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Acts, where much has been from time to time re-enacted without apparent reason, and where much which is not actually repealed, is nevertheless practically useless, such a course would only have perplexed : and it has been thought sufficient in such cases to give the sub- stance only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. / 2 3 t: j* -^ r- . 4> = ::•?= who moi rfon a. 0* V. ^fc cu '£ -U ^3 ' 0" . 2 ^3 rt b • c ■«>.• J^ 3 "^ s s uality r Pro 1 1 , '5 » 'V ^ 3 93 3 •<J . 10 C 4i J < E ►3 1 ts >H ^ 8 •5 e _c • 6 c 3 6 E 6 B ti a u 3 in 1 8 K 5»i 2 ^ -*-> •4-> H.^ B < O) 5-1 c .2 5^ ^■1 e ^ ^J^ •""^ ^ CJ S 'm "^ 0) i '^ fc ■4-* es .S hild'8 ian N tT IP -§ N u -s; "£ 'S e •c 6 ►^ e "o 03 6 •X3 • •< b CU *^ 9 1^, c3 fl- ea -a 00 .■«' s ^ •*, • "H ^ .a '^ ji « 6 Z ^ w^ 1 765 766 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. 7C7 m ^ ■w ■T3 >i C <u t3 m n3 6 i 'S ^ 0) « c 3 o o 0) e 0} ^ t> ^ ^ ■*-> 5 ■M na ^ •» cS a o <1) .2 s <s X s Cm CO •o» o J e •4^ *3 "♦J _U s kO fH o O s Q !^ V c "i '+3 13 5~ O o O u (1) s 2 £ to g r— h. Ph ^ ■%id -4-> 6 .2 j3 ■? ^ ^ ■J3 o »» TS (^ H CS O O Ho ^ 8 o ■4^ 1! K> 13 ., •po 0) ^— V i^ c ta <u £ M •<i .h2 o ,,^ w "*-o en .n ^ 0) ci3 to 'g^ ^ C3 Ol 6:2 ^ CS'O •a <i> § £ CS 3 C o >,,c Ol "53 •^ S bJOr:= >. >> _Q 'IJ (U Ph ^ I- >• ?■ . ■M 01 * =^!3 -•- = (£ sa 1 Cou ther heP rent "2 ° "£ - c 4, c r= o «^ a>-T3-n — —-=_ — . .ii^ S-S 1 Distr whic sides Iwell 1 C 1) ^ .— v« > hD-S § O „, • ■a -O bo m %: 1 ^ ^'E'° £, '^ c ca ^. g a ■d o 2 s^-S O s; =5 " o 4~ ^ hurch which be s <^ 2 ^ ".2 S^ a <u u. aJ ;. s o o ■« a -. a 00^3 ^1 S: '■" S -g ^- c <u <u u ^ o * ^p- i^ 1 ^ g .s <■; i o l-H lu so • -^ QJ ao *■*» ^ c <; <-^ O' I. c fc o o ■<» ■^'S "•S e- Pi 2 a Ph O B O t ■5 c o o c «i *o «j w E s CO ? (. 5 5 »-i ^ m Id ■< .5) 5 i es 'a "a c E w « s o E U 3 o •a • if f5 768 APPENDIX. ftj it: S .2>> c (u " a> to •" — "a I— I ^ u J a> .2 IS -o '-5 ho-- - ""5 00 r^ .2 N '5 E '5 PQ « B ° - o O a o X! a tU'TJ a "^ u (25 s s^ K •^ 5^ g g' CO 6 If :^ s •"2 i>3 5, 4j ^ bo <; .S 6 16, Hig Street. 1^ s O S i « o o K Jf to I. .a 3 W) n3 Ol ^ e^ >^ ^ ^ ii io -a s CO f >«■ ^ S^ "^ 00 ,r: •-a D cu ^ ca C =0 fcjj s c •S t^ c« s^ m ^^ P^ Cm C §^ « ^ ^ rS ^ fl .o-=> a> »o <u 5>i ^3 00 -w a ^ '"' 0) <u tH ^ >- ^ CD ^t2 ^3 ^ rO T3 ^ -4^ S CO a> '« CO ^ N «> CC •5 So ^ rQ to ^ -i'i J3 >.-n-S sue of f. c »« « .S QJ H* to ?9 O) )^ 1? to .t- -o 2i a> ~CS Hd "c 5 v.^^^. 3 •- >o :s.-^ ■^ Of-H 10 •» > 1 1 -^ -' - ^ -Q -^ ;=! ^^--^ & ^^ <u 1^ c« -J= (M CJ en ^, C •4-* 'TS 9 0) <u .^ fc W) to -C H ■^1 C U Cm «m 0) aj -*-j 4^ ca cu OG APPENDIX, 769 ^ •lo cc ~S!^ •^ o "« !^ ;^ S ^s %.°5 ?^ ?^ •K> ^ «a "Kj ^o *^ O^ <w ^-5: s •" « « ^ "oi ^2 1^ H . ^*^"^ Vs ^ i^ ?=^ !3 a«^ the said • •s^ (/3 ^ "Kj N CO O o* O l-H ^O No. ew, Hoi strymen w t-H P5 < P4 r^ -^^ O •*o . 00 ^^• l-H ^1^ ^■•? ? CO ^ Pari a Me ^ ^ "W <s tj s >» c o CO s s S 5- '^l « c\ ft^^ ^ J SQ - ,^ ■^ 4a O h TJO «c •V CI « 'O -6 a 3 • 2 .: •-': , _ „ O e o Ic 0>m CJ Wc o c o o C 0) a a ? Q T3-3 «o to (0 o CO o vj >.T _ •^ c» — JZ ,^ S '^ c» OCm «*io o o o o o -^ c 00 c e« o o T3 C 13 3 nz »; r^ n -M ^^ « O -a •-^ O ;j ^o o c o o o 2 S o eg « <o 00 o OcS Wo c o c — m ■*■'* c< •* es o o f3 -d 3 rs A C! o f— ^^ J> p .^ •-* 6 U Wo o c o o o i <u per N 11 •^2 c (0 T «o 00 ^ o^ Wo o o o o " -^o o -* C4 o <o ^ , •'! oc <o — -^ ■s -3 IS -" S u Wo o ,* o o >> 3 c □ -^•«= •>J< c <£ 'O o 1^ Wo o n — o c =■ •.-5 -s'o (O O 00 <o o . 2 • •s « c» t^ »}■ '■: •^ c» 3 u W- „ c 2 o n > u -a '-^ (O OC «o o 3 a c i o o i2 »• T^ o T I." — o w- c< c o = ^ a • u -3 fc- V ^ bo s CA c ^^^ c < > 1 3 > e ^^i* o ;3 30 770 APPENDIX. OS O Ph I O -a « o o a, CD o> C s o 0) a IS o o o o CO o ^^ CO CO CO o CO 1—1 fl □ o 1 - <^o o (N c^ CO CO r'^ ,» aj m OPL, ^o o o o o p-H • -^^ o CD o CO CT) 'o • 2 "^ 2 CD ^ r— r-H O o .^ O o "^o o o O o l-H t: ^ M o CO CO CO '"2 CD "* 5-1 (N CO 1— 1 3 =^^o O o O C f^ -^^ CO o 02 CD CO -a 3 3 ■:, c» CO c» f-H (— < CO o IS 1— « o ^o o o o O r-l c a -^•^ Oi CO CT> CO cn S o o ^ U t- Oi l^ CO o? o CI, o^ 'hJ- o o o o CO ^^ o CO •* o o 15 w ^ c^ (M <M CJ o "p Ic •"* J3 O '^o o o o o I-H o s a B ^^1 o 1— I "* o o CO ■i^ O) CD CO CO lO w- o o o o oj ^o o CO CD CD CO • 12 ■^. (r» 05 c- CO Ol Oi ^ ^ ? CQ CJ ^^ f-H o o o '*• > 1 Xi. 3 C B -«• = CD CO CD CO CO -C ^ s vj l^ o^ t-> CO (N CO tj o E2 ^-. CO <; O CD c <u TJ V, a> C3 bX) . s .£? t- ^ c ^ c o 5 a ! C >• a < j: • a p: i o z ) c? ' O APPENDIX. 771 c/1 1 a o o ■ — -o" O CO CO -d 1 a a o •;: o o 1 <; .12 'i-i a 5+JO o o □ O .2^ •3 • O, O ^•o o o 2 O ^oo w a .0 Q d) c S fe 1 j;^ r-, lO H-1 .2 IE (A .2 « ■t-t a, 1 6 a a Vh • • , C9 o n • i2 0) I a ~ <=> => ^ "13 o T3 a a o .,•0 -, * a 4-J 3 !^:« S (n O P« 1 ? ^ ! 4 i i 3 0^ 2-1 'CO — a kT O t/ ! C3 S5 ■» > k* Q* -s'O o a C 1 a a o o IS ^1 ^CO C£ ^ M 1- VJO C 5 O o > OJ CL, o 0^ .^•oo woe. 12 lA S. ha : 1 ,2 ■—I • • ^ 'qj . W 3 ^C' = o 4-* a • c 0) Sm o a CA "+^0 c o o ; • ^ s- 0) CLi : «"^ ^ -w • Si'o ^ . • • .IS T3 o fa G a, "2 . 1-- '-in ~ (S B ra bo (0 Q 2i cn- • - o Si 0) ^ a o .°^ >-• ^ CO cooco ,; lO w rs c-1 c^ c — o o to a. 1 k. eft 1 a ^•ooicc CO c o • 00 — ' «: lO OJ c3 V) 4> W3 C+JOOO o k. fl .2 -^* O O CO CO (4 OJ c« r; cs 1 .^ ^O (N — E s > CL, S c •'• IS .-1 WO — O O ~ eft g ~: >* <N cc • lO t-l CO o <u .. tn > 5 (U "o t/3 =o r— 1 SJO^ 3 J3 S c+^ooo o +J C c« 0. u P-l 5 •0 •4iJ 3 '- -^ a ir hi o -3 ^0 > fa .2 "6 n ■ 5 '.SP «*- - '^ ^ 2 i o »? U 3 ■5 rs 2 -i^ ° 5 S g a OSOco Z^'S 4>-a 3 »- l-H , '•J 3d2 772 APPENDIX. <0 1^ ^ f? a 2 V --: CO CO c ■> O >H '*J •^ c a -^^ 3 C tf) ^ o c ■> <N <a 4,03 o ^o o c 5 O c/3 Ut > >> ^- 4> > 0) ^•O Tj. c Q CO b. ^ •c.^ ^ 0) — .;;'-' o c > rt B to to gf?Q ifjO o c 5 O *00 . ^3 O « 05 S b. tJC^ V3 ""^ o a tb VJo re lU ■*-i CO ca (« bn O Offerin rching. tJ O ■* c 1 to P>^ to - o c > 1—1 .. 3 »-• •5u c+^o o c ) o CO b. 'Sb o 0) (4 -^^ J= • F-4 Ml (O u5 c ■+^0 c o rt lU pq --•CO o c > CO CA J3 ^CO CO - H O C (1> f-^ bo _« ^o o c: > o 'i- b. .•a V-H O rt s -«•«= <u "^ iSJ (A •J CA • (M c U T". ■o ^^ V b. <], ^•co o CC ) o ^o M >i . cj lO o 1 o X> <^ 1— 1 C3 S" 1^ 60 Wo o c > l-H *»-• fc« rt k-4 >i! ». c c ^ « c a •A CI it w if. r ' ' '■ ■ 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. LONDON : PniNTED BY C. ROWOnTH AND SONS, BELL YAIID, TEMPLE DA II. ^O; LAW i.HiKAKl UNIVERSITY OF CAFJFORNIA DC sot illi ml ii I A A 000 686 100