot repan-, the parislnoners at cases as to the 
 a meeting had resolved to repair the chancel and rails, and necessity, 
 to replace the table there, and raise the floor some steps 
 higher, for the sake of greater decency. Upon a refusal 
 to pay the rate, and a prohibition prayed, the court inclined 
 that the parishioners might do these things, for they are 
 compellable to })ut things in decent order; and as to the 
 degrees of order and decency, there is no rule but as the 
 parishioners, by a majority, do agree;' but these matters 
 will be considered more particularly, when we come to 
 speak of church rates. 
 
 The general rule deducible from these cases is simple General rule, 
 and easy of ap})lication. As to all things necessary, and 
 which have been already enumerated, the parish must pro- 
 vide, continue and reptiir them. As to things not abso- 
 lutely necessary, and such as arc last mentioned, the parish 
 need%ieither provide them in the fust instance, nor continue 
 and repair if they have been already provided, except by 
 wish and consent of the majority. But if the majority have 
 
 d Groves and Wright v, Rector of Horn''eii, 1 llagg. Cons. 189. 
 
 e 3 Hagg. 7. f ^^eicson v, Baicldry, cited 1 liurn's E. L. 368,
 
 422 
 
 OF GOODS, UTENSILS, AND ORNAMENTS OF CHURCHES. 
 
 Monuiueuts in 
 the church. 
 
 Cannot be 
 erected without 
 consent of the 
 ordiuarv. 
 
 CoDsent of in- 
 cumbent when 
 and whether 
 always neces- 
 sary. 
 
 voted a rate for that purpose, and the purpose appear rea- 
 sonable under the circumstances, it will be upheld and en- 
 forced against dissentients. The parishioners, therefore, 
 have no reason to object to a faculty for erecting any thing 
 of the latter kind, on the ground of future expense, because 
 the majority will always have the remedy in their own 
 hands on that point. 
 
 Among the most frequent ornaments of our English 
 churches at the present day are the monuments erected in 
 them to the memory of the dead. And as to these it is said 
 by Lord Coke, concerning the building or erecting of 
 tombs, sepulchres or monuments for the deceased, in church, 
 chancel, chapel or churchyard, in convenient manner, it is 
 law ful ; for it is the last work of charity that can be done 
 for the deceased, who whilst he lived was a lively temple 
 of the Holy Ghost, with a reverend regard and Christian 
 hope of a joyful resurrection. - 
 
 This dictum, however, so far as it relates to our present 
 purpose, the erection of monuments in church or chancel, 
 must be taken to mean that it is lawful for certain persons, 
 and under certain conditions only ; for the ordinary is the 
 sole and jiroper judge of what may be erected in the in- 
 terior of the church ; and in the setting up of monuments 
 it is essential that his consent should be obtained.'' And 
 it was said by Lord Stowell,' " there can be no question as 
 to tliis, that no monument can be erected without the leave 
 of the ordinary. It is to his care that the fabric of the 
 church has been committed; and it is not to be defaced at 
 the caprice of individuals." It is also stated in the books 
 that the consent of the parson is necessary to the erection 
 of monuments in the church. This, however, must be con- 
 sidered as very doubtful ; nor is it to be collected from any 
 decision that if the ordinary were to grant permission to 
 erect a monument in the church, the dissent of the incum- 
 l)ent would be material. In a case in the Court of King's 
 Bench in 1803' the rector of a parish applied to that court 
 for a prohibition to restrain the ordinary from granting a 
 faculty to a party for erecting a monument in the church : 
 the case was not decided on its merits, the application 
 being held to be |)reniatiu-e ; but it was there said l)y Lord 
 EUenborough that the laculty souglit to be obtained was 
 no more than a license from the ordinary himself to do the 
 act proposed, and woidd not bind the rector against his 
 Consent, if by laic his cuuscut were mnteriid ; and no n con- 
 stat, that after his consent were obtained, the defendant 
 
 K 3 Inst. 102. 
 
 ' 1 Hagg. Cons. 207. 
 
 '' 2 Cro. Eiiz. 366. 
 
 k Buhctr V, Hase, 3 East, 217.
 
 OF GOODS, UTENSILS, AND ORNAMENTS OF CnURClIES. 423 
 
 would imike use of it, without obtaining the consent of tlic 
 rector also. 
 
 In a subsequent case in 1818,' where the churchwardens 
 of a parish in London had claimed a right to set up monu- 
 ments, without consent of ordinary or parson. Lord Ellen- 
 borough, in giving judgment, said, " Assuming that the 
 custom for churchwardens to set up monuments in the 
 church, without the consent of the parson, might be good ; 
 it is at any rate too large a proposition to contend for that 
 without the consent of the rector, or that of their common 
 ecclesiastical superior, they may put up any thing, however 
 unseemly." But the strongest dictum in favour of the 
 right of the incumbent is that of Lord Stowell, in a case 
 already mentioned.'" " The court," he says, " would act 
 improperly, if it was to say that parties might erect a monu- 
 ment without leave of the rector." But in this case, it 
 appears from the report, that the monument w^as intended 
 to be erected in the chancel ; and it does not appear that 
 the consent of the ordinary had been obtained. 
 
 Upon the whole, it appears, that if the ordinary should 
 grnnt a license for the erecting any monument in the church, 
 the incumbent would have no power to prevent this from 
 being done. It is true that the freehold of the jjarson 
 would be thus invaded ; but for this the customary fees 
 would be compensation ; and this invasion of his freehold 
 might in like manner be said to take place, if the ordinary 
 should order any new erection to be made in the church, 
 and a majority of the parishioners should agree to a rate 
 for the expenses, in which case it seems clear that the 
 rector could not hinder the erection. But it rather appears 
 that usually the consent of the incumbent has been held to 
 be essential, as representing the ordinary for this purpose; 
 for practically, it is certain, that the consent of the ordinary 
 to the erection of monuments is seldom obtained, and the 
 consent of the rector is obtained instead; " for the ordi- 
 nary usuallv reposes confidence in the minister to do what 
 is proper,"" ami the cases must be rare in which a faculty 
 would Ije granted in opposition to the wishes of the incum- 
 bent. But nothing can legalise the erection of a monu- 
 ment without a faculty obtained for that purpose ; so that 
 the assent of the parson, though generally deemed suUi- 
 cient, would be of no avail if the matter were contested." 
 
 This power of the ordinary to give consent to the erection Appeal to ibc 
 of monuments is to be exercised according to a prudent archbishop. 
 
 ' 1 B. & A. 508. ■" Maidman v. Malpas, 1 Hagg. Cons. 207. 
 
 ° Lord Stowell, 1 Hagg. Cons. 207. 
 
 o 1 Hagg. Cods. U, 208; 3 Add. 15 j 1 Lee, 640.
 
 424 OF GOODS, UTENSILS, AND ORNAMENTS OF CHURCHES. 
 
 and legal discretion, which his metropolitan has a right to 
 superintend and correct, who upon apjjeal may, if he see 
 good reason, order them to be removed.'' 
 
 It follows froiu what has been here said, that if" monu- 
 ments were to be erected without the conscntolthe ordinary, 
 he has in such case sufficient authority to order them to be 
 removed,"! without any danger of an action at law. It is 
 nowhere said, however, that the rector would be justified 
 in so doing, which may be urged as a further reason against 
 the necessity of his assent to their erection. 
 A safe course to The better course therefore to be adopted by the incuni- 
 be taken by the bent, if he objects to the setting up of any monument in 
 'ecti'ncr ^"' ° ^^^^ church, appears to be, to insist on nothing being done 
 until the consent of the ordinary is obtained; and then to 
 make such representation to the ordinary as to induce 
 him to withhold such consent; or if a monument has been 
 already erected, to which he objects, then to make appli- 
 cation to the ordinary to cause it to be removed. Pro- 
 vided the objection were reasonable, there could be no 
 doubt but that the object would be thus obtained ; and no 
 unpleasant consequences could result to the incumbent. 
 Repairing VVheu a monument has been once erected, it may be 
 
 monuments. repaired and kept in [)roper order without any fresh con- 
 sent of the ordinary or incumbent; it may be proper to 
 apply to churchwardens for leave to do so, but this ap- 
 pears a mere formal act, for the churchwardens would 
 have no power to refuse such consent.' And indeed it 
 appears to ])e their duty to encourage the keeping of them 
 in good repair; in which they are supposed to have such 
 Defacing. an interest, as to enable them to bring an action for de- 
 
 facing any monument:* an act which is in itself an eccle- 
 siastical offence : and it is also an offence at common law, 
 and those who build or erect the monument might equally 
 with th(; elmrch wardens maintain an action against one 
 who defaces them chiring their lives; and after their de- 
 cease, the heir of him to whose memory the monument is 
 set up could maintain such an action.' And this, as it 
 seems, should b(> an action of trespass." 
 
 I' Sir. 575, 1080 ; Uiilwer v. lime, ^nle. 'i Gibs. 453. 
 
 f liunlin V. CnllroU, 1 llagg. 14. '3 I'liill. m. 
 
 ' Co. I.itt. 18 b ; 3 Inst. 110; 2 Roll. Rep. 140. 
 " Spouiier V, ]hetvilcr, 3 Ring. 136.
 
 ( 425 ) 
 
 CHAPTER V. 
 
 OF CHUIICIIYAKDS. 
 
 " As to the origin of burying places, many writers have ob- Origin of bury- 
 served that, at tlie iirst erection of churches, no part of ""g places, 
 the adjacent ground was allotted for interment of the 
 dead, but some place for this purpose was appointed at a 
 farther distance, especially in cities and populous towns, 
 where, agreeably to the old Roman law of the Twelve 
 Tables, the place of inhumation was without the walls : 
 first, indefinitely by the way-side, then in some peculiar 
 enclosure assigned to that use. Hence the Augustine 
 monastery was built without the walls of Canterbury (as 
 Ethelbert and Augustine in both their charters intimate), 
 that it might be a dormitory to them and their successors, 
 the kings and archbishops, for ever. This practice of re- 
 moter burials continued to the aire of Gregory the Great, 
 when the monks and priests beginning to offer prayers for 
 souls departed, procured leave, for their greater ease and 
 profit, that a liberty of sepulture might be in churches, or 
 in places adjoining to them. This mercenary reason seems 
 to be acknowledged by Pope Gregory himself, whilst he 
 allows that when the parties deceasing are not burdened / 
 with heavy sins, it may then be a benefit to them to be 
 buried in churches ; because their friends and relations, 
 as often as they come to the sacred j)laces, seeing their 
 graves, may remember them, and pray to God for them. 
 After this, Cuthbert, Archbishop of Canterbury, brought 
 over from Rome this practice into England about the year 
 750 ; from wliich time they date the origin of churchyards 
 in this island. The practice of burying within the churches 
 did indeed (though more rarely) obtain before the use of 
 churchyards, but was by authority restrained, when church- 
 yards were frequent, and ap])roj)riated to that use. For 
 among those canons which seem to have been made be- 
 fore Edward the Confessor, the ninth bears this title '* De 
 non sepeliendo hi ecclesiis," and begins with a confession 
 that such a custom had prevailed, but nuist now be re- 
 formed, and no such liberty allowed for the future, unless 
 the person be a priest, or some holy man, who by the 
 juerits of his past life might deserve such a peculiar favour.
 
 426 OF CHURCHYARDS. 
 
 However, at first, it was the nave or body of the churcli 
 that was permitted to be a repository of the dead, and 
 chiefly under arches by the sides of the walls. Lanfranc, 
 Archbishop of Canterbury, seems to have been the first 
 who brought up the practice of vaults in cliancels, and 
 under the very altars, when he had rebuilt the church of 
 Canterbury about the year 1075."* 
 
 The passage here quoted seems to embody all that can 
 be known, with certainty, as to the origin of chvnchyards. 
 But although, as above-mentioned, they may have been 
 introduced as early as a. d. 750, it is nearly certain that 
 they did not become common until a much later period. 
 For so late as the end of the fourteenth century, they were 
 not recognized by the law, and at that time appear to have 
 been considered as recent. 
 
 For by a statute about that time, stating that some 
 religious persons, parsons, vicars, and other spiritual per- 
 sons, have entered in divers lands and tenements, wiiich 
 be adjoining their churches, and of the same, 1)y suffer- 
 ance and assent of the tenants, have made churchyards ; 
 'j and, by rules of the Bishop of Rome, have lialloweil and 
 dedicated the same, and in them continually do nuike 
 parochial burying; the practice is declared to be in con- 
 Churchyardb travention of the Statute of Mortmain.'' It does not a|)- 
 legalised. pear, howcvcr, tliat this statute ])roduced any particuhir 
 
 ellcct in ])utting a stop to the [)ractice ; and, notwith- 
 standing the declared illegality of their origin, church- 
 yards have now b(!en repeatedly recognized by the connnon 
 law, by the canon law, and by statute. 
 Consecration of. Churchyaids, already in existence, are presumed to have 
 i)cen properly consecrated. But when any ni'w ehurcli- 
 yard is made.', or any addition made to one already i-xist- 
 ing, a ceremony of consecrati(Mi takes place ; the bishoj), 
 clergy and ])arishioners re|)airing to the grt)und which is 
 to be consecrated, ;ind a j)rayer suited to t.h(>. occasion 
 being used ; and when new chuiches are consecrated, the 
 churchyards annexed to them are usually consecrated im- 
 me(liiit(;ly after flie consecration of the church. 
 F'fivilfgcs of, flx" ••euietery has the same ])rivileges as the cImucIi, 
 
 foiiiicily. und, llicrefore, bcifore sanctuary was abolished by statute 
 
 21 .Jac. I. c. 28, the churchyards, i'(piaily with the churches, 
 had the privilege of sanctuary ; a short ac(!oinit of which 
 we subjoin, as it serves to show the high degree of sanctity 
 attached to things ecclesiastical in former <lays; for, abju- 
 ration was, when any person had counuitt(;(l leloJiy, and 
 
 •^ KcnncU's Par. Ant. 592, 59;}. 
 
 '' 15 Rich. 2, c. 5 j and sec 7 i:dw. 1, st. 2.
 
 OF CHURCHYARDS. 427 
 
 for safeguard of his life had Hed to tlie sanctuary of a 
 chinch or churchyard, and there, hefore tlio corouer of 
 that pkice within forty days had confessed the felony, and 
 took an oath for his perpetual banishment out of the 
 realm into a foreign country, choosing rather to lose his 
 country than his life; but the foreign countiy into which 
 he was to be exiled mi<iht not be amonii inlidels. Who- 
 ever was not capable of this sanctuary, could not have the 
 benefit of abjuration ; and therefore he that committed 
 sacrilege, because he could not have the privilege of sanc- 
 tuary, could not abjure. The privilege lasted for forty 
 days, during which time any person might supply him 
 with meat and drink for his sustentation, but not after, on 
 pain of being guilty of felony. And the law was so fa- 
 vourable for the preservation of sanctuary, that if the felon 
 had been in prison for the felony, and before attainder or 
 conviction had escaped and taken sanctuary in the church 
 or churchyard, and the gaolers or others had pursued him, 
 and brought him again back to prison, upon his arraign- 
 ment, he might have ])leaded the same, and should have 
 been restored again to the sanctuary.*^ 
 
 The freehold of the churchyard is, to a cpialified extent, FrediolJ of, is 
 in the minister; and this, it is said, whether he be rector in il'cininistcr. 
 or vicar,'' the correctness of which dictum however is very 
 doubtful, as will presently appear. The soil and })roHts 
 belong to him, and he might make a lease thereof; which 
 profits appear to be the feed and trees growing in the 
 churchyard, or, in fact, any crop which it may bear ; but 
 even as to these the right of the minister is considerably 
 qualified, and, with respect to the trees in a churchyard, i lees m. 
 the right of the minister over them was long since limiteil 
 by the statute, or declaratory treatise, sujjposed to have 
 been made in the reign of Edward 1., but the certain date 
 of which is unknown. " Because we do understand that 
 controversies do ofttimes grow between parsons of churches 
 and their i)arishioners, touching trees growing in the 
 churchyard, both of them [jretending that they do belong 
 unto themselves, we have thought it good rather to decide 
 this controversy by writing than by statute, forasmuch as 
 a churchyard that is dedicated is the soil of a church, and 
 whatsoever is planted belongeth to the soil, it must nceils 
 follow, that those trees whicli be growing in the church- 
 yard are to be reckoned amongst the goods of the church; 
 the which laymen have no authority to disi)ose ; but, as the 
 Holy Scripture doth testify, the charge of them is committed 
 
 c 3 Ins. 115, 117 ; Home's Mirror of Justice, Book 1. 
 J Comyn's Dig. Cemetery (A. 2.)
 
 428 
 
 01!^ CHURCHYARDS. 
 
 Foi wlial pur- 
 pose tliey may 
 be felled. 
 
 only to the priests to be disposed. And yet, seeing those 
 trees be often planted to defend tlie force of the wind from 
 hurting the church, we do prohibit the piirsons of the 
 church that they do not presume to fell them down unad- 
 visedly, but when the chancel of the churcli doth want 
 necessary reparation. Neither shall they be converted to 
 any other use, except the body of the churcli doth want 
 hke repair; in which case the parsons, of their charity, 
 shall do well to relieve the parishioners, with bestowing 
 upon them the same trees, which we will not command to 
 be done, but will commend when it is done."^ 
 
 This statute or declaration was sufliciently clear as to 
 the purposes for which such trees might be cut down; but 
 these })urposes seem considerably extended by a decision 
 of Lord Chancellor Hardwicke ; for in a case before his 
 lordship in 1741, the })atron of a living prayed an injunc- 
 tion against the rector to stay waste in cutting down timber 
 in the churchyard ; and the Lord Chancellor there says, 
 that "a rector may cut down timber for the repairs of the 
 parsonage house, or the chancel, but not for any common 
 purpose. If it be the custom of the country, he may cut 
 down underwood for any pur[)ose ; but if he grubs it up, 
 it is waste. He may cut down timber likewise for repair- 
 ing any old pews that belong to the rectory, and he is also 
 entitled to botes for repairing barns and outhouses belong- 
 ing to the parsonage." And the injunction was granted 
 to stav the rector from cutting down timber excei)t in the 
 particular instances before mentioned.' And it seems to 
 follow from the above case, that such trees also might be 
 cut down for the pur|)osc not only of repairing, but of 
 buildinii' a ])ars()nage house. 
 
 In a very recent case, an injunction was applied for in 
 chancery to restrain parties who, under an ancient grant 
 from the crown in the time of lien. \' III., were governors 
 of tiie goods, <fcc. of a parish church, liom cutting down 
 and grubbing uj) trees in a churchyind. The defendants, 
 by their answer, set uj) the ancient grant to tluMu as their 
 right; anrl tliul for \\\n hundred years (lieii picdecessors 
 had always exercised the right of removing such trees as 
 showed svmptoms of decay, and of |)lanling young ones in 
 their place ; and that the trees in (pu'stion were cut down 
 in order to prevent them from injuring the church. The 
 Vice-Chancellor Slr.idwell refused to grant tin- injunction, 
 gaving, that the statute AV rector prosfcnn'/, A'c. did not 
 apply to such a cnsc ; that the defendants appeared to 
 have exercised the right for two hundred years; and that 
 t; io Edw. 1, St. 2. f Strachey v. Francis, 2 Atk. 217,
 
 OF CIIURCIIYARDS. 429 
 
 there was nothing to sliow an improper exercise of the 
 discretion of a rioht wliicli, jirima jhcie, they clearly pos- 
 sessed." 
 
 The decision of Lord Hardwickc has an important in- 
 fluence on the case of doubt alluded to above, where there 
 is a rector and a vicar in tlie same church, as to which of 
 them the trees in the churchyard are to belong. Lind- ^Vl.eie recior 
 wood says,'' this may be doubted, but adds, I suppose that 5",r^rTntVeP 
 in such a case they belong to the rector, unless in the sons, 
 endowment of the vicarage they shall be otherwise as- 
 signed. In a very old case the controversy arose ; and the 
 vicar sued the ])arson imj)ropriate for cutting them down. 
 It does not appear that the main point was ever there 
 decided, but Lord Chief Justice Ilollc has intimated a very 
 reasonable opinion, and one agreeable to what is said in 
 the statute before mentioned, viz, that they belong to him 
 who is bound to repair, and that the parson shall not cut 
 them down but when the chancel wants reparation.' But 
 if the reasoning upon which Chief Justice Rolle proceeds 
 be apj)lied to the law as laid down by Lord Ilardvvicke, it 
 is evident that the law is still unsettled ; for, as the lay 
 rector might be bound to repair the chancel, and the vicar 
 to repair the parsonage house, to either of which purposes 
 the trees nray, according to Lord llardwicke, be apjjlied, 
 each might urge in favour of his claim the ojnnion of Chief 
 Justice Rolle ; nor can it be safely said to whom in such a 
 case they would belong. 
 
 As the parishioners have a right to the use of the church Riglii of paii^h- 
 to hear divine service, so have they to that of the church- ["lu^di'vaHK "^ 
 yard for the burial of their dead ; and, consequently, the 
 general care of repairing it, when necessary, belongs to the , 
 churchwardens, in like manner as that of the fabric of the 
 church, at the charge of the parish ; and they are the sole 
 judges of what is needful to be done therein, as being in- \ 
 vested with the authority of the ordinary for that purj)ose; 
 for the power of the ordinary extends undoubtedly over the 
 churchyard as well as over the church, so as to exercise a 
 general control over the right of the parishioners as well as 
 of the minister.'' And therefore, although the feed growing 
 in the churchyard belongs of light to the minister, yet it is 
 presumed that he can only take or use it in such manner 
 as may be no nuisance to the parishioners ; and that if he 
 were to turn horses or cattle there to graze, by which the 
 graves might be trampled or defaced, ov the tombstones or 
 trees be injured, the ordinary might most properly inter- Resuicisil.e 
 
 s Attonteij-Geueml v. Warren, Nov. 8. 1844, coram V. C. of Knglaitd. ter. 
 
 h Lynd\v.'267. * 2 lloll. Abr. 337. "^ Piid. 41 ; I Venlr. 3(37.
 
 430 
 
 OF CHURCHYARDS. 
 
 fere to order their removal : as in the case of unseemly 
 monuments erected within the churcli ; or the minister 
 mio-ht be Hbelled in the Ecclesiastical Court at the suit of 
 the churchwardens for nuisance in the churchyard. And 
 so if the minister should remove or cause to be removed 
 any monuments or tombstones in the churchyard, the 
 churchwardens should proceed against him in like manner 
 for a nuisance;' or the wife or executors of the deceased 
 who set them up, or the heir of the deceased in such case, 
 might have their action against the minister, or indeed 
 against the churchwardens themselves, and much more 
 against a stranger.'" 
 
 Fences and rails. If the churchyard be not decently enclosed, the church, 
 which is God's house, cannot decently be kept. The 
 churchwardens therefore are to take care that the church- 
 yards be well and conveniently repaired, fenced and main- 
 tained, with walls, rails, &:c. as have been in each place 
 accustomed, at their charge, unto whom the same apper- 
 taineth. This, in the absence of any custom to the con- 
 trary, is at the charge of the parish ; " but if the owners of 
 lands adjoining the churchyard have used time out of mind 
 
 Repairs of. to repair so much of the fence thereof as adjoineth to their 
 ground, such custom is a good custom, and the church- 
 wardens are the proper parties to have an action against 
 them for neglecting to do so ; " but this being a custom to 
 charge a temporal inheritance, the remedy against them 
 must be by action at common law ; and if the churchwar- 
 dens were to sue them in the Ecclesiastical Court, a pro- 
 hibition would lie ; or they might, it seems, indict the party 
 who ought to re])air, and neglects so to do, for a misde- 
 meanor. Thus the vicar of the jiarish of was indicted 
 
 lor non-repair of the fences of the churchyard ; which, it 
 was alleged, he had been immemorially bound to repair ; 
 by means of which swine and other cattle broke in, and 
 rooted up the gravestones, and dirtied the ])orch, (fcc, to 
 the nuisance of the inhabitants of the parish ; and though 
 tlie verdict was founil for the defendant, it never seems to 
 have l)een suggested but that the indictment was right in 
 form, and the mode of proceeding proper.'' And so in any 
 case where any encroachment is alleged to have been on 
 the chtircliyurd, Ihe clnachwardens should bring an action 
 against the sup))osed wrongdoer in the common law courts; 
 for the proper boundary of the churchyard would come in 
 fpipslinn, which is mailer of freehold, and could not be 
 triable in the licclesiastical Court ; Cor though the church- 
 
 "2 Ins. 489. 
 
 lioumlaiy of, 
 triable in roni- 
 nion law (.ouiLi. 
 
 ' 3 Pliill. 90. 
 
 o 2Uoll. Abr. 287. 
 
 Com. Dig. Cemetery C. 
 jR. V. Reynelt, 6 East, 315.
 
 OF CHURCHYARDS. 431 
 
 yard, being consecrated ground, is under the jurisdiction 
 of the Ecclesiastical Court, and it is the duty of that court 
 to protect it against any unauthorised or improper inva- 
 sion, yet if any doubt should be suggested, whether the 
 ground in question be consecrated, and whether it is the 
 property of the church, or of another party, the Ecclesias- 
 tical Court would have no further jurisdiction ; and for the 
 same reason, where a parson had libelled a defendant in 
 the Spiritual Court for having cut elms in the ciunchyard, 
 a prohibition was granted upon a suggestion by the de- 
 fendant that the elms grew on his freehold.'" 
 
 It must be remembered, however, that what is here said Kncroaclimcnts 
 applies only to the case where the boundary of the church- °'\'''^ <liurcli- 
 yard is actually the question at issue ; for the churchwar- 
 dens are bound to take notice in the Ecclesiastical Court 
 of encroachments on the chiu'chyard. Thus, where a pro- 
 hibition was prayed on behalf of a churchwarden, to the 
 Ecclesiastical Court, for that they tendered him an oath 
 upon these articles following, first, whethei' any person 
 within this parish hath encroached upon the churchyard, 
 it was said that it concerned matter of freehold ; but this 
 was overruled by the Court of King's Bench ; and it was 
 held that the churchwardens nuiy take notice in the Eccle- 
 siastical Court of encroachments upon the churchyard. And 
 so in the following case.*^ 
 
 In a prohibition, the case was, that Newton, one of the 
 churchwardens, libelled against Quilter, for stopping the 
 church door and window by sheds, &c., built, as he sup- 
 posed, upon part of the churchyard. It was moved for a 
 prohibition upon a suggestion that the sheds were not built 
 upon part of the churchyard, but were built upon a lay fee, 
 and that cognizance of lay fees appertains to the temporal 
 courts. Sedper curiam, a prohibition shall not be granted 
 to any suit in the Sj)iritual Court for any nuisance or other 
 matter done in the churchyard, upon a suggestion tliat the 
 churchyard is a lay fee, for a nuisance there is projierly 
 of ecclesiastical coonizance. This latter case mitiht at first 
 sight appear to contradict what is said above as to the case 
 where the Ecclesiastical Court could no longer have juris- 
 diction ; but it will be seen that, although it was there 
 suggested, that the sheds were built on a lay fee, it docs 
 not appear to have been alleged that that fee was tin; de- 
 fendant's, so that the court was not deciding a question of 
 right, or even claim ; and in the absence of any jmrty 
 claiming as against the church, the court had primfi facie 
 jurisdiction. 
 
 1 Ld. Raym, 212. ■■ Quilter v. Newlou, Carth. 150.
 
 432 OF CHURCHYARDS. 
 
 Monuments and That which \ve before saicP as to the right of the rector 
 tombstones. to oppose the erection of monuments in the church, after 
 a faculty obtained from the ordinary, and as to the respec- 
 tive rights of the rector and the ordinary in such cases, 
 would, it is conceived, be ecpially ai)plicable to the case of 
 monuments or tombstones in the churchyard. Unfortu- 
 nately, in a recent case' in which the question came to be 
 directly decided, whether a paity might erect a tombstone 
 without the consent of the incumbent, the point was held 
 to have been not sufficiently put in issue by the terms of 
 the citation ; and the court gave no intimation of its opi- 
 Wlifctlier con- nion. It rather appears however that, as was said before 
 sentofincum- in the case of the erection of monuments in the church, 
 bent IS neces- ^j^g incumbent in-acticallv may be considered as represent- 
 
 sary before their . . t /• .1 • ^^ .^ ^■ 
 
 erection. '"o t"^ ordmary tor this purpose, the ordniary reposmg 
 
 confidence in him to do what is pro|)er ;" but that it is in 
 this manner only that the consent of the incumbent can be 
 considered as absolutely necessary ; and that, in strictness 
 of law, it is the ordinary whose consent is essential, and 
 that he miuht irive or withhold his consent without refer- 
 ence to the consent of the incumbent. Or it may perhaps 
 be said, further, (though practically it would be the same 
 thing,) that the incumbent has the power of consent or 
 dissent as against every one except the ordinary, but it 
 must be remembered that the exact jjoint has not been 
 directly decided. 
 
 In a recent case, before Sir H. Jenner, that learned 
 judge appears to have regarded the incumbent rather as 
 the ]iro])er party to proceed against a person putting up 
 an objectionable mDiniment, than as having in himself a 
 right to order its removal : for sjjeaking of the promoter 
 of the suit he says, " The clergyman of the parish is the 
 proper j)erson to ]>i()cecd in such a case, for to the incum- 
 bent belongs the general superintendence of the church 
 and churchyard ; and it is his iluty to take care that no 
 monument sliould \>r placed there which coidd be the 
 means of disseminating iloetrines inconsistent with the 
 established religion."" There can be no (piestion, tiierefore, 
 but that the clergyman has a direct interest in this matter, 
 and a direct duty to perform : l\\r. only dotdit can be as to 
 the extent of his power in the perf(.)rniane{! of it. 
 
 In the same case, it was decided, that an inscription on 
 a tombstone w Inch exhorts to j)rayers for the dead, as, for 
 instance, " Pray for the soul of J.W.," is not an inscription 
 contrary to the doctrines of the ('hnreli of l"ji;jlanil, as 
 
 • Si'C last (bajitcr. ' /i/ccAs v. W'ocljrii, I ( 'ml. lilto. 
 
 " Same case.
 
 OF ClIURCHYAnDS. 433 
 
 contained in our articles : and that a party is not liable to 
 be proceeded against in a criminal suit for erecting or re- 
 fusing to remove such a stone. It must be observed, how- 
 ever, that it does not follow from this decision but that the 
 ordinary, or the incumbent acting for him, might have 
 caused the stone to be removed without any danger of an 
 action. 
 
 The possession and right of property in tombstones 
 erected in a churchyard, like the monuments in the church, 
 belong to those who erected them ; and if any one defaces 
 or injures them, the owners may have an action against 
 the wrongdoer. But, if the incumbent, in exercise of his 
 general discretion and authority over the whole freehold 
 of the church, injures them, or causes them to be removed, 
 it seems that no remedy lies against him, unless the erec- 
 tion was made under the sanction of a faculty. And it 
 would be the same in the case of a vault : for unless a 
 faculty has been obtained, the incumbent, in exercise of 
 his general discretion, might cause a vault to be opened 
 for the interment of other persons than those for whom it 
 was designed, and whose relatives have been there buried : 
 and this, as it seems, although the incumbent should him- 
 self have permitted the vault to have been made for the 
 exclusive use of the party claiming it; for the incuml)ent 
 could have had no power to give such permission, and his 
 giving it would therefore have been a nullity." 
 
 The churchwardens, as we have already seen, are the Churchwardens 
 proper parties to bring actions for preserving the integrity '° v^y^^^ 
 of the churchyard, and this not only as against strangers, a.!"ins/ihe mi- 
 but even as against the minister himself; of so qualified n?skr. 
 and limited a nature are the rights of the latter in his free- 
 hold. 
 
 The Rev. K. M. T., vicar of Floore, in Northampton- 
 shire, claimed a right of way from the vicarage house to 
 the parish church ; and, in assertion of that right, he began 
 to pull down a part of the churchyard wall, in which, as 
 he asserted, a gateway had formerly existed. One of the 
 churchwardens prayed for and obtained an injunction from 
 the vice-chancellor, to prevent him. In a trial at law, 
 which was had soon afterwards, botwoen T. and the 
 tenant of the lands, over which he claimed his right of 
 way, the verdict was given against such alleged right; 
 and the case then came to a hearing before the vice- 
 chancellor, who said that he woiild make the injunction 
 perpetual, were it not that Mr. T. wished again to try the 
 action in a varied form. The injunction however was con- 
 
 » See Bryan v. Whistler, 8 B. & C. 288. 
 
 F F
 
 434 
 
 OF CHURCHYARDS. 
 
 By injunction. 
 
 Churchway. 
 Repair of. 
 
 Indiclment for 
 non-repair. 
 
 Provisinnn for 
 
 a<l(lition;il 
 
 churcliyaiils. 
 
 tinned until the trial. In the course of the argument in 
 this case, it was suggested by counsel, that churchwardens 
 might be the owners of the goods, but that they had no 
 interest in the freehold of the church ; and therefore that 
 they could not maintain an action in respect of the realty. 
 But it was said by the vice-chancellor, " suppose the 
 churchwardens are liable at law to keep the walls of the 
 churchyard in repair, would it not follow that they might 
 bring an action on the case against any one who injured 
 the walls ? And as the churchwardens can institute a suit 
 in the ecclesiastical courts for a nuisance, or other matter 
 done in the churchyard, there seems no reason whatever 
 why this court should not interfere to prevent the commis- 
 sion of the very nuisance, in respect of which they might 
 have a suit. For the Ecclesiastical Court could not issue 
 an injunction, and, therefore, although it may punish an 
 injury to the freehold of the church, after it has been done, 
 it has no power to prevent its being done."" 
 
 If the churchway, as is frequently the case, be a high- 
 way, that is, if it be common to all the subjects of the 
 realm, and not merely to the parishioners, the charge of 
 repairing it of common right lies on the occupiers of lands 
 within the parish ; though it may be cast on certain per- 
 sons, by reason of inclosure, tenure, or prescription ; and, 
 in some cases, it is to be regulated by surveyors appointed 
 under the stat. 13 Geo. III. c. 78. 
 
 But if the churchway should lead only to the church, ter- 
 minating at the churchyard, and common only to the in- 
 liabitants of a ])articular house, hamlet, village, or parish ; 
 then, as it is a churchway, and to a certain extent only a 
 private way, the right to it may be claimed and maintained 
 m the Ecclesiastical Court; so that he who ought to re|)air 
 it, would be comjirlled by that court to do so; but if it 
 were suggested that it was a highway, then a proliibition 
 would be granted, for snch a question would be triable 
 only at common law. But in cither case it does not ap- 
 ])('iii' that the remedy by indictment would be improper; 
 and if in the indictment it was alleged to be a fc^otway to 
 the church of A., without stating more particularly whe- 
 ther it was a highway or not, it would be held good:^ 
 and there would |)r<)l);d)ly be few cases in which in prac- 
 tice it wovdd not he tin; better and safer course to pnjceed 
 by indictment, leaving the defendant to raise the objection 
 as to proper jurisdiction, if he should think fit. 
 
 The recent statutes for the erection of additional churches 
 
 ^]llrrlotl V. 'rini>lfii, Sim. 279. 
 
 1 \ eiil. '20(! ; *2 R.iym. 1 llCt ; 3 Uac. 
 
 Abr. 4<ja; Ayi. Tarcr. 430.
 
 OF CHURCHYARDS. 435 
 
 liave provided, that all such parishes or extra-parochial 
 places, as shall be required by the commissioners, shrdi 
 furnish lands for enlarging existing, or for making addi- 
 tional churchyards or burial grounds, as the commissioners 
 shall deem necessary : and the commissioners shall give 
 notice to the churchwardens, to be left at their abodes, of 
 the intention to enlarsie the existinjr, or to set out new 
 burial grounds ; and of the extent of ground recpiired for 
 such purj)ose, and for a proper approach thereto, and of 
 the place in which the same is required to be ])rovid('d ; 
 and the churchwardens shall, within fourteen days, call a 
 meeting of the vestry, or persons possessing the powers of 
 vestry, for taking all necessary measures for providing the 
 same ; and in case the parish or place cannot provide the 
 same, without purchase, the vestry, or persons possessing 
 the powers of vestry, are required forthwith to proceed to 
 treat for ground, according to such notice, but shall not 
 conclude any bargain without the commissioners' approba- 
 tion.^ The commissioners may accept, from ])ersons will- 
 ing to give, any lands not exceeding in (piantity what may 
 be sufficient for building a church or chapel, and providing 
 a churchyard.'' 
 
 All the powers and provisions of these acts which relate Powers for 
 to the oTant, sale, conveyance, purchase, and resale of S|^="" "' l'"'"', 
 
 , , p 1 /i -^ . .' 1 r ii f <lia&c of lands 
 
 lands, to or by the commissioners, tor the pui-pose o\ {^^ ^^^^.i, ^^^^, 
 building any additional churches or chapels, or the ad- pose, 
 vancing, raising, or taking up at interest, money for any 
 such purpose, shall extend to grants, kc. of lands or here- 
 ditaments necessary for enlarging or making any church- 
 yard or burial ground, and approaches thereto, and for 
 issuing money required for those jnirposes, repaying by 
 instalments or otherwise.'' Lands thus added to any ex- 
 isting churchyard or burial ground, or appropriated for a 
 new burial ground, shall, as soon as convenient, be conse- 
 crated for the burial of the dead ; and shall for ever be 
 used as an additional burying ground ; and the freehold of 
 the land so consecrated, shall thereupon vest in the person 
 or persons in whom the freehold of the ancient burial 
 ground of such parish or chapelry shall from time to time 
 be vested .'' 
 
 The commissioners may, if they think fit, alter, repair. Power to alter 
 pull down, and rebuild, or order or direct to be altered, J;;:';;;!;;;^*;;^' 
 &c. the walls or fences of any existing churchyard or buri;il ° *= '"' J 
 ground of any parish or chapelry, and fence olf any addi- 
 tional or new burial ground, to be provided under the 
 
 ' 59 Geo. 3, c. 134, s. 36. * 58 Geo. 3, c. 45, s. 33. 
 
 ^ 59 Geo. 3, c. 134, s. 37. <• Sect. 38. 
 
 .F F 2
 
 436 OF CHURCHYARDS. 
 
 above powers ; and also stop up and discontinue, or alter, 
 or order to be stopped up, &c. any entrance to any church- 
 yard or burial ground, and the footways and passages over 
 the same, as they shall think fit ; provided the same be done 
 with the consent of two justices of the peace, and on notice 
 being given.*^ 
 Power for en- The Commissioners may authorise any parish, chapelry, 
 larging church- township, or extra-parochial place desirous of procuring 
 ^^ ^" or adding to any burial ground, to purchase any lands the 
 
 commissioners may think sufficient, and properly situate 
 for that purpose, and to make rates for the purchase 
 thereof, or for repaying with interest any money borrowed 
 for making such purchase ; and the churchwardens, or 
 persons authorised to make rates, shall exercise all powers 
 for making such purchases, and making and raising such 
 rates ; and when any lands so purchased shall be situate 
 out of the parish or place for which it was intended, the 
 same shall, after consecration, be deemed part of such 
 . parish or place.® 
 
 f-yfl^ In cases of the chm-chyards to churches built under the 
 
 (r\. I j?"^^ provisions of 1 & 2 Will. IV. c. 38, it is directed, that 
 
 /• "J^^ when five years have elapsed after the land has been con- 
 
 ]t' " > . veyed for that purpose, it shall vest absolutely in the per- 
 
 J i,- .'^ t" sons to whom it has been so conveyed ; provided that if it 
 
 Id be recovered in ejectment, the value found by the 
 and the costs, shall be tendered within two months 
 after the judgment.*^ 
 
 I "^ * tj ^' sons 
 
 M^ s^V., M shoul 
 
 r^f 1 jury, 
 
 / after 
 
 <> Sect. 39. And as to the notice, see 55 Geo. 3, c. 68. 
 « 3 Geo. 4, c. 72, s. 26, ' Sect. 17.
 
 ( 437 ) 
 
 BOOK IV. 
 
 OF THE PROVISION MADE BY LAW FOR 
 THE SUPPORT OF THINGS ECCLESI- 
 ASTICAL. 
 
 CHAPTER I. 
 
 CHURCH RA.TES. 
 
 By the authority of all writers on the general canon law, Origin of the 
 the repairs of the whole of the parish church, both of the "'^* 
 body and the chancel, fall upon the rectors or owners of 
 the tithes ; except that, by custom in some countries, part 
 falls upon the parishioners. But by the common custom 
 of this country, the repairs of the nave of the church, in 
 which the lay parishioners sit, fall upon the parishioners 
 themselves ; the repair of the chancel only falling upon the 
 rector ^'^ or, as Lyndwood expresses it, by custom, the 
 burthen of reparation, at least of the nave of the church, is 
 transferred upon the parishioners.'' At what period the 
 transferring of this burthen from the tithes to the pa- 
 rishioners may have taken place, cannot now be ascer- 
 tained. As early as the time of Canute, the obligation is its antiquity, 
 thus declared : '* Ad refectionem ecclesice, debet omnis po- 
 jndus, secundum rectum, subvenire."'^ And in those parts 
 of the rest of Europe where the custom in this rosj)ect is 
 similar to that of England, such custom aj)pears also to 
 have been very ancient, though the authorities which are 
 referred to in support of that belief, are not suilicicntly 
 clear to be quite satisfactory •,'^ and a case, found in the 
 
 a Van Espen, Jus Eccles. Univers. part 2, sect. 2. lit. 1. 
 
 ■> De reparandis Ecclesiis, Lyndw. p. 53, note; liiidal, C..I., iii IV/eu v. 
 liurdec, 12 Ad. & Ell. 301. 
 
 <^ Thorpe's Ancient Laws and Institutes of England, vol. i. p. 410 ; vol.ii. 
 p. 540. 
 
 <* See Lindenbrogius, Cod. Leg. Ant. 688; Baluzzii Capit. Reg.Fiaii. vol. i. 
 530; Canciani Barb. Leg. Aiit. i. 219.
 
 438 CHURCH RATES. 
 
 Year-Book, 44 Edw. III. f. 18, whilst it establishes the 
 fact, that the burthen of repairing the nave of the church 
 had been transferred from the tithe, and that church rates 
 were made by the parishioners so early as the year 1370, 
 does at the same time, by a plea therein contained, of " a 
 custom from time immemorial, within the particular parish, 
 to levy the amount of the rate on each parishioner, by 
 distress," necessarily carry back, beyond the time of legal 
 memory, the obligation of the parishioners to make a rate 
 upon themselves for the reparation of the parish church.* 
 The same is laid down by Holt, C. J., who says, by tlie 
 civil and the canon law, the parson is obliged to repair the 
 whole church, and is so in all Christian kingdoms but in 
 England •/ for it is by the peculiar law of this nation, that 
 the parishioners are charged with the repairs of the body 
 of the church.^ 
 
 The exact origin of church rates, therefore, like that of 
 a great portion of our common law, is lost in the obscurity 
 of antiquity. But probably there are very few of our insti- 
 tutions more ancient. There is no question but that the 
 assessment of them is of far higher antiquity than that of 
 those other kinds of rates which are now commonly im- 
 posed for various secular purposes ; and that the custom 
 for parishioners to make a rate upon themselves, for the 
 reparation of their parish church, existing beyond the time 
 of legal memory, and extending over the whole realm, is 
 no other than the common law of England.'' 
 Objects of the The purposes for which a church rate may be levied, are 
 ™'«' in most instances determined by custom or common law j 
 
 but there are other purposes to which they are made appli- 
 cable by statute. 
 Atcommonlaw. By common law, the purpose may be twofold : 1st, the 
 necessary and essential repairing of the fabric of the church ; 
 and, 2nd, the repairing of the onuimcnts of the church, and 
 of the things aj)pcrtaining thereto, and the providing all 
 things essential to tlie performance of divine service therein. 
 Former distinc- And formerly, there was a much greater distinction between 
 tion between the thcsc two [)vn'poscs, wliich may be called necessary and 
 jate at common '"lu^'ccssary repairs, than at present, the subject of the 
 hw. rate in either case being diHbrent; for whereas, in the latter 
 
 case, the rate was to be limited to inhabitants only, in the 
 former case non-inhabitants also were to be charged. 
 Thus it has been said formerly, that if a person, who is 
 not an inhaljitant within the parish, but has land there, is 
 
 "^ Sec argument of Sir \V. I'ollelt, in I'eleiiv. liurdcr. f Scd qua'te. 
 
 ft lltinkiiis V. lious, Vit[\>.:H}(). 
 
 '• 'lindal, C.J., in Velcy v, Biiuler, 12 Ad. & Ell. 302.
 
 CHURCH RATES. 439 
 
 rated there for the ornaments of tlie church, accordinir to 
 his land, a prohibition Hetli, for tlie inhabitants ou^bt to 
 be rated for them ; and Yelverton said that this liad been 
 divers times so resolved.' 
 
 And Gibson says, " a rate for the reparation of the fabric 
 of the church is real, charging- the land, and not the jjerson ; 
 but a rate for ornaments is personal, upon the goods, and 
 not upon the land. Thus it was defined and agreed in the 
 Court of King's Bench, where the tax was for the repara- 
 tion of the church, for church ornaments, and for sexton's 
 wages ; and because the person rated, though an occupier 
 of land in the parish, dwelt out of it, he was declared to be 
 unduly rated in the two last articles; and it was further 
 agreed that, if a tax be made for the rejiaration of seats in 
 a church, a foreigner shall not be taxed for that, because 
 he hath no benefit by them in particular. The same dis- 
 tinction as to ornaments was again declared to be good. 
 And long after these, in Woodward's case, in the 4 Jac. II. 
 where the matter was a tax for the bells of the church, a 
 prohibition was granted, upon this suggestion, that the 
 party who prayed it was not an inhabitant of the parish ; 
 and the court gave for reason, because it is a personal 
 charge, to which the inhabitants alone are liable, and not 
 those who only occupy in that parish, and live in another.'' 
 
 And there can be no doubt but that formerly this dis- 
 tinction was very clearly established and constantly acted 
 upon. At present it is principally important in the bearing 
 which it may have upon the question which will be after- 
 wards discussed, whether the churchwardens alone, or they 
 with a minority of the rate-payers, can make a rate which 
 has been refused by the majority ; for it was urged in argu- 
 ment by Sir W. Follett,' in the discussion of that question, 
 that there might and did exist a power in such persons to 
 make a rate for necessary repairs, although it might not 
 exist to make a rate for ornaments, &c. To all practical No such .lis 
 purposes, however, no such distinction any longer exists. 
 
 A tax upon inhabitants as distinct from occupiers would 
 raise a number of doubtful questions on the proper subject 
 of the rate, as well as on the object to which it couKl pro- 
 perly be applied ; and the question of Hull, C. J., a[)pears 
 unanswerable, when he asks, in a case before him, " If a 
 man be an inhabitant as to the church, how can he not be 
 an inhabitant as to the ornaments of the church ?"'" 
 
 > See 1 Burn's E. L. " Church Rates;" and Sir W. FoUeU's aiguments in 
 Veleu V. Biirder, 
 k See 1 Burn's E. L., ante. ' Velei/ v. Burder,aa\e. ™ 1 Salk. 164. 
 
 ImcUon now 
 exists.
 
 440 CHURCH RATES. 
 
 Has ceased long Sir Simon Degge observes, there has been some question 
 s'"*^^- made, whether one that holds lands in one parish, and re- 
 
 sides in another, may be charged to the ornaments of the 
 parish where he doth not reside ; and some opinions have 
 been, that foreigners were only chargeable to the shell of 
 the church, but not to bells, seats, or ornaments. But he 
 says, he conceives the law to be clear otherwise, and that 
 the foreigner that holds lands in the parish, is as much 
 obliged to pay towards the bells, seals and ornaments, as 
 to the repair of the church ; otherwise there would be 
 great confusion in making several levies, the one for the 
 repair of the church, the other for the ornaments, which, 
 he says, he never observed to be practised, within his 
 knowledge. And it is possible that all, or the greatest 
 part of the land in a parish, may be held by foreigners ; 
 and it were unreasonable, in such a case, to lay the whole 
 charge upon the inhabitants, which may be but a poor 
 shepherd." 
 Inconvenience And indeed the great inconvenience, if not the impos- 
 ot the dibuiic- sibility of making any such distinction practically, would 
 be a sufficient argument against it, and would seem there- 
 fore to prevent the possibility of successfully relying on 
 such a doctrine in the case to which it has been applied ; 
 for no distinction could be accurately drawn between re- 
 pairs for the fabric of the church and for ornaments : the 
 steeple itself might be termed an ornament : and, as said 
 by Holt, C. J.,° the bells are more than mere ornaments; 
 for they are as necessary as the steeple, which is of no use 
 without the bells : and it will be observed, that the terms 
 " necessary" and " unnecessary" do not apply, respectively, 
 to repairs of the fabric, and repairs, &c., of the goods and 
 ornaments ; for those things, whicli by the canon law are 
 ordered to be provided by the parisliioners, as the sur})lice, 
 books, &c., must without doubt be considered necessary, 
 although they have nothing to do with the fabric, 
 j.cpal objects of It may be said, therefore, that the legitimate object of 
 a chun h rate ;^ church rate at conmion law is the maintaining and re- 
 al r iues"eir' l>:^'''"g- ^^ the body of the church, the belfry, and all com- 
 diiy. mon or j^ublic cha])els within or adjoining to the church,'' 
 
 and also the defraying of all oxj)enses connected with the 
 service of tlic church, and that these purjioses are e([ually 
 the legitimate object of the rate; which is no less apjjli- 
 cablc to the one purpose than to the other. But a church 
 rate, one of the objects of which was the providing for the 
 minister's salary, \vas held invalid.'' And it may be here 
 
 » 1 r.iirns K. 1.. 370. " Same cjse, 1 Salk. 
 
 P Degge, 202. n 2 Cuit. 902.
 
 CHURCH RATES. 441 
 
 observed, that a church rate, greater in amount than is 
 necessary for the particuhir object for whicli it is imposed, 
 is so far illegal that it is at any rate a good objection to 
 the rate in a suit for subtraction ; as where an estimate 
 was produced which a sixpenny rate was sufficient to 
 cover, and a nine-penny rate was made nevertheless : and 
 in that case it was said that the legality of a church rate 
 was its necessity/ 
 
 There are other purposes to which, by virtue of different Object of the 
 statutes, the church rate has been made applicable. '■•'•te by statute 
 
 Thus, a power has been given to churchwardens, with ^^" 
 the consent of the vestry or persons possessing the powers fxlenlin'Mhe 
 of vestry, and of the bishop and incumbent, to borrow and accommodation 
 raise on the credit of the rates such sums as shall be ne- of churches, 
 cessary for defraying the expense, or any part of it, of 
 enlarging or otherwise extending the accommodation in 
 the then existing churches ; and to make rates for the pay- 
 ment of the interest of the sums borrowed ; and for pro- 
 viding a fund of not less than the amount of the interest 
 upon the sum advanced, for the repayment of the principal 
 thereof, or for repaying such principal in such manner 
 and at such times, and in such proportions, as shall be 
 agreed on with the person advancing the money: provided 
 one half of the additional accommodation be allotted to 
 uninclosed or free seats.* 
 
 This last provision is for enlarging or otherwise extend- Repairing 
 ine; the accommodation in churches ; but a power has also churches by 
 
 , " . ,11 1 111 • i sums borrowed. 
 
 been given to churchwardens, where a church requn-es to 
 be repaired, to borrow the requisite amount, in the same 
 manner, upon the credit of the rates ; but in that case the 
 sum raised must be sufficient to pay, not only the interest 
 of the sum borrowed, but also ten per cent, annually' of 
 the principal sum borrowed, until the whole shall be re- 
 paid." 
 
 If an application to the commissioners, under the statutes Duilding new 
 
 last alluded to, shall have been aoreed upon bv the vestry '■!'"'''''"„°' , 
 1 /. 1 I • 1 • 1 ' I- xi chapels out ot 
 
 and not dissented from by one-thuxl m value ot the pro- ^ate. 
 
 prietors within the parish, (such value to be ascertained 
 by an average of the poor rate for three years of juoprietors 
 of houses, lands freehold and copyhold, by leases for years, 
 of which fifteen years are unexpired or determinable on 
 lives,) the commissioners may authorise the building, either 
 wholly out of the rates, or partly out of the rates and partly 
 by subscription, of a church or chapel ; and such applica- 
 tion having been made and assented to by the commis- 
 
 ' Smiih V. Dickson, 2 Curt. 264. • 58 Geo. 3. c. 45, s. 59. 
 
 » R. V. Chnrchicaidens of Dunley, post. " 59 Geo. 3, c. 134, s. 14.
 
 442 
 
 CHURCH RATES. 
 
 Such a rale may 
 in some circum- 
 stances be with- 
 out the consent 
 of bisliop or 
 incumbent or 
 commissioners. 
 
 As where under 
 a certain 
 amount. 
 
 Where tlie re- 
 payment of sum 
 borrowed is to 
 be by instal- 
 ments of a ccr- 
 taiti amount. 
 
 sioners, the churchwardens may then, of their own autho- 
 rity,'' raise the whole sum or the portion necessary, or they 
 may borrow such sums on the credit of the rates ; and, in 
 case of borrowing, may make rates for the payments of 
 the interest of the money advanced, and for the providing 
 a fund, of not less than the amount of the interest upon 
 the sum advanced, for repayment of the principal, in such 
 manner and proportions, and at such times as shall be 
 agreed on with the lender. Nor is any further consent of 
 the parishioners necessary to the making such a rate; the 
 churchwardens alone may make it : it is no matter of ec- 
 clesiastical cognizance, and the Court of Queen's Bench 
 will enforce it by mandamus. ^ But this latter subject will 
 again come under consideration, when we speak of the 
 mode by which the ])ayment of these rates may be en- 
 forced. 
 
 In the above cases it will be observed that the consent 
 of the bishop and incumbent, or an application to the com- 
 missioners and their sanction, is necessary before such 
 rates as last mentioned can be legally imposed ; but if the 
 rate intended to be thus imposed for building and enlarging 
 is under a certain amount, then it may be made without 
 such consent or application and sanction. For the inha- 
 bitants of any parish assembled at a vestry, or the major 
 part of them present at a vestry, of which notice shall have 
 been given on two successive Sundays preceding such 
 vestry, or two-thirds of the persons exercising the powers 
 of vestry, assembled at a vestry of which due notice for 
 the assembling of such persons shall have been given, may 
 order and direct the making a rate, not exceeding one 
 shilling in the pound, for one year, and five shillings in 
 the ])ound in the whole, upon the annual value of |)roperty 
 in the ])arish, for the purpose of building or enlarging any 
 church or chapel, wholly or in part, by means of rates, 
 without any further consent; but no such rate, larger in 
 amount than the above, can be thus made or raised if one- 
 third part in value of the rat(! payers (such value to be 
 ascertained as mentioned above) shall dissent and signify 
 their dissent in writing. If there is no such dissent, then 
 such order of the inhabitants is imperative on the church- 
 wardens, who are to raise, levy, collect and enforce j)ay- 
 ment of the rate accordingly.''' 
 
 Another case in which a rate for these purposes may be 
 niade without such consent, a])])hcation or sanction as 
 above mentioned, is where the repayment of the sum bor- 
 
 » It. V. .S(. Mii.ii JmihIhiI,, .3 W. ix Ad. 654. 
 
 y Ihid., .08 Geo, 3, c. J.O, ^. (il. ' 69 Geo. 3, c. 134, s. 25.
 
 CHURCH RATES. 443 
 
 rowed is agreed to be made more quickly and in imuli 
 larger annual amounts than as before mentioned. 'Ihus 
 the churchwardens of any parish, or persons appointed to 
 act as such in any extra parochial place, with the consent, 
 in any parish, of the vestry or select vestry, or persons 
 possessing under any act or acts of parliament the powers 
 of vestry, and with the consent, in any extra-parochial 
 place, of the majority of the persons who would be entitled 
 to vote in vestry if the same had been a parish, assenibled at 
 any meeting called for that purpose, (of which notice must 
 be given in the church or chapel of the extra-parochial place, 
 or in the church or chapel nearest adjoining thereto,) may 
 borrow any money upon the credit of the rates of the 
 parish or extra-parochial place ; and they are thereby em- 
 powered and required, in any case in which such money 
 shall have been borrowed, to raise by rate a sum sufHcient 
 from time to time to pay the interest of the money so 
 borrowed, and one-twentieth part annually* of the ])rin- 
 cipal sum borrowed, out of the produce of such rates, until 
 the whole of the money so borrowed shall be paid.'' 
 
 It must be admitted that the above provisions of the 58 
 Geo. III. c. 45, and the 59 Geo. III. c. 134, as to raising 
 money upon the rates, are not less complicated than the 
 other provisions of the same two statutes. For our present 
 purpose, however, viz. the legitimate object of a church rate 
 under these statutes, the following summary, as containing 
 the present state of the law, may be usefully added. 
 
 If the church building rate does not exceed one shilling Church builJlng 
 in the pound for one year, and five shillings in the whole, rates wuhoui 
 upon the annual rateable value (notice of the vestry being 
 given on two successive Sundays), it may be imposed by 
 the vestry in the usual manner, and without any extraor- 
 dinary consent. So money to any amount, as it seems, 
 may be borrowed upon the security of the church rate 
 without any extraordinary consent, provided the interest 
 of the sum borrowed and one-twentieth of the principal be 
 repaid annually out of the produce of the rates ; which rate 
 for repayment the churchwardens are empowered aiul re- 
 quired from time to time to raise and levy. 
 
 But if a sum is to be borrowed on the credit of the when constut 
 church rates, and it is intended to repay the same in an- 's necessary, 
 nual sums of less than 20/. per cent., besides the interest, 
 then the bishop and incumbent must consent, or the com- 
 missioners must give their sanction to the arrangement; 
 but the amount of princi})al, from time to time repaid, 
 must never in these cases be less than 10/. per cent. 
 
 » R. V. Churchwardens of Dursley, post. '' 58 Geo. 3, c. 45, ss. 57, 58.
 
 444 CHURCH RATES. 
 
 The object must It is essential to the proper legal object of a church rate, 
 
 be prospecuve. ^^^^^ g^^.^ object should be prospective ; that is to say, that 
 
 no part of it should be applied in discharge of debts or 
 
 expenses previously contracted ; for it is right that the 
 
 parishioners should know beforehand, at the time when 
 
 the rate is imposed, for what purpose it is required, so as 
 
 to be able to decide as to the propriety of the expenditure ; 
 
 and, as the parishioners are a fluctuating body, it would 
 
 be unfair for persons coming into a parish to be burthened 
 
 with the debts of their predecessors, over whose conduct 
 
 and votes they had no control. 
 
 History of the It does not appear that a retrospective church rate was 
 
 law on this considered illegal formerly; for very many instances are 
 
 ^°'°'' to be found where such church rates have been imposed : 
 
 and a decree in chancery has even been made on a bill 
 
 filed by the executrix of a late churchwarden, against 
 
 ninety parishioners, to be reimbursed what her testator 
 
 had advanced in rebuilding the church steeple ; the court 
 
 saying that it was a proper case for relief, and that there 
 
 were many precedents of a like nature.'' 
 
 But so long back as the year 1702 it had been decided, 
 that a retrospective poor rate was illegal;'^ and a manda- 
 mus applied for to compel churchwardens and overseers 
 of the poor to make a rate to reimburse former overseers 
 had been refused by Holt, C. J., and the doctrine there 
 established had remained unshaken. When, at a much 
 later period, the opposition to church rates became in 
 many places systematic, and every mode was investigated 
 by which they might be defeated, it seems to have, for the 
 first time, occurred to the opponents that the doctrine 
 which had formerly been established in the case of poor 
 rates was equally api)licable to church rates. Many argu- 
 ments have been adduced to show the essential difference 
 of the two cases ; the poor rate being assessed by the over- 
 seers, the church rate by the parishioners themselves ; and 
 it being a princii)le of self-taxation, that the majority of 
 those who tax themselves may apj)ly the tax to such pur- 
 j)oseK as they may think projx'r : but it would be useless 
 now to notice these iirgiinients, as the doctrine ot the ille- 
 gality of a retrospective rate has been fully recognised, 
 and is now clearly established by the ecclesiastical and 
 conuiion law courts.'' 
 All retrospective It lias been held, moreover, that there is no real dis- 
 
 rhurdi rates 
 
 '"^8*'- « ,\'ic/i<)/so»i V. Mustna. Vincr's Abr. Churchwardens. 
 
 •' I'awneii'i case, 2 Lil. llayra. 1U09. • 
 
 « See especially R. v. Cliurcliuardcits of Dunley, post; and Pigott v. Bcar- 
 btock, post.
 
 CHURCH RATES. 445 
 
 O 
 
 tinction between the case of a rate, on the face of it re- 
 trospective, and a rate not retrospective on the face of it, 
 but intended to cover debts, or parts of a debt, previously 
 incurred ; but that the rate in either case is bad j and 
 therefore, in the case of a church rate, not retrospective 
 on the face of it, parties opposing it might enter into evi- 
 dence to prove that it was made for, and intended to be 
 apphed to, retrospective purposes/ Nor will it aid the 
 legality of a retrospective rate, that the majority of the 
 parishioners, however laige, have assented to it ; for thougli 
 a majority of the parishioners in vestry may bind the mi- 
 nority, it must be for a legal, not an illegal purpose. 
 
 The earlier cases on retrospective church rates decided Earlier cases as 
 on their illegality only so far, that the courts would not '"■ 
 interpose to compel the making of such rates at the in- 
 stance of the parties who were to be reimbursed by them. 
 Thus, in the year 1810, Lord Ellenborough refused to 
 grant a mandamus to the chapelwardens of a township 
 within a parish, to compel them to make a rate to re- 
 imburse other churchwardens such sums as they had ex- 
 pended, and also refused to grant a mandamus to raise 
 the money in the conmion form of such a rate prospec- 
 tively, out of which the churchwardens might repay them- 
 selves.^ And so in another case in the Court of Chancery, 
 the vice-chancellor dismissed a bill with costs, which had 
 been filed to obtain a decree for a rate to be made to re- 
 imburse a former churchwarden monies laid out whilst in 
 office.'' 
 
 But now it has been fully decided, that the majority of Present state of 
 the parishioners themselves cannot make such a rate, and, ^''^ '*"• 
 in fact, that such a rate is bad in itself, and that nothing 
 can make it good. 
 
 In a suit for subtraction of church rate,' the libel 
 showed a rate, which was upon the face of it, and in form, 
 prospective. But the defensive allegation in answer pleaded 
 the fact, that it was intended out of it to reimburse the 
 churchwardens for sums previously expended. The ques- 
 tion of the admissibility of this allegation was very fully 
 argued; and Dr. Lushington, in the Consistory Court, 
 decided that evidence in support of such a fact ought not 
 to be excluded. He says, " if a small portion only of the 
 rate was intended to cover such expenses, I should not be 
 inchned to pronounce against it ;^ on the other hand, if 
 the rate be retrospective to a very considerable extent, I 
 
 ' Same cases. « R. v. Cliapelwardens of Ihiwoith, 17 East, 55(3. 
 
 h Lanchester v. Thompson, 5 Madd. 4. • Chesterton v. Farlar, 1 Cur. 345. 
 
 '' But see post. Lord Brougham in Pigott v, Bearblock.
 
 44G CHURCH RATES. 
 
 am of opinion that the numerous decisions which have 
 taken place in other courts, pronouncing retrospective 
 rates illegal, would necessarily lead me, under the circum- 
 stances stated, to refuse to enforce such a rate." 
 
 In a subsequent stage of this same case, it was admitted 
 that the rate was retrospective to the amount of a third of 
 the whole amount ; and, in deciding against its validity, 
 Dr. Lushington says, " had the sums in the present case 
 been of small amount, I should have felt myself justified 
 in leaving them entirely out of consideration." 
 
 Upon appeal from this decision to the Court of Arches, 
 it was overruled by Sir Herbert Jenner, but from his deci- 
 sion, a further a])peal was prosecuted to the Judicial Com- 
 mittee of the Privy Council, by which the judgment of 
 Sir H. Jenner was reversed, and the decision of Dr. Lush- 
 ington, as to the illegality of the retrospective rate, con- 
 firmed. But in delivering the judgment of the Judicial 
 Committee of the Privy Council in this case, a very im- 
 A rate made to portaut distinction as to a retrospective rate was drawn 
 reimburse by Sir Thomas Erskine, at that time the Chief Judge of 
 
 for'expenses in- ^^^^ Court of Bankruptcy. For he says, the rate in ques- 
 curred in the tion was avovvcdly made, not only for the purpose of pro- 
 currentyearis vising for the expenses of the current year, to all of which 
 tive.*^^ ^"^'^^^ ^//<?ir lordships are of opinion it might have been legally 
 applied^ xohether incurred before or after the making of the 
 rate, but also for the liquidation of outstanding demands 
 against the parish incurred in former years. It is true the 
 rate is good upon the face of it, and it is also true that 
 sucli a rate would not be vitiated, although one of its ol)- 
 jects might have been to reimburse the churchwardens for 
 expenses incurred by them during the current year.' 
 
 But if the same churcliwardens had been re-elected, 
 this distinction would not iipjdy : so that tiiey could not 
 be reimbursed what they had expended in a former year; 
 for, as it has been observed in a subsequent case,'" by 
 by Sir H. Jenner, there is no distinction between the case 
 where the same individuals arc in ollice a second year, 
 and when they art; diH'ereiit individuals. " It is as church- 
 wardens that they sue; and, as churchwardens, their year 
 of olHce expires in Easter week ; if re-elected, they are 
 the same as new churchwardens." 
 Payment of It lius been already said, that the courts of connnon law 
 
 dctn contracted }^;^yg cogni/ance of those clnnc-h rales which are made in 
 fsTeUosDtcifvc/ pui'suance of the statutes; and, as to these, it has been 
 Iield, that the borrowing of money on the credit of the 
 
 ' Sec same case, Moore's I'rivy Council Cases. 
 '" EUit V. Gongk and Griffin, 2 Cur, G73. 
 
 IS relrospeclivc.
 
 CHURCH RATES. 44' 
 
 rates, to raise a sum for payin<jj off a debt, &c., is to make 
 a retrospective rate; and that the rate made in pursuance 
 of" the statutes, for re-payment of the sum borrowed, is 
 illet^al. 
 
 A parish church had been repaired in 1824, and in 1831 
 a part of the expenses which liad been incurred was still 
 unpaid ; to raise which, it had been resolved by the pa- 
 rishioners to borrow the sum required (350/.) on the credit 
 of the rates, under statute 59 Geo. III. c. 134, above men- 
 tioned. Tiie interest, and the annual ten per cent, of the 
 principal, had been for some time regularly repaid, but 
 the churchwardens, having at last refused to make any 
 further rate for this purpose, it was sought to obtain a 
 mandamus to com])el them. In giving judgment, Lord 
 Denman says, " It is a general rule with res|)ect to parish 
 rates, founded on obvious principles of policy and justice, 
 that they are not to be made retrospectively. The payers 
 being a fluctuating body, nothing, generally speaking, is 
 more just or more likely to conduce to economy, tlian to 
 hold, that they who create a charge, shall themselves bear 
 it. The statute has, to a certain extent, modified this 
 general rule, and the churchwardens are authorised, with 
 the sanction of the vestry, bishop and incumbent, to borrow, 
 on the credit of the rates, such sum of money as shall be 
 necessary for defraying the expense of repairing the church; 
 and they are then empowered and required to raise by 
 rate, a sum sufficient from time to time to pay the interest, 
 and not less than ten per cent, of the principal, until the 
 whole of the money so borrowed shall be repaid. It ap- 
 pears to us that all these provisions point clearly to the 
 limits of departure from the general principle above stated. 
 The consent of the incumbent and bishop appear to have 
 been thought necessary, in order to see that the repairs 
 should be of that onerous and yet permanent nature, which 
 might properly be thrown in part on the payers of suc- 
 ceeding years. Their consent, and that of the vestry, 
 have the eflect also of securing the parish from an impro- 
 vident outlay ; and, finally, the provision that the prin- 
 cipal and interest shall be paid in ten instalments, xc filch 
 ought, in our opinion, to be annual, secures the participa- 
 tion of the existing rate payers in the discharge of the loan, 
 and prevents it from becoming a burthen at any indefinite 
 period on their successors. These obvious purposes of 
 the act, so necessary to prevent abuses of the power given 
 by it, can only be secured by an adherence to the general 
 rule stated above, in all particulars not specially provided 
 for by the clause. We are therefore of opinion, that the
 
 448 
 
 CHURCH RATES. 
 
 A letrospective 
 payment out of 
 a rate, however 
 small, vitiates 
 the rate. 
 
 Subject of the 
 rate. 
 
 Occupiers of 
 land to be 
 charj^ed, whe- 
 ther residing in 
 (he parish or 
 not. 
 
 rate now sought to be imposed would not be authorised by 
 the statute."" 
 
 The authority of the case last mentioned has been very 
 recently recognised in a case before the Judicial Committee 
 of the Privy Council, in which case Lord Brougham lays 
 it down, that an illegal retrospective payment out of a 
 rate, however small in amount it may be, will nevertheless 
 vitiate the rate ; thus carrying the principle much farther 
 than could be inferred from the language of Dr. Lush- 
 ington in the case of Chesterton v. Farlar,° 
 
 It has been said that the church rate is not chargeable 
 upon the land, but upon the person, in respect of the land, 
 for the more equality and indifferency.P But this is not 
 material ; for, in substance, it is the land, or whatever 
 rateable property there may be, which is charged ; and 
 this is the case with other rates, as the poor rate, where, 
 although by the words of the statute the charge is upon 
 inhabitants and occupiers, yet so fully is the charge con- 
 sidered to be on the land, that in some cases it has been 
 by statute actually transferred from the occupier to the 
 lessor. And so it is said in Jefferys case,"^ if Jeftery 
 should not be charged to the reparation of the church, for 
 lands which he himself occupies, then no person would be 
 charged for them, upon which great inconvenience would 
 ensue ; for one who inhabits in the next town may occupy 
 the greatest part of the lands in another town; and so 
 churches, in these days, would come to ruin. But it was 
 resolved, when there is a farmer of the same lands, the 
 lessor, who receives rent for them, shall not be charged in 
 respect of his rent, because there is an inhabitant and pa- 
 rishioner who may be charged, and the receipt of rent 
 doth not make the lessor a parishioner. 
 
 And it was by this imjiortant case decided that the 
 occupiers of land, although residing in another parish, 
 were in law parisliioners of that parish where they so oc- 
 cupied, and rateabh; accordingly, liut if the occupiers are 
 assessed, it matters not by whom the payutcnt is made."" 
 
 Tiie first positive order on this point ap|)ears to be in a 
 constitution of Archbishoj) Stratford, by which it is ordered 
 that all persons, as well n^ligious as others whatsoever, 
 having possessions, farms or rents which are not of the 
 glebe or endowment of the churches to be repaired, living 
 within the parish or elsewhere, shall be bound to con- 
 
 " U. V. Churchwindent of Durslc;), 7 Ad. & V.W. 'ITjU. 
 " Pif^ott V. liearblock, I'rivy Council, May, 1H44. 
 »• iJeRijc. c. 1'2. ■' .'■> Hep. 
 
 r 2 Curt. 877.
 
 CHURCH RATES. 449 
 
 tribute, with the rest of the ])arisliioners of the aforesaid 
 churches, as often as shall be needful, to all char<:;eft incum- 
 bent iipon tlie parishioners conccrnin<;- their church and 
 the ornaments thereof, by law or custom, having respect 
 unto the quantity of such jjossessions and rents. Where- 
 unto, so often as shall be necessary, the ordinary shall 
 compel them, by ecclesiastical censures and othci- lawful 
 means.* 
 
 By the mention of possessions, farms or rents, it ap- 
 pears that incorporeal as well as corporeal hereditaments 
 are to be charged ; and not only so, but it is to be made 
 upon personalty and stock in trade also, unless the usage 
 and custom of the place establishes the contrary ; for it is 
 said, according to the ecclesiastical law that prevailed in 
 this realm, the laying of the church rate ought to be 
 according to the lands and the stock which the parishioners 
 have within the parish.' 
 
 And this statement as to the ecclesiastical law has been ^t'>fk '" irade 
 confirmed in a case before the Delegates in 1823, so far as J'^'j^J" '° ''"' 
 it was possible that it could be confirmed by the facts of 
 that i)articular case." In that case a church rate had been 
 made, including stock in trade, which was resisted ; and 
 by the libel against the party refusing, it was alleged that 
 the rate was accordino- to the usual and customary mo<le 
 of making the church rate in the parish of P(jole. The 
 long and able arguments of counsel, however, in this case, 
 of which it would be impossible here to give an abstract, 
 are directed to the general liability of stock in trade to 
 the church rate. And though a great variety of cases 
 was adduced and commented on, it was admitted that as 
 no case could be produced in which the rateability of stock 
 to the church had, u]) to that time, solenndy been pro- 
 nounced for, so neither was there any instance of a sen- 
 tence against its legality ; and the argument to be thence 
 derived appeared to be, that its legality had never been 
 questioned. The decision in that case, as ap|)ears also 
 from a report of the same case, in a further stage,"^ was 
 clearly that the stock in trade was liable ; but as no reason 
 appears to have been given as the ground of the decision, it 
 is (as it stands) an express authority only, that the stock 
 in trade, in the pnrticulnr instance, was liable, although, 
 from what has been said of the arguments adduced, liierc 
 is no reason to confine its authority, or to suppose that it is 
 
 « 1 Burn, 381. 
 
 *■ Rol. Abr. 389; Piidcaux, 81. who cites lliis as the diclum of John of 
 Alhon and Lyndwood, uhuni he calls ihe uncienlcsl and best of our canonists. 
 •■ Miller V. Blonmfiehl, 1 Add. 499. 
 " See 2 Add. 30." 
 
 G O
 
 450 CHURCH RATES. 
 
 not generally applicable. The act which has been recently 
 passed for exempting stock in trade from the poor rate, 
 does not in any manner affect its liability to church rate. 
 Directions of The following directions as to the subject of church rate 
 
 the thiiieen ^^^ gj^jj ^^ have been drawn up and agreed upon by thirteen 
 the subject of doctors of the civil law, assembled together for that pur- 
 church rale. pose in the common dining hall of Doctors' Commons, 
 touching a course to be observed by the assessors in their 
 taxations of the church and walls of the churchyard of 
 Wrotham in Kent, and to be applied generally, upon occa- 
 sion of like reparations, to all places in England what- 
 soever. 
 
 1. Every inhabitant dwelling within the parish is to be 
 charged according to his ability, whether in land or living 
 within the same parish, or for his goods there, that is to 
 say, for the best of them, but not for botlt. 
 
 2. Every farmer dwelling out of the parish, and having 
 lands and living within the said parish in his own occu- 
 pation, is to be charged to the value of the same lands or 
 living, or else to the value of the stock thereupon, even 
 for the best, but not for both. 
 
 3. Every farmer dwelling out of the parish, and having 
 lands, and living within the parish, in the occupation of 
 any farmer or farmers, is not to be charged ; but the farmer 
 or farmers thereof are to be charged in particularity, every 
 one according to the value of the land which he occui)ieth, 
 or according to the stock thereupon, even for the best, but 
 not for both. 
 
 4. Every inhabitant and farmer occupying arable land 
 within the parish, and feeding his cattle out of the ])arish, 
 is to be charged for the arable lauds within the parish, 
 although his cattle be fed out of the parish. 
 
 5. Iwery farmer of any mill within the parish is to be 
 charged for that mill ; and the owner thereof (if he be an 
 inhabitant) is to be charged for his liability in the same 
 parish, besides the mill. 
 
 6. Every owner of lands, tenements, cojjy holds or other 
 hereditaments, inhabiting within the parish, is to be taxed 
 according to his wealth, in regard of a parishioner, al- 
 though he occupy none of them himseli"; and his larmer 
 or farnu-rs also aie to be taxed for occupying oidy. 
 
 7. The assessors are not to tax themselves, but to leave 
 the taxation of them to the residue of the parish.^ 
 
 T?einnrks on 'n the case above mentioned of Dlillcr v. liloomjield, 
 
 these tlircciions. bcfiirc th(! Delegates, some doubts aj)])ear (o have been 
 thrown upon tlu; authenticity of these directionsi of the 
 y Sec 1 Hum's I,. L. " Church Rate."
 
 CHURCH RATKS. 4;jl 
 
 tliirteeii doctors ; hut, at best, the authority of them coukl 
 })e no greater than that allowed to the opinion of any 
 disinterested lawyer ; they could have no power whatsoever 
 to make any new law, much less to alter the law as then 
 existing. Although, therefore, great weight may be at- 
 tached to them, yet where they conflict with any general 
 principle of law, they must be disregarded. Thus as to 
 Number 1, it is clearly erroneous ; for it would exemj)t 
 personalty and stock in trade where the owner had also 
 lands in the parish, while they would be chargeable where 
 the owner had no lands ; and it would introduce a vague- 
 ness and uncertainty in the subject of tlie rate, whieh woukl 
 be directly contrary to the spirit of the law, and would 
 render the collection of it ahiiost im])Ossible. Numbers 2 
 and 3 are clearly erroneous for the same reason, so far as 
 they relate to the optional rate on kinds or stock, and to 
 the exemption of the one by the charge upon the other. 
 Number 6 is altogether erroneous, being directly opposed 
 to what we have already mentioned to have been laid down 
 in Jeffery's case; and Number 7 is not very intelligible, as 
 the parishioners themselves impose the tax, nor can it be 
 seen in what manner it could be acted on. 
 
 It will be seen, therefore, that the subjects of the church 
 rate are more universal than those of the poor rate,"^ and 
 it having been ascertained that all property, of what kind Exceptions 
 soever, is chargeable generally, we proceed to point out from tlie subject 
 the exceptions from this rule. 
 
 In the above-mentioned constitution of Archbishop 
 Stratford it \vill have been observed, that those things 
 are excepted, which are of the glebe or endowment of the 
 churches to be repaired, an exception which would apply Glebe oi en- 
 to the lands in whatever hands they mioht be." But dowmentsof 
 if there are any lands witliin the parish which are of the ^l same pa- 
 glebe or endowment of another church, they are charge- jish. 
 able to the church rate of the parish in which the lands 
 lie, and a fortiori lands in the parish which may be the 
 property of any ecclesiastical corporation, whether sole or 
 aggregate, other than the rector or vicar of the parish 
 church, are chargeable. The reason why the glebe or en- 
 dowment of the same church is not chargeable is because 
 the rector who holds it, or through whom the right is 
 derived, is liable to the repairs of the chancel, and therefore 
 the lay improi)riator, being bound to repair the chancel, 
 would be equally exempt in respect of his rectory ; but 
 
 5^ See statute 3 & 4 Vict. c. 89, by which stock in trade is exempted from the 
 poor late. 
 
 » Lyndw. 255. 
 
 gg2
 
 452 CHURCH RATES. 
 
 as tlie exemption is not personal, the rector, vicar or im- 
 propriator would be liable to the church rate in respect of 
 any lands which he may have in the parish, which are not 
 parcel of the rectory.'' And it will be observed that these 
 distinctions show more clearly that the rate is in substance 
 on the property and not personal. 
 Inhabitants of a Gibson says, the inhabitants of a precinct where is a 
 chapeliy. chapel, though it is a parochial chapel, and though they do 
 
 repair that chapel, are, nevertheless, of common right con- 
 tributory to the repairs of the mother church. If they have 
 seats at the mother church, to go thither when they please, 
 or receive sacraments or sacramentals, or marry, christen, 
 or bury at it, there can be no pretence for a discharge. 
 Nor can any thing support that plea, but that they have, 
 time out of mind, been discharged ; or that, in consideration 
 thereof, they have paid so much to the repair of the church, 
 or the wall of the churchyard, or the keeping of a bell, or 
 the like compositions (which are clearly a discharge).'^ 
 
 But the law on this subject, as now fully settled, after 
 careful argument and consideration, in the case of Craven 
 V. Sdunderson,'^ in the Court of Queen's Bench, is not quite 
 as it is above stated by Gibson ; for that case seems to 
 have established the law as follows : 
 
 Though it is clear that, by the common law, the pa- 
 rishioners of every parish are bound to repair the parish 
 When exempt, church, yet those of a chapeliy may prescribe to be exempt 
 from repairing the mother church ; as where the chapclry 
 luis existed from time innnemorial, and bmies and christens 
 within itself, and has nevei- contributed to the mother 
 church ; but all these things must condjinc ; for it has been 
 hold, that the inhabitants of a chapelry, sued for a rate 
 raised lor rcj)airing a parish church, do not entitle them- 
 selves to a prohibition by showing that they repaired their 
 chapel, and j^erfbrmed there the rites of baptism and mar- 
 riage; if tlioy hurled at the parish chmch. I»ut if all thcs(> 
 things cond)ine, that is to say, if the iniuibitants of tlie 
 chapehy have no use of the mother church in any way, 
 and have never contributed to its repair from time imme- 
 morial, and if the chajxd also has existed immemorially, 
 then it shall be intended that the chapel was coeval with 
 the mother chiu'ch, and not a later (section." 
 
 It will be secMi, therefore, lha( (lie inhabitants of a 
 chapelry are only exempt from contributing to the repairs 
 of the parish church in cases where the chapelry is, and 
 always has been, a sej)arate parish as to all ecclesiastical 
 
 ^ (iil.s. lf)7. <•■ 1 r.tun, ;)tK{. 
 
 '' 7 Ad. & KM. 880. « And sec also 1 Sulk. IGI.
 
 ciiuncii JJATES, 453 
 
 purposes. But a particular custom, opposed to tlie coiuiuoii 
 law, will always rerpiire strict proof; aiul it is sup|)()sc<l 
 that the cases would be very rare in which such a custoui, 
 requiring- proof of so many things to support it, could be 
 successfully established. 
 
 But if a parish consist of several vilJs, and there is a 
 custom proved to levy the rate in certain j)ropoitions, this 
 may be a good custom ; for it may be, or in its origin may 
 have been, reasonable.' 
 
 Another exception from liability to church rates, for the 
 purpose of repairing the mother church, has scarcely at the 
 present day become general ; but prospectively it will be 
 of much importance. For in the case of the new districts 
 made such mider the church building acts, tlie inhabitants 
 of those districts remain liable to the repnir of the mother 
 church for twenty years only after tlu^ consecration of the 
 church or chapel of their district;*^ at the expiration of 
 which time they become exempt. The repairs of such 
 new district churches or chapels arc from the time of con- 
 secration to be borne by the new district by church rates 
 made in the same manner as in the old parishes.'' If any 
 district parish should be again subdivided, and a church 
 or chapel built or a])pro])riated for the use of such new 
 division, the commissioners may, by an instrument under 
 their seal, declare that the liability of the inhabitants of the 
 subdivision to repair the church of the district from which 
 they are thus severed shall cease from such time as they 
 mav specify. In which case they are liable to repair the 
 original mother church for the residue of the twenty years.' 
 
 Another case of exemption from church rate is, where Properly of ilic 
 the property is in the occupation of the crown, directly or ^"f""'"- 
 indirectly, in which case it seems to be considered that it 
 is exempt honoris (jratia. But this privilege of exemption 
 is personal, and not following the lands; so that, when 
 such property passes from the crown, the privilege of ex- 
 emption is at end. Thus it has been decided that the go- 
 vernor of Greenwich Hospital, which was originally part 
 of a royal demesne, not being exempted under the last- 
 mentioned exemption as to inhabitants of a chajielry, was 
 liable to be assessed to the church rate, in respect of his 
 premises in such hospital, in his own beneticial occupation.'' 
 
 A person, who has merely a stall in a market, where he Smllsina 
 sells his goods for a few hours on market days, is not rate- "'=f''«'- 
 able for it to the repairs of the church.' 
 
 t 75»rfo., V, Wikdaxi, Andrews, 32. » 58 Geo. 3. c. 45, s. 71. 
 
 1. Sect. 70. ' Sect. 21, 71. 
 
 k 4 lU^o. 275. ' 2 Roll. Abr. 289 } 2 Lee, 160. 
 
 "OS'
 
 454 
 
 CHURCH RATES. 
 
 Of the authority 
 by whicli the 
 rate may be 
 imposed. 
 
 Attempts to 
 make a legal 
 church rale 
 apainst the 
 wishes of a 
 majority. 
 
 Having thus spoken of the origin, the objects and the 
 subjects of the rate, we come to speak of the authority by 
 which the rate may be imposed, a subject, our knowledge 
 of which is principally derived from very recent cases ; for 
 so long as no regular and systematic ojjposition to church 
 rates was made, it was most improbable that a case should 
 ever have occurred, in which the question, which has now 
 become so important, could have been raised. And when 
 parishioners, by formal votes of vestry, began to refuse to 
 repair their churches, the ecclesiastical courts were in- 
 volved in great difficulty. The traditional knowledge of a 
 century hardly sufficed to meet the emergency : the known 
 precedents applicable to the case being too few to allow a 
 decided course of practice to be based upon them, and 
 being in themselves of doubtful or disputed authority."' 
 
 Probably, the only authority by wliich a church rate can 
 now be imposed is that of the churchwardens, together 
 with a majority of the parishioners duly convoked and as- 
 sembled in vestry for that purpose ; or of the churchwar- 
 dens alone, if the parishioners, having been duly summoned, 
 refuse to meet ; for, in such a case, the churchwardens 
 would of necessity represent the parish." But if the ma- 
 jority of the parishioners assembled should refuse a rate, 
 then whether the churchwardens, together with the mino- 
 rity, can make any legal rate, is at present a doubtful ques- 
 tion ; and as the ajiparent state of the law has only been 
 arrived at, after nmch litigation, and is not even now ac- 
 quiesced in, it would appear necessary to mention in what 
 manner and by wliat authority it has been held that a 
 church rate might be made without the concurrence of the 
 majority. 
 
 The duty of repairing their parish church is, as has been 
 observed, incumbent on the parishioners ; but if, by their 
 ])ower 1o refuse a rate, they have the option of repairing it 
 or not, and tlie churcli may thereby become tlilapidated, 
 it was observed, that that was a wrong without a remedy; 
 an anomaly al^horrent to the law of England. And it was, 
 tlierefore, supposed that, in the case of a refusal by the 
 parisliioners, thc^re must exist some power in other parties 
 to impose the rate, aiul wliicl) j)()\ver might be necessarily 
 set in motion by the courts. This power was supposed to 
 be witli the churchwardens, whom the spiritual courts coidd 
 comj)el to make a church riite ; and who coidd have no 
 defence or excuse for not doing so, sn])i)osing them to have 
 the power. Accordingly, in the parish of Braintrce in 
 
 "' Archdeacon Hale, (Jliurch Rate Precedents. 
 
 n Thnrsfield v. Jones, 1 Vent. 367, and Anon. 1 Mod. 79.
 
 CHUKCIl KATES. 455 
 
 Essex, in the year 1837," when the p.irishioutis, bcni- (hily 
 assembled, had, by a formal vote of the vestry, refused to 
 make any church rate, the churchwardens of their own 
 authority imposed the rate, and took the usual method f(jr 
 enforcing it in the spiritual courts. The j)arty proceeded 
 against moved for a piohibition, and the case was very fully 
 argued and decided in the Court of Queen's Bench; and 
 that decision was fully confirmed in the Exchequer Cham- 
 ber. It was thereby clearly established that the church- 
 wardens had no such power as that contended for. Lord 
 Den man thus disposes of the objection that, in the refusal 
 of the rate by the parishioners, there exists a wrong with- 
 out a remedy. " The history of ancient times," he says, 
 " establishes that the law did apply a remedy, such as was 
 found then, and was expected always to continue, amjjly 
 sufficient to secure the reparation of churches ; the pro- 
 ceeding by interdict, which suspended the performance of 
 ecclesiastical rites in the refractory parish ; or the proceed- 
 ing by excommunication against every parishioner. Either 
 of these penalties was too awful in itself, and in the suHer- 
 ing of those who incurred it, to fail of immediately pro- 
 ducing the desired effect ; or, more probably, the denun- 
 ciation was alone equal to its purpose, and the mischiefs 
 may never have existed in the earliest times. Perhaps, 
 also, the force and efficacy of the remedy may account for 
 the want of parliamentary provision, which could only have 
 rested on the weaker sanctions of temporal power." 
 
 The arguments used in this case, in support of the autho- 
 rity of the churchwardens to make a rate, rested in a great 
 measure upon the authority of a case, decided in the Court 
 of Arches, by Sir W. Wynne;'' by whom it had been ex- 
 pressly held, on an appeal from the Consistory Court of 
 Peterborough, that " the vestry being called together to 
 make a church rate, and refusing to make it, the law was 
 that, if the parishioners will not make the rate, the church- 
 warden has a right to make it himself." But that case, as 
 Dr. Lushington observed, contained many incongruities in 
 the statement of facts, and " teemed w ith eccentricity ;" 
 and its authority was altogether overruled by the judgment 
 of the Court of Queen's Bench. 
 
 But Tindal, C. J., in giving judgment in the Exchequer Obiter diciim. 
 Chamber, in affirmance of the judgment of the Court of ""^ *'"^*'' ^'- •'• 
 Queen's Bench, after remarking on the case of Gandcrn 
 V. Selbi/, in the Court of Arches, and pointing out some 
 
 ° Bnrder v. Vele<i, 12 Ad. & Ell. 233, and Velen v. Ihmter, 12 Ad. .\ Ell. 
 265. 
 
 P Gaudeni v. Selby, 1 Curl. 394.
 
 456 CHUECH HATES. 
 
 distinctions between that case and the one before him, 
 apparently rehed on those distinctions to avoid the express 
 overruling of its authority ; and then added, '' We do not 
 enter into the discussion, whether a rate made by the 
 chvu'chwardens at the parish meeting, where the pa- 
 rishioners were then met, would have been valid or not ; 
 or how far such a case may be analogous to that of the 
 members of a corporation aggregate, who, being assembled 
 together for the purpose of choosing an officer of the cor- 
 poration, the nuijority protest against it, and refuse alto- 
 gether to proceed to any election ; in which case they have 
 been held to throw away their votes, and the minority, 
 who have performed their duty by voting, have been held 
 to represent the whole number. It is obvious, indeed, that 
 there is a wide and substantial difference between the 
 churchwardens alone, or the churchwardens and minority 
 together, making a rate at the meeting of the parishioners, 
 where the refusal takes place ; and the churchwardens, 
 possessing the power of rating the parish by themselves, 
 at any time, however distant. It is unnecessary to discuss 
 this point, as the facts of the present case do not bring it 
 before us : it is sufficient to say, while we give no opinion 
 upon it, we desire to be understood as reserving to our- 
 selves the liberty of forming an opinion, whenever the case 
 shall occur."'' 
 Jlemarks on it. This ohiter dictum of Chief .Justice Tindal appears to 
 have been delivered without that mature consideration, 
 which, if the question had been directly in point, it would 
 iiave received. Whatever might be the law as applicable 
 to church rates in such a case, it seems obvious that the 
 case of a majority protesting against, and refusing to pro- 
 ceed to any election, cannot be likened to that of a ma- 
 jority entertaining the question, discussing it, and delibe- 
 rately rejecting it, by adopting an amendment sidjversive 
 of it. The analogy would only then be com])lete, if the 
 majority, upon proceeding to the election, should elect an 
 improijcr officer; and the minority electing a jn-o|)er one, 
 such ofHcer elected by the minority should be held to be 
 duly elected. 
 
 The consequence however of the above dictum was 
 such as might have been expected, and as was j)erha))s 
 intended. In the same parish the vestry was again duly 
 convened ; a cliiirch I'ati; was i)roposed ; an amendment 
 refusing it was then moved, and, on a show of h;i.nds, 
 declared to be carried ; no poll was denuuulc^d ; and the 
 churchwardens then, together witli the minority, remained 
 
 '1 12 Ad. Si Ell. 309.
 
 CHURCH RATES. 437 
 
 ill the vestry after the majority had left, again proposed 
 the rate, carried it, and signed it at the same meeting. 
 That is to say a church rate was made, as nearly as possi- 
 ble, according to the case supposed by Tindal, C. J. The 
 legality of the rate thus made was argued in the Consistory 
 Court before Dr. Lushiugton, by whom it was decided 
 that the rate was made without any proper authority, and 
 that the supposed analogy between this ])roceeding and 
 corporate elections altogether failed/ 
 
 From this decision, however, an appeal was prosecuted 
 in the Arclies Court, and the judgment of Dr. Lushington 
 was there overruled. From that decision, however, an ap- 
 j^eal is now pending, and it would be useless therefore to 
 give either of these conflicting decisions at any length, 
 while it is undecided which of them may ultimately be 
 declared to be law. It may be observed, however, that if 
 the judgment of Sh* Herbert Jenner, by which that of 
 Dr. Lushington was overruled, be upheld, it will, in effect, 
 render any vote of the parishioners upon this subject a 
 mere form, and altogether futile and inoperative. 
 
 But it has been decided that if a church rate has been 
 voted in vestry duly convened, it is no objection to the 
 rate, that it was subsequently drawn up by the church- 
 wardens only.'' 
 
 That which has been said above of the authority by Cases where 
 which a church rate may be made, relates to the usual and !''^ common 
 
 J I 1 i . -1 '•'^^ courts can 
 
 ordmary church rates at common law; but as to those interfere to 
 church rates which have been mentioned as made in pur- compel tlie 
 suance of certain statutes, the authority by which they ^^^^^^^ °l^l^ 
 may be imposed is, for the most part, pointed out in the 
 statutes themselves ; and the courts of common law hav- 
 ing jurisdiction over the matter by virtue of the statute, 
 can enforce the rate by a mandamus. And it seems that 
 
 r Veleit V. Gosling, 3 Curt. During the controversy on this subject, an 
 elaborate collection of precedents, in the cases of cinirch rates, was compiled by 
 Archdeacon Hale, who says in his preface, " 1 venture to express the opinion 
 that the precedents here published will satisfactorily prove that when the ne- 
 cessity of repairing a church, or of providing the necessary ornaments for divine 
 worship, according to the riles of the I'hurch of England, has been proved by 
 presentment either in the consistory court of the diocese, or before the bishop 
 or archdeacon, or their officials or surrogates, at their visitations, judiciainer 
 sedentes, the ecclesiastical judge in such a case, wiiellicr bishop, archdeacon, 
 official, or surrogate, has power to authorise and command the churchwardens 
 to call a meeting of the parishioners, and at that meeting to make a rale, or 
 cause it to be made, with or without the consent of a majority of the pa- 
 rishioners." Upon a careful perusal, however, of the documents so elaborately 
 collecied, it will be found that they have no intUience upon the case supposed, 
 and that the authorities cited by Sir Wm. Follett in his arguments in IV/.'.v v. 
 Burder, in the Exchequer Chamber, are far stronger, and more important, than 
 any of those adduced in Archdeacon Hale's collection. 
 
 * White V. ikiod, 2 Curt. 485.
 
 458 CHURCH RATES. 
 
 where the money borrowed is to be repaid less often thau 
 annually, yet that the court if applied to will compel the 
 raising and laying by a certain annual sum, so as to pre- 
 vent any violent change in the taxation.* 
 
 Thus, where a statute exempted parishioners from tithe, 
 and enacted that the churchwardens, overseers, and cer- 
 tain of the inhabitants of the parish, were to make a rate 
 in lieu thereof, out of which certain salaries were to be paid, 
 and the residue applied to the repairs of the church, or to 
 such other church purposes as the churchwardens should 
 think fit ; and another statute substituted the vestry for 
 the churchwardens, &:c., and the vestry refused to make a 
 rate, the Court of Queen's Bench compelled them by man- 
 damus." 
 
 And w^here a rate, tax, or assessment, was by act of 
 parliament required to be imposed, which was to be al- 
 lowed by two justices, and there was an appeal given by 
 the act to the quarter sessions against such rate, the court 
 seemed to think that the mere provision for allowance of 
 the rate by two justices, clearly prevented it from being a 
 matter of ecclesiastical cognizance; a mandamus was there- 
 fore granted to the vestry to make a rate.'' 
 When money In all those cases in which, under the provisions of the 
 
 III ' 
 
 lias Dcen Dor- gtatutes, money is to be borrowed on the credit of the 
 
 rowed on credit ' J . • i i i • i r 
 
 of the rates. rates, the vestry havmg sanctioned the borrowmg as betore 
 mentioned, the churchwardens alone have full authority of 
 themselves to make the rate for the purpose of repaying 
 the debt and interest.^ But the money must have been 
 borrowed on the credit of the rates for a legal purpose ; 
 otherwise the churchwardens would not have such autho- 
 rity." 
 
 When an ordinary church rate at common law has been 
 made by the competent authority, the ecclesiastical courts 
 have exclusive power of deciding on the validity of the 
 rate, and on the liability of any particular person to pay 
 it. This power arises necessarily out of the 13 Edw. I. 
 which reserves the question of the repairs of churches 
 altogether for spiritual cognizance." But where a parish 
 had been divided by statute, though no permanent division 
 had been made, and there was a ))rovision in the statute 
 that until such permanent division, the vestries of the two 
 parishes should meet to ascertain and ajipoilion the rates, 
 and the churchwardens of one division, on being applied to 
 
 ' It V. .St. MicbaeCs, Pembroke, 5 Ad. & Ell. 603. 
 
 " Rei;. V. Si. Saviour's, Sonthwnrk, 7 Ad. & Kll. 925. 
 
 * Sec 7 Ad. & Kll. 9J6, 937, n. > See ante. 
 
 « See R. V. Churchwardens of Dursley, ante. » Rogers's E. L. 995.
 
 CHURCH RATES. 459 
 
 by those of the other division, neglected to give notice oi" 
 vestry, the Court of Queen's Bench directed a mandamus 
 to comj)el them to convene a meeting to inquire and agree 
 whether a rate should be made.^' But, except in a peculiar 
 case of this kind, the interposition of the common law 
 courts at such a stage would be unnecessary, for the eccle- 
 siastical court could compel the churchwardens to call a 
 vestry for the purpose of making a rate; and if, when the 
 parishioners had been thus duly summoned, they refused 
 or neglected to meet, the churchwardens, as already men- 
 tioned, would of themselves represent the parish, and be 
 competent to act accordingly. 
 
 The usual mode in which questions on church rates are Rcmeily for 
 brought under the notice of the ecclesiastical courts, is by panies ag- 
 a suit instituted by churchwardens for subtraction of church S"*^ved by ilic 
 rate, (that is, a refusal to pay the sum at which the party 
 has been assessed,) in which suit the defendant may raise 
 any legal objection to the rate as his defence for not pay- 
 ing it ; and the question of legality then comes to be de- 
 cided, but the burthen of proof is with him ; the presump- 
 tion is in favour of the legality of the assessment.'' 
 
 But this, although the most usual, is not the only man- 
 ner in which the question of validity, or of the proper 
 amount of assessment, can be raised in the ecclesiastical 
 court, for a party aggrieved may enter a caveat against the 
 confirmation of the rate ; and where the rate is generally 
 iniequal, that is, w'here a number of persons are aggrieved, 
 this is ])erhaps the better course. The entering of this 
 caveat against the confirmation of the rate is an appeal to 
 the ecclesiastical judge, who will see right done.*^ 
 
 But a rate payer cannot, by an original proceeding in 
 the ecclesiastical court, raise objections to the rate, for the 
 purpose of quashing it altogether. He must make his 
 objections as a defendant, when sued for the rate. His 
 opposition in fact must be passive ; there is no process by 
 which he can actively set the ecclesiastical court in motion. 
 The objections thus raised by him would be either as to objections lo 
 the legality and validity of the rate, a subject, already tlie rate, 
 treated of; or as to the undue amount of his assessment, 
 which would be a question of fact in each particular case ; 
 or as to the omission of other parties out of the rate, an 
 objection which is perhaps included in that last mentioned. 
 
 Several cases have been decided as to the invalidity of a 
 rate, from which certain parties have been omitted. To 
 enter fully into these, would probably only tend to con- 
 
 i' 11. V. St. Margaret's and St. John's, 4 M. & S. 250. 
 
 c See 4 Hagg. 183. "> 3 Phill. 648 ; 4 Hagg. 87.
 
 460 CHURCH RATES. 
 
 fuse; since the general principle deducible from them is 
 clear, viz. that the omission of parties from the rate is not 
 in itself a fatal objection, even if that omission be admitted. 
 But that such a circumstance may be explained in answer, 
 and that it is upon the sufficiency of that explanation that 
 the court will decide as to whether the omission in the 
 particular case is fatal to the rate or not.*" 
 Summary ju.is- But if neither the vahdity of the rate, nor the liability 
 diction for ic- ^,^ ^|-,g person from whom it is demanded, be disputed, and 
 un.ie^i'o/.'^"' the amount does not exceed 10/., the rate subtracted may 
 be recovered in a less troublesome and expensive manner. 
 For when any person rated to church or chapel rate (the 
 validity of which has not been questioned in any ecclesi- 
 astical' court) refuses payment, any justice of the county, 
 city, &c. on com])laint of any churchwarden, may convene 
 by w^arrant such person before two or more justices, who 
 mav examine on oatli into the merits of the complaint, and 
 may order under their hands or seals payment of any sum 
 so due not exceeding 10/. besides costs; to be recovered, 
 if payment is not made, by distress and sale of the goods 
 of the offender, under the warrant of any one of such jus- 
 tices.' 
 
 And it has been held that the complaint under this sta- 
 tute of one churchwarden only, in a ])arish where several 
 churchwardens arc appointed, is sufficient." And it has 
 also been held, that it is sufficient if made by the church- 
 wardens de facto}' 
 Appeal in such Any person aggrieved by any such judgment of the two 
 cases. justices, may appeal to the next general quarter sessions 
 
 of the county wherein the church or chapel is situated; 
 and if the justices, or a majority of them, shall affirm the 
 judgment, it shall be decreed by order of sessions with 
 costs against the appellant, which are to be levied by 
 distress'and sale of the appellant's goods. Provided that 
 in case any such apjxnd is thus made, no distress warrant 
 shall be granted until after its determination. 
 Cases not wiil.in It is further provided that nothing in the statute froni 
 the summary which the above is extracted, shall alter the jurisdiction ot 
 jurisdiction. ecclesiastical courts to hear and determine causes touching 
 the validity of any church or chaj)el rate, or from i)roceed- 
 ing to enforce the ])ayment of any such rate, if exceeding 
 10/. fioiu tli(; party proceeded against, if the validity of 
 
 c See.) I'hili. (i40; 2Adol.33; 1 Curl. 345; 2 IMoorc, P. C. 320. 
 
 f .03 (ico. 3, c. 127, s. 7, and rj4 (ico. 3, c. 68, s. 7. 
 
 « U. V. Shviijl' ,<f TMiianliiie, L. .\ . U. M. C. 1U3 ; mid /.'. v. Feiilon, 1 Gale 
 
 &D. 17. 
 
 I" llfj^, V. .b(, (Jleiiieid't, Iiimiih, 3 1'. & U. 481 .
 
 CHURCH RATES. 4^)1 
 
 such rate, or the liuljility of the person from nlioin it is 
 demanded, be disputed, and the i)arty t^ive notice! thereof 
 to the justices, they shall forbear giving judgment thereon, 
 and the persons demanding the same may proceed to 
 recover tlieir demand by due course of hiw, as before 
 accustomed. Neither is anything in the statute to afiect 
 parliamentary regulations resjjecting church or chai)(,'l 
 rates of any particuhir parishes or districts.' And this sta- 
 tute has been further cx])lained by a subsequent statute,"* 
 which declares that no suit for church rates under the 
 value of 10/. shall, save in the excepted cases already men- 
 tioned, be instituted in any court, or be attempted to be 
 enforced in any other maimer than by this summary juris- 
 diction. The eft'cct of which enactment has been decided 
 to be, that where the validity of the rate or the liabilitv of 
 the party is undisputed, the jurisdiction of the ecclesiastical 
 court is so completely ousted, that prohibition would lie to 
 a suit there for enforcing the rate.' 
 
 And the distress by which the payment of rates may be 'Ihc levy by 
 thus enforced, may be made out of the particular district, distress, 
 for it is enacted that the goods and chattels of any person 
 neglecting to pay any sum legally assessed on him for any 
 church cess for seven days after demand made, may be 
 distrained not only within the parish, district, kc. in which 
 it is made, but also within any other parish within the 
 same county or jurisdiction ; but if sulKcient distress can- 
 not be found within such county, then on oath thereof 
 made before any justice of the peace of any other county 
 in which any of the goods of such person shall be found, 
 (which oath such justice shall certify by endorsing his 
 name on the warrant granted to make such distress,) such 
 ooods shall be liable to such distress and sale in sucli 
 
 1 ■ - 
 
 other county, and may under such warrant and certificate 
 be distrained and sold, as if found within the district or 
 parish in or for which the rate was due.'" 
 
 The justice cannot issue his warrant unless it is matle 
 affirmatively to appear before him, that the amount do(>s 
 not exceed 10/., and that no question is nuide on the rate 
 in the ecclesiastical court. And as soon as it ai)pears that 
 the validity of the rate is disputed, and thr.t the case is not 
 merely one for enforcing payment, the suunnary juiisdic- 
 tion of the magistrates is altogether at an end, ■.nid (lu> 
 ecclesiastical jurisdiction attaches," and this idthough the 
 
 ' o3 Geo. 3, c. 127, s. 7. "^ 5 cS: 6 Will. 4, c. 74. 
 
 ' liichards V. ])nke. 2 Gale & Dav. 493. 
 
 "' 54 Geo. 3, c.170, s. 12. 
 
 " Hickeiis V. Bcdenham, 4 Ad. & Ell. 433.
 
 462 CHURCH RATES. 
 
 question as to the validity of the rate is no longer de- 
 pending." 
 Notice to dis- Several cases have been decided as to what is a suffi- 
 
 pute validity of cient notice to the justices of the party's intention to 
 the rate, which dispute the validity of the rates, and thereby to withdraw 
 rfmmaly furb- ^he matter from their jurisdiction. Thus in one case the 
 diction. party, upon being brought before two justices for not pay- 
 
 ing the rate, declared in their presence, " I will bring an 
 action against any person who ventures to levy the rate : 
 I think I have no right to pay : I have no claim or seat in 
 the church." Words which were considered a sufficient 
 notice of an intention to dispute his liability to pay.P And 
 after such a decision it will be seen that no formal notice 
 of an intention to dispute is necessary, but that, on the 
 contrary, a very slight expression may be construed to be 
 a sufficient notice. But there is another rule established 
 by decisions which appears in some degree to conflict with 
 this last; for it is estabhshed that the justices must hear 
 the complaint, unless they are satisfied that the party has 
 a bona fide intention of disputing the rate ; a matter as to 
 which they could scarcely be satisfied by such vague ex- 
 pressions as that in the above case. Thus where the 
 attorney of the party proceeded against appeared before 
 the magistrates, and stated on his behalf that he disputed 
 the validity of the rate, and that a caveat had been entered 
 for the purpose of trying the question, (which was the fact,) 
 but did not say on what ground the rate was objected to, 
 the magistrates dismissed the case without any examina- 
 tion on oath, the attorney objecting to be sworn. But 
 Lord Tenterden granted a mandamus to compel them to 
 hear the com])laint,— saying, if upon the hearing the party 
 satisfied the justices that there is a bond fide intention to 
 dispute the rate, the ])roce('dings against them will go no 
 further.'' It may b(; ubscrvcd, that this last case was sub- 
 sequent to that before mentioned ; and that it appears from 
 it that the magistrates should in each case be satisfied that 
 there is a bond fide intention to dispute the rate. 
 
 The statute provides that if any action be brought for 
 any thing done in pursuance of it, such action must be 
 brought within tljree calendar months of the act com- 
 mitted.' And where a constable, under a warrant of dis- 
 tress by virtue of llic. statute, broke o|)en the (hjor of and 
 entered a ducUing-liouse, it was held, un(h:r this provision 
 of the statute, that, although he acted illegally, yet, as it 
 was not shown that lie acted with any other intention than 
 
 " li. V. Sillifant, 4 Ad. & Ell. 354. i' H. v. l\lilnTow, 5 M. & S. 248. 
 
 1 2 Barn. & Ad. 648. ' Same act, sect. 12.
 
 CHURCH RATES. 463 
 
 that of executing tlio autliorlty c1e]eo;ated to him Ijy the 
 warrant, no action could be uiaintuined after the expiration 
 of the three calendar months." 
 
 But, besides the jurisdiction of the ecclesiastical courts indirect autho- 
 in the matter of church rates, that of the courts of common ""''y of Court of 
 law in the case of church rates by statute, and of the sum- ^' '*'" "';'*'• 
 
 . I- • i^- 1 • • I • nsry church 
 
 mary jurisdiction ot the justices last mentioned, the ('ourt rates, 
 of Queen's Bench has an indirect authority in the case of 
 ordinary church rates at common law, arising out of their 
 power of prohibition, which is a writ issued by that court 
 when it appears to it by the libel in the outset, or is shown 
 on the face of the proceedings, that an inferior court is 
 entertaining a suit in a matter which is beyond its juris- 
 diction.' The subject of prohibition has been repeatedly Proliibiiion. 
 very fully argued and decided with great learning and 
 ability ; and though the principle has always remained as 
 just stated, yet it will be obvious that it is a principle very 
 difficult of application, since it involves the necessity of 
 first deciding on the extent of the jurisdiction of the infe- 
 rior court in question. The obvious reason for the juris- 
 diction by writ of prohibition is the danger of a different 
 decision of the same rights and even of the same identical 
 interests by different courts ; an impropriety, as Blackstone 
 observes, which no wise government can or ought to en- 
 dure." 
 
 The proper limits of the jurisdiction of the ecclesias- 
 tical courts in matters of church rates, and the point at 
 which the common law courts will interfere, has been 
 recently very fully argued and discussed in the case of 
 Veley v. Burder. It is there said that the spiritual court 
 has power and jurisdiction, by ecclesiastical censures, to 
 compel churchwardens to perform their duty in relation to 
 the repairs of the church ; to compel the parishioners to 
 perform their duty in providing a means to make such 
 repairs ; and after a legal rate has been imposed, to compel 
 each individual to contribute the sum assessed upon him. 
 But if a custom or prescription comes in question, or if the 
 ecclesiastical court takes upon itself the construction of 
 statute law, and decides contrary to the construction which 
 is put upon the statute by the temporal courts; or if the 
 ecclesiastical court, which is bound to declare the common 
 law in the same manner as the common law courts would 
 do, declares it otherwise, then the jurisdiction of the com- 
 mon law courts to interfere by prohibition immediately 
 begins. 
 
 « Theobald v. Crichmore, 1 B. Sc Aid. 227. 
 
 t Lord Denman in Burder v. Veley. " 3 Black. Com. 112, 113.
 
 464 CHURCH RATES. 
 
 Thus, if the ecclesiastical court should entertain a suit 
 for that which, although called a rate upon the libel, is in 
 fact a burthen imposed on the parishioners by persons who 
 had no authority to impose it, upon the principles of the 
 common law, the Court of Queen's Bench is bound to in- 
 terfere. And it may be laid down generally that in every 
 case in which, according to what is said in this chapter, 
 the rate would be considered illegal, the Court of Queen's 
 Bench would be bound to interfere and to prohibit the 
 ecclesiastical court, if that court should be proceeding to 
 deal with and enforce the rate as if it were legal. 
 
 This power of prohibition may therefore in some cases 
 prevent the enforcement of the rate by the spiritual court ; 
 while, on the other hand, the Court of Queen's Bench has 
 no power to enforce a church i-ate at common law ; but 
 the prevention is only in the particular cases and on })ar- 
 ticular grounds; the general enforcement of church rates, 
 when legal, remains a matter of sole and exclusive juris- 
 diction of the spiritual courts.'' 
 
 " For the preceding observations see generally the judgment of Sir N. Tindal 
 in the Exchequer Chamber in Veley v. Burder.
 
 ( 4G5 ) 
 
 BOOK V. 
 
 OF BENEFICES AND THINGS INCIDENT 
 
 THERETO. 
 
 CHAPTER I. 
 
 OF THE MANNER IN WHICH COMPLETE POSSESSION 
 OF A BENEFICE IS TO BE OBTAINED. 
 
 Section 1. 
 
 Of Advowsons and Presentations. 
 
 Op the law respecting advowsons and presentations gene- Advowsons 
 rally there is much which appears foreign to the purposes with reference 
 of oin- present work, and which might seem more proj)er ^vhosc^favour 
 to be spoken of in a treatise on incorporeal hereditaments, the rinluiscx- 
 An advowson has been called a reversionary right to be ercised. 
 exercised in favour of another person, which other person 
 must be an ecclesiastic. In the following pages, therefore, 
 it will be endeavoured, so far as possible, to consider this 
 subject only as it afiects the clergyman or the party in 
 whose favour the right is exercised. For the many ques- 
 tions that may occur or have occurred between parties 
 claiming to exercise such right, we must refer generally to 
 those works that have treated on incorporeal heredita- 
 ments. 
 
 In the early ages of Christianity the nomination to all Ori>:in of ad- 
 ecclesiastical "benefices belonged to the Church. When the vo«so..». 
 piety of some lords induced them to build churciios upon 
 their estates, and to endow them with glebe lands, or to ap- . 
 propriate the tithes of neighbouring lands to their support, J 
 the bishops, from a desire of encouraging such pious under- / 
 takings,j2ermittetUhose lords to aj)poiiit whutcver ck'i<:y- / 
 man they pleased to officiate in such churches, and receive 
 the emoluments annexed to them, reserving however a 
 power to themselves to judge of the qualifications of those
 
 466 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Description of 
 advowson. 
 
 Advflcalio me- 
 dieliitis eccle- 
 ii<E. 
 
 Riuhts of pre- 
 sentation and 
 of noinination 
 distinct. 
 
 Rigiils of trus- 
 tees and mort- 
 gagees. 
 
 Advowsons 
 appendant. 
 
 who were thus nominated.'' This practice, which was ori- 
 ginally a mere indulgence, became in process of time a 
 right ; and all those who had either founded or endowed 
 a church claimed and exercised the exclusive privilege of 
 presenting a clerk to the bishop whenever the church 
 became vacant.'' 
 
 An advowson is therefore a right of presentation to a 
 church or ecclesiastical benefice ; the word being derived 
 from advocation which signifies in clientelam recipere ; for 
 in former times the person to whom this right belonged 
 was called advocatus ecclesics, because he was bound to 
 defend and protect both the rights of the church and the 
 incumbent clerks from oppression and violence ; hence 
 the right of presentation acquired the name of advowson, 
 and the person possessed of this right was called the patron 
 of the church.'^ 
 
 Lord Coke says there may be several patrons and two 
 several incumbents in one church ; the one of the one 
 moiety, and the other of the other moiety ; and one part, 
 as well of the church as of tlie town, allotted to the one, 
 and the other part thereof to the other, which is called 
 advocatio medietatis ecclesicc.'^ 
 
 The right of presentation and that of nomination to a 
 church are sometimes confounded ; but they are distinct 
 things. Presentation is the ofl'ering a clerk to the bishop, 
 nomination is the offering a clerk to the patron. These 
 rights may exist in difterent persons at the same time. 
 Thus a person seised of an advowson may grant to A. and 
 his heirs that whenever the churcli becomes vacant he will 
 present to the bishop such person as A. or his heirs shall 
 nominate. This is a good grant, and the person to wiiom 
 the ritrh t of nominat ion is thus granted, is, to most pur- 
 poses, consiclcrcd as patron of the church." 
 
 Where the legal estate in an advowson is vested in 
 trustees, they have the right of presentation in them ; but 
 the right of nomination is m the cestui que trust. So in 
 
 the case of a nibrtfiairec oT an 
 
 advowson, the mortgagee 
 
 has the right of presentation, but the mortg agor h as the 
 right of nomination. " ' 
 
 Advowsons are cither appendant or in gross. The right 
 of prcsontation, which was originally allowcMl to the jier- 
 sons who built or endowed a church, became by degrees 
 annexed to the manor on which it was erected, for the 
 endowment was supposed to be parcel of the manor, and 
 held olit ; therefore it was natural that the right ofprc- 
 
 1 Insl. 17 1), 1 If) lj; Wats. (il. 
 1 ioHt. 17 b. 'I Ibid 
 
 ^ CniiM;'s Di};. tit. xxi. c. 1. 
 <■ I'jowd. 529 ; Wats. 90.
 
 OF ADVOWSOXS AND PRESENTATIONS. 4G7 
 
 sentation should pai5s with (he nuinois, from whence the 
 advowson was said to be apjiendant to the manor, bciiifr 
 so closely annexed to it that it passed as incident thereto 
 by a grant of the manor. 
 
 Whore the property of an advowson has been once se- logics*, 
 parated from the manor to which it was appendant by any 
 legal conveyance, it is then called an advowson in gross, 
 and never can be aj)pendant again, except in a few parti- 
 cular cases, which will be mentioned hereafter/ 
 
 Advowsons are also presentativc, collutive, and donative. Prest-niaiivc. 
 An advowson presentative is that which has been already 
 described, namely, where the patron has a right of presen- 
 tation to the bishop or ordinary, and also to demand of 
 him to in stitute his clerk, if duly qualified.'^ 
 
 An advowson collative is where the bishop and patron Cullaiive. 
 are one and the same person. In which case, as the bishop 
 cannot present to himself, he does, by the one act of colla- 
 tion or conferring the benefice, the whole that is done in 
 common cases by both presentation and institution. 
 
 An advowson donative is where the king, or any subject Advowsons do- 
 by his license, founds a church or chapel, and ordains that "^"^^• 
 it shall be merely in the gift or disposal of the patron, sub- 
 ject to his visitation only, not to that of the ordinary, and 
 vested absolutely in the clerk, by the patron's deed of do- 
 nation, without presentation, institution or induction.'' 
 
 And this last is said to have been anciently the only 
 way of conferring ecclesiastical benefices in England ; the 
 method of institution by the bishop not being estal)lished 
 more early than the time of Archbishop Beckett, in the 
 reign of Henry II. And therefore, though Pope Alex- 
 ander III., in a letter to Beckett, severely inveighs against 
 the prava consuetudo, as he calls it, of investiture conferred 
 by the patron only, this however shows what was then the 
 common usage. Others contend that the claim of the 
 bishops to institution is as old as the first planting of Chris- 
 tianity in this island ; and in proof of it they allege a letter 
 from the English nobility to the ])ope, in the reign of 
 Henry III., recorded by Matthew Paris, which speaks of 
 presentation to the bishop as a thing immemorial. The 
 truth seems to be, that, where the benefice was ttt be con- 
 ferred on a mere layman, he was first presented to the 
 bishop, in order to receive ordination, who was at liberty 
 to examine and refuse him : but where the clerk was 
 already in orders, the living was usually vested in him by 
 the sole donation of the patron ; till about the middle of 
 the twelfth century, when the pope and his bishops endca- 
 
 f Cruise's Dig. tit. xxi. c. 1. ? 2 Black. Com. 22. " Ibid. 
 
 U H 2
 
 468 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 voured to introduce a kind of feodal dominion over eccle- 
 siastical benefices, and in consequence of that began to 
 claim and exercise the right of institution universally, as a 
 species of spiritual investiture.' 
 May become But advowsons donative are not regarded with any 
 
 presentable. favour by the law, which loves uniformity ; and therefore, 
 if the patron of an advowson donative once presents to the 
 ordinary, and allows of the admission and institution of his 
 clerk thereon, he thereby renders his church always pre- 
 sentable, and it will never afterwards be donative. But if 
 a stranger, who has no title, presents a clerk to the ordi- 
 nary, who is instituted and inducted, this will not render 
 the donative presentable. •" 
 
 If a donative should receive augmentation from Queen 
 Anne's Bounty, which it cannot do without the consent of 
 the patron under his hand and seal, it becomes liable to 
 lapse, and subject to the visitation and jurisdiction of the 
 ordinary as a presentative living.^ 
 How advowsons An advowson appendant may be aliened by any kind of 
 appendant or in conveyance that transfers the manor to which it is appen- 
 
 gross may be (Jant. An advowson in pross may also be aliened ; but 
 
 aliened. . . i i i ■ i j i • • i 
 
 bemg an nicorporeal hereditament, and not lymg ui manual 
 
 occupation, it does not pass by livery, but must always 
 have been granted by deed ; and although the law does not 
 consider the exercise of the right of presentation as of any 
 pecuniary value, or a thing for which a price or compensa- 
 tion ought to be accepted, yet the general right to present 
 is considered as valuable, and an object of sale, which may 
 be conveyed for a pecuniary or other good consideration.'" 
 Particularestate Where a person has only a paiticular estate in a manor 
 in advowson to which an advowson is appendant, he can of course only 
 appendant. .^jj^^^ ^j^^ ^dvowson for SO long as his estate shall continue. 
 A tenant in tail of a manor to which an advowson was 
 appendant, granted the next avoiilance of the advowson, 
 and died : the issue entered on the manor, and the grant 
 was held to be void." 
 
 And so, in another case, tenant in tail and his son joined 
 in a grant of the next avoidance of a church : the tenant 
 in tail died. It was adjudged that the grant was void 
 against the son and heir that joined in the grant, because 
 he had notliing in the advowson at the time of the grant, 
 neither in possession nor right, nor in actual possibility." 
 Advowson in It is said by Lord Coke, that an advowson is assets to 
 
 yross is assets satisfy a Warranty ; but that an advowson in gross is not 
 
 for payment of 
 
 •''-•''i^- ' 2 I!Inck. Com. '23. •> Ibid. ; Wats. 170; 1 Inst. 344 d. 
 
 ' I (ifo. 1, s. 2, c. 10. "' Cvispt's case, Cro. I';iiz. 164 ; Ciuise, ibid. 
 
 " li„irlt$ V. n'aU.rr, 1 itoli. A b. 34.?. " WitVel's case, Hob. 45.
 
 OF ADVOWSONS AND PRESENTATIONS. 469 
 
 extendible upon a writ of elegit, because no annual value 
 can be set upon it. It has, however, been detorniiiicd that 
 an advowson in gross, whether the proprietor has a legal 
 or an equitable interest therein, is assets for payment of 
 debts, and will be directed to be sold by the Court of 
 Chancery for that purpose, 
 
 John Tong being indebted to several persons, by judg- 
 ment, bond and simple contract, in great sums of money, 
 died intestate, seised in fee, among other things, of the 
 trust of an advowson in gross. Upon a bill filed by the 
 creditors of John Tong, praying a sale of his real estate for 
 the payment of his debts, a question arose whether this 
 advowson was assets. Lord King decreed that it was, and 
 should be sold for the payment of Tong's debts. On an 
 appeal from this decree to the House of Lords, it was in- 
 sisted by the appellants that this advowson was not assets 
 at law, or liable to the demands of any of the creditors of 
 Tong ; because at law no inheritance was liable to any exe- 
 cution that was not capable of raising some profits towards 
 satisfaction of the debt, which an advowson was not. On 
 the other side it was contended that, at common law, an 
 advowson in fee was an hereditament descendible to the 
 heir, valuable in itself, and saleable, and even capable, if 
 necessary, of having an annual value put upon it, and was 
 therefore legal assets in the hands of the heir. The decree 
 was affirmed, with the concurrence of all the judges.P 
 
 An advowson may not only be alienated for ever, or for Partial estates 
 life or for years, but it may be divided, and a lesser estate '» advowsons. 
 or I'ight in it may 'be' gfanted"] fof an advowson being a Rii:htofprcsea- 
 right'to present or appoint whenever the church is vacant, 'aiion- 
 that right riiay be'^granted for one turn, or for as many 
 turns as the grantor may choose ; after which it shall revert 
 to him again. The right to the next presentation there- 
 fore is often found separated from the advowson, but it is 
 nevertheless a part of the latter estate, although tempo- 
 rarily severed from it, and existing in a ditierent party.'' 
 If the crown acquires a right to present to a church, that Where ilie 
 is not consideredas^aie'_nextpivs.ntation,so that the right "';;;",„=' j';!^^.", 
 of a grantee oTThe next presentation should be tluMvl)y 
 prejudiced, but such grantee is to have the next presenta- 
 tion, upon the avoidance by the presentee of the crown. 
 Sir K.Clayton being seised in fee of an advowson, the 
 church being then full, by a deed poll granted to -NL Ken- 
 rick, his executors. Sec, the next presentation, donation, 
 and free disposition of the said church, as fully, freely and 
 
 p Tong v.Robinso'i, 3 Vin.Abr. 144; 1 Brown's I'. C. 114. 
 n Crhpe's case, Cro. Eliz. 164 ; Cruise, ibid.
 
 470 
 
 ;J1 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Who may exer- 
 cise ihe light of 
 presentalion. 
 
 When the right 
 devolves to the 
 executor or heir. 
 
 Distinction 
 where the ad- 
 vowson is pre- 
 sentaiive or 
 donative. 
 
 entirely, as the said Sir K. Clayton or his heirs. The 
 person who was then incumbent was made Bishop of llo- 
 chester, whereby the church became vacant ; and the king, 
 by reason of his royal prerogative, acquired a right to pre- 
 sent a fit person to the said church. It was contended 
 that, in the event that had happened, this grant became 
 void ; that in the case of Woodley v. Episc. Exeter, it was 
 held the grantee of the next avoidance must have the next 
 or none at all, and must lose his right by the intervention 
 of the prerogative, on the promotion of the incumbent to a 
 bishopric. On the other side it was argued that the autho- 
 rity of the case of Woodley v. Episc. Exeter was expressly 
 contradicted by the note in the margin of Dyer, 228 b, 
 which was apparently the same case, where it was stated 
 to have been resolved by the court, that the grantee should 
 have the next avoidance after the prerogative presentation, 
 because that was the act of the law, and the prerogative of 
 the king, which excluded him from the first presentation, 
 injured no one. The Court of Common Pleas held that the 
 grantee of the next presentation should present on the next 
 vacancy occasioned by the death or resignation of the 
 king's presentee. This judgment was affirmed by the Court 
 of King's Bench, and afterwards by the House of Lords, 
 W'ith the assent of the judges."" 
 
 With respect to the persons capable of exercising the 
 right of presentation, all those who are seised in fee sim- 
 ple, fee tail, or for life, or possessed of a term for years, of 
 a manor to which an advowson is appendant, or of an 
 advowson in gross, may present to the church. And 
 where a person is entitled to an advowson in right of his 
 wife, he must present in his own name and that of his wife, 
 and not in his own name only, in right of his wife. 
 
 Where a person is seised of an advowson, and the church 
 becomes vacant in his lifetime, if he dies before he has })re- 
 sentcd, the right of ])resentation devolves to his executors 
 or administrators, because it is considered as chattel real. 
 But if the incumbent of a chinch be also seised in fee of 
 the advowson of the same church, and dies, the right to 
 present will dovf)lve to his heir, and not to his executor; 
 for the avoidance and descent to the heir liappeaiMg at the 
 same instant, the title of the heir shall be preferred, as the 
 most ancient and worthy. 
 
 If n jx'ison seised of an advowson dies after avoidance, 
 and before: he has prestnited, in some cases, as stated above, 
 the riglit devolves upon the executor ; in others upon the 
 
 ' Vide It. V. /•,'/.. L,>„<lo,i, 1 Show. K. 441 ; (i V 
 H Jiio. r. ('. 71 , 2 II lii.Kh. f{. ;r2f. 
 
 R. 439,778} Cro.Jac.691
 
 / 
 
 OF ADVOWSONS AND PUESENTATIONS. 171 
 
 heir or other person entitled to the udvowson. Upon this 
 subject a distinction must be observed where the udvow- 
 son is presentative or donative, and where it is in lay or 
 ecclesiastical hands. Wliere the advowson, either in gross 
 or appendant, is presentative and in lay hands, if the })er- 
 son seised of the advowson dies after avoidance, and before 
 presentation, the right devolves upon his executor. But 
 if the advowson be donative, the right will devolve upon 
 the heir. 
 
 Lord Coke says, a guardian in socage of an infant seised An infant of 
 of a manor, to which an advowson is apj)endant, shall not any age may 
 present to the church, because he can take nothing for the present, 
 presentation for which he may account to the heir ; and 
 therefore the heir shall in that case present, of what age 
 soever he be. This doctrine is now fully established ; and 
 in the following case it was determined, that an infant 
 who was not a year old might nominate or present to a 
 clmrch . 
 
 Cyrill Arthington conveyed an advowson to trustees, Case of right 
 upon trust to present such son of a particular person as °^ nomination 
 should be capable of taking the same, when the church ^^ infant, and 
 became void ; and if that person had no son qualilied to allowed, 
 take the living at that time, then in trust to present such 
 person as the grantor, his heirs or assigns, should appoint; 
 and in default of such nomination by the grantor or his 
 assigns, that the trustees should present a person of their 
 own choosincr. The grantor died, leavinij; his son and heir 
 an infant of six months' old. The living became vacant; 
 and the person named in the deed having then no son 
 capable of taking the living, the guardian of the son took 
 him in his arms, and guided his pen in making his mark ; 
 and made him seal a writing, whereby one Hitch was 
 nominated and appointed to the trustees, in order to be 
 presented by them to the living. The trustees supposing 
 the plaintiff; as an infant, unable to make such an aj)- 
 pointment, refused to present Mr. Hitch ; upon which the 
 infant brought his bill against the trustees, to have them 
 execute their trust in presenting his nominee. 
 
 Lord King said,— An infant of one or two vears old may 
 present at law ; then why may they not nominate .' Does 
 the putting a mark and seal to a nomination require more 
 discretion than to a presentation? The guardian is stij)- 
 posed to find a fit person, and the bishop to confirm his 
 choice; and if this is permitted in law, why shotdd a comt 
 of equity act otherwise in equitable estates. Decree for 
 the plaintiff. 
 
 Upon this case it has been observed that, althougli Hie
 
 472 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 decision removes all doubts as to the legal right of an infant 
 of the most tender age to present, still it remains to be seen 
 whether the want of discretion would not induce a court of 
 equity to control the exercise, where a presentation was 
 obtained from an infant without the concurrence of the 
 guardian. But a court of equity would rather look to the 
 interests and advantages of the infant than to the right of 
 the guardian, and would be guided by that principle if it 
 interfered to control the exercise of the right, whether the 
 presentation had been obtained by the guardian or any 
 other. 
 Joint tenants. Where an advowson is held in joint tenancy, all the 
 
 joint tenants must join in making the presentation, as in 
 the case of an advowson vested in trustees and their heirs. 
 Coparceners. And this is also the case with coparceners, to whom an 
 
 advowson has descended ; but with them there is this fur- 
 ther rule, that, if they cannot agree to present jointly, the 
 eldest sister shall have the first turn, the second the next. 
 May assign their and SO of the rest according to their seniority. And this 
 t""""' privilege extends not only to the heirs, but also to the 
 
 ___ ^ assignees of each coparcener, whether they acquire a por- 
 
 Utx^,^ •^^ /^^^fibn of tho estate by conveyance or by the act of law ; as 
 /^t^y,/^/"^ tenant by the courtesy, who shall have the same privilege 
 c^ccc^ t//j q£- pj-egenting in turn, as his wife would have had if she 
 J(j^.^Tit^ jjg^j ijeen alive. And this was so decided in the following 
 
 /^c*S*^ case. 
 
 A ^^(f:l^ The estate of an advowson descended to two daughters 
 
 /as coparceners ; the church became vacant twice in their 
 time, and both joined in presentation ; the eldest married, 
 settled her estate in the common way, and died. A va- 
 cancy liappcning, the husband of the eldest, entitled to her 
 estate as tenant by the curtesy, or under the settlement, 
 claimed to present. The question was, whether the alter- 
 nate turn of presentation among coparceners continued to 
 the grantee : that is, whether the persons to whom it was 
 conveyed were to be considered as enjoying the same pri- 
 vileges of presenting in turn, as the sisters and parceners, 
 if they had their own estate."^ Mr. Baron Clarke was 
 clearly of opinion, u])on th(^ authority of tlu> ])assage in 2 
 Inst. 3G5, that the husband of the eldest sister was entitled 
 to the presentation. 
 
 Where an advowson descends to coparceners, though 
 one present twice, and thereby usmps upon her coheiress, 
 yet she that was negligent shall not be Inirred, but another 
 time shall iiavc; her turn to prest;nt when it falls.^ And 
 Ijord Coke, in iiis comment on this statute, says, " If a 
 f UaUer v. £/>ij. I'.xelcr, 1 Vcs. 310. ' Stat. Wcstm. 2, c. 5.
 
 OF ADVOWSONS AND PRESENTATIONS. 47;j 
 
 stranger usurps in the turn of any of them, this does not 
 put her sister out of possession, in respect of the ])rivity of 
 estate, no more than if one coparcener take the wliole 
 profits."' 
 
 There were four coparceners of an advowson. The 
 first daughter ]u-esented to the first avoidance ; tlie second 
 daughter to the second; on a third avoidance, a stranger 
 usurped on the third daughter, and presented : tl)e pre- 
 sentee was instituted and inducted, and died. The fourth 
 shall not lose her turn by the third daughter's suffering a 
 stranger to present by usurpation, but shall present to that 
 avoidance." 
 
 Where a person mortgages an advowson, the legal right Morij^agorof 
 to present is transferred to the mortgagee ; yet he cannot aJ**'"'"'" "wy 
 present a clerk of his own choice, whether the advowson 
 be appendant or in gross. For since the presentation is 
 gratuitous, and the mortgagee cannot account for any be- 
 nefit from it, a court of equity will compel him to j)resent 
 the nominee of the mortgagor. 
 
 A petition was presented on behalf of a mortgagor, that 
 the mortgagee of a naked advowson might accept of his 
 nominee, and present him upon an avoidance, the incum- 
 bent being dead. It was insisted for the mortgagee, that 
 as there was a large arrear of interest, he ought to present, 
 if any advantage accrued from it ; and the case in Peer 
 Williams was cited, where the plaintiff's father, being 
 possessed of a ninety-nine years' term of the advowson of 
 Eckington, made a mortgage thereof to the defendant, and 
 in the mortgage deed was a covenant that on every avoitl- 
 ance of the church the mortgagee should present; in which 
 the court gave no opinion, but seemed to incline that the 
 mortgagee had a right to present." Lord llardwicke was 
 of opinion that the mortgagor ought to nominate ; and that 
 it was not presumed any pecuniary advantage was made 
 of a presentation. He observed that these were imlilferent 
 securities, but the mortgagee should have considered it 
 before he lent his money: and, instead of bringing a bill 
 of foreclosure, as he had done in this case, shouKl have 
 prayed a sale of the advowson. The lu^xt day lie men- 
 tioned that he was not clear as to this point ; ami that he 
 had looked into the case of Gardiner v. (Griffiths, accord- 
 ing to the statement of it in the House of Lords, where the 
 decree of Lord King was affirmed, and said that was a 
 
 « 2 Inst. 365. ., ., „ 
 
 -' Com. Dig. ibid. ; Barker v. Lomux, Willcs, U. bo9 ; Hro. Ab. Ul. Quar, 
 
 impedit, 
 
 " Gardiner v. Griffithi, 2 Veer Williaius, 404.
 
 474 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 mixed case ; and that he doubted himself whether a cove- 
 nant, that the mortgagee should present, as was the case 
 there, was not void ; being a stipulation for something 
 more than the principal and interest ; and the mortgagee 
 could not account for the presentation. The question was 
 adjourned for farther consideration to the next day of 
 petitions, when the mortgagee, not being able to find any- 
 precedent in his favour, gave up the point of presenting ; 
 and an order was made that the mortgagor should be at 
 liberty to present, and the mortgagee was obliged to accept 
 of the mortgagor's nominee.^ 
 
 And so, where the legal estate in an advowson is vested 
 in trustees, they have the legal office of presenting the clerk; 
 but the cestui que trust, or beneficial owner, has the right of 
 nominating to the vacant benefice. 
 
 And these two last cases of trustees and mortgagees ex- 
 emplify the difference and distinction between the right of 
 Presentation presentation and nomination. These terms are often used 
 and nomination, as synonymous ; for where the legal and beneficial estates 
 are not separated, but exist in the same person, as in ordi- 
 nary cases, only one act is done, which is correctly termed 
 presentation; but when the legal and beneficial estates 
 exist in different parties, as in the above cases, each has 
 his office to perform; two acts are necessary; and one 
 party must nominate, in order that the other may present. 
 Bankrupt may It has been held, that if a patron of a church is a bank- 
 present upon an rupt, and the church becomes void before the advowson is 
 fo7e'1hra(kow- sol^^ ""^^'' the commission, the bankrupt shall present, or 
 son is sold. nominate to the church, and the assignees of the bankrupt 
 are authorised to execute all powers which the bankrupt 
 could legally execute for his own benefit, except the right 
 of nomination to any ecclesiastical benefice. As the void 
 turn cannot be sold, it is not assets for the benefit of the 
 creditors.^ 
 Persons who With respect to the persons who are disabled from pre- 
 
 maynoicxer- senting to a church, none but natural born subjects can 
 c.se the ntjht. ^.^crcise this right. Therefore, if an alien purchases an 
 ^''^"^* advowson, and the church becomes vacant, the crown sliall 
 
 have the presentation." 
 Outlaws. Where a person seised of an advowson is outlawed, and 
 
 the church becomes vacant while the outlawry is in force, 
 such person is disabled from presenting, and the avoidance 
 is forfeited to the crown. ** 
 Lunatics. A lunatic cannot present to a church, nor can his com- 
 
 mittee. But the Lord Chancellor, by virtue of the general 
 
 » Marheiiuc v. Rohimon, 3 Atk, 559. 
 
 ' Wats. 106. ' Ibid. " Cruise's Dig. lit. xxi. c. 2.
 
 OF ADVOWSONS AND PRESENTATIONS. 476 
 
 authority delegated to him l)y tlie crown, presents to all 
 livings whereof lunatics are patrons, whatever the value of 
 them may be : generally, however, giving it to one of the 
 family. Doctor Woodeson says this right was first asserted 
 by Lord Talbot, whose example has been followed by all 
 his successors.*^ 
 
 By the statute 1 W. &: M. sess. 1, c. 26, every person Uoman Caiho- 
 who shall refuse or neglect to subscribe the declaration ''"• 
 mentioned in an act of that parliament, intituled " An Act 
 for the better securing the Government by disarming Pa- 
 pists," shall be disabled to make any presentation to a 
 benefice. And the chancellor and scholars of the univer- 
 sities of Oxford and Cambridge shall have such presenta- 
 tion. 
 
 The presentation to the livings situated south of the 
 Trent belong to Oxford ; and those situated north of that 
 river belong to Cambridge.'^ 
 
 By the third section of this statute, the trustees of Trustees of Uo- 
 Roman Catholics are disabled from presenting to any '"^" <^'^'''"''"- 
 benefice. And by the fourth section, such trustees, by 
 presenting without giving notice of the avoidance to the 
 vice-chancellor of the university, to whom the ])resentation 
 shall belong, within three months after the avoidance, be- 
 come liable to a penalty of 500^. 
 
 By the statute 12 Ann. st. 2, c. 14, s. 1, Roman Catho- 
 hcs are disabled from presenting to any benefice, and 
 every such presentation is declared void to all intents 
 and purposes. By the statute 11 Geo. II. c. 17, s. 6, every 
 grant made of any advowson or right of presentation, col- 
 lation, nomination, or donation to any benefice, by any 
 person professing the Catholic religion, or by any mort- 
 gagee or trustee of such person, shall be null and void, 
 unless it be for valuable consideration to a Protestant pur- 
 chaser. 
 
 The above restrictions on the rights of Roman Catholic Restriction* on 
 subjects remain in full force, notwithstanding the act com- ^^^'f-.^^oiia 
 monly called the Cathohc Emancipation Act; for it ex- still in force, 
 pressly provided, that nothing therein contained shall 
 extend to enable any person, otherwise than he was then 
 by law enabled, to exercise any right of presentation to 
 any ecclesiastical benefice whatsoever, or to repeal, vary, 
 or alter in any manner the laws then in force in respect to 
 the right of presentation to any ecclesiastical benetice." 
 
 But where a Roman Catholic and a Protestant are co- 
 pations of an advowson, the right of presentation is in 
 the latter alone ; for the statute which gave the right of 
 f Wood. Lect. vol. i. 409. '^ Cruise, ibid. ' 10 Geo. 4, c. 7. s. 16.
 
 476 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 presentation to the universities, only gave them the povi^er 
 to present in a case where by the recusancy of one or all 
 of the patrons, there would be no one capable of exercising 
 the right, when the whole pov^^er of presentation would 
 devolve to them. But the case of transfer, where some or 
 one only of the co-patrons are disabled, is either a casits 
 omissus, or was intended to have been excluded by the 
 legislature.* 
 
 Section 2. 
 
 Of Presentation, Admission and Institution. 
 
 The nature of an advowson being explained to be a 
 right of presentation, we next come to inquire in what 
 manner this right is to be exercised ; for four things are 
 necessary, before the party in whose favour this right has 
 been exercised can become a complete incumbent : these 
 are, 1. Presentation. 2. Admission. 3. Institution. 4. In- 
 duction. 
 Presentation, 1- Presentation is the offering a clerk b^^ihepatron or 
 
 what it is. proprietor of an advowson to the ordmary ; wmcli raignt 
 
 Torm'erly have* been done either by wo"rd or writing, but, 
 since the Statute of Frauds, ? it is necessary that all pre- 
 sentations be in writing, and a presentation in writing is a 
 kind of letter, not a deed, from the patron to the bishop 
 of the diocese in which the benefice is situated, requesting 
 him to admit to the church the jjcrson presented. 
 May be revoked A i)resentation, though duly made in all respects, may 
 or varied. be revoked or varied. This was always held with resjiect 
 
 to the king, but was doubted as to lay patrons. It ap- 
 pears, however, to be now fully settled, thtit a lay patron 
 may revoke his presentation at any time. Blackstone has 
 observed, that a presentation was certainly revocable by 
 the principles of the common law, because it vested no 
 right in any one, not even in the clerk presented ; for if 
 the clerk had a light, the law would give him a remedy to 
 recover it when invaded. There was, however, no species 
 of common law action open or competent to a clerk to re- 
 cover a presentation, when obstructed by the j)atron only. 
 Confers no in- And it was said, (irijumdo, in the House of Lords, that a 
 terest. presentation conferred no interest whatever.'' 
 
 Person pre- No pcrson is Capable of being admitted to any parsonage, 
 
 scnted must be vicarage, benefice, or other ecclesiastical dignity, promo- 
 
 in [)rie.sl's 
 
 orders. f lldwurtis v. V,\sh,<f, of Eicter, 5 I'.ini,'. N. S. GUC. « 29 ('.\\.2,c. 3,s.4. 
 
 •' Roffcrsv. IloUed, 2 lilacl(. K. 1040.; 1 B, P.C. 117; Cruise, lit. xxi.c.2.
 
 OF PRESENTATION, ApMIS^OI^ AND I^tSTITUTlON 17 7 
 
 tion or proferment, before suclr time as he sliall be ordained 
 priest in the form and manner prescribed in the Book of/ 
 Common Prayer. And any man j)rcsumin[^ to be admitted, 
 not having such ordination, is to forfeit lOU/.' / . 
 
 The consequence of this would be, that no person can ^ 
 be properly presented, until he is of the age of twenty-four 
 years at the least, as, before that age, he is incapable of 
 being ordained priest. 
 
 There does not seem, however, to be any reason why a At whaiiimc 
 deacon, or even a layman, may not be presented, provided ''•'* '* "^"^ 
 he be in priest's orders at the time of admission, or, as it ^"■^' 
 has been said, at the time of institution. •" This proposition 
 however has been controverted;' but the cases relied upon 
 to disprove it are not cases of presentations to livings, but 
 to the mastership of a school or lectureshij)."' There 
 exists however no doubt, but that the party must be in 
 priest's orders before the time of institution. 
 
 No person can present himself, yet if he offer himself to A person not to 
 the ordinary, and pray to be admitted, such admission pfcsent himself, 
 may be good. It has been said, that the regular way is 
 to make over the right to some other, before avoidance." 
 
 Whether an alien, being a priest, can be presented, is a Aliens, 
 matter on which the authorities do not seem to agree. 
 Lord Coke expressly says, " upon consideration had of the 
 statutes 3 Rich. II., 7 Hen. IV., 1 Hen. V., 6 Hen. IV., 
 4 Hen. VI., if an alien, or stranger born, be presented 
 to a benefice, the bishop ought not to admit him, but may 
 lawfully refuse him, which we have added, for that the 
 abridgments or late impressions may deceive you." 
 
 When the party has been thus presented to the bishop, Kxamination of 
 the bishop is to judge of his qualification, and whether he j',;','!;/;*;;;;!,';^ 
 is a fit person to be instituted. By the ancient laws of 
 the church, and particularly of the Church of England, the 
 four things in which the bishop was to have full satisfac- 
 tion in order to institution, were, 1. Age. 2. Learning. 
 3. Behaviour. 4. Orders.P 
 
 For this purpose, therefore, the party presented may hi; 
 examined by the bishop. And though it is not usual, m 
 ordinary cases, for the bishop to insist on examining a 
 clergyman who is already in orders, yet the power undoubt- 
 edly' exists, and there may be very many cases in which the 
 exercise of it would be proper. 
 
 i 14 Car. 2, c. 4. ^ i Bum's E. L. 145. ' Rogers's E. L. 454. 
 
 ™ Vide Attorney-General v. U'lieclijfe, 1 Ves. sen. 79; IL v. Archbuh.'p oj 
 Canterhurit, 15 East, 117. 
 
 n Gib. Cod. 826 ; Rogers's E. L. 455. 
 
 4 Inst. 338 ; but see 17 Vin. Abr. 330 i Burn's E. L. 144. 
 
 P Rogers's E L. 455. 
 
 fiiP^ •^-'
 
 478 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 As to the second of the quahfications before-mentioned, 
 that of learning, the bishop is to be the proper judge,- so 
 that " not sufficient," or not capable in learning to have 
 the church, is a good plea on the part of the bishop, with- 
 out setting forth in what kinds of learning, or in what 
 degrees, the party presented to him was defective. For, 
 by the statute ArticuU Cleri,"^ which is a statute not merely 
 enacting, but declaratory of the common law, it appears 
 that, of the ability of a parson presented to a benefice of 
 the church, the examination belongeth to the spiritual 
 judge ; so it hath been used heretofore, and shall be here- 
 after. And Lord Coke says, the bishop, in this examina- 
 tion, is a judge, and not a minister (that is, he has a 
 judicial, not merely a ministerial office to perform), and 
 may and ought to refuse a person presented, if he is not 
 idonea persona."^ 
 
 And as to the evident unfitness of a court of temporal 
 jurisdiction to decide whether the bishop so refusing has 
 acted properly, it was said by Lord Ellenborough, in al- 
 luding to a case decided,' " It was contended that he 
 should state in what respects he was minus sufficiens, &c., 
 because, in case of the death of the party, it could not be 
 tried by the archbishop, but must be tried by the jury. It 
 is so laid down certainly in the books ; but a trial of that 
 sort has never occurred in our times, nor is there any in- 
 stance of it, that I am aware of, to be found in our books ; 
 and if such a case should happen, it does not occur to me 
 how such a trial could conveniently proceed. Suppose a 
 jury of twelve farmers, collected in the jury box, address- 
 ing themselves to try the literature of a dei)arted person : 
 how are they to set about it ; are they to try it by evidence 
 of his reputation for literature generally, or are they to try 
 it by the particular documents, in proof of his literature, 
 which he may have left in the shape of Latin or Greek ex- 
 ercises, produced upon his examination before the bishop, 
 and upon which the bishop pronounced at the time when 
 he refused to institute him 1 It would be somewhat strange 
 to present to the grave attention of such a panel the 
 translation which the deceased may have made from some 
 parts of the sacred writings in the Greek tongue, or his 
 Latin composition under a theme which may have been 
 handed to liim by the bisliop ; to hear counsel haranguing 
 them upon topics of grammatical construction or verbal 
 criticism, and to see them assisted by a judge (who pos- 
 sibly may not himself be very deeply learned in the dead 
 
 <i 9 Edw. 2, St. 1, c. 13. '■2 [nst. 631. 
 
 • Ihle V. Bishop of Exeler and others, Show. P. C. 88.
 
 OF PRESENTATION, ADMISSION AND INSTITUTION. 479 
 
 languages) addressing their minds, to try whether some 
 learned bishop is right in the judgment he has formed 
 upon the same materials, and sitting as a court of error 
 from him upon matters of grammar. I wish that the law 
 books, which tell us that it belongs to a judge and jury to 
 decide such points, had at the same time instructed us how 
 we are adequately to perform the task. As no case has 
 been referred to as having yet happened, so I hope none 
 will ever arise; for however well constituted we may be 
 for other purposes, every body must see that a very im- 
 perfect and bliiid execution of duty must take place if the 
 trial of literature were committed to such a tribunal." ' 
 
 But, although it is thus established that no temporal 
 court can enter into the question of the propriety of the 
 bishop's refusal, yet the clerk or the patron have their Appeal from 
 remedy by appeal to the archbishop, and if he also refuses, refusal by the 
 then to the Judicial Committee of the Privy Council." '''''"'P °' °'^'- 
 
 If a man cannot speak such language as the parishioners p i <• 
 understand, it is a good ground for refusal;" and it has refusal, 
 been especially enacted,^ that within the several dioceses 
 of St. Asaph, Bangor, LlandafF and St. David's, the bishop 
 may, if he think fit, refuse institution or license to any 
 spiritual person who, after due examination and inquiry, 
 shall be found unable to preach, administer the sacra- 
 ments, perform other pastoral duties, and converse in the 
 Welsh language. But an appeal to the Archbishop of The Welsh 
 Canterbury is given within one month after the refusal, language. 
 It will be observed, however, that this enactment, like 
 many others of those relating to church matters, only 
 gives that power to the bishop which he clearly might 
 have exercised though the act had not been passed, and 
 thus has no other effect than to render it doubtful how 
 far he may possess the power in cases not particularly 
 specified. 
 
 With respect to the third qualification, that of behaviour, nohaviour. qun- 
 this too appears to be a matter entirely for ecclesiastical lifieation as to. 
 cognizance ; little can be said of a question w Inch must 
 be entirely for the discretion of the ordinary ; but it may 
 be stated generally, that all such matters as would be 
 good causes for deprivation, are a fortiori good causes for 
 refusal. It may be here observed, that the holding another HoKlins othe. 
 benefice is not a good cause of refusal, as the consequences benefice. 
 
 t See R. V. Archbishop of Canterburv and Bishop of London, 15 Bast, 143 ; 
 the whole judgment in which case appears applicable to the present subject, 
 although the case decided was somewhat different. 
 
 " Rogers's E. L. 460. "" Cro. Eliz. 119. 
 
 y 1 & 2 Vict. c. 106, s. 104.
 
 480 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Time for con- 
 sidering of the 
 sufficiency of 
 the presentee. 
 
 In case of 
 refusal. 
 
 Distinction 
 where the cleik 
 is the presentee 
 of a layman or 
 of an ecclesias- 
 tic. 
 
 Necessity of 
 giving notice in 
 cases of an ec- 
 clesiastical pa- 
 tron considered. 
 
 Appeal. 
 
 Duplex querela. 
 
 Mode of pro- 
 ceeding on a 
 duplex querela. 
 
 of accepting a second benefice are personal to the party 
 presented.^ 
 
 The ordinary has twenty-eight days (formerly two 
 months) to inquire and inform himself of the sufficiency 
 of every clerk presented to him ;^ and if, within that time, 
 he refuse to admit the clerk presented, and the presentor 
 be a layman, the ordinary should give notice to the patron 
 of such refusal ; and if he neglects to give such notice no 
 lapse is incurred, though no other clerk be presented ; nor 
 upon notice, unless it turn out upon trial that the clerk 
 was properly refused. But if the clerk refused be the 
 presentee of a bishop or other ecclesiastical person, the 
 ordinary is not bound to give notice of the refusal; or if 
 he should do it, such patron can never revoke or vary his 
 presentation, by presenting another better qualified, with- 
 out the consent of the ordinary ; the law supposing him 
 that is a spiritual person to be capable of choosing an 
 able clerk.** 
 
 This, however, does not appear to be quite satisfactory, 
 because the ecclesiastical patron would have the same 
 right of appeal as the layman ; and therefore, as the de- 
 cision of the ordinary in the first instance is not absolutely 
 binding, the patron, whether an ecclesiastic or a layman, 
 ought to have notice, in order that he may prosecute his 
 appeal if he pleases; and it is presumed, therefore, that it 
 must be doubtful whether, if the presentee of an ecclesi- 
 astic was refused and no notice given, any lapse would be 
 incurred. 
 
 AVhere a refusal is appealed against, the dean of the 
 arches, or other judge or judges of the court of appeal, 
 sends a letter to the bishop so refusing, which letter or re- 
 script is called duplex querela. By this proceeding the 
 bishop is called on to show cause why, by reason of his 
 neglect of doing justice, the right of institution is not de- 
 volved to the superior judge. The duplex querela should 
 also contain an inhibition to the bishop that nothing be 
 done pending the suit injia-ious to the party complaining. 
 The clerk refused, having obtained this duplex querela, is 
 to take care that some person, sufficiently learned for that 
 purpose, do admonish the bishop to admit hint and do him 
 justice within tlu; time mentioned in the duplex querela, 
 "and also, according to the contents thereof, to inhibit the 
 bishop. 
 
 The mode of proceeding upon a duplex querela is very 
 fully entered into in I'urn's Ecclesiastical Law; but it 
 
 ^ Gibs. Cod. 851. ••» Canon 95. 
 
 <> Wals. c. 12; Gibs. Cod. 836 ; Rogers's E. L. 460,
 
 OF PRESENTATION, ADMISSION AND INSTITITION. 481 
 
 does not appear necessary to mention all the procee(liii<'s 
 which may in some cases be possible. 
 
 If the bishop does not appear to the citation, the right 
 of instituting the presentee to the benefice is pronounced 
 to have devolved to the superior judge; but in this case 
 the clerk must be examined by the archbishop, nnd if aj)- 
 proved of he brings hk fiat institutio to the judge, who, 
 however, before he institutes, it is said, is wont to require 
 a bond of the presentee to save him harmless on that 
 account. But if the bishop aj^pears to the citation and 
 alleges some cause why he refused the ^lerk, then the pro- 
 priety of that cause is to be tried. If the cause alleged be 
 not proved, the judge pronounces as before for his own 
 jurisdiction, and the bishop is to be condemned in ex- 
 penses; and so if he alleges an insufticient cause, as that 
 the church is litiiiious, for this he outiht to have tried. 
 
 If the bishop will not defend the suit the pretended in- 
 cumbent may do it, and allege that the church is full of 
 himself; and if the bishop will allow such incumbent to 
 defend the suit, the judge camiot decree ior his own juris- 
 diction until the cause is determined.^ 
 
 As to the last qualification, that of orders, it is directed Orders, 
 that no bishop shall institute to any benefice one who has 
 been ordaine'd by any other bishop, except he first shows 
 unto him his letters of orders, and brings him a sufficient 
 testimony of his former fife and good behaviour, if the 
 bishop shall require it; and lastly, u])on due examination, 
 shall be worthy of his ministry.'' For the circumstance that 
 a clerk has been ordained or licensed by another bishop 
 does not diminish the right which the statute gives the 
 bishop to whom he is presented to examine and judge.* 
 
 When the ordinary declares that he approves of the Ailmission. 
 presentee as a fit person to serve the church to which he 
 is presented, the clerk is said to be admitted.* 
 
 The next formal step is the institution, or, as it is called insiiiuiion. 
 sometimes in the older records, the investiture; for for- 
 merly the incumbent took his church by investiture of the 
 patron. Institution by the ordinary was introduced about 
 the time of Richard I. or John.' 
 
 Before actual institution takes ])lace is the proi)cr tiuu' winii. tobe 
 for the clerk presented and admitted to take the prescribed ;'^;'^';«^\-:|;;'^ 
 oaths, and do such other acts as are made necessary by 
 law for every person promoted to any ccclesiastial dignity, 
 office or ministry. Such are the following : 
 
 ' 1 Burn's E. L. 161 ; Wats. n. 21 ; 1 Ouglit. 237. 
 d Canon 39. "^ Gibs. Coil. «67. ^ Co. Lilt. 2 N a. 
 
 s Seldt'n de Dec. 86, 375, 383; Uurn's E. L. 8ili ed. note, 16-1. 
 
 I I
 
 482 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Oath against 
 simony. 
 
 Oath of alle- 
 giance and 
 supremacy. 
 
 Oath of canoni- 
 cal obedience. 
 
 1. To avoid the detestable sin of simony, every arch- 
 bishop, bishop or other person having authority to admit, 
 institute or collate to any spiritual or ecclesiastical func- 
 tion, dignity or benefice, shall, before every such admission, 
 institution or collation, minister to every person to be ad- 
 mitted, instituted or collated, the oath against simony."* 
 
 2. He must also take the oaths of allegiance and supre- 
 macy before such person as shall have authority to admit 
 him.' 
 
 3. He must also take the oath of canonical obedience, as 
 follows : " 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."'' 
 
 4. He must subscribe to the three following articles, 
 which, unless he shall do, it is directed that no person, 
 either by institution or collation, be admitted to any eccle- 
 siatical living. 
 
 " That the king's majesty, under God, is the only su- 
 preme governor of this realm and of all other his high- 
 ness's dominions and countries, as well in all spiritual or 
 ecclesiastical things or causes as temporal ; and that no 
 foreign prince, person, prelate, state or potentate, hath or 
 ought to have any jurisdiction, power, superiority, pre- 
 eminence or authority, ecclesiastical or spiritual, within 
 his majesty's said realms, dominions and countries. 
 
 " That the Book of Common Prayer and of ordering of 
 Bishops, Priests and Deacons, containeth in it nothing 
 contrary to the Word of God, and that it may lawfully be 
 used, and that he himself will use the form in the said 
 book prescribed, in public prayer and administration of 
 the sacraments, and none other. 
 
 " That he alloweth the Book of Articles of Religion, 
 agreed upon by the archbishops and bishops of both pro- 
 vinces, and the whole clergy, in the convocation holden at 
 London, A. d. 1562; and that he acknowledgeth all and 
 every the articles therein contained, being in number nine 
 and thirty, besides the ratification, to be agreeable to the 
 Word of God." 
 
 To tiicse three articles whosoever will subscribe, he 
 shall, for the avoiding of all ambiguities, subscribe in this 
 order and form of words, setting down both his christian 
 and surname, viz. " I, N. N. do willingly and ex animo 
 subscribe; to those three articles above mentioned, and to 
 all tilings that are contained in them." And if any bishop 
 admit any, except he first have subscribed in manner 
 
 siiai 
 
 and form aforesaid, he shall be suspended from giving 
 
 I' Canon 40. ' 1 Eliz. c. 1 ; 1 Will. 3, c. 8, s. 5, 
 
 ^ Burn's E.L. 1G3; Gibs. 818.
 
 OF PRESENTATION, ADMISSION AND INSTITUTION. 483 
 
 of orders and licenses to preach for tlie space of tweh o 
 months.' 
 
 5. He must further subscribe to the declaration of con- Hcdanuoa of 
 formity in these words : " I, A. B. do declare that I will <^"'>f""n''y- 
 conform to the liturgy of the Church of England as it is 
 now by law established."'" 
 
 Which declaration of conformity it is declared must be 
 subscribed before the archbishop, bishop or ordinary of 
 the diocese, or before the vicar-general, chancellor or com- 
 missary respectively, on pain that every person failing in 
 such subscription shall lose and forfeit such respective 
 promotion, and shall be utterly disabled and ipso facto 
 deprived thereof, and the same shall be void as if such 
 person so failing were naturally dead." 
 
 All these requisite particulars having been complied Institution or 
 with, actual institution or collation, as the case may be, collation, 
 may take place. This may be done either by the bishop 
 personally or by his vicar-general, chancellor or commis- 
 sary, to whom the clerk is sent by him for that ]:)urpose. 
 But during the vacancy of a see, the right of institution 
 belongs to the guardian of the spiritualties. And while 
 any diocese or inferior jurisdiction is visited, the right be- 
 longs to the visitor. 
 
 The form and manner of institution is thus : the clerk Form of. 
 kneels before the ordinary whilst he reads the words of 
 the institution out of a written instrument, drawn up for 
 this purpose, with the episcopal seal appendant to it, which 
 the clerk holds in his hand during the ceremony. 
 
 It is not necessary that the institution, much less the Where made, 
 examination and admission, should be made by the ordi- 
 nary within the diocese where the church is ; the bishop 
 may do it as well out of his diocese as within, for as to 
 this matter it is not local, but follows the person of the 
 bishop whithersoever he goes. 
 
 By a constitution of Archbishop Langton, no prelate Fees for. 
 shall extort any thing, or sufter any thing to be extorted 
 by his officials or archdeacons, for institution or putting 
 into possession, or for any writing concerning the same to 
 be made. But generally, it is said by Dr. Burn, the eccle- 
 siastical fees are regulated by the practice and custom of 
 every diocese, according to a table confirmed by Arch- 
 bishop Whitgift, and as is directed by the 135th canon. 
 But it is enacted, that if any person shall for any reward, 
 or promise of any reward, other than for lawful and usual 
 fees, admit or institute to any benefice or any living eccle- 
 siastical, he shall forfeit double the value of one year's 
 
 ' 1 Burn's E. L. 165. "> 13 & 14 Car. 2, c. 4. " Ibid. s. 10. 
 
 1x2
 
 484 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 profit thereof, and the same shall be void as if such person 
 were naturally dead. 
 ^Stamj) duties. But in addition to these ecclesiastical fees, there are 
 
 certain stamp duties imposed on collation and institution, 
 a table of which is to be found in the Appendix." 
 
 A distinct and particular entry of institution should be 
 made in the public register of the ordinary, and this entry 
 should contain 
 
 What tlie entry The name of the clerk instituted. 
 
 si.oul! contain. r^jjg ^^^^^ ^f ^]^g j^y and year on which the insti- 
 
 tution took place. 
 Whether a presentation or collation. 
 If the former, at whose presentation the clerk was 
 
 instituted. 
 If the latter, then whether or not by lapse.i' 
 
 Kfiects of insii- After institution the church is full, and ])lenarty by six 
 
 lu'io"- months is pleadable against all persons but the king, and 
 
 even against him when he claims in right of a common 
 person. But by collation the church is not full, nor is 
 
 rienariy. plenarty by collation pleadable ; but the right patron may 
 
 bring his writ and remove the collatce at any time ; unless 
 he be such patron as has also a riglit to collate ; for against 
 him ])lenarty by collation is pleadable ; and the reason 
 why collation does not make plenarty is, that then the 
 bishop would be judge in his own cause, to the great pre- 
 judice of patrons ; and therefore the bishop's colhition, in 
 this respect, is interpreted no more than a temporary ])ro- 
 vision for celebration of divine service until the patron 
 present."' 
 
 Supeiinsiiiu- A church being full bv institution, if a second institutiiui 
 
 •'""• is granted to the same ehin-ch, tliis is called a sujKMiusti- 
 
 tution. And superinstitution, as such, is properly triable 
 in the Ecclesiastical Court, if there has been no induction 
 upon the first institution, but not otherwise.'" But the 
 mode of trying a title by superinstitution is liable to so 
 many inconveniences, that it has been discouraged, and 
 is fallen into disuse. 
 
 Insiiiution gives When a cleik has been instituted or collated, he acquiics 
 
 J"" '"' "'"'• -.1 jus ad rem, and he can enter on the glebe and take ihe 
 litJKjs; but he has not yet so full a right in thciu, as 
 would enable him to grant or siu- for tlu in if ihey were 
 
 Cure of soul.-, withheld from him." By institution also lu; becomes re- 
 s])onsibl(.' for the cure of souls rommittcd (o him.' 
 
 " Sec ApiKMulix. I' (iil).s. Hi:{ ; 1 Hum's K. T,. Ifift. 
 
 <i Wats. c. 12; (mLs. filJ ; 1 Hum's K. L. 171. r (iil)s. lii:J. 
 
 • Gibs. 01:3. ' Johns. 74.
 
 OF SIMONIACAL PRESENTATIONS. 186 
 
 O/" SimoJiiacal Presentations. 
 
 Simony is the corrupt presentation of any one to an SniTonv, what it 
 ecclesiastical benefice for gift, money or reward : and as it 's- 
 is to be considered as an ollence against religion, by reason 
 of the sacrcdness of the charge whicii is thus profanely 
 bought and sold, we shall hereafter advert to it under that 
 head, as it atlects the parties guilty of it; in this place, 
 iiowever, we have only to consider its eflect upon presen- 
 tations which are affected with it. Simony was so called 
 irom the resemblance it is said to bear to the sin of Simon 
 Magus ; though tiie purchasing of holy orders seems to 
 aj)proach nearer to his offence. 
 
 Simony by the canon law was considered as a very By ihc canon 
 grievous crime, and as a sort of heresy, as we shall here- '''^■• 
 after mention ; and, as Lord Coke observes, is so much 
 the more odious because it is ever accompanied by perjury, 
 for the presentee is sworn to have committed no simony. 
 And it should be here observed, tliat persons guilty of 
 simonv are by tlie canonists divided into two classes : 1st, simoniaci. 
 Simoniaci — those who obtain spiritual preferment by cor- 
 rupt and simoniacal contracts to which they are privy and 
 consenting ; and 2nd, simoniace promoti — those who, sivwniac!: ino- 
 though they come in by simony, are not parties or privies '"""• 
 to it." 
 
 The ecclesiastical censures by which this crime was ])u- 
 nishable were not found to be efficient to prevent the 
 notorious practice of it, and the corrupt patron was alto- 
 gether beyond their influence. A statute was therefore 
 passed in the 31st year of Queen Elizabeth,^ by which the StJt.sJ Klii. 
 offence of simony, in the various ways in which it might *"• *'• 
 be committed, w as defined ; and as to simoniacal j)resent- ivnaliics af- 
 ations it was declared tliat> if any person or body cor- f'^^Jiu »i<>'ony. 
 porate, &c. shall or do, for or by reason of any j)romise, 
 agreement^ grant^jond, covenant or other assurances ; or 
 for money, reward^Ht, pro fit or benefit wh atsoever, directly 
 or indirecTIyTpresent or coTTate any person i6 any benefice 
 with cure of souls, dignity, prebend or living ecclesiastical ; 
 or give or bestow the same for or in respect of any such 
 corrupt cause or consideration ; such jn-esentation, colla- Prcscinauon?., 
 tion, gift and bestowing, and every admission, institution, '^<^- *""^- 
 investiture and induction thereupon shall be utterly void, 
 frustrate and of none effect in law. 
 
 u Degge, 14; (Jodolpli. Abr. 538 ; Rogers's E. L. 837. 
 X Chap. 6. '' Sect. 5. 
 
 ■ /■ 
 
 ^^j^fi^a;^ -
 
 486 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Penalties on 
 tliose guilty of 
 it. 
 
 Whom they af- 
 fect. 
 
 Stat. 12 Anne, 
 c. 12. 
 
 Clergymen may 
 not purchase 
 for themselves a 
 next presenta- 
 tion. 
 
 Penalties for so 
 doing. 
 
 And it shall be lawful for the queen to present, or collate 
 unto, or give or bestow every such benefice, dignity, prebend 
 or living ecclesiastical, for the one time or turn only. And 
 that every such person or body corporate, &c. that shall 
 give or take any such money, reward, gift or benefit directly 
 or indirectly ; or that shall make any such promise, grant, 
 bond, covenant or other assurance, shall forfeit and lose 
 the double value of one year's profit of every such bene- 
 fice, &c. And that the person so corruptly taking, pro- 
 curing, seeking or accepting any such benefice, dignity, 
 prebend or living, shall thereupon be adjudged a disabled 
 person in law to enjoy the same benefice, &c. 
 
 But if the presentee dies without being convicted of 
 simony in his lifetime, it is enacted by statute 1 W. & M. 
 c. 16, that the simoniacal contract shall not prejudice any 
 other innocent patron or presentee, on pretence of lapse to 
 the crown or otherwise. 
 
 In addition to the provisions of 31 Eliz,, clergymen are 
 expressly prohibited by the 12tli of Anne, c. 12, from pur- 
 chasino ; Jpr t hemse lves a next presentation or avoidance. 
 Tliat statute, rccitnig that some of the clergy have pro- 
 cured for themselves preferments by buying ecclesiastical 
 livings, and others have been thereby discouraged, enacts, 
 that if any person shall or do for any sum of money, re- 
 ward, gift, profit or advantage, directly or indirectly, or for 
 or by reason of any promise, agreement, grant, bond, co- 
 venant or other assurance, of or for any sum of money, 
 reward, gift, profit or benefit whatsoever, directly or indi- 
 rectly, in his own name, or in the name of any other 
 person or persons, take, procure or accept the next avoid- 
 ance of or presentation to any benefice with cure of souls, 
 dignity, prebend or living ecclesiastical, and shall be pre- 
 sented and collated thereupon, such presentation or col- 
 lation, and every admission, institution, investiture and in- 
 duction upon the same, shall be utterly void, frustrate and 
 of no efii'ct in law ; and such agreement shall be deemed 
 a simoniacal contract, and the queen may present or collate 
 unto, or give and bestow such benefice, &c. for that one 
 time or turn only ; and the person so corruptly taking, &c. 
 shall tl»ereiq)on be adjudged a disabled person in law to 
 have and enjoy the said benefice, &c., and shall also be 
 subject to any punishments, pain or penalty, limited, pre- 
 scribed or iiillictcd by the laws ecclesiastical, in like manner 
 as if such corrupt agreement had been made after such 
 benefice, &c. had become vacant, any law or statute to the 
 contrary notwithstanding. The effect of simony, as regards
 
 OF SIMONIACAL PRESENTATIONS. 487 
 
 the presentor, the presentation and the presentee, is sufli- 
 
 ciently clear upon these statutes. The rpiestions which 
 
 Iiave arisen on them are what is and what is not simony; what circum- 
 
 and that which we have now to consider is what is and *'^°"* ""»''« » 
 
 what is not a simoniacal presentation. montacaUDlaw. 
 
 In order to do this, it may be well to consider such 
 simony as of two kinds ; and the first, where any gift, 
 reward, profit or benefit is given, or promised or taken, 
 directly or indirectly, for procuring a presentation to a 
 benefice. 
 
 If the party or parties who present are to derive any \\ here the 
 benefit from their presentee, it is clearly simoniacal ; which pany prtieni- 
 proposition, and the extent of it, may be very well illus- aXnVfit fmm*^ 
 trated by the following case,^ of which the particulars are the presentee, 
 here inserted, as a test by which many other cases of a 
 similar nature might be tried. 
 
 An agreement had been entered into in a parish in the Example of the 
 following terms. At a meeting of the inhabitants of P. ^'^^"^ ■■"'*■'• 
 for the purpose of electing a resident curate or chaplain to 
 the church of P., the Rev. I. P. was by the inhabitants 
 appointed resident curate or chaplain, and to the posses- 
 sion of the parsonage house, and also to the money pay- 
 ment of 40/. 8s. 2d. annually, payable out of the lands 
 and hereditaments in P. in right of the said curacy, to- 
 gether with the surplice fees, and all other profits, privi- 
 leges and appurtenances to the same belonging and of 
 right payable. And the inhabitants aforesaid, considering 
 the present stipend or money payment of 4U/. Hs. 2(/., with 
 the surplice fees, of themselves insuflicient for the proper 
 support of such resident curate, have voluntarily consented 
 and agreed with the said I. P., that upon his entering 
 upon such curacy at Michaelmas next, and performing 
 the usual duties of the church, (fcc, together with such 
 weekly duty as hath been customary and may be required, 
 they the said inhabitants will, by a rate to be made by the 
 churchwardens of P. now and for the time being, or by 
 some other means, raise and pay out of the lands iind 
 hereditaments in P., 29Z. \\s. \M., in addition to the said 
 money payments, &c. Provided, and it is hereby agreed, 
 that the payment of the said 29/. \\s. 10(Z. shall be made 
 and continued only upon tiie occupiers of hinds and here- 
 ditaments in P. aforesaid, and shall not in any respect 
 alter the money payment of 40/. 8s. 2d. wherewith the 
 said lands and hereditaments are, and have been time 
 immemorial, charged in right of the said church. And 
 lastly, the said I. P. doth" hereby consent and agree to 
 i R. V. Bhhop of Oxford, 7 East, 600.
 
 488 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 accept the said curacy or cliaplainship, upon the terms 
 hereinbefore mentioned. (Signed by J. P., and by the 
 princii)al inluibitants and parish officers.) 
 
 The following facts were disclosed by an affidavit on 
 the part of the bishop, showing why he considered this 
 agreement as simoniacal, and had thereupon refused to 
 license Mr. P. That in June 1801, w^hen the meeting of 
 the inhabitants of P. took place after the vacancy, the 
 bishop was entirely ignorant of the rights of the curate, 
 and was then informed that the salary was a fixed sum of 
 40/., and inquiring how it was so settled, was referred by 
 one of the parties to an act for the inclosure of the town- 
 ship of P. That the bishop, under such ignorance of the 
 rights of the curate, expressed his approbation of raising 
 the stipend to 70/. a year, as it was proposed to do ; but 
 upon reference afterwards to an inclosure act passed some 
 time before, it was found to recite, that the chaplain 
 or curate of P. was entitled either to the small tithes, or 
 else to a modus or composition of 18s. for every yard 
 land, and so in ])roi)ortion, in lieu of all tithing whatso- 
 ever ; and it jirovides, that nothing in the act contained 
 shall extend to establish or annul, or to strengthen or to 
 weaken, in anywise the right or claim which the curate of 
 P. had or might have to any small tithes, or to determine 
 or imply that he was or was not entitled to the same. 
 And on subsequent inquiry, it appeared that by the en- 
 dowment of P. in 1428, the curate was entitled to all the 
 small tithes ; iu consc^quencc of which the rights of the 
 curate had been reserved by the act of parliament: that 
 in the survey returned into the Exchequer at the time of 
 Queen Amie, the curacy was valued at 41/. 7s. 8<:/., and 
 the small tithes were now estimated at above 130/. per 
 annum ; and that the vicarage of the parish of A., which 
 was then r('turn(,'d at 421. o.v. dd., is iu)w reputed to be 
 worth 200/. per annum : that Mr. S., the other caiulidate 
 with Mr. P., refused to sign the agreenumt in (piestion, 
 as simoniacal, in agreeing to accept 70/. j)er annum in 
 lieu o(" small tith(>s ; in consetpuMice of w Inch ri'fusal, the 
 inhabitants nominated Mr. P. without opposition : that 
 the inhabitants afterwards offered to give up I lie agree- 
 iiienl, proposing, however, that Mr. P. shouKl be bound 
 in honour by it; to which the bishop gave his positive 
 negative, and said that he felt it his (hily not to license 
 any person who was not perfectly free to assert his rights: 
 tliHt ill coii-ciiiience of this agreeuieiil, the nomination 
 jiaving b(;en simoniacal and void, the right of nomination 
 vested in the kinu-, who on the 1st of July, 1803, nomi-
 
 OF SIMONIACAL PUIiSENTATIONS. 4y(j 
 
 nated iuiotlicr l)aity, to whom the bishop giiiiitccl liis li- 
 cense iiccordiiigly. 
 
 The sole question in the case was, whether such an 
 agreement was simoniacal and void ; and Lord Ellen- 
 borough said, " TIds, I am clearly of opinion, was simo- 
 niacal: if a presentee do but baryain icitJi his patron to for- 
 bear any suit for the purpose of tryiny whether or not by 
 law he be entitled to small tithes, that is an agreement for 
 a benefit within the statute, and amounts to simony.'' 
 
 So if a patron promises a clerk, that in consideration of What conMJcr- 
 his marrying his daughter or kinswoman, he will present at'on is simo- 
 him to a living when void, this is a simoniacal contract." °'*cal. 
 
 But where A. covenanted that B. his son should marry 
 C. the daughter of D., in consideration of which D. cove- 
 nanted to advance 300/. for his daughter's portion, and A. 
 covenanted to settle certain lands on his son and his in- 
 tended wife, and there were likewise covenants on the 
 part of A. for the value of the lands and for quiet enjoy- 
 ment, and a covenant on the part of D. to procure a certain 
 benefice for B. on the next avoidance, it was held that 
 this was not a corrupt contract, it not being a covenant in 
 consideration of the marriage, but a distinct and inde- 
 pendant covenant, without any apj^arent consideration.'' 
 
 It has been said that a reservation of a benefit to a 
 stranger, as an annuity to the widow aiul son of a late in- 
 cumbent, docs not a})pear to be within the statute 31 
 Eliz. f but this proposition is doubted by AVatson ; and 
 so it is laid dow n by Blackstone, that bonds given to pay 
 money to charitable uses, on receiving a presentation to a 
 living, are not simoniacal, provided the ])atron or his rela- 
 tions are not benefited thereby, for that this is no corrupt 
 consideration moving to the patron.'' But though this 
 might perhaps have been so previously to the statute 1st 
 of Anne before mentioned, it is submitted, that it is now 
 clear that it matters not to whom, or for what the money 
 may be paid; but that if any such money is paid by the 
 presentee, in order to obtain his j)resentalion, such pre- 
 sentation is simoniacal under the last mentioned statute. 
 
 We now come to the distinction of the canon law, to simonwciinA 
 which we have before adverted, between simoniaci and iimoniari p< o- 
 simoniacc jyromoti ; and in either case it appears that under """'• 
 the statute of Elizabeth the presentation is equally simo- 
 niacal and void. Thus it was resolved by all thejudi;es ifaprcscniec 
 in 8 Jac. I. tliat if any should receive or take money, fee, be innocently W- 
 reward or other profit for any presentation to a benefice [^^"','jj'"J '^^""^ 
 
 " Wats. 37; Cru. Dig. tit. xxi. c. 11. '' Bi/i/e v. MrtdHi"^, Cro. Car. 190. 
 c Baker v. Uounford, Noy, 143. '' Black." Com. b. 11, c. 18 i Stra. 534.
 
 490 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 sentation is 
 
 nevertheless 
 
 void. 
 
 But such pre- 
 sentee does not 
 incur disability 
 under the sta- 
 tute. 
 
 But a clergy- 
 man simnniaci 
 promottis is not 
 liable to any 
 punishment in 
 a proceeding in 
 the Ecclesias- 
 tical Court. 
 
 with cure, although in truth he which is presented be not 
 knowing of it, yet the presentation, admission and induc- 
 tion are void by the express words of the statute 31 Eliz., 
 and the king shall have the presentation htic vice ; for the 
 statute intends to inflict punishment upon the patron as 
 upon the author of this corruption by the loss of his pre- 
 sentation, and upon the incumbent who came in by such 
 a corrupt patron by the loss of his incumbency, although 
 he may not have known of it; but if the presentee be not 
 cognizant of the corruption, then he shall not be within 
 the clause of disability in the same statute.* 
 
 In a writ of error to reverse a judgment whereby the 
 king had recovered upon a title of simony, which was that 
 a friend of the clerk had agreed to give a sum of money to 
 J. S., who was not the patron, to procure the clerk to be 
 presented to a church, w^ho was presented accordingly, 
 it was assigned for error that it did not appear that either 
 patron or clerk was acquainted with the agreement ; but 
 the court said that the clerk was simoniace promotus. 
 And it was said that Dr. Duxon had enjoyed the church 
 of St. Clement above twenty years by such a title of the 
 king's, the presentee of the patron being ousted by reason 
 of a friend having given money to a page of the Earl of 
 Exeter to endeavour to procure the presentation, and nei- 
 ther the earl nor the clerk knew any thing of it. * 
 
 A clergyman therefore who is simoniacc j^romotus, is 
 equally affected under the statute of Elizabeth as one who 
 is actually simoniacus. But though the statute may thus 
 render the title of the clerk invalid, and it may conse- 
 quently be loosely said by some writers tiiat the presentee 
 is thcrel)y punished, the use of such a term will not render 
 him liable to a criminal proceeding by articles for his soul's 
 health. Such is not the sort of suit to be brought for that 
 pur|)ose ; and in stich a suit it was said by Sir J. Nicholl, 
 " Tlie suit in this form ought not to have been brought 
 against the defendant ; no authority can be found which 
 establishes such a principle that in a criminal suit a party 
 can be punished for a crime of which ho is not guilty; nor 
 is tlujre any such instance since the statute of Elizabeth 
 against a person simoniacr promotus. The ])roper ])roceed- 
 ing is under the statute, upon a qnare impcdit. Even if 
 proved to have been shnonincc promotns, he has been guilty 
 of no crime for which this (MUirt could punish him, assum- 
 ing that his possession were invalid under the statute.""^ 
 
 •■ lliitcliiiiioii's oi.sc, 12 Rep. 101 ; Cruise, J)ig. tit, xxi, c. 
 f Her V. Tnissel, 1 Sid. 329 ; 2 Keb. 204. 
 e Whiih and Woollat v. Hesse, 3 Hagg. 639. 
 
 11.
 
 OF SIMONIACAL PRESENTATIONS. 49| 
 
 The second kind of sinioniacal |)rc.senhition is where tlie Saieofpimuu- 
 light to present is sold ut tiie time when tlic church is «'"» dunog a 
 vacant ; and this was also iield to In-, void ut common law, l^^^^'^J " 
 because during the vacancy of the church the right of pre- 
 senting was but a chose in action, which could not be 
 transferred. 
 
 A patron of an advowson, the church being void, granted 
 to B. proximam jjresentationem to the said church, jam 
 vacanfem, ita quod liceat B. hue vice ad dictam ecclesiam 
 presentare; and it was resolved by all the judges of Eng- 
 land that the grant was void, for the present avoidance 
 was a thing in action and privity, and vested in the person 
 of the grantor. '' 
 
 A lease of an advowson, granted after the church became ^""an' of an ad- 
 vacant, was adjudged void )76- to the immediate vresentation . 3°^'*''°" ''""^'"S 
 And it is said by Lord ITardwicke that the sale of an voldVs"to the 
 advowson during a vacancy was not within the statute of ".ext prescnta- 
 simony as a sale of the next presentation was, but was "°°' 
 void by the common law. And the Court of King's Bench 
 resolved 'that a grant of a next presentation, or of an ad- 
 vowson, made af ter th e clmrch was actually fallen vacant, 
 was a void grant g iioad the fallen v acancy. Lord Mans- 
 field and Mr. Justice Wilmot said, the true reason why 
 a grant of a fallen presentation of an advowson, after 
 avoidance, is not good, quoad the fallen vacancy, is the 
 public utility, and the better to guard against simony, not 
 for the fictitious reason of its being a chose in action. And 
 it was held in the same case that a grant ol' a i)resentati«»n, 
 after institution of the incumbent to a second living; which 
 vacated the first, was void, because the church was con- 
 sidered as vacant from the time of institution.' 
 
 Bearing in niind this reason why the grant of a vacant I5ui as to the 
 presentation is void, it will be seen that a grant of the "«*' P'f*'"'*.' 
 advowson, except as to the next presentation, would always ,|,g grant'on 
 remain unafiected, since the same reason would not apj)ly conveyance may 
 to such a case; and therefore if an advowson be sold, :>i-«ii'i goo.1 as 
 the church being at that time actually vacant, the sound j^^ '*" 
 part of the transaction may sometimes be separated from 
 the corrupt ; that is, it may be treated as the sale of an 
 advowson, except as to the presentation then to be made, 
 which belongs neither to the vendor nor i)urchascr, but 
 which the crown takes by forfeiture. The right to convey 
 or grant the advowson, and the rights of the grantees, are 
 the same as if no simony had taken place, the forfeiture 
 being paid under the statute, and the conveyance stund- 
 
 '• Stephens v. Wall, Dyer, 282 b. 
 
 » Bishop of Lincoln V. Wolferstan, 1 Black. K. 490; Cruise, Dig. tit.xxi.c. 11.
 
 492 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED, 
 
 ing good for the remainder. And in a case where this 
 question arose, it was said by Sir Vicary Gibbs, C. J. : 
 " The statutes against simony apply only to the presenta- 
 tion corruptly procured or intended to be procured ; and 
 the oh'ence of simony at the common law (admitting it to 
 have been an offence) can be carried no further. The pre- 
 sentation thus corruptly procured or trafficked for, is for- 
 feited to the crown, and certain penalties and disabilities 
 are inflicted on the offenders. The statntes contain no 
 express provision for avoiding simoniacal conveyances; 
 but there can be no doubt that the conveyance, even of 
 an advowson in fee, which in itself is legal if it be made 
 for the purpose of" carrying a simoniacal contract into 
 execution, is void as to so much as goes to effect that pur- 
 pose ; and if the sound part cannot be separated from the 
 corrupt, is void altogether. It is not, as in the case of 
 usury and some others, avoided by the positive and in- 
 flexible enactment of the statute, but left to the operation 
 of the common law, which will reject the illegal part and 
 leave the rest untouched, if they can fiiirly be separated. 
 In this case the conveyance made in furtherance of the 
 simoniacal stipulations has been treated as ineffectual, but 
 the remaining interest which passes by it stands clear of 
 this objection, and may, as we think, be fairly separated 
 from the objectionable part. It is true tliat by the con- 
 tract one entire consideration is to be paid for the whole 
 advowson, and w^e cannot say how much sliould be referred 
 to the legal and how much to the illegal })art of the trans- 
 action ; but we are sure that our decision supports so much 
 only of the conveyance as applies to the legal part ; the 
 rest has been dealt with as illegal, the crown has taken 
 the forfeiture." ^ 
 When clmrcli Where a person purcliascd the next presentation to a 
 
 is (ull, next pre- benefice, the church being then lull, with an intention to 
 seniaiion mny p,.gm.,,t ;i particular iierson, a subsequent iiresentation of 
 that person was lonnerly deemed sunony. iiut it is now 
 ;iii universal practice to ])urchas(! the next presentation to 
 a living, the church being full; and there is no modern 
 instance where a presentation under such circumstances 
 has been cpiestioned.' But this statement must be taken 
 with the cpialitication that the party j)urchasing must not 
 . lie ii clergyman |)uieliasing for himself. 
 Sale nf advow- !• was formerly doubted whether, if an advowson or next 
 son or prusenia- presentation to a church was ])urchased when the incum- 
 iionw litre in- | ^^ ^^,^^ j^ ,^ ^jyipj,. state, the iicxt i)resentatiou in cither 
 
 cuinbent i» in j r> ' i 
 
 txtremi$. k Creenwood v. /ii's/io/i of London, 5 Taunt. 727. 
 
 I Cruise, Uig. lit. xxi. c. U. 
 
 bill tiot by a 
 rl'T^jyinan for 
 biinseir.
 
 OF SIMONIACAL PRESENTATIONS. 40.? 
 
 case would bo simoniacal : and fuht, it was decided and 
 settled that if" an advowson were jjurchasc^d under such 
 circumstances, the next presentation in right of it would 
 not, under the circumstances, be simony. 
 
 A person having notice that the incumbent was on his 
 death-bed, and would not live over the nigiit, j)urchas('d 
 the advowson in fee of the defendant: the incundjcnt d'u-d 
 the next day, and the purchaser jjresented his clerk upon 
 that avoidance. A question was referred by the Court of 
 Chancery to the Court of Common Pleas, whether the said 
 presentation was void, as being on a simoniacal contract.'" 
 Lord Chief Justice De Grey said, he was not able to doubt 
 upon the question. An advowson was a temporal right ; 
 not indeed jus habcndl, ])nt jus disponondi. The exercise 
 of that ri^ht was by i)resenlutiou. The riLiht itself was a 
 valuable right, and projjcrly the object of sale : but the 
 exercise of this right was a j)ublic trust, therefore ought to 
 be void of any pecuniary consideration, cither in the patron 
 or the presentee. Simony was unknown to the connn on .Simony not de- 
 law, though corrupt pre.scntati(7n was] 13 ut what was or pendant on the 
 was not simony~Jepended on the statute of 31 Eli/., which o^,"",'uiuVc ' "' 
 did not adopt all the wild notions of the canon law, but 
 had defined it to be a corrupt agreement to present. i\o 
 conveyance of an advowson could be aficcted l)y that act, 
 iniless so far as it affected the immediate presentation ; ^ 
 therefore a sale of an advowson, the church being actually > 
 void, was simoniacal and void in resj)ect to the then pre- 
 sent vacancy. But it had never been thought that to 
 purchase" an advowson merely with the prospect, however 
 probable, that the church would soon become void, was 
 either corrupt or simoniacal;" though by the connnon law, 
 if a clerk or a stranger, with the privity of a clerk, con- 
 tracted for the next avoidance, the incund)ent being in 
 extremis, it wai? heT3"fo be simoniacal. The present case 
 was the purchase of an^ad^vwyson in fee. No privily of the 
 clerk appeared. The church was not actually void, but in 
 great probability of a vacancy; which, however, was by no 
 means equivalent to a certainty. He said the judges would 
 go beyond every resolution of their predecessors to deter- 
 mine this to be simony. 
 
 The other judges concurred ; and the court certified that .Sale of advon-- 
 the presentation was not void, it not appearing to them to '"J,';,,"^^',"'.'!.' 
 have been made upon a simoniacal contract." eitrtmn, Ac- 
 
 c-laicd Dut Mino- 
 '" Barren v. Gluhb, 2 Bliak. Uep. 1052. niacal. 
 
 " See Grecnivood v. Bishi>i> of l.oiuttoi, T) T;iur.t. 727. 
 « BiurcH V. Ulubb, 2 lil.ick. Kep. 10.02.
 
 494 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Sale of next pre- 
 sentation under 
 similar circum-,' 
 stances formerly 
 held void. ; 
 
 But now de- 
 clared good, and 
 not simoniacal. 
 
 A snle, wiiii an 
 agreement for a 
 speedy resigna- 
 tion, IS simo- 
 niacal. 
 
 So if tlie ciiurcli 
 is filled wrong- 
 fully, and an 
 action j)rnding 
 for removing 
 the clerk. 
 
 Still, however, it was long afterwards considered that a 
 contract for sale of a next presentation, the parties know- 
 ing the incumbent to be at the ])oint of death, was simo- 
 niacal, and indeed such an opinion might be collected from 
 the judgment in the case last mentioned. And in the case 
 of Pox V. Bishop of Chester,^ it. was, after full argument, 
 decided, that a presentation made in pursuance of such a 
 contract was void, although the clerk was not privy to the 
 transaction, and the contract was not made with a view to 
 the presentation of any particular individual ; for that va- 
 cancy was not made by any words of the statute essential 
 to a corrupt contract, and that a contract might be corrupt, 
 although the church were full. But this case was after- 
 wards brought by error into the House of Lords, and this 
 judgment of the King's Bench was there overruled : Best, 
 C. J., who delivered the unanimous opinion of the judges 
 of the Common Pleas and Exchequer, said, " If this con- 
 veyance were void, it must have been so when executed, 
 and would remain void, into whatever hands and under 
 whatever circumstances the right of presentation might 
 have passed. Now, if this incumbent had been restored 
 to apparent health, (as many persons thought to have been 
 in imminent danger of death have been,) and the vendee 
 had sold the presentation to one ignorant of the circum- 
 stances under which the first sale was made, it would be 
 most unjust to hold this second sale void ; and yet this 
 would be the necessary consequence of holding that the 
 first sale was simoniacal. Whilst the law, therefore, per- 
 mits the next ju-esentation of livings to be sold duiing the 
 lives of the incumbents, as long as the incumbent is alive, 
 the sale is good. It would be diUicult to establish a rule 
 that should settle wliat degree of probability of the ap- 
 proaching death of an incumbent would ])revent the sale 
 of the next avoidance of a benefice, and more difticult to 
 ascertain by evidence when an incumbent was within that 
 rule.^'i 
 
 But it is presumed that that part of Chief Justice Abbott's 
 judgment, in Fox v. /iishoj) of Chester, is still good and ^ ,"" 
 acknowledged law, in which he says, " No ])erson would*' '^ 
 doubt but that a sale of the next presentation for money, M^^^it 
 accompanied by an agreemcnTTor an immediate or speedy ^^*a' 
 resignation, would hv. within th(> stiitufc?' ^ 
 
 And so if ;i j)resentation be made by a person usurping 
 the right of j)atronage; and, |)ending an action for remov- 
 ing his clerk, who is afterwards removed, the benefice is 
 sold ; this is an oflcncc within the meaning of the statute, 
 P 2 Barn. & Cress. 635. 'i Same case on appeal, 6 13ing. 20.
 
 OF SIMONIACAL PKESENTATIONS. 495 
 
 for the cliurch was never full of that clerk. And if this 
 were allowed, the statute might be evaded ; fur it would 
 1)6 only getting an usurper to present while the church was 
 void, and then selling it.' 
 
 And so also it lias been lield, that a grant of a presenta- And so after ihe 
 tion, after in stitution of the iiieundjeiit to a seeonil liviii"-- 'nsi'iution of 
 which vacute(TThe hrst, was void, because the cluuvh was L^rrUnlnr 
 considered as vacant from th e time of institut ion. 
 
 Formerly it was doubted whether it was siunjny for a 
 clerk to purchase for himself the next presentation to a 
 benefice while it was full, and to be presented to it when 
 it became void ; but this doubt has been entirely removed, 
 and tlie simony of such a transaction clearly established, 
 by the statute of 12 Anne before mentioned.^ 
 
 But it has been further doubted whether the purchase A clergyman 
 of an advowson in fee byTt clergyman, and a presentation J"^y purcl'^se 
 of himself upon the death of the incumbent, be within this a'dvl'l'so^ in fe<? 
 statute. It appears, from an opinion of the late Mr. Fearne,' and be presented 
 that he did not consider such a j)urchase as prohibited by "P*"" '''^ "**' 
 that statute, but that a presentation by a trustee of such a *^""*^y* 
 purchaser, of the purchaser himself, might be made. This 
 opinion is supported by Lord Chief Justice De Grey's argu- 
 ment in the case of Barrett v. Gluhh, in which he distin- 
 guished between a purchase of tlie next presentation to a 
 church, and a purchase of an advowson in fee ; for, in the 
 first case, he admitted that a purchase would be simonia- 
 cal, if the incumbent was in extremis; w hereas in the second 
 case he held it good.'' 
 
 The result of these authorities is, that the law is now Result of the 
 settled as follows. authorities. 
 
 It is not simony for a layman, or spiritual person not Present state of 
 
 purchasing for himself, to purchase while tlie cliurch is "'c ';»w. 
 r 11 -xi 1 ^ t r \ • \\lnt IS not 
 
 lull either an advowson or next presentation, however im- sin,ony. 
 
 mediate may be the prospect of a vacancy ; unless that 
 vacancy is to be occasioned by some agreement or arrange- 
 ment between fHe partTesT ~~ ~ 
 ' Nor IS it simony foFa spiritual person to purchase for 
 himself an advowson, althoutrh under similar circumstances. 
 
 If either a layman or spiritual person purchase an ad- 
 vowson while the church is vacant, a presentation by the 
 purchaser upon any future avoidance, alTer the church has 
 been filled for tha^tinie, is not simony. 
 
 It is simony for any person to puicliase the next i)ie- Whaiissimony. 
 sentatiou while the church is vacant. 
 
 >• Walker V. Hammenlev, Skin. 90. ' Cruise, Dij. tit. xxi. c. 2. 
 
 *■ Cases and Opinions, 409. " See ante.
 
 496 
 
 UOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 It is simony for a spiritual person to purchase for him- 
 self the next oresentation, although the church be full. 
 
 tr1s"'sinK)iiy1or any persoiijto purchase a next presen- 
 tation, or if the purchase Be. bian advowson, the next 
 presentation by a purchaser Avould be simoniacal, if there 
 is any agreement or arrangement between the parties at 
 the time of tlie purchase for causing a vacancy to be made. 
 
 If any person purchase an advowson while the church 
 is vacant, a presentation by the purchaser for that vacancy 
 is simonv. 
 
 Induction. 
 
 Origin of. 
 
 InvesUtures 
 
 were llic im- 
 nieiliaU; origin 
 of induction. 
 
 Section 4. 
 Of Induction. 
 
 We speak of induction under a separate head, since it 
 is entirely of a different nature from those other steps 
 which we have mentioned, by means of which the incum- 
 bent obtains full possession of his benefice. 
 
 Formerly it was considered that no person could have 
 full possession of a corporal hereditament without some 
 act of this nature. Thus in the case of a feoffment by 
 which lands were conveyed, livery of seisin, as it was 
 called, or the delivery of possession, \vas held absolutely 
 necessary to complete the donation. " Nam feuclum sine 
 investitura nullo modo constitui putuit." And an estate 
 was theu only perfect, when, as the author of Fleta ex- 
 presses it, " Fit juris et seisince conjunction ^' 
 
 Investitures, in their original rise, were ])robably in- 
 tended to demonstrate, in conquered countries, the actual 
 possession of the lord ; antl that he did not grant a bare 
 litigious right, which the soldier was ill qualified to pro- 
 secute, but a peaceable and firm ])Ossession. And at a 
 time when writing wtis seldom practised, a more oral gift, 
 at a distance from the sj)ot that was given, was not likely 
 to be either long or accurately retained in the memory of 
 bystanders, who were very little interested in the grant. 
 Afterwards they were retained as a public and notorious 
 act, that the country might take notice of and testify tite 
 transfer of the estate, and that such as chiimed title by 
 other means, might know against whom to bring their 
 actions/ 
 
 In till well governed nations, some notoriety of this kind 
 lias been ever hehl requisite, in order to ac([uire ;ind tiscer- 
 taiii the ])roper(y ol' lands. In jhc Komau law, plenum 
 
 y 2 liliick. Com. 311. 
 
 ' Ibid.
 
 OF INDUCTION. AU7 
 
 dominium was not said to subsist, unloss where a man had 
 both the right and the corporal possession ; which posses- 
 sion could not be acquired without both an actual inten- 
 tion to possess, and an actual seisin, or entry into the 
 premises, or part of them, in the name of the whole. And 
 thus, in ecclesiastical promotions, where the freehold 
 passes to the person promoted, corporal possession is re- 
 quired at this day to vest the property com|)letely in the 
 new proprietor. Therefore in dignities possession is given 
 by instalment; in rectories and vicarages by induction, 
 without which no temporal rights accrue to the minister, 
 though every ecclesiastical power is vested in him by in- 
 stitxition.* 
 
 Induction is therefore the iuvestii urc of the temporal 
 part of the benefice, and when a clerk is thus presenteil, 
 instituted, and inducted into a rectory, he is then, and not 
 before, in full and complete possession, and is called in 
 law persona impersonata, parson imparsonee, for as by 
 institution or collation the si)iritual cares of the j)arisli 
 and the cure of souls is committed to him, so by induction 
 are committed to him the tcmporalties of the church, and 
 actual possession of the church and glebe.'' l^y institution i„ju<tion gives 
 also we have already seen that he had acquired yw*- ad rem, compkie poi- 
 or inchoate and imperfect right to the temporalties, so that J^nJ'lJJa'iIies! 
 though he had a right to take the tithes, kc. he had no 
 right to sue for them : by induction he acquires jus in re, 
 or com])lete and full right, so that he would have a right 
 to take the tithes, kc. and to sue for them if withheld ; 
 and he has now the real and corporal possession of the 
 church, with all its rights, profits, and ajjpurtenances 
 thereto belonging.' By induction the parson is put in 
 possession of a part for the whole, and may therefore 
 maintain an action for a trespass on the glebe land, though 
 he had not taken actual possession of it." 
 
 Where the party inducted has a former benefice, the Fffeiisof. 
 avoidance of it does not take j)lace until the induction to 
 the second, so that lapse does not accrue until after that 
 time, yet the patron of the former benefice may, if he 
 pleases, present upon the institution of the clerk to the 
 second benefice, and before his induction, and such pre- 
 sentation would be good.' 
 
 Although a suit in the ecclesiastical court is projjcr to 
 fry the validity of a parson's institution, yet if the parson 
 
 a 2 Black, Com. 312. ^ 3 Pliill. 75. 
 
 c Gibs. 814; 1 Bum's E. L. 
 <> Bulwer V. nuUver, 2 B. .Sc Al.l. 470. 
 
 e WnlJ'ailen v. Bhhi'i) ojliiuoln and \VliiteheaJ,2 Wils. H. 174. 
 
 K K
 
 498 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 has been inducted, a prohibition would be granted, for, by 
 induction, the parson has the church as a lay fee; and 
 therefore the common law should be preferred to the spi- 
 ritual law, and shall draw the trial of the whole to it. If 
 there be a suit in the spiritual court before induction to 
 repeal the institution, no prohibition will be granted ; but 
 induction, though it be after utterly void, yet, inasmuch as 
 it is a temporal thing, it cannot be frustrated by the spi- 
 ritual court. So, if the question be parson or not parson, 
 which comprehends induction, it is only triable by the 
 common law. 
 By whom it is The archdeacon is the person who, of common right, has 
 to be made, power to induct, but others may make inductions by pre- 
 scription, as the deans and chapters of St. Paul's and 
 Lichfield. The archdeacon usually issues a precept to 
 other clergymen to perform the induction for him ; and if 
 he make a general mandate to all parsons, vicars, &c. 
 within the archdeaconry, and a minister not resident within 
 the archdeaconry make the induction, yet it is good.s And 
 if the archdeacon refuse to induct after institution, an 
 action on the case will lie against him, because it is a tem- 
 poral act. And a mandamus will be granted to compel 
 him ; nevertheless such refusal is also punishable by eccle- 
 siastical censures.'' 
 
 If a church is exempt from archidiaconal jurisdiction, as 
 many churches are, then the mandate is to be directed to 
 the chancellor or commissary : if a peculiar, then to the 
 judge of the peculiar. When an archbishop collates by 
 lapse, or when a see is vacant, the mandate goes not to the 
 officer of the archbishop, but to the oflicer of the bishop.' 
 
 If a bishop die or is removed after institution, but before 
 induction is complete, the archbishop may grant a man- 
 date of induction, the archbishop being guardian of the 
 temporalties, sede vacante ; so also, if the authority of the 
 bishop be suspended, as by visitation, or if such mandate 
 be not executed till after a new bishop has been confirmed, 
 who then has power himself to execute it, yet it is not void, 
 although it may be voidable.'' 
 In case of The king's grantee of a free cliapel is to be put into pos- 
 
 granteeofafiee session by the sheriff of the county, and not by the ordi- 
 ^'l"^^ ■ nary. In some places a prebendary shall have possession 
 
 Other cases. ^-jti^o^t induction, as at Westminster, where the king 
 makes his collation by letters jiatent, and thereupon the 
 
 e Rogers's K. I.., Incumbent ; Godolph. Abr. 278 ; Gibs. 860. 
 '' Gibs. 815 ; Sliernck v. Boucher, 1 Ld. Raymond, 88. 
 ' 1 Burn's E. L. "^ Ibid.
 
 OF INDUCTION. 499 
 
 party enters without induction. Sometimes the bisliop 
 makes induction, and sometimes others, accordiiio- to the 
 usage of the place. The possession of sinecures is to be 
 obtained in the same manner as other benefices.' 
 
 After institution the bishop issues his mandate, usually where the 
 directed to the archdeacon, or, as it may be, to other per- '^'shop's man- 
 sons having power to induct, directing them to induct the * '''^' ''' B'^"'-*'^'' 
 clerk who has been instituted ; and the clergyman having 
 obtained this mandate of induction, is to take it to the 
 proper office, for the purpose of procuring the archdeacon's 
 mandate, directed to all and singular rectors, vicars, &c. 
 in order to obtain induction. But if the bishop's mandate 
 is directed in general to all and singular rectors, vicars, 
 &c., any clergyman in the diocese may induct by virtue of 
 that mandate, without any application to the archdeacon's 
 office.'" The person empowered to induct, taking the hand Mode of in- 
 of the person to be inducted, lays it on the key of the d"ct''on« 
 church in the church door, or on the ring of the door ; or 
 if the church be ruinated, it is done by laying his hand on 
 the wall or the fence of the cliurchyard, and saying, " By 
 virtue of this mandate, I induct you into the real, actual, 
 
 and corporal possession of the church of , with all its 
 
 fruits, members, and appurtenances." He then opens the 
 door and puts the new incumbent into possession of the 
 church, who, when he has tolled the bell, comes forth, and 
 the inductor indorses and signs a certificate of such in- 
 duction on the mandate, attested by those who witnessed 
 the same." And this is said by Blackstone to be a form 
 required by law, with intent to give all the parishioners due 
 notice and sufficient certainty of their new minister, to whom 
 their tithes are to be paid." 
 
 Section 5. 
 
 Of Requisites after Induction. 
 
 Although the clerk inducted thereupon becomes a com- Acts to be done 
 plete incumbent, and has full possession of the temi)o- after induci.ou. 
 ralties as well as the spiritualties of his benefice, there are 
 yet some further acts which the law requires him to per- 
 form, and to the non-performance of which penalties are 
 attached. 
 
 I Wats. c. 15; Godolph. Abr.279; Gibs. 860; Rogers's E.L., Incumbent. 
 '» Hodgson's Instructions, p. 30; and 1 Com. 391. 
 
 " Cruise's Dig. tit. xxi. c. 2; Hodg. Instruct. 30. For form of certificate, 
 see Appendix, 
 o 1 Com. 391. 
 
 K k2
 
 500 now POSSESSION of benefice is to be obtained. 
 
 Reading in. Evei'y pei'soii who shall be presented or collated, or put 
 
 into any ecclesiastical benefice or promotion, shall, in the 
 church, chapel or place of public worship belonging to his 
 said benefice or promotion, within two months next after 
 that he shall be in the actual possession of the said eccle- 
 siastical benefice or promotion, upon some Lord's day, 
 openly, publicly and solemnly read the morning and even- 
 ing j)rayers, appointed to be read by and according to the 
 Book of Common Prayer, at the times thereby appointed 
 or to be appointed ; and after such reading thereof, shall 
 openly and j)ublicly, before the congregation there as- 
 sembled, declare his vmfeigned assent and consent to the 
 use of all things therein contained and prescribed, in these 
 words and no other : — " I, A. B., do here declare my 
 unfeigned assent and consent to all and every thing con- 
 tained and prescribed in and by the l)ook intituled ' The 
 Book of Connnon Prayer, and Administration of the Sa- 
 craments, and other Rights and Ceremonies of the Church, 
 according to the use of the Church of England,' together 
 with the Psalter or Psalms of David, appointed 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. "P 
 Penally for And evcry such jx-rson who shall (without some lawful 
 
 (Miiittnig or re- impediment, to be allowed and aiuiroved by the ordinary 
 °" of the place,) neglect or refuse to do the same within the 
 
 time aforesaid (or, in the case of such impediment, within 
 one month after such impediment is removed), shall, ipso 
 facto, be de])rived'' of all his said ecclesiastical benefices 
 and promotions; and from thenceforth it shall be lawful 
 for all patrons and donors of all and singular the said 
 ecclesiastical benefices and promotions, according to their 
 respective rights and titles, to present or collate to the 
 same, as though tlu; person or persons so ofiending or 
 neglecting were dead.' 
 Reading il.e Iwery person admitted to any benefice with cure, shall 
 
 "'■'"■''-■s- ])ul)liely read the articles (jf religion agreed upon in con- 
 
 vocation in the yeai" 1.002, in the parish church of that 
 benefice, witii declaration of his unfeigned assent to the 
 Tenaliy fur sauK! ; and every person admitted to a benefice with cure, 
 oiiiiitint;. except that within two montlis after his induction, he do 
 
 imblicly read the said articles, in the same church whereof 
 he shall have cure, in the time of connnon j)raycr there, 
 witli declaration of his unfeigned assent thereunto, shall 
 be upon every such dcliiuU, /y;.s''j fucLo, \\\\\wv\\\\\W\s de- 
 
 >' )■'! i\ II Car. 2, c. -1, s. fj. 'i Sue Derivation and Lapse. 
 
 ' 1 liiiin's r-:. L. ; i;3\ W Cat. 2, c. 4.
 
 OF REQUISITES Al'TER INDUCTION. 6<jl 
 
 prived ; j)rovidctl, that no title to cuiifcr or pifsiMit by 
 lapse shall accruo upon any deprivation ijisu fitcto, \ml 
 after six months after notice of such deprivation i;iven hy 
 the ordinary to the patron.' 
 
 He shall publicly and openly read the ordinary's certi- JUadmg the 
 ficate of his havin^- subscribed the declaration 'of con- c'^'"'":a'c "Mn» 
 forniity to the liturgy of the Church of !• ngland, as it is u"c dX° t.ou 
 now by law established, together with the same declara- of coofofimiy. 
 tion or acknowledgment, upon some Lord's dav, within 
 three months next after such subscri|)tion, in his parish 
 church where he is to otHciate, in the presence of the rou- 
 gregation theie assembled, in the time of divine service, 
 upon ])ain that every person failing therein, without some I'cnalty for 
 hiwful impediment, to be alhnvcd and ajij)roved by the tJi'i'iii'ib'- 
 ordinary of the place, shall lose such parsonage, vicarage 
 or benefice, curate's place, or lecturer's place rcs|)ectively, 
 and shall be utterly disabled and ipso facto dci)rived of 
 the same ; and the said parsonage, vicarage or benefice, 
 curate's place or lecturer's place, shall be void as if he 
 was naturally dead.' 
 
 A doubt has been raised, whether the design of the act 
 was, that the clerk should only read the bishop's certi- 
 ficate to the congregation, in testimony of his having sub- \ttc&sity for 
 scribed the declaration before liim, or whether, after having rcpeatm'j ihc 
 read the certificate, he should not also make the same dc- ^iccUanon of 
 claration agani m lorm before the congregation, wniclj 
 point has never been judicially determined ; but the latter 
 opinion is not only more safe, but has also been thought 
 more agreeable to the tenor of the act than the bare read- 
 ing of the certificate." 
 
 Upon these statutes it is to be observed, that the depri- Dcurivaiion in 
 vation is to be, ipso facto, ujion the neglect or default, so such ta..c!. li 
 that no declaratory sentence of deprivation would be neces- 'i'*"-/"^'"' 
 sary ; for, as it has been observed, if it were so, the sta- 
 tute would be defrauded at the pleasure of the ordinary if 
 he would not deprive ; and this, it is said,^ is the receivcil 
 interpretation of the statutes, although in a very old case' 
 the contrary seems to have been supposed. And althouuh 
 the necessity of notice being given to the patron by the 
 bishop, and the provision as to lajise is nientioned only ia 
 the second statute, yet it seems as to that, that it is to be 
 the same under the others, and that lapse accrues in neitlier 
 case by such deprivation until six months after such notice 
 given/ 
 
 » 13 i:iiz. c. 12, s. 3. 
 
 t 13&; 14 Car. 2, c. 4, s. 11. " Gibs. 817 ; I lUirn's i:. I-. Iknchcc. 
 
 ^ Ibid. y Bacon v. DiiAd/i kJ Varlhle, 1 Uuro's t. L, 18U. 
 
 s See Deprivation and Lapse.
 
 502 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Usual time of Although the different times of one month, two months, 
 reading in. q^^^ three months, are mentioned in these statutes as the 
 times within which each declaration respectively is to be 
 read, they are usually read on the same Sunday, and con- 
 stitute what is termed " reading in." 
 How the months The months in this case are not to be reckoned accord- 
 are to be com- ^j^g ^Q ^|-jg ecclesiastical computation, and as calendar 
 months, but as months of twenty-eight days only ; for in 
 an old case, mentioned in Burn's Ecclesiastical Law, 
 where the induction was September 15th, and the articles 
 were read November 15th, this was adjudged insufhcient. 
 That case, however, scarcely appears sufficient to prove 
 the point for which it is there cited ; for the reading of the 
 articles in that case could not be said to be within the two 
 months, even if the months were reckoned according to 
 the calendar ; for where the computation is to be made 
 from or after an act done, the day of doing the act is to be 
 included. 
 
 From the case last mentioned, and from the words of 
 
 the statutes, it would have followed, that if neolect or de- 
 
 iiie omissionis fj^^^j^ ^^^^^ ^^^^^ made in readino- in within the proper time, 
 
 cured in certain . , , , » . ,- ^i ^ x- 
 
 cases by reading it coulcl not have been cured by readnig ni atter that tune ; 
 
 in at any time, but by the statute 33 Geo. il. c. 28, it is enacted, that 
 whereas it hath happened, and may happen, through sick- 
 ness or other lawful impediment, that divers persons have 
 been and may be hindered from reading the said articles, 
 and making the said declaration, within the two months ; 
 and yet such person, after such sickness or other lawful 
 impediment removed, hath read or may read the said 
 articles, and hath made or shall make the said declara- 
 tion, and itis resonable that such })ersons shall be deemed 
 to have complied with the true intent and meaning of the 
 said act ; every person who hath read or shall read the 
 said articles, and hath made or shall make the said decla- 
 ration, at the same time that he did read or shall read the 
 morning and evening prayer, and declare his unfeigned 
 assent and consent thereunto, according to the form in 
 13 & 14 Car. II. c. 4, s. G, shall be and is hereby declared 
 and adjudged to have comi)lied with the true intent and 
 meaning of the said act of the 13 Eliz., although the same 
 were not or may not be read within the space of two 
 months after such person's induction into any benefice 
 with cure; and every such person shall hr. liccd and dis- 
 cliwrgcd from any deprivation or other forl'citur(! by virtue 
 of the said act. 
 
 Cciiificaic of It is prud(;nt to obtain I'roni the churchwardens, or 
 
 sliould"bc ob- ^^^^ other inhabitants of the parish, a certificate that the 
 
 taincd.
 
 OF REQUISITES AFTER INDUCTION. 503 
 
 new incumbent has complied with the alj<jve lonns, which 
 are required to be observed in the church; a printed f'urni 
 of which certificate, as here set fortli, is usually sup|)li<jd 
 by the bishop's secretary at the time of institution or col- 
 lation.'* 
 
 Memorandum.— That on Sunday, the day of , Form of ihecer- 
 
 in the year of our Lord one thousand eight hundred and "''"'*• 
 
 , A. B., rector (or vicar) of the rectory (or vicaraj^e) of 
 
 the parish church of , in the county of and dio- 
 cese of, did read, in his parish churcli of , aforesaid, 
 
 the articles of religion, commonly called the Thirty-.Nine 
 Articles, agreed upon in convocation in the year of our 
 Lord 1562, and did declare his unfeigned assent and con- 
 sent thereto : also that he did publicly and oj)enly, on the 
 day and year aforesaid, in the time of divine service, read 
 a declaration in the following words, viz. : " I, A. 13., do 
 declare that I will conform to the Liturgy of the United 
 Church of England and Ireland, as it is now by law esta- 
 blished ;" together with a certificate, under the hand ol" the 
 
 right reverend , by Divine permission lord bishop of 
 
 , of his having made and subscribed the same before 
 
 him : and also that the said A, B. did read, in his parish 
 church aforesaid, publicly and solemnly, the morning and 
 evening prayer, according to the form jirescribed in and 
 by the book entitled the Book of Common Prayer, and 
 Administration of the Sacraments, and other Rites and Cere- 
 monies of the Church, according to the use of the united 
 Church of England and Ireland ; together with the I'salter 
 or Psalms of David, pointed as they are to be said or sung 
 in churches, and the form and manner of making, ordain- 
 ing, and consecrating bishoj)s, priests and deacons ; and 
 that, immediately alter reading the evening service, the 
 said A. B. did openly and publicly, before the congregation 
 there assembled, declare his unfeigned assent and consent 
 to all things therein contained and jjrescribed, in these 
 words, viz. : " I, A. B., do declare my unleigneil assent anil 
 consent to all and every thing contained and prescribed in 
 and by the book intituled the Book of Conunon Prayer 
 and administration of the Sacraments, and other rites and 
 ceremonies of the Church, according to the use of the 
 united Church of England and Ireland ; together with the 
 Psalter or Psalms of David, pointed as they arc to be sung 
 or said in churches, and the form and mainu'r of making, 
 ordaining and consecrating bishops, priests and tieaeons : 
 and these things we promise to testify ui)on our corporal 
 oaths, if at any time we should be duly called thereto. 
 
 » Hodgson's Instructions.
 
 504 
 
 now POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Use of preserv- 
 ing evidence 
 that the requi- 
 sites after in- 
 duction have 
 been complied 
 with. 
 
 VV'hat is prinid 
 facie evidence 
 that requisites 
 liave been com- 
 plied with. 
 
 It will be pre- 
 sumed that the 
 requisites have 
 been complied 
 with, unless 
 some evidence 
 is given to the 
 contrary. 
 
 In witness whereof we have hereunto set our hands, the 
 day and year first above written.'' 
 
 C. D. G. H. 
 E. F. I. K. 
 
 We have said that it is prudent for the incumbent to 
 obtain the above certificate ; and it will have been observed, 
 also, that, in the other requisites to be observed on admis- 
 sion and institution, some entry or certificate is always 
 directed to be made, in order that evidence may be pre- 
 served that all the requisites have been complied with, if, 
 in the case of suits or actions brought by the incumbent, 
 his title should be disjnited. And it seems to have been 
 formerly doubted whether in such cases it was not neces- 
 sary for the incumbent to prove his title, by proving his 
 admission, institution, induction, and reading the articles, 
 &c. ; and it was said in an old case, that although at law 
 they liold the parson to proof of these things, yet they 
 never do it in equity.'^ 
 
 It has been held, however, that fifteen years' possession 
 is jnima facie e\'\CiQ\\cc of a regular induction to a benefice, 
 and of having read the Thirty-nine Articles;'' but it seems, 
 without any length of possession, regular induction, with 
 all its after requisites, will be presumed. Nor need these 
 be proved, in any case, in the first instance; but if, upon 
 examination of the registers, a suspicion be induced that 
 such requisites have not been complied with, it may be fit 
 for a jury to take it into consideration.* And that this is 
 the law appears to be completely and fully established by 
 the following case. 
 
 In an action for money had and received to the pkiintifF's 
 use, the defendant pleaded the general issue; and the 
 cause came on to be tried before DeGrcy, chief justice, at 
 th(! sittings after Iv.islcrTorm. A verdict was given for the 
 plaintiii' on the following case. The ])laintifi", in 1770, 
 was nominated and aj)pointed to the donative of Chester- 
 le-Street in the diocese of Durham, with cure of souls. He 
 was then in j)riest's orders, and had subscribed the Thirty- 
 nine Articles, and the three articles in the thirty-sixth 
 canon, at the time of his ordination; l)ut did not prove at 
 the trial of the cause (though required so to do) that he 
 sid)scribed the articles before the Bishop of Durham as or- 
 dinary of the diocese, nor that he had ])ublicly read the 
 same in the church of Chester-le-Street aforesaid, with de- 
 claration of his assent to the same; nor that he had sub- 
 scribed the declaration in the statute of 13 k 14 Car. II., 
 
 '' Hodgson's Instructions. 
 
 '■ Woodcnck \.^milh, 'I'. 1718, quoted 1 Burn's K. L. IJcneficc. 
 
 <l 3 Ansi. 942. ^' 3 Wils. 367.
 
 OF REQUISITES AFTER INDUCTION. 5U5 
 
 since his nomination U) the doniitive; nor thiit lie had a 
 license from the bishop to preach in the said church uf 
 Chester-le-Street. The question was, whether he was in a 
 situation to maintain tliis action. The case was ar<rued in 
 tw'o several terms ; after which the lord chief justice deli- 
 vered the oj)inion of himself, Gould, Blackstone and Narcs, 
 justices. There have been two questions made upon this 
 case : first, whether an incumbent of a donative, with cure, 
 is obliged to conform to the statutes of Elizabeth and 
 Charles II. Secondly, whether in this action it was neccs- 
 sary for him to give evidence that he had performed the 
 several requisites contained in these statutes. As our 
 opinion is founded upon the second question, it is not ne- 
 cessary, nor do we give any judicial determination upon 
 the former. But we strongly incline to think that dona- 
 tives, with cure of souls, are within all the reasons, religious 
 as well as political, upon which those facts are founded. 
 As to the second question, we are all of opinion, that in 
 the present case, as no evidence was given by the defendant 
 to raise a doubt whether the plaintiff had subscribed, it 
 was not incumbent on him to give evidence of his having 
 actually done so. The presumption always is, that every 
 man conforinsto the law, and that presumption shall stand 
 till something appears to shake it. Nor is the defendant 
 hereby put upon proving a direct negative. It is a nega- 
 tive qualified with circumstances : some of these ceremonies 
 are to be performed publicly, within a limited time ; regis- 
 ters are kept of others. And if evidence had been given 
 that a person had regularly attended the church, and heard 
 nothing of this matter ; or if a search had been made in 
 the bishop's register, and nothing had been found tiierein, 
 this would have destroyed the presumjjtion, and put the 
 plaintiff on proof of his having performed those requisites. 
 And he mentioned Dr. Sherard's case before Mr. Justice 
 Wilmot, at Saruin assizes, about ten years before, where a 
 prebendary brought an ejectment for a house belonging to 
 his prebend, and was required to show that he luid |)er- 
 formed the requisites necessary by law to make him pre- 
 bendary ; the judge held, that it ought to be presumed he 
 had performed them, till something ajipears to the contrary. 
 
 Section 6. 
 Of Lapse. 
 The present branch of our treatise would appear to be An inndem lo 
 incomplete, if we omitted to mention the subject of lapse, ij";.oJ,^5on°
 
 506 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 yet it is one which concerns the clergyman indirectly only, 
 being an incident to the right of advowson and presenta- 
 tion, in which the patron is more directly interested ; for 
 it is a manner in which his right becomes forfeited, before 
 it has been exercised ; and, consequently, before the right 
 of advowson has become connected with the rights and 
 laws of the clergy. 
 
 Lapse has been called a slip or omission of the patron 
 Meaning of the to present to a church within a certain time ;^ but the word 
 "'°''<^- ii^^ay, perhaps, more properly be defined as the lapse or 
 
 devolution to another of a right which the proper party has 
 neglected to exercise ; but whether it mean the slip of the 
 patron, or the act of devolution, it is a forfeiture, whereby 
 Definition of, the right of presentation to a church accrues to the ordi- 
 nary by neglect of the patron to present ; to the metropo- 
 litan, by neglect of the ordinary ; and to the king, by neg- 
 lect of the metropolitan. For it being for the interest of 
 religion, and the good of the public, that the church should 
 be provided with an officiating minister, the law has there- 
 fore given this right of lapse, in order to quicken the pa- 
 tron, who might otherwise, by suffering the church to re- 
 main vacant, avoid paying his ecclesiastical dues, and frus- 
 When first esta- trate the pious intentions of his ancestors.^ This right of 
 bhshed. lapse was first established about the time (though not by 
 
 the authority) of the council of Lateran, which was in the 
 reign of our Henry TL, when the bishops first began to 
 exercise universally the right of institution to churches.'' 
 Incurred in six The term, or space within which the title to present by 
 calendar lapse accrues from the one to the other successively, is six 
 
 months. months; and as the computation of time concerns the 
 
 church, it is made according to the rules of the canon law, 
 that is, by the calendar, for one half year; not counting 
 twenty-eight days to the month. And the day on which 
 the church becomes void is not to be reckoned in the ac- 
 count.' 
 Patron and or- If the bishop be both patron and ordinary, he shall not 
 dinary the same have a double time allowed him to collate in ; for the for- 
 I^erson. feiture accrues by law, whenever the negligence has con- 
 
 tinued six months in the same person."* And also if the 
 bishop doth not collate liis own clerk immediately to the 
 living, and the patron presents, though after the six months 
 are elapsed, yet his presentation is good, and the bishop is 
 Wlien lapse boiiiid to institute the patron's clerk. For as tin; law only 
 may be pre- gives the bishop this title by lapse, to punish the j)atron's 
 
 ' Godolp. 242 ; Rogers's K. L. 485. (f Cruise's Dig. tit. xxi. c. 11. 
 
 »> 2 Hum's E. L. 35.0. i Gibs. 7G0; 2 Inst. 361 ; Cruise's Dig. ibid. 
 
 k Wats. c. 12 ; Gibs. 796.
 
 OP REQUISITES AFTER INDUCTION. ^()7 
 
 negligence, there is no reason that, if the bisliop himself 
 be guilty of equal or greater negligence, the patron should 
 be deprived of his turn.' 
 
 But if the ordinary or metropolitan has actually collated Noi after ordi- 
 his clerk to the lapsed benefice, while the turn was respec- "^7 or mciro- 
 lively theirs, although the clerk be not inducted, and so f^'jj"' '•aJ col- 
 the church be not completely full, it is a sutticient bar to 
 the patron's presentment.'" 
 
 If the bishop suffer the presentation to lapse to the me- Patron's riglu 
 tropolitan, the patron also has the same advantage, if he after lapse to 
 presents before the archbishop has filled uj) the benetice ; [!"= rae"opo- 
 and that for the same reason. Yet the ordinary cannot, 
 after lapse to the metropolitan, collate his own clerk to the 
 prejudice of the archbishop. For he had no permanent 
 right and interest in the advowson as the j)atron had, but 
 merely a temporary one; which, having neglected to make 
 use of during the time, he cannot afterwards retrieve." 
 
 It follows, therefore, that lapse is not an absolute for- 
 feiture of the patron's right, but that another pei'son thereby 
 acquires a right, which is yet not wholly lost to the patron ; 
 the forfeiture is not absolute, until that right has been ac- 
 tually exercised by the ordinary or metropolitan. 
 
 But if a presentation lapses to the king, prerogative here Lapse to the 
 intervenes and makes a difference ; and the patron shall •''"ij- 
 never recover his right, till the king has satisfied his turn 
 by presentation: for " nullum tempus occun-it rer/i." And, 
 therefore, it may seem as if the church might continue void 
 for ever, unless the king shall be pleased to present, autl a 
 patron thereby be absolutely defeated of his advowson. 
 But to prevent this inconvenience, the law has lodged a 
 power in the patron's hands of, as it were, compelling the 
 king to present. For if, during the delay of the crown, 
 the patron himself j)resents, and his clerk is instituted, the 
 king, indeed, by presenting another, may turn out the pa- 
 tron's clerk; or, after induction, may remove him by ^jiKire 
 impedit ; but if he does not, and the patron's clerk ilies 
 incumbent, or is canonically deprived, the king hath lost 
 his right, which was only to the next or first j)rcsentation." 
 
 In the case of an advowson donative, where there is no Donatives, 
 right of institution, no lapse incurs by the non-jjresentation 
 of the patron within six months; the ordiir.iry n)ay, how- 
 ever, compel the patron to present by means of ecclesias- 
 tical censures.i' . Ijiihop dying 
 
 If title by lapse accrue to a bishop, and he die, or is aft^r title by 
 
 lapte acciue> to 
 ' 2 Inst. 273 ; Cruise's Dig. lit. xxi. c. 11. '" Wais. c. 12. him. 
 
 » Ibid. ; 2 Black. Com. 276. " 2 Black. Com. 276. 
 
 P Wats. 107 ; Cruise's Dig. ibid.
 
 508 
 
 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 Lapse must first 
 accrue to the 
 ini mediate 
 oidinary. 
 
 From lime of 
 patron's know 
 ledge thereof. 
 
 translated, or deprived before he takes the benefit of it, the 
 devohition is to the metropolitan as guardian of the spiri- 
 tualties, as this is iiot an interest, but a personal trust. 
 
 It is said to be doubtful whether the devolution be to 
 the metropolitan or to the king, in case of benefices be- 
 longing to the see ; but it seems the presentation in such 
 a case belongs to the king. 
 
 Title by lapse can never accrue to the metropolitan or 
 to the king, unless it has previously accrued to the imme- 
 diate ordinary, even though the lapse be lost by default of 
 the ordinary, as for the want of giving notice or the like.*' 
 
 Thus far the law of lapse appears to be very clear ; and 
 
 few questions appear to have arisen on it. It may be more 
 
 from what time difficult in each case to determine from what time the six 
 
 the SIX months months after which the lapse takes place are to be corn- 
 arc to be com- ^ -, '■ ' 
 putcd. puted. 
 
 Tlie ruleof the canon law in all cases is, that the six months 
 should be reckoned, not from the time of the avoidance, but 
 from the time when the patron had notice of the avoidance. 
 As if the incumbent dies beyond sea, the six months shall 
 not be counted from the time of his death, but from the 
 time of the ])atroirs knowledge thereof.' And so it is said 
 that it was adjudged upon a writ in the reign of Edward 
 the Second ; and Watson says, " it has been holden that the 
 six months for lapse on an avoidance shall not be accounted, 
 but from the time the j)atron could reasonably be supposed 
 to have notice of the incumbent's death, especially if the 
 patron or incumbent should happen to be beyond the seas, 
 or in some remote country within the realm at the time of 
 such avoidance ;" btit by the connnon law of iMigland, the 
 six months he supposes arc to be ticcounted from the time 
 of the death of the last incumbent.^ 
 
 It has been laid down in ;i modern work that the law, 
 as now understood, seems to be, that where the avoidance 
 is occasioned by the ac^t of (iod, as in case of death, or by 
 the act of the iiicund)ent himself, as in the case of cession, 
 no notice need l)e given ; btit the patron is bound to take 
 notice of it, and so tinu" rinis from the, time of the death or 
 cession.' It is presumed, however, that tliis statement must 
 still admit of the exce])tion or (pialilic ation that even where 
 the avoidance is occasioned by the act of God, yet if the 
 incutidjent was beyond seas, time is not to be computed 
 from the time of the. death, but from the time of notice oi 
 intelligence of it arriving in this country. Lapse might 
 
 'I 2 liurn's E. I-. 358 ; Gibs. 7fi9. 
 
 !• 2 Roll's Abr. 363 ; Cruise's Dig. tit. xxi. c. 1 1, 
 
 » Wats. c. 1. 
 
 ' Uogeis's E. L. AW.
 
 OF REQUISITES AFTER INDUCTION'. f,()0 
 
 otherwise occur, without tlio slip or omission of Ihc patron ; 
 and his right would be unjustly forfeited, without any n-a- 
 sonable presumption that'tlie church could be the sooner 
 filled ; for which purpose, it will be remembered, that the 
 right of lapse was given. 
 
 The patron must take notice, at his j)eril, of all those Cases in which 
 cases, and lapse accrues as against him : — '•'« p>ff"" "•"»» 
 
 Where tlie avoidance is by the act of God." l^^Z:^^. 
 
 Where the avoidance is created by an union. As there can his ptril. 
 be no union without the patron's knowledge, and it must 
 be appointed who shall present after that union, the patron 
 must necessarily be privy to it, and to the avoidance con.se- 
 quent on it ; so the six months are to be accounted from 
 the time of the agreement.'' 
 
 Where tlie incumbent has accepted such otlier prefer- 
 ment, as under the statute to j)revent holding benefices in 
 plurality^ would render that already held by him void ; for 
 these are considered matters of equal notoriety to the })a- 
 tron and ordinary. 
 
 Where a lay patron has presented a clerk to the bishop, 
 and the bishop refuses him for some temporal cause. 
 
 Where an ecclesiastical person has j)resentcd a clerk to 
 the bishop, and the bishop refuses him for a temporal cause, 
 or for default of learning, or because lie is a heretic or 
 schismatic, or, as it would seem, for any other cause. But 
 it may be questioned whether, in these latter cases, it would 
 not be proper to give notice.'' 
 
 Where the clerk of an ecclesiastical patron is refused 
 quasi criminosus, although notice must be given in order 
 that another clerk may be ])resented, yet the six months 
 reckon from the avoidance and not from the notice. 
 
 But no la])se shall accrue, except from the time when the Cases ulicie the 
 ordinary gives notice to the patron. onJmary mu»i 
 
 Where the avoidance happens by an act done by privity ^|,g „m,oti. 
 of the ordinary and incumbent, as in all cases of 
 
 Resignation, and 
 
 Deprivation. 
 
 For these are not matters of equal notoriety to the pa- 
 tron and the ordinary." 
 
 And so where the bishoj) refuses to present the clerk of 
 a lay patron for default of learning, or because he is a 
 schismatic or heretic, or for any other matters of eccle- 
 siastical cognizance, for the law, as it seems, does not 
 
 » 2 Burn's E. L. 356; 2 Inst. 632. 
 ^ llogers's K, L. 489. > 1 & 2 Vict. c. 106. 
 
 '• Wats. c. 12 ; vide /'. v. ArchbiJtop of Caiilerbmii and Bhhop of London, 
 15 East, 143. 
 » Dyer, 292.
 
 510 HOW POSSESSION OF BENEFICE IS TO BE OBTAINED. 
 
 presume a lay patron to be always capable of choosing a 
 proper clerk in such respects, and therefore if he presents 
 an insufficient one, it is not to be at his peril.'' 
 
 Where a sequestration has issued under the provisions 
 of the act to prevent holding benefices in plurality, for 
 Mode in which disobedience to the bishop's monition or order ; or if two 
 the bishop is to sucli scqucstrations shall have issued within the space of 
 give notice to ^^^^ years, and neither of them shall have been set aside 
 where the in- upon appeal, such benefice shall thereupon become void, 
 cumbent has that is to Say, the incumbent shall be deprived ; and, 
 ^^^] '^^P'"'^^'^ according to the established law, such would have been the 
 visions of 1 & 2 case where notice should have been given, and where the 
 Vict. c. 106. period of lapse would have commenced from the time of 
 giving such notice ; but it has been thought fit in this, as 
 in so many other instances, to re-enact in substance the 
 previously acknowledged law, or rather to make a dis- 
 tinction in the mode of giving notice in this and in other 
 kinds of deprivation ; for it is enacted that the bishop, on 
 such benefice so becoming void, shall give notice in 
 writing under his hand to such patron, which notice shall 
 either be delivered to such patron, or left at his usual place 
 of abode, or if such patron or place of abode shall be un- 
 known, or shall be out of England, such notice shall be 
 twice inserted in the London Gazette, and also twice in 
 some newspaper printed and usually circulated in London, 
 and in some other newspaper usually circulated in the 
 neighbourhood of the place where such benefice is situated; 
 and for the purposes of lapse, the avoidance of the bene- 
 fice shall be reckoned from the day on which such notice 
 shall have been delivered as aforesaid, or from the day on 
 which six montlis shall have expired after the second pub- 
 lication of such notice in the London Gazette, as the case 
 may be ; and every such notice in the Gazette and news- 
 papers shall state that the patron, or the place of abode 
 of the patron, is unknown, or that he is said to be out of 
 England, as the case may be, and that the benefice will 
 lapse, at the furthest, after the expiration of one year from 
 the second publication thereof as aforesaid ; and upon any 
 such avoidance, it shall not be lawful for the patron to 
 appoint by donation, or present or nominate to such bene- 
 fice so avoided, the person, by reason of whose non-resi- 
 dence the same was so avoided.' 
 Same mode of By the same statute it is declared, that if any spiritual 
 
 giving notice i)crson shall trade or deal in any manner contraiy to the 
 where clergy- ' '' ■' 
 
 man is deprived ^ ^ Inst. 632 ; 2 Roll. Ali. 364 ; 2 Mum's E. F.. 
 
 for illegal „ Sect. 60. The particularity to be observed in the mode of giving tliis 
 
 trading. notice, seems to have provided inucli probable difficulty and litigation.
 
 OF REQUISITES AFTER INDUCTION. .01 1 
 
 provisions of that act, and wliicli i)rovisions we have else- 
 where noticed, he shall tor his third ofibnce be deprived 
 ab officio et benejiclo, in whicii case, although it is pre- 
 sumed the law was previously fully clear and sufhcient, it 
 is enacted that the bishop' shall forthwith give notice 
 thereof in writing under his hand to the patron of the jire- 
 ferment held by the person deprived, such notice to be 
 given in the manner in wliich notice is required to be 
 given to the patron of a benefice continuing under seques- 
 tration for one whole year, and thereby becoming void; 
 and any such cathedral preferment or benefice shall lapse, 
 at such period after the said notice, as any benefice con- 
 tinuing under sequestration for one whole year would 
 lapse under the provisions of that act.'' 
 
 Where deprivation is the penalty annexed bv statute ^Vllcre clerpy- 
 for neglect or default of reading in in the church after in- 1?™"" '* '^^P"*'^ 
 duction, according to such forms as have been already in.noiicrm'uit 
 mentioned, it is expressly declared by the statute, that no l>e given to 
 lapse can accrue but after six months after notice of such P*'^""- 
 deprivation, given by the ordinary to the patron.* 
 
 In all cases where lapse would not occur without notice, Lapse in case of 
 if the ordinary die before it is given, no lapse can occur to ^^^''' °^''"^ 
 his successor before notice by him ; and in case of deatii °' '"^^•^* 
 after lapse, the king, by his prerogative, shall have the 
 presentment, and not the executors of tiie ordinary. '^ 
 
 In all cases where the patron is to have notice, it ouglit 
 to be given to himself, if he be resident in the county ; if 
 not, it should be affixed to the church door, so that public 
 intimation may be given. But it appears to be among the 
 doubtful questions which may arise under the provisions 
 of the statute 1 & 2 Vict. c. 106, s. 58, whether the former 
 mode of giving notice is superseded. 
 
 <» Sect. 31. = 13 & 14 Car. 2, c. i, s. 16. 
 
 f Hob. 154 ; Rogers's E. L. 490.
 
 512 
 
 CHAPTER II. 
 
 OF THINGS INCIDENT TO THE POSSESSION OF A 
 
 BENEFICE. 
 
 Section 1. 
 
 Of Residence. 
 
 When a clergyman has, in the manner before mentioned, 
 obtained full possession of his benefice, and thereby be- 
 come a complete incumbent, he is subject in consequence 
 to two particular restrictions. He is generally compelled 
 to reside upon that benefice, and while holding it, he gene- 
 rally is incapable of taking and holding any other. These 
 two general restrictions, and the particular cases of ex- 
 ception from them, are therefore to be here considered. 
 
 In neither of these matters does it appear useful to 
 enter into the state of the law as it may formerly have 
 existed on these subjects. Various statutes have at dif- 
 ferent times been passed, and the law, in both instances, 
 has undergone considerable variation, but it is now en- 
 tirely dependent on, and appears to have been satis- 
 factorily settled by, the recent statute of the 1 & 2 Vict. 
 C.106. 
 Residence And first, as regards residence, it is the principle of that 
 
 V'icrc'''ior^^ act, that every beneficed clergyman should be compelled to 
 reside upon his benefice, or if he have two benefices, upon 
 one of them. 
 Every incum- Every spiritual person holding any benefice shall keep 
 
 bent to leside residence on his benefice, and in the house of residence (if 
 andtur"''' '^"y) belonging thereto; and if any such person shall, 
 liouseof resi- without any such license or exemption as is in this act 
 dence. allowed for that purpose, or unless he shall be resident at 
 
 some other benefice of which he maybe possessed, absent 
 himself from such benefice or from the house of residence, 
 Forfeiiure of if any, for any period exceeding the space of three months 
 part of the 1 together, or to he accounted at several times in any one 
 irr'. r.!l.or ° ' y(^""-, 1'^" «l»'^^ll, ^vhen such absence shall exce<'d three 
 tiomd to (he 1 months, and not exceed six months, forfeit onc-thnd part 
 lent;ih of i.oii- (,f \\^^, annual value of the benefice from whith he shall so 
 residence. .jj^cnt himself; and when such absence shall exceed six
 
 a 
 
 nee 
 
 OF RESIDENCE. '>13 
 
 months, and not exceed eight months, one half part of 
 such annual value; and when such absence shall exceed 
 eight months, two-third parts of such ainiual value; and 
 when such absence shall have been for the whole of th<,' 
 year, three-fourth parts of such annual value." 
 
 Any bishop, upon a])plication in writing by any spiritual 
 person holding any benefice within his diocese, whereon 
 there shall be no house or no fit house of residence, by 
 license under his hand and seal, to be registered in the License to re- 
 registry of the diocese, which the registrar is by the act *"^'-" **"'"" ■ 
 requn-ecl to do, may permit such person to reside m some ofiiiccliunh 
 fit and convenient house, althoutih not bclonjiin"; to such where iiure is 
 benefice; such house to be particularly described and "" *'M'a'^n>8e 
 specified in such license, and for a certain time to be therein 
 also specified, not exceeding the jjcriod by the act limited, 
 and from time to time, as such bishop may think tit, he 
 may renew such license, and every such house shall be a 
 legal house of residence for such specified time to all in- 
 tents and purposes; provided that no such license shall be 
 granted to such spiritual person to reside in any house, 
 unless it be within three miles of the church or chapel of 
 such benefice, nor in case such church or chapel be in any 
 city or market, or borough town, unless such house be 
 within two miles of such church or chapel.'' 
 
 In cases where houses of residence have been purchased, Houses built or 
 built or procured, or may hereafter be purchased, built or procntd by 
 procured, by the governors ot Queen Anne s Bounty, and bounty when lo 
 which, though not situated in the parish, are yet so near be decmeJ the 
 thereto as to be sufliciently convenient and suitable for the rpsular houses 
 residence of the officiating minister, such houses having ° 
 been previously approved Isy the bishop of the diocese, by 
 writing under his hand and seal, duly registered in the re- 
 gistry of the diocese, shall be deemed the houses of resi- 
 dence belonging to such benefices, to all intents and pur- 
 poses whatsoever.*^ 
 
 Such being the general and simple rule laid down re- Kxcejitlons from 
 specting residence, the statute proceeds to deteruiini' the "*^ ^ ^erue-. 
 cases of exemption and exceptions from it as follows: 
 
 No spiritual person, being head ruler of any college or HcaJs of col- 
 hall within either of the universities of Oxford or (>am- Ke". ^*<«^- 
 bridge, or being warden of the university of Duriiam, or 
 being head master of Eton, Winchester or Westminster 
 School, or principal or any professor of the I'^ast India 
 College, having been appointed such principal or professor 
 before the time of the passing of the act, and not having 
 respectively more than one benefice with cure of souls, 
 
 » 1 & 2 Vict. c. 106, s. 32. " Sect. 33. <= Sect. 34. 
 
 h L
 
 514 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 shall be liable to any of the penalties or forfeitures in this 
 act contained for or on account of non-residence on any 
 benefice,'^ 
 Certain other No spiritual person, being dean of any cathedral or col- 
 
 partiesexempted jgoiate church, during such time as he shall reside upon 
 w^nn^nlii"' hls deaucry, and no spiritual person, having or holding any 
 dence while ac- professorship, or any public readership in either ot the said 
 tuaily engaged universities, while actually resident within the precincts of 
 ihitiereuJ-'' the university, and reading lectures therein (provided that 
 where. a certificate under the hand of the vice-chancellor or war- 
 
 den of the university, stating the fact of such residence, 
 and of the due performance of such duties, shall in every 
 such case be transmitted to the bishop of the diocese wherein 
 the benefice held by such spiritual person is situate, within 
 six weeks after the 31st day of December in each year), 
 and no spiritual person, serving as chaplain of the queen 
 or king, or of the queen dowager, or of any of the queen's 
 or king's children, brethren or sisters, during so long as he 
 shall actually attend in the discharge of his duty as such 
 chaplain in the household to which he shall belong; and 
 no chaplain of any archbishop or bishop, whilst actually 
 attending in the discharge of his duty as such chaplain ; 
 and no spiritual person actually serving as chaplain of the 
 House of Commons, or as clerk of the queen's or king's 
 closet, or as a deputy clerk thereof, while any such person 
 shall be actually attending and performing the functions 
 of his office; and no spiritual person serving as chan- 
 cellor or vicar-general, or commissary of any diocese, 
 whilst exercising the duties of his office ; or as archdeacon, 
 while upon his visitation, or otherwise engaged in the ex- 
 ercise of his archidiaconal functions ; or as dean or sub- 
 dean, or priest or reader, in any of the queen's or king's 
 royal chapels at St. James's or Whitehall, or as reader in 
 the queen's or king's ])rivate chapels at Windsor or else- 
 where, or as preacher in any of the inns of court, or at the 
 rolls, whilst actually performing the duty of any such office 
 respectively; and no spiritual person, being provost of 
 Eton College, or warden of Winchester College, or master 
 of the Charter House, or principal of St. David's College, 
 or principal of King's College, London, during the time 
 for which he may be required to reside, and shall actually 
 reside therein respectively, shall be liable to any of the 
 penalties or forfeitures in tliis act contained, for or on ac- 
 count of non-residence on any benefice for the time in any 
 year, during which he shall be so as aforesaid resident, 
 engaged or performing duties, as the case may be ; but 
 
 •» Sect. 37.
 
 OP RESIDENCE. 515 
 
 every such spiritual person shall, with respect to residence 
 on a benefice under this act, be entitled to account the 
 time in any year during vvliicli he shall be so as aforesaid 
 resident, engaged or performing duties, as the case may 
 be, as if he had legally resided during the same time on 
 some other benefice.' 
 
 Any spiritual person, being prebendary, canon, priest Certain other 
 vicar, vicar choral, or minor canon, in any cathedral or pef»on«c«. 
 collegiate church, or being a fellow of one of the said col- J^^ffnlV 
 leges of Eton or Winchester, who shall reside and perform cx(»-..i,ni,' fi»e 
 the duties of such oflice, during the period for which he "i^"'''^ ''> e«ch 
 shall be required to reside and perform such duties by the ^^"' 
 charter or statutes of such cathedral, or collegiate church 
 or college, as the case may be, may account such residence 
 as if he had resided on some benefice; but this is not to 
 be construed to permit or allow any such prebendary, 
 canon, priest vicar, vicar choral, minor canon or fellow, to 
 be absent from any benefice, on account of such residence 
 and performance of duty, for more tlran five months alto- 
 gether in any one year, including the time of such residence 
 on his prebend, canonry, vicarage or fellowship; but any 
 spiritual person, having or holding any such otlice, in any 
 cathedral or collegiate church or college, in which the year 
 for the purposes of residence is accounted to commence at 
 any other period than the 1st of January, and who may 
 keep the periods of residence required for two successive 
 years at such cathedral, or collegiate church or college, in 
 whole or in part, between the 1st of January and the 31st 
 of December in any one year, may account such residence, 
 althouo-h exceedino- five months in the vear, as reckoned 
 from the 1st of January to the 31st of December, as if he 
 had resided on some benefice. '^ 
 
 The statute has no retrospective operation, so as to affect Persons eiempt 
 the riohts of those previously exempt from residence; for ij^foiethe art 
 
 ., ■ P , 1 .1 X • ■ . I 1 • • not artecled by 
 
 it IS declared that every spuitual person, benig in posses- j, a* lo i.itu'- 
 sion of any benefice, at the time of the i)assing of the act, fioe* ilun helJ 
 and entitled by the law, previously in force, to exemjUion ^y '''«"»• 
 from residence, or to ajiply for a license for non-residence, 
 shall, as to every such benefice, but not as to any after- 
 taken benefice, be entitled to the same exempt ion from 
 residence, and to the same capacity of applying for and 
 obtaining a license for non-residence, and to the same right 
 of appeal, in case of refusal or revocation of a license, to 
 which he was entitled before the time of the passing of this 
 act ; and every bishop and other person empowered before 
 the passing of this act to grant such license to sucn spiri- 
 e Sect. 38. ' Sect. 39. 
 
 L l2
 
 516 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 tual person, shall have the Uke power after the passing 
 thereof.^ 
 Particular cases In addition to these general cases of exemption, pro- 
 of exemption, vided for by the statute, it is provided that, in particular 
 instances, tlie bishop, at his discretion, may grant licenses 
 for non-residence. The manner in which they are to be 
 apphed for, and the cases in which they may be obtained, 
 are as follows : 
 Licenses for ex- Every spiritual person, applying for a license for non- 
 emptioD how residence, must present to the bishop a petition, signed by 
 applied or. himself, or by some person approved by the bishop in that 
 behalf, and the petition must contain the following par- 
 ticulars : 
 Particulars to be 1. Whether sucli Spiritual person intends to perform the 
 contained in the (duties of his benefice in person, and if so, where and at 
 pe 1 ion. what distance from the church or chapel he intends to 
 
 reside. 
 
 2. What salary he proposes to give his curate, if he in- 
 tends to employ one. 
 
 3. Whether such curate proposes to reside in the parish 
 in which such benefice is situated. 
 
 4. If the curate does intend to reside, then whether in 
 the house of residence belonging to the benefice, or in any 
 and what other house. 
 
 5. If the curate does not intend to reside in the parish, 
 then at what distance therefrom, and at what place such 
 curate intends to reside. 
 
 6. Whether such curate serves any other and what 
 parish, and if so, whether it is as incumbent or curate; 
 whether he has any and what cathedral preferment, or 
 any and what benefice, or whether he officiates in any and 
 what other church or chapel. 
 
 7. The annual value and the population of the benefice 
 in respect of which any license for non-residence is ap- 
 plied for. 
 
 8. The number of churches or chapels, if more than one 
 upon such benefice. 
 
 9. The date of the admission to the benefice of the party 
 petitioning. 
 
 Without which The bishop has no discretionary power to grant a license 
 
 no license can {q^- non-rcsidcnce, unless everything above mentioned is 
 
 be granted. com|)lic(l with ; for it is declared that it shall not be lawful 
 
 for the bishoj) to grant any such license unless such ])eti- 
 
 tion shall contain a statement of the several particulars 
 
 aforesaid, and consequently any license granted uj)on a 
 
 K Sect. 40.
 
 OF RESIDENCE. 517 
 
 petition which did not contain such particulars would be 
 void.'' 
 
 Every such petition is to be filed in the repistry of the Pciiiion to l>« 
 diocese by the registrar thereof, and is to be open to in- '•'e'^- 
 spection, and copies thereof may be made with the leave, 
 in writing, of the bishop;' and, according to the words of 
 the statute, it seems that even if the petition were refused, 
 it must nevertheless be filed in the registry of the diocese, 
 and that there is no difierence in this respect. 
 
 The bishop, upon such petition being presented to him, 
 and upon such proofs being adduced, as to any facts stated 
 in any such petition, as he may thing necessary and shall 
 require, is empowered to grant in such cases as are herein- 
 after enumerated, in which he shall think fit to grant the 
 same, a license in writing under his hand for such spiritual 
 person to reside out of the proper house of residence of his 
 benefice, or out of the limits of his benefice, or out of the 
 limits prescribed by this act, for the purpose of exempting 
 such person from any pecuniary penalty in respect of any 
 non-residence thereon; which license shall express tiie 
 cause of granting the same license. 
 
 The following are the cases in which only the bishop is Cases in which 
 empowered to grant such licenses : *''^ bisiiop may 
 
 1. Where the clergyman is prevented from residing by fi^enser' 
 any incapacity of mind or body. Clergyman 
 
 2. In consequence of the dangerous illness of his wife incapiciiated. 
 or child, making part of his family, and residing with ninessofhis 
 him as such, a temporary license may be granted for a wiie or child, 
 period not exceeding six months; but no license on such 
 account is to be renewed, save with the allowance of the 
 archbishop of the province, previously signified under his 
 
 hand in pursuance of a recommendation in writing from 
 the bishop, setting forth the circumstances, proofs and rea- 
 sons which induce him to make such recommendation. 
 
 3. Where there is no house of residence, or where the ^J'''|^JJ'j"°^'^°"**' 
 house of residence is unfit for the residence of the clergy- 
 man, such unfitness not being occasioned by his negli- 
 gence, default or other misconduct ; such clergynian must, 
 
 in that case, keep the house of residence, if any, and the 
 buildings belonging to it in repair, to the satisfaction of 
 the bishop; and a certificate signed by two neighbouring 
 mcumbents, and counter-signed by the rural dean, if any, 
 must be first produced to the bishop, certifying that no 
 house convenient for the residence of such clergyman can 
 be obtained within the parish, or within the limits specified 
 by the act. 
 
 h Sect. 42. ' Ibid.
 
 518 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 Where clergy- 
 man occupies 
 another house 
 of his own 
 within the 
 paiish. 
 
 Appeal if 
 license is re- 
 fused. 
 
 Special licenses 
 in other cases 
 must be con- 
 firmed by the 
 archbishop. 
 
 Licenses during 
 vacancy of the 
 see, &c. 
 
 Fees for 
 licenses. 
 
 4. Where the clergyman is also the owner and occupier 
 of any other house in the parish, a license may be granted 
 to reside in such house ; in which case the clergyman to 
 whom such license is granted must keep the house of re- 
 sidence and buildings belonging to it in repair, and pro- 
 duce to the bishop proof thereof to his satisfaction at the 
 time of granting every such license.'' 
 
 It will be observed, therefore, that in order to enable 
 the bishop to exercise his discretionary power, not only 
 must the particulars mentioned be observed in the petition, 
 but the case must also fall within one of the four cases 
 last mentioned. In all these cases, however, upon refusal 
 by the bishop, the party petitioning may, within one month 
 after refusal, appeal to the archbishop.' 
 
 In any other cases than those we have already men- 
 tioned, the bishop, if he think it expedient, may grant a 
 license for non-residence, provided that the nature and 
 special circumstances of the case, and the reasons which 
 induced him to grant it, shall be forthwith transmitted to 
 the archbishop, who shall proceed therein as provided in 
 cases of appeal, and shall allow or disallow such license 
 in the whole or in part, or make any alteration therein as 
 to the period for which it may have been granted ; and no 
 such license shall be valid unless it shall have been so 
 allowed by the archbishop, such allowance being signified 
 by his signature. In such license it shall not be necessary 
 to specify the cause of granting the same.'" Licenses of 
 this latter kind are therefore to be considered rather as 
 licenses of the archbishop than of the bishop. 
 
 During the vacancy of any see the power of granting 
 such licenses for noii-residence is to be exercised by the 
 guardian of the spiritualties of the diocese, or in case the 
 bishop of any diocese shall be disabled from exercising in 
 person the functions of his oHice, such power is to be 
 exercised by the person or persons lawfully empowered to 
 exercise his general jurisdiction in the diocese. But no 
 license granted by any other than the bishop is to be valid 
 until the archbishop of the province has signified his ap- 
 probation of it by signing the same;" all such licenses are 
 temporary only, for no such license for non-residence shall 
 continue in force after the 31st of December in the year 
 next after the year in which such license shall have been 
 granted." 
 
 Every ])erson obtaining any license of non-residence 
 shall pay for the same, to the secretary or officer of the 
 
 I* Sect. 43. 
 n Sect. 45. 
 
 ' Ibid. 
 ° Sect. 46. 
 
 >" Sect. 44.
 
 OF RESIDENCE. 519 
 
 bishop or other person granting the same, the sum of ten 
 shillings over and above the stamp duty chargcublo thorcon, 
 and no more; and also the sum of three shillings, and no 
 more, to the registrar of the diocese ; and shall also pay 
 the sum of five shillings to the secretary of the archbishop 
 when any such license shall have been signed by sucli 
 archbishop. I' 
 
 No Hcense for non-residence shall become void by the Liron«es noi 
 death or removal of the bishop granting the same ; but the *"''' ^y ''«^»'*' 
 same shall be and remain valid notwithstandinir any such ^ i'!.""'?' rL 
 death or removal, unless the same shall be revoked as tiiL-m. 
 hereinafter mentioned.'' 
 
 Any archbishop or bishop who shall have granted any Licenses may 
 license of non-residence as aforesaid, or any successor of ^ revoked, 
 any such archbishop or bishop, after having given such in- 
 cumbent sufficient opportunity of showing reason to the 
 contrary, in any case in which there may appear to such 
 archbishop or bishop good cause for revoking the same, by 
 an instrument in writing under his hand may revoke any 
 such license : provided that any such incumbent nuiy, 
 within one month after service upon him of such revoca- 
 tion, if by a bishop, appeal to the archbishop.'' 
 
 We have already seen that every petition for license for Grants and re- 
 non-residence, must be filed in the registry of the diocese; vocations of 
 it is also further directed, that every bishop who shall ,j'[,^"ia*,|° ^e- 
 grant or revoke any license of non-residence under this pistryoitbe 
 act shall, and he is reqmred, within one month after the J'"ccsc. 
 grant or revocation of such license, to cause a co|)y of 
 every such license or revocation to be filed in the registry 
 of his diocese, and an alphabetical list of such licenses 
 and revocations shall be made out by the registrar of such 
 diocese, and entered in a book, and ke()t for the insj)ec- 
 tion of all persons upon payment of three shillings, and 
 no more; and a copy of every such license, and a state- And copies lo 
 ment in writing of the grounds of e\-emi)tion, shall be [^ ,','J''pV.urch. 
 transmitted by the spiritual person to whom such license wardens of the 
 shall have been granted, or who maybe exempted from p.irish to which 
 residence, to the churchwardens or chapelwardens of the ^ »■•>«' ate. 
 parish or place to which the same relates, within one 
 month after the grant of such license, or of his takiufj 
 advantage of such exemption, as the case may be ; and 
 every bishop revoking any such license, shall cause a copy 
 of such revocation to be transmitted, within one n>onth 
 after the revocation thereof, to the churchwardens or 
 chapelwardens of the parish or place to which it relates ; 
 which copies of licenses and revocations, and statements 
 p Sect. 47. 1 Sect. 48. ' Sect. 49.
 
 520 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 Archbishop to 
 transmit an- 
 nually a list of 
 licenses or re- 
 newals to the 
 queeo in coun- 
 cil. 
 
 The queen in 
 council Miay le- 
 voke such li- 
 censes. 
 
 of exemption, shall be by such churchwardens or chapel- 
 wardens deposited in the parish chest, and shall hkewise 
 be produced by them, and publicly read by the registrar 
 or other officer at the visitation of the ecclesiastical dis- 
 trict within which such benefice shall be locally situate, 
 next succeeding the receipt thereof; and every spiritual 
 person who shall neglect so to transmit a copy of such 
 license or statement of exemption as hereby required, shall 
 lose all benefit of such license, and until he shall have 
 transmitted such statement, shall not be entitled to the 
 benefit of such exemption ; provided that in case the 
 archbishop of the province shall, on appeal to him, annul 
 the revocation of any such license, the bishop by whom 
 such revocation shall have been made, shall immediately 
 on receiving notice from the archbishoj) that he has an- 
 nulled the same, order, by writing under his hand, that the 
 copies of such revocation shall be forthwith withdrawn from 
 the said registry and parish chest, and that the same shall 
 not be produced and read at the visitation, and that such 
 revocation shall be erased from the list of revocations in 
 the said registry, which order shall be binding on the 
 registrar and churchwardens respectively to whom the 
 same shall be addressed.* 
 
 Every archbishop who shall in his own diocese grant 
 any license for non-residence, or who shall approve and 
 allow any such hcense in any of the special cases which 
 are not enumerated above, or any renewal of a license in 
 the case of the dangerous illness of the wife or child of any 
 spiritual person, shall annually, in the month of January in 
 each year, transmit to her majesty in council a list of all 
 licenses or renewals so granted or allowed by such arch- 
 bishop respectively in the year ending on the last day of 
 December preceding such month of January, and shall in 
 every such list specify the reasons which have induced him 
 to grant or allow each such license or renewal, together with 
 the reasons transmitted to him by the bishops for granting 
 or recommending each such license in their respective dio- 
 ceses; and it shall be lawful for her majesty in council, 
 by an order made for that purpose, to revoke and annul 
 any such license ; and if her majesty in council shall think 
 fit so to do, such order shall be transmitted to the arch- 
 bishop who shall have granted or aj)provcd and allowed 
 such license or renewal, who shall tlutreupon cause a copy 
 of every such order to be transmitted to the bishop of the 
 diocese in which such license shall have been granted; 
 and such bishop shall cause a copy of the mandatory part 
 
 • Sect. 50.
 
 OF RESIDENCE. 521 
 
 of the order to be filed in the registry of such diocese, and Directions ai to 
 a hke copy to be dehveied to the churchwardens or chapel- H'e mandaiory 
 wardens of the parish or place to which the same relates, [^I'.okfngrch" 
 in manner hereinbefore directed as to revocation of li- licen&c*. 
 censes ; and every such archbishop shall cause a copy of 
 the mandatory part of every such order made in relation 
 to any such license granted by him in his own diocese, to 
 be in like manner filed in the registry of his diocese, and 
 a like copy also to be delivered to the churchwardens or 
 chapelvvardens of the parish or place to which such license 
 shall relate in manner before mentioned ; j)rovided that 
 after such license shall have been so revoked by her nui- 
 jesty in council, the same shall nevertheless in all ques- 
 tions that shall have arisen or may thereafter arise touch- 
 ing the non-residence of the spiritual j)erson to whom the 
 same shall have been granted, between the time at which 
 the same was granted or approved and allowed, and the 
 time of the revocation thereof being so filed in the registry, 
 be deemed and taken to have been valid.' 
 
 In the month of January in every year, the bishop is Bishop to trans- 
 required to transmit to every clersyman holdinir any bene- """ 3°""ally lo 
 fice within his diocese or juriscUction, certam questions clergyman in hU 
 respecting residence, the form of which is contained in diocese certain 
 the act, and is to be found in the Appendix : and every «l"<;s'.'"«s 'c 
 clergyman to whom such questions shall be so transmitted, dence."^ ' 
 shall, within three weeks from the day on which the same 
 shall be so delivered to him, make and transmit to the 
 bishop full and specific answers thereto, such answers 
 being signed by such clergyman." 
 
 No particular penalty is specified by the act for the Neglect in send - 
 neglect to transmit the answers within the time montionetl ; ing answers, 
 it is presumed, therefore, that the bishop might proceed 
 against the clergyman neglecting or refusing so to do, as 
 in any other case of offence against the laws ecclesiastical. 
 
 On or before the 25th day of March in every year, a Annual return* 
 return shall be made to her majesty in council by every j.*;.^^^^, '(Ij^j'^ ^^^ 
 bisho}), of the name of every benefice within his diocese 4,,^ i^^^ 
 or jurisdiction ; and the names of the several spiritual council, 
 persons holding the same respectively who shall have re- 
 sided thereon; and also the names of the several si)iritual 
 persons who, by reason of any exemption or license 
 granted by such bishop, shall not have resided on their 
 respective benefices ; and also the names of all spiritual 
 persons, not having any such exemption or license, who 
 shall not have resided on their respective benefices, so fiir 
 as the bishop is informed thereof; and also the substance 
 
 'Sect. 51. "86^.52. And see Appendix. 
 
 jeen id
 
 522 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 How residence 
 may be ea- 
 forced. 
 
 By monition. 
 
 Return lo the 
 
 monition. 
 
 Proceedings 
 alter monition 
 and return. 
 
 Bishops may 
 sequester for 
 non-residence 
 after monilioa. 
 
 of the answers received in all cases to the questions so 
 transmitted as aforesaid.'' 
 
 We have now gone through the cases of exception to 
 the general rule which was first mentioned, that every 
 beneficed clergyman is compelled to reside upon his bene- 
 fice ; and we have seen the various rules by which such 
 cases of exception are regulated, returning now to the 
 general rule, we are to see in what manner residence may 
 be enforced. 
 
 In every case in which it shall appear to the bishop 
 that any spiritual person, holding any benefice within his 
 diocese, and not having a license to reside elsewhere than 
 in the house of residence belonging thereto, not having 
 any legal cause of exemption from residence, does not 
 sufficiently, according to the true meaning and intent of 
 the act,y reside on such benefice, it shall be lawful for 
 such bishop, instead of or after proceeding for penalties, 
 to issue or cause to be issued a monition to such spiritual 
 person, requiring him forthwith to proceed to and to reside 
 on such benefice, and perform the duties thereof, and to 
 make a return to such monition within a certain number 
 of days after the issuing thereof; provided that in every 
 such case there shall be thirty days between the time of 
 serving such monition on such spiritual person, in the 
 manner hereinafter directed, and the time specified in such 
 monition for the return thereto ; and the spiritual person 
 on whom any such monition shall be served shall, within 
 the time specified for that purpose, make a return thereto 
 into the registry of the diocese, to be there filed : and it 
 shall be lawful for the bishoj), to whom any such return 
 shall be made, to require such return, or any fact con- 
 tained therein, to be verified by evidence ; and in every 
 case where no such return shall be made, or where such 
 return shall not state such reasons for the non-residence 
 of such spiritual person, as shall be deemed satisfactory 
 by the bishop, or where such return, or any of the facts 
 contained tlierein, shall not be so verified as aforesaid, 
 when such verification shall have been required, it shall 
 be lawful for the bishop to issue an order in writing imder 
 his hand and seal, requiring such spiritual person to pro- 
 ceed and reside as aforesaid, within thirty days after such 
 order shall have been served upon him ; and in case of 
 non-compliance with such order, it, shall be lawful for the 
 bishoj) to seciuester the profits of such benefice until such 
 order shall be complied with, or other sufiicicnt reasons 
 
 ' Sect. 53. 
 
 y It appears that the exact meaning or definition of residence is a matter for 
 the judgment of the bishop.
 
 OF RESIDENCE, o23 
 
 for non-compliance therewith shall be stated and proved 
 as aforesaid.'' 
 
 The mode in which it is directed tiiat the sequestered 
 profits are to be applied, will be spoken of under the head 
 of sequestration. It need here only be observed, tiiat an Appeal from 
 appeal is given to the archbishoj), within one niontli after orierof»tiiue*- 
 service of the order of sequestration, but the se(piestration '""°°* 
 is nevertheless to be in force during the aj)j)eal.'' 
 
 Every spiritual person, to whom any such monition or 
 order in writing shall be issued as aforesaid, who shall be 
 at the time of the issuing thereof absent from his benefice, 
 contrary to the provisions of this act, but who shall furth- Costs and ex- 
 W'ith obey such monition or order, and the profits of whose l"^"»" °f '*•« 
 benefice shall by reason of such obedience not be seques- 
 tered, shall nevertheless pay all costs, charges and ex- 
 penses incurred by reason of the issuing and serving such 
 monition or order, and the proceedings thereon shall not 
 be stayed until such payment shall be made.** 
 
 And, for eftectually enforcing bona fide residence, ac- ifapartywlio 
 cording to the intent of such monition and order, it is ii.is compiled 
 enacted, that if any spiritual person, not having a license )*"'' '/'* "l""'" 
 to reside out oi the limits oi his benefice, nor liaving otiier himself again for 
 lawful cause of absence from the same, who after any such a momh wiihio 
 
 •■• 1 c "1 ■ ■ 1 ■ i ' ■ I twelve moDlhf 
 
 monition or order as atoresaid, requiring Imii to reside, ofsu.h con.pii- 
 and before or after any such sequestration as aforesaid, ance. the bishop 
 shall, in obedience to any such monition or order, have •"«) forthwith 
 begun to reside upon his benefice, shall afterwards, and =>^1"*^*'*^'* 
 before the expiration of twelve months next after the com- 
 mencement of such residence, wilfully absent himself from 
 such benefice for the space of one month together, or to 
 be accounted at several times, it shall be lawful for the 
 bishop, without issuing any other monition or making any 
 order, to sequester and ap])ly the profits of such benefice, 
 as before directed by this act, for the pui-jjose of enforcing 
 the residence of such spiritual person, according to the 
 true intent of the original monition issued by the bishop 
 as aforesaid ; and it shall be lawful for the bishop so to 
 proceed in like cases from time to time as often as occa- 
 sion may require.*^ 
 
 But in each of such cases an appeal is in like manner .\pi)c»l. 
 as before-mentioned given to the archbishop, within one 
 month after the service of the order of sequestration. 
 
 Upon a comparison of the words of this last section 
 with those of the 54th section already mentioned, it would 
 seem doubtful whether under the 54th section the bishop 
 has any power to proceed at once for penalties by seques- 
 
 ^ Sect. 54. » Ibid. " Sect. 65. <= Seci. 66.
 
 524 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 Remission of 
 penalties. 
 
 Non-residence 
 on account of 
 house occupied 
 by tenant. 
 
 tration, without having first issued his monition, notwith- 
 standing the words of that section would appear to give 
 him an option of proceeding in whichever manner he might 
 think proper ; for it is obvious, that if under the 54th section 
 it was intended that he should have such option, then the 
 provisions of the 56th section would have been wholly su- 
 perfluous and unnecessary. 
 
 In every case, in which any archbishop or bishop shall 
 think proper, after proceeding by monition for tlie re- 
 covery of any penalty, under this act, for non-residence, 
 of more than one-third part of the yearly value of any 
 benefice, for any non-residence exceeding six months in 
 the year, to remit the whole, or any part of any such 
 penalty, such archbishop shall forthwith transmit to her 
 majesty in council, and such bishop shall forthwith trans- 
 mit to the archbishop of the province to which he belongs, 
 a statement of the nature and special circumstances of 
 each case, and the reasons for the remission of any such 
 penalty ; and it shall thereupon be lawful for her majesty 
 in council, or for the archbishop, as the case may be, to 
 allow or disallow such remission in Avhole or in part, 
 in the same manner as is provided with relation to the 
 allowance or disallowance of licenses of non-residence 
 granted in cases not expressly enumerated : provided that 
 the decision of the archbishop, with respect to cases trans- 
 mitted to him from a bishop, shall be final.'' 
 
 The provisions for avoiding contracts for the letting of 
 houses of residence have been already mentioned else- 
 where. Until these have been put in force, and during 
 the time that any tenant continues to occupy such house 
 of residence, no spiritual i)erson is to be hable to any 
 penalty for not residing in the same.* 
 
 Pluralities. 
 
 Recent altera- 
 tion in the laws 
 regarding ihem. 
 
 Section 2. 
 
 Of Pluralities. 
 
 There is probably no branch of the law relating to ec- 
 clesiastical matters, or afl'ecting ecclesiastical persons, 
 which has been so completely altered by recent enact- 
 ment, as that which relates to plin'uiities. And v(!ry much 
 that was formerly important with regiird to the cl)iij)lains 
 of the nobihtv, the ])ersons qualified to obtain, and the 
 mode of obtaining dispensations to hold two or more 
 benefices, lias been now completely swept away. 
 
 The law as regards pluralities does not so much affect 
 -I Sect. 57. « Sect. 60.
 
 OF PLURALITIES. ^25 
 
 the persons holding, and continuing to hold, as those 
 taking- to a second benefice. It is at the particular time 
 when the second benefice is taken, that these laws are to 
 be observed, so that it would be quite unnecessary, in the 
 present instance, to enter at all into the rej)ealed law, 
 which can never now be found applicable or useful. It 
 will be sufficient, before mentioning the provisions of the 
 recent statute, to show very briefly what has formerly been 
 the opinion and practice of the Church on this sul)ject. 
 
 In the earher and more simple ages of the Church, plu- piurr»litics in 
 ralities seem never to have been contemplated ; priests «l'c early ages 
 were forbidden to desert their own churches ; and if any of i''e (^I'Ufch. 
 did so, they were ordered to be removed from their office, 
 until reconciled to their own church. No priest was to go 
 from the see of the holy church, under whose title he was 
 ordained, in order to remove to a strange church, but 
 there devoutly remain until the end of his life. 
 
 How long such directions as these continued to be ob- Canonofihe 
 served in this country must be doubtful ; but by a canon Council of La- 
 made in the Council of Lateran, holden under Pope Inno- f"^''-'"/*'S'f'l- 
 
 TTT- i^ imr- !• 11 1 '"S I'letn. 
 
 cent ill., m the year J 215, it was ordamed, that whoso- 
 ever should take any benefice with cure of souls, if he 
 should before have obtained a like benefice, should ipso 
 facto be deprived thereof; and, if he should contend to 
 retain the same, should be deprived of the other; and the 
 patron of the former, immediately after his accepting of 
 the latter, shall bestow the same upon whom he shall 
 think worthy. There can be little doubt, that, therefore, 
 before that time, the holding plurality of benefices had 
 begun, and that this canon was made to check the j)ractice. 
 
 In the constitutions of Othobon, also, the mischiefs of Directions re- 
 pluralities are mentioned; and it is stated, that many con- s|)€ciiDgiherom 
 stitutions had been made against them, but which, to the of Oibobon. 
 detriment of religion, had been eluded ; and directions are 
 given to the bishops to put these constitutions in execu- 
 tion : particularly, before institution, the bishop is directed 
 to inquire whether the presentee has any other benefice — 
 but there is also the important addition, that if he have 
 any other benefice, the bishop shall incpiire whether he has 
 a sufficient dispensation— and the same incpiiries as to |)lu- 
 ralities and dispensations are directed to be made of 
 bishops before they are confirmed. 
 
 And so, by the constitutions of Archbishop Pcccham it Consiitutioni of 
 is declared, that he who shall have more benefices than j^,;^|;[;;';'^");._ 
 one with cure of souls, without dispensation, shall hold sj^cUng"ibem. 
 only the last; and if he shall strive to hold the rest, he 
 shall forfeit all. And it is further decreed, that he who
 
 526 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 Effect of these 
 constitutions. 
 
 Dispensations 
 granted for 
 holding plurali- 
 ties of benefices. 
 
 Extent of. 
 
 Statute of Hen. 
 VIII. for regu- 
 lating. 
 
 Dispensations 
 uoder. 
 
 shall take more benefices than one, having cure of souls, 
 or being- otherwise incompatible, without dispensation 
 apostolical, either by institution, or by title of commendam, 
 or one by institution, and another by coinmendam, except 
 they be held in such manner as is permitted by the con- 
 stitution of Gregory, published in the Council of Lyons, 
 shall be deprived of them all, and be ipso factu excommu- 
 nicated, and shall not be absolved but by us, or our suc- 
 cessors, or the apostolic see.*^^ 
 
 From these constitutions, it may be plainly seen that 
 this offence against ecclesiastical discipline of holding two 
 or more benefices, formed no exception to the general 
 rule in offences of this character in earlier times ; an im- 
 munity from which might be purchased for money, and 
 which were consequently only regarded as so many sources 
 of emolument ; for it is not so much against the evil itself 
 that the constitution seems to have been directed, as 
 against the non-payment for exemption. The holding 
 two benefices, the real mischief, was abundantly tolerated; 
 but the holding them without dispensation was punished 
 in the severest manner, by loss of one or both of such 
 benefices. 
 
 And the extent to which this system of dispensations was 
 carried, appears from a case cited by Dr. Burn from some 
 older treatises on this subject, of one Bogo de Clare^ rector 
 of St. Peter's in the East, in Oxford, who in the eighth 
 year of King Edward I. was presented by the Earl of 
 Gloucester to the church of Wyston, in the county of 
 Northampton, and obtained a dispensation to hold the 
 same, together with one church in Ireland, and fourteen 
 other churches in England, in nine difi'erent dioceses ; all 
 which benefices were valued at the time at 268/. 6s. S^^/.s 
 
 Thus the matter seems to have continued until the reign 
 of Henry VIII., when all those privileges, which the pope 
 had theretofore exercised, began to be more nearly exa- 
 mined ; and in the twenty-first year of that reign an act 
 was passed, by which the holding pluralities was regu- 
 lated, and the practice in some degree checked for the 
 future. But dispensations were still allowed to be ob- 
 tained, and various directions were given for the cases in 
 which they were to be granted ; which cases were in fact 
 so nuuicrous, thiit there could scarcely have boon any 
 clergyman who might not have brought himself within 
 some of them. The cases which were decided upon the 
 
 f I.yndw. 137. 
 
 B Kenn. Par. Ant. 292 ; Wood's Hist, and Ant. of Univ. of Oxford, 116; 
 3 Burn, E. L. 99.
 
 i:^*^' ' 7/5 ^'h i^t^r „ 
 
 statute appear to have given it a most liberal con^-u ucjtioii, 
 so that pluialities were still very coniinoii, the jxjwcr of 
 granting dispensations only being transferred. 
 
 This statute has been entirely repealed by the 1 & 2 Rrre'nt »tAiuie 
 Vict. c. 106, and the law is now cntirelv rcgiilatt-d bv this "f Vicioria. 
 latter statute ; the enactments of which, being positive, su- Picseni »iate of 
 persede not only the repealed statute, but the directions of '•'« •»"'■ 
 the canon law likewise. 
 
 No spiritual person, holding more than one benefice, Caihcdial pre- 
 shall accept or take to hold therewith any cathedral pre- fe^'C"'- 
 ferment or any other benefice. 
 
 No spiritual person holding any cathedral preferment, 
 and also holding any benefice, shall accept or take to hoUl 
 therewith any other cathedral preferment, or any other 
 benefice."^ 
 
 No spiritual person, holding any preferment in any 
 cathedral or collegiate church, shall accept and take to 
 hold therewith any preferment in any other cathedral or 
 collegiate church.' 
 
 The term "cathedral preferment" here used, is to be Meaning of the 
 construed to comprehend every deanery, archdeaconry, '^rm. 
 prebend, canonry, office of minor canon, priest vicar, or 
 vicar choral, having any prebend or endowment belonging 
 thereunto, or belonging to any body corporate consisting 
 of persons holding any such office, and also every pre- 
 centorship, treasurership, sub-deanery, chancellorship of 
 the church, and other dignity and office in any catht(hal 
 or collegiate church, and every mastership, wardenshiji, 
 and fellowship in any collegiate church.'' 
 
 No spiritual person, holding any benefice, shall accept No two bene- 
 and take to hold therewith any other benefice, unless it f,'"j!*,I"^,^,|'|e!.^ 
 shall be situate within ten statute miles from such first ,^,,1,;,, ceitain 
 mentioned benefice.' distance. 
 
 By the canon law it was directed that no license or He»iri<iionasio 
 dispensation should be granted for holding two or more '''''^"',*i^ ' '" 
 benefices, where they were more than thnty miles distant 
 from one another, but the manner in which this restriction 
 was explained, or altogether evaded, will best appear from 
 the following case. 
 
 In the Common Pleas : in a guare impedit, on the pre- 
 sentation to the rectory of Adderly St. Peter, in the county 
 of Salop, being a benefice of above 8/. value in the king's 
 books : the declaration stated, that Chve, being incum- 
 bent of Adderly, had accepted the vicarage of Clun, at 
 more than thirty miles distant from Adderly, whereby the 
 latter became void. Clive pleaded a dispensation under 
 
 '> Sect. 2. * Ibid. ^ Sect. 124. ' Sect. 3.
 
 528 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 the great seal, and denied that the livings were more than 
 thirty miles distant. And upon that issue was joined. On 
 the trial it was proved, by an actual admeasurement along 
 the turnpike road, that the distance from church to church 
 was forty-eight miles, from parish to parish forty-three 
 miles ; that the direct horizontal distance from church to 
 church was forty-two miles, from parish to parish thirty- 
 Computation of eight miles ; but that by computation in the country, the 
 miles by the two livings Were but twenty-nine miles distant ; and this 
 canon law for ^^^ ^.j^^ usual method of Computing distances upon such 
 "^ '^ ' dispensations. Of which opinion was the judge who tried 
 the cause, and a special jury : who found a verdict for the 
 defendant. It was moved for a new trial, alleging that the 
 measured distance was the only one the law could take 
 notice of; and the statute of 35 Eliz. c. 6, was cited, 
 wherein a mile is declared to contain eight furlongs, each 
 furlong forty poles, and each pole sixteen feet and a half. 
 On showing cause against a new trial, it was argued that 
 the distance of the parishes is a matter merely regulated 
 by the canons of the church, which may be directory in 
 such cases to the archbishop, but is not taken notice of in 
 the statute of dispensations, nor ever called in question in 
 the king's temporal courts : therefore the issue is imma- 
 terial. But if material, the ecclesiastical laws must be the 
 rule in this case, and there the uniform practice has been 
 to go by computed miles. And the court were clearly of 
 opinion, that, by the temporal law, the distance of the 
 churches is immaterial ; and they discharged the rule for 
 a new trial.™ 
 
 And to this case there is appended a note in Dr. Burn's 
 work, mentioning that in many parts of England the com- 
 puted miles most commonly run in the proportion of about 
 two computed to three measured miles.^^ 
 How distance is In order to avoid such vague and unintelligible interpre- 
 now to be com- tatious, it is by the act directed that the distance between 
 P"*^**' any two benefices for this purpose shall be computed from 
 
 the church of the one to the church of the other, by the 
 nearest road or footpath, or by an accustomed ferry; and if 
 on one of the said benefices there be two or more churches, 
 then the distance shall be computed from or to the nearest 
 of such chm-ches, as the case may be ; or if on one of 
 such benefices there be no church, then in such manner as 
 shall be directed by the bishop of the diocese in which the 
 benefice, proposed to be taken and held by any spiritual 
 
 "> 7?. V. nhhop nf Lichjield and Cliie, Black. Rep. 968. 
 " 3 Burn's E. L. 106.
 
 OF PLURALITIES. 529 
 
 person in addition to one already held by him, shall he 
 locally situate." 
 
 No spiritual person holding a benefice with a population fifMrinmnt ©n 
 of more than three thousand persons, shall accept and take Jj|'- 
 to hold therewith any other benoHce, having, at the time of fire ri.g«l«tcd"by 
 his admission, institution, or being licensed thercttj, a po- amount of popu- 
 pulation of more than hve hundred persons.'' '*""°' 
 
 No spiritual person hohhngabeneHce \\ith a j)«)pulation 
 of more than five hundred persons, shall accept and take 
 to hold theiewith any other benefice, having, at the time 
 of his admission, institution, or being licensed thereto, a 
 population of more than three thousand persons.'' 
 
 The amount of the population for this ])urpose is to be How populnion 
 taken from the latest returns of population, made under <" 'x-'cunipuicd. 
 any act of parliament for that purpose, at the tiuie \\hen 
 the question shall arise, if such returns shall apply to the 
 place respecting which the question shall be ; but if such 
 place shall only form j)art of a parish or district named in 
 such returns, then such returns shall be taken tu represent 
 truly the population of the parish or district named therein, 
 and from them the population of the place required shall 
 be computed, according to the best evidence of which the 
 subject shall be capable.' 
 
 No spiritual person shall hold together any two bene- Rcsnictiooioo 
 fices, if at the time of his admission, institution, or being ,," '''"^ ' 
 licensed to the second benefice, the value of the two f,ce »ccoruii,g 
 benefices jointly shall exceed the yearly value of lUOU/.' to value. 
 
 The term benefice here used is to be understood and .Mfaniot;of ih« 
 taken to mean benefice with cure of souls, and no other, *•"«* »*'>«^- 
 (unless it shall otherwise appear from the context,) and 
 therein to comprehend all parishes, i)cr|)etual curacies, 
 donatives, endowed pul)lic chapels, parochial cha|)elries, 
 and chapelries or districts belonging or reputed to belong, 
 or annexed or reputed to be annexed, to any church or 
 chapel.* 
 
 The above are the general rules, from which the follow- 
 ing are the excepted cases. 
 
 An archdeacon is not prevented by these rules Irom J,;;;!;;,';;';;,';;; 
 holding tocvether with his archdeaconry two benefices, un- 
 der the limitations we have just meutionec) as to disiancc, 
 joint yearly value, and population ; and one ot winch 
 benefices must be situated within the diocese of which Ins 
 archdeaconry forms a part, or one cathedral i)rcferment m 
 any cathedral or collegiate church of the diocese ot which 
 his archdeaconry forms a part, and one benefice situate 
 
 p Sect. 4. "* llj'J- 
 
 , Sect. 4. ' -c-'- 1-^- 
 
 M M 
 
 o I & 2 Vict. c. 106, s. 129. 
 ^ Sect. 130. ^%^Q^ yVV 
 
 ^
 
 530 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 Ceriain cases of within sucli diocese. Nor are the above restrictions to 
 cathedral pre- prevent any spiritual person holding any cathedral prefer- 
 ment with or without a benefice, from holdino; therewith 
 any office ni the same cathedral or collegiate church, the 
 duties of which are statutably or customarily performed by 
 the spiritual person holding such preferment." 
 Two benefices Where any two benefices are within ten miles of each 
 wiUun ten tinles other, but vvhich, under the provisions just mentioned, 
 geiher, contrary could not be holden together, but one of which is below 
 to the above the annual value of 150/., and of which the population 
 rules, lu certain exceeds two thousand persons, the bishop or bishops, as 
 the case may be, to whom such benefices are subject, upon 
 application made to him or them for that purpose by the 
 incumbent, may state in writing the reason why such 
 benefices should be holden together, and in such case it 
 shall be lawful for the said incumbent to hold the said two 
 benefices together. But in such a case the bishop of the 
 diocese within which such benefice, having a population 
 exceeding two thousand persons, is situate, may from time 
 to time, by an order under his hand, and revocable at any 
 time, require that such incumbent should keep residence 
 on, and personally serve such benefice, during the space 
 of nine months in each year ; and if such incumbent shall 
 not, in obedience to the terms of such order, and until the 
 same be revoked, reside on and personally serve such bene- 
 fice, he shall be liable to all penalties for non-residence, 
 notwithstanding he may have a legal exemption, perma- 
 nent or temporary, from residence, or may be resident on 
 some other benefice, or may be performing the duties of 
 an office, the jicrformance of the duties of which might in 
 other cases be accounted as residence on some benefice." 
 Appeal from But any such spiritual person niay, within one month 
 
 °"^^r- after service on him of any such order, appeal to the arch- 
 
 bishop. ^ 
 License from ti)e Before any spiritual person can hold any two benefices 
 Archbishop of together under any of these provisions, he must obtain 
 
 (aiittihurv to r ui A 1 1 • 1 p r^ I \ r i- 
 
 hohl two bene- ''om the Arclibisliop oi Canterbury a license or dispensa- 
 ficcs. tion to hold tlunn; which license or dispensation the arch- 
 
 bisho]) is empowered to grant under the seal of his office 
 of faculties, upon being satisfied as well of the fitness of 
 the person, as of the expediency of allowing such two 
 benefices to be holden together ; and such license or dis- 
 pensation shiill issue in smh miinncr iind form as the said 
 archbishop sliall think fit; and for such hcense or dispen- 
 sation there shall be paid to the registrar of the said office 
 the sum of tiiirty shillings, and no more; and to the seal 
 " Sect. 2. » Sfcl. 6. y 11)1(1.
 
 OF PLURAMTIES. VU 
 
 keeper thereof the sum of two shillings, and no more; and 
 no stamp duty, nor any other fee, shall ho jiavahk- on tin* 
 license or dispensation to he granted as aCuresaid, ncjr shall 
 any confirmation thereof l)e necessary; nor shall it be re- 
 quired of any spiritual person applying for any such license 
 or dispensation to give any caution or security, hy bond or 
 otherwise, before such license or disjjcnsation is granted.* 
 
 The bond or security here alluded to was fjrmc-rlv di- DoniU for li- 
 rected to be given by the canon ; which, after mentioning ""»*» h »''« 
 the necessary qualification of a |)arty to whom a license 
 should be granted, proceeds, provided always, that he be, 
 by a good and sulhcient caution, bound to uuike his j)er- 
 sonal residence in each of his said benefices for some 
 reasonable time in every year ; and that the said benefices 
 be not more than thirty miles distant asunder; and lastly, 
 that he have under him in the benefice where he doth not 
 reside a preacher lawfully allowed, that is able sutiiciently 
 to teach and instruct the people.* 
 
 If the archbishop shall refuse or deny to grant any such Appeal, from 
 license or dispensation, it shall be lawful for her majesty, fcf""' ''v it>e 
 if she, by the advice of her privy council, shall think fit, gp^. 
 upon application by the person to whom such license or to iiic ijuit-n 
 dispensation shall have been refused or denied, to enjoin "> '""""cil. 
 the said archbishop to grant such license or dispensation, 
 or to show to her majesty in council sufiicient cause to 
 the contrary, and thereupon to make such order touching 
 the refusal or grant of such license or dispensation as to 
 her majesty in council shall seem fit; and such order shall 
 be binding upon the archbishop.'' 
 
 Any spiritual person, desirous of obtaining such a license Sutcment. «o 
 or dispensation for holding two benefices together, shall, ^\J^^''^].„'lo 
 previously to applying for a grant of the same, deliver to the i.i.iiop pre- 
 the bishop of the diocese, where both benefices are situate """''>||'^JPD.'^" 
 in the same diocese; or to the bishops of the two dioceses, '""f "' '""**' 
 where such benefices are situate in difierent dioceses, a 
 statement in writing, verified as such bishop or bishops 
 respectively may require, according to a form promulgated 
 by the Archbishop of Canterbury, and a|)i)roved bv the 
 queen in council,'^ in which statement such spinfmil per- v '^ 
 
 son shall set forth, according to the best of his bchcf, the |;;^,^^^„, ' '" 
 following particulars. 
 
 The yearly income arising from each of such beueticcs 
 separately, on an average of the three years endmu on the 
 29th day of September next before the date of such state- 
 ment. 
 
 The sources from which such income is derived. 
 
 ' Sect. 5. » Canon 41. " Sect. 6. ' Koi this form soc Append. 
 
 M >r '2
 
 532 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 The yearly amount on an average of the same period of 
 three years of all taxes, rates, tenths, dues and other per- 
 manent charges and outgoings, to which the benefices are 
 respectively subject. 
 
 The amount of the population of each of the said bene- 
 fices, computed according to the last returns made under 
 the authority of parliament. 
 
 The distance between the two benefices computed as 
 above-mentioned. 
 Bishop may The bishop to whom such statement is dehvered may 
 
 lest statement. j^^g]^Q j^i^y inquiry he may think proper as to the correct- 
 ness of the same, in respect to the benefice or benefices 
 within his diocese ; and within one month after he shall 
 And is required have received such statement, he is required to transmit 
 to transmit cer- ^^ j.|^g Archbishop of Canterbury a certificate under his 
 bishop. ° ^^^ hand, setting forth or having annexed to it a copy of such 
 statement, and by which he shall certify the amount at 
 which he considers the annual value, and the population 
 of each of such two benefices where both are situate in his 
 diocese, and the distance of such two benefices from each 
 other, or the amount at which he considers the annual 
 value, and the population of the benefice within his dio- 
 cese, where the two benefices are in difierent dioceses, 
 and the distance of such benefice from the other benefice 
 ought to be taken with respect to the license or dispen- 
 sation.'' 
 Benefice in the Whenever both or either of the benefices are in the dio- 
 jurisdicticn of ^ggg qj. jurisdiction of the Archbishop of Canterbury, a 
 arc 1 IS 1 p. certificate in the same manner shall be made out by the 
 
 archbishop and retained by him.^ 
 How annual The annual value of any benefice for the purpose of 
 
 value of bene- g^^j^ certificate is to be taken, by deducting from the gross 
 estlm'd^ted for amount of the yearly income arising therefrom, all taxes, 
 such purposes, rates, tenths, dues and other permanent charges and out- 
 goings to which such benelice is subject. But not de- 
 ducting or allowing for curate's sti])cnd ; nor for such taxes 
 or rates in respect of the house of residence or glebe land 
 as are usually paid by tenants or occupiers ; nor for 
 money spent in repairs or improvement of the house of 
 residence, and buildings and fences belonging thereto. '^ 
 Certificate lo be The certificate or certificates to be transmitted to, or re- 
 deposited in the tained by the archbishop, as the case may be, shall be 
 ties, and lo be deposited HI tlic olhcc ot fa('ulties, and, in the event ot tlie 
 evidence. recpiired license or disjx'nsation being grunted, shall for 
 
 the piirposes above-mentioned be conclusive evidence of 
 the annual value and population of each of the benefices 
 
 Sect. 7. « Ibid. f Sect. 8.
 
 OF PLURALITIES. 533 
 
 to which the same shall relate, and of their distance from 
 each other ; and the rej^istrar of the faculties is required 
 to produce such certificate or certificates to any jx-rson 
 who may require to inspect the same.'' 
 
 If any spiritual person, hol(lin<:j any catlu-dral prefer- Arcepunceof 
 ment or benefice, shall accept any other cathedral prefer- w^cond prefer- 
 ment or benefice, and be admitted, instituted, or licensed """"•'""■»'> 
 to tne same contrary to tiie provisions of the act, every rule-, varaict 
 cathedral preferment or benefice, so previously held by 'I'e ^"'mtr pre- 
 him, shall be and become ipso facto \o\d; asif lie bad J'j^'JJI,*""'"^ 
 died or had resigned the same ; any law, statute, canon, 
 usage, custom or dispensation to the contrary notwith- 
 standing : and if any spiritual person holding any two or 
 more benefices shall accept any cathedral preferment, or 
 any other benefice, or if any spiritual person holding two 
 or more cathedral preferments shall accejit any benefice, 
 or if any spiritual person holding any cathedral preferment 
 or preferments, and benefice or benefices, shall accept 
 another benefice, he shall, before he is instituted, licensed, 
 or in any way admitted to the said cathedral preferment 
 or benefice, in writing under his hand, declare to the 
 bishop or bishops within whose diocese or dioceses any of 
 the cathedral peferments or benefices previously holden 
 by him, are situate, which cathedral preferment and bene- 
 fice, or which two benefices (such two benefices being if former prefor- 
 tenable together under the provisions of the act), he pro- ment i^ tenable 
 poses to hold together ; and a duplicate of such declara- ^uhj'^u^nht 
 tion shall, by such spiritual person, be transmitted to the i,e made to iho 
 registry of the diocese, and be there filed ; and immediately bisi.op. 
 upon any such spiritual person being instituted, licensed, 
 or in any way admitted to the cathedral preferment or 
 benefice which he shall have accepted as aforesaid, such 
 cathedral preferment or preferments, benefice or benefices, 
 as he previously held, and as he shall not as aforesaid 
 have declared his intention to hold, or such benefice as 
 shall not be tenable under the provisions of the act, with 
 such newly accepted benefice, shall be and become ipso 
 facto void, as if he had died or resigned the same ; and if 
 such spiritual person shall in any such case refuse, or w il- 
 fully omit to make such declaration as aforesaid, every 
 cathedral preferment and benefice which he previously held 
 shall be and become ipso facto void as aforesaid." But it Kxccptiont. 
 is provided, that this shall not be construed to affect the 
 provisions in the excepted cases before-mentionetl with 
 respect to archdeacons, or with respect to spiritual persons 
 holding with any cathedral preferment, anil with or with- 
 er Sect. 9. " ^ect. II.
 
 634 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 General effect 
 of this enact- 
 ment, and 
 especially with 
 respect to lapse. 
 
 out a benefice, offices in the same cathedral or collegiate 
 church.' 
 
 The effect of this enactment is to make a considerable 
 alteration in the law, not only as it affects the party pre- 
 sented to a second benefice, but as it affects the patron 
 also. We have already seen that by the constitutions of 
 the church and the canon law, a clergyman who accepted 
 a second benefice, without a license or dispensation, was 
 to forfeit the first ; and so far therefore the recent enact- 
 ment above-mentioned was only a carrying out the spirit 
 and intention of the old ecclesiastical law ; but it had been 
 decided by a case in the Exchequer Chamber, brought 
 there by a writ of error from the King's Bench, that the 
 result of the authorities was (taking the canon of the 
 fourth Lateran Council to have been recoonized in this 
 country, and to have become a part of the common law), 
 that upon institution to the second living, the first was void 
 as to the patron ; but not so as to incur a lapse without 
 sentence of deprivation and notice by the ordinary, or at 
 least not until notice by the ordinary. The first living 
 therefore, previously to the recent statute, might rather 
 have been considered voidable than void ; for the party 
 accepting the second benefice must either have been de- 
 prived of the first by the ordinary, or the patron must 
 have presented another person to the benefice. It was 
 void as regarded the patron, if he chose to avail himself 
 of that fact and present another party ; but if he did not 
 do so, it was not so far void as against him, that any lapse 
 would have been incurred, unless the jiarty had been de- 
 prived by the ordinary, and the ordinary had given notice 
 of the avoidance to the patron.'' 
 
 Exchange of 
 lands. 
 
 Section 3. 
 
 Of JExchanging Benefices. 
 
 In cases of real property, the word exchange, as used 
 in deeds, has a particular signification and value : it is a 
 mutual exchange of equal interests, the one in considera- 
 tion of the other : as if (says Littleton) there be two men, 
 and each of them is seised of one qiuintity of land in 
 one county, and the one granteth liis land to the other, 
 in exchange for the other land, which the other hath ; 
 and in like manner the other granteth his land to the first 
 
 ' Sect. 11. 
 
 ^ See Lapse, ante.
 
 OF EXCHANGING BENEFICES. ^3^ 
 
 O 
 
 grantee, in exchange for tlic land which the first grantor 
 hath.' ^ 
 
 In such cases, it is necessary that the estates given be Und. «- 
 equal, not in value, quality, or in the manner of the estate, '•••an^j.-.i mmi 
 but in the quantity of the estate, as an estate in fee for an ^ '^1''*' '° 
 estate in fee, and an estate for life for an estate for life.'" ''"^"'"J- 
 
 It is also necessary that the word exchange should be -ji,,; word 
 used, though it is said that the word permutdtio, or some exdMngc ii 
 other word of like effect, may supply it. But if A., by '»=«^««fy- 
 deed indented, give to B. an acre of land in fee siuij)le or 
 for life, and by the same deed B. gives to A. another acre 
 of land in the same manner, this cannot enure as an ex- 
 change; and therefore if there be no livery of seisin, it 
 would be utterly void." 
 
 It is also necessary that there should be an execution At ului time 
 by entry or claim in the life of the parties, for as livery of "^""y '""*' ^ 
 seisin is not necessary, the parties have no freehold, in 
 deed or in law, in them till entry. Therefore if both the 
 parties die before the entry of either, the exchange is voitl ; 
 for the heir of one cannot enter and take it as a j)urchascr, 
 because he is named only to take it by way of limitation 
 of estate in course of descent. But if one enters, and the 
 other dies before entry, his heir may enter." 
 
 In every deed of exchange in which that word is used, implied war- 
 there is an implied mutual warranty ; and it has been ""^'y "^ «»- 
 resolved, that in every exchange the word excamhinm im- <^''"'8**- 
 plies in itself tacitt a condition, and also a warranty; the 
 one to give a re-entry, and the other a voucher and recum- 
 pence ; and all in respect of the reciprocal consideration, 
 the one land being given in exchange for the other. But 
 it is as special warranty ; for upon the voucher, by force 
 of it, he shall not recover other land in value, but that 
 only which was by him given in exchange. For inasnuich 
 as the mutual consideration is the cause of the warranty, 
 it shall therefore extend only to lands recii)rocally uiven, 
 and not to other lands. And this warranty rims only ni 
 privity ; for none shall vouch by force of it but the parties 
 to the exchange, or their heirs, and no assignees. I J A. 
 gives in exchange three acres to B. for othi-r three acres, 
 and afterwards one acre is evicted from B., m that case 
 the whole exchange is defeated, and B. may enter mto al 
 his land ; for although the exchange had been good, it 
 A. had given but two acres, or but one acre or less, yet 
 forasmuch as all the three acres were given m exchange 
 for the others, and the condition which was implied m tlie 
 
 1 Cruise, Dig. tit. xxxil. c. 6. "' | .\"^'- ^0- 
 
 n Touch, s. 295. oun.s.o2.
 
 536 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 exchange was entire : upon the eviction of one acre, the 
 condition in law was broken, and therefore an entry was 
 given on the whole ; as when the whole estate in part was 
 evicted, the exchange was defeated ; so when an estate of 
 freehold for life, which was but parcel of the estate, was 
 evicted, the exchange was defeated.'' 
 Can only be Foi" this last, among other reasons, there can only be 
 
 between two tvvo parties to an exchange. Littleton speaks of an ex- 
 P^'^'^^' change as of a transaction between two persons ; and Mr. 
 
 Hargrave says it was held in a late case, that an exchange 
 in the strict legal sense of the word could not be between 
 three parties, the principle of it not being applicable to 
 more than two distinct contracting parties, for want of 
 the mutuality and reciprocity on which its operation so 
 entirely depends. For, first, the consideration of an ex- 
 change, and the implied warranty to it, is the receiving 
 something with warranty from the same person to whom 
 something with warranty is given ; but if there could be 
 three distinct ])arties, each would give to one and receive 
 from another. Secondly, the implied condition of re-entry 
 is, that it may be made on him whose title fails ; but if 
 there could be three parties to an exchange, then each per- 
 son would be liable to re-entry for the fault of another's 
 title as well as of his own ; but, although there cannot be 
 more than two distinct parties to an exchange, yet there 
 may be more than two persons. Thus an exchange be- 
 tween tvvo joint-tenants and two tenants in common, is 
 good ; for although four persons are named, yet they con- 
 stitute only two distinct parties. The same observation 
 applies to any number of persons, if so conjoined in the 
 mutuality of giving and receiving in exchange, as to make 
 only tvvo distinct relative parties. ^ 
 Principles of We have mentioned here the above requisites in the 
 
 exchange of exchange of lands, because, although not strictly and 
 tho^e onlc^/ '° entirely applicable to the exchange of benefices, they are 
 change of bene- the foundation of all the law aj)pHcable to the latter case; 
 fices. and the same principles may be referred to as the safest 
 
 guide in any questions that may arise, and that may not 
 liithorto have been settled in the case of benefices ex- 
 changed. 
 License before Before an exchange of benefices can be made, it is 
 treating for ncccssary to procurc a license from the ordinary to treat 
 exrhniifre of ^^f ,j^j^ exchange: and it is then ell'ected by an instrument 
 
 ueDehces. . . . i i .1 ,1 ^i • 
 
 HI vvritnig, wiiereby tlie parties agree to exchange then' 
 
 P liastard's rase, 4 Rep. 121 ; 1 Inst. 173. 
 
 1 I Inst, 60 b, n. 1 ; I Insl. 51 a, n. 1 j Cruise's Dig. tit. xxxii. c. 6.
 
 OF EXCnANGING BENEFICES. 537 
 
 benefices, and for that purpose resign them into the hands 
 of the ordinary/ 
 
 In exchan;j,es of land, we have seen that the estate in 
 the lands exthanged must be of thi' sanje f|uantity ; so in 
 the case of benefices, both must be spiritual; jbr a lay Hoti. beoeficw 
 preferment, as a hospital, cannot be exchanged, or go for '"""'*»?•- 
 a prebend or other spiritual benefice/ '""*'' 
 
 And, by analo^,y to the case of lands, where it is necfs- 
 sary that there should be a>i execution by eiitrv in the life 
 of the parties, if one party be instituted and inducted, and Mu»i l>eron»- 
 the other only is instituted, and dies or refuses to finish. '''"""' '" '*" 
 
 • xu- xl 1 xi I 1 1 /• 1 liltliinc of llie 
 
 in this case, thouoh they have proceeded so tar, yet the paniw. 
 resignation and all that followed upon it shall be void, and 
 both, if living, may return to their former benefices on the 
 foot of former possession ; or, if one die before he is in- 
 ducted, and after the induction of the other, this induction 
 and all that went before shall be void, because the exclian<^e 
 was not fully executed during the lives of the j)urties : ' 
 and here we observe the analogy to the implied mutual 
 warranty. 
 
 In every other case resignations must b e mafle rmr? . r,. for 
 
 sponti'. absolute, et simpli ci tcr, to exclude all indirect bar- ''"^ i . "f 
 gainsj but a resignation^iade in order to effect an ex- "" e»*-''"'s«. 
 change, is an exception, for that admits of the condition 
 if the exchange shall take full effect, but nut otherwise; 
 the resignation, therefore, in such cases is not good and 
 complete until the exchange is executed ; if either j)arty 
 dies or refuses to complete the exchange, the resignation 
 is a nullity, and it is as if it had never been nrade." 
 
 It follows necessarily from what has been here stated, 
 that all exchanges, or agreements for exchange, between 
 incumbents, without the knowledge and full authority of 
 the ordinary, are illegal ; or rather, there is no possiblt; 
 way in which such exchanges could be made with security 
 to either ]>arty. 
 
 Exchanges, like other dealings with livinus, may be simooitcil ei- 
 simoniacal ; and it is enacted, that if any ineuud)ent of ch*Dge». 
 any benefice with cure of souls shall corru|)lly resign or 
 exchange the same, or corruptly take, for or in respect of 
 the resigning or exchanging the same, directly or indi- 
 rectly, any pension, sum of money or other benefit what- 
 soever, as well the giver as the taker of any such |)cnsion, 
 sum of money or other benefit con u|>tly, shall lose double 
 the value of the sum so given, taken or had, half to the 
 
 ' Gibs. 863. ' ^^a**- c- 4 J ^''*'*- '^''• 
 
 ' Gibs. 821 ; 2 Burn's E. L. " See Chapter on Kesignauon.
 
 538 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 queen and half to him thall sue for the same in any of 
 her majesty's courts of record/ 
 
 An exchange, therefore, must be made simplicWr ; there 
 must be no sum of money or other vakiable consideration 
 given for equahty of exchange ; and if the two benefices 
 are not of equal value, he who takes the least valuable in 
 exchange is precluded from receiving any compensation. 
 What would be And SO if the parties exchanging should import into 
 so considered. ^]^g agreement for exchange, or otherwise enter into any 
 contract to forego any of those rights and claims to which 
 by law they would be entitled upon coming into posses- 
 sion of the exchanged benefice, as, for example, to waive 
 all claim for dilapidations, this would, as it seems, be con- 
 sidered a corrupt and simoniacal exchange.^ So that in 
 an exchange of benefices, the different state of repair of 
 the two houses of residence cannot easily be taken into 
 consideration as an inducement for consenting to the ex- 
 change, for neither party could bind himself to give up 
 that claim which the law allows to every clergyman who 
 comes to dilapidated premises. 
 
 The question was discussed, and fully and satisfactorily 
 settled, in the following recent case. 
 Claims made Tvvo clergymen, possessed of respective incumbencies, 
 
 for dilapidations agreed to exchange them, and the exchange was made 
 
 allowed alter h , , , 'r-i • .• . j j- 
 
 an exchange. With the consent 01 theu" respective patrons and diocesans ; 
 they accordingly resigned their benefices into the hands 
 of their respective bishops, and were inducted into the 
 exchanged benefices. There was no specific agreement 
 entered into on the subject of dilapidations; but from the 
 conduct of the parties at the time of, and for several 
 months after, the period when the exchange was agreed 
 and acted upon, it was plain that neither party then con- 
 templated any claim for dilapidations, and it was not imtil 
 a dispute arose upon another subject, that the plaintiff 
 first mentioned his claim for dilaj)idations ; shortly pre- 
 vious to which time there had been a statement of accounts 
 between tlie ])laintiff and defendant (the two clergymen), 
 in which there was no mention of a claim for dilapidations. 
 The questions for the oj)inion of the court were, 1st, 
 whether under the above circumstances there is sufficient 
 evidence that the exchange was intended by the plaintiff 
 and the defendant to be on the footing that each should 
 take the living of the other in its then state and con- 
 dition ; 2d]y, whether the law of England with res|)ect to 
 the dilapidations claimed by the successor to a spiritual 
 
 » 31 VAh. c. 6. 
 
 y Sec post, judgment in Downci v. Cniip, [) Rice. & Wuls. 166.
 
 OF EXCIIANGINQ UENEFICES. .03'J 
 
 preferment from his jjredecessor, applies under the above 
 circumstances to the case of an e.\chuii<;e of jjn'fcrnjcnts. 
 The points marked for ar<inment on the jmrt of the 
 defendant, were as follows :— That the custom of I'^n^land 
 with respect to the liability of an incumbent to his suc- 
 cessor for dilapidations, does not apply to the case of an 
 exchange of livings, because a rector is a tenant for life, 
 and the custom only diH'ers from the ordinary law relating 
 to the liability of tenants for life for waste, bv allowin"- an 
 action of waste to be brought by one party against an- 
 other, without there having been any privity of estate 
 between them, and also against the executor of the tort 
 feasor, notwithstanding the principle of " actio personalis 
 moi'itur cum persona ;" consequently the successor being 
 in by his own contract, no action lies ; at all events the 
 injury, if any, being the result of and springing from a 
 contract, and caused by the plaintiff 's own act, an action 
 of tort cannot he : that the parties are not in merely by 
 presentation and institution, but by contract, since if one 
 had died before the induction of the other, or vice versa, 
 the institution and induction of the one would have been 
 void. The defendant will also contend that a contract to 
 exchange the livings in tlieir then state and conditicui is 
 found in point of fact by the case : that the stati-ment 
 and signature of the accounts between the parties, without 
 reference to any claim for dilapidations, four months after 
 the exchange, and two before any such claim, is conclusive 
 evidence upon the subject : that therefore, according to 
 the legal effect of an ordinary contract of exchange, and 
 by the express terms of the present one, the defendant is 
 entitled to have a verdict entered for him. This case was 
 very fully argued ; and Lord Abingcr, C. B., in giving 
 judgment, says, " It might be a very considerable ques- 
 tion whether if a contract for the exchange of livings 
 were made in writing, with an express (leelarat?(in that 
 neither party should sue the other for the ililapidations, if 
 one party said, if you will admit me to your living 1 will 
 admit you to mine, and I will make no claims for dilapi- 
 dations, it would not amount to a simoniacal contract, and 
 so would be void. At present I do not see that it makes 
 any difference whether it be a contract with a jiarty to 
 resign in favour of another, or whether it be a contract 
 for an exchange, which may possibly fail in the comple- 
 tion. But it is unnecessary in this case to iircmounce a 
 judgment on that point ; for here the exchange was nunle 
 and completed. Then the only question is, whether an 
 agreement simply to exchange has necessarily and fairly
 
 540 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 engrafted upon it the condition that neither party shall be 
 liable to the other for dilapidations. I see nothing to 
 show that ; and I do not see any consequence derived 
 from the admitted contract to exchange and the exchange 
 actually completed, operating against the right of the 
 party entering to claim for dilapidations. The facts found 
 in tiiis case preclude the necessity of the court considering 
 the effect of a positive agreement to that effect ; there is 
 no such agreement here ; the parties have the same right 
 as they would have in case of a presentation to a living, 
 when it is clear that the plaintiff would have a right to 
 claim for dilapidations against his predecessor. I think, 
 therefore, that the judgment must be in his favour." The 
 judgment of Parke, B., is to the same effect. " I entirely 
 agree," he says, " in opinion with the lord chief baron. 
 The first question is, whether there is in this case any 
 agreement between the parties, that if the living were 
 exchanged each should omit to sue the other, and, in 
 effect, give up to the other any claim for dilapidations. 
 An agreement The case finds that there was no specific agreement ; and 
 to forego such j|. ^Quid be vcrv wrong to infer from the facts stated in 
 
 a claim would , iU i ^i 1 x J -C 
 
 proiiably be ^"^ case, that there was such an agreement ; and even it 
 simony. there were, I cannot help concurring in the doubt which 
 
 has been expressed whether it would be valid and binding. 
 It appears to me to savour of simony. 
 
 " The next question is, whether, by law, the claim for 
 di]ai)idations docs not apply to a successor by exchange as 
 well as to another. The law upon that subject is expressed 
 in the written declaration of what was the common course 
 in the olden times. In the case of Wise v. Metcalfe,''- that 
 declaration will be found to be the foundation of the judg- 
 ment of the court; and it is extended to all rectors. It 
 states, in efi'ect, that all ))rebendarics, rectors, vicars, &c., 
 shall be required to repair and support their parsonages, 
 and so on, and to deliver them to their successor repaired 
 and supported ; and if they do not, they shall j)ay such a 
 sum to their successors as shall be necessary lor the re|m- 
 ration, or necessary re-edification of the iiouse or building. 
 That statement of the law applies to all successors oi" per- 
 sons ceasing to possess the living. If they have permitted 
 dilaj)idations, they arc to ])ay to their successors so much 
 as shall be necessary to put the rectory into a proper state 
 of repair. Such being the law, there is no doubt the 
 j)]ainli(r was the successor of the defcMidant. It is said 
 that it could not be known till the exchange was com- 
 pleted, whether he would be his successor: there can be 
 '■ 10 Barn. & Crcs. 299 ; 5 Man. & Kyi. 235, 965.
 
 OF EXCHANGING BENEFICES. ^4 I 
 
 no doubt that it was a defeasible right to the Uviiiir, until 
 tlie other incumbent was inducted; but I do not tliiuk 
 there can be any doubt, that when induction took pKice on 
 his taking- possession, he becanici the successor, and his 
 predecessor became hable for the dihi|)idations. The cir- 
 cumstance of the right being defeasible, I do not think 
 constitutes a defence ; but it is unnecessary to decide that 
 question here, because the otiier incumbent was inducted 
 also. The case therefore appears to me to be clear on both 
 points. It is found that there was no agreement between 
 the parties that the one should give up the right to dilaj)i- 
 dations as against the other, and there is no exemption to 
 the operation of the general law ai)])lving to a case of 
 mutual resignation, with a view to an exchange of livings." 
 
 Rolfe, B., says, " I am of the same opinion. Suppose, 
 instead of an exchange, it had been an acceptance by tlu; 
 other party of the living, there is no doubt the connncjii 
 law right would have attached ; and I see no ground for 
 making the slightest difierence. This is an acceptance of 
 a living under a special contract, a case in which the law 
 allow^s a contract, that, in consideration of one resigning 
 his living, the other shall resign also. I do not enter into 
 the argument as to what would be the law in the interme- 
 diate period between the first and second presentation. I 
 think the same principle would still apply; but there is a 
 great analogy between this and the exchange of land ; tlu; 
 exchange may become wholly void by the death of one of 
 the parties before the transaction is com])leted. Upon the 
 whole, I entirely concur in the opinion which has been ex- 
 pressed, and particularly in the doubt intimated, whether 
 an agreement to waive the claim for dilapidations would 
 have been a valid agreement." 
 
 An exchange of portions of glebe lands may be eftected Kxcl.ange of 
 by incumbents, under the powers of and in the manner pro- s'f^" l*"*^*- 
 vided by some recent acts of parliament ; such exchanges 
 are of a different nature, and altogether distinct from those 
 which we have been considering in the present chapter, and 
 will be found fully treated in the section which !ias hccn 
 devoted to that purpose.'' 
 
 Section 4. 
 Of forming and dissolvhuj Unions of Benefices. 
 Union is the uniting, consolidating, and combining two Uuon.whaut 
 
 a See the whole case of Donm v. Crai-, 9 Mees. & W'cls. 166. 
 ^ Ante, Book II. Chap. I. Sect. 4. 
 
 u.
 
 542 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 Manner in 
 which unions 
 wete formerly 
 made. 
 
 churches into one, by which consoHdation one of the bene- 
 fices becomes extinct in law. And the principal reasons 
 assigned for it by the canon law are for hospitality, near- 
 ness of the places, want of inhabitants, poverty, or small- 
 ness of the living.*^ 
 
 There appears to be some doubt whether, by the ancient 
 common law, benefices might have been united and com- 
 bined, or whether the fact of union or no union was a 
 matter into which the common law courts could inquire. 
 
 In Lord Raymond's Reports, a case is referred to in 
 which it is said, union was made concurrentibus his qua in 
 hdc jiarte dejure requirehantur ; and exception was taken, 
 that it was not said by whom the union was made ; but it 
 was answered that this was the act of a spiritual judge, 
 and the common law would not examine it, no more than 
 sentence of the spiritual court.*^ 
 
 Unions were made by the ordinary, patron and parson, 
 or during vacancy by the two former; and in some cases 
 the king's consent was also necessary. For where the 
 Whose concur- cliurches Were very poor, and consequently the king's in- 
 rence necessary terest in them very small, it appears that his consent was 
 to an union. ^q^ deemed necessary : but if they were of reasonable 
 value, it then became essential, because an advowson was 
 a thing which lay in tenure, and might be held in capiie, 
 and therefore the king might be prejudiced in his ward ; 
 and secondly, he might be barred of a casual profit, as a 
 lapse, which in probability might happen sooner where 
 there were two churches than where there was but one ; 
 but yet the ordinary was the chief actor ; and therefore, if 
 the consent of the king was subsequent, it was sufficient.* 
 Hesiraint of But it appears that previously to the 37th year of Henry 
 
 union by statute. Vlll. the law was vcrv uncertain as to what churches were 
 poor enough to be united ; which uncertainty gave occasion 
 to the making of the statute in that year,' by which it was 
 declared that an union or consolidation of two churches in 
 one, or of a church and chapel in one, the one of them not 
 being above the yearly value oi' 61. in the king's books, and 
 not distant from the other above one mile, may be made 
 by the assent of the ordinary and ordinaries of the diocese 
 where such churches and chaj)els stand, and by the assents 
 of the incumbents of tluMii, and of all such as have a just 
 right, title, and interest to the j)atronages of the same 
 churches and chapels, being then of full age ; which unions 
 and consolidations so made shall be good and available in 
 
 '■' Gibs. 920. 
 
 '' Vide liexjuolihon v. Blake and the TMshitp of Londiui, 1 I.d, Uaym. H. 195. 
 
 •• Ibid. ■ f 37 Ilcn. 8, C.21.
 
 FORMING AND DISSOLVING UNIONS. 643 
 
 the law, to continue for ever, in such manner and form as 
 by writjng or writings under the seal of such ordinaries, 
 incumbents, and patrons, shall be declared and set forth. 
 
 Provided, that where the inhabitants of any such poor 
 parish, or the more part of them, within one year lu-xt alter 
 the union or consolidation of the same parish, by their 
 writing sufficient in the law, shall assure the incumbent of 
 the said parish for the yearly pavment of so much money 
 as, with the sum that the said jy.iiish is rated and valued at 
 in the court of first fruits and tenths, shall amount to the 
 full sum of 8/. to be levied and paid yearly by the said in- 
 habitants to the said incumbent and his successors, all such 
 unions or consolidations made of any such poor parish as 
 aforesaid, shall be void and of none etfect. 
 
 According to the case in Lord Raymond's Reports, it Thissuiuie 
 was the makine; of this statute which ^ave jurisdiction to Ra»ej""»J"c- 
 
 , , ^ ••/••III lion 'o '"'p fom- 
 
 the common law to exannne it unions were well made, as „nj„ i^^^ courts, 
 marriages, it is there observed, though they were originally 
 alter ius fori, yet when the act of parliament meddled with 
 them, it gave jurisdiction to the temporal judge ; and there- 
 fore the common law took so far notice of unions after the 
 act, that the judges granted a prohibition to tiie spiritual 
 court for suing the parishioners to come to church upon an 
 union where the union was void. But as this act was in 
 the affirmative only, and not in the negative, that is to 
 say, sanctioning in some cases but not restraining in others, 
 it was held, in a case in the temporal courts, '= that unions 
 might still have been made at common law of churches of 
 greater value than that mentioned in the act. But this 
 seems to have been a doubtful case, and there was a diH'er- 
 ence of opinion in the judges upon it; nor is it easily re- 
 concilable with what has been said before, that the com- 
 mon law derived its jurisdiction in these matters from the 
 statute. 
 
 In the seventeenth year of Charles II.'' another statute Union, inciiie* 
 was passed, which provided for the union of chm-ches in «^'J 
 cities and corporate towns; and it was declared that, in 
 case of such unions, the parishioners and inhabitants should 
 pay such tithes and other duties as had belonged to the 
 incumbent of the united church to the incumbent of the 
 church to which it was united and annexed ; but that, 
 notwithstanding such union, each of the parishes so 
 united should continue distinct as to all rates, taxes, &c., 
 and that churchwardens should be elected and appomted Kffcotof.h. 
 for each parish as before. By union, the one church --"/J^"'* 
 became extinct; and of the two benefices, the more 
 worthy was retained ; or it rather seems to have been con- 
 ; Austin V. Tuvne, Cro. Eliz. 500. " 17 Car. 2. c 3.
 
 544 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 sidered that both the old churches were extinguished, for 
 that the church united was a new thing created, not the 
 ancient rectory or vicarage of either retained, but novum 
 aliquid tertium, composed of both. Thus, though the ad- 
 vowson of one of the united churches might have been ap- 
 pendant, yet the appendancy would have been destroyed 
 by the union, for appendancy consists wholly in prescrip- 
 tion, whereas the beginning of the new church and the ad- 
 vowson would be well known ; and to make a new church 
 appendant would be in effect to make that which is done 
 at this day to be done long ago.' 
 
 The advowson therefore of a church which has been 
 vmited is necessarily an advowson in gross, and the pa- 
 tronage would go on every second turn to the several 
 former patrons, or in any other manner upon which they 
 might agree; but they could not by agreement create an 
 appendancy. 
 
 It has been said patrons of united churches have several 
 rights, and that their possessions are also several, so that 
 the one might usurp upon the other and drive him to his 
 cjuare impedit ; that tenants in common of an advowson 
 have several rights but joint possessions ; that coparceners 
 of advowsons have several rights but possessions partly 
 joint and partly several ; but that patrons of united churches 
 have both rights and possessions several ; consequently 
 that their writ of right ought to be de medietate advoca- 
 tionis.'^ 
 
 In the same case from which the above is quoted it is 
 said of the operation of an union, that it was generally 
 made in time of vacancy of the church ; for if the church 
 was full, the act of the ordinary could not prejudice the 
 incumbent, for by the union the incumbency would be 
 destroyed ; therefore if the church was full, the consent of 
 Union might the incumbent was necessary. But if the church was full, 
 be made pro- and the incumbent would not consent, the union could not 
 speciivey. ^^ made de verbis in jyrcvsenti ; but it might be made de ' 
 
 verbis in fiituro, cfiiando vacaoerit. And after the union 
 the ordinary might compel the parishioners to come to the 
 church to which the union was made, and to pay their 
 tithes by process in his court, and no proliibition was 
 grantable ; and this was no j)rejudicc to the parishioners, 
 because their modus continued good ; but the parish, as to 
 taxes, duties, rates, reparations of the church, &c. con- 
 Repairs in case tinued distinct. The reparations must be several, for other- 
 of unions. wise it might be prejudicial to the parishioners, because 
 
 ' 1 Lord llaym. 198. ^ Ibid. 
 
 I
 
 FORMING AND DISSOLA'ING UNIONS OF BENKFICFS. .O-l.j 
 
 the old church might be iiuich less in proixjilioii tlum the 
 new. 
 
 But it was considered unfair that the reparation should 
 be separate where one of the churches was altogether ex- 
 tinguished, because in such a case the parishioners of the 
 extinct church became discharged of all repairs ; and it was 
 therefore enacted by the stat. 4 Will. III. c. 12, that where 
 one of the churches united under the 17 Car. II. c. 3, before 
 mentioned, is at the time of such union or shall afterwards 
 be demolished, in such case, as often as the church which 
 is made the church presentative, and to which the union 
 was made, shall be out of repair, or there shall be need of 
 decent ornaments for the performance of divine service 
 therein, the parishioners of the parish whose church shall 
 then be down or demolished shall bear and pay towards 
 the charges of such repairs and decent ornaments such 
 share and proportion as the archbishop or bishoj) that 
 shall make such union shall by the same union direct and 
 appoint; and for want of such direction and aj)pointment, 
 then one-third part of such charges of the repairs and 
 decent ornaments which shall be made or [)rovided ; and 
 the same shall be rated, taxed and levied, and in default 
 thereof such process and proceedings shall be nrade as if 
 it were for the re]>aration and finding decent ornaments 
 for their own parish church if no such union liad been 
 made. 
 
 Incases where one living has been united to another, Land ux on 
 and the lands of one such living sold to redeem the land united livings, 
 tax on both, such sales shall be confirmed ; and all such 
 sales hereafter to be made for such purpose shall be as 
 valid as if made merely for redeeming the land tax charged 
 on the land of the living, the land belonging to which has 
 been so sold, and as if such living had not been united to 
 any other living; but in case any consolidated livings, the 
 land tax charged on v^'hich hath been or shall be so re- 
 deemed, shall at any time become disunited and held by 
 different incumbents, the incumbent of the living, the land 
 whereof was sold to redeem the land tax on both, shall be 
 entitled to an annual rent charge issuing out of the other, 
 equivalent to the land tax charged on it.' 
 
 The two statutes here mentioned, of the 37 Hen. \1 1 1. 'j^P^^J"^"'« 
 c. 21, and the 17 Car. II. c. 3, have been recently repealed, " ' 
 and the manner of forming unions of benefices has been 
 provided for, and is now entirely regulated by the 1 k 2 
 Vict. c. 106 ;'" and it is moreover by that act declared that 
 it shall not be lawful to make unions of benefices in any 
 ' 53 Geo. 3, c. 123, s. 2(i. "• Benefice I'luraliiies Act. 
 
 N N
 
 546 
 
 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 All unions 
 henceforth are 
 to be as after 
 n-icntionecl. 
 
 Unions under 
 l&:2Vict.c.l06. 
 
 Acts to be done 
 by the arch- 
 bishop of the 
 piovince. 
 
 Benefices to be 
 united by order 
 of the (|ucen in 
 council. 
 
 other manner than according to the provisions therein con- 
 tained ; and that if any union shall be made in any other 
 form or manner or under any other circumstances, the same 
 shall be void to all intents and purposes : and as that 
 statute prescribes several particulars, the omission of any 
 of which, as it seems, would make the union void, it has 
 been thought best to retain its language here without any 
 attempt at abbreviation. 
 
 " Whenever it shall appear to the archbishop of the pro- 
 vince, with respect to his own diocese, and whenever it 
 shall be represented to him by the bishop of any diocese, 
 or by the bishops of any two dioceses, that two or more 
 benefices, or that one or more benefice or benefices, and 
 one or more spiritual sinecure rectory or rectories, vicarage 
 or vicarages, in his or their diocese or dioceses, being either 
 in the same parish or contiguous to each other, and of 
 which the aggregate population shall not exceed 1050 per- 
 sons, and the aggregate yearly value shall not exceed 500Z., 
 may, with advantage to the interests of religion, be united 
 into one benefice, the said archbishop of the province shall 
 inquire into the circumstances of the case ; and if on such 
 inquiry it shall appear to him that such union may be use- 
 fully made, and will not be of inconvenient extent, and 
 that the patron or patrons of the said benefices, sinecure 
 rectory or rectories, vicarage or vicarages respectively, is 
 or are consenting thereto, such consent being signified in 
 ■writing under the hands of such patron or })atrons, the 
 said archbishop shall, six weeks before certifying such 
 inquiry and consent to her majesty as after directed, cause, 
 with respect to his own diocese, a statement in writing of 
 the facts, and in other cases a copy in writing of the afore- 
 said representation, to be afiixed on or near the principal 
 outer door of the church, or in some public and conspi- 
 cuous place in each of such benefices, sinecure rectories 
 or vicarages, with notice to any person or persons interested 
 that he, she, or they may, within such six weeks, show 
 cause in writing- under his, her, or their hand or hands, to 
 the said archbishoj), against such union ; and if no sufli- 
 cient cause be shown within such time, the said archbishop 
 shall certify the incpiiry and consent aforesaid to her ma- 
 jesty in council; and thcr(!Uj)on it shall be lawful for her 
 majesty in council to make and issue an order or orders 
 for uniting such benefices, sinecure rectory or rectories, 
 vicarage or vicarages, into one benefice with cure of souls, 
 for ecclesiastical purposes only ; and it shall he lawful for 
 her majesty in comicil to give, directions for regulating the 
 course and succession in which the patrons, if there be
 
 FORMING AND DISSOLVING UNIONS OF BKNEPirRS. 547 
 
 more than one ])atron, shall j)resent or noininad.- lu Mich 
 united benefice from time to time as the same shall ht-come 
 vacant, and for determining, if such united benefice shall 
 be in two dioceses, to which of sucli dioceses sucli benefice 
 shall belong; and such ortlcr or orders shall be registered 
 in the registry or registries ol' the diocese or respective 
 dioceses to which such united benefice sjhall be tietermined 
 to belong, and to which either or any of the united bene- 
 fices, sinecure rectories or vicarages shall have belonged 
 wlien separate; which order or orders the registrar or re- 
 gistrars of such diocese or respective dioceses, immediately 
 on the receipt thereof, are by the act required to register 
 accordingly; and such order or orders shall thenceforth 
 be binding on all parties whatsoever ; and if at the time of 
 the registration of such order or orders all the benefices, 
 sinecure rectories or vicarages ordered to be united shall 
 not be holden by the same incimibent, then if any of such ^^^y be united 
 benefices, sinecure rectories or vicarages shall at such time pro*P<=<^"*' )'• 
 be vacant, and if not, then upon every avoidance, until all 
 the said benefices, sinecure rectories or vicarages but one 
 shall come to be holden by the same incumbent, the j)atron Rc?ulaiions in 
 of the vacant benefice or benefices, sinecure rectory or rec- ^ '^**"" 
 tories, vicarage or vicarages, shall be bound to present or 
 nominate, and the bishop shall be bound to admit and 
 institute or license to the vacant benefice or benefices, sine- 
 cure rectory or rectories, vicarage or vicarages, the incum- 
 bent of the other or one of the other benefices, sinecure 
 rectory or rectories, vicarage or vicarages so ordered to be 
 united ; and if both or all, as the case may be, shall be 
 holden by the same incumbent at the time of the registra- 
 tion of such order or orders, or all but one of the said 
 benefices, sinecure rectories or vicarages shall at such time 
 be vacant, then inmiediately, or otherwise on the first 
 avoidance of either or any of such benefices, sinecure rec- 
 tories or vicarages, after all but one shall have come to be 
 holden by the same incumbent, the said benefices, sinecure 
 rectory or rectories, vicarage or vicarages, shall become 
 permanently united together, and shall be and be deemed 
 and taken to be one benefice with cure of souls to all in- 
 tents and purposes, unless and until the sanu' shall be 
 afterwards disunited, as after mentioned : provided that jj^^'," ^^';^- 
 notwithstanding any such union the parishes or places of ^^,y »^ *^ 
 which such united benefice shall consist shall eontmue 
 distinct as to all secular rates, taxes, charges, duties and 
 privileges, and in all other respects except as herem before 
 
 specified." " 
 
 " 1 £c 2 Vict. c. 100, s. 16. 
 
 N N 2
 
 548 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 Glebe lands When it shall further appear to the archbishop of the 
 
 may be- excepted . . , ,K' ,. . ', ,, , 
 
 out of an united pioviiice, With respect to his own diocese, or it shall be 
 benefice to aug- further represented to him by the bishop of any other dio- 
 mentthepro- cese, that the total income of any benefice or benefices, 
 
 vision for any . ^ . . '' 
 
 adjoining be- siuecure rectory or rectories, vicarage or vicarages, pro- 
 nefice. posed to be united as aforesaid, would be larger than 
 
 sufficient for the due maintenance and support of the in- 
 cumbent of the benefice when united, and that the whole 
 or some specified part or parts of the glebe lands, tithes, 
 rent charges, tenements and hereditaments belonging to 
 the benefice or benefices, sinecure rectory or rectories, 
 vicarage or vicarages proposed to be united, or any of 
 them, might and could, with advantage to the interests of 
 religion, be excepted out of such union, and be exchanged 
 for certain other lands, tithes, tenements and heredita- 
 ments, or any of them, in some other specified benefice 
 situate in the same diocese, and having no competent pro- 
 vision belonging thereto; and that the lands, tithes, tene- 
 ments or hereditaments proposed to be given in exchange 
 for such excepted lands, tithes, rent charges, tenements or 
 hereditaments, might with like advantage be granted, con- 
 veyed and assured, as a further per})etual endowment for 
 the incumbent of such last-mentioned benefice ; and that 
 the patron or patrons of the said benefice or benefices, 
 sinecure rectory or rectories, vicarage or vicarages respec- 
 tively, and the incumbent or incumbents for the time 
 being thereof respectively, or of such thereof as shall not 
 be then vacant, and the owner or owners, impropriator or 
 impropriators of such lands, tithes, tenements or heredita- 
 ments respectively, so proposed to be given in exchange, 
 is or are conscntin<.'' thereto, such consent to be sionififd 
 111 writing under their respective hands, it shall be lawful 
 for the said archbishoi), after inquiring into such fur- 
 ther matter, to certify in like manner as afoiesaid such 
 furtlier circumstances to her majesty in council ; and 
 thereupon it shall be lawj'iil for her majesty, in and by 
 such order as aforesaid, or any other order or orders, to 
 direct that such first-mentioned lands, tithes, rent charges, 
 tenements and hereditaments, shall be excepted out of 
 such united benefice, and be granted, conveyed and assured 
 unto such owner or owners, impropriator or impropriators 
 'Ihis may be cf- as afoiesaid, in exchange for an ('(pial valuer of lands, 
 fecied by ex- titlics, tenements or other hereditaments, situate or arising 
 
 cliange, so that -.i- ,i r •. ,• 11 ,• .11 1 
 
 the lands ^c. ^^ ''■'"" ^'"' I'liiits ot sucli bcnelice, to be by such owner or 
 may be wiihin owiicrs, impropriator or imj)roi)riators, granted, conveyed 
 ihc limits of li.e and assured for the further endowment of such other be- 
 nefice!"'*^^' '"'" nefice ; and such order or orders shall be registered in the
 
 FORMING AND JJISSOl.VINCt UNIONS OV HENEI'ICEK. 649 
 
 register of tlie diocese to which such united l)eiK'tice and 
 other benefices shull beloni:-, ;in(l which order or orderK 
 the registrar of such diocese, inuncdiatc-lv on the receipt 
 thereof, is by the act re(]uirc(l to register accordinglv, iind 
 such order or orders sliall thencefortli be binding on all 
 parties whatsoever; and such lands, tithes, tenements and 
 hereditaments, so directed to be granted, conveyed and 
 assured to such owner or o\\ iiers, impropiiator or impro- 
 priators as aforesaid, shall, immediately upon and after 
 the execution and enrolment, in manner hereinafter di- 
 rected, of the deed or deeds, instnuiient or instruments, 
 hereinafter mentionerl, be for ever freed and discharged of 
 and from all estate, right, title and interest whatsoever of 
 all and every the incumbent or incumbents for the time 
 being of the said benefices, sinecure rectory or rectories, 
 vicarage or vicarages, so to l)e imited, and become and be 
 subject and liable in every respect to all and singular the 
 uses, trusts, estates and charges of or to which the lands, 
 tithes, rent charges, tenements, or other hcieditaments, so 
 granted, conveyed or assured by such owner or (twners, 
 impropriator or impropriators, for such further endowment 
 as aforesaid, may at tlie time of such execution have been 
 subject or liable; and such last-menticned lands, tithes, 
 rentcliarges, tenements, or other hereditaments, so granted, 
 conveyed and assured by such owner or owners, im])ro- 
 priator or impropriators, for such lurtiier endowment us 
 aforesaid, shall in like numner becouu; and be for ever 
 annexed to such other benefice, for the further endowment 
 of which the same should be so gianfed, conveyed and 
 assured, and be lield and enjoyed for ever by the incum- 
 bent for the time being thereof, as j)ait of the endowment 
 thereof, freed and discharged of and from all uses, trusts, 
 estates and charges wliatsocver, to which the same re- 
 spectively, or any part thereof, were or was before sid)ject 
 or liable." 
 
 All such grants, conveyanc.s iind a^^u^ances as afore- Di.wuoo* m lo 
 said shall be made by a deed or instrument in writing, ^,,*,„^"^ ° "" 
 under the hand and seal, or hands and seals of tl)e ])atron 
 or patrons of the benefice or benefices, sinecure rectory^ 
 or rectories, vicarage or vicarages ailectcd tliereby, and of 
 the owner or owners, impro])riator or imjjropriators of the 
 lands, tithes, tenements and heredit-.imrnts, so to be given 
 in exchange as aforesaid ; and the bishop of the diocese 
 for the time being shall testify his approval thereof by 
 being a party and alHxing his episcopal seal thereto ; and 
 the incumbent or incumbents for the time being ot such 
 
 o e-ccl. 17.
 
 350 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 of the said benefice or benefices, sinecure rectory or rec- 
 tories, vicarage or vicarages, as shall not be then vacant, 
 shall testify his or their approval by being a party or 
 parties to, and signing the same respectively, and shall be 
 the party or parties by whom the grant, conveyance and 
 assurance, to be made or executed to such owner or 
 owners, impropriator or impropriators as aforesaid, shall 
 be made and executed ; and such deed or deeds, instru- 
 ment or instruments in writing, shall be enrolled in her 
 Must be en- majesty's High Court of Chancery within six calendar 
 lolled ia Chan- months after the execution thereof respectively, or else 
 ^'^'^' have no operation under the act.^* 
 
 Effect of the The approval of the said bishop, testified as aforesaid, 
 
 approval of the g}iall be conclusive that the lands, tithes, rent charges, 
 tenements and hereditaments, so to be granted, conveyed 
 and assured under or by virtue of the provisions aforesaid, 
 were respectively of the proper value required by the act, 
 and wei'e respectively granted, conveyed and assured in 
 due accordance with the provisions aforesaid.'' 
 Disuniting be- The same statute further provides for disuniting be- 
 been'^uDi'ted '^^^ nefices which have at any former time been united, or 
 which may at any time have been united under the last- 
 mentioned provisions, in cases where it may be deemed ex- 
 pedient so to do. The manner in which such disunions 
 are to be effected is as follows. 
 Mode of pro- When two or more benefices shall have been united or 
 
 ceedingin. maybe hereafter united into one benefice, and, with re- 
 spect to his own diocese, it shall appear to the archbishop 
 of the province, or the bishop of any diocese shall re- 
 present to the archbishop that one or more of the benefices 
 within his diocese, of whicli such united benefice shall 
 consist, may be separated therefrom with advantage to the 
 interests of religion, the archbishop shall inquire into the 
 circumstances of the case, and if on such inquiry it shall 
 appear to him that such union may be usefully dissolved, 
 so far as respects such benefice or benefices, he shall, six 
 weeks at least before certifying such inquiry to her ma- 
 jesty as hereinafter directed, cause, with respect to liis own 
 diocese, a statement in writing of the facts, and in all 
 other cases a copy in writing of the aforesaid representa- 
 tion to be affixed on or near tlie principal outer door of 
 the church, or in some public and conspicuous place in 
 each of the benefices, forming pnrt of the united benefice, 
 with notice to any person or persons interested, that he, 
 she or they may witliin such time show cause in writing, 
 ujider his, her or tluiir jrands, to tlu^ archl)ishop, against 
 I' Sect. 18. '1 Sect. 19.
 
 FORMING AND DISSOLVINtJ UNIONS OF DENLFICES. 6.01 
 
 any such disunion ; and if no sullicient cjiuse be shuwn 
 within such time, the archbishop shall certify the iiujuiry 
 and consent, when the patron's consent is iiecessarv, to 
 her majesty in council, and thereupon it shall be lawful 
 for her majesty to issue an order for separating- such last- 
 mentioned benefice or benefices from such united benefice, 
 and for declaring the rights of i)atronage of the several 
 patrons, if there be more tlian one j)atron, and such order 
 shall be registered in the registry of the diocese to wiiicli 
 such united benefice shall belong, which order the registrar 
 of such diocese, immediately on the receipt thereof, is 
 hereby required to register accordingly ; antl tluMcupon 
 immediately, if such united benefice shall be then vacant 
 or otherwise, on the first avoidance thereof, such union 
 shall be ipso facto dissolved, so far only as regards such 
 benefice or benefices so proposed to be separated from 
 such united benefice, but in all other respects shall renuiin 
 in full force and eftect, and thenceforward such last-men- 
 tioned benefice or benefices shall be, and be deemed and 
 taken to be, a separate and distinct benefice or benefices, 
 to all intents and purposes whatever, as if no such union 
 had taken place, and the patron or patrons thereof shall 
 and may, according to the terms of such order, present or 
 nominate thereto respectively, and so from time to time 
 npon each and every avoidance of the same : provided, 
 that no benefices which have been united for niorc than 
 sixty years before the passing of this act shall be disunited 
 without the consent in writing of the patron or jnitrons 
 thereof/ 
 
 In any case in which her majesty in council shall have i„cuii.iK:ni m^y 
 issued any such order as aforesaid for separating one or ff^'en ^ ••••• 
 more benefices from such united benefice, it shall be lawful "j"', ,y 
 
 for the incumbent thereof, if such united benefice shall be prcwm. 
 full at the time of issuing such order, to resign the benefice 
 or benefices so proposed to be sejjarated as aibresaitl from 
 such united benefice ; and thereupon it shall be lawful for 
 the respective patron or patrons of such last-mentionctl 
 benefice or benefices to present or nominate thereto, in 
 the same manner as if such united bee.etice had been 
 vacant at the time of issuing such order.' 
 
 Whenever two or more benefices, which have at any Portion of glebe, 
 time been united into one benefice, shall be disunited and ^l^'^^^ ^Z^'- 
 become separate benefices under the provisit>ns ot this act. .reJbe- 
 
 whether the order for disunion shall extend to the whole 
 number of benefices of which such united benetice con- 
 sisted, or to one or more of such benefices only, it shall be 
 r Sect. 21. 'Sect. 22.
 
 552 THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 lawful for her majesty in council, on the recommendation 
 of the archbishop of the province, with the consent of the 
 patron or patrons of such benefices respectively, (such 
 consent to be signified in writing under the hands of such 
 patron or jiatrons,) to assign and attach such portion of 
 the glebe lands, tithes, moduses, rent charges, or other 
 endowments or emoluments belonging to, or arising or 
 accruing within the limits of such united benefice, to each 
 of such benefices respectively, as to her majesty in council 
 shall seem fit, notwithstanding such proportion of glebe 
 lands, tithes, rent charges, moduses, or other endowments 
 or emoluments, or any part thereof, may not arise or accrue 
 within the limits of the benefice to which the same shall be 
 be so assigned and attached as aforesaid, or may not have 
 belonged thereto, and also to divide and apportion between 
 such benefices all such charges and outgoinos as before 
 the disunion thereof were imposed upon the whole united 
 benefice ; and in the case of mortgages, with the consent 
 of the mortgagees, in writing under their hands and seals/ 
 And sliall be- And all sucli lands, tithes, rent charges, moduses, or other 
 long to the in- endow ments or emoluments, w hen so assigned and attached 
 as aforesaid, shall belong to, and the same and the rents 
 and profits thereof shall be recoverable by, the incumbent 
 of the benefice to which the same shall have been so as- 
 signed and attached." 
 House of resi- In case it should happen that in benefices thus disunited 
 
 dence may i>e the existing liousc of residence may be inconveniently situ- 
 sold, and the i i r -Ti c ^ ^• -x i • i "i 
 proceeds applied ^"-^^ ^^•' ^''ther oi sucii disunited parislies, or may be on 
 
 to building other too large and expensive a scale to be conveniently main- 
 ^°"^'^- tained by the incumbent of siu;h disunited benefice, it is 
 
 enacted tliut all the provisions of an act which has been 
 already mentioned and explained, for amending the law 
 for providing fit houses for tlu; beneficed clergv, shall be 
 applicable to the case of any benefice thus disunited; so 
 that the house and gardens, &c. may in such case be sold, 
 and the proceeds of the sale may be ajjplied by the go- 
 vernors of (^ueen Anne's Bounty towards the erection or 
 purchase of such and so many houses, or in and towards 
 the purchase of so many gardens or appurtenances, or of 
 so much land as shall be required for the residence of an 
 incumbent within each of the j>arishes so disunited, in 
 such |)roj)ortioiis within each such ben(^fice respectively as 
 shall be a])proved by tin; archbishoj) of the j)roviiice, with 
 the consent of the patron and ordinary, and (if the benefice 
 be full) of the incumbent of the benefice, such consents to 
 
 ' Sect. 23. " Sect. 24.
 
 FOUMING AND DISSOLVING UNIONS OF BENEFICES. 553 
 
 be signified in writings under their respective hands, and 
 shall be confirmed by her mujesty in council/ 
 
 In case it should happen that, at the time when any Suppiemcnul 
 orders for the uniting or disuniting benefices comes into order for adju»t. 
 operation, the changes effected by virtue of the above j)ro- ^fytinadc 
 visions may create doubts and disputes not foreseen at the wuhinfuejcar*, 
 time when such orders may have been made resp«'cting 
 ecclesiastical jurisdiction, glebe lands, tithes, rent cliarges, 
 and other ecclesiastical dues, rates and payuKMits, patron- 
 age, right to pews, and the definition of local boundaries, 
 it is enacted, that it shall be lawful for her majesty in 
 council, at any time within Civc years after such orders re- 
 spectively shall come into full operation, if occasion shall 
 arise, to make a sup})lemental order for removing such 
 doubts, and settling such disputes ; and everv such supple- 
 mental order shall have the same force and eH'ect as if it 
 had formed part of the original order made imder the 
 ])rovisions of this act: provided that in every case in wiiich 
 the contents of parishes shall be so altered, such altera- 
 tion shall not in any wav affect the secular rates, taxes, 
 charges, duties or privileges of such puiislics, or of nnv 
 part of them. ■ 
 
 By the above statute, according to the provisions of 
 uhich the miion and disunions of parishes are to be made, 
 power is als(^ given for annexing isolated places which are 
 separated from tlu; parish or mother church to other 
 parishes to which they may be more contiguous, or for 
 forming such ])laces into sisparate ])arishes for ecclesias- 
 tical purposes; but as to this latter, it appears to have 
 been forgotten that the church building acts contain ample 
 provisions for effecting precisely the same purpose. As to 
 the former, however, the provisions of this act may pro- 
 bably be very usefully had recourse to. Such pro\isions 
 are as follows. 
 
 Whenever, witii respect to his own diocese, it shall ap- 
 pear to the archbishop of the province, or when the bishoj) 
 of any diocese shall represent to the archbishop that any 
 tithing, hamlet, cliapelry, place or district withiu the dio- 
 cese of such archbishop, or the diocese of such bisho]), as 
 the case may be, may be advantageously separated from 
 any parish or mother church, and cither be constituted a 
 separate benefice by itself, or be united to any (.ther i)arish 
 to which it may be more conveniently annexed, or to any 
 other adjoining- tithing, hamlet, chapelry, place or district, 
 parochial or extra-parochial, so as to form a separate pa- 
 
 X Sect. 2'). '■ Sect. '27.
 
 554 f THINGS INCIDENT TO POSSESSION OF BENEFICE. 
 
 lish or benefice ; or that any extra-parocliial jilace may 
 with advantage be annexed to any parish to which it is 
 contiguous, or be constituted a separated parish for eccle- 
 siastical purposes ; and the said archbishop or bishop 
 shall draw up a scheme in writing (the scheme of such 
 bishop to be transmitted to the said archbishop for his 
 consideration), describing the mode in which it appears 
 to him that the alteration may best be eftected, and how 
 the changes consequent on such alteration in respect to 
 ecclesiastical jurisdiction, glebe lands, tithes, rent charges, 
 and other ecclesiastical dues, rates and payments, and in 
 respect to patronage, and rights to pews, may be made 
 with justice to all parties interested ; and if the patron or 
 patrons of the benefice or benefices to be affected by such 
 alteration shall consent in writing under his or their hands 
 to such scheme, or to such modification thereof as the said 
 archbishop may approve, and the said archbishop shall, on 
 full consideration and inquiry, be satisfied with any such 
 scheme or modification thereof, and shall certify the same 
 and such consent as aforesaid by his report to her majesty 
 in council, it shall be lawful for her majesty in council to 
 make an order for carrying such scheme, or modification 
 thereof, into effect ; and such order, being registered in the 
 registry of the diocese, wdiich the registi'ar is by the act 
 required to do, shall be forthwith binding on all persons 
 whatsoever, including the incumbent or incumbents of the 
 benefice or benefices to be affected thereby, if he or they 
 shall have consented thereto in writing under his or their 
 hands ; but if such incumbent or incumbents shall not 
 have so consented thereto, the order shall not come into 
 operation until the next avoidance of the benefice by the 
 incumbent objecting to the alteration, or by the surviving 
 incumbent objecting, if more than one shall object there- 
 to; and in such case the order shall forthwith, after such 
 avoidance, become binding on all persons whatsoever/ 
 
 '■ Sect. 26.
 
 ( 555 ) 
 
 CHAPTER III. 
 
 OF THE MANNER IN WHICH A IJENEFICK, OK THE 
 PROFITS THEREOF, MAY RE LOST. 
 
 Section 1. 
 Of Sequestration. 
 
 A WRIT of fieri facias de bonis ecclesiasticis is u writ which \Miat it m. 
 may be sued out to the bishop of the diocese, when to a 
 common writ oi fieri facias the sheriff has returned that 
 the defendant is a beneficed clerk, not having; any lay 
 fee ; for these bo?ia ecclesiastica arc not to be touched by 
 lay hands. And the bishop, or, in practice, the registrar 
 of the diocese, thereupon sends out what is called a se- 
 questration of the j)rofits of the clerk's benefice, directed 
 sometimes to the churchwardens, or very commonly, as 
 matter of convenience, to the creditor at whose suit the 
 writ has issued, or it may be to any other person, (for the 
 bishop is not restricted in this respect,) directiiifr thcni to 
 collect the profits, and to pay them to the plaintilf, till the 
 full sum be raised. The followin"- is the form in which 
 the writ of sequestration runs : 
 
 "We, therefore, proceeding by virtue of and in obe- Fomiofihc 
 dience to the said writ, and inasnuich as in us lies duly "'"• 
 executing the same, have sc(piestrated all and singular the 
 tithes, fruits, profits, oblations, obventions, and all other 
 ecclesiastical rights and emoluments of and belonging to 
 the rector (or 'vicar'), and by these presents do st(|uestor 
 the same, and give and grant unto you the said IC 1". Itdl 
 power and authority to sequestrate, collect, levy, gather, 
 and receive all and singular the tithes, fruits, motits, obla- 
 tions, obventions, and all other ecclesiastical rights and 
 emoluments of and belonoing to the rectory (or' vicarage') 
 
 and parish church of aforesaid, and the same to sell 
 
 and dispose of, and the money arising therefrom to apply 
 to and for the due payment of the debt and costs m the 
 said writ mentioned, subject to the said indorsement on 
 the said writ; also subject, tStc." ' 
 
 Instead of a fieri facias, the i)laintiff may sue out a writ 
 of sequestrari facias, directed, tested, and returnable, &c. 
 ^ See note to Waite v. Bis/io;>, 1 Cromp. Mecs. & Rose. 507.
 
 566 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 Two kinds of 
 sequestrations 
 
 as the Jleri facias; commanding the bishop to enter into 
 the rectory, and take and sequester the same, and liold 
 them until of the rents, tithes, and profits thereof, and of 
 the other ecclesiastical goods of the defendant, he have 
 levied the plaintiff's debt. This writ is in the nature of a 
 levari facias, the other is in the imture of b. fieri facias.^ 
 
 This is the mode of sequestrating where the sequestra- 
 tion is for satisfaction of a, debt; but a sequestration is 
 also very commonly a punishment or sentence pronounced 
 by the bishop in his own court ; and in that case it issues 
 originally from the bishop. 
 
 Sequestrations may, therefore, be considered of two 
 kinds ; first, such as issue at suit of a creditor, being 
 founded on the return made by the sheriff, and where the 
 bishop acts ministerially in aid of the sheriff; and, second, 
 I such as issue as an ecclesiastica l sentcnc^ or punishment, 
 1 and where the bishop acts originally. 
 Publication of. The sequestration, when made out, shoidd forthwith 
 be duly published, which was formerly done by reading it 
 in church during divine service, and afterwards at the 
 church door,*^ but now, l)y fixing a coj)y of it on the 
 church door;'' and the power of sequestration only ope- 
 rates from the time of pid^lication, and not earlier; so that 
 any profits which may have accrued before the publica- 
 tion cannot be taken by virtue of it ;'' and if other seques- 
 trations were taken out, that which was first published 
 would have priority.' 
 
 The sequestration liaviuglxM^n thus; published, the duties 
 of the secpiestrator begin. The sequestrator may be any 
 person whom the bishoj) thinks proj)er to appoint for that 
 purpose ; and he is the bishop's officer, or, as l^ord Stowell 
 calls him, his bailiff. For the sake of convenience, this 
 is very commonly the creditor; but if the creditor is ap- 
 pointed, he has no greater authority or power in conse- 
 quence than an indifferent third party would have." 
 
 His duties are easily understood. He is in the first 
 place to consider himself in the same position as the in- 
 cumbent of the benefice woidd have been, as to all charges 
 and outgoings, which it would be the duty of the incum- 
 bent to provide for ; since the profits of a benefice can 
 never be correctly said to belong to the incumbent abso- 
 lutely, being to i)C appropriated first to certain puiposes 
 for the b(niefit of the j)arisiiioners and their church, and 
 
 Sequestrator. 
 
 His duties. 
 
 
 b See Chitty's Pracl. 788. 
 
 '" See 1 Vict. c. 45. 
 
 f liennett v. Ajijierleij, 6 J5.irn. & (J. 626. 
 
 i Wliinjield V. U'ntldin, 2 I'liill. 8. 
 
 <■ 6 Barn. & C. 630. 
 <-' ]Vaite V. U'lDlipp, ante.
 
 OF SEQUESTRATIONS. 13^7 
 
 the residue only to be the property and for the honefit of 
 the inucmbcnt : a sequestrator, therefore, cannot be in a 
 ])etter jiosition. 
 
 A demand having- been nuuh' against a serpiestrator for Mum repair, 
 ddapidations, the sequestrator answered .that lie was ready ='"'1 i-; liabl.. 
 to produce his vouchers lor what he liad paid, part of [^^J ''''='P'J='- 
 Avhich he had expended in repairs. Lord Stowell directed '"""' 
 the account to be furnished, but said, upon the «j.'neral 
 principle, he was inclined to hold that the sequestrator 
 would be liable for dilapidations; for that although the 
 sequestration may not mention any jiarticular purpose but 
 payment of the particular debt, yet it was a thing incident 
 to and inseparable from the s'ubject-nuitter itself, tliat 
 there should be certain charges and duties for which the 
 sequestrator would be bound to provide. The instrument, 
 he adds, which is issued under the authority of the bishop, 
 contains an alIovvancc_o£ all necessary charges; and the 
 clergyman is by law equally required to provide such 
 repairs, as well as the performance of divine service, and 
 he cannot exonerate himself from one of those duties 
 more than from the other.'' And in another case tlie 
 same learned judge says to the same effect. 
 
 A sequestrator is bound to repair edifices belonging to 
 the benefice, and he may be compelled to do so by j)rocess 
 from the bishop's court; the repair of the house is as 
 necessary a charge as the su])ply of the church itself; the 
 sequestrator may therefore be compelled by the bishoj) or 
 churchwardens to make those repairs, and nothing can 
 exonerate him from tlioin.' 
 
 Besides paying all these chargts to w Inch the incumbent .Must pay for 
 
 would have been liable, the setiuestrator must, out of the ''"e perform- 
 ... . , ,. S • /. .1 aiicc- of ifi- 
 
 accrumg prohts, ])rovide for tiie projier service of tlie ^.j^.^.^ 
 
 church; and this is regulated by the bishoj), both as to ^iciJ-y,y ^^<^<' 
 
 the person who is to perform such service, and the i">i<J"'it xcW ^y J^^^f^^y 
 
 of salary he is to leceive, the sequestrator having only to ' ^"i^^. ^-^ 
 
 pay such sum as may be directed.'' 
 
 After payment of all these necessary chargi-s, the seipies- i iiimaic i,u\t 
 trator is to collect the growing profits, to be paid over to »' !•«><>'*• 
 him in whose favour the w rit is issued, mitil the amount of 
 the sum for w hich the benefice has been sequestrated has 
 been satisfied.' 
 
 Where upon the death of an iucund)eut who.-e living 
 had been under sequestration, and who had Ix'cn dis- 
 charged under the Insolvent Debtors' Act, a balance 
 remained in the registry of 81/., tliis was claimed by a 
 
 '' Hubbard v. Beckfoid, 1 Coi.s. H.307. * Whiujidd v. Il'..//.<«s ante. 
 
 ^ 1 Cons. R. ante. ' ^ •>• «'ack. 58-J. , , 

 
 558 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 builder who had done repairs, by the succeeding rector 
 for dilapidations, and by the assignee under the Insolvent 
 Act. 
 
 A reasonable allowance out of the profits is usually 
 made to the sequestrator according to the trouble he may 
 be put to in the collection of the profits of the benefice. 
 Dr. Burn also says that a reasonable allowance out of the 
 profits is to be made for the maintenance of the incumbent 
 and his family (in case there is an incumbent), if he has 
 not otherwise sufficient to maintain them. 
 Remedies by. Sequestrators cannot maintain an action for tithes in 
 
 their own name at the common law, nor in any of the 
 king's temporal courts, but only in the spiritual court, or 
 before the justices of the peace, where they have power 
 by law to take cognizance."^ 
 Remedies 1 When the debt has been satisfied, the sequestrator is to 
 
 against. / deliver up his charge, and give an account of the due ap- 
 J / , plication of the sums which he may have received, which 
 ^^^Jr/iyi^ if they refuse to do, or if the accounts rendered by them 
 i/'^^/f*^ . rfv/^^iiXQ. not satisfactory, the remedy of the incumbent is in the 
 ^2^/C^/t^'^ -y/^Ecclesiastical Court. But if the sequestrator, being called 
 j to account in that court, can show that the sequestration 
 1 is finished and determined, and that the accounts have 
 been made up, Lord Stowell says he may not be liable 
 there, but may be liable elsewhere, as it did not seem to 
 him that that court could interfere after the sequestration 
 was closed, and the connection of the sequestrator with 
 the living; has ceased." 
 
 If the sequestrators, being called to account m the Ec- 
 clesiastical Court, delay to give an account, it is said by 
 Watson, the judge useth to deliver to the party grieved 
 the bond given with a warrant of attorney to sue for the 
 penalty thereof, to his own use, at the common law.° 
 The bond is given to the bishop, and there appears to be 
 no positive objection to his delivering over the bond to 
 the incumbent in this manner and for this purpose. 
 
 It is said that in one case a bill in equity was filed for 
 an account of j)rofits received by sequestrators, that it was 
 objected that the bishop ought to have been made a party, 
 since the sequestrator is accountable to him for what he 
 receives; but there the case was withdrawn. *' But if the 
 sequestration were still in force, and tlie question was 
 sim])ly one of account as against the sequestrator, a bill 
 in equity would not appear to be proper, as the seques- 
 trator is the bailiff of the bishoj), to whom he is bound to 
 
 "' Johns. 122 ; 3 Burn's E. L. 340. " Wliin/ield v. Watldns, ante. 
 
 " Wats. cli. 30. I' Sec 3 Burn's E. L. 340.
 
 OF SEQUESTRATIONS. ijr^C) 
 
 account ; and the question in such a case, relating- solely 
 to ecclesiastical revenues, should he deteimined in the 
 Ecclesiastical Court. But whore, aItlu)uoh the suhject is 
 ecclesiastical revenue, yet the (juestion in dispute arises D.spmes as to 
 between different parties laying claim to the profits, there priority of 
 a bill in equity may be, and freqiiently has been, resorted •^''''"''' *''"<^ 
 to for the purpose of determinmg the] priority of sucli LqLrJ.'io^" 
 claims. And it has been there decided, that a creditor and other in- 
 who has obtained a sequestration cannot thereby defeat <^"™*'""«*- 
 the claims of any prior incumbra ncer on t he profits. For 
 that where a creditor of a clergyman seeks to obtain pay- /4, z^*-. " K 
 ment of his debt by judgment and sequestration, he is, y/uuc>t ^'/^/^ 
 in the contemplation of that court, in the same state as ^/j<^i» A^ 
 any other creditor who has taken out execution ; and a ^7 ( (ff^^^ 
 creditor, having taken out execution, cannot hold property 
 against an estate created p]lor_tohis debt.'' 
 
 Where a clergyman mid7T)y~indenture, assigned ]n"s 
 stipend for a term of ninety-nine years for securing pay- 
 ment of an annuity; the annuity became in arrear, and .-. 
 the assignee of the stipend then gave notice of the assiiiu- > 
 ment to the parties by whom the stipend was collected. " *^ 
 Before that time, but subsequent to the assignment, the 
 rector had incurred a debt to another pa'-ty, by whom the 
 stipend had been sequestered. Upon bill filed by the 
 assignee of the stipend, it was decreed that he was entitled 
 to receive satisfaction for the arrears and growing pay- 
 ments of his annuity prior to the claims of the subsequent 
 creditors, who had taken out sequestration. "^ And so in a 
 similar case, where the plaintifi" had an assignment by 
 indenture of the profits of the living for a term of years 
 to secure an annuity granted to liim by the rector, but a 
 sequestration had been obtained by subsequent creditors, 
 a receiver was appointed on the plaintitt's application, 
 and an injunction was granted to restrain the bishop I'rom 
 commencing or prosecuting any proceeding in respect of 
 the matters, and to restrain the other defendants from 
 jiutting in force the sequestration obtained by (hem.' 
 
 The principle of these cases has been followeci in other 
 cases subsequently, and the j)rinciple appears very clear 
 and satisfactory, namely, that sequestration being only a 
 means of enforcing a claim, cannot entitle the person ob- 
 taining it to have his claim preferred to that of other par- 
 ties who have an actual legal claim and j)rior incumbrance 
 on the property ; so that a sequestration can never oust a 
 
 q While V. Bhhoiy of Peterborough, 3 Swanst. 116. ■ 
 
 >■ Errin^ton v. Howard, 1 Ambl. 485. 
 
 s Silvet^v. Bishop of Noricich, 3 Swanst. 112.
 
 560 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 legal assignment of the profits of a living made previously. 
 If the parties therefore come into equity, a reference to 
 the master would be directed, to take an account of the 
 incumbrances, and to ascertain their respective priorities.' 
 Or where ilieie Upon the same principle it is, that when more than one 
 hasbeenmore sequestration has been trranted, which is very frequently 
 
 tn^n one sgoucs* ^ ^ . */ i. v 
 
 tration. the case, the several parties in whose favour they have 
 
 been obtained, are considered in equity just in the same 
 manner as where there are several mortgagees of the same 
 property. For as any subsequent mortgagee may redeem 
 those whose mortgages are prior to his own, so those in 
 whose favour any subsequent sequestrations have been 
 granted, are entitled to an account in equity, as against 
 those in whose favour jirior sequestrations have been 
 granted, whose debts they might satisfy if they pleased ; 
 or the sequestrator in possession may be directed to pass 
 his accounts annually before the master, and becomes an 
 officer of the court, being, as it were, made a trustee for 
 the difierent parties, to whom he is to pay the profits ac- 
 cording to their respective priorities." 
 
 In a case at law, where a judgment was upon a warrant 
 of attorney for 1800/., tlie warrant of attorney provided 
 that on the death of the defendant, and full payment of 
 the arrears of the annuity, satisfaction should be entered 
 on the record. A second judgment having been signed 
 by a difierent creditor, who sued out a serjuestrari facias 
 thereuj)on, it iip])eared that at that time the former cre- 
 ditor had, l)y sequestrations, levied more than 1800/. for 
 arrears t)f his annuity, and there were arrears still due. 
 The court ordered that satisiaction should be entered on 
 the roll of the former judgment as of t\u) date when the 
 judgment was signed by the second creditor, and that the 
 sums levied since .should be paid over to him. lUit they 
 refused to order ])ayuient to this creditor of the surplus 
 over 1800/, levied beibie the signing of his jutlginent.'' 
 Bankiupiiy and A cleriiymau who has traded, so as to render himself 
 insolvemy ot |i^i_,j^. j,/ ;jtii,.i. icspects to be made a bankrupt, is not 
 clergyman. , ,. ■ • ■• 1 •.•, , ■ • i r i ■ 
 
 exemj)t Ironi his habihty to a connnission by reason or Ins 
 
 character as a clerk in holy orders. lie may also take 
 
 the benefit of any of the acts for the relief of insolvent 
 
 /^iV. ^'i^^/ debtors.^ And in either of these cases his ])nvate \no- 
 
 /i /P* '/Y^^C' pcrty would pass to his assignees in the same manner as 
 
 M^l^ I lJ,7,;/e V, /{(s/hi/) (;/■ I'vterbor.'ii^h, aiik. 
 
 '^ " Cuddiiijiliui V. W'tlliu, 2 Swans. 174. 
 
 " Cittte V. U'lin-iiigloji, 5 Uain. & Ad. 447. 
 
 y Ex parte Meynwil, 1 Atkins. 190"; ami l.oul Alvaiiley in AibncLle v. 
 Cout'.m,-^ Jios. & ruH. 321.
 
 OF SEQUEf5TRATI0NS. .'Ail 
 
 that of any layman. But witli lesvanl to his ecclesiasticul 
 estate, the matter is quite difll'ient; and the |)resent state Ho« ii aflVn* 
 of the law on this sul)ject may be said to he rather un- •''!'ectie»ia»iical 
 satisfactory, inasmuch as it atl'ords every oj)])ortiuiitv for "^'"'*- 
 that which is nearly allied to fraud. 
 
 It would be unnecessary here to enter into the detail of 
 proceedings in bankruptcy or insolvency ; it may be stated 
 generally that the eft'ect is the same in both cases, so far 
 as that the property of the l)ankruptor insolvent is legally 
 passed to the assignees. In the case of insolvency it has 
 been provided that nothing in the act directing the assign- 
 ment, &;c. sliall extend to entitle the assignees of tiie estate 
 and etlects of the insolvent, being a beneliced clergyman 
 or curate, to the income of such benefice or curacy for the 
 purposes of the act, but that it shall be lawful for the 
 assignees to aj)plv for and obtain a sequestration of the Si(|ucstraiions 
 profits of any sucli benefice ; and the order of adjuiHcation ""''*^''- 
 made on the insolvent's petition shall be a sufficient war- 
 rant for the granting of such sequestration without any 
 further writ or other proceedings. And such sequestration 
 shall accordingly be issued as the same might have been 
 issued upon any writ o( levari facias/- 
 
 The effect of this is the same as in the case of bank- FtTeci of hudi 
 ruptcy,'^ namely, that only the right to obtain possession ^'l"e>«"i'""^- 
 of the ecclesiastical estate passes to the assignees, and not 
 the ecclesiastical estate itself The assignees therefore 
 are just in the same position as any individual creditor 
 who has obtained judgment ; and their position being the 
 same, it follows tliat any such creditor, according to the 
 rule before mentioned, may, by obtaining the prior seques- 
 tration, obtain satisfaction of his debt, before any thing 
 could be obtained by the assignees. In other words, it 
 seems that any individual creditor may supersede, and so 
 far defeat the "right of the general creditors ; lor it is said 
 by Lord Denman, that the se(piestration issued by the 
 assio:nees must b(; subject to other writs which have a 
 priority, and that a creditor who has levied any thmg 
 under "such a writ is entitled to retain it against the as- 
 
 su'"nees 
 
 °But there is a further hardship in this state of the law, r.oUl.lc in- 
 for the right to the property does not actually i)ass to an J"^ '"• 
 insolvent's assignees, so as to give them a right to apply 
 for a sequestration, until the adpidieation of th(> Insolvent 
 Debtor's Court; that adjutlication therefore being to them 
 
 ^ 7 Geo. 4,c. 57,8.28; and sec 1 &: 2 Viet.c. 110, s. 55. 
 a Ex varte MeumoU, and ArhucUle v. CouKiii, ante, 
 b Bishop V. Hatch, 1 Ad. & EH. 171. 
 
 ' o o
 
 562 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 what a writ of levari facias would be to any judgment 
 
 creditor, so that, as it was observed by Patteson, J., the 
 
 hands of the assignees are tied, until the adjudication of 
 
 the Insolvent Debtors' Court, while other creditors have 
 
 notice, and are at liberty to })roceed against the benefice.'' 
 
 When right to a If any judgment creditor, being entitled to the benefit 
 
 mii"hTbe'los°tby °^ ^"Y security, shall, before the property so charged or 
 
 creditors. secured shall have been converted and realised, and the 
 
 produce applied towards payment of the judgment debt, 
 
 cause the person of the judgment debtor to be taken in 
 
 execution, he shall then be deemed to have relinquished 
 
 all right and title to the benefit of such security.^ In such 
 
 a case, therefore, it seems that the judgment creditor could 
 
 not obtain a sequestration. 
 
 It only remains to be observed, that the provisions of 
 the more recent act for the relief of insolvent debtors, ap- 
 pear to make no alteration in these respects, the section 
 applicable to the ecclesiastical estate of an insolvent being 
 to precisely the same effect as that of the prior act.^ 
 How far seques- Where the qualification of a justice of the peace is an 
 tratioD a'iects ecclesiastical benefice, a sequestration issued at the suit of 
 
 the qualihcation . , i • i • i i 
 
 for a justice of 9- creditor, under which possession has been duly taken, 
 the peace. and the profits received, is an "incumbrance affecting the 
 
 estate" within the statute 18 Geo. II. c. 20, s. 1. And in 
 a penal action against the incumbent for acting as a justice 
 without being qualified, the writ of sequestrari facias is 
 admissible in evidence against him, although the judgment 
 roll contains no entry of an award of the writ. 
 
 Upon issuing such sequestration against a vicar, the 
 bishop licensed him as a stipendiary curate, directed the 
 sequestrator to pay him 120/. a year as such, and assigned 
 to him the vicarage house and grounds as a residence, 
 which were together worth above 100/. a year; upon 
 which it was hekl that the salary and the grounds being- 
 enjoyed by assignment of the bishop, and not simply 
 as vicar, were no qualification within the above statute ; 
 that the vicar being bound to reside, notwithstanding 
 sequestration, occupied the house by right as vicar, and 
 not by the bishop's assignment, which, quoad hoc, was 
 merely void, but that such house, unless proved to be alone 
 worth 100/. a year, was no (ju.ilific.ition.^ 
 Original seques- The s(!con{l kind of seciuestrations are such as issue ori- 
 
 tralions from (lie • ,, /• ,i i- i i • .• i i 
 
 Ijisiiop. guialjy irom tlu; bishoj) as an ecclesiastical sentence. 
 
 For dilapida- ^^ thcsc the most common was formerly that which was 
 
 tions. 
 
 <= Bishoji V. Ildlcli, ante. 
 
 '" 1 & 2 Vict. c. 110, s. 16. « See same act, s. 55. 
 
 f Pack V. Tuiplei), 9 Ad. & Ell. 468.
 
 OP SEQUESTnATIONS. .0^ 
 
 issued as a remedy for dilapidations, wlu-re the incumbent 
 upon being monished to repair, neglected to do so for 
 two months after the monition, and the monition might 
 formerly have come from the archdeacon, but now (.-very 
 proceeding for this jjurpose woukl be according to the 
 provision of the 1 & 2 Vict. c. 106, which has been already 
 noticed under the head of dilapidations. '■' Here it need 
 only be observed, that such sequestration would be in the 
 same manner as those for non-residence, kc. next men- 
 tioned. 
 
 The statute of 1 & 2 Vict. c. lOtI, has imj)osed the pe- Kornon-reti- 
 nalty of sequestration on several ecclesiastical offences ; Jence, illegal 
 and more especially for certain cases of non-residence, for k^enrtfe flie'sl 
 illegal trading, and for not giving uj) to a curate posses- possession of 
 sion of premises which have been assigned to him by the pfemise*. 
 bishop.'^ 
 
 In all these cases, as has been already observed, in 
 speaking of those subjects separately, the bisliop is autho- 
 rised, upon non-compliance with his monition, to sequester 
 the profits of the benefice, and to direct, by any order made 
 under his hand, and filed in the registry of the diocese, 
 the application of such profits, after deducting the ne- Application of 
 cessary expenses of serving the cure, either in the whole, sequestered 
 or in such proportions as he shall think fit, in the Jirst 
 place, to the payment of the i)enalties proceeded for, if 
 any, and of such reasonable expenses as shall have been 
 incurred in relation to such monition and sequestration ; 
 and, in the next place, towards the repair or sustcntation 
 of the chancel, house of residence of such benefice, or of 
 any of the buildings and ap])urtenances thereof, and of the 
 glebe and demesne lands ; and, in the next place, where 
 such benefice shall be likewise under sequestration at the 
 suit of any creditor, then towards the satisfaction of such 
 last-mentioned sequestration; and after the sufisfaction 
 thereof, then and in the next i)lace towards the augmen- 
 tation or improvement of any such benefice, or the house 
 of residence thereof, or any of the buildings and apptirte- 
 nances thereof, or towards the improvement of any of the 
 glebe or demesne lands thereof, or to order and dnect the 
 same, or any portion thereof, to be paid to the treasurer 
 of the governors of the Bounty of Queen Anne, as such 
 bishop shall in his discretion, under all curumstanccs, 
 think fit and expedient; and it shall also be lawful lor the 
 bishop, within six months after such order lor sequestra- 
 tion, or within six months after any money shall have been n. 
 actually levied by such sequestration, to remit to such sj)!- I«'' ' ' 
 
 g See ante '' 1 & 2 Vict. c. 106, ss. 31. 3-1, 1 14. 
 
 oo2
 
 564 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 ritual person any proportton of such sequestered profits, or 
 to cause the same, or any part thereof, whether the same 
 remain in the hands of tlie sequestrator, or shall have been 
 paid to the said treasurer, to be paid to such spiritual per- 
 son ; and every such sequestrator, at the suit of the bishop, 
 is required, upon receiving an order under the hand of such 
 bishop, forthwith to obey the same; and the said treasurer 
 is authorised and required, upon receiving a like order from 
 such bishop, to make such payment out of any money in 
 his hands : provided, that any such spiritual person may, 
 wdthin one month after service upon him, of the order for 
 Appeal. any such sequestration, appeal to the archbishop of the 
 
 province, who shall make such order relating thereto, or to 
 the profits that shall have been so sequestered, for the re- 
 turn of the same, or any part thereof, to such spiritual per- 
 son, or to such sequestrator, at the suit of any creditor (as 
 the case may be), or otherwise as may appear to such arch- 
 bishop to be just and proper; but, nevertheless, such se- 
 questration shall be in force during such appeal.' 
 Mode of appeal- Such appeals must be in writing, signed by the party 
 '"&• appealing; and no proceeding shall be had in any such 
 
 appeal until the appellant shall, if required, have given se- 
 curity in such form and to such amount as the archbishop 
 shall direct, of payment to the bishop of such costs as shall 
 be awarded by the archbishop, if he shall decide against 
 the appellant; and after such security, if required, shall 
 have been given, the archbishop shall tbrthwith, either by 
 himself or by some commissioner or commissioners, ap- 
 ])ointed under his hand, from among the other bishops of 
 his province, make, or cause to be made, inquiry into the 
 matter couq)lained of; and shall, alter such inquiry, and, 
 in the latter case, after a report in writing from his said 
 comniissioner or commissioners, give his decision in such 
 appeal in writing under his hand ; and when he shall de- 
 cide the merits of the a))j)eal against the appellant, he shall 
 also award and direct whether any and what amount of 
 costs shall be paid by the aj)i)ellant to the bishop respon- 
 dent; and, in lik(! mannei-, when he shall decide in favour 
 of th(! a])j)cllant, he shall also award and direct wh(!th(>r 
 any and what amount of costs shall be paid by the bishop 
 respondent to the appellant.'' 
 Applicntion of It is to be observed, however, that, in the case of a 
 pmiiis 111 cast; of clerQ-yman who is suspended, and his livinsx sequestered for 
 
 illegal liadiP''. •n i i- i ■' . • (^ i 
 
 Illegal trading, theie is an exce[)tion m some res])ects trom 
 
 the order in which the profits are to be apj)lied ; for in that 
 
 casi; no part of the profits is to be j)aid to the clergyman 
 
 ' Sect. 54. " Sect. 111. 
 
 I
 
 OF SEQUESTRATIONS. 6Go 
 
 SO suspended, uov in sutisfuction (jf a scfiucsUatioii ul llic 
 suit of" a creditor.' And, indeed, in any case, where llie 
 profits of the benefice are applied in satisfaction of a cre- 
 ditor's sequestration, it do(>s not seem tliat any penalty 
 would be tliereby indicted on an incumbent. 
 
 Besides these sequestrations as j)enalties, the same stu- For curaie'i 
 tute gives authority to sequester for particular purposes, as s*l»'y mJ mort- 
 for the ])ayment of so much of the curate's salary as shall ^'^^ «"""«•>• 
 be proved to the satisfaction of the bisho|) to remain lui- 
 paid, together with full costs of recovering the same ;'" also 
 for payment of the principal or interest of money raised by 
 mortgage, under the powers of that act, which have been 
 already mentioned ; and also for insuring against fire any For in>uiing. 
 buildings which may have been erected under the j)ro- 
 visions of that act. But in all these last cases, it does not 
 appear that the bishop could sequester only so much as 
 would be sufficient for these payments ; for the power given 
 to him is to sequester the ])rotits until the payment shall 
 be made ; so that the sequestration in these cases is also 
 in the nature of a penalty." 
 
 Every sequestration, issued under the provisions of this Stqucsiraiion» 
 act, is to have i)rioritv ; and the sums to be thereby reco- ""d«-'' l>*-"«^''«^ 
 
 1 1-11 • <• 1 • !• 11 I i)luraliiieiact to 
 
 vered are to be ]iaid and satisfied m preterence to all other |,avj prjomy. 
 sequestrations ; and the sums to be thereby recovered, ex- 
 cept such sequestrations as shall be founded on judgments 
 duly docketed before the passing of this act; and also ex- 
 cept such sequestrations as shall have been issued before 
 any sequestration under this act, under the provisions of 
 the act of George III., for promoting the residence of the 
 parochial clergy", and the monies to be recovered by such 
 excepted sequestrations respectively." 
 
 Section 2. 
 
 Of Res'/ ff nation. 
 
 Another manner, in which the interest of an incuudient 
 in his benefice may be determined, is by resignation ; which 
 is by Deoge defined to be, where a parson, vicar, or other Ui-fin.t.«o» of 
 beneficed clergyman, voluntarily gives up and surrenders -^^'S"* '" • 
 his charge and preferment to those from whom he reenv.-d 
 the same ; while by another, perhaps a better ddinition, it 
 is said to be the voluntary yielding up into the hands of 
 the ordinary the interest the incumbent has in his beuefice.P 
 
 1 Seel. 31. '" J^ect. 83. " Sect. 67. 
 
 Sect. lib. P Gudol|>li. Abi. •284.
 
 566 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 To whom resig- 
 nation may be 
 made. 
 
 To the imme- 
 diate superior. 
 
 Deanery. 
 
 Prebend. 
 
 In the case of a 
 donative. 
 
 In what manner 
 it should be 
 made. 
 
 And resignation can only be made to a superior; this is 
 a maxim in the temporal law, and is applied by Lord Coke 
 to the ecclesiastical law, when he says, that therefore a 
 bishop cannot resign to the dean and chapter, but it nmst 
 be to the metropolitan, fiom whom he received confirmation 
 and consecration.'' 
 
 And it must be made to the next immediate superior, 
 and not to the mediate ; as of a church presentative to the 
 bishop, and not to the metropolitan.'" 
 
 That ordinary, who hath the power of institution, hath 
 power also to accept of a resignation made of the same 
 church to which he may institute ; and, therefore, the re- 
 spective bishop, or other person who, either by patent 
 under him, or l3y privilege or prescription, hath the power 
 of institution, is the proper person to whom a resignation 
 ought to be made. And yet a resignation of a deanery in 
 the king's gift may be made to the king ; as of the deanery 
 of Wells. And some hold that the resignation may well 
 be made to the king of a prebend that is no donative ; but 
 others, on the contrary, have held, that a resignation of a 
 prebend ought to be made only to the ordinary of the dio- 
 cese, and not to the king, as supreme ordinary; because 
 the king is not bound to give notice to the patron (as the 
 ordinary is) of the resignation f nor can the king make a 
 collation by himself, without presenting to the bishop, not- 
 withstanding his supremacy.^ 
 
 But if the living be a donative, the incumbent should 
 resign it to the patron, since the patron has power to ad- 
 mit, and institution by the bishop is not necessary ; and if 
 there are two patrons of a donative, the incumbent may 
 resign to one of them." 
 
 Kegularly, resignation must be made in person, and not 
 by proxy. There is indeed a writ in the register, entitled 
 litcra procured or'ia ad resujnanduni, by which the person 
 constituted proctor was enabled to do all things necessary 
 to be done in order to an exchange, and of these things 
 resignation was one. And Lindwood supposeth that any 
 resignation may be made by ])roctor ; but in practice there 
 is no way, as it seemeth, of resigning, but cither to do it 
 by personal appearance before the ordinary, or at least to 
 do it elsewhere before a public notary by an instrument 
 directed innnediately to tiie ordinary, and attested by the 
 said notary, in order to be j)resented to the ordinary by 
 
 'I Iloll. Abr. 358 ; 3 Burn's E. T.. 321, ■• Ibid. 
 
 • ]bi<l. Godolph. Abr. 191. 
 
 ' I'ut if the patronage sliould be, as it often is, in the crown, such a reason 
 would Ijc inapplicable. 
 " Godolph. Abr. 191 ; 3 Burn's E. L.
 
 
 
 OF RESIGNATION. 567 
 
 sucli ])ioper hand as may pray his acceptance ; in which 
 case the person presenting the instrument to the ordinary 
 doth not resign nomine procuratorio, as proctors do, but 
 only presents the resignation of the person already made.' 
 
 But although a resignation of a benc^Hce may he thus Not complete 
 made by an incumbent, yet it is not valid, nor consequently ""^'' accepted. 
 is the church void until such resignation has been accepted 
 by the ordinary ; y that is to say, no j)erson ap])ointed to 
 cure of souls can quit that cure or discharge himself of it 
 but upon good motives to be approved by the superior 
 w^ho committed it to him, for it may be he would quit it 
 for money, or to live idly or the like. 
 
 All presentations, therefore, which are made to benehces 
 resigned before such acceptance, are void. 
 
 Lord Chancellor Erskine mentioned that upon convers- The acceptance 
 
 ino- vvith a person of yreat eminence in the ecclesiastical '* f '*°"*""*^; 
 o ^ r o ^ j)ot a judicial 
 
 court, he found that this act of acceptance l)y the bishop act. 
 was not considered a judicial but a domestic act, the law 
 confiding to him that he would not permit resignation for 
 imj)roper purposes, and that the act was done in camera, 
 requiring no registration.'' 
 
 And in that case it was held that the resignation of a What h a sutfi- 
 living sent by post to the bishop, who indorsed and signed ^|j*^"*^"P'' 
 a memorandum of his acceptance upon it with all the 
 formality necessary to give it effect, was suthcient, although 
 nothing was done upon it so as to give it j)ubhcity until 
 after the vacancy : it was added, however, that under such 
 circumstances the bishop could not, as between him and 
 the patron, insist upon a lapse.-' 
 
 It has been said that there is no pretence for saying that ThebishoD not 
 the ordinary is obliged to accept, since the law has ap- ^""^J^'IjJ^gViT. 
 pointed no known remedy if he will not accept, any more ,ion. 
 than if he will not ordain.'' 
 
 But this cannot be taken to be quite so dear as seems *^P',";^"°*^fJ>' 
 here to be supposed, foi- in the case of the /iis/ioj> of j^,,^,*;*" 
 London v. Fytche, which wc shall mention presently, this 
 question w^as expressly proposed to the judges, nauicly, 
 whether the ordinary was bound to accept a resiiiuation ; 
 but that point, it seems, had not been discussetl nt the 
 argument of the case, and it was therefore answered by 
 most the judges, that this being entirely a new ca.se, aiu 
 not made a question of in the cc^n-ts below, or ever argued 
 at the bar of the Lords, they begged leave lor the pr.-sent 
 to decline answering it. One, however, thought he was 
 
 X Gibs. 822 ; Wats. c. 4. ^^ 3 Burn's i:. L. ; Godol,.!., Abr. 261 . 
 
 - Heyes v. Exeter College, 12 Vesey. 346. » «'>"«• 343. 
 
 ^ Gibs. 822 ; I Still. 334 ; 3 Hum's E. L.
 
 568 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 Other opinions 
 on llie same 
 subject. 
 
 \ 
 
 Possible nindc 
 (if rcsi'Tiiinfr 
 vvillioul leave 
 from or acccpt- 
 anec by the 
 bifihoj). 
 
 compell'dble by mandamus, if he did not show sufficient 
 cause : Lord Thuilow seemed to be of opinion he could 
 not be compelled, particularly by inandamus, from which 
 there is no appeal or writ of error : another judge observed, 
 that if he could not be compelled, he might prevent any 
 incumbent from accepting an Irish bisho))ric, as no one 
 can take that until ho h;is resigned all his benefices in 
 England.' 
 
 In a case in 1 775 it is reported to have been said by the 
 Lord Chancellor, that it was in the power of the ordinary 
 to accept or refuse a resignation.'' 
 
 And so in the case of Heskett v. Gray, mentioned in 
 Dr. Burn's work, where a general bond of resignation was 
 put in suit, and the defendant pleaded that he oftered to 
 resign, but the ordinary would not accept the resignation, 
 the Court of King's Bench were unanimously of opinion 
 that the ordinary is a judicial officer, and is intrusted with a 
 judicial power to accept or refuse a resignation as he thinks 
 proper, and judgment was given for the j)laintiff. 
 
 And in a case before the Court of Chancery, in 1806, it 
 appears to have been nu'ntioncd in the argument as a set- 
 tled j)oint on which there was no doubt, that the bishop 
 coidd not be conn)elled to accept a resignation.'^ 
 
 Lastly, in the retrospective act of 7 k 8 (tco. IV., v>hich 
 was ]i;issed to protect those who had miconsciously in- 
 curred penalties in giving and taking s))ecial resignation 
 bonds, it is ])rovi(led that nothing in that act shall be 
 deemed comjiulsory on the ordinarv to accept a resigna- 
 tion,' th(!reby |)lainiy implying that but for the act it would 
 not have been compulsory. Jt appears therefore that, 
 notwithstanding the refusal of th(> judges to answer the 
 question put to them in the case of Tlic liisliop of London 
 V. Fytclic, and (he answer of one of them, before men- 
 tioned, there can scarcely exist any doubt at present but 
 that a bishop may at j)le;isur(>, and without any cause 
 assignc^d, refuse to accept a resignation ; and if the ques- 
 tion were rca lnto(/r(i, it might be a strong argument in 
 favour of his having such j)ower, that it is doubtful who 
 could finally judge of the sufficiency ol" the cause, if he 
 were hound to assign oue, or by \\li;i(. uiodc he might be 
 compelled to accept. 
 
 It may however be Uvvv. observed, that the recent sta- 
 tute of 1 & 2 Vict. c. 106, seems to have introduced a 
 method by which a clergyman desirous of resigning, but 
 
 ' See 3 Hum's V.. I,. 320 le to 8li) edition. 
 
 •1 Mnrrliioiirss of Hm-liiiis^liiim v. Griffilh, 1 Hue. Aiir. '17"2. 
 e lleijes V. Eider College, vide ante. ^ Sect. 3.
 
 OF RESIGNATION. .51)9 
 
 wliose resignation lias been refused by the bisljoj), or wliicb 
 it is supposed, under tlie circumstances, would be refusetl 
 by him if tendered, might in some cases attain his end ; 
 for, if he could get presented and instituted to another 
 living, however triHing in value, contrary to that act, or 
 which could not, under the provisions of that act, be tenable 
 with the beneHcc previously held, then such former bene- 
 fice, which he may have wished to iesi<rn, will be and 
 become ipso facto void, as if he had died or had resigned 
 the same, any canon, law, usage or custom to the contrary 
 notwithstanding.'^ 
 
 And there is one case of resignation in which it has been KxccpiH c»s« 
 specially enacted that the ordinary may not refuse; to accept '" *»'"c'' '^'''•"P 
 unless on good and sutlicient cause to be shown for that accept rt»igD»- 
 purpose ; this is where a special bond of resignation has non. 
 been given in such manner and with such persons named 
 in it as makes it good and vulid, according to the last sta- 
 tute passed for that purj)0se, and acconhng to the j»resent 
 state of the law ;'' and it may be observed that the excej)- 
 tion in such a case tends to confirm the general rule as 
 above laid down. 
 
 But, as it was said by one of the judges in the case of What roigM- 
 Fletcher v. Lord Sondes, the bishop would probably neither |j"",'^^""'""'"** 
 accept nor refuse to accept a resignation unless he were 
 satisfied that it might properly be done accordiiv^ to law ; 
 and this therefore, brings us to the consideration of what 
 resignations may be properly accepted, and what should 
 be considered bad and illegal. 
 
 In the first place, no collateral condition can be annexed No conJiiion 
 to a resiunation : the words being niirr, si/oiitc, absolute, et ™"'' 
 sinwlicltcr, in order to exclude all mducct bargams not 
 "only for money but for any other valuable consideration : 
 there is an exception, however, where the resignation is 
 made for efiecting an exchange; in which case it adnnts 
 of this condition, that the exciiange shall take full efi'ect.' 
 
 It is enacted by a statute of 31st Kli/..' that if any in- IVn.liy forcor- 
 cumbent of any benefice with cure of souls shall corruptly '"p« rc.goai.on. 
 res^gii^or exchange the same, or corruptly take lor or in 
 respect of the resigning or exchanging the same, directly 
 or indirectly, any pension, sum of money, or other benefit 
 whatsoever, as well the giver as the taker of any such pen- 
 sion, sum of money or other benefit corruptly, shall l<»so 
 double the value of the sum so given, taken or had ; hall 
 to the queen, and half to him that shall sue for the same 
 in any of her majesty's courts of record. 
 
 s 1 & 2 Vict. c. 106. s. 11 ; vide ante. " I'lur.lilie..- J Vide post. 
 
 i Cruise, Dig. tit. x.xi. 75, and ante, " J.xcliange. Lap. 0, ». o.
 
 570 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 Early evasions 
 of this statute. 
 
 Bonds for resig- 
 nation. 
 
 Special bonds. 
 
 General bonds. 
 
 Resignation 
 bonds not fa- 
 voured in couits 
 of e(juity. 
 
 Speaking of this statute, Degge says, " There is of late 
 a practice introduced by corrupt patrons, that, if not early 
 nipt in the budding, will make this law of none effect : I 
 mean, the taking bonds for resignation. This practice 
 took its rise from two cases in Sir G. Croke's Reports." ^ 
 He adds, " That it appears by both these cases that bonds 
 taken upon prudent and just ends to resign, are not simo- 
 niacal; but where such bonds are taken upon corrupt 
 designs, which being made to appear by any subsec[uent 
 "practice, it is clearly simony, as if the bondlae expressly^ 
 to pay money ; for what difference is there between a bond 
 expressly to take money, and a bond to resign, which is 
 to pay money ? If the patron say, either pay me my 
 money or resign, then all the world knows in such a case 
 the parson must pay the money or resign and be undone ; 
 and the world shall not persuade me that those reverend 
 judges that gave these judgments ever intended further ; 
 and I hope that those reverend judges that now supply 
 their places will discontinue and discourage such prac- 
 tices, that tend so much to the ruin of the Church and 
 religion." "^ 
 
 It had been long a common practice for patrons, when 
 they presented a clerk to a living, to take a bond from 
 him in a sum of money, conditioned either to resign the 
 living in favour of a particular person, as a son, relation 
 or friend of the patron, whenever such son, &c. became 
 capable of taking the living, or else to resign generally 
 upon the request of the patron. In the first case they 
 were called special bonds of resignation ; and until a recent 
 determination," a very general opinion prevailed that they 
 were valid. In the second case they were called general 
 bonds of resignation, and were never apjiroved of by the 
 bisho])s, though in some cases held to he valid by the 
 courts of law antl equity. But whenever they were used 
 for the purpose of obtaining any pecuniary advantage from 
 the person presented, the Court of Chancery always inter- 
 posed, and granted an injunction against them." 
 
 Dr. Watson observes that general bonds of resignation 
 did not find any encouragement from the Court of Chan- 
 cery, which relieved the inctmibent, and would not oblige 
 him to resign or to })ay the })enalty of the bond, unless 
 some s])ccial cause were shown and made out ])y the jiatron 
 that he was unqualified to hold the living, or guilty of some 
 
 ' Vide Cro. Jac. 48; Cro. Car. 180. °' Degge, 43. 
 
 " Fletcher v. Lord Sondes, 3 13ing. 
 
 " Cruise, Dig. tit. xxi. c. 2, 78 ; 12 Mod. 504 ; llilliard v. Slaplelon, I Ab. 
 E4. 86.
 
 OF REHIGNATION. 571 
 
 immorality or irregularity which wus a sulHcieiit cause 
 of deprivation, or at least that he was non-resident and 
 neglected his duty.P 
 
 These evasions of the statvite of Eli/aboth apj)ear, never- (jtncnl .md 
 theless, to have been upheld in Westminster Hall, until special bond» 
 the House of Lords, in two several decrees, which unnear j'^-';'"^"] '"«■«»' 
 to nave been most fully considered, deternnned, first, that of Lords, 
 general bonds of resignation, and afterwards that special 
 bonds also, were illegal. 
 
 The rectory of the parish church of Woodham Walton, cicncral bonds 
 in the diocese of London, becoming vacant,'' Mr. Fytche, for resignation, 
 the patron, presented his clerk, the Rev. Mr. Eyre, to the Tlic ca&c of 
 bishop for institution; the bishoj), being informed that '/j^^'j^'''^^ j^'^"' 
 Mr. Eyre had given his patron a bond in a large penalty 
 to resign the said rectory at any time upon his request, 
 and Mr. Eyre acknowledging that he had given such a 
 bond, the bishop refused to institute him to the living. 
 Mr. Fytche brought a quare impedit against the bishop, 
 to which he pleaded two pleas : \. That the living was a 
 benefice with cure of souls, and that the clerk had given 
 a bond to the patron in the penalty of 3,000/. to resign at 
 any time upon the request of the patron, whereby the pre- 
 sentation became void in law ; 2. That the living was a 
 benefice with cure of souls, and that, for the purpose of 
 investing the patron with an undue influence over the 
 clerk, it was agreed that the clerk should, in consideration 
 of the presentation, become bound to the patron in a i)ond 
 as aforesaid, which was accordingly done. 
 
 Mr. Fytche demurred to both these pleas. The bishop, 
 having joined in demurrer, judgment was given l)y the 
 Court of Common Pleas for" the patron, and allirmed by 
 the Court of King's Bench. 
 
 Upon a writ of error in the House of Lords, it was con- 
 tended, on the part of the bishop, that although there were 
 several adjudged cases upon the subject of general boiuls 
 of resignation, none of them had arisen in the said form, or 
 between parties acting in the same capacity, and other 
 circumstances similar to the present ; therefore they ought 
 not to be considered as precedents by which this case was 
 to be determined. That the bishop or onlinary was autho- 
 rized by law to judge in the first instance of the fitness or 
 unfitness of the i)erson ])resented to him for institution ; 
 and the appellant had, in this instance, (>\ercise<l his autho- 
 rity according to law. That it was in the jiower of the 
 patron, by means of a general bond, to establish two modes 
 
 p Wats. C. L. 30. , ^ ^„^ 
 
 '1 Bislwp of London v. Fytche, Bro, V. (-.211 ; 1 I'^ast, 486.
 
 572 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 H 
 
 of selling a vacant living, which was simony ; either of 
 which w^as equally certain and infalHble. 1. The parties 
 might make the penalty in the bond adequate to tlie price 
 of the living. The presentee, when instituted, might refuse 
 to resign, and pay the penalty without any suit, or might 
 make known the execution of the bond, and then tender re- 
 signation to the bishop ; whicli the bishop, under those cir- 
 cumstances, would probably refuse. Upon his refusal, the 
 bond might be put in suit, and thus also, by a circuity, the 
 penalty might be paid as the price of the living. 
 
 The second mode of selling a living which was vacant, 
 through the medium of a general bond of resignation, was 
 equally obvious and practicable. The penalty of the bond 
 of resignation might be made excessive, much above the 
 real value of the living; the patron might, during the in- 
 cumbency of the ]:)resentee who executed the bond to resign, 
 sell the next turn or right of ])resentation at an advanced 
 price, and, after such sale, require the incumbent to resign 
 in terms of his bond. By this means, the first presentation 
 would be fictitious ; and the sale of the second presenta- 
 tion, though made under the pretence of selling a right of 
 presentation to a full benefice, would in reality be the sale 
 of a vacant living. That a general bond to resign put the 
 person who entered into such bond under the power of the 
 lay patron, instead of being under the authority of the 
 bishop, to whom he swears canonical obedience, and whom 
 by law he was obliged to obey; and was thus, contrary to 
 good ])olicy, creating an infiuoncc v.hich tended to subvert 
 ecclesiastical discipline and subordination. That general 
 bonds of resignation were contrary to law, by altering the 
 tenure of the office of a beneficed clergyman ; for every 
 benefice being an office for life, the patron could grant it 
 only for life, lie could not grant it for years, he could not 
 grant it at the will of himself, i'or such grant in direct terms 
 would be void, as contrary to the very tenure of the office. 
 Where there was a general bond of resignation entered 
 into, the same alteration of the tenure was effected by 
 circuity. The jjatron granted, and the presentee accepted, 
 at the will of the patnMi, that benefice which the law in- 
 tended to be conferred and holden for life. 
 
 That although a court of equity would grant relief in 
 case the ))atron made an improper use of a general bond to 
 resign, yet, from the extn-me diliiculty of discovering the 
 real purpose for which it was used, it could seldom be pos- 
 sible to procure such relief, or to guard, by that means, 
 against the conseriucnces that follow from such bonds 
 being tolerated. The bad purpose, not being discovered,
 
 OF RESIGNATION. 573 
 
 could not be prevented but by u solcnni decision, lliat 
 general bonds of resignation were illegal. That a general 
 bond of resignation puts it in a great measure in the patnjii's 
 power to convert a ])art of the profits of the living to his 
 own use, and absolutely j)uls it in the power of patron and 
 incumbent together to make such ])artition «jf them as 
 they can agree upon, whereby the revenues of the church 
 may be alienated ; and that a general bond of resignation 
 was an assurance of ])rofit or benefit to the ])atron, and 
 therefore contrary to the stat. 31 Eliz. c. (J, and inconsistent 
 with the oath of simony. 
 
 On behalf of the defendant in error, it was said that this 
 was a new attempt to question the settled law of the land ; 
 namely, whether a bond given by the presentee to the 
 patron, with a condition to resign upon request, which was 
 termed a general resignation bond, simple, and unattended 
 with any other fact or circumstance, was corrupt, simo- 
 niacal, and against the statute of Elizalieth. This had 
 been questioned, and repeatedly determined in Westminster 
 Hall to be legal, and not simoniacal ; and it was looked 
 upon to be so well settled and established, that in Hesheth 
 V. Gray, 28 Geo. 11., the court would not sull'er the counsel 
 to argue against the validity of such a bond. lUit such a 
 bond might be abused ; it might be corrupt, simoniacal, 
 and against the statute ; it might be given upon a |)recediug 
 stipulation of gain, &c. ; or, after it was innocently given, 
 it might be used by the obligee for the purpose of with- 
 holding tithes, or deriving some pecuniary advantage to 
 himself. And if there were only grounds to suspect such 
 practices, a bill might be filed for a discovery; and it was 
 admitted, that when such illeoal fucts were alleged and 
 ])roved, such a bond could not be enforced in a court ()f 
 justice. But the courts of justice never interfered with 
 possibilities. They never interfered but when such abuse 
 appeared, and was specified and alleueil in the pUaduigs, 
 in order to be proved, if denied. That the bisho|> in this 
 case was precisely in the same predicament with the clerk 
 in all the otlier cases; he had the same advantage of fdmg 
 a bill for a discovery of such illegal fact, ami of pleading 
 it when he had so discovered it; and Ik; had it m the pre- 
 
 sent case. 
 
 But the bond in the present case was a mere simple re- 
 signation bond, unattended with any such illegal cucum- 
 stance; every such circumstance, suggested by a bdl for a 
 discovery, had been denied ; no such abuse was specified 
 in the first plea ; and therefore the cause therein alleged by 
 the bishop was not sufficient for him to refuse the chrk.
 
 574 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 That the same reasoning might be appHed to the second 
 plea, the possible abuse of such a bond : viz. that he would 
 have acquired, and had undue influence, power, and control 
 over the clerk, if he had admitted him ; so also as to the 
 unfitness of the clerk. But in order for the courts to inter- 
 fere, the undue influence must have happened ; it must then 
 be specified and alleged in the plea, in order for the court 
 of justice to interfere : the unfitness, in like manner, must 
 be specified and alleged, in order to be proved. But the 
 bond in the present case was unattended with any such 
 circumstance, and therefore neither any undue influence or 
 unfitness was specified in the second plea to have attended 
 the presentation ; consequently, the cause here alleged was 
 not suflicient for the bishop to refuse the clerk. 
 
 As to the propriety of specifying the unfitness, it might 
 be observed, that the judgment of the bishop was subject 
 to review ; he could not refuse ad libitum, he must assign 
 his cause for refusal ; for every fact of unfitness might be 
 questioned, and tried in a temporal court, except literature ; 
 and that was subject to the review of the metropolitan. "■ 
 Upon the whole, there was no fact alleged in the pleadings 
 of illegal use in giving the bond, or of undue influence or 
 unfitness in the clerk to be admitted, &c., besides the 
 mere naked giving of the bond ; wherefore it was hoped 
 the judgment of the Court of King's Bench would be 
 affirmed. 
 
 After hearing counsel on this case, several questions 
 were put to the judges, seven of whom were of opinion that 
 the bond was good and valid, and the eighth (Mr, Baron 
 Eyre) that it was illegal. A debate and division of the 
 house ensued, when, there appearing to be for reversing 
 the judgment nineteen, among whom were all the bishops 
 present, and against it eighteen ; it was ordered that the 
 judgment given in the Court of King's Bench, affirming a 
 judgment given in the Court of Common Pleas, should be 
 reversed." 
 Remark of The decision of this case appears to have been against 
 
 I'aik.J. upon the strong opinions of Westminster Hall; and Park, J. 
 said of it, in giving his oi)inion in the House of Lords in the 
 case of Fletcher v. Lord Sondes, " 1 am old enough in 
 Westminster Hall to remember that the decision of that 
 case created a great sensation in the profession:" in fact, 
 the practice of giving general bonds had long prevailed, 
 and had been considered legal. 
 
 ■■ Vide ante, " Institution." 
 
 ' Tlieie lias probably never been a case in whicli a double decision of the 
 courts below, supported by the opinion of so large a majority of the judges, has 
 been reversed by so inconsiderable a majority in the House of Lords, 
 
 the above case.
 
 OF RESIGNATION. [,T'i 
 
 Although, therefore, in consequence of this detonniim- i n»iHingiicu 
 tion, general bonds of resignation were deemed illegal and of u.ccouiinu 
 void, the courts of law did not seem disposed to condemn a[,"'!*j''", 
 bonds of resignation, unless they were exactly similar to "**' "'*'""' 
 that which was held unlawful in the above case. 
 
 Thus in a subsequent case, which was an action on a .\nd«ub*e<jueni 
 bond given by the defendant on his apj)ointment to the fon"a'y de- 
 curacy of the free chapel of Wormhill, in the county of couruiow! 
 Derby, which, after reciting that the defendant had agreed 
 to be constantly and duly resident at the curacy house 
 there, and in default of such residence to resign and de- 
 liver up the curacy within one month after request or 
 notice in writing left at the curacy house, so that the 
 patron might present anew, was conditioned for such re- 
 signation in default of such constant and due residence, 
 (so that the patron (obligee) might ])resent anew, dis- 
 charged of all charges and incumbrances done and suf- 
 fered by the obligor,) and for the not committing waste 
 or dilapidation upon the houses or lands belonging to the 
 curacy, — Lord Kenyon said, " I cannot bring myself to en- 
 tertain a doubt on this case. It has been argued that the 
 patron's right of presentation is a mere trust ; it is so to 
 some purposes, but not to all. It is a trust coupled with 
 an interest; for it is a subject of conveyance, with a valu- 
 able consideration, which is not the case with a naked 
 trust. As soon as the defendant was presented to the 
 living, he was bound to take upon himself all the duties 
 of an incumbent, to reside on the living, to take upon him 
 the cure of souls, and to keep the house in proper repair. 
 Now this bond was entered into for the jiurpose of securing 
 a peformance of all those duties, which by law, and with- 
 out the bond, he was bound to discharge. I avoid saying Opinion of 
 anything; respectino; the case of The Bishop of London v. i.o"^l Kcnyoo 
 
 „J , " , ^ , ^ • • 1 r ii II on llie above 
 
 Fytche; when that question comes agam before the House ^^^^ 
 of Lords, they will, I have no doubt, review tlui former 
 decision, if it should become necessary. It is sufficient 
 for me, in deciding the present case, to say it cannot be 
 governed by that; for here the plaintiff docs not call for 
 the resignation of the incumbent, but merely for a i)er- 
 formance of those duties which, in morality, religion and 
 law, he ought to do. I am, therefore, clearly of opinion 
 that a bond for the performance of these duties is not 
 illegal." And Mr. Justice Buller says, in the same case, 
 '' I cannot find anv immorality or illegality in this bond. 
 It is the duty of an incumbent to reside on ins living, am 
 to be regular in the discharge of his duty. Now tins bond
 
 576 
 
 now BENEFICE OR PROFITS MAY BE LOST. 
 
 Special bonds 
 of resignation 
 upheld for a 
 time. 
 
 Arguments of 
 tiie judges for 
 and against 
 special bonds 
 of resignation. 
 
 requires nothing more ; it only requires him to do what 
 the law would have compelled him to do without it."' 
 
 And again, in a subsequent case, where a clerk had 
 given a bond to the patron on the presentation, on con- 
 dition to reside on the living, and to resign if the patron's 
 son became capable and desirous of taking the living, and 
 also to keep the rectory house and chancel in repair, the 
 Court of King's Bench, in an action of debt on this bond, 
 understanding that it was intended to carry the case up to 
 the House of Lords, gave judgment for the plaintiff with- 
 out any argiunent : saying, that as this was not precisely 
 similar to the case of The JBishop of London v. Fi/tche, 
 they were bound by the established series of precedents." 
 
 And a distinction appears to have been introduced, pro- 
 bably immediately after the above decision in Bishop of 
 London v, Ftjtclie, between general and special bonds of re- 
 signation ; and the courts, by a series of decisions, seemed 
 to have settled that, although bonds and other assurances 
 for general resignation might be void, yet that they were 
 valid when given for securing the resignation of ecclesias- 
 tical preferments in favour of specified individuals. 
 
 But, in the year 1826, a case upon this point was carried 
 up to the House of Liords,"" in which the opinion of the 
 judges was requested ; and as they differed, each judge 
 delivered his opinion separately. 
 
 Those who were in favour of the legality of such bonds 
 seem to have been influenced princij)ally by the cases pre- 
 viously decided ; Gaselee, J., stating that he bad cautiously 
 abstained from entering into the question how far sucli 
 bonds were or vvcjrc not consistent with public j)olicy, be- 
 cause the case was not new, and that as such bonds had 
 been held good for centuries, it was too late to consider 
 that question in a court of law ; and that the practice had 
 too long prevailed, and had been too often recognised as 
 legal, to permit it to be altered by any other than legis- 
 lative authority. 
 
 The majority, on the other hand, who wen^ against the 
 legality of such bonds, treated the case as if it were within 
 all the mischicd' which the decision in The JiisJiop of L.on- 
 duii V. Fytche was intended to prevent; that it was an 
 instrument, the result of barter and contract between the 
 obligor and obligee ; that it would be easy to make such 
 a species of contract the means of selling an advowson 
 during a vacancy, as in a possible case thus stated by 
 
 ' Biigslww V. Bosdlcti, 4 '1'. 11. 7«. 
 " l'attrulp;e V. Whh'lon, 4 'J'. H. ;i5f). 
 *^ rielcIiiT V. Lord Sondes, 3 Bing. 501.
 
 OF RESIGNATION. 577 
 
 Hullock, B.: '' The value of the Viv'nv^ is culciilatcd, a hoiul 
 is given for the amount, eoncHtiuned to be void 'on recjucst, 
 when a certain specified individual has become cai)ubh} of 
 taking the Hvino-. Tliat event haijpens ahnost immediately, 
 by the insertion of a person, who if he lived would, witlnn 
 a very few months, become capable of holding an eccle- 
 siastical benefice. The incumbent is called on to resign ; he 
 refuses, but prevents a suit on the bond by paying to the 
 obligee the amount of the penalty ; would such a proceed- 
 ing, legal, if this bond be legal, operate a benefit to the na- 
 tron for and in respect of his presentation .' But, whetner 
 the money or the resignation of the living is obtained, the 
 obligee acquires to himself a benefit, in every sense of that 
 word, for his presentation." Or, as Park, J., said to the opi„ion of 
 same effect, " I am at a loss to apjjrehend any case of a I'ark. J. 
 bond of resignation, general or special, which is not a j)rofit 
 or a benefit. Even in the case, most highly to be favoured, 
 by (of?) a parent, and perhaps tlie least guilty of all, a bond 
 to resign in favour of a son, is that not a benefit ! Sujipose 
 the son twenty-one, and the father allows him 400/. per 
 annum till he is of the canonical age of twenty-four, and 
 that the living he intends for him falls vacant, and he fills it 
 up for three years, taking a bond in 12,000/., then to resign 
 in favour of his son. If the incimibent resign, the patron 
 puts his son into a living, perhaps of 800/. a-year, and 
 derives the benefit from saving his own allowance of 400/.; 
 or, if the incumbent will not resign, finding the living 
 cheaply purchased for 12,000/., and pays the j)enalty, the 
 patron gets all that money to settle on the son, and thus, 
 in effect, he sold a void presentation : and, (lc])cnd upon it, 
 my lords, that if these special bonds; as ihey are called, 
 be allowed, you will have every device put on foot, by art- 
 ful, designing and acute men in the lower deiiartment of 
 the law, to evade and elude the wholesome provisions of 
 this statute, and render it a dead letter on the statute bijok. 
 Indeed, 1 verily believe that special bonils of resignation, 
 though known, never came into very general use tdl a(\er, 
 and were a contrivance to elude, the decision in Fytches 
 case. It is much to be feared that, if encouraged, these 
 special bonds will be given as if intended for cases of resig- 
 nation, but will be a mere device, between a neecly patron 
 and a monied incumbent, to pay a sum of money ni two or 
 three years, as the apparent i)cnalty for not resignm-j;, 
 when it never was intended he should, but only m tins 
 form he should secure a fortune, when the law clearly 
 would not permit a present pavnient." 
 
 And it was further urged, that the efiect of resiguation 
 
 p r
 
 578 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 bonds, general or special, was to convert that office which, 
 
 by presentation, institution and induction, becomes an 
 
 office for life, and in which the rector has the freehold, 
 
 into a term for years, of a longer or shorter dui'ation, at the 
 
 pleasure of the owner of the advowson, according to the 
 
 object he has in view; and that, therefore, any contract, 
 
 bond, &c. by which the incumbent undertakes to resign, 
 
 being inconsistent with his actual intention, as recognised 
 
 by law, and with that life estate which, as rector, he has 
 
 in his living, must be contrary to law. 
 
 Special bonds After hearing the opinion of the judges and that of the 
 
 for resignation j^j.^j chanccllor, the House of Lords formally decided to 
 
 o . ^j^^ effect that all bonds for resignation, special as well as 
 
 general, were simoniacal and illegal. 
 
 The lord chancellor observed, that the decision would 
 come by surprise and bear harshly on many patrons and 
 incumbents, and suggested that those who had committed 
 themselves by such bonds should be indemnified from the 
 penalties to which they were liable for what had been de- 
 clared simony ; whereupon the Archbishop of Canterbury 
 expressed his concurrence with the lord chancellor, and im- 
 mediately moved a bill, to have a retrospective operation, 
 for the purpose of protecting certain special resignation 
 bonds which had been made previously to that time, and 
 for exempting patrons and incumbents from the penalties 
 to which, from an erroneous impression of the law, they 
 might have exposed themselves. This bill subsequently 
 passed into an act,^ which, reciting that spiritual persons 
 and patrons, and o ther persons, would sufter great hardshij) 
 and detriment^^^^s they be relieved from the penalties to 
 which they hua|H|^cting erroneously, but not wilfully. 
 Retrospective rendered themselves Tiable, provided that no presentation 
 act to exempt ^q .^ijy spiritual person, &c. before the 9tli of April, 1827, 
 penahles^'in- "O'" ^'^Y admission, institution, &c. should be void by reason 
 curred. of any engagement entered into by such spiritual person, 
 
 or any other person or persons, to or with the patron of 
 a spiritual office, for the resignation of the same, to the 
 intent manifested by the terms of such engagement, that 
 some person, or one of two persons, specially named or 
 described therein, should be ju-esentcd Sec. to sucli s])iritual 
 office, or tliat the same shoidd be given to him, or for the 
 resignation tliereof, upon notice or request or otherwise, 
 when a person, or one of two persons, so specially named 
 or described, should become qualified by age or otherwise 
 to take the same ; and that the parties thereto shall not 
 l)e liable to penalties.''' 
 y 7 &c 8 Geo. 4, c. 25. M & Geo. 4, c. 25, s. 1.
 
 OF RESIGNATION'. ^ ^7lj 
 
 All such engagements entered into hoyiu Jide, uiic 
 therefore declared valid and effectual in law j' and it was 
 also declared, that where any sj)iritual ofiicc is resij^ned, 
 pursuant to any such engagement, and the i)crsGn, or one 
 of the two persons so specially named or described therein^ 
 shall not be presented, 6ic. within six calendar months 
 next after such resignation, such resignation shall be void, 
 arid the spiritual person who shall have so resigned, shall, 
 without any act or form, and as if such resignation had not 
 been made, be deemed and taken, to all intents and |)ur- 
 poses, to be and to have continued the incumbent actually 
 in possession, notwithstanding such resignation, and al- 
 though within the said six months any other j)erson may 
 have been presented, &c. thereto, provided sucii person so 
 resigning shall not, by reason of any other act or thing, 
 have become disqualified to hold the same.'' 
 
 This act, as we have observed, was intended to have a Present tutc of 
 retrospective operation only ; but in the following year an 1*"= '*'^' 
 act*^ was passed, which, to a certain extent, alters the Spemi itiigua* 
 effect of the decision of the House of Lords, and by which ||)°„"c"a4c»!° 
 bonds for resignation are made legal in the following par- ^ c-^ffr^ 
 
 ficular cases, '^'"'^'-^ii*' V.X, 
 
 Every engagement by promise, grant, agreement or ^^^^^^^^^^' </ 
 covenant, which shall be really and bona Jide made, given^,''*^ „ y2, 
 
 or entered into, for the resignation of any spiritual office, ^^^ **** '■"**' 
 being a benefice with cure of souls, dignity, prebend or 
 living ecclesiastical, to the intent and j)urpose, to be ma- 
 nifested by the terms of such engagement, that any one One or two 
 person whosoever, to be specially named and described [^^^"i.!"n|[,^ 
 therein, or one of two persons to be specially named, iathobood. 
 being such as after mentioned, shall be presented, kc. to 
 such spiritual ofhce, or that the same shall be given or ^ 
 bestowed to or upon him, shall be good, valid and ef- ,^/<:^. >/ 
 fectual in the lawio all intents, &c., and the performance 
 of the same ma^yue enforced in equity: provided, that ircnicrtJ iaio 
 such engagement sliall be so entered into before the pre- i«foro ihc pr*. 
 sentation, &c. of the party so entermg mto the same as 
 aforesaid.*^ 
 
 The two persons to be specially named, shall each of 
 them be, either by blood or marriage, an undo, son, ^^'''^ '^•"^<=^'' 
 grandson, brother, nephew or grand nephew of the patron, ; 
 or of one of the patrons of such spiritual office, not being .!, 
 merely a trustee or trustees of the patronaoe of the same, l";^='^i'P ^^ 
 or of the person, or of one of the persons tor w iioni tlie ' 
 patron or ])atrons shall be a trustee or trustees, or of the 
 person, or of one of the persons by whose direction such 
 
 a Sect. 2. ^ Sect. 4. '' 9 Geo. 4, c. 94. J Sccu 1. 
 
 pp2 
 
 to 
 
 lain 
 I rr-
 
 580 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 One part of 
 every such in- 
 strument to be 
 deposited in the 
 registry of the 
 diocese. 
 
 Directions as to 
 the instrument 
 so deposited. 
 
 Fees to regis- 
 trar. 
 
 Manner in 
 whi'h sucli r(i- 
 sifjnation is to/ 
 be niiide, I 
 
 presentation, &:c. sliall be intended to be made, or of any 
 married woman, whose husband, in her right, shall be the 
 patron or one of the patrons of such spiritual office, or of 
 any other person in whose right such presentation, &c. 
 shall be intended to be made.'' 
 
 No presentation, &;c., nor any admission, &;c., shall be 
 void by reason of any such engagement, by any spiritual 
 persons or others, to or with patrons or others, and his 
 majesty shall not present or collate, or give or bestow 
 such spiritual office, by reason of any such engagement ; 
 and such spiritual persons or patrons shall not be subject 
 to any penalties or forfeitures, or to any prosecution or 
 other proceeding, by reason of having made such engage- 
 ment.^ 
 
 In order to bring any engagement within the operation 
 and protection of the act, one part of the deed, instru- 
 ment or writing, by which such engagement shall be 
 made, given or entered into, shall, within two calendar 
 months next after the date thereof, be deposited in the 
 office of the registrar of the diocese wherein the benefice, 
 Sec. shall be locally situate : in the cases of benefices, &c. 
 within peculiars, to be deposited with the registrar of the 
 peculiar jurisdiction. 
 
 8uch registrars shall respectively deposit and preserve 
 the same, and shall give and sign a certificate of such 
 deposit thereof. 
 
 Every such deed shall be produced at all proper and 
 usual hours at such registry, to every person applying to 
 inspect the same. 
 
 An office copy of such deed, &c., certified under the 
 hand of the registrar (which copy so certified, the registrar 
 shall in all cases grant to persons ajiplying for the same), 
 shall be admitted as legal evidence thereof in all courts 
 whatsoever. 
 
 Every such registrar is entitled to a fee of two shillings 
 for depositing such deed, instrument or writing, and for 
 certifying such deposit thereof, to a fee of one shilling for 
 every search to be made for the same, and to a fee of six- 
 pence for every folio of seventy-two words of each cer- 
 tified oftice copy.'^ 
 
 J'jvery resignation to be made in pursuance of any such 
 agreement, shall refer to the engagement in pursuance of 
 which it is made, and state the name of the person for 
 whose benefit it is made : and it shall not be lawful for 
 the ordinary to refuse such resigmition, unless upon good 
 and sufficient cause to be shown for that purpose. Such 
 • Sect. 2. f Sect. 3. « Sect. 4.
 
 OF RESIGNATION. 581 
 
 resignation shall not be valid and effectual, except for the 
 purpose of" allowing the person for whose benefit it shall 
 be made, to be presented, collated, nominated or appointed 
 to the spiritual office thereby resigned, and shall be abso- 
 lutely null and void, unless such person shall be presented, 
 &c. as aforesaid, within six calendar months next after 
 notice of such resignation, given to the patron of such 
 spiritual office.'' 
 
 All presentations, collations, gifts, or the bestowing of 
 any such spiritual office by the king, either in the right of Act extends 
 the crown or duchy of Lancaster; by archbishops, bishops only to private 
 or other ecclesiastical persons, in right of any dignity, office P^^""""*' 
 or living ; by corporations corporate or sole ; by any other in 
 right of any office or dignity ; by trustees or feoffees for 
 charitable or public purposes ; or by any other person not 
 entitled to the patronage of such spiritual office, as private 
 property; are excepted from the operation of the act.' 
 
 Few questions of equal importance have been regarded Review of ibis 
 with such diversity of opinion by the ablest lawyers as the subject, 
 present ; and there has been scarcely one such other in- 
 stance, where the settled opinions of Westminster Hall 
 have been twice successively overtlu'own by the decree of 
 our highest judicial tribunal. 
 
 It seems clear, however, that special bonds of resigna- 
 tion, without any restrictions as to the ])arties named in 
 them, were open to all the objections upon which general 
 bonds of resignation had been held bad. That the decree 
 of the House of Lords in the case of Fytche v. The. Bishop 
 of London was intended to decide, and did virtually decide, 
 the whole question ; and that it was only because that 
 decree was opposed to the opinions of the profession, and 
 because many may have thought with Lord Kenyon, " that 
 when the question came again before the House of Lords, 
 they would review their former decision,"'' that the dis- 
 tinction between general and special resignation bonds 
 was ever allowed to be set up. 
 
 The question, as now settled by legislative enactment, 
 does not appear likely to be again disturbed. Any bond 
 or contract to resign, except in the cases specified in the 
 act, is not only so far illegal as to be incajvable of being 
 enforced, but makes the presentation void as simoniacal ; 
 and subjects the parties to such bond or contract to the 
 penalties for simony, under the statute of 31st Elizabeth 
 before mentioned. 'But there is nothing which makes it 
 illegal for a clergyman to resign his living at any time in 
 consequence of any understanding or agreement, not com- 
 
 h Sect. 5, « Sect, 6. ^ ViJe Bagshaw v. BoselUii, ante.
 
 582 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 pulsory, with tlie patron ; provided the bishop is willing 
 to accept a resignation under such circumstances ; or the 
 resignation might, perhaps, in such a case, be effected, in 
 the manner already mentioned, by institution to a second 
 
 living. 
 
 Deprivation. 
 
 Causes of, 
 wlieie dcler- 
 luindblc. 
 
 Section 3. 
 
 Of Deprivation, Suspension and Degradation. 
 
 These three subjects here named may be conveniently 
 considered together in the present section. For suspen- 
 sion in the usual form, ah officio et a benejicio, is in fact 
 temporary deprivation, while suspension ab officio would 
 be in the nature of a temporary degradation. That which 
 would be equivalent to suspension ab officio, may be en- 
 forced where there is no benefice ; as in the case of curates, 
 lecturers, ministers of proprietary or other chapels, or, in 
 fact, in the case of any clergyman who may be enjoined 
 by the bishop not to officiate in his diocese. But in these 
 cases, the mode adopted would probably be revocation of 
 license in such manner as we have mentioned elsewhere. 
 But the term suspension appears to have been very gene- 
 rally appropriated to cases of beneficed clergymen, sus- 
 pended ab officio et a benejicio, and in that sense we shall 
 consider it here : and from the following definition of de- 
 privation by Degge, we shall see that that also is confined 
 to cases of the same description. 
 
 Deprivation, he says, is an ecclesiastical censure, whereby 
 a clergyman is deprived of his parsonage, vicarage or other 
 spiritual promotion or dignity : and the causes of such de- 
 privation are properly and naturally determinable by the 
 ecclesiastical laws of this realm, but because generally 
 there are estates of freehold d(?pendant upon these promo- 
 tions and dignities, and annexed to them inseparably, 
 which rest at the sole determination of the common law, 
 the courts of common law do sometimes inspect and re- 
 gulate the proceedings of the ecclesiastical courts ; and 
 where they proceed against the rules of law, they fre- 
 quently prohibit them (especially where such sentence for 
 any olfcnce is inflicted by act of ])arliamcnt.)' 
 
 Deprivation is said to be called by the canonists by the 
 names of deposition, degradation, or exauctoration, but in 
 the sense in which we here consider it, it is different from 
 any of those, for those would be the removing a person from 
 
 ' Deggc, p. 1, c. 9.
 
 or DEPRIVATION, SUSPENSION, AND DEGRADATION. 583 
 
 some degree, dignity, or order in the Churcli, but tliis would 
 
 be the depriving him of his ecclesiastical preferments. 
 
 Deprivation may be with or without sentence ; the I^'^y be wiih 
 
 cases where no sentence would be necessary beino; those "' ^^'^''°"' *«•>- 
 
 1 •.•Till 1 "^ 1 I*'- tence. 
 
 where it is declared by statute, that upon the domg or 
 
 omission to do a certain act, the party shall be ipso facto 
 deprived ; and these appear to be the on/y cases where a 
 party can be deprived without sentence ; for in regard to 
 the other case mentioned in the books of a layman pre- 
 sented to a benefice, in which case it is said there is no 
 need of a sentence of deprivation, it would seem that the 
 word deprivation is altogether inapplicable ; for as the 
 admission, institution, &c. would be wholly null and in- 
 operative in law, and confer no right or interest, there 
 would be nothing of which such a party could be deprived. 
 The several offences for which it has been declared by 
 statute that the clergyman shall be ipso facto deprived, 
 will be found under the different heads with which those 
 offences are connected, but the following summary of them 
 here may be useful : 
 
 Simony, by the 31st Eliz. c. 6. Summary of 
 
 Refusing to use the Book of Common Prayer, ""^^s for 
 
 , . o . •;. ' which party 
 
 or speaking or preaching anything in derogation ,„ay ,,e jc. 
 thereof, or using any other rite or ceremony, and prived without 
 being twice convicted thereof, by 2 & 3 Edw. VI. sentence, 
 and 1 EHz. c. 2. 
 
 Not publicly reading the Thirty- nine Articles of 
 Religion in the church whereof he has cure, in the 
 time of common prayer, with declaration of his un- 
 feigned assent thereto, within two months after in- 
 duction, by 13 Eliz. c. 12. 
 
 Not reading the morning and evening prayer, 
 and declaring" his unfeigned consent thereto, ac- 
 cording to the prescribed form, within two months 
 after actual possession, or, in case of impcdiincnt, 
 within one month after such impediment removed, 
 by 13 & 14 Car. II. c. 4. 
 
 Not subscribing the declaration of conformity to 
 the Liturgy of the Church of England, and not 
 procuring a certificate under the hand and seal of 
 the ordinary, who is required to make the same ; 
 and not publicly and openly reading the same, 
 together with the declaration"'aforesaid, upon some 
 Lord's day, within three months then next follow- 
 ino- in his parish church, in the time of divine ser- 
 vi?e, by 13 & 14 Car. II. c. 4, and 1 Will. & M. 
 sess. 1, c. 8.
 
 584 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 Suspension or 
 deprivation at 
 discretion of liie 
 bishop in most 
 cases. 
 
 Exception. 
 
 In cases of 
 clerjjymcn ille- 
 gally trading, 
 deprivation for 
 third offence is 
 not at the dis- 
 cretion of the 
 bishop. 
 
 The acceptance of a second preferment or bene- 
 fice, contrary to the provisions of the act for pre- 
 venting the holding benefices in phirahty, by 1 & 2 
 Vict. c. 106. 
 
 If the benefice of any spiritual person continues 
 for one whole year under sequestration, issued under 
 the act 1 & 2 Vict. c. 106, for disobedience to the 
 bishop's monition, requiring such person to reside 
 on his benefice ; or if such spiritual person, under 
 the provisions of the same act, incurs two such 
 sequestrations within the space of two years, such 
 spiritual person is deprived, and the benefice be- 
 comes void, by 1 & 2 Vict. c. 106. 
 The cases mentioned above do not, as it seems, neces- 
 sarily require the intervention of the ecclesiastical court, 
 and consequently do not now require a proceeding under 
 the act for better enforcing church discipline. In all other 
 cases of deprivation, as well as in all cases of suspension, 
 it is necessary that there should be a regular jiroceeding,'" 
 which would be either regulated by statute in the parti- 
 cular case, or if there was no particular direction, then by 
 a proceeding under the Church Discipline Act. 
 
 For almost every offence for which sentence of depri- 
 vation might be passed, sentence of suspension only might 
 be substituted by the bishoj), if that should appear to him 
 sufficient to meet the circumstances of the case; but there 
 are some ])articular cases for which the ])unishment of 
 deprivation appeal's to be so far directed by statute, as to 
 leave no discretion to the bishop, although tiie offending 
 j)arty must be cited before liini, niul sentence regularly 
 passed. 
 
 Thus if any spiritual person sliall trade or deal in any 
 manner contrary to the provisions of the act 1 & 2 Vict, 
 c. 106, it shall be hiwfid for the bishop of the diocese, 
 where such person shall hokl any cathethal ))referment, 
 benefice, curacy, or lectureship, or shall be licensed, or 
 otherwise allow( d to jierfbrm the duties of any ecclesi- 
 astical office whatever, to cause such ])erson to be cited 
 before Ins chancellor or other comj)c.tent jiulge, and it 
 shall be lawful for such chancellor or other judge, on proof 
 in due course of law of such trading, to suspend such 
 spiritual j)erson for his first offence, for such time not ex- 
 ceeding one year, as to such judge shall seem fit; and on 
 proof, in lik(; maiuier, before such or any other conq)etent 
 ecclesiastical judge, of a second offence counnitted by such 
 spiritual person, subse(pient to such sentence of suspen- 
 sion, such s[)iritual person shall, for such second offence, 
 
 "' Gibs. 104G.
 
 OF DEPRIVATION, SUSPENSION, AND DEGRADATION. 585 
 
 be suspended for such time as to the judfje shall seem (it; 
 and for his third oflence be dcjjrived ub officio et beneficio ; 
 and thereupon it shall be lawful for the patron or patruns 
 of any such cathedral preferment, benetice, lectureship, or 
 office, to make donation, or to ])resent or nominate to the 
 same, as if the person so de])rivcd were actually dead." 
 
 The ofl'ences for which sentence of suspension or depri- Suspension or 
 vation may be passed, will be principally found spoken of f^^ni"„*c"" ^^ 
 under those subjects with which such offences are con- 
 nected ; the following are the principal cases that have 
 been mentioned by statute, or which have occurred in 
 practice. 
 
 The advisedly maintaining or affirming any doctrine For maintaining 
 contrary to the Thirty-nine Articles, and, when convened doctnnes cou- 
 before the bishop or connnissioners, persisting therein, and nine A^iic leaf' 
 being thereof lawfully convicted. This is mentioned in 
 the 13 of Eliz. c, 12, and was the offence for which Mr. 
 Stone was deprived in the case of the Kin(j's Procurator- 
 General V. Stone" which will be found more fully men- 
 tioned hereafter, and upon which occasion Lord Stowell 
 mentioned that the above statute was far from obsolete, 
 but on the contrary was i7i viridi ohservantia ; and in that 
 case it may be observed that Lord ^towell did not con- 
 ceive he had the power to pronounce a sentence of depri- 
 vation, but the Bishop of London came into court for that 
 purpose, and the sentence of deprivation was passed by 
 him. 
 
 Drunkenness after monition, incontinence, gross scan- For any im- 
 dal, flying from justice, disobedience to the orders and J^^^.;;";'^"''' 
 constitutions made for the government of the Church, con- against the laws 
 viction of felony in a temporal court, or of perjury in a ecclesiastical, 
 temporal or ecclesiastical court, simony, dilapidations, are 
 among the causes of suspension or deprivation mentioned 
 in our books on this subject.? But we may extend these 
 by taking the words of the Church Discipline Act, wliich 
 provides for the proceedings therein mentioned aganist 
 any clerk in holy orders of the United Church of England 
 and Ireland, who may be charged with any offence against 
 the laws ecclesiastical, or concerning whom there may 
 exist scandal or evil report, as having offended against the 
 said laws."" 
 
 But in all these cases, unless there are very aggravatnig 
 circumstances, the ecclesiastical courts have been inclined 
 to suspend rather than deprive. Suspension. 
 
 n 1 &2 Vict. c. 106, s. 31. ^ . . 
 
 1 Hagg. Cons. 424. i' See 2 Burn s E. L., Deprivation. 
 
 1 3 & 4 Vict. c. OG, s. 3.
 
 586 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 Usual course to 
 direct certificate 
 of good beha- 
 viour to be pro- 
 duced before 
 sentence re- 
 laxed. 
 
 Suspension 
 while charge is 
 pending. 
 
 By the canon 
 law sentence of 
 deprivation was 
 to be pro- 
 nounced by 
 bishop. 
 
 Opinion of Sir 
 J. Niclioll as to 
 the cflTcct of the 
 
 canon. 
 
 In one case/ in passing sentence, Sir J. NichoU alluded 
 to a former case, in which a clergyman had been sus- 
 pended for two years for drunkenness and profaneness, 
 and in which it had been directed that at the end of that 
 time he should exhibit a certificate from those clergymen 
 in his vicinity of good behaviour in the interim, prior to 
 the suspension itself being taken off or relaxed. The 
 learned judge expressed his approbation of such a course, 
 and in the case then before him pronounced a decree of 
 suspension for three years ; and following the same course, 
 directed a certificate of good behaviour in the interim to 
 be produced prior to relaxation of the sentence ; and fur- 
 ther directed a copy of the decree to be transmitted to the 
 consistorial court of the diocese, in order that such seques- 
 tration might there be issued, or such other steps taken as 
 the exigency of the case might require. 
 
 It does not appear necessary to mention other cases in 
 which suspension or deprivation has been decreed, for it is 
 a subject on which the bishop will, in each case that may 
 come before him, exercise his own discretion as to sus- 
 pension or deprivation, or the length of time for which 
 suspension may be decreed. During the time the charge 
 against the accused party is under investigation, the bishop 
 may, if he think fit, suspend such party ah officio, until 
 the accusation is substantiated or disproved, but this cannot 
 be enforced until the expiration of fourteen days after 
 notice to that effect served on the accused party. This 
 kind of suspension has been already fully spoken of under 
 the subject of Church Discipline.^ 
 
 By canon 122, sentence against a minister of depri- 
 vation from his living shall be pronounced by the bishop 
 only, with the assistance of his chancellor and dean (if 
 they conveniently may be had), and some of the preben- 
 daries, if the court be kept near the cathedral church, or 
 of the archdeacon, if he may be had conveniently, and two 
 other at least grave ininistcrs and preachers, to be called 
 by the bishop when tlie court is kept in other places. 
 
 In consequence of this canon. Lord Stowell appears to 
 have considered, in the case of The Kin<js Procurator- 
 General V. Stone, that he had not power to pass sentence 
 of (lc'f)rivution, and tiie bishop accordingly came into court 
 for that pm-pose. And so it was said by Sir J. Nicholl, in 
 one of the cases before mentioned,' " It appears to the 
 court, in spite of what has been urged to the contrary, 
 that deprivation is a penalty which it is not at its option 
 
 ■■ Sanders v. Davies, 1 Adol. 296. 
 • Vide aulc. 
 
 Sanders v. Davies.
 
 OF DEPRIVATION, SUSPENSION AND DECnADATION. 687 
 
 to award, that and deposition being specially reserved by 
 the canon to the diocesan. For this, then, if for no other 
 reason, the court declines proceeding to a sentence of 
 deprivation, as prayed by the promovent. It seems also 
 clearly to result that suspension, the proper office of the 
 court, ought not to be carried to any such extent, as to 
 render it tantamount to deprivation ; for the court would 
 not be justified in doing that indirectly which it felt itself 
 precluded from doing openly and avowedly by a sentence 
 to that eflfect." 
 
 It appears, how^ever, that in two cases before the De- ijut Dean of 
 legates, the exercise of this power by the Dean of the i''e Arches may 
 Arches was recognised ; and in the before-mentioned case "^P""^- 
 of Burgoyne v. Free, this power seems actually to have 
 been exercised by the Dean of the Arches. And the dif- Difference in 
 ference between suspension and deprivation has been said iliis respect bc- 
 to consist in this, that the former may be pronounced by '"^*" ^TT^'- 
 the chancellor of the diocese, the latter by the bishop vaiion. 
 alone, except in the case of the Dean of the Arches, who 
 can even deprive," 
 
 The provisions of the recent statute already mentioned, 
 by which clergymen trading illegally, contrary to that 
 statute, are to be suspended for a first or second offence, 
 and to be deprived for a third, appear to be so worded as 
 to render it difficult to say whether it was intended in such 
 a case to give the chancellor power to deprive as well as to whether any 
 suspend ; for the bishop is directed to cause the oflending alteration has 
 party to be cited before his chancellor or other competent J|",",e"J^^/Jy 
 judge, and the suspension in the first and second case is i & o Wcu 
 to be by the judge ; and in the second case at his discre- c. 106. 
 tion as to duration ; for the third offence, it is said, simply, 
 the offender is to be deprived, and neither the bishop nor 
 any person other than as mentioned in the first two cases 
 appears to have been contemplated ; but the same judf^e 
 is evidently supposed in either of the three cases. It is 
 presumed, however, that the words of the act are not 
 sufliciently clear to confer upon chancellors a power which 
 they did not previously possess.'' 
 
 It is said that by the ancient canon law, sentence of Monition, 
 suspension ought not to be given without a previous admo- 
 nition, unless where the oflTence is such as in its own nature 
 requires an immediate suspension ; and if sentence of 
 suspension in ordinary cases be given without such pre- 
 vious admonition, there may be cause of appeal.^ 
 
 » Dr. Swabey, arguendo, 1 Phill. 277 ; Rogers's E. L. 307 j but the point 
 may be considered as by no means clearly settled. 
 
 » See 1 & 2 Vict. c. 106, s. 3). » Oibs. 1046.
 
 588 
 
 HOW BENEFICE OR PROFITS MAY BE LOST. 
 
 Degradation. 
 
 In what cases 
 formerly. 
 
 Mode of. 
 
 In all causes of deprivation previously to the Church 
 Discipline Act, where a person was in actual possession of 
 a benefice, these things must have concurred : first, the 
 party must have been cited and admonished to appear; 
 secondly, a charge must have been given against him by 
 way of libel or articles ; thirdly, a competent time must 
 have been assigned for his proofs and interrogatories ; 
 fourthly, the person accused was to have the liberty of 
 counsel, to defend his cause, to except against witnesses, 
 and to bring legal proof against them ; and fifthly, there 
 must have been a solemn sentence by the bishop after 
 hearing the merits of the cause and the pleading on both 
 sides -J- but the mode of proceeding in every such case 
 will now be entirely regulated by the last-mentioned act. 
 And the mode and effect of an appeal from a sentence 
 pronounced by the bishop have been already spoken of.'' 
 
 Degradation is deprivation ab officio, and may take 
 place where there is no benefice of which tlie party could 
 be de})rived ; and anciently there appears to have been a 
 mode and regular form by which a clergyman was degraded 
 from his orders;** and if any of the clergy had done 
 anything worthy of death or open shame, he was not 
 directly executed, or exposed to death or open shame, but 
 was first degraded by the bishop and his clergy, and so 
 ])ublicly punished, not as a clerk but as a lay malefactor. 
 ]3ut the times are probably long since j)ast wlien it could 
 have been thought that such a proceeding could save the 
 credit of the order. A case of this kind seems to have 
 occurred in the reign of Charles the First, where in a 
 judgment given against one Dr. Leighton, for publishing 
 a seditious book, it is said as follows: " And in respect 
 the defendant luitli heretofore entered into the ministry, 
 and this court, for the reverence of that calling, doth not 
 use to inflict any corporal or ignominious juxnishment 
 upon any persons so long as they continue in orders, the 
 court doth refer him to tlie high connuission, there to be 
 degraded of his ministry; whicli being accordingly done, 
 he was set in the ])illory, whipi)ed," Sec.'' 
 
 And degruduti(jn appears to have been performed in the 
 following solenni manner. If the oH'ender was a person 
 in inferior orders, then the bishop of the diocese alone, if 
 in higher order, as priest or deacon, then the bishop of the 
 diocese, together with a certain number of other bisho])S, 
 sent for the party to come before them. He was brought 
 
 » 1 Still. ;3-23; 2 IJurn's K. 1- 
 
 b Gibs. 10(j(j; and sec 2 Burn's K. L. Degradation, 
 c 2 Uushw. 56} (jibs. 10G6; 2 liurn's E. L. 
 
 «■ Ante, Book I. Chap. IV.
 
 OF DEPRIVATION, SUSPENSION AND DEGRADATION. 589 
 
 in, having; on his sacred robes, and having in his liands a 
 book, vessel or other instrument or ornament ap])ertuinini2; 
 to his order, as if he were about to ofliciate in liis function. 
 Then the bishop j)u])licly took away from him, one by 
 one, the said instruments and vestments belonging to his 
 office, saying to this eflect, " This and tliis we take from 
 thee, and do deprive thee of the honour of priesthood ;" 
 and finally, in taking away the last sacerdotal vestment, 
 saying thus, " By the authority of God Almighty, the 
 Father, the Son and the Holy Ghost, and of us, we do 
 take from thee the clerical habit, and do depose, degrade, 
 despoil and deprive thee of all order, benefit and privilege 
 of the clergy." 
 
 And this, says Dr. Burn, seemeth to have been done in 
 the most disgraceful manner possible ; of whicli there 
 seem to be some remains in the common expression of 
 pulling a man's gown over his ears.'' 
 
 <* 2 Burn's E. L. Degradation.
 
 ( 590 ) 
 
 BOOK VI. 
 
 OF THE DUTIES OF A CLERGY3IAX OF 
 THE CHl'BCH OF EXGLAXD IX THE DIS- 
 CHARGE OF HIS HOLY OFFICE. 
 
 CHAPTER I. 
 
 PUBLIC WORSHIP. 
 
 It is not intended in the present chapter to treat of the 
 laws affecting public worship generally ; such as the obli- 
 gation to attend such worship, and other matters relating 
 to the same subject which are now obsolete : but our ob- 
 servations will be confined to that which is included in the 
 purport of the present book ; namely, the law by which 
 the conduct of the minister is on such occasions to be 
 regulated. 
 Uniforaiity in The law directs that a clergyman is not to diminish in 
 
 divine worship, ^ny respect, or to add to, the prescribed form of worship. 
 Uniformity in this respect is one of the leading and distin- 
 guishing principles of the Church of England : nothing is 
 left to the discretion and fancy of the individual; for if 
 every minister were to alter, omit, or add according to his 
 own taste, this uniformity would soon be destroyed ; and 
 though the alteration might begin with little things, yet it 
 would soon extend itself to more important changes in the 
 public worship of the Established Church ; and even in the 
 Scriptures themselves, the most important passages might 
 be materially altered, under the notion of giving a more 
 correct version, or omitted altogether as unauthorised in- 
 terpolations.^ 
 
 It is essential to the nature of every estabhshment, and 
 
 necessary for the preservation of the interests of the laity, 
 
 as well as of the clergy, that the preaching diversity of 
 
 opinions should not be fed out of the appointments of the 
 
 *■ Sir J. Nicholl, ia Newberry y, Goodwin, 1 Fhill. 283.
 
 PUBLIC WORSHIP. ^91 
 
 Established Church, since the Church itself would other- 
 wise be overwhelmed with the variety of opinions which 
 must, in the great mass of human character, arise out of 
 the infirmity of our common nature ; nor is this restraint 
 inconsistent with Christian liberty, for to what purpose is 
 it directed, but to ensure in the Established Church that 
 uniformity- which tends to edification, leaving individuals 
 to go elsewhere, according to the private persuasions they 
 may entertain ; for if any person dissent, a remedy is pro- 
 vided by the mild and wise spirit of toleration wliich pre- 
 vails in modern times, and which allows that he should 
 join himself to persons of persuasions similar to his own.'' 
 
 This uniformity of public worship, the advantages of Established at 
 which are obvious, appears to have been among the benefits ^^^ Refonna- 
 which our Church experienced at the Reformation ; for in ^°°' 
 a statute passed in the second year of Edward VI/ it is S"fhf RwTof 
 mentioned that there had been in this realm of England Common Prave: 
 and Wales divers forms of praver, commonly called the and its conteou 
 :?ervice of the Church : that is to say, the use of Sarum, ^- ^^^^^' 
 of 1 ork, of Bangor, and of Lincoln ; and after reciting that 
 the Book of Common Prayer, and administration of the 
 Sacraments and other rites and ceremonies of the Church, 
 after the use of the Church of England, had been prepared 
 by the Archbishop of Canterbury and certain discreet 
 bishops and learned men, the same statute enacts, that all 
 and singular ministers in any cathedral or parish church, 
 or any place within this realm, shall be bounden to sav and 
 use the matins, evensong, celebration of the Lords Supper, 
 commonly called the mass, and administration of each of 
 the Sacraments, and of the common and open prayer, in 
 such order and form as is mentioned in the same book, and 
 none other or otherviise. 
 
 The statute here spoken of is the first act passed for the 
 estabhshing uniformity of public worship f and by another 
 act passed in the same reign, some alterations appear to 
 have been made in this book, and a form and manner of 
 making and consecrating of archbishops, bishops, priests, 
 and deacons, was added, and declared to be of like force, 
 authority and value, as the book intituled the Book of 
 Common Prayer was before. 
 
 This liturgy, having been abolished by Queen ^Mar)-, was 
 again established bv an act passed in the first year of Queen In reign of Eli- 
 Elizabeth, which enacts, that all ministers in any cathedral **^^^- 
 or parish church, or other place, shall be bound to say and 
 use the matins, evensong, celebration of the LordsSupi)er, 
 
 *> Sir J.Xicholl, in Xetcberry v.Goodvin, 1 Phill. 283. 
 c Cap. 1. ^ 5Edw. 6, c. 1.
 
 i92 
 
 PUBLIC WORSHIP. 
 
 Establishment 
 of the Book of" 
 Common Prayer 
 and its contents 
 by the canon 
 law. 
 
 Hampton Court 
 conferences. 
 
 Final establish- 
 ment of uni- 
 formity of divine 
 worship in reign 
 of Charles II. 
 
 and administration of each of the Sacraments, and all the 
 common and open prayer, in such order and form as is 
 mentioned in the book authorised by the parliament in the 
 5 Sc 6 Edward VI. with certain triflins; alterations or addi- 
 tions not important to be here observed upon. 
 
 At the close of the reign of Elizabeth were passed the 
 canons of 1603, by the 36th of which it is declared that no 
 person shall be received into the ministry, nor admitted to 
 any ecclesiastical living, nor suffered to preach or catechize, 
 or be a lecturer or reader of divinity in any place, except 
 he shall first subscribe (amongst others) to this article fol- 
 lowing, that the Book of Common Prayer, and of ordering 
 of bishops, priests and deacons, containeth in it nothing 
 contrary to the Word of God, and that it may be lawfully 
 used, and that he himself will use the form in the said book 
 prescribed in public prayer and administration of the Sa- 
 craments, and none other. 
 
 The next epoch to which we come in the history of the 
 establishment of our liturgy, is the conference at Hampton 
 Court before James I., in the first year of his reign ; and 
 by virtue of the directions given by him to the archbishop 
 and other commissioners to review the Common Prayer 
 Book, several material alterations and enlargements of it 
 were made ; but these were not then confirmed by act of 
 parliament. 
 
 The last, and consequently the most important act by 
 which the uniformity of public worship is established, is 
 that passed in the 13tli and 14tli years of Charles II., 
 which, after reciting, that for settling the peace of the 
 Church, the king had granted his conmiission under the 
 great seal to several bishops and other divines to review 
 the Book of Common Prayer, and to prej)are such altera- 
 tions and additions as they thought fit to offer; and that 
 afterwards, the convocation of both the provinces being- 
 called, his majesty had been j)leasod to authorise and require 
 them to review tiie Hook of Common I'rayer, and the 
 liook of the Form and Manner of makiiiLi' and consccratinix 
 Bishops, Priests and Deacons ; since which time they had 
 accordingly reviewed the said books, and had made some 
 alterations in the same, whicli thoy thought fit to be in- 
 serted, and some additional prayers, and had exhibited and 
 presented the same to his majesty in writing, in one book, 
 intituled tlie Book of Common Prayer, and administration 
 of the Sacraments, and other rites and ceremonies of the 
 (Jhurc.h, acconUng to the use of the (Jhm'ch of ]{,ngland ; 
 together with the Psalter or Psalms of David, pointed as 
 they are to be said or sung in churches; and the form and
 
 PUBLIC ■wonsirip, 593 
 
 manner of making, ordiiining-, and consecrating of Bisliops, 
 Priests and Deacons. It was enacted, that the said Book of 
 Common Prayer, and of the form of ordination and conse- 
 cration of bishops, priests and deacons, with the alterations 
 and additions so made and presented to his majesty by the 
 said convocations, be the book which sliall be appointed 
 to be used by all that officiate in all cathedral and colle- 
 giate churches and chapels, and in all chapels of colleges 
 and halls in both the universities, and the colleges of Eton 
 and Winchester, and in all parish churches and chapels 
 throughout the kingdom, and by all that mak(! or consecrate 
 bishops, ])riests, oi' deacons, in any of the said i)laces, under 
 such sanctions and penalties as the houses of parliament 
 should think fit. 
 
 And it is by the same statute further enacted, that all 
 and singular the ministers in any cathedral, collegiate, or 
 parish church or chapel, or other place of public worship, 
 shall be bound to say and use the morning prayer, evening 
 prayer, celebration and administration of both the Sacra- 
 ments, and all other the public and common j)rayers, in 
 such order and form as is mentioned in the said book inti- 
 tuled as aforesaid, and a/mexed and joined to this present 
 act ; and that the morning and evening prayers therein 
 contained shall upon every Lord's day, and upon all other 
 days and occasions, and at the times therein ai)i)ointcd, be 
 openly and solemnly read by all and every minister or curate 
 in every church, chapel, or other place of public worshi|) as 
 aforesaid. 
 
 It will be seen, therefore, from these statutes, that inde- 
 pendently of any ecclesiastical or canon law, or of any 
 direction of the ordinary which might be binding on the 
 ministers, the Book of Common Prayer, in such order and 
 form as mentioned in the said book, according to the direc- 
 tions of the rubric, is incorporated into antl made a part 
 of the statute law of this kingdom ; and for the breach 
 thereof the statute law also affixes heavy penalties ; for if Punishment for 
 any parson, vicar, or other whatsoever minister that ought ;;;;";'.;f„|°;"'^ 
 to sing or say common prayer, or minister the Sacraments, i',avcr, v\c..ac- 
 refuse to do so in such order and form as set forth in the cording lo the 
 Book of Common Prayer, or shall wiHully and obstinately P^escnbed form, 
 use any other rite, ceremony, forn), kc, m celcbratmg the 
 Lord's 'Supper, or other open ]iiayer; or shall preach or 
 speak anything in the derogation of the said book, or any 
 thing therein "contained, and be thereof convicted, cither 
 by verdict of twelve men or by his own confession, or by 
 notorious evidence of the fact, he shall forfeit (if the prose- 
 cution is upon 2 & 3 Edw. VI.), for his first otience, the 
 
 Q Q
 
 594 PUBLIC WORSHIP. 
 
 profit of such one of his spiritual benefices as it shall please 
 the king to appoint, and also be imprisoned six months ; 
 and for the second oifence be imprisoned for a year, and 
 be deprived of all his spiritual promotions ; and for the 
 third offence be imprisoned for life. If the prosecution be 
 made under the 1 Eliz. c. 2, then for the first offence he 
 shall forfeit to the king the profit of all his spiritual pro- 
 motions for one year, and be imprisoned six months for the 
 second offence, as by 2&3 Edw. VI.; for the third offence, 
 be deprived of all his spiritual promotions, and be im- 
 prisoned for life ; and if he have no spiritual promotions, 
 then for the first offence impi-isonment for a year, for the 
 second, imprisonment for life. 
 To what cases Upon these statutes a clergyman was indicted at the 
 the above sta- quarter sessions in Devonshire in the year 1685 for using 
 cable ^ "^^ ^''^'" ^^^^^ preces in the church, and alio modo than mentioned 
 in the Book of Common Prayer; and the indictment con- 
 Jurisdiction of eluded contra formam sta tuti, kc. He was found guilty; 
 justices of the ^j^^^ fined 100 marks. Upon writ of error, it was admitted, 
 that offences against these statutes might be inquired of 
 by the justices ; but the indictment was held bad ; for that 
 it ought to have alleged that the defendant used other forms 
 and prayers instead of tiiosc enjoined, which were neg- 
 lected by him; for that otherwise any person miglit be 
 indicted, who used prayers before his sermon other than 
 such as are required by the Book of Common Prayer.* 
 
 Although this decision established that justices had ju- 
 risdiction in such cases, and that indictments, properly 
 framed for offences against these statutes, might be inquired 
 of by them, yet it is probable that indictments of this nature 
 have been very rarely if ever preferred ; for the jurisdiction 
 of the ecclesiastical court was in no way taken away by 
 those statutes.' And wherever it may have been necessary 
 to institute any penal proceedings against clergymen for 
 tlui omission of, or addition to, any thing contained in the 
 Book of (yonuiion Prayer, the ])r<)cee(Jing has probably 
 been always in the ecclesiastical court. And, indeed, 
 prosecutions in the temporal courts upon those statutes 
 Of judges at the seem to have been discouraged by the judges ; for in a case 
 assizes. r^^ ^j,,. Tlictfoid Lent assi/es in 1795 a clerk was indicted 
 
 \\\nn\ these statutes; but the evidence was not that he left 
 out or added any prayers, or altered the form of wors])ip, 
 1)111 ihat he did not read prayers twice on a Sunday, but 
 
 •^ H. V. SparUes, 15 Mod. 11.79. l$ul llie reason liere given appears unsatisfac- 
 tory ; and it ceilainly must not Iju taiten to mean that a clergy ukui might with 
 impunity use any prayer Imfore his sermon, at his discretion, and whicli was not 
 fo he found in the lioitk of Common Prayer. 
 
 ' 3 Hum's E. L. 267.
 
 PUBLIC WORSHIP. 595 
 
 alternately, one Sunday in the morning-, and the next in 
 the evening,and omitted to read them at all on certain saints' 
 days. Mr. Baron Perryn, who tried the indictnunit, ol»- 
 served, that it was prima: impressionis, and being of opinion 
 that the offence complained of was purely of ecclesiastical 
 cognizance, and not the subject of jirosecution in the tem- 
 poral courts, directed the jury to acquit the defendant, 
 which they accordingly did. And a clear and special mode Such procecd- 
 of proceeding being now j)ointcd out by the recent act for ings nhould now 
 the better enforcing church discipline, of which we have ti,ur"cl"j)is^ 
 already spoken, all others w ill now probably become ob- cij.iinc Act. 
 solete. It appears obvious, however, that in whatever 
 court or in whatever manner may be the proceeding, a rigid 
 interpretation of these statutes, much less an actual en- 
 forcement of the penalties mentioned in them, is not to be 
 insisted on ; and as it may be presumed that the bishop To what extent 
 would be guided, in the exercise of his discretionary power, t''e al>o»c sta- 
 
 under the Church Discipline Act, by what in similar cases '"I^*,^°" 
 1 1 1 • P1I--1 1 acted OD. 
 
 may have been the practice of the ecclesiastical court, the 
 
 words of Sir J. Nicholl, in the case o^ Newberry v. Godwin,^ Case of .V*ic- 
 may furnish a sound and useful precedent. In giving judg- '^rry v. Codu-m. 
 ment in that case, he says, " The third article pleads gene- 
 rally that the defendant frequently leaves out jjortions of 
 the Holy Scriptures appointed to be read ; and often ac- 
 knowledges that he has done so, and declares that he will 
 do so again. The fourth article pleads a specific instance, 
 viz. that on the preceding Sunday he omitted part of a 
 verse in the first lesson; and if the fact iiad hapjH'ned 
 simply (though, strictly speaking, it is not legally justifiable 
 to omit any part), yet probably the suit would not have 
 been brought ; but the article proceeds to statu that after 
 he had omitted the verse, he looked round to the pew of 
 F. ]\ewberry and said, ' I have been accused by some ill- 
 natured neighbour of making alterations in the service ; I 
 have done so now, and shall do so again wherever I think 
 it necessary; therefore mark.' This gives a very ditlerent 
 colour and complexion to the act ; the omission seems to 
 have been made, not from feelings of delicacy, wliich, 
 though not a legal justification, would greatly extenuate 
 the omission ; but the omission seems to have been selected 
 as aftbrding a favourable opportunity of asserting the ge- 
 neral riaht, and even of reflecting, in the midst of the ser- 
 vice, up'on those who questioned the general rigiit. 'I he 
 violation, therefore, of the law was aggravated by circum- 
 stances which render the correction of the offence necessary 
 and proper. If this article should be proved, it will not 
 
 e 1 Phill. 282. 
 Q Q 2
 
 596 PUBLIC WORSHIP. 
 
 only subject the party to admonition, but, further, to the 
 
 payment of costs. 
 
 What may be The Book of Common Prayer, therefore, is to be used 
 
 said or given out according to the form directed by the rubric; and such 
 
 durino the t^me declarations as by that rubric are ordered to be made by 
 
 of divine service, the minister, to which we must add publication of banns 
 
 of marriage, as enjoined by special act of parliament, or 
 
 matters enjoined by the king or the ordinary, are alone 
 
 permitted to be used or given out in the church by any 
 
 minister during divine service. 
 
 Publication of Formerly, many notices or publications relating to pa- 
 
 yanous matters, j.Q^jj^jf^i matters, holdino; courts, kc, were by custom, or 
 
 formerly made , ^^ t • i • i • 
 
 in the church, is by express acts of parliament, given out during the time 
 
 now forbidden, of, or immediately after, divine service ; but by a recent 
 statute it is enacted,'' that no proclamation, or other public 
 notice for a vestry meeting, or any other matter, shall be 
 made or given in any church or chapel during or after 
 divine service, or at the door of any church or chapel at 
 the conclusion of divine service. And that all proclama- 
 tions and notices, wliich by virtue of any law or statute, 
 or by custom or otherwise, have been heretofore made or 
 given in churches or chapels during or after divine service, 
 shall, instead tliereof, previously to commencement of di- 
 vine service on the several days on which such proclama- 
 tions have hitherto been made, be affixed on or near the 
 doors of all the churches and chapels within such parish ; 
 and that no decree relating to a faculty, nor any other de- 
 cree, citation, or proceeding whatsoever in any ecclesiastical 
 court, shall be read or pubHshed in any church or chapel 
 during or immediately after divine service. The act con- 
 tains a proviso that nothing contained in it shall extend to 
 Of what matters the publication of banns, nor to notice of tlie celebration 
 publication is of divjuc servicc, or of sermons ; nor to restrain the curate, 
 °"^ ■ in pursuance of the Book of Common Prayer, from de- 
 claring unto tlie people wliat holyday or fasting days are 
 in the week following to be observed ; nor to restrain the 
 minister from proclaiming or ])ublishing what is prescribed 
 by the rules of" the llook of Common Prayer, or enjoined 
 by the (picen or ordinary of the place ; a great ])art of 
 which jiroviso, it will be seen, is merely an aflirmance of 
 the directions of the rubric, and a declaration that they are 
 to be obeyed, and that they are not interfered with by this 
 act. 
 Times and sea- Having now ascertained what is to be read in our 
 gons at which cluMches, wc next proceed to in((uire at what times and 
 ^I'l ?rTr seasons this is appointed to be done. 
 
 prayer is aj)- l t 
 
 pointed to be '' 1 Vict. c. 45. 
 
 read.
 
 PUBLIC WORSHIP. 597 
 
 The common prayer shall be said or suiij^ distinctly and 
 reverently upon such days as are appointed to he kept holy 
 by the Book of Common Prayer, and their eves; and at 
 convenient and usual times of those days, and in such 
 place of every church as the bishop of the diocese, or ec- 
 clesiastical ordinary of the place, shall think meet for the 
 largeness or straitncss of the same, so as the people may 
 be most edified.' 
 
 And this, it is supposed, is the law of the Church at the 
 present day, however much the former jjart of it may be 
 disregarded in practice. And if the bishoj) should in his Holidays aod 
 discretion think fit to enforce the performance of divine ^^'^^ '*"• 
 service on those days appointed to be kept holy by the 
 Book of Common Prayer, and on their eves, there seems 
 no doubt but that he would be authorised so to do, and in 
 such manner as directed by the 57 Geo. III. c. 99, s. 51, 
 to be presently mentioned.'' 
 
 " By the general law, the church service, according to Amount of re- 
 the form prescribed in the Book of Common Prayer, is to ^^j"| j^"^ ^\ 
 be regularly performed every Sunday in the morning and laxat'ion from ix 
 evening. If less duty is required, any relaxation must be »o ^ obtaioed. 
 adopted, with the approbation of the diocesan, who is to 
 judge of the degree to be allowed; and the minister must 
 strictly adhere to the terms prescribed, and not vary them 
 for his own convenience.'" 
 
 The above words are from the judgment of Sir W. Scott, 
 who in the same case observed, " It is not likely, nor 
 would it be proper, that the parish should complain of oc- 
 casional accidental omissions." 
 
 The number of services, however, to be performed in Power of the 
 any church in his diocese, depends entirely on the discre- or^'nafy '" «'"» 
 tion of the ordinary ; for while it is enacted by divers ^"P**^'- 
 statutes, that the bislioj) may enforce the performance of 
 certain services, he is nowhere forbidden from granting 
 any relaxation in this resjjcct that he may think fit. 
 
 Thus by 57 Geo. III. c. 99, it is enacted, that the bishop 
 of the diocese may (but not that he is bound to) enforce 
 the performance of the morning and evening service on 
 Sundays, or any other service required by law in any 
 parish church or chapel, or extra-])arochial church, by 
 monition and sequestration issued as in that statute is 
 
 provided. 
 
 It does not appear to have been the intention of this 
 
 statute, to make any alteration in the existing law as to^ 
 
 the power of bishops to enforce the proper perfornu\nce ot 
 
 the services, but only to point out more particularly a 
 
 « Canon 14. " Vide infra. ' Bennett v. Bonaker, 1 Hagg. Ecd. 25.
 
 598 PUBLIC WORSHIP. 
 
 specific mode of proceeding ; and therefore the other ser- 
 vices required by law here mentioned, would certainly in- 
 clude those before-mentioned in the 14th canon, namely, 
 those upon such days as are appointed by the Book of 
 Could the Common Prayer to be kept holy, and their eves. A fur- 
 
 bishop enforce ^|-^gj. question might arise, whether under these words the 
 of daily service 1 bishop would be enabled to enforce daily service ; that is, 
 whether the directions of the rubric are sufficiently clear 
 in ordering that the morning and evening prayers shall be 
 used every day throughout the year. There appears how- 
 ever to be little difficulty in arriving at the conclusion that 
 he could not. And that, however desirable it may be in 
 places where a sufficient congregation could be collected 
 that daily service should be performed, yet that the only 
 times at which its performance could legally be enforced, 
 are such times as are specified in the canon law above- 
 mentioned and in the statutes. The Book of Common 
 Prayer furnishes us with a form of daili/ service through- 
 out the year. And if it were not so, there would be no 
 legal form of service which could ever be performed daily, 
 however great the emergency ; but there is no direction 
 in the rubric, nor can any inference be drawn from it, that 
 this was to be used daily in every church. And it will be 
 remembered, that it is the rubrical directions only that are 
 to be considered as law : and that some other directions 
 or expositions, which are to be found printed in some of 
 our books of Common Prayer, have no legal force or va- 
 lidity whatsoever. The directions of the canon may be 
 deemed decisive of the question ; for it is there directed, 
 that the Common Prayer shall be used, &c. on such days 
 as are appointed to be kept holy ; a direction which would 
 plainly have been absurd, if the Common Prayer had been 
 intended to have been used on every day, whether ap- 
 pointed to be kept holy or not. By the rubric the curate 
 is required to give notice of these days ; but this would 
 have been altogether unnecessary, if the people were every 
 day to resort to church. The same argument is suggested 
 by the directions of the 15th canon, wiiich directs, that on 
 Wednesdays and Fridays, tliovfjli they he not holidays, the 
 minister, at the accustomed hour of service, shall resort to 
 the church or chapel, and warning being given to the 
 people by tolling a bell, shall say the litany, &c. This 
 direction as to Wednesdays and Fridays would have been 
 unnecessary and superfluous, if the minister should have 
 resorted there every day ; but th<! words above j)rinted in 
 italics remove all possible doubt, for they clearly show,
 
 PUBLIC wonsiiip. 500 
 
 that but for this direction even the Wednesdays and Fri- 
 days, if they were not hoHdays, would n(jt have times 
 when the service would have been performed ; and tliat 
 the holidays only would have been such proper times. 
 Accordingly, as far back as we have any clear and autlion- 
 tic evidence, at the close of the seventeenth and the be- 
 ginning of the eighteenth century, we find that in and 
 about London, where it may be supposed the congregation 
 was found sufficient, the Wednesdays, Fridays and holi- 
 days were the days, and the only days besides Sundays, 
 when the service was performed ; in which practice there 
 appears to have been a great degree of uniformity : but it 
 would appear, the service on the eves of the holidays is 
 also proper, and might be legally enforced. But no action 
 for damages will lie against a minister for refusing to cele- 
 brate divine service."' 
 
 While the bishop may, as we have seen, permit any 
 relaxation from the two Sunday services, he may on the 
 other hand, if he see proper, direct the performance of 
 three services in any church within his diocese ; for by the 
 58 Geo. III. c. 45, it was enacted, that wherever it should Bishop may 
 appear to the bishop of the diocese that churches or cha- enfu'ce the per- 
 pels, whether at that time existing, or built under the pro- ,"|j"j servu.-e od 
 visions of that act, would not afford sufficient accommo- Sundays and 
 dation for the parishioners or inhabitants to attend divine I'oli.iays m 
 service, and he should be of opinion that it would be ^^' ^'" '^'^"' 
 expedient that additional accommodation should be pro- 
 vided for that purpose, and that such purpose would be 
 answered by the celebration on Sundays and on the great 
 festivals of a third or additional divine service, being either 
 the morning or evening service, as he might direct, with a 
 sermon, it should be lawful for him to require the incum- And appoim- 
 bent of every such parish to nominate to him a proper };;'",' Jj^'^^'p"^''. 
 person to be licensed to serve as a curate for the perform- 
 ance of such third service, with a sermon; in which case 
 such incumbent, within six months after such requisition, 
 must nominate the curate ; and in defaidt of his so doing, 
 the bishop may nominate and license a proper curate for 
 
 the purpose. ° 
 
 And the bishop is empowered to require the church- .Salary of such 
 wardens to let for such third service such proportion of JJj'J'J ^^^^.'^f 
 the pews and at such rates as in his opmion shall be suffi- j,^„.s_ 
 cient to afford a complete salary to the curate ; and the 
 churchwardens are empowered by the act to let the same, 
 provided they are not held by faculty or prescription; and 
 
 ra 5 Rep. 72 b. " Sect. 65.
 
 600 
 
 PUBLIC WORSHIP. 
 
 Or by subscrip- 
 tion of the 
 parishioners. 
 
 Amount of 
 salary. 
 
 Bishop may 
 enforce two full 
 services, with a 
 sermon on 
 Sundays. 
 
 The object and 
 cfTtct of iliis 
 last ciiaclment 
 considered. 
 
 reserving such number of sittings as free seats, not being 
 less than one fourth, as tlie bishop may think expedient." 
 
 But if the parishioners or inhabitants are wilhng to raise 
 a subscription for payment of the salary to the curate, and 
 it appears to the bishop that such mode of providing the 
 salary is more expedient than that of pew rents, it may be 
 adopted.'' 
 
 The salary to be given to such curate for the perform- 
 ance of the additional service is not to exceed the sum of 
 80/. per annum, except when raised entirely by subscrip- 
 tion ; in which case no limit is assigned.'' 
 
 By a more recent acf^ the bishop is empowered to order 
 that there shall be two full services, each of such services, 
 if he shall so direct, to include a sermon or lecture on every 
 Sunday throughout the year, or any jiart thereof, in the 
 church or chapel of every or anv benefice within his dio- 
 cese, whatever may be the annual value or the population 
 thereof; and also in the chui'ch or chapel of every parish 
 or chapelry, where a benefice is composed of two or more 
 parishes or cha})elries in which there shall be a church or 
 chai)cl, if the annual value of the benefice arising from 
 that ])arish or cha])elry shall amount to 150/,, and the po- 
 pulation of that j)arish or cha})elry shall amount to 400 
 persons : provided that nothing therein contained shall be 
 taken to repeal or afiect the provisions of the act of the 
 fifty-eighth year of George HI., intituled "An Act for 
 building and promoting the building of additional Churches 
 in i)opulous Parishes" (the act before mentioned), by which 
 the bish(;p of any diocese is empowered to direct the per- 
 foimance of a tliird or additional service in the several 
 cluu'ciies or chajjcls within his diocese, muler the circum- 
 stances therein mentioned.'* 
 
 The object of this enactment, as it appears, could only 
 have been with referenc(! to the sermon or lecture, of which 
 we shall speak hereafter; but instead of being confined to 
 this, it will be observed that it re-enacts what by the canon 
 law and by the statute before nuMitioned the bishop was 
 ])reviotisly clearly em])Owere(l to do, and cc^nfusion may 
 j)robably arise from the want of sufiicient attention to what 
 was previously the law. It is presumed, however, that it 
 cf)nld not have been tlu; intention of the legislature, by con- 
 fci ling on the bishop of the diocese, as to Sundays, a power 
 which he already possessed, to liu)it in any degree the 
 power also ])ossesscd by hiia oi' (snforcing divine service 
 on other days apj)ointed by the canon law and by the 
 
 " Sect. G5. 
 
 r I 6i2 \kl. c. lOfj. 
 
 P Ibid. 'I Sect. 66. 
 
 " Sect. 80.
 
 PUBLIC WORSHIP. gOl 
 
 Book of Common Prayer fur tliat jjiirpose; ultlioiigli the 
 exception contained in the proviso, that one previous (.-nact- 
 ment only, without mention of any other or of the canon 
 law, was to remain as before, may liave led some parties 
 to an opposite conclusion. 
 
 There is a further direction in the last-mentioned statute, No clergyman 
 that no spiritual person shall serve more than two ht-nc- •" *<^"c 'n*""*: 
 fices in one day, unless in case of unforeseen and nressin*-- r"*" '"° ^T' 
 
 • ■' 1 . 1 , ... I . ri (ices ID one day. 
 
 emergency; ni which case the sjinitual person who shall 
 
 so have served more than two benefices shall forthwith 
 
 report the circumstance to the bishop of the diocese.' 
 
 Public preachino-, which, according to the 23d Article Public preach- 
 of the Church of England, it is not lawful for any man to '°g- 
 take upon himself before he is lawfully called and sent to 
 execute the same, is now an important part of public w or- 
 ship. It would appear from the canon law by which this 
 was regulated that preaching was formerly consideied as 
 a dangerous power committed to ministers, on which it was 
 necessary to keep a jealous eye. Probably many of the 
 clergy were not well affected to the Reformation ; none 
 therefore were permitted to preach without license ; but 
 they were to study and read the homilies gravely and aptly, 
 and they that were instituted subscribed a promise to the 
 same effect. The canon law on the subject is as follows. 
 
 " No priest, not being licensed, shall exercise the office Licenic to 
 of preaching until he shall be examined and sent by the P"^**^''' 
 bishop, and shall produce the authority by which he 
 preacheth. No person shall be received into the ministry, 
 nor admitted to any ecclesiastical living, nor suffered to 
 preach, to catechi/e, or to be a lecturer or reader of divinity 
 in cither university, or in any cathedral or collegiate church, 
 city, or market town, ))arish church, chapel, or any other 
 place within this realm, except he be licensed either hy the 
 a'-chbishop or by the bishoj) of the diocese where he is to 
 be placed, under their hands aiul seals, or by one of the 
 two universities, under their seal likewise ; and except he 
 shall first subscribe to the three articles concerning the 
 king's supremacy, the Book of Common Prayer, and the 
 Thirty-nine Articles : and if any bishop shall license any 
 person without such subscription, he shall be suspendetl 
 from giving licenses to preach for the space of twelve 
 months."" 
 
 And by the 31 Eliz. c. 6, " If any person shall receive simony in pro- 
 or take any money, fee, rewards or any other profits, '^"""K- 
 directly or indirectly, or any promise thereof, either to 
 himself or any of his friends, *(all ordinary and lawful fees 
 t Sect. 10(j. " Canon 3b".
 
 602 
 
 PUBLIC •WORSHIP, 
 
 INlinister, 
 churchwardens, 
 &:c. not to suffer 
 any to preach 
 without license. 
 
 Deans, presi- 
 dents, &c. not to 
 suffer strangers 
 to preach, and 
 to take notice of 
 heretical doc- 
 trines. 
 
 Churchwardens 
 to keep a book, 
 and enter names 
 of preachers in 
 it. 
 
 Cliurchwardcn 
 punishable for 
 neglect of this 
 duty. 
 
 The above 
 canons now ob- 
 solete. 
 
 Whether a li- 
 cense from the 
 bibhop of the 
 
 only excepted,) to procure any license to preach, he shall 
 forfeit 40/." 
 
 But the following canons show more particularly the 
 careful anxiety of the Church on this head. 
 
 " Neither the minister, churchwardens, nor any other 
 officers of the Church, shall suffer any man to preach within 
 their churches or chapels but such as, by showing their 
 license to preach, shall appear unto them to be sufficiently 
 authorised thereunto as is aforesaid."'' 
 
 " The deans, presidents and residentiaries of any cathe- 
 dral or collegiate church shall suffer no stranger to preach 
 unto the people in their churches except they be allowed 
 by the archbishop of the province, or by the bishop of the 
 same diocese, or by either of the universities ; and if any 
 in his sermon shall pubhsh any doctrine either strange or 
 disagreeing from the Word of God, or from any of the 
 Thirty-nine Articles, or from the Book of Common Prayer, 
 the dean or residents shall, by their letters subscribed with 
 some of their hands that heard him, so soon as may be, 
 give notice of the same to the bishop of the diocese, that 
 he may determine the matter and make such order therein 
 as he shall think convenient."-^ 
 
 " That the bishop may understand (if occasion so require) 
 what sermons are made in every church of his diocese, and 
 who presume to preach without license, the churchwardens 
 and sidemen shall see that the names of all preachers which 
 come to their chnrch from any other place be noted in a 
 book, which they shall have ready for that purpose, wherein 
 every preacher shall subscribe his name, the day when he 
 preached, and the name of the bishop of whom he had 
 license to preach." '■ 
 
 And formerly a chinxhwarden has actually been com- 
 mitted to gaol by justices of the peace for permitting one 
 who was a stranger to j)reach in his church without having 
 first demanded to see his license, although in fact the 
 preacher was duly licensed, and the commitment was held 
 good. 
 
 But the reasons for the great strictness formerly enjoined 
 liaviny: ceased, the directions of the various canons in this 
 
 •••11 
 
 respect are no longer ticted upon ; the mqun-ies made by 
 the churchwardens of strange preachers, and the entries 
 by them in books for that purpose, have generally long 
 sinro fallen into disuse, although such books are still to be 
 found kept in some churches. 
 
 Although a minister has been duly ordained, yet he may 
 not preach without license either of the king, or archbishop 
 » Canou50. y Canon 51. '• Canon 52.
 
 PUBLIC WORSHIP. 093 
 
 or bishop, or other lawful ordinary, or of one of the nnivor- diocese iu which 
 sities of Oxford or Cambrid'j;e." 13ut an allowance by the the church i» 
 bishop of any diocese has been held sulKcient, althouc^rh laTltenaur 
 his allowance be only to preach within his diocese;** for a minilitMo' 
 the statute, it is said, does not require any allowance by pfcach ihcreiu 
 the bishop of the diocese where the church is. Watson, 
 speaking- of this decision, adds : " This is only to be in- 
 tended so as to satisfy the words of the statute, as not to 
 "be punished by them for want of a license to preach ; for 
 I take it, a preacher by the canon is obliged to procure 
 a license from the bishop where the clnuch is, notwith- 
 standing any license obtained from another bishop ; and 
 this is agreeable to the words used in the form of ordaining 
 priests, which are, ' Take thou authority to preach the 
 Word of God and to minister the Holy Sacraments in the 
 congregation where thou shalt be lawfully appointed there- 
 unto.' " In the case of Dr. Trebec v. Keith, decided in 
 1742,'^ it was said by Lord Hardwicke, " As to preaching, 
 there is no pretence for doing it without license from the 
 bishop, for the canons of 1603, confirmed by act of par- 
 liament, are express as to that matter. It is not necessary, 
 indeed, for a minister to have a license from the bishop of 
 the diocese for every particular case ; but the bishop may 
 suspend him wholly if he is irregular." 
 
 By the words " every particular case" there seems here 
 to be intended every particular case within the diocese j 
 and the words " bishop of the diocese" are incapable of 
 any other construction than bishop of the diocese where 
 the church is. 
 
 Provisions have recently been made for allowing bishops Bishops or 
 or ministers of the Protestant Episcopal Church of Scot- j'*^^ of Srot- 
 land, and also of the Protestant Episcopal Church ot tlie s,,^,^^ ^^^. y^. 
 United States of America, to officiate occasionally, under ciaicinKngland 
 certain restrictions, in the churches and chapels of the J'J'j)^j'^j"'J''° 
 Church of England and Ireland ; but any bishop or mi- '*^' '"^ '" 
 nister must obtain the permission in writing of the bishop 
 of the diocese wherein the church or chapel is situate ; but 
 such permission, although it may be renewed, must only 
 be for any one day or any two days, which are to be spe- 
 cified in the written permission ; and such permission will 
 authorise the bishop or minister to whom it is given to 
 perform divine service, preach, or administer the Sacra- 
 ments." 
 
 No such permission is to be given unless the jiarty 
 applying for it shall first produce to the bishop of the dio- 
 
 a See ante. '' J^roicn v. Speuce, 1 Keble, 503. 
 
 c 2 Atityns, 498. ^ 3 & 4 Vict. c. 33, s. 1.
 
 604 
 
 PUBLIC WORSHIP. 
 
 Penalties for 
 allowing un- 
 aulhorised per- 
 sons to officiate. 
 
 Deacons not or- 
 dained in Eng- 
 land or Ireland. 
 
 I'unislimentby 
 slaliilc for here- 
 tical preaching, 
 
 cese letters commendatory, given within six months before; 
 which must be, in the case of a bishop, under the hands 
 and seals of two other bishops of the Church to which he 
 belongs ; and in the case of a priest, under the hand and 
 seal of the bishop of the district where he usually resides; 
 and also a testimonial, similarly signed in either case, that 
 the party applying is a person of godly life and conversa- 
 tion, and professes the doctrines of the United Church of 
 Enoland and Ireland.* 
 
 The consent of the incumbent of the parish, &:c. will of 
 course in every such case be essential.^ 
 
 If any incumbent or curate shall allow any bishop or 
 priest, as last mentioned, without such written permission, 
 or shall allow any other bishop, priest. Sec, not of the 
 United Church of England and Ireland, to officiate in the 
 church or chapel of which he is incumbent or curate, he 
 shall for the first offence be liable to be called before the 
 bishop of the diocese in person, and be publicly or pri- 
 vately nionished at the discretion of the bishop ; and for 
 every subsequent offence he shall, if a curate, be liable to 
 be removed or temporarily suspended from his curacy at 
 the discretion of the bishop ; or if an incumbent, he shall, 
 on proof of his offence in due course of law, be suspended 
 ab officio et a heneflcio for any time not exceeding three 
 months, or be subject to other ecclesiastical censures.''' And 
 a penalty of 50/. is imposed on the party illegally offi- 
 ciating, which is to be paid to Queen Anne's Bounty, and 
 to be recovered by action of debt brought in the name of 
 the treasurer.'' 
 
 Persons not having been ordained deacons by any bishop 
 of the United Church of l^nglund and Ireland may here- 
 after be ordained priests by any such bishops, but are not 
 to be thereby enabled to officiate within England or Ire- 
 land, except under the provisions of this act above men- 
 tioned ; ' and all admissions to benefices, curacies, &c. 
 contrary to the act, are mill and void."" 
 
 The Church in our colonies is considered, for the pur- 
 poses of this act, as the Church of England.' 
 
 Though the strict surveillance over preachers of the 
 Established Church, which seems to have been thought 
 necessary formerly, is no longer practised, yet ample power 
 exists to punish those ministers who may abuse tlie liberty 
 now allowed; for it is enacted by the llUh VX\z. c. 12, that 
 if anv iierson (jcclesiastical, or who shall have any eccle- 
 siastical living, shall advisedly maintain or affirm any doc- 
 
 « Seel. 2. " See ante, Book 1. Chap. VII. Sect. 9. 
 
 8 Sect. 4. "' Sect. 5. ' Sect. 6. •* Sect. 7. ' Sects. 4, 5.
 
 PUBLIC WORSHIP. (JQ- 
 
 trine directly contrary or repugnant to any of the articles 
 of the Churcli of England, anti being convened before the 
 bishop or ordinary, shall persist therein, or not levoke his 
 error, or after such revocation eftsoons affirm such untrue 
 doctrine, he shall be deprived of his ecclesiastical pro- 
 motions. 
 
 Upon this statute a clergyman was cited in a criminal Which statute 
 proceeding in the ecclesiastical court, in 1808,"' for ad- '« '" .^"'1 ^ofte 
 visedly maintaining or affirming doctrines contrary or Wo/dl o^LorJ 
 repugnant to the articles of Scripture : and it was said by Stowell on thii 
 Sir William Scott, in giving judgment in that case, " that it ^"^Jeci- 
 was quite repugnant to the purpose for which the articles 
 were designed, and to all rational interpretation, to con- 
 tend that tlie construction of the articles should be left to 
 the ])rivate persuasion of individuals ; and that every one 
 should be at liberty to preach doctrines contrary to those 
 which the wisdom of the State, aided and instructed by 
 the wisdom of the Church, had adopted. That it was the 
 idlest of all conceits that this was an obsolete act; that it 
 was in daily use, i7i viridi ohservantiu, and as much in 
 force as any in the whole statute book; and repeatedly 
 recommended to our attention by the injunction of almost 
 every sovereign who had held the sceptre of these realms. 
 That as to preaching, it should be according to those doc- 
 trines which the state had adopted, as the rational exj)osi- 
 tions of the Christian faith. That it was of the utmost 
 importance that this system should be maintained : for 
 what would be the state and condition of jniblic worshij) 
 if every man was at liberty to ])reach fioni the pulpit ol" 
 the church whatever doctrines he might think proper to 
 hold ? Miserable would be the condition of the laity if 
 any such j)retension could be nniintainod by the clergy. 
 That any clergyman could assume the libeity of incul- 
 cating his own private opinions, in direct ()pj)Osition to the 
 doctrine of the Established Church, in a place set aj)art 
 for its own public worship, was not more contrary to the 
 nature of a National Church, than to all honest and 
 rational conduct. At the same time," he says, " I think In whatcuet 
 myself bound to declare, that it is not the duty nor inch- 
 
 • />!• 1 • 1**1* 1' "V/UI\t 
 
 nation of this court to be muuite and rigid in apjilymg (^t^c<\. 
 proceedings of this nature, and that if any article is really 
 a subject of dubious interpretation, it would be iiighly 
 improper that this court should fix on one meaning, and 
 prosecute all those who hold a contrary opinion regarding 
 
 "' Her Majesty's Prociirahu- General V. Slone, I Hagg. Consist. Rep. •124 ; 
 and see ante. 
 
 the statute 
 tvouKl be en-
 
 606 
 
 PUBLIC WOESHIP. 
 
 its interpretation." It is a very different thing where the 
 authority of the articles is totally eluded, and the party 
 deliberately declares the intention of teaching doctrines 
 contrary to them." And after referring to the particular 
 case before him, which had been clearly proved, he says, 
 " The court cannot refuse its authority to carry into effect 
 the statutes of the land. It might proceed immediately, 
 as suggested by the king's advocate, after the persisting in 
 those doctrines which we have heard this day, to pronounce 
 the sentence of the law. But the court is disposed to act 
 with the greatest indulgence to the party, and will now 
 content itself with admonishing him to appear the next 
 court day to revoke his errors ; with an intimation, that if 
 he does not obey this admonition, the court will feel itself 
 under the necessity of proceeding to inflict the particular 
 penalty which the statute directs." Accordingly, on the 
 next court day, Mr, Stone, the party proceeded against, 
 tendered the following paper : " I, Francis Stone, rector 
 of Cold Norton, in the county of Essex, do declare, that I 
 was not aware that, by preaching my sermon before the 
 archdeacon, I was offending against an act of parliament 
 passed in the reign of Queen Elizabeth ; and further, I was 
 persuaded that my solemn engagements with the bishop at 
 my ordination as priest authorised me to preach as I did. 
 But as the act of parliament affirms that I should preach 
 only what is consistent with the Thirty-nine Articles, I do 
 promise not to offend in like manner." 
 Penalties of the This, Sir William Scott observed, it was not in his power 
 statute enforced ^q accept as a revocation : for that it was in fact directly 
 nfan"refusbg^1o' ^^^^ reverse ; that there was no difficulty in framing what 
 revoke Ills errors, the statute required; for it was plainly an assurance that 
 the party who had ofliended against the statute revoked his 
 errors. And, considering that Mr. Stone had not revoked 
 liis errors, or complied with the requisition of the statute, 
 lie directed the registrar to record that the party had not 
 revoked his errors ; and sentence of deprivation was in 
 consequence pronounced by the bishop in the usual man- 
 ner." 
 Jlahitof the As to thc habit to be worn by the officiating minister, 
 
 officiaiing mi- there seems to be some slight, or it may be only an appa- 
 rent, variance between thc canon and the statute law. The 
 canon law directs, that every minister saying thc public 
 prayers, or ministering the sacraments or rites, shall wear 
 a decent and comely surplice with sleeves, to be provided, 
 
 " The above words of Lord Stowell appear intended to iiave a wide and 
 general api)lication. 
 
 " Sec ante, " Deprivation."
 
 PUBLIC wonsnip, C07 
 
 as we have before seen,'' at the charge of the parish; any 
 question as to decency or conicHn(;ss thereof to be decided 
 by the ordinary ;'• and ministers, being graduates, are to Beingagiadu 
 wear upon such surplices such hoods as by the orders of ^ic. 
 the universities are agreeable to their degrees, which no 
 minister, not being a graduate, shall wear on pain of sus- 
 pension. But ministers, not being graduates, may wear, 
 instead of hoods, a decent tippet of black, so it be not of 
 silk.'" 
 
 But in the rubric of the Common Prayer Book, esta- Onwliaiorca- 
 blished by act of parliament in the second year of Edward sions the sur- 
 the Sixth, it is directed, that in savine; or sinoiny; of matins P''" '* '" ^ 
 and evensong, baptismg, and burynig, the nnnister m 
 parish churches, and chapels annexed to thi; same, sliall 
 use a surplice ; and in all cathedral churches and col- 
 leges, the archdeacons, deans, provosts, masters, prebend- 
 aries and fellows, being graduates, may use in the choir, 
 besides their surplices, such hoods as pertain to their 
 several degrees, which they have taken in any university 
 within this realm ; but, in other places, any minister shall 
 be at liberty to use any surplice or not. It is also seemly 
 that graduates, when they preach, should use such hoods 
 as pertain to their several de^ees. This is the present 
 statute law upon this subject. For by the 1 Eliz. c. 2, and 
 also by the rubric before the Common Prayer, which, as 
 we have before seen, is a ])art of the statute law, it is 
 directed that such ornaments of the Church, and of the 
 ministers thereof, shall be retained and used, as were in 
 the Church of England, by authority of parliament, in the 
 second year of Edward the Sixth. 
 
 Where the statute law is opposed to the canon law, the Solemnization 
 latter would seem to be null ; and as the statute law has "[jJJ^y^f 
 not mentioned the solemnization of marriage, or the church- ^,.),"n"p,''"%.i„,i. 
 ing of women, as occasions on which the surplice is to be , 
 worn, it was probably at that time considered oj)tional; - 
 and although custom has now strongly sanctioned its use 
 upon such occasions, it must be doubt"ful whether it could 
 be legally enforced. The administration of the Holy Com- 
 munion is omitted in this i)art of the rubrical directions 
 from the occasions on which the surplice is to be used ; 
 but it is directed in another part of that same Prayer Book, 
 that the vesture worn on such occasions shall be a plain 
 white alb, with a vestment or coj)e. This alb diHcrs very 
 little from the surphce, being close-sleeved; and indeed ni 
 the same place, where directions are ^iven for the habit ot 
 the bishop in officiating at the ministration of the Com- 
 munion, it is said that he shall have upon him, among 
 
 P See ante, "Ornaments of the Church." a Canon 58. Mbid.
 
 service. 
 
 608 PUBLIC WOKSHIP. 
 
 The alb at the other things, his surpUce or alb. And a difficulty might 
 communion consequently here arise, if ciistora should in any case be 
 so far disregarded, as that a minister should take upon 
 himself to adopt an alb instead of a sur])lice in the admi- 
 nistering the Sacrament; for the alb is in fact the- only 
 habit which the strict letter of the law sanctions on such 
 occasions. Nor does it appear that the bishop would have 
 authority to order any other. And this appears to be one 
 of the many cases in which numerous difficulties would 
 arise from any departure from custom and long established 
 
 usage. 
 
 Surplice not As to the use of the surplice as a proper habit for the 
 
 to boused la preacher, it never appears to have been even contemplated 
 preac ing. either by the canon or the statute law ; the directions of 
 
 which appear so plainly to indicate the dift'erent times at 
 which the sur])lice is to be used, that it is not easy to ima- 
 gine in what manner an opinion could have prevailed that 
 its use had ever been considered proper in the pulpit. The 
 error may possibly have arisen from the custom, which 
 would be in strict accordance with the canon, for the 
 deans, masters, prebendaries, fellows, kc. in cathedrals or 
 colleges, to wear their sur])lices while preaching in their 
 own cathedral or college ; but these they wear on such 
 occasions not as preachers, or as persons ministering, but 
 because it is the ordinary dress which they are by the 
 canon directed to wear, and which they do always wear 
 when they attend their cathedral or college church or 
 chapel, whether ministering, or as members of the con- 
 gregation only ; and which surplices even lay fellows of 
 colleges ordinarily wear when attending service at their 
 college chapels. Others have supposed this error to have 
 arisen from the circmnstance, that the rubric may possibly 
 be so construed as to suppose the morning sermon to be a 
 part of the order of the administration of the Lord's Sup- 
 per, which however would involve the manifest absurdity 
 of using a different habit in performing precisely the same 
 office according to the time of the day at which it might 
 be performed ; but, in truth, the meaning of " lueaching 
 being a ])art of such a service" is not very clear or definite : 
 and even if it were so in the fullest sense, yet, as it is clearly 
 not ])erformed in the same place, there is no argument that 
 it should be in tlu; same habit. It will, moieover, be ob- 
 served, that it is doubtful whciher the use of the present 
 surplice in the coumiunion service has any other certain 
 sanction than the authority of that long established custom 
 which has also sanctioned the use of the gown in preaching. 
 It would seem therefore to be the duty of the ordinary to
 
 PUBLIC WOHSIIIP. Cljij 
 
 prohibit the use of the surjjhce upon overv occasion where 
 it is not sanctioned either by usa<i;e or by' law. 
 
 We have ah-eady seen tliat the j^eneral order of tlic Manner in 
 church service, according to the directions of the rubric, is «i'i'liiiic 
 not to be departed from by the minister; l)ut the manner [sTlIl "e"''''' 
 in which that church service is to be performed is at the formed. '"^'^ 
 direction and discretion of the officiating minister, sid)ject, 
 of course, to any directions from the ordinary : and so long- 
 as he does not depart from the directions of the rubric, 
 the parishioners or churchwardens,' or others, would have 
 no right to interfere; as where it is directed by the rubric Discreiionary 
 that such a particular part of the service is to be said or power of the 
 sung, it would be for the minister, at his discretion, to '"i''"'s'<-'r in ^ 
 choose which alternative should be adopted, according as 1*115^ ei"f mini', 
 he might think best adapted to his congregation. &c. in his 
 
 Sir William Scott, in his judgment in the case of Ilutr/uns ^'""■^''• 
 V. Denziloe,^ which we have before quoted, when speaking 
 of the duties of churchwardens, considers the discretion of 
 a minister, who had introduced the chanting a ])art of the 
 service into a parochial church, as questionable; but the 
 judgment expressly declares that there is nothing in point 
 of law to prevent his so doing, and that any interference or 
 countermand by the churchwardens is illegal and j)unish- 
 able : and as the minister is to direct, at his discretion, 
 what parts of the service are to be sung, and to exercise a 
 general superintendence in such matters, it follows that 
 he may direct by whom the singing or chanting arc to be 
 })rincipally performed, whether it is to be instrumental or 
 vocal only, and, in fact, to make any new orders or regu- 
 lations relating thereto as he may think fit; but subject, 
 as we have already mentioned, to the general controliug 
 power of the ordinary; to whom, consequently, the chinch- 
 wardens or parishioners, or any of them who may feel ag- 
 grieved by such new orders and regulations, ought to ad- 
 dress their complaint. 
 
 It follows, therefore, from what is here said, that the in nppoinimtnt 
 appointment or dismissal of singers or inslnnnental per- or tlisnnssal of 
 formers in the church rests entirely with the minister, who ^'"=''^'''' ••• 
 might dismiss them individually or as a body, appoint a 
 dirtierent method or prohibit singing altogether, if he 
 thought proper; subject, however, as we have already 
 observed. And if any after dismissal should persist, never- 
 theless, in continuing to perform or sing as before, it is 
 presumed they would be liable to be jiunished under the 
 statute of William II I., presently to be menti.)iu'd, as willal 
 disturbers of the congregation. 
 
 • See anle, " Churchwardens." ' 1 Ilagg. Consist. ; vide supra. 
 
 H n
 
 610 PUBLIC WORSHIP. 
 
 It would not be easy to lay down any rule for the guid- 
 ance of ministers in a matter which is peculiarly within 
 their own discretion, and depending so entirely upon the 
 circumstances of each particular case ; but each, according 
 to those circumstances, may probably be able to find a 
 ouide in the followino- brief summary of the history of this 
 subject, which we have here given in the words of Lord 
 History of Stowell :" " In the primitive Churches the favourite prac- 
 
 church singing, ^j^g ^^ j.|^g Christians to sing hymns in alternate verses is 
 expressly mentioned by Pliny, in one of his epistles to 
 the Emperor Trajun : Ajjirmabant heme fuisse summam vel 
 culpcB sua vel erroris, quod essent soliti stato die ante lucem 
 convenire carmenque Christo quasi Deo dicere secum invi- 
 cem ;^ and probably for some time the custom continued 
 much as we find the rule laid down in this country about 
 1000 years ago ; viz, that they should observe a plain devout 
 melody. ^ 
 
 " TheChurch of Rome afterwards refined upon this prac- 
 tice, as it was their policy to make their ministers consi- 
 derable in the eyes of the common people ; one way of 
 efi'ecting that, was by appointing them sole officers in the 
 public service of the church, and difficult music was intro- 
 duced, which no one could execute without a regular edu- 
 At the time of cation of that species. At the Reformation this was one 
 the Reforma- of the grievances complained of by the laity, and it be- 
 ^'°"* came the distinguishing mark of the Reformers to use plain 
 
 music in opposition to the complex musical services of the 
 Catholics. The Lutheran Church, to which the Church 
 of England has more conformed in discipline, retained a 
 choral service. The Calvinistic Churches, of which it has 
 sometimes been harshly said that they think to find re- 
 ligion wherever they do not find the (Jhiirch of Komc, 
 have discarded it entirely, with a strong attachment to 
 plain congregational melody, and that, perliaps, not always 
 of llie most harmonious kind. 
 In modern " Theic are certaiidy, in modern usage, two services to 
 
 ""E^- be distingiiisiied ; one tlie calhechal service, which is per- 
 
 formed by persons who arc in a certain degree professors 
 of music, in which others can join only by ear; the other, 
 in which the service is |)erf()nne(l in a plain way, and in 
 winch all the congregation ncaily (akc an c(pial part. It 
 has b(;en argued that n(jthing beyond this ought to be 
 permitted in ordinary parochial service, it being that which 
 
 " The following is from the judgment of Lord Stowtll in tlie case of llulchiiis 
 V. DriiPiiliir, ante. 
 
 « I-pis. X. <)7. y Uibs. 298.
 
 PUBLIC WORSHIP. nil 
 
 general usage at the present day alone j)ermits. But that 
 carries the distinction further than the law will support; 
 for if inquiries <i,o further hack, to j)eriods more ncarlv a|)- 
 proaching the Reformation, tliere will Ix- found authority 
 sufficient, in point of law and j)ractice, to support the use 
 of more music even in a parish church or chapel. 
 
 " The first Liturgy was established in the time ai' Edward 
 VI., in 1548. This was followed, after a lapse of four 
 years, by a second, which was piiblished in tne reign of 
 the same king, in 1552; and the third, which is in use at 
 present, agreeing in substance with the former, as ordained 
 and promulged in the first year of Elizabeth, in 1559. 
 
 " It is observable thatthese statutes of Edward V I., which 
 continue in force, describe even-service as even-song. This 
 is adopted into the statute of the first of Elizabeth. The 
 Liturgy also of Edward VL describes the singing or saying 
 of even-song ; and in the conmiunion service the minister 
 is directed to sing one or more of the sentences at the 
 offertory. The same with regard to the Litany ; that is 
 appointed to be siing. In the present Liturgy, the Psalter 
 is yuinted with directions that it should be said or sunij, 
 without any distinction of parish churches or others ; and 
 the rubric also describes the Apostles' Creed to be suntj/ or 
 said by the minister and people, not by the prebendaries, 
 canons and a band of regular choristers, as in cathedrals, 
 but plainly referring to the service of a parish church. 
 Again, in the burial service, part is to he snng by the mi- 
 nister and people; so also in the Athanasian and Nicene 
 Creeds. 
 
 "The injunctions that were published in 1559 by Queen 
 Elizabeth completely sanction the continuance of singing 
 in the church, distinguishing between the nuisic adapted for 
 cathedral and collegiate churches and parochial churches; 
 for it is enjoined that, because in divers collegiate, as also 
 in some parish churches, heretofore there hath been livings 
 ai)pointed for the maintenance of men and children for 
 singing in the church, by means whereof the lauilable 
 exercise of music hath been had in estimation and ju-e- 
 served in knowledge, the queen's majesty, neither meaning 
 in anywise the decay of anything that midit conveniently 
 tend to the use and continuance of the said science, neither 
 to have the same so abused in any part of the chvnch that 
 thereby the common prayer should be the worse under- 
 stood by the hearers, willeth and commandeth that, first, 
 no alterations be made of such assignnuMits of liviiigs as 
 hath heretofore been appointed to the use of singing or 
 
 R R 2
 
 612 PUBLIC WORSHIP. 
 
 music in the church, but that the same so remain; and 
 that there be a modest and distinct song so used in all 
 parts of the common prayers in the church, that the same 
 may be as plainly understood as if it were without singing ; 
 and yet, nevertheless, for the comfort of such as delight in 
 music, it may be permitted that in the beginning or in the 
 end of common prayer, either at morning or evening, there 
 may be sung an hymn or such like song to the praise of 
 Almighty God, in the best melody and music that may be 
 conveniently devised, having respect that the sentence of 
 the hymn may be understood and perceived. 
 
 " Also in the Articles for the Administration of Prayers 
 and Sacraments, set forth in the further injunction of the 
 same queen in 1564, the Common Prayer is directed to be 
 said or sung decently and distinctly in such place as the or- 
 dinary shall think meet, for the largeness and straitness 
 of the church and choir, so that the people may be most 
 edified. If, then, chanting was unlawful anywhere but in 
 cathedrals and colleges, these canons are strangely worded, 
 and are of disputable meaning. The metrical version of 
 the Psalms was then not existing, the first publication not 
 taking ])lace till 1562; and it was not regularly annexed 
 to the Book of Common Prayer till 1576, after which 
 those Psalms soon became the great favourites of the 
 common people. The introduction of this version made 
 the ancient hymns disrelished ; but it cannot be meant 
 that they were entirely superseded ; for under the statutes 
 of the Reformation, and the usage explanatory of them, it 
 is recommended that the ancient hymns should be used in 
 the Liturgy, or, rather, that they siiould be preferred to 
 any others ; though certainly, to perform them by a select 
 band with complex music, very inartificially applied, as in 
 many of the churches of the country, is a practice not 
 more reconcilable to good taste than to edification. But 
 to sing with j)lain congregational music is a practice fully 
 authorised, j)articularly with resi)cct to the concluding 
 part of difi'erent portions of the service." 
 Treserving Older If any person shall willingly and of purpose, maliciously 
 during divine qj. contemptuously, conic into any cathedral or parish 
 church, chapel or othei' congregation permitted by this 
 act, and discpiiet or disturb the same, or misuse any preacher 
 or teacher, lie shall, on proof thereof before a justice of 
 the peace by two witnesses, find two sureties, to be bound 
 by recognizance in the sum of 50/., and in default of such 
 sureties, shall be connnitted to prison, to remain till the 
 next general or quarter sessions; and iq)on conviction of 
 
 service.
 
 PUBLIC WORSHIP, (J 13 
 
 the said offence at such session, shall suffer the nenaltv 
 of 20/.^ ' ^ 
 
 We have already seen, that it is the duty of the church- 
 ^yardens to maintain proper order in the church during the 
 time of public worshij) ; but any other person there present 
 may remove a person who is olfending as;ainst proper de- 
 corum, and thereby making- himself a nuisance to all who 
 are there assembled, and this, it is said, by the same rule 
 of law that allows a man to abate a nuisance; and the 
 officiating minister, consequently, would be justified in 
 taking any measures to prevent the disturbance of the 
 congregation by any one during the time of divine service.'' 
 And by the canon the churchwardens are directed not to 
 suffer any idle persons to abide cither in the churchyard 
 or church porch during the time of divine service, but to 
 cause them to come in or depart. 
 
 CHAPTER II. 
 
 OF BAPTISM. 
 
 At first, it is said, baptism was administered publicly, as Early modes of 
 occasion required, by rivers ; afterwards the baptistery was baptism, 
 built at the entrance of the church, or very near it, which 
 had a large basin in it that held the persons to be bap- 
 tised, and they went down by steps into it. Afterwards, 
 when immersion came to be disused, fonts were set up 
 at the entrance of churches ; "^ which baptisteries here 
 spoken of are to be seen attached to many of the foreign 
 churches in the present day, as at Florence. 
 
 There shall be a font of stone in every church and The font, 
 chapel where baptism is to be ministered, the same to be 
 set in the ancient usual i)laces, in which only font the 
 minister shall baptise publicly ;'' but it docs not seem that 
 it should necessarily be inferred from this, that the practice 
 of immersion had ceased at the time when fonts were 
 directed to be set up in churches, as the older fonts arc 
 always of sufficient size for the immersion of infants. 
 
 The people are to be admonished that it is most con- 
 venient that baptism should not be administered but uj)on 
 
 ^ 1 Will. 3, c. 18 
 
 ^ Clover V. Uind, 1 Mod. 168; and see 2 Hagg. Ccn, 1-11, and ante, 
 " Churchwarden." 
 
 b I Still. E. C. 146 j I Burn's E. L. « Canon 81.
 
 614 
 
 OF BAPTISM. 
 
 On what days 
 baptism is re- 
 commended to 
 be administered, 
 
 At what time 
 baptism is to 
 be administered, 
 
 Effect of the 
 directions of 
 the rubric in 
 this respect. 
 
 Sponsors, num' 
 bers of. 
 
 Father of the 
 child not to be 
 godfather. 
 
 Sponsors must 
 have been 
 communicants. 
 
 Sundays and other holidays, when the most number of 
 persons come together, as well for that the congregation 
 of persons there present may testify the receiving of them 
 that be newly baptised into the number of Christ's Church, 
 as also because in the baptism of infants every man pre- 
 sent may be put in remembrance of his own profession 
 made to God in his baptism ; nevertheless, if necessity so 
 require, children may be baptised on any other day.*" 
 
 And not only the days on which baptism is to be per- 
 formed, but the more particular tiiue is enjoined, for the 
 people with the child or children are to be ready at the 
 font either immediately after the last lesson at morning 
 prayer, or immediately after the last lesson at evening 
 prayer, as the curate by his discretion shall appoint ;"* and 
 the same direction as to the time is given for the public 
 baptism of such as are of riper years ; and the discretion 
 of the curate mentioned in both places evidently extends 
 only as to whether the baptism should be after the last 
 lesson at morning or at evening prayer. 
 
 The above direction is positive ; so that it appears that 
 a curate who administers public baptism, whether of in- 
 fants or of adults, at any other time than as above directed, 
 is acting in defiance of the laws of the realm, and renders 
 himself liable to be proceeded against in the ecclesiastical 
 courts ; but custom appears to have sanctioned a very fre- 
 quent departure from the strict rubrical directions in this 
 respect. 
 
 In the j)ublic baptism of infants it is further directed 
 that for every male child to be baptised there shall be two 
 godfatiiors and one godmother, and for every female one 
 godfather and two godmothers;'' the meaning of which 
 appears to be, that there shall be this number at the least, 
 but not that there should be any restriction if a larger 
 number are desired. 
 
 No j)arcnt shall be urged to be present, nor be admitted 
 to answer as godfather for his own child; and no god- 
 father or gochuotlier shall be suHbrcd to make any other 
 answer or spcecli than by the Book of Connnon Prayer is 
 prescribed in that bciialf; lUiither shall any jierson be 
 admitted godfather or godmother to any child, at christen- 
 ing or confirmation, before the; said person so undertaking 
 liath received the holy communion.' 
 
 It would seem, therefore, to be tlie duty of the minister 
 to in(|nire as to tlie latter fact, if he had any reason to 
 doubt whet Iter citlier of the j)roposed sponsors had been 
 
 '■ Rubric in the Baptismal Service. 
 e Ibid. 
 
 "' Ibid. 
 f Can. 29.
 
 OF BAPTISM. 615 
 
 communicant; and if the answer received should mA he 
 satisfactory, lie ought to reject that j)erson, and not to 
 proceed with the office until the prescribed number of 
 sponsors, properly qualified by having been connnunicantg, 
 should be produced. 
 
 The ministers shall take care not to permit wanton Wanton name* 
 names, which being pronounced do sound to lascivious- not •" l« g'ven. 
 ness, to be given to children baptised, esj)ecially of the 
 female sex ; and if otherwise it i)e done, the same shall 
 be changed by the bishop at conHrmation ;'= which name If given, may be 
 being so changed at confirmation shall, according to Lord "^''""K*** »' ""• 
 Coke, be deemed the lawful name.'' 
 
 But by the form of the j)resent liturgy, the bishoj) does 
 not pronounce the name of the person to be conhrmed, as 
 used to be done in the ancient offices of confirnuition, antl 
 therefore it has been said he cannot alter it ;' but although Qmcre, whether 
 he does not ordinarily pronounce the name, there is no *'"* *^j^" °°^ ^ 
 rubric which forbids it; and there seems no reason why he 
 might not do so if he should so think (it, for the pur|)ose 
 of complying with the constitution above mentioned, if any 
 improper name had been given to any child at his baptism. 
 
 Baptism by ministers of the Church of England may naptisms by 
 be either public in our churches, or it may be private in clcrgymeo. 
 houses ; it may be of infants or of adult persons ; for each 
 of which occasions a form is provided in our Book of Com- 
 mon Prayer. And wherever it is administered by a minister 
 of the Church of England, it must be according to one of 
 these forms, and agreeably to the directions of the rubric 
 in that behalf. 
 
 Yet as the only essentials to baptism are the invocation rs-^emiil* to 
 of the Holy Trinity and the element of water, verbum ct e/e- ^•'''J ^-'P''*'"- 
 menhim, although the nunister might be punished for addi- 
 tions to or omissions from the service, or for any inatten- 
 tions to the forms prescribed, the baptism would be valid 
 and efiectual, provided those essentials were observed.'' 
 For the effect of baptism, in whatever form the ceremony 
 may be performed, so long as certain necessary things are 
 observed, is not so much to admit the person bantised into 
 any particular church, as to make him one of the general 
 congregation of Christ's flock.' And in this respect it is 
 analogous to the ceremony of marriage, which, as used in 
 other countries, or in societies diflering from the Clinrch of 
 England, is nevertheless without doubt crpialiy valid ami 
 efFectual. The rubric provides that the curates of every 
 parish shall often warn the people that, without great 
 cause and necessity, they procure not their ehiKlren to be 
 
 s Peccham, Lind. 249 ; 1 Burn's E. L. '• Co. Liu. 3 a. 
 
 1 Rogers's E. L. 69. " See post. ' See the baptismal service.
 
 mo 
 
 OF BAPTISM. 
 
 Sufficiency of 
 private baptism, 
 
 baptised at home in their houses; yet if, without any such 
 necessity, the baptism take place, the child so baptised is 
 lawfully and sufficiently baptised, and is not to be baptised 
 
 When private 
 baptism may 
 not be refused. 
 
 Wiio may bap- 
 tise. 
 
 agaui 
 
 Punishment for- 
 refusal. 
 
 \'iili(lity of lay 
 l)a|)lism. 
 
 Established by 
 case of Ktvi]i v 
 Wiches. 
 
 The minister in his discretion would appear to be the 
 proper judge of the necessity here spoken of; and if he 
 should privately baptise without any such necessity, he 
 would be liable to be punished for so doing-. Yet it seems 
 to be a discretion not to be exercised without some danger ; 
 for if any minister, being cUdy and without any manner of 
 collusion informed of the weakness and danger of death of 
 any infant unbaptiscd in his parish, and thereupon desired 
 to go or come to the ])lace where the said infant remaineth, 
 to baptise the same, shall either wilfully refuse so to do, or 
 of purpose, or of gross negligence, shall so defer the time, 
 as, when he might conveniently have resorted to the place, 
 and have ba|)tised the said infant, it dieth through such his 
 default, unbaptiscd, the said minister shall be suspended 
 for three months ; and before his restitution shall acknow- 
 ledge his fiiult, and promise before his ordinary that he will 
 not willingly incur the like again. Provided, that when 
 there is a curate or a substitute, this constitution shall not 
 extend to the parson or vicar himself, but the curate or sub- 
 stitute present." 
 
 And, as baptism would be valid and effectual if performed 
 by a minister of our Chiu'ch, liowever irregidarly and im- 
 properly, provided the bel'ore-mentioncd essentials were 
 observed, so also would it by our laws be recognised as 
 valid and effectual, subject to the same proviso, though not 
 performed by a minister of our Churcli ; nay even, as it 
 appears, though [)erformed by one not pretending to be a 
 minister of any dt;nomination, or by one who should not be 
 a believer in the Christian faith. 
 
 In the case of Kemp v. Wic/<es;' although the cpiestion 
 arose as to the right of burial, of which we shall come to 
 sj)eak more j)articularly hereafter, yet from the form of the 
 j)leadings, and the admissions on either side, the sole ques- 
 tion in controversy was as to the validity of lay baptism ; 
 for there a])peare(l to be no dispute as to the three tbllow- 
 ing facts, vi/. 1 . That the ullice of burial was not to be used 
 for persons who should die iuibaj)tised. 2. That the child 
 brought to i)e binied had been only baptised according to 
 the form used by VVesleyan dissenters. 3. Thut the refusal 
 of Mr. Wickes was fc^unded uj)on the point of law that he 
 was not bound to bury persons who had been so l^aptised. 
 The efti^ct of these three admissions taken together left the 
 1" Rubric in ihc b.ijitisinal service. " Canon 69. " 3 Phiil. 266.
 
 OF BAPTISM. (;l; 
 
 sole question to be determined, wliether the haptiMii ad- 
 mitted to have been performed was of a valid and eticetiial 
 nature. And, as it was said by Sir J. Niclioll, if the child 
 died unbaptiscd, the minister was not only justiHed, but it 
 was his duty, and he was enjoined by law not to perform 
 the service. If the child did not die unbaptiscd, then he 
 has violated the canon by a refusal neither justiHed by any 
 exception contained within the canon itself, nor by any 
 subsequent law. In his able and conclusive Judgment on 
 this case, Sir J. Nicholl showed, by numerous (piotations 
 from the canons ami constitutions of the (Jhurch, that the 
 Church had always been especially careful that baptism, by 
 whomsoever performed, she per laicum, sive per clericum, 
 eliam per pcuptnum in c((su necessitatis, was not to be re- 
 peated ; that two things only were deenu'd essentially ne- 
 cessary — 1. That the person should be baptised in the name 
 of the Father, Son, and Holy Ghost; 2. That the element 
 of water should be used; and if those two essentials were 
 complied with, the baptism, however irregular, was yet 
 always considered valid, so tliat it was not afterwards to be 
 repeated. That it was the use of the water, and the invo- 
 cation of the Holy Trinity, that was essential to the baptism. 
 Those, as Lyndwood had explained, were the duo neces- Duo ueetiuina. 
 saria. After these quotations, Sir J. Nicholl proceeds as 
 follows : 
 
 " Now these passages show not only that those l»ap- 
 tisms were held to be valid, but they show how extremely 
 cautious the Church was that baptism should not he re- 
 peated. These references to the ancient law will also 
 serve to explain and illustrate any matter which could be 
 considered as doubtful in the construction of the nuire 
 modern law of the rubric. It therefore seems to admit of 
 no doubt, that by the law of the English Church, as well 
 deduced from the general canon law, as from its own par- 
 ticular constitutions, down to tlie time of tlic Reformation, 
 lay baptism was allowed and ])ractisod. 
 
 " It was regular, and even prescril)ed in case of neces- 
 sity. It was" so complete and valid that it was by no 
 means to be repeated. It also clearly ajipears that in 
 order to ascertain its validity no inquiry was necessary to 
 be made into the existing urgency under which it was 
 administered, but only into what was declared to be the 
 essence, whether it had been administered by water, and in 
 the form of the invocation, for if (hose forms were used, 
 the baptism by a layman was comi)lete and valid. 
 
 " So the matter stood at the time of the Reformation, PcrioHofthe 
 and that period is an iu.portant one, for if lay baptism Reformmon.
 
 618 OF BAPTISM. 
 
 had been considered as one of the errors of the Romish 
 Church, it would have been corrected at the time when 
 all the Christian world had their attention pointed to those 
 particular errors. But the fact is otherwise, for the use of 
 lay baptism was manifestly continued by the English Re- 
 formed Church. Liturgies were framed, and acts of uni- 
 formity passed by parliament in the reigns of Edward VI. 
 and of Queen Elizabeth. In those the rubrics run thus: 
 Let those that be present call upon God for his grace, and 
 say the Lord's Prayer, if the time will suffer ; and then one 
 of them shall name the child, and dip him in the water, 
 or pour the water upon him, saying these words : ' I bap- 
 tise thee in the name of the Father, and of the Son, and 
 of the Holy Ghost.' Here is no mention whatever of a 
 priest or lawful minister as the person who is to officiate 
 upon the occasion ; it is directed to be done by those who 
 are present, or one of them, without singling out or par- 
 ticularizing what the person is to be who is to administer 
 All private bap- the sacrament. And the better opinion seems to be that 
 lism formerly by all private baptism was by laymen antecedent to the time 
 aymen. ^^ King James ; that it was only public baptism in the 
 
 church which was to be administered by a priest; and that 
 wherever there was the sort of urgency and necessity which 
 prevented the child being brought to the church, and re- 
 quired the child to be baptised at home, the baptism was 
 to be administered by any person, without requiring the 
 attendance of the priest. The same rubric, although it 
 enjoins the people not to baptise their children at home, 
 Lay baptism except in cases of necessity, yet, lest the necessity should 
 evidently al- arise, expressly directs the pastors to instruct their pa- 
 r7.!^,r,.hV,\]L rishioners in the form of doing it. Hence, it is evident 
 quentiy to liie that subsequent to the Reformation, the English Kciormed 
 'Reformation. Chuich itself did allow the practice of lay baptism. 
 Articles in the " ,So the practice stood from the Reformation till the time 
 year 1575. ^^ King James I., except that in the year 1575, among 
 
 some articles agreed upon at tiiat time in convocation, there 
 appears to have been one (the 12th article), which states, 
 that to resolve doubt by whom private baptism is to be 
 athninistercd, it is directed that in futtne it shall be admi- 
 nistered by a minister only, and that private persons shall 
 not intermeddle therein. This article rather appears not 
 to have been published and circulated. It remained in 
 manuscript. It had no authority, not apj)caring to have 
 been even confirmed by the crown. There coidd liavc been 
 no doubt upon the rubric of Edward VI., coupled with 
 what was tbe old law so far as respected the validity of lay 
 baptism.
 
 OP BAPTISM. f,\C) 
 
 " And the bishops certainly had not authonty to alter 
 the law, they had only authonty to explain matters whicii 
 were doubtful ; and the doubt seems to have been, not 
 whether lay baptism was valid, but whether it was regular 
 and orderly. Up to that time, wherever private baj)tism 
 was allowed, there was nothing to be found in the ancient 
 canons, the constitutions of the Church, or the rubric, that 
 required the minister, as a person at all necessary to be 
 present for the orderly administration of such j)rivate bap- 
 tism, it was not even to be inferred that it would be more 
 regular ; for the minister is not mentioned, on the contrary, 
 in cases where private baptism was necessary (and it was 
 only allowed in cases of necessity), the people were to be 
 instructed how to perform it themselves. The most to be 
 deduced from this article, therefore, is, that it was thought 
 at that time by the convocation that it would be more ])ro- 
 per, regular and decent, to have the ceremony of private 
 baptism performed by ministers; and therefore it was di- 
 rected to be performed by them, and laics were restrained 
 from doing it ; but the article, as before stated, does not 
 appear to have been published. 
 
 " King James I. (who considered himself a great divine) 
 disapproved of the practice of lay baptism. Soon after his 
 accession conferences were held at IIam})ton Comt with Hampton Couit 
 the clergy, for the purpose of revising and reconsidering conferences, 
 the Liturgy, and particularly this article of private baptism. 
 The king expressed strongly his disapprobation of lay bap- 
 tism, and seemed more inclined to no baptism at all, than 
 that the office should be performed by a laic; but his di- 
 vines (most of them prelates of very great eminence) dif- 
 fered from him in respect to preferring the total omission 
 of baptism to its being administered by a layman. It was, 
 however, agreed so far to alter the rubric as to direct 
 that private baptism should be administered by a lawful 
 minister; but whoever reads the account which has been 
 preserved of these conferences, will see that neither the 
 king nor the bishops maintained that baptism, if de facto 
 performed by a laic, was invalid ; on the contrary, even 
 King James expressly declared his opinion to be that if 
 baptism had been performed by a laic, with water and the 
 invocation of the Trinity (which he also admitted to be the 
 essence of the sacrament itself), such baptism was not to 
 be iterated; that is, that the person was not to be re- 
 baptised ; for the kind's words, as recorded, are—' I utterly 
 dislike all rebaptisation on those whom women or laics 
 have baptised.' He himself; therefore, considered lay 
 baptism as valid, though he thought fit to enjoin the ad-
 
 620 OF BAPTISM. 
 
 ministration even of private baptism to be by a clergyman, 
 as much more orderly and proper. 
 Proclamation by " The rubric at that time agreed on was never confirmed 
 James I. |^y parliament; but a proclamation afterwards appeared 
 
 for the authorising an uniformity in the Book of Common 
 Prayer; and bis majesty says in that proclamation, * We 
 have thouoht meet that some small matters might rather 
 be explained than changed.' The proclamation has no 
 suggestion whatever of so important a change in the Eng- 
 lish Church, in the established constitution of that Church, 
 as it had existed, not only in early times, but as it existed 
 after the Reformation had taken place, as that baptism 
 actually administered, even by a laic, in the due form, with 
 the element and the words, should be considered as wholly 
 null and invalid, and that such a baptism could bear re- 
 baptisation. There is nothing of the kind in the procla- 
 mation ; on the contrary, explanations in some small things, 
 rather than a change, are alone referred to. 
 
 " In construing all laws, it is proper to inquire how the 
 law previously stood ; for it will require more express and 
 distinct terms to abrogate and change an old estabhshed 
 law, than to provide for a new case upon which the former 
 law has been wholly silent. Private baptism by laymen 
 had always been held valid, and almost enjoined as regular. 
 The rubric having now introduced the order that it shall 
 be administered by the lawful minister, what would be the 
 obvious construction of this alteration ? That in the re- 
 gular and ordinary and decent administration of j>rivate 
 baj)tism, it became the duty of the lawful minister to per- 
 form the ofHce. But if the old law was meant to be coni- 
 ])letely changed, if it luul been intended to invalidate the old 
 law in this respect, ami that all uLher baptisuis, except that 
 by a lawful minister, should be considered as absolutely 
 null and void, the new law would most expressly and dis- 
 tinctly have declared it. 
 Analogy to the " Upon tliis rulc of construction, the case of marriage 
 law affecting, ]jag ])een referred to as stron<rlv analo<rous. Marriaiies are 
 by tlie rubric enjomed to be solennnzed by a nnnister; 
 there is to be a ])revious publication of banns, and other 
 cer(!monies are to be observed ; the laws of the Church and 
 the State by several acts of |)arliainent prohibited marriage 
 to be ])erformed in any other way; it jmnished the parties 
 concerned in clandestine marriages, both the minister who 
 solemni/ofi them, and the parties between whom they were 
 solemni/etl. But ncAwithstaiiding all these laws enjoined 
 how a marriage was to be solemnized, and punished those 
 who solcmni'/x'd it in any other way, what was the conse- 
 
 marriaijes.
 
 OF BAPTISM. (521 
 
 quencc ; did the mnniagc bocoine void .' liy no means. 
 A marriage in a private house between minors, was a |)er- 
 fectly vahd marriage (notwithstanding it was irregular, and 
 so far an unlawful marriage), till the Marriage Act, by di- 
 rect and positive terms, e.\j)ressly declared that such a mar- 
 riage should be null and void to all intents and purposes. 
 So baptism in a house to be regular after this rubric could 
 only be administered uj)on occasions of urgency, and by a 
 minister of the Church ; but if it was ])crformed by a layman, 
 and without necessity (though it was an irregular bajjlisuj, 
 though the jiarties miglit be punished for violating tiic in- 
 junctions of the rubric), still it was not an invalid baptism, 
 and the party could not be rebaptised. 
 
 " The rubric itscdf, as published by King James, leads to Conclusion 
 the very same conclusion. Certain questions are directed '^'^^";'' ff°'" '''*^ 
 to be asked for the purpose of ascertaining whether the [i"|,pj l'^ ' 
 child has been already ba])tised, and the question ran in Jamei 1. 
 this order and form : — " If the child were l)a])tised bv anv 
 other lawful minister, then the minister of the parish 
 where the child was born or christened shall examine 
 and try wdiether the child be lawfully baptised or no. In 
 which case, if those that bring any child to the church do 
 answer that the same child is already baj)tised, then shall 
 the minister examine them further, saying, * By whom was 
 this child baptised? Who was present when this child wu.s 
 baptised? Because some things essential to this sacra- 
 ment may happen to be omitted throuuh feai- or haste in 
 such times of extremity, therefore 1 demand further of you, 
 With what matter was this child baptised ? With what 
 words was this child baptised?' And if the minister shall 
 hnd by the answers of such as bring the child, that all 
 things were done as they ought to be, then shall not he 
 christen the child again, but shall receive him as one of 
 the flock of true Christian peojde. 
 
 " Now it by no means follows from asking by whom \\ as i„.|uiius m»Jc 
 this child baptised, or who was present when this chiM j!^ '|)'J"^'^ "^ 
 was baptised, that the person who administers the cere- j,ff,','ej_'*' 
 mony is essential to the validity of thr haiaisu), or that 
 those inquiries are made for the purpose of ascertaining 
 whether the baptism be valid or not ; for it is obvious that 
 it is not essential who were the |)ersons present. Why, 
 then, is it to be inferred as essential who was the pers^.u 
 by whom the ceremony was performed ! On the otlu-r 
 hand, it may be extremely proper and convenit-nt to in- 
 quire into both those circumstances, for the purpose of 
 enabling the minister more satisflxctorily to ascertain wlie- 
 ther the essentials themselves have been performed : for
 
 622 OF BAPTISM. 
 
 if the office has been performed by a lawful minister, then 
 there is less suspicion of irregularity or defect in the per- 
 formance, and a less minute inquiry may satisfy the mi- 
 nister that the baptism has been properly administered. 
 Again, if the persons present at the baptism were re- 
 spectable intelligent persons, or persons who are at the 
 time attending, and who, therefore, can be further ques- 
 tioned by the minister in respect to the essentials of bap- 
 tism, it may be material and proper, for that reason, to 
 inquire who were the persons that were present. Hence 
 it appears that these questions being introduced, does not 
 establish that a minister was essential to the adminis- 
 tration of the rite ; but more especially when we find this 
 preamble to the third and fourth questions interposed in 
 the middle of the queries ; because some things essential to 
 this sacrament (for so I think is the natural mode of read- 
 ing it, and not in the way in which the emphasis was laid 
 by the counsel) — because some things essential to this 
 sacrament may happen to be omitted (for if any thing 
 essential was omitted, it might be proper to consider the 
 baptism as null) ; therefore I demand of you ' With what 
 matter was this child baptised? With what words was 
 this child baptised V 
 
 " If any doubt could be made upon what is meant by 
 the rubric in this respect, it would be cleared up most 
 satisfactorily by adverting to the old law upon the sub- 
 ject ; and by the old law (as has been already stated) it 
 was the use of the water and the invocation of the Holy 
 Trinity, that was essential to tlie bai)tism ; those, as Lynd- 
 wood has explained, were the duo necessaria. Again, ' if 
 every tiling has been done as it ought to be,' what is 
 meant by the phrase ' done as it ought to be,' is explained 
 by adverting to the commentary of Lyndwood, for he has 
 stated, in his Gloss, the terms rit^ ministratus, legitime 
 factum, and forma dchita, to mean the use of water and 
 the form of words : this can, therefore, leave no doubt 
 what was tlic meanin<i' of the rubric, thus illustrated as it 
 is by reference to the ancient law and to Lyndwood. 
 
 " But the concluding part of the rubric is equally de- 
 cisive upon the subjf^ct ; for it is — * H" they which bring the 
 infant to the chiircli, do make such uncertain answers to 
 the priest's question, as that it cannot appear that the 
 child was baptised with water in the name of the Father, 
 and of the Son and of the Holy Ghost (which arc essential 
 parts of baptism), then let the j)riest baptise it in the form 
 before aj)point('d for public baptism of infants, saving that 
 at the dipping of the child in the font, he shall use this
 
 OF BAPTISM. (J23 
 
 form of words :— ' If thou art not already baptisod, I Argumem* 
 
 baptise thee in the name of the Father and of tlic Son and ilf^wn from ihe 
 
 of the Holy Ghost.' ir there were a doubt then whether t^.^^r* '" 
 
 the child was baptised with water and with the invoea- ""'' '""'" 
 
 tion (which are here expressly declared to be essential 
 
 parts of baptism), then the child was to be conditionallv 
 
 and hypothetically rebaptised, the Church b(;ing so cv- 
 
 tremely anxious to avoid iteration. But sui)j)osinfr a doubt 
 
 arose whether the former baptism had been administered 
 
 by a lawful minister, was the chiUI, in that case, to be 
 
 rebaptised, even hypothetically ? Such a doubt mi<^ht 
 
 very easily happen ; the persons present might not be 
 
 able to answer who the person was that had baptised, or 
 
 they might not be able to answer whether the person who 
 
 administered the baptism was or was not a lawful minister. 
 
 He might have been an entire stranger to them ; and yet, 
 
 if that fact appears doubtful, here are no directions in the 
 
 rubric for a conditional rebaptisation. 
 
 " Hence it is obvious, that the person performing tiie 
 baptism was not essential by the rubric, and in this re- 
 spect the rubric exactly conformed to the old law ; for 
 the baptism remained valid, and was not to be repeated ; 
 and even to what King James said at the conference, just 
 before this rubric was approved, that he utterly disliked 
 all rebaptisation. 
 
 " After the Restoration the rubric was revised, and 
 was confirmed by parliament, and no alteration was made 
 except in the title of the office— for, unless I have been 
 misled by a book of some authority (not having seen the 
 Prayer Book of the time of King James), the title of King 
 James's office for the administration of private baptism 
 was this : — ' Of them that be baptised in private houses in 
 time of necessity by the minister of the parish, or other 
 lawful minister that can be procured.' Now the title of 
 the office stands thus :— ' Of the Ministration of Private 
 Baptism of Children in Houses;' there is an omission, 
 therefore, in the title of the words lawful ministers, or any- 
 thing referring to them. This alteration in the title, if it 
 meant any thing as applied to the jjresent question, seems 
 pretty strongly to infer that the title was considered as in 
 too ])recise a "manner requiring both the existence t)l the 
 necessity and the intervention of a lawful minister ; and 
 the title of the office was therefore left in more general 
 terms ' Of the Administration of Private Bajitism in 
 Houses' simply ; and it Avas only in the directory i)art, as 
 in marriages, that it was set forth, let the lawful minister 
 say so and so ; inferring that lawful ministers were the
 
 Church, 
 
 624 OF BAPTISM. 
 
 persons regularly to perform the office, and that it was 
 considered a part of their duty. 
 General opi- " So the matter still remains : and after tracing the law 
 
 nion of ihe through the several stages of its history, it appears im- 
 possible to entertain a reasonable doubt that the Church 
 did at all times (whatever might have been the opinions 
 of particular individuals upon this point, as there will be 
 difference of opinions among individuals on all points) — 
 that the Church itself did at all times hold baptism by 
 water, in the name of the Father, and of the Son, and of 
 the Holy Ghost, to be valid baptism, though not admi- 
 nistered by a priest who had been episcopally ordained, or 
 rather, to state it more generally, though administered by 
 a layman or any other ])erson. If that be so — if that is 
 the construction of baptism by the Church of England, 
 then the refusal of burial to a person unbaptised, that 
 term simply being used, cannot mean that it should be 
 refused to the persons who have not been baptised by a 
 lawful minister in the form of the Book of Common 
 Prayer ; since the Church itself holds persons not to be 
 unbaptised (because it holds them to be validly baptised) 
 who have been baptised with water and the invocation by 
 any other person and in any other form." 
 In cases of pro- Jt does not appear here to be useful to advert to that 
 latter part ot this careful judgment, which refers more par- 
 ticularly to protestant dissenters and to the toleration acts ; 
 for if biiptism, by whomsoever performed, sivc per laicitm, 
 sive per clericuvi, etiaiii per payanntn, in aisn neccssilutis, is 
 valid, that j)erformed by dissenting ministers cannot cer- 
 tainly be less so. The following sentence however is im- 
 portant : ** V>y the toleration act an important change was 
 worked in the situation ot dissenters, and bajjtisms now 
 by dissenting ministers stand on very dillerent grounds 
 from those by mere laymen ; jirotcstant dissenters being 
 now ull()wc<l the exercise of their religion, being no longer 
 liable to j)iiins and i)enaltics, their ministers lawfully exer- 
 cising their functions, the rights of that body being allowed 
 by law, it can no longer he considered that any acts and 
 lites perfurnu'd by them are such as the law cannot, in the 
 du(! athiiinistration of it, take any notice whatever of", or 
 that l);i])lisni perlbrmed by them, when attended with what 
 our own Chureii achnits to be the essentials of baptism, is 
 still to b(; looked on as a mere mdlity. 
 
 The fiist pint of this judgment has been here insertxid at 
 
 consideriibh' hmgth, on account of the full histcuy of this 
 
 n „• „r.(<\, subiecl which it supplies, and from the clear and conclu- 
 
 J. Nicholl. sive reasoning contained ni if. ''Why, says nir J. iNiciioll 
 
 testant dissent 
 eis
 
 OK BAPTISM. C'y, 
 
 in conclusion, * the riolits and interests of the Church are 
 to be afibcted by considering dissentin<2,- baptisms as Chris- 
 tian baptisms— by allowino; persons so baptised the com- 
 mon right of being buried according to tiie ordinary forms 
 of the Church and by a minister of the Church, to' whose 
 support tliey are bound to contribute, has not been ex- 
 plained. If the law has not excluded them from this 
 ordinary right of Christianity and humanity, the ministers 
 of the Church will not surely be degraded by perfornn'ng 
 the office. On the contrary, the generality of the clerg^', 
 it may be presumed, will rejoice that in this last olHce of 
 Christian charity there is no separation between the Church 
 and their protestant dissenting brethren. It is by a 
 le^jient, a liberal interpretation of the laws of disability 
 affd exclusion, and not by a captious and vexatious con- 
 struction and application of them, that the true interests 
 and the true dignity of the church establishment are best 
 supported." 
 
 The above able judgment of Sir J. Nicholl, although it 
 was but a single decision, and not carried uj) upon api)eal, 
 appears for a long time to have set this question at rest. 
 It was very generally acquiesced in, and no case was iii.s deciiion 
 brought before the courts calling it in question, or impugn- "^^ f*" *.'°"f, 
 ing the principles on which it was based for thirty years.'' . '^"^'e «<"1"'«*<^ 
 It might have been supposed, therefore, that the j)oint was 
 finally settled ; especially since it had been settled in a 
 manner so consonant to the proper feelings both of church- 
 men and dissenters, and which neither party could have 
 any interest in disturbing. But the question was never- 
 theless at last again raised in precisely the same manner, 
 viz., by the refusal of a clergyman to bury the body of a 
 child brought to him to be buried, on the ground that it 
 was unbaptised, never having been baptised by a regularly 
 ordained minister of the Church of England.'' 
 
 The facts in this case were as little in dispute as in the Cascof .Mauui 
 preceding, for it was admitted that the outward '»>'•"»"<" f-A'^pi'i" "^ 
 baptism had been complied with ; it was also admitted 
 in effect that lay baptism was tolerated in the Church 
 down to 1603. But it was pleaded by the defendant, that 
 after the conference at Hampton Court at that tnne, an 
 alteration was made in the liturgy ; and that from that 
 time lay baptism, which had been allowed by the Church 
 of Rome, was no longer allowed in our Church, and that 
 the practice was repudiated by the ecclesiastical authorities 
 of this realm at that time assembled. The question thcre- 
 
 P Sir H. Jenner, in Masltn v. Fscolt, post, 
 q Mastin v. EscoK, 2 Cuit. 692. 
 
 6 S 
 
 isni.
 
 626 
 
 OF BAPTISM. 
 
 Question whe- 
 ther the old law 
 had been alter- 
 ed since 1603. 
 
 Canons agreed 
 iipon in 1575. 
 
 The canon pro- 
 hibiting lay bap- 
 tism not pub- 
 lished. 
 
 And never coti- 
 sidered to h.;vc 
 any authority. 
 
 Result of the 
 Hampton Court 
 conference. 
 
 fore raised in this case was solely, " whether since the 
 alteration in the rubric an episcopally ordained minister 
 was essential to the valid administration of this rite." It 
 is consequently only necessary to allude to that part of 
 the judgment in this case which relates to what took place 
 about the year 1603, and to what has taken place sub- 
 sequently. The state of the old law upon the subject 
 being admitted, nothing was done, says Sir H. Jenner, 
 to alter the law until 1575 : then, at a convocation of 
 the province of Canterbury (it does not appear that the 
 province of York had any concern with it), fifteen canons 
 were made and agreed upon, and amongst them was one 
 which went directly to prohibit the administration of pri- 
 vate baptism by any but a lawful minister, or a dea- 
 con called to be present for that purpose. Of these the 
 queen refused her assent to the 15th. Thirteen only of 
 them were printed. This canon prohibiting lay baptism 
 was not published with the rest. Gibson says, " This 
 canon was not published in the printed copy ; but whether 
 on the same account that the 15th was left out, that is, 
 because disapproved by the crown, I cannot certainly tell." 
 It does appear to have been mentioned at the Hampton 
 Court conference, and on the whole, if it was published, it 
 never appears to have been considered to have any binding 
 authority, for in 1594 a proclamation of Queen Elizabeth 
 was published continuing the very same rubric and the 
 same directions for the performance of private baptism as 
 were in Edward Vlth's Prayer Books. I think the result 
 of this conference at Hampton Court is not that which is 
 alleged by the defendant, Mr. Escot, in his allegation, 
 namely, that from that period to the present day, that is, 
 from 1603, the liturgy of the Church of England h;is not 
 allowed the rite of baptism performed by unordained per- 
 sons to be valid, but has held the direct contrary. It ap- 
 pears to me, that though the ])ersons engaged in that con- 
 ference did all they could to discourage the administration 
 of baptism by laymen and by women ; yet that they could 
 not pi'cvail upon themselves absolutely and expressly to 
 j)i()hibit, still less to declare, such baptism absolutely null 
 and void. 
 
 The liturgy and the rubric were afterwards altered ac- 
 coiding to the decision of the king and of the bishops at 
 that time ; and the king in tiie proclamtition issued shortly 
 afterward, reciting what had taken place at Hampton 
 Court, states that he thought some small things might 
 rather l)e exj)laiiiod than changed. This certainly is not 
 the language which would have been used if so great an
 
 OF BAPTISM. fJ27 
 
 alteration as that which is contended for Iiud been contem- 
 plated in the ritual of the Church, as the mode of adujiiiis- 
 tering baptism in private houses. Under these circum- 
 stances the court is warranted in sayin<4 that up to this 
 time the Church had not pronounced lay baptism to be 
 invalid. 
 
 Sir H. Jenner, after some further remarks, particularly 
 referred to the opinion of the bishops so late as 1712, and 
 quoted from the published j^apers of Archbishop Sharpe Opinion of 
 the following words: "Tuesday, 22nd April, 1 went to ^,'3J'''''3'|,7 
 Lambeth, we were in all thirteen bishops ; we had a long other bishops io 
 discourse about lay baptism, which of late hath made such 1"I2. 
 a noise about the town ; we all agreed that baptism by 
 any other person except lawful ministers ought to be dis- 
 couraged ; nevertheless, whoever was baptised by any 
 other person, and in that baptism the essentials of bap- 
 tism were observed, that is being dipped or sprinkled in 
 the name of the Father, &:c., such baptism was valid, and 
 ought not to be repeated."'' The learned judge observed 
 in conclusion, " It seems to me upon the whole of the Uo'loubied and 
 case, that the law of the Church is beyond all doubt, that i,"vo7i*l*ie ^ 
 a child baptised by a layman is validly baptised." And church, 
 this opinion was confirmed, and the question it is pre- 
 sumed finally settled, upon appeal to the queen in council.'' 
 
 Among the privileges conferred by baptism, it seems at Freedom sup- 
 one time to have been doubted whether the important one {J'^'ed o° "^a""' 
 of freedom was not to be included ;^ and the consequence by bapiism. 
 of this appears to have been, that baptism was withheld 
 from negro slaves, lest they should by receiving it become 
 free. Upon this Blackstone remarks,* after mentioning 
 how the law of England abhors the existence of slavery, 
 " Within this nation the infamous and unchristian practice jfl'^J^^^^"/^,^ 
 of withholding baptism from negro servants, lest they ,1,;'^. 
 should thereby gain their liberty, "is totally without foun- 
 dation, as well as without excuse. The law of England 
 acts upon general and extensive principles; it gives liberty 
 rightly understood, that is, protection to a Jew, a Turk, or 
 
 '1 Since the final seUlement of tliis question by the decision of the highest 
 court of appeal in matters ecclesiastical, several attempts have been made to dis- 
 turbit, and several minor propositions, which are obviously included in the 
 settlement of the major, have been denied. Thus, after it had been decided that 
 lay baptism generally was valid, objections were attempted to be raised to baptisms 
 by Wesleyan ministers and ministers of other sects, as being what were called 
 heretical baptisms. And it was also gravely objected that the validity of siuh 
 lay baptisms became etiele as the child grew up, and ceased as it became adult. 
 But it would only create unnecessary contusion to notice cases or opinions which 
 can have no effect upon the settled law. 
 
 •■ Escott V. Mastbi, Moore, P. C Cases. 
 
 « 3 :Mcd. 120. * 1 1^'ack. Con^. 42o. 
 
 ss2
 
 628 OF BAPTISM. 
 
 a heathen, as well as to those who profess the true religion 
 of Christ; and it will not dissolve a civil obligation be- 
 tween master and servant, on account of the alteration of 
 faith in either of the parties ; but the slave is entitled to 
 the same protection in England before as after baptism ; 
 and whatever service the heathen negro owed of right to 
 his American master by general, not by local law, the 
 same, whatever it be, is he bound to render when brought 
 to England, and made a Christian." 
 
 The above is inserted rather as matter of history than of 
 
 law, and to show the ideas that have existed formerly in 
 
 reference to this subject ; for happily at the present day 
 
 the consideration of such matters has become unnecessary 
 
 and obsolete. 
 
 Fees for bap- As to the right of the minister to receive any fee for 
 
 ''*•"• baptism, it seems that it may exist in some particular 
 
 places by prescription ; for they who have paid so long are 
 
 presumed to have at first bound themselves voluntarily 
 
 No right of tliereunto;" but no such right can exist generally ; and it 
 
 minister 10 such jg directly opf)Osed to the following constitution :—" We 
 
 fees generally. ^^ fimdy enjoin that no sacrament of the church shall be 
 
 denied to any one upon the account of any sum of money, 
 
 because if anything hath been accustomed to be given by 
 
 pious devotion of the faithful, we will that justice be done 
 
 thereupon to the churches by the ordinary of the place 
 
 afterwards." And even in those places in which fees have 
 
 been used to be paid, it is not easy to see in what manner 
 
 the payment of them could be enforced ; and it is certain 
 
 that baptism could not be withheld, if they were refused ; 
 
 iJnpiism could for thc injunctions of the GSth and GiJth canons above 
 
 not i.e refused nientioned are positive that there shall be no refusal or 
 
 or delayed lor , , , . . ' . i • , • -r.x • x xi 
 
 non-payment of delay by uunisters m christening, li the cu'cumstances there 
 a fee. mentioned arc complied with ; and the payment of foes for 
 
 performing the service docs not a[)pcar there to be con- 
 templated. ^ 
 
 Wherever in any particular parish any prescriptive right 
 
 to a fee for ba])tism may have been established, this can 
 
 only extend to sncli bajitisms as arc actually performed by 
 
 IMiniMcrnot tlu! minister of that parish ; and if any parishioner should 
 
 performing ilie take his child elsewhere to be baptised, the minister of his 
 
 da7.'rfi"i!""' P''i'''^'> <'"'>>'''^1 ^"ivo no right to demand of him the fee. Thus 
 
 preo'cripi^iolfin Burdcaux, a French Protestant, had his child baptised at 
 
 the parish, if iho the Ficucli Cliincli in the Savoy, and Dr. 1/ancasl.cr, vicar 
 
 out'ofit'"''"''"' "^ ^'- ^'lartin's, in which parish it is, together with the 
 
 clerk, libelled against him for a fee of 2s. 6d. due to him, 
 
 " Lindw. 279. " Lindvv.278; I Bum's E. L. 116. 
 
 f Sec ante.
 
 OF BAPTISM. G29 
 
 and \s. for the clerk ; a prohibition was moved for, and it 
 was urged that this was an ec-ch-siastieal fee due hy the 
 canon. Lord C. J. Holt said, " .\othinj; can be due of 
 common right, and how can a canon take money out of 
 laymen's pockets? Lindwood says it is simony to take 
 anything for christening or for burying, unless it be a fee 
 due by custom ; but then a cusloni fur any jierson to take 
 a fee for christening a child when he doth not christen 
 him, is not good ; like the case in Ilobart, where one dies 
 in one parish, and is buried in another, the parish where 
 he dies shall not have a burying fee; if you have a right 
 to christen, you should libel' for that right; but you ought 
 not to have money for christening when you do not do 
 it."^ And notwithstanding the opinions which mav have Query, whether 
 heretofore prevailed to the contrary, it aj)pears to" be at a'>y J"',;''"" '^^e 
 least very doubtful whether in any case the payment of a ^^y ci'se!"" '° 
 fee for baptism could be enforced. In the table of fees 
 signed by Lord Stowell for the j)arish of St. Andrew's, 
 Holborn, and to which we shall afterwards allude,-' there 
 is no mention of a fee for baptism, although there is one 
 specified for registering baptisms ; and wherever a fee for 
 baptism has been customarily paid, it is probable that it 
 originated in the fee for registration ; and the fact that the 
 payment might be thus explained would seem to render it 
 almost impossible to prove a custom, or to establish a pre- 
 scriptive claim to it. 
 
 When the. minister has bai)tised the child, he has a fur- Hegisicring 
 ther duty to perform in making an entry thereof in the ■'P"'''"''- 
 parish register, which is a book in which formerly all 
 christenings, marriages, and burials were recorded, and 
 the use of which is enforced both by the canon law and 
 by statute. 
 
 The parish register is said to owe its origin to the Lord ^ f'g"> <>'• 
 Vicegerent Cromwell; and the canon is said to be only a 
 reinforcement of one of his injunctions in the ytnir lo."3K, 
 and which were continued during the two succeeding jiro- 
 testant reio'ns. 
 
 It appears unnecessary to mention the somewliat nn- 
 nute directions of the canon in this respect ; since the Hpgi»itic» of 
 keeping of parochial registries of baptism and also of |;',;/;|,;*^";,,yj^_ 
 buriaP are, so fnv as regards the duties of clergymen in ;,,'c. H6.* 
 that respect, regulated by the statute 52 Geo. III. c. 14(), 
 whereby it is enacted, that registers of ])ublie and private 
 baptisms, marriages,'' and burials solemnized acconling to 
 
 ^ 12 Mod. 171 ; 1 .Salk. 33'i. » See post. Hurial. 
 
 ^ Several of the provisions relating to regisleiingbuiials have been mcniioncti 
 in this place for the sake of avoiding repetition. ^^ 
 
 " As to marriages repealed by 6 & 7 Will. 4, c. 86, sec post, " Marriages.
 
 630 
 
 OF BAPTISM. 
 
 Books for rcgis- 
 lerlng baptisms. 
 
 Baptisms and 
 biiiials per- 
 foimeJ else- 
 wliere tiian in 
 parisii church, 
 or by any other 
 than the minis- 
 ter of the parish. 
 
 In case of pri- 
 vate baptisms. 
 
 Register-book. 
 AVhere to be 
 kept, and when 
 produced. 
 
 Copies how to 
 be made and 
 verified. 
 
 the rites of our church, shall be made and kept by the 
 rector, or other the officiating minister, of every parish or 
 chapelry, on books of parchment or durable paper, to be pro- 
 vided by the king's printer at the expense of the parishes ; 
 and the particular form of the book and of the manner of 
 makino- the entries are directed accordino- to a form in the 
 schedule to the act.^ 
 
 Separate books, with the forms appropriate to each, are 
 to be provided for baptisms (whether public or private) 
 and for burials ; and every officiating minister, as soon as 
 possible after the solemnisation of every baptism, whether 
 public or private, and after every burial, shall record in the 
 proper register-book for that purpose the several particu- 
 lars pointed out to be inserted by the form of the book, 
 and shall sign the same ; and unless he is prevented by 
 sickness or unavoidable impediment, this is in no case to 
 be delayed later than seven days after the ceremony has 
 taken place.® 
 
 If the ceremony of baptism or burial is performed else- 
 where than in the parish church or chapel, having its own 
 registry, and by a person who is not the officiating mi- 
 nister of the parish, then the minister performing the cere- 
 mony must, on the same or the next day, transmit to the 
 minister of the parish a certificate in a prescribed form ; ^ 
 and the minister of the parish is thereupon to enter such 
 baptism in the register according to the certificate, adding 
 the words according to the certificate of the llev. A. B., 
 transmitted to me on the day of .^ This last- 
 mentioned section is important to be observed in the case 
 of private bai)tisms. 
 
 The register-book is to be deemed the property of the 
 parish (so that in legal proceedings it would be jiroperly 
 termed the property of the churchwardens) ; the custody 
 of it is to be in the rector or other officiating minister, by 
 whom it is to be kept in an iron chest, provided by the 
 parish, either in his own house, if he resides in the parish, 
 or in the church; and the book is to be taken from the 
 chest only for the ])urj)ose of making entries, being pro- 
 duced when necessary in evidence, or for some of the 
 pur[)osos mentioned in tlu; act.'' 
 
 At the expiration of two months after every year, copies 
 of the entries in the preceding year are to be niade by the 
 officiiiting minister or persons under his directioti, on 
 paichnuMit, to be provided by the [)arish, and the contents 
 
 •• Sec y\ppendix. 
 g Sect. 4. 
 
 <^ Sect. 3. 
 '■ Sect. 5. 
 
 •" See Appendix.
 
 Jiial 
 
 OF BAPTISM. C3l 
 
 to be verified by the minister according- to a prescribed 
 form;' and the dcclanitiuu in such fi»rm is to be written 
 on the copy, without any stamp, immediately after the last 
 entry, and tiie signature to be attested by one at least of 
 the church or cha])el wardens."* 
 
 And these copies, thus verified and attested, are to be lo whot.i to u.- 
 transmitted by post to the registrar of the (hocese, on or """'• 
 before the 1st of June in every year ; and tlie registrar of 
 every diocese, on or before the 1st of Julv, is to report to 
 the bishop whether such copies have been sent to hini, :iimI 
 if not, specially to state the default.' 
 
 If the minister neglect to verify or sign such copies and Minimcmeg- 
 such declaration, so that the churchwardens are not able ••■•I'ing to ngn 
 to transmit them, they shall, within the tiuu; rerpiired for "" ^'■'"y' 
 the transmission thereof, ceitify such default to the regis- 
 trar, who shall specially state the same in his report to the 
 bishop.™ In the cases of baptisms or burials in extra- Hapiisms in 
 parochial ])laces, where there is no church or cliapel, the ''"'^•'-p*'"^' 
 officiating minister, within one month afterwards, is to 
 deliver to the rector, &c., of the parish immediately adjoin- 
 ing, as the ordinary shall direct, a memorandum thereof, 
 signed by the parent of the child baptised; or a memoran- 
 dum of the burial, signed by the persons employed about 
 the same, together with two of the persons attending the 
 same, as the nature of the case may require; every such 
 memorandum to contain such particulars as are by the act 
 required; and such memorandum shall be entered by the 
 rector, &c., to whom it is so given, in the register of his 
 parish, and form a part thereof" 
 
 Any persons wilfully insertinii- or causing to be inserted runUhmcni for 
 false entries in the register or^the transmitted coi)i("s, or ^^'["''y •J''"'** 
 forging, altering, or counterfeitmg the same, or wiltully 
 destroying, defacing, or injuring the register-book, or know- 
 ingly signing or ceitifying any copy, false altogether or in 
 part, shall be guilty of felony,\ind transported for foin-tecn 
 years." But no rector or ofliciating minister who shall 
 discover any error to have been counuitted in the form or 
 substance of the entry of any such bajjlism or burial by him 
 solemnized shall be liable to those penalties, if lu- shall Mo<««ofron*ci 
 within one calendar month after discovery of such error, in |'^; ^ 
 
 presence of the parent or parents of the child baptised, or ,cgi»icr bwk. 
 in case of the death or absence of the respective parties, 
 then in the presence of the church or ciiaju-l wardens (who 
 shall attest the same), alter and correct the entry found to 
 be erroneous, according to the case, by entry ni the margni 
 
 J See Appendix. k Sect. 6. '^^'■'•'!-. 
 
 m Sect. 9. " Sect. 10. " Sect. 14.
 
 632 or BAPTISM. 
 
 of such book wherein such erroneous entry is made, without 
 alteration of the original entry ; and he shall sign such 
 entry in the margin, and add to such signature the day of 
 the month and year when such correction was made ; pro- 
 vided that, in the fair copy of the register so transmitted to 
 the registrars of the dioceses, the othciating minister shall 
 certify the alterations so made by him.P 
 
 The statute which we have thus far analvsed contains 
 several further directions as to registration, but it will not 
 be necessary to mention them here, as they do not in any 
 way aifect our present subject, viz. the duties of a minister 
 in the office of baptism. 
 Effect of Stat. The recent act'' passed for the civil registration of births, 
 
 6& 7 Will, 4, deaths, and marriages, expressly provides that nothing 
 therein contained shall affect the registration of baptisms 
 or burials as now by law established ,• so that, whatever 
 any parishioner, incumbent, or curate, had respectively a 
 right to insist upon with regard to the registration of bap- 
 tisms, may be equally insisted on by either party now/ AH 
 the directions therefore contained in the statute before ex- 
 plained remain in full force. 
 Additional di- The following enactments, however, of the statute 6 & 7 
 rections. "^yjn^ jy_ ^ gg^ ^^^ ^^ j^g observed in addition to those be- 
 
 fore mentioned. 
 
 If any child born in England, whose birth shall have 
 been registered according to the provisions of that act, 
 shall, within six calendar months after it has been so regis- 
 tered, have any name given to it in baptism, the parents or 
 persons so procuring such name to be given, may within 
 Minister per- seven days afterwards procure and deliver to the registrar a 
 forming rile of certificate accordinjr to a prescribed form," signed by the mi- 
 
 baptism to give . , , ,, , ° V 1,1 • ^ c \ ,.• ' i • 1 
 
 certificate, if Ulster wlio shall have performed the rite of baptism; wiiicli 
 
 required. certificate the minister is required to deliver immediately 
 
 after the baptism, whenever it shall be tlien demanded, on 
 
 Fee for ceriifi- payment of the fee of Is., which he shall be entitled to 
 
 cate, &c. receive for the same; and the registrar or superintendent 
 
 reuistrar, upon the receipt of that certificate, and upon ])ay- 
 
 ment of a fee of Ls., shall, without any erasure of the original 
 
 entry, forthwith register that the child was baptised by 
 
 such a name ; and such registrar or superintendent registrar 
 
 shall thereupon certify upon the certificate the additional 
 
 entry so made, and forthwith send the certiiicate through 
 
 the j)ost to the registrar general,' Every rector, &c,, and 
 
 every registrar, &c,, who shall have the keeping for the time 
 
 being of any register-book, shall at all reasonable times 
 
 I' Sect. 15. •! 6 & 7 \Vill.4. C.86, r jlogers's E, L, 771 , 772, 
 • Sec Appendix. ' 6 & 7 Will. 4, c. 8ti, s.24.
 
 OP MARRIAGE. (J33 
 
 allow searches to be made, and shall give a copy, certififd Scarrl.mg the 
 under his iiand, of any entry or entries in the sainc, iijjun "giM*-' book, 
 payment of a fee of 1.9. for every search, extendino; over a Fee for. 
 period of not more than one year, and 6d. additinniil for 
 every half year, and 2s. 6d. for every single certilicatc" 
 
 All persons wilfully making or causing to be muilt- any rcnwn* wilfully 
 false statements as to any of the particulars required to be "'^'""g fa'-"* 
 inserted, are to be deemed guilty of perjury." staiemcms. 
 
 Any person having the custody of any register-book, or l-osinp or .la- 
 certified copy thereof, or of any part thereof, who shall ".jgmg reginer, 
 carelessly lose or injure the same, or carelessly allow the *"^* 
 same to be injured while in his keeping, shall forfeit a sum 
 not exceeding 50/.^ 
 
 CHAPTER in. 
 
 OF MARRIAGE, AND THE DUTIES OF A MINISTER 
 IN RELATION THERETO. 
 
 Of all the various matters which are the subject of the imporianre and 
 laws of this country, none perhajis is more important than <vienioftlie 
 that of marriaoe : and this, whether we consider it as the ^"*° *""'* 
 subject of the ecclesiastical or of the common law. In 
 what manner marriage may be contracted so as to be valid 
 and indissoluble, is in itself an extensive consideration ; 
 but the various consecpiences of that contract, u])on |)rc)- 
 perty settled by or upon the contracting parties, the reci- 
 procal rights and duties of husband and wife, the rights of 
 children of the marriage, and the duties and liabilities uf 
 trustees, all these form varied and extensive subjects of 
 inquiry. 
 
 It will be obvious, however, that for our present \nir- Subjctt of the 
 pose the discussion of these matters would be unnecessary, prcs<:»i.n.,u..y. 
 and we shall endeavour, in the present chapter, to confine 
 ourselves to the consideration of that branch of the law 
 which treats of the ceremony of marriage and its iuune- 
 diate incidents; and to those only, so far as the clergyman 
 is interested in, or affected by, its provisions. Formerly, 
 marriages celebrated per presbyteruni sacris ordinibus coii- 
 stitutum were alone valid and complete as marriages in 
 this country, and those only were regular which were also 
 " Sect. 35. " Sect. 41. > Sect. 42.
 
 (334 OP MARRIAGE. 
 
 celebrated in facie ecclesise." But before the time of Pope 
 
 Innocent III. there was no solemnization of marriage in 
 
 Marriages, how the church ; but the man came to the woman's house 
 
 suieranized at ^yj^gj-g ^\^q woman inhabited, and led her home to his own 
 
 diHerent periods, , , • , n ,i ,i i h x) ^i 
 
 house, whicli was all the ceremony then used." tJy tne 
 customs of the Anglo-Saxons the marriage ceremony was 
 commonly performed at the house of the bridegroom, to 
 which the bride had been previously taken ;'^ and there 
 was an interval in this country during which marriages 
 were not had in facie ecclesise ; for, during the usurpation, 
 they were solemnized before justices of the peace, an inno- 
 vation probably introduced for the purpose of degrading 
 the clergy,*' but it was afterwards considered necessary to 
 pass an act of parliament to confirm the validity of such 
 marriages. But although the clergyman might have been 
 punishable, it does not appear that it was, previous to the 
 first Marriage Act,^ absolutely necessary to the validity of 
 a marriage that it should take place in facie ecc'esia^, for 
 many marriages solemnized in the Fleet Prison or its liber- 
 ties, or in INIay Fair, were, before that time, considered valid 
 though irregular marriages.*" As no marriage, therefore, 
 could formerly have taken place without the intervention 
 of a clergyman, the subject was of more universal interest 
 Recenialtera- to him than at present; for the laws of a neighbouring 
 lionof the law. go„nt,.y j^ this matter have recently been introduced here; 
 and tiie intervention of a clergyman in marriage is now at 
 the option of tlie contracting parties, and is by no means 
 requisite by law to complete the validity of the contract.'^ 
 Marriages ac- Marriage, therefore, is no longer necessarily the subject 
 
 cording to liie Qf ecclesiastical cognizance : nor does it necessarily in any 
 blTsled church.' manner concern the ecclesiastical^ body, or its individual 
 members ; but whenever the parties may choose to con- 
 tract marriage according to the forms of the church of 
 England, the clorgvman is still bound to solemnize it ac- 
 cording to prescribed forms, and to observe all the laws re- 
 lating to it in the same manner as if no such general 
 license to marry without his intervention by law existed.'' 
 Kssentialsto ^n ordcr.to constitute a valid marriage the parties must 
 
 validity of mar- bo able to contract, willing to contract, and nuist actually 
 "^g*^- contract' in the proper forms and solemnities, required by 
 
 law to be observed in the mode in which they have chosen 
 to adopt. In each of these requisites, where the parties 
 
 » Ilacon's Al)r. Marriai^c ('. ; Salk. 1 ]9. 
 
 '• Moor, 170; pcT (ioldinpham, niTjiifiif/ii. 
 
 = Kogers, E. 1- Marriage, and cases llieic cited. 
 
 •> liacon's Abr. Mairiage C, note. 
 
 « 26 Geo. 2. r. 'Si. ' 1 I.cc. 20 ; Vin. Abr. r.nroii and Feme. 
 
 « Sec 6 & 7 Will. IV. c. 85. '' Ibid. sect. 1. ' 1 Ulack. Com. 433.
 
 OF MAimiAGE. f335 
 
 intend to contract marriage accordinnr to the forms of the 
 church of Engh\nd, tlie clery;yiiiau is directly or indirectly 
 concerned ; for if he should knowingly perform the cere- 
 mony between those who are unable or unwillini; to con- 
 tract, he would be equally liable to punishment as if he 
 performed it without observing the proper lorms and cere- 
 monies prescribed. 
 
 First, then, they must be able to contract, which gene- Partit* mu»i be 
 rally all persons may do except in the followiuLT cases : able lo comraci. 
 
 If either of the j^arties has anotlun- iuisband or wife Kir»nliMt»iliiy. 
 living, although such wife or husband has been beyond Kormer wife or 
 seas, or under sentence of transportation for life, or the '>u»i''«>Jli«inj{. 
 like, besides the penalties consequent upon such a mar- 
 riage as a felony, the second marriage is, to all intents and 
 purposes, absolutely void, or rather a ceremony has been 
 performed, which is no marriage but a mere nullity ;'' and 
 the clergyman who performed such ceremony, having no- 
 tice of the prior marriage, would be liable to punishment ; 
 and if he had notice of anything which might fairly raise 
 his suspicions as to whether there had been a |)rior mar- 
 riage, he would be bound to make all reasonable inquiry 
 before performing the ceremony. 
 
 A prior marriage is valid, and must be taken notice of as In wiuicn 
 
 t%e» 
 
 such in this country, thou<ih it has been contracted in ^^"i'" ''** ^^" 
 
 0111 i" !■/■• ^ former mar- 
 
 •Scotland, or beyond seas, and m a foreign state, suf)pos- riage. 
 ing it to be valid according to the law of the country where Foreij^n mar- 
 it has been contracted ; and if its validity is questioned, it riagcs. 
 must be determined by the law of the country where it 
 was contracted.' 
 
 The ecclesiastical courts of this country entertain ques- 
 tions of forei<rn marriaiies, not only of British subieets, 
 but also (to prevent a failure of justice) examme nito the 
 validity of the marriages of aliens ; and in considering the 
 factum of a foreign marriage it is, in a general sense, (piite 
 unimportant whether the foreign law, which is to dc-ti-r- 
 mine its validity, hajipens to be more strict than our own, 
 as in France, or altogether lax and indefinite (by com- 
 parison) as in Scotland. Accordino- to general principles, 
 a marriage unduly celebrated in France is |)rima facie a 
 nullity in England; whereas a marriage lawfidly con- 
 tracted in Scotland is valid in the courts of this country, 
 without reference to its irregularity. In either case the 
 rules of English law would be inapplical)le, and for the 
 purpose of investigating the question, they would be super- 
 
 k 2 Hagg. Con. 129 ; 2 Phil. 321. 
 
 ^ Lei loci coninictus, Sciimshiie V. Scrimihire, 2 Ilngg. Con. 39o ; Middlt- 
 ton V. Saveriii, 2 Ilagg. Con. 437.
 
 636 OF MARRIAGE. 
 
 seded by the law of the country in which the marriage had 
 
 taken place. In such cases, although the inquiry is in an 
 
 English court, and the decree the act of an English judge, 
 
 the law of England withdraws altogether, and leaves the 
 
 legal question to the exclusive judgment of the law of the 
 
 country where the marriage took place.™ 
 
 Exception to The only important exception to this rule of the lex loci 
 
 tl'lt-^/"'" ""' contractus, having long before been established by uni- 
 
 , * , , versal opinion, was fully recognised by the statute 4 Geo. 
 
 Ambassadors ^^^ ^i , . ' . . • , P , i "^ , i i , i- i. 
 
 chapel houses. IV. c. 91 , which recitmg that it has been thought expedient 
 Factories. to relieve the minds of all his majesty's subjects from any 
 
 British lines. doubts concerning the validity of marriages solemnized by 
 a minister of the church of England in the chapel or house 
 of any British ambassador, or minister residing within the 
 country, to the court of which he is accredited, or in the 
 chapef belonging to any factory abroad, or in the house of 
 any British subject residing at such factory ; as well as 
 from any possibility of doubt concerning the validity of 
 marriages solemnized within the British lines, by any 
 chaplain or other person officiating under the orders of 
 the commanding officer of a British army abroad, enacts, 
 that all such marriages shall be deemed and held to be 
 as valid in law as if the same had been solemnized within 
 his majesty's dominions, with a due observance of all forms 
 required by law." And as to this it has been decided that 
 a marriage abroad in the house of a British ambassador, 
 where one of the parties is a British subject, is valid, as 
 being within the operation of this act.° But where a mar- 
 riage was celebrated abroad, which was not valid according 
 to the lex loci, in an English church, in the presence of the 
 English consul, and by a clergyman appointed and paid 
 by the English government, it was nevertheless held in- 
 valid : there being no English ambassador accredited there, 
 nor any British factory. i* 
 Rules by wliich The following rules maybe considered as satisfactorily 
 fo'r^ciVn'ma^-" establishing the acknowledged law of this subject, 
 riases may be 1st. That the validity of the marriage, both in respect of 
 
 ^*^^^^'i' the competence of the paities to contract, and of the so- 
 
 lemnities with which they contract it, is to be decided with 
 reference to th(! law of the place in which the marriage is 
 contracted; and that if it be vaWd, secundum lecjcm loci 
 contractus, it must be deemed valid in every other place. 
 
 2nd. But the lex loci contractus is not admitted, when 
 it violates the law of nature, public morals, or the policy 
 
 ™ 2 Ilaeg. Con.. 09. " 4 Geo. 4, c.91. 
 
 " Uoijii V. I'ettijciiii, 2 Curt. 251 . i' Kent v. Biir»ess, 1 1 Sim. 3()1.
 
 OF MARRIAGE. 037 
 
 or institutions of that state in which its vah(hty is sought 
 to be estabhshed. 
 
 3rd. It is not admitted when the parties have no bona 
 fide domicile in loco coulruclus, but have resorted thither 
 to evade a prohibitory hiw in force in the place of their 
 actual domicile, extending to marriage contracted in any 
 other country, in terms or in efiect, and which law has 
 made void a marriage contracted in contravention of its 
 provisions. 
 
 4th. The parties arc excused from conforming to the lex 
 loci contractus, if they belong to a state, the subjects of 
 which form a separate and distinct community in the fo- 
 reign country in which they arc married, as in the case of 
 the British factories established in vaiious parts of Europe 
 and Asia; or if they belong to the state which has taken 
 hostile possession, and is in the occupation of the foreign 
 country ; or if they belong to the state whose ambassador 
 is established in the foreign country. In these instances 
 the parties may, observing certain conditions as to place, 
 celebrate their marriage according to the law of their own 
 country. 1 
 
 With respect to Jews and Quakers, their own matrimo- Maniagcsof 
 nial law is acknowledoed : that is to say, althouiih livinjr in •''^** ""'^ 
 this country, they possess the privilege of being married 
 according to the ceremonial of their own religion ; but both 
 the parties to such marriage must be Quakers' or Jews' 
 respectively, otherwise the privilege does not exist, and 
 the marriape, accordins; to such ceremonial onlv, would 
 not be valid. 
 
 If a prior valid marriage has been had or solemnized, a .Marriage not 
 decree of separation or divorce a mensu et t/ioio tloes not ']|'>^*''*e«| h ■ 
 so tar dissolve it as to allow either party to contract a se- 
 cond marriage; and if such second ceremony was per- 
 formed, it would equally be a mere nullity ; nor can a prior 
 marriage, contracted in England, be so far annulled in a 
 foreign state by a divorce a vinculo mutrimouii, between 
 parties not bona fide domiciled there, as to enable them to 
 contract a second marriage. But if the parties, having 
 been married in this country, had a bona fide domicile in 
 a country which allowed of such divorces, it would be 
 otherwise.' 
 
 If, after a prior marriage, and while a husband or wife 
 is still living, the ceremony of nuuriage should be per- 
 
 n 1 Bulge on Conflict of Laws, 190. 
 
 r Harford v. Morris, in 1781, before ihe Delegates. 
 
 8 Lindo V. Belisario, 1 Mag. Con. 21G, wIktc si-e the form of the crrcn.ony. 
 
 ' See the judgment of Dr. Lushington in lieutlcii v. Ik^izlcx/, 3 Hag. 639.
 
 638 OF MARRIAGE. 
 
 formed, that ceremony, being a nullity, will not prevent 
 the party to it, who had not been previously married, from 
 contracting a second marriage at any time. 
 Second (lis- 2. The next legal disability to contract marriage is want 
 
 ability. of age. This is sufficient to avoid all other contracts on 
 
 Want of age. acco'unt of the imbecility of judgment of the parties con- 
 tracting; a fortiori, therefore, says Blackstone, it ought 
 to avoid this, the most important of all contracts. There- 
 fore, if a boy under fourteen, or a girl under twelve years 
 of age, marries, this marriage is only inchoate and imper- 
 fect; and w'hen either of them comes to the age of consent 
 aforesaid, they may disagree and declare the marriage void, 
 without any divorce or sentence in the spiritual court. 
 This is founded on the civil law. But the canon law pays 
 a greater regard to the constitution than the age of the 
 parties ; for if they are hahiles ad niatrimonium, it is a good 
 marriage, whatever their age may be. And in our law it 
 is so far a marriage, that, if at the age of consent they 
 agree to continue together, they need not be married again. 
 If the husband be of years of discretion, and the wdfe under 
 twelve, when she comes to years of discretion he may dis- 
 agree as well as she may ; for in contracts the obligation 
 must be mutual ; both nmst be bound or neither ; and so 
 it is vice versa, when the wife is of years of discretion, and 
 the husband under.'' 
 Former .lis- Connected with this last disability of want of age, it was 
 
 ability of minors ^t one period the law of this country that all marriages 
 iTurc^nsert"'" celebrated by license, where either of the parties was under 
 the age of twenty-one years (not being a widow or widower), 
 without the consent of the father, or if he were not living, 
 of the mother or guardians, should be absolutely void ; 
 such a provision, however, was found to be contrary to 
 Repealed. principles of general policy, and has been repealed. Such 
 
 a marriage, although without consent, is now valid, and 
 the parties could not again contract." 
 Third disability. 3. Another legal disability to contract marriage is where 
 Parties within the parties are related by consanguinity or aflinity, such 
 the prohibiied consanguinity or aflinity being defined according to the 
 degrees of con- j^j ^^j ^^^^^^. ^^ ^j^^ Lgyitical law. That law is that 
 
 sanKUiiiity or i , , . l c \ ' i 
 
 affinity. none of you shall approach to any that is next ot km to 
 
 uncover their nakedness j^ which words, being general, 
 must be understood and expounded by the examples from 
 the Gth to the 2()th verse; among which we find many 
 prohibitions to collaterals in the third degree, both in 
 aflinity and consanguinity; but there is no example of 
 
 " 1 Black. Com. 436, and see note. " See 4 Geo. 4, c. 76. 
 
 y Leviticus, chapt. 18. v. 6.
 
 OF MARRIAGE. C39 
 
 collaterals in the fourth degree, either in affinity or con- 
 sanguinity, and therefore the law of marriage opens to re- 
 lations in the fourth degree; and the Jewish lawyers, in 
 computing their deorees^ computed them according to the Mo.ieofcom- 
 natural order of things; that is, from the propositus up to puiiog. 
 the common stock, and so down to the other relations, 
 which is the fair and natural order of computing proximity ; 
 and in this order of comj)utation, cousin gcrmans are held 
 to be of the fourth degree, and to have liberty to marry/ 
 
 This, likewise, was the ancient sense of the Christian 
 Church, and even of the Church of Rome, in the time of 
 Pope Gregory; for, in writing to Austin, Bishop of Can- 
 terbury, he says, in quartu generatione contractu mutri- 
 monia minime solverenttir ; but afterwards, when they found innovations of 
 that dispensations for incestuous marriages brought great '''« cimrch of 
 profit to the Church of Rome, and knowing it had obtained '^""^^ °" ">« 
 
 ^ . II • 1 /-ii • ■ ^^1 11- 1 r- I ancitnt manner 
 
 universally ni the Uhnstian Church that it was lawful to of compuiing 
 marry in the fourth degree. Pope Alexander II. began a degrees, 
 new computation of degrees; and he said that the secular 
 computation, which was the computation of the civil law, 
 was not properly adapted to the decisions touching inces- 
 tuous marriages; but they ought to compute up to the 
 common stock, where the relation joined, because there 
 the blood vv^as connected ; and therefore they computed 
 the degrees according to the distance of the person remotest 
 from the common stock ; for, according as the remotest 
 was distant from the common stock, so they computed the 
 relation between the parties ; so that the first cousins that 
 are in the fourth degree, by the received computation in 
 the Mosaic and civil law, were now by the canonical com- 
 putation thrown into the second degree; and by this alter- 
 ation of the computation of degrees, they forlnid not only 
 first cousins, but second and third cousins to marry, imless 
 they obtained dispensations.^ 
 
 these innovations, having been introduced by the Church 
 of Rome, occasioned in this country the passing the statute Repudiaie<l in 
 32 Hen. VIII. c. 38, by which it was declared that no re- ;';;^J"°""''> ^'^ 
 servation or prohibition (God's law except) shall trouble or "* " *^' 
 impeach any marriage without the Levitical degrees; and 
 that no person, of what estate, degree or condition soever 
 he be, shall be admitted to any of the spiritual com-ts withm 
 the king's realm, or any of his grace's other lands and do- 
 minions, to any process, plea or allegation contrary to the 
 
 statute.'' 
 
 What these degrees are by our laws held to be is set 
 
 ^ Bacon's Abr. Marriage A. '^ Vaugli. 210; Bacon's Abr. ibid, 
 
 b 32 Hen. 8, c. 38.
 
 (340 OF MARRIAGE. 
 
 Archbishop forth in a table called Achbishop Parker's Table, referred 
 Parker's J'able. to in the canons of 1603, and copies of which are found in 
 the Book of Common Prayer, and hung up in churches; 
 and it is declared that all marriages made and contracted 
 within those degrees shall be adjudged incestuous and un- 
 lawful, consequently, shall be dissolved as void from the 
 beginning ; and the parties so married shall, by course of 
 law, be separated. 
 
 And since the statute above mentioned, it has been clearly 
 agreed, that if the spiritual courts proceed to impeach or 
 dissolve a marriage out of the Levitical degrees, that then 
 the temporal courts are to prohibit them; for by that sta- 
 tute all marriages that are out of those degrees are declared 
 Ecclesiastical to be good and lawful ; and therefore, if the spiritual court 
 courts to be pro- molcst pcrsous in doing that which is declared lawful to be 
 hibitediitbey ^jQj^g l^y ^i^g statutes of the realm, they are by the tem- 
 'ri"3g?notTiiiiin poi'al courts to be prohibited, because they exceed their 
 the°prohibited jurisdiction, thus bounded by the temporal law ; but where 
 degrees. ^j^g jg^^ jj^^g ^q^ bounded them, their jurisdiction still con- 
 
 tinues ; and therefore, within the Levitical degrees, they 
 are still judges of incest.*^ 
 P.ohibiiion All marriages within the third degree according to the 
 
 extends to rela- Jewish computations are equally void, whether for con- 
 tions by affinity, gano-uinitv or affinity ; thus, the sister of a deceased wife 
 
 and to illeijili- . ''.,•'1 • 1,1 -p? -^'j ix 
 
 mate relations. IS considered as a Sister, and the wife s sister s daughter as 
 a niece ; and it seems that a person is restrained from 
 marriage with illegitimate relations within the prohibited 
 degrees, as much as with legitimate ones, because the 
 rules of prohibition of marriage arise out of natural rela- 
 tionship.'' 
 
 Notwithstanding the disability to contract marriage 
 
 within these prohibited degrees, the common law courts 
 
 were in the habit of interfering to prohibit the spiritual 
 
 court from bastardizing the issue after the death of one of 
 
 Former distinc- the parties; and this created what has been called the un- 
 
 tion of marriages natural distinction between marriages voidable and void;* 
 
 void or voidable j ^ . ^j marriage was good or bad in law, just as 
 
 for this cause ' .' „ , ^. . , ® , 1 1 . i 1 
 
 the attention of the si)n-itual courts happened to be drawn 
 
 to it during its continuance, 
 does not now This anomalous condition of the law, however, now no 
 
 exist ; all such longer exists ; for it has been recently enacted that all 
 marriages are niarriagcs, whicli shall hereafter be celebrated between 
 now vol . persons within the prohibited degrees of consanguinity or 
 
 affinity, shall be absolutely null and void, to all intents 
 
 and purposes whatsoever. But marriages which had been 
 
 <• Vaugh.206; Bacon's Abr. ibid. •> 1 Hag. Con. 352. 
 
 I' 1 Curleis, 188.
 
 OF MARRIAGE. C4 J 
 
 contracted previously to the passing of that statute within 
 the prohibited degrees oUtffinitij are declared good, except 
 in those cases where a suit was at that time depending. 
 Marriages, however, within the jjrohibited degree of con- 
 sanguinity, contracted previously to that time, arc not 
 declared good, but remain voidable as before.' 
 
 4. Another disability to contract marriage is want of Fourth disa- 
 reason. It w^as formerly adjudged that the issue of an bility ; want of 
 idiot was legitimate, and consequently that his marriage reason, 
 was valid ;s^ a strange determination, as Blackstone has 
 observed, since consent is absolutely requisite to matri- 
 mony, and neither idiots nor lunatics are capable of con- 
 senting to anything ; and therefore the civil law judged 
 much more sensibly, when it made such deprivations of 
 reason a previous impediment, though not a cause of 
 divorce if they happened after marriage. And modern 
 resolutions have adhered to the reason of the civil law, by 
 determining that the marriage of a lunatic, not being in a 
 lucid interval, was absolutely void. But as it might be 
 difficult to prove the exact state of the party's mind at the 
 actual celebration of the nuptials, upon this account (con- 
 curring with some private family reasons)'' the statute 15 
 Geo. II. c. 30, has provided that the marriage of lunatics 
 and persons under phrenzies (if found lunatics under a 
 commission, or committed to the care of trustees by any 
 act of parliament), before they are declared of sound mind 
 by the Lord Chancellor or the majority of such trustees, 
 shall be totally void.' 
 
 In all these last-mentioned cases, there has been no 
 prior valid marriage, and the parties who may have ap- 
 parently contracted under such circumstances, are never- 
 theless at liberty to marry at any future time. There are voidable mar- 
 some other cases in which marriages duly solemnized are riages. 
 voidable, but into these it does not appear necessary here 
 to enter, since in all such cases the prior marriage is valid, 
 and is so to be considered by the clergyman, until a 
 decree has been pronounced to the contrary in the proper 
 court. 
 
 Secondly. The parties must be willing to contract mar- second essential 
 riage: consensus non concubitus facit vuptias, is the maxim to validity of 
 of the civil law in this case, and is adopted by the common ^J"'"^''' *'"''" 
 law; so that if it could occur that a party were married 
 forcibly, and against his or her will, the ceremony would 
 in such case be a nullity, and some of the cases already 
 
 f 5 & 6 Will. 4, c. 54. ? Koll. Abr. 357. 
 
 h See private act, 23 Geo. 2, c. 6. '1 Black. Com. 438. 
 
 TT
 
 642 OF MARRIAGE. 
 
 mentioned, where parties are unable to contract, may 
 perhaps be equally referable to this head. 
 Third essential Thirdly. Lastly, the parties must actually contract in the 
 to validity of proper fomis and ceremonies required by law. What are 
 
 marriage ; must i r j • i ii • • 
 
 be accordiniT to ^uch proper torms and ceremonies, where the marriage is 
 some form sane- according to the rites of the Established Church, will 
 tioned by law. appear ill the following pages. The other forms in which 
 marriage may be had are entirely regulated by, and de- 
 pendent on, the statute 6 & 7 Will. IV. c. 85: by which it 
 What marriages is declared that the marriage of any persons, knowingly 
 are void under 6 and wilfully, under the provisions of that statute— 
 " 85 not beincr 1- ^^ anyplace other than the church, registered 
 
 celebrated ac- building, othce, or other place specified in the notice 
 
 cording to the and Certificate ; 
 
 Established ^- ^'' without due notice to the superintendent 
 
 Church. registrar ; 
 
 3. Or without certificate duly issued; 
 
 4. Or without license, in case a license is neces- 
 sary under that act; 
 
 6. Or in the absence of a registrar or superintend- 
 ent registrar, where his presence is necessary under 
 that Act, shall be null and void."" 
 Preliminaries I^ the parties are under none of the disabilities before 
 
 necessary to a mentioned, and wish to contract marriage according to 
 marriage by a ^[^g forms of the Established Church, they must proceed, 
 in the first instance, either by publication of banns or by 
 license, or by giving notice to the superintendent regis- 
 trar and obtainino- his certificate. 
 Banns. The word banns is of Saxon origin, and signifies publi- 
 
 cation or proclamation.' Its institution, as a means of 
 publicity, may, it is said, be referred to the fourth Lateran 
 Council, A. D. 1215, held during the pontificate of Inno- 
 cent III., and was adopted from the Roman Catholic 
 Church into our canons at the Reformation. This pub- 
 lication for three several Sundays or holidays, unless a 
 faculty or license had been obtained, was enjoined by the 
 canon law ; and by the rubric it is ordered that the banns 
 of all that are to be married together must be published 
 in the church three several Sundays or holidays, in the 
 time of divine service, immediately after the sentences 
 for the oil'ertory.'" The particular time and place, how- 
 ever, for the publication of banns has been altered by 
 statute, and it has been enacted by statute 4 Geo. IV. 
 Time, place. c. 76, that from and after the 1st November, 1823, all 
 and mnniier of ijmi,,s of niatrimonv shall be published in an audible man- 
 
 publication ot j i 
 
 l^aiHis. k 6 & 7 Will 4, c. 8r), s. 42. ' Rogers's E. L. 509. 
 
 '" Rubric in Office of Matrimony.
 
 OF MARRIAGE. 643 
 
 ner, in the parish church or in some public chapol, in 
 which chapel banns of matrimony may now, or may here 
 after be lawfully published, of or' belonging to such parish 
 or chapelry, wherein the persons to be married shall dwell, 
 according to the form of words prescribed by the rubric 
 prefixed to the office of matrimony in the Book of Com- 
 mon Prayer, upon three Sundays preceding the solennn"- 
 zation of marriage, during the time of morning service, or 
 of evening service (if there shall be no morning service in 
 such church or chapel upon the Sunday ui)on which such 
 banns shall be published), immediately after the second 
 lesson;" and whensoever it shall happen that the pei'sons 
 to be married shall dwell in divers parishes or chapelrics, 
 the banns shall in like manner be published in the church, 
 or in any such chapel as aforesaid, belonging to such 
 parish or chapelry wherein each of the said persons shall 
 dwell, and that all other the rules prescribed by the said 
 rubric concerning the pubhcation of banns and the solem- 
 nization of matrimony, and not hereby altered, shall be 
 duly observed, and that in all cases where banns shall 
 have been published, the marriage shall be solemnized in 
 one of the churches or chapels where such banns shall 
 have been published, and in no other place whatsoever." 
 
 These provisions are so plain and simple that they seem 
 to require no further explanation. Where the parish where church 
 church or chapel of any chapelry is demolished in order is under repair, 
 to be rebuilt, or under repair and disused, it is by the or ^itmoliihed 
 same statute provided that banns maybe proclaimed in ^'"Po""}- 
 the church or chapel of any adjoining parisli or chapelry, 
 in which banns are usually proclaimed, or in any ]ilace 
 licensed by the bishop for divine service during the disuse 
 of the church, or in any consecrated' chapel of such parish 
 or place which the bishop may order and direct; but as 
 it is enacted that the marriage must be solemnized in one 
 of the churches or chapels where the banns have been 
 published, and in no other place whatever,i' there is no 
 provision for the possible case of a church demolished in 
 order to be rebuilt, or destroyed in any other manner, 
 between the times of publication of the banns and so- 
 lemnization of the marriage. 1 It would probably be 
 
 " It may probably be inferred from this alteration that it was not customary 
 at that time to read the sentences of the offertory generally on every Sunday. 
 
 4 Geo. 4, c. 76, s. 2. 
 
 P Sect. 13. , • , 1 
 
 1 A recent case may be remembered where this difficulty might have 
 occurred, in the case of a church in Southwark, which was almost destroyed by 
 fire, and where the parties, in some peul, were mjnied amongst the slill 
 smoking ruins. 
 
 T T 2
 
 644 OF MARRIAGE. 
 
 sufficient in such a case, to conform as nearly as possible 
 
 to the statute ; for where, before the passing of the above 
 
 statute, a marriage had been solemnized on the site or 
 
 ruins of a church, and the banns had been published in 
 
 the church of the adjoining parish, it was held that the 
 
 marriage was good, for that the parties had done all they 
 
 could to comply with the law.'' 
 
 Banns must be We shall have occasion to mention hereafter in what 
 
 published where places, churches or chapels, marriages, according to the 
 
 be'solemnized. "^^^ ^^ ^^^^ Church of England, are to be solemnized ; 
 
 here it may be sufficient to observe, that in all places 
 
 where marriages may be solemnized, there also the banns 
 
 must be published. 
 
 The mode which appears to have been contemplated by 
 the statute 6 & 7 Will. IV. c. 85,"" seems to have been that 
 the banns should be published in the parish church, al- 
 though the marriage was solemnized in the chapel licensed 
 under the provisions of that act ; for by that act there was 
 no authority given for the publication of banns in such 
 chapels ; that authority, however, was given in the fol- 
 lowing year by the statute 1 Vict. c. 22 ; and by the same 
 act it was declared, that where the parties to any marriage, 
 intended to be solemnized after publication of banns, 
 should reside within diflerent ecclesiastical districts, the 
 banns for such marriage should be published, as well in 
 the church or chapel in which such marriage should be 
 intended to be solemnized, as in the chapel licensed under 
 the provisions of the 6 &; 7 Will. IV. c. 85, for the other 
 district within which one of the j)arties was resident; and 
 if there should be no such chajiel, then in the church or 
 chapel in which the banns of such last-mentioned party 
 might have been legally published if the said act had not 
 been passed.* 
 No clergyman This, therefore, now renders it imperative on the cler- 
 shoukl soiem- oyman, wlicrc the marriage is by banns, to solemnize it 
 b'uf in the phice "^ ^^ Other place than where the banns have been pub- 
 where the banns lished : and where either of the parties are living within a 
 have been pub- district ill which tliei'e is a chapel, licensed in such manner 
 as we shall j)resently mention for solemnization of mar- 
 riages, then that chapel, and not, as it seems, the parish 
 church, is the proper place for the publication of the banns. 
 Seven days' No parson, vicar, minister or curate is ohlujed to publish 
 
 notice of names, ^jj^^ banns of marriage between any persons whatsoever, 
 
 place and tune , , o , ■ i i ii 7 . .7 
 
 of abode of the ^nilcss the persons to be married shall, s<;ye« days at the 
 parlies, to be least before the time required for the first publication of 
 
 given to the 
 
 minister. '' Slallwnod v. Tredgear,^ Phill.287. 
 
 f See sects. 26 and 29. « 1 Vitt. c. 22, s. 34.
 
 OF MARRIAGE. (J45 
 
 such banns, deliverer cause to be delivered to such parson, 
 vicar, minister or curate, a notice in writing-, dated on the 
 day on which the same shall be so delivered, of their true 
 christian names and surnames, and of the house or houses 
 of their respective abodes witliin the. parish or chapclrv, 
 and of the time during which tliey liave dwelt, inhabited 
 or lodged in such house or houses respectively.' 
 
 It will be here observed, that although the clergyman Such notice not 
 is not obliged to publish the banns without this notice, necessarily to i.e 
 yet neither is he forbidden to ])ublis]i them without that, J,"'!',"""^ ^^ '*'" 
 or indeed without any other particular notice. In this 
 respect, therefore, he is left to act according to his discre- 
 tion, or to any general rules he may think proper to make 
 upon the subject in his particular parish. In a case in 
 1801, the Lord Chancellor commented severely upon what Opinion of 
 was declared in an affidavit made by the clerk to have ^f'l Eidon. 
 been the practice of the parish church at Lambeth, namely, 
 that it was not customary to make any inquiry as to the 
 residence of parties applying to be married, the marriage 
 in that case, as it appears from what is said by the Lord 
 Chancellor, having been by banns." 
 
 As the legislature has most anxiously provided for the Clergyman »iio 
 
 dfi £• 1 • 1^ i • • 1 dispenses with 
 
 ergyman the means ot knowmg and ascertaunng wlio ,he notice, must 
 
 the parties are who apply to him for the publication of take the pos- 
 
 their banns, by allowing him to require due notice to be ^'bie consc- 
 
 given, he must take upon himself the consequence of his 'l"^""*- 
 
 neglect, if he chooses to dispense with that notice, and if 
 
 it should prove that the parties were not entitled to have 
 
 had the banns published in that parish. Upon which 
 
 subject the following remarks were made by Lord Eldon : — 
 
 " With regard to the clergyman, a notion seems to prevail, Remarks of 
 
 that every thing is correct," if a paper describing the i)arties J:"''' '"''.'J"" °" 
 
 111*111 1 ] 1 ^'*" ur«n 1 11 L ui 
 
 between whom banns are to be published, bemg handed publication 
 up to the clergyman in the usual manner during the without notice, 
 service, he publishes them without more. It is true that 
 a marriage by banns is good, though neither of the parties 
 was resident in the parish; but if a clergyman, not using 
 due diligence, marries persons, neither of whom is resident 
 in the parish, he is liable at least to ecclesiastical censm-o, 
 perhaps to other consequences. It has been imiformly 
 said, especially as to marriages in London, that the cler- 
 gyman cannot possibly ascertain where the parties are 
 resident; but that is an objection which a court, before 
 whom the consideration of it may come, caimot hear. 
 The act of parliament has given the means of makmg the 
 inquiry, and if the means provided are not sulHcient, it is 
 
 ' 4 Geo. 4, c. 76, s. 7. " Priestleii v. himb, 6 Vcs. 421.
 
 646 
 
 OF MARRIAGE. 
 
 not a valid excuse to the clergyman who has not used 
 those means, that he could not find out where the parties 
 were resident, or either of them. If he has used the means 
 given to him and was misled, he is excusable ; but he can 
 never excuse himself if no inquiry was made."* 
 
 And in another case, Lord Eldon, alluding to the very 
 heavy penalties inflicted by the canon law upon clergymen 
 Cleaning of due celebrating marriage without license or a due publication 
 
 f <if Knnnc cfnro " tlTCi+ cnnli rlno tiiiKli<^ci + mii rrnict ViP mtpr- 
 
 pt 
 
 banns. 
 
 says. 
 
 Publication of 
 banns in false 
 names. 
 
 Effect of, for- 
 meily. 
 
 Present state 
 of the law. 
 
 preted a publication of banns by persons having, to the 
 best of their power, informed themselves that they publish 
 banns between persons resident in the parish." ^ 
 
 In a case before Lord Stowell, he expressed his regret 
 at the loose practice in giving notice of banns; but he 
 does not so strongly allude to the penal consequences to 
 the clergyman.^ 
 
 The publication of banns in false names seems, so far 
 as the clergyman is concerned, to be included in all the 
 observations made by Lord Eldon ; for although he might 
 not have been able to detect the fraud, yet if he had pub- 
 lished the banns without notice, and thereby prevented 
 himself from attempting to detect it, it seems there would 
 be no excuse. 
 
 As to the effect of the publication of banns in wrong 
 names, there has been some considerable variation in the 
 law. Formerly, as Lord Stowell says, the publication of 
 false names formed an impedimentum dirimens, invalidating 
 the marriage i/i totu ; and this, he says, arises from the 
 very nature of the thing, and the intent and nature of the 
 publication.'' 
 
 But the law, as now settled by the statute 4 Geo. IV. 
 c. 76, is more agreeable to reason and common sense. By 
 that statute it is provided, that if any person shall know- 
 ingly and wilfully intermariy without due publication of 
 banns, the marriages of such persons shall be null and 
 void to all intents and piu'poses whatsoever.'' Upon which 
 it has been decided, that both parties must have been cog- 
 nizant of the undue publication before the marriage was 
 celebrated ; for it is not suHicient merely to show that the 
 knowledge existed after the marriage had taken place. So 
 that, in fact, no marriage by banns is voidable on account 
 of any mistake or error in names of both parties, or even 
 of the fraud of one party; but the marriage can only be 
 vitiated by such circumstances of wilful fraud and con- 
 
 Jt Nicholson v. Sijiiire, 16 Ves. 261. y Prieitley v. [.amh, 6 Ves. 421. 
 
 ^ Pouget V. Tomkins, 2 Hagg. Con. 146. 
 
 a Sullivan v. SidUvaH, 2 Hagg. Con. 2.02. ^ 4 Geo. 4, c. 76, s. 22.
 
 OP MARRIAGE. G47 
 
 spiracy between the contracting parties, as would vitiate 
 any transaction whatsoever.*^ 
 
 It would therefore be of Httle practical use, even if it 
 appeared to fall more immediately within the scope of tins 
 work, to enter into the various cases in which a wrong 
 publication of names has been, to use the language of 
 Lord Stowell, held to be impedimentum d'irimens or not; 
 nor does it seem possible to lay down satisfactorily any 
 rules with regard to the evidence of fraud, that would be 
 required to determine the character of the transaction ; 
 each case in that respect must depend upon its particular 
 circumstances. 
 
 There is one case in particular where a clergyman not Clergyman ce- 
 nsing proper precaution, nor availing himself of the pro- le'iiatmg mar- 
 tection which the law gives him, previously to solemnizing paf,tes**^one^of 
 matrimony, may subject himself to much inconvenience whom is a ward 
 and to very serious consequences, as if he should solenmize of court, 
 marriage between parties, one of whom was a ward of the 
 Court of Chancery, without the leave of that court. In 
 such a case it has been held, that it would be no excuse 
 to the clergyman that he did not know the fact that the 
 party was a ward of court, for a matter of this kind 
 appears to be one of vihich every person at his peril is con- 
 cerned to take notice.'' And, in an old case, the clergy- 
 man appears to have been committed, and remained long 
 in custody, although he was ignorant of the fact.** IVow, 
 however, the usual course under such circumstances ap- 
 pears to be, that the clergyman is ordered to attend in 
 court on a given day, and if it shall then appear that lie 
 used all proper precaution, and was not aware that the 
 party was a ward of court, he would be deemed excul- 
 pated and absolved from further consequences ; otherwise 
 he would be committed to prison for contempt of court.*" 
 Where the young woman married appeared evidently to 
 be under age. Lord Rosslyn, then Lord Chancellor, severely 
 reprimanded the clergyman." 
 
 The form of words in which the publication of the banns Form of wor.!.; 
 of marriage is to be made, is prescribed by the rubric ; and ^7j,^^"„^J;""°" 
 it is further directed by the 4 Geo. IV. c. 76, that the form 
 of words to be used sliall be such as the rubric prescribes. 
 
 c ICurt. 42. „ ,„ 
 
 d Master of the Rolls, in Mr. Herbert's case, 3 P. ^ ms. 116. 
 
 e He,mes v. Waugh, cited by M. R. in Eyre v.Couutess of SlwfteshHry.2 
 P. VVms. 112; and'"see former case. 
 
 f Priestley v. Lamb. 6 Ves. 421 ; Xicholson v. Squires, 16 \ es. 259 ; M arttu 
 V. Yorke, 19 Ves. 451. 
 
 g Millet V. Rouse,! Ves. 419.
 
 648 
 
 OF MARRIAGE. 
 
 Forbidding the 
 banns. 
 
 Grounds lor 
 forbidding 
 banns in case 
 of adult 
 persons. 
 
 In the case of 
 minors, parents 
 and those in 
 loco parentis 
 may forbid 
 baiitis. 
 
 Clerpynmn 
 liaving notice 
 of dissent of 
 parents, \c. 
 
 Publication of 
 banns and con- 
 sent of parents 
 foimerly neces- 
 sary by the 
 < anuo law. 
 
 If, upon publication of the banns, any person should 
 openly declare his dissent, and upon inquiry it should 
 nevertheless turn out that there was no valid or sufficient 
 cause for such dissent, the publication for that time would 
 stand good. 
 
 As to what are sufficient causes for dissent in the case 
 of adult persons, it may be considered that all such matters 
 as we have before mentioned, which would render the 
 marriage ceremony void and a mere nullity if performed, 
 are good causes of dissent, which any person, whether 
 connected with or interested in the parties or not, might 
 properly allege ; for all persons are interested in the pre- 
 servation of morality. If, therefore, it were known to any 
 of tlie congregation that either of the parties had a former 
 husband or wife living at the time, or that they were related 
 within any of the forbidden degrees of consanguinity or 
 affinity, or that either of them was under the age of four- 
 teen years, if a boy, or twelve years, if a girl, or that 
 either of them was an idiot or a lunatic, such person might 
 properly dissent from the publication of the banns, or, as 
 it is called, forbid the banns, for any of such reasons. But 
 on no other grounds than some of these does it appear 
 that the publication of banns, in the case of adult persons, 
 could be properly forbidden, and the clergyman would not 
 be bound, and ought not to take notice of a dissent from 
 such ])ublication an any other grounds. 
 
 In the case of minors, it has been expressly enacted, 
 that where both or either of the parties between whom the 
 banns are published, are under the age of twenty-one 
 years, and the parents or guardians of such j)arties openly 
 and pubhcly declare, or cause to be declared, in the church 
 or chapel where the banns are published, at the time of 
 such pvd)lication, his, her or their dissent to such marriage, 
 such publication of banns shall be void ;'' which provision 
 would extend to all such persons as, in contemplation of 
 law, stand in loco parentis to such party under age ; but 
 even if this were not done, and the clergyman nevertheless 
 had notice of the dissent of such parents or guardians 
 before the marriage, he would be punishable if he per- 
 formed the ceremony.' 
 
 And the canon law was still more stringent in this re- 
 spect, for ministers were forbidden to celebrate marriage 
 between persons under age, though the banns were thrice 
 asked, until the parents or governors had, either personally 
 
 »• 4 Geo 4, V. 7f). s. 8. 
 
 ' See the cinon, which does not appear to be altered iu this respect by the 
 statute.
 
 OF MARRIAGE. 049 
 
 or by sufficient testimony, testified to them their consent; 
 but the same clause of the statute, which we have just 
 mentioned, exempts the minister from punishment, to which 
 he might have been hable under this canon, by declaring 
 that no minister shall be liable to ecclesiastical censures 
 for solemnizing the marriage of a minor, unless he has 
 notice of the dissent of parents or guardians, in which case, 
 as we have observed, he would remain liable to punishment 
 for disobedience to the canon. 
 
 The churchwardens and chapelwardens are to provide a liook lo be 
 proper book of substantial paper, marked and ruled re- ''|,")'''^'^f /"' 
 spectively in manner directed for the register-book of ^" '^ " 
 marriages; and the banns are to be published from the said 
 register-book by the officiating minister, and not from loose 
 papers, and after publication are to be signed by the offi- 
 ciating minister, or some person under his direction.'' 
 
 Whenever a marriage shall not be had within three When a npuh- 
 months after the complete publication of banns, no minis- ''caiionofbatiDs 
 ter shall proceed to the solemnization of the same, until 
 the banns shall have been republished on three several 
 Sundays in the form and manner prescribed, unless after 
 such time the parties choose to obtain a license. The pub- 
 lication of banns therefore, unless followed by marriage 
 within three months, is a nullity. It is not specified m 
 the act whether these are to be calendar or lunar months ; 
 but according to the calculation generally in ecclesiastical 
 matters, they would be calendar months ; and that this 
 would be so considered appears certain from tiie recent 
 act 6 & 7 Will. IV. c. 85, where it is enacted, that, in mar- 
 riages under that act, if the marriage is not had within 
 tki-ee calendar months after notice entered with the super- 
 intendent-registrar, the license granted thereupon shall be 
 void. 
 
 If the parties purposing to contract matrimony intend I.i<insf!. 
 to proceed by hcense, the clergyman will of course be less 
 immediately concerned in the preliminaries ; but where 
 there has been no publication of banns, or registrar's cer- 
 tificate instead, he is severely punishable for solenmizing 
 marriage, unless a hcense has been first had and obtained 
 from some persons or person having authority to grant tiie 
 same;' and although the license may be an authority for |^'.^,^;^^^|; ^^^^ 
 him to solemnize a marriage without publication of banns, °J',\" 1.0^^^ 
 yet if he discover any variation in the license, he may ness and suffi- 
 without impropriety, or, as it seems, it might have been cion.yofa 
 
 11 «,'•'■' • i*/'ii license* 
 
 said, he ought to hesitate to act upon it;'" and d he has 
 
 k 4 Geo. 4, c. 76, ss 6 and 15. ' 4 Geo. 4, c. 76. s. 21. 
 
 ™ 2 Hagg. Cons. 185.
 
 650 OF MAERIAGE. 
 
 fairly any reason to suspect fraud, delay is justifiable for 
 the sake of inquiry." Consequently it becomes necessary 
 to inquire what the license is, and who have authority to 
 grant it. 
 What a license A license is a faculty for dispensing with the necessity 
 is, and by whom ^f publication of bamis, and not to be granted for solem- 
 tobegranie . ^[^.^tion of matrimony, without publication of banns, by 
 any person exercising any ecclesiastical jurisdiction, or 
 claiming any privileges in the right of their churches, but 
 only by such as have episcopal authority, or the commis- 
 sary for faculties, vicars general of the archbishops and 
 bishops, sede jjlenu, or sede vacnnte, the guardian of the 
 spiritualties, or ordinaries exercising of right episcopal 
 jurisdiction in the several jurisdictions respectively." 
 
 And no license shall be granted but to such persons only 
 as be of good quality, and no license shall be granted but 
 upon good cause and security taken,P which security shall 
 contain these conditions, that at the time of granting such 
 Requisites for- license there is not any impediment of pre-contract, con- 
 ineriy before sanguinity, affinity, or other lawful cause to hinder the 
 okaTn'er"''^ ^^ same ; that there is not any controversy or suit depending 
 in any court before any ecclesiastical judge, touching any 
 contract or marriage of either of the said parties with any 
 other; that they have obtained thereto the express consent 
 of their parents (if they be living), or otherwise of their 
 guardians or governors. Lastly, that they shall celebrate 
 the said matrimony publicly in the parish church or chapel 
 where one of them dwelleth, and in no other place, and 
 that between the hours of eight and twelve in the fore- 
 noon. "" 
 
 And for the avoiding of all fraud and collusion in the 
 obtaining of such licenses and disi)cnsations, before such 
 license shall be granted it shall appear to the judge by the 
 oaths of two sufficient witnesses (one of them to be known 
 either to the judge himself or to some other person of 
 good reputation tiien present, and known likewise to the 
 said jiulge), that the express consent of the parents or pa- 
 rent (if one of them be dead), or guardians or guardian of 
 the parties, is thereunto had and obtained ; and fuithcr- 
 more, that one of the parties shall personally swear that 
 he believeth that there is no let or inqiedimcnt of pre- 
 contract, kindred or alliance, or of any other lawful cause 
 whatsoever, nor any suit commenced in any ecclesiastical 
 court, to bar or hinddi- the proceeding of the said matri- 
 mony according to the tenor of the aforesaid license."" 
 
 " 2 Lee, 515; Rogers's E. L. " Cnnon 101. '' f'anon 101. 
 
 1 Canon 102; and see Bacon's Abr, Marriage. "■ Canon 103.
 
 OP MARRIAGE. C61 
 
 The provisions of these canons have been mentinnod to 
 show the care and anxiety of the ecclesiastical law to pre- 
 vent any evil that might result from the practice of grant- 
 ing licenses. But tliey are now superseded by the statute 
 law, which has substituted requirements less stringent ; for 
 instead of the oaths of two sufficient witnesses (one of Oailiofoneof 
 them known to be of good reputation, &c.), the oath of one f''<^ P'"'" cnly 
 of the parties is now sufficient, an alteration for wiiich it is " ■"** '"l"'f»-*d- 
 difficult to conceive any sufficient reason ; the clauses of 
 the statute, which have superseded the provisions of the 
 canons, enact that before any such license be granted, one 
 of the parties shall personally swear before the surrogate, Requisites now 
 or other person having authority to grant the same, that necessary, and 
 he or she believeth that there is no impediment of kindred f""' '", ''*^,"""^« 
 or alliance, or ot any other lavvtul cause, nor any suit laining license, 
 commenced in any ecclesiastical court, to bar or hinder 
 the proceeding of the said matrimony according to the 
 tenor of the said license ; and that one of the said jiarties 
 hath, for the space of fifteen days immediately j)receding 
 such license, had his or her usual place of abode within 
 the parish or chapelry within which sucli marriage is to be 
 solemnized ; and where either of the parties, not being a 
 widower or widow, shall be under the age of twenty-one 
 years, that the consent of the person or persons, whose 
 consent to such marriage is required under the provisions 
 of this act, had been obtained thereto : provided always, 
 that if there shall be no such person or persons having 
 authority to give such consent, then, upon oath made to 
 that effect by the party requiring such license, it shall be 
 lawful to grant such license, notwithstanding the want of 
 any such consent."" 
 
 And it is further enacted, that it shall not be required of No caution or 
 any person applying for any such license, to give any "^^^.^^'^y "°* '*' 
 caution or security, by bond or otherwise, before such 
 license is granted, any thing in any act or canon to the 
 contrary notwithstanding.^ 
 
 The parties who are empowered, under different circum- My whom con- 
 stances, to give the requisite consent in the case of minors, p*:"^.^'*^"^!,'^ ^( 
 are next specified; it being provided that the father, il pj^iics under 
 living, of any party under the age of twenty-one (such party ;,ge. 
 not being a widower or widow) ; or if the father l)e dead, 
 the guardian or guardians of the person of the party so 
 under age, lawfully appointed, or one of them ; and in case 
 there shall be no such guardian or guardians, then the 
 mother of such party, if unmarried ; and if there be no 
 mother unmarried, the guardian or guardians of the person 
 >• 4 Geo. 4,0.76, s. 14. ' Ibid, sects. 15, 16.
 
 652 OF MARRIAGE. 
 
 appointed by the Court of Chancery, if any, or one of them, 
 shall have authority to give consent to the marriage of such 
 party ; and such consent is required for the marriage of such 
 party so under age, unless there shall be no person autho- 
 rised to give such consent/ 
 
 In case the father or fathers of the parties to be married, 
 or of one of them, so underage, shall be non compos mentis; 
 or the guardian or mother, whose consent is made neces- 
 In what cases sary, as aforesaid, to the marriage of any such parties, shall 
 parties may \,q noTi compos mentis, or in parts beyond seas, or shall un- 
 Court 0° Chan- reasonably, or from undue motives, refuse or withhold his or 
 eery for consent, her consent to a proper marriage; then it shall and may 
 be lawful for any person desirous of marrying in any of the 
 above cases, to apply by petition to the chancellor, lord 
 keeper, or lord commissioners of the great seal of Great 
 Britain for the time being ; master of the rolls, or vice- 
 chancellor of England, who is and are respectively em- 
 powered to proceed upon such petition in a summary way ; 
 and in case the marriage proposed shall, upon examination, 
 appear to be proper, the said lord chancellor, &c., shall 
 judicially declare the same to be so; and such judicial 
 declaration shall be deemed and taken to be as good and 
 effectual as if the father, guardian, or mother of the person 
 so petitioning, had consented to such marriage." 
 Tarties obtain- ^^ any valid marriage has been solemnized by license 
 ing license by between parties, one or both of whom shall be under age, 
 \Tl^.lu olJj*" contrary to the provisions of -the act, the license having 
 
 lu alien CaScS. _ i"ii* pii'i 1 
 
 been obtained by perjury or fraud, the guilty party may be 
 made to forfeit all projicrty accruing from the marriage, 
 provided such forfeiture is sued for in the manner directed 
 by the act; and such property may be secured in such 
 manner as the act directs, for the benefit of the issue of the 
 marriage, or according to the circumstances in such manner 
 as the Court of Chancery may think fit/ 
 Extent of the In the case of a father withholdinir his consent to the 
 
 last-nientioncd marriage of a minor, an important decision lias been come 
 to l)y the Court of Chancery, that the court can only inter- 
 fere upon jx'tition, according to the provisions above men- 
 tioned, when; tlu; father is non covqws nirntls, that the words 
 " any of them whose consent, &c.," refer to the persons 
 named in the immediately preceding member of the sen- 
 Applies to the t(;nce, vi/. the " guardian or guardians, mother or mothers ;" 
 case of a father and that the discretionary j)ovver of consent vested in the 
 u^m nimZi '^ '^ .J"<'!-A"'''^ of the court, in case the consent should be withheld 
 incutis. unreasonably, or from undue motives, aj)[)lies exclusively 
 
 to tile case of such guardian or mother so acting. And the 
 ' 4 Geo. 4, c. 76, sects. 16, IG. " Sect. 17. » Sect. 23.
 
 OF MARRIAGE. 653 
 
 lord chancellor subsequently mentioned that he had looked 
 over the act with the vice-chancellor, and that they were 
 clearly of opinion that its provisions did not extend to the 
 case of a f\ithcr beyond seas, or unreasonably withlioldin«; 
 his consent, but only to the case of a father who was nun 
 compos.'^ 
 
 No surrogate, hereafter to be deputed by any ecclesiastical 
 judge who hath power to grant licenses, shall grant any 
 such license till he hath taken an oath before the said Sunogatc de- 
 judge, or before a commissioner ajjpointed by commission P""^ by ecclc- 
 underthe seal of the said judge, which connnission the said [0*13 tc oi'iii^of 
 judge is hereby authorized to issue, faithfully to execute office, 
 his office according to law, to the best of his knowledge. >' 
 
 There is the same limitation as to time within which the when a fresh 
 marriage must be solemnized after Hcense granted, as in license is nece»- 
 the case of banns, it being enacted, that whenever a mar- ^^^^' 
 riao-e shall not be had within three mouths after the urant 
 of a license by any archbishop, bishop, or any ordinary, 
 no minister shall proceed to solemnize marriage till a new 
 license be granted, or banns published ; which months, as 
 we have observed in speaking of publication of banns, nmst 
 be taken to be calendar months.'' 
 
 No license is to be granted to solemnize marriage, except One of the par- 
 in the church or chapel belonging to the parish orchapelry tics must have 
 where one of the parties has resided for fifteen days imme- j^^' "jn ,|,^!^° 
 diately before the granting of such license; but where parish before 
 such church is rebuilding, or under repair, the license shall license is 
 extend to any licensed place in the parish or chapelry, or, ^"°' 
 if there be none, then to the church or chapel of the adjoin- 
 ing parish or chapelry.'' 
 
 Besides the common licenses, special licenses are some- .SpecijI license*, 
 times P-ranted, to obtain which the same form is required J'"" Jiffcrcm 
 as for common licenses : the material ditterence is, that by license*, 
 special licenses the marriage is permitted to be solemnized 
 at any time, in any church or chapel, or other meet or con- 
 venient place. "^ 
 
 By a regulation of Archbishop Seeker, special licenses, ^° '*|;^°"'^;|;jy, 
 dispensing with both time and place, are not to be granted, *""> K'-"'^ • 
 excepting to persons of the rank of i)eers, or peeresses in 
 their own right, dowager peeresses, members of the privy 
 council, the judges of Westminster Hall, baronets, knights, 
 and members of parliament; but this regulation docs not 
 bar the Archbishop of Canterbury from granting occasional 
 favours beyond these limits. In all cases, a special hat is 
 addressed by his grace to the master of the faculties. To 
 
 X Er pane J. C, an infant, 3 Mylne & Craig. 471. \ Sect. 18. 
 
 ^ Sect. 19. » Sects. 10 and 12. " Rogers s K. L.
 
 654 
 
 OF MARRIAGE. 
 
 Power of the 
 pope in this 
 matter was 
 transferred to 
 the primate. 
 
 Caveat, when 
 entered, no 
 license to issue 
 till matter has 
 been examined 
 by the judge. 
 
 Certificate of the 
 
 superintendent 
 
 registrar. 
 
 persons of inferior rank, a special license, dispensing with 
 the particular parish recjuired by the act, or with the 
 canonical hours, is sometimes granted on a particular 
 application.*^ 
 
 This power to grant faculties, dispensations, and licenses, 
 as the pope had done before, was given to the Archbishop 
 of Canterbury by the statute 25 Hen. VIII., and it is ex- 
 pressly reserved to him by 4 Geo. IV. c. 76, which ex- 
 pressly declares that nothing therein contained shall be 
 construed to extend to deprive the Archbishop of Canter- 
 bury and his successors, and his or their proper officers, of 
 the right which hath hitherto been used, of granting special 
 licenses to marry at any convenient time or place.^ 
 
 In the case of a license, the entry of a caveat is tanta- 
 mount to the public dissent from the publication of banns; 
 for if any caveat be entered against the grant of any license 
 for a marriage, such caveat being duly signed by or on the 
 behalf of the person who enters the same, together with 
 his place of residence, and the ground of objection on which 
 his caveat is founded, no license shall issue till the said 
 caveat, or a true copy thereof, be transmitted to the judge 
 out of whose office the license is to issue ; and until the 
 judge has certified to the registrar that he has examined 
 into the matter of the caveat, and is satisfied that it ought 
 not to obstruct the grant of the license for the said mar- 
 riage, or until the caveat be withdrawn by the party who 
 entered the same.^ 
 
 And what we have already mentioned as to the parties 
 by whom, and the causes for which banns may be forbidden, 
 would be equally applicable to the entry of caveats. 
 
 The parties intending to contract marriage, according to 
 the rites of the Church of England, may also, if they 
 please, })roceed, by giving notice, and obtaining the cer- 
 tificate of the superintendent registrar; but this is so 
 recent an innovation upon the old law, that little more is 
 to be said of it than what is to be found contained in the 
 acts by which it has been introduced. 
 
 The mode of giving notice in order to obtain, and the 
 mode of obtaining or forbidding the issue of this certificate, 
 is prescribed by the statute 6 & 7 Will. IV. c. 85, by 
 which act it was declared that where, by any law or canon 
 in force before the passing of the act, it was provided that 
 any marriage might be solemnized after publication of 
 banns, such marriao;e mi<rht be solemnized in like manner 
 on production of the registrar s certmcatef 
 
 <: Poynler's Law of Marriage, 51. ■' Sect. 20. e Sect. 11.
 
 OF MARRIAGE. G55 
 
 But the same act contained provisions, in wliich we are Licenses by the 
 not now interested, for enabling the superintendent re^is- supcrintendem 
 trar also to grant licenses; as to which it was provided ''-■g'*'^^'"- 
 that nothing therein contained should authorise any super- 
 intendent registrar to grant any license for marriaije in 
 any church or chapel, in which marriages might be solem- 
 nized according to the rites of the Church of England, 
 or in any church or chapel belonging to the Church of 
 England, or licensed for the celebration of divine worship, 
 according to the rites and ceremonies of the Church uf 
 England.* 
 
 The distinction between the certificates and licenses not Disiinciion be- 
 having been accurately observed, it was doubted whether t"een certificate 
 a party having obtained a superintendent registrar's cer- ^°'^ ''ceose. 
 tificate could insist upon being married in a church, accord- 
 ing to the rites of the Church of England ; and accordingly, 
 in an act passed in the following year, the provision of the 
 last-mentioned act in this respect was recited, and it was 
 then declared that the giving of notice to the suj)erintend- 
 ent registrar, and the issue of the superintendent registrar's jhe cenificateis 
 certificate, should be used, and stand instead of the pub- in place of 
 lication of banns, to all intents and purposes, where no ''*""*• 
 such publication should have taken place ; and that every 
 parson, vicar, minister, or curate in England, should 
 solemnize marriage after such notice and certificate in lUie 
 manner as after due publication of banns : provided that 
 the church wherein any marriage according to the rites 
 of the Church of England should so be solemnized, should 
 be within the district of the superintendent registrar by 
 whom such certificate should have been issued.*^ 
 
 Although the cleroyman has nothing to do with, and is Howfaraminis- 
 in no way concerned'in, the obtaining this certificate, yet it jeMs concerned 
 may be presumed by analogy to the cases of banns and 
 licenses, that he would properly hesitate to perform the 
 ceremony, if he had reason to believe that the certificate 
 was informal, or had been improperly obtained : it becomes 
 necessary therefore to see wdiat the provisions are by which 
 the issue of this certificate is regulated. 
 
 In order to obtain such certificate, one of the parties Formof il.e 
 must give a notice under his or her hand, in the form notice to^be ^ 
 which is prescribed by the act, and which is to be found ^[''Jvjg^ ""'^ 
 inserted in the appendix," or to the like eficct, to the super- 
 intendent registrar of the district within which the parties 
 shall have dwelt, for not less than seven days then next 
 preceding : or, if the parties live in different districts, the 
 
 f 6 & 7 Will. 4. c. 85, s. 11. o 1 Vict. c. 22, s. 36. " See App.
 
 656 OP MARRIAGE. 
 
 like notice is to be given to the superintendent registrar of 
 each district.' 
 
 It seems by the words " to the like effect,'' that it would 
 not be necessary to keep the exact form of the prescribed 
 notice : for the several matters which the notice must 
 contain are further specified in the act to be, 
 What the notice The name, and surname, and the profession or con- 
 
 must contain dition of each of the parties intending marriage. 
 
 The dwelhng-place of each of them. 
 The time (not being less than seven days) during 
 
 which each has dwelt therein. 
 And the church or other building in which the mar- 
 riage is to be solemnized. 
 If either of the parties shall have dwelt in the place 
 stated in the notice during more than one calendar 
 month, that fact may be stated in the notice.'' 
 If the notice contained all these particulars, although it 
 were not in the prescribed form, it is presumed that it 
 would be good and valid. 
 Rlarriage notice The superintendent registrar is to file such notices, and 
 book; entries enter them in a book, to be called " The Marriage Notice 
 Ind fe^forente'r- ^ook," and he is entitled to a fee of one shilling for every 
 ing. such entry.' 
 
 The publication of these notices is to be made in the 
 following manner. If the superintendent registrar be the 
 clerk of the guardians of any poor-law union, or of any 
 
 r. ir ,• f parish or place, comprisino- the district for which such 
 Pubhcation of ^ . \ \ ^■, ^ ^ ^- . in ^^ j.- 4. 
 
 the notices at superintendent shall act, he is to read ail these notices at 
 
 board of the next weekly meeting of the union, immediately after 
 
 guardians. ^|^g minutes of the preceding meeting have been read ; or 
 
 if lie is not such clerk, then he is to transmit them to 
 
 such clerk, the day before such weekly meeting, in order 
 
 to their being so read. The notices transmitted to the 
 
 clerk of the board of guardians shall be read three 
 
 several times, in three successive weeks, at the weekly 
 
 meetings of such guardians, unless, in any case, license 
 
 for marriage shall be sooner granted, and the notice of its 
 
 beiny; granted shall be yiven to such clerk.'" 
 
 And, if there be not three successive meetings or the 
 
 guardians, then it is declared that it shall be suflicient 
 
 that the notice shall be read at any meeting of such 
 
 guardians, held within twenty-one days from the day of 
 
 such notice being entered." 
 
 Mode of publi- But, as it may happen in some districts that there may 
 
 cation where be no such guardians, it is provided that in every such 
 
 lI'YVnL"" case, but only until the election of such guardians, and a 
 
 » 6 & 7 Will. 4, c. 85, s. 4, '' Ibid. ' Sect. 5. 
 
 ■n Sect. 6. " Ibid.
 
 OP MARRIAGE. f;57 
 
 clerk to their board, every such notice of marriafje, or a 
 copy thereof, under the hand of tlie superintendent regis- 
 trar, shall be suspended in some conspicuous place in his 
 office during twenty-one successive days, before any uiur- 
 riage shall be solemnized in pursuance of it, and the 
 particulars of every such notice shall be sent by the sujjcr- 
 intendent registrar to every registrar of marriages within 
 his district, and shall be open to the inspection of every 
 one who shall apply, at reasonable times, to such registrar 
 to inspect the same." 
 
 After the expiration of twenty-one days after the entry Certificate of 
 of such notice of marriage, the superintendent, upon being superiotendeiit 
 requested so to do, by or on behalf of the party by whom a^j'i'.^" io'il^'"" 
 such notice was given, is to issue under his hand a cer- issued, 
 tificate, in a prescribed form, which is to be found in the 
 Appendix ;P provided that no lawful impediment be shown 
 to the satisfaction of such superintendent registrar why 
 such certificate shall not issue ; and provided the issue of 
 such certificate shall not have been forbidden, as provided 
 for by the act.^ 
 
 And the certificate is to contain the particulars set forth Coniems of the 
 in the notice, the day on which the notice was entered, cemficaie. 
 and that the full period of twenty-one days has elapsed 
 since the entry of such notice, and that the issue of such 
 certificate has not been forbidden.'' 
 
 The fee to which the superintendent registrar is entitled Fee for issue of 
 upon the issue of every such certificate is one shilling.' the certificate. 
 
 Every such certificate is to be printed with black ink.' 
 
 Any person authorised in that behalf may forbid the Manner of for- 
 issue of the superintendent registrar's certificate, by writing, !^'^'^'''^J j||^ ^^^_ 
 at any time before the issue of such certificate, the word |-fi"ate_ 
 " forbidden" opposite to the entry of the notice of such 
 intended marriage in the marriage notice book, and by 
 subscribing thereto his or her name and place of abode, 
 and his or her character in respect of cither of the parties, 
 by reason of which he or she is so authorised ; and in case 
 the issue of any such certificate shall have been so for- 
 bidden, the notice and all proceedings thereupon shall be 
 utterly void." 
 
 Or any person, on payment of five shillings, may enter Caveat may ins 
 a caveat with the superintendent registrar against the grant J°;'^^;,P^J.",7,'^ 
 of a certificate for the marriage of any person named therem ; ^^,1,^,-5,6. 
 and if any caveat be entered with the superintendent re- 
 gistrar, such caveat being duly signed by or on behalt of 
 the person who enters the same, together with his or her 
 
 « 1 Vict. c. 22, s. 24. p See App. a 6 & 7 Will. 4, c. 85, s. 7. 
 
 >• Ibid. « Ibid. ' Sect. 8. " Sect. 9. 
 
 U U
 
 658 OF MARRIAGE. 
 
 place of residence, and the ground of objection on which 
 his or her caveat is founded, no certificate shall issue or be 
 granted until the superintendent registrar shall have exa- 
 Effect of enier- mined into the matter of the caveat, and be satisfied that 
 ing a caveat. jj. ought not to obstruct the grant of the certificate, or until 
 the caveat be withdrawn by the party who entered the 
 same : provided, that in cases of doubt, it shall be lawful 
 for the superintendent registrar to refer the matter of any 
 such caveat to the registrar general, who shall decide upon 
 the same ; in case of the superintendent registrar refusing 
 the grant of the certificate or license, the person applying 
 for the same shall have a right to appeal to the registrar 
 general, who shall thereupon either confirm the refusal or 
 direct the grant of the certificate.^ 
 Who may enter Tlie pcrsons who vi'ould be aiithorised in this manner to 
 such caveat. forbid the issue of a certificate, or to enter a caveat, are of 
 course the same as we have before mentioned would be 
 authorised to forbid the publication of banns, or to enter 
 a caveat to licenses, if the parties had proceeded in either 
 of those manners. 
 
 But parties, who may choose to proceed by obtaining 
 the superintendent registrar's certificate, appear to have a 
 better protection given them against having their proceed- 
 ings forbidden, than those who proceed by banns or a sur- 
 Procecdings rogate's license ; for every person who shall enter a caveat 
 against parlies with the superintendent registrar against the grant of any 
 n.,^,?,^L^""'' license or issue of any certificate, on grounds which the 
 
 caveats on . J . "^ 
 
 frivolous registrar general shall declare to be frivolous, and that they 
 
 grounds. ought not to obstruct the grant of the license, shall be 
 
 liable for the costs of the proceedings, and for damages, to 
 be recovered in a special action upon the case by the party 
 against whose marriage such caveat shall have been en- 
 tered/' The mode of procooding in which actions is further 
 regulated by the sLalute 1 Vict. c. 2'2. 
 Marriage must No marriage by certificate may be celebrated until twenty- 
 noi be within q^q jjjyg j^fjgp ^|^g entry of the notice with the superin- 
 
 twenty one days . i / • . „ 
 
 after. t)try of tiie tcndcnt registrar." 
 
 notice. Whenever a marriage shall not have been had within 
 
 When a frcsli three Calendar months after the notice shall have been en- 
 noiicc is neces- tered by the superintendent registrar, the notice and cer- 
 "'^* tificate, and all other proceedings, shall be utterly void ; 
 
 and no person shall solemnize a marriage until a new no- 
 tice, entry and c(Mtificate, be given as before.'' 
 
 The same statute allows superintendent registrars to issue 
 licenses for marriage, and juescribes certain rcqtiisite forms 
 to be observed in obtaining them ; but, as we have already 
 1 Sect. 13. ' Sort. 37. » Sect. 14. '' Sect. 15.
 
 OF MARRIAGE. (559 
 
 seen, that such Hcenses cannot be granted for marriages 
 to be solemnized according- to the rites of the EstahlishCd 
 Church, it is not necessary here to enter ujjon the subject. 
 
 We have now gone through the preliminaries to the so- 
 lemnization of marriage according to the different modes 
 which the parties may choose to adopt ; and the clerLryman 
 may require to be reasonably satisfied that one of these 
 modes has been observed before he can be called on to 
 perform the ceremony. Previously to the performance of Cenifir.ie thai 
 such ceremony, in the case of banns (if the publication of »'"•■'>»''«>. Iu»« 
 them in respect of either of the parties not residing within [,y" '"' ''":] ^f 
 his parish has been made by the minister of another pii- aii - . ii. 
 rish), a certificate of that fact under the hand of such 
 minister should be j)roduced ; and which certificate, al- 
 though no form is absolutely prescribed, is usually in the 
 form to be found in the Appendix. 
 
 In the case of licenses, such license must be produced. 
 In the case of certificates, it is expressly provided, that the 
 superintendent's certificate, or in case the parties have 
 given notice to the suj^erintendent of ditlerent districts, the 
 certificate of each superintendent shall be delivered to the 
 officiating minister.*^ 
 
 Such ceremony of marriage, if solemnized according to Eiscmiai* lo » 
 the form of our ancestors, must, notwithstanding the recent '•'g"'^' '"»'- 
 alteration of the law, still be — [o?he7omi«of 
 
 1. In a church. In facie ecclesicR. the K»tabii»hetl 
 
 2. Performed by a minister of the Established Church, ^"''"r'^''- 
 Per presbyter um sacris ordinihus constitutiini. 
 
 3. According to all the rules prescribed by the rubric of 
 that Church. 
 
 4. Within the canonical hours of eight and twelve in the 
 forenoon. 
 
 5. In the presence of a proper number of witnesses. 
 
 By a constitution of Archbishop Reynolds, uuirriagc OIJ ron»iitu- 
 shall be solemnized reverently and in the face of the church ; [|.'J," ",, ' 
 and by a constitution of Archbishop Mepham, it was t)r- 
 dained, that every priest, whether regular or secular, who 
 dared celebrate or be present at the soleumization of nuir- 
 riage anywhere, save in the parish church, without sj)ecial 
 license of the diocesan, should be suspended from his ollice 
 for one whole year.'' 
 
 And by the canons of 1603, it was further ordered, that 
 no minister, on pain of suspension for three years ipso 
 facto, should celebrate niarria-c between any persons in 
 any other place but in the churches or chai)els where one 
 of them dwelt ;•= but the canon law did not and could not 
 c Sect. 16 •! Lind«*ood, 274. ' Canon 6-2. 
 
 IT r 2
 
 660 OF MARRIAGE. 
 
 declare a marriage elsewhere than in a church in itself 
 
 void ; and as many clergymen might be beyond the reach 
 
 of ecclesiastical punishment, the consequence of this was 
 
 Irregular inar- that many marriages were irregularly solemnized by persons 
 
 riages. jj^ l^^jy orders in the Fleet Prison and its liberties, in May 
 
 Fair, and in such like places, and in private houses. 
 Punishment of These irregularities were put a stop to by the statute 
 clergyman for 26 Gco. III. ; but the provisions of that act were repealed 
 rfa^e'dsewhe^e ^Y' ^^^ ^^ many particulars re-enacted by, 4 Geo. IV. 
 than in a church, c. 76, by which the law is at present regulated, and by 
 which it is declared, that if any person shall solemnize 
 matiimony in any other place than a church or such public 
 chapel wherein banns may be lawfully published, he shall, 
 upon being convicted thereof, be deemed and adjudged to 
 be guilty of felony, and shall be transported for the space 
 of fourteen years, provided such prosecutions are com- 
 menced within three years after commission of the offence.^ 
 This provision is re-enacted by the 6 & 7 Will. IV. c. 85; 
 and the words are there more clearly expressed, as any 
 other place than a church or chapel in which marriages 
 may be solenmized according to the rites of the Church of 
 England ; and it is there said only that the offending party 
 shall be adjudged guilty of felony, the punishment not 
 being mentioned." A less punishment than that above 
 mentioned might, as it appears, be now inflicted. 
 What may be Besides the parish church, the bishop of the diocese, 
 
 such chuichesin ^[^\^ ^^q consent of the patron and incumbent of the church 
 may be^'s^o-'^^*^ of the parish in which there was any public chapel with a 
 lemnized. chapclry annexed, or of any chapel in an extra-parochial 
 
 place, signified to him under hands and seals respectively, 
 might under that act authorise by writing under his hand 
 and seal the publication of banns and solemnization of 
 marriages in such chapel, for persons residing within such 
 chapelry or extra-parochial ])laco, such consent, together 
 with such written authority, to be registered in the registry 
 of the diocese.'' In every such chapel, where such autho- 
 rity has been given, there is to be ])laced in some conspi- 
 cuous part of the interior a notice in the words following: 
 *' Banns may be published and marriages solemnized in 
 this chapel.'" 
 Extra parorhial Parishes where there is no church or chapc^l, and extra- 
 places a tid pa- parochial |)laces, arc to be taken, for the purposes of that 
 [,''I'"ig'',,'o'*' act, in res|)cct of marriages, to belong to any adjoining pa- 
 churrh or rish or cha|)elry.'' And where a church or chapel is de- 
 
 chapel, molished, in order to be rebuilt or under repair, and on 
 
 ' 4 Geo 4, c. 7(). s. 2L K 6 cS; 7 Will. 4, c. 85. s. 39. 
 
 h 4 Geo. 4, c. 76, s. 3. » Ibid. s. 4. '' Sect. 12.
 
 OF MARRIAGE. ()Q] 
 
 that account disused, and no place licensed by the bishop 
 within the limits of the paiisli or chaj)clry fur the perform- 
 ance of divine service or the j)ublication of banns, thm, 
 inasmuch as the banns may have been pubhshcd in the 
 church or chapel of the adjoining parish or cha})clry, the 
 marriage may also be solemnized in the same church or 
 chapel where the banns were published. 
 
 All acts of parliament relating to j)ublishing banns of 
 marriage and marriages shall apply to all separate and 
 distinct parish churches, and to all district churches and To what 
 chapels built under the autlioritv of the two acts of the ciiurd.e* and 
 58 & 59 Geo. III. ; but in order that there might be no in- '^I'^l^^t'^ 
 terference with existing rights in the matter of fees, it was as lo niarfi,.gc« 
 provided that no banns should be published or marriages "*'*= "'*'^« '" 
 solemnized in such churches or chapels, e\cej)t by the in- (jeo?3 ^c.^'ia*. 
 cumbent of the parish or his curate, till the death, resig- 
 nation, or other avoidance of the person who was incum- 
 bent at the time of the consecration of such church or 
 chapel.'' And, by an act passed in the following year, 
 these powers were extended to all churches or chapels of 
 ecclesiastical districts or consolidated chapelries ; and by 
 the same statute, in cases of chapels of ease to which eccle- 
 siastical districts are attached, the commissioners liave 
 power, with consent of the bishop, to determine w hethcr 
 banns shall be published, or marriages had, in such chapels 
 or not ; and if they so determine, then the boundaries of 
 the district assigned to such chapel are to be enrolled in 
 the Court of Chancery and in the registry of the diocese.' 
 
 Another statute on the same subject seems to recognise Sanciion of 
 the sanction of custom, however recently established, in <:"*'<""• 
 determining in what churches or chapels marriages may 
 be solemnized ; for it is declared that all marriages which 
 had been solemnized in churches anil public chapels erectrd 
 since the first Marriage Act, and all marriages thereafter 
 to be solemnized in such churches or cha|)els, it having 
 been customary to solemnize marriages therein since the 
 passing of the said Marriage Act, should be good and valid 
 in law.'" 
 
 In churches built under the provisions of the 1 i: 2 
 Will. IV. c. 38, there is no power given, either to the com- 
 missioners or to the bishop, to deteruiine that marruig.s 
 shall be solemnized therein : and the power to give such 
 authority appears to have been purposely omitted m that 
 act. 
 
 But now, any church or chapel, without reference to the 
 
 k 58 Geo. 3, c. 45, ss 24, 27, 28. ' 59 Geo. 3. c. 134, ss. 16. 17. 
 
 "» 6 Geo. 4, c. 92. ss. 1, 2.
 
 662 OF MARRIAGE. 
 
 particular act under which it may have been built, and, as 
 it seems, whether built or consecrated before or after the 
 17th of August, 1836, the time of passing the statute 6 & 7 
 Will. IV. before mentioned, may be licensed by the bishop 
 for the due solemnization of marriages ; for by the 26th 
 section of that act, reciting that it is expedient that pro- 
 vision should be made, under proper restrictions, for reliev- 
 ing the inhabitants of populous districts remote from the 
 parish church, or from any chapel wherein marriages may 
 be lawfully celebrated according to the rites and ceremonies 
 of the Church of England, from the inconvenience to which 
 they may be thereby subjected in the solemnization of their 
 Bishop may marriages; it is enacted, that, with the consent, under the 
 now license any hand and Seal of the patron and incumbent respectively of 
 fo.'lhe rolel'J'' the church of the parish or district in which may be situated 
 nizaiion oi mar- any publlc chapel, with or without a chapelry thereunto 
 riag«;s. annexed, or any chapel duly licensed for the celebration of 
 
 divine service accorclino- to the rites and ceremonies of the 
 Manner in Churcli of England, or any chapel the minister whereof is 
 \vhi( h this may duly licensed to officiate therein according to the rites and 
 be done in each ceremonies of the Church of England ; or without such 
 consent, after two calendar months' notice in writing given 
 by the registrar of the diocese to such patron and incum- 
 bent respectively, the bishop of the diocese may, if he shall 
 think it necessary for the due accommodation and conve- 
 nience of the inhabitants, authorise, by a license under his 
 hand and seal, the solemnization of marriages in any such 
 chapel for persons, one or both of whom is or are residing 
 within a district the limits whereof shall be specified in 
 the bishop's license, and under such provisions as to the 
 amount, appropriation, or apportionment of the dues, and 
 as to other particulars, as to the said bishop may seem fit, 
 Patron or in and its may be specified in the said license; provided that 
 cunjbent re- jj. g^.^jj \^^^ lawful for any patron or incumbent who shall 
 fusing consent. „ -^i i i i , ^ .1 ^ r i r 
 
 ° refuse or withhold consent to the grant of any such license, 
 
 to deliver to the bishop, under his or her hand and seal, a 
 statement of the reasons for which such consent shall have 
 been so refused or witliholden ; and no such license shall 
 be gianted by any bishoj) initil he shall have inquired into 
 the matter of such reasons ; and every instrument of con- 
 sent of the patron and incumbent, or, if such consent be 
 refused or witliholden, a copy of the notice under the hand 
 of the registrar ; and every statement of reasons alleged as 
 aforesaid by the patron or incumbent, with the bishop's 
 adjudication thereupon und(!r his hand and seal, shall be 
 registered in the registry of the diocese ; and thenceforth, 
 and until the said license be revoked, marriages solemnized
 
 OF MARRIAGE. GOcS 
 
 in such chapel shall be as valid to all intents and purposes 
 as if the same had been solemnized in the parish church, or 
 in any chapel where marriages might heretofore have been 
 legally solemnized." 
 
 If the bishop shall authorise the solemnization of mar- 
 riages in any such cha])el as aforesaid, without the consent 
 under the hand and seal of the patron and incumbent re- 
 spectively, it shall be lawful for them or either of them to Appeal by 
 appeal, within one calendar month, to the archbishop of the P-"'"" °' '"• 
 province, who shall hear the same in a sunnnury manner, arrhbisbou. 
 and shall make such order, confirming, revoking, or vary- 
 ing the license so given, as to him shall seem meet and 
 expedient, which order shall be registered in the registry 
 of the diocese, and shall be conclusive and binding on all 
 parties whatsoever. p 
 
 In some conspicuous part in the interior of every such Notice to be 
 chapel so licensed there is to be placed a notice, in the "'''"'! '" '^^''^ 
 words, " Marriages may be solemnized in this chapel,"'' [jce^ej" 
 But notwithstanding such license, the j)arties residing 
 within the specified district have their o])tion to be married Option given to 
 at the parish church, or at any chapel in which the marriage P^""""- 
 of them or either of them might previously have been 
 legally solemnized. "^ 
 
 Every such license may at any time be revoked, by LicenscA may be 
 writing under the hand and seal of the bishop of the ^*" *^ ' 
 diocese, with the consent in writing of the archbishop of 
 the province : and such revocation and consent shall be 
 registered in the registry of the diocese, the registrar wliert'of 
 shall notify the same in writing to the minister othciuting 
 in the chapel ; and shall also give public notice thereof by 
 advertisement in some newspaper circulating within the 
 county, and in the London Gazette, and thenceforth the 
 authority to solemnize marriages in such chapel shall cease 
 
 A list of all chapels belomiinu- to the Church of England List °[J|^^'J^ 
 wherein marriage may be lawfully soleuuiized according to ^J^f];,*,'„",„y ,„ 
 the rites of that church, within the diocese, is to be sent ,1,0 repiM.at- 
 by the registrar of the diocese, annually, within fifteen te""»"- 
 days after the 1st of January, through the post-oilice, to 
 the registrar-general of births, deaths and marriages, at his 
 office : such lists are to distinguish what chapels have a 
 parish, chapelry, or other recognised ecclesiasttcal divisiotj 
 annexed to them; and which are chapels licensed by the 
 bishop in pursuance of the provisions we have just men- 
 tioned, and to state the district for which each ot such 
 
 o 6 & 7 Will. 4, c. 85, s. 26. p ^Sect.28. 
 
 q Sect. 29. ■■ Sect. 31. ' Sect. 32.
 
 664 OF MARRIAGE. 
 
 chapels is licensed, according to the description thereof in 
 the license ; and the registrar-general is to make out and 
 cause to be printed a list of all such chapels, and send a 
 copy to every registrar and superintendent registrar.' 
 Chapels which Where, Under the powers of the act 1 &; 2 Vict. c. 107, 
 have been con- ^ church or chapel is constituted the parish church of the 
 
 stituled parish -i- i-ii • • • i iirxi 
 
 churches under parish HI which the same IS situate in the stead ot the 
 1 & 2 \ ict. ancient parish church, all acts of parliament, laws and 
 ^' ^^^' customs relating to the publishing banns of marriage, and 
 
 celebration of marriages, are made to apply to such church 
 or chapel in every respect in like manner as to such former 
 parish church." 
 Second rule. 2. Marriage according to the forms of the Church of 
 
 By whom England must be performed by a minister of the Esta- 
 
 land re'a"riao"ef' blished Church. In the old constitutions of the Church 
 are to be per- the word priest is always used in speaking of the clergy- 
 foni.ed. mQ.n by whom marriage is to be solemnized ; and the con- 
 
 stant form of pleading marriages was, that it was per pres- 
 hyterum sacris ordinibus constitut.um.^ So also it was said 
 by Lord Coke, that a marriage, solemnized by a person in 
 priest's orders, is good, though there was no publication of 
 banns, &c.y These expressions would lead us to the sup- 
 position that formerly no person, not being in priests 
 orders, and consequently no deacon, was permitted to per- 
 form the marriage ceremony. And in the rubric, in the 
 form of ordination, where the duties appertaining to the 
 office of a deacon are mentioned, nothing is said about the 
 solemnization of matrimony :^ but Watson, speaking of 
 that rubric says, forasmuch as a deacon is hereby per- 
 mitted to baptise, catechise, preach, and assist in the ad- 
 ministration of the Lord's Supjjcr, so by parity of reason 
 he hath used to solemnize matrimony :" and such now 
 seems to be the admitted law and custom of the Church; 
 and that a deacon is as fully authorised as a priest to per- 
 form this ceremony. 
 Clergyman re- If the clergyman whose proper office it would be should 
 fusing to marry. j-^^fygQ ^q marry pcrsous who apj)ly to him to perform the 
 ceremony, all the necessary preliminaries having been ob- 
 Query, wheilier served, it is doubtful whether the parties refused, or either 
 action lies ^^ thcm, could maintain an action for damages against him 
 
 against him at, ', tit\ i-i ij. 
 
 common law. '<^^ common law. Lord Denmau says he is not prej)area to 
 say " tliat such an action might not be maintained upon 
 the declaration raising a proper complaint of a ])ublic ofhcer 
 neglecting his public duty, to the temporal, and, it might 
 
 ' Sect. 34. « 1 & 2 Vict. c. 107, s. 16. 
 
 « Uacon's Abr. Marriage C. i Co. I.ilt. 344 ; Bacon's Abi. ibid. 
 
 ' See rubric in Ordination Service. ' Wats. 314.
 
 OF MARRIAGE. 666 
 
 be, the very great damage of an individual. Such a neglect 
 of the duty of a clergyman may be actionable, if it be ma- 
 licious and without probable cause." But tiic court in that 
 case held, that whatever might be the law generally, the 
 declaration was decidedly bad, as it did not state that the 
 request was made to the clergyman by both parties, nor 
 did it show that the license was in force at the time of the 
 request, nor that two witnesses were ready, nor that the 
 clergyman at the time of the request might have performed 
 the ceremony, not being engaged elsewhere.'' It may be 
 inferred, therefore, that if such a refusal by a clergyman 
 is actionable, such an action would at any rate be uuich 
 embarrassed by the technical care necessary in the form of 
 pleading. 
 
 In the above case it appears to have been considered as Uut lie mi^la br- 
 undoubted that the ecclesiastical court would punish a pumsheJinpro- 
 
 ergynian tor reiusmg to marry parties who were properly churdt Uiiti- 
 qualified ; and a proceeding against a clergyman for such piine Act. 
 an offence would now, therefore, be under the Cimrch 
 Discipline Act. The canon law, as before observed, directs 
 that no sacrament shall be denied to any one on account 
 of any sum of money, nor shall matrhnony he Idndered 
 therefore." And consequently, although the rubric in the 
 office of matrimony speaks of the fee as to be paid at the 
 time of giving the ring, it is clear that the clergyman could 
 not demand the fee at such time, or refuse to proceed 
 with the ceremony, although this appears to have been 
 doubted/ 
 
 If any person, falsely pretending to be in holy orders, Pereons pre- 
 shall solemnize matrimony according to the rites of the JJUj||J8 '" ^ '° 
 Church of England, he shall, upon being convicted, be 
 deemed guilty of felony, and be transported for fourteen 
 years.*^ 
 
 3. In speaking of the uniformity of public worship, we Third rule, 
 have already had occasion to mention the heavy penalties jJJ"';'^^,',""' " 
 to which any minister is liable who refuses to say the ruts pre«rii«d 
 Common Prayer, and minister the sacraments in such by the rubric, 
 order and form as is set forth in the Book of Common 
 Prayer ; and in the same ])lace we have also quoted the 
 words of Sir J. Nicholl : " The law," he says, " directs that 
 a clergyman is not to diminish, in any respect, or to add 
 to the prescribed form of worship ; uniformity m this re- 
 spect is one of the leading and distinguishing pruu-iples of 
 the Church of England. Nothing is left to the discretion 
 and fancy of the individual ; if every minister were to alter, 
 
 h Daois V. B/ucA:, 1 Queen's Bench, 900, "^ Langlon. 
 
 d 2 Bum. E. L. 431. * 4 ^eo. 4. c. 76, ». 21.
 
 666 
 
 OF MARRIAGE. 
 
 Fourth rule. 
 ]\lust be withia 
 canonical hours. 
 
 Penalty on 
 clersjynien of- 
 fending against 
 tliis rule. 
 
 Fifih rule. 
 I'roper number 
 of witnesses. 
 
 Non-observ- 
 ance of which 
 of these rules 
 would make 
 void the mar- 
 riage. 
 
 omit, or add, according to his own taste, uniformity would 
 soon be destroyed."' It is evident, therefore, that any 
 minister is acting illegally, and is liable to punishment, 
 who omits any portion of the prescribed form of the mar- 
 riage service according to his fancy or discretion. It is, 
 nevertheless, an offence which has certainly been very fre- 
 quently committed, and it was probably for that reason 
 that the first section of the statute 6 & 7 Will. IV. c. 85, 
 expressly enacts that, after the 1st day of March, 1837, 
 all the rules prescribed by the rubric concerning the solem- 
 nization of marriages shall continue to be duly observed 
 by every person in holy orders of the Church of England, 
 who shall solemnize any marriage in England. If, there- 
 fore, any custom might have appeared to sanction a de- 
 parture from the prescribed form, such custom has been 
 recently repudiated by the legislature, and the clergyman 
 would not only be liable to punishment, but as it seems 
 would be wholly without excuse, who, following his taste 
 or fancy, should now offend in this manner. 
 
 4. No minister, upon pain of suspension for three years 
 ipso facto, shall celebrate matrimony between any person 
 at any unseasonable times, but only between the hours of 
 eight and twelve in the forenoon.^ Such is the canon law, 
 and beyond all doubt it was anciently the law of the 
 Church, that marriage was not to be celebrated at par- 
 ticular seasons of the year, which appears to have so con- 
 tinued, at least up to the time of Elizabeth; but such 
 restrictions have long since ceased to exist.'' 
 
 It does not very clearly appear whether this regulation 
 as to marriages being celebrated only between the hours 
 of eight and twelve existed as the law of the Church pre- 
 viously to the canons of 1603. But now, by the statute 
 law, a severe penalty is fixed to the offence of solemnizing 
 marriage at any other time ; for it is enacted, that any 
 person, knowingly and wilfully solemnizing matrimony at 
 any other time than between the hours of eight and twelve 
 in the forenoon, unless by special license, shall be adjudged 
 guilty of felony, and be transported for fourteen years.' 
 
 6. Every marriage must be solemnized in the presence of 
 at least two credible witnesses, besides the clergyman cele- 
 bnitiuir it;J and the clerovman would not therefore be jus- 
 tified in performing the ceremony unless that number ot 
 witnesses were present. 
 
 These five requisites must, as we have seen, be observed 
 by the clergyman, but it does not appear that the marriage 
 
 f Ante " Public Worship.' 
 ' 4 Geo. 4, c. 76, s. 21. 
 
 « Canon 62. '' See Burn's E. L. Marriage. 
 .t Ibid. s. 28.
 
 OF MARRIAGE. 067 
 
 itself, if solemnized, would be void for want of any except 
 the two first; for neither the statute 4 Geo. IV. nf)r the 
 6 & 7 Will. IV., both of which declare the causes for which 
 marriages shall be void, mention either of these last anjong 
 those causes. 
 
 As to the particular part of the church in which mar- Marriai;e» lo be 
 riages should be solemnized, the safest, and probably the so'i^^n''""-<J 'o 
 only positive guide is, that custom and long estabhshed ufo^reX*^^ ' *" 
 usage which our laws are careful to respect. Custom has Lonl'» l able, 
 now fully established the solemnization of marriao;es in the 
 chancel and before the Lord's Table, so that it was ex- 
 pressly said some time since by Sir J. Nicholl, that the use 
 of the chancel belongs to the parishioners for the decent 
 and convenient celebration of the holy communion and for 
 the solemnization of marriages. Yet in neither of these cases 
 is there to be found any positive order either in the canon 
 or statute law that they should be celebrated in the chancel. 
 In the order of the communion service, as will afterwards 
 be observed, there is to be found no direction as to the 
 part of the church in which it is to be administered to the 
 communicants ; but in the marriage service it is first di- 
 rected that the parties to be married shall come into the 
 body of the church ; and without any direction for their 
 moving, they are at a later part of the ceremony spoken of 
 as kneeling before the Lord's Table. This has appeared 
 perplexing to some who have not considered that at the 
 time when this rubric was compiled, the Lord's Table was 
 probably almost always placed in the body of the church : 
 although it appears by the canon law to have been con- 
 sidered indifierent whether placed in the church or chancel.'' 
 And the rubric before the communion service speaks of the 
 Lord's Table as standing in the body of the church or of 
 the chancel. The whole rubric in the service for the so- 
 lemnization of matrimony may be easily understood by 
 reference to this latter circumstance. The direction tliat 
 the parties to be married should come into the l)ody of the 
 church (not merely into the church), plainly signifies that 
 they should come to the place where the Lord's Table 
 stood ; there they are directed to kneel down ;' and with- 
 out any direction for their rising, are spoken of as *' kneel- 
 ing before the Lord's Table." 
 
 When the Lord's Table became generally, for crreater 
 convenience, transferred to the chancel, the jilace tor the 
 solemnization of marriage as well as for administormu- the 
 communion came to be transferred there also ; lor it would 
 have been inconvenient, if not impossible, to have trans- 
 k Canon 82. ' See the lubiic aftei the giving of the ring.
 
 668 
 
 OF MARRIAGE. 
 
 Registering 
 marriages. 
 
 Books for regis- 
 tration. 
 
 Copies made 
 minister. 
 
 ferred the Lord's Table back from the chancel to the body 
 of the church u])on every occasion that would have required 
 it. And it was probably very clearly understood that the 
 only important direction intended by* the rubric as to place 
 was, that marriages should be solemnized before the Lord's 
 Table. 
 
 The marriage having been performed, it is the duty of 
 the clergyman to register it, and this he was required to 
 do by the statute 4 Geo. IV. c. 76. It would, however, be 
 of little use to enter now into the provisions of that act 
 for this purpose, for by the statute 6 & 7 Will. IV. c. 86, 
 which provides for the establishment of a general registry, 
 so much of the first-mentioned statute as relates to the 
 registration of marriages is altogether repealed, and the 
 following are the directions and regulations which are now 
 to be observed by the clergyman in registering any mar- 
 riage which he may solemnize. 
 
 The registrar general is to furnish to every rector, vicar, 
 or curate, of every church or chapel in England, wherein 
 marriages may legally be solemnized, a sufficient number, 
 in duplicate, of marriage register books, printed according 
 to a particular form prescribed by the act, and forms for 
 certified copies thereof.'" 
 
 The cost of all such books and forms is to be borne by 
 the union, parish, or place in and for which the superin- 
 tendent registrar is appointed, to whom the rector, &:c. is 
 directed to deliver one copy of the register, and such 
 cost is to be paid to the superintendent registrar by the 
 guardians, or by the churchwardens and overseers, as the 
 case may be, out of any monies in their hands as such 
 guardians, &c. for the relief of the poor." 
 
 Every clergyman, inmiediatcly alter the office of matri- 
 mony has been solenniized by him, is to register, in 
 duplicate, in two of the marriage register books, the 
 several particulars relating to the marriage, according to 
 the form j)rcscribcd in the book," and every such entry is 
 to be signed by him, and by the parties married, and by 
 two witnesses, and is to be made in order from the begin- 
 ning to the end of the book, and the number of the place 
 of entry in each duplicate marriage register book shall be 
 the same.'' 
 
 Every rector, vicar or curate of every such church or 
 chapel shall, in the montlis of April, July, October and 
 January respectively, make and deliver to the suj)erin- 
 tcndent registrar of the district in which such church or 
 
 6 v'k 7 Will. 1, 
 •Sec Appendix. 
 
 f. «(), ss. 17 and 30. 
 
 " 1 Vict. c. 22, s. 25. 
 P Sect. 31.
 
 OP MARRIAGE. C69 
 
 chapel may be situated, or winch may be assigned by tlie 
 registrar general to such registering ofBcer or secretary, or 
 to some registrar under the superintendence of such super- 
 intendent registrar, by whom it is to be forwarded to the 
 superintendent registrar, on durable materials, a true copy, 
 certified by him under his hand, of all the entries of mar- 
 riage in the register book kept by him since the last cer- 
 tificate, and to contain all the entries made up to that 
 time ; and if there shall have been no marriage entered 
 therein since the last certificate, he shall certify the fact 
 under his hand, and shall keep the said marriage register 
 books safely until the same shall be filled : and one copy 
 of every such register book, when filled, shall be delivered 
 to the superintendent registrar of the district in which 
 such church or chapel may be situated, or which shall 
 have been assigned as aforesaid to such registering officer 
 or secretary, and the other copy of every such register 
 book kept by any such rector, vicar, or curate, shall 
 remain in the keeping of such rector, vicar, or curate, and 
 shall be kept by him with the registers of baptisms and 
 burials of the parish or chapelry within which the mar- 
 riages registered therein shall have been solenniized.i 
 
 Every rector, vicar, or curate who shall have the keep- Searchus to be 
 ing, for the time being, of any such register book, shall at »"o"^- 
 all seasonable times allow searches to be made in it, and 
 shall give a copy, certified under his hand, of any entry or 
 entries in the same/ 
 
 The fee to the clergyman for every such search, ex- Fees foj. 
 tending over a period of not more than one year, is to be 
 one shilling; and sixpence additional for every additional 
 year; and two shillings and sixpence for every single cer- 
 tificate/ 
 
 The superintendent registrar to pay to such rector, vicar, 
 or curate, the sum of sixpence for every entry contained in 
 such certified copy, which sum shall be reimbursed to the 
 said superintendent registrar by the guardians or overseers 
 of the union, parish, or place for which he is the superin- 
 tendent registrar/ 
 
 If such rector, vicar, or curate should neglect so to Penalty on 
 make out and deliver such certified copies, or the certifi- j;;,"^';'",|;j' 
 cate that no marriages have taken place, as the case may cop.es, &c. 
 be, and after being duly required to deliver them shall 
 refuse or neglect so to do during one calendar month, he 
 is liable for every such offence to forfeit a sum not exceed- 
 ing ten pounds, to be recovered as after mentioned ; but 
 
 q Sect. 33. ■■ Sect. 35. ' Ibid. ' 1 Vict. c. 22, s. 27.
 
 670 
 
 OF MARRIAGE. 
 
 Minister may 
 question the 
 parlies. 
 
 Clergyman 
 injuring the re- 
 gister carelessly. 
 
 Wilfully. 
 
 Correcting erro- 
 neous entries. 
 
 in such case a moiety of the penalty shall not go to the 
 informer, but the whole shall go to the registrar general, 
 or such other person as the commissioner of the treasury 
 shall appoint, for the use of her majesty." 
 
 And for enabling the particulars of the marriage to be 
 correctly entered, it is declared lawful for the clergyman 
 to ask the parties married the several particulars which 
 are by the act required to be registered touching such 
 marriage, and the party who wilfully makes any false 
 answers to the questions touching any of such particulars 
 is declared guilty of perjury.'' 
 
 Any clergyman who shall refuse, or without reasonable 
 cause omit, to register any marriage solemnized by him, or 
 who shall carelessly lose or injure the register book, or 
 allow it to be injured while in his keeping, shall forfeit 
 fifty pounds for every such offence. ^ 
 
 And if he shall wilfully destroy or injure such book, or 
 any part or certified copy thereof, or cause it to be de- 
 stroyed or injured, or if he shall falsely make or counter- 
 feit, or cause to be falsely made or counterfeited, any part 
 of any such register book or certified copy thereof, or shall 
 wilfully insert or cause to be inserted in any register book 
 or certified copy thereof, any false entry of any marriage, 
 or shall wilfully give any false certificate, or shall certify 
 any writing to be a copy or extract of any register book, 
 knowing the said register to be false in any part thereof, 
 he shall be guilty of felony.^ 
 
 If, however, the clergyman should discover any error to 
 have been committed in the form or substance of any 
 entry, he may, within one calendar month after discover- 
 ing such error, in the presence of the parties married, or, 
 in case of their death or absence, in the presence of the 
 superintendent registrar and two other credible witnesses, 
 who shall respectively attest the same, correct the erro- 
 neous entry, according to the truth of the case, by entry 
 in the margin without any alteration of the original entry, 
 in which case he must sign the marginal entry, and add 
 the day of the n)onth and year when such correction is 
 made, and must make the like marginal entry, attested in 
 like numner, in the duplicate marriage register book, and 
 also make the like alteration in the certified copy of the 
 register book ; or in case such certified co])y has been 
 already made, then he must make and deliver in like man- 
 ner a separate certified copy of the original erroneous 
 
 " 1 Vict. c. 22, s 28. 
 y Ibid. sect. 42. 
 
 « 6& 7 Will. 4,0. 86, ss. 40, 41. 
 » Sect. 4.3.
 
 OF MARRIAGE. Cj7\ 
 
 entry, and of the marginal correction therein madt; ; and 
 if all this be properly done, then he will not be liable to 
 any of the penalties before mentioned." 
 
 All the penalties and forfeitures before mentioned which Hecov^ry of pe- 
 may be incurred by the clergx'man under any of the last- "*' ' t 
 mentioned provisions as to registration of marriages, unless '^''•''• 
 otherwise directed, are made recoverable before any two 
 justices of the peace, upon the information and complaint 
 of any person; and if, upon conviction, the fine or for- 
 feiture, with costs, are not forthwith paid, the same may 
 be levied by distress; and for want of distress the olleuder 
 may be committed, without bail, for one calendar month, 
 unless the fine, with the charges for recovery of the same, 
 be sooner paid,"" one moiety of the fine to go to the in- 
 former, the other to the registrar general or to such 
 person as the lords of the treasury shall appoint, for the 
 use of his majesty.^ 
 
 No distress is to be deemed unlawful, nor is anv person 
 making it to be deemed a trespasser, on account of any 
 defect or want of form in the summons, conviction, or 
 warrant of distress, or any irregularity afterwards cum- 
 mitted by the party distraining. But persons aggrieved 
 by such irregularity shall recover full satisfaction for the 
 special damages sustained in an action on the case.'' 
 
 An appeal is given in all cases of sunnnary conviction, Appeal, 
 where the sum adjudged to be paid exceeds five pounds, 
 to the next quarter sessions holden not sooner than twelve 
 days after the day of such conviction.* 
 
 Notice of appeal, in wntnig, statmg the cause and 
 matter thereof, to be given within three days of such con- 
 viction, and seven clear days, at least, before such sessions.*^ 
 
 The appellant to remain in custody till the sessions, or 
 enter into a recognizance, with two sufficient sureties, 
 conditioned personally to appear at the sessions and try 
 the appeal, abide the judgment of the court, and pay such 
 costs as shall be awarded.^ 
 
 The sessions to determine the appeal, and make such 
 order therein as to them shall seem meet, with or without 
 costs; if the appeal be dismissed, or the conviction con- 
 firmed, they may order the otlender to be punished accord- 
 ing to the conviction and pay the costs awarded, and may 
 issue process to enforce the judgment.'' 
 
 And no such conviction or adjudication, n)ade on ai)pcal 
 therefrom, shall be quashed for want of form, or be re- 
 moved, by certiorari or otherwise, into any of his majesty's 
 
 > Sect. 44. " Sect. 45. <^ Ibid. ^ Ibid. 
 
 « Sect. 46. ' Ibid. » Ibid. " Ibid.
 
 672 
 
 OF MARRIAGE. 
 
 superior courts of record ; and no warrant of commitment 
 shall be held void by reason of any defect therein, pro- 
 vided it be therein alleged that the party has been con- 
 victed, and there be a valid conviction to sustain the same.^ 
 
 CHAPTER IV. 
 
 OF BURIAL, AND OF THE DUTIES OF A MINISTER 
 OF THE ESTABLISHED CHURCH IN RELATION 
 THERETO. 
 
 Modeof dispos- By far the most ancient account of the mode of disposing 
 ing of the dead, of the dead, of which any authentic record has been 
 transmitted to us, is that contained in the twenty-third 
 chapter of the Book of Genesis, and it is that which has 
 been universally practised among Christians, namely, by 
 By burial. burial. The words of Abraham on that occasion may 
 
 perhaps lead to the inference that this mode of disposing 
 of the dead was not at that time an universal custom, for 
 he says, " If it be your mind that I should bury my dead 
 out of my sight ;"^ words which though capable of other 
 explanation, cannot certainly exclude this supposition. 
 Machpelah, in the Arabic language, signifies walled or 
 shut up ;'' and we may, therefore, infer that the most ancient 
 mode of sepulture was in caves or grottoes, walled up, and 
 thus protected from proflxnation.'' 
 
 The earliest authentic records of other nations, which, 
 however, are of a date long subsequent to the above, 
 mention burning as the mode of disposing of the dead ; 
 and the practice was undoubtedly both very ancient and 
 widely diffused. The following, on the other hand, are the 
 memorable words of the great Cyrus, as recorded by his 
 biogra])hcr, Xenophon ; and if they originated in the ele- 
 gant imagination of the Greek, they are not on that 
 account the less valuable, as showing the opinions which 
 at that age may be supposed to have prevailed either 
 among the Persians or the philosophers of other countries. 
 
 By burning. 
 
 Directions by 
 
 Cyrus as to the , , , " ' , . «, , '5, ,'\~- ~ > 
 
 disposal of his /^'J^= tv agyygo;, ^>]T£ £V oKXm ^r/j=v», aXAa tj; y») uji raxK^Tct 
 
 disf 
 body 
 
 'Sect. 47. ••' Genesis, xxiii. 8. '' Mant's Bible. 
 
 ^ Tacitus also mentions the Jewish custoin of huiial, as something diflFerent 
 from that of other nations. Corpora rnndere quarn cremare, Hist. 1. 5, c. 5.
 
 OF BUUIAL. C73 
 
 u-ko'^jOts, tj yu^ to'jtou /xaxctgiMTs^ov tov yp /X(;)^6)3V«j, fj tiuvtu 
 
 [xsv TO. xaXcc TTuvTuys T ayaOoc (p6ii te x«» TQS-^Si.'^ 
 
 The above passage is reiideied more' iiu|)ortant hv the <»pinioDof 
 comment made upon it by Cicero. " Mihi (piidem "anti- <-'"^ef"- 
 quissimum sepultunii genus id videtur iuisse, (pio apud 
 Xenophontcm Cyrus ufitur."*^ Tlie Jewish ie<;ords were, of 
 course, unknown to the Romans ; but as a different prac- 
 tice prevailed, and for many ages had prevailed at the 
 K time when Cicero wrote, it may be i)rcsumed tliat he iiad 
 some authority, now unknown to us, for the oj)inion which 
 he here expresses. 
 
 From the words of Cyrus, or Xenophon, it may be Antiquity of ihc 
 indirectly inferred that some sepulchral chests, or what we ""^ of coffins, 
 call coffins, were at that time in occasional use, where 
 burial was practised, so as to prevent the bodies which 
 were enclosed in them from comin"- in immediate contact 
 with the earth. It has been thought to be strongly inti- 
 mated by several passages in Sacred History, that the use 
 of coffins, in our sense of the word, was made among the 
 Jews. But it is almost certain that they were not in use 
 among the two polished nations of antiquity, since in 
 neither of them is there any word which can be synony- 
 mous with our word coffin.^ We have seen that the two 
 most ancient modes of disj)osing of the remains of the dead 
 recorded by history are by burial and burning; of which 
 burial, among all nations, according to the passage from 
 Cicero above quoted, appears to be the most ancient. The Burial always 
 example of the divine founder of our religion, in the dis- "J^p^^jlj'jjjong 
 posal of his own person, has established and confirmed rhiisiians. 
 this practice among his followers ; and accordingly, from 
 the earliest records of their history, the Christians abhorred 
 the way of obsequies by burning. The practice of sepal- ^^'"J^J f^*^" 
 ture has also varied with respect to the places used for ", jifl-"^,.^';""' 
 that purpose. In ancient times caves were in high request : times, 
 mere private gardens, or other demesnes of the families, 
 enclosed spaces out of the walls of towns, or by the sides 
 of the roads, and finally, in Christian countries, churches 
 and churchyards, where the deceased could receive the 
 pious wishes of the faithful who resorted thither in the 
 various calls of public worship, and thus the practice 
 generally remains to the present day.'' . , , 
 
 The practice of burying within the churches dul indeed, r.uu.Un ^^^^ 
 though more rarely, obtain before the use of churehvards, ^^^^ 
 but was by authority restrained when churchyards became 
 frequent and appropriated to that use. For among those 
 
 d Xenophon de Cyii Instit. H.' «^ ^^^J^^.?'o".o '' ^ 'v*'" 5"«',«».ll 
 
 '• 3 Phill. 348, per Lord Stowell. ^ 3 Ph.U. 348. per Lord Siowell. 
 
 XX
 
 674 OF BURIAL. 
 
 canons which seem to have been made before Edward the 
 
 Confessor, the ninth bears the title, De non sepeliendo in 
 
 Tte castom ecclesiis, and besins with a confession that such a custom 
 
 aflawarfsre- had prevailed, but must be now reformed, and no such 
 
 stricted. liberty allowed for the future, unless the person be a pri^t, 
 
 or some holy man, who by the merits of the past life might 
 
 deserve such a peculiar favour.'^ 
 
 At first it was the nave or bodv of the church that was 
 permitted to be a repository of the dead, and chiefly under 
 Taaltsia the arches by the side of the walls. Langtranc, Arch- 
 
 ^t^^lT^Jj*^^" bishop of Canterbury, seems to have been the first who 
 brought up the practice of vaults in chsincels, and imder 
 the very altars, when he had rebuilt the church of Can- 
 terbturv, about the vear 1075.* 
 Medaaceme- More recently the places of sepulture in our larger and 
 tsnes. more populous towns have been very commonly in ceme- 
 
 teries, or spots of ground consecrated for that purpose, 
 and tmconnected with the church or churchyard, and this 
 practice may be said to be increasing daily. 
 Persons mav be Such is the brief history of the varied alterations in the 
 boried in parish mode and places of burial, fi-om which there has* arisen a 
 where ihey die. custom SO strong and well established, that it is now the 
 common law of this country, that every person may at this 
 day be buried in the churchyard of the parish where he 
 dies.^ 
 Pnadpleof tiie The canon law principle was " ubi decimas persolvebat 
 OBOB law ; re- vimts sepeliatur mortvus." A stranger and foreigner there- 
 ^^^^i^^ ^ore would, according to that law, have no absolute right 
 ' to burial in the parish where be died, except such right as 
 arises out of necessity. 
 otsembii,maj And it has been recently stated in a work of much 
 dLrm»w^ authority, that the risht that a person has to be buried 
 wjw^pamit- ^jjgj.g YiQ dies must be restricted to such as are parishioners 
 at the time."" But the authority there referred to will 
 scarcely be found to support the proposition ; and it 
 appears that a parishioner dying out of his parish, has a 
 right to be buried where he dies, or, if his relatives wish to 
 rer."- ^ im, that he has also a right to be buried in the 
 ch r-d of his own nari^h. ttbi decimas persolvebat 
 
 vhrus.* 
 Power of oppo*- And it has been held consequently that information was 
 
 iag b«irial of sTantable against a parson opposing the burial of a parish- 
 paiisbiooer. 
 
 " Keanett'i Par. A E- L. 256 ; Gibs. 453. 
 
 » K~r:?r's Par. A ^L. 
 
 '' C T. BitZZSTd, post. 
 
 ' .-. ,. -. . . .... ^.^e, p. I.e. 12. 
 
 ■ Roger's E. L. 136 j aii<i see post Lord Stowell ia Gtlhert f . Buturd. 
 
 ■ See post tbe caw of povper bomb.
 
 OP BIRIAL. ^5 
 
 ionei- in the churchyard : though as to refusing to read the 
 burial service over the deceased, that was a'' matter cog- 
 nizable in the ecclesiastical court.^ And so far as mere Thi. r .m lo ,n. 
 interrnent is meant, there appears to be no exception what- itroit t u5t»«- 
 ever from this general right ; unless there should be a par- "'" 
 ticular custom for some reasons of health, kc, not to bury 
 in the churchyard, or unless in some instances of indivi'- 
 duals, as in the case of one executed for murder, the 
 sentence should, as a part of the punishment, decree 
 othenvise.P Formerly those persons were excepted acrainst Bariil of than 
 whom a verdict oi felo de se had been found, but the per*oQi tgaiMt 
 exception no longer exists, and indeed the interment of of'^LTJS 
 such person elsewhere than in the burial ground of their bocnfoond!* 
 parish seems prohibited, for it is now provided that they 
 are to be privately interred by direction of the coroner or 
 other officer, in the churchyard, or other burial ground of 
 the parish or place in which the remains of such person 
 might by the law of England be interred, within four 
 hours from the finding of fhe inquisition, and between the 
 hours of nine and twelve at nicrht.'' 
 
 So vmiversal is this right of sepulture, that the common Oo whom tW 
 law, as it seems, casts the dut)- of providinsr it, and of car- obh^ition to 
 ning to the grave the dead body decently covered, upon ^^ PMoeru 
 the person imder whose roof the death takes place : for 
 such person cannot keep the body unburied, nor do anv- 
 thins: which prevents Christian burial ; he cannot therefore 
 cast him out, so as to expose the body to violation, or to 
 offend the feelings or endanger the health of the hvinr: 
 and for the same reason he cannot carr\* him uncovere<i t ) 
 the grave. And therefore, when any pauper dies in any 
 parish house, poor house, or union, as the case may be, 
 that circumstance casts on the parish or union the obligation 
 of bursnns: the bodv. And so therefore, as it seems, where 
 any death takes place in an hospital, or other establishment 
 of this kind, the obligation of bur^-iug is on such establish- 
 ment. Fonuerly, it appears to have been a jener 
 that the expenses in such cases should be paid ... - - 
 poor rates of the parish to which the deceased belonged, 
 but this has been now declared to be otherwise ; and that 
 the poor rate cannot legally be applied to such a p' 
 But in the case of burials, under the direction 
 guardians or overseers, it has been declared by statute 
 passed since the above decision, that they may charge the 
 
 » B. T. Taylor, Seijeant Hills MSS., quoted in 1 Burns E. L. 258. 
 P See -2 & '3 Will. 4, c. 75, s. 16 ; and 4 it 5 Will. 4, c. 26. s. 1 . 
 t 4 Geo. 4. c. 52. 
 ' See Rew. V. Stnciirt, 12 Ad. i EU. "73. 
 
 sx2
 
 malters of 
 favour 
 
 676 OF BURIAL. 
 
 expenses to the poor rate of the parish to which the 
 deceased had been chargeable, or in which he died.^ 
 l5uiialsofnon- Except in the case of jiersons dying within the parish, 
 parishioners; it would appear that all burials of non-parishioners are 
 matters of favour and indulgence by the chiirchwardens on 
 behalf of the parishioners, and by the incumbent ; for, as 
 w^e have already seen,* the right to the churchyard is divided 
 in a particular manner between the parties, and the burial 
 of a stranger w^ould be an invasion upon the rights of 
 each, so that it seems impossible that the consent of the 
 parishioners could render that of the incumbent unneces- 
 sary." 
 
 In the case of pauper burials, it is declared lawful for 
 the guardians, or where theie are no guardians, for the 
 overseers to buiy the body of any poor person which may 
 be within their union or ])arish respectively, charging the 
 expenses as already mentioned, either in the churchyard or 
 burial ground of the parish to which such poor person was 
 chargeable (if he or his relatives shall have so desired, or 
 for any other cause they think it right); or in the church- 
 yard, or other consecrated burial ground belonging to the 
 parish, division, or chapelry in which the death may have 
 occurred." 
 No custom to There can be no custom even for parishioners to bury their 
 
 bury iu a par- dend relations in the churchyard as near their ancestors as 
 churchyard"^ possible, uor will a mandamus be granted to bury a corpse 
 
 in a vault, or in any particular part of a churchy ard.^ 
 
 Exception from In particular cases, however, there may \nidoubtedly be 
 
 the general rule a prescription to have separate burial in a particular vault 
 
 y prescription. -^^ ^ pujish church, as belonging to an ancient messuage, 
 
 and if one claiming such a prescription was disturbed, he 
 
 might have an action on the case ; nor need he set forth 
 
 the conditions imposed by an original grant, or that they 
 
 have been complied with. It would be enough to show 
 
 the prescriptive right, and to state that the right had been 
 
 infringed, or a faculty may be shown, of which more here- 
 
 aft('r." 
 
 'I'hus, as we have seen, parishioners have a right at com- 
 mon law to be buried in the churchyard of their parish, 
 and a right, and they have an interest, to prohibit strangers 
 from being bmied there.'' But as to the church, which, as 
 we have ahcady observed, is also occasionally a place of 
 
 » 7 & 8 Vict. c. 101 , s. 31 , niul see post, Fees for Burial. 
 ' See titlo, " ChurcliyaKl." 
 
 " See liiiittin v. Culcott, 1 Ilagg. Ilcp. 17, and LUtlcwotnl v. ]ViHi(ims, 6 
 Taunt. '21J0. 
 
 » 7 & 8 Vict. c. 101, s. 31. y 2 Wils. 28 ; 1 U. & Ad. 122. 
 
 * Coinyns's Dig. f'cmet, ; 8 IJ, 6c C 295 ; Rogers's E. L. 
 
 • Liuleu'ood V. Withams, 6 Tauul. 27y.
 
 OF BURIAL. ri77 
 
 burial, the right of parishioners to burial does not extend 
 thereto; the practice of burial in the church is observed Uurial m ihe 
 by the ecclesiastical coiuniissioners to be in luany respects diurdi. 
 injurious, by weakening the fabric of the church, and by Opitnon of 
 its tendency to affect the health of the inhabitants ; and <;«l«iiMical 
 no parishioner, nuich less therefore a stranger, can insist •"•"'""'"""»*•»• 
 on being buried in any part of the church or chancel, 
 except by leave of the incumbent.'' 
 
 It must be observed however here, in the fust case, we i-.,.„,: :. 
 
 speak ot niterments ni the church orduianly and siniply, cis.- of f.iculiy 
 not of cases where a faculty for fauiilv vaults is applied ""'* p'c»cnp. 
 for, or already exists, or in cases of prescri|)lion. """" 
 
 In the simple case then of a person wishing to be buried Kigia of con- 
 within the church, the right of consent or refusal is in the ^•^"^ "f ftfu"! 
 incumbent alone, to the exclusion of every other,' for '•; ^'^''^'V'" )''<= 
 
 • 1 111 1 111- church IS in llic 
 
 neither the churchwardens nor tlie orduiary hnnselt can incumbeni 
 grant such license. The reason of this appears to be, that "'one- 
 the canon before mentioned {de non sepeliendo in ecclcsiisj Hcusons. 
 restricted the privilege of burial within the church to 
 priests or holy men, who, by the merits of their past lives, 
 deserved such a peculiar favour; the incumbent, therefore, 
 in his capacity as such, may be supposed to be the person 
 appointed by the law to judge of the fitness or unfitness of 
 the person to be allowed this privilege,'' 
 
 But although the incumbent has this jjrivilege, it is Uighiof incum. 
 exercisable only in individual cases : for he can only grant '><^'n« «*«'«■'»- 
 
 r 1- X ii 1 -1 I- • 1- ■ I 1 .1 able only in in- 
 
 or refuse license as to the l)uriai ot some nulivitlual tlien j,vijuj| case*, 
 about to take place, and he cannot by any license from 
 himself bind his successor in any case. But persons buried 
 in churches are now usually buried in vaults made to con- 
 tain themselves and their families, and as this is a matter 
 of lasting concern to succeeding incumbents and to the 
 parishioners, it can only be done by means of a faculty. 
 
 It must be observed, however, that although a faculty Whether ihe in- 
 may have been duly obtained, and a vault exist within the cumi« .• can 
 
 1 "^ 1 r. , , -1 <• 1 1 ■ r 111 i\ object to the 
 
 church for the burial of a nuui and his family llu-rcm, the i,„'„^i ,,f ,„,. 
 
 rio'ht of the incumbent to object to the interment therein ii.,ii»idual in:li3 
 
 of any particular individual would seem to exist notwith- fj',;;^'',",|;^,'j,„ 
 
 standing. For the reasons which have been already giveu, ^*g|,^>^,^. f,^„,,y, 
 
 why the incumbent is the fit person to give or n.'fuse such 
 
 license would remain altogether unailectcd ; and although 
 
 the incumbent might originally, by withholding his consent 
 
 to the faculty, have pre'vente'd its being obtained, yet he 
 
 cannot be supposed, by consenting, to have waived for 
 
 himself and his successors a right which depends on 
 
 wholly different grounds. 
 
 b Rotrers's E. L. 126. "^ Francis v. Lett, Cro. Jac. 367. 
 
 d Rogers's E. L. 127 i 8 B. & C. 295; Degge, 145 ; Kenn, Par. .\nt. 592.
 
 678 
 
 OF BURIAL. 
 
 Supposed 
 opinion of Sii 
 .]. Nicholl on 
 this subject. 
 
 Propriety of the 
 refusal of in- 
 cumbent may 
 probably be 
 considered in 
 the ecclesias- 
 tical court. 
 
 Interment of 
 persons siiip- 
 wrecked and 
 cast on shore. 
 
 llcward to per- 
 sons finding 
 such bodies. 
 
 In a case, however, which we have before mentioned, 
 the judgment of Sir J. Nicholl would rather seem to lead 
 to the conclusion that in the opinion of that learned judge 
 there was at least some doubt whether the incumbent, in 
 such a case, could object to the interment. That judg- 
 ment was upon the grant of a faculty for the making a 
 vault in the chancel by the lay rector. The vicar was the 
 incumbent, and it was said in the judgment, "Even if the 
 consent of the vicar to the actual interment of bodies were 
 required,'' &c. ; and again, " If the vault were to be con- 
 structed, and the vicar's consent to interments therein loere 
 necessary," thus evidently implying a doubt as to the ne- 
 cessity for the consent of the incumbent, and, indeed, he 
 says more distinctly, " it cannot be tolerated that his de- 
 cision on the moral fitness of the individual to be buried in 
 the chancel should be guided by the amount of the fee 
 paid." " 
 
 If this proposition, which in itself appears most reason- 
 able, be correct, it seems to follow that the incumbent 
 refusing might be compelled to give his reasons for such 
 refusal, consequently that not he alone, but some other 
 authority, as the ecclesiastical court, would be constituted 
 the judge of the fitness or unfitness of the person to have 
 the privilege of being buried in the church. 
 
 Even with regard to persons shipwrecked, and whose 
 bodies have been cast on shore, miserable outcasts who 
 have no relatives to claim them, and whose remains, 
 perliaps, it may be impossible to recognize, the law has 
 specially provided that decent interment shall be given 
 them; ^ for the churchwardens and overseers in any parish 
 in England, in whicli any dead body is cast on shore from 
 the sea, shall, upon notice being given them, cause such 
 body to be conveyed to some convenient jilacc, and with 
 all speed cause it to be interred in the parish churchyard 
 or burial ground. The expenses of such interment are not 
 to exceed the sums allowed by the parish for the burial of 
 other ])ersons buried at the expense of the parish j or if 
 such body should be cast on shore in any extra parochial 
 ])lacc, such notice is to be given to the headborough, or 
 constable, who shall proceed as before directed in tlic case 
 of churchwardens, &c.*^ 
 
 And every ])erson who sliall find any such body on the 
 shore, and within six hours give such notice of the fact to 
 tiic pro|)cr ])artics above mentioned, shall be entitled to 
 five shillings for his trouble; but this is only to be paid to 
 the first person who gives such notice ; and no more than 
 
 «= Rich V. Bushuell, 4 llagg. 154. ' 4 Geo. 3, c. 75. 8 Sect. 1.
 
 OF BURIAL. G/U 
 
 five shillings is to be given iilthough i\u:ic may be iiioil: 
 
 than one body;'' and as a reward is oliered i'or persons jv; „„[ 
 
 properly giving such notice, so is there a punishment j)ro- gi. 
 
 vided for neglecting so to do, for all persons finding such "'""' ''j*' '^y 
 
 bodies on the shore, and neglecting uithin six hours after 
 
 to give or leave such notice, shall forl'eit five j)ounds,' and j,^, 
 
 every churchwarden, constable, &c. as the case may be, m^ 
 
 neglecting to remove such bodies from the shore, prior to remove b<xi»e». 
 
 interment, for twelve hours after notice given or left in 
 
 writing at their abode, or to perform the other duties by 
 
 the act required of them, shall forfeit lor each otfenc(; five 
 
 pounds. J 
 
 The act, of part of which the above is an analysis, 
 contains several other provisions not important for our in ih.se ca»et 
 present purpose. But the most important part of the act, >'"^ "'••->; o( 
 as concerns the clergy, is, that not only is sepulture en- p^f^orumlTaa ia 
 joined, but the office of burial is also to be performed in ti,e usual 
 such cases, for every minister, parish clerk and sexton, manner, 
 shall in these cases perform the duties customary in other 
 funerals, and admit the body to be buried in the |)arish 
 burial ground, receiving the like fees as in cases of burial 
 at the expense of the parish,'' so that in every such case 
 the minister is to presume that the body thus cast upon 
 the shore is that of one properly baptised, and is to act 
 accordingly. And this, as it seems, in all cases, notwith- 
 standing circumstances of colour, country, &c. might lead 
 to an opposite conclusion. 
 
 The right to interment, therefore, is general, every per- 
 son, according to the circumstances, having a right to se- 
 pulture, either in the church, or churchyard, or other burial 
 place attached or belonging thereto: but the mode of -Mode of bun.i. 
 interment, and particular spot or jiart of the burr.U ground 
 in which each person is to be buried, it is for the parish, 
 represented by the churchwardens, to determine;' and 
 though the right of sepulture is a common law riuiit, the 
 mode of burial is the subject of ecclesiastical cognr/.ance 
 alone, upon which subject it was said by Abbott, ('..!. 
 " If a clergyman should absolutely refuse to bury the U- 
 body of a deceased person brought to him for mtermont ^;[ ^^^ 
 
 in the usual wav, I am by no means prepareil to say that m., ...^- 
 this court would not grant a mandamus to compel hnn to usual mode, 
 bury the body ; but 'this would be actmg m aid of the 
 ecclesiastical court." ■" • i i 
 
 The mode in which the mortal remains are to !"• 'i.-- 
 
 h Sect. 3. ' ^tct. 4. J ^ccl. 7. 
 
 Sect. 2. But as to any bu.ials at the expense of il.e pansh, see «^f . 
 ' See ante. "" R- v- Coleridge and others, 2 U. & A. 8(M>. 
 
 k 
 1
 
 680 
 
 OF BURIAL. 
 
 Opiniou of 
 Lord Stowcll. 
 
 The present 
 state of the law 
 as to the mode 
 of burial to be 
 collected from 
 the words of 
 Lord Stowell. 
 
 History of tlie 
 mode of iuter- 
 tiient. 
 
 posited ill the grave is a subject which, in populous 
 parishes, may be of great concern to the parishioners, but 
 of which Lord Stowell observes, " I do not find any posi- 
 tive rule of law or rehgion that prescribes." Taking this 
 to have been the case prior to the time when the judg- 
 ment in which these words occur was delivered, the prin- 
 ciples contained in that judgment may be considered, since 
 that time, as entirely regulating the law on this subject. 
 It may not, therefore, be less useful than interesting to 
 insert here, as the present state of the law, the able and 
 lucid language of that decision." In that case the body 
 of the deceased had been deposited in an iron coffin, and 
 due notice had been given of the intended interment, but 
 the churchwardens having previously signified to the rela- 
 tions of the deceased that the parish would not permit an 
 iron coffin to be deposited in their churchyard, prevented 
 the burial from taking place on account of the imperish- 
 able nature of iron cofldins, which, in so populous a parish 
 as that of St. Andrew's, Holborn, w'ould soon render the 
 churchyard useless for its purposes. A suit was brought 
 in the ecclesiastical court by a relative of the deceased 
 against the churchwardens, in which the right of the 
 parish to prevent this mode of interment was, in fact, the 
 sole question. 
 
 After some remarks upon the case. Lord Stowell says," 
 "that a body be carried to the grave in a state of naked ex- 
 posure would be a real offence to the living, as well as an 
 apparent indignity to the dead. Some coverings have 
 been deemed necessary in all civilized and christian coun- 
 tries, but chests containing the bodies, and descending 
 into the grave along with them, and theie remaining in 
 decay, do not plead the same degree of necessity, nor the 
 same universal use. In the western part of Europe, the 
 use of sepulchral chests has been pretty general. An at- 
 tempt was made, in our time, by an Euroj)ean sovereign, 
 to abolish their use in his Italian dominions, much com- 
 mended by some ])hilosophers, on tlu; physical ground 
 that the dissolution of bodies would be accelerated, and 
 the virulence of the fermentation disarmed, by the speedy 
 absorption of all noxious particles into the surrounding 
 soil. Whatever might be the truth of the theory, the 
 measure was enforced by regulations prescribing that 
 bodies of every age and of both sexes of all ranks and 
 
 " Gilberl V. liuzzard, 3 IMiill. 348. 
 
 " The beautiful language, extensive learning, and generally useful applica- 
 bility of this judgment, appear to be a sufficient excuse for the length at which 
 it is here inseilcd.
 
 OK HURIAL. (Jg| 
 
 conditions, and of iill sjjecios of nioilal disease, and r-very 
 form oC death, however hideous and luiithsonie, slioidd I>l' 
 nightly tumbled, naked and in the; staU- th.y died, at th..- 
 sound of a bell, into a night cart, and thence carried to a 
 pit, beyond the city walls, there to rot in one mass of 
 undistinguished putrefaction. This system was so tstronuiy 
 encountered by the established habits, as well as by the 
 natural feelings of a highly-civilized and polished peoj)le, 
 that it was deemed advisable, at no great distance of time, 
 to bury the edict itself by a total revocation. In the 
 Southern American establishments of the European na- 
 tions, coffins do not appear to be used. In our country in oui own 
 the use of coffins is extremely ancient. They are found founu). 
 of great apparent anti(piity, of various forms, and of va- 
 rious materials; of wood, of stones, of metals, of marble, 
 and even of glass. " Coffins," says Dr. Johnson, '* are 
 made of wood and various other matters." From the ori- 
 ginal expense of some of the materials or labour necessary 
 tor the preparation of them for this use, or for both, it is 
 evident that several of them must have been occupied by 
 persons who had filled the loftiest stations of life. In 
 modern practice, chests or coffins of w ood or lead, or both, 
 are commonly used for persons who can afibrd to pav for 
 them. For persons of abject poverty, whom the civil law 
 distinguishes by the title of the miseruhiliter e</eni, what is 
 called a shell is used, and which I understand to be an 
 imperfect coffin, and in very ])opulous parishes is used 
 successively for difi'erent individuals, unless charity, j>ub- 
 lic or private, supplies them with a better. Persons dying persons dying 
 at sea are, I believe, usually committed to the decj) in ai sea. 
 their bedclothes and liammock, but I am not aware that 
 any of these are nominally and directly retpiired. A 
 statute has required that the funeral vestment shall be 
 made of wool ; and coffins must, by the same statute, be 
 lined with wool, but the use of it is not enjoinL-d. I ob- 
 serve that in the funeral service of the (,'lunvh of l-ingland 
 there is no mention (and indeed, as I should rather col- 
 lect, a studied avoidance of the mention) of coffins. It is, i-],^ l^„t»\ 
 throughout the whole of that service, the curpsc or the service. 
 body. The officiating j)riest is to meet the corpse at the 
 gate of the churchyard; at certain parts of the service, 
 dust is to be thrown, not u])on the co//?'//, but upon the 
 body ; certain parts of the service are to he recited whilst 
 the corpse is making ready to be put into the grave. I 
 observe, hkewise, that in old tables of parish fees a dis- 
 tinction is stated between coffined funerals and uncotiined 
 funerals in point of payment. There is one of lo27,
 
 682 OF BURIAL. 
 
 quoted by Sir Henry Spelman in his Tract de SepuUurdy 
 where a certain sum is charged for coffined burials, and 
 Uncoffined fu- half the same sum for uncoffined burials, and expressly 
 nerals formerly under those general heads of coffined and uncoffined 
 not unfrequent. fm^erals, from whence I draw this conclusion of fact, that 
 uncoffined funerals were, at that time, by no means so 
 mifrequent as not to require a particular notice and pro- 
 vision. 
 
 " The argument, therefore, that rests the right of admis- 
 sion for particular coffins upon the naked right of the pa- 
 rishioner to be buried in his churchyard, seems rather to stop 
 short of what is requisite to be proved, viz. the right of being- 
 buried in a large chest or trunk of any material, metallic 
 or other, that his executors may think fit. The law to be 
 found in many of our authoritative text writers certainly 
 says that a parishioner has a right to be buried in his own 
 parish church-yard ;!" but it is not quite so easy to find the 
 Meaning and rule in those authorities that gives him the right of burying 
 limit of the right a large chest or trunk along with himself. This is no part 
 of paiisiuonerto ^^ j^j orioinal abstract ridit, nor is it necessarily involved 
 
 be buried in Ins . . mi* • i • i '^ i • i ^ i • 
 
 own parish m it. 1 hat right, strictly taken, is, to be returned to his 
 church-yard. parent earth for dissolution, and to be carried there for that 
 purpose in a decent and inoffensive manner ; when those 
 purposes are answered, his rights are perhaps satisfied, in 
 the strict sense in which his claims in the nature of absolute 
 7^ights can be supposed to extend. At the same time it is 
 not to be denied that very natural and laudable feehngs 
 prompt to something beyond this, to the continuation of 
 the frame of the body beyond its immediate consignment 
 to the grave; and an indulgence of such feelings very 
 naturally engrafts itself u])on the original rights, so as to 
 appear inseparably connected with them in countries where 
 the practice of it is habitually indulged. For, however 
 men may feel, or affect to feel, an indifference about the 
 fate of their own mortal remains, few have firmness, or 
 rather hardness of mind, sufficient to contemplate without 
 pain the total and immediate extinction of the remains of 
 those who were justly dear to them in life. 
 
 " It is j)articularly, I presume, with a view to prevent 
 spoliations of the dead, that the use of coffins in question is 
 pressed in the present application to the court. The objec- 
 tion is to the metal of which the coffin is comi)Osed, the 
 metal of iron ; and I must say, that knowing no rule of 
 law that ])rcscribes coffins, and certainly none that pre- 
 scribes coffins of wood exclusively, and knowing that 
 modern and frequent usage admits coffins of lead, a metal 
 V See ante ; the right appears not confined to parishioners only.
 
 or BURIAL. 683 
 
 of a much more indestructible nature than iron, I find a Imn cottm* aic 
 difficulty in pronouncing that the use of this latter mt-tal ""! ""'♦«-'*»"y 
 is clearly and universally unlawful in the structure of ""'***^"'- 
 coffins, and that coffins so composed are inadmissible upon 
 any terms whatever. These coffins, l)eing- composed of 
 thin laminas, occupy, I presume, as it is alle<j;ed, rather 
 less space than those of wood itself. There is then no ob- 
 jection on that ground ; and the objection, that they may 
 be magnified to any inconvenient size, seems to apply to 
 coffins constructed of this substance no more than to those 
 of any other. But the claim on the part of these collins is 
 (which is quarrelled with, though not distinctly avowed), 
 that they shall be admitted on the same terms of jjecuniary 
 payment as the ordinary wood. This claim cannot, I think, 
 be reasonably maintained but under the support of one or 
 other of these propositions, either that there is no difference 
 in the duration of the coffin of wood and coffin of iron, or 
 that the difference of duration, be it what it may, ought to 
 make no difference in the terms of admission." 
 
 After mentioning the opinion of the court, that iron 
 coffins might be much more durable than those of wood, 
 Lord Stowell continues, " It beino- assumed that the court 
 is justified in holding this opinion upon the fact of compa- 
 rative diu'ation, the pretension of these colhns to be ad- 
 mitted on equal terms must resort to the other projjosition, 
 which declares that the difference of duration ought to 
 make no difference in the terms of admission. Accordingly 
 it has been argued, that the ground once given to the in- 
 terment of a body is appropriated for ever to that body ; 
 that it is not only the clomus ultima, but the domiis ecterna, 
 of that tenant wlio is never to be disturbed, be the condition 
 of this tenant himself what it may. It is his for ever ; aiul 
 the insertion of any other body into that space, at any 
 other time, however distant, is an unwarrantable intrusion. 
 If these positions be true, the question of comparative 
 duration sinks into utter insignificance. 
 
 " In support of them, it seems to be assumed that the 
 tenant himself is imperishable ; for surely there cannot be 
 an inextinguishable title, a perpetuity of possession, be- 
 longing to^ a perishable thing, but obstructed in a jiortion 
 of it by public authority. The fact is, that ynnii, and /or 
 ever, are terms quite incomj^atible in any state of his exist- 
 ence, dead or alive, in this world. The time nmst come 
 when his posthumous remains must mingle with and com- 
 pose a part of the soil in which they have been deposited. 
 Precious embalments and splendid monuments may pre- 
 serve for centuries the remains of those who have filled the
 
 684 OF BURIAL. 
 
 more commanding stations of human life ; but the com- 
 mon lot of mankind furnishes them with no such means 
 of conservation. With reference to men, the domus (ctenia 
 is a mere flourish of rhetoric. The process of nature will 
 resolve them into an intimate mixture with their kindred 
 earth, and will furnish a place of repose for other occu- 
 pants of the grave in succession. It is objected, that no 
 precise time can be fixed at which the mortal remains, and 
 even the chests which contain them, shall undergo the 
 complete process of dissolution; and it certainly cannot, 
 being dependent upon circumstances that differ, upon 
 difference of soils and exposure, of climate and seasons : 
 but observation can ascertain it sufficiently for practical 
 use. The experience of not many years is required to 
 furnish a certainty sufficient for such purposes. Founded 
 on these facts and considerations, the legal doctrine cer- 
 tainly is, and remains unaffected, that the common cemetery 
 Tlie church- is not res unius eetatis, the exclusive property of one gene- 
 yard or common ration now departed ; but is likewise the common property 
 res"(UHifs ^etatis '^^ ^^^^ living, and of generations yet unborn, and subject 
 nor the exclusive only to temporary appropriation. There exists a right of 
 property of one succession in the whole, a right which can only be lawfully 
 genera ion. obstructed in a portion of it by public authority, that of the 
 Granting faculty ecclesiastical magistrate, who gives occasionally an ex- 
 churcii-yard clusivc title in a part of the ])ublic cemetery to the succes- 
 discretionary, sion of a single family, or to an individual who has a claim 
 and discretion to to such a distinction; but he does not do that without just 
 ercis^e'd.^ '' '^^' consideration of its expediency, and a due attention to the 
 objections of those who opj)osc such an aUeiiation from the 
 common use. Even a brick grave, without such authority, 
 is an aggression upon the common freehold interest, and 
 carries the pretensions of the dead f o an extent that violates 
 the just rights of the living. 
 
 " If this view of the matter be just, all contrivances that, 
 whether intentionally or not, prolong the time of dissolution 
 beyond the j)erio(l at whicii connnon local usage has fixed 
 it, are acts of injustice, utdess compensated for in one way 
 or other. In country j)arishes, where the popidation is 
 small, and the cemeteries arc large, it is a matter less 
 worthy of consideration. More can be spared, and less is 
 wanting. But in p()j)ulous parishes, in large and crowded 
 cities, the exclusive j)()ssessic)n is unavoidably limited ; for, 
 unless limited, evils of formitlable magnitude would take 
 place. Churchyards cannot be made conunensurate to a 
 large and incrciasing po|)ulation : the jieriod of decay and 
 dissolution does not arrive fast enouiih in the accustomed 
 mode of depositing bodies in the earth, to evacuate the
 
 OF BURIAL. 085 
 
 ground for the use of succeeding cluinifints. New ceme- 
 teries are to be purchased at an enormous expense, and the 
 whole environs of the nietropohs wouhl he surroniuh-il hy 
 a circunivalhition of chur(;hyards. 
 
 " If, therefore, tli(>S(\ iron colhns are to hring an a(hU- 
 tional charge upon paiishes, they ought to bring with tliem 
 a proportionate compensation; upon all connuon princijjles Iron cnfTm* 
 of estimated value, one must pay for the longer lease which »'"'"''J I'^y =•«> 
 you actually take of the ground. If you wish to protect ^ '^'""^ ^^' 
 your deceased relative by additional security, which will 
 press upon the convenience of the parish, we do not blame 
 the purpose, nor reject the measure ; but it is you and not 
 the parish who must pay for that purj)ose. It remains 
 only that I should direct the parish to exhibit a table of 
 burial fees for the consideration of the ordinary. Patent 
 rights, and on which it seems these coffins are constructed, 
 must be held by the same tenure as all other rights, ita 
 utere tuo ut alienum ne Iccdas. They miist not infringe 
 upon rights more ancient, more public, and such as this 
 court is peculiarly bound to protect." After some further 
 time spent in considering this matter, the case ended by 
 Lord Stowell signing a table of fees for burial to be used Table of feci 
 in the parish in question; which taljle has been addctl in ^'|'^''^'^\['/ ^"* 
 the Appendix, as it is presumed that it may prove very ' 
 convenient as a general guide.'' 
 
 The present state of the law, therefore, as deduced from 
 the above case is, that the burial in iron coflius is cerlainly Meul co^rm. 
 not unlawfvd, and that the use of them is not prohibited ; ""' >"> »" >» • 
 that they stand upon the same grounds as leaden coflins, 
 or those made of any other metal ; but that those who wish 
 to use them, must pay for that privilege. The increased Adaitiowl fc« 
 fee to be demanded for them to be fixed in the first instance ;;'j'X„"'^(^ 
 by the parish, but subject to the revision of the ecclcsias- ^xtJ. 
 tical court upon appeal. As to the application of the mo- 
 ney so paid, that, as it seems, is to be decided by tin- pa- 
 rish; and to whatever parties and in whatever proportions Jo wl.om lo I* 
 the usual fees for interment have been paid, to those same ^ 
 parties and in the same proportions, it is presumed, that 
 the increased fees would also be payable : at any ratf, as 
 observed by Lord Stowell, tiic party disputing the auuiuut 
 charged to him for such burial would have no right to com- 
 plain of its apphcation, or indeed to look into that (pu-stion, 
 or to quarrel with the public uses to which it may have 
 been applied by the parish. ,. , • 
 
 Formerly, as observed Lord Stowell, the use of shrouds, nuri.l .n 
 made of woollen, was enforced by statute, t-r llw m- -lien .h.oud. 
 
 'I See Appendix.
 
 686 
 
 OF BURIAL. 
 
 not now en- 
 forced. 
 
 The burial ser- 
 vice. 
 
 Minister not to 
 refuse to per- 
 form generally. 
 
 Penalty for re- 
 fusal. 
 
 Burial of dis- 
 senters in Ire- 
 land. 
 
 Kxceptions to 
 the general rule 
 
 conragement of the woollen manufacturer ; but those acts 
 have been since repealed.'" 
 
 Hitherto, we have spoken principally of the universal 
 right to interment, provided the mode be not objected to ; 
 there is a further right, which is not equally universal, and 
 which we hitherto noticed only incidentally, viz. to have 
 the burial service performed over the body, a subject which 
 more peculiai'ly concerns the clergy. 
 
 No minister shall refuse or delay to bury any corpse that 
 is brought to the churchyard, convenient warning being 
 given him thereof beforehand, as prescribed by the Book 
 of Common Prayer ; and if he shall refuse to do so, except 
 the party deceased were pronounced excommunicate ma- 
 jori excommunicatione, for some grievous and notorious 
 crime, and no person able to testify of his repentance, he 
 shall be suspended by the bishop of his diocese from his 
 ministry for the space of three months.^ 
 
 The proceeding in such a case, being for a breach of the 
 laws ecclesiastical, would be under the Church Discipline 
 Act before mentioned.' It is also said that an information 
 would be granted in such a case by the Court of Queen's 
 Bench." 
 
 And it would appear that the clergyman is bound to 
 read the burial service over the body brought to be interred, 
 whether it is desired or objected to by the relatives of the 
 deceased; for the statute respecting the burial of dissenters 
 in Ireland clearly supposes this to be the law, it being there 
 declared that it shall not be necessary for the officiating 
 minister of any church in Ireland to celebrate the burial 
 service as by law established at the interment of any per- 
 son not being of the Established Church of Ireland, 
 unless by particular desire.'' 
 
 And with regard to the burial of dissenters in Ireland, 
 generally it is enacted, that clergymen may grunt permis- 
 sion to ministers of other churches and congregations than 
 of the Church of Ireland to perform the burial service over 
 the bodies of jiersons of their congregations in the church- 
 yard of the parish ; such permission must bo in writing, 
 and (express the time appointed for the biu-iul.^ 
 
 Although the canon only mentions the above exception 
 
 • to the rule, yet two others arc mentioned in the rubric, 
 
 which notes that the office of burial is not to be used for any 
 
 thut die unijuptised, excommunicate, or who have laid 
 
 violent hands on themselves.^ Of the first of these excep- 
 
 r tA Geo. 3, c. 103, " Canon 68. ' Vide ante, cliapt. 
 
 " Rogers's E. L. VM. ^ 5 (Jeo. 4, c.25, s. 4. > Ibid. 
 
 * Office of J3urial, Book of Common Prayer.
 
 OF BURIAL. gg7 
 
 tions, we have already spoken fully under tlie head of 
 Baptisms. It need only be repeated'here tliut tiie clcrtry- 
 man cannot constitute himself a judge of what is or what 
 is not baptism, because that is determined by tiie law, which 
 he is bound to obey ; and that no person is to be con- who are to be 
 sidered unbaptised, so as to be refused Christian l)urial, ■ ' i a» 
 who has been ba])tised accordin^j; to the essentials of bap- j, ^ ; ^**' 
 tisms already defined," by whomsoever, whether j)riest or "* *""''*^* 
 layman, that ceremony has been performed ; and that a 
 clergyman, refusing to bury one who has been bajitised 
 according to those essentials, is fully liabhi to the penalty 
 before mentioned. 
 
 Of the second exception, it is to be observed, that the 
 meaning of the rubric in this respect seems to be exj)lained 
 by the canon, which says, that no person shall refuse to whoareiob* 
 bury, &c. in such form as prescribed by the Book of Com- conMdered a* 
 mon Prayer, unless the party deceased were denounced ctcommunicaic. 
 excommunicated majori excommunicatione for some grievous 
 and notorious crime, and no person able to testify of his 
 repentance.'' It is clear, therefore, that those cases in 
 which the canon law declares persons ipso facto excom- 
 municate, were never contemplated by the words of the 
 rubric ; and both before and since the Reformation, where 
 evidence appeared to the bishop of the repentance of the 
 persons excommunicate, commissions have been granted, 
 hot only to bury them, but in some cases to absolve them, 
 in order to Christian burial.'" 
 
 The last of these exceptions is to be taken in its restricted Who are to be 
 sense. Idiots, lunatics, and persons of insane mind, not j;";-;^^*';^/,-^ 
 being deemed responsible for their acts, are not to be un- lent i.anJ. ou 
 derstood thereby;'' but those only who, having wilfully tl.cmsci»M. 
 destroyed themselves, are supposed to have died in the 
 commission of a mortal sin. Of the state of mind of those 
 who die by their own hands the coroner's jury are the pro- 
 per judges; and as the law in reference to other matters 
 considers those only as having laid violent hands on them- 
 selves, upon whom a verdict oi felo-de-se has been returned 
 by such a jury, it cannot be supposed that the mnnster 
 would be permitted to exercise his own judgn)ent m such 
 a matter. The first ecclesiastical rule as to this matter is RuleofihooU 
 the 34th canon of the first council of Braga. a. d. .'iCa, ' 
 which forbids any burial service for those (jui vwlcntersibi 
 ipsis inferunt mortem. The older commentaries on which 
 appear to have understood this with the limitation, d they 
 do it voluntarily, and by instigation of the devil; and this 
 a Vide ante, " Baptisms." \ tJanon 68. 
 
 c Gibs. 450. •' li^"'"^ ^"^ 
 
 ccclcsiatlical 
 law.
 
 688 
 
 OF BURIAL. 
 
 Opinion of Dr. 
 Burn. 
 
 Probable state 
 of the law on 
 this sul)ject. 
 
 Other causes 
 formerly for 
 refusing buiinl 
 
 may be considered to have been the old ecclesiastical law 
 prior to the rubric.'' 
 
 We should not, therefore, as Dr. Burn observes, without 
 necessity, understand our own rubric to be so nuich more 
 severe than the preceding constitutions, as to place mad 
 people in the same rank with excommunicate and unbap- 
 tised persons, and punish a poor creature for what in him, 
 indeed, was no crime; and he further adds, the proper. 
 judges, whether peisons who died by their own hands were 
 out of their senses, are, doubtless, the coroner's jury. The 
 minister of the parish hath no authority to be present at 
 viewing the body, or to summon or examine witnesses. 
 And therefore he is neither entitled nor able to judge in 
 the affair, but may well acquiesce in the public determina- 
 tion, without making any private inquiry. Indeed, were 
 he to make one, the opinion which he might form from 
 thence could usually be grounded only on common dis- 
 course and bare assertion ; and it cannot be justifiable to 
 act upon these in contradiction to the decision of a jury, 
 after hearing witnesses upon oath. And though there may 
 be reason to suppose that the coroner's jury are frequently 
 favourable in their judgment, in consideration of the cir- 
 cumstances of the deceased's family with respect to the 
 forfeiture, and their verdict is in its own nature traversable ; 
 yet the burial may not be delayed until that matter upon 
 trial shall finally be determined ; but on acquittal of the 
 crime of self-murder by the coroner's jury, the body in 
 that case not being demanded by the law, it seemeth that 
 a clergyman may and ought to admit that body to Chris- 
 tian burial.' 
 
 We have entered into this subject more fully, because, 
 notwithstanding the authority here quoted, the strict letter 
 of the rubric would seem to require a different practice ; 
 and no case appears ever to have occurred, in which a 
 clergyman, who has refused to bury the corpse of one who 
 has committed suicide in insanity, has been punished by 
 the ecclesiastical law. The uniform practice, however, so 
 far as it has been able to be ascertained, is in accordance 
 with the reasoning and opinion of Dr. Burn ; and it nmst 
 be doubtful whether a departme from a custom of such ac- 
 knowledged propriety would not be visited with ecclesias- 
 tical ])unis]nnent. 
 
 Anciently there were other causes for refusing Christian 
 burial, as for heretics, persons not receiving the holy sacra- 
 ment once in the year — persons killed in duels, tilts, and 
 
 <= But see Wheatley on tlie Common Prayer. f 1 Burn's K. L. 267.
 
 OF BL'RIAL. C89 
 
 tournaments ; but the rubric having- mentioned tliree causes 
 of refusal only, all other prohibitions seem no longer to 
 exist.' 
 
 It is remarkable that the rubric gives a very general i'l'e service at 
 direction only in the order for the burial of the dead; for '^"^"■^"^ ''y"" 
 it directs that the priest and clerk's meeting the corpse at '" "'^' 
 the entrance of the church yard, and going befoi-e it eit/ier 
 into the church or towards the grave, &c. ; which, if it stood 
 alone, might probably be explained by the circumstance 
 that burial might be in the church or in the churchyard ; 
 but it is evident from the order of the service, that this 
 explanation would be insuflicient ; for there is a consider- 
 able poition of the service which is to be read after the 
 corpse has been carried into the church, and before they 
 come to the grave : yet there is no positive direction that 
 the corpse must be taken into the church. It would seem, 
 therefore, that it was intended to leave this matter at the 
 discretion of the minister, to be exercised by him accord- 
 ing to his knowledge of the life and habits of the deceased; 
 but, practically, this apparent discretionary power in the 
 minister has given rise to a great scandal ; and the discre- 
 tion of the minister has, in many parishes, been guided by 
 the amount of the fee paid : or rather has been nu\de the 
 means of extorting more than the customary fee for burial: 
 and a different order of the burial service is consequently 
 used in many parishes for the wealthy and for the indi- 
 
 gent. 
 
 No constitution or canon, ancient or modern, fixed or Fee* for inter- 
 
 menl and 
 of burial. 
 
 pretended to fix any fee for interment, or for the office of '"em and orfice 
 
 burial ; on the contrary, the constitution of Langton says, 
 
 we do firmly enjoin that burial shall not be denied to any 
 
 one, upon the account of any sum of money. And here Burial not to be 
 
 it may be observed, that although the canon law might J'-"'»-*l »"»'•• 
 
 1 ./., • . n , 1 • ^ c -i J * r li count of tlic If*. 
 
 prohibit ministers from taking any tee, it does not lollow 
 that it could enforce upon the laity the payment of one. 
 
 But though fees are not due of common right, it seems Fees may be 
 to be now clearly established, that they may be payable P^^^JjJ*''^ 
 by custom ; and originally all such customary fees seem 
 to have been payable for the interment, rather than for the 
 performance of "the burial service ; but, as in the former 
 case, the fee, or a part of it, may have been payable to the 
 clergyman, as in the latter case, the question is not easy to 
 be determined. 
 
 At present it may be laid down that the payment of all 
 such fees, and also"the application of them when paid, is 
 regulated by, and entirely dependent on, the custom of 
 
 f Barn's E. L. 267. 
 
 Y Y
 
 690 
 
 OF BURIAL. 
 
 Variously paid 
 and applied. 
 
 In and about 
 London. 
 
 Custom must be 
 iramemorial 
 and invariable. 
 
 May be enforced 
 by the ecclesi- 
 astical court. 
 
 Supposed limit 
 of Its jurisdic- 
 tion. 
 
 And is triable 
 at common law. 
 
 each particular parish, and is, therefore, by no means 
 necessarily to be made to the minister ; as would be the 
 case of a fee paid for the office of burial. In some places 
 it is payable to the incumbent, in others to the church- 
 wardens, and in some others to the incumbent and church- 
 wardens in certain proportions, and in some places, as in 
 many of the parishes about London, the churchwardens 
 not only have the fee for interments in the churchyard, but 
 for those in the church also, the incumbent having the fee 
 for interments in the chancel only ;S and the payment of 
 those customary fees has been recognised in several sta- 
 tutes, and especially in a case in the Common Pleas in 
 1815, in which it was said by C. J. Gibbs — the supposed 
 right is to a fee on burial : at common law the church- 
 wardens have no such right whatever. It may exist by 
 custom, but the custom must be immemorial and inva- 
 riable.'' So that in a case Avhere such fees were alleged to 
 be payable out of the poor rates, it was said that this dis- 
 proved their ancient origin ; and that it could not be an 
 immemorial custom.' 
 
 If there were no question as to the existence of the cus- 
 tom, the ecclesiastical court would have jurisdiction to en- 
 force the payment of the fee ; and there would be no 
 ground for a prohibition : but in a recent suit for fees, 
 under such circumstances, in the ecclesiastical court. Dr. 
 Lushington says : " The whole subject is not without 
 difficulty ; for it is admitted that no such suit has been 
 brought for a hundred years last past; and I can find 
 nothino" in the books as to who are liable for these fees: 
 whether the legal personal representatives of the deceased 
 or any one else."'' And where the payment of fees for 
 burial was established by, and rested on, the authority of 
 a local act of parliament, it was doubted by Dr. Lushing- 
 ton whether the ecclesiastical court had any power to en- 
 force the payment of them, or whether its jurisdiction was 
 not confined to ancient and customary fees only. And as 
 the act had directed the vestrymen to settle and fix a table 
 of fees for burial, which they had not done, he intimated 
 his opinion that they might be compelled to do so by 
 mandamus.' 
 
 The proportion of fees for burial, whether of parishioners 
 or non-parishioners, naist therefore depend entirely upon 
 the usage and custom of each parish respectively ; and the 
 usual amount of reasonable difference in the fees in either 
 
 8 2 Shower, 184. '• Lhtlewood v. Williams, 6 Taunt. 281. 
 
 ' Spry V. Guardians of Maryleboiic, 2 Curt. 11. 
 
 I* Ibid. ; and see 3 Black. Com. ()3, c. 7. ' Ibid.
 
 or LL'UXAL. fJ9) 
 
 of such cases will best appear by reference to thi- table 
 signed by Lord Stowell,'" but, as iii the case of all customs, 
 it must be a reasonable custom; and whether there be 
 such a custom or not would be only triable at common 
 law. And if it were the custom to bury non-parishioners 
 in the churchyard it would therefore appear that the in- 
 cumbent would not be allowed to charge an unreasonable 
 fee. And so, although in every case where a license is 
 necessary, (as where application is made to the rector for 
 leave to bury in the church,) it has been said that the per- 
 son giving the license may stand upon his own \nke," this 
 proposition seems very doubtful, and, indeed, it is directly 
 opposed to what was said by Sir J. Nicholl in the case of 
 Mich V. Buslinell, before mentioned." 
 
 In an old case, it appears to have been attempted to Demand of a 
 carry the enforcing of a customary fee so far, that where a '^'j*^ '"> ''"•' 
 stranger had died in a parish, in which, if she had been JaSTn "ilicL 
 buried, a fee w^ould have been payable, but she had been apersoudied 
 removedout of that parish for interment; the rector of that {^"'.^'l'^""' 
 parish nevertheless demanded the fee, and libelled against ""* ' ' ^^^ ' 
 the husband of the deceased in the ecclesiastical court. But 
 a prohibition was granted ; for it was said that such a cus- 
 tom was against reason ; that he who is no parishioner, 
 but may pass through the parish, or lie in an inn for a 
 night, should be forced to be buried there, or pay as if he 
 were.i' 
 
 It is in observing upon this case that Gibson says,'" a Opinion of 
 fee for burial belonos to the minister of the parish in which ^"'!''°" '"' '"'• 
 the party deceased heard divine service, and received sacra- 
 ments, wheresoever the corpse be buried. And this, he 
 observes, is agreeable to the rule of the canon law, which 
 says, that every one, after the manner of the patriarchs, 
 shall be buried in the sepulchre of his fathers : neverthe- 
 less, that if any one desires to be buried elsewhere, the 
 same shall not be hindered, provided that the accustomed 
 fee be paid to the minister of the parish where he dietl, or 
 at least a third part of what shall be given to *he place 
 where he shall be buried. For the understanding of which 
 it is to be noted, that anciently all persons in their wills 
 made a special oblation or bequest to the chinch at which 
 they were to be interred ; and the people in those days 
 depending much upon the prayers of the living for the good 
 of their souls after death, those of better condition coveted 
 oftentimes to be buried in religious houses, with a view to 
 greater assistances which they hoped to receive from the 
 
 '" See tlie table in Appendix, " 1 Salk. 334 ; 1 H.ijrg. Cons. 211. 
 » Vide ante. v Topsail v. Ferrers, 15 Jac. ; Hobs. 176. "« Ciilo. 45-.. 
 
 Y Y 2
 
 692 
 
 OF BURIAL. 
 
 Not of general 
 application. 
 
 In particular 
 cases, parishes 
 may commence 
 a custom of im- 
 posing' fees for 
 interment. Sed 
 qu(Ere, 
 
 But Such fees 
 must liave ihe 
 sanction of tlie 
 ordinary. 
 
 The above au- 
 thoiity f|ues- 
 tionecJ. Proha- 
 ble restiicted 
 
 solemn and constant devotions there : also, where the obla- 
 tions were like to be plentiful, the religious were led by that 
 prospect to desire and promote it. By which means pa- 
 rochial ministers would have been deprived of what be- 
 longed of common right to them, and to no other; if the 
 laws which indulged the superstitious conceit of being 
 buried in religious houses had not at the same time pro- 
 vided for the ancient parochial rights which sometimes was 
 the third, sometimes the fourth part (according to the cus- 
 toms of different places) of what was given to the religious 
 houses, the laws probably presuming that the oblations to 
 those houses would be much larger than what was usually 
 given to the parochial minister. And this was called the 
 canonical portion ; and the oblation grew by custom into a 
 fixed right of the parish minister. And hence it is, that 
 in dispensations for burying elsewhere, reservations have 
 been made of the rights of those churches where the par- 
 ties die."" 
 
 What is here said by Gibson, and which is quoted in 
 Dr. Burn's work, may be true in some particular cases, 
 but is by no means vniiversally correct, for, as already 
 mentioned, the payment of such fees is entirely matter of 
 custom in each particular parish, and before any such fee 
 could be enforced, it might be inquired of in the common 
 law courts, first, whether such a custom existed, and se- 
 condly, if it did exist, whether it was a reasonable custom; 
 or the second inquiry might be considered as included in 
 the first. 
 
 Independently, however, of any ancient and immemo- 
 rial custom, it has been said that, in populous parishes, 
 where funerals are very frequent and the expense of keep- 
 ing churchyards in orderly condition great, and where the 
 expense of purchasing new ones, where the old ones be- 
 come surcharged, is extremely oppressive, it is not to be 
 deemed unreasonable that the actual use should contri- 
 bute when it is called for ; that is to say, that a parish so 
 situated could commence a custom of this nature, and im- 
 pose a rate to be paid for each interment. But in such 
 cases parishes would not be left to carve for themselves; 
 the rates must be submitted to the examination and ap- 
 proval of the ordinary.^ 
 
 But the authority for what is here said appears to have 
 been doubted in a recent case by Dr. Lushington, who 
 asks " Could this approval by the existing Ciumcellor 
 bestow on these fees a legal character, so as to make them 
 recoverable here? I think the whole of the authorities 
 
 ' Gibs. 452. 
 
 ' I'er Lord Stowcll in Gilbert v. Buzzard, ante.
 
 OF BURIAL. 693 
 
 show that no such power exists— I mean a power in tlic 
 chancellor of a diocese to create new fees for conuuon 
 burial. How f;xr such an authority could constitute n(;w 
 fees in cases not of common burialis a question 1 am not 
 called upon to discuss. All I say is, that a chancellor 
 cannot, by his own authority, create a new fee for common 
 burial. ""^ And to what is here said by Dr. Lushini^ton, it 
 may be added, that as burial is a conunon law right, it 
 would be strange if it could be limited or restricted by the 
 ordinary, the ecclesiastical judge, or the particular parish, 
 and probably what was said by Lord Stowell nuist be 
 taken as an authority only that fees might be iuiposed on 
 the burial of parties dying out of the parish, and where, 
 consequently, there would be no connnon law right of 
 burial. 
 
 In the case of pauper burials it has now been enacted, that Fees on pauper 
 in all cases of burial under the directions of the miardiaus ("unera'*' 
 and overseers, the fees payable by the custom of the place 
 where the burial may take place, or under the provisions 
 of any act of parliament, shall ])e paid out of tlie poor 
 rates for the burial of each such Ijody, to the person or 
 persons who, by such custom or such act, may be entitled 
 to receive them." 
 
 By the statute 6 & 7 Will. IV. c. 8(5, it is expressly pro- 
 vided, that nothing therein contained shall atfect the right 
 of any officiating minister to receive the fees then usually 
 paid for the performance or registration of any baptism, 
 burial, or marriage. The general provisions respecting ikgisiering 
 the registration of burials have been already mentioned burials, 
 under the head of baptisms, in so far as the registration of 
 them is directed by the statute 52 Geo. III. c. 14(). But in ciergymjn noi 
 the case of burials, as of ba])tisms, although the general pro- «<> bury^wuhoui 
 visions of that statute remain unaffected, yet some addi- "' ' *^**^' 
 tional provisions have been made by the stat. 0'& 7 Will. I\'. 
 c. 86, for it has been made unlawful for any clergyman to 
 perform the funeral service for the burial of any dead body, 
 unless he has received a ceitificnte either from the registrar 
 or the coroner, or unless within seven days afterwards he 
 gives notice thereof to the registrar. The words of the sec- 
 tion are as follows :— " That every registrar, innnediately 
 upon registering any death, or as soon after as he sludl be 
 required to do so, shall, without fee or reward, deUver to 
 the undertaker or other person having charge of the 
 ground, a certificate under his hand, according to a pre- 
 scribed form,^ that such death has been duly registered, 
 and such certificate shall be delivered by such undertaker 
 
 t Spry V. Guardiam of Marylehoue, 2 Curt. 11. " 7 & 8 Vict. c. 101, s. 31. 
 * X gee Appendix,
 
 694 
 
 OF BURIAL. 
 
 unless he give 
 notice of his 
 
 or other person to the minister or officiating person who 
 shall be required to bury or perform any religious service 
 for the burial of the dead body ; and if any dead body 
 shall be buried for which no certificate shall have been so 
 delivered, the person who shall bury, or perform any fune- 
 having done so. ral or religious service for the burial, shall forthwith give 
 notice thereof to the registrar : provided that the coroner, 
 upon holding any inquest, may order the body to be 
 buried, if he shall think fit, before registry of the death, 
 and shall in such case give a certificate of his order, in 
 writing under his hand, according to a prescribed form,y 
 to such undertaker or other person having charge of the 
 Penally for funeral, which shall be delivered as aforesaid ; and every 
 di^reclions.^ '^^^ person who shall bury, or perform any funeral or any re- 
 ligious service for the burial of any dead body for which 
 no certificate shall have been duly made and delivered as 
 aforesaid, either by the registrar or coroner, and who shall 
 not, withm seven days, give notice thereof to the registrar, 
 shall forfeit and pay any sum not exceeding ten pounds 
 for every such oft'ence.'^ 
 
 It has been observed that there is no prescribed form of 
 notice to be given by the clergyman who has performed 
 the service without a certificate, and that a verbal one 
 might therefore be sufficient; but a written one would 
 appear safer and more proper. 
 
 CHAPTER V. 
 
 OF THE ADMINISTRATION OF THE LORD's SUPPER. 
 
 Rubrical 
 tions. 
 
 direc- 
 
 Nutnbcr of com- 
 municants. 
 
 The ecclesiastical authorities of earlier times were duly 
 solicitotis to have the sacred rite of the Lord's Supper ad- 
 miuistored frequently, and to as large a number of com- 
 municants as could be obtained, without admitting those 
 who were unfitted to be received by crimes of a heinous 
 nature, notorious evil living, oj)prcssion of their neighbours, 
 or reciprocally cherished malice or hatred. To attain 
 which purposes the following arc the directions of the 
 rubric. 
 
 First, as to the number of commu)iicants. There shall 
 be no celebration of the Lord's Supper, except there be a 
 convenient number to communicate with the j)riest, accord- 
 ing to his discretion. And if there be not above twenty per- 
 sons in the j)arish of discretion to receive the communion; yet 
 T See Appendix. » 6 & 7 Will. 4, c. 86, s. 27.
 
 OF THE ADMINISTHATION OF THE LORT/s SUPPKIl. 695 
 
 there shall be no communion, except four (or three at least) 
 communicate witli the priest. Secondly, as to tlu- fiecpuMicy 
 of the times at which this rite is to be administered. Every w hen to L< a-l- 
 parishioner shall communicate at least tiu-ee times in the """'iitred. 
 year, of which Easter to be one. And in cathedral and col- In cailicdnl 
 legiate churches, and colleges, where there any inany priests ' " -*•« 
 and deacons, they shall all receive the connuunion with 
 the priest every Sunday, at the least, except they have rea- 
 sonable cause to the contrary.^ 
 
 The ancient canon law also required that lay parisliioners 
 who were duly qualified should conununicatc at least three 
 times in the year, viz. at Easter,Whitsuutidc andCluiblinas; 
 but as to the frequency of the times in some particular 
 cases, the canon law appears to have been less strict than 
 the rubric, for it is ordered by the canon law that all deans, 
 heads of cathedral and collegiate churclies, vicars, petty 
 canons, and all others of the foundation, shall receive the 
 communion four times in the year at the least. 
 
 In all colleges and halls within both the universiue.-,, the in colleges anU 
 master and fellows shall be careful that all their i)U|)ils, ''»"»• 
 and the rest that remain among them, do receive the holy 
 communion, which we ordain to be administered in all such 
 colleges and halls, the first and second Sunday of every 
 month ; requiring all the said masters, fellows, and schol- 
 ars, and all the rest of the students, ofiicers, and all other 
 the servants there, so to be ordered, that every one of them 
 shall communicate four times in the year at least, kneeling 
 reverently and decently upon their knees, accordint: to the 
 order of the communion book prescribed in that behalt.'' 
 
 But the canon law appears to have entered more mi- Causes for 
 nutely and particularly into the causes, for which a person «^^^'j'' '"•y »* 
 was not to be admitted to the holy coinnunnnn, and the 
 canon law may perha])s still be a guide to what is said only 
 generally in the rubric, althougli where it is in any way 
 contradicted by the rubric the latter nnist of course prevail. 
 
 The followina: are the directions of the canon law m this 
 respect. . . ^ 
 
 No minister shall in any wise admit to the rcccivmg of 
 the holy communion any of his cure or flock, which be 
 openly known to five in sin notorious, without repentance; 
 nor any who maliciously and openly contend with their 
 neighbours; nor any churchwardens or sidemen who refuse 
 or neglect to make presentment of oficnces according to their 
 
 Nominister, when he celebrateth the oounnunion, shall 
 wittingly administer the same to any but to such as kneel. 
 » Rubric at the end of communion service. » Canon 23. * Cauon 26.
 
 696 OF THE ADMINISTRATION OF THE LORd's SUPPER. 
 
 under pain of suspension ; nor, under the like pain, to any 
 that refuse to be present at pubhc prayers, according to the 
 orders of the Church of England ; nor to any that are com- 
 mon and notorious depravers of the Book of Common 
 Prayer, and administration of the Sacraments, and of the 
 orders, rites and ceremonies therein prescribed ; or of any 
 thing that is contained in any of the Thirty-nine Articles ; 
 or of any thing contained in the book of ordering priests 
 and bishops ; or to any that have spoken against and de- 
 praved his majesty's sovereign authority in causes ecclesias- 
 tical ; except every such person shall first acknowledge to 
 the minister before the churchwardens his repentance for 
 the same, and promise by word (if he cannot write) that he 
 will do so no more ; and except (if he can write) he shall 
 first do the same under his handwriting, to be delivered to 
 the minister, and by him sent to the bishop of the diocese 
 or ordinary of the place. Provided, that every minister so 
 repelling any, for any of the causes here specified, shall, 
 upon complaint, or being required by the ordinary, signify 
 the cause thereof unto him, and therein obey his order and 
 direction.'' 
 
 If any offend their brethren, either by adultery, whore- 
 dom, incest, or drunkenness, or by swearing, ribaldry, 
 usury, or any other uncleanness or wickedness of life, such 
 notorious offenders shall not be admitted to the holy com- 
 munion till they be reformed. "" 
 QiKDv, cnnMicli AH thcsc causes are so general and appear to depend so 
 a lefii.sal be iiie Completely upon the judgment and opinion of the minister, 
 sut.jcLi of an j.]^^^ j|. |j,^^ i^ppjj doubted Avhethcr an action would not lie 
 against him for the injury which would result to the cha- 
 racter of one, whom he might refuse to receive as a comnm- 
 nicant. In Comyn's Digest' it is said that an action on the 
 case does not lie for refusing to administer the Sacrament: 
 but the case referred to as an authority" is one which is 
 also mentioned by Doctor Burn ; and in which no express 
 decision was given on the point, as the declaration was held 
 bad : and the main question was therefore not decided. 
 Probably the remarks which are to be found in a preceding 
 chapter,'' upon the subject of a clergyman refusing to marry, 
 may be as nearly as })ossible aj)])licable to the present case. 
 The difficulty of drawing a good declaration would be 
 coMsideiablt; ; tlu' refusal must |U()ba,l)ly have been mali- 
 cious; and (ivcn then the success ol sucii an action would 
 appear douljtl'ul.' There can however be no question but 
 
 <' (,'anon 27. «= Canon 109. ' Action on llie Case, B. I. 
 
 8 Clovell V. Cardinal, 1 Sid. 34. ^ Marriage, ante. 
 
 I Sec Lord Denman's judgment, in Davis v. Black, \ C^. B. U. 910. 
 
 action !
 
 OF THE ADMINISTRATION OF THE I.OUlj's siJl'l'F-n. 697 
 
 that the refusing to administer the Sacrament to any one 
 without sufficient cause would be an oflcnce of the highest 
 order against the ecclesiastical law, and (jnc for whicli the 
 minister should now be ])unished by ])roceeding under the 
 church discipline act."" And it is also declared by a statute 
 of the first year of Edward VI. that the minister shall 
 not without a lawful cause deny the Sacrament to any j)er- 
 son that will devoutly and humbly desire it. 
 
 The minister shall always give warning for the celebration .Minisicr lo gi*c 
 of the holy communion upon the Sunday, or some holiday "fi'^'-"- 
 immediately preceding; and this direction of the rubric was 
 also given by the canon law, w hich added : \\ hich warning 
 we enjoin the said parishioners to accept and obey under 
 the penalty and danger of the law ; and the rubric further Notice to be 
 directs, that so many as intend to be i)artakers of the holy given lomini*- 
 communion shall signify their names to the cuiate at least ^'^'' 
 some time the day before, and this therefore the minister, 
 if he thought proper, might enforce, and might be justified 
 in refusing the Sacrament to a person on the ground of his 
 not having complied with this, especially if such a general 
 regulation had been made by him. 
 
 In all churches, convenient and decent communion tables Communion 
 being provided, they nuist be kept in a seemly condition, "'^'"• 
 covered, in time of divine service, with a carpet of silk, or 
 other decent stufl"; and, at the time of ministration, they 
 should be covered with a fair linen cloth ; at which time 
 the table shall be placed in so good sort within the church 
 or chancel as thereby the minister may be more conve- 
 niently heard, and the greater number of connnunicants 
 may be accommodated.' 
 
 The churchwardens are to provide a suflicicnt (juantlty n read snH wine 
 of fine white bread, and of good wholesome wine, with the '^ '-e i-^vi^lcJ. 
 advice of the minister;'" and although, in the case of 
 Frankly n v. The Master and Brethren of Saint Cross, ihc 
 vicar, by the endowment, was to find the sacrauu-nt wuw, 
 yet the court were of opinion that it should be found by 
 the parish, according to the canon or rubric, winch is esta- 
 blished by act of parliament." The disposal of the bread 
 and wine remaining is sufficiently directed by the rubric. 
 
 The habit to be worn by the minister oihciatmg ni the 
 communion service has been already fully spoken of m ihe 
 chapter on Pidjlic Worship. . 
 
 The statute of the first year of Edward V I. after rcctnig ;^e -i.„.o.s. 
 that it is more agreeable to the first mstitution ol the holv [^-^^J"''^ 
 Sacrament, and more conformable to the common use and 
 
 K See ante, constitution of Langton. ' Cannon 82. 
 
 w Canon 20. " 2 Burn's E. L. 426.
 
 698 
 
 OF THE ADMINISTRATION OP THE LORD S SUPPER. 
 
 Cases in which 
 communion 
 may be pri- 
 vately admi- 
 nistered. 
 
 In no case may 
 the Sacrament 
 be administered 
 to one person 
 only. 
 
 Visitation of 
 the sick. 
 
 practice of the apostles and of the primitive Church, for 
 above five hundred years after Christ's ascension, that the 
 same should be administered under both the kinds of bread 
 and wine, than under the form of bread only ; and also it 
 is more agreeable to the first institution of Christ, and to 
 the usage of the apostles and the primitive Church, that 
 the people should receive the same with the priest, than 
 that the priest should receive it alone, enacts that the said 
 most blessed Sacrament be commonly delivered and admi- 
 nistered unto the people under both the kinds, of bread 
 and wine, except necessity otherwise require. 
 
 No minister is to administer the holy communion in any 
 private house, except it be in times of necessity, when any 
 being either so impotent as he cannot go to the church, or 
 very dangerously sick, are desirous to be partakers of the 
 holy Sacrament, upon ])ain of suspension for the first 
 offence, and excommunication for the second. Provided 
 that houses are here reputed for private houses wherein 
 are no chapels dedicated and allowed by the ecclesiastical 
 laws of this realm. And provided also, under the pains 
 before expressed, that no chaplains do administer the 
 communion in any other places but in the chapels of the 
 said houses ; and that also they do the same very seldom 
 upon Sundays and holidays, so that both the lords and 
 masters of the said houses, and their families, shall at 
 other times resort to their own parish churches, and there 
 receive the holy communion, at the least, once every year." 
 
 An exception is thus made in the case of persons who 
 are unable to come to church, or dangerously ill ; and so 
 by the rubric it is directed that if the sick person is unable 
 to come to church, and yet is desirous to receive the com- 
 munion in his house ; then he must give timely notice to 
 the curate, signifying also how many there are to commu- 
 nicate with him, (which shall be three or tuw at the least,) 
 and having a convenient place in the sick man's house, 
 with all things necessary so prepared that the curate may 
 reverently minister, he shall there celebrate the holy com- 
 munion. 
 
 It appears therefore that there could be no case of 
 urgency or necessity which would authorise the minister to 
 administer the Sacrament to one person only. 
 
 By the canon law when any person is dangerously sick 
 in any parish, the minister or curate, having knowledge 
 thereof, shall resort unto him or her, (if the disease be not 
 known or probably suspected to be infectious,) to instruct 
 and comfort them in their distress, according to the order 
 
 » Canon 71.
 
 OF THE ADMINISTRATION OF THE LORD's SUPPF.R. G99 
 
 of the communion book if he be no preacher, or if he be 
 a preacher then as he shall think most needful and con- 
 venient." 
 
 The office of visitation for the sick, and the duties of a 
 minister in relation thereto, are sufficienly prescribed by 
 the rubric and by the Book of Common "Prayer ; it must 
 not therefore be forgotten that ministers neglectin<2,- this 
 duty are committing a breach of tlie canon and statute 
 law. 
 
 The rubric also enjoins the collection of alms for the Alms at the 
 poor and other oblations of the ])eople by the deacons, f<'«-'"''^v. 
 churchwardens, or other fit persons during the reading of the 
 offertory, and they are to bring them to the minister to be 
 disposed of; the sums thus collected are to be employed in 
 such pious and charitable uses as the minister and church- 
 wardens shall think fit, or, in case of their disagreeme-nt, 
 by the ordinary. 
 
 There would appear therefore from the directions of the Uowilicyarc 
 rubric, and also from the sentences to be read at such '° ^^ disposc-d 
 times, to be two purposes for which such collections are 
 to be made, viz. alms for the poor and oblations, which 
 latter word is commonly used to denote what is given to 
 the minister. P But in Ayliffe's Parergon 'i it is said, that 
 the oblations made at the communion were at the reforma- 
 tion changed into alms of charity for the poor parishioners. 
 And practically there would appear almost insuperable 
 difficulties if any other course were to be adopted, for a 
 question would arise in every parish as to the jjropor- 
 tion in which the money should be divided, if to be ap- 
 plied to the two purposes : the amount of the revenues of 
 each clergyman would be rendered wholly uncertain ; and 
 parties might be unwilling to contribute towards increas- 
 ing the salary of the minister, who might otherwise wish 
 to give to the poor. It is probable moreover that the sen- 
 tences of the offertory which would appear to sanction 
 the oblations to the minister are only retained tlu-re from 
 the older prayer-books before the change sjioktu ol by 
 Ayhffe was introduced. The simple and uniform practice 
 of disposing of all money thus collected for the poor of 
 the parish vvas considered as the only legal practice by Sir 
 Littleton Powys"" in a trial before him in 1719; but that 
 trial appears altogether so eccentric, and to have partaken 
 so much of the political spirit of the day, that less weight 
 is to be attached to it. It derives however more iinport- 
 ance from a letter written afterwards upon the subject ol 
 
 Canon 76 ^ See ante, Book II. Chap. 3. 
 
 1 Ayl. Par. 394. ' Howell's State Trials, vol. 15.
 
 700 OF THE ADMINISTRATION OF THE LORd's SUPPER. 
 
 it to the Lord Chancellor by Sir Littleton Powys himself, 
 which contains his deliberate opinion " that the parson and 
 churchwardens, either jointly or severally, could not appoint 
 any collection for charity other than in common form for 
 the poor of their parish, and that those are the charitable 
 purposes intended by the rubric at the communion service." 
 This however is only the opinion of a single judge, and 
 although this statement of the law as to this point has never 
 been expressly overruled, yet the case appears to have been 
 considered by Lord Stowell as one of party heat which 
 took place in times of party ferment and of smaller au- 
 thority on that account.^ Tlie law on this subject must 
 therefore be considered as still unsettled : but the cir- 
 cumstance, that no cases are to be found upon the many 
 subjects of dispute, which would appear inevitable if the 
 two purposes are to be deemed proper, will serve to show 
 what has hitherto been the generally established custom 
 At what time, in this respect. The rubric speaks of the money col- 
 lected as to be disposed of after divine service ended. 
 And it appears evident that an immediate disposal of it 
 is contemplated by the rubric, unless there should be any 
 disagreement between the minister and churchwardens. 
 The practice however appears to have been otherwise. 
 If collected in a The alms collected at the reading of the offertory in pro- 
 cliapel within prietary chapels are not to be distributed by the minister 
 areToWhalid- °' Other officers of such chapels, but are to be made over 
 ed ovei to the to the minister and churchwardens of the mother church 
 minister and to be distributed by them. And this was so decided by 
 of the pTril'."' ^'^^ J- Nicholl, in a case where the minister of the parish 
 had cited the minister of such a chapel within his parish 
 to answer, among other things, for approj)riating the alms 
 received at the Lord's Supper, in defiunce of an order to 
 pay tliem over. After referring to tlic directions of the 
 rubric wliich we have already mentioned, Sir J. Nicholl 
 observed, that those directions as to the churchwardens, 
 who are the officers of the parish, ami not of the chapel, 
 led him to construe the minister to mean the minister of 
 the parisli ; and that tlicsy showed that the rubric in- 
 tended that the alms received at the communion, as well 
 in private chapels as in the parish church, should be at 
 the dis])osal of the minister ol" tiie parish and the church- 
 wardens ; and should not belong to the officiating mi- 
 nister nor to the proprietors of the chapel.' 
 
 • lluichiiis V. Deiizilne, 1 Ilagg. Cons. 174. 
 ' Uilcoat V. Mozseif, 2 Hagg. (.ons. 171.
 
 ( 701 ) 
 
 BOOK VII. 
 
 OF THE DUTIES OF A CLEIiGYMAX JX 
 HIS INTERCOURSE WITH HIS PARISH- 
 IONERS. 
 
 CHAPTER I. 
 PARISH VESTRIES. 
 
 In its first and proper meaning the word vestry signifies General 
 the room or place adjoining or belonging to the church in vesines. 
 which the vestments of the minister of the j)arish are de- 
 posited or kept; but it has been commonly appropriated 
 to designate the assembling of the parishioners for the dis- 
 patch of the aftairs and business of the parish, it having 
 been customary on such occasions to use the vestry as the 
 place of holding such meetings. Of these vestries, or vestry s^ig^-t ^estriei 
 meetings, there are two kinds, general vestries and select by cu*iom tnJ 
 vestries'; and these latter may be again divided into such ^^ *'»»"«'• 
 as are select vestries by custom and select vestries consti- 
 tuted such by acts of parliament ; of these we shall speak 
 
 in their order. 
 
 — ♦ — 
 
 Section 1. 
 
 Of General Vestries. 
 
 Notwithstanding that the meeting of the parislHoners where vest. ie. 
 has been so customarily held in the vestry as to have thence -yj« -- 
 derived its name, it is by no means essential to the vahdity 
 of the meeting that it should be there held, and it may be 
 convened elsewhere in any other fit and cunvenieut place, 
 or in the church itself; but if it be held either in the church 
 or in the vestry room, the ecclesiastical court has jurisdic- 
 tion ratione loci'' over any misconduct or disorder com- 
 
 » Lord Raym. 350.
 
 702 
 
 PARISH VESTRIES. 
 
 Jurisdiction of 
 ecclesiastical 
 court over them 
 
 Right of minis- 
 ter to preside, 
 
 wherever the 
 meeting may be 
 held. 
 
 Convocation of 
 the vestry. 
 
 I3y notice affixed 
 on church doors 
 previously to 
 divine service. 
 
 mittted therein ; but more license would be permitted in 
 the vestry room than in the church itself, as the former is 
 the proper place for parish business ; and the court would 
 not in such cases interpose, except for the preservation of 
 due order and decorum.'' 
 
 But besides that these meetings are thus connected with 
 the church, and that the ecclesiastical court has jurisdiction 
 over them, a somewhat particular notice of them is essen- 
 tial in this work, since the minister of the parish, whether 
 he be rector, vicar or perpetual curate, has always a right, 
 and, as it seems, it is a part of his duty, to preside at them ; 
 for he is not like the other parishioners who assemble there, 
 but is always described in his separate capacity as a part 
 of the parish, the form of citing a parish being — " the 
 minister, churchwardens and parishioners." And, there- 
 fore, that he and any other individual should be put in 
 competition for the otfice of chairman, would be placing 
 him in a degrading position, in which he is not placed by 
 the constitutional establishment of this country. "= We have 
 already observed that vestry meetings may be legally held 
 elsewhere than in the church or vestry room ; and wheie this 
 is done, it has been urged that the minister has not the 
 same right of presiding, but that the right only exists in 
 his church or vestry room ratione loci ;'' but it is now clearly 
 established that the place of holding the meeting does not 
 affect or alter the right of the minister, but that he has 
 always the right to preside.* 
 
 Whenever, therefore, such meetings are held, he is, in 
 sound legal principle, the head and presses of the meeting ; 
 and, as such, it is essential that he should be acquainted 
 with the law by which such meetings and their powers and 
 proceedings are regulated, defined and directed. 
 
 And, first, as to the convocation of the meeting : vestries 
 are usually held according as the exigencies of the parish 
 require ; but no vestry, or meeting of the inhabitants in 
 vestry, of or for any parish, shall be holden until public 
 notice shall have been given of such vestry, and of the 
 place and hour of holding the same, and the special pur- 
 pose thereof, three days at the least before the day to be 
 apj)ointed for holding such vestry, by the publication of 
 such notice, which must be re(luc(;d into writing, and written 
 or printed copies thereof aflixcd on or near to the doors of 
 the churches or chapels within the parish or place pre- 
 viously to the commencement of divine scrvice.*^ 
 
 '• Wilson v. M'Miilh, 3 iJ. & Aid. 241 ; llutchins v. Denxiloe, 1 llagg. 185. 
 
 '■■ U'lhon v. M'Maih, ibid.; Reg. v. yj'Oi/(v. 12 Ad. & Ell. 139. 
 
 ** Arguendo iu /fe^. v. D'Oijly, ante. •" Ibid. ' 50 Geo, 3, c, 69, s. 1.
 
 OF GENERAL VESTRIES. 703 
 
 Vestries are to be called by the ciiurchwimlfns, with ih.- i lea by 
 
 consent of the minister, and this was always so by the "*<«»» 
 
 common law. The act of parliament, by which general '■"' "^ 
 
 vestries are reoulated, commonly known as Sturges Bourne's " 
 
 Act, or the Vestry Act,'' makes no alteration in this par- 
 ticular. It does not appear, however, that either the 
 minister or churchwardens have any absolute discretion in 
 this matter, but that they are bound to perform their parts 
 in convening- a vestry, if necessary: and as the chiirrh- 
 wardens, refusing to call a vestry for tin; leiial duties of the 
 parish, might be compelled to do so by mandamus;'' so 
 it may be presumed that a minister would be compelled 
 to give his consent, if he should withhold it without suffi- 
 cient reason ; or that the vestry might be convened by the 
 churchwardens notwithstanding. But a private parishioner Pnvaie pi- 
 had no right given him by the statute, nor could he have ri»l>ioDcr hn oo 
 had any before, in case of the refusal of the churcliw ardens, [-fe orve»*V** 
 to publish a notice for a vestry to choose new churchwar- 
 dens, or for any other purposes.' 
 
 The parishioners, constituting the vestry, are, at the whu pa- 
 common law, all such as pay to the church rates, or scot 
 and lot, and no others t*" but residence within the parish is . 
 not a necessary qualification, as all out dwellers, who are 
 rated in respect of any property in the j)arish, have a vote 
 in the vestry, as well as the inhabitants, and are entitled to 
 the same benefit' of the Vestry Act hereafter mentioned. Nor 
 is the payment of church rates essential to entitle a person 
 to vote at vestry meetings. And although at a meeting Payment of 
 of the parishioners, in whom, by the custom, the right of "«« 
 electing to a perpetual curacy was vested, it was lesolved, 
 before the election began, that parishioners, who had not 
 paid (not having been assessed to) church rates, should not 
 be allowed to vote ; and, in consequence, several persons, 
 legally qualified to vote, did not tender tluir votes ; and 
 the votes of others were rejected, because they had not 
 paid the church rate, though they had jiaid jwor rates ; it 
 was held, by the Court of King's Bench, that the election 
 was not according to the custom ; and that it was not com- 
 petent to the partshioncrs assembled to narrow the custom 
 by passing a bye law, which would have the cHect of 
 making it depend upon the will of j)articular persons, whe- 
 ther a person had a right to vote or not, by inserting, or 
 omittino- to insert, the names of any particidar parishioners 
 in the church rate."' 
 
 e 58 Geo. 3, c. 69. '' Pridcaux, s. 35. 
 
 i Dawe V. Williams, 2 Add. R. 138. ^ Shaw's P. L. c. 17. 
 
 » 58 Geo. 3, c. 85. 
 •" Faulkner v. Etger, 6 D. & R. 517 ; 4 B. & C. 449. 
 
 to.
 
 704 PARISH VESTRIES. 
 
 But although, as we have ah-eady seen, the actual pay- 
 ment of church rates has been held not to be necessary to 
 entitle a parishioner to vote at vestry meetings, yet it seems 
 Rateability is that rdtecihility is necessary ; for it is provided, that when 
 necessary. any person shall have become an inhabitant of any parish, 
 
 or become liable to be rated therein, since the making of 
 the last rate for the relief of the poor thereof, he shall be 
 entitled to vote for and in respect of the lands, tenements 
 and property for which he shall have become liable to be 
 rated, and shall consent to be rated, in like manner as if 
 he should have been actually rated for the same.'" 
 Refusal or neg- But no person, who shall have refused or neglected to pay 
 lect to pay poor ^^y i-^te for the relief of the poor, which shall be due from 
 mil "^'''^"^ ^^"^^' ^^^^^"^ ^^ entitled to vote, or to be present in any vestry 
 of the parish, for which such rate shall have been made, 
 until he shall have paid the same." And with respect to 
 the votes of companies, &c. by their clerks, &c., it is pro- 
 And in cases of vided, that no such clerk, secretary, steward or agent, shall 
 clerks, &c. of \,q entitled to be present or to vote at any vestry in such 
 companies. parish, unless all rates for the relief of the poor, which have 
 been assessed upon the annual rent, profit or value, in 
 right of which any such clerk, &c. shall claim to vote, then 
 due, and which shall have been demanded at any time 
 before the meeting, shall have been paid and satisfied." 
 
 The vestry, then, is constituted of rateable parishioners, 
 all of whom liave a right to be present; so that, if any is 
 Illegal to do excluded, he may bring an action on the case against the 
 any thing to ex- party who excludcs him :'' nor is it allowable to do anything 
 dude those who j j^j ^ ^^^j ^^ excludc, cvcu after business may have 
 
 have a right to , , J ,„, . . ., ' 1,1 ^i 1 j. 
 
 be present. been begun. Ihus, it is illegal to close the doors so as to 
 
 exclude voters, especially during a poll;i but it is by no 
 means necessary to constitute tlie vcstiy, that all who have 
 the right shoukl be there i)resent, for the majority of those 
 present may bind the parish to all h'gal acts, however 
 small their number, or however important the act; and 
 even in the case above mentioned, where the doors had im- 
 ju'operly been kept closed, and the admittance of voters 
 iiad been delayed, the court refused a mandamus for a 
 fresh election, because it did not iippear that any voter 
 had been actually excluded.' 
 The chairman. The vestry, thus constituted, is incomplete without its 
 head or juesident ; and he, as we have seen, by the common 
 law, is the minister of the parish, whether rector, vicar, or 
 
 "' 58 Geo. 3, c. 69, s. 4. " Sect. 5, as corrected by 59 Geo. 3, c. 85. 
 
 " 59 Geo. 3, c.85. i' 8 Mod. 52. 351. 354 ; Viner's Abr., Vestry. 
 
 'I (Ineen v. tit. Mart], Lamheih, 3 Nev, .V Per. 416. 
 ' Ibid., and sec 8 Ad. & Lli. 35U.
 
 OF GENERAL VESTRIES. 705 
 
 perpetual curate ; and it has been said that he has a sppcial 
 duty to perform, and must be responsible to the bishop for 
 his care therein.*" 
 
 This right of the minister to be the chairman is indirectly 
 recognised in the Vestry Act, which provides that, in case 
 the rector, vicar, or perpetual curate, shall not be present, ^Vho Uio pw- 
 thepersonsassembled shall forthwith noniinatcand Jippoiut, »'J«jn «»»<•• ^ »'••'- 
 by plurality of votes, to be ascertained as therein directed, '""*•**=''"• 
 one of the iniiabitants of such parish to be the chairman, 
 and to preside in every such vestry ; and this is nearly tan- 
 tamount to a declaration, or by necessary im|)lication de- 
 clares, that if the rector, vicar, or perpetual curate, ijc [)re- 
 sent, he shall preside : and the legislature must evidently 
 have considered that by law and usage he was so entitled. 
 And the following are the very clear and e.\j)licit words of Lor-l Ikntmn 
 Lord Denman in a recent case, in 184U,' in speaking (d' the °" ''"^ "b'" "^ 
 election of churchwardens in vestry, "The rector is the ^^°|»'" '* P'** 
 proper person to preside, as of common right, and as own- 
 ing the freehold of the church. And churchwardcjus are 
 so far ecclesiastical olttcers, that the rector is entitled to 
 interfere in bringing them into existence. The cases confirm 
 this opinion ; and a further sanction is given to it by stat. 
 58 Geo. III. c. 9, which does not profess to confer this riiiht 
 on the rector, nor use language declaratory of it, but as- 
 sumes and recognises his possession of it, by enacting, in 
 sect. 2, that, in case the rector shall not he present, the 
 meeting shall nominate a chairman." 
 
 The vestry, thus completely constituted, has the right to Power of »c*tiy 
 investigate and restrain the expenditure of tiie parish funds, j"^|""*'' ■""" 
 to determine the expediency of enlarging or altering their 
 churches and chapels, or of adding to, and in some cases of 
 disposing of," the "goods and ornaments" connected with 
 those sacred edifices. The election of some of the j)arish 
 officers is either wholly or in part to be made by the vestry, 
 and it has either directly or indirectly a superintending au- 
 thority in all the weightier matters of the parish. 
 
 Several recent local acts of parliament have given the 
 vestry power to do certain acts within their parish which 
 are or may be inconsistent with the general ecclesiastical 
 law^; and 'in such cases the statute is to be preferred. An 
 instance of this kind has been already mentioned luider tiie 
 head of burial. And where a local act cnaciod that the 
 vestrymen should set out and appropriate such a nund)er 
 of seats for the gratuitous accommodation of the poor, and 
 
 s Wilson V. M'Math, ante. 2 Add. 134 ; 1 Curt. 522. 
 t Re^.v.D'Oi//v, 12Ad. &: E11.158. , , r-i k " 
 
 " But ste chapter on " Cliuicluvardens and Ornaments of the Cburcb. 
 
 7. Z
 
 706 
 
 PARISH VESTRIES. 
 
 Proceedings in 
 vestry. 
 
 Adjournment. 
 
 also such other pews or seats for the use of the parishioners 
 as the vestrymen should think necessary, proper and con- 
 venient; and also enacted, that it should be lawful for the 
 vestrymen to let the pews, &:c. or any of them (save and 
 except the pews or seats to be appropriated for the accom- 
 modation of the poor of the parish for the time being), to 
 such persons as, &:c., it was held that this enactment su- 
 perseded the general law before mentioned, as to the right 
 of the rector to seats in the church or chancel : and con- 
 sequently that the vestrymen were justified in removing 
 the rector from one of two seats which he had occupied 
 ever since his induction, and that the matter was taken out 
 of the supei-intendence of the ordinary." 
 
 The manner in which the proceedings of the vestry are 
 to be conducted, is, above all, important to the minister, 
 who, as chairman, has the duty of controlling those pro- 
 ceedings, and of taking care that they are legally con- 
 ducted. If circumstances should render an adjournment 
 necessary, the chairman has an undoubted right to adjourn ; 
 this may be said now to be firmly and fully established, 
 although the existence of such a right in the chairman, 
 especially with reference to an adjournment for the pur- 
 poses of polling, has been often questioned of late. But 
 though the right of adjournment is undoubtedly now settled 
 to be in the chairman, it seems also clear that the courts 
 would interpose if that right was in any way abused.^ 
 
 In an old case,^ it was held that the right of adjourning 
 a meeting, whilst the poll for the election of a churchwarden 
 was proceeding, was not vested in the chairman, but in 
 the whole assembly, where all are on an equal footing; 
 although there might be a difficulty in polling for an ad- 
 journment, yet as there was no other way, that must be 
 taken. But as an authority to the length which these 
 words would seem to imply, this case has been over-ruled ; 
 for the idea of [tolling for an adjournment, as we shall pre- 
 sently see, has been distinctly repudiated. But the ad- 
 journment in this case was one of time, and was in fact an 
 interruption of business legally proceeding, and the pro- 
 posal of a post})oneuient of it to a future time was without 
 any plea of necessity, or even convenience, to justify it; 
 But must not be and it was there observed, "if the chairman had an arbi- 
 ;xercisid to tlie trary ])ower of postponement for a day, why not for a week 
 hebui'ness."' «'' l^^i^ei' Period ?" And the case may stand well, and has 
 in fact been recognised as an authority, that if the inten- 
 
 " Spry V. Ftiml, 2 Curt. 362. 
 
 y Sii'ughion V. Rei/iioUls, 2 Sir. 1045, as recognised in Beg.y. D'OijIy, ante. 
 
 ' Ibid. 
 
 Riglit of, is in 
 the chairman. 
 
 ex 
 
 i 
 
 the
 
 OF GENERAL VESTRIES. 707 
 
 tion and effect of the adjournment were to interrupt and 
 procrastinate the business, such an adjourinnent would he 
 illegah 
 
 In a case decided in 1834/' notice had been given that a Catcton .J. 
 vestry would be held in the church, and that, if a poll Jo"'«""i-ni cf 
 were demanded, it would be adjourned to the town hall : ""■' 1*""- 
 and accordingly, on a poll being demanded, the chairman, 
 without taking the sense of the meeting, adjourned to the 
 town-hall. It was held that the proceeding was regular, 
 no business having been interrupted by it; and Lord 
 Denman said, " May not a chairman appoint a place for 
 taking the poll? Suppose the proceeding had been ap- 
 pointed to take place in the church, and that the meeting 
 had become so tumultuous that it became necessary to 
 adjourn to the churchyard, would it have been irregular to 
 do so ?" 
 
 In the case last mentioned, the judges appeared to be 
 careful not to overrule distinctly the case of Stuiujhton v. 
 Reynolds above mentioned ; but the authority of that case 
 was much narrowed by this decision ; and, in a note to this 
 case, another case is mentioned, which had occurred two 
 years previously ; and it appears there to have been doubted 
 whether the chairman could adjourn to a subsccjuent dav, 
 supposing it admitted that he might adjourn to some other 
 place on the same day.*" 
 
 The next case on this subject occurred in the Ecclesiastical 
 Court.*" And Sir Herbert Jenner, alluding to the above case 
 o^ Stoug/itonv. Reynolds, &nk\ that he considered it only 
 as an authority that the chairman had no right, ex nuro 
 motu, to adjourn a vestry meeting whilst the business was 
 in progress ; and, referring to the case last mentioned, of 
 The King v. The Archdeacon of Chester, he goes on to 
 say, neither of the learned judges denied the authority of 
 the case of Stoughton v. Reynolds, but held that it diil not 
 apply to the case before them. They did not rc'cogni/.c a 
 discretionary power in the chairman to adjourn the meeting 
 arbitrarily ; but considered the adjournment of the poll a 
 part of the original proceeding. So in this case it was com- 
 petent for the chairman to pursue the course ex|)ressly 
 pointed out in the notice. In the case before the King's 
 Bench, the adjournment was from the chm-ch to the town- 
 hall : in the present case, it was from the vestry-room to 
 the town-hall of Dudley. There was no surprise in this 
 case, for the notice expressly stated that such would l)e the 
 
 a R. V. Archdeacon of Chester, 1 Ad. & Ell. 312. 
 
 •> Parke, J., in R. v. Churchwardens of Lambeth, 1 A J. i: Ell. 342, n. 
 
 c Baker v, Doivning and Wood, 1 Curt. 507. 
 
 z z2
 
 708 PARISH VESTRIES. 
 
 course adopted. The notice was given, in pursuance of the 
 Vestry Act, four days before the vestry was held ; and 
 there is every reason to beheve, from what appears in the 
 evidence, that it was known immediately after publication 
 throughout the whole town of Dudley." And in this last 
 case it was further held that the town-hall, although private 
 property, was not an improper place to adjourn to. 
 
 In the two cases last mentioned, the adjournment was 
 made in pursuance of an intimation to that effect, contained 
 in the original notice of vestry, but this appears to be un- 
 important, for as it was well put arguendo in the case of 
 No previous The King against the Archdeacon of Chester — if a right of 
 notice o ad- adjournino; is not in the chairman, he cannot transfer it to 
 
 journmenl ne- J m^ ^ ^ ■ ■ • i<^ iii 
 
 cessary to give hunseli by givmg notice betorehand that m a certam event 
 
 chairman tiie he wiU cxercisc it, and in the case of The King against the 
 
 rig It to a journ. (^/^^^^^./^^iYirc^f/zi- of St. Mary, Lambeth, no previous notice 
 
 of the adjournment of the poll had been given, and yet the 
 
 election at such adjournment was held good. 
 
 A later decision of the Court of Queen's Bench in 1840^ 
 declares the right of the chairman in plainer and stronger 
 terms, and expressly limits the authority of the old case of 
 Stoiighlon v. Reynolds . The following are the words of 
 Lord Denman in giving judgment, and it may be remarked 
 that they are particularly explicit : " The meeting being 
 held, and a show of hands taken, some one was to declare 
 on whom the nomination had fallen. Who was to do that ? 
 Not the body of the paiishioners, who had made the nomi- 
 nation, nor the old churchwardens, but the person presid- 
 ing at the vestry, namely, tlie rector. A poll is then 
 demanded; and it is demandable as of right; and the 
 president of the meeting is the person to grant it. In the 
 absence of other business, the poll should be taken imme- 
 diately : if time does not allow of that, there nuist be an 
 adjournment for the purpose. Then, who is to direct the 
 adjournment? It is suggested that a nuijority of the voters 
 should do so. But how is the niajority to be ascertained 
 in so large a constituency; and what is the situation of 
 parties, if the majority present decide against adjournment; 
 so as to leave no time for a considerable part of the rate- 
 payers to vote. Setting aside the inconvenience that might 
 arise if a majority of the parishioners could determine the 
 point of adjournujcnt, we think that the person who pre- 
 sides at the me(!ting is the pro])er individual to decide this. 
 It is on him thtit it devolves, both to preserve order in the 
 meeting, and to regulate the proceedings, so as to give all 
 persons entitled a reasonable opportunity of voting. He 
 ^ lleg. V. lledger, and Beg, v. D'Oiili/, 12 Ad. & KlI. ante.
 
 OF GENERAL VESTRIES. 709 
 
 is to do the acts necessary for these purposes on his own 
 responsibility, and sul,ject to his being called upon to 
 answer for his conduct if he has done anytliiu'j; iinproperlv. 
 The case of Stov(jhton v. Rajnolds is a good a~iithority, but 
 should not be pressed to the extent to which the argument 
 in support of this rule would carry it. As it has been ex- 
 plained, it docs not decide that the rector may not adjourn 
 the meeting ; but only that, if he has done it" so as to dis- 
 turb the proceedings, the court will interfere." 
 
 It meiy be observed, that, in all the cases decided, the A.ijouminetoa 
 adjournment was as to place, rather than time; and if th.- ^"t^^"!"-'")*/. 
 chairman were to fix a subsequent day for the i)olling, 
 without sufficiently strong reason, it would probably be 
 within the princij)le, for which the case of Stouyhton v. 
 Reynolds is now considered an authority. 
 
 The principle, according to which the votes of the pa- rrinriplcon 
 rlshioners are to be given, is next to be considered : and *''''*'' ""'^ ■'• 
 in this, the Vestry Act before mentioned has made a most ^ ""^ ' 
 important alteration, transferring the right of voting, in voua. "^ "'^ 
 effect, from the person to the property; or at least t^ivinor 
 to property a direct influence in these matters, which it did 
 not possess under the former system. It is provided l)y 
 the third section of the act, that in all such vestries, every 
 inhabitant present, who, by the last rate made for the In ccritin pro- 
 relief of the poor, shall have been assessed, in respect of i>"f'"on». »c- 
 any annual rent, profit or value not amounting to 50/., rattj[,'fi„y. 
 shall give one vote, and no more ; if assessed for any such 
 annual rent, &c., amounting to 50/., or upwards (whether 
 in one or more than one charge) shall be entitled to give 
 one vote for every 25/., in respect of which he shall have 
 been assessed, but so that no inhabitant shall give more 
 than six votes ; and where two or more of the inhabitants 
 present shall be jointly rated, each shall vote according to 
 the proportion, which shall be borne by him, of the joint 
 charge ; and where only one of the persons jointly rated 
 shall attend, he shall vote according to the w hole of the 
 joint charge.^ 
 
 By the stat. 59 Geo. III. c. 85, after reciting the Vestry prinripleei- 
 Act of the preceding year, it is enacted tliat in all cases, ie^<j«J <°^ ^^ 
 where any corporation or company shall be charged to the ^o^poVatioMtnJ 
 rate for the rehef of the poor of such parish, either in the compamc*. 
 name of such corporation, or of any ofHcer of the same, 
 their clerk, secretary, steward, or other agent, duly autho- 
 rised for that purpose, may be present at the vestry, and 
 shall be entitled to give such and so many vote or votes at 
 such vestry, in respect to the amount of the rents, &c. of 
 
 e 58 Geo. 3, c. 69, s. 3.
 
 710 
 
 PARISH VESTRIES. 
 
 Inhabitants 
 coming to a 
 parish since the 
 last rate. 
 
 Chairman has a 
 casting vote in 
 additioa to his 
 own. 
 
 Mode of voting 
 
 Must not be by 
 ballot or by 
 proxy. 
 
 Show of hands 
 not necessary. 
 Poll may be 
 directed by 
 chairman with- 
 out it. 
 
 Duration of the 
 poll. 
 
 sucli corporation or company, as any inhabitant assessed to 
 such rate, present at such vestry, might have and be en- 
 titled to, under the recited act. 
 
 When any person shall have become an inhabitant of 
 any parish, or become liable to be rated therein, since the 
 making of the last rate for the relief of the poor thereof, he 
 shall be entitled to vote for and in respect of the lands, 
 tenements, and property for which he shall have become 
 liable to be rated, and shall consent to be rated, in like 
 manner as if he had been actually rated '^ for the same. 
 
 If the votes are equal, the chairman, in addition to the 
 votes which he may have, by virtue of the Vestry Act, in 
 right of his assessment, has the casting vote.^ 
 
 The mode of voting may also be of importance to the 
 validity of the proceedings. The common law mode of 
 election is by show of hands or by poll; and the party 
 electing is then said to have a voice in the election. It is 
 clear that, at common law, where parties have the right of 
 voting, the restriction of voting by ballot cannot be im- 
 posed ; it presents an insurmountable difficulty to a scru- 
 tiny, because no person can tell for whom a particular 
 individual voted ; besides, under the Vestry Act, where one 
 person may have any number of votes to the amount of six, 
 other objections might present themselves to voting by 
 ballot. It is therefore evident, that the conmion law mode 
 of voting ought to be adhered to. These reasons are 
 equally cogent against voting by proxy.'' And where more 
 than one person is put up on each side, a show of hands 
 would be insufficient. And where a plurality of votes is 
 allowed, a poll is absolutely necessary. 
 
 And the chairman may direct a poll without first taking 
 a show of hands, although in the case decided, a show of 
 hands was demanded, and a poll not demanded, but ob- 
 jected to; and it may be observed, that in voting under the 
 provisions of the Vestry Act, a show of hands would be 
 no criterion. And, if a show of hands be taken, any who 
 may not be there present, may nevertheless vote after- 
 wards at the polling.' 
 
 Where there is a custom to determine the period of poll- 
 ing, provided that time be reasonable, it must be abided 
 by, and neither the electors, nor the chairman, could 
 abridge it;** but it is obvious that a custom which might 
 originally have been reasonable, as to time, would not be 
 
 ' 58 Geo. 3. c. 69, s. 4. 8 58 Geo 3, c.69. s. 2. 
 
 h See Faalkeiier v. Elger, ante; Steers, P. L. 2ded. p. 272. 
 « 7 Ad. & Kll. 259 ; 5 Ad. & KM. 874. 
 I' Reg. V. Commissarij of Winchester, 7 East, 574.
 
 OF GENERAL VESTRIES. 71 ] 
 
 SO, where the population of the parish, and consequently 
 the number of voters, had greatly increased. 
 
 In the absence of any custom (and such would pro- 
 bably very rarely exist) it seems, of necessity, to be the 
 duty of the chairman of the meeting to fix the time for the 
 duration of the poll, subject, as in the case of adjourn- 
 ment, to the revision of the court, if the time is lixL-d im- 
 properly. Sir Herbert Jenner, in giving judgnient in a 
 case in the ecclesiastical court,' says, " It is not very easy what would be 
 to determine what time should be allowed, so as to give deemed a rca- 
 every person entitled an opportunity of recording: his vote: *°"'''^'e »""« 
 
 1 1 1 ii i 1 ■ 1 • 1 , I according to the 
 
 ana all tliat can be said is, tliat where no custom exists, a number of 
 reasonable time should be given." The number of pa- voters, 
 rishioners qualified to vote had been variously stated at 
 between 1,200 and 1,600, and Sir H. Jenner says, "There 
 is not sufficient evidence to satisfy me that all the parish- 
 ioners qualified and desirous of voting, might not, if due 
 diligence had been used, have recorded their votes before 
 the time when it was understood the poll was to cease. 
 Ninety polled in an hour is no great number; some, in- 
 deed, think that 150 might be polled in an hour, but even 
 if only 100 were polled in an hour, there was sufficient 
 time for all persons desirous of voting to attend for that 
 purpose. I must say, that it would have been more satis- 
 factory if the poll had been kept open till four o'clock the 
 last day." And from the number of voters here men- 
 tioned, and from what is said in respect of them, it may 
 probably be sufficiently inferred what would be considered 
 a reasonable time, according to the number of voters in 
 each particular parish. 
 
 And probably, in any case which might be brought 
 before the courts, the principle of a case before mentioned 
 would be applicable, where, although it was declared to 
 be illegal to close the doors during the meeting, yet, as no 
 voter was proved to have been excluded, a mandamus for 
 a fresh election was refused. So, probably, a vuiudamus 
 would be refused, unless it were proved not only that the 
 time fixed was unreasonably short, but that some voters 
 had been unable to poll in consequence. 
 
 In the last-mentioned case, it had been urged in argu- 
 ment that time ought to have been allowed for every per- 
 son to qualify himself to give his vote by paymg his rates, 
 w^hich mio-ht not have been paid previously; but bir Her- pi 
 bert Jenner says, "I do not accede to the proposition -•'v,;;^^^ 
 that the time allowed for the poll should be caiculateci ,^ ^„^^ p,^„^^ 
 with reference to such a principle. I apprehend that the ,o p.y rate, m 
 
 mc not ncce»» 
 10 be 
 ted so as 
 s 
 
 , II- J . arrear. 
 
 ' Baker V. Downing and W ood, ante.
 
 712 
 
 PARISH VESTRIES. 
 
 Chairman 
 should not 
 grant a poll for 
 voting on an il- 
 legal subject, 
 
 nor put an ille- 
 gal subject to 
 the vole. 
 
 Chairman to 
 siyn proceed- 
 ings. 
 
 time need only be fixed so as to allow every person 
 qualified to tender and record his vote, without any re- 
 ference as to what may be done by persons not already 
 qualified. It is no part of the purpose for which a poll 
 is demanded, that it should give time for the payment of 
 the rates, but only to allow persons already qualified suf- 
 ficient time to tender and record their votes." 
 
 The chairman of a vestry meeting seems to have this 
 further power, that he may refuse to grant a poll, if it is 
 demanded for voting on a subject which is not legal. 
 Thus, in a case in the King's Bench, certain persons had 
 bequeathed property to be applied to particular objects of 
 charity in the parish. At a vestry meeting, holden on the 
 7th of January, a resolution was proposed and carried, 
 that a tablet or monument should be erected to record the 
 bequests of the devisors, to be paid for out of the funds 
 issuing from the bequests. On the 21st of January ano- 
 ther vestry meeting was held, at which the resolution of 
 the last meeting was confirmed upon a show of hands. A 
 poll was demanded by the opponents of the resolution, but 
 the churchwarden who presided at the meeting refused to 
 grant it. In opposition to the grant of a mandamus, it 
 was objected that such an application of the funds would 
 be a breach of trust, and that the court ought not to grant 
 a mandamus for the purpose of putting it to the vote 
 whether such a breach of trust should be committed. 
 Lord Denman says, " We are of opinion that the manda- 
 mus cannot be granted, and for the reason suggested. It 
 may be said that the object in demanding the poll was to 
 set aside the illegal resolution which had been passed by 
 the show of hands, but we cannot assume that the result 
 of the poll would be to rescind the resolution. If the 
 result were the other way, it would be said that the poll 
 was taken under the authority of a mandamus from this 
 court.'"" 
 
 The principle of this case, and the words used by Lord 
 Denman, aj^pear to make it an authority beyond the right 
 of refusal to grant a p(;ll ; for it seems that the court 
 would never compel a chairman to put an illegal resolu- 
 tion to the vote in any way ; and it may be inferred that 
 it is the duty of the chairman to refuse to do so. 
 
 The minutes of the proceedings and resolutions of the 
 vestry are to be fairly and distinctly entered in a book, to 
 be j)rovided for that purpose by the churchwardens and 
 overseers, and are to be signed by the chairman, and such 
 other of the inhabitants present as may think proper." 
 ■n I Ad. & KM. 380. " 58 Geo. 3, c. 69, s. 2.
 
 OF GENERAL VESTRIES. 713 
 
 But it has been several times decided that tliey incur no No mpontibi. 
 separate or individual rcsponsibilitv, for aiivtliin;:; wliich li'y incurred 
 may be done in pursuance of a resolution 'of vestry, so ''"='*''>• 
 signed by them. 
 
 The books directed to be provided, as above mentioned, Vettry book*, 
 and kept for the entry of proceedings, and also all former <'''»">ly "^ ••"1 
 vestry books, and all rates and assessments, accounts and ""•-■" ''"••"^'*'- 
 vouchers of the churchwardens, overseers of the poor, and 
 surveyors of the highways, and other parish olhcers, and 
 all certificates, orders of courts and of justices, and other 
 parish books, documents, writings, ])ublic papi-rs of every 
 parish, except the registry of marriages, bajjtisms and 
 burials, shall be kept by such persons, and deposited in 
 such place and manner, as the inhal)itants in vestry 
 assembled shall direct: and if any person in wliose hands 
 or custody any such book, kc. shall be, shall wilfully or 
 negligently destroy, obliterate, or injure the same, or siiHer 
 the same to be done, or shall, after reasonable notice and 
 demand, refuse or neglect to deliver the same to such per- 
 sons, or to deposit the same in such place as shall, by 
 order of vestry, be directed, he shall, ui)on conviction PunUhmenu for 
 before two justices of the peace, for every such offence '"J"""?* 
 forfeit and pay such sum, not exceeding fifty pounds nor 
 less than forty shillings, as shall by such justices be ad- 
 judged ; and the same shall be recovered by warrant of 
 such justices, in such manner and by such means as poor 
 rates in arrear, and shall be paid to the overseers of the 
 poor of the parish against which the otfence shall be cou>- 
 mitted, and be applied for and towards the relief of the 
 poor thereof: provided that every person who shall unlaw- 
 fully retain in his custody, or shall refuse to deliver U> any 
 person or persons authorised to receive the same, or who 
 shall obliterate, destroy, or injure, or sutler to be oblite- 
 rated, destroyed, or injured, any book, kc. belonging to 
 any parish, or to the churchwardens, overseers of the 
 poor, or surveyors, may be proceeded against in any of 
 his majesty's courts, civilly or criminally, as if the act had 
 
 not been made." 
 
 The acts of one vestry are not absolutely binding on a Hcvicrofacn 
 succeeding vestry, and they may be conlinned or rescinded l.y^^uccc««l.Dg 
 by such succeeding vestry ; but the confnination ot the ""^ '^' 
 succeeding vestry is not necessary to make the acts of the 
 preceding one valid. p 
 
 Some of the foregoing observations will be lovnul to l)e 
 inapplicable to vestries "constituted under the 1 & 2 \\\\\. 
 IV. c. 60, hereafter mentioned ; but as that act api)hes 
 58 Geo. 3, c. 69, s. 6. p Mawley v. Barbet, 2 Esp. 687.
 
 714 PARISH VESTRIES, 
 
 rather to the constitution than to the power and proceed- 
 ings of such vestries, much that is contained in this sec- 
 tion will still be applicable in those cases. It need only 
 be observed, that whenever there appears to be anything 
 conflicting in the law, as applicable to those vestries, the 
 provisions of the special act are to be preferred. 
 
 Section 2. 
 Of Select Vestries hi/ Custom. 
 
 Oiigin of select Select vestries seem to have grown from the practice of 
 vestries. choosing a certain number of persons, yearly, to manage 
 
 the concerns of the parish for that year, which, by de- 
 grees, came to be a fixed method ; and the parishioners 
 lost, not only their rigiit to concur in the public manage- 
 ment, but also, in most places, if not in all, the right of 
 electing the managers. And this custom of government of 
 parishes by a select number has been held to be a good 
 custom, and the churchwardens accounting to them has 
 been held a good account.'' 
 
 Much diflerence of opinion has existed as to the merits 
 of this system, and, in many parishes, great efforts have 
 been made to set aside and demolish select vestries, as 
 being injurious and oppressive; upon which Dr. Burn 
 observes, that no wonder it hath been so, in such parishes, 
 where, by custom, they have obtained the power to choose 
 one another; for it is not to be supposed, but, if they are 
 guilty of evil practices, they will choose such persons as 
 they think will connive at or concur therein.' 
 
 tFpon this opinion of Dr. Burn's it has much more re- 
 cently been remarked : such is the language employed by 
 writers upon the subject, more than half a century ago; 
 and the history of select vestries, in more recent times, 
 affords no sufficient grounds for believing that the censure 
 is no longer applicable. All cx|i(Mi(>nce demonstrates that 
 governing bodies, whose powers are wielded in secret con- 
 clave, uncontrolled by a hioher authority, or the influence 
 of public oj)inion, becoiue in time corrupt ; not always from 
 bad motives actuating the conduct of the members of such 
 bodies, but from that very love of ciise (and the consecpumt 
 neglect of duty), which is considered as the counterpoise 
 of that love of power, which induces men, in the first in- 
 stance, to take upon themselves, gratuitously, the burthen 
 1 Gibs. 219. ■" -1 lUiin's E. L. c.lO.
 
 OF SELECT VESTRIES BY CUSTOM. 715 
 
 of administering public affairs. The propriety, therefore, 
 of inquiring into the foundation of such institutions, in 
 order to ascertain the just huiits of their authority, and 
 the responsibiUty under whicli it is exercised, is obvi'ous.' 
 
 The advantages, or disadvantages, of seh-ct vestries, 
 would, necessarily, much depend upon the circumstances 
 of each particular parish ; but those circumstances, un- 
 fortunately, do not attect the question, for select vestries 
 are founded in usage immemorial ; and the propriety of 
 such a custom originally in any particular j)arish, couUl be 
 no criterion to its fitness, in the altered circumstances of 
 such a parish, at the present day. 
 
 Constant immemorial usage and prescription are the 
 basis and only support of select vestries ; for thev are in 
 derogation of the conmion law rights of the parishioners, lromemori»l 
 and unless, therefore, they are established bv acts of par- 'u*'©'" '*>« °«>'y 
 liament, of which we shall hereafter speak, they can have ihi^yj^uwi. 
 no other legal origin than custom. Upon this foundation 
 only, the select vestry of St. Mary-at-Hill, London, was 
 confirmed and established in the Court of (Queen's Bench; 
 and, for want of such a foundation, the select vestries of 
 St. Saviour and St. Olave, both in the borough of South- 
 wark, have been set aside ; and it is quite settled that a 
 select vestry cannot be created by means of a facultv.' 
 
 Where a select vestry existed by custom, but a faculty .\|,pi^toibe 
 was obtained, naming forty-nine persons, together with cm»« of t »e»tfy. 
 the vicar and churchwardens, to constitute that body in 
 future; and apj^ointing tliat number to be ke|)t up by 
 election, to be made by ten at least, together with the vicar 
 and churchwardens; and, in a few years afterwards, an- 
 other faculty was obtained, reducing this number often to 
 seven ; and these faculties had been constantly acted 
 upon for upwards of sixty years ; yet it was held, that the 
 custom was not thereby destroyed : because, in the first 
 place, these faculties, though acted upon, had no validity 
 in law; and next it appeared, that ten out of the fourteen 
 vestrymen, who were present at the vestry, holden imme- 
 diately before the promulgation of the first faculty, were 
 part of the forty-nine named in that faculty ; and' lastly, 
 the vestry, as appointed by the faculty, and as it had since 
 continued, was not inconsistent with the vestry previously 
 existing by the custom; and therefore there was not, 
 either fn fact or in law, any discontinuance." 
 
 And it has been held, tliat a custom that a select vestry 
 should consist of an indefinite number of members, to be 
 
 • Steer's P.L. 2d edit. Vestries. ' Perru v. Bumier, Tcakc's R. 156. 
 
 " Goldins V. Fenn, 7 B. it C. 781 ; I Man. ic Iljl. 647.
 
 716 
 
 PARISH VESTRIES. 
 
 filled up at its own choice, without either maximum or 
 minimum being- fixed by the custom, is not unreasonable : 
 overruhng the dictum of Lord Kenyon in Berry y. Banner, 
 the court said, " There is obviously no weight in the ob- 
 jection, that without a maximum being fixed, the vestry 
 may consist of too many persons ; and, although no nu- 
 merical minimum be fixed by the custom, it by no means 
 follows as a consequence, that the number may be reduced 
 to two or three, as the objection supposes the law may 
 consider it as part of the custom, that there shall be a 
 reasonable number, with reference to long- established 
 visage, and to the population of the parish. That number, 
 which might not be too small, and not unreasonable, three 
 or four centuries ago, in a parish in which there might not 
 be more than a dozen substantial householders, or even 
 fewer, might not be reasonable, on a change of circum- 
 stances, when, by covering fields with houses, the number 
 might be increased more than a hundredfold."'' 
 
 The ordinary rules and principles of law which relate to 
 vestries generally are also applicable to select vestries. 
 It may be observed, that if there be any inherent imper- 
 fection in their constitution, from which the evils, at any 
 time complained of, necessarily flow, the remedy is in the 
 hands of the legislature. Courts of justice can only ad- 
 minister the law as it exists, and are not responsible for 
 suggested improvements, however salutary ; nor at liberty 
 to depart from the settled maxims of jurisprudence, how- 
 ever beneficial it might be in the particular instance. ^ 
 Legality of a The legality of a select vestry may, it seems, be tried 
 
 select vestry incidentally to the principal matter of a suit in the eccle- 
 hlcuien tally in siastical courts. Thus, in questions of subtraction of 
 ecclesiastical cluuch rate, the court having jiuisdiction ou the subject- 
 ^"""- matter, is bound, unless sto|)pcd by prohibition, to pro- 
 
 ceed to the trial of a select vestry, by which the rate was 
 made ; and it must be a prohibition in the particular suit; 
 for, if other parties before the court upon the same ques- 
 tion have been sto|)ped by prohibition, this will not autho- 
 rise the refusal oithe court to j)roceed with the cause.''' 
 
 But whenever a custom is in dispute, the ])roper tribunal 
 is a court of connnon law, and a prohibition will, in all 
 such cases, be granted, if suflicient ap])ears in proof of the 
 alleged custom, and that tlie matter in dispute in tlie 
 inferior court depends upon the custom." 
 
 * f/ii/(/i»^' V. Fenii, Jinte. 
 
 y Steer's 1'. 1.. '2d edit. 
 
 « Goiidiill mid Craii v. Whitmore atid Feint, 2 Ilagg. R. N. S. 369. 
 
 » Batlv. Wilkiiisiiri, 4 Burn's E. L. 10.
 
 OF SELECT VESTRIES DV STATUTE. 7)7 
 
 A select vestry for the man;in;omont of parochial affairs 
 cannot elect another select vestry for the nianageuient of 
 the poor, within the stat. 59 Geo^ III. c. l^.** 
 
 Section 3. 
 Of Select Vestries hij Statute. 
 
 By some of those statutes, which we liave before men- 
 tioned, for the building- and promoting the building of 
 new churches, the system of select vestries has been 
 adopted, for the management of the ecclesiastical aHairs, in 
 the new parishes or districts which are created l)y those 
 statutes. And provisions are therein made for the elec- Vc^tncs in or 
 tion and constitution of such vestries. disuiciparitl 
 
 By the stat. 10 Anne, c. 11, it is provided, that five or 
 more of the commissioners therein mentioned, shall, with I'nder »t»t. 
 the consent of the bishop, or ordinary of the j)lace, apprjint *^ Ano«, c. II. 
 a convenient number of sufficient iniiabitants of each new 
 parish, created by the act, to be vestrymen, and, from time 
 to time, upon the death, removal, or other voidance of any 
 such vestrymen, the rest, or majority of them, may choose 
 another, being an inhabitant and householiler of the 
 parish. 
 
 In every district, parish, or division of a parish, or dis- 
 trict chapelrv, or consolidated chapelry, in which any 
 church or chapel shall be built, acfjuired, or appr<)i)riatcd, 
 by virtue of and mider the statutes 58 Geo. III. c. 45, I'uder «»!». 
 and the 59 Geo. III. c. 134, in which there shall not be a ^' }^'f.<:\=?-^-f • 
 
 T . 1 , . /• <i and 69 Oco. 3, 
 
 distmct vestry, a select vestry of so many persons as tlic ^ ,3^^ 
 commissioners shall direct shall be apjjointed by the com- 
 missioners, with the advice of the bishop, out of the sub- 
 stantial inhabitants, for the care and management of tlie 
 church or chapel, and all matters relating thereto : and 
 such select vestry shall annually elect the church ov 
 chapelwardens on the part of the j)arish or chapelry, and 
 shall elect new members of such vestry, as vacancies shall 
 arise by death, resignation, or ceasing to inhabit the ]v.irish ; 
 and proper pews shall be provided for the use of the chmch 
 or chapelwardens.'' , . 
 
 In these cases, therefore, the number is fixed and hunted 
 by the commissioners and bishop, but the individuals, ulti- 
 mately, are such as the vestrymen themselves nray choose. 
 
 And this ])ower of electing new members by the select Thc^pltcw^of 
 vestrymen, as vacancies may arise, in such nuuiner as "^^^^l^'^^^^^^, 
 
 b Re<^. V. Woodman, A l-nrn. & Aid. 607. "^ Sccl. 30.
 
 718 PARISH VESTRIES. 
 
 ing the meet- above mentioned, has been recently extended to cases, 
 ings may be where any vestrymen shall neglect to attend the meetings 
 "^' of such select vestry for the space of twelve months : pro- 
 
 vided such select vestry shall have met at least three 
 times during such twelve months ; and in every such 
 case it shall be lawful for such select vestry to declare the 
 member or members of such select vestry, so neglecting to 
 attend, no longer a member or members of such vestry, 
 and the vacancy or vacancies thereby created shall be 
 filled up in the manner directed by the last-mentioned act, 
 with respect to vacancies arising by death, I'esignation, or 
 ceasing to inhabit the parish. ° 
 Such a select But a select vestry, constituted by the 59 Geo. TIL 
 
 vestry cannot ^ jg^ althouoh it is appointed for the care and manage- 
 
 muke a rate for ^ i ° o ^ ^ ^ i i in 
 
 repairs of the ment ot the conccms or the church, or chapel, and all 
 church. matters and things relating thereto, has no power to make 
 
 a rate for the repair of the church. 
 
 In the case where this question was decided,^ Lord Ten- 
 terden says — " Under the authority of the 134th section, 
 the select vestry was established ; and such vestry, there- 
 fore, must have the care and management of the concerns 
 of the church, and all matters relating thereto ; and the 
 question is, whether the power of making church rates be 
 included in those words, and given thereby ? Now, there 
 are many concerns of the church, and many matters re- 
 lating thereto, independent of the making rates for its 
 repairs, and the power of making such, not being ex- 
 pressly given, can only be deemed to be given by infer- 
 ence and implication, if it be given at all. And, accord- 
 ingly, the argument for the defendants put their case on 
 that ground, and it was urged that the inconvenience of 
 allowing the power to make a rate to exist in a body 
 distinct from the persons who have the care and manage- 
 ment of the concerns of the church would be so great that 
 the legislature must be understood to have intended to 
 give tliat ])ower, by the general words used on this occa- 
 sion. The court, however, can know the intention of the 
 legislature only from the language of a statute, and is 
 to interpret that language according to the rules and i)rin- 
 ciples of the law. The inconvenience, in this case, does 
 not appear to be greater than that which must take place 
 under the statute 59 Geo. III. c. 12, whereby a select 
 vestry may the appointed for the concerns of the ])oor, 
 leaving the power of making rates to the persons who be- 
 
 •' Stat. 3&4 Vict. c.GO. s. 8. 
 
 « Coclibuin V. llervey, 2 I3arn. & Ad. 801.
 
 OF SELECT VESTRIES BV STATUTE. 7 ID 
 
 fore possessed it, that is, to the churchwardens and over- 
 
 seers." 
 
 Where any parish or place shall be divided into sepa- Former »elfct 
 rate parishes, for ecclesiastical purposes, or into separate ♦"">'"«'» •• 
 districts or chapelries, in which select vestries shall he "J-'r^L^J 
 appointed by the commissioners, all members uf'tlie select pan.h h». l*tn 
 vestry of the orjojiuil chmcli or cha|)el shall coiuiiiue to ''"'"^'^^ ""•'*' 
 act as the vestry of such district or division, in all matters *"" '*^' 
 relating to such church or chapel, and the repairs tlureof, 
 or to any other ecclesiastical matters or thins:;s, or in the 
 distribution of any proportion of any bequests, gills, or 
 chaiities which may be assigned to any such district 
 or division ; provided that no member of any select 
 vestry shall, after such division, act in any matter relating 
 to any church or chapel, or any other ecclesiastical nuitters 
 or things, except such as relate to the division in which 
 he shall reside; and if by reason of such division a sulli- 
 cient number of such members of select vestry shall not 
 remain resident in the division within which the oriiiinal 
 church or chapel shall be situate, according to the pro- 
 portion fixed by the commissioners, (regard being had to 
 the population of sucli division, and its relative jio])ula- 
 tion to that of the whole parish or ])lace,) all such defi- 
 ciencies shall be filled u|) as vacancies have before been 
 filled up therein ; provided that no person shall vote in 
 supplying such deficiencies unless resident within the 
 division for which the members are to be chosen ; ])rovided 
 that the persons chosen shall not thereby be members of 
 the vestry for any other purposes than such as relate to 
 the division for which they shall be chosen, or for the dis- 
 tribution of any charitable gifts therein ; and |)rovided 
 that all the members of the select vestry of any such 
 parish or place, resident in any other divisions thereof, 
 shall be members of such vestries as shall be appointetl 
 under the acts for the divisions in which they shall reside.' 
 
 It will be observed, that in this last act, in n)entionin'^^ 
 the duties of a select vestry, the words " repairs thereof" 
 are introduced, which were not in the original statute, by 
 which such select vestries are created; and accordingly this 
 was relied upon, and pressed in argument in the. last 
 mentioned case before Lord Teuterden, who in giving 
 judgment in that case observes upon it—" The tenth sec- 
 tion of the 3 Geo. IV. c. 72, does certainly afiord an 
 aroument in fiivour of the defendants; but it is obvious iiui ihi«fn»ct. 
 that this section is confined in terms to tlic nrevious e.\- l^;",!;;'*^"^; 
 istence of a select vestry in the origmal parish, and it is nopowcr»wh.ch 
 
 ' 3 Geo. 4, c. 72, s. 10.
 
 720 
 
 PARISH VESTRIES. 
 
 they had not 
 previously. 
 
 Select vestries 
 by special pri- 
 vate acts of 
 parliament. 
 
 Select vestiies 
 under 1 & 2 
 Will. 4, c. 60. 
 
 In whnl patislics 
 act may be 
 ado])lcd. 
 
 by no means a necessary consequence that because the 
 legislature thought fit to give the power of making rates 
 (assuming such power to be thereby given) to the select 
 vestry of a new parish, taken out of an old parish wherein 
 a select vestry had that power before, therefore the select 
 vestry of such a new parish shall have that power, where 
 it was not previously vested in a body of the same descrip- 
 tion in the whole parish, so that the giving of that power 
 in a case like the present can, at most, be considered only 
 as a matter of doubtful, and by no means of necessary or 
 even clear implication." 
 
 These select vestries, therefore, for ecclesiastical pur- 
 poses, do not affect or alter the common law right of the 
 parishioners and churchwardens, in vestry assembled, to 
 tax themselves for the purposes of a church rate ; but this 
 question has been already considered under the subject of 
 church rates. _ ;; 
 
 In several private acts, for building particular churches, 
 provision is made for the appointment of select vestries. 
 In some instances the minister, churchwardens, overseers 
 of the poor, and others, who have served, or paid fines 
 for being excused from serving those offices ; in others the 
 minister, churchwardens, overseers of the poor, and all 
 who pay to the poor rate ; and there are some in which 
 all who rent houses of so much a year are appointed to 
 be vestrymen within such parishes, and no other persons. 
 
 In the metropolitan, and in some of the larger country 
 parishes, considerable inconvenience was experienced from 
 the large and increasing numbers of the inhabitants who 
 were entitled to be present in and constitute the vestry ; 
 and to remedy this inconvenience an act was passed in the 
 year 1831 (generally known as liobhouse's act), which, 
 in cases where the act has boon adopted, makes the vestry 
 a representative body, of whom all rateable inhabitants of 
 the parish are the constituents. 
 
 The parishes in which the act may be adopted, the mode 
 of its a(i()|)ti()n, the number of vestrymen in each case, 
 according to the amount of the poj)ulation, the mode of 
 their election, the duration of their office, their qualification 
 :iii(l duties, are determined by the act, the material parts 
 of which arc as follows.'^ 
 
 The act is applicable to, and may be adopted in all 
 I)arishes within, or being part of, any city or town, and in 
 any other parishes in which there are more than 800 rate- 
 payers ; but it is not to be adopted in other parishes, in 
 
 For tiie following' provisions, sec llic stat. 1 & 2 Will. 4, c. 
 
 60.
 
 OF SELECT VESTRIES BY STATUTE. 721 
 
 whicli, therefore, the constitution of the vestrv remains as 
 before. 
 
 In parishes where certain of the raU'-j)aycrs desire that lu* lo u 
 the act shall be acloj)te(l, any number, aniounlini; at least 'J^p'tJ. 
 to one-fifth of the whole, or to fifty, may sign and deliver 
 a requisition, describino- their places of residence to the 
 churchwardens, or to one of them, between the 1st of 
 September and the 1st of March, requiring- them to ascer- 
 tain, according to the manner prescribed by the act, 
 vyhether the majority of the |)arishioners wish "the provi- 
 sions of tlie act to be adopted. On recei|)t of thi.s retpji- 
 sition, the churchwardens, on the 1st day in March then 
 next ensuing, are to affix a notice on "the doors of all 
 churches and chapels within the parish, specifying the 
 day, not earlier than ten, nor later than twenty-one davs 
 after the Sunday following the allixing of the notice, and 
 the place where the rate-payers are to vote lor or against 
 the adoption of the act. 
 
 No ])erson is to be deemed a rate-payer, and entitled to Who ate to b« 
 vote, under the provisions of the act, who has not been ''<*e'"«l '^««- 
 rated for the whole year preceding, and paid all rates 
 and assessments due from him for that time. 
 
 If two-thirds of the votes so given (the whole luunber Voiin<: for adop. 
 of persons voting being a clear majority of the rate-j)ayers ) ""^ °' ' "^ "•''* 
 are in favour of adojjting the act, the churchwardens are 
 forthwith to give notice of that fact in the London Ciazette, 
 and in some newsj)aper cir(;ulating in the county, and by 
 notice affixed to the principal doors of every church or 
 chapel within the ])arish. 15 ut if the rate-payers decide 
 against the adoption of the act, no similar requisition is 
 to be made within three years. 
 
 The act immediately takes effect, and becomes law, in Kiwtloo of »«- 
 the parish where it has been adopteil, for the election of 'T"«°- 
 vestrymen and auditors. This election is to be annual, 
 and to take place on some day in May ; the day to be 
 fixed, in the first year, by the churchwardens, and after- 
 wards by the vestry. When a ballot is demanded at such DurAtion of ib* 
 election," the same shall commence on the followinj; day ; l"""""g- 
 and continue for three successive days, connnencing at 
 eight in the forenoon, and closing at four in the afternoon 
 on each day. 
 
 On the day of annual election for vestrymen and au- 
 ditors, in any parish adopting this act, each parish JontT 
 then rated, and having been rated to the relief of the i)oor intpwtoitof 
 one year, desirous of voting, is to meet at the place ap- vote*, 
 pointed for such election, then and there to nonunate 
 eio-ht rate-pavers of the said parish, as fit and proper
 
 722 
 
 PARISH VESTRIES. 
 
 The poll. 
 Ballot. 
 
 Penalties. 
 
 Qualification of 
 vestrymen. 
 
 Number to be 
 not less than 
 twelve, nor 
 more tlian 120, 
 in different 
 cases. 
 
 persons to be inspectors of votes ; four of such eight to be 
 nominated by the churchwardens, and the other four to 
 be nominated by the meeting : and, after such nomination, 
 the parishioners are to elect such parishioners duly qua- 
 lified as may be there proposed for the offices of vestry- 
 men and auditors ; and the chairman shall, at such 
 meeting, declare the names of the parishioners who have 
 been elected by a majority of votes at such meeting. 
 
 Any five rate-payers may then and there, in writing or 
 otherwise, demand a poll, which shall be taken by ballot, 
 each rate-payer delivering to the aforesaid inspectors two 
 folded papers, one of which papers shall contain the 
 names of the persons for whom such parishioner may 
 vote as fit and proper to be members of the vestry, and 
 the other shall contain the names of the persons for ^vhom 
 such may vote as fit and proper to be auditors of accounts : 
 provided that each rate-payer shall have one vote, and no 
 more, for the members of the vestry, and one vote, and no 
 more, for the auditors of accounts, to be chosen in the 
 said parish. 
 
 This proviso is very important, as, in parishes where 
 the act has been adopted, it repeals the provisions of the 
 former Vestry Act, by which, as w^e before observed, the 
 right of voting was transferred from persons to property. 
 Under this act, every individual rate-payer has an equal 
 voice in the election, without reference to the amount of 
 property on which he may be rated. 
 
 The duties of these inspectors are particularly specified 
 in the act, and penalties are appointed by the act for 
 forging of fiilsifying any such voting list, or obstructing 
 the election, or making an incorrect return.'' 
 
 The vestry, thus appointed and elected, shall, when the 
 act has come into full operation, consist of resident house- 
 holders, rated to the poor upon a rental of not less than 
 10/., in parishes not within the metropolitan pohce dis- 
 trict, or city of London. But in parishes within that 
 district or city, or in other j)arishes where there are three 
 thousand resident householders, the being rated to the 
 poor, on a rental of not less tlian 40Z. per annum, is a 
 necessary qualification.' 
 
 The number of vestrymen arc to be proportioned to the 
 number of householders : thus, — there arc to be twelve 
 vestrymen for every parish in which the number of rated 
 householders shall not exceed one thousand ; and twelve 
 oth(!r additional vestrymen for every parish in which the 
 
 '■ Sect. ly. 
 
 » Sect. 26.
 
 OF SELECT VESTRIES BY STATUTE. 723 
 
 rated householders shall exceed one tliousaiid ; ami twilve 
 other additional vestryinen for every parish in which ilie 
 number of rated houselioldcrs shall exceed two th(jusaiiil ; 
 and so on, at the proportion of twelve additional vestry- 
 men for every thousand rated iiouseholders : provided 
 that in no case the nundjcr of vestrymen shall exceed one 
 hundred and twenty : but in any parish wherein a greater 
 number of vestrymen are given by special act of parlia- 
 ment, than the proportions aforesaid will amount to, then 
 the number of vestrymen shall remain the same as }^iven 
 by such act of parliament. The rector, district rectors, ^^"'' ^*'* ^••'• 
 vicar, perpetual curate, and churchwardens of the said sy*"*"* 
 parish, shall constitute a part of the said vestry, and shall 
 vote therein, in addition to the vestrymen so as aforesaiil 
 elected imder this act : provided that no more than one 
 such rector, or other such minister, as aforesaid, from any 
 one parish or ecclesiastical district, as aforesaid, shall, ex 
 officio, be a part of, or vote at, any vestry meeting.'' 
 
 At the first election for vestrymen, after the adoption 
 of this act in any parish, one-third of the then existing 
 vestry, or the nearest number thereto, but not exceeding 
 the same, shall retire from office (such portion to be de- ^' > of 
 
 termined by lot), and the parishioners duly qualiticd shall J^'_^^ "^ 
 elect a number of vestrymen, equal to one-thinl of the of the t 
 
 vestrv, to be chosen accordinc; to the provisions of this eiectioos uoder 
 
 ^ • 1 I ' 1* 1, liiC Act. 
 
 act ; and on the next ensumg annual election lor vestry- 
 men, one-half, or as nearly as may be one-half oi' the 
 remaining part of the first aforesaid vestry, shall retire 
 from office (such portion to be determined by lot), and the 
 parishioners duly qualified shall again elect a number of 
 vestrymen equal to one-third of the vestry, to be chosen 
 according to the provisions of this act ; and on the n<\t 
 annual election for vestrymen, the last remaining portion 
 of the old vestry shall retire from olhce, and the jjarish- 
 ioners duly qualified shall elect vestrymen, in like manner 
 and number as at the two preceding elections ; so as to 
 fill up the vestry to the exact number of vestrymen pre- 
 scribed by this act.' , ,• .« 
 
 At every subsequent annual election those vestrymen ^^'X^ftcr 
 who have been three vears in office shall go out ot ottice^; >^^^ ^^^^ 
 and the parishioners" shall elect, according to the provi- 
 sions of this act, other vestrymen to the number ot one- 
 third of the total number of which sucli vestry shall 
 consist; as also fill up any vacancies which may Have 
 occurred from death or other causes : provided that any, 
 
 k Sect. 23. ' Sect. 24. 
 
 3a2
 
 veslrv. 
 
 724 PARISH VESTRIES. 
 
 or all, of the vestrymen so going out by rotation may be 
 immediately eligible for re-election. 
 Case in the With regard to these last provisions, it has been de- 
 
 9"' en's Bench, temiined by the Court of Queen's Bench,'"— 1. That 
 meTni'iL' ol the where the act has been adopted in a parish, there must be 
 act as 10 the old elected, at each of the first three annual elections, one- 
 ami the new third of the whole number of which the vestrv, chosen 
 under the act, is ultimately to consist ; and there must be 
 deducted, by lot, from the original vestry, at the first 
 election, one third of the number of vestrymen then ex- 
 isting (whatever the full regular number of the original 
 vestry would be) ; at the second election, half the number 
 of the original vestrymen then existing ; at the third elec- 
 tion, all the remaining original vestrymen. 
 As to divisions 2. A parish adopting the act had previously been di- 
 in parishes. vided into four districts, for the more conveniently col- 
 lecting the rates, and this division had been adopted for 
 taking the poll in the election of members of parliament ; 
 a small ])art also of the parish was annexed to a part of 
 an adjoining parish, and separated from the original 
 parish for ecclesiastical purj)oses : held, that the election 
 of vestrymen and auditors might be made in one place of 
 the parish only. 
 As to f]ualifica- 3. If a parish, adopting the act, be within the metro- 
 iion of tlie ves- pohtan ])olice district, or the city of London, or contain 
 ■"y"*^"' more than three thousand resident householders, the quali- 
 
 fication for vestrymen is, that they should be resident 
 householders, and should also be rated to the poor rate of 
 the parish, on an annual rental of not less than 40/. ; but 
 the rental may be made up of tenements separately held, 
 and not in the occupation of the vestrymen. 
 
 4. The qualification must be perfect at the time of elec- 
 tion ; but if unqualilird persons be elected, this docs not 
 avoid the elecliou of qualilicd vestrymen or auditors, 
 elected at the same time. 
 As to oaihs •'^' ^ parish which adopted the act had previously been 
 
 piesrrii)ed hy a governed by a vestry established by a local act, which 
 former local deiincd the qualihcation of a vestryman, and prescribed 
 ^*^'' an oath to be taken before any vestryman should be 
 
 capable of acting in the execution of that local act. By 
 the oath, the person swore to execute the jiowers reposed 
 in pursuance of the same, and that he was possessed of 
 tlic quahlication prescribed tluneby, which was didercnt 
 from that required by 1 & 2 Will. IV. c. 60. Held, that 
 this oath was not to be taken by the vestrymen elected 
 under the latter act. 
 
 '" R. V. St. rancias, ante.
 
 OF SELECT VESTRIES BY STATL'TE. V'^/i 
 
 The vestry thus constituted is to exercise the powers i-o^er •■«] ■«. 
 and privileges held by Jiiiy vestry existini: in such parish ilioniyofthc 
 at the time of the passing (A' the act, and its authority *'•■'"'•• 
 may be pleaded in regard to all parochial property, or 
 monies due, or holdings, or contracts, or otlier documents 
 of the like nature, formerly under the control of the said 
 vestry ; and all parish ollicers or boards shall account io 
 them, in like manner as they have accounted to the said 
 vestry." 
 
 The number of vestrymen present who are sulFicient to 
 constitute a quorum in each case, are as follows: — Five, \umber con- 
 where the vestry consists of not less than twelve, nor niiuiiog a 
 more than twenty-three vestrymen. tjuorum. 
 
 Seven, where the vestry consists of not less than twenty- 
 four, nor more than thirty-five vestrymen. 
 
 Nine, where the vestry consists of thirty-six vestrymen, 
 or any number upwards; and if acts done by them are 
 confirmed at the next subsequent meeting of the vestry, 
 they are valid and binding." 
 
 In any case in which the vestry room of any parish, in Mating* noi to 
 
 any city or town, shall not be sufficiently large and coin- ^ ^i^'J "» »''« 
 
 •',.*'p ' , . I'i- iiii church, 
 
 modious for any vestry meetnig, such meetmg sluUl be 
 
 held elsewhere, within the said parish or place, but not in 
 
 the church or chapel thereof.'' 
 
 The right of the minister of the parish to be the chair- Right of minift- 
 man in vestry is not affected by this act; for it is declared ler ^o be chtir- 
 that at every meeting of any vestry, in the absence of the 
 persons authorised by law or custom to take the chair, the 
 members present shall elect a chairman for the occasion 
 before proceeding to other business ; and the person au- 
 thorised by law and custom to take the chair, as we have 
 already clearly seen, is the minister. 
 
 The proceedings of the vestry, and the names of the 
 vestrymen attending, and also 'a regular account of all 
 sums received or expended on account of ])arochial pur- 
 poses, and of the matters for which thev have been ex- 
 pended, are to be entered in certain books provided lor 
 such purposes, which books are to be open to nispection, 
 and copies or extracts may be taken of or from any tinng 
 contained in them, without fee or reward.'" 
 
 The act further provides that, in every parish where it Aud.ior*. 
 is adopted, five rate-payers shall be chosen as auditors ot 
 accounts. The qualification of these auditors is the same 
 as that of the vestrymen, but no person can act as auditor 
 and vestryman at the same time, nor can any one act as 
 auditor, who is interested in any way, directly or mdi- 
 
 » Sect. 27. Sect. 28. p Sect. 29. <» Sects. 31, 33.
 
 726 
 
 PARISH VESTRIES. 
 
 rectly, in any contract, office, business, or employ for the 
 parish in which he is to serve ; but the various duties 
 appointed for these auditors do not appear to call for par- 
 ticular notice in this work. 
 List of charities. The vestry is to cause, once a year, a list to be made 
 out of all estates and charitable foundations in the parish, 
 under the control of the vestry. Such list is to contain 
 all particulars relating to such estates or foundations, and 
 is to be open to the inspection of the rate-payers, with the 
 accounts, when audited, at the office of the vsstry clerk.'' 
 
 Nothing contained in the act is to extend to invalidate 
 or avoid any ecclesiastical law or constitution of the 
 Church of England, except so far as concerns the ap- 
 jjointment of vestries j or to destroy any rights or powers 
 of archbishops, bishops, de?ais, or other clergy, either as 
 individuals or corporate bodies, or in any way to abridge 
 or control their ordinary jurisdiction over any matter or 
 thing respecting the ministers thereof. 
 
 Saving to eccle 
 siasiical juiis- 
 diction. 
 
 CHAPTER II. 
 
 OF UNION WORKHOUSES, AND THE OFFICE OF 
 CHAPLAINS THEREIN. 
 
 The subject of 
 importance lo 
 clergy. 
 
 Powers of Poor 
 Law Commis- 
 sioners. 
 
 The recent alteration of the laws affecting the manage- 
 ment of the poor, and the general establishment of union 
 workhouses throughout the country, has occasioned a new 
 office among the clergy in the chaplains appointed for the 
 religious instruction of the pauper inmates of such houses; 
 and the subject is practically of importance, not only to 
 those clergymen who may be appointed to such offices, 
 but incidentally in a variety of ways to the incumbents of 
 those parishes in which the union workhouses are situated. 
 The act by which unions for the maintenance of the 
 poor were established' provided, first, for the ai)pointment 
 of the poor law commissioners, and authorised them, inter 
 alia, from time to time to make and issue such rules, 
 orders and regulations for the government of workhouses 
 and the education of the children therein, and for carry- 
 ing the act into execution in all other respects, as they 
 should think proper, and further authorised them, at their 
 
 r Sect. 39. 
 
 » 4 & 5 Will. 4, c. 7C.
 
 OF UNION WORKHOUSES AND CHAPLAINS. 727 
 
 discretion, to suspend, alter, or rescind sucli nili.-.-, oider.-;, 
 and regulations.' 
 
 It was also declared that no rules, orders or regulu- Paupewin 
 tions of the commissioners, nor any bye-laws then in **' "' 
 
 force, or to be thereafter made, should oblige any inuiate "end r< ii'ioui 
 of any workhouse to attend any religious service which worship con- 
 might be celebrated in a mode contrary to the religious '"ry lo iheu 
 principles of such inmate, nor should authorise tlie educa- P^'"*^''"- • 
 tion of any child in such workhouse in any religious creed 
 other than that professed by the parents or surviving 
 parent of such child, and to which such parents or parent 
 should object, or, in the case of an orphan, to which the 
 godfather or godmother of such orphan should so object : 
 provided also, that it should be lawful ibr any licensed chiidtcn of 
 minister of the religious persuasion of any inmate of such DisAtnitrs. 
 workhouse, at all times in the day, on the request of such 
 inmate, to visit such workhouse for the purj)ose of afford- 
 ing religious assistance to such inmate, and also for the 
 purpose of instructing his child or children in the princi- 
 ples of their religion." 
 
 It was also further declared that the commissioners provisions of 
 might direct the guardians of the union to ajjpoint such tlie act under 
 paid ofhcers, with such qualifications, as the commissioners [)]'Je [,J J'',J1" 
 should think proper, for superintending or assisting in the pointed, 
 administration of the relief and employment of the poor, 
 and otherwise carrying the provisions of the act into exe- 
 cution; and the commissioners were empowered to define, 
 specify and direct the execution of the respective duties 
 of such officers, and the places and limits within which 
 the same should be performed, and to direct the mode of 
 appointment and determine the continutmce in office and 
 the dismissal of such officers. And by the interpretation 
 clause of the same act it was declared that the word 
 " officer " should be construed to extend, among others, 
 to any clergyman.'' 
 
 Upon these provisions of the act it was at first consi- Doubn » to 
 dered doubtful whether the guardians were empowered to ^'^ 2;'^°' 
 appoint, or the poor law commissioners to enforce tlie ap- duplaini. 
 pointment of chaplains in union workhouses, but tins 
 question, as we shall see, has since that tune been judi- 
 cially determined. , , „. , , 
 
 The boards of guardians were, however, recomineiu ed F..su.om.^ 
 by the commissioners to appoint a clergyman oi ine j,,^ „„„„„. 
 Established Church as chaplain for the workhouse; the ..ones as lo 
 commissioners stating that although it did not appear m- nppo.n..og 
 t Sect. 15. " Sect. 19. =< See seels. 46 and 109.
 
 728 
 
 OF UNION WORKHOUSES AND CHAPLAINS. 
 
 dispensable that a chaplain should be appointed in every 
 union workhouse, yet they recommended that in every 
 case there should be some person appointed and paid as 
 such, in order that he might acquire a right and take the 
 responsibility of giving aid and instruction to the sick, and 
 of superintending the religious instruction of the children 
 who were educated in the workhouse, and that the incum- 
 bent of the parish might well undertake such duties at a 
 moderate stipend ; and in a circular letter the duties of 
 such a chaplain were generally defined to be the superin- 
 tendence of the moral and religious state of the inmates 
 generally, the direction of the religious instruction of the 
 children, and the administration of spiritual consolation 
 and comfort to the aged, infirm, and sick. 
 Gencialand It may here be observed, that all general rules made by 
 
 particular rules, the commissioners (general rules being such as are di- 
 rected to and affect more than one union) must be sub- 
 mitted to one of the secretaries of state in the manner 
 directed by the act before they come into operation. Other 
 rules, affecting particular unions, need not be so submitted 
 in order to give them validity ; and all rules, orders and 
 regulations from time to time made by the commissioners 
 under the authority of the act, are declared to be valid 
 and binding, and are to be obeyed and observed as if they 
 were specifically made and embodied in the act. 
 
 Acting upon this ])ower, the commissioners, at an early 
 period, issued the following orders, to be observed in one 
 of the unions first formed, and intended to be a direction 
 to others.^ 
 
 " No ])erson shall be allowed to visit any pauper in the 
 workhouse, except by permission of the master and sub- 
 ject to such conditions and restrictions as the board of 
 guardians may direct : })rovided that the interview shall 
 always take place in the presence of the master or matron, 
 and in a room separate from the other inmates of the 
 workhouse, unless in case of sickness: provided also, that 
 any licensed minister of the religious persuasion of any 
 inmate of such workhouse, at all times of the day, on the 
 request of such inmate, may visit such workhouse for the 
 purpose of affording religious assistance to such inmate, 
 and also at all icasonablc times for the purpose of in- 
 structing his child or children in the principles of their 
 religion, such religious assistance and such instruction 
 being strictly confined to inmates who are of the religious 
 persuasion of such licensed minister, and to the ciiildren 
 7 Instructions of poor law commissioners to guardians of iho Abingdon union. 
 
 Arrangpmcnt 
 for religious in- 
 struction by 
 dissenting mi- 
 nisters in work- 
 liouscs.
 
 OF UNION WORKHOUSES AND CHAl'LAINS, 7?M 
 
 of such innmtcs, and not so as to iiiterlLTo with tin- ^.iO(i 
 order and discipHuc of the other inmates of tht; estahlisli- 
 ment."^ 
 
 Divine service sliall be performed every Sunday in the i)i»inc ».»ff ic« 
 workhouse,, at which all the paupers shall attend, exce|>t ("< ih'mji,* not 
 the sick and the young children, and such as are too infirm •^'"<-'"'"»- 
 to do so; and except also those j)aupcrs who may ohjcct 
 so to attend on account of their professinsj; religious prin- 
 ciples differing from those of the Church of England." 
 
 The first of these rules was in pursuance of that clause 
 of the act which provided that any licensed minister of the 
 religious persuasion of any inmate might visit the work- 
 houses at all times of the day at the request of such inmate, 
 to afford him religious instruction, and to instruct his chil- 
 dren in religion. Questions as to the effect of this pro- Definition and 
 vision were submitted to the solicitor-general by the guar- rcsuituonof ihc 
 dians of the Dunmow union, and the following o])inion senl^ng" i^imjVcr 
 was returned by him, which confirms in substance the le- in woikhou^c*. 
 gality of the above-mentioned lule of the commissioners 
 as to this matter. 
 
 " I am of opinion that any licensed minister may, upon 
 the request of any inmate or inmates of the Dunmow union 
 workhouse, being of the same religious persuasion as him- 
 self, visit tlie W'Orkhouse, and theie give religious instruc- 
 tion, by reading or preaching, or offering up prayers ; and 
 that such instruction may be given, either individually or 
 collectively, to the persons who have so retpiestetl his as- 
 sistance, or to any of their children. It seems to me (piite 
 clear that the act does not authorise him to give any such 
 instruction to persons not of his own religious persuasion, 
 nor to inmates who have not requested his attendance."'' 
 
 When the recommendations of the counuissioners as to Doubu a» to ihc 
 the appointment of chaijlain were generally attended to, it "^'[''"'.'•V^ „^ 
 
 J I . 1 1 • , • "i ii i. oisiioii s license 
 
 became a question whether it was not requisite that some j„ ^.^^^ „f ^,,jp. 
 part of the workhouse should be cons('crat(>d to sanction a lain and of 
 clergyman of the Established Church in performing the "otkimiM:. 
 duties required to be performed by the chaplain ;— whether 
 it was necessary that he should be licensed thereto by the 
 diocesan ; and whether the consent of the incumbent of the 
 parish in which the union was situate was esscntuil ; and 
 whether, if the incumbent or cuiate of the parish was the 
 chaplain, a license from the diocesan was still requisite.— 
 Upon these questions the following opinion in substance 
 was returned by Dr. Addams. 
 
 " With the bishop's license, it is not necessary that any Opinion of Dr. 
 
 » The 23rd article of orders to be observed in workhouse of Abinfrdon unioo. 
 « 25ih article. " Sir H. M. Rolfe, Solicitor-Uenerai, 1838.
 
 730 OF UNION WORKHOUSES AND CHAPLAINS. 
 
 part of the workhouse should be consecrated to sanction a 
 clergyman of the establishment in the performance of any 
 of the duties required of him. Seeing that these chaplains 
 are required to preach, pray and administer the Communion 
 regularly, I am of opinion that the chaplains of those work- 
 houses are required to perform divine service, and con- 
 sequently that, strictly speaking, the bishop's license is 
 necessary. For, strictly speaking, no minister is autho- 
 rised to serve, i. e. to perform divine service in any diocese, 
 without the license of the diocesan. I think, strictly speak- 
 ing, that the consent of the incumbent, in whose parish the 
 workhouse is situate, is also necessary ; for as no minister 
 of the establishment can officiate, strictly speaking, in any 
 diocese without the license of the diocesan, so neither, in 
 strictness, can he in any parish without the consent of the 
 incumbent. I think, too, that the bishop's license may be 
 necessary, in strictness, even though the incumbent or 
 curate of the parish in which the workhouse is situate be 
 the chaplain."'^ 
 Power of com- The power of the commissioners to enforce the appoint- 
 missioners to meut of a chaplain, where the guardians were reluctant to 
 
 appointchaplain •, j.,,i- i • • i 
 
 confirmed by appouit, and Contrary to then- expressed opmion, was not 
 Court of fully acquiesced in until it was estabhshed by the following 
 
 Queen's Bench, case : 
 
 The commissioners had ordered the guardians of the 
 Braintree union in Essex to appoint and to report the same 
 to them, with the amount of salary, &c., in order that the 
 same might be confirmed or disallowed by them ; and the 
 writ commanded tlie guardians to obey such order, or to 
 show cause to the contrary. The return to the writ stated 
 that the majority of the inmates of the workhouse were 
 dissenters ; that dissenting ministers attended the work- 
 house voluntarily ; and, therefore, that in the exercise of 
 their judgment and discretion, they did not think it neces- 
 sary to appoint a chajilain. 
 
 In support of the return, it was argued, that clergymen 
 did not come within the descrij)tion of officers under the 
 46th section; and that if there was nothing out of that 
 section to which the word clergyman in the interpretation 
 could apply, the court would rather suppose the word in- 
 cautiously adopted than admit the imposition of a tax 
 without sufficient words to warrant it; upon wliicli Cole- 
 ride, J. observes : " As to the word being introduced by 
 negligence, it seems j^robable that the office of a clergyman 
 
 "= In llic case of a new office, as that of cliaplains to workliouses, where the 
 law lias to l)e built up gradually, the insertion of the several opinions mentioned 
 in the text, in the absence of any positive lex scriptu, may be found useful.
 
 OF UNION WORKHOUSES AND CnAPLAlNft. 731 
 
 was in contemplation when this act was Iramecl, which 
 removes persons from the neighbourhood of tlicir ])n»per 
 spiritual instructors to a place where iii.structiun may be 
 deficient under the new state of things, and where, if the 
 commissioners cannot appoint a chaplain, the guardians 
 cannot." 
 
 It was further urged, that it was inexpedient that this 
 power should be exercised in London by connnissioners 
 who personally knew nothing of the union, without any 
 reference to the discretion of the guardians, who were ac- 
 quainted with the opinions and religious persuasions of tiie 
 inmates, and that the commissioners might direct the ap- 
 pointment of any minister, even although his religious be- 
 lief were totally ditl'erent from the inhabitants; as, for 
 instance, that a Roman Catholic might be ajjpointed, the 
 term clergyman being often applied to ministers of other 
 persuasions than that of the Church of England. 
 
 Lord Denman said, it is true that no j)rovision is to be 
 found in the act in question directly authorising the ap- 
 pointment of a chaplain, or even using the word " chaplain," 
 or any word of a similar import; but the 19th section 
 plainly shows the intention of the legislatuie that the in- 
 mates of the union workhouse, of whatever religious j)er- 
 suasion, should have religious assistance from ministers of 
 their own persuasion; it shows, moreover, that some ge- 
 neral regulations for affording such assistance to the iinnates 
 were intended, as well as some exceptions and particular 
 regulations in favour of those who dissented, and could not 
 conscientiously reap the benefit of those general regula- 
 tions. Then the 42d section, giving power to the com- 
 missioners to make rules and regulations for the govern- 
 ment of workhouses, makes it further incumbent upon 
 them to carry into effect the intentions of the legislature, 
 as shown in the 19th section. Neither were chajjlains of 
 workhouses unknown to the law ; for many local acts of 
 parliament contain express provisions respecting thttu- ap- 
 pointment. We have no doubt that the religious instruc- 
 tion of the inmates was intended to be involved in the 
 management of the workhouse, and that the legislature 
 actually intended to give a general power to ai)point chap- 
 lains, as it found that power existing in numerous parishes 
 already. And a peremptory mandamus was consequently 
 
 awarded.'' . , , „ , , 
 
 When by means of different decisions the law, as re- 'Y^nlLlhc 
 
 garded union workhouses, and the appointment and duties ^J,'*,J„,%„d 
 d The Queen v. The Guardians of the Poor of the Braiulree Union, 1 yuecn's 
 
 Bench Reports, 130.
 
 732 
 
 OF UNION WORKHOUSES AND CHAPLAINS. 
 
 tlieir duties and 
 religious in- 
 struction. 
 
 Children, 
 
 Instruction by 
 dissenting mi- 
 nister confined 
 to those of his 
 own persuasion. 
 
 Exception. 
 
 Prayers and 
 divine service 
 and attendance 
 thereat. 
 
 of the officers, came to be better understood, the poor law 
 commissioners, in pursuance of the authority given them 
 by the act, rescinded so much of every order before issued 
 by them as related to the government of the workhouse, 
 or to the powers and duties of the officers employed in 
 them, except only so far as any of such orders might have 
 authorised the appointment of the then existing officers ; 
 and in their stead issued a number of rules or articles, 
 which, having been approved as directed by the act, have 
 consequently all the force and effect of law. These, there- 
 fore, constitute the code by which union workhouses are 
 for the future to be regulated. Such of them, therefore, 
 as relate to the chaplain and the religious instruction of 
 the paupers are here inserted, and are as follows : 
 
 Article 22. The boys and girls who are inmates of the 
 workhouse shall, for three of the working hours at least 
 every day, be respectively instructed in reading, writins;, 
 arithmetic and the principles of the Christian religion ; and 
 such other instruction shall be imparted to them as shall 
 fit them for service, and train them to habits of useful- 
 ness, industry, and virtue. 
 
 Article 29, Any licensed minister of the religious per- 
 suasion of any inmate of the workhouse, who shall at any- 
 time in the day, on the request of any inmate, enter the 
 workhouse for the purpose of afi'ording religious assistance 
 to him, or for the purpose of instructing his child or chil- 
 dren in the principles of his religion, shall give such assist- 
 ance or instruction, so as not to interfere with the good 
 order and disci])lino of the other inmates of the work- 
 house ; and such religious assistiincc or instruction shall 
 be strictly confined to inmates who arc of the religious 
 persuasion of such minister, and to the children of such 
 inmates, cxco|)t in the casein which the board of guardians 
 may lavvfidly j)ermit religious assistance and instruction to 
 be given to any pau])ers who arc Protestant dissenters by 
 licensed ministers who are Protestant dissenters. 
 
 Article 31, Prayers shall be read before breakfast and 
 after supper every day, and divmc service shall be per- 
 forn)ed every Sunday in the woiklKnise (unless tlie guar- 
 dians, with the consent of the poor law commissioners, 
 shall otherwise direct), at which all the |)aupers shall attend, 
 except the sick, jicrsons of unsound mind, the young chil- 
 dren, and such as are too infirm to do so; provided that 
 those pau])crs who may object so to attend on account of 
 their professing religious principles differing from those of 
 the Church of England, shall also be exempt from such 
 attendance.
 
 OF UNION WORKHOUSES AND Cn A PLAINS. 733 
 
 Article 32. The guardians may make such re^^ulutions inmrw io cer- 
 as they deem expedient to authorise any iniuiite of th*- ' 
 workhouse, being a member of tlie Established Church, ^,^^^ 
 and not being an able-bodied female pauper having an *^ ""' '" 
 illegitimate child, to attend public worship at a parish 
 church or chapel, on every Sunday, Christmas Day, and 
 Good Friday, under the control and inspection of the 
 master or porter of the woikhouse, or other officer. 
 
 Article 33. The guardians may also make such rciiula- Or if dit enicr*. 
 lions as they deem expedient to autliorisc anv inmate of the » 'i»»»*niiog 
 workhouse, being a dissenter from the Ivstablishcd Church, '''^J^'- 
 and not being an able-bodied female paujier having an ille- 
 gitimate child, to attend public worship at any dissenting 
 chapel in the neighbourhood of the workhouse, on every 
 Sunday. Christmas Day and Good Friday. 
 
 Article 34. Any pauper who shall use jjrofane language, Miibelnviour 
 or misbehave at prayers in the workhouse, or wilfully dis- °' ?''>«"• 
 obey any lawful order of any officer of tiie workhouse, 
 shall be deemed disorderly. 
 
 Article 35. Any pau[)er repeating any of the above Disturbing in- 
 ofFences within seven days, or committiui'- more than one "'*'" •'"""k 
 of such offences, or who shall, by word or deed, insult or ' ^ * 
 revile any officer of the workhouse, or who shall wilfully 
 disturb the other inmates daring prayers or divine \\ur>hip, 
 shall be deemed refractory. 
 
 Article 56, provides for the ajipointment of a visiting Visiting om- 
 committee, who are from time to time to give such answers J^'"^*'**. »'»«" 
 as the facts may warrant to certain cpieries |)rintcil in the "^ " 
 visitors' book, kept in the workhouse for that j)urpose, and 
 to be submitted regularly to the board of guardians at 
 their ordinary meetings. Among these queries are found 
 the following : 
 
 Is divine service regularly performed .' 
 
 Are prayers regularly read .' ^ ., , 
 
 Article 76. The following arc to be the duties of (he ^^f^^f^i;l^;^^ 
 
 chaplain. 
 
 No. 1. To read prayers and preach a sermon to the '''^"y*,;*''^ 
 paupers, and other inmates of the workhouse, on every P'"' " «• 
 Sunday, unless the guardians, with the consent of the 
 poor law commissioners, shall otherwise ilirect,^ and to 
 read prayers to them on every Good I'riday and Christmas 
 
 Day 
 
 Ni. 2. To examine the children, and catechise such as \^"';T;[;;;' «« 
 belono- to the Church of Enuland, at least, once m every 
 month ; and to make a record of the same, and state the 
 dates of his attendance, the general progress and comh- 
 tion of the children, and the moral and rehgu)us state ot
 
 734 OF UNION WORKHOUSES AND CHAPLAINS. 
 
 the inmates generally, in a book to be kept for that pur- 
 pose, to be laid before the board of guardians at their next 
 ordinary meeting, and to be termed the chaplain's report. 
 The sick. No. 3. To visit the sick paupers, and to administer reli- 
 
 gious consolation to them in the workhouse, when applied 
 to for that purpose by the master or matron. 
 
 Article 74. Among the duties of the master is the fol- 
 lowing : 
 Master's duty in In the absence of the chaplain to read prayers, or cause 
 reading prayers, them to be read before breakfast, and after supper, every 
 day in the workhouse ; unless the poor law commissioners 
 direct otherwise, at which all the paupers shall attend, 
 except the sick, persons of unsound mind, young children, 
 and those who are too infirm to do so. Those who may 
 decline to attend on account of professing different opinions 
 from the Church of England are to be exempted. 
 
 CHAPTER III. 
 
 OF DISSENTERS FROM THE ESTABLISHED CHURCH, 
 AND OF THE LAWS AFFECTING THEM.^ 
 
 The present subject is one of much importance to the 
 clergy in the discharge of their parochial duties. In those 
 parishes where a portion of the j)opulation dissents from 
 the doctrine of the Established Church, the dissenting 
 ministers and their followers must of necessity, to a con- 
 siderable extent, be opposed to the clergyman and his con- 
 gregation, in various ecclesiastical matters ; and it is most 
 desirable for the latter to know the peculiar rights and 
 privileges which belong to those who are for the most part 
 exempt from his control and interference. 
 
 There are two classes of jicrsons not conforming to the 
 rites and ordinances of the Church of England, who, in 
 times i)ast, have been very difl'crently regarded by our laws ; 
 Roman Catholics and Protestant Dissenters : but at pre- 
 sent there is little difference in their position, as regards 
 the Established Church. 
 History of ilic At the time when Blackstonc wrote, he seems almost 
 severe laws ashamed of the severity of those laws against Roman 
 against papists. Catholics which he had been enumerating, and, in conclu- 
 
 a For mucli of tliu analysis of st;ilul(;sanil tlic c:ises mentioned in tliis chapter 
 the author is indebted to Mr. Clive's recent edition of Steer's Parish Law.
 
 OF DISSENTERS, AND THE LAWS ATFECTIN'O THEM. 735 
 
 sion, appears to think it necessary to enter into the follow- 
 ing apology.'' 
 
 This, he says, is a short summary of the laws atrainst tlie 
 papists. Of which the president Montesquieu observes, 
 that they are so rigorous, though not jirofessedly of tlu- 
 sanguinary kind, that they do all the hurt that can possihly 
 be done in cold blood. But in answer to this it nuiy be 
 observed (what foreigners, who only judge from our statute- 
 book, are not fully apprised of), that these laws are seldom 
 exerted to their utmost rigour ; and indeed, if tliev were, 
 it would be very difKcult to excuse them. Tor they are 
 rather to be accounted for from their history, and the 
 urgency of the times which produced them, than to be ap- 
 proved (upon a cool review) as a standing system of law. 
 The restless machinations of the Jesuits during the reign 
 of Elizabeth, the turbulence and uneasiness of the j)apists 
 under the new religious establishment, and the boldness of 
 their hopes and wishes for the succession of the Queen of 
 Scots, obliged the parliament to counteract so dangerous 
 a spirit, by laws of a great, and then perhai)s necessary, 
 severity. The powder treason, in the succeeding reign, 
 struck a panic into James I., which operated in different 
 ways : it occasioned the enacting of new laws against the 
 papists, but deterred him from putting them in execution. 
 The intrigues of Queen Henrietta in the reign of Charles I., 
 the prospect of a popish successor in that of Charles II., 
 the assassination plot in the reign of King William, and 
 the avowed claim of a popish pretender to the crown, in 
 that and subsequent reigns, will account for the extension 
 of these penalties at those several periods of our history. 
 But if a time should ever arrive (and perhaps it js mH very 
 distant) when all fears of a pretender shall have vanishcti, 
 and the power and influence of the jiope shall become 
 feeble, ridiculous and despicable, not only in l^igland, hut 
 in every kingdom of Eurojje, it probal)ly would not then 
 be amiss to review and soften these rigorous edicts; at 
 least, till the civil principles of the Rouum Catholics called 
 again upon the legislature to renew them ; for it ought not 
 to be left in the breast of every merciless bigot, to drag 
 down the vengeance of these occasional laws upon m- 
 ofiensive though mistaken subjects, in opposition to the 
 lenient inclinations of the civil magistrate, and to tlie de- 
 struction of every principle of toleration and religious 
 
 liberty. 
 
 The time contemplated in this passage, when the tears iiomw C«- 
 of a pretender shall have vanished, has long since arrived, thohc e«H.pi 
 
 b 4Bla.Com. 56.
 
 '736 . OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 from civil dis- though the power and influence of the pope, if not in Eng- 
 abilities. land, yet in most of the kingdoms of Europe, has become 
 
 stronger rather than more despicable since that time. All 
 those laws enumerated by Biackstone, and which called 
 for an apology from him, and for the reprobation of Mon- 
 tesquieu, have been now repealed.'' The laws, therefore, 
 which formerly affected them, are now become matter of 
 history ; and it may be sufficient here to state, that, by a 
 succession of enactments, Roman Catholics have been re- 
 lieved from all civil disabilities, and are in the same position 
 as other subjects in all civil matters ; and that, upon taking 
 and subscribing certain oaths, they are eligible to all civil 
 offices and employments, except those of regent, lord chan- 
 cellor, lord keeper, or commissioner of the great seal, lord 
 lieutenant of Ireland, or high commissioner of the general 
 assembly of Scotland.*^ 
 
 Thus, they enjoy equal privileges and toleration with 
 Flow affected as other Protestant subjects, in all civil matters. But while 
 to matters eccle- equal rights and privileges with the other Protestant sub- 
 siastica . jects have been allowed them in all civil matters, it would 
 
 have been unreasonable to have allowed them to interfere 
 in those matters which affect our ecclesiastical establish- 
 ment. Biackstone says, in speaking of them in his time, 
 that while they acknowledged a foreign power, supedor to 
 the sovereignty of the kingdom, they cannot complain if 
 the laws of thtit kingdom will not treat them upon the 
 footing of good subjects. It is impossible to overlook the 
 truth of this remark as it bears u])on matters ecclesiastical, 
 in which they are especially bound to obey a foreign supe- 
 rior; for in this respect they difler fiom Protestant dis- 
 senters, who are content to deny the authority of our eccle- 
 siastical persons or officers, without looking to a foreign 
 authority for their guidance. 
 Restrictions Tlio restrictions to which they are still subjected, as to 
 
 under which matters ecclcsiastical, may be Considered as of two kinds, 
 icy are p acei . |j|,^.j.^ thosc which restrain them from interference with the 
 l^^stablishcd Church ; and, second, those by. which the ex- 
 ercise of their own religion is restrained. 
 As to inter- Accordingly, the act by which they are relieved from 
 
 tercnce with tlie civil disabilities docs not extend to authorise or empower 
 cru'i-h'''"^'* them to present to any living : in which respect they are 
 under the disabihty before alluded to in speaking of ad- 
 vowsons ; nor does it empower them, being members of any 
 lay corporation, to give any vote at or in any manner to 
 As to rights of j'>'ii in the election, presentation or api)()intment of any 
 paiionage. person to any ecclesiastical bcniefice whatsoever, or any 
 
 '• Sce7(?< 8 Vict. C.102. '^ lOGco. 4,c.7.
 
 OF DISSENTERS, AND THE LAW.-, Al 1J.l1IN<: JIII:m. 7;j7 
 
 office or place connected with or belunginn; to the Church 
 of England and Ireland, ov the (Jhurchof Scotland, which 
 may be in the patronage of such hiv c(jr|)()ration. .Neither 
 are they by that act enabled to hold any ollicc in or bc- 
 lono-ing- to tiie Church of lingland or Ireland, or the Church 
 of Scotland, or in any ecclesiastical court, or in any court 
 belonging to any ecclesiastical foundation ; or any oflice 
 or place whatever in or belonging to the universities ; or in 
 colleges or halls of the universities ; or the Colleges of Kton, 
 Westminster, or Winchester; or any college or school 
 within this realm. Neither does the act rejxial or intnfere 
 with any local statute, ordinance or ride, established by 
 competent authority, within any university, college, hall or 
 school, by which Roman Catholics are prevented from being 
 admitted thereto, or from residing or taking degrees therein." 
 
 The elfect of the statutes of the University of Oxforil is, lucunivmuic*. 
 that no Roman Catholic could be admitted even as an 
 undergraduate, so as to profit in any manner from the in- 
 struction oficred by the university; as the declaration of 
 orthodoxy is there rcquiretl at the time of matriculation. 
 Tlie effect of the statutes of the Universitv of Candjriii<re is, 
 that no Roman Catholic could be admitted to take his 
 degree there, although he might have been admitted and 
 resided there as an luidergraduate. In neither of the uni- 
 versities arc the fellowships, or any of the endowments, 
 either of the university or of the several colleges, open to 
 them. 
 
 Neither does the act enable any person, otherwise tlian j loq lo 
 
 as he was by law enabled before the j)assing thereof, to 
 exercise any right of presentation to any ecclesiastical 
 benefice, nor does it extend to repeal, vary or alter in 
 any manner the laws then in force, in respect to the riuht 
 of presentation to any ecclesiastical beuelici'. 
 
 By the laws, therefore, which were at that time, anil 
 which are consequently now in force, Roman Catholics are 
 disabled from presenting to any benefice, and every pre- 
 sentation made by them is wholly void to all intents and 
 purposes; and lest this enactment should, as indeed it 
 easily might be, evaded, it is declared' that every grant 
 made of any advowson, or right of presentation, collation, 
 nomination or donation to any benefice, by any i)crson 
 professing the Roman Catholic religion, or by any mort- 
 gagee, or trustee of such person, shall in the same manner 
 be null and void, unless it be for valuable consideration to 
 a Protestant purchaser. 
 
 e lOGeo.4, c. 7. ' 11 Geo. 2, c. 17. s. 5. 
 
 3b
 
 738 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 Such presentations to benefices as devolve upon, and the 
 right to which becomes exciseable by Roman Cathohcs, 
 are given to the chancellor and scholars of the Universi- 
 ties of Oxford and Cambridge ; and by arrangement be- 
 tween those bodies, the presentation to all such livings as 
 are situated south of the Trent belong to Oxford, and 
 those situated to the north of that river belong to Cam- 
 bridge.^ 
 
 By the same statute the trustees of Roman Catholics 
 are alike disabled from presenting, which we have already 
 seen they are more fully prevented from doing by succeed- 
 ing statutes ; and not only would presentations made by 
 them be void, but by presenting without giving notice to 
 the Vice-Chancellor of the University to whom the pre- 
 sentation shall belong, within three months after the avoid- 
 ance, they become Hable to a penalty of five hundred 
 pounds. 
 
 Where any right of presentation to any ecclesiastical 
 benefice shall belong to any oflice in the gift or appoint- 
 ment of the crown, which office shall be held by a Roman 
 Catholic, the right of presentation shall devolve upon and 
 be exercised by the Archbishop of Canterbury for the time 
 being.'' 
 
 No Roman Catholic is allowed, directly or indirectly, to 
 
 advise the crown, or the regent, or the lord lieutenant, or 
 
 lord deputy, or other chief governor of Ireland, touching 
 
 or concerning any appointment to, or disposal of any 
 
 office or preferment in the Church of England or Ireland, 
 
 or in the Church of Scotland ; and any person so offisnd- 
 
 ing is guilty of a high misdemeanor, and disabled from 
 
 ever holding any office, civil or military, under the crown.' 
 
 Restrictions as Roman Catholics are further restrained in the exercise 
 
 to tlie exercise of their own religion, and in several matters appertaining 
 
 of their own thereto, whicli might interfere with, and directly or indi- 
 
 religion. rectly be injurious to, the Church of England. For this 
 
 reason they are restricted from making open show and 
 
 parade of their religion, and from assuming openly for 
 
 their ecclesiastical ofiices, such titles and dignities as might 
 
 seem to place their religion in a j)Osition of rivalry to the 
 
 Established Church. Thus the stat. 10 Geo. IV. c. 7, 
 
 after reciting that the right and title of archbishops to their 
 
 respective provinces, of bishops to their sees, and of deans 
 
 to their deaneries, as well in England as in Ireland, have 
 
 been settled and established by law, enacts, that if any 
 
 person, other than the person thereto authorised by law, 
 
 t 1 Will.& I\Iary, sess. 1, c. 26; Cruise's Dig. tit. Advowson, and see ante. 
 »• Ibid. 8, 24. • Ibid.
 
 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 739 
 
 shall assume, or use, the name, style, or title of archhishop 
 of any provnice, bishop of any bishopric, or dean of anv 
 deanery m EnnUmd or Ireland, ho shall for every sucli 
 offence forfeit and pay the sum of one hundred pounds. 
 
 If any person, holdinjr any judicial or civil corporuU: 
 office, shall be present at any place or public meeting for 
 religious worship in England or in Ireland other thun that 
 of the united Church of England and Ireland; or in Scot- 
 land, other than that of the Chnrch of .Scotland ; in the 
 robe, gown or other peculiar habit of his office, or attend 
 with the ensign or insignia, or any j)art thereof, of or be- 
 longing to such his office, such person shall, upon con- 
 viction, forfeit such office, and pay for everv such olicnce 
 the sum of one hundred pounds.J 
 
 And if any Roman Catholic ecclesiastic, or any member 
 of any of their orders, communities, or societies, shall ex- 
 ercise any of the rites or ceremonies of the Roman Ca- 
 tholic religion, or wear the habits of his order, save within 
 the usual places of worship of the Roman Catholic religion, 
 or in private houses, such ecclesiastic or other person 
 shall, upon conviction, forfeit for every such otfencc the 
 sum of fifty pounds.'- 
 
 Again, their religious orders, whose especial business and l heir religiotu 
 duty it is to make proselytes to their own form ol" reliirion, "f^*"- 
 are suppressed, or only allowed to reside here under certain 
 restrictions. The 28th section of the same statute enacts, 
 that every Jesuit, and every member of any other religious 
 order of the Church of Rome, bound by monastic vows, 
 being within the united kingdom, shall, within six months 
 after the commencement of the act, deliver to the clerk of 
 the peace, or his deputy for the county wherein he resides, 
 a statement of which the form is given, and which con- 
 tains the date of the time of the registry, the nauu' and 
 age of the party, his place of birth, the order, <SlC. to which 
 he belongs, the name and usual place of residence of the 
 next immediate superior of the order, and the usual |)lace 
 of his residence. This statement is to be registered by the 
 clerk of the peace, or his deputy, and a copy of it is to Ik* 
 forthwith transmitted by him to the chief secretarv of the 
 lord lieutenant, or other chief governor of Ireland, if the 
 party resides in Ireland ; or if in (ireat Britain, to one of 
 the principal secretaries of state. And if any such person 
 shall omit so to do, he shall forfeit to the crown for every 
 calendar month, during which he shall remain m the 
 united kingdom, the sum of fifty pounds.' 
 
 J 10 Geo. 4, c. 7, s. 25. " Sect. 26. ' Sect. 28. 
 
 3b2
 
 740 
 
 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 Licenses to 
 reside may be 
 granted to them. 
 
 Penally on 
 admitting to 
 their order. 
 
 If any Jesuit, or member of such religious order as be- 
 fore mentioned, shall come into this realm, he shall be 
 deemed guilty of a misdemeanor, and being convicted 
 thereof, shall be banished from the united kingdom for the 
 term of his natural life.'" 
 
 But every natural born subject, being at the time of 
 passing of the act a Jesuit, or a member of such religi- 
 ous order as aforesaid, and being at such time out of the 
 realm, may return here ; provided that upon his return, or 
 within six calendar months after so returning, he delivers 
 such statement as before mentioned to the clerk of the 
 peace of the place or county where he resides, or to liis 
 deputy, for the purpose of being so registered, and trans- 
 mitted as before mentioned ; and in case of his neglect or 
 refusal so to do, he shall forfeit for every calendar month, 
 while he remains in the kingdom without having delivered 
 such notice, the sum of fifty pounds." 
 
 The principal secretaries of state may, nevertheless, 
 grant licenses to Jesuits, and such persons as before men- 
 tioned, to come into the kingdom for any such space of time 
 as they may think proper, not exceeding six calendar 
 months, and they may also revoke such licenses at any 
 time they may think proper ; and any person whose terra 
 of license has expired, or whose license has been revoked, 
 and not departing within twenty days, is deemed guilty of 
 a misdemeanor, and being convicted thereof, may be 
 banished the kingdom for the term of his natural lite. 
 
 An account of all such licenses as have been granted 
 during the twelve months next preceding is to be annually 
 laid before parliament. 
 
 If any Jesuit, or member of a religious order, should 
 admit any person to become a regular ecclesiastic, or 
 member of a religious order, or should aid and consent 
 thereto, or should administer or cause to be administered 
 any oath, vow, &c., intended to bind the person taking the 
 same, to the rules of any such religious order, he is to be 
 deemed guilty of a misdemeanor ; and in Scotland is to be 
 pimished by fnie and inij)risonnicnt. And any jierson so 
 admitted, or becoming a Jesuit, or member of such religi- 
 ous order as aforesaid, shall be deemed guihy of a misde- 
 meanor, and banished the kingdom for the term of his 
 natiu'al lifc.'^ 
 
 And if any person thus ordered to be banished shall not 
 depart the kingdom within thirty days after the pronounc- 
 ing such order, it shall be lawful for her majesty to order 
 
 "> Sect. 29. 
 
 n Sect. 30. 
 
 " Sects. 33, 34.
 
 OF DISSENTERS, AND Till: LAWS AFPECTINO TMEM. 741 
 
 such person to be conveyed to such place, as with the ad- 
 vice of her privy council she shall direct. And any 
 ofiender so sentenced, and ordt-rcd to he banished as aOjre- 
 said, who shall alter thu end uf three calendar months, 
 from the time such order shall have been j)ronounced, be 
 at large in any part of the united kingdom without some 
 lawful cause, on bein<i- thereof lawfully convictrd, shall be 
 transported to such place as her majesty shall appoint for 
 the term of his natural life.'' 
 
 Nothing in the act extends in any maimer to aftect any Femile«««- 
 religious society of females, nor in any manner to aticct «p«eJ. 
 the statute 5 Geo. IV. c. 25, which |)ro\ ides forth.; burial of 
 persons dissenting from the Established Church in Ireland, 
 and which has been before mentioned under the subject of 
 burials. 
 
 All penalties imposed by the act are to be recovered as 
 a debt due to the crown, by inlbrmation, to be Hied by the 
 attorney-general for England or Ireland, as the case'may 
 be, in the Exchequer Courts of England or Ireland, or in 
 the name of the advocate-general in the Court of Exche- 
 quer in Scotland.'' 
 
 In speaking of Protestant dissenters from the Church ProtMnni dU- 
 of England, we follow the same course as in speaking of *«°i"*- 
 Roman Catholics ; and avoid altogether the entering into 
 those civil disabilities, to which, in former times, they 
 have been subjected, but which now no longer exist. 
 And, at the present day, it may be stated generally that, 
 in their civil rights and caj)acities, dissenters from the 
 established religion are upon precisely the same footing 
 as all other subjects of the realm. 
 
 It has been frequently declared in the senate, and from 
 the judgment seat, that Christianity is part and parcel of 
 the law of the land.' T3ut this proj)osition has no refer- 
 ence to any individual creed, nor does it embrace any 
 particular system of worship to the exclusion of all others. 
 The Christianity here re})rcsented as interwoven with the 
 constitution is the comprehensive scheme of moral disci- 
 pline and improvement, enforced by the Uliefof an ac- 
 countability hereafter, for the promulgation and support 
 of which the state exerts its vigilance and pledges its 
 authority.^ 
 
 For several centuries after the Christian religion had Originofi 
 been established in Great Britain, no division among its '•"••"""• 
 followers into separate sects existed ; and the law, therc- 
 
 P Sects. 35, 36. i Seel. 38. 
 
 r R. V. Taylor, 3 Keb. 607 ; K, v, Wochtflii, 2 Stnn. 834. 
 
 « Steer's Parish Law, 174. 
 
 MC*
 
 742 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 fore, knew nothing of different denominations ; but when 
 a spirit of inquiry led to a conviction that the dogmas and 
 practices of Popery were not warranted by the sacred 
 volume, from whence they were professedly drawn, and 
 the eye of patriotism saw they were equally inimical to 
 civil liberty, a new system was formed, to which the 
 patronage of the state was transferred ; and the faith 
 which had so long predominated was abandoned and pro- 
 scribed. It was then that the statute-book began to teem 
 with penal enactments and civil disabilities, in restraint of 
 the liberty of conscience ; some of them, doubtless, expe- 
 dient for the safety of the government, and the triumph 
 of the reformed Church ; perhaps, also, provoked by the 
 machinations of those against whom they were directed : 
 but others, originating in an overweening self-confidence, 
 which, having asserted the right of private judgment for 
 itself, denied it to others, because, as it was practically 
 alleged, ail others must come to the same conclusions, or, 
 at least, ought to do so ; and, therefore, it was either un- 
 necessary or dangerous to allow them the exercise of this 
 privilege. The futility of attempts to force the consciences 
 of men, and the vindication of the law of the land from 
 this imputation, in contradistinction to the statute-law, 
 cannot be more eloquently expressed than by Lord Mans- 
 field, when delivering his judgment in the House of Lords, 
 upon the question, whether a person elected to a corporate 
 office might plead, in excuse of the fine for refusing to 
 serve, that he was a dissenter, and could not conscien- 
 tiously take the statement as required by the statute.' 
 General manner ^"^' ^^^'^ judgment of Lord Mansfield, which is above 
 in wiiicii uun- alluded to, seems to be the standard to which, in subse- 
 conforniity is quent tiujcs, all lawyers have appealed, as showing the 
 laws! ^ ^ °'"^ true, legal, and, at the same time, the enlightened principles 
 In civil matters, ujjou wliicl) disscutcrs arc to be treated. 
 
 " Conscience," he says, " is not controllable by human 
 laws; nor amenable to human tribunals. Persecution, or 
 attempts to force conscience, will never jiroduce convic- 
 tion ; and arc only calculated to make hyjjocrites or mar- 
 tyrs. My lords, there never was a single instance, from 
 the Saxon times down to our own, in which a man was 
 ever piniished for erroneous opinions, concerning rites, or 
 modes of worship, but upon some positive law. The 
 coiun)on law of lingland, which is only common reason or 
 usage, knows of no prosecution for mere opinions. For 
 
 ' See Appendix to Furneaux's Letters to Mr. Justice Blackstone, second edi- 
 tion. Steer s Parisii Law, ]74. I'lio case alluded to is Allen Evans v. Cham- 
 btrUiin nf London, in 1762. 6 Bro. P. C. 181.
 
 OF DISSENTERS, AND THE LAWS AFFECTINO TIIEM. 713 
 
 atheism, blas|)hemy, iind reviling the Christian ic-n<„'i(»n, 
 there have been instances of persons prosecuted and 
 punished upon the conunon Uiu ; but bure non-cont'onnily 
 is no sin by the common law: and all positive hiws, in- 
 flicting any pains or penalties for non-conformity to the 
 established rites and modes, are rc|)e;dc(l by the act of 
 toleration ; and dissenters are thereby exempted from all 
 ecclesiastical censures. What bloodshed and confusion 
 have been occasioned, from the reign of Henry IV., when 
 the first penal statutes were enacted, down to tlic revolu- 
 tion in this kingdom, by laws made to force conscience. 
 There is nothing certainly more unreasonabh;, more incon- 
 sistent with the rights ot human nature, more contrary to 
 the spirit and precepts of the Christian religion, more 
 iniquitous and unjust, more impolitic, than persecution. 
 It is against natural religion, revealed religion, and sound 
 policy. Sad experience, and a large mind, taught that 
 great man, the president De Thou, this doctrine ; let any 
 man read the many admirable things which, thouLrh a 
 Papist, he hath dared to advance uj)on the subject, in the 
 dedication of his history to Henry IV. of France (which I 
 never read without rapture) ; and he will be fully con- 
 vinced, not only how cruel, but how impolitic it is to jier- 
 secute for religious opinions. As a subject t)l (Jreat 
 Britain, I should not have been sorry if France had con- 
 tinued to cherish the Jesuits, ainl to persecute the Hugue- 
 nots. There was no occasion to revoke the edict of Nant/ ; 
 the Jesuits needed only to have advised a plan similar to 
 what is contended for in the present case ; make a law to 
 render them incapable of office ; nuike another to pmiish 
 them for not serving. If they accept, punish them ; il 
 they refuse, punish thom ; if they say yes, punish ihem ; 
 if they say no, punish them. My lords, this is a most 
 exquisite dilemma, from which there is no escaping ; it is 
 a trap a man cannot get out of; it is as bad persecution 
 as that of Procrustes : if they are too short, stretch them ; 
 if they are too long, lop them."" 
 
 To the principles contained in this judgment may be 
 added the following opinion of jNIr. Justice Blackstone. 
 The sin of schism, he says, as such, is by no moans the 
 object of temporal coercion and punishment. Il, through 
 weakness of intellect, throuiih misdirected pietv, through 
 perverseness and acerbity of temper, or (which is often 
 the case) through a prospect of secular advantnirc m 
 herding with a party, men quarrel with the ecclesiastical 
 
 " See this judgment more fully, 6 Hro. P. C. IRl. And al.o 2 Burn'. E. L. 
 217.
 
 744 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 establishment, the civil magistrate has nothing to do with 
 it ; unless their tenets and practice are such as threaten 
 ruin or disturbance to the state. He is bound, indeed, to 
 protect the established Church : and, if this can be better 
 efiected, by admitting none but its genuine members to 
 offices of trust and emolument, he is certainly at liberty 
 so to do : the disposal of offices being matter of favour 
 and discretion. But this point being once secured, all 
 persecution for diversity of opinions, however ridiculous 
 or absurd they may be, is contrary to every principle of 
 sound policy, and civil freedom. The names and subordi- 
 nation of the clergy, the posture of devotion, the materials 
 and colour of the minister's garment, the joining in a 
 known or an unknown form of prayer, and other matters 
 of the same kind, must be left to the option of every man's 
 ])rivate judgment.'' 
 
 The admission of none but genuine members of the 
 Church of England to offices of trust and emolument, 
 which, in the above passage, is spoken of with a rather 
 doubtful approbation, by Mr. Justice Blackstone, and 
 which was the occasion of the above judgment or expressed 
 opinion of Lord Mansfield, has, since the time of those 
 lawyers, undergone a complete alteration : and such a 
 mode, if ever it could have been effectual to protect the 
 established religion, is abolished by the eiiect of the 
 statute 5 Geo. IV, c. 17. 
 In ecclesiastical And not only arc Protestant dissenters exempt from 
 matters. ji,^y disability, in matters of a civil nature, but also in 
 
 other matters, which are more peculiarly of ecclesiastical 
 cognisance, they are placed under no other restrictions, 
 than such as are imposed on members of the Established 
 Church. 
 
 Thus it is, as has been already shown, in the important 
 subject of baptisms, of marriages, and t)f biuials ; i'or 
 those who are ba])tised l^y dissenteis, so long as certain 
 forms are observed, are held to be validly and sufficiently 
 l)a])tipcd,and to be entitled to all the ])rivil(\i;es of baptised 
 persons. So marriages between dissenters may be so- 
 lemnised without the intervention of a clergynum, or any 
 resort to a church or cha])el of the Established Church. 
 And all Christians, without distiiu-lion, so long only as 
 they have been suilicieutly l)aj)tised, are entitled to bmial 
 in the churchyard of their parish church; and even to 
 have the funeral service performed by a clergyman of 
 that Church of loiigland, from the doctrines of which they 
 liave dissented while livinu:.^ 
 
 " 4 i-!lack. Comm. 52. y See Kemp v. Wickes, and MaHin v. Escoti, ante,
 
 OF DISSENTEIJS, AND TMh l.vv, > Al riXJllM. TI!i:V. 74'> 
 
 And, in fact, the principle u|)on wliicli l^rotchtunt tils- llMjIawtpe- 
 senters arc now treatcJ, as to all civil matters, by (»ur • '• 
 
 laws, can no longer be i)roi)erly termed t(»leration. I-.>r u.m«..»^... ' * 
 with so niucli favour are tliey re;^arded, that where any 
 sect of dissenters have voluntarily, and by their own jiecu'- 
 liar opinions and regulations, |mt themselves out of the 
 ordinary protection of the law, th(> law has hern relaxed 
 and altered for their especial favour and protection, and 
 to meet their ])articular case. Thus we d<'clare, by <iur 
 39th article, that the Christian religion does not prohibit 
 but that a man may swear when the magistrate re(piires; 
 and, accordingly, uj)on many diti'erent occasions oaths arc Scroplwio 
 prescribed and required to be taken by our law ; nor "^'"'^ **''"• 
 would any member of the Church of England be excused, 
 or have any favour shown to him, though he should ex- 
 press his conscientious scruples to take an oalh, upon any 
 of such occasions. But, with respect to (Quakers and Mo- 
 ravians, who express the same scru|)lcs to take an oath, 
 they have been relieved, by diflerent statutes, from the 
 necessity, in particular cases ; and a simj)Ie atHrmation, 
 made by them, has been allowetl to hii\e (he same eU'eet. 
 And now, by a recent statute, it lias been declared that 
 every person of the persuasion of the people called (jmikers, 
 and every jNIoravian, be permitted to uuike his or her 
 solemn atlirmation or declaration, insteail of taking an 
 oath, in all places and for all j)urposes whatsoever where 
 an oath is or shall be rerpiired, either by tlie connnon law, 
 or by an act of parliament already made, or hereafter to 
 be made; which allirmation, or declaration, shall bi- of 
 the same force and eflect, as if he or she had taken an 
 oath in the usual form. But a i)rescribed form of alHrma- 
 tion is required, and parties afhrming falsely are guilty of 
 perjury." 
 
 And by another statute, passed in the same year as 
 that last "mentioned, the san)e favour and iiidulgenco is 
 extended to a class of people called Se|)aralisls.' 
 
 By various acts of ])arliam(Mit, t^iakers are e\em|»te«l Kirmpiioofro« 
 from othces opposed to then- religious ^.ciupie.s: and it ^^^^ 
 Protestant dissenters are appointed to any i)an»chial or 
 ward office, who scruple to take on themselves such ofhees, 
 in regard to the oaths, or other matter or thing re(piir«-d 
 by la'w to be taken or done, res))ecling su«-h ollice, they 
 are permitted to execute the same by a suflicicnt dej)utv, 
 to be provided by them, who will comply with the laws m 
 that behalf; such deputy being allowed and api>rove»i ni 
 
 ^ 3 ^ 4 \Vill. 4, c. 49, s. I. ^ 3 & 4 Will. 4, c. 82.
 
 746 
 
 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 Objections to 
 pay tithes. 
 Quakers. 
 
 the same manner as the officers themselves should, by law, 
 have been allowed and approved,^ or, as it would seem from 
 a late decision, they might refuse either to accept the office 
 or to appoint a deputy.'^ 
 
 But \vhile, on tlie one hand, they may refuse to accept 
 and to take upon themselves the burden of these offices, there 
 is nothing, on the other hand, to prevent or restrain them 
 from exercising such offices, if they are properly chosen 
 for them ; so that, as the law now stands, it appears that 
 they have the option of refusing or accepting the office, 
 according, it may be, as any advantage therefrom may ap- 
 pear to be derivable to themselves, or to their sect, while 
 members of the Established Church can neither exercise 
 such option for themselves, nor prevent the exercise of it 
 by dissenters. 
 
 Among other conscientious objections to obeying the laws 
 of their country, which are usually felt by Quakers, is that 
 of objecting to permit the tithe-owner to receive his tithes ; 
 or rather, to put the case more fairly, it is one of the 
 principles of this sect to endeavour to appropriate to them- 
 selves, out of the produce of the lands cultivated by them, 
 a greater proportion by one tenth than that to which they 
 are legally or morally entitled. Such a scruple required a 
 strong interposition of the law, and it has therefore been 
 enacted by several statutes,^ that any Quaker, objecting 
 to pay tithes, rates, &:c. in amount under £50, may, on 
 complaint of any person entitled to receive or collect such 
 tithes. Sec, be summoned before two justices, who are to 
 ascertain what is due, and, by order under hands and seal, 
 to direct payment to be enforced by distress and sale. 
 And, by the statute 5 & 6 Will. IV. c. 74, it is enacted, 
 that no suit against Quakers shall be instituted in any 
 courts having cognizance of such matters, for any tithes, 
 compositions, or ecclesiastical demands whatsoever, of or 
 under the value of £50, but that all complaints touching 
 the same shall be decided under the provisions of the 
 above mentioned statutes ; and these })rovisions have since 
 been by the statute 4 & 5 Vict. c. 36, extended to 
 ecclesiastical courts ; and the jurisdiction of those courts 
 also, ill all matters relating to tithes, &c,, of or under the 
 amount before ntentioned, has been taken away. But the 
 mode of recovering tlie tithes or rent charge thus declared 
 to bo duo from (Quakers has been more particularly spoken 
 of under the subject of tithes.' 
 
 ^ 1 Will. & M.. sess. I.e. 18, s. 7. 
 
 » Sec Adeii v. Theobald, ante, Book I. Chap. VIII. Sect. 2. 
 
 b 7& 8 Will. 3. c. 34; 1 Geo. I.e. 6; 27 Geo. 2, c. 137; 53 Geo. 3, c. 127. 
 
 <= Ante, Book II. Chap. II. Sect. 10.
 
 OF DISSENTERS, AND THE LAWS AFFECTINr; THEM. 747 
 
 The laws respecting the religious worshin of disKenters 
 have also undergone considerable altei-atutn, with the 
 changing spirit of the times, llt-re, too, it will be un- 
 necessary to speak of those laws, which no longer exist. I., ,; 
 The laws respecting the meeting houses, and ministern of '' •» 
 Protestant dissenters, at the present day, arc as follows. *""'"F- 
 
 No congregation or assembly for the religious worship of 
 Protestants, at which are present more than twenty jiersuns, 
 in addition to the family and servants uf the person on 
 whose premises they assemble, or of Quakers, not more Certified 
 than four persons beside the family, &c., is permitted ; if moeiiog booMt. 
 not duly certified under some act or acts (under which 
 act or acts tlie Quakers must still certify), unless the jilace 
 of meeting be certified to the bishop, to the archdeacon, 
 or to the justices of the peace, at the general or quarter 
 sessions. And all such places shall be registered in the 
 Bishop's or Archdeacon's Court respectively, and recorded 
 at the general quarter sessions, by the registrar, or clerk 
 of the peace ; and the bishop, or registrar, or clerk of the 
 peace, must give a certificate thereof to any person demand- 
 ing the same, for which 2s. 6d. only is the tt;e.*' 
 
 Any Protestant dissenter may certify a meeting house, 
 under these acts.*^ Theduty of registering is j)urely minis- 
 terial, and a mandamus issues against the person on whom 
 it devolves, to compel performance.' But no assenibly for 
 religious worship, requiring a certificate, may be held in 
 any place with the door fastened, so as to prevent any 
 persons entering." 
 
 All persons teaching, preaching, or ofticiating, in any i»i .m-.. 
 congregation, or assembly, for the religious worshii) ol »«.4cU.i. 
 Protestants, (that is dissenters, and not ministers of the 
 Church of England,'') to hose place of worship is dnhj rerti- lawufied 
 fed accordhujto law, are now as fidly exempted, without pl»ce». 
 precedent qualification, unless they have been legally re- 
 quired to qualify, from the penalties of any acts rclntinp 
 to rehgious worship, as those who take the oaths mentioiuHl 
 in the'^roleration Act, or any other act amendin.j; tliat art. 
 Provided, that if any such person, not havnig taken tlu: 
 oaths to government, and subscribed the declaration against 
 transubstantiation, which latter, however, he is now no 
 longer required to do,' shall, when retpiired by any ••no 
 justice of the peace, bv writing under his hand, or signed 
 by him, continue to teach, or preach, in any such con- 
 
 <! 52 Geo. 3, c. 155, s. 2. 
 
 e Green and others v. Pope, 1 Lord Rayin. 126. 
 
 f R.Y. Justices of Derhvshire. \ B\.i.'Rep,60fi. 
 
 g 62 Geo. 3, c. 155, s. 11. ^ Trebecy.KcHh.i Aik. 498. • 10 Geo. 4. c. 7.
 
 748 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 gregation or assembly, without taking the said oaths, he 
 shall forfeit, for each offence, a sum not exceeding ten 
 pounds, nor less than ten shillings, at the discretion of 
 the convicting justice.'' But no person is required to go 
 farther than five miles from his place of residence, at the 
 time of such requisition, for the purpose of qualifying.^ 
 Teachers, &c. Any of his majesty's Protestant subjects may require 
 
 qualifying. ^j^^ justice to administer such oaths, on producing a printed 
 
 or written copy, which the justice is to attest, and to 
 deliver to the clerk of the peace.'" And every justice, 
 before whom any person shall make such oaths and de- 
 claration, shall forthwith give him a certificate thereof in 
 a certain prescribed form," which certificate shall be con- 
 clusive evidence, that the party, therein named, has taken, 
 and subscribed, the oaths and declaration by the act 
 required." 
 Preaching to an Preachino; to an assembly consistino- of more than the 
 sembTv" ^^' Itiwful number,'' in any place, w ithout the consent of the oc- 
 cupier thereof, or in any place with the door locked, bolted, 
 barred, or otherwise fastened, so as to prevent any person 
 entering therein during the time of meeting, on conviction, 
 by the oath of one or more witnesses, is punishable by 
 forfeiture, for each offence of the first class, of a sum not 
 exceeding thirty pounds, nor less than forty shillings, and 
 of the second class, of a sum not exceeding twenty pounds, 
 nor less than forty shillings, at the discretion of two or 
 more convicting justices.'' 
 A teacher not If ^ dissenting minister does not emi)loy himself wholly 
 
 wholly em- j solclv in the duties of a teacher, oi' i^rcachcr, but fol- 
 
 ployed in the *^ i i i i i i 
 
 iluiies of leach- lows somc trade, tlie later statutes do not extend to alter 
 ing must take the Toleration Act"^ in exemj)ting him from civil c»flices. He 
 must therefore still qualify under that act, in order to be 
 exempt. By that act it is declared that every teacher or 
 preacher in holy orders, or pretended holy orders, being 
 teacher or ])reachcr of a separate congregation,'' who takes 
 the oaths to government, at the general or quarter sessions 
 for the county, or division, wliere he lives, and also sub- 
 scribes the Tliiity-niiic Articles, (!\cept the thirty-fourth, 
 thirty- fifth, and thiity-sixtii, and these words of the twen- 
 tieth artich;, vi/. '' the Chuich hath power to decree rites or 
 ceremonies, and authority in controversies of faith ;" or in 
 case he scruj)les the baptising of infants, except also part 
 of the t\venty-scv(;nth article, touching infant baptism ; is 
 
 '' 52 Geo. 3, c. 155. s. 5. ' Ibid. s. (j. 
 
 •n Sect. 7. » See Appendix. " See 2 Burn's E. L. 192. 
 
 P See ante. 'i 52 Geo. 3, c. 155. "■ i will. & M. st. 1, c. 18. 
 
 ' Keg. \. Justicet of Gloucestenhire, 15 East, 576. 
 
 oaths at ses- 
 sions.
 
 OF DISSENTERS, AND THE LAWS AFPECTINC TnE>f. 7-11) 
 
 exempted from being chosen or appointed to the ollice of 
 churchwarden, overseer of the poor, or any other parochial 
 or ward office, or other oflice in any lunidrcd, citv, town, 
 parish, or division, whether the same were in bein;:, at the 
 time of the passing of ti)is (enactment, or has been subse- 
 quently created.'' 
 
 Any person, pretending to holy orders, is entitled to ^^ ' 
 require of the sessions to have the oaths ministered to him, ') 
 although he uuiy not also be the teacher or preacher <if a i. 
 separate congregation of Protestant dissenters ; and, when; 
 the sessions had refused to allow a jierson to take the 
 oaths, on the ground that he had not the eonj<jint rpialiti- 
 cation, the Court of (Queen's Bench granted a mandiimus ^^'o wmjoo* 
 to them to administer to him the oaths, or to enai)le them 
 to make a special return of the grounds of their refusal/ 
 
 Neither have the sessions any authority to require of a 
 person claiming to take the oaths, and to make and sidj- 
 scribe the declarations, &c. therein mentioned, as a teacher 
 of a separate congregation of Protestant dissenters, an<l to 
 verify the same claim upon oath, that he should |iroduce a 
 certificate from two of his congregation, authenticating 
 such his appointment, in couq)liance with a general rule 
 before made at the sessions for that |)urpose.' 
 
 And every such person, being a preacher, or teacher, of 
 any congregation, and scru})linu,- to subscribe his assent to 
 any of the articles albresaid, who makes and subscribes the 
 declaration of Protestant belief, is entitled to the same 
 exemptions from civil service, and from serving in the 
 militia: and the justices, at the general sessions for the 
 county or place where he lives, are required to administer 
 the declaration to such persons ottering to make and sub- 
 scribe the same, and thereof to keep a register ; and for 
 the entry thereof, with the oaths and other declarations 
 aforesaid, a fee of sixpence only is due; and an additional 
 fee of sixpence for any certificate of the same.' 
 
 Exemption from serving, or providing a 8ul)stitute, m 
 the militia, is also granted to every teacher of any separate 
 cono-reo-ation, who has been licensed twelve months at the 
 leasX b'cfore the yearly meeting of the lieutenancy ot the 
 county in October, under the Militia Act." 
 
 But if a dissentino- minister is not enga-ed in trade, he M'""'"*^'"; 
 is, by the Stat. 52 Geo. III. c. 165, exenq.te.l wthout the Sl;;?^^-;^- 
 necessity of qualifying as last mentioned ; for it is thereby ,„^, 
 
 q Sect 11. See.Uley v. Thcolmhl, ante ; and, query, wl.tihcr he wooM not, 
 under any circumstances, be held exempt. 
 
 '15East,577. ' \Yr^^^^ ,0 
 
 '19 Geo. 3, c. 44. " 4J Oeo. 3, c. 10.
 
 750 
 
 Protection of 
 the religious 
 worship of dis- 
 senters. 
 
 OF DISSENTERS, AND THE LAWS AFFECTING THEM. 
 
 enacted, that every person who teaches, or preaches, in 
 any congreoation or assembly for religious worship, whose 
 place of worship is duly certified, according to law, and 
 who employs himself solely in the duties of a teacher, or 
 preacher, and follows no trade, or other employment, for 
 his liveHhood, except that of a schoolmaster, and who pro- 
 duces a certificate of some justice of the peace of his having 
 taken the oaths to government, &:c., shall be exempt from 
 the civil services, and oflices specified in the Toleration 
 Act, and from serving in the militia, or local militia, of any 
 place, in any part of the United Kingdom. The produc- 
 tion of a false certificate, for the purpose of claiming ex- 
 emption from civil or military duties, subjects the party 
 to a penalty, for each offence, of fifty pounds, recoverable 
 by any person who will sue for the same. But such ac- 
 tions must be brought within three months after the offence. 
 The persons described in this section are also exempted 
 from serving on juries." 
 
 If any person shall, willingly and of purpose, mali- 
 ciously or contemptuously, come into any cathedral or 
 parish church, chapel, or other congregation ]iermitted by 
 the Toleration Act, and disquiet or disturb the same, or 
 misuse any preacher or teacher, he shall, upon proof 
 thereof, before any justice of the peace, by two witnesses, 
 find two sureties, to' be bound by recognisance in the penal 
 sum of fifty poimds, and, in default of such sureties, shall 
 be committed to prison till the next sessions ; and, upon 
 conviction at the sessions, shall suffer the penalty of twenty 
 pounds to the king.^ 
 
 A person who had been committed under this clause of 
 the Toleration Act, by an agreement between himself, the 
 prosecutor, and the committing magistrates, was dis- 
 charged before the time of trial, and Ijrought his action 
 against the magistrate for fiilsc im])risonment ; upon which 
 occasion l.ord Ellenborough said, " The Toleration Act, 
 in order to protect religious congregations, in the exercise 
 of their worship, has annexed a penalty of twenty pounds 
 on ])ersons guilty of disturbing them ; and, in order to 
 secin-c the public in the interval between the commission 
 of th(' ollcnce, and the trial of the ofiender, it has re- 
 quired the magistrate, before whom the conii)laint is 
 lodged, to take security from the offender, or, in default of 
 giving such security, to commit him to the next sessions. 
 Thfii, instciid of ubi(Hng tlie time; of his delivery, when he 
 shoulfl 1)0 discharged, in due course, after trial, in case he 
 established his innocence, he stipulates with the prose- 
 
 ' See Knowlet v. Knowle$, Willes, 463. » Toleration Act, sect. 10.
 
 OF DISSENTERS, AND THE LAWS AFFECTING TIIEM. 751 
 
 cutor, and the connnitlino- ina^istrateH, that the prosecu- 
 tion shall be dropped, and that he shall he discharged for 
 want of prosecution. Such an agreement has a tendency 
 to produce impunity for the commission of the offence, 
 which the legislature meant to pnnent ; it stoj)s tiie means 
 of the crown to recover the penalty of twenty pound>, in 
 case the plaintilf has been prosecuted and found guilty/ 
 
 The above provision of the Toleration Act applies equally 
 to all dissenters, but the enactment next tulluwini;, and 
 which, to a certain extent, supersedes the former, is n<tt 
 applicable to the meetings of Quakers. 
 
 Any person charged before a justice, by two witneHsen, PrrwotUwfof 
 with wilfully disturbing a meeting, authorised under the protrction. &c., 
 52 Geo. III. c. 155, or any other act, or molesting any ^i^^'of y^ei. 
 person officiating thereat, or persons there assenibled, 
 must find two sureties in fifty pounds, in default of w hich 
 he is to be committed till the next succeeding general or 
 quarter sessions, on conviction at which he incins a penalty 
 of forty pounds, to be levied by distress, half to go to the 
 informer, and half to the poor of the parish. If there be 
 no distress, he may be connnitted for not exceeding three 
 months. The penalty must be sued for wiihiu .six months." 
 
 z Edgcomb v. Rood, 5 East, 301. » 52 Geo. 3, c. 155. ss. 12. 15, 17.
 
 ( 752 ) 
 
 BOOK VIII. 
 
 OF OFFENCES AGAINST RELIGION. 
 
 The number of various offences which might ])ossibly be 
 classed under this head would obviously be much greater 
 than those which will be here alluded to. It is intended 
 here to speak of three classes of offences only ; as those 
 which immediately concern the subject of the present 
 work. First, such offences as so openly transgress the 
 precepts of religion, natural or revealed, as, by their bad 
 example and consequences, to transgress the law of so- 
 ciety also, and which are therefore punishable by human 
 institutions ; secondly, such offeiuMis as affect the Esta- 
 blished Church ; and, thirdly, such oifences as may be com- 
 mitted by the clergy of that (church, and having the cha- 
 racter of offences not so much from the act itself as from 
 the person by whom it is connuitted ; and who, in his cha- 
 racter as a ciersiynian, becomes amenable to certain laws 
 in relation to the duties of his oHice. 
 
 Apostasy. Of the first class is apostasy, or a, total renmiciation of 
 
 Christianity by embracing a false religion or no religion at 
 all ; which "odeuce can only take place in such as have once 
 prol'essed tlu; true religion. And ii' any person educated 
 in, or having made profession oi", the (Christian religion, 
 shall, by writing, printing, teaching, or advised speaking, 
 deny the Christian reiigit)n to Ix; true, or the Holy Scriptures 
 to be of divine authority, he shall uj)on the first offence be 
 rendered inca))ablc to hold any oflice or place of trust; 
 and, for ihe second, be rendered incai)abl(! of bringing any 
 action, being guardian, executor, legatee, or purchaser of 
 lands, and shall suHer three years imi)risonuu>nt without 
 bail. To give room however for rejientance, if, within four 
 months after the first conviction, tlu; dcliiKpient will in open 
 court |)ublicly renounce his error, he is discharged for that 
 once from all disabilities."' 
 
 IMasplic.ny. Another oll'ence of this class is blasphemy against the 
 
 Almighty, by denying his being or providence ; or ])y con- 
 
 » 4 nia. Com. 44 j 9 & 10 Will. 3, c. 32.
 
 OF OFFENCES AGAINST UELIGION. 753 
 
 tumelious reproaches of our Saviour Christ. Whitht-r aUo 
 may be referred all profane scoliiii-z; at tiie IIolv Scrijitiirc, 
 or exposing it to contenijit and ridicidi; : and a'll si-dilious 
 words spoken in derogation of tlie Christian religion. Tli.-se 
 are offences punishable at common law by fine and impri- 
 sonment, or other infamous corporal j)Mnishnient, for Chris- 
 tianity is part of the laws of England.'' National and dis- 
 passionate discussion is allowable, and the courts woidd 
 not intermeddle with controverted points, but to write 
 against Christianity in general is a clear offence.' The 
 publication or exhibition of blasphemous books orjtictures 
 IS consequently indictable and puuishabltt at <-()miiion 
 law.'* 
 
 And although the suppression of blasphemy and pro- PuuUiuble *i 
 faneness is provided for by the statute, yet this does not '^"""""n •**• 
 change the nature of that which was previously an offence 
 at common law ; the statute is merely cumulative, and the 
 common law ofl'ence, prosecution, and punishment, remain 
 as before.^ 
 
 Where the blasphemy is contained in any libel, and the Hlitphemoa* 
 offender has been once convicted of the oflence, he may, '•'*'*• 
 by 60 Geo. III. & 1 Geo. IV. c. 8, on a second conviction 
 before any commission of oyer and terminer, or gaol deli- 
 very, or in K. B., be banished from all parts of his majesty's 
 dominions, for such term of years as to the court shall 
 seem proper. If he shall not depart from the united 
 kingdom within thirty days after sentence pronounced, for 
 the purpose of going into banishment, he luay Ije conveyed 
 to such parts out of his majesty's dominion, as his majesty, 
 by the advice of his privy council, may direct. And if at 
 any time after forty days from sentence prt)nounced, an<l 
 before the expiration of the term of banishment, he be 
 found at large without lawful cause in any part of bis ma- 
 jesty's dominions, he may be sentenced to transportation 
 for fourteen years. By the same statute a power is given 
 to the court in case of conviction for a blasphemous libel, 
 to direct the seizure of all copies of the work in the jmsses- 
 sion of the defendant, or of any one as his trustee; if the 
 judgment be arrested or reversed, the copies are to be re- 
 stored free of expense ; if not, they are to be disposed of as 
 the court shall order.* And in addition to the above sta- 
 tutes, any person unlawfully exposing to view in any street, 
 road, highway, or public place, any obscene print, picture, 
 
 «• 4 Bla. Com. 59 ; 1 Hawk. P. C. c. 5. ' R.^.CartUe.2H.k \.\6\. 
 d Ibid. e Ibid. ' 4 Bla. Com. 69,Coleridg8"i ed. d. 
 
 3c
 
 754 OF OFFENCES AGAINST RELIGION. 
 
 or other indecent exhibition, or wilfully exposing the same 
 to view in the window or other part of any shop or other 
 building situate in any such place, is punishable as a rogue 
 and vagabond.^ 
 Sabbath break- Another offence of this class is that of nuisance in an 
 '"°' open profanation of the Lord's day by keeping shop. Par- 
 
 ticular instances of such profanation are by several statutes 
 made punishable before magistrates ; but it would not be 
 possible to enter into them here. The law may be taken 
 generally as laid down by Littledale, J., in his charge to 
 the grand jury of Middlesex in 1837, namely, that Sunday 
 trading, if carried on to any extent which creates a nuisance 
 or obstruction, is indictable at common law ; but that a 
 mere act of selling on the Lord's day is not now more in- 
 dictable than it has been for the last seven hundred 
 years.*" 
 
 As a general rule no person is allowed to work on the 
 Lord's day, but several statutes allow the necessary exercise 
 of certain trades within certain limits. 
 Simony. The ofFence of simony may be also considered as of this 
 
 class, w^hich, so far as it afiects presentations to or resig- 
 nations of benefices, has been already considered in speak- 
 ing of those subjects, but, besides its effect upon the thing 
 dealt with, it is in itself a punishable oflence, as well by 
 reason of the sacredness of the charge which is thus pro- 
 fanely bought and sold, as because it is always attended 
 with perjury in the person presented.' The statute 31 Eliz. 
 c. 6, enacts, that if any patron, for money or any other 
 corrupt consideration or [)romise, directly or indirectly 
 given, shall present, admit, institute, induct, install, or col- 
 late any person to an ecclesiastical benefice or dignity, both 
 the giver and taker shall forfeit two years value of the be- 
 nefice or dignity ; one moiety to the king, and the other to 
 any one who will sue for the same. If persons also cor- 
 ruptly resign or exchange their benefices, both the giver and 
 taker shall in like manner forfeit double the value of the 
 money or other corrupt consideration. And persons who 
 sliall corruptly ordain or license any minister, or procure 
 him to be ordained or licensed, (which is the true idea of 
 simony,) shall incur a like forfeiture of forty pounds ; and 
 the minister hims(,'lf of ten pounds, besides an incapacity 
 to hold any ecclesiastical preferment for seven years after- 
 
 ward 
 
 s. 
 
 k 
 
 ()fler.(.»:>g;,insi Qf tlic Hccoud class of offcnccs, or such as affect the Esta- 
 
 llie Established ' 
 
 K 5 Geo.4,c.83 ; 1 & 2 Vict. c.38. •• Dickenson's Quarter Sess. 387. 
 ' See ante, " Simoniacal Presentations." '' 4 lila. Com. 61.
 
 OF OFFENCES AGAINST PELIGION. 755 
 
 blished Church and form of worship, tlie laws against here- Churrb tad 
 tics, papists, and non-conformists, would formerly have been J*'"'*' •o.^hip. 
 those principally to bo noticed. (Jf tiiese, however, almost 
 all have been repealed, and the few that in a modified shape 
 remain, have been already mentioned in sj)euking of dis- 
 senters. 
 
 Revihng the ordinances of the Established Church is, as 
 Blackstone observes, a crime of a nuich orosser nature than 
 mere non-conformity. But, after alluding to the stututrs 
 which are directed against this oflence, he adds, these penal- 
 ties were framed in the infancy of our present establishment, 
 when the disciples of Rome and Geneva united in inveighing 
 with the utmost bitterness ajrainst the Entilish litunjv; 
 and the terror of these laws (for they seldom if ever were 
 fully executed) proved a principal means under Providence 
 of preserving the purity as well as decency of our national 
 worship.' It would apj)ear therefore unnecessary to allude 
 further to laws which would seem practically to be not in 
 force at the present day ; and probably any such oflences 
 as would be now punishable by them might be referred 
 to the first class of oflences against religion already men- 
 tioned. 
 
 Religious impostors may be here mentioned — whom U.!i;;iott» im- 
 Blackstone describes to be such as falsely j)retend an extra- f**'"'*- 
 ordinary commission from heaven ; or terrify and abuse the 
 people with false denunciations of judgments. And all 
 such would now probably be included under the definition 
 of rogues and vayahonds ; for every person j)retending or 
 professing to tell fortunes, or using any subtle craft, means 
 or device, by palmistry or otherwise, to deceive and impose 
 on any of her majesty's subjects, may be connuitted to the 
 house of correction as a roirueand vagabond by any justice 
 of the peace, there to be kept to hard labour for any time 
 not exceeding three calendar months."' 
 
 Affrays in a church or churchyard may also l)e consi- Brjwiing.i*. 
 dered as offences of this class. These have always been 
 deemed very heinous offences; as being very great in- 
 dignities to the divine iNlajesty, to whose worship and 
 service such places are inuuediately dedicated. And 
 therefore all irreverent behaviour there has been esteemed 
 criminal by the makers of our laws, so that many dis- 
 turbances in these places are visited with i»umshment, 
 which, occurring elsewhere, would not be punishable at 
 all." Thus quarrelling, chiding, or brawling in any church 
 
 » 4 Bla. Com. 50. " 6 Geo. 4, c. 83, ». •». 
 
 » 1 Russ. on Crimes, 297. 
 
 3 c2
 
 756 OF OFFENCES AGAINST RELIGION. 
 
 or churchyard, is an offence for which the offending party 
 may be proceeded against in the ecclesiastical court." 
 But the offence is not created by the statute only; for 
 the general ecclesiastical law protects the sanctity of 
 public worship ; and the ecclesiastical court has a right to 
 interfere to correct or punish any act of disturbance. A 
 party may therefore proceed either upon the statute or 
 upon the ancient law.? And it may be stated generally 
 that any quarrel or disturbance within a church amounts 
 to brawling. A vestry-room which stands on consecrated 
 ground is equally under the jurisdiction of the ecclesiastical 
 court : but it is deemed of inferior sanctity, and an offence 
 of this kind committed there is consequently of a com- 
 paratively slight ecclesiastical character.'! The punish- 
 ment for this offence, except only where it is committed 
 by a clergyman,'" is only that of temporary suspension 
 ab ingressu ecclesicB : and, as in cases of assault, &c., other 
 modes of redress would be open to parties, the proceeding 
 in the ecclesiastical court would appear of little use. 
 
 Disturbing the congregation during the time of divine 
 service would generally be an offence of the kind last 
 mentioned ; but if any party should wilfully, mahciously 
 or of purpose molest the minister during the time of divine 
 service he would be indictable under the stat. 1 M. sess. 2, 
 c. 3. 
 
 It was said by Abbott, C. J., that where it was not clear 
 that a party who had disturbed the congregration by un- 
 lawfully reading a notice had done so with a view of pur- 
 posely molesting the minister, he might have been re- 
 moved from the church, but ought not to have been de- 
 tained in custody in order that he might be taken before 
 a justice.* 
 Arresting It is also an offence to arrest a minister even while 
 
 ciergyman. going to or froui the place of performing divine service; for 
 it is enacted, that if any person shall arrest any clergyman 
 upon any civil process while he shall be performing divine 
 service, or shall, with the knowledge of such person, be 
 going to perform the same, or returning from the perform- 
 ance thereof, every such offender shall be guilty of a mis- 
 demeanor, and being convicted thereof shall suffer such 
 punishment, by fine or imprisonment, or by both, as the 
 court shall award.' 
 
 ° 5 & 6 Edw. 6, c. 4. p Rogers's E. L. 117. 
 
 1 Sir J. Nicholl in Lee v. Matthews, 3 Ilagg. 176. ■" See infra. 
 
 • Williams v. Glenisier, 2 B. & C. 699. « 9 Geo. 4, c. 31, s. 23.
 
 OF OFFENCES AGAINST RELIGION. 757 
 
 The third class of offences, or sucli as may be com- oatactt by 
 mitted by clergymen, have been spoken of in difJercnt jiurls '^'"W®«°- 
 of the present work, especially under the head of Church 
 Discipline; and it would therefore! apj)ear uniiccessarv to 
 recapitulate them here. It may be observetl, however, 
 that the offence of brawling above mentioned is con- 
 sidered more serious when committed by a clergyman 
 than by a layman. And a clergyman may therefore be 
 suspended for this offence for such time as the ordinary 
 shall think fit, and his benefice may be sequestered." 
 What deviations from the prescribed form of public wor- 
 ship would be deemed to be brawling has been already 
 spoken of.'' 
 
 " 1 Hagg. Cons. 181. ' See ante, " Public Worship."
 
 APPENDIX. 
 
 No. 1. 
 
 Forms of Testimoyiials necessary for Candidates fur 
 
 Orders. 
 
 Letters testimonial from his collofrc. Or, in case the cumli- 
 date shall have quitted college, he must also |)n'8ciit li-ltt-rs 
 testimonial for the period elapsed since he (|uittt(l eollcgi-, in 
 the following form, signed by three beneficed clergj-inen, and 
 countersigned by tlie bishop oVtlie diocese in which their bene- 
 fices are respectively situate; if they are not beneficed, in the 
 diocese of the bishop to whom the candidate applies for ordi- 
 nation. 
 
 To the Right Reverend , by divine permission Lord Hislion of 
 
 [^the bishop in ir/iose dioctse the cumci/ couf'imufi the title u 
 
 situate]. Whereas our beloved in Christ, A. 15., bachelor of arta for 
 
 other degree'], of college, in the iiniversitv of , bath di'- 
 
 clared to us his intention of offering himself as n candidate for the sacrc*! 
 office of a deacon, and for that end hath requested of us h-ttem teslimo- 
 nial of his good life and conversation ; we, therefore, whose names are 
 hereunto subscribed, do testify that the said A. B. lias been personally 
 
 known to us for the space of last past ; that we have bad op[M)r- 
 
 tunities of observing his conduct ; that during the whole of that time we 
 verily believe tliat be lived i)iously, soberly, aiul honestly, nor hove wc at 
 anytime heard any thing to the contrary thereof, nor hath he at anv time, 
 as far as we know or believe, held, written or taught any thing contrary 
 to the doctrine or discipline of the I'niti d Clnircb of Kngland and In-hind ; 
 and moreover we believe him in our consciences to be, as to bis moral 
 conduct, a person worthy to be admitted to the sacred order of deacon*. 
 
 In witness whereof wo have hereunto subscribed our names this 
 
 day of in the year of our Lord one thousand eight hundred and 
 
 f. I)., Utvtor of • 
 K. F., Vicnr of — 
 C;. IL. Rector of- 
 
 Form of notice of "si (piis," ami of the eertifieate of the 
 same having been published in the ehureii of the parish where 
 the candidate usually resides, to be presented by the candidate 
 if he shall have quitted college. 
 
 Notice is hereby given, that A. H., bachelor of arts [or other liepree'^, 
 
 of college, Oxford [or " Cambridge"], aiul now resident in llu» 
 
 parish, intends to offer himself a candidate for the holy office of a de.icon 
 at the ensuing ordination of tlie Lord Hishop of , and if any per- 
 son knows any just cause or impediment, for which he ought not lo be
 
 760 APPENDIX. 
 
 admitted into holy orders, he is now to declare the same, or to signify 
 the same forthwith to the Lord Bishop of . 
 
 We do herehy certify that the above notice was publicly read by the 
 
 undersigned C. D., in the parish chui-ch of , in the county of 
 
 , during the time of divine service on Sunday, the day of 
 
 last [o7- " instant"], and no impediment was alleged. 
 
 Witness our hands, this day of • , in the year of our 
 
 Lord one thousand eight hundred and . 
 
 C. D., Officiating Minister. 
 E. F., Churchwarden. 
 
 Certificate from the divinity professor in the university, that 
 the candidate has duly attended his lectures. 
 
 Certificate of the candidate's baptism, from the register book 
 of the parish where he was baptised, duly signed by the offici- 
 ating minister, to show that he has completed his age of 23 
 years. 
 
 No. 2. 
 
 Nomination as a Title for Orders, if Incumbent non- 
 
 reside7it. 
 
 To the Right Reverend , Lord Bishop of . These are 
 
 to certify to your lordship that I, C. D., rector [or " vicar," &c.], of 
 
 and your lordship's diocese of , do hereby nominate A. B., 
 
 bachelor of arts [or other degree^, of college, in the university 
 
 of , to perform the office of curate in my church of afore- 
 said, and do promise to allow him the yearly stipend of pounds, 
 
 to be paid by equal quarterly payments, with the surplice fees, amount- 
 ing on an average to pounds per annum, [t/' tliei/ are intended to 
 
 be allowed,'] and the use of the glebe house, garden, and offices, which he 
 is to occupy [if that be the fact: if not, state the reason, and name where, 
 and at what distance from the church the curate purposes to reside] ; and I 
 do hcrel)y state to your lordship that the said A. B. does not intend to 
 serve as curate any other parisli, nor to officiate in any otlier church or 
 chapel [ifsuch be the fact, othc rwise state the real fact] ; that the net annual 
 value of my said benefice, estimated according to the act of parliament 
 
 1 & 2 Vict. c. 100, ss. 8 and 10, is • pounds, and the population 
 
 thereof, according to the latest returns of population made under the autho- 
 rity of parliament, is ; that there is only one church belonging to 
 
 my said benefice [;7' there he more, state the fact]; and that I was ad- 
 
 niittid to the said benefice on the day of , 18—. And I 
 
 do hereby promise and engage with your lordship, and the said A. B., 
 that I will continue to employ the said A. B. in the office of curate in my 
 said church until he shall be otherwise provided of some ecclesiastical 
 pvofcrment, unless, for any fault by him committed, he shall be lawfully 
 removed from the same ; and I hereby solenmly declare that I do not 
 fraudulently give this certificate to entitle the said A. B. to receive holy 
 orders, but with a real intention to employ him in my said church, ac- 
 cording to what is before expressed. 
 
 Witness juy hand, this day of , in the year of our Lord 
 
 one thousand eight hundred and • 
 
 [Signature and address of] CD.
 
 APPENDIX. 7G1 
 
 Declaration to be written at the foot of the nomination. 
 
 We, the before-named C. D. and A. B., do declare to ll.e said Lord 
 
 bishop of- as follows, namely: — !, the naid C. I)., do declare that 
 
 J bona hdc nitend to pay, and I, the sai.i A. H., do declare thai I boni 
 tide intend to receive, the whole actual stii)cnd mentioned in the forefjoing 
 nomination and statement, without any abatement in rcHpect of rent or 
 consideration for the use of the glebe house, garden and offices thereby 
 agreed to be assigned, and without any other deduction or reservation 
 whatsoever. 
 
 Witness our hands, this day of , in the year of our Lord 
 
 one thousand eight hundred and . 
 
 C C I) 
 [Signatures of] } ^- ^■ 
 
 Nomination as a title for orders, if incumbent is resident. 
 
 IThe same form as the last, so far as " quarterly payments,"' then pri>- 
 ceed as follows:']— Am\ I do hereby state to your lordship, that the said 
 A. B. intends to reside in the said parish, in a house [Jescnbe its sttuutum, 
 
 so as clearly to identfy it] distant from my church miles [f A. li. 
 
 does not intend to reside in the parish, then state at what place he intends 
 to reside, and its distance from the said church] ; that the said A. B. doM 
 not intend to serve as curate any other j)arish, nor to ofliciate in any other 
 church or chapel [f such be the fact, othericise state the real fact) ; and 
 I do hereby promise and engage with your lordship [and su on, in the 
 same form us the lust to the end]. 
 
 Witness my hand, this day of , in the year of our Lord 
 
 one thousand eight hundred and . 
 
 [Sigmtura of] j .^- ^^^ 
 
 No. 3. 
 
 Form of Declaration merging Tithes, under the statute of 
 6 Sf 7 Will. 4, c. 71, when such Merger is deelared by a 
 separate instrument ; issued by the Tithe Commissioners. 
 
 Know all men by these presents, I, , of , in the county of 
 
 , gentleman, [or whatever be the /mrtt/'s jtroper description], being 
 
 lawfully seised of an estate in possession in fee simple [or, "in fee tail," 
 as the case may be], in the tithes, [or "rent-charge, ' if the declaration is 
 not 7»ade till after an agreement for <i rent-charge in commututton of such 
 tithes,] issuing from or arising u])on [or, "charged ujwn," fit U a rent- 
 charge that is to be merged] tlie lands hereinafter described, situate in the 
 
 parish of , in the county of , (that is to say) [here detcrtbc 
 
 the lands fully und accurately], do hereby declare it to be my will and 
 intent that the said tithes [or, "rent-charge," as the case way l-e] »\\al\ 
 henceforth be absolutely merged and extinguished in the freehold and 
 inheritance of the said lands, according to the provision in that iK-half 
 contained in a statute made in the reign of his late majesty King William 
 the Fourth, intituled "An Act for the C'onmiutation of Tithes in England 
 and Wales." 
 
 In testimony whereof i have hereunto subscribed my name and aflixod 
 
 my seal this day of , in the year of our Lord . 
 
 [Signature] (L. S.)
 
 762 APPENDIX. 
 
 Clause merging Tithes, 
 
 Which may be introduced into any agreement for commu- 
 tation, immediately after the recitals stating that a person is 
 seised in possession of an estate in fee simple or fee tail of any 
 tithes. 
 
 And the said hereby declares it to be his will and intent, cer- 
 tified by his signature and seal hereunto annexed, that the said tithes shall 
 henceforth be absolutely merged and extinguished in the freehold and 
 inheritance of the said lands. 
 
 No. 4. 
 
 Stamp Duties upon Collation by any Archbishop or 
 
 Bishop. 
 
 £ s. d. 
 
 To any ecclesiastical benefice, dignity, or promotion in Eng- 
 land, of the yearly value of 10/. or upwards, in the 
 king's books 20 
 
 To any other ecclesiastical benefice, dignity or promotion 
 
 whatsoever in England 1000 
 
 Collation, institution, or admission by any presbytery or other 
 competent authority, to any ecclesiastical benefice in 
 Scotland _ . . _ 2 
 
 Institution granted by any archbishop, bishop, chancellor, or 
 other ordinary, or by any ecclesiastical court, in and to 
 any ecclesiastical benefice, dignity, or promotion in 
 England, 
 
 Where the same shall proceed upon a presentation .... 200 
 
 And where it shall proceed upon the petition of the patron to 
 be himself admitted and instituted, if the benefice, dig- 
 nity, or promotion shall be of the yearly value of 10/. or 
 upwards, in the king's books 30 
 
 Or if the same shall be of any other description 15 
 
 But such petition shall not be liable to any stamp duty. 
 
 No. 5. 
 
 Usual Form of a Certificate of Induction. 
 
 Memorandum, that on the day of , 18 — , I, M. N., 
 
 rector [" vicar," or "curate," as the case iiiai/ be], of in the county 
 
 of and diocese of , by virtue of the within written mandate, 
 
 did induct the witliin named A. B., clerk, into the real and actual posses- 
 sion of the witliin mentioned rectory [or "vicarage"] of , with 
 
 all the rights, members, and appurtenances thereof. Witness my hand. 
 
 The said A. B. was so indiu-ted in tlie presence of us, 
 O. P., Churchwardens, 
 Q. R., [or " Inhabitants," as the case may be.] 
 
 »
 
 APPENDIX. 7C3 
 
 No. 6. 
 
 Questions to be annually transmitted by each Bishop tu 
 every Spiritual Person holdiny any lienefice within hit 
 Diocese or Jurisdiction. 
 
 1st. What is the name of your benefice? 
 
 2nd. In what county ? 
 
 3r(l. Name of incumbent and date of admission? 
 
 4th. Is there a glebe house belonging to your benefice? 
 
 5th. Were you resident in tlie glebe house, or, there lioing no gli-bc 
 house, or none fit for your residence, were you resident in any and what 
 house aj)pointed by the bishop in his license, during the last year, for the 
 term prescribed by law ? 
 
 6th. Being non-resident, were you performing the duties of your parish 
 for the said time? If so, state where you resided, and at what distance 
 from the church or chapel. 
 
 7th. Were you, in the last year, serving any other church or chapel in 
 
 the neighbourhood as incumbent? If so, state the name tlicrcof, and the 
 distance from tlie above-named church or chapel, and when and for how 
 long you served the same. 
 
 8th. Were you serving any other church or chapel in the neighbourhood 
 as curate? If so, state the name thereof, and tiie distance from your own 
 church or chapel, and when and for how long you ser\ed the s^ime. 
 
 9th. What are the services in your church I Is a sennon or lecture 
 given at every, or which, of such services ? 
 
 lOth. Were these services duly performed last year? if not, for what 
 reason ? 
 
 11th. What ai-e the services in your chapel or chapels, if any? \* a 
 sermon or lecture given at every, or which, of such services? 
 
 12th. Were these services duly performed last year? if not, for what 
 reason ? 
 
 13th. Have you any assistant curate or curates? If so, state his or 
 their names ; also, whether he or they is or are licensed, and the amount 
 of his or their stipend or respective stipends. 
 
 14th. If you were non-resident, were you so by license? 
 
 15th. If non-resident by hcensc, state the ground of license and the 
 time when it will expire. 
 
 1 6th. If non-resident without license, were you so by exemption ? 
 
 17th. If non-resident by exemption, sUite the ground of exemption, 
 and whether such exemption was claimed for the whole year, or dunng 
 what part thereof? 
 
 18th. If you were non-resident, and did not perform the duties of your 
 benefice, what ecclesiastical duties, if any, were you iwrforming, and 
 where do you now reside ? 
 
 Observe : the foregoing questions are to be answerctl by every 
 incumbent, whether resident or not.
 
 764 APPENDIX. 
 
 Further Questions to he answered, in addition to the 
 foregoing, in case the Incumbent he non-resident. 
 
 19th. What is the name of your curate? 
 
 20th. Does he reside in the glebe house? 
 
 21st. Does he pay, and what, rent or consideration for the use of the 
 glebe house, or is any deduction made on account thereof from the stipend 
 assigned to him in his license? 
 
 22nd. If not resident in the glebe house, does he reside in the parish? 
 
 23rd. If not resident in the parish, where does he reside, and at what 
 distance from your church or chapel ? 
 
 24th. Does he serve any other church or chapel as incumbent? If so, 
 state the name thereof, and the distance from your own church or chapel. 
 
 25th. Does he serve any other church or chapel as curate? If so, state 
 the name thereof, and the distance from your own church or chapel. 
 
 26th. Is he licensed? 
 27th. What is his salary from you ? 
 
 28th. Has he, from you, any other allowances or emoluments ? State 
 what, and the average value thereof respectively. 
 
 29th. What is the gross and what is the net annual value of your 
 benefice ? 
 
 N. B. All the questions have reference to the year immediately 
 preceding that in which they are transmitted.
 
 
 
 
 APPENDIX. 
 
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 766 APPENDIX. 
 
 No. 8. 
 
 Form of Certificate, to he transmitted, by Minister perform- 
 ing Baptism or Burial elsewhere than in Parish Church 
 or Churchyard, to the Minister of the Parish. 
 
 I, , do hereby certify, that I did, on the day of , 
 
 baptise, according to the rites of the United Chiu-ch of England and Ire- 
 land, • , son [or, "daughter"] of and . 
 
 To the rector \_or as the case may he'\ of . 
 
 I, , do hereby certify, that on the day of , A. B., 
 
 of , aged , was buried in \statiing the place of burial], and 
 
 that the ceremony of burial was performed according to the rites of the 
 United Church of England and Ireland by me, . 
 
 To the rector [or as the case may be'] of . 
 
 No. 9. 
 
 Verification of the Contents of the Register of Baptisms 
 and Burials, to he transmitted to the Registrar with the 
 Copies. 
 
 I, A. B., rector [or as the case is] of the parish of C, [or, " of the chapelry 
 of D."], in the county of E., do hereby solemnly declare, that the several 
 writings hereto annexed, purporting to be copies of the several entries con- 
 tained in the several register-books of baptisms, marriages, and burials, of 
 
 the parish [or " chapelry"] aforesaid, from the day of to the 
 
 day of , are true copies of all the several entries in the said 
 
 several register-books respectively, from the said day of to 
 
 the said day of , and that no other entry during such period 
 
 is contained in any such books respectively, which entries are truly 
 made according to the best of my knowledge and belief. 
 
 (Signed) A. B. 
 
 The above to be fairly written, without stamp, immediately after the 
 last entry, and the signature to be attested by one, at least, of the church 
 or chapel wardens. 
 
 No. 10. 
 
 Certificate of Baptism, to be delivered by Minister for the 
 2}urpose of being tahen to the Registrar. 
 
 I, Gilbert Elliot t, vicar of Barming, in the county of Kent, do hereby 
 certify that I have this day baptised, by the name of Thomas, a male child 
 produced to me by William Grcev as the son of William (hceii and Rebecca 
 Green, and declared by the said William Green to have been born at Mary- 
 lebone in the county of Middlesex, on the 7th day of January, 1836. 
 
 Witness my hand, this 1st day of December, 1838. 
 
 Gilbert Elliott, Vicar.
 
 APPENDIX. 
 
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 APPENDIX. 773 
 
 No. 14. 
 Certificate of Reyistry of Death. 
 
 . I, John Cox, registrar of births aiul deatl.s in the district of MaruU. 
 bone A or I/, m the county of MuUt.st,, do her.hv cntify that th.- .frail, 
 ot Jleniy Hastings was duly n-gistered by inc on the icrcnlh day of 
 March, 1815. 
 
 John Coi, llcgistrar. 
 
 Order of Coroner for Burial. 
 
 I, James Swilh, coroner for t]ic county of Dorset, do iirreby order the 
 burial of the body now sliown lo tlie inquest jury as the body of J„/,„ 
 Jones. Witness my liand this eighth day of March, 1845. 
 
 James Smith, Coroner. 
 
 No. 15. 
 
 Certificate that Dissentiny Teacher haa tahen Oaths 
 and made declaration. 
 
 I, A. B., one of her majesty's justices of the peace for the county 
 
 [" riding," " division," " city" or " town," or " place,"fli Ihccau is] of ', 
 
 do iiereby certify, that C. D. of [(kscribini; the christian unJ mnuimc and 
 
 place of abode of the parli/] did this day appear before me, and did make, 
 and take, and subscribe, the several oaths and declarations specifietl in an 
 act made in the fifty-second year of the reign of King Ceorgc the Third, 
 
 intituled [set forth title of the act.] Witness my hand tliis day of 
 
 , 1845, '
 
 INDEX, 
 
 A. 
 
 ADMISSION. 481. 
 
 ADVOWSONS, 
 
 General definition of, 465. 
 Origin of, ib. 
 
 Particular description of, 446. 
 Advocatio nicdietatis ecclesije, ib. 
 Appendant, ib. 
 In gross, 467. 
 Presentative, ib. 
 Collative, ib. 
 Donative, 468. 
 Alienation of, 469. 
 Partial estates in, ib. 
 Right of presentation, by whom exer- 
 cised, 470. 
 joint-tenancy of, 472. 
 coparceners, ib. 
 mortgagor of, 473. 
 bankrupt, 474. 
 By whom not to be exercised, ib. 
 Grant of, during vacancy, see Simow. 
 
 491. 
 See Lapse — Presentation — Roman 
 Catholics. 
 
 ALB, 
 
 Description of, 607. 
 
 Whether used at the communion service. 
 608. 
 
 ALIENATION. See Mohtmain. 
 
 ALMS. See Offeiitory. 
 
 ALMS' CHEST, 417. 
 
 APPORTIONMENT. '^'See Tithe and 
 Rent Charge. i 
 
 APPROPRIATIONS, 145. 
 
 Distinguished from impropriations, 146. 
 
 AQVJE BAJULUS. See Parish Cleiik. 
 
 ARCHBISHOP, 
 
 Jurisdiction of, 67. 
 
 Election of, 68. 
 
 Of Canterbury, ib. 
 
 Style, prerogatives and dignity of, i7/. 
 
 Of York, 69. 
 
 I ARCnBISnOP-(co«(inurci. 
 General duties of, G9. 
 
 ) 
 
 Visitation by, 70. 
 Appeals to, ib. 
 Appeals from, it. 
 
 Annual charge on income of, by Eccle- 
 siastical Commissioners, ib. 
 Right of, to present by lapse. !<«« 
 
 L.M'SE. 
 
 Options of. See Oi'tionj. 
 
 Resignation of, 74. 
 
 Guardian to the spiiiiuallies of a vannt 
 
 see, 81. 
 Case of incapacity of, 90. 
 
 ARCHDEACOX, 
 
 Origin of, 130. 
 
 How tiieir power was acquired, it>. 
 Mention of, as bishop's vicar, i/>. 
 Archdeacons general, 131. 
 Number of archdeaconries, ib. 
 Division of dioce»cs into, it. 
 Hank and style of archdeacon, 132. 
 (Qualification of, it. 
 Duties of, it. 
 Jurisdiction of, it. 
 Visitations by, it. 
 timc3 of, 1:13. 
 exhibits of orders at, it. 
 presentments at, 131. 
 may not nfuse to swear church- 
 wardens, J 39. 
 cases as to, it. 
 visitation sermon, ib. 
 
 who to preach il, it. 
 whether ]H;non appoiotcd may 
 refuse, 140. 
 Court of, it. 
 
 How alTictcd as to pluralilitt, it. 
 Power to increase cndowmcDt of, Nl. 
 by annexiD(^ canoniies, ib. 
 benefices, it. 
 endowment of particular arrhJea* 
 
 conrics, 142. 
 former estates of, where new eo- 
 dowracnt, 143. 
 
 AUGMENTATION. 
 BovNty. 
 
 Sec QcrsK Akns'b
 
 776 
 
 INDEX. 
 
 B. 
 
 BANKRUPTCY. See Sequestration. 
 
 BANNS OF MARRIAGE, 
 
 Time, place, and manner of publication, 
 
 642. 
 Notice of, to the minister, 644. 
 Publication of, under false names, 646. 
 Form of words for publication of, 647. 
 Forbidding, 648. 
 Book for entry of, 649. 
 When republication of, necessary, ib. 
 Certificate of superintendent-registrar in 
 place of, 655. 
 
 mode of obtaining certificate, ib. 
 Certificate of publication of, 659. 
 
 BAPTISM, 
 
 Early modes of, 613. 
 Place and times of, 614. 
 Rubric concerning, ib. 
 Sponsors at, ib. 
 By clergyman, 615. 
 Essentials to validity of, ib. 
 Private, ib. 
 Lay, ib, 
 
 question as to validity of, 616 to 
 628. 
 Fees for, ib. 
 Registration of, ib. 
 
 when performed in parish church, 
 
 629. 
 when performed elsewhere, 630. 
 rules and regulations respect- 
 ing, 631 to 638. 
 
 BASIN, 
 
 For alms, 418. 
 
 BELFRY. See Church — Cur ncn warden. 
 
 BELL, 418. 
 
 BENEFICE, 
 
 Meaning of word, 529. 
 See also Exchange— Resignation — 
 Union. 
 
 BENEFIT OF Cl-ERGY, 
 Origin of, 59. 
 'I'o wliom and to uhat crimes^afterwards 
 
 extended, 60. 
 Limits of, ib. 
 Proceedings, when pleaded, 61. 
 
 purgation, 62. 
 Abolition of, ib. 
 
 BIBLE, 
 
 For Church, 410. 
 
 BIER, 418. 
 
 BISHOP, 
 
 Style and privileges of, 74. 
 
 BISHOP— (conO'jiupd.") 
 Election, &c. of, 75. 
 
 history of mode of election, ih. 
 
 conge d'elire, 76. 
 
 confirmation of, 77. 
 Consecration of, ib. 
 Translation of, ib. 
 
 Benefices held by, at time of election, ib. 
 Attendance in parliament of, 78. 
 Right of, to vote on capital trials, 79. 
 Order of sitting in parliament, 81. 
 Suffragans, 82. 
 Coadjutors, ib. 
 Former privileges of London residences, 
 
 ib. 
 Duties of, 84. 
 
 visitation, 85. 
 
 who visitable, and by whom, ib. 
 confirmation, ib. 
 How office of, may determine, 89. 
 Provisions for case of incapacity of, ib. 
 Commissioners to inquire into state of, 
 
 ib. 
 
 report of commissioners, 90. 
 costs of commission, ib. 
 Appointment of, to perform episcopal 
 functions in another diocese, 92. 
 restrictions on authority of, 93. 
 powers of, ib. 
 allowance, ib. 
 Course to be pursued when found a lu- 
 natic, ib. 
 Deprivation of, 94. 
 Cannot be deposed, 95. 
 IMode of depriving, ib. 
 Resignation of, 98. 
 
 Of Scottish and American Episcopal 
 Churches, permission to, to officiate. 
 603. 
 
 BOND. See Resignation. 
 
 BUILDING LEASE. See Lease. 
 
 BURIAL, 
 
 Ancient mode of, 672. _ 
 
 Universally adopted among Christians, 
 
 673. 
 In churches, ib. 
 Right to, where, 674. 
 Of persons dying felo de se, 67.5, 687. 
 On whom lies obligation to provide, ib. 
 In the church, 677. 
 
 right of incumbent with respect to, 
 "ib. 
 Of shipwrcdied persons, 678. 
 Mode of, 679. 
 Service, 681.686,689. 
 Of unba])tis(;d persons, 687. 
 Of excommunicate persons, i7*. 
 Causes for refusing, ib. 
 Fees for, 689 to 693. 
 Registration of, ib. 
 Certificate of registrar before, 693.
 
 INDEX. 
 
 C. 
 
 CANONS AND PREBENDARIES, 
 
 Meaning of word prebend, 120. 
 Patronage of canonries, ih. 
 Collation and institution of canons, 121. 
 Qualification of, ib. 
 Duties of, ih. 
 
 How aflected as to pluralities, ib. 
 Residence by, on benefices, 122. 
 canonry, 123. 
 No separate estates in, 124. 
 Income of, ib. 
 Honorary canonries, ib. 
 
 where founded, 128. 
 Minor canons, ih. 
 
 by whom appointed, r29. 
 
 number o{,[ib. 
 
 stipend of, ib. 
 
 Iiow affected as to pluralities, ib. 
 
 CATHEDRAL. See Churches. 
 
 CATHEDRATICUM. See Churches. 
 
 CHALICE, 418. 
 
 CHANCEL, 391. 
 
 Marriages in, 667. 
 
 CHANCELLOR, 178. 
 
 CHAPELRY, 
 
 New, 380. 
 
 Formed by Church Building Commis- 
 sioners, ib. 
 Privileges of, ib. 
 Subflivision of, 381. 
 District assigned to, ib. 
 When endowed, ih. 
 See Parish and District. 
 
 CHAPELS AND CHURCHES, 
 Not parochial, 396. 
 Definition of chapel, ib. 
 Private chapels, ib. 
 Free chapels, ib. 
 Proprietary chapels, 397. 
 Chapels of ease, 398. 
 
 under Church Building Acts, ih. 
 
 repairs of, ;7). 
 
 liability of, to repairs of the mother 
 church, 399. 
 
 rights of incumbent over, ib. 
 
 CHAPTER, 103. 
 
 • See Dean. 
 
 CHURCH, 1. 
 
 Meaning and derivation of the word, ib. 
 Government of, by persons ecclesiastical, 
 
 2. 
 Connection of, with State, ib. 
 
 opinions thereon, 3, 4. 
 The sovereign the supreme head of, 6. 
 
 his prerogatives as such, 7. 
 
 ciiuRcn-(f.,M(,r.„„/.) 
 
 Of Ireland, 7. 
 
 CHURCHES, 
 
 Cathedrals, 335. 
 
 origin of, ib. 
 
 revenues and due* of, 386, 
 
 calhcdralicutn, ih. 
 
 of the new foundalion, 387. 
 Collegiate, 305. 
 
 distinct from caihedralt, ib. 
 
 Hipon, 387. 
 Parish, ib. 
 
 definition of, ih. 
 
 dilferent kinds of, ih. 
 
 ancient manner of founding, 388. 
 
 consecration of, ih. 
 
 usual form of consecration, 389. 
 
 reconsecraiion and rccoociliatioo, ib. 
 
 fabric of, 390. 
 
 lower or belfry, ih. 
 
 chancel, ih. 
 
 parson's right to chanctl, 391. 
 
 nave, ib. 
 
 aisles, and properly therein, 39-2. 
 Altering and enlirgmg, for incretKd ac- 
 commodation, 393. 
 
 faculty for, ib. 
 
 disputes iliercuuon, 394. 
 Goods, utensil;, and ornaniei.ts, 415. 
 
 before the Ueforuiation, ib. 
 
 after ihc lUfurnialion, 417, 418, 
 419. 
 Unnecessary goods, 420. 
 
 when paii.sh chargeable with repair 
 of, ib. 
 
 organs, when necessary, i6. 
 
 salary of organist, 421. 
 
 general rule as to guo^U being i>c- 
 ccssiiiy or not, ih. 
 
 niouumcnis, 422. Sec Momui.'xt*. 
 
 CHUHCH l)IS( li'LINj; ACT. 
 
 All proceedings agjinst clergyinto, a« 
 
 such, regulated by. 31. 
 Proceedings under, ih. 
 Ecclesiastical oft'cnct.* under, ' ' 
 Preliminaries before issuing . 
 
 33. 
 Proceedings of coninuuiooert under, ib. 
 
 by bishop under, 34. 
 Assessors, 35. 
 Sentence, ih. 
 
 np|ical fiom scnlcurr. •')(>. 
 Ministers of peculiars subjct-l to, 37. 
 I'unishmculs, 38. 
 
 Constitution of court of ultimate appeal 
 under, 39 
 
 time when appeals mutt be miJe, 
 41. 
 
 costs of .ipi^ ■d'i. 12. 
 
 CHURCH HATES. 
 
 Origin and antiquity ol, 437. 
 Purposes of, 438.
 
 778 
 
 INDEX. 3^/^-- ^/>-^ 
 
 C <^.v<^^'»* 
 
 -_A 
 
 CHURCH RATES— (contiHued.) 
 
 Legal objects of, at comirion law, at pre- 
 sent, 440. 
 Object of, by statute law, 441. 
 
 enlarging and extending church ac- 
 commodation, ib. 
 repairing churches by means of loan, 
 
 ih. 
 building new churches by rate, \h. 
 Object of, prospective, 444. 
 Retrospective, illegal, 445. 
 earlier cases as to, ih, 
 present stale of the law, ih. 
 what constitutes a retrospective rate, 
 446. 
 Subject of, 448. 
 
 Kinds of properly chargeable to, 449. 
 Directions of tlie thirteen doctors as lo 
 the subject of, 450. 
 
 remarks on directions, ih. 
 Exemptions from payment of, ih. 
 
 glebe or churcli endowments of same 
 
 parish, 451. 
 inhabitants of a chapelry, 452. 
 
 newly formed ecclesi- 
 astical districts, 453. 
 property of tl>e crown, ih. 
 stalls in a market, ih. 
 Authority by which churcli rates may be 
 imposed, 454. 
 
 cases vviiere common law courts can 
 interfere to compel the making 
 of, 457. 
 power of ecclesiastical courts to de- 
 cide on validity of, 458. 
 Remedy for parties aggrieved by, 459. 
 Summary jurisdiction for recovery of, 
 
 460. 
 Appeal in such cases, \h. 
 Levy by distress for payment of, 461. 
 Effect of notice given to dispute validily 
 
 of, 462. 
 Indirect authority of Court of Queen's 
 llencli in ordin;iry cburcii rates, 463. 
 by prohibition, (7;. 
 Limits of jurisdiction of ecclesiastical 
 courts with respect to, ih. 
 
 CHURCHVVARUENS, 180. 
 
 Origin of, as synodsmen or sidesmen, ih. 
 
 How they ought to sue, ib. 
 
 'J'iieir power over tiic goods of the church, 
 
 181. 
 What persons disqualified for liic olHce, 
 
 182. 
 What persons not compelled to serve, ih. 
 What persons must serve if clioscn, 183. 
 Number of, 181. 
 Election of, and canon ijicroon, ih. 
 
 chosen in veslry, 185. 
 
 method of conducting election, 186. 
 
 legality of election, how tried, 187. 
 In newly built churches and chapels, 188. 
 Form of swearing into office, 189. 
 
 duty of ordinary therein, ib. 
 
 CHURCHWARDENS— (continued.) 
 Their duties, 191. 
 
 presentments, ih. 
 
 time and place of, ih. 
 what offences are presentable, 
 192. 
 to keep ordei in church, ih. 
 not to interfere in the ordering the 
 
 service, 193. 
 duties as guardians of the church, 
 194. 
 to keep the church in order, 
 and provide things irecessary 
 for the performance of divine 
 service, ih. 
 duties as sequestrators, 195. 
 duty as to fabric of church, ih. 
 limits of duty as to repairs and ad- 
 ditions, 196. 
 duty as to arranging seats in the 
 
 church, 197. 
 duty as to the bells, belfry, and 
 
 ringers, ih. 
 duty as to the churchyard, ih. 
 Permitting burial of strangers in the 
 
 churchyard, 198. 
 Legal remedies allowed to churchwar- 
 dens, ih. 
 Cannot be reimbursed by retrospective 
 
 rate, 199. 
 Remedies against, ih. 
 
 criminal proceedings against, 200. 
 in the Ecclesiastical Court, ih. 
 difficulties in conduct of such 
 proceeding, 201. 
 civil proceedings against, ih. 
 To render account of monies received and 
 expended at the end of their year, //). 
 remedies if they refuse to account 
 
 on going out of ollice, ih. 
 allowing the accounts and proving 
 items, 202. 
 Determination of office before expiiation 
 of year, 203. 
 
 CHURCHWAY. 
 Repair of, 434. 
 
 CHUUCllVARDS. 
 Origin of, 425. 
 Legalised, 426. 
 Consecration of, ih. 
 Former privileges of sanctuary in, ih. 
 Freehold of, in the minister, 427 — 433. 
 'I'recs in, ih. 
 
 for what purposes may be felled, 
 428. 
 Kight of parishioners to use of, ih. 
 Restrictions on minister's right lo, ih. 
 Fences, <Stc. of, 430. 
 Repairs of, ih. 
 boundary of, (7*. 
 Kncroacliments on, 431. 
 Monuments in. See Monuments. 
 Are under the protection of the church- 
 wardens, 433.
 
 INDEX. 
 
 //! 
 
 CHURCH YARDS-(co,./n„<(.,/.) 
 Provisions for additional, 434. 
 
 powers for grant or purchase of lands 
 for such purpose, 435. 
 Power to alter boundaries of, ih. 
 Power for enlarging, 436. 
 
 COADJUTOR. See Bisnoi-. 
 
 COFFINS, 
 
 Antiquity of, 673. 
 Materials of, 681. 
 Of iron and other metals, 683. 
 
 COLLATION, 467. 
 
 COLONIES, 
 
 Persons ordained for, 16. 
 
 Persons ordained by bishops of, 17. 
 
 COMMISSARY, 179. 
 
 COMMISSION, ECCLESIASTICAL, 
 Origin of, 43. 
 
 First report of commissioners, 45. 
 Original members of, ib. 
 Constituted a corporation, ib, 
 
 provision, for succession of commis- 
 sioners, ib. 
 Additional commissioners since ap- 
 pointed, 46. 
 provision for successois to addi- 
 tional commissioners, ib. 
 Declaration subscribed by members of, 
 
 47. 
 Episcopal members of, i7». 
 Chairman and officers of, 48. 
 Powers of members of, ib. 
 Schemes of, 49. 
 
 registration of such schemes, ib. 
 Revenues at disposal of, 50. 
 
 sources of such revenues, ib. 
 Powers of, for enforcing payment of re- 
 venues, 54. 
 
 application of revenues, ib. 
 Commissioners authorised to borrow of 
 Queen Anne's bounty, 55. 
 
 security for repayment of loan, ib. 
 Authority of commissioners, 56. 
 See also Bishop— ('iiuncii Discipline 
 Act — Gii-BEKT Act — MonrMAiN. 
 
 COMMON PRAYER, 
 Book of, 596. 
 
 provided in churches, 418. 
 
 COMMUNION, 
 
 Rubric with respect to, 694. 
 When to be administered, 695. 
 Causes for refusal of, ib. 
 Notice of, 697. 
 Tables, 417, 697. 
 Bread and wine for, ib. 
 Private administering of, 698. 
 
 COMMUTATION. .«5e«TiTMr. 
 
 COMPOSITION. See Kiiht Fbuiti »ad 
 
 TniiKs. 
 
 CONFIRM/VriON. >cc Buiior. 
 CONGE D'KLIUK. Sec Huiior. 
 
 CONSECRATION. See Uitiior aad 
 
 Ciiuitcii. 
 
 CONVOCATION, 23. 
 
 Its earliest form, ib. 
 
 Gradual assumption of authority l>v "y* 
 
 Of the province of Canteibury, '2ft. 
 
 Constitution of, ib. 
 
 By whom chosen, ik 
 
 Office and limits of authority of, 26—31. 
 
 Decline of, ib. 
 
 Self-taxation io, by clergy, disconljcued, 
 
 28. 
 Cessation of all business in, i6. 
 Subsequent revival of, ib. 
 Doctrinal disputes of, '29. 
 Final prorogation of, 30. 
 
 CORN-RENT. .See Tithi and Rist 
 
 ClIARGL. 
 
 CURATE, 
 
 Perpetual. See I'mivtiUAt CutAxr. 
 Stipendiary, 165. 
 license of, ib. 
 
 requisites before graDling li- 
 cense, lb. 
 cases where ilic bikliop i 
 
 the appointment of a ci . ... 
 
 stipend in such catet, loti. 
 appeal by incuinbvni, >'•. 
 to be appointi'd in laigc bcnctkr«, i^. 
 amount of tliprndt of, bow rtfia 
 
 hied, 169. 
 disputes between and incumbeol, 
 169. 
 ccriain incunibenU exempted 
 from opciatioo u( act, 170. 
 scale of btipciidt of, ih. 
 sniallrr 5li[H'iuU in i eiiam catet, th, 
 cliaiges on »li|»cnd, \1'2. 
 case of aj;iecnicnl» ' 
 
 than allowed by li '. 
 arrrars of stipend, how rccomable, 
 
 ih. 
 parsonagv houaca aaaigoed Io, i6. 
 Uxet, &c. thercoo, wbc n paid. 
 174. 
 where l>en< •''• 
 
 notice by, l: , 1T'>. 
 
 notice to, by new in. 
 
 revocation of liccotc 1} " j-, >• •. 
 
 appeal, i6. 
 appointul by il' ' ' ' ' *• P*'' 
 lormanoc of .. • &W.
 
 780 
 
 INDEX. 
 
 D. 
 
 DEACON, 9. 
 
 DEANS, 
 
 Origin of, 98. 
 Different kinds of, ib, 
 
 of provinces, 99. 
 
 of honorary, ih. 
 
 of peculiars, ib. 
 
 rural deans, 143. 
 Deans of chapters, 99. 
 
 old and new foundation, 100. 
 
 patronage of, 101. 
 
 (jualificalion of, ib. 
 
 style of, ib. 
 
 rank and dignity of, 102. 
 Profits of, during vacation, 101. 
 Has no veto upon ads by the chapter, 
 
 104. 
 Preaching, 102, 
 Residence of, ih. 
 
 exemption from residence, ib. 
 Average annual income of, ib. 
 
 DEAN AND CHAPTER, 
 
 A corporation aggregate, 103. 
 
 acts done by them in that capacity, 
 ib. 
 Vacancy of headship, ib. 
 Duties of, ib. 
 By-laivs made by, 104. 
 Statutes made to bind successors only, 
 105. 
 
 not binding if contrary to policy of 
 
 law, ib. 
 if contrary to policy of ecclesiastical 
 establishment, ib. 
 Profits of canoniy in vacation, ii>. 
 Visitors of deans and chapters, 106. 
 
 compositions as to, 107. 
 Oflice of, during vacation, ib. 
 Constitution of particular cliapter, 108. 
 Consolidation of sees, ib. 
 
 wliat acts to be done by eacli 
 
 chapter, ib. 
 suspension of cathedral appoint- 
 ments, 109. 
 number of canons in each chapter, 
 
 110. 
 manner in which the change is ef- 
 fected, 11 1. 
 exceptions from the order of change, 
 
 ib. 
 endowment of archdeaconries, 114. 
 removing the suspension, ib. 
 canonricsof Westminster, (7;. 
 repeal of statutes as to separate 
 
 estates, 1 15. 
 provision for p:irticular cases, ib. 
 separate patronage given to bishop, 
 
 116. 
 general patronage of the chapter, 
 
 117. 
 profits of suspended canonries, 118. 
 provision out of, for fabric 
 fund, 110. 
 
 DEAN AND CHAPTER— (continued.) 
 
 houses of residence not wanted, 119. I 
 
 Chapters may propose alteration in the \ 
 
 statutes, ib. : 
 or visitors in their default, ib. 
 
 DEGRADATION, 588. 
 
 DEPRIVATION. See Bishop. j 
 
 Definition and causes of, 582. i 
 
 Cases of, without sentence, 583. ; 
 Cases of, by sentence, 585. 
 
 DILAPIDATI0NS//S^!c!c%7^J'^^^ 
 
 Of fences, gates, &c., or gfebe la«ds, 
 
 whether ancient or recently acquired, 
 278. 
 
 duty of incumbent on acquisition 
 
 of new lands, 279. \ 
 
 Of buildings, 280. j 
 
 wherein dilapidation consists, ib. i 
 
 proceedings of a new incumbent ! 
 
 with respect to, ib. j 
 
 proceedings of a late incumbent 
 
 or his representatives, ib. '. 
 
 in cases of waste. See Waste. ' 
 
 principles on whicii to be calcu- ' 
 
 lated, 281. 
 
 conseiiuence of delay in claiming, I 
 
 284. I 
 application of monev received for, 
 
 285. ' I 
 who are liable to, 285, 286. i 
 precedence of, 287. ! 
 claim for, whetiier defeated by frau- > 
 
 dulent gifts, ib. , 
 
 Insuflicicncy of remedies with respect to, I 
 
 289. j 
 
 Measures to prevent, taken during life- j 
 
 time of incumbent, ih. ' 
 
 by ecclesiastical censure, ih. \ 
 
 by sequestration. See Sequestua- J 
 
 ■JiON. : 
 
 Non-residence a common cause of, 290. j 
 
 recent enactments in consequence, | 
 
 ib. j 
 
 DIOCESE. See liisnop. j 
 
 DISCHARGE. Sec Tn III;. 
 
 i 
 
 DISPENSATION. See Pluralities. \ 
 
 DISSOLUTION. See Union. - 
 
 I 
 
 DISTRICT, ECCLESIASTICAL, > 
 
 Formed by church building commission- J 
 
 crs, 379. \ 
 
 Boundaries of, ib. j 
 
 alteration of boundaries of, ib. j 
 
 When formed for certain ecclesiastical \ 
 
 purposes only, 382. ] 
 Probable regulation of, in future, ih. 
 New formation of, ib. 
 Maps of, ib. 
 Duties and rights of minister of, 383.
 
 INDEX, 
 
 \b\ 
 
 DISTRICT, ECCLESIASTICAL - {con- 
 tinued.) 
 
 How to become a parish, 384. 
 See Parish. 
 
 DONATIVE. 467. 
 
 DUPLEX QUERELA. See Piiesenta- 
 
 TIO.V. 
 
 E. 
 
 ECCLESIASTICAL CORPORATIONS, 
 
 Aggregate and sole, 21ti. 
 
 Their legal capacities and advantages, 
 
 217. 
 Independent of eacli other, 218. 
 Ecclesiastical persons tenants for life, i/^. 
 Nature of their property, interest in, 222. 
 
 See Waste. 
 Leases by. See Lease. 
 
 ECCLESIASTICAL COURTS, 
 
 Probable change in constitution of, 31. 
 Authority of, how superseiled, ib. 
 Officers of, 178. 
 chancellor, ib. 
 
 his qualification, ib. 
 offices included in, ib. 
 limits of jurisdiction of, ib, 
 officials and commissaries, ib. 
 surrogates, ib. 
 
 ENABLING AND DISABLING STA- 
 TUTES, 
 
 Circumstances required under, to render 
 leases made by persons ecclesiastical 
 binding on successors, 223. 
 Concurrent leases under, 224. 
 Duiation of leases under, ib. 
 Limits of, 225. 
 Stat. 32 Hen. VIII., (7.. 
 
 provision for reservation of rent, ib. 
 Leases under, must not be made without 
 impeachment of waste, 226. 
 
 EXCHANGE, 
 
 Meaning of word in case of real pro- 
 perty, 534. 
 Of benefices, 536. 
 
 license from ordinary for, ib, 
 resignation for the purpose of, 537. 
 simoniacal, ib. 
 
 what would be so considered, 
 538. 
 claims for dilapidations after, ib. 
 See AIouTMAiN.and Union of Be- 
 nefices. 
 
 EXCOMMUMCATION, 687. 
 
 ENDOWMENT. See Ciiapeluv— IMonr- 
 
 IklAIN. 
 
 EXEMPTION. See Cniuscn Rates- 
 Privileges OF Clergv — Rates — Tithe. 
 
 F. 
 FACULTY, 393, 394, 403. 
 
 FIR.^T FRUIIS, 
 
 Their origin auii tir^i i;.' 
 Annexed to the Ciowi.. 
 
 tenths, 364. 
 For what payable, and whcD, it. 
 CornjKJsiiion for, 305. 
 \\ hen due, ib. 
 Account of, sent to clergy, 3WJ. 
 
 notice of atrcar*. it. 
 Exceptions from liabdity to p»y, 367. 
 Application of, ib. 
 
 FOREIGNERS. 
 
 Ordained by I'nglish bishops, 16. 
 
 G. 
 
 GILISKRT ACT, 
 
 Proceedings under, 264. 
 
 permission to borrow ' ■■)r 
 
 building a new parso: v, 
 
 ib. 
 duties of the ordinary, 267. 
 provision for purchase of new houtc. 
 
 See Mom MAIS, 
 permission to borrow tnoDcy of 
 Governors of Quc«d Anac't 
 Bounty, 268. 
 Sec also p. 254. 
 Recent alteration and extension of pro- 
 visions of. 269. 
 
 power given to purihasc a >iic for 
 
 building, 270. 
 aduitional |)owcrs and . •.\ 
 
 granted, and altcrai o. 
 
 270. 
 mode of proceeding in morlgi^ 
 benefices becoming vacant alter 
 August, 1838. .271. 
 
 commission of in(|uiiy, i6. 
 report of < ■ 272. 
 
 summary of ic by 
 
 recent i 
 ciiacii 
 as to the atiiouni ul money lo 
 
 be raised, 274. 
 cfli'ct of the last of ibcw act* 
 
 on the foriiit r r :'j. 
 
 power \,\^cn to a; •nJ 
 
 bisliop> to borruvv :;.t;.cy foi 
 buildin;:, ib, 
 
 regulations fur, 276. 
 See QfUN .ANNt"» ll"> ^i». 
 
 GLEUE. Sec Mortmain. 
 
 GRANT. SeeMo.^.Mv. 
 
 1. 
 IMPROPRIATIO.V, 146. 
 
 IftlPROVKH VAIAK, 
 
 Of the property of sees. chapttTJ, tinl 
 
 benefices, how disp< '■td o', 233. 
 Part of, in C3se of mmirifC lta>*», 234.
 
 782 
 
 INDEX. 
 
 INCLOSURE ACTS, See Tithe. 
 
 INCUMBENT. See RECToa — Vicaii — 
 Perpetual Curate. 
 
 INDUCTION, 496. 
 
 Origia of. See Investiture. 
 What is conferred by, 497. 
 Effects of, ib. 
 By whom to be made, 498. 
 
 in case of grantee of a free chapel, 
 
 ib. 
 where the bishop's mandate is ge- 
 neral, 499. 
 Blode of, ib. 
 Acts to be done after, ib. 
 reading in, 500. 
 reading the articles, ib. 
 reading certificate of subscription, 
 
 501. 
 necessity for repeating declaration 
 of conformity, ib, 
 , r/-^!, /jsual time of reading in, 502. 
 ^^v/i'T^Yf 1/^ certificate of reading in, and its 
 
 'f' 
 
 
 INSTITUTION, 
 
 Preliminaries to, 481. 
 
 oath against simony, 482. 
 oath of allegiance and supremacy, ib. 
 oath of canonical obedience, ib. 
 subscription to Thirty-nine Articles, 
 
 ib. 
 declaration of conformity, 483. 
 Form of, ib. 
 Fees for, ib. 
 Effects of, 484. 
 Plenarty, ih. 
 
 Rights conferred and duties imposed by, 
 ih. 
 
 INVESTITURE, 
 
 Originally same as institution, 481. 
 Original meaning of, 496. 
 
 IRELAND, 
 
 Church of. Sec Ciiuiuii. ^ , _ 
 
 LANDS OF ECCLESIASTICAL COR- 
 PORATIONS. See Ecclesiastical CoR- 
 POTiATiONS, and IjKase. 
 
 LAPSE, 
 
 Definition of, 506. 
 
 When incuried, ib. 
 
 Case when patron and ordinary are the 
 
 same jjcrson, \b. 
 Case wiien it does not occur, \b. 
 To the niclropolilan, 507. 
 To the king, ib. 
 In case of donatives, ib. 
 In case of death of bishop after title by 
 
 lapse accrues, ib. 
 To wlioni it first accrues, 508. 
 Computation of time with respect to, ib. 
 
 LAPSE — (c()ii(i»nied.) 
 
 Cases where patron must take notice of 
 
 avoidance, 509. 
 Cases where the ordinary must give 
 notice of avoidance to patron, ib. 
 mode in which notice is to be 
 given by bishop to patron in case 
 of deprivation, 510. 
 
 LEASES, 
 
 By ecclesiastical corporations, 222. 
 Statutes of Hen. V'lII. and Eliz. thereon. 
 See Enabling and Disabling Sta- 
 tutes. 
 Building may be granted for long terms 
 of years, 226. 
 
 restrictions and conditions to be ob- 
 served in such leases, 227. 
 counterparts of, 228. 
 consents necessary to such leases, 
 229. 
 May be granted for streets, yards, &:c., 
 230. 
 
 and for watercourses, &c., ib. 
 restrictions, 231. 
 Mining leases, ib. 
 
 restrictions as to, ib, 
 effect of due execution of, 232. 
 surveyors to be appointed for valua- 
 tion, &c. (6. 
 counterparts of to be deposited, 233. 
 void if fines be paid, ib. 
 may be granted for lauds held in 
 trust, ib. 
 May be granted by incumbents of bene- 
 fices, 235. . 
 
 with consent of the patron, bishop, 
 
 and lord of the manor, ib, 
 for term.s of fourteen years, ib. 
 subject to restrictions, ib. 
 covenants in lease, 236. 
 length of term in certain cases, 237. 
 restrictions on what may be 
 demised, \b. 
 bisliop, patron, and incumbent par- 
 lies to sucii leases, 238. 
 deposition of maps, copies, 6cc., ib, 
 fees to registrar, 239. 
 See Mortmain. 
 
 Lli 
 
 ^/^.^^/.^/ / ^<^^^ 
 
 :cturi;r, 
 
 Oilicc of, 152. 
 
 Foundation of ollice, ib. 
 
 Veto of incumbent with respect to, 154. 
 
 License of, by the bishop, 156. 
 
 Case of bishop refusing to license, ib, 
 
 extent of bisliop's power to refuse, 
 157. 
 
 mode of inquiry by bishop before 
 refusal, 158. 
 License of, by archbishop, ;/;. 
 Election and nomination ol, 160. 
 General right of incumbent to nominate, 
 
 im.
 
 INDUX. 
 
 iHii 
 
 LECTURF.R-(co;i(;»ua</.) 
 Qualifications of, 161. 
 Power of bishop lo revoke license to, 1 62. 
 
 LECTURESHIP, 
 
 Powers of trustees of, 162. 
 
 LETTERS DIMISSORY, 14. 
 
 Duty of bishop granting them, 15. 
 Who to grant them during a vacancy of 
 
 the see, ih. 
 Restrictions on granting, ib. 
 
 LICENSE. See Curate — Exchangi: — 
 Lecturer — Marriage — Parish 
 Ct.erk — Pluralities — Residence. 
 
 LITURGY, 
 
 First after the Reformation, 611. 
 Injunctions concerning, by Queen Eliza- 
 beth, //;. 
 
 M. 
 MARRIAGE, 
 
 History of modes of solemnizing, 634. 
 Recent alteration of law respecting, ib. 
 Essentials to validity of, ib. 
 in case of foreign, 635. 
 disabilities to contract, 636, &c. 
 Of Jews and Quakers, 637. 
 Of parties within certain degrees of re- 
 lationship, 638, &;c. 
 Voidable, 641. 
 Form of, 642. 
 
 Preliminaries necessary lo. See Banns. 
 Proper place for, 644. 
 Of a ward of court, 647. 
 License for, 649. • 
 
 by whom granted, 650. 
 requisites, formerly and at pre- 
 sent, 651. 
 consent necessary, ib. 
 when obtained by fraud, 652. 
 residence necessary for obtaining, 
 
 653. 
 special, ib. 
 
 by the superintendent registrar, 655. 
 Notice of, to superintendent registrar, ib. 
 publication of notice at board of 
 guardians, 656. 
 
 certificate of publication, 655, 
 
 657. 
 caveat against grant of ccrtili- 
 cate, ib. 
 Essentials to regular, according lo 
 
 Cliurch, of England, 659. 
 Irregular, 660. 
 In extra-parochial places, ib. 
 Licensing of church or chapel for solem- 
 nization of, 662. 
 In what pait of church to be solem- 
 nized, 667. 
 Registration of, 668. 
 
 copies of registrations by minis- 
 
 ter, ib. 
 errors in registration, 670. 
 
 MKUGKll AM) K.\ll.\ .f 
 
 Ul 111 UK A.M) I,., .r 
 
 C1IAR0E,336. .S«j JC» ». 
 
 ML\ES. Sec LKA«ii-\VA„«. 
 
 MODI'S, 308. 
 
 MOXUMKNTS, 
 
 CouscDls uece«*ary for ihcir cnrcuuo to 
 a church, 422. 
 appeal lo arc!/ 
 cuur&e lo be 
 
 objeclmg to, 424. 
 Repairs of, ib. 
 Defacing of, ib. 
 In churchyards, 432. 
 
 veto of rector with respect lo erec- 
 tion ol, ib. 
 right of properly in, 433. 
 wiiat remedy agaio»t iocumbcnt for 
 leiuoving, tb. , .■ y 
 
 MOUTGAGE. See GitDtUT Act. , 
 
 MORIMAIN STATUTF^, 0/CV>* 
 
 License from crou ■ ■ 
 
 case of a coll on 
 
 aggregate. 241. 
 case of corpora tiua sole, u bubop, 
 
 dean, £cc. ib. 
 present sialc of the law, IKl. 
 Exceptions from, with mpcrt to ci- 
 changes, 244. 
 
 conditions of, aod rr^lrif^ion* oa 
 
 sucii cxclin 
 permission U. ^ . '.tio 
 
 casc5, 246. 
 ExceptioD-s from, with retpecl lo gnuiU, 
 &c. 248. 
 
 by improj ' 
 
 grants i. .ly 
 
 fund, ib. 
 general |>owcr lo g«*« Umli ot 
 money, and resUiclion* (hereto, 
 250. 
 grant of waste lamk, 351. 
 power of n inio gKi>c oi 
 
 l.iiiil* •eloofio^ to • 
 
 b. 
 powi , ar<-in3;:r !-.r>ntr, <>. 
 
 purth-^ .-. ; — 
 
 glcb«, i6. 
 
 men' " ""' '" '""' ' " 'V •'" ;• 
 A 
 all o" <•. 
 
 led pcrwoa iwiled. 
 
 JclaiU lo Ik < 
 
 
 CT,-' 
 
 « M#>«-, e«'» 
 
 conn 
 |>io\ision W: 
 glebe in C i 
 257. 
 
 'ind a» 
 s Act,
 
 784 
 
 INDEX. 
 
 MORTMAIN ST ATVTES— (continued. ) 
 provision for purchase of lands for 
 residence, by or under the direc- 
 tion of the bishop, 258. 
 
 provision for conveyance of 
 such lands, and effect of 
 this provision, 259. 
 provision for endowment by future 
 
 patron of new churches, ib. 
 endowments in land to new 
 churches generally, ib. 
 
 mode of ascertaining value, ib. 
 Church Endowment Act, jfe. 
 
 power given thereby to the ec- 
 clesiastical commissioners, 
 ib. 
 general rules deducible from pre- 
 ceding statutes, 261. 
 
 restrictions still imposed by, 
 and exceptions generally al- 
 lowed, 261, 262. 
 acquisition of land by encroach- 
 ment on the waste, ib. 
 
 MORTUARIES, 360. 
 
 O. 
 
 OFFENCES AGAINST RELIGION, 
 
 Apostasy, 752. 
 Blasphemy, ib. 
 Biaspliemous libels, 753. 
 Sabbath breaking, ib. 
 Simony, 754. 
 Religious impostors, 755. 
 Biawling, ib. 
 Arresting clergymen, 756. 
 
 OFFENCES BY CLERGYMEN. See 
 Church Discu'line. 
 
 OFFERINGS, 
 
 Definition of, 358. 
 
 Whether voluntary orof common right, ib. 
 Easter, whether composition for per- 
 sonal tithes, ib. 
 
 at wiiat lime payable, 359. 
 how recoverable, ib. 
 summary jurisdiction in recovery 
 of, 360., 
 Mortuary, ib. 
 
 statute restraining excessive exac- 
 tion of, ih. 
 Tithes in the city of London, 361. 
 
 OFFERTORY, 
 
 Alms at, and disposal of them, 699. 
 
 OFFICIAL AND OFFICIAL PRIN- 
 CIPAL, 178. 
 
 OPTIONS, 
 
 Ancient kinds of, 71. 
 
 Present custom as to, ih. 
 
 Are considered as peisonal property, 72. 
 
 When lost, ib. 
 
 ORDERS, 
 
 Different kinds of, 8. 
 
 Canonical impediments to, ib. 
 
 Qualifications for, ib. 
 
 '1 itle for. See Titi^e. 
 
 Examination for, 12. 
 
 Oaths and subscription before, ib. 
 
 Conferring of, discretionary, 13. 
 
 Bishop by whom, and diocese in which, 
 
 to be conferred, 14, 15. 
 Under what restrictions conferred on 
 
 foreigners, 16. 
 Seasons of conferring, 17. 
 Form of conferring, 18. 
 Fees for admission to, ib. 
 Simoniacal obtaining of, 19. 
 Corrupt bargaining for, 20. 
 Written notice required of candidates 
 
 for, 22. 
 Persons in, may be appointed parish 
 
 clerks, 206. 
 See Colonies — Letters Dimissory — 
 
 Title. 
 
 ORDINARY. See Bisiior. 
 ORDINATION. See Orders. 
 
 PARISHES, 
 
 Definition of, 376. 
 Origin of, ib. 
 Boundaries of, ib. 
 Places extra-parochial, 377. 
 New divisions of, ih. 
 subdivisions, ib. 
 consolidation, ib. 
 apportionment of glebe, tithes, &c. 
 
 378. 
 ascertaining and registry of boun- 
 daries, 379. 
 
 PARISH CLERKS, 
 
 Origin of, 204. 
 
 Whether the ofHce existed independently 
 
 of that of aquPD bajulus, ib. 
 Choice of, 205. 
 Age and qualification of, ih. . 
 License of, ib. 
 In holy orders, 206. 
 
 regulations respecting, ib. 
 Removal and deprivation of, 207. 
 present state of the law, 209 
 
 jurisdiction of justices, with 
 respect to, 210. 
 May have a deputy, 21 1. 
 Fees due to, ih. 
 
 PARSON. See Rectou. 
 
 PARSONAGE HOUSP:S, 
 
 Origin of, 263. 
 Alterations of, ib,
 
 INDEX. 
 
 786 
 
 PARSONAGE HOUSES— (coutbiued.) 
 New, built on the old glebe, 264. 
 See Gilbert Act. * 
 
 Dilapidations of. See Dilapidations. 
 Not to be demised by lease, 337. 
 See Mortmain. 
 
 PATRONAGE. See Advowson and Piil- 
 sentation. 
 
 PERPETUAL CURATE, 149. 
 Origin of, 150. 
 
 PERPETUAL CURACY, 
 
 Definition of, 150. 
 
 Rules to determine, ib. 
 
 Nomination to, 151. 
 
 Nature of incumbent's interest in, 152. 
 
 PEWS. See Seats. 
 PLENARTY. See Institution. 
 
 PLURALITIES, 
 
 Recent alterations in laws respecting, 
 
 524. 
 Canon of Lateran Council concerning, 
 
 525. 
 Directions respecting, in constitutions of 
 
 Othobon, ib. 
 Constitutions of Archbishop Peccham 
 respecting, ih. 
 
 effect of these constitutions, 526. 
 Dispensations granted for, ib. 
 
 extent of, formerly, ib. 
 Statute of Henry VIII., ib. 
 Recent statute, 527. 
 
 case of person holding cathedral 
 
 preferment, ib. 
 restrictions of distance respecting, 
 
 ib. 
 pre>ent computation of distance, 
 
 528. 
 restrictions of statute with respect 
 
 to population, 529. 
 restrictions of statute with respect 
 
 to value of benefice, ib. 
 exceptions from above rules, ib. 
 License to hold two benefices, 530. 
 appeal fioni refusal, 531. 
 mode of application for license, ib. 
 statements to be made to bishop, ib. 
 case of benefice in jurisdiction of 
 
 archbishop, 532. 
 effect of acceptance of second pre- 
 ferment, 533. 
 exceptions, ib. 
 general effect of statute respecting, 
 especially as regards lapse, 534. 
 
 PREACHING, 
 
 License for, 601. 
 
 simony in procuring, ib. 
 By strangers, how forbidden, 602. 
 Heretical, punishment for, 604. 
 
 PREBENDARY, .Sec Cano«. 
 
 PRESCHIl'TION. 
 
 Exemption Iroin lithe by, 295. 
 
 PRESEMATION, 
 
 Right of. 4&i. 
 
 Right of, as respects tiusttts and moiu 
 
 gagees, ib. 
 Distinction between, and ciomioatioo, 
 
 474. 
 Definition of, 476. 
 Qualification of presentees, 477. 
 LinJts to light of, ib. 
 Examination of presentee by bithop, 
 478. 
 
 appeal from refusal by bishop, 479. 
 grounds of refusal, ib. 
 other necessary qualifications on, i'-. 
 lime for considering suthciency of 
 
 presentee, 480. 
 notice in case of icfusal, i6. 
 See Advowsgns, 
 Simoniacal. See Si.monv. 
 
 PRESENIMENIS. See Ciiii>cn« a • 
 
 UtNS. 
 
 PRIEST, 9. 
 
 PRIMER SEISIN', 
 Definition of, 3»J2. 
 To whom the right bclonge«l, ih. 
 Belonged to the king by |i . ifc. 
 
 Origin of the payment ol -. <6. 
 
 PRIVILEGES OF CLEUGV, 67. 
 Abridged at the Ivcfoimation, i6. 
 Era of greatest iieiglil of, ib. 
 Their origin, ib. 
 
 Aarious kinds of. Sec HiNtriT or 
 Cluicv. 
 
 exemption from rates and cvrUio 
 
 temporal ollicis, 63. 
 exemption from anesl, 64. 
 
 PRIVILEGE, 
 
 Exemption from tithe by, 298. 
 
 PRIVY COUNCrL. 
 
 Appeal 10, under Church Discipline Acl, 
 
 36. 
 Judicial commillee of, 39. 
 constitution of, ib. 
 
 rnorrxiKT.Miv cii.\rKi.s. 
 
 Unknown to aminii c .nu.n !i«. \t>i. 
 See CiiAPKi-s. 
 
 PKOTESTANT DISSKNTKItS. 741. 
 Noticonfurniity, 742. 
 Restrictions on, 744. 
 Oaths by, 745. 
 Exemption from offivc', ib. 
 Quakeis, 746. 
 
 Cei lifted meeting liou!>cs, 747. 
 3 t
 
 786 
 
 INDEX. 
 
 PROTESTANT DISSENTERS — {con- 
 tinued.) 
 
 Dissenting teachers, 747 
 certificated, 748. 
 oaths to be taken by, 749. 
 employed solely in teaching, 750. 
 protection of worship of, ib. 
 
 PROVINCE. See Archbishop. 
 
 PUBLIC WORSHIP, 
 
 Uniformity of, 590. 
 
 when first established, 591. 
 
 different acts to establish, ib. 
 What may be said or given out by the 
 
 minister during, 596. 
 Preserving order during, 612. 
 
 PULPIT, 417. 
 
 PURCHASE. See Mortmain. 
 
 PURGATION. See Benefit of Clergy. 
 
 Q. 
 
 QUEEN ANNE'S BOUNTY, governors of, 
 367. 
 
 Corporation, how created, ib. 
 
 Who composed of, ib. 
 
 Duties of, 368. 
 
 Olhces of, ib. 
 
 Rules of, with respect to augmentation 
 
 of livings. 369. 
 Grants to, ib. 
 How to inform themselves of value of 
 
 benefices, ib. 
 Augmentations received from, and their 
 
 application, 372. 
 Conditions on which livings are aug- 
 mented by, 373. 
 agreements in particular cases, 374. 
 Benefices augmented by, ib. 
 See GiLDEirr Act. 
 
 R. 
 
 RATES. See Cuuncii Rate — Ri:nt 
 Charge. 
 
 RECTOR,^ ^ C % / 
 
 /S 
 
 Identical with parson, 144. 
 Sinecure, 147. 
 
 suppression of, ib. 
 As distinguished from vicar, 149. 
 Of common right patron of vicarage, ib. 
 
 REGISTER BOOK, 413. 
 
 REGISTRAR AND REGISTRATION. 
 See Baptism, IU-rial and 1\1 aiiimaoi . 
 
 RENT CHARGE, TITHE. 
 
 Nature of, 326. 
 
 Exceptions from the general mode of 
 estimating, 327. 
 coppices, ib. 
 hopgrounds, orchards or gardens, 
 
 323. 
 newly cultivated fruit plantations, 
 
 ib. 
 mixed plantations of hops and fruit, 
 
 329. 
 land subject to separate rectorial 
 
 and vicarial tithes, ib. 
 future mixed plantations, ib. 
 
 mode of fixing rent charge on, 
 in certain cases, 330. 
 When due, ib. 
 
 Power to substitute a fixed for a contin- 
 gent rent charge, 331. 
 Incumbrances and incidents of, 332. 
 Merger and extinguishment of, 335. 
 how to be effected, 336. 
 priority of charges on merged tithes, 
 ib. 
 
 consequences thereof, 337. 
 provisions extend to glebe land, 
 
 338. 
 case of copyholds subject to an 
 arbitrary fine, ib. 
 extent of power to merge, ib. 
 Rates and assessments on, 338. 
 
 not to be deducted on valuation of 
 
 tithe, ib. 
 rent charge subject to the same as 
 
 tithe formerly, 339. 
 poor's rale, 340. 
 
 whether tithe originally liable 
 
 to, ib. 
 first notice of liability, 341. 
 highway rate, 343. 
 
 delinition of occupier of tithes 
 under highway act, 344. 
 proportion in which to be made, 345. 
 
 principle of rating, 346. 
 legal liability of tithe owner, 351. 
 mode of recovery of, ih. 
 assessment of, on whom made, 354. 
 Recovery of, by distress and entry, 355. 
 mode of proceeding, ih. 
 
 in case of Quakers, 356. 
 to what lands the power of distress 
 
 and entry extends, ib. 
 summary jurisdiction for, 357. 
 appeal, ib. 
 
 RESIDENCE, 
 
 Law with respect to, how settled, 512. 
 Obligation to, ib. 
 License to dispense with, 513. 
 In houses built or procured by Queen 
 Anne's Bounty, ib. 
 cxceptiorrs, ib. 
 Discretionary power of bishop to grant 
 licenses, 516. 
 
 ^M^.- 6#V<;^^^ ^J^.//-^
 
 INDEX. 
 
 ^87 
 
 RESIDENCE— (con(iHHec2.) 
 
 mode of applying for such licenses, 
 516. 
 
 cases in vvhicii such licenses 
 
 may be granted, 517. 
 appeal where license is re- 
 fused, 518. 
 special licenses, dispensing with, ib. 
 granted by archbishop, ib. 
 licenses during vacancy of see, ib. 
 fees for licenses, (6. 
 licenses not void by death or removal 
 
 of bishop granting lliem, 51'.'. 
 revocation of licenses, ib. 
 list of licenses transmitled by arch- 
 bisliop to queen in council, 520. 
 revocation of licenses by the queen, 
 ib. 
 Annual questions respecting, 521. 
 neglect in sending answers, ib. 
 return of answers sent to the queen 
 in council, ib. 
 Method of enforcing, 522. 
 by monition, ib. 
 by sequestration, ib. 
 
 appeal from order of seques- 
 tration, 523. 
 costs, ib. 
 remission of penalties, 624. 
 House of. See Parsonage House. 
 
 RESIGNATION OF BENEFICE, 665. 
 Definition of, 566. 
 'I o whom may be made, ib. 
 What is a sufficient acceptance of, 
 667. 
 possible mode of efTecting, without 
 
 acceptance by bishop, ib. 
 penalty for corrupt, 569. 
 
 evasions of the statute, 570. 
 Bonds for, ib. 
 
 both general and special bonds de- 
 clared illegal, 571. 
 general bonds for, 574. 
 retrospective act, 578. 
 present state of the law, 579. 
 review of subject, 58 1 . 
 See also Archbishop and Bishop. 
 
 RESTRICTIONS OF CLERGY, 
 
 From silting in the House of Commons, 
 
 65. 
 From farming aboveeighty acres of land, 
 
 ib. 
 From trading, ib. 
 
 SACRAMENT, 
 
 Of baptism. See Baptism. 
 
 Of the Lord's Supper. See Communion. 
 
 SACRISTAN. See Sexton. 
 
 SANCTUARY, 
 
 In a churchyard, 426. 
 
 SEATS AND PEWS. 
 
 In old pirikh cliuiclics, 400. 
 
 general right ufditpotibg of, iawl 
 
 vested, 401. 
 how obtained from cbutchwanUat, 
 
 i«. 
 privalL' liyliis in, how held, 403. 
 sub-letting, lb. 
 right of occupancy of, l^. 
 exceptions to (general n^ht of ordi- 
 nary and churchwaidcuk, 405. 
 what is necessary to prove a pn*al« 
 
 ri^ht to, ib. 
 piiorily of scat, 4<>«i. 
 private ri^lil to, annexed to a bouM. 
 
 407. 
 right to, divisible, ib. 
 seats in public aisles, i6. 
 remedies foi disturbance of an all«gtd 
 
 right to, 408. 
 In churches built under the Church 
 Building Acts, 4W. 
 seat for minister and family, 4 10. 
 free scats, ib. 
 leiting and choice of, ib. 
 parties cniiiled to, frt« of rent, 4n. 
 rights to, assigned by coiumissioMn, 
 
 ib. 
 confined to inhabitaots, ib. 
 sale of, ib. 
 
 proceeds of sale or rent of, 412. 
 amount of icnt of, ib. 
 
 recovciy of rent, ib. 
 notice of vacaocies, ih. 
 when let to persons not inbabilaoU, 
 
 413. 
 opplication vi '■. ib. 
 
 furihcf .1 to incum- 
 
 bent, 414. 
 rents of, where parish chotch ts 
 
 changed, ib. 
 See qIsoCiiurcii— CmrtciiwAaotws. 
 
 SEQUESTIIATION. 
 Definition of, 555. 
 Form of writ of, ib. 
 I'ublicalion of, 55»j. 
 Dispute:* as to priority of cUiins oixlcr. 
 
 559. 
 Under banLriiptry of « 
 eflcct of such sc<| 
 when right to. mi. -• 
 
 how far qual:' .,,j««.^coC 
 
 the pe.icv y.ifc. 
 
 From the bishop, see L'lLAriMtiosi— 
 
 R»SID»N<» . 
 
 application ( ' 
 
 leniissiou of , .*-n1, i*. 
 
 appeal •' 
 
 application oi | - . • *^*** 
 
 of illegal tradinjr. li. 
 
 for . v and lOOft- 
 
 ^. 
 for iu.'»ui*uic, lu. 
 3 t2
 
 788 
 
 INDEX. 
 
 SEQUESTRATOR, 
 Duties of, 556. 
 Remedies by, 558. 
 Remedies against, ib. 
 
 SERVICES, CHURCH, 
 
 Power of ordinary to regulate, 597. 
 Daily, ib. 
 
 whether it can be enforced by the 
 bishop, 598. 
 A third, enforced in certain cases by the 
 
 bishop, 599. 
 Two full, enforced by the bishop, 600. 
 Penalties for allowing unauthorised per- 
 sons to peiform, 604. 
 IManner in which to be performed, 609. 
 Discretionaiy power of minister as to 
 cathedral, 611. 
 
 SEXTON, 
 
 Nature of office, 212. 
 Nomination or election of, 213. 
 Office filled by a woman, 214. 
 In new districts, ih. 
 
 SIDESMEN OR SYNODSMEN. See 
 
 CiiuncnwARDENS. 
 
 SIMONY, 19. 
 
 Definition of, 485. 
 Persons giiiltv of, ib. 
 Penalties affixed to, and whom they 
 ,^ .. , affect, 486. 
 
 i) hi I ^S^'^'-u'ss against, what they forbid, ih. 
 ^^^ • ^/^'* Circumstances which make a presentation 
 simoniacal, 487. 
 
 what consideration is simoniacal, 
 489. 
 Simoniace promoti, ih. 
 
 case V, here presentee isinnocent,490. 
 Limits and extent of, 491, &c. 
 
 SINGING, CHURCH, 
 
 Discretion of minister as to, 609. 
 History of, 610. 
 
 SI QUIS, 9. 
 
 SOVEREIGN. 
 
 The head of the Church, 6, 7. 
 
 SPONSORS, 614. 
 
 STATE, 
 
 Connection of, with Church, 2. 
 Wiierein it chiefly consists, 5. 
 
 STIPEND. See Cuhate. 
 
 SUBMISSION, 
 Act of, 24. 
 
 SUBSCRll'TION. 
 
 TION. 
 
 SU C C ESS I V V. 1 N C U i\I n ENTS, 
 Rights between, 276. 
 
 as to growing crops, ib. 
 
 / 
 
 w 
 
 Sec OnoLns — Institu- 
 
 SUCCESSIVE INCUMBENTS— (contd.) 
 as to apportionment of rent, 277. 
 no action by successor for miscultiva- 
 
 tion, 278. 
 as to repairs. See Dilapidations. 
 
 SUFFRAGANS, 82. 
 SUPERINSITTUTION. 
 
 See Institution. 
 
 SURPLICE, 417. 
 
 On what occasions to be worn, 607. 
 Whether to be used in preaching, 608. 
 
 SURROGATES, 179,653. 
 
 SUSPENSION, 5S4. ^ , , / 
 
 TENTHS, ^y^ 
 
 Origin of, 363. 
 
 Wlien due, and how to be recovered, 364. 
 See FiiiST Fruits. 
 
 TESTIMONIALS, 
 
 On admission to holy orders, 9. 
 On admission to a benefice, 481. 
 
 TIMBER, 
 
 In a chunhyard, 219 — 427. 
 See also \Vaste. 
 
 TITHE, 
 
 Origin and first mention of, 292. 
 Definition of, 293. 
 Former exemptions from, 294. 
 Present exemptions from, ib. 
 Exemption from, by prescription, 295. 
 established by statute, ib. 
 
 in corporations aggregate, ib. 
 in corporations sole, ib. 
 commencement of operation of 
 
 act, '296. 
 exceptions fiom operation of 
 
 act, ib. 
 general rule, 297. 
 Exemption from, by privilege, 298. 
 
 effect ofexemplionby prescription, ib. 
 the privileged orders of monks, ib. 
 enjoyed by crown lands, 300. 
 enjoyed by spiritual persons or cor- 
 porations in general, 301. 
 exceptions, ib. 
 its effect or liability to tithe rent- 
 charge, 302. 
 Exemption from, by composition real, 303. 
 nature of a real composition, ib. 
 restrictions as to, ib. 
 validity of, 304. 
 
 compositions real, where there has 
 been no decree of a court of 
 equity, 305. 
 evidence of, ib. 
 distinction between case of a modus 
 and a con)po.sition real, 306. 
 Exemjjtion from, by private acts of par- 
 liament in particular cases, 307. 
 inclosure acts, ib.
 
 INDEX. 
 
 7b\) 
 
 TITUE— (continued.) 
 
 substitution of corn rent, 307. 
 Exemption from, by modus, 308. 
 definition of, ib. 
 supposed to have commenced before 
 
 time of legal memory, 16, 
 presumed to commence by deed, 309. 
 leading rules as to validity of. ib. 
 how a modus may be discharged, 31 4 
 provisions as to moduses la Tithe 
 Commutation Act, 315. 
 
 apportionment of modus, 316. 
 time within which modus may be 
 questioned, 317. 
 Exemption from, by rent-charge in lieu 
 thereof, 318. 
 
 voluntary commutations before pass- 
 ing of act, 16. 
 mode of effecting change from tithe 
 to tithe rent-charge by voluntary 
 commutation, 319. 
 
 forms of documents, 320. 
 consents requisite in cases of 
 voluntary commutation, ib. 
 ' confirmation of agreement by 
 tithe commissioners, 321. 
 apportionment of rent-charge 
 on lands of parish, ih. 
 mode of effecting change from lithe 
 to lithe rent charge by a compul- 
 sory award, 322. 
 
 duties of commissioners, ib. 
 cases for separate adjudication, 
 and proceedings therein, 323. 
 award, ib. 
 
 apportionment by the parish- 
 ioners, 324. 
 apportionment by the commis- 
 sioners, ib. 
 particulars of apportionment, ii. 
 validity of awards, agreements 
 
 and apportionments, 325. 
 provision for rectifying errors, 
 
 ib. 
 See Rent Charge. 
 Exemption from, by lands given in lieu 
 thereof, 332. 
 
 form of proceeding, ib. 
 
 by parochial agreement, i7». 
 by compulsory award, 333. 
 title of lands given in exchange, ib. 
 remedy for the party entitled to re- 
 cover, 334. 
 
 efl'ect on purchasers, i7>. 
 agreement to give lands to operate 
 
 as a conveyance, 335. 
 time within which lands may be 
 given, ib. 
 Merger and extinguishment of, ib. 
 
 rates and assessment on tithe, 339. 
 See Rates. 
 Not liable to church rate, 344. 
 Personal, ib. 
 See Offerings. 
 
 TITLE FOR OUDER.S, 
 
 (jualificaiion in rc^pccl of, lU. 
 DifTerent kinds of. ib. 
 
 U. 
 
 UNIFORMITY, 
 Acts of, 591. 
 
 UNIONS OF BENEFICES. 
 Definition of, 541. 
 
 Manner in which formerly made, 642. 
 whose concurrence necevMry, 16. 
 Restraint of, by statuie, 16. 
 
 jurisdiction givco to commoo Itw 
 courts, 543. 
 In cities and corporate towot formerly, i^. 
 
 effect of, on advowsoo, 16. 
 Prospective, 544. 
 Kepairs in case of, ib. 
 Land tax in case of, 545. 
 Repeal of old law, 16. 
 
 duly of archbishop with iMpect to. 
 
 546. 
 limits and extent of new law re- 
 spectinjj, 547. 
 Dissolution of, 550. 
 
 mode of proceeding hv ftatule, .Vjl. 
 sale of house ol 
 
 supplenicnial o..^. :.. — j--'- 
 ing disputes, 563. 
 
 UNION WORKHOUSM. 
 
 Poor law comiiiisiioiicrs, 726. 
 Religious worship by piiu|)cri, 727. 
 Children of dis-- 
 Appointment ol > ^ .» in, ib. 
 
 history of, 7Ju. 
 Dissenting miui&tcrt atteodiog. 728. 
 
 instructioD by, ib. 
 
 restriction of hi4 duii"- * ^" 732. 
 Rules as to duties of ch.\; i. 
 
 prayers and preaching, .J->. 
 
 as to children, ih. 
 
 sick persons, 734. 
 
 V. 
 
 VESTRY, 
 
 General, 701. 
 place of, ib. 
 
 !)rcsidcnt of, ib. 
 low convened, and by wiiu., . 
 
 703. 
 how conMiiulcd.703. 704. 
 
 Chairman of, 705. 
 
 castinf; vote by, 710. 
 Powers of, 705. 
 Proceedings io, 706. 
 adjournment, ib. 
 
 right of, in laioistcr, •». 
 w1h:i 10 be exercised, i*. 
 Lists as to, 707.
 
 790 
 
 INDEX. 
 
 YESTRY— (continued.) 
 
 no previous notice of, neces- 
 sary, 707, 
 to subsequent day, 702. 
 Plurality of votes, ib. 
 
 extended to companies, &c. ib. 
 Voting, ih. 
 
 not by ballot, 710. 
 Poll, ib. 
 
 duration of, ib. 
 reasonable time for, 711. 
 not to be granted on an illegal sub- 
 ject, 712. 
 Books, ib. 
 
 custody of, 713. 
 injuring, f6. 
 Select, ib. 
 
 by custom, ib. 
 
 origin of, 714. 
 must be immemorial, 715. 
 where to be tried, 716. 
 by statute, ib. 
 
 new parishes, 717. 
 10 Anne, c. 11, ib. 
 51 Geo. 3, c. 45, ib. 
 59 Geo. 3, c. 134, ib. 
 limitation of powers of, 718. 
 where parish has been divided, 
 
 719. 
 by private act of parliament, 
 
 720. 
 by Stat. 1 & 2 Will. 4, c. 60, ib. 
 how adopted, 721. 
 rate payers, ib. 
 inspectors of votes, ib. 
 qualification of vestry- 
 men, 722. 
 
 VESTRY— (continued.) 
 
 number of, 722. 
 
 the old and new vestryj 
 
 724. 
 oaths of, ib. 
 quorum, 725. 
 not to be held ia church, 
 
 ?7>. 
 auditors of, ib. 
 
 VICAR, 
 
 Origin of, 148. 
 Endowment of, ib. 
 Merged in rector, ib. 
 General, 179. 
 
 VISITATION, 
 
 Of bishop, 85. 
 . Of archdeacon, 132. 
 
 VISITOR, 
 
 Of deans and chapters, 106. 
 
 W. 
 
 WASTE, 
 
 Ecclesiastical persons restrained from, 
 
 219. 
 Punishable, ib. 
 Of timber in a churchyard, ib. 
 in digging stones, &c. 220. 
 in cutting timber, 221. 
 by whom injunctions against may 
 be obtained, ib. 
 What acts are to be considered as, 222. 
 Encroachments on, 263. 
 See Dilapidations. 
 
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 PniNTED BY C. ROWOnTH AND SONS, 
 BELL YAIID, TEMPLE DA II. 
 
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