r , ECCLESIASfrCAL LAW OF THE djluirtlt 0| O^nulantl BY SIR ROBERT PHILLIMORE, D.C.L.. OFFICIAL PRINCIPAL OF THE ARCHES COURT OF CAKTERBURT; MEMBER OF HER MAJESTY'S MOST HONORABLE PRIVT COUNCIL. "Episcopatus unus, cujus a singulis in solidum pars tenetur."— Z)). For, anciently, the temporal courts -would not usually burn the offender without a sentence from a provincial synod (9). _ Tower of the It is certain that a man cannot be proceeded against at temporal \\yQ commoii law in a temporal court merely for heresy; ''^"' ■"'■ yet if in maintenance of his errors he set up conventicles and raise factions, which may tend to the disturbance of the public peace, it seems that he might have been fined and imprisoned upon an indictment at the common law (r). Also a tempox-al judge may incidentally take knowledge Avhether a tenet be heretical or not: as Avhere one was com- mitted by force of the statute of 2 Hen. 4, c. 15 (which is now repealed), for saying that he was not bound by the law of God to pay tithes to the curate; and another, for saying that though he was excommunicate before men, yet he Avas not so before God ; the temporal courts, on an haheas corpus in the first case, and an action of false im- prisonment in the other, adjudged neither of the points to be heresy within that statute ; for the king's courts will examine all things which are ordained by statute {s). But if a person be proceeded against as a heretic in the spiritual court pro salute animce, and think himself aggrieved, his proper remedy seems to be, to bring his appeal to a higher ecclesiastical court, and not to move for a prohibition fi^-om a tem])oral one, which, as it seems to be agreed, cannot regularly determine or discuss what shall be called heresy (^). IT..W punish- There is no doubt but that, at the common law, one ai'lt'. convicted of heresy, and refusing to abjure it, or falling into it again afl:er he had abjured it, might be burned by force of the writ de haretico combure?ido, v>'\iich. was grant- able out of chancery upon a certificate of such conviction ; l)ut it is said that he forfeited neither lands nor goods, because the proceedings against him were only pro salute animce. But at this day, the said Avrit de hceretico com- hurendo is abolished by the statute 29 Car. 2, c. 9 ; and all the old statutes Avhich gave a power to aiTCst or im- ]>rison persons for heresy, or introduced any forfeiture on that account, are repealed. (;;) 1 Haw. 4. (s) 1 Haw. 4. See Attormy- (ry) 1 II. H. 392. G''neral V.Pearson, 3 Meriv. 383 (r) 1 Haw. 4. —385. ^ (/) 1 Haw. 44. OFFENCES OF THE CLERGY. 1095 By 29 Car. 2, c. 9, it is enacted as follows : — Sect. 1. " The writ commonly called breve de hceretico Writ L . o . IT- said articles siastical, shall persist therein, or not revoke his error, or ghaii be de- after such revocation eftsoons affirm such untrue doctrine, prived. 00 Gibs. 353; 2 Brownl. 41; (x) Gibs. 353; 12 Rep. 44. 3 Inst. c. 5, of Heresy; 12 Rep. 93. 1()9G DISCIPLINE OF THE CHURCH. sucli mnlntaiiiino- or nffinniiifj and ])crsistino-, or sucli oft- soons afHrniiiii(j'sPioctoi- Since that time there has been the case of the King's V. Stune. Proctor V. Stone(z) ; and since that numerous other cases. In the case of the King^s Proctor v. Stone Lord Stowell said as follows : — " This offence is laid under the statute 13 Eliz. c. 12, ' for advisedly maintaining or affirming doctrines directly ' contrary or repugnant to the articles of religion.' These articles are not the Avork of a dark age (as it has been represented); they are the production of men eminent for their erudition, and attachment to the purity of true reli- gion. They were framed by the chief luminaries of the refoi'med clau'ch, with great care, in convocation, as con- taining fundamental truths deducible, in their judgment, from Scri]iture ; and the legislature has adopted and esta- blished them, as the doctrines of our churcli, down to the present time. " The purpose for which these articles were designed, is stated to be ' the avoiding the diversities of opinions, and ' the establishing of consent touching true religion.' It is quite repugnant, therefore, to this intention, and to all rational inter})retation, to contend, as we have heard this day, that the construction of the articles should be left to the private 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. It is the idlest of all conceits, that this is an obsolete act; it is in daily use, ' viridi ohserrantid,'' and as much in force as any in the whole statute book, and re]ieatedly recommended to oiu' attention by the injunctions of almost every sovereign who has held the sce])tre of tliese realms. It is no business of mine, in this place, to vindicate the policy of any legislative act, but to enforce the observance of it. I cannot omit, (i/) Whistoirs Case, publislied 199; Gibs. 1007; Brodrick & by liimself, p. 147; 1 Comvii,Kep. Freitiantle, 318. {z) \ Hagg. Consist. Rep. 424. OFFENCES OF THE CLERGY. 1097 *' however, to observe, that it is essential to the nature of every establishment, and necessary for the preservation of the interests of the laity, as well as of the clergy, that the preaching diversity of opinions shall not be fed out of the appointments of the established church; since the church itself would otherwise be overwhelmed with the variety of opinion, Avhich must, in the great mass of human character, arise out of the infirmity of our common nature. For this purpose, it has been deemed expedient to the best interests of Christianity, that there should be an appointed liturgy, to which the offices of public worship should conform ; and as to preaching, that it should be according to those doc- trines which the state has adopted, as the rational expo- sitions of the Christian faith. It is of the utmost import- ance that this system should be maintained. For what would be the state and condition of public worship, if every man was at liberty to preach, from the pulpit of the church, whatever doctrines he may think proper to hold? Miserable would be the condition of the laity if any such pretension could be maintained by the clergy. " It is said, that Scripture alone is sufficient. But though the clergy of the Church of England have been always eminently distinguished for their learning and piety, there may yet be, in such a number of persons, weak and imprudent and fanciful individuals. And what would be the condition of the church, if such person might preacli whatever doctrine he thinks proper to maintain ? As the law now is, every one goes to his parochial church, Avitli a certainty of not feeling any of his solemn opinions offended. If any person dissents, a remedy is provided by the mild and wise spirit of toleration which has prevailed in modern times, and Avliich allows that he should join himself to persons of persuasions similar to his own. But that any clergyman should assume the liberty of inculcating his own private opinions, in direct opposition to the doctrines of the established church, in a place set apart for its own public worship, is not more contrary to the nature of a national church than to all honest and rational conduct. Nor is this restraint inconsistent with Christian liberty ; for to what ]Kirpose is it directed, but to ensure, in tlie established church, that uniformity which tends to edifi- cation, leaving indi\dduals to go elsewhere according to the private persuasions they may entertain? It is, there- fore, a restraint essential to the security of the church, and it would be a gross contradiction to its fundamcjital purpose to say, that it is liable to the reproach of pcrse- P. VOL. II. 4 B 1098 DISCirLINE OF THE CHURCH. Ki>ig\), it Avas holden by the Privy Council, affirming the decision of the Court of Ai'ches, that the statute 18 Eliz. c. 12, s. 2, being eminently a penal statute, in proceeding under it against a beneficed clergyman by articles for maintaining and affirming doctrines contrary and repugnant to the Thirty- nine Articles, and in derogation and depraving of the Book of Common Prayer, it is not sufficient to plead various passages extracted from the defendant's Avork as separately, or collectively, containing doctrines contrary to the Thirty-nine Articles ; but such of the Thirty-nine Articles as it is alleged are contravened must be specifically pleaded, together Avith a specification of the unsound doc- trine or heresy Avhich the passages exti*acted are alleged to maintain. That, hoAvever, if a single distinct passage complained of contains a plain meaning Avhich can admit of no doubt, it may perhaps be sufficient to set it out and state that it is directly contrary or repugnant to such one or more of the Thirty-nine Articles as are conceived to be opposed to it. That the statute is positive in its prohibition, and for- (a) 1 Robert. 322 ; 4 Notes of Cases, 180. {h) 15 Moo. P. C. 1. OFFENCES OF THE CLERGY. 1099 bids the promulgation of any doctrine contradicting the Articles. That it is immaterial for the purposes of the statute, whether the unsound doctrines are preached or published in a book. That in this case, articles being exhibited against a clergyman by his diocesan for " ad^dsedly maintaining or affirming any doctrines contrary or repugnant to the Articles of Ileligion," it was the duty of the court to ascertain first, on the ordinary principles of construction, what is the true meanino; of the Articles alleged to be mfrmged ; secondly, what was the fair interpretation of the language used by the accused ; and, lastly, whether by his language he has or has not put forward doctrine which contradicts the Thirty-nine Articles. That the word " advisedly" in the statute is not limited in its operation to those who avowedly reject the Articles, but is used simply to show that the act complained of is the deliberate act of the accused, and not a casual expres- sion dropped inadvertently. That it is not necessary, in order to bring a beneficed clergyman within the operation of the statute, that he should have propounded any intelligible heterodox doctrine. It is sufficient if what he has propounded be directly re- pugnant to the doctrine laid down in the Articles. That, unless a clergyman convicted under the statute expressly and unreservedly revoke his errors, the court has no discretion, but must pronounce sentence of deprivation ; and that it is no part of the duty of either the promoter's counsel, or the court itself, to formulate the revocation ; such revocation must be expressly and unreservedly made by the party proceeded against. And the clerk was deprived under the statute. In the cases of Williams v. The Bishop of Salisbury " Essays and and Wilson v. Fendall (c), the "Essays and Reviews" l^e^^^ws" cases, in 1863, the Privy Council held, that the pro- ceedings being of a criminal nature, it is necessary that the accusation should be stated with precision and distinct- ness in the pleadings. The articles of charge must (1) distinctly state the opinions which the clerk has advisedly maintained, and must set forth the passages of the work in which those opinions are stated ; and (2) such articles must specify the doctrines of the church which the opinions of the clerk are alleged to contravene, and the particular Arti- (0 2 Moo., N. S. 375. 4 B 2 cases. 1100 DISCIPLINE OF THE CIIURCn. "Essays and cles of Ixellgion and tlic Formularies wliich contain such Reviews" doctrines. The accuser is for the purpose of the cliarge confined to the charges "which are included and set out in the arti- cles of charge, as the matter of accusation ; but it is com- petent to the accused party to explain from the rest of his work, from Avhence the passages libelled are extracted, the sense or meaning of any passage or word that is challenged by the accuser. "With respect to the legal tests of doctrine of the Church of England, by the application of which the Judi- cial Committee, as the Ap])ellate Court, is to try the soundness of the passages libelled, it is the province of that court, on the one hand, to ascertain the true construc- tion of the Ai'ticles of Religion and Formularies referred to in each charge, according to the legal rides for the interpretation of statutes and written instruments ; and on the other hand, to ascertain the plain grammatical meaning of the passages which are charged as being contrary to, or inconsistent "svith, the doctrines of the church. ISIatters of doctrine, in which the church has prescribed no rule, may be discussed without penal consequences; and no rule is to be ascribed to the chvu'ch which is not found expressly and distinctly stated, or which is not plainly involved in, or to be collected from the written law of the church. In the eleventh Article of Religion, it is laid down, that " we are accounted righteous before God only for the merits of our Lord and Sa^dour Jesus Christ by faith, and not for our own works or deservmgs;" but as the article was wholly silent as to the merits of Jesus Christ being- transferred to us, and asserts only that we are justified for the merits of Jesus our Saviour by faith, and by faith alone, it is not penal in a clergyman to speak of merit by transfer as a " fiction," however unseemly that Avord may be when used in connection with such a subject. In one of the articles it was charged that it was a con- tradiction of the Church of England, as laid down in the sixth and twentieth Articles of Religion, the Niccne Creed, and in the Ordination Service of Priests, to affirm that any part of the Canonical Rooks of the Old or Xew Testament, upon any subject whatever, however imconnected with religious faith or moral duty, was not Aviitten under the inspiration of the Holy Spirit ; and the tribunal held {dissentientihus the Archbishops of Canterbury and York), that the charge that every part of the Scri])tures was wi'itten under the inspiration of the Holy Spirit was not established, as it was not to be found either in the sixth OFFENCE8 OF THE CLERGY. 1101 or twentieth Articles of Religion, tlie Formnlaries, the Service for the Ordering of Priests, or the Niceiie Creed. It is not competent to a clergyman of the Church of England to teach or suggest that a hope may be enter- tained of a state of things contrary to what the church expressly teaches or declares will be the case. An article setting forth extracts of a review of a work that a clergyman of the Church of England had reviewed, charging that he had therein advisedly declared, that after this life there would be no judgment of God, awarding either eternal happiness or eternal misery, contrary to the three creeds, the absolution, the Catechism, and the burial and commination service, was holden not to be established by the passages of the work pleaded. It is not penal for a clergyman to express a hope of the ultimate pardon of the wicked. And the tribunal, reversing the judgment of the Court of Arches, dismissed the suits. In the case of Noble v. Voysey {d), in 1871, it was Nolle y. holden that in charges against a clergyman for maintain- Voysey. ing and promidgating doctrines contrary to, and incon- sistent wdth, divers of the Thirty-nine Articles of Religion, the Judicial Committee is not compelled, as in cases affect- ing the right to property, to affix a definite meaning to any given Article, where such Article is really a subject of dubious interpretation. It is, however, very different where the authority of the Articles is totally eluded, and ^ the party deliberately declares the intention of teaching doctrines contrary to them. It is not requisite in such case that the contradiction of the Articles should be a con- tradiction totidem verbis ; it is sufficient if the opinions published or promulgated be repugnant to, or inconsistent ■\Aath, their clear construction. It is not competent for any clergyman, of his own mere will, not founding himself upon any critical inquiry, but simply upon his own taste and judgment, to assert that Avhole passages of some of the canonical books arc without any avithority whatever, as being contrary to the teaching of Christ as contained in others of the canonical books. The articles of charge were for having printed, published and set forth certain volumes of sermons, in Avhich the defendant advisedly maintained and affirmed doctrines directly contrary or repugnant to, and inconsistent Avith divers of the Thirty-nine Articles of Religion and Formu- laries of the Church of England, the alleged errors being : (1) Concerning the reconciliation of God to man by the (fZ) L. R., 3 P. C. App. 357; 7 Moo. P. C, N. S. 167. 1102 DISCIPLINE OF THE CIIUKCII. Xohlr V. I 'oiiscy. Ditcher v. Detiiiton, Sheppnrd v. Bennett. Depraving Pniycr Book. Sun tiers v. Head. sacrifice or propitiation of our Lord Jesus Christ, and as to the necessity of such reconcihation ; (2) As to the in- carnate Godhead of our Lord, and the doctrine of the Holy Trinity ; (3) As to the autliority of the Scriptures or Holy A\'rit. These articles -were admitted and sus- tained. And the several errors and docti-ines so charged to have been maintained and affirmed were holden to be sufficiently proved by the incriminated passages extracted from the said semions, and set forth in the articles of charge as being respectively repugnant to and inconsistent Avith the several Articles of Keligion to Avhich they were ])leaded as contrary to and opposed, witliout reference to the Fonnularies of the Church to Avhich they were also pleaded to be repugnant and inconsistent. Sentence of de[)rivation was pronounced against the clerk, unless, Avithin a week from the delivery of the judgment, he should expressly and unreservedly retract the several er- rors in Avhich he had so offended ; which he reflised to do. The cases o? Ditcher v. Denison and SJieppard v. Ben- nett have been ah-eady mentioned (c). I "«t11 only add here that the sentence in Sheppard v. Bennett has, since the former pages Avere written, been affirmed by the Privy Council. 4. As to depraving the Book of Common Prayer. The various enactments against this offence ai'c to l)c found in 2 & 3 Edw. 6, c. 1, ss. 2, 3 ; 1 Eliz. c. 2, ss. 2, 3 ; and Canon 6 of 1603, already set forth (d). The case of Sanders v. Head (e), in 1843, was one Avhere articles against a clergyman for openly affirming and maintaining positions in derogation of and depraving the Book of Common Prayer Avere sustained. Cawdrij's Case {/), so often referred to in this book, was of this kind. Sect. 3. — Simojiy \. By the Canon LaAv. 2. By Statute 31 Eliz. c signation Bonds. 3. Piuiishable in Ecclesiastical Couii. 4. Statutes of AVilliam III. and Anne 6, and herein as to Re- 1. B}j the Canon Laiv. Simoniacus is he who makes a corrupt contract ; and simoniace promotiis is he who is promoted upon such con- tract, although he Avas not priAy to it himself. (c) Pp. 689—693, supra. \d) Vide supra, pp. 957, 1077. (f) 3 Cart. Eccl. Rep. 45 ; 2 Notes of Ca^es, 355. (/) 5Co. 1. OFFENCES OF THE CLERGY. 1103 According to tlie canon law, the most general division of simony is into (g), 1 . Mental ; 2. Conventional ; 3. Heal. The first being where the advantage stipulated for is fliture, the latter where it precedes the appointment to the benefice. The following sketch of the origin of simony and of the Judgment in penalties incident to it under the canon laAv, is taken fi-om JJeanof Dr. Phillim ore's very learned judgment in the case of The ^' * ^'^^^^ Deem of York (h). " It deduced its appellation from the rebuke given by the Apostle St. Peter to the indi^-idual whose name it has stamped Avith infamy, and rendered execrable to posterity, for his attempt to l:)arter money for spiritual gifts. ' Let thy money perish ^vith thee, because thou hast thought that the gift of God might be purchased with money'(2). " Accordingly, from the very commencement of the Christian era simony has been stigmatized as the greatest of offences, denounced as such by all the memorable councils of the church, and treated in the body of the canon law as a crime in comparison of which all other crimes sink into insignificance, — ]J7'o nildlo cEstimanda sunt. " Simony was prohibited in one shape by the second canon of the Council of Chalcedon, in another by the third Council of Lateran (1179), and by all the expounders of the canon law who flourished between these periods, which I mention the rather because these councils and the fourtli Council of Lateran (1215) have fi-equently been recog- nized by the temporal courts as forming an integral part of the ecclesiastical laws of England. " It is very true, that by the Council of Chalcedon the sale of holy orders and of inferior oflSces is specified as the object of condemnation and punishment ; in the early period of Christianity simony was necessarily limited to these objects — the teachers of the Gospel were poor and incapable of possessing benefices ; for it was not till a much later peiiod that the Church of Christ Avas admitted to have a place in the Collegia licita of the empire. " But it by no means follows that, because, by the ancient canons of the church, simony is more especially designated in connection mth the ])urchase and sale of lioly orders, whereas in the canons of the later ages little mention is heard of this, and they are whoUy directed {(j) Diet, de Droit Canonique, of Queen's Bench : but the ques- par Durand de Maillane, torn. iv. tion of simony, as will be seen p. 503. below, was not raised before that (/() Tliisjudgmentwasthe sub- court, ject of a prohibition by the Court {i) See 3 Inst. 153. 1104: DISCIPLINE OF THE CllUKCII. r.v tlif canon " against simony in the collation and ]>rovision of bcnc- ^='^^- fices: — that therefore tlie clnn-ch attaches a different no- .imi-nicnt in fjon to siniony now from that wliich the canons ap])Hed to York's case ^^' ^^' thought tlic crime of simony more odious then than she does at tliis day. The view of the ancients and mo- derns lias been invariably the same, and that the former have principally inveighed against simony of the one de- sciiption, the latter against simony of the other description, arises not from any different view taken by the church as to the nature of the offence, but fi'om the change of dis- cipline which change of times and inamicrs has rendered necessary. " ' Semper enim ecclesia3 scopus in condemnatione tTU'])is criminis fiiit, ut omnis in electione ministrorum ecclesiaa caveretur venalitas, nee in electione illorum munera sed merita attenderentur. Quod nt obtinerctur prioribus ec- clesiic sreculis, prascipne invigilandum fiiit ut a sacris ordinibus omnis venalitas arceretnr : posterioribus vere tcmporibus non tam contra simoniacas ordinationes, quam simoniacas beneficiorum provisiones agendum fuit : utpote quod jam priores raras — posteriores vere frequentiores, nee minus perniciosfE, evasissent ob mutatam lapsu temporis disciplinam.' " Alexander II., who occu])ied the pa]ml chair in the middle of the eleventh century, a]:)]ilied the provisions of the second canon of the Coimcil of Chalcedon to those who trafhcked in the purchase and sale of benefices, and his epistle to the clergy and people of Lucca is to be found in the body of the canon law in the Ejnstles of Gratian(A). " ' Si quis divinorum pni^ceptorum et animarum salutis immemor, bencficium ecclesia) miqua cupiditate ductus vendere A^el emere temerario ausu pra^sumpserit, sicut in Chalcedonensi Consilio definitum est, gradus sui periculo eum subjacere decernimus, nee ministrare possit ecclesise quam pecunia venalem fieri concupivit.' " Coelestus II., wlio was pope in the tAvelfth century, lays down the law in these words : ' Si quis in ecclesia ordinationem vel promotionem per pecuniam acquisiverit, acquisita prorsus careat dignitate.' " And in the Extravagantes(/) we find : ' Qui dignitates ccclesiasticas simoniace acquisiverit — illis sit ipso jure pri- vatus et in futunma inhabilis ad eas et quamvis alias obti- nendas.' " And again : ' Qui (juomodolibet simoniam commiserit dando vel rcci])iendo ordines vel beneficiorum prassenta- tiones excommunicatus habeatur.' (k) X. Causa- 1, qu. 3, c. 9. (/) Extr. Pauli 2. OFFENCES OF THE CLERGY. 1105 " The eighth article of the third (?«) Council of Lateran forbids even the gift or promise of the next presentation to any ecclesiastical benefice. It is headed thus : ' Ne ec- clesiastica beneficia alicui promittantur antequam vaceut.' And then proceeds to enact : ' Nulla ecclesiastica ministeria sen etiam beneficia, vel ecclesias, alicui tribuantnr seu pro- mittantur antequam vacent.' Words express against any promise whatsoever connected with the expectation of a vacancy. " The third ( 71 ) title of the fifth book of the Decretals is devoted to the subject of simony. The commentator in the gloss introduces the subject by stating, that ha\ang dealt with accusers and calumniators, it remains to look at the crimes with which persons may be charged, amongst Avhich simony obtains the first place. The first chapter is headed, ' De simonia, et ne aliquid pro spiritualibus exigatur vel promittatur.' " And Lancelottus, the most concise and perspicuous of commentators, in discussing the text, gives tliis defini- tion : ' Simonia nihil aliud est quam studiosa voluntas sive cupiditas emendi vel vendendi spirituaha vel spiritualibus annexa'(o). " And again : ' Contrahitur ergo simonia cum quis sacra quodammodo in commercium deducit.' And in another passage : ' Simonia est dare pecuniam pro vicariatu vel alia administratione rerum spirituaHum.' " The principles which have governed these decisions of the Catholic Church (I mean the Cluu'ch of Christ) have always been ' Gratis accepistis, gratis date.' And the only point to be ascertained has been ' num quovis modo per temporalia ad canonicatum perveniatur, id solum sufficere judicans ut non gratis et per consequens simoniace pervenire censeatur.' And again : ' Impudentissimum proinde prsetextum detestamur, qui de solo proventu rcque temporaria canonicatus se pacisci, cum ea spiritualia tarn arcto sit annexa vinculo ut non magis ab ea develli queat quam in homine vivo manente corpus a sua anima.' " It is clear that the purchase or sale of the reversion of a benefice — for whether a benefice or a dignity is imma- terial — was simoniacal ; because, to use the language of an eminent canonist, ' cum enim exccranda simonia sit episco- patinn veudi, similiter a^stimandum de ceteris beneficils, qua; veluti membra et portiones qui^dam sunt episcopatus.' " It may be ]:)roved, also, by abundant citations from the canon law, that even the purchase of the reversion of {m) A.D. 1179. (?0 Lib. 5, tit. 3, c. 749. (o) Tnstit. Can. 1. 3, t. 3. 1106 DISCIPLINE OF THE CILUliClI. By the canon law. Judgment in Dean of Yoi-k's case. " a benefice by a father, thougli the son was kept In Igno- rance of it, was simoniacal on the part of the son ( p ). " Authorities upon this subject might be muUijiHcd ad injiiiitum ; but I woukl especially refer to the Commen- taries of Van Espcn (rj) on this head, which will be found in his seven chapters JDe simonid circa benejicia, as well on accoimt of the deservedly high reputation of the author as of the learned industry with which he has discussed and exhausted all that can be brought to bear on this subject. I would refer also to the Vetus et Nova Ecclcsice. Disci- plina of Thomassin(r). " Tlie question of simony, and the o])inions of the Gal- ilean Church respecting it, are also ably treated in the excellent and useful work of Durand de Maillane (.5), and in the well laiown Dictionaiy of Denisart (^) : both the one and the other establish and confirm the doctrine which I have laid down. " Throughout the whole body of the canon law, whether Ave look to the text or to the commentators, the technical distinctions between immediate and reversionary possession are unknown. The prohibition is distinct and explicit, and is unequivocally opposed to all traffic of any description concerning ' spiritualia, vel spiritualibus annexa.' " No fiict can be better established than that the Church of England, in her transition from the errors of Popeiy to the purer doctrines of the reformed religion, retained much of the discipline of the Roman Catholic Church, and a})0ve all, that she retained inviolate all the laws which had been (/)) An anecdote is related of Manguin, Bishop of Nismes, ■who appeared at tlie Council of Kheims, in 1094, atwliich Leo IX. presided in person, and confessed that his bishopric had been pur- chased for him by his parents se taincn ignorantc, and stated that lie was ready to resign it in the liands of the pope and council, as he preferred surrendering the functions to retaining it at the hazard of his soul, and laid his crozier at the feet of the pope : but as tlie simony had been com- mitted without his privity or con- sent, he was required to take his oath of the fact ; another crozier ■was put into his hands, and he was reinstated in his episcopal functions. So where a prebendary disco- vered that his father had pur- chased his stall for him when in his minority, he being ignorant of the fact, on arriving at years of discretion he resigned it into the hands of the superior of the convent. The chapter re-elected him, but placed liira last in the choir: he ajipealed to tlie pontitT (Clement III.) to be reinstated in his old place, ■who enjoined him to be content, adding, ratione prbnoi recejitinni'y nihil audcas in ipsa ecclesid vindicare. {q) Van Espen, Juris Univ. Eccles. pars 2, tit. 3. (r) Thomassin, vol. iii. (fol. edit.), published at Leyden, 1705. (•s) Dictionnaire de Droit Ca- nonique,par Durand de Maillane, tom. iv. p. 503. (/) Denisart, vol. iii. OFFENCES OF THE CLERGY. 1107 " SO long inculcated by tlie Gregorian Code and the cano- nical jurists against simonj. Simony abounded in the middle ages, and laws were accumulated on laws to repress and coerce it ; happily with us the crime has been less pre- valent : but still the ancient laws are the same, they have undergone no change, they are still a part and parcel of the ecclesiastical jurisprudence of England. The third Council of Lateran {u) is clear and express, and this Council of Lateran, as weU as the fourth (.r), is embodied in our laws. " Lyndwood(y), our oa\ti canonist, whose authority is unquestionable, lays it down in his Pro\dncials, — under the head of JVe quis Ecclesiam nomine dotalitatis trans- ferat, vel pro prcBsentatione aliquid accijnat, — ' Nulli liceat ecclesiam nomine dotalitatis ad aliquem transferre, vel pro prsesentatione alicujus persons pecuniam, vel aliquod aliud emolumentum, pacto interveniente, recipere. Quod si quis fecerit, et in jure convictus vel confessus fiierit, ipsum, tarn regia quam nostra freti auctoritate, patronatu ejusdem ecclesifB in perpetuum privari volumus.' " And Ayhffe thus defines simony: — ' Simony, accord- ing to the canonists, is defined to be a deliberate act, or a premeditated Avill and desire of selling such things as are spiritual, or of anything annexed unto spii'ituals, by giving something of a temporal nature for the purchase thereof; or in other terms it is defined to be a commutation of a thing spiritual or annexed unto spirituals, by giving some- tliing that is temporal.' " By the Injunctions (r) published successively by Edw. VI. in 1547, and by Queen Elizabeth in 1559, it is thus provided : ' To avoid the detestable sin of simony, because buying and selling of benefices is execrable before God, therefore all such persons as buy any benefices or come to them by fraud and deceit shall be deprived thereof and made incapable at any time after to receive any spiritual preferment, and such as sell them or by any colour bestow them for their own gain and profit shall lose their right and title to the patronage.' Afterwards in the Constitutions and Canons Ecclesiastical, agreed upon in the S}Tiod of London in 1603, and confirmed by the king's authority under the great seal of England — canons not in any way binding on the laity, but obliga- tory on the clei'gy — the fortieth of these canons has an {u) A.D. 1179. 107, 281; Degge, p. 1, c. 5. (ic) A.D. 1215. (z) See also Keformatio Legum, {y) Lib. V. tit. 7; see too pp. f. 29, 6. 1108 DISCIPLINE OF THE CIIUKCII. "essential and iinmcdiatc bearing on tlic ])oint at issue. No one who is at all conversant with the legal writings and commentaries of the canonists, can read this fortieth canon without being convinced that it is deeply imbued "witli the soundest princij)les of the canon law on the sub- ject of simony ; and as it is universally binding on the clergy, and professes to expound the discipline of the Church of England on this point, it becomes the bounden duty of every ecclesiastical jurisdiction, however consti- tuted, to give force to the due execution of this law to the fullest effect "(«). The oath By Can. 40 of 1603, "To avoid the detestable sin of bv^Canon'w"^ simony, because buying and selling of spiritual and eccle- siastical functions, offices, promotions, dignities and liv- ings is execrable before God, therefore the archbishop and all and every bishop or bishops, or any other person or j)ersons having authority to admit, institute, collate, instal, or to confirm the election of any archbishop, bishop, or other person or persons, to any spiritual or ecclesiastical function, dignity, promotion, title, office, jurisdiction, place, or benefice vaih cure, or without cure, or to any ecclesiastical living whatsoever, shall before every such admission, institution, collation, installation or confirma- tion of election, respectively minister to every person hereafter to be admitted, instituted, collated, installed or confirmed, in or to any archbishopric, bishopric, or other spiritual or ecclesiastical function, dignity, promotion, title, office, jurisdiction, place, or benefice Avith cure or without cure, or in or to any ecclesiastical living Avhatsoever, this oath in manner and form following, the same to be taken by every one whom it concerneth, in his own person, and not by a proctor : — " I, JV. JV., do swear, that I have made no simoiiiacal payment, contract, or promise, directly or indirectly , by myself, or by any other to my knowledye or with my con- sent, to any person or persons ichatsoever,for or concern- ing the procuring and obtaining of this ecclesiastical dignity, place, -preferment, office, or living [respectively and particularly naming the same, whereunto he is to be admitted, instituted, collated, installed or confirmed], nor will at any time hereafter perform or satisfy any such kind of payment, contract or promise made by any other (a) Dran nf York's cdfte, 27 — that the general ecclesiastical law 36. publisherl 1841. See also is rrnt affected by the statute law section 8 of 31 Eliz. c. 6, to show on this subject. OFFENCES OF THE CLERGY. 1109 without my knoicledge or consent. So help me God through Jesus Christ ^ And this oath, whether interpreted by the plain tenoiir of it, or according to the language of former oaths, or the notions of the catholic church concerning simonj, is against all promises whatsoever (Z*). Therefore, though a person comes not within the statute of 31 Eliz. c. 6, hereafter following, bj promising money, reward, gift, projit, or benefit, yet he becomes guilty of perjury if he takes this oath after any promise of what kind soever (c). By 28 & 29 Vict, c. 122, s. 2, a declaration against Declaration simony was substitvited for this oath, and a new Canon substituted for was passed by Convocation substantially the same as the °^ " old one, save as to the declaration in lieu of the oath (//). In the case of Rex v. Lewis {e), in 4 Geo. 1, an infor- Case of Rex mation was moved for against a clerg^^man for perjury at ^- Lewis. his admission to a living, upon an affidavit that the pre- sentation was simoniacal. But the court refused to gi'ant it till he had been convicted of the simony. To a declaration by A., an incoming, against B., an Case of outgoing incumbent, for dilapidations to the rectory house ^^^«^^"' ^• and premises, B. pleaded that A., being rector of C, and B. incumbent of D., it was agreed between them, with the consent of their respective patrons and diocesans, that they should exchange their respective livings, and " that A. should not call upon B. to pay for the repairs in the declaration mentioned, or for any or either of them :" — the court held, upon motion for judgment non obstante veredicto on this plea, that it did not necessarily disclose a simoniacal contract : and that the coiu-t was bound to put the same construction upon the plea when brought before it on the demurrer (/). This case seems to have set at rest the doubt expressed by the court in the earlier case of Doivnes V. Craig (g). " A contract by the owner of the advowson of a rectory. Case of Sweet such owner not being the incumbent of the rectory, for the ""'■ '^^^'■^'^^'"'■ sale of the advowson, with a stipulation for the payment by him to the purchaser of interest on the purchase-money until a vacancy, is not simoniacal ; and the specific per- formance of such a contract was accordingly decreed" (A). (h) Gibs. 802. 16 Comm. Ben. 437; 17 ib. 141. (c) Ibid. {[/) 9 Mee. & Wei. 166. {d) Vide sujpra,Ca.nouatlength., (h) Sweet v. Meredltli (1862), p. 467. 3 Gitr. 310; 31 L. J., N. S. (Clia.) (e) Str. 70; vide supra, p. 1085. 817. (/) Guldham v. Edwards (1855), 1110 DTSCirLIXE OF THE CnrRCTT. By 31 Eliz. c. 6. Sitnoniacal presentations vuid. Corrupt insti- tntioD. 2. By 31 Eliz. c. G, and herein as to Resignation Bonds. By 31 Eliz. c. 6, s. 4(//), " For the avoiclino^ of simony and ooiTuption in presentations, collations and donations of and to benefices, dignities, prebends, and other livings and promotions ecclesiastical, and in admissions, institu- tions, and inductions to the same," it is enacted, that " If any person or persons, bodies politic and corporate, shall or do, for any sum of money, reward, gift, profit or benefit, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assm-ance of or for any sum of money, reward, gift, profit, or benefit what- soever, directly or indirectly, present or collate any person to 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, every such presentation, collation, gift and bestoAving, and every admission, institution, investiture and induction there- upon, shall be utterly void, fi'usti'ate, and of none effect in law ; and it shall be lawful for the queen, her heirs and successors, to present, collate unto, or give, or bestow, every such benefice, dignity, prebend and living ecclesias- tical for that one time or turn only ; and all and every person or persons, bodies politic and corporate, that shall give or take any such sum of money, reward, gift, or benefit, directly or indirectly, or that shall take or make any such promise, grant, bond, covenant, or other assur- ance, shall forfeit and lose the double value of one year's profit of every such benefice, dignity, prebend, and living ecclesiastical ; and the person so con-uptly taking, procur- ing, seeking or accepting any such benefice, dignity, pre- bend, or living, shall thereupon and from thenceforth be adjudged a disabled person in law to have or enjoy the same benefice, dignity, prebend, or li^'ing ecclesiasti- cal "(z> Sect. 5. " And if any person shall for any simi of money, reward, gift, profit, or commodity whatsoever, directly or indirectly (other than for usual and laAvful fees), or for or by reason of any promise, agreement, grant, covenant, bond or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indi- rectly, admit, institute, instal, induct, invest or place any person in or to any benefice with cure of souls, dignity, prebend, or other ecclesiastical living, every such person (//) See tlie remarks of Lord Mansfield and Wilmot, J., on the public utility of the statutes for- bidding simonv, 3 Burr. 1514. (/) See 3 ifist. 153; Smith v. Shelhourn, Hob. 1G5. OFFENCES OF THE CLERGY. 1111 SO offending shall forfeit and lose the double value of one year's profit of every such benefice, dignity, prebend, and living ecclesiastical; and thereupon, immediately from and after the investing, installation or induction thereof had, the same benefice, dignity, prebend and living eccle- siastical shall be eftsoons merely void, and the patron or person to whom the advoAvson, gift, presentation or colla- tion shall by law appertain, shall and may by virtue of this act present or collate unto, give and dispose of the same benefice, dignity, prebend, or li\dng ecclesiastical, in such sort to all intents and pru'poses, as if the party so admitted, instituted, installed, invested, inducted, or placed, had been or were naturally dead." Sect. 6. " Provided, that no title to confer or present by lapse shall accrue upon any avoidance mentioned in this act, but after six months next after notice given of such avoidance by the ordinary to the patron." Sect. 7. " And if any incumbent of any benefice with Corrupt resig- cure of sords shall corruptly resign (k) or exchange the ^I'^'tion. same, or corruptly take for or in respect of the resigning or exchanging the same, directly or indirectly, any pen- sion, sum of money, or benefice whatsoever, as well the giver as the taker of any such pension, sum of money, or other benefice corruptly, shall lose double the value of the sum so given, taken, or had ; the one moiety as well thereof, as of the forfeiture of the double value of one year's profit before mentioned, to be to the queen, and the other to him that will sue for the same in any of her ma- jesty's courts of record." Sect. 8. " Provided always, that this act, or any thing This act not therein contained, shall not in anywise extend to take *« affect away or restrain any punishment, pain or penalty limited, ^astTcal court' prescribed or inflicted by the laws ecclesiastical, for any the offences before in this act mentioned ; but that the same shall remain in force, and may be put in due execu- tion, as it might be before the making of this act ; this act or anything therein contained to the contrary thereof in anywise notwithstanding." Sect. 9. " And moreover, if any person shall receive or take any money, fee or reward, or any other profit, di- rectly or indirectly, or shall take any promise, agreement, covenant, bond, or other assurance, to receive or have any money, fee, reward, or any other profit, directly or indi- rectly, either to himself or to any other of his friends (all ordinary and lawfid fees only excepted), for or to procm-e Corrupt oriU- nation. (A-) Yovnff v.Jones,^. T. 1782, 4 Bl. Com, G2, ed. Chr. n. 8. 1112 DISCIPLINE OF THE CHURCH. 31 Eliz. c. 0. Corrupt ordi- nation. Simony is nientioued in this act. the ordaining; or making of any nnnister(/), or giving of any orders, or licence to i)reacli, lie shall lor every such offence forfeit the sum of 40?., and the ]>arty so corruptly ordained or made mliuster, or taking orders, shall forfeit the sum of 10/. ; and if at any time within seven years next after such corru])t entering into the ministry or receiving of oi'ders, he shall accc])t or take any benefice, living, or ])romotion ecclesiastical, then immediately from and after the induction, investing or installation thereof or thereunto had, the same shall he 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 ; the one moiety of all which forfeitures shall be to the queen, and the other to him that Avill sue in any of her majesty's courts of record." For avoiding of Simony. '\ — Almost all the authors who have treated of this subject, and even the learned judges in delivering their resolutions in cases of simony, have asserted that there is no Avord of simouTj in this act ; and from thence a conclusion had been drawn in favour of the ecclesiastical jurisdiction, that the temporal courts have nothing to do with simony as such, or to define what shall be deemed simony and Avhat not, but only to take cogni- zance of the particular corrupt contracts therein specified. Which consequence, although deducible perhaps from other premises, yet does not follow fi-om the aforesaid ob- servation ; for it is plain here is the word simony ; and the mistake seems to have happened from this short pre- amble being inadvertently printed at the end of the fore- going section, treating entirely of a different subject, so as to have been overlooked by the first person Avho made the observation, Avhom others have followed without examina- tion. Donations.'] — For the like reason only (as it seems) a doubt was made in the case of Baioderock v. Mack- allar(m), in 2 Car. 1, whether this statute extends to donatives. If any Person or Perso7is.'] — If one who has no right, present by usurpation, and does it by reason of any cor- ru]it contract or agreement, that presentation and the induction thereupon are hereby void ; for this statute extends to all patrons, as well by wrong as by right. In like manner, if when a church is void, the void turn is purchased, although the grant of a void turn, as being (J) See too Kircudbright v. Kircudbright, 8 Ve.s- 53. (m) Cro. Car. 330. OFFENCES OF THE CLERGY. 1113 a thing in action, is of itself void, and the pnrchaser's presentee comes in quasi per usurpationem; yet because it is by means of a simoniacal contract, it is as much simony as if the grant had not been void (w). That the sale of an advowson or of a next presentation, Sale of next the church being void, is simoniacal, is a confirmed maxim Pi"°sentation or of the common law (o). If a benefice be sold while an church be'in"- action is pending for removing the clerk of a person who void. has usurped the right of patronage, and such action be successful, the sale is simoniacal, for the church was never full of the clerk of the usurper (/j). And it was holden by the Exchequer Chamber, reversing the decision of the Court of Common Pleas, that the sale of the advowson of a living, the incumbency w^hereof was then voidable under the old law against pluralities, was simoniacal (17). But it is always now holden, that the sale of the next presentation of a living, the church being foil, is valid, except where a clei'gyman is the purchaser (r). It was formerly supposed that if the incumbent be in a di/ing state, the sale was simoniacal (5) ; but the decision of the Case of Fux House of Lords, in the case of Fox v. The Bishop of ^•,,^,'ff'f^^ '/ Chester, has established that such sale is valid while the cision of the incumbent is alive and the church full. Chief Justice House of Best delivered the opinion of the judges (reversing that I^oi"c^s, that as of the Court of King's Bench (f) ) in this important incumbent is case(?<): — alive, the sale " My lords, the question which your lordships have °^ ^^^ "^J^*" been pleased to put to the judges in this case is, ' Whe- [g a layman is ther, upon the whole of the matters stated or referred to a valid. in the special verdict, the right to present to the rectory or parish church of Wilmslow, upon the death of the Ive- verend Joseph Bradshaw, was by law vested in Edward Vigor Fox, the plaintiff in error.' The judges who heard the argument at your lordships' bar are unanimously of opinion, that upon the whole matters stated or referred to {n) 1 Inst. 120; 3 Inst. 153; {p) Walker v. Hammerslnj, Cro. Eliz. 789. Skin. 90. (o) Per Lord Hardwicke, in (q) Alston v. Athnj^ 7 Ad. & Greijv.HesketJi,Amh.2GS;Bisho2J El. 311 ; 6 Nev. & Man. G86. of Lincoln v. Wolfcrslan, 1 Bla. (r) Vide infra, p. 1141. ilep. 490; 2 Wils. 174; 3 Burr. (s) Cro. Eliz. G85 ; Smith v. 1512; Leak v. Covcnti-y, Cro. Eliz. Shelbourn, Hobart, 1G5; Benedict 611; from which cases it would Winchconibe v. Biahoj) of Win- appear that if a patron sells the Chester, Moor. 91G; Smith v. fee-simple of an advowson after Shelbourn, 2 W. Bla. 1052; 19 the avoidance, neither he nor his Vin. Ab. 458. vendee can have a quare imjudit. (0 2 B. & C. G35. (u) G Bing. Rep. IG— 22. P. VOL. II. , 4 C nu DISCIPLINE OF THE CIirKCn. Fox V. Bishop of Chrster. As lon>sct y. Glubb, 2 Blac. (z) Bi/7-te V. Manning^ Cro. Car. K. 1052. 425. 0>) Rex v. Bishop of Oxford, (a) Wats. c. 5; Rex v. Trussef, 7 East, 600. 1 Siderf. 329 ; 2 Keb. 204 ; Cro. (r) Cro. Car. 425 ; Degge, 47. Eliz. 789 ; Comyn's Digest, title OFFENCES OF THE CLERGY. 1119 tion of the contracting party to make an innocent or praiseworthy use of a contract in its essence illegal {d). But a way was found very early to defeat the intention of this act, by gejieral bonds of resignation^ whereby the presentee obliged himself to resign and void the benefice, within a certain time after warning to be given to him, or else indefinitely, whenever the patron should require it (e). And these bonds have been allowed both in law and Pede v. Enrl equity : thus in the case of Peele v. The Earl of Carlisle, "f Carlidc. in 6 Geo. 1, in the King's Bench (./"), in an action of debt upon a bond, conditioned to resign a benefice, the court refused to let the defendant's counsel argue the validity of such bonds, they having been so often established even in a court of equity ; and that also, where the condition is general, and not barely to resign to a particular person. So in 9 Geo. 1, in Chancery, Peele v. Capel {c/). Capel Pcele v. Caiiel. on presenting Peele to a living, took a bond from him to resign when the patron's nephew came of age, for whom the living was designed. When the nephew was of age, instead of requiring a resignation, it was agreed between them all, that Peele should continue to hold the living, paying 30/. a year to the nephew. Peele makes the pay- ment for seven years, but refusing to pay any more, the patron puts the bond in suit ; and then Peele comes into this court for an injunction, and to have back his 30/. a year. On hearing, the Lord Chancellor granted the in- junction, not (as he said) upon account of any defect in the bond itself, which he held good, but on account of the ill use that had been made of it ; and as to the money, it being paid upon a simoniacal contract, he left the plaintiflT to go to law for it. So in the case of Drtrston v. Sandys, in 1686 {h), the Dinsfon v. defendant, upon his presenting the plaintiff to a parsonage, '^^""Z/*'- took a bond of him to resign : which (as the reporter says) though in itself lawful, yet the patron making an ill use of it, viz. to prevent the incumbent from demanding tithes in kind, the court awarded a perpetual injunction against the bond. And in the case of Hesketh v. Grey, in the King's Bench, Hrsheth v. in 28 Geo. 2, which was a case out of Chancery : — Debt (^'"''i/- upon a bond. Upon oyer of the condition, it appeared that the obligor had been presented to the living of Stain- ing by the obligee, and had agreed to deliver it up into the hands of the ordinary, within three months after the id) 2 B. & C. G59. {q) Str. 534. (e) Gibs. 799, 800. (h) 1 Vera. 411. (/) Str. 227. 1 120 DISCIPLINE OF THE CHURCH. Rtji,L,aiation expiration of five years, at the request of the plaintiff, lils "^'^' heirs or assigns, or upon proper notice in writing, so that cfrcT ^ ^ "^^^' presentation might be made. And after this recital of the agreement, tlie condition was, that if the defendant did deliver up into the hands of the ordinary the said living, so as that the same might become void, then the obligation to be void. The defendant pleaded, that he did offer to resign absolutely the living, and that he delivered the resignation to the ordinary that he might accept the same, and the plaintiff make a new presentation, but that the ordinary refused to accept it. He pleaded further, that the agreement was corrupt ; and that the bond was taken to keep the defendant in awe, and therefore also corrupt and void. Ryder, Chief Justice, delivered the resolution of the court : " The averring in the plea, that the agree- ment was corrupt, will not make it so ; but it should set forth what sort of corruption, that the court may judge Avhether simoniacal or not. As to the point, whether a general bond of resignation is good, we are all of opinion it is. It was determined in the case of Lord Carlisle v. Peele. But every simoniacal contract is void, ^vhere it is secured only by promise. Otherwise it is when a bond is given for the performance of such a contract, Avhen the condition does not express the agreement, but is only a condition for payment of money, because Ave cannot go out of the written condition to vacate the obligation, and also because a specialty does not want a consideration to support it, as a promise depending only upon simple contract does. It has been objected, that these kinds of bonds, when the contract ajjpears upon the face of the condition to be for a general resignation upon request, are void : indeed, it does look so ; but the law is otherwise. And as to the other ol)jection, Ave are all of opinion that the plea in bar is bad, because it is not aA^erred that the bishop has accepted this resignation, and for these reasons: 1. Because, Avithout the acceptance of the ordinary, the resignation is not com- plete, and the patron can haA^e no benefit of such a resig- nation. 2. Because the defendant lias undertaken for the acceptance of the bishop, as that is necessary to make a complete resignation, Avhich he has by the condition of his bond agreed to do. 3. Because the plea does not contain a sufficient excuse for the bishop's non-acceptance of the resignation ; for the defendant lias undertaken that the bishop shall do it, or if he does not he Avill make a satis- faction by paying money or the like to the party who is injured thereby ; and this is reasonable, and is the laAv in such cases, when the obligor undertakes for the act of a OFFENCES OF THE CLERGY. 1121 *' stranger. The ordinary is a judicial officer, and is intrusted Ordinary jnrti- mtli a judicial power to accept or refiise resignations as he ^^^°^ to^accept thinks proper." And judgment was given for the plaintiff, and refuse Grey afterwards applied to the Court of Chancery for resignation. an injunction. The proceedings are thus report ed (/) : Plaintiff was presented to the living of Steyning by the defendant, and previous thereto gave a general bond of resignation after the end of six years, on tlu'ee months' request : action sued at law, and judgment recovered on the bond. Bill by plaintiff for an injunction, and uiter alia for a discovery whether defendant had not sold the advowson since the end of the six years, with a promise of procimng an immediate resignation. Defendant demurred to the discovery, as tending to subject him to the penalties of the statute against simony. Lord Hardwicke, C, Avas of opinion that the sale of an advowson diu'ing a vacancy is not within the statute of simony as sale of the next pre- sentation is (^) ; but it is void by the common law. These sorts of bonds are held good at law, and so they are in equity, unless an ill use is attempted to be made of them, in which case this court wiU interfere (Z). The question then is, whether the sale of his advowson under these cir- cumstances, attended A\dth an immediate resignation, is an abuse ? It seems to be an evasion of the statute : perhaps if more money had been given by reason of the vacancy, it might be within the statute. It desires discovery ; and he overruled the demurrer. It Avas suggested in the bill, and made a defence at law, that the bishop had refused to accept the resignation. His lordship approved the con- duct of the bishop in case he was informed the advowson was sold to be attended with an immediate resignation. And he also expressed himself of the same opinion with the judges in the King's Bench, that the bishop's refusal to accept the resignation was no excuse for the incumbent's not resigning ; for that he had undertaken to resign, Avliich implies both resignation and acceptance, without which the resignation is not complete (m). In the case of The Bishoj) of London v. Fftjtche, in Ffytehe's 1780, the rectory of the parish church of Woodham "Walter case, 1780. in Essex, in the diocese of London, becoming vacant, Mr. Ffytche presented his clerk, the Reverend John Eyre, to the bishop for institution. The bishop being informed that the said John Eyre had given his patron a bond in a large penalty to resign the said rectoiy at any time upon {i) Grey v. Hesketh, Ambler, 268. ik) See Cro. Eliz. 788; Moore, 914. (0 1 Vern. 411. (m) Lamb's case, 5 Co. 23. 1122 DlSCirLINE or THE CIIUKCH. Resignation bonds. F^ytche's case. his request, and the said John Eyre acknowledging that he had given such a bond, the bishop refused to institute him to the living. AVlicrcupou iNIr. Ffytclie ))rouglit a qnare impedit (n) against the l^ishop in the Court of Common Pleas, and obtained judgment against him. Upon which the bishop appealed to the Court of King's Bench, and that court also gave judgment in affirmance of the judgment in the Court of Common Pleas. Upon this the bishop appealed to the House of Lords; Avhere, upon debate, the lords ordered several questions to be put to the judges ; who differing in opinion, they were directed to deliver their opinions seriatim, with their reasons. The questions were twelve in number ; but divers of them going only to matter of form, the true substantial inquiry was, whether an agree- ment made between an incumbent and patron, whereby the incumbent undertakes to avoid the benefice at the re- quest jof the patron, be not an agreement for a benefit to the said patron within the statute of 31 Eliz. c. 6, so as by reason of such agreement such presentation shall be void ? The case is memorable, both in a historical and a legal point of view. It was the last time in which the bishops spoke and voted as judges in the House of Peers ; and their votes, Avith the aid of Lord Thurlow, reversed by a bare majority the sentences of the Courts in AVestminster Hall. Nevertheless this judgment has been approved of bv all laA\Tei*s of repute since it Avas delivered. Lord Thurlow (speaking last) argued at large against the validity of these bonds, and among other particidars obsen^ed, that one thing which struck him Avas, that ever since the establishment of the Church of England, this ecclesiastical office Avas an office foi' life. It is not com- petent to the bishop to give it for any less time than for life. And it ncAer Avas competent to a bishop of any European Cluu-ch that ever lie heard of (and he had made inquiries) to give it for any less estate than an estate for life. The incumbent therefore derives entirely under and from the bishop an estate for life, grounded upon the ori- ginal constitution of the office, and consequently invariable (li) Upon this quare impedit the bisliop filed a bill to discover whether the clerk presented to him by Mr. Ft'ytche had not given a general bond of resignation, in order to set up that bond as a de- fence at \»yf for having refused him institution. To this bill the defendant demurred; 1st, on ac- count of the legality of such bond; 2nd, that the discovery was im- material ; but the demurrer AA'as overruled. 1 Bro. 96. OFFENCES OF THE CLEliGY. 1123 by law. If that be tlie constitution of the office, by what rule or principle can it be justified at common law, that such an officer should give a bond to his patron in order to hold the living for a less terra than for life. In the argument of this cause, a question was asked, with respect to a bond given by a judge, to resign his office of judge : what was the answer ? The bond would be given to the king ; and if given to the king, it would be void, because it would render the judges dependent upon the king, in- stead of being independent, as the statute of King William expresses it, quamdiu se bene gesserint. A blaster in Chancery is an officer appointed for life : suppose the Chan- cellor has the appointment of it ; suppose such Master gives a bond to resign when called upon, would that bond be good at common law ? No ; because it is not only con- trar}^ to the constitution of his office, but because the public has an interest in the independence of that officer, as being appointed for life, and a public law officer ; his place is independent, it is whilst he behaves himself well in that office ; if he is an officer for life, how can any private man whatsoever, because it is his province to aj)point him, take upon him to render that officer's situation such as the laAv said it should not be. And in the conclusion he moved, that the judgments of the Courts of Common Pleas and King's Bench in this cause be reversed. Which was de- termined accordingly, upon a division, nineteen against eighteen (o). One of the questions proposed to the judges Avas, whether the ordinary is bound to accept a resignation ? To Avhich the answer of most of them was, that this being an entire new case, and not made a question of in the courts below, nor ever argued at their lordshi])s' bar, they begged lea^e for the present to decline answering it {])). Since this case, a bond given to the patron by an incum- Resignation bent on presentation to reside on the living, or to resign Ijontis good m to the ordinary, if he did not return to it within one month stances. after notice, and also not to commit waste, was adjudged to be good ; for the condition was not, as in Ffytche's case, to secure an unqualified resignation, but to enforce the performance of moral, legal, and religious duties (5'). And in a subsequent case, the condition of a bond appearing to be to reside, to keep the buildings on the living in repaii', (o) The case was printed by T. Phillimore's edition of Burn, Cunningham, Esq. The speeches title " Simony." of the judges and of the Bps. of (p) Vide supra, p. 520. Salisbur}', Llandaft' and Bangor (5) Bagshmv v. Bossleij, 4 T. are there given at length ; see R. 78. 1124 DISCIPLINE OF THE CHURCH. Ecsignation bonds good ill special circumstances. Particular resignation bonds. Fletcher v. Lord Sondes. A bond for resigning a living in favour of one of two brothers of the l)atron, is void. and to resign after one month's notice, in order that the patron's son, a youth of fourteen years of age, might be ])r6sented to the benefice, it Avas declared by the Court of King's Bench to be legal, without argument ; this case not being precisely similar to Ffytche's, and the court under- standing that iioth jiarties intended to appeal to the House of Lords (r). But the case does not appear to have gone further. Yet if the bond is general for resignation, some special reason must be shown to require a resignation, or the Court of Chancery will not suffer it to be put in suit : for otherwise, simony would be committed without the possibility of proof or punishment (s). The decision in Ffytche's case was however only consi- dered to have established the illegality of general resig- nation bonds, and it was still supposed that bonds in favour of specified persons were legal. This doctrine was how- ever completely overthrown by the decision of the House of Lords in Fletcher v. Sondes, which reversed that of the Court of Queen's Bench (f). All the judges, with the exception of Bayley, J., Holroyd, J., and Littledale, J., delivered their opinions at length : three (Best, C. J., Bur- rough and Gaselee, Js.) held the bond legal ; six (Abbott, C. J., Alexander, C. B., Graham, B., Parke, J., Garrow, B., Hullock, B.) and the Lord Chancellor (Eldon) held a contrary opinion. The decision of the House of Lords was delivered by the Lord Chancellor on April 9th, 1827, as follows (w) : " Having gone through all the circumstances of tlie case, he said, the question now for the considei-ation of their lordships was, whether this Avas a bond on which the party Avas entitled to sue ; and in coming to a conclusion on this subject their lordshij)S should consider themseh^es as judges in a court of justice, and his duty AA'as not to state the case on any other gi-ound than that AA'hich Avas Avarrantcd by law. He had not the slightest hesitation in saving, that before the decision given in the case of The Bishop of London v. Fft/tche, this bond Avould have been held legal, ])ut he Avas of opinion that it came Avithin the principle Avhich governed that deci.sion. It had been argued by counsel at the bar that this bond could not be con- sidered simoniacal, as the condition of the resignation Avas the presentation of a partictdar person, and that the obligee might see, and the bishop take care that on the resigna- (?•) Partridge v. ir/i/6r(l(-- ^hc deed, instrument, or Avriting by which such engage- posited within ment shall be made, given, or entered into, shall, within t\yo months i[^q spacc of two calendar months next after the date trar of the fiio- thereof, be deposited in the office of the registrar of the cese or iicculiar diocese wherein the benefice with cure of souls, dignity, jurisdirtion prebend, or li^dng ecclesiastical, for the resignation whereof benefice is such engagement shall be made, given, or entered into as situated. aforesaid, shall be locally situate, except as to such bene- fices with cure of souls, dignities, prebends, or livings ecclesiastical, as are vmder the peculiar jurisdiction of any archbishop or bishop, in Avhich case such document as aforesaid shall be deposited in the office of the registrar of that peculiar jurisdiction to which any such benefice with cure of souls, dignity, prebend, or living ecclesiastical, shall be subject ; and such registrars shall respectively de- posit and preserve the same, and shall give and sign a Deed to he certificate of such deposit thereof; and every such deed, open to inspcc- instrument or wT-iting shall be produced at all proper and tified conv to'^' "^ual liours at such registry to every person applying to be admitted as ins})ect the same ; and an office copy of each such deed, evidence. instrument, or writing, certified under the hand of the registrar (and which office copy so certified the registrar shall in all cases grant to every person who shall apply for the same), shall in all cases be admitted and allowed as Fees to regis- legal evidence thereof in all courts whatsoever ; and every ^'^^^ such registrar shall be entitled to the sum of two shillings, and no more, for so depositing as aforesaid such deed, in- strument, or Avriting, and so as aforesaid certifying such deposit thereof; and the sum of one shilling, and no more, for each search to be made for the same ; and the sum of sixpence, and no more, over and besides the stamp duty, OFFENCES OF THE CLERGY. 1129 if any, for eacli folio of seventy-two words of each sucli office copy so certified as aforesaid." Sect. 5. " Every resignation to be made in pursuance Resignation to of any such eno-ao-ement as aforesaid shall refer to the en- ^^^^^ the en- -' . »» „,.,.. , tj.,.1 gagement, and gagement m pursuance oi which it is made, ana state the name of per- nanie of the person for whose benefit it is made ; and that son for whom it shall not be lawful for the ordinary to refuse such resig- ™^^^'^' nation, unless upon good and sufficient cause to be shown for that purpose ; and that such resignation shall not be Resignation to valid or effectual, except for the purpose of allowing the ^^ "^'o"! unless person for whose benefit it shall be so made to be pre- presented sented, collated, nominated, or a]3pointed to the spiritual within six office thereby resigned, and shall be absolutely null and m^^nths. void unless such person shall be presented, collated, nomi- nated, or appointed as aforesaid within six calendar months next after notice of such resignation shall have been given to the patron or patrons of such spiritual office." Sect. 6. " Provided also, that nothing in this act shaU Nothing herein extend to any case where the presentation, collation, gift, *° extend to ,,.•; „ 1 • •, 1 ni n • 1 presentations or bestowing to or ot any such spiritual office as aioresaid made by the shall be made by the king's most excellent majesty, his king, &c. heirs or successors, in right of his crown or of his duchy of Lancaster ; or by any archbishop, bishop, or other eccle- siastical person, in right of his archbishopric, bishopric, or other ecclesiastical living, office, or dignity ; or by any other body pohtic or coqoorate, whether aggregate or sole, or by any other person or persons, in right of any office or dignity ; or by any company, or any feoffees or trustees for charitable or other public purposes ; or by any other person or persons not entitled to the patronage of such spiritual office as private property." To return to the statute 31 Eliz. c. 6. It enacts that 31 Eliz. c. 6. all presentations, &c. — Shall be utterhj void, frustrate, and of none effect in Simoniacal Laio.'\ — Before this act, they Avere only voidable by depri- presentation vation ; but hereby they are made void without any depri- ^^,|g] vation, or sentence declaratory in the ecclesiastical court, as was adjudged in the case of Hickcock v. Hickcock ; so as the parishioners may deny their tithes, and allege in the spiritual court that he came in by simony. But Hutton said, there was no remedy for the tithes which a simoniacal incumbent had actually received (.r). Parishi- oners, in an action for treble damages, may plead him no parson, because of the simony (y). But in an action for (^x) 1 Inst. 120; Gibs. 800; 1 (y) Hob. 108; March, 84. Lift. Rep. 177. P. VOL. II. ' 4 D 1130 DISCIPLINE OF THE CHURCH. of. ai Eliz. c. G. use and occn]')ation, by an incumbent afjjainst a tenant of Construction the glebe lands, the defendant cannot give evidence of a simoniacal presentation of the ])laintift" in order to avoid his title, because having occupied by the licence of his landlord, he cannot afterwards, in such an action, dispute his title (z). But here is to be observed a diversity between a ]ire- sentation or collation, made by a rightful patron and an nsiu'^^er. For in case of the rightful patron, who con-uptly presents or collates, by the express letter of this act the king shall present ; but Avhen one usurps, and coiTuptly presents or collates, there the king shall not present, but the rightfid ]iatron ; for the branch that gives the king power to present, is only intended Avhere the rightful patron is in fault ; but wdiere he is in no fault, there the corru]-)t act and wrong of the usurjier shall not prejudice his title («). And it shall be Imrfal for the Queen to present for that one Time or Turn onhj?\ — In this particular the penalty of simony which was by the canon law, Avith regard to the patron, is somewhat mitigated, the canons which had been made both at home and abroad (when they speak of this loss of patronage) making it perpetual (Z>). But because patronage in England is accounted a temporal matter, and corrupt patrons were not to be reached by the ecclesias- tical laws (which could only touch the incumbent) ; there- fore, for the more effectual discouragement of simony, by affecting the patron also, this statute was made (c). And every Person tliat shall take or make any such Promise.^ — So that the penalty (as it seems) is in- curred by such promise, though the patron should after- wards ]')resent the clerk gratis {^ct). Shall forfeit and lose the Double Value of One Yearns Profit.~\ — And this double value shall be accounted, ac- cording to the true value as the same may be lettcn, and shall be tried by a jury, and not according to the valuation in the Icing's books {e). And the Person so corruptly taking, procuring, seeking or accepting.'] — It was said by Tanficld, Chief Baron, in Calvert and Kitchyns case, that if a clerk seeks to obtain a presentation by money, although afterwards the patron {z) Cooke V. Loxslcy, 5 T. ncpotem scu quern viilt, oo pri- Rep. 4. vari debet." 8 X. 3, 18, 6. in) 3 Inst. 15.3. (r) Gibs. 801. \h) "Qui emit jus patronatfis, (c/) Ibid, lit possit prsescntare filium vel (c) 3 Inst. 154. OFFENCES OF THE CLERGY. 1131 ])resent liim gratis, yet this simoniacal attempt lias disabled him to take that benefice ( jT). Be adjudged a disabled Person in Laio, to have or enjoy the same Benefice.~\ — Many of the ancient canons of the church make deposition the punishment of simony, whether in bishops or presbyters ; others make it dejmvation. But the civil and canon law observe a difference in point of penalty between a person guilty of simony and a person simoniacally promoted. If the clerk himself is privy or party to the simony, he is to be deprived of that, and for ever disabled to accept any other ; but if he is only simo- niacally promoted by simony between two other persons, whereunto he was not privy, he is deprivable by reason of the corruption, but not disabled to take any other. In like manner, according to this statute, if the presentee was not privy to the simony, though the church is become void by the simony, yet he is not disabled from being presented again ; for a man cannot be said to be corruptly taking ^ Avho is not privy to the corrupt agreement. But a pre- sentee who Avas privy to the simony, is a person disabled to enjoy the same benefice during life, nor can the king or any other dispense with the disability (cj). In Rex V. Tlie Bishop of Oxford [h), a rule was ob- Case of i?ca; v. tained, calling on the bishop to show cause why a Avrit of ■^'^i'"^"-^ mandamus should not issue, commanding him to license the Reverend Isaac Knipe, clerk, to officiate as chaplain or curate of the church or chapel of Piddington. The chapel was endowed by deed in 1428, whereby it was pro- vided that the curate should receive all the small tithes, and be appointed by the inhabitants. In 1797 an act passed for inclosing certain lands in the township of Pid- dington, which left the right of the curate as to tithes on the same footing as it stood previous to the passing of the act. In 1801, upon a vacancy, the inhabitants appointed and presented a curate upon an agreement signed by him and the principal inhabitants, whereby he admitted that a certain sum of money therein specified was the immemorial money payment to the curate out of the lands of the town- ship. It was holden by the Court of King's Bench, that this agreement, entered into for the purpose of restraining the curate from asserting his claim to the small tithes by due course of law, and furnishing evidence against his suc- cessors, was simoniacal, and the presentation made thereon void. "In debt for penalties under 31 Eliz. c. G, for a simo- Case of Green- /• ,.v ^., ^^. vood y. Wood' (f) Gibs. 801. Co. 101. f,am {(j) Ibid.; 2 Hawk. 390; 12 (h) 7 East's Rep. GOO. 4 D 2 1132 DISCIPLINE OF THE CllUliCII. 31 Eliz. c. c. niacal contract to present, the declaration alleged a con- Construction tract l)v tlie clerk to Iniy the adv^owson if lie were presented of. to the liviiiii', and a ]n-esentati()n in ])ursuance of such con- tract, it was huldrn that proof of presentation was essential to the action, and that for that purpose it was not enough to show that the defendant jn-epared a presentation and tendered it to the bishop's secretary, Avhich never was in fact used or acted upon, the clerk having been afterwards instituted on his own petition as equitable owner of the advowson" (/). Admit, institute, install, i7idnct.~\ — The reason of this clause, Lord Coke tells ns (for, he says, he was of that parliament, and observed the proceedings therein) was to avoid hasty and precipitate admissions and institutions to the prejudice of them that had I'ight to present, by putting them to a qnare impedit ; and it is presumed that no such haste or ]^recipitation is used but for a corrupt end and pin-pose (A). Imincdiately after the Investing, Installation or Induc- tion.^ — Albeit the church is full by institution, against all but the king : yet the church becomes not void by this branch of the act until after induction (/). Shall not in anywise extend to take away or restrain any Punisliment, Pain or Penalty, limited, prescribed or injiicted by the Laics Ecclesiastical.^ — So far are the ancient ecclesiastical laws against simony, and the power of the spiritual court in the execution of those laws, from being superseded by this act, that hereby they are exjiressly confirmed. And all promises and contracts of what kind soever Ijcing forbidden, and by consequence jiunishable Ijy the laws ecclesiastical, it follows that it could not l)e the intention of the legislators to make this statute the rule and measure of simony, but only to check and restrain it in the most notonous instances (m). AVliich consideration seems fidly to wan-ant Bishop Stillingfleet's oljservation, that this statute does not al)ro- gate the ecclesiastical laws as to simony, but only enacts some particidar penalties on some more remarkable simo- niacal acts, as to benefices and orders ; but does not go about to repeal any ecclesiastical laws about simony, or to deter- mine the nature and bounds of it ; and also the observation of Archbishop A\"ake, that this act is not pi-ivative of the jurisdiction of the church, or its constitutions, but accumu- lative ; that it leaves to the chui-ch all the authority which (0 Greemvood v. Woodham (k) 3 Inst. 155. (1841), 2 Moody & Robinson, (/) Ibid. 303. (w) Gibs. 801. OFFENCES OF THE CLERGY. 1133 it had before ; only whereas before these crimes were in- qmrable and punishable by the ecclesiastical judge alone, they may now in some cases specified in this statute, be brought before the civil magistrate also {n). 3. Punishable in Ecclesiastical Court. In Baker v. Rogers (o) it was said, " It appertains to the spiritual court to determine simony, and not to this court (Common Pleas) to meddle therewith ; and in Rishy V. Wentworth (/?), the court agreed, on application for a prohibition, that simony might he more aptly tried in the spiritual court; and a consultation was awarded. And therefore still the ecclesiastical com-t may proceed against a simonist pro salute animce, and upon examina- tion and e^adence deprive him for that cause ; and this, although he was not privy to the contract ; for there are no accessories in simony. And when the spiritual court has so sentenced the simony, the temporal court ought to give credence thereto, and ought not to dispute whether it be error or not. For the temporal court cannot take cognizance of their proceedings herein, whether they be laAvful or not ; which is the reason that in the temporal court it suffices to plead a sentence out of the spiritual court briefly, without sho'wing the manner thereof, and of their proceedings {q). And though it has been said that in the spiritual court they ought not to intermeddle to divest the freehold, which is in the incumbent after in- duction ; it is true, indeed, they cannot alter the freehold, but they by their proceeding meddle only with the manner of obtaining the presentment, which by consequence only divests the fi'eehold fi'om the simonist by the dissolution of his estate, when his admission and institution are voided, and therefore may proceed ; or rather the church being made void by act of parliament, he who pretends to be in- cumbent thereof has no freehold therein : so depri\-ing of him cannot be said to divest any fi-eehold from him. However, it is best that not any of the articles to be examined upon in this case, be such as may expressly draw the right and title of the benefice into question, lest occasion be taken from thence to bring a prohibition (r). The first reported case of a proceeding in the eccle- («) Gibs. 798. (5) 2 Bulst. 182; Freera. 84. (0) Cro. Ellz. 78. (r) Wats. c. 5. 00 Ibid. 642. 1134 DISCIPLINE OF THE CHURCH. Case of Bobie V. Masters. The ecclesias- tical courts have jurisdic- tion to try questions of simony. siastical court is that of tlic office of tlic judge promoted by Dobic v. Masters (s). Pliilliniorc moved the court in the behalf of Alexander Dobic, of the parish of Saint Clement's Danes, to allow the office of the judge to be promoted against the Rev. John WhaUey ]\Iasters, rector of Chorley in Lancashire, in a cause of simony ; and to permit a citation to be taken out against him for having purchased the immediate pos- session of the vicarage of Saint Nicholas, in the castle of Carisbrook, in the Isle of Wight. He stated that there could be no doubt as to the juris- diction of the court on a question of this dcscri])tion ; for that the statute of 31 Eliz. c. 6, s])ccially guarded against taking away the right of the spiritual courts, and that subsequent to the passing of that act many dicta were to be found in books and adjudged cases which seemed to countenance the idea that the ecclesiastical court was a more suitable forum on questions of simony than the tem- poral courts. Rishij v. Wentworth(^t\ 40th of Elizabeth ; Baker v. Rogers (m) ; in both which cases prohibitions had been refused. In Boyle v. Boyle (x), Pollexfen, J., in pointing out that the spiritual courts might have jiu'isdiction in some respects over the same subject-matter as the temporal courts, used this illustration : " So, after a man is found no simonist in this coiu't, the ecclesiastical court may very well examine the same matter. No doubt exists on this point in any of the writers who have treated on the subject: (s) 3 Phill. 171. (t) Prohibition upon a sale for tithes ; and grounds his proliibi- tion upon the statute of" .31st of Elizabetli, supposing tliat tlie said parson had committed simony in coming to the parsonage ; and thereby tlie clnu'ch was void, and the tithes not ai)])ertaining unto him. And it was agreed, j^o' curiam, Glanville ahsente, that a prohibition lay not; for tlie si- mony might more aptly be tried in the spiritual court. Cro. P^liz. 642. (m) All the court held that the prohil)ition lay not : lor as to the first, although the presentee came in fjuasi per usurpationem, yet be- cause it is by means of a simoni- acal contract which is the cause thereof (for otherwise it is to be intended that he would not have permitted that presentment), it Avas held that it was as well a si- mony as if tlie grant had not been void. And, as to the second, they held it to be simony; for there be not any accessories in simony; but all are principals therein, as well as in trespass; and it apper- tains to the sjnritual court to de- termine it, and not to this court to meddle tlicrewith. And when the s])iritual court hatii so sen- tenced it, this court ought to give credence thereto, and ought not to dispute whether it be error or not, &c. &c. &c. Cro. Eliz. 789. (./■) Boijlc v. IJoyle was a case in which aproliibition Avas moved for to the spiritual court in a cause of jactitation of marriage. Com. 72. OFFENCES OF THE CLERGY. 1135 T)egge (y), Bishop Gibson {z), and the author of Wat- son's (a) Incumbent. The books of practice, too, are clear and expKcit. In Clarke's Praxis the mode of proceeding is pointed out: ' Si(b) clericus commisit simoniam in ob- tinendo beneficium ecclesiasticum, potest sive ex officio judicis, sive ad instantiam partis conveniri acjuxta sanc- tiones canonicas puniri, sic etiam laici participes ejusdem criminis.' " This passage has been adopted by Oughton to its full extent (c). Sir John Nicholl said the authorities were satisfactory with respect to the principle ; but directed a search to be made for any cases which might have been decided in the ecclesiastical courts. Phillimore cited the case of the office of the judge pro- moted by LucT/ V. The Bishop of St. David's {d), in which the delegates were unanimously of opinion that the eccle- siastical court was fully competent to try the question; and finally affirmed the sentence of the inferior court, by which the bishop had been found guilty of simony. Per curiam. — Let the citation issue. But this cause never came to a decision. In the case Case of of IVhish and Woollatt v. Hesse (clerk), in 1832, in a {[J^f^^^f criminal proceeding of a like description. Sir J. Nicholl Sesse. said, " It is a crime of no light character: not only by the ecclesiastical law, but by the common law, it is held to be a crime most highly odious, and especially in a clergyman ; since, as Lord Coke observes, it involves the crime of per- jury." "• Simony is odious in the eye of the common law." ■ (?/) The fourth paragraph (of court was composed of a full the 31st of Elizabeth) preserves commission, consisting of several the ecclesiastical jurisdiction, temporal and ecclesiastical peers, that they may proceed judicially besides common law judges and to censure the parties for their civilians. Treby, Chief Justice corruption in buying and selling of the Common Pleas ; Ward, church preferments. Wherein, Cliief Baron of the Exchequer; as should seem, the ecclesiastical and Sir Charles Hedges, Judge laws, in some circumstances, are of the Admiralty, were of the more severe than this statute ; number. for by that law, as I take it, he The suit was originally pro- that is convicted of simony is moted before the Archbishop of after incapacitated not only to Canterbury (Tennison), in a court that living, but to all other church held at Lambeth, before tlie arch- preferments : but of this be in- bishop in person, assisted by six formed by the canonist. Degge, suffragan bishops. Ld. Rayra. p. 61. 447, 539, 545, 817 ; 2 Warn. G56; {z) Gibson, 798—801, Gibs. 1006. Bishop Burnet has («) Wats. c. 5. also given an account of tlie trial (i) Clarke's Praxis, tit. 132. and deprivation of tliis bishop, (c) Oughton, vol. i. tit. 4. vol. ii. 226, and again 250. Vide (d) Deleg. Feb. 22, 1699. The su^ra, pp. 83—90. 1136 DISCIPLINE OF THE CIIURCIT. Case of *' It is the more odious because it is ever accompanied liy \\'"fi ft'^ perjury, for tlie presentee is sworn to commit no simony" (c). Jlessc. " ►^in^ony hath always, by the law of God and of the land. Jurisdiction of been accounted a great offence" (y). "And it is very ecclesiastical well known that every clergyman takes a solemn oath courts. before his diocesan that there has been nothing ])romised to be done or to be undertaken by or for him, and that he will not perform any such promise made without his know- ledge. Such is the magnitude of the ofience charged. The consequences of simony are also very serious : under the statute of Elizabeth the living is void. The presenta- tion devolves to the crown, and the guilty presentee is incapacitated, and liable to a penalty of two years' full value of the living" (17). But in this case the court hold- ing, first, that the clerk proceeded against had not been proved to be privy to having made or confirmed any simo- niacal contract, secondly, that no criminal contract had been established, dismissed him from the suit, and con- demned his prosecutor in costs. It was thought to have been intimated in the course of the suit that an ecclesias- tical court cannot proceed to deprivation in a criminal suit against a clerk who is simoniace promotus, without his privity or subsequent confirmation. Case of Tlie Dr. Watson was promoted to the see of St. David's in St'llaSs. ^^^^- Archbishop Tillotson had visited the diocese of St. David's, and in right of his visitatorial power suspended the bishop : he, notwithstanding tliis, collated ; whereupon the archbishop cited him before him: he appeared and submitted. Archbishop Tennison, on the death of TiUot- son, succeeded to the see of Canterbury. Afterwards one Lucy instituted proceedings against the bishop for simony, or, as it is expressed in the citation, propter simoniam sive crimen simoniacce pravitatis. The l)ishop was deprived, and appealed to the Delegates; pend- ing the appeal, Sir Bartholomew Shower applied for a pro- hibition on behalf of the bishop. The case is reported (A) inider the name of The Bishop of St. David's v. Lucy. The first objection raised was as to the jurisdiction ; and Holt, C. J., said, that the admitting that ])oint of juris- diction to be disputed, would be to admit the dispute of fundamentals. The covmsel then moved that the matters were of tem- poral conusance, and not conusable by the archbishop, — that the contract amounted only to a temporal contract; but the whole court was of opinion, that though it Avas a (e) 3 Inst. 156. (li) Vide supra, pp. 83—90; (/) Cro. Car. 353. Ld. Eaym. Rep. 447. {g) 3 Hagg. 693. OFFENCES OF THE CLERGY. 1137 contract it was a simouiacal contract, and then it Avill be examinable in the spiritual court ; not whether the con- tract ought to be performed or not, but to punish the party by ecclesiastical censiu'es : this was proper before the statute of Elizabeth, and it was saved by the statute. That the common law takes no notice of any simony but that which the statute enjoins ; and the statute has not defined simony in any manner as to say what shall be simony and what not by the ecclesiastical law. Another argument for the prohibition was, that the charge was for taking excessive fees, which was punish- able by indictment at common law; to this it was an- swered by the counsel, that these offences by the canon law, and in the spintual court, were simony, quodfuit concessum per totam curiam. Other objections were urged : but the court said, that the distinction which would answer almost all the objec- tions Avas this, that as to that which relates to the office of bishop, and against his duty as a bishop, the spiritual court may proceed against him to deprive him, but not punish him as for a temporal offence ; and cited Sir John Savage s case (i), and Caicdrys case{j\ where, upon a special ver- dict found, it appeared that Cawdry was dej^rived by the high commissioners for preaching against the common prayer ; and though there was other punishment appointed by the statute, and not deprivation till the second offence, yet it was held that they might well proceed by their own law, and deprive him ; it being against the duty of his office as a minister, and they having sworn to purge their body of all scandalous members. The Bishop of St. David's afterwards applied for a prohi- bition against the Delegates, which was refused. After the denial of the prohibition he petitioned the chancellor for a writ of error, which was at first granted ; but the lords of parliament were of opinion that a writ of error would not lie in the case ; and the sentence of depri- vation against the bishop was earned into execution {k). The tenor of the sentence was : " Propter diversa crimina et excessus, et prsesertim crimen simoni^ sive simoniacas pravitatis." One charge was his appointing a clergyman to a living " tvirpis lucri, et proprii qufestus causa, intervenientibus fraude, pacto, et simoniaca pravitate." And the trans- actions were described in the sentence to be " contra sacros canones et leges in Ecclesia Anglicana receptas." (0 Keilw. 194. Uc) State Trials, vol. xiv. 443. (i) 5 Co. 1. 1138 DISCIPLINE OF THE ClIUKCII. Dean of York's case. Judgment of commissary. In the year 1840, the Archbishop of York instituted a visitation of the Catliedral Church (jf York, and apjKjiiitcd Dr. PhilHniorc his commissary lor the ])uri)ose of carrying it into execution. Anion <^ other presentments made to the commissary was one chai'ging tlie dean with selling the presentations to the vicarages in his patronage. The learned commissary observed : " I wish to be clearly and distinctly understood, as hold- ing the statute law to have no possible application to this case. Simony is not an offence at common law, but by the canon law ; and till the statute of Elizabeth (/) the tem- poral courts had no cognizance of or jurisdiction over it, and now they have only such jurisdiction as the limitations of that statute, and a subsequent statute of the 12th Anne (wz), have conferred on them. " I do not sit here to expound or to interpret the law of the temjooral courts, — I have no authority to do so, — nor if I had authority to do so, am I competent to the task. I studiously and anxiously throw out of my consideration the statutes to which I have referred, passed principally with a view to make the laity, and, in some instances, the clergy, hable to temporal punishment. Again, I place equally out of consideration any law against simony Avhich may be ajiplicable to the laity. Lay patrons are ha])pily Avithout the sphere of the ecclesiastical jurisdiction ; I say happily,- because this circumstance enables me to steer clear of all questions intermixed with technicalities, and embarrassed by questions of property, which partake of no sacred character, and can have no bearing on that law which is applicable to spiritual persons alone, who hold their property in trust for the performance of holy serAaces to which the Church of England has consecrated them. This distinction between those matters which affect the clergy and laity severally, and still more the distinction between the administration of the temporal and ecclesias- tical laws, is upheld and sanctioned by the highest autho- rity, and is of the very essence of the constitutional law of this realm. It is clearly recognized by the statute of the 29 Hen. 8, c. 12, wliich passed at the dawn of the Refor- mation." The learned commissary then cited Cawdry''s case{n), in which Lord Coke, treating of the ecclesiastical laws, follows the words of this statute, the cases in Croke's Reports, ah'cady cited, and proceeded — " In the same spirit. Lord Chief Justice Holt, in the (0 31 Eliz. c. 2. {ni) 13 Anu. c. U, in "The Statutes Kcvised." {n) 5Co.l. OFFENCES OF THE CLEEGY. 1139 memorable case of The Bishop of St. DavicVs v. Liici/ (o), expounds the different operation of the ecclesiastical and temporal law, and the necessity of maintaining and up- holding each of them distinct and inviolate. " ' Simony is an offence by the canon law, of which the common law does not take notice to punish it, for there is not a word of simony in the statute (p) of Elizabeth, but of buying and selling. Then it Avould be very unjust if eccle- siastical persons might offend against the ecclesiastical duty in such instances, of which the common law cannot take notice to punish them, and yet the King's Bench should prohibit the spiritual court from inflicting punishment according to their law. The clergy are subject to a law different from that to which laymen are subject, for they are subject to obey the canons; for the convocation of the clergy may make laws to bind all the clerks, but not the lay people. And if the clergy do not conform them- selves, it will be cause of deprivation ((7). Resolved by all the judges of England. And by such authority were the canons of the year 1603 viade,ivhich make simony so great an offence. And the said canons have been always received. And many of the ancient canons are as old as any law that we have at this time.' " This chain of authorities was closed by this extract from Blackstone's Commentaries (r) : — " * Corporations, being composed of individuals subject to human frailties, are liable, as Avell as private persons, to deviate from the ends of their institution, and for that reason the law has pro- vided proper persons to visit, inquire into, and correct all irregulaiities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil, or eleemosy- nary. With regard to all ecclesiastical corporations, the ordinary is'their visitor, so constituted by the canon laics, and from them derived to ?/5."' The Court of Queen's Bench subsequently annulled this "Why annulleil judgment on the ground that the visitor had exceeded his ^y ^"^'^ °^ powers, and that he ought to have proceeded under 3 & 4 *^"^^" ^ ^^^ ' Vict. c. 86 (s). But they expressed no opinion whatever on the question of simony. It was afterwards intended to proceed de novo against the dean under the 3 & 4 Vict, c. 86, and the opinion of the attorney-general. Sir John (afterwards Lord) Campbell, was taken as to whether the dean, being a spiritual person, Avas not guilty of simony in selling the next presentation to li\angs in his gift. " I am of opinion that it avlU be proper in this case to (0) Ld. Raym. 449. (q) 2 Cro. 37. (jj) That is, not in the enacting (r) Vol. i. p. 480. part of the statute. (s) Vide infra. 1140 DISCIPLINE OF THE CIIURCII. Dean of York's case. 3 & 4 Vict. c. 113. Spiritual per- son not to sell or assign any right of patron- age. institute proceedings under 3 & 4 Vict. c. 86. I conceive that for a spiritual person to sell tlic next presentation of a living Avhicli he holds by right of his benefice, Avhether voidable or not, is simony by the canon law ; and I think that the dean's letter, coupled witli the evidence of John Singleton, makes out such a case of simony. No reason- able man can doubt that the advance of the 100/. was the consideration for the grant of the next presentation, what- ever colour one of the parties may try to give it. The presentation of Taylor was, I think, an offence within the two years, although the agreement to present might be beyond the two years. (Signed) " J. Ca^ipbell." " Temple, 21st June, 1841." These sales of presentations in T/ie Dean of YorlCs case took place before 3 & 4 Vict. c. 113, Avhicli enacts by sect. 42, " That it shall not be lawful for any spiritual person to sell or assign any patronage or presentation belonging to him by virtue of any dignity or spiritxial office held by him, and that every such sale or assignment shall be null and void to all intents and purposes" {t). After death of the person simoniacally promoted, of- fence of simony not to injure innocent clerk or patron. 4. Statutes of William III. and Anne. By 1 Will. & M. c. 16, ss. 1 and 2, "Whereas it hath often happened, that persons simoniac or simoniacally pro- moted to benefices or ecclesiastical livings, have enjoyed the benefit of such livings many years, and sometimes all their life-time, by reason of the secret caniagc of such simoniacal dealing, and after the death of such simoniac l^erson, another person, innocent of such crime, and worthy of such preferment, being presented or promoted by any other patron innocent also of that simoniacal contract, have been troubled and removed upon i)retence of lapse or othenvise, to the prejudice of the innocent patron in reversion, and of his clerk, whereby the guilty goeth away with the profit of his crime, and the innocent succeeding patron and his clerk are punished, contrary to all reason and good conscience ;" for prevention thereof it is enacted, (t) This section has been con- strued to take away the ancient " Options " of tlie archbisliop. Vide Kupra, p. 92. Special pro- vision has been made bv 9 & 10 Vict. c. 88, and 32 & 33 Vict. c. 94, ss. 12, 13, that assignments by spiritual persons of their rights oi'patronagOjin order to focilitate the formation of new parishes under the Church Building and New Parishes Acts, sliall not be liolden simoniacal or within the prohibitions of this section. By 19 & 20 Vict. c. 104, s. 21, re- strictions are placed on the sale of patronage in new parishes for thirty years. OFFENCES OF THE CLERGY. 1141 " that after tlie death of the person so simoniacally promoted, the offence or contract of simony shall, neither by way of title in pleading, or in evidence to a jury, or othermse, be alleged or pleaded to the prejudice of any other patron innocent of simony, or of his clerk by him presented or promoted, upon pretence of lapse to the crown, or to the metropolitan, or otherwise ; unless the person simoniac or simoniacally promoted, or his patron, was convicted of such offence at the common law, or in some ecclesiastical court, in the life-time of the person simoniac or simonia- cally promoted or presented." Sect. 2. " No lease really and bond fide made by any Bond fide person simoniac or simoniacally promoted to any deaneiy, l^^ses. prebend, or parsonage, or other ecclesiastical benefice or dignity, for good and valuable consideration, to any tenant or person not being privy to or having notice of such simony, shall be impeached or avoided for or by reason of such simony, but shall be good and effectual in law, the said simony notwithstanding." By 13 Anne, c. 11, s. 2, "Whereas some of the clergy A clergyman have procured preferments for themselves by bujdng eccle- ^^y °o* P'^''" siastical livings, and others have been thereby discouraged," presentation^ it is enacted, that " If any person shall, for any sum of money, reward, gift, profit, or advantage, directly or indi- rectly, or for or by reason of any promise, agreement, grant, bond, covenant or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly, in his own name or in the name of any other person, take, procure, or accept the next avoidance of or presentation to any benefice Avith cure of soids, dignity, prebend, or living ecclesiastical, and shall be presented or collated thereupon, every such presentation or collation, and every admission, institution, investiture, and induction upon the same, shall be utterly void, fi^-ustrate, and of none effect in law, and such agreement shall be deemed a simo- niacal contract, and it shall be lawful for the queen, her heirs and successors, to present or collate unto, or give or bestow every such benefice, dignity, prebend, and li\ang ecclesiastical, for that one time or turn only ; and the per- son so coiTuptly taking, procuring or accepting any such benefice, dignity, prebend or living, shall thereupon and from thenceforth be adjuged a disabled person in law to have and enjoy the same, and shall also be subject to any punishment, pain or penalty, limited, prescribed or inflicted by the laws ecclesiastical, in like manner as if such cor- rupt agreement had been made, after such benefice, dig- nity, prebend, or living ecclesiastical had become vacant ; 1142 DISCIPLINE OF THE CnURCII. Case of Lee Y. Merest. any law or statute to the contrary in any wise notwith- standing." " In a criminal suit instituted in the Court of Arches against a clerk in holy orders by the secretary to the Bishop of AVorcester, it was proved that the defendant had been guilty of simony, by reason of his having coiTuptly and simoniacally obtained presentation and institution to his "vicarage, and also of conduct unbecoming a clergyman in unlawfully threatening a certain person to publish a libel u]ion him Avitli the intent of extorting money. The coiu't founding its sentence, in respect of the offence of simony, u])on the general ecclesiastical as well as statute law, pro- nounced that the defendant was a disabled person in law to have the vicarage, and that his presentation thereto, and his admission and institution thereupon, were void and frustrate, and of no effect in law ; and having regard to all the circumstances of the case, the offence of mis- conduct as well as that of simony, it further pronounced upon him a sentence of deprivation from the ministry and from the performance of all clerical functions whatsoever in the province of Canterbury, and condemned him in the costs of the suit. And it du-ected the registrar to apprise the queen's proctor of the sentence in order that her jNIa- jesty might exercise her right of presentation to the vacant benefice given by the statute" (t). Restraints tinder 1 & 2 Vict. c. lOG. Spiritual per- sons not to take to farm for occnpation aboA'C eif^hty acres, without consent of the Idshop, and then not be- Sect. 4. — Farming and Trafficking. The restraints imposed by the law on the farming and trafficking of the clergy are now ordered and enforced under the provisions of 1 & 2 Vict. c. 106 (ii). Sect. 28. " It shall not be lawful for any spiritual person holding any cathedral ]:)referment or benefice, or any curacy or lectiu'cship, or who shall be licensed or other-wise allowed to perform the duties of any ecclesiastical office whatever, to take to farm for occujoation 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 (0 Lee V. Merest (18G0), 39 L. J., Ecel. 52. («) IJefore this, and under the general law, trafficking by bene- ficed clergymen was so illegal as to make all contracts entered into 1)}- them or by partnerships of ■which they were members void. See JJall v. FrnnJclin, 3 Mee. & W. 259. Acts have been passed witli the express object of vali- dating tliese contracts, 1 Vict, c. 10, and 4 Vict. c. 14. See, however, now, 1 & 2 Vict. c. 106, s. 31, infra. OFFENCES OF THE CLERGY. 1143 purpose of occupying or using or cultivating the same, yond seven without the permission in writing of the bishop of the years, under diocese specially given for that purpose under his hand ; per acre" 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 shall without such permission so take to farm any greater quantity of land than eighty acres, shall forfeit for every acre of land above eighty acres so taken to farm the sum of forty shillings for each year during or in which he shall so occupy, use or cultivate such land contrary to the provision aforesaid." Sect. 29. "It shall not be lawful for any spmtual person No spiritual holding any such cathedral preferment, benefice, curacy, or person bene- lectm-eship, or who shall be licensed or allowed to perform fOTmin^c^^e'ccle- such duties as aforesaid, by himself or by any other for siastical duty him or to his use, to engage in or carry on any trade or f^^^^ engage dealing for gain or profit, or to deal in any goods, wares buy to seU^ or merchandize, unless in any case in which such trading again for profit or dealing shall have been or shall be carried on by or on or gain, behalf of any number of partners exceeding the number of six, or in any case in which any trade or dealing, or any share in any trade or dealing, shall have devolved or shall devolve upon any spiritual person, or upon any other person for him or to his use, under or by virtue of any devise, bequest, inheritance, intestacy, settlement, marriage, bankruptcy, or insolvency ; but in none of the foregoing excepted cases shall it be lawful for such spiritual person to act as a director or managing partner, or to carry on such trade or dealing as aforesaid in person." Sect. 30. " Nothing herein-before contained shall sub- Not to extend iect to any penalty or forfeiture any spiritual person for *° spiritual 1 • 11 • /• 11. persons en- keeprng a school or semmary, or acting as a schoolmaster o-ao-ed in keep- er tutor or instructor, or being in any manner concerned ing schools or or engaged in giving instruction or education for profit or ?^ tutors, &c. reward, or for buying or selling or doing any other thing ^^y thing ° in relation to the management of any such school, seminaiy, done or any or employment, or to any spiritual person whatever, for the ^"J'\"S or sell- buying of any goods, wares or merchandizes, or articles of eniijloyment ; any description, which shall without fraud be bought with or to selling intent at the buying thereof to be used by the spiritual '^",^/i-^^? person buying the same for his family or in his household, bouoht for the and after the buying of any such goods, Avares or merchan- use of the dizes, or articles, selling the same ao-ain or any parts thereof [-i^^'J' or to I'll *'i 1^111 being a wlucn such person may not want or choose to keep, although nianager, &c. the same shall be sold at an advanced price beyond that in any benefit owu lands, &c. 1U4 DISCIPLINE OF THE CnURCII. or life or fire -wliich may have l)oen given for the ?ame; or for di?posin<:^ assurance so- ^^- .^,j^, hooks or other works to or hy means of any hook- in<,''niul sellino- Seller or jmblisher ; or for being a manager, director, part- cattle, &c. for ner, or shareholder in any benefit society, or fire or life tlie use of his assurance society, by -whatever name or designation such null lnnn« Uro , ii • t c ^ • society may have been constituted; or for any buying or selling again for gain or profit, of any cattle or corn or other articles necessary or convenient to be bouglit, sold, kept, or maintained by any spiritual person, or any other per- son for him or to his use, for the occupation, manuring, im- pro^ang, pasturage, or profit of any glebe, demesne lands, or other lands or hereditaments Avhich may be lawfully held and occupied, possessed or enjoyed by such s])iritual person, or any other for him or to his use ; or for selling any minerals the produce of mines situated on his own lands ; so never- theless 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" {x). Sect. 5. — Non-Residence. Sources of the The law as to residence, so far as it relates to the paro- ^^^^" chial clergy, is now also mainly governed by the statute 1 & 2 Vict. c. 106 (y). But it is expedient to preserve some notice of the previous law. It may be considered as follows: — 1. By Canon Law. 2. Privileged Persons. 3. Excuses for Non-Kesidence. By Canon law. The ancient law of the Church upon this important sul)ject, and its restoration by the Council of Trent, are thus emphatically stated by Van Espen (z) : " Nihil adeo vocationi clericali oppositum, nihil ecclesiae magis probro- sum et laicis scandalosum esse quam otiosam ac inertem clericorum vitam ratione et exjierientia compcrtum est. Ilinc jam pridem sollic'ita fuit ccclesia ne qnis in cleruni nssnmeretur nisi certo loco ascriheretur, ubi functionibus ordini suo convenientil^us occuparetur et vitam clerico dignam institueret. Disciplinam hanc canone sexto Con- (:r) It is expressly provided, bishops, vide supra, pp. Gl, G2. tliat tills act shall not affect any As to the residence of deans and powers tlie bislioj) may now have canons, vide sujpra, pp. IGl, 1G4, " by statute, canon, usage or 218. otherwise howsoever." See sec- (z) Van Espen, Jus Canon, tion 132. pt. i. t. 11, De Personis. (y) As to the residence of OFFENCES OF THE CLERGY. 1145 cilii Chalcedonensis probatam sed temporum injuria pene collapsam, restaiiratam volens Si/nodus Tridenthia inhce- rendo vestif/iis dicti concilii statiiit lit nvillus in posterum ordinatur qui illi ecclesia3 aut pio loco pro cujvis necessitate aut validitate assumitur non adscribatur iibi suis fungitur muneribus nee incertis vagetur sedibus." Sess. 23, cap. 16, De Resid. Otho. " The bishop shall provide, that in every church Residence by there shall be one resident, who shall take care of the cure ^'^^o^- of souls, and exercise himself profitably and honestly in performing divine service and administration of the sacra- ments" (a). The rule of the ancient canon law was, that if a clergy- man deserted his church or prebend wdthout just and neces- sary cause, and especially without the consent of the dio- cesan, he should be deprived. And agreeably hereunto was the practice in this realm ; for though sometimes the bishop proceeded only to sequestration or other censures of an inferior nature, yet the more frequent punishment was deprivation {h). Regularly, personal residence is required of ecclesiastical Residence by persons upon their cures ; and to that end, by the common |o^^o"'°ioii law, if he that has a benefice with cure be chosen to an office of bailiff, or beadle, or the like secular office, he may have the king's writ for his discharge (c). For the intendment of the common law is, that a clerk is resident upon his cure ; insomuch that in an action of debt brought against J. S., rector of D., the defendant pleading that he was demurrant and conversant at B. in another county, the plea was overruled ; for since the de- fendant denied not that he was rector of the church of D., he shall be deemed by law^ to be demurrant and conversant there for the cure of souls {d). The acts 21 Hen. 8, c. 13 (e), 25 Hen. 8, c. 16, 28 Hen. 8, Privileged per- sons. («) Athon, 36. See Can. 47 this statute of Henry the Eighth, of 1603. They were as follows : as to the (6) Gibs. 827. meaning of " dignity," Gibson's (c) 2 Inst. 625; and vide suj^ra, Codex, 886; Bourjhton v. GousleT/, pp. 621— 624. Cro. Eliz. 663: of "benefice," (d) Ibid. 4 T. R. 665: of "personal resi- de) 4 Co. 117. It may be use- (\ence,&c" Sands v. Pinner, Cro. ful to preserve the authorities, Eliz. 898; Gibs. 886; 13 Eliz. c. both judicial and from text 20 ; 2 Brownl. 54 ; Lord Mans- writers, cited in the edition of field's decision in Zoro v. /Z/6e/so;?, Dr. Burn (published before the Burr. 2722; WUkinson v. Clerk, enactment of 57 Geo. 3, c. 99), ib.; Garland \. Burton,^i\\ WO'd; upon the legal construction of Ze/^7i v. ^Tt?!^, 3 T. R. 362; Bull. P. VOL. II. 4 E 114G DISCIPLINE OF THE CHUKCII. Hospitality to be kept by non-resi- dents. c. 13, and 57 Geo. 3, c. 99, contained provisions for exempting from residence the chaplains of certain distin- guished persons. These acts, however, have all now been repealed. Peccham. " We do decree, that rectors who do not make personal residence in their churches, and who have no vicars, shall exhibit the grace of hospitality by their stewards according to the ability of the church, so that at least the extreme necessity of the poor parishioners be relieved ; and they Avho come there, and in their passage preach the word of God, may receive necessaiy sustenance, that the chm-ches be not justly forsaken of the preachers through the violence of want, for the workman is worthy of his meat, and no man is obliged to Avarfare at his own cost." Who do not make Personal Residence.'\ — That is, although they be licensed to non-residence by their bishops or others to Avhom it appertains. For if they be non-resi- dent without licence, they are not only bound to the ob- servance of this constitution, but otherwise may be pro- ceeded against according to law (^ ). And who have no VicarsJ] — This intimates that they who have vicars in their benefices, are excused from per- sonal residence ; and this may be well admitted, where the parish church is annexed to a prebend or dignity, for then the principal is excused by the vicar from personal residence, and the reason is, because he is bound to reside in his greater benefice. But this reason (says Lindwood) does not hold where in a church there is a rector and vicar, which cluirch does not depend on any other church, where- fore he who has such chiu'ch is not excused fr'om residence by the vicar which he has there ; nor does it make against this, if it be alleged, that such rector has not the cure of souls, but the vicar ; for habitually, and in propriety, the cure of souls is in the principal rector ; and in the vicar only, as to the exercise and effect thereof (//). Who come there, and in their passage preach the Word of Godr\ — This constitution was made by Peccham, in favour of his own brethren, the friars, who travelled under the pretence of preaching. Lindwood here bears hard upon them for sauntering up and down in the parislies where N. P. 19G: of " procuring dispen- sation at Kome or elsewhere," Gibs. 887: of "chaplains to any of the spiritual or temporal lords of parliament," Bishop Sherlock's Charge in the vear 1759, p. 9. (/) Lind. 132. {(J) Ibid. OFFENCES OF THE CLERGY. 1147 they preached, and begging the people's alms after they had received what was sufficient at the parsonage house {h). Preach the Word of God.'] — That is, if they be licensed and lawfully sent to preach {i). It may be well to mention some of the excuses for non- Excuses for residence which were holden to exempt the party alleging Bon-residence them from the penalties imposed by the 10th section of 57 Yia^c lOG Geo. 3, c. 99 : — Total want of health has been holden a sufficient excuse for an absence of twenty years {k), but the want of a parsonage-house did not excuse the incum- bent's residing out of the parish (Z), nor a sequestration upon 2l fieri facias of a benefice with cure(»2). The non- residence on one benefice under a licence from the diocesan thereof was holden not equivalent to actual residence thereon, so as to excuse the incumbent's non-residence on another benefice : therefore a bishop's retrospective certi- ficate that he woidd have granted a licence for non-resi- dence because the incumbent was performing the duties of another benefice, within two miles of which he lived by licence from another diocesan, not being allowed by the archbishop, was void, but good with the archbishop's cer- tificate, though granted after 1st July, 1814 (?^). If a clergyman who had two livings resided ^vithin one of the parishes wherein there was no house of residence, it was a sufficient residence there to exempt him without licence from the bishop from penalties for not residing on the other benefice (o). A private statute annexed the rectory of H. to the deanery of Windsor, and recited that the necessary residence on the deanery, and the dean's attend- ance on her Majesty as registrar of the Order of the Garter, would oblige him to be often absent fi-om H., and the statute compelled him to appoint a stipendiary curate constantly resident at H. ; and it appeared that this, with- out more, conferred an excuse for non-residence at H., although in the subsequent act of 43 Geo. 3, c. 84, im- posing residence on all benefices not therein excepted, this QC) Johns. Pecch. ; Lind, 133. (Jc) Scammell v. WilleU, 3 FiS-p. (i) The following cases refer 29, per J. Buller. to actions brought under 13 Eliz. (I) Wilkinson (qui tarn action) c. 20, as to leases by non-resi- v. Allott, Cowp. 429. dent incumbents:— Z)oe d. Cwp (m) Doe d. Rogers v. Hears, V. Barber, 2 T. R. 749; S. P., Doe Cowp. 129; Lofft, G02. d. Rogers v. Hears, Cowp. 129; {n) Wright v. F/amark, G LoflFt, 602 ; Frogmorton d. Flem- Taunt. 52; 1 Marsh. 3G8. ing V. Scott, 2 East, 467 ; Graham (o) Wynn v. Smithies, G Taunt. V. Peat, 1 East, 244. 198; 1 Marsh. 549. 4 e2 1148 DISCIPLINE OF THE CHURCH, Licence for non-residence. Duty of non- resident to have curate. Conditions under old law. is not cmiincrntcd as a ground of exemption or of licence (p). It seems to have been doubtful -wlietlicr a clero;yraan was ■wilfully absent from liis benefice diu'ing the time he was in custody for debt, under an arrest made while he was residing out of his parisli(ry). "Where a licence for non-residence had been obtained previously to the 14th of July, 1814, pursuant to 54 Geo. 3, c. 54, but the allowance by the archbishop required by 43 Geo. 3, c. 84, s. 20, had not been obtained till after that period, the licence, when ratified, was valid from the time Avlicn it was originally granted (r). A licence of non-residence on a benefice Avithin an arch- bishop's peculiar locally situated in another diocese, need not be registered in the registry of the diocese, but ought to be registered in the registry of the archbishop (s). A licence to an incumbent to absent himself fi'om a living may be revoked under peculiar circumstances (^). By Can. 47 of 1603, " Every beneficed man licensed by the laws of this realm, upon urgent occasions of other service, not to reside upon his benefice, shall cause his cure to be supplied by a curate that is a sufficient and licensed preacher, if the worth of the benefice will bear it. But whosoever hath two benefices shall maintain a preacher licensed in the benefice where he doth not reside, except he preach himself at both of them usually." By the old fliculty of dispensation a ]iluralist was required " in that benefice, from which he shall happen to be most absent, to preach thirteen sermons every year, and to exercise hospitality for two months yearly; and for that time, according to the fruits and profits thereof, as much as in him lieth to support and relieve the needy inhabitants of that parish, especially the poor and needy" (w). {p) Wright V. Legrjc G Taunt. 48. (7) Vaux V. Vollans, 1 Nev. & M. 307; 4 B. & Ad. 205. (r) Wright v. Lamb, 1 i\Iarsh. 392; 5 Taunt. 807; see also Wynn V. Kay, 1 Marsh. 387; 6 Taunt. 48. (s) Wynn v. Moore, 5 Taunt. 757. (0 Bagshaw v. Bonley, 4 T. R. 78. (m) Some of the loading cases of actions at common law as to non-residence arc: — Whitehead v. Wynn, 5 M. & S. 427; 2 Chit. 420; Bevan (qui tarn) v. William!^, 3 T. R. G35 ; Still v. Coleridge, Forrest, 117; Cathcart v. Hardy (in error), 2 U. & S. 534; but compare this with S. C, 5 Taunt. 2. For the practice of the com- mon law courts on this action, see Wright v. Legge, 6 Taunt. 48; Vaux v. Vollans, 4 B. & Ad. 525; 1 Nev & M. .307; Balls v. Aitwood, 1 II. Bl. 54G; Leigh v. Kent, 3 T. R. 3G2 ; Wrirjht v. Lloyd, 5 Taunt. 304 ; Wright v. Whalley, 5 Taunt. 305; Wynn V. Budd, 5 Taunt. G29. OFFENCES OF THE CLERGY. 1149 The offence of non-residence is now, under 1 & 2 Vict. Under i & 2 c. 106, restrained in three ways: — 1. By monition and ^i^t. c. 106. sequestration of the benefice, to be treated of in the follow- ing chapter, on Procedure under this Act. 2. By the in- fliction of penalties. 3. By the compulsory appointment of a curate. As to the infliction of penalties, sect. 32 provides, " That Penalties for every spiritual person holding any benefice shall keep non-residence residence on his benefice, and in the house of residence (if not^having^a*^ any) belonging thereto ; and if any such person shall, licence or ex- without any such licence or exemption as is in this act emption, unless allowed for that pui-pose, or unless he shall be resident at ^^ anoAer^"^ some other benefice of which he may be possessed, absent benefice. himself from such benefice, or from such house of residence, if any, for any period exceeding the space of three months together, or to be accounted at several times in any one year, he shall, when such absence shall exceed tlu-ee months and not exceed six months, forfeit one-third part of the annual value of the benefice from Avliich he shall so absent himself; and when such absence shall exceed six 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 annual value ; and when such absence shall have been for the whole of the year, three-fourth parts of such annual value." This statute however aRows non-residence in certain specified instances. Sect. 33. " It shall be lawful for any bishop, upon appli- Licence to cation in Aviiting by any spiritual person holding an;^ reside out of benefice within his diocese whereon there shall be no house house if unfit or no fit house of residence, by licence under his hand and seal, to be registered in the registry of the diocese, which the registrar is hereby required to do, to permit such person to reside in some fit and convenient house, although not belonging to such benefice, such house to be particu- larly described and specified in such licence, and for a certain time to be therein also specified, not exceeding the period by this act limited, and from time to time, as such bishop may think fit, to rencAv such licence ; and every such house shall be a legal house of residence for such specified time to all intents and purposes : provided always, that no such licence 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, un- less such house be within two miles of such church or chapel." 1150 DISCIPLINE OF THE CnURCII. 1 & 2 Vict. c. 106. Houses pur- chased by governors of Queen Anne's bounty to be deemed resi- dences. Vicar or per- petual curate may reside in rectory house. Privileges for temporary non-residence. Sect. 34. *' And whereas the governors of the bounty of Queen Anne have purchased, built, or procured, and may hereafter purchase, build, or jirocure, by way of bene- faction or donation to poor benefices, houses not situate Avithin the parishes or places wherein such benefices lie, but so near thereto as to be sufficiently convenient and suitable for the residence of the officiating ministers thereof; be it therefore enacted, that such houses, haidng been previously approved by the bishop of the diocese, by writing under his hand and seal duly registered in the registry of the diocese, shall be deemed the houses of residence belonging to such benefices to all intents and purposes whatsoever." Sect. 35. " In all cases of rectories ha\ang vicarages endowed or perpetual ciu'acies the residence of the vicar or perpetual curate in the rectory house of such benefice shall be deemed a legal residence to all intents and pur- poses whatever; provided that the house belonging to the vicarage or perpetual curacy be kept in proper repair to the satisfaction of the bishop of the diocese." By sect. 36, the widow of any spiritual person may con- tinue in the house of residence for two months after his decease. By sect. 37, certain persons appointed to offices before this act were made exempt from penalties for non-resi- dence. Sect. 38. " No spiritual person being dean of any cathe- di'al or collegiate church, during such time as he shall reside upon his deanery, and no spiritual person having or holding any professorship or any public readership in either of the said luiiversities, while actually resident within the precincts of the university, and reading lectures therein (provided alwa3's, that a certificate under the hand of the vice-chancellor or warden of the university, stating the fact of such residence, and of the due performance of sucli 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 thirty-first day of December in each year) ; and no spiritual person serving as cha])lain of the queen's or king's most excellent majesty, 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 liis duty as such chaplain ; and no spiritual person actually serving as chaplain of the House of Com- OFFENCES OF THE CLEEGY. 1151 mons, or as clerk of the queen's or king's closet, or as a deputy clerk thereof, "svhile any such person shall be actuallly attending and performing the functions of his office ; and no spiritual person serving as chancellor 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 exercise of his archidiaconal flmctions; or as dean or subdean, 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 private chapels at Windsor or elsewhere, or as preacher in any of the Inns of Court, or at the Rolls, whilst actually per- forming 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 Saint Da%ad's College, or principal of King's College, London, dvuing the time for which he may be required to reside and shall actually reside therein respec- tively, shall be liable to any of the penalties or forfeitiu-es in this act contained for or on account 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 every such spiiitual person shall, with respect to residence on a benefice under this act, be entitled to account the time in any year during which he shall be so as aforesaid resident, engaged, or per- forming duties, as the case may be, as if he had legally resided during the same time on some other benefice ; any thing in this act contained to the contrary notwith- standing." Sect. 39. " It shall be lawful for any spiritual person, Performance being prebendary, canon, pi-iest vicar, vicar choral, or of cathedral minor canon in any cathedral or collesriate church, or , ^^*'^L „^' 1 • n -,-, /> CI • ^ n r-T-i -fxV- ™^y "C ac- bemg a leLlow oi one oi the said colleges oi Eton or Wm- counted as Chester, who shall reside and perform the duties of such residence office during the period for which he shall be required to ^strictlons"^ reside and perform such duties by the charter or statutes of such cathedral or collegiate church or college, as the case may be, to account such residence as if he had resided on some benefice: pro\aded always, that nothing herein contained shall 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 perfonnance of duty for more than five months altogether in any one year, including the time of such residence on his prebend, canonry, vicarage, or fellow- 1152 DISCIPLINE OF TUE CHURCH. 1 & 2 Vict. c. 106. Existinoj rights SIS to exemp- tions and licences pre- served. If house of residence not kept in rejjair, the incumbent to be liable to the penalties for non-resi- dence. slii]:» : provided also, that it shall l)c laAvful for any spiritual person having or holding any sucli office in any cathedral or collegiate church or college in which the year for the ]nu-]ioses of residence is accounted to commence at any other period than the first of January, and who may keep the ])eriods of residence required for two successive years at such cathedral or collegiate church or coUege, in Avhole or in part, between the first of January and the thirty-first of December in any one year, to account such residence, although exceeding five months in the year, as reckoned from the first of January to the thirty-first of December, as if he had resided on some benefice, anything in this act contained to the contrary notwithstanding." Sect. 40. " Provided always, that every spiritual person being in possession of any benefice at the time of the passing of this act, and entitled by the laAV previously in force to exemption from residence, or to apply for a licence for non-residence, shall, as to every such benefice, but not as to any after-taken benefice, be entitled to the same exemption from residence, and to the same capacity of applying for and obtaining a licence for non-residence, and to the same right of appeal, in case of refusal or revoca- tion of a licence, 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 licence to such spiritual person shall have the like power after the passing thereof, anything hereinbefore con- tained to the contrary notwithstanding." Sect. 41. " Provided also, and be it enacted, that every spiritual person having any house of residence upon his benefice, who shall not reside therein, shall, during such period or periods of non-residence, Avhether the same shall be for the whole or part of any year, keep such house of residence in good and sufficient rejiair ; and in every such case it shall be lawfid for the bishop to cause a survey of such house of residence to be made by some competent person, the costs of which, in case the house shall be found to ])e out of re])air, shall be borne by such spiritual person; and if the survcyoi- shall rejiort that such house of resi- dence is out of re})air, it shall be lawful for the bishop to issue his monition to the incimibent to j)ut the same in repair, according to such survey and report, a copy of which shall be annexed to the monition ; and every such non-i-esident spiritual ]ierson who shall not keep such house of residence in rc])air, and who shall not, upon such moni- tion, and witliin one month after service of such monition. OFFENCES OF THE CLERGY. 1153 show cause to the contrary to the satisfaction of the bishop, or put such house in repair within the space of ten months, to the satisfaction of such bishop, shall be liable to all the penalties for non-residence imposed by tliis act during the period of such house of residence remaining out of repair, and until the same shall have been put in repair." As to licences for non-residence it is enacted as fol- lows: — Sect. 42. " Every spiritual person applying for a licence Eveiy petition for non-residence shall present to the bishop a petition ^°^ licence for 1 1 1 • If. 1^ 1 1 .1 non-resulence signed by liimselr, or by some person approved by the j-g ^g i^ bishop in that behalf, and shall state therein Avhether such -wTiting, and to spiritual person intends to perform the duty of his benefice ^*^*^ certain in person, and in that case where and at Avhat distance ^^^ ^^^^ ^^^' from the church or chapel of such benefice he intends to reside ; and if he intends to employ a curate such petition shall state what salary he proposes to give to such curate, and Avhether the ciu'ate proposes to reside or not to reside in the parish in which such benefice is situate : and if the curate intends to reside therein, then whether in the house of residence belonging to such benefice, or in some and Avhat other house ; and if he does not intend to reside in the parish, then such petition shall state at what distance therefrom, and at what place, such curate intends to reside, and whether such curate serves any other and what parish as incumbent or curate, or has any and what cathedral preferment, and any and what benefice, or officiates in any other and what church or chapel ; and such petition shall also state the annual value and the population of the benefice in respect of which any licence for non-residence shall be applied for, and the number of churches or chapels, if more than one, upon such benefice, and the date of the admission of such spiritual person to the said benefice ; and it shall not be lawful for the bishop to grant any such hcence unless such petition shall contain a state- ment of the several particulars aforesaid ; and every such petition shall be filed in the registry of the diocese by the registrar thereof, and shall be open to inspection, and copies thereof made, with the leave in writing of the bishop." Sect. 43. " It shall be lawful for the bishop, upon such Bishop may petition being presented to him, and upon such proofs K^'^nt licences being adduced as to any facts stated in any such petition den"e''in'cer- as he may think necessary and shall require, to grant, in tain cnume- sucli cases as are hereinafter enumerated, in which he shall I'^t^d cases. think fit to grant the same, a licence in writing under his 1 154 DISCIPLINE OF THE CHURCH. 1 & 2 Vict. hand for such spiritual person to reside out of the proper ^' ^^^* house of residence of his benefice, or out of tlie limits of his benefice, or out of the limits prescribed by this act, for the purpose of exempting such person fi-om any pecuniaiy penalty in respect of any non-residence thereon ; Avhich licence shall express the cause of granting the same licence (that is to say), to any spiritual person who shall be pre- vented fi-om residing in the proper house of residence, or within tlie limits of such benefice, or \\'ithin the limits pre- scribed by this act, by any incapacity of mind or body ; and also for a period not exceeding six months to any sj)iritual person on account of the dangerous illness of his wife or child making part of his family, and residing with him as such ; but that no such licence on account of the illness of a wife or child shall be renewed save with the allowance of the archbishop of the province previously sig- nified under his hand in pursuance of a recommendation in wi'iting fi-om the bishop, setting forth the circumstances, proofs and reasons which induce liim to make such recom- mendation ; and also to any spiritual person having or holding any benefice wherein there shall be no house of residence, or where the house of residence shall be unfit for the residence of such spiritual person, such unfitness not being occasioned by any negligence, default or other misconduct of such spiritual person, and such spiritual person keeping such house of residence, if any, and the buildings belonging thereto, in good and sufficient repair and condition to the satisfaction of the bishoj), and a certi- ficate under the hand of tivo neighbouring incumbents, countersigned by the rural dean, if any, that no house convenient for the residence of such spiritual person can be obtained within the parish, or within the limits prescribed by this act, being first produced to the bishop ; and also to grant to any spiritual person holding any benefice, and occupying in the same parish any mansion or messuage whereof he shall be the owner, a licence to reside in such mansion or messuage, such spiritual person keeping the house of residence and other buildings belonging thereto in good and sufficient repair and condition, and producing to the bishop proof to his satisfaction at the time of grant- ing every such licence of such good and sufficient repair Appeal to and condition : provided always, that any such spiritual archbishop in person, within one month after refusal of any such licence, case o re usa . ^^^ appeal to the archbishop of the province, who shall confirm such refusal, or direct the bishop to grant a licence under this act, as shall seem to the said archbishop just and proper." OFFENCES OF THE CLERGY. 1155 Sect. 44. " It shall be lawful for any bishop, In any case In cases not not hereinbefore enumerated, in which such bisliop shall einamerated think it expedient, to grant to any spiritual person holding o-ranUkences any benefice within his diocese a licence to reside out of to reside out the Hmits of such benefice : provided always, that in every p^ limits of 1,1 , j'l- i J.1 r benefice, sub- such case the nature and special circumstances thereoi, ^^^.j. ^^ ailow- and the reasons that have induced such bishop to grant ance by the such licence, shall be forthwith transmitted to the arch- archbishop. bishop of the province, who shall forthwith proceed therein as hereinafter provided in cases of appeal, and shall allow or disallow such licence in the whole or in part, or make any alteration therein, as to the period for which the same may have been granted or otherAvise ; and no such licence shall be valid unless it shall have been so allowed by such archbishop, such allowance thereof being signified by the signing thereof by such archbishop : provided also, that it sliall not be necessary in such licence to specify the cause of granting the same." Sect. 45. " During the vacancy of any see the power of By whom granting licences of non-residence under this act, subject licences may to the regulations herein contained, shall be exercised by whUe'Tseeis the guardian of the spiritualities of the diocese ; or in case vacant, &c. the bishop of any diocese shall be disabled from exercising in person the functions of his office, such power shall be exercised by the person or persons lawfully empowered to exercise his general jurisdiction in the diocese: provided always, that no licence granted by any other than the bishop shall be valid until the archbishop of the province shall have signified his approbation of the grant of such Kcence by signing the same." Sect. 46. " No licence for non-residence granted under Duration of this act or under the said hereinbefore second-recited act licences. shall continue in force after the 31st day of December in the year next after the year in which such licence shall have been or shall be granted." Sect. 47. " Every person obtaining any licence of non- Fee for residence shall pay for the same to the secretary or officer licence. of the bishop, or other person granting the same, the sum often shillings, over and above the stamp-duty chargeable thereon, 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 arch- bishop when any such Ucence shall have been signed by such archbishop." Sect. 48. " No licence of non- residence shaU become Licences not void by the death or removal of the bishop granting the ^^ ^^ ^'°|^ ^'^^ 1156 DISCIPLINE OF THE CHURCH. 1 & 2 Vict. c. 10(5. removal of the grantor. Licences may be revoked. Copies of licences or re- vocations to be filed in the registry of the diocese, and a list kept for inspection ; and copies transmitted to chnrch- wardens, and publicly read at the first visitation. same, but tlie same shall be and remain valid notwith- standing any such death or removal, unless the same shall be revoked as liereinafter mentioned." Sect. 49. "It shall be lawful for any archbishop or bisliop wlio shall have granted any licence of non-residence as aforesaid, or for any successor of any such ai'chbishop or bishop, after having given such incumbent sufficient opj)or- tunity 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 imder his hand to revoke any such licence : provided always, that any such incumbent may, within one month after ser^dce upon him of such revocation, if by a bishop, appeal to the archbishop of the province, who shall con- firm or annul such revocation as to him shall appear just and proper." Sect. 50. " Every bishop who shall grant or revoke any licence of non-residence under this act shaU and he is hereby required, within one month after the grant or revo- cation of such licence, to cause a copy of every such licence or revocation to be filed in the registry of his diocese ; and an alphabetical list of such licences and revocations shall be made out by the registrar of such diocese, and entered in a book, and kept for the inspection of all persons, uj)on payment of three shillings, and no more; and a copy of every such licence, and a statement in MT-iting of the grounds of exemption, shall be transmitted by the spii'itual person to whom such licence shaU have been granted, or Avho may be exempted from residence, to the church- wardens or chapelwardens of the parish or place to which the same relates, Avithin one month after the grant of such licence, or of his taking advantage of such exemption, as the case may be ; and every bishop revoking any such licence shall cause a copy of such revocation to be trans- mitted, Avithin one month after the revocation thereof, to the chm'ch wardens or chapelwardens of the parish or place to which it relates: Avhich copies of licences and revocation, and statements of exemption, shall be by such church- wardens or chapelwardens deposited in the parish chest, and shall likewise be produced by them, and publicly read by the registrar or other officer, at the visitation of the ecclesiastical district within Avhich 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 licence or statement of exemption, as hereby required, shall lose all benefit of such licence, and until he OFFENCES OF THE CLERGY. 1157 Bliall have transmitted such statement, shall not be entitled to the benefit of such exemption : provided always, that in case the archbishop of the pro\ance shall on appeal to him annul the revocation of any such licence, the bishop by whom such revocation shall have Ijeen made shall, im- mediately on receiving notice from the archbishojj that he has annulled the same, order, by writing under his hand, that the copies of such revocation shall be forthwith with- drawn from the said registry and parish chest, and that the same shall not be produced and read at the \asitation, and that such revocation shall be erased from the list of revoca- tions in the said registry ; which order shall be binding on the registrar and churchwardens respectively to whom the same shall be addressed." Sect. 51. " Every archbishop who shall in his OAvn dio- List of licences cese grant any licence of non-residence, or who shall ^llo\yed by the ^ . Til • T . T 1 , 1 • , archbishop, or approve and allow, m manner du'ected by this act, any o-ranted in his such licence in any case not enumerated in this act, or any own diocese, to renewal of a licence in the case of the dangerous illness of ^^ annually .-, .J, 1 •^ -t r • -J 1 in n • transmitted to the wife or child oi any spiritual person, shall annually m jjer Majesty in the month of January in each year transmit to her Majesty council, who in council a list of all licences or renewals so granted or ^^^ revoke allowed by such archbishop 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 licence or renewal, together with the reasons transmitted to him by the bishops for granting or recommending each such licence in their respective dioceses ; and it shall be laAvful for her Majesty in council, by an order made for that purpose, to revoke and annul any such licence ; and if her Majesty in council shall think fit so to do, such order shall be transmitted to the archbishop who shall have granted or approved and allowed such licence or renewal, who shall thereupon cause a copy of every such order to be transmitted to the bishop of the diocese in which such licence shall have been granted; and such bishop shall cause a copy of the mandatory part of the order to be filed in the registry of such diocese, and a like copy to be delivered to the churchwardens or chapel- wardens of the parish or place to which the same re- lates, in manner hereinbefore directed as to revocation of licences ; and every such archbishop shall cause a copy of the mandatory part of eveiy such order made in relation to any such licence granted by him in his own diocese to be in like manner filed in the registry 1158 DISCIPLINE OF THE CHURCH. 1 & 2 Vict, c. 106. Licence, althoujrh re- voked, to be (leciued valid between the grant and revocation. Annual ques- tions. Incumbents to answer questions transmitted to them by bishop. Schedule of questions. of his diocese, and a like copy also to be delivered to the churchwardens or chapelwardcns of the parish or place to Avhich such licence shall relate in manner before mentioned : provided always, that after such licence shall have been so revoked by her jNIajesty in council, the same shall nevertheless, in all questions that shall have arisen or may hereafter arise touching the non-residence of the spiritual person to whom the same shall have been granted, between the time at which the same was granted or apjiroved and allowed, and the time of the revocation thereof being so filed in the registry, be deemed and taken to have been valid." For the purposes of this act certain questions are annually to be put by the bishop to the incumbent. As to these it is provided as follows : — Sect. 52. " It shall be lawful for each bishop, and he is hereby required to transmit, some time in the month of January in each year, to every spiritual person holding any benefice within his diocese or jurisdiction, the ques- tions contained in the first schedule to this act, for the purpose of better enabling the several bishops to make the returns hereinafter mentioned ; and every sj^iritual person to Avhom such questions shall be so transmitted shall, within three Aveeks fi-om the day on Avhich the same shall be delivered to him, or to the officiating minister of the benefice for the time being, make and transmit to the bishop fidl and specific answers thereto, such answers being signed by such spiritual person." The fii'st Schedule is as follows : — '* Questions to be annually transmitted by each bishop to every spiritual person holding any benefice within his diocese or jurisdiction. 1. "What is the name of your benefice? 2. In AA'hat county? 3. Name of incumbent, and date of admission ? 4. Is there a glebe house belonging to your benefice ? 5. "Were you resident in the glebe house, or, there being no glebe house, or none fit for your residence, were you resident in any and what house appointed by the bishop in his licence, during the last year, for the term prescribed by law ? G. Being non-resident, Avere you performing the duties of your parish for the said time ? If so, state Avhere you resided, and at w-hat distance from the church or chapel. 7. "Were you in the last year serA-ing any other church OFFENCES OF THE CLERGY. 1 15C or cliapel in the neigliljourliood as incumbent ? If so, state tlie name thereof, and the distance from the above-named church or chapel; and when and for how long you served the same. 8. Were you serving any other church or chapel in the neighbourhood as curate ? If so, state the name thereof, and the distance from your own chm-ch or chapel ; and when and for how long you served the same. 9. What are the ser\'ices in your church ? Is a sermon or lectm-e given at every or Avhich of such services ? 10. Were these services duly performed last year ? If not, for what reason ? 11. What are the services in your chapel or chapels, if any? Is a seraion or lecture given at every or which of such sei-vices ? 12. Were these ser\aces duly performed last year? If not, for what reason ? 13. 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. ] 4. If you Avere non-resident, were you so by licence ? 15. If non-resident by licence, state the ground of licence, and the time when it wiU expire ? 16. If non-resident Avithout licence, Avere you so by ex- emption ? 17. If non-resident by exemption, state the ground of exemption, and Avhether such exemption was claimed for the AA'hole year, or during Avliat part thereof. 18. If you were non-resident, and did not perform the duties of your benefice, Avhat ecclesiastical duties, if any, were you performing, and where do you noAv reside? Observe : The foregoing questions are to be answered by e\^ery incumbent, Avhether resident or not. Further questions to be ansAvered, in addition to the fore- going, in case the incumbent be non-resident. 1 9. What is the name of your curate ? 20. Does he reside in the glebe house ? 21. Does he pay any and Avhat 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 licence ? 22. If not resident in the glebe house, does he reside in the parish? 1160 DISCIPLINE OF THE CHURCH. 1 & 2 Vict. c. 106. Schedule of questions. 24 25 27 28 29 Annual return to be made to • her Majesty in council of residents and non-residents, &c. Curates of non-residents. Sharpe v. Bluch. 23. If not resident in the parisli, where does he reside, and at Avhat distance from your church or chapel ? Does lie serve any other church or clunpel as in- cunil)ent? If so, state the name thereof, and the distance from your own church or chapel. Does he serve any other church or cha])el as curate ? If so, state the name thereof, and the distance from your own church or chapel. 26. Is he licensed ? A\niat is his salary from you ? Has he from you any other allowances or emolu- ments ? State what, and the average value thereof resjiectively. A\'hat is the gross and what is the net annual value of your benefice ? N.B. All the questions have reference to the year imme- diately preceding that in which they are trans- mitted." By sect. 53, " On and before the 25th day of March, in every year, a return shall be made to her INIajesty in council, by every bishop, of the name of every benefice within his diocese or jurisdiction, and the names of the several spiritual persons holding the same respectively who shall have resided thereon ; and also the names of the several spiritual persons who, by reason of any exemption U7ider or by virtue of this act, or by reason of any licence 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 licence, who shall not have resided on their respective benefices, so far as the bishop is informed thereof; and also the substance of the answers received in all cases to the questions so transmitted as aforesaid." The law as to the curates of non-residents is contained in the chapter on Curates (z). The two following cases, however, relating to particular instances where incumbents are non-resident Avithin the act, so as to be liable to the appointment of curates by the bishop, ought to be noticed here. Upon section 75 (a) the case of Sharpe v. Bluck{b) was thus : To avowry by a rector for cattle taken as a distress for arrears of a rent-charge in lieu of tithe on land of which the plaintiff was tenant, plaintiff pleaded in bar. (z) Vide supra, pp. 5C5— 574. (rt) See p. 565. (h) 10 Ad. & El., N. S. 280 (1847). OFFENCES OF THE CLERGY. 1161 that the bishop of the diocese had, under stat. 1 & 2 Vict. c. 106, s. 75, appointed a curate to perform the duties of . the rectoiy at a stipend ; that defendant was at that time absent from the rectory, and had not resided thereon for nine months in the year next preceding, to wit, the year commencing on the '20th March, 1842, but had for a period exceeding three months, to wit, &c., in the course of the year aforesaid, absented himself, &c. ; that the curate complained to the bishop of non-])ayment of the stipend, whereupon the bishop summoned defendant, and, on his non-appearance, determined summarily, and adjudged 75/. to be due ; that defendant not paying, the bishop issued a monition, requiring him to pay, in default of which a sequestration would issue ; that defendant was served with the monition, but did not pay, and the bishop thereupon issued a sequestration under the seal of his Consistorial Court, empowering a sequestrator, whom the bishop ap- pointed, to levy the 75Z. on the profits, rent-charges, &c. of the rectory ; and that the sum now distrained for was demanded of plaintiff by the sequestrator, and paid by plaintiff to prevent liis distraining. On demvirrer to the plea in this case, it was holden, that the proceedings to sequestration under stat. 1 & 2 Vict. c. 106, s. 83,Avere not authonzed by the statute, because the power to appoint a stipendiary curate is given by sect. 75 only when an in- cumbent, under the circumstances there described, is ab- sent for a period exceeding three months altogether, or to be accounted at several times in the course of any one year; and by sect. 120, the year is to be reckoned from 1st January to 31gt December; and therefore, that for Avant of jiu'isdiction in the bishop to sequester, the payment imder such sequestration did not discharge the plaintiff, who claimed in replevin, from paying his tithe rent-charge to the incumbent. The case of Daniel v. Morton{c) has been decided on sect. 83 {d). The Bishop of N., within which diocese Avere the per- Daniel v. petual curacy of W. and the rectory of C, addi'essed an ^forton. insti'ument to D., the perpetual curate of AV., under the episcopal seal, setting forth that he, the Bishop, did, by these presents, " unite, annex and incorporate the aforesaid rectory of C, Avith all its rights, members, and a]i]iur- tenances, to and Avith the aforesaid peq^etual cui'acy of W., during your incumbency on the same, and so long as you shall be perpetual curate there, and no longer, by our ordi- (r) 10 Ad. & EL, N. S. 108 (1850). {d) See p. .WJ. P. VOL. II. . 4 F 11G2 DISCIPLINE OP THE CHURCH. Dan ill v. Morton. Ex parte Bartlett. Tiavv aiithoritv, and as much as in ns lies, and the laws and statutes oithis reahn do permit, and not otherwise ; so that you, the aforesaid rectory of C, with the aforesaid per- petual curacy of W., may, as one benefice, so long as you arc ])eiiictual curate of the said pei']-)ctual cm-acy of W., retain, and the fniits," &c., " of both the said benefices (the burdens and charges due on the same being by you sustained) receiA'C, convert, and a])]ily to your own use, freely and lawfully, any ecclesiastical ordinance to the con- trary notwithstanding. Provided, nevertheless, that you have and keep a sufiicient curate, licensed and ap]}roved by our ordinary authority, to instruct and teach the ]ieo]>le of the. parish in which you shall not reside ; and ])rovided also that, if you shall at any time hereafter be collated or instituted to any other benefice Avhatsoever, that then our union shall be nidi and void to all intents and purposes in the law, as if the same had never been granted." The court held that, assuming that the bishop had power to unite the two benefices into one, Avithout the assent of the crown, chapter or patron (as to which qucp.re), the instru- ment, on the whole, did not show an intention to etiTcct such a luiion. That therefore ( W. and C. being fifty miles from each other) D., while resident at C, was non-resident at W. within stat. 1 & 2 Vict. c. 106; and the bishoj> might, imder sect. 83, while I), was receinng the profits of both livings, appoint a sti})end to the ciu-ate of W., and enforce the payment by monition and sequestration of W. It aj^pears fi-om the case of Ex yarte Bartlett (c) that an incumbent detained in prison as a punishment for a temporal offence may nevertheless be ordered to reside, and may be proceeded against for non-residence. Restraints l)y Council of Lateran. Sect. Q.— Pluralities {f). By a canon made in the council of Lateran, holden under I'ope Innocent III. in the year of our Lord 1215, it is ordained, tliat whosoever shall take any benefice Avith cure of souls, if he shall before have obtained a like bene- fice, shall ipso jure be deprived thereof, and if he shall contend to retain the same, he shall be deprived of the other ; and the pati'on of the former, immediately afiter his accepting of the latter, shall bestow the same upon whom lie shall think worthy {g). ie) 12 Q. B. 488; 3 Ex. 28. (/) See .sect. 29 of tlie 4tli council of l^ateran, title "Quod nuUus habcat duo beiioficia cum cur/i annexa." Fol. edit, of Gene- ral Councils, printed at Paris, 1671. (//) Hughes, c. 10; Gibs. 903 OFFENCES OF THE CLERGY. 1163 The following case was recently decided in the Arches Court under the very provisions of this canon : — " A clerk in holy orders being in possession of a per- petual curacy with cure of souls, augmented by the Go- vernors of Queen Anne's Bounty, and having without dispensation been instituted and inducted into another benefice with cure of souls, was liolden to have forfeited the former, which was on sentence declared void"(/<). The following case also deserves attention: — " By a local act of parliament (6 Geo. 2, c. xxviii), the hamlet of Bethnal Green, in the parish of Stepney, Avas divided from it and made a distinct parish under the name of St. JNIattheAv, Bethnal Green, \\dth a parish church ; and the advowson was vested in the patrons of the original church ; and it was enacted, ' That the rectory of the said * new church or parish shall not be taken or held in com- * mendam.'' The rector of St. Matthew, Bethnal Green, while holding that benefice, accepted another. It was hoi den that the rectory did not thereby and by force of the local statute become void, but only voidaljle, the rec- tory not being rated in the king's books and the patrons not making a new presentation" (z). " Before institution, it shall be inquired Avhether the Restraints by presentee hath any other benefice Avith cure of souls ; and piovincial cou- if he hath such benefice, it shall be inquired whether he ^ ' " '°"^' hath a dispensation ; and if he hath not a sufficient dispen- sation, he shall by no means be admitted, unless he do first make oath, that immediately upon his taking possession of the benefice unto which he is instituted, he will resign the rest. AVhereupon he Avho granteth institution shall immediately give notice to the bishops in Avhose dioceses such former benefices shall be, and also to the patrons, that they may dispose of the same" ( /). " When confimiation is to be made of the election of a bishop, amongst other articles of inquiry and examination according to the direction of the canons, it shall be dili- gently inquired, whether he who is elected had before his election several benefices Avith cure of souls ; and if he be found to have had such, it shall be inquired whether he hath had a dispensation, and whether the dispensation (if he shall exhibit any) is a true dispensation, and extendeth to all the benefices which he possessed" {k). According to which constitution we find, in the times (/t) Burder v. Mavor (1848), 1 Rob. Ecc. 614. See Daniel v. Morton, 16 Ad. & El., N. S. 198. (0 King V. Alston (1848), 12 4 F 2 Ad. & El., N. S. 971. ij) Othob. Athon, 129. (A) Ibid. 133. 11G4 DISCIPLINE OF THE CHURCH. Kcstruints hy of the ai'clibisliojis Pcccliam and "Wlnchelsea, that con- piovincijil con- firmatioii was clcnieil to three bishoiis, by reason of phi- ralitu's witlKJut proper dispensation [i). " He who sliall have more benefices than one with cure of souls, without dispensation, shall hold only the last ; and if he shall strive to hold the rest, he shall forfeit all. And it is further decreed, that he who shall take more benefices than one, having cure of souls, or being otherwise incom- ]iatible, without dispensation apostolical, either by institu- tion or by title of commendam, or one by institution and another by commendam, except they be held in such manner as is permitted by the constitution of Gregory ])ublished in the council of Lyons, shall be de]n"ived oi" them all, and be ipso facto excommunicated, and shall not be absolved but by us or our successors, or the apostolic see(m). Having Cure of Souls.~\ — Whether it be a cathedral or parochial church, or a chapel having cure of the parish- ioners, either de jure or de facto, so that thei'C be a ])arish wherein he can exercise ])arochial rites ; also, wdiether it be a dignity or office, or chiu'ch, as there are many archi- presbyters, archdeacons and deans who have no church of their OAvn, yet they have jurisdiction over many churches ( w). Or being otherwise incompatible.^ — Xamely, dignities, parsonages, and other ecclesiastical benefices, which recpiire personal residence either by statute, ])rivilege or custom (o). In such manner as is permitted bij the Constitution of Gregory.~\ — Namely, that he to whom the benefice is granted in commendam be of lawful age, and a priest, and that it be one only, and of evident necessity or advantage to the church, and to continue no longer than for six months {p). And shall not be absolved but bg us or our Successors^ or the Apostolic See.'\ — And by another constitution of the same archbishoj), if any shall otherwise absolve them, they shall be accursed (y). The Court of Exchequer Chamber, reversing the judg- ment of the Court of (Queen's Jiench, has decided that the acceptance of a second living rendered the first living void (/) Gibs. 905. le(je v. Bhliop of Salhlnmj, 4 \m) Peccliam, Lind. 137. Taunt. 831 ; i^hute v. llhidin^ (h) Ibid. 135. Yaugli. 131; Rex v. Bhh'up of (o) Iljid. 137. Londnn and Bcddork, W. .Jones, (?0 H»cl- 404; Moir, 448; Woherskin v. (q) Ibid. 330. Since 1 & 2 Z^/.s//o/> of London, 2 Wils. 174, Vict. c. lOG, the old law on this 200; 3 "Buit. 1504; Boteler v. subject has become merely mat- A/linf/ton, 3 Atk. 455; Bulwcr v. ter of liistory. See IlollamVs Bulwcr, 2 B. & A. 470 ; King v. case, 4 Co. 75 ; Brazennoze Col- Priest, Jones, 339. OFFENCES OF THE CLERGY. 1165 as to the patron, and thougli not so as to incur a lapse without notice by the ordinary, yet so as to render it void as to the incumbent, and, as it should seem, the sale of the advowson simoniacal (r). By Can. 41 of 1603, " No licence or dispensation for Regulation of the keeping of more benefices with cure than one, shall be dispensations granted to any, but such only as shall be thought very well worthy for his learning, and very well able and sufficient to discharge his duty : that is, who shall have taken the degree of a master of arts at the least in one of the univer- sities of this realm, and be a public and sufficient preacher licensed. Provided always, that he be by a good and sufficient caution bound to make his personal 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 law- fully allowed, that is able sufficiently to teach and instruct the people." Very loell worthy for his Learni7ig.~\ — So is the tenor of the Lateran council under Innocent the Third against pluralities ; where it is allowed, in this particular case and in no other, that the see apostolic may dispense with per- sons of sublime abilities and learning, that they may be honoiu'ed Avitli more benefices than one (5). A i)uhlic and sufficient Preacher licetised.^ — With re- gard to his being thus qualified (which in those days was not a common qualification), there is usually a proviso in the body of the dispensation, that in either of the churches he preach thirteen sermons every year, according to the orders of the Church of England published in that behalf, and therein handle the word of God religiously and reve- rently (t). Bound to make his personal Residence for some reason- able Ti7ne.~\ — In every dispensation to hold two benefices, there is a proviso, that in that benefice fi-om Avhich he shall be the more absent, he shall exercise hospitality for at least two months every year : and that proviso being evidently founded on this canon, every pluralist Avho does not observe it is punishable by ecclesiastical censures (^<). Not more than Thirty Miles distant J\ — Heretofore it was usual to obtain licences from the king, to take two benefices beyond the distance of thirty miles, by way of (r) Alston v. Atlay, 7 Ad. & cases there cited. El. 31 1 ; S. a, G Nev. & Mann. (^O Gibs. 910. 686, C. J. Tindal; see i-emarks (t) Ibid, of Wigbtman, arguendo, and the («) Ibid. 911. 1166 DISCIPLINE OF THE CHURCH. Kegulation of dispensations bj canon. Manner of ob- taining? a dis- pensation. dispensation -with this canon ; and in such cases we find this clause in the faculties granted by the archbishop, " The king's licence for distance beyond thirty miles having been first granted to you," or the like ; by reason of wliich licence and clause, they have been usually called royal (Uapensations. But none of these (as it seems) have been granted since the lievolution ; it having been then set forth in the Declaration of Rights, 1 WilL 3, sess. 2, c. 2, that the power of suspending laws or the execution of laws, by regal authority without consent of pai'liament, is illegal ; and with respect to acts of parliament in particular, it is enacted by that statute, that no dispensation by non obstante of any statute shall be allowed, unless the same shall be specially provided for in such statute (.r). That he have under him, in the Benefice where he doth not reside, a Preacher laxofulhj allowed.~\ — In pursuance of this canon (and not of anything in the statute) a clause to the like purpose is inserted in the faculty or dispen- sation (y). And it is further provided by Canon 47, that whosoever has two benefices, shall maintain a preacher licensed, in the benefice where he does not reside ; except he preach himself at both of them usually. The method which a presentee used under the old law to pursue in order to obtain a dispen-sation, was as follows; He obtained of the bishop in whose diocese the livings were, two certificates of tlie values in the king's books, and the reputed values and distance of such livings ; one certi- ficate for the archbishop, and the other for the lord chan- cellor. And if the livings lay in two dioceses, then he obtained two certificates, as aforesaid, from each bishop, each certifying the value in the king's books, and the reputed value of the living in his own diocese ; and both of them the reputed distance of the two livings. Which certificates were in this form : " To the Most Reverend Father in God, Thomas, by Divine Providence Lord Archbishop of Canterbury , Pri- mate of all Enyland, and jMetroj)olitan: " Whereas A. B., clerk, master of arts, vicar of C in the county of D., and in my diocese of E., is "presented to the rectory of F. in the county and diocese aforesaid: These are therefore to certify your grace, that the said vicarage of C. is valued in the hinges books at , is of the reputed yearly value of ; that the said rectory of F. is valued (x) Gibs. Oil. As to tills dis- tance see Hex v. Clive, Blanch. Rep. 9()8. (y) Gibs. 911. OFFENCES OF THE CLEKGY. 1167 in the hinges books at , is of the rejmted yearly value of ; and tJtat they are distant from each other about miles. Witness my hand the day of ." The like to the lord high chancellor of Great Bi-itain. He also exhibited to the archbishop his presentation to the second living. And brouglit with him two papers of testimonials from the neighbouring clergy, concerning his behaviour and conversation ; one for the archbishop, and the other for the lord chancellor. The form of Avliich testimonials was thus ; *' To the Most Reverend Father in God, Thomas, by Divine Providence Lord Archbishop of Canterbury, Pri~ mate of all England, and Metropolitan : " We whose names and seals are hereunto subscribed and set, do humbly certify your grace, that tee have personally known the life and behaviour of A. B., clerk, master of arts, vicar of C. in the county of D. and diocese of jS., for the space of three years now last past; that he hath, during the said time, been of good and honest life and conversation, a faithful and loyal subject to his majesty King George the Third, and hath not {so far as tee know) held, written, or taught anything but lohat the Church of England approves of and maintains. In icitness whereof, we have hereunto set our hands and seals, this day of in the year of our Lord . A. B., Rector of A. C. D., Vicar of B. E. F., Vicar of C." In like manner he exhibited to the archbishop his letters of orders of deacon and priest, and a certificate of his having taken the degree of master of arts at the least, in one of the universities of this realm, under the hand of the register of such university. And in case he were not doctor or bachelor of divinity, nor doctor of law, nor bachelor of canon law, he had to procure a qualification (according to the form above expressed) as chaplain to some nobleman, or to some other person empowered by law to grant qualifications for pliiralities (to be duly registered in the faculty office), in order to be tendered to the arclibishop, according to the statute. And if he had taken any of the aforesaid degrees, which the statute allows as qualifications, he had to procure a certificate thereof in the manner before mentioned, and to exhibit the same to the archbishop (r). (s) Ecton, 4-14. 1168 Discipline of the church. Manner of oh- tiiininji' a dis- pensation. Form of a dis- pensation. After Avliicli his dispensation was made out at tlic faculty oflice, where he gave security according to the direction of the canon ; and afterwards he repaired to the lord chancellor, for confirmation under the hroad seal. All Avhich being done, he had then to a[)ply himself to the hisho]) of the diocese where the living lay, for his admission and institution (a). In pursuance of the statute and canons aforegoing, the form of a dispensation was usually as follows : — " Thomas, hi/ Divine Providence Archbishop of Ciiii- tcrhnry, Primate of all Piu/land, and Meiro])olitan, by authority of jxirVuunent lawfully emj)orcered for the ■pur- pose herein written : To our beloved in Christ A. B., clerk, master of arts, of college in the university of and also chaplain to the Riyitt Honourable C. Lord health and grace. The greater progress men make in sacred learning, the greater encouragement they merit ; and the more their necessities are in daily life, the more necessary supports of life they require. Upon ivhich con- siderations, and being moved by your supplications in this behalf. We do {by virtue and in purs7iance of the poicer vested in us by the statutes of this realm) by these presents grracionsly dispense with you. ; that, together with the rec- tory of the parish church of in the county of ■ and diocese of , which you now possess, the annual fruits whereof, according to the valuation made in the books of first fruits and tenths of ecclesiastical benefices remaining in the exchequer of our sovereign lord the king, do not exceed the sum of , you may freely and laiv- fully accept, and hold as long as you shall live, the rectory of the parish church of i?i the comity of and diocese of , not distant from the former above miles or thereabouts, the annual fruits ichercof, according to the valuation aforesaid, do not exceed the sum of : Provided always, that in each of the churches aforesaid, as well in that from ivliich it shall happen that you shall he for the greater j)art absent, as in the other, on tchich you shall make perpetual and personal residence, you do preach thirteen sermons every year accordiiig to the ordi- nances of the Church of England promulgated in that behalf ; and do therein sincerely, religiously and reverently handle the holy word of God ; and that in the benefice, from which you shall haj)pen to be most absent, you do nevertheless exercise Jiospitality tvw months yearly ; and for that time, according to the fruits and profits thereof. {T /-I o r>n earlier statutes. c. 13(c), and 57 Geo. 3, c. 99. (i) Vide infra, form of dispen- See cases Anon., Dyer, 327; Rev sation, under 1 & 2 Vict. c. 106. v. Bishop of Chichester, Noy, 149; (t) Confirmed by 25 Hen. 8, Colt and Glover v. Bishop of Co- c. 21, Statute for Dispensations. ventry and Lichfield, Hob. 158. 1170 DISCirLlNE OF THE CIIUKCII. Ivcstraints and dispensations bv statute since August, 1838. 1 & 2 Vict. c. lOG. Both acts now wholly re- pealed; saving as to penalties already in- curred, or li- cences already granted. Not more than two prefer- ments to be held together. Tlicse statutes have been repealed by 1 & 2 Vict. c. 106. This latter act has been aj2!;ain amended by 13 & 14 Vict, c. 98. The two acts together constitute the existing law on the subject of i)luralitj. 1 & 2 Vict. c. lOG, is entitled, " An Act to abridge the holding of Benefices in Plurality, and to make better l*rovision for the Kesidence of the Clergy." After re- citing that 21 Hen. 8, c. 13, had been partly repealed by 57 Geo. 3, c. 99, it enacts as follows: — " So much of the said recited acts as is now in force shall be and the same is hereby repealed, save and except only such part of the said last-recited act as repeals certain acts and parts of acts therein particularly recited : pro- vided, that nothing herein contained shall exempt any person from any penalties incurred under the said last- recited act before the time of passing this act, or take away or affect any proceedings for recovery thereof, Avhether commenced or not before the passing of this act, or shall annul or abridge any licence granted under the provisions of the said last-recited act before the time of passing this act." Sect. 2. " No spiritual person holding more benefices than one shall accept and take to hold therewith any cathedral preferment or any other benefice ; and that no spii'itual person holdi)ig any cathedral preferment and also holding any benefice shall accept and take to hold there- with any other cathedral preferment or any other benefice ; and that 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, any law, canon, custom, usage, or dlsj)ensation to the contrary notwithstanding : provided, that nothing herein-before contained shall be construed to prevent any archdeacon from holding, together with his archdeaconry, two benefices, under the limitations herein- after mentioned with respect to distance, joint yearly value and po])ulation, and one of which benefices shall be situate wit) I in the diocese of which his ai'chdeaconry forms a part, or one cathedral preferment in any cathedral or collegiate church of the diocese of Avhich his archdeaconry forms a part, and one benefice situate within such diocese, or to prevent any spiritual person holding any cathedral prefer- ment, with or without a benefice, from holding therewith any office in the same cathedral or collegiate church, the duties of Avhich are statutably or accustomably performed by the spiritual persons holding such preferment." As by this section no spiritual person may hold more OFFENCES OF THE CLERGY. 1171 than one preferment and one benefice together, it was of course very necessary that there should be an accurate definition of these terms, and such is to be found in section 124, which enacts, " That in all cases where the term * cathedral preferment' Definition of is used in this act, it shall be construed to comprehend *^® ^f"^^^. , (unless it shall otherwise appear from the context) every preferment," deanery, archdeaconry, prebend, canonry, office of minor canon, priest vicar, or vicar choral, having any prebend or endowment belonging thereto, or belonging to any body cor|3orate consisting of persons holding any such office, and also every precentorship, treasurership, sub-deanery, chancellorship of the church, and other dignity and office in any cathedral or collegiate church, and every master- ship, wardenship, and fellowship in any collegiate church ; and that in all cases where the term ' benefice ' is used in and " bene- this act, the said term shall be rmderstood and 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, perpetual curacies, donatives, en- dowed public chapels, parochial chapeh'ies, and chapelries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel, any thing in any other act to the contrary notwithstan cling " (^d). This definition of "benefice" is repeated in 13 & 14 Vict. c. 98. By sect. 1 of 13 & 14 Vict. c. 98, no spiritual person Restrictions on may take or hold together any two benefices, except in the holding two case of two benefices the churches of which are within ^"'^ ^^^' three miles of one another by the nearest road, and the annual value of one of which does not exceed 100/. The computation of this distance is provided for by section 129 of 1 & 2 Vict. c. 106, which enacts, " That the distance between any two benefices for the Distance how purposes of this act shall be computed from the church of *° ]'®^'^"^' the one to the chm-ch 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 dis- tance shall be computed from or to the nearest of such churches, as the case may be ; or if on one of such bene- fices there be no church, then in such manner as "shall be directed by the bishop of the diocese in Avltich the benefice (rZ) It had been previously trict had been assigned, should be enacted by 58 (Tec. 3, c. 45, s. 26, tenable with the original church and 1 & 2 Will. 4, c. H8, s. 13, of the parish out of which such that no church of any distuict or distinct or district parish or dis- district parish, or to which a dis- trict has been taken. 1172 DISCIPLINE OF THE CHURCH. N(ir if popu- lation of one such benefice is more than Population how to he com- puted. Not to affect former powers of bishops. Annexation of sinecures to cures of souls. prnjioscd to be taken and held by any spiritual person in addition to one already held by him shall be locally sitnate." It is enacted by sect. 4 of 1 & 2 Vict. c. 106, as amended by 13 & 14 Vict. c. 98, s. 2, " That, except as hereinafter provided, no spiritual per- son holding a benefice with a popvdation of more than three thousand persons shall accept and take to hold therewith any other benefice having, at the time of his admission, institution, or being licensed thereto, a population of more than five hvnidred persons, nor shall any spiritual person holding a benefice with a po])ulation of more than five hundred persons accept and take to hold therewith any other ])enefice ha^dng, at the time of his admission, insti- tution, or being licensed thereto, a population of more than three thousand persons." The mode of computing the population for the purposes of these statutes is provided for by section 130 of 1 & 2 Vict. c. 106, which enacts, " That whenever the population of any place shall be required by this act to be ascertained, the same shall be taken from the latest returns of population made luider any act of parliament for that purpose at the time Avhen the question shall arise, if such returns shall ai)])ly to the place res]iecting which the question shall be, but if such place shall only forai ])art of a parish or district named in such returns, then such returns shall be taken to represent truly the population of the parish or district named therein, and fi-om them the population of the place required shall be computed, according to the best evidence of which the subject shall be capable." Sect. 132 of this act provides — " That nothing in this act contained shall be deemed, construed, or taken to derogate from, diminish, prejudice, alter, or affect, otherwise than is expressly provided, any powers, authorities, rights, or jin'isdiction already vested in or belonging to any archbishop or bishop inider or by virtue of any statute, canon, usage, or otherwise howsoever." By 3 & 4 Vict. c. 113, s. 71, a provision is made for the annexation o^ s me cures to benefices Avith cure of souls (e): " That Avith res])ect to any benefice Avith cure of souls which is held together with or in the patronage of the holder of any prebend or other sinecure preferment belong- ing to any college in either of the universities, or to any private patron, arrangements may be made by the like authority, and Avith the consents of the respectiAC patrons. (e) Under this statute ami 4 & .5 Vict. c. 39, sinecures may be sup- pressed or annexed. See pp. 506, 507, supra. OFFENCES OF THE CLERGY. 1173 for permanently uniting sucli preferment with such bene- fice : provided that this act shall not apply to or affect any prebend or other sinecure preferment in the patronage of any college or of any lay patron in any other manner than as is herein expressly enacted." But to hold the two benefices allowed by this act sec- tion 6 enacts {f), •' That it shall be necessary for such person to obtain Licence or dis- from the Archbishop of Canterbury for the time being, a }^o|^|''^^*o°gtj*pi. licence or dispensation for the holding thereof, which licence any two bene- or disj)ensation the said archbishop is hereby empowered fices must be to s-rant under the seal of his office of faculties, upon being ?J?*'\^"^u/.*'?'" ? „,„ „, PI the Archbishop satisned as well of the htness of tlie person as ot the expe- of Canterbury. diency of allowing such two benefices to be holden toge- ther, and that such licence or dispensation shall issue in such manner and form as the said archbishop shall think fit ; and for such licence or dispensation there shall be paid to the registrar of the said office the sum of thirty shillings and no more, and to the seal keeper thereof the sum of two shillings and no more ; and that no stamp duty, nor any other fee, save as hereinbefore mentioned, shall be payable on the licence or dispensation to be granted as aforesaid, nor shall any confirmation thereof be necessary ; nor shall it be required of any spiritual person applying for any such licence or dispensation to give any caution or security by bond or otherwise before such licence or dispensation is granted ; and if the said Archbishop of Canterbury shall refuse or deny to grant any such licence or dispensation as aforesaid, it shall be lawful for her Majesty, if she, by the advice of her privy council, shall think fit, upon application by the person to whom such licence or dispensation shall have been refused or denied, to enjoin the said archbishop to grant such licence or dispensation, or to show to her Majesty in council sufficient cause to the contrary, and thereupon to make such order touching the refiisal or grant of such licence or dispensation as to her Majesty in coimcil shall seem fit, and such order shall be binding upon the archbishop." By sect. 7, "Where any spiritual person shall be de- A statement of sirous of obtaining a licence or dispensation for holding certain parti- together any two benefices, such spiritual person shall, ^^^^^ j^y gye,.y previously to applying for the grant of such licence or dis- spiritual per- pensation, deliver to the bishop of the diocese where both f?" ^^ '''if^, 1 /■ -^ i. • ii T 4- ^1 1 • 1 bishop ot the l)eneuces are situate m the same diocese, or to the bisIio])S diocese pre- of the two dioceses where such benefices are situate in vious to appli- (/) See also 13 & 14 Vict. c. 98, s. 2. 1174 DISCIPLINE OF THE CHUKCII. cation for a licence or ilis- pensatioD. Bishop may }nake inquiry as to the accu- racy of state- ment. Bishop to transmit a cer- tificate to the Archbishop of Canterbur)-, setting forth copy of the statement made to the bishop and other ])arti- culars. How annual value of two benefices to be held together by dispensa- tion to be esti- mated. different dioceses, a statement in writing nnder his hand, verified as such bisliop or bislio])s rcs])ectively may require, according to a form or forms to be promulgated from time to time by the Archbishop of Canterbmy, and approved by tlie Queen in council, in which statement such spiritual ])erson shall set forth, according to the best of his belief, the yearly income arising from each of the said benefices, separately, on an average of the three years ending on the twenty-ninth day of 8e})tember next before the date of such statement, and the sonrces from which such income is de- rived, and also the yearly amount, on an average of the same ]ienod of three years, of all taxes, rates, tenths, dues, and other permanent charges and outgoings to which the same benefices are respectively subject, and also the amovmt of the population of each of the said benefices, to be com- })uted according to the last returns made under the autho- rity of parliament, and also the distance between the two l)cnefices, to be computed according to the directions of this act ; and it shall be lawful for the bishop to whom such statement shall be delivered to make any inquiry which he may think right as to the correctness of the same in respect to the benefices or benefice within his diocese ; and such bishop is hereby required, within the space of one month after he shall have receixed such statement as afore- said, to transmit to the Archbishop of Canterbuiy a cer- tificate under his hand, in which certificate such bishop shall set forth or shall annex thereto a copy of the statement delivered to him as aforesaid, and shall thereby certify the amount at Avhich he considers that the annual value and the population of each of the two benefices (where both benefices are situate in the same diocese) and the distance of the said two benefices from each other, or the amount at which he considers the annual value and the popidation of the benefice wnthin the diocese of such bishop (where the two benefices are situate in different dioceses), and the distance of such benefice from the other benefice, ought to be taken, with respect to the licence or dispensation in question ; and whenever both or either of the benefices sliall be in the diocese or jurisdiction of the Archbishop of Canterbury, a certificate shall be made out in manner aforesaid by the archbishop?, and shall be retained by him." By sect. 8, " In estimating the annual value of any benefice for the piu'pose of any such certificate as afore- said, it shall be lawful for the archbishop or bisho]) by whom such certificate shall be made, and every siich arch- bishop and bishop is hereby directed, to deduct from the gross amount of the yearly income arising from such bene- OFFENCES OF THE CLERGY. 1175 fice all taxes, rates, tenths, clues, and other permanent charges and outgoings to Avhich such benefice shall be subject, but not to deduct or allow for any stipend or sti- pends to any stipendiary curate or curates, nor for such taxes or rates in respect of the house of residence on any benefice, or of the glebe land belonging thereto, as are usually paid by tenants or occupiers, nor for monies ex- pended in the repair or improvement of the house of resi- dence and buildings and fences belonging thereto {g). By sect. 9, " The certificate or certificates to be trans- Certificate to mitted to or retained by the Archbishop of Canterbury as ^^ deposited in aforesaid shall be deposited in the said office of Faculties, ties^\nd be*^ ' and in the event of the required licence or dispensation conclusive evi- being granted, shall for the purposes of this act be con- fiance of value, elusive evidence of the annual vahie and population of each Justan^e""''^" of the benefices to which the same shall relate, and of their distance from each other ; and the registrar of the Facul- ties shall and he is hereby required to produce such cer- tificate or certificates to any person Avho may require to inspect the same." By sect. 11, "If any spiritual person, holding any cathe- Acceptance of dral preferment or l^enefice, shall accept any other cathe- preferment dral preferment or benefice, and be admitted, instituted or ^jjjg acZvacates licensed to the same contrary to the provisions of this act, the former pre- every cathedral preferment or benefice so previously held ferment. by him shall be and become ipso facto void, as if he had 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 tAvo or more cathedral preferments shall accept any benefice, or if any spiritual person holding any cathedral preferment or preferments, and benefice or benefices, shall accept an- other benefice, he shall, before he is instituted, licensed, or in any Avay admitted to the said cathedral preferment or benefice, in writing under his hand, declare to the bishop or bishops Avithin whose diocese or dioceses any of the cathedral preferments or benefices previously liolden by him are situate, which cathedral preferment and bene- fice, or Avhich tAvo benefices (such tAA'o benefices being tenable together under the provisions of this act), he pro- poses to hold together, and a duplicate of such declaration shall by such spiritual person be transmitted to the registry of the diocese, and be there filed ; and immediately upon any such spiritual person being instituted, licensed or in (i/) See also 13 & 14 Vict. c. 98, s. 4. 117G DISCIPLINE OF THE CIIURCH. Present riirhts of possessiun saved. Saving of other rights. Sfo7-ie V. Bhhop of Winchenter, Deans of ca- thedrals not to hold office of heads of toi- lettes or halls any way admitted to the cathedral preferment or benefice "which he shall haAC accepted as aforesaid, such cathedral ])ref'erment or })i'ef"ermcnts, hcnofice or benefices as he pre- viously held, and as he shall not as aforesaid have de- clared his intention to hold, or such benefice as shall not be tenable under the provisions of this act with such newly- accepted benefice, shall be and become i}) so facto void, as if he had died or had resigned the same ; and if such s])i- ritual person shall in any siich case refuse or wilfully omit to make such declaration as aforesaid, every cathedral pre- ferment and benefice which he previously held shall be and become ij^so facto void as aforesaid : provided always, that nothing herein contained shall be construed to affect the provision hereinbefore made with respect to archdea- cons, or with respect to s]:)iritual persons holding, with any cathedral preferment, and with or without a benefice, offices in the same cathedral or collegiate church" (A). Sect. 12. " Nothing hereinbefore contained shall be consti'ued to prejudice or affect the right of possession in any cathedral preferment or benefice to which any sjn- ritual person shall have been collated, admitted, instituted or licensed, or which shall have been otherwise granted to any spiritual person before the ])assing of this act, unless he shall, after the passing of this act, accept or take some cathedral preferment or benefice contrary to the jjro- visions of this act." Sect. 13 of 1 & 2 Vict. c. 106 and sect. 10 of 13 & 14 Vict. c. 98, save the vested rights of all persons possessed of one living and nominated or appointed for the next pre- sentation to another living before December 23, 1837. Sect. 9 of 13 & 14 Vict. c. 98, also saves the rights of all ])crsons duly possessed of their livings before its ])assing. " It Avas holden in a case Avliere the incumbent of a parish chiu'ch presented himself to a district church witliin the parish, created imder the Church Building Acts, 58 Geo. 3, c. 45, and 59 Geo. 3, c. 134, the annual value of the two livings exceeding £1,000, that the parish church became, under the provisions of 1 & 2 Vict. c. 106, ipso facto void " ( i). liy 13 & 14 Vict. c. 98, it is further provided- Sect. 5. " That it shall not be laAvfid for any person appointed after the passing of this act to the deanery of any cathedral church, to hold the office of head ruler of any college or hall Avithin either of the UniA'crsities of (/«) See also 13 & 14 Vict, c. 118, s. 7. (/) tiloric v. Bhlinj) of W'm- chester (1850), 9 Comm. Ben. 62 ; vide supra, p. 1171, note {d). OFFENCES OP THE CLERGY. 1177 Oxford or Cambridge, or the office of provost of Eton in the univer- College, or of Warden of Winchester College, or of cities. master of the Charter House, together with his deanery; provided always, that nothing herein contained shall apply to the dean of the Cathedral Church of Christ in Oxford, as chief ruler of the college there maintained." Sect. 6. " That (anything in the said recited act to the Heads of col- contrary notwithstanding), it shall not be lawful for any ^^^es in the spiritual person, being head ruler of any college or hall ^ hold cathe- wdthin either of the universities of Oxford or Cambridge, dral prefer- or beino; warden of the University of Durham, and also men^s except 111 cGrtftiii holding any benefice, to take after the passing of this act cases. and hold therewith any cathedral preferment or any other benefice, or for any such spiritual person, also holding any cathedral preferment, to take after the passing of this act and hold therewith any benefice : provided always, that nothing in this act contained shall be construed to prevent any such spiritual person from holding any benefices or cathe- di-al preferment permanently attached to or forming part of the endowment of his office." Since tlie passing of the first statute the following form of dispensation has been adopted, which, it must be re- membered, does not require the confirmation of the Great Seal. Dispensation. — One Diocese. " , hy Divine Providence, Archbishop of Canter- Forms of dis- hury, Primate of all Enrjland, and Metropolitan, hy pensation authority of parliament, laufully empoioered for the pur- yj^^j. ^ jqq" poses herein tvritten. To our beloved iri Christ, , health and grace : Whereas it appears by the certificate under the hand of the Riyht Reverend Father in God ———, hy divine permission Lord Bishop of , made and transmitted to us in pursuance of an act of parliament passed in the first and second years of 'the reign of her present Majesty, intituled ' An Act to abridge the holding of Benefices in Plurality, and to make better Provision for the Residence of the Clergy,^ that the annual value of the , in the county of , and unthin his diocese, is -, and that the population thereof is persons. And that the annual value of the , in the county and diocese aforesaid, is , and that the population thereof is persons. And ivhereas it also appears by the said certificate that the distance of the said two benefices from each other is ; We therefore, being moved hy your supplications in this behalf, and satisfied as well of your fitness, as of the expediency of cdloiving such two r. VOL. II. 4 G 1 178 DISCIPLINE OF THE CHURCH. Forms of ilis- hencfcca to he lioldcn toffctlicr, do hy virtue and in pur- pciisation snance of the powers in ns vested by the said act, yraciously Vict. c. lOG. yrant to you by these presents our licence or dispensation^ that you may freely and lawfully hold together as long as you shall lire the said and the said . Give?/. under the srid of our Office of Faculties at Doctors' Commons, this day of , in the year of our Lord one thousand eight hundred and , and in the ?iear of our translatiou. "(l.s.) ./. //. T. M. S., Beg:' Dispensation. — Two Dioceses. " , by Divine Providence, Archbishop of Canter^ bury. Primate of all England, and MetrojioUtan, by authority of parliament lawfully empowered for the pur- poses herein written. To our beloved in Christ , health and grace: Wltereas it appears hy the certificate binder the hand of the Right Reverend Father in God , by divine permission Lord Rishop of , made and transmitted to ?is in jmrsriance of an act of parliament passed in the first and second years of the reign of hcr present Majesty, intituled ' An Act to abridge the holding of Renejices in Plurality , and to make better provision for the Residence of the Clergy,^ that the annual value of the , in the county of , and rcifhin his diocese, is , and that the population thereof is persons. And whereas it appwars by ilic certificate under the hand of the Right Reverend Father in God , by divine permission Lord Risliop of , also made and transmitted to us in pursuance of the provisions of the said act, that the annual value of the , in the county of , and ivithin his diocese, is , and that the pojnilation thereof is persons. And lohereas it also apjjears by the said certi- ficates that the distance of the said two benefices from each other is : He therefore, being moved by your supjili- cations in this behalf, and satisfied as well of your fitness, as of the expediency of allowing such tivo benefices to he holden together, do by virtue and in pursuance of the powers in ics vested by the said act, graciously grant to you by these presents our licence or disp/ensation, that you may freely and lawfully hold together as long as you shall live the said a7ifl the said . Given under the seal of our Office of Faculties, at Doctors' Commons, this day of , in the year of our Jjord one thousand eight liundred and , and in the year of our translation. "(l.s.) J. H. T. M. S., Reg.'' OFFENCES OF THE CLERGY. 1179 The provisions enabling archdeacons in certain cases Archdeacons, to hold two benefices with their archdeaconry have been already mentioned (/). 3 & 4 Vict. c. 113 gives, by sects. 23, 51, the power of Honorary ca- founding honorary canonries ; and sect. 3 of 4 & 5 Vict, nourics. c. 39, provides as follows: — *' The holding of an honorary canonry or of any pre- Honorary pre- bend, dignity or office, not now in any manner endowed, f*^^','^^,",* ".'Y or whereof the lands, tithes, or other hereditaments, en- ^^^ benefices. dowments or emoluments, shall have been vested in the Ecclesiastical Commissioners for England, or which may hereafter be endowed to an amount not exceeding twenty pounds by the year, shall not be construed to prevent the holding therewith of more benefices than one. By sect. 11 of 13 & 14 Vict. c. 98, " The provisions of Extension of 4 & 5 Vict. c. 39, which authorize the holding of more this provision. l)enefices than one with an honorary canonry, or with any prebend, dignity, or office not then in any manner endowed, or whereof the endowments shall have been vested in the Ecclesiastical Commissioners for England, or which might thereafter be endowed to an amount not exceeding twenty poimds })y the year, shall be ex- tended so as to authorize the holding of one benefice and one cathedral preferment in the same chiu'ch with such honorary canonry, prebend, dignity, or office." the canons. Sect. 7. — Miscellaneo7is Subjects. It may be useful to refer to the law derived from the Snmmary of (Canons of 1603 upon the following subjects (/t) : — A. The LaAv as to the Admission of Ciu-ates (/) and ^rcacllers(7?^) — Canons 48 to 57 inclusive, 71. B. The Dress and Conversation of the Clergy — Canons 74, 75 (w). C. The general Duties of the Minister (o) — In Preaching— Canons 45, 46, 47 {j))- (./) Vide supra^ pp. 246, 250. many irregularities of different, {k) They are for the most part kinds formed the subject of tlio treated of in detail in other parts charges against the incumbent, of this work, to which the parti- who was acquitted (3 Hagg. 24). Old ar .subjects which they embrace {p) Pp.661, 1024 — 1027,.sH/)r«f. belong. See, too, the case of The Bishop (J) Page 561, supra. of Doxvn and Connor v. Miller (m) Pp. 102.3— 1026, swpra. (11 Ir.Ch. Rep., App. i., and 5 (h) Pp. 10'.)0, 1091, sujrrn. L. T., N. S. 30), there cited. (") 111 Bennett V. Bunalccr 4 G 2 1180 DISCirLlNE OF THE CIIURCII. Summary of the Canons. Officiating in private houses. In Catc'cliizing- — Canon 59 (fj). As to Confirmation — Canons 60, Gl (/•). As to jM any ing — Canons G2, G3, 7()(.?). As to Christening and Burying — Canons G8, GU, As to visiting tlic Sick — Canon 67 (u). As to the Holy Connnnnion — Canons 26, 27, 28, 71 W- As to the Spiritual Discipline of his Flock — Canons 65, 66, 113, 114, 115(y). As to the Observance of Sundays, Holydays and Fasts, e^c— Canons 13, 14, 15, 64, 72 (z). T>. Rcsti'aints on unauthorized Action — Canons 72, 73. E. Against ser^^ng a ])lurality of Churclics in one Day —Canon 48, and 1 & 2 Vict. c. 106, s. 106(a). F. Against officiating in Private Houses the Canon is as follows : — 71. "Ministers not to Preach or Administer the Communion in Private Houses. " No minister shall preach or administer the holy com- munion 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 dangeroiisly sick, are desirous to be partakers of the holy sacrament, upon ])ain of sus- pension 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 preach or administer the communion in any otlier places but in tlie chapels of the said houses; and tliat also they do the same very seldom vipon Sundays and Holydays ; so that both the lords and masters of the said houses and their families shall at other times resort to their OAvn parish clmrchcs, and there receive the holy conununion at the least once every year." (q) Page 6G8, supra. (r) Pp. G71, 672, supra. (.s) Pp. "85, 786, supra. \l) Pp. 640, 642, 648, stipra. The reported cases against clci'ks for violating the canons as to burial are — Ke.ntp v. Wlckes., 3 I'hiilim. 276; Escntt v. Mast'ui^ 1 Notes of Cases, 552; 4 Moo. P. C. 104 ; Nurse v. Ilcnshnce, 3 Notes of Cases, 272 ; Tltchmarsh v. Chapman, ibid. 370 ; lie Todd, ibid, li ; C'onjia-v. Dodd, ibid. 514; 2 Roberts. 270. («) Page 836, siipra. (aj I'p. 676, 677, 678, sujn-a. (y) Page 1080, supra. (z) Pp. 1033, 1047, 1049, 1050, snitra. («) Pp. 561, 568, supra. OFFENCES OF THE CLERGY. 1181 On this canon, and on the cognate subject of ministering in the parish without the proper authority, there have been the following decisions : — In the case of Dr. Trehec v. Keith, Feb. 12, 1742, Mr. Keith, minister of May Fair Chapel, which was a chapel of ease to St. George's parish, Hanover Square, of which the plaintift'was rector, being cited into the Bishop of London's court, for officiating as a clergyman of the Church of England without being licensed by the bishop, and having been denounced excommunicate forty days, for contimiacy and contempt of the ecclesiastical laws, upon the bishop's certificate into chancery of this fact, the writ de excommunicato capiendo issued. It was moved to quash the writ, and one of the suggestions was, that Mr. Keith is within the Toleration Act. But by the Lord Chancellor Hardwicke : " The act of toleration Avas made to protect persons of tender consciences, and to exempt them from penalties ; but to extend it to clergy- men of the Church of England, who act contrary to the rules and discipline of the church, would introduce the utmost confusion." And the exception was over- ruled (^). There is no general principle of ecclesiastical law more firmly established than this : that it is not competent to any clergyman to officiate in any chiu'ch or chapel within the limits of a parish without the consent of the incumbent. See the leading cases on this cardinal point of ecclesiastical law: The Duke of Portland v. Bingham {c) ; Carr v. Marsh {d); Moysey v. Hillcoat\e)', Bliss v. Woods {f^-, Williams v. Broivn {(/), and the recent case of Hodg- son V. Dillon (h). In most of these cases the office of the judge was promoted, i. e. a criminal suit was instituted by the incumbent against another clerg^niian for unlawfully officiating AAathin the limits of his parish, and it is obvious that the practical effect of the suit was often to ascer- tain the character of the chapel, whether chapel of ease, free, private, or the two other kinds which are the growth of more modern times, — district and proprietary. In Williams V. Broton, decided 1835, Dr. Lushington said, " Although the form of the suit is a criminal one, I apprehend that all that is sought to be determined upon the facts before the court is, the rights of the respective parties." Afler citing several of the above cases, he continues, " I could entertain Officiating without leave. Trehec v. Keith. General rights of the incum- bent over chapels, how vindicated by the ecclesiasti- cal courts. (ft) 2 Atk. Rep. 498. (r) 1 Consist. Rep. 157. {,1) 2 Pliillim. 198. (0) 2 Ilagg. 30. (/) .3 Ilagg. 486. (7) 1 Curteis, 64. (/() 2 Curteis, 388. 1182 DISCirLINE OF TUE CHURCH. Gcncrnl riirhts of the iucuiu- beuts ovor chapels, how vindiovted by the occlesins- tical courts. Kcntf V. lij). of London,. f)|iiiii<>n of Sir J. Niiholl. no (loul)t that tliis court had jurisdiction and the po-wcr of expressing its opinion upon the question. lUit 1 will state candidly the ditKculty whicli presented itself to my mind, which was this : in the course of this discussion I mifrht perhaps be trying incidentally the right to a perj)etual curacy, and there was a doid)t in my mind whether tlic court was com]ietcnt to come to a decision upon the i)oint ; at least, wliether it would not have heen open to eitlicr party to have applied for a prohibition if the court pro- ceeded. However, tlie authorities which I have mentioned of cases in these courts, and which have not been in the slightest degree im])ugned — no prohibition having been api)lied for — are sufficient to warrant me in considering the circumstances of this case." Keate v. Bishop of London (Jt). — Keate was libelled against in several articles at the promotion of the rector of St. George's, Hanover Square, for baptizing, marrying, and administering the sacrament in a chapel in the parish ^vithout a licence from the bishop, and for collecting money in the chajiel in the offertory and not ])aying the said money to the minister or churchwardens of the said parish. The court discharged a nde for showing cause why a pro- hiliition should not go, for these are matters of spiritual conusance. To the same effect is the following opinion given by Sir J. Nicholl, when consulted as to the consent requisite for the opening of a chapel : " A chapel for the per- formance of public worship according to the liturgy of the Church of England cannot be opened without the consent of the bishop, the minister of the pai-ish, and, I think, the patron of the living, and such chapel should be con- secrated. A clergyman performing divine service in such a cha])el as is suggested, without a licence, is liable to be punished Avith ecclesiastical censures, and upon repeating the offence, I apprehend that suspension might be inflicted. " J. NicnoLL, 1795." Moysiy v. JliUcoat. Sir J. Nicholl says, in Moysey v. IIiUcont{i), the in- cumbent of the parish has a right to jicrform divine service in any consecrated building within the pai'ish ; and again. Carry. Marsh, in Cnrr V. Marsh, " By law no jK'rsons can procure divine service to be administered without the consent of the in- cumbent and the licence of the bishop (to which, in some histances, must be added the consent of the patron), and (Ji) Serj. Hill's MSS. (0 2 Hagg. 48. OFFENCES OF THE CLERGr. 1183 the person officiatiug without such consent is hable to ecclesiastical censures "(J). In these two last cases the natui'e of unconsccratcd Proprietary ]iroprietary chapels was discussed. These are anonia- cLapels. lies unknown to the ecclesiastical constitution of this kingdom, and can possess no parochial rights. The two principal decisions upon this subject are Moysey v. Hill- coat, and Hodgson v. Dillon, ah'eady referred to. The substance of the former case was as folloAvs : a chapel being built shortly before 1735 by private subsci-iption, and the subscribers agreeing out of the pew rents to pay the rector of the pansh a yearly stipend for performing divine service, a licence was obtained from the bishop to the rector and his successors, who from time to time performed therein parochial duties ; but there being no ]3roof of con- secration, nor of any composition between the patron, incumbent, and ordinary, such chapel was held merely proprietaiy, and the minister, nominated by the rector of the parish, cannot perform parochial duties therein, nor distribute the alms collected at the Lord''s Supper Hi). The case of Hodgson v. Dillon decided that the bishop has the poxoer of revoking absolutely and discrctionaUy licences to officiate in unconse.crated chapels. During the Bishop has ab- course of this judgment, Dr. Lushington said, " I think solute power of that the principle on which the law of the Church of Eng- licence to'offi- land stands is this, no clergyman whatever of the Church ciate in an of England has any nght to officiate in any diocese in any unconsccratcd way whatever as a clergyman of the Church of England ^^^P^* unless he has a lawful avithority so to do, and he can only have that authority when he receives it at the hands of the bishop, which may be conferred in various ways; as by institution in the case of a benefice, by licence where the party is a perpetual curate, and by licence when the clergyman officiates as stipendiary curate. I need not say the ancient canon law of this country knew nothing of proprietary chapels or unconsecrated chapels at all. The necessity of the times, and want of accommodation in the churches and chapels in the metropolis and other large towns, gave rise to the erection of chapels of this kind, and to the licensing of ministers of the Church of England to perform duty therein. Tlie licence emanates from his episcopal authority ; he could not, however, grant such a licence without the consent of the rector or vicar of the ])arish." The learned judge proceeded to say that tlie bishop may revoke such licence whenever he tliiuks fit, {j) 2 riiiUini. 198. {k) 2 Hagg. 30. 1184 PISCirLINE OF TITE CTirriCII. Bisho])'s power to revoke liiencc of iinconsccratcd chapel. Barnet v. Share. Freeland v. Ncale. Jones V. Jelf. Molynenx v. Bagshaiv. English ser- vices in Wales, 26 & 27 Vict. c. 82. Bishop on certain appli- cations and under certain accordiiifj to a ilisrretion not exam'niahJi' Jnj the ecclrslas- t'tcal jiiih/r ; and that it is not in tlie ])ower of the bishop to estop himself from sneh a remedy, or to confer a per- manent rigiht afjainst l»imself(A). In tlie case o^ Barnes v. Shore {!), articles against an ordained minister of tlie Church of England for officiating in an unconsecratcd chaj)el after the revocation of his licence by the bi-^hop were sustained. An allegation re- sponsive to the articles pleading that the defendant had ])rior to the service of the citation seceded from the Estab- lished Church, and had taken certain oaths, &c. prescribed by the Toleration Acts, rejected on the groimd that those acts do not apply to a minister of the Established Chnrch, and that one in holy orders cannot divest himself of such orders (m). An unconsecratcd proprietary chapel, into which strangers are admitted, is not a " private house" or "chapel," within the meaning of the 71st Canon; con- sequently to read the ser\'ice of the church in such a building is publicly to read, &c. Again, in Freeland v. Neale {n) articles against a clergyman for ])ublicly reading ])rayers, preaching, and administering the sacrament of the Lord's Supper in an iniconsccrated building called Sackville Coller/e Chapel, without the licence of, and contrary to the inhibition of the bishop of the diocese, wei'e sustained. This case also contains a decision as to what constitutes a public reading of the prayers. The cases of Jones v. Jelfio^ and Mohjneux v. Bag- show ( p), are also cases where criminal proceedings have been taken against clergymen for publicly officiating in parishes Avithout the consent of the incumbent. As the case of Jones v. Jelf giive rise to the act next following, it may be well to mention it in this ])lace. It is an act empowering the bishops of Welsh dioceses to facilitate the proWsion of English services in the Welsh-si)eaking i^arts of Wales (26 & 27 Vict. c. 82). l>y sect. 1, " The bishop of the diocese, on an ajiplica- tion in writing from ten or more inhabitiints of any parish, district or place, setting forth their desire to have divine (A) 1 nterlocutorv decree in tlie Consistory of London, Easter Term, 7th Mav, 1840. (0 1 Roberts, .382 (1845); 8 Ad. & El. G40 (1846). (m) See, however, now 33 & 34 Yict. c. 91, iii/ra, p. 118G. (h) IRobeits, 643 (1848). Sec also Kitsnn v. Drury, 1 1 .Jur., N. S. 272 (1865). (o) 8 L. T., N. S. 399. (])) 9 Jur., N. S. 553; vide supra, p. 616. OFFENCES OF THE CLERGY. 1185 service and the administration of tlie sacraments in Eng- conditions may lish, their undertaking to provide a building for a chapel, ^^^^^^ fy^u'^^ and a clerk to officiate, and to pay all expenses of the ser- ggryices. ^^ \ace, may, if he thinks there is not sufficient pro^-ision for di\ane service in English, and on the incumbent's nomi- nating a fit minister, Hcense from year to year or for any term not exceeding two years such building as a chapel, and such minister as the minister thereof, for the perform- ance of di^dne service, preaching, and the administration of the sacraments in English." By sect. 2, " If the incumbent refuses to nominate such In case of dis- a minister, or if any disagreement as to the sufficiency of citmbra t°to ^' the ser\dces, the provision for their performance or for have notice of the minister, or in respect of the competency of the minis- bishop's inten- ter, arises between the persons applying to the bishop and ^'^J^° appeal' the incumbent, the bishop after three months from the to the arch- receipt of the application (if due notice of the application bishop. has been given by the persons appljang to the incumbent) may signify in writing to the incumbent the name of a minister whom he intends to nominate to the chapel. If the incumbent does not within fovirteen days object, the bishop may nominate and license. If he does object, the bishop shall refer the nomination to the archbishop, and the licence shall not be granted without the archbishop's approval in writing." By sects. 3, 4, The licensed building shall not, without Building not the assent of the incumbent, be a parochial chapel ; the *'^.^f^? P'"'°" , 1, , ' ^ ,, ^,1 chial riuhts. minister shall have no power to pertorm any pastoral or ministerial functions other than those specified in his licence ; and the rights of the incumbent as to publication of banns, solemnization of marriages, and performance of burials, or to offertories, fees, dues or emoluments, shall not be affected. G. As to relinquishing profession: — By Can. 76, " No man being admitted a deacon or Shall not rc- minister, shall from thenceforth voluntarily relinquish the l'-"n'"*l» !"« same, nor aftervN^ards use himself in the course of his life as a layman, upon pain of excommunication. And the churchwardens shall present him." This canon however is, as to all civil respects, materially affected by " The Clerical Disabilities Act, 1870," 33 & 3-i Vict. c. 91. The act provides as follows : — Sect. 3. " Any person admitted (before or after the Execution and passing of this act) to the office of minister (idgesin authority of the church, we, following the footsteps of the courts' holy canons, do decree, that no cUrk married, nor bigamus, nor layman, shall upon any pretence, in his own name or in the name of any other, exercise any spiritual jurisdiction ; nor in catises of correction, where the proceedings are for the liealth of the soul, or where the judge proceedeth ex officio, shall in anj^visc be a scribe, or register, or keeper of the registry of such corrections: And if any ordinary inferior to the bishop or other person having ecclesiastical juris- diction, shall admit or suffiir any such person to exercise any such office as aforesaid, he shall be ipso facto sus- (o) Scd vide sujn'a, p. 24G. (/;) Ilale's Hist, of tlic Com- mon Law, 30. 1190 DISCIPLINE OF THE CHURCH. ecclesiastical courts. (Jnalifications poiidcd from thc cxcrcisc of his office and jurisdiction, and iiKl-esin ii-om tlic entrance of tlie cliurcli; and all citations, pro- cesses, sentences, acts, and otlier pi-oceedinfrs had or made by such clerks married, l>ig;ami, or laymen, shall ipso facto incur the sentence of the g;rcatcr excommunication "(c). n7TTcn.8,c. 17. But by 37 lieu. 8, c. 17((/), it was enacted :" That all and singular persons, as well lay as married, being doctors of the civil law lawfully create and made in any university, Avho shall l)c appointed to the office of chancellor, vicar general, commissaiy, official, scribe or register, may lawftilly execute and exercise all manner of jurisdiction commonly called ecclesiastical jurisdiction, and all censures and coercions apj^ertaining or in any wise belonging to the same, albeit such person or persons be lay, married, or unman-ied, so that they be doctors of the civil law as is aforesaid ; any law, constitution, or ordinance to the contrary notwith- standing" (ra, p. 84. 1202 D1!^C1^LI^'E OF THE CllUllClI. Provincial Courts. Diocesan Courts. Courts of Archdeacons. Power of Court of Arches. by the judge of tliat court as his assessor. It has been sup- posed that a criminal suit against a bishop may be insti- tuted in the Court of" Arches. The late Archbi-shop Longley seems to have been of this ojiinion, -which is perhaps countenanced by the language of the Provincial Constitutions cited by Oughton {q) and other writers ; but I am not aware of any such suit having been ever insti- tuted. In Ireland a bishop has been deprived by a suit in the court of the archbisho]) brought ex officio promoto of his grace, not by a private person f r). Next in order are to be mentioned the DiocesanCourts, being the Consistoi'ial Court of each diocese, exercising general jurisdiction; — the court or courts of one or more commissaries appointed by the bishop, in certain dioceses, to exercise general jurisdiction -s\'ithin prescribed limits. Lastly, the court or courts of one or more archdeacons, or their officials, exercising general or limited jurisdictions, according to the terms of their patents, or to local custom, or to the authority of recent legislation. The provincial courts of the xVrchbishop of Canterbury and the Archbishop of York are independent of each other ; the process of one province not running into the other, but being sent, by a requisition, to the local autho- rity, for execution. The aj^peal from each of the provincial courts lies to the crown, which now exercises its authority through the judicial committee of the privy council. The Arches Court exercises the appellate jurisdiction fi'om each of the diocesan courts within the province. It may also take original cognizance of causes, by letters of request from each of those courts. The Diocesan Courts take cognizance of all ecclesiastical matters arising locally within their respective limits {s). The Archdeacon's Court is subordinate, with an appeal to the Bishop's Court. The 6 & 7 Will. 4, c. 77, enacts, by sect. 19, " that all archdeacons throughout England and AVales shall have and exercise full and equal jurisdiction within their rcs])ective archdeaconries, any usage to the contrary notwithstanding." It is probaljle that, under this authority, it would be competent to every archdeacon to appoint an official with {q) Vide 2>ost. (?•) Vide xupra, p. 90. («) The Ecclesiastical Courts in Jersey and Guernsey are esta- blished by canons of a.d. 1G23, confirmed l)y royal charter. The court in each island consists of the dean, or his commissary, and certain assessors chosen from among the beneficed clergy. The appeal is to the Bishop of Win- chester in person, or, secle vacante, to the Archbishop of Canterbury in person (^Dean of Jersey v. Rector of , 3 Moo. P. C. 229; Palle's Account of the Island of Jersey, Appendix, pp. 251, 260). THE ECCLESIASTICAL COURTS. 1203 power to exercise the fdnctions incident to that office, and to receive fees as such officer, Avhich otherwise would be receivable by the archdeacon (^). The jurisdictions called " Peculiars" (u), once nearly 300 Peculiars. in number, are practically abolished by recent legisla- tion {v). They were, for the most part, introduced by the Pope into this country, and seem to have had for their principal object the curtailment of the bishop's legitimate authority in his diocese (x), an object which they certainly attained, to the great confusion of ecclesiastical jurisdiction for many years. Some deans and chapters still preserve their " officials " Officials of (who were formerly judges exercising, in a great measure, ^^^^l ^^^ episcopal jurisdiction), as legal advisers and assessors in matters affecting the interests of the chapter, and in some cases still possessing perhaps some small jurisdiction as to matters connected with the fe,bric and interior arrange- ments of the cathedral. Some observations must now be made as to the general Officers of authority incident to archbishops and bishops to appoint archbishops the necessary officers for the administration of justice in their courts, and as to the character of these officers. And, first, with respect to the archbishops both of Canterbury, who is totius AnglicB Primas, and of York, who is Ajiglice Primas. The chief officer of the former is his official principal, generally known as Dean of the Arches. The office of vicar general is at present sepa- rated from that of official principal. In all the bishojDrics of England the two offices are united. The Court of Audience, it has been already said, has fallen into desuetude. It was, however, distinct from the Court of Arches (y). (f) Vide supra., p. 475. The official principal or vicar (m) See Parhain v. Templar., general of the bishop, Lindwood 3 Phill. 245. says, had no cognizance of this (v) Vide supra, p. 260. cause. (x) An exception, confirming {y) As to this distinction, see the rule of exemption, was made Statuta et Ordinationes Rev. in in cases of heresy, which being Christo &c. W. Wai-ham Archiep. de caush majoribus appertained Cantuar. in Curia Audientioi apud to the bishop, or the dean and Lambeth edita, &c. " Imprimis chapter during a vacancy, or an statuimus quod nullus officiura inquisitor specially appointed by advocati seu procuratoris in the Pope. Lind. 1. v. t. 3, p. 29B; Curia Audieutiw prajsumat ex- De Haeret. gloss/ on" Ordinarii," ercere nisi prius fuerit in advo- i. e. " Episcopi in suis dioecesibus catum vel procuratorem in Curia. qui habent ordinariam juris- Cuntuarcnsi admissus." Vide dictionem circa non exemptos suae Lindwood in fine, p. 76. " Consti- dicBcesis. Circa exemptos vero in tntio Officialis Cantuarensis Curice sua dioecesi existentes habent ju- ConsistoriaJis de Arcubus pro tri- risdictionem delegatam a Papa." bunali sedens: Decrevitetstatuit, 1204 DISCIPLINE OF THE CHURCH. Officers of The celebrated Zoucli, ulio wrote in 1636 " Dcscriptio archbishops jnris et jiulioii ecclesiastici secundum Canones et Consti- and bishops. t^^tiones Angllcanas" (r), says, " Inter Curias vero Arcliie- piscopi Cantuarensis primaria est Curia dc Arcubus, ab Ecclesia arcuata quro Londini Beatfe Virgini Marias dicata est, denominata : cujus judex Decanus de Arcubus insignitur. Post earn Cama Audientire in Ecclesia Bcati Pauli Londini liabetur: qure etsi n^qualis sit jmisdictionis, inferior tamen cum antiquitatc tum dignitate existimatur : ejusque judex causarum negotiorumque audientiie Can- tuarensis auditor sen officialis dicitur." But Ougliton, called by Lord Stowell " one of the oracles of our practice," writing in 1728 («) " De Curia (olim) Aiidientiffi Cantuarensis," ends by saving, " Nullus autem a plurimis abliinc retroactis annis extitit Audientiai Judex : utpote Forensis. Hfec itaque Curia Audientise Cantuarensis omnino jamdudum exolevit: nisi quatenus ipse (nonnunquam) Archiepiscopus in arduis (utputa deponendis JEjnscopis aut similibus) audientiam suam cele- brat in propria persona et proprio in palatio cum auditore spcciali, sive auditoribus ad hoc specialiter constitutis, pro ista vice ima secum assidentibus." Mr. Johnson says : " The Archbishop of Canterbuiy had formerly his Court of Audience, in which at first were dispatched all such matters, Avhether of voluntary or con- tentious jurisdiction, as the archbishop thought fit to reserve for his OAvn hearing. They who ]n-epared evidence and other materials to lay before the archbishop, in order to his decision, were called auditors. Afterwards this court was removed from the archbishop's palace, and the jurisdiction of it was exercised by the master official of the audience, who held his court in the consistory place at St. Paul's. But now the three gi-eat offices of official ])rinci)ial of the archbishop, dean or judge of the peculiars and official of the audience, are and have been for a long time ])ast united in one person under the general name of Dean of the Arches, who keepeth his coui't in Doctors' Commons Hall" {b). " The Archbishop of York hath in like manner his court of audience " (c). de assensu et voluntate omnium sistorial court of the Arches, and existentium in dicta curia aZ'Ae?(. 33G. THE ECCLESIASTICAL COURTS. 1213 As the bisliop may bound commissions in point of Coutiuuauce. power, so he may also bound them in point of dui-atlon. The commission of official, for hearing of causes, is the only one which the bishop is pretended to be under an obligation to grant, and he (as official) has less shai'e than any other in the spiritual administration ; and yet even in this the rule of the law is, that the power of officials ceases, not only by revocation, but by the death of him who de- puted them. And the reason given for it is, that otherwise upon the death of the bishop the guardian of the spiritual- ties (and the same holds good of the successors also), might have an unacceptable person intailed upon him. Accord- ingly, before the Reformation, and for some time after, we find new commissions for offices of all kinds generally o-ranted tog-ether after the consecration or translation of a new bishop, and those grants usually either to continue during pleasure in express words, or without any mention of the continuance for life or other term, and so equally revocable at the pleasure of the bishop. The same seems to have continued, at least the common style, for some years in the reign of Queen Elizabeth, and in the next reign Ave find it a question in the case of the prebend of Hatcherley, whether any confirmation could bind the suc- cessor; and though in the case of Dr. Barker, in the tAventy-first year of King James I., the court were of opinion that the bishop had no right to take from him his office of commissary and vicar general, which Avas granted for life ; it is to be observed, that that grant had been made by deed fi-om the bishop himself, aa'Iio therefore Avas bound by his OAvn act, and could not undo it at pleasure ; but in the next reign, in 3 Car. 1, in Sutton's case, it is mentioned again as a doubtful point, Avhether the grant of the predecessor (hoAVCA'cr confirmed) could bind the suc- cessor (j). And it should seem that the grantees themselves doubted their title for life, in the knoAvn Avay of commissions, ac- cording to the ecclesiastical method ; and therefore for greater security (no doubt by the advice of common hiAATcrs), they obtained the offices by Avay of letters patent, Avith the habendum and other attendants on temporal gi-ants ; in Avliich Avay they still continue. And it is iioav, as has been already observed, taken for clear laAv in the case of bishops and other ordinaries, that the grant of an office for life by the predecessor, Avhether judicial or minis- terial, if it be confirmed by the dean and chapter, is bind- (,/j (libs. Introd. '25. 1214 DISCIPLINE OF THE CIIL'ECn. Continuiince of power. When an action lies against a chancellor. ing to the successor. But it is to be remcmborccl tliat tliis is au allowance, and not a command ; the law declares such grants good when made, but does not direct them to be made ; in this the bishop is at his own liberty as much as ever, no restraint therein being laid upon him by any law of this realm (k). The same holds good much more strongly in the case of grants for more lives and grants in reversion. In favour of a grant for one life it may be alleged that the grantee, under the uncertainty of the life of the grantor, Avould have no encouragement to sequester him from all other business, and turn his thoughts wholly to the execution of that office ; and that by the time he has attained a comjietent know- ledge of persons and things relating to it, he may be removed ; but these cannot be pleaded iu favour of grants for more lives, and grants in reversion. It is true, the temporal courts do so far restrain such grants as to declare them void unless Avarranted by precedents before 1 Eliz. c. 19, in the case of bishops, and before 13 Eliz. c. 10, in the case of others (in which years the two statutes were made against the laying these and the like imreasonablc burdens upon successors), and they also do declai'e them void unless they be granted freely and without reward, and unless the grantee (su])])0sing him of full age) appear to have sufficient knowledge for the work. But they have allowed them to be good upon the foundation of precedents subsequent to 1 Eliz. c. 19, on presumption that there might be precedents before ; and the}^ have also allowed grants to minors to be good, on presumption that in due time they will qualify themselves for the offices, and that luitil such time as they shaU come of age they may supply the places by deputies (^). An action lies against the judge of an ecclesiastical court who has acted beyond the jurisdiction of the court: as where a party was excommunicated for refusing to obey an order of the ecclesiastical coui*t which it had no autho- rity to make ; or where the party had not been previously served with a citation or monition, nor had due notice of the orders (tw). An action was holden not to lie against the vicar general of the bishop for excommimicating the plaintiff for contumacy in not taking upon him adminis- tration of intestate's effects to whom })1aintiff was next of kin, and had intermeddled with the goods, &c. ; although the citation by which pkiiutifi" was cited was void by reason (k) Gibs. Inti-od. 25. (0 Ibid. 2G. (»)) Bcaurain v. Scott, 3 Cowp. 388, per Lord Ellenboroiigli. THE ECCLESIASTICAL COURTS. 1215 that it required liim to appear aud take administration, &c. without leaving him an option to renounce it, and the pro- ceedings thereupon had been set aside upon appeal ; for the vicar general had jurisdiction over the subject-matter, viz., the granting administration, and there was no malice (/?), Commissary is a title of jurisdiction, appertaining to Commissary, him that exercises ecclesiastical jurisdiction in places of ^^ * ^ ^^' the diocese so far distant from the chief city, that the chancellor cannot call the people to the bishop's ]u*incipal consistory court without great trouble to them. This com- missary is called by the canonists commissarius, or ojficialis foraneus, and is ordained to this special end, that he should supply the office and jurisdiction of the bishop in the out places of the diocese, or in such parishes as are pecidiars to the bishop, and exempted from the archdeacon's jiuis- diction : for where by prescription or by composition there are archdeacons who have jurisdiction in their arch- deaconries, as in most places they have, there the office of commissary is superfluous (o). Official is the judge of the archdeacon's court (p). Official. (») Acherley v. Parkinson^ 3 missary;" 4 Inst. 338. M. & S. 411. (p) Vide sup-a, p. 243. (o) Terms of the Law, " Com- 1216 DISCIPLINE or THE ciiuiccn. ClIAPTEll V. OFFICERS OF THE ECCLESIASTICAL COURTS. Sect. 1. — Advocate. 2. — Proctor. 3. — Refjister or Retjistrar. 4. — Secretary. 5. — Notary Public. 6. — Apparitor. Sect. 1. — Advocate. Who may be. LiNDWOOD says that by the civil law none could be advo- cate, ])ut he who had studied for five years (a). But this is mitigated by a constitution of Archbishop Pcccham to three years ; by which it is enjoined that none shall be permitted to exercise the office of advocate, unless he shall have been for three years at least a dili- gent hearer of the canon and civil laAv. And he shall give proof of this by his own oath, if the same shall not appear by proper testimony, or by the notoriety of the fiict (b). Generally, by the usage and practice of England and other countries at tliis day, a person may be admitted to this office who has taken a doctor of laws' degree (c). No inamlanius In the casc of Rex V. The Archbishop of Canterbury, to admit. in 47 Geo. 3, an application was made to the Court of King's Bench for a mandamus to the archbishop, to issue his fiat to the vicar general of the province of Canterbury, for the jmrpose of making out a rescript under the seal of the vicar general, commanding the Dean of Arches to admit Dr. Highmore as an advocate in the Court of Ai-ches. Dr. Highmore had taken his doctor of laws' degree at Cambridge, and the fiat was refused, because he had been admitted into deacon's orders. Lord Ellen- . borough, C. J., " There ought in all cases to be a specific legal right, as well as the want of a specific legal remedy, in order to found an application for a mandamus. Nothing {<>) Liiid. 7C. (h) Lind. 75. (r) Ayl. rarerg. 5i. OFFICERS or THE ECCLESIASTICAL COURTS. 1217 appears to show that Dr. HIghmore has any legal right to what he claims, more than any other of his majesty's subjects ; therefore we cannot interfere" (J). The stamp duty on the admission of an advocate is, by Stamp duty. 33 & 34 Vict. c. 97, schedule, tit. "Admission," 50/. By the Canons of 1 603 it was ordered as follows : " For the liis office in furtherance and increase of learning, and the advancement general, of civil and canon law, it is ordained that no proctor, exer- cising in any of the archbishop's courts, shall entertain any cause whatsoever, and keep and retain the same for two court days without the counsel and advice of an advocate, under pain of a year's suspension from his practice ; neither shall the judge have power to release or mitigate the said penalty, without express mandate and authority from the archbishop" (e). " And no judge in any of the said courts shall admit any libel or any other matter, without the advice of an advocate admitted to practise in the same court, or without his subscription ; neither shall any proctor conclude any cause depending, without the knowledge of the advocate retained and feed in the cause ; which if any proctor shall do or procure to be done, or shall by any colour Avhatso- ever defraud the advocate of his duty or fee, or shall be negligent in repairing to the advocate and requiring his advice what course is to be taken in the cause, he shall be suspended from all practice for the space of six months, without hope of being thereunto restored before the said term be frdly complete" (y). " No inhibition shall be granted out of the archbishop's In case of court at the instance of any party, unless it be subscribed inhil>itions. by an advocate practising in the said court, Avhicli the said advocate shall do freely, not taking any fee for the same, except the party prosecuting the suit do voluntarily bestow some gratuity upon him for his counsel and advice in the said cause : the like course shall be used in granting forth any inhibition at the instance of any party by the bishop or his chancellor against the archdeacon, or any other person exercising ecclesiastical jurisdiction. And if in the court or consistory of any bishop there be no advo- cate at all, then shall the subscrijition of a proctor prac- tising in the same court be held sufficient" ((/). All advocates shall take care that they do not suborn Suborning Avitnesses by themselves or by any other, or instruct the witnesses. parties cither to suggest what is false, or suppress the (d) 8 East, Rep. 213. le) Can. 130. (/) Ccan. 131. Xu) Can. 9G. 1218 DISCIPLINE OF THE CHURCH. trutli. And all avIio shall act contrary licrcTinto sKall ])e ipso facto suspended from their office, until they shall make competent satisfaction, and shall be otherwise duly punished u]ion conviction of their offence (h). In the Report of the Ecclesiastical Commissioners of 1832 it was stated as follows: — Judges ami " The ecclesiastical laws, as now existing, have been advocates. ^q^. upwards of three centuries administered, in the jirin- cipal courts, by a body of men associated, as a distinct 23rofession, for the practice of the civil and canon laws. " Some of the members of this body, in the year 1567, 2;)iu'chased the site upon which Doctors' Commons now stands, on which, at their own expense, they erected houses for the residence of the judges and advocates, and proper buildings for holding the ecclesiastical and admi- ralty coiu'ts, where they have ever since continued to be held. In the year 1768, a royal charter was obtained, by virtue of which the then members of the society, and the successors, were incorporated, luider the name and title of * The College of Doctors of Law exercent in the Ecclesi- astical and Admiralty Courts.' " This college consists of a president (the Dean of the Arches for the time being) and of those doctors of law who, having regularly taken that degree in either of the universities of Oxford and Cambridge, and having been admitted advocates in pursuance of the rescript of the Archljishop of Canterbury, shall have been elected fellows of the college in the manner prescribed by the charter. " From this brief account of the origin, and present constitution, of the college of doctors of law, it will be seen that no person can be admitted a member, or allowed to practise as an advocate in the coiu'ts at Doctors' Com- mons, without having first taken the degree of Doctor of Laws in one of the English universities. " According to the present rules of these courts, a can- didate for admission, as an advocate, is required to deliver, into the office of the vicar general of the province of Can- terbury, a certificate of his having taken the degree of Doctor of Laws, signed by the registrar of the university to which he belongs. A ])etition, praying that in consi- deration of such qualification the candidate may be ad- mitted an advocate, is then presented to the archbishop, who issues his Jiat for the admission of the apphcant, directed to his vicar general, who thereupon causes a rescript or commission to be prepared, addressed to the {h) Utlio. Atliun, 70. OFFICERS OF THE ECCLESIASTICAL COURTS. 1219 Dean of the Arches, empowering and requiring him to admit the candidate as an advocate of that court. To this a pro\aso is always added, ' that the person to be admitted shall not practise for one whole year from the date of his admission,' in order that, by attending during that interval, he may acquire a competent knowledge of the form of the proceedings in those courts. " On the day appointed for the admission, which is always one of the four regular sessions in each terra of the Arches Court, the candidate is presented, by the two senior advocates, to the dean, Avho directs the archbishop's rescript to be read, and the oaths to be administered; which being done, he is admitted into the nimiber of advocates, according to the tenor of the rescript. " From the college of advocates the archbishop has always selected the judges of the archiepiscopal courts." The college Avas abolished in pursuance of 20 & 21 Vict. Modern c. 77, ss. 116, 117, when the probate and divorce courts changes. were estabhshed. The ecclesiastical courts have latterly, ex necessitate rei, admitted barristers to practise in them, but the archbishop's power to admit advocates remains. By the Church Discipline Act, 3 & 4 Vict. c. 86, s. 7, it was enacted, " that if the bishop's commissionei's think there is prima facie ground for instituting proceedings against a clergyman, articles shall be drawn up against him, Avhich must be signed by an advocate practising in Doctors' Commons" (?'). Sect. 2. — Proctor. In the Report of the Ecclesiastical Commissioners of 1832, it is said as follows: — ** Proctors in the ecclesiastical and admiralty courts dis- charge duties similar to those of solicitors and attornies in other courts. " In order to entitle a person to be admitted a proctor. Who may be to practise in the Court of Arches, it is required that he proctors. shall have served a clerkship of seven years, under articles, with one of the thirty-four senior proctors, who must be of five years' standing; and who, by the rules of the court, is prohibited from taking a second clerk until the first shall have served five years ; except in the event of the death of (t) Sed vide poat^ cliaptor on Procedure under 3 & 4 Vict. c. 80. 1220 DISCIPLINE OF THE CIIUKCH. ^Vllo limy be proctors. Proctors how appointed. Proxies. Proctor not obliged to answer foreign seals. a proctor, to Avliom a clerk may have been articled, before tlie term of his clerkship is com])lete(L In this case any other of the thii-ty-fom- senior proctors may take such clerk for the remainder of the term, althongh he himself may at the same time have a clerk of less than five years' standing. Before a clerk is permitted to be articled, he is required to produce a certificate of his having made reasonable progress in classical education. " When the term of seven years is completed, the party is admitted a uotaiy, by a facxdty from the Archbishop of Canterbury; a petition is then presented to his grace, ac- companied by a certificate, signed by three advocates and three proctors, that the party applying to be admitted has served, as articled clerk to a proctor of the court, for the full term of seven years. If this certificate is ap])roved, the archbishop issues his fiat, and a commission is directed to the Dean of the Arches, by whom the party is admitted under the title of a supernumerary, with similar ceremonies to those observed on the admission of an advocate. " The proctor so admitted is qualified to commence busi- ness upon his own account immediately, but he is not en- titled to take an articled clerk, until he shall have been for five years Avithin the number of the thirty- four senior proctors." Proctors are officers established to represent in judgment the parties who empower them (by warrant under their hands called ?i, jiroxij) to appear for them, to explain their rights, to manage and instruct their cause, and to demand judgment (A). Two proxies are generally executed; one authorizing the proctor to institute, the other to withdraw proceedings. They are signed by the parties, attested by two witnesses, and deposited in the registry of the court (/). The proctor, till such power be withdrawn, is (lonibnis litis. A proctor is not obliged to answer to foreign seals, and to the subscription and seals of foreign notaries; the rule of a proctor's answering extends only to the seals of courts in England, and to the seals and subscriptions of English notaries, Avith which the law supposes him to be ac- quainted {in). (Jc) 2 Dom. 583. (l) The nature of roctor, or be suspended fi'om the office, fimction and ])ractice of a proctor in all and every the said court or courts for so long a period as the judge or judges of the said court or courts may deem fit; save and except as to any allowance or allowances, sura or sums of money that are or shall be agreed to be made to the wadows or children of any deceased ]iroctor or jiroctors by any siu'viving ])artner or partners of such deceased ])roctor or proctors ; and also save and except as to any agreement made, or (o) Pcccliam, Liiicl. 7G. (p) Vide supra ^ \k 1217. OFFICERS OF THE ECCLESIASTICAL COURTS. 1223 vmderstood to have been made, between proctors and articled clerks, whose articles have been executed prior to the passing of this act"((7). Sect. 9. " In case any person or persons shall in his or Tersons ex- in their own name, or in the name of any other person or ercising func- 11. • n i. i.i tions of a persons, make, do, act, exercise or periorm any act, matter pj-octor not or thing' Avhatsoever, in any way appertaining or belonging being duly to the office, function or practice of a proctor, for or in enrolled. consideration of any gain, fee or reward, or with a view to participate in the benefit to be deiived from the office, functions or practice of a proctor, without being admitted and enrolled, every such person, for every such offence, shall forfeit and pay the sum of fifty pounds, to be sued Penalty. for and recovered in manner hereinafter mentioned." Sect. 10. " Nothing herein contained shall extend or be Troviso for construed to extend to any salary Avhich shall be agreed to s'^laries of be ]3aid by a proctor, his partner or successor, to a clerk ggyen years really and hondjide serving in his office at the time of the standing. passing of this act, and who shall have been bond fide serving in the office of any proctor or proctors for seven years next before the passing of the same." Sect. 11. "All pecuniary forfeitures and penalties im- Recovery of posed on any person or persons for offences committed penalties, &c. against this act, shall and may be sued for and re- covered in any of his Majesty's courts of record at AVest- minster." By 10 Geo. 4, c. 7, s. 16, Koman Catholics are excluded from any office in the ecclesiastical courts. By 41 Geo. 3, c. 79, s. 14, it is provided that nothing in that act re- gulating pubhc notaries shall apply to a proctor in the ecclesiastical courts (?-). In Leigh's case in 2 Will. 3 (s), a proctor of Doctors' Power of the Commons, who had done business without the advice of ecclesiastical T ' , 1 j^ 1 . court over an advocate, contrary to the canon, and retased to pay a proctors. tax of 105. imposed upon him by order of the court towards the charges of the house, and was suspended from his office, prayed a mandamus in the Court of King's Bench to be restored : but it was denied, and said by the court, that officers are incident to all courts, and must partake of the nature of those several and respective courts in which they attend ; and the judges, or those Avho have the supreme authority in such courts, are the proper persons to censure the behaviour of their own officers ; ancl if they should be son (q) See Stephenson v. Jlic/gin- Public." n, 3 H. L. C. G.S8. (s) Gibs. 995; 3 Mod. 332. See (r) Vide :post, Sect. 5, "Notary 3 Bae. Abr. 531. 1224 DISCIPLINE OF THE CllUllCir. Power of the ecclesiastical courts over proctors. Pauper — proctor. Admission of proctors. mistaken, the King's Bencli camiot relieve, for in all cases where such judges keej) •within their bounds, no other court can correct their errors in proceedings ; and if any wrong be done in this case, the party must aj)])eal. The decisions have established the following proposi- tions: — Where a party regularly complains of gross extortion l:)y his proctor, the court may punish the proctor by susi)en- sion or otherwise ( ?<). In a case where a proctor had charged 88/. 45. 4(1. , and the bill was referred to the registrar, who reported the proper charge to be 521. I5s. 6d., the court suspended the proctor for three months, and condemned him in costs : in this case it was the first time his conduct had been brought before the coui*t, and there were other ex- tenuating circumstances (x). A client is under all circum- stances entitled to a detailed biU of costs from his proctor; and where it has been long acquiesced in, and payment made after the close of the suit, he is not entitled to have it referred to the registrar for examination (y). A proctor is clominus litis, and therefore responsible to the court for the purity of his proceedings (z). But the court has no ])ower to decide Avhat expenses are due between proctor and client, or to enforce payment of them ; but Avhere costs are given against a party, the court, in order to carry its sentence into execution, is empowered to tax the costs and to enforce their payment. AU that the court can do in the case of proctor and client is to refer the biU to the registrar for his examination ; this is merely in aid of justice, and for the convenience of suitors («). A party having been admitted to sue as a pauper was, on facts respecting an income, proved against him by the proctor assigned to him, dispaupered {h). The laAN-ful admission of proctors depends upon the usage and practice of the court into which they are ad- mitted. A decree of a judge of a diocesan court for the admis- sion of proctors, contrary to the usage and practice of his comi;, has been reversed on appeal to the Arches Court (c). The claim of a proctor in the Arches Court of Canter- («) Prentice \. Prentice, 3 Phill. ?Al; Peddle v. Evans, 3 Hagg. 081). (x) In the goods of Lady TTat- toi, Finch, .3 ilag!?. 255. (y) Pcdillc v. Toller, 3 Ilagg. 29G. (z) Myun v. Eohinson, 2 Ilagg. 195. (a) Peddle V. Toller, 3 Ilagg. 381), per Sir J. Niclioll. (i) Lait V. Bailey, 2 Roberts. Ecc. licp. 159 (1852). (r) Fell V. Bnwl, 1 Roberts. Ecc. Rep. 740 (1849). OFFICERS OF THE ECCLESIASTICAL COURTS. 1225 buiy to practise in a diocesan court of the province, Avlth- out having been formally admitted therein, has been allowed (^d). " A proctor, by virtue of his proxy, may be held by the court till after sentence, and till then it Avill not be suffi- cient for him to declare he proceeds no further for his party. But if an appeal is interposed he is not bound to give an appeal so far. On the contrary, he cannot act without exhibiting a new proxy in the Court of Ap- peal" {e). By 33 & 34 Vict. c. 28, s. 20, " It shall be lawfld for an attorney or solicitor to perform all such acts as apper- tain solely to the office of a proctor in any ecclesiastical court other than the provincial courts of the Archbishops of Canterbury and of York, and the diocesan court of the Bishop of London, without incurring any forfeiture or penalty, and to make the same charges which a proctor would be entitled to make, and to recover the same, any enactment or enactments to the contrary notwithstanding." Proctor may- be kept before court. Attornies may- act as proctors except in courts of Canterbury, York and London. Sect. 3. — Hegister or Registrar. By Can. 123 of 1603, "No chancellor, commissary. His presence archdeacon, official, or any other person using ecclesiastical pecessary to a jurisdiction, shall speed any judicial act, either of conten- ^^ ^^^^ ^^ ' tious or voluntary jurisdiction, except he have the ordinary register of that court, or his lawful deputy ; or if he or they will not or cannot be present, then such persons as by law are allowed in that behalf to write or speed the same, under pain of suspension ipso facto^ And this is according to the rule of the ancient canon laAv ; which, to prevent falsifications, requires the acts to be written by some public person (if he may be had), or else by two other credible persons : and the credit which the canon law gives to a notary public is, that his testimony shall be equal to that of two witnesses (_/). By Can. 134, "If any register, or his deputy or substi- When he tute whatsoever shall receive any certificate without the "^^^ "^ '^'^^" knowledge and consent of the judge of the court ; or willingly omit to cause any person (cited to appear upon {(l) BulUn V. Harris, 6 Notes of Cases, p. xli (Supp.) (1848). (c) Dr. Battine's opinion, Mr. Toker's ISISS. 357. See OMcini V. Bl/'gh, 8 IJingham, 352, as to r. VOL. II. difference between proctor and attorney; see also Cat. of Pro- cesses in Del., No. 679, a.d. 1707. (/) Gibs. 990. As to his behig a notary, vide infra, p. 1232. 4 K 122Q DISCU'LINE OF THE CHURCH. AVhcn he may be suspcuded. ITow his office is to be sup- plied during suspension. Opinions on this point. any court day) to be called ; or unduly put off and defer the examination of witnesses to be examined by a day set and assigned by the judge; or do not obey and observe the judicial and lawful monition of the said judge ; or omit to Avrite or cause to be written such citations and decrees as are to be put in execution and set forth before the next court day ; or shall not cause all testaments exhibited into his office to be registered Avithin a convenient time ; or shall sit down or enact, as decreed by the judge, any thing false or conceited by himself, not so ordered or de- creed by the judge ; or in the transmission of ]irocesses to the judge ad quern, shall add or insert any falsehood or imtruth, or omit any thing therein, either by cunning or by gross negligence; or in causes of instance, or promoted of office, shall receive any reward in favour of either party, or be of council directly or indirectly with either of the parties in suit ; or in the execution of their office shall do ought else maliciously, or fraudulently, whereby the said ecclesiastical judge or his proceedings may be slandered or defamed: we will and ordain, that the said register, or his deputy or substitute, offending in all or any of the premises, shall by the bishop of the diocese be suspended from the exercise of his office, for the space of one, two, or three months or more, according to the quality of his offence ; and that the said bishop shall assign some other ]Hiblic notary to execute and discharge all things pertaining to his office, during the time of his said suspension." Dr. Harris says a registrar may be articled against "for " neglect of or refusal to do his duty, and might be cen- " sured for it by suspension from his office and deprivation *•' if he persisted in his neglect or refusal." This is a very curious and learned opinion (A). But the remedy against the registrar for taking excessive fees is by action at common law under 21 Hen. 8, c. 5, s. 5. Sir AV. Wynne says, " If the registrar misbehaves " in the duties of his office he is liable to be suspended " and even deprived of it. But I do not think that the " chancellor has power eo^-^j-a-judicially to exclude the " registrar from the execution of any duty of his office, " or to confer it ujion any other person." " I do not think " that the chancellor can appoint his seal-keeper to issue " out licences without passing through the hands of his " registrar. I think that usage of very many years will *' justify the registrar in taking an equal fee Avith the " chancellor iipon marriage licences, notwithstanding that (A) My. Tokers :\[SS. 4GG. OFFICERS OF THE ECCLESIASTICAL COURTS. 1227 '' his fee was less in the old table publislied in the 16th ** century" {i). Dr. Godolphin says, if there be a question between two Right to office persons touching several grants, which of them shall be t° ^® *™d ^^ register of the bishop's court ; this shall not be tried in the '^^* bishop's court, but at the common law ; for although the suhjectum circa quod be spiritual, jet the office itself is temporal {j). So in the case of Rex v. Ward, in 4 Geo. 2, there was Mandamus to a mandamus to Dr. Ward, the commissary, to admit admit. Henry Dryden to be deputy register of the Archbishop of '^^•^' ^'- ^^''"• York's court: suggesting that Dr. Thomas Sharpe had been admitted to the office, to execute the same by himself or his deputy ; that he had appointed Dryden (who is averred to be a fit person) to be his deputy, whom the commissary had refiised to admit, to the great damage of Dr. Sharpe who complains ; and therefore the Avrit com- mands the commissary to admit and swear Dryden, or show cause to the contrary. To this the commissary returns; that long before the constituting Dryden to be deputy, John Sharpe and Thomas Sharpe were admitted to the office as princi^ials, to hold for then' lives, and the life of the survivor; that they, in the year 1714, appointed John Shaw to be their deputy, who executed the office till John Sharpe died; that Thomas Sharpe survived, and on May 12, 1727, by a new appointment constituted Shaw his deputy, who was admitted, and executed the office until suspended in the manner after mentioned ; that Shaw at the time of his admission took an oath that he should justly and honestly execute the office, Avithout favour or reward, and do every thing incumbent on the office, and not be an exacter or greedy of rewards ; and then sets forth the 134th canon ; and further, that wliile Shaw was deputy, several proctors of the court on the 16th of February, 1727, exhibited to the commissary several articles against him, complaining of divers misbehaviours in his office, contrary to several of the particulars set forth in the said canon ; that Shaw being summoned on the 6th of April, 1728, gave in his answer in writing (Avhich is set forth) ; and then the return goes on, that forasmuch as it appeared to the commissary that the answer was insufficient, and that Shaw had confessed himself guilty of several omissions and extortions in the exercise of his office, therefore upon complaint thereof to the archbishop, he on the 21st of May, 1728, by his commission under his (0 ^l\: Toker's IMSS. 4G7. (i) God. 125. 4 K 2 1228 DISCIPLINE OF THE CIIUKCII. Mandamus to admit. Rex V. Ward. archiepiscopal seal directed to the commissaiy and reciting that Shaw had been guihy in the manner before mentioned, did therefore emjiower the commissary to suspend him and assume another notary pubhc ; that by virtue tliereof, he on the 24tli of May, 1728, suspended Shaw for five years, and assumed Joseph Leech a notary public, who before the constituting Dryden to be deputy, took upon him and has ever since executed tlie office : that Shaw appealed, and in that a])peal alleged, that on the 23rd of May, 1728, lie resigned the office, and that Dr. Sliarpe had appointed AVilliam Smith to be deputy ; that delegates were appointed, who on the 23rd of October, 1728, issued an inhibition to the commissary, that pending the appeal he should do nothing to the prejudice of the appellant ; that the appeal remains undetermined; and for these reasons he cannot admit Dryden to be the deputy of Dr. Sharpe. Strange argued, that the return was ill, and that there ought to be a peremptory mandamus ; which argument Avas to the following effect : " I must observe in general, that there is no incapacity returned in Dryden, no want of any regular appointment or deputation ; on the contrary, it appears that Dr. Sharpe had a power to make a deputy, and that he had executed it with regai'd to Dryden. As therefore Dryden hath prima facie a regidar title to the office, the commissary who is to admit him ought not to refuse to do his duty ; especially considering, that the admission gives no right, but only a legal posses- sion, to enable him to assert his right if he has any. And upon this foundation it is, that non fait electiis hath been held no good return to a mandannis to swear in a church- warden, because it is directed only to a ministerial officer, •who is to do his duty, and no inconvenience can follow ; for if the party hath a right, he ought to be admitted ; if he hath not, the admission will do him no good. This effect of a mandamus to admit, Avas laid down in the case of Rex V. The Dean and Chapter of Duhlin (H., 7 Geo. 1), ■which was a mandamus to admit one Dougate to his seat in the choir and his voice in the chapter ; for wherever the office is but ministerial, he is to execute his part, let the consequence be what it Avill. In the case of Rex v. Simpson (jNL, 11 Geo. 1), there was a mandamus to the Archdeacon of Colchester, to swear llodney Fane into the office of churchwarden ; the archdeacon returned, that before the coming of the writ he received an inhibition from the bishop ; but the court held that was no excuse, and that a ministerial officer is to do his duty, Avhether the act will be of any validity or not. In the case of Taylor OFFICERS OF THE ECCLESIASTICAL COURTS. 1229 "v. Raymond (M., 4 Geo. 1), to a mandamus to swear in a churcliwarden, it was returned, that before the coming of the writ he had sworn in another, and it was held an ill return, for be the right which way it will, the officer is to do his duty. These two last cases are both in point ; in one there was an inhibition (as there is in this case), and in the other there was another officer, as they pretend there is here, to wit, Joseph Leech. But what is that inhibition ? it is, to do nothing that may prejudice the appeal. Can this hurt Shaw ? no ; if he is relieved on the appeal, he Avill be restored, though another is admitted ; if he is not relieved, it must be for want of a right, and he will not be capable of suffering any prejudice by the other's admission. But what takes off all pretence of the inhibition's being material in this case is, that it appears by Shaw's own showing, that he had the day before his suspension surrendered his deputation; and that accounts for the last part of the return, that the appeal is undetermined; it not being of any consequence to Shaw to prosecute it any further ; besides, this would be to deprive Dr. Shar]ie of the benefit of this office as long as Shaw should think fit to sleep upon the appeal, Dr. Sharpe having no power to expedite the deter- mination. A deputy is but at will ; and this is to deprive Dr. Shai'pe of his Avill for five years; which suspension I take to be illegal ; for the expression in the canon of such a number of months or more, must have a reasonable construction, and can never be extended to five years. Shaw is entirely divested of the office, which answers the purpose of reformation better than a bare suspension. As therefore, the office is vacant, there can be no reason why the commissary should refuse to fill it up, and a peremptory mandamus ought to go." And by the court : " Surely it is attempting too much, to support this as a good return ; the effect of a mandamus, as laid down, is certainly so, that it gives no right. The canon only intended that the bishop should suspend where the principal would not re- voke ; but an actual revocation is better than a suspension. It would be carrying the power of inhibitions a great way if we should allow them the force contended for by the return. We are therefore all of opinion, that the return is ill." Then exception was taken to the writ, that a mandamus would not lie for a deputy ; and for this Avas cited 6 Mod. 18, Avhere Holt, Chief Justice, lays it down that for a deputy a mandamus will not lie. But it Avas ansAvered, that this is not a mandamus for the deputy, but for the principal to be admitted to have a deputy; the refusal of Dryden is laid to be, to the great damage of 1230 DISCIPLINE OF THE CHURCH. ]Mandamns to Dr. Sharpe, and, therefore, to do Dr. Sliarpe right in the admit. premises is the writ awarded ; it appears that Dr. Sharpe Hex V. ^^ard. \yr^^ ^ freehold in tlie office, so though liis deputy is but at will, he lias it for life; and in 1 Ventr. 110, a mandamus was granted to restore a person to the office of deputy steward of the court of the council of the Marches, and it was held to lie for a revocable deputy, because the prin- cipal has no other way to get him admitted ; and in the report of the same case in 1 Lev. 306, it is said by the court, that although a mandamus does not lie for a deputy, yet it lies for him avIio dejiutes him, to have him admitted or restored, for otherwise he may })e dei)rived of his power to make a deputy. Then it was further objected, that a man- damus does not lie for a spiritual office ; and for this Avere cited divers cases, where it was determined that a mandamus will not lie for a proctor, who belongs as much to the ecclesiastical court as the register docs. Unto which it was answered, that this is not any objection ; a mandamus has been granted to admit an under-schoolmaster, and yet schoolmasters are within the canons of 1603 as well as registers ; so in the case of Mr. Folks, lately for the office of apparitor-general of the Archbishop of Canterbury ; so it has been often granted for a parish clerk ; for a sexton ; so in like manner it was granted to restore Dr. Bentley to his degrees ; and to admit Dr. Sherlock to a prebend at Norwich ; and it is to be observed that no assize Avill lie for this office, therefore if the party has not this remedy he has none ; the reason Avhy it was refused to a proctor was, because it did not appear what interest he had, but here appears a freehold. And by the court : " We all think this writ is good, notwithstanding the exceptions that have been taken, and therefore a peremptory man- damus must go " (^). Rex V. Bp. of In Rex v. The Bishop of Gloucester the registrars of a Gloucester. diocese were authorized by their patent of office (under the bishop's hand and seal) to a])point a deputy " to be approved of and allowed by the bisliop," avIio, if he should not approve of and allow the deputy named and ])ro])osed to him, was emjjowered to nominate another witli a salary l)ayable out of the profits of the registrarship. I^he regis- trars appointed a deputy, subject to the approval of the bishop, who declared that, " for good and sufficient rea- sons," which he did not specify, he disaj)provcd of the party nominated. In this case the court refused a rule nisi for a mandamus to the bishop to admit the deputy (/). (/.•) Str. 893. (0 2 B. & Adol. 158. OFFICERS OF THE ECCLESIASTICAL COURTS. 1231 In the case of The Bishop of Bangor, avIio atrs prose- Bp. of Ban- cuted at the Shrewsbury Assizes in 1796, by the deputy 9o>''scase. registrar of the Consistorial Court, for a riot and assault in forcibly taking jDossession of his room in the chapter house, Mr. Justice Heath intimated his doubt whether the bishop had the poAver of withdrawing his confirmation once given of this officer's appointment, and his strong opinion that at all events he must have recourse to a pro- ceeding at common law. The jury, however, acquitted the defendant. This case has obtained great celebrity, from the speech delivered by Lord Erskine in his defence of the bishop (?/i). In Ridley v. Porimall{n), it was holden that the bishop Registrar in of a new diocese might appoint a registrar. °ew diocese. A registrar may recover his fees by action at law (o). Tees. The duty of the registrar by statute to register orders in Duty to regis- council, baptisms, burials, under the statutes 1 & 2 Vict, ter under c. 106, s. 116, and 52 Geo. 3, c. 146, s. 8, has been already mentioned (;j). Under 3 & 4 Yict. c. 113, ss. 88, 89, he is bound imder penalties to register every order in council made under that act, and is entitled to a fee in each case for so doing. Sect. 4. — Secretary. The office of secretary to a bishop is one of comparatively Nature of modern origin ; its duties are nowhere defined, and there office, seems no reason Avhy the office, though a convenient one, should necessarily exist. Secretaries are, however, men- tioned in 41 Geo. 3, c. 79, s. 14(^7). They are also men- Mentioned in tioned in 1 & 2 Vict. c. 106, ss. 47, 131, where they are statutes. spoken of as officers having to do with the admission of spiritual persons to benefices or cathedral preferments, and provision is made for fixing their fees in these matters by Order in CouncA; and their fees have been accordingly so fixed (r). * (7ft) See the whole trial re- 233; S/ir^j/iej-fZy. Prt?/ne, 12 C. B., ported in vol. i. of Lord Erskine's N. S. 414 ; 16 ib. 132 ; 31 L. J., Speeches. See as to tlie revo- C. P. 297; 33 ib. 158; Veley v. cation of the appointment of a Pertwee, L. li., 5 Q. B. 573 ; vide deputy registrar, analogy of de- post, Cliapter on Visitation, puty recorder, Beg. v. Sutton^ 10 {p) Pp. 582, 653, snpra; and Mod. 74, case 44. vide supra, Part IV., Ciiap. VII. (n) 2 Lev. 136. ((7) Vide infra , p. 1235. (0) Ballard v. Gerard, 12 Mod. (r) Vide siipra, pp. 474, 521. 608; Ld. Raym. 703; 1 Salk. 1232 DISCIPLINE OF THE CHURCH. Mentioned in statutes. They are further mentioned in 30 & 31 Vict. c. 135, s. 1, as liavino; duties and receivinp^ fees on consecrations and ordinations ; and their fees in sucli matters have been fixed by an Order in Council IVanicd under the ])owers of this statute and gazetted on INIarch lUth, 18G9 {t). Kotary, who. How ap- pointed. ^faster of faculties. Sect. 5. — Notary Public (?/). A notary was anciently a scribe, that only took notes or minutes, and made short draup;hts of writings, and other instruments both pubHc and private. But at this day we call him a notary public, who confirms and attests the truth of any deeds or Avritings in order to render the same authentic (a:). The law books give to a notary several names or appel- lations ; as actiinrius, ref/istrarias, scrlniarius, and such like. All which Avords are put to signify one and the same person. But in England, the word registraruis is confined to the officer of some court, who has the custody of the records and archives of such court, and is oftentimes distinguished from the actiiary thereof. But a register ought always to be a notary pubHc, for that seems to be a necessary qualification of his office. A notary public is appointed to this office by the Arch- bishop of Canterbury ; who in the instrument of appoint- ment decrees, that " full faith be given, as well in as out of judgment, to the instruments by him to be made." AVhich apjiointment is also to be registered and sub- scribed by the clerk of his majesty for facidties in Chan- ceiy {y\ ^ The chief officer of the Archbishop of Canterbury is the master of faculties, to whom applications are to be made for the admission or the removal, under any special cir- cumstances, of notaries. In the Institutes, the Court of Facvdtles is stated to be '' a coiu-t, although it holdcth no plea of controversie. It belongeth to the archbishop, and his officer is called magister ad fuctdtatcs''' (z). Lord Coke supposes that it holds no plea of contro- versy. Several instances have, however, occurred in my recollection in which the application to be admitted a notary has been argued by counsel before this judge. (<) Yidc supra^ p. 131 ; vide 2wst. (u) See Brooke's Treatise on the Office and Practice of a No- tary. (x) Ayl. Par. .382. (y) 1 Ought. 486; Avl. Par. 385. (z) Inst, part 4, p. 337. OFFICERS OF THE ECCLESIASTICAL COURTS. 1233 Notaries are mentioned in the Statute of Pro\dsors, 25 Edw. 3, Stat. 4 (a.d. 1351), in 27 Edw. 3, stat. 1, c. 1 (a.d. 1353), and in 16 Eic. 2, c. 5 (a.d. 1392 — 1393), commonly called the Statute of Prffimunire. 25 Hen. 8, c. 21, sect. 2, enacts as follows: "That 25 Hen. 8, neither your highness, your heirs nor successors, kings of c- 21. this realm, nor any your subjects of this realm, nor of any No person other your dominions, shall from henceforth sue to the anv'dis'ensa- said bishop of Home called the Pope, or to the see of tion or licence Rome, or to any person or persons having or pretending to the bishop any authority by the same, for licences, dispensations, *^tRome. compositions, faculties, grants, rescripts, delegacies, or any other instruments or -^NTitings, of what kind, name, nature, or quality soever they be of, for any cause or matter, for the which any hcence, dispensation, composition, faculty, grant, rescript, delegacy, instrument, or other writing, heretofore hath been used and accustomed to be had and obtained at the see of Rome, or by authority thereof, or of any prelates of this realm ; nor for any manner of other licences, dispensations, compositions, faculties, grants, rescripts, delegacies, or any other instruments or writings that in causes of necessity may be lawfully granted without offending of the holy scriptures and laws of God ; but that from henceforth every such licence, dispensation, composi- tion, faculty, grant, rescript, delegacy, instrument and other wanting afore named and mentioned, necessary for your highness, your heirs and successors, and your ^nd their people and subjects, upon the due examinations of the causes and qualities of the persons procuring such dis- pensations, licences, compositions, faculties, grants, re- scripts, delegacies, instruments or other writings, shall be granted, had or obtained, from time to time, within this yoiu' realm, and other dominions, and not elsewhere, in manner and form following, and none otherwise ; that is The Arch- to say, the Archbishop of Canterbury for the time being, bishop of and his successors, shall have power and authority, from may^2:raTi7 time to time, by their discretions, to give, grant, and dis- dispensations pose, by an instrument under the seal of the said arch- to the king. bishop, imto your majesty, and to your heirs and successors, kings of this realm, as well all manner such licences, dis- pensations, compositions, faculties, grants, rescripts, de- legacies, instruments, and all other writings, for causes not being contrary or repugnant to the holy scriptures and laws of God, as hci'ctofore hath been used and accus- tomed to be had and obtained by your highness, or any your most noble progenitors, or any of your or their sul)- jects, at the see of Rome, or any person or persons by au- 1234 DISCIPLIXK OF THE CIIURCir. 2o licn. s, tliority of the same; and all otlier licences, dispensations, fjiciilties, compositions, grants, rescripts, delegacies, instru- ments, and other writings, in, for and uj)on all such causes and matters as shall l)e convenient and necessary to be had, for the honour and surety of your highness, your heirs and successors, and the wealth and profit of this your realm ; so that the said archbishop or any of his suc- cessors, in no manner wise shall grant any dispensation, licence, rescript, or any other Avriting afore rehearsed, for any cause or matter repugnant to the law of Almighty God." The third section provides that the archbishop or his " sufficient and substantial commissary deputy" may grant such faculties. It would seem from section 1 1 that an appeal lay from the master of the fiiculties to the lord chancellor. 41 Geo. 0, The 41 Geo. 3, c. 79, intituled " An Act for the better *^" * Regulation of Public Notaries in England," enacts as fol- lows : — " Whereas it is expedient, for the better prevention of illiterate and inexperienced persons being created to act No person in as, or admitted to the faculty of public notaries, that the England to ^^^^^ faculty should be regulated in England :" . . . fl.ct unless - • " *^ duly admitted. Sect. 1. " No person in England shall be created to act as a ])ublic notary, or use and exercise the office of a notary, or do any notarial act, unless such person shall have been duly sworn, admitted and inrolled, in manner herein- after directed, in the court wherein notaries have been accustomarily sworn, admitted and inrolled." Sects. 2, 3 and 7 provided that no ]ierson should be admitted a notaiy unless he had served n notary seven years, and an affidavit to that effect Avas filed. These provisions have been repealed by the following act, 6 & 7 Vict. c. 90. By sect. 13 of 41 Geo. 3, c. 79, " * And whereas the Incorporated Company of Scriveners of London, by virtue of its charter, hath jurisdiction over its members being i-esident within the city of London, the liberties of AVest- juiiister, tlic ])orougli of Southwark, or witliin the circuit of three miles of the said city, and hath power to make good and wholesome laws and regulations for the govern- ment and control of such members, and the said company of scriveners, practising within the aforesaid limits, and it is therefore expedient that all notaries resident within the limits of the said charter should come into and be under the jurisdiction of the said company ;' be it therefore Tcrsens ap- enacted, that all persons who may hereafter apply for a OFFICERS OF THE ECCLESIASTICAL COURTS. 1235 faculty to become a public notary, and practise witliin the plying for a city of London and the liberties thereof, or within the faculty to be- circuit of tlu'ee miles of the same city, shall come into and ^vithin the become members and take their freedom of the said com- jurisdiction of pany of scriveners, according to the rules and ordinances ^^ company of the said company, on payment of such and the like fine shall previously and fees as are usually paid and payable upon the admis- take their sion of persons to the freedom of the said company, and ffeedom of the shall, previous to the obtaining such faculty, be admitted to the freedom of the said company, and obtain a certificate of such freedom, duly signed by the clerk of the same company for the time being, -which certificate shall be produced to the master of facidties, and filed in his office prior to or at the time of issuing any faculty to such person to enable him to practise within the jurisdiction of the said company." Sect. 14. " Nothing in this act contained shall extend Act not to or be construed to extend, to any proctor in any ecclesi- p^octorsla astical court in England ; nor to any secretary or secre- ecclesiastical taries to any bishop or bishops, merely practising as such courts, sccre- secretary or secretaries ; or to any other person or persons ^^5^-,*° ^cc necessarily created a notary public for the purpose of holding or exercising any office or appointment, or occa- sionally performing any public duty or service under government, and not as general practitioner or practi- tioners ; anything hereinbefore contained to the contrary notAvithstanding : provided always, that nothing herein contained shall extend or be construed to exempt any proctor, being also a public notary, fi-om the pains, penal- ties, forfeitures and disabilities by this act imposed upon any public notary, who shall permit or suffer his name to be in any manner used for or on account, or for the profit and benefit of any person or persons not entitled to act as a public notary." By 6 & 7 Vict. c. 90, reciting 41 Geo. 3, c. 79, and further reciting as follows : " And whereas doubts have arisen whether a public notary, being also an attorney, solicitor, or j^roctor, can have and retain any person to serve him as a clerk or apprentice in his profession or business of a public notary, and also at the same time in that of an attorney, solicitor or proctor, and whether such service is in conformity with the provisions of the said recited act : and Avhereas it is expedient to remove all such doubts A^dth regard to persons wdio have served or are now serving or may hereafter serve as a clerk or apjirentice in manner aforesaid ;" it is enacted as folloAv^: : Sect. 1. "Every person who has been duly admitted, rublicnutaiics 1236 DISCIPLINE OF THE CHURCH. may retain clerks or ap- prentices in their business as such, or as attorneys, and notaries if so practising, and persons serv- ing them not disqualified. No public notary to re- tain a clerk or apprentice, unless in actual practice. Persons serv- ing five years to a notarj' to be entitled to admission as notaries. Proviso as to consent of notary if bound for a longer time. sworn and enrolled a public notarj in England may take, have and retain any clerk or apprentice to serve liim under tlie provisions of the said recited act or of this act in the proper business of a public notary, or if such person is also an attorney or solicitor in any of the courts of law or equity, or a proctor in any ecclesiastical court in England or Wales, to serve him at the same time in the general business of a notary as well as that of an attorney, solicitor or proctor ; and that no person who shall have regularly and duly served any such public notary, being also an attorney, solicitor or proctor, for the time required by the said recited act or this act, and be otherwise entitled to be admitted a public notary, shall be prevented or disqualified fi-om being so admitted a public notary by reason of his having also served a clerkship to such pubhc notary or his partner as an attorney, solicitor or proctor during the same time or any part thereof." Sect. 2. " No public notary may have and retain any such clerk or apprentice to serve him, under the provisions of the said act or of this act, if he has been admitted, sworn and enrolled a public notary for the purpose only of carry- ing on any business, or holding or exercising any office or appointment, and not as a general practitioner ; nor shall any public notary be allowed to have and retain such clerk or apprentice after he shall have discontinued or left off or during such time as he shall not actually practise and carry on the profession or business of a public notary." Sect. 3. "In case any person shall have been or shall be bound by any contract to serve and shall have actually served as a clerk or apprentice for the terra of five years any public notary as aforesaid, and shall have caused an affidavit to be made and filed as to the due execution of such contract, and shall have complied with the other pro- visions of the said recited act, save as to the length of service, then and in such case every such person shall be quahfied and entitled to be sworn, admitted and enrolled a public notary to practise in England, as fully and effec- tually as any person ha-vdng been bound and having served seven years as required by the said recited act would be qualified and entitled to be sworn, admitted and enrolled a public notary under and by virtue of the said recited act : provided always, that no person shall be entitled to be admitted and enrolled a public notary at the expiration of the term of five years, if bound for a longer time, Avithout the consent in writing of the public notary, if living, to whom he shall have been so bound being first obtained and produced at the time of his admission, and filed with OFFICERS OF THE ECCLESIASTICAL COURTS. 1237 the otlier papers relating thereto ; and provided also, that If affidavit as in case the affidavit required by the said recited act as to ^^ contract^ e the execution of any contract be not filed -within the time not filed within requii-ed by the said act, the same may be filed by the time requiied, proper officer after the expiration thereof, but the service reckon 7rom° of such clerk shall be reckoned to commence and be com- the day of puted from the day of filing such affidavit, unless the filing, unless master of the faculties shall otherwise order; and such orderrd^^ service shall be as effijctual, and the public notary and clerk shall be equally bound for and during the term, reckoning as aforesaid, as if such term had been originally intended and mentioned in the contract." Sect. 4. " The master of the faculties for the time being Master of the may make any general rule or rules requiring testimonials, faculties may certificates, or proofs as to the character, integrity, ability, moniab^of^^" and competency of any person who shall hereafter apply ability, &c. for admission or re-admission as a public notary to practise either in England or in any of her Majesty's foreign territories, colonies, settlements, dominions, forts, factories, or possessions, whether such person shall have served a clerkship or not, and from time to time alter and vary such rules as to the master of the faculties shall seem meet, and may admit or reject any person so applying, at his dis- cretion, any law, custom, usage, or prescription to the con- trary notwithstanding." Sect. 5. "If the master of the faculties shall reftise Appeal. to grant any faculty to practise as a public notary to any person without just and reasonable cause, then the chancellor of England or the Lord Keeper of the Great Seal for the time being, upon complaint thereof being made, shall direct the Queen's Avrit to the said master of the faculties to the effect and shall proceed thereon according to the intent and meaning of the act 25 Hen. 8, c. 21, and in manner and form as is therein provided and set forth in , case of the refusal of any licences, dispensations, faculties, instruments, or other writings, as fully and effectually, and with the same powers and authority, as if the same were here inserted and re-enacted." Sect. 6 saves the rights of the Scriveners company. Sect. 7. " Every person to be admitted and enrolled a Oath on ad- public notary shall, before a faculty is granted to him mission of authorizing him to practise as such, in addition to the ^"^ ^^^' oaths of allegiance and supremacy (a), make oath before (a) Now turned into a simple oath of allegiance by 31 & 32 Viet, c. 72. 1238 DISCIPLINE OF THE CHURCH. Oath on admis siou of uutary. Oaths, &c. may be taken by commis- sion. Application to strike a notary off the roll for defect in articles, &c. to be made ■nnthin twelve months. the said master of the faculties, his suiTogate or other proper officer, in substance and to the effect following : 'I A. B, do swear, That I will faithfidly exercise the * office of a public notary ; I will faithfully make contracts ' or instruments for or between any i)arty or jmrties re- ' quiring the same, and I will not add or diminish any ' thing without the knowledge and consent of such ]mi-ty ' or ])artics that may alter the substance of the fact ; I ' will not make or attest any act, contract, or instrument ' in which I shall know there is violence or fraud ; and in ' all things I will act uprightly and justly in the business ' of a public notary, according to the best of my skill and ' ability. So help me God.' " And that such oath shall be i-eceived and taken instead of the oath of office now in use on the admission of a notary public, which oath shall from and after the passing of this act be wholly discontinued : provided ahvays, that in such cases where by any act an affirmation or declaration is allowed to be received instead of an oath, or any form of oath or declaration substituted instead of the oaths of allegiance and supremacy, the said master of the faculties, his surrogate or other proper officer, is hereby authorized and empowered to receive a declaration or affirmation in- stead of any oath required by this act, or such form of oath or declaration instead of the oaths of allegiance or supremacy as by any act of parliament is authorized and allowed." Sect. 8. " Tlie master of the faculties for the time being, or his surrogate, shall and he is hereby authorized and empowered to issue commissions to take any oaths, affi- davits, affirmations, or declarations required by law to be taken before the grant of any faculty, marriage licence, or other instrument issuing from the said office of faculties; and that all oaths, affidavits, affirmations, or declarations taken before the commissioner so aj)pointed, and the faculty, marriage licence, or other instrument granted in pursuance thereof, shall be as valid and effectual as if such oath, affidavit, affirmation, or declaration was taken before the said master or his surrogate, any thing in any act or law to the contrary thereof notwithstanding." Sect. 9. " No person who has been admitted and en- rolled a public notary shall be liable to be struck off" the rolls for or on account of any defect in the articles of clerk- ship, or in the registry thereof, or in his service under such articles, or in his admission and enrolment, unless the application for striking him off" the roll be made Avithin OFFICERS OF THE ECCLESIASTICAL COURTS. ' 1239 twelve months from the time of his admission and enrol- ment; provided that such articles, registration, service, admission, or enrolment be without fraud." Sect. 10. "In case any person shall, in his own name Persons prac- or in the name of any other person, make, do, act, exercise, tariefnotbein"- or execute or perform, any act, matter, or thing whatso- duly autho- ever of or in anymse appertaining or belonging to the rized to for- ofRce, function, or practice of a public notary, for or in expectation of any gain, fee, or reward, without being able to jDrove, if required, that he is duly authorized so to do, every such person for every such offence shall forfeit and pay the sum of fifty pounds, to be sued for and recovered by action of debt, plaint, or information in any of her Majesty's superior courts of record at Westminster, or if the cause of action shall have arisen in any colony or place to her Majesty belonging out of England, then in the supreme court of law of such colony or place, provided the action for the recovery thereof shall be commenced within twelve months next after the fact committed ; and that, save so far as they are altered or repealed, or re- Like forfei- pugnant to the provisions of this act, the like remedies for ^^^^^ P™' '^ '^ . If nni 1 1 T • Visions as lU recovenng thereoi, and ail other the rules, du-ections, former act, and powers, and provisions contained in the said recited act, all the powers and also in the act 3 & 4 Will. 4, c. 70 {b), shall and may 3''rrwnL if severally and respectively attach and be in force as fully c. 70, not here- and effectually as if the said penalties were imposed, or ^^y varied, to the said remedies Avere given, or the same powers, rules, •/ ^^ °^'^^ ^^ -,. . , ..° ' '11 \ • ^^ re-enacted, du'ections, and provisions were particularly enacted m or by this act, or repealed and re-enacted." By 41 Geo. 3, c. 79, s. 4, " The following persons Officers for shall be deemed and taken to be the proper officers for taking and taking and filing such affidavits ; (that is to say,) the davifs^ master of the faculties of liis grace the Lord Archbishoj) of Canterbury in London, his surrogate or commissioners." Sect. 5. " The officer filing such affidavits as afore- Officers filing said shall keep a book, wherein shall be entered the sub- affidavits to stance of such affidavit, specifying the names and places of glance in a" abode of every such public notary, and clerk or person book. bound as aforesaid, and of the person making such affidavit, with the date of the contract or indenture of apprenticeship in such affidavit to be mentioned, and the days of swearing and filing every such affidavit respectively; and such officer shall be at liberty to take, at the time of filing every such affidavit, the sum of five shillings and no more, as a recom- Fee. pense for his trouble in filing such affidavit; and which book shall and may be searched in office hours by any (/') Vhlp infra, ,). 1241. 1240 DISCIPLINE OF THE CHURCH. Book may be searched. Fee. If any master shall die, or leave off prac- tice, or any indenture shall be cancelled by mutual consent, or any ajiprcntice shall he legally discharged, in such cases if apprentices serve the residue of seven years with other masters, it shall he effec- tual, if an affidavit he filed of the second con- tract. Apprentices bound before admission, to file affidavits that they have really served seven years. If any notary shall act as such, or permit his name to be used for the profit of any person not entitled to act as a notary, he shall be struck off the roll. person or jiersoiis -wliomsoever, upon payment of one shilling- for such sciirch." Sect. 8. " If any such public notary, or scrivener being also a ]>ublic notary, to or with whom any such person shall be bound, shall liapjien to die before the expiration of such term, or shall discontinue or leave off such his ])racticc as aforesaid ; or if such contract or indenture of apprenticeship shall, by mutual consent of the parties, be cancelled ; or in case such clerk or apprentice shall be legally discharged before the expiration of such term, and such clerk or apprentice shall, in any of the said cases, be boimd by another contract or contracts, indenture or indentures in writing, to serve, and shall accordingly serve in manner hereinbefore mentioned, as clerk or apprentice to any such public notary or scrivener (being also a public notary), as aforesaid, during the residue of the said term of seven years («), then such service shall be deemed and taken to be as good, eftectual and available, as if such clerk or apprentice had continued to serve as a clerk or apprentice for the said term of seven years to the same person to whom he was originally boinid ; so as an affidavit be duly made and filed of the execution of such second or other contract or contracts, within the time and in like manner as is hereinbefore directed concerning such original contract." Sect. 9. " Every person Avho . . . shall become bound as clerk or apprentice as aforesaid, shall, before he be ad- mitted and inrolled a pul)]ic notary according to this act, make before, and file with, the proper officer hereinbefore for that purpose mentioned, or cause the public notary, to whom he was bound, to make and file an affidavit that he hath actually and really served and been employed by such jiractising public notary, to whom he Avas bound as aforesaid, during the whole term of seven years (r/), according to the true intent and meaning of this act." Sect. 10. " If any public notary shall act as such, or permit or suffer his name to be in any manner used for or on account, or for the profit and benefit, of any person or persons not entitled to act as a public notary, and complaint shall be made in a summary way to the court of faculties wherein he hath been admitted and inrolled, upon oath, to the satisfaction of the said court, that such notary hath offended therein as aforesaid, then and in such case every such notary so offending shall be struck off the roll of faculties, and be for ever after disabled from practising as a public notary, or doing any notarial act ; save and except as to any allowance or alloAvances, sum or sums of (r/) Now five years ; vide siipra, p. 123G. OFFICERS OF THE ECCLESIASTICAL COURTS. 1241 money, that are or sliall be agreed to be made or paid to the widows or children of any deceased pubhc notary or notaries, by any surviving partner or partners of such deceased notary or notaries." Sect. 1 1 imposes a penalty of 501. on any person doing anything belonging to the office of notary without being admitted. Sect. 16 provides for the recovery of this penalty. • Sect. 17 limits the time for bringing actions to three months, provides that the venue shall be laid only in the county where the cause of action arose, gives leave to plead the general issue, and gives the defendant, if suc- cessful, treble costs. The case of Rex v. Scriveners^ Company (c), upon the construction of the old act, may be considered as noAv obsolete. As to district notaries the following special act has been District passed. By 3 & 4 Will. 4, c. 70, " Whereas by 41 Geo. 3, notaries. c. 7 9, it is enacted that no person shall be sworn, admitted 3 & 4 Will. 4, and inroUed as a public notary, unless such person shall have ^' "^ been liound by contract in writing or by indenture of apprenticeship to serve as a clerk or apprentice for the term of not less than seven years to a public notary, or a person using the art and mystery of a scrivener (according to the privilege and custom of the city of London, such scrivener being also a pubhc notary), duly sworn, admitted and inroUed, and shall have continued in such service for the said term of seven years ; and certain other enactments are contained in the said act, regulating the admission and practice of notaries public : And whereas the proAasions of the said act are in their operation found to be extremely inconvenient in some places distant from the city of London:" . . . Sect. 1, " So much of the said recited act as Recited act requires that persons to be admitted notaries public shall limited to have served a clerkship or apprenticeship for seven years, tcn^niiles^"' as hereinbefore mentioned, shall, so far as the same affects thereof, persons being attornies, solicitors, or proctors admitted as hereinafter mentioned, be limited and confined to the city of London and liberties of Westminster, the borough of Soutlnvark, and the circuit of ten miles from the lioyal Exchange in the said city of London." Sect. 2. " It shall and may be lawful for the master of Attornies m.ny the Court of Faculties of his grace the Lord Archbishop ^^e ^''.Ij^f^^J ^J of Canterbury in London from time to time, upon being ^^^^^^^ limits. satisfied as well of the fitness of the person as of the expe- (0 10 B. & C. 511; 3Q. B. 939. r. VOL. II. 4 L 1242 DISCIPLINE OF THE CHURCH. .T & 4 Will. 4, c. 70. Not to autho- rize notaries appointed therebr to act in London or within ten miles thereof. Notary ad- mitted under this act, prac- tising out of his district, to be struck off the roll of faculties. Notarial acts abroad. Office of notary in the contestation of suit. diency of the appointment, to appoint, admit and cause to be sworn and inrolled in the said Court of Faculties any person or ])ersons residing at any })lace distant more than ten miles from the Koyal Exchange in the said city of London, who shall have been previously admitted, sworn and inrolled an attorney or solicitor in any of the courts at Westminster, or who shall be a proctor })ractising in any ecclesiastical court, to be a notary j)ublic or notaries public to ])ractise within any district in which it shall have been made to a])pear to the said master of the Coiu't of Faculties that there is not (or shall not hereafter be) a sufficient number of such notaries public admitted or to be admitted under the provisions of the said recited act for the due convenience and accommodation of such district, as the said master of the Court of Faculties shall think fit, and not elsewhere; any law or usage to the contrary not- withstanding." Sect. 3. " Xothing herein contained shall extend to au- thorize any notary avIio shall be admitted by virtue of this act to practise as a notary, or to perform or certify any notarial act Avhatsoever, within the said city of London, the liberties of Westminster, the borough of Southwark, or within the circuit of ten miles ft-om the Royal Exchange in the said city of London." Sect. 4. " If any notary admitted by virtue of this act shall practise as a notary, or perfonn or certify any notarial act whatsoever, out of the district specified and limited in and by the faculty to be granted to him by virtue of this act, or within the city of London, the liberties of West- minster, the borough of Southwark, or the circuit of ten miles from the lloyal Exchange in London aforesaid, then and in eveiy such case it shall be laAvful for the said Court of Facidties, on complaint made in a summary way and duly verified on oath, to cause every such notary so offend- ing to be struck off the roll of faculties, and every person so stnick off shall thenceforth for ever after be wholly dis- abled from practising as a notary or performing or certify- ing any notarial act whatsoever; anything herein contained to the contrary notwithstanding." By 6 Geo. 4, c. 87, s. 20, and 18 & 19 Vict. c. 42, British dij^lomatic and consular officers abroad may ad- minister oaths and do notarial acts. A notary public (or actuary) that writes the acts of court ought not only to be chosen by the judge, but approved also by each of the parties in suit; for though it does of common right belong to the office of the judge, to assume and choose a notary for reducing the acts of court in every OFFICEES OF THE ECCLESIASTICAL COURTS. 1243 cause into writing, yet lie may be refused by the litigants: for the use of a notary was intended, not only on account of the judge, to help his memory in the cause, but also that the litigants might not be injured by the judge (d). And, particularly, the office of a notary in a judicial cause is employed about three things : first, he ought to register and inrol all the judicial acts of the court, according to the decree and order of the judge, setting down in the act the very time and place of writing the same ; secondly, he ought to deliver to the parties, at their especial request, copies and exemplifications of all such judicial acts and proceed- ings as are there enacted and, decreed; and thirdly, he ought to retain and keep in his custody the originals of such acts and proceedings, commonly called the protocols {■TrqcoTog xoAXrJ, the notes, or Jirst draughts (^e)^, the things ^v&t glued together(y). As a notary is a public person, so consequently all in- Authenticity struments made by him are called public instruments; and of his pro- a judicial register of record made by him is evidence m every court according to the civil and canon law. And a bishop's register establishes a perpetual proof and evidence, when it is found in the bishop's archives ; and credit is given not only to the original, but even to an authentic copy exemplified {g). And one notary public is sufficient for the exemplifica- tion of any act ; no matter requiring more than one notary to attest it (A). And the rule of the canon law is, that one notary is equal to the testimony of two witnesses : unus notarius csquipollet duobus testibus (i). By 33 & 34 Vict. c. 97, the faculty for admitting or an- Stamps. thorizing a notary shall be upon a 30/. stamp. And every notarial act shall be on a Is. stamp. In the catalogue of processes in the registry of the High Suit for im- Court of Delegates, fi-om 1609 to 1823, will be found the properly acting following record: "No. 590. Willicans v. Gentry. In '^^ loai^. Ima inst. Off". Judicis (Bishop of St. Da\dd's) promoted by Gentry against Williams;" as it should seem, for acting as notary without a regidar faculty. It has been said, (fZ) Ayl. Par. 382. know thou art a public notary, (e) Hoffman. Lex. Univ. v. and sucli stand in law for a ProtocoUum. dozen witnesses," is Massinger's (/) Just. Novella, 45, De allusion to this dictum, in the Tabellionibus. mouth of Sir Giles Overreacli. ({/) Ayl. I'ar. 38G. —Ncio Way to pmj Old Debts, (It) Ibid. act 5. Vide siqn-a, p. 1225. (?) Gibs. 90G. "Besides I 4 L 2 1244 DISCIPLINE OF THE CHURCH. that, by sect. 11 of 25 Hen. 8, c. 21, the ajipeal from the master of the faculties hcs to the lord chancellor. Ivonian Catholics may now be notaries public. Tower nndcr The followinfif ojiiniou Mas given by the attorney-general 5 & G ^\ ill. 4, iipQij various points respecting the act for the abolition of imnecessary oaths, 5 & 6 AVilJ. 4, c. 62, submitted for his opinion by the Society of Public Notaries of London : " You are requested to advise the Society of Public No- taries of London, — " 1st. Whether, under the above act of 5 & 6 Will. 4, s. 15, a notary public, duly admitted and practising, be authorized to receive the solemn declarations mentioned in the said section? " I think there is no doubt whatever that a notary is au- thorized to receive the solemn declarations referred to. The authority is expressly given, and there is nothing in the act to restrict or qualify it. " 2ndly. Whether, by the same section, the provisions of the act extend to debts, &c. due to residents in Great Britain and Ireland, by persons resident in foreign states, in like manner as to debts, &c. in his Majesty's colonies? " I do not think that the loth section extends to debts due by persons resident in foreign states. " 3rdly. Whether the blank in the schedule of the act for the year of the reign should be supplied by the words ' fifth and sixth years of the reign,' &c., or by the word ' sixth' year, the royal assent having been given in the sixth year of his Majesty's reign? " The blank in the schedule ought to be filled up with the word ' sixth' only. Xo single act of parliament can be ])assed in two years of the king's reign. *' J. CaSU'EELL. " Temple, Sept. 30, 1835." Form of a Faculty appointing a Notary Public. " , by Divine Providence Archbishop of Canterbury , Primate of all Enyland, and Metropolitan, by authority of Parliament laufnlly empowered for the jmrpjoses herein xnritten: To our beloved in Christ , a literate person note residing , health and grace: We being willing, by reason of [or, " IVliereas it has been made known to our master of the faculties that there is an insufficient number of notaries at : ice therefore, by reason of the premises, and o^*"] yoiw merits, to confer on you a suitable title of promotion, do create you a public notary ; previous examination, and the other refjuisites, to be herein observed, having been had: And do out of our favour towards you OFFICERS OF THE ECCLESIASTICAL COURTS. 1245 admit you into the number and society of other notaries, to the end that you may henceforward in all -places [clause of exception or limitation] exercise such office of notary: hereby decreeiny, that full faith ought to be given, as well in judgment as thereout, to the instruments to be from this time made by you; the oaths hereunder xoritten having been by us, or our master of the faculties, first required of you and by you taken.'''' [Here come the oatlis of allegiance, of office, as by 6 & 7 Vict. c. 90, s. 7 ; and of service, if not under 3 & 4 Will. 4, c. 70.] " Provided always, that these presents do not avail you anything, unless duly registered and subscribed by the clerk of her Majesty for faculties in chancery. Given under the seal of our office of faculties, at Doctors^ Com- mons, this day of , in the year of our Lord one thousand eight hundred and , and in the year of our translation.'''' In the cases oi Dering and Brooke v. Wright (May 4, Cases where 1836), and Hoskins v. Greetham (February, 1838), caveats atlmission has were entered against the grant of a faculty, and the causes ^^^ aiguet . were argued by counsel at Doctors' Commons before the Master of the Faculties. In the former case the faculty was granted, in the latter refused. There have been several cases of late years in which the question of the admission of notaries has been argued. The Melbourne notaries have been several times before the Master, the last time being the lOtli of April, 1872. On the same day a case was argued relating to a Liverpool notary. On the 27th of July, 1871, a case of Stephenson and Oates v. Hearfield, relating to the admission of notaries at Great Grimsby, was argued. All these latter cases were before the present Master, Dr. Lushington, at his private house. The modern practice, in the case of district notaries, is Modem for the applicant for admission to file a memorial signed piacticc. by himself, and a further memorial of such of the jmncipal inhabitants of the place where he intends to practise as will support his application. The memorial may be met by a counter-memonal on the part of the opponents, and fui-ther memorials may be filed in reply. Affidavits arc rarely used. Every application should be supported by a certificate of the fitness and good character of tlie appli- cant, signed by two notaries public. Individual notaries, and in some cases societies of notaries 1246 DISCIPLINE OF THE CIIUKCII. practising at a particular jilace, are admitted to oppose tlie grant of" faculties to applicants. Who. ITnw ap- pointed. His office and duty. Canon 138. Sect. 6. — Apparitor. Apparitors (so called from that principal branch in their oftice, ■which consists in summoning persons io appear) are officers ajipointed to execute the proper orders and decrees of the court (Ji). And these are chosen by the ecclesiastical judges re- spectively ; who may suspend them for misbehaviour, but may not remove them at discretion, "when they hold their office by patent. The proper business and employment of an apparitor is, to attend in court, to receive such commands as the judge shall please to issue forth ; to convene and cite the defen- dants into court; to admonish or cite the parties in the ]iroduction of Avitnesses and the like ; and to make due return of the process by liim executed (i). For particular regulations in early times, see Otho, Athon. 63; and Boniface, Lind. 221. By 21 Hen. 8, c. 5, as well as by the 138th canon, apparitors are called summoners or sumners(/<). By Canon 138 of 1603, "Forasmuch as we are desirous to redress such abuses and aggrievances as are said to gi'ow by sumners or apparitors; Ave think it meet that the multi- tude of a]iparItors be (as much as is possible) abridged or restrained: wherefore avc decree and ordain that no bishop or archdeacon, or other their vicars or officials, or other inferior ordinaries, shall depute or have more apparitors to serve in their jurisdictions respectively, than either they or their predecessors were accustomed to have thirty years before the publishing these our present constitutions. All which apparitors shall by themselves faithfiilly execute their offices; neither shall they under any colour or pretence whatsoever cause or suffisr their mandates to be executed by any messengers or substitutes, unless upon some good cause to be first known and aj)proved by the ordinary of the place. IMoreover, they shall not take upon them the office of promoters or informers for the court. Neither shall they exact more fees than are in these our constitu- (70 Ayl. Parerg. 07. (?) Ibid. G8. {h) The Avord used in Chaucer, Canterbury Talcs. OFFICERS OF THE ECCLESIASTICAL COURTS. 1247 tions formerly prescribed. And if either the number of the apparitors deputed shall exceed the assigned limitation, or any of the said apparitors shall offend in any of the premisses ; the persons deputing them, if they be bishops, shall upon admonition of their superior discharge the per- sons exceeding the number so limited ; if inferior ordinaries, they shall be suspended from the execution of their office, until they have dismissed the apparitors by them so de- puted; and the parties themselves so deputed shall for ever be removed from the office of apparitors, and if being so removed they desist not from the exercise of their said offices, let them be punished by ecclesiastical censures as persons contumacious. Pro\aded, that if upon experience the number of the said apparitors be too great in any diocese, in the judgment of the archbishop for the time being, they shall by him be so abridged, as he shall think meet and convenient." This canon was probably founded on the decrees in the Provincial Constitutions of Lindwood. Faithfully execute their Offices J] — If a monition be Cases on Can. awarded to an apparitor, to summon a man, and he upon 1^8. the retiu'n of the monition avers that he had summoned him, when in truth he had not, and the defendant be there- upon excommunicated ; an action on the case at common law will lie against the apparitor for the falsehood com- mitted by him in his office, besides the punishment inflicted on him by the ecclesiastical court for such breach of trust (/). Office of Promoters or Informers for the Court.^ — The case of Carlion v. Mill, in 8 Car. 1, was an action u]5on the case, for that the defendant being an apparitor under the bishop of Exeter, maliciously, and without colour or cause of suspicion of incontinency, of his OAvn proper malice, procured the plaintiff ex officio, upon pretence of fame of incontinency with one Edith (whereas there was no such fame nor just cause of suspicion), to be cited to the consis- tory court, and there to be at great charges and vexation until he was cleared by sentence ; which was to his great discredit, and cause of great expenses and losses ; for which the action is brought. Upon not guilty pleaded, and found for the plaintiff, it was moved in arrest of judgment, that in this case an action lies not ; for he did nothing but as an informer, and by virtue of his office. But all the court held, forasmuch as it is alleged that he did maliciously and without colour of suspicion cause him to be cited, upon (0 Ayl. Parerg. 70 ; 2 Biilst. 2G4. 1248 DISCIPLINE OF THE CHURCH. Cascson Can. protcncc of fame -Nvlicrc there uas no offence comniittccl, 1^8. rj,^(^ it is averred that there was not any such fame, and he is found o-uilty thereof, therefore the action avcII lies(7^). Neither shall they exact more Fees than are in these our Constitutions formerli/ prescribed.~\ — That is, in Can. 1.35. These fees, if withhehi, may be recovered in an action at haw, but cannot be hbelled for in tlie Ecclesiastical Court (o). Cases on gene- In Folks'* case (p) it -would seem that a mandamus lies ral law. ^o admit the archbishop's ajiparitor-general. Sec Reyner and Parker s case, upon the authority of a summoner, which was held not to extend to ordering a parson to pay tithes to a person to Avhom he had not paid them, although the bishop certified he had refused to pay them according to 26 Hen. 8, c. 3 (17). In Pool and Godfrey's case an action was allowed to lie against a summoner for having falsely returned to the Ecclesiastical Court that he had summoned a person, in consequence of Avhich false return the plaintiff had been excommunicated (r). (h) Cro. Car. 291 ; 1 Roll. Ab. {q) IMoorc's Rep. 1225. 93. (/•) See Dr. Barker's case (0) Doug. Rep. 629. in the Star Chamber (2 RoUe's \p) Cited Stra. 877. Rep. p. 384). PROCEDURE — GENERALLY. 1249 CHAPTER VI. PROCEDURE — GENERALLY. Sect. 1. — Preliminary. 2. — Who may he Parties to a Suit. 3. — Mode of conducting a Suit. 4. — Sentence. 5. — Execution of Sentence. 6. — Appeal. 7. — Letters of Request. 8. — Caveat. 9. — Citation. 10. — Libel and Allegation. 11. — Articles. 12. — Personal Answers. \?>.— Costs. Sect. 1. — Preliminary. The subject matter over whicli the Ecclesiastical Courts Law of the exercise jurisdiction has been considered generally («). Ecclesiastical Courts. (o) Consult — I. A s to the old Prac- tice of the EnciUsh Courts. 1. Praxis Francisci Clarke, per P. Bladen, V.P.D. (Lond. 1684.) 2. Titles Citation, Libel, &c. in Repertorium Canonicum, or an Abridgment of the Ecclesiastical Laws of this Realm consistent ■with the Temporal, by John Godolphin, LL.D. (Lond. 1687.) 3. Practice of the Ecclesias- tical Courts, by H. Conset. (London, 1700.) 4. Ordo Judiciorum, per Tho- mam Oughton. (London, 1728.) The first part translated, with notes, by ,J. T. Law, ]\LA., Chan- cellor of Lichfield and Coventry. (London, 1831.) This autlior and Godolphin are called by Lord Stowell " the oracles of our own practice;" Briggs v. Morgan, 3 Phill. 329. 5. Titles Citation, Libel, &c. &c. in Ayliffe's Parergon Juris Canonici. (London, 1726.) 6. Similar titles in Gibson's Codex Juris Ecclesiastici. (Ox- ford, Clarendon Press, 1761.) 7. Cockburn's Clerks' Assist- ant. (London, 1800.) II. As to the Practice of the Irish Courts. 1. Cunningham's Forms and Precedents for Ecclesiastical Courts. (Dublin, 1834.) 2. Bullingbroke'sEccles. Laws, chapters 43 to 46, (Dublin, 1770.) III. As to Foreign Write7-s on the Practice of the Civil and Canon Laio. 1. Andr. Gaill. Praotica; Qua-s- tiones. (Cologne, 1634.) 2. Speculum Gul. Durandi, 1250 DISCirLlNE OF THE CIIUKCH. Originiil object of suit may be changed. The object of tins chapter is to give an outline of the mode of proceeding both in criminal and in civil suits in the Ecclesiastical Court (c). There is a remarkable peculiarity which distinguishes certain suits in the Ecclesiastical Coin-t from those which can be brought in equity or at common law. It is this : the original object of a suit may be changed, and assume in the conclusion an entirely different shape from that in which it had been instituted. Thus under the old law a suit might be commenced against a woman for jactitation of marriage, and if her defence were that she was duly married, and this defence were established, the sentence would be a decree against the husband for a restitution of conjugal rights. A wife might sue for a restitution of conjugal rights, and the defence of the husband might be that she had been guilty of adultery, and if he succeeded the sentence woidd be a divorce a mensd et thoro against the wife. On the same principle a husband, against whom a wife had instituted a suit for divorce on the ground of cruelty, might plead her adultery in a responsive allega- tion ((/), and Avas not compelled to take out any separate or cross citation for the purpose. Persons excommn- nicated. Sect. 2. — Who may he Parties to a Suit. The Criminal Suit is open to every one whom the ordinary allows to promote his office, and the Civil Suit to every one showing an interest (e). 1. In a case in the Court of Arches, where a dis- senter had been permitted to promote the office of the judge against a clergyman, an objection was taken by the counsel for the latter against the institution of the suit by one who it appeared from the e\ddence was among those denounced by the 9th and 12th Canons of 1603 as schismatics, and therefore ipso facto excommunicate, it being contended that the 53 Geo. 3, c. 127, had only removed civil penal- cum Annot. Joliannis Andrese. (Basle, 1574.) 3. "Speculnm Aiireum," called also " Advocatorum Lumen,"' of Maranta. (Frankfurt on the Maine, 1586.) 4. CensuraForcnsisTheoretica Practica, by Simon Von Leewen. (Amsterdam.) An excellent work. 5. The very full catalogue of writers on the Civil Law, prac- tical and theoretical, given at the end of the first part of Machel- dey's Lehrbuch des Komischen lieclits (Giessen, 1838) may be also consulted. (c) The existing rules regu- lating the procedure in the Court of Arches, made Jan. 1, 1807, will be given in the Appendix. (d) Best V, Best, 1 Add. 411. (e) Turner v. Meyers, 1 Con- si.«t. 415, note. PROCEDURE — GENERALLY. 1251 ties from dissenters. The judge, however, overrided the objection, holding that a person, even when excommuni- cated by sentence, was not now disabled from suing In the Ecclesiastical Courts. The Privy Council confirmed this sentence ( /*). But since 53 Geo. 3, c. 127, a party pronounced con- tumacious, and whose contemjjt has been signified at a pre- ceding stage of the cause for disobedience to any order of the judge, cannot appear in court at a subsequent period, or prosecute an appeal from proceedings carried on in poenam, wniH he has been absolved from his contempt, and taken the oath de j)arendo juri (^g^ to his ordinary (A). An outlaw woidd have no persona standi In these Outlaw. courts. 2. All minors may bring suits by their guardian, elected Minors, imbe- for the piu'pose by the Ecclesiastical Courts ; lunatics by ^i'® persons, their committee appointed by the Coui-t of Chancery. But ""'^ '^''' the judge cannot compel a father to continue as a party In a suit when his son has become a major during Its con- tinuance ; If he attempt to do so, he will be liable to an action on the case at common law {i), 3. Married women might under the old law In certain Mimicd cases have instituted alone a cml suit in the ecclesiastical women. courts, as in a case of defamation (J), or In a legacy be- queathed to the separate use. 4. A person may sue in forma paiiperis; but "this is Paupers. a great privilege of law belonging only to the necessity (/) Ifastiny. Escnti, 2 Curt. 10 L. J., N. S., Cha. 108; S. C, 692; 4 Moore, P. C. 104; 1 Notes 10 L. J., N. S., Q. B. 34; nom. of Cases, 552. See also the case Reg. v. Baines, 12 Ad. & Ell. oi'Titchma7:shv.Cha2]man,3Notes 210 (1841): but if the contempt of Cases, 387. has not been signified, it would (g) Lynd. De Sent. Excom. c. seem that it is purged by appear- Pecernimus, and p. 266, v. Com- ance and payment of costs; see modum; and X. 2, 25, 11; X. 5, Herbert v. Herbert, 2 Phillimore, 39, 40; Decret. 1. 2, tit. 25, c. 12; 438, 439, Arnold & Swabey, ar- Doujat in Lancel. lib. 4, 319, 343. guendo. " Licet a censuris ecclesiee absol- {h) Nor could he have been vatur, debet tamen etiam ipse released from an imprisonment prsestare juramentum de parendo until the passing of 3 & 4 Vict, mandatis ecclesipe, sicut ille qui c. 93. absolute absolvitur," Decret. 1. 5, (/) Beaurainy. Scott^ 'iC?im\}b. t. 39, c. 52, Venerabili. " Ubi 388. manifestum est delictum, non (_/) Anon., 3 Salk. 288; Cham- conceditur absolutio, nisi previa, herlane v. Hewson, 5 Mod. 70; cautione de parendo mandatis Dominus Gerard v. Domimnn ecclesipe," Doujat in Lancel. 1. 4, Gerard, error, C. B., 1 Raym. 73; 347. See Fitzherbert, Nat. P>. Tarrant v. Mawr, 1 Stra. 756; 62; 2 Inst. 189; 8 Co.. 68; and Cajyel v. Robarts, 3 Hagg. 161, in Re Baines, 1 Cr. & Phill. 31; note. 1252 DISCIPLINE OF THE CHURCH. raupcrs. arising from absolute poverty and from tlic absence of any other mode of ol)tainin2; justice; no person is entitled to the gratuitous labours of others who can furnish the means for providing them for himself: besides, it places the ad- verse party under great disadvantages, it takes away one of the principal checks to vexatious litigation ; the legal claim therefore to so gi'cat a j)rivilege ought to be clearly made out. It is a complete but not an nncommon mis- apprehension of the law to suppose that because a person is in insolvent circumstances, and because he can truly swear that he is not Avorth 51. after all his just debts arc paid, that therefore he is entitled to be admitted, or, rather, to proceed, as a panper; it is prima facie ground to admit him as such, but no more" {i). It would seem from the cases cited in this extract from Sir J. Nicholl's judgment, that the criterion is, the income, and not the debts, of the party; for instance, where a person admits an income of 70/. per annum, and owes 200/. beyond his effects, he will not be admitted to sue as a pauper. A person erroneously admitted as a pauper may be dispaupered (/e). Interveners. 5. Interveners in a suit are unknown to the common law, but the docti'ine of the civil and canon law administered in the admiralty and ecclesiastical courts (/), is, " Teriius intervenire j'otest pro interesse suo iji omni causa qncB tangit bona ant personam snam" {m). In a matrimonial cause there might have been an intervention (n) at any time, even in the appeal ; but a person who has no interest cannot be permitted to intervene (o). In testamentary causes, it has been said, that " Interveners must take the cause in which they intervene as they find it at the time of such their intervention; hence they can only of right do Avhat they might have done had they been parties in the first instance, .or had their intervention occurred in an earlier stage of the cause" (/»). In cases of incestuous marriages the court allows a very slight degree of interest to annul them (lea, in all causes, whether responsive or rejoining, and by whatever party given in, is tei'med an allegation. Here it should be remarked, that before a plea of any kind, whether articles, libel or allegation, is admitted, it is open to the adverse party to object to its admission, either in the whole or in jiart ; in the whole, when the facts alto- gether, if taken to be true, will not entitle the party giving the plea to the demand which he makes, or to support the defence which he sets up ; in part, if any of the facts pleaded are irrelevant to the matter in issue, or could not be ])roved by admissible evidence, or are incapable of proof. These olyections are made and argued before the judge, and decided upon by him ; and his decision may l)e a))- pealed from. For tlie purpose of the argument, all the facts capable of proof are assumed to be true ; they are, hoAvever, so assumed, merely for the argument, but are not so admitted in the cause ; for the party who offers the plea is no less bound afterwards to prove the facts ; and the party who objects to the plea is no less at liberty after- wards to contradict the facts. This proceeding is attended with great convenience in abridging the introduction of iHvnecessary and improper matter, to which parties them- selves are generally too much disposed. They are apt to PROCEDURE — GENERALLY. 1255 consider trivial circumstances to be important, and desire them to be inserted in the plea : a desire which neither the honest reluctance of the practitioners, nor the judicious advice of counsel, is always able to counteract : even the authority and vigilance of the court itself cannot altogether prevent redundant pleading, and can only check it by taking it into consideration on the question of costs. The proceedings just referred to have also the con- venience of enabling parties, in many instances, to take the opinion of the court in a very summary way, par- ticularly in amicable suits : if the facts are candidly stated, and the court, upon the plea being objected to, should be of opinion, that if proved, the facts either will or Avill not support the prayer of the plea ; in the one case, if the plea is admitted, the further opposition may be withdrawn ; in the other case, if the plea is rejected, the party offering it either abandons the suit, or appeals, in order to take the judgment of a superior tribunal. This course saves the expense and delay consequent upon proving the facts by witnesses, in cases where there exists no doubt of the facts being coiTectly alleged in pleas, and where the question between the parties is principally or perhaps altogether a question of law arising out of the facts so stated in plea. The plaintiff, or his proctor who brings in the libel. Litis con- prays that a day may be assigned for the defendant's or i^^^^^''"' his proctor's answer to it, and on such day assigned, the plaintiff or his proctor, in presence of the defendant or his proctor, requests the answer, the giving of which creates the litis contestatio (u), which common lawyers call the issue (x). Such issue may be either, 1, simple affirmative, different in which case there is of course an end of the suit ; or, kinds of. 2, simple negative, consisting of a general denial of the libel; or what may be termed, 3, qualified affirmative or negative, in the language of Conset. " When the defendant doth indeed confess the fact, but yet adds some certain qualities or circumstances of this fact, Avhich are silently passed over by the plaintiff, by reason of which omission of the circumstances of the fiict it may be said to be different from the fact propounded in the libel; hence, (v) The origin of the phrase is (,r) T5efore issue given, a suit to be traced to the primitive is not lield to be commenced by manners of the Romans. At the tlie civil or canon Law; but from opening of tlie suit the defendant tlie return of tlie citation there is invoked some of the standers by a Ih pendens. See Sherwood v. as witnesses. Tliis was called fw- Ray, 1 Curteis, 173, 193; 1 Moo. testari or contestari. See Featus V. C. 305. de V. S. sub voce " Contestari.'' 1256 IHSCIPLINE OF THE CIIUUCII. Personal answers. Designation of witnesses. Kesponsive allc'fation. Examination of witnesses. Term a^^signcd for proof. tlioup;h tlic defendant may not simply deny tlie fact, yet he may do it indirectly, while he shows the fact to be much otherwise than what is related l)y the plaintiff" (y). In causes of divorce the party used, generally, to answer by confessing the fact of marriage, but othenvise contesting the suit negatively. The plaintiff' is, in all civil causes, entitled to what are called the j)ersonal answers of the defendant on oath, "wdtli this exce])tion, that the defendant is not bound to answer any criminal matter, though civiliter intentata, as the charge of adidtery in a matrimonial suit. In criminal suits he cannot be called upon for answers at all. This stage of the cause corresponds with the plea at common law (z), i. e., it is an answer of fact to all and every the positions or articles of the libel (which, we have seen, re- sembles the declaration). "Whatever parts of the libel (or allegation, as the case may be) the defendant has not admitted, in his personal answers, the plaintiff" proceeds to prove by -witnesses. The old practice was as follows: a notice, called a designation, is delivered to the defendants of their names, and the dif- ferent articles on Avhich it is intended to examine them ; he is, therefore, distinctly apprised of the points to which he should address his cross-examination of each Avitness, as well as the matters which it may be necessary for him to contradict or to explain by countei-pleading ; the mode of doing this, is to give in a responsive allegation (a), which may be attended with the same consequences as the earlier plea, that is to say, objections to its admissibility, answers vipon oath, and the examination of witnesses. The witnesses are examined secretly, and their depositions taken down by an examiner. Pubhcation of the evidence is prayed by one party, and unless the party has not had time to prepare his interrogatories, or unless he alleges an allegation exceptive to the evidence, publication is decreed by the judge. In all cases the court may extend this time on reason- able cause being shown, and its duration must, too, of course, depend on the distance of the abode of the wit- nesses, the facility of reaching them, &c. Each term assigned is technically called an assicjnation, and the book in which the minutes of the court were kept by the re- (?/) See an instance, p. 3, of Maalin v. Eacott, reported by Dr. Curteis, 1841. (2) See Stephen on Pleading, p. 25. (a) This plea is sometimes confounded by inferior Ecclesias- tical Courts witli the personal answers. PROCEDURE — GENERALLY. 1257 gistrar is called the assignation hook. The term given for proof is called the term ■prohatory. The court may also, on very strong reasons being shown, renew a lapsed term. A counter-allegation may be given in to the responsive Counter-alle- allegation, and is subject to the same incidents and rules S^tion. as the former. But in a rejoinder to a responsive allega- tion, the only facts strictly pleadable are those either con- tradictory to or explanatory of facts pleaded in the allega- tion to which it rejoins, and those noviter ■perventa to the proponent's knowledge; though the court may, under cer- tain circumstances, permit facts to be pleaded which do not come under these descriptions (i). Beyond this step the mere pleadings are rarely carried (e), but it should seem that the discretion of the judge and the advocate, and the apprehension of costs, rather than any positive ride, prevents flu'ther pleading : and here one exception should be mentioned ; it is always permitted to give in an allegation of facts " noviter perventa^ to the knowledge of one of the parties in the suit, it being fully established to the satisfaction of the judge that such facts could not have been earlier known to the party now propounding them. For instance, as has been said, in matrimonial causes it is allowed to plead acts of adultery committed since the institution of the suit, or before, such being shown to be noviter perventa. An exceptive allegation might also be given under certain restrictions to the character of wit- nesses. But Avhen the parties in a cause renounce all further Conclusion. allegations, imless exceptive, the cause is concluded against them, though it is still Avithin the discretion of the court to allow flirther pleading by rescinding the conclusion (c? ). The insti'uments adopted by the Ecclesiastical Court Citation. for giving effect to its process are, first, citation or decree, as has been shown (e); and, secondly, monition, Monition. that is to say, granting to the party complaining an order monishing the party complained against to obey " under pain of the law and contempt thereof." Thus there may (h) Dew v. Clarlc, 2 Add. the ?T^//m//roeals to Koine. Appeals to Kome abo- lished. Appeals to the several courts respec- tively within this realm. renewed ; and in tlic rcig'ns of Kicliard I. and King John, "Nve find new coni])laint.s of the httle regard ])aid to those appeals; for wliicli also divers persons were impnsoned in the reigns of Edward I., Edward II. and Edward III. (u). Nevertheless, appeals to Kome still obtained until the reign of king Henry VIII. when they were finally abo- lished by 24 Hen. 8, c. 12, and 25 Hen. 8, c. 19, here following : By 24 Hen. 8, c. 12, ss. 1,2, " All causes testamentary, causes of matrimony, and divorces, rights of tithes, obla- tions, and obventions, shall be finally determined Avithin the king's jurisdiction and authority, and not elsewhere : any foreign appeals to the sec of liome, or to any other foreign courts or potentates, to the let or impediment thereof in any wise notwithstanding. And if any j^erson shall pro- ciu'e from the see of Rome or any other foreign court any appeal in any the causes aforesaid, or execute any process concerning the same, he shall incur a prcptnunire.''^ And by 25 Hen. 8, c. 19, s. 4, " No manner of appeals shall be had out of this realm to the bishop or see of Rome, in any causes or matters whatsoever ; but all manner of appeals, of what nature or condition soever they be, shall be made and had after such form and condition, as is limited for appeals in causes of matrimony, tithes, obla- tions, and obventions, by a statute made since the beginning of this parliament. And if any person shall sue any appeal to the bishop or see of Rome, or procure or exe- cute any process from thence ; he, his aiders, counsellors, and abettors, shall incur a prcemunire.^^ And by 24 Hen. 8, c. 12, s. 3, " Appeals within this realm shall be in this form, and not otherwise; first, from the archdeacon or his official, if the matter or cause be there begun, to the bishop." " If it be commenced before the bishop or his commis- saiy, then from the bishop or his commissary, Avithin fifteen days next ensuing the judgment or sentence given, to the archbishop, and there to be definitively and finally ordered, decreed, and adjudged, without any other appeal what- soever." " If the matter, for any the causes aforesaid, be com- menced before the archdeacon of any archbishop, or his commissary', then the party gnevcd may take his appeal, within fifteen days next after judgment or sentence given, to the Court of the Arches, or audience of the same arch- bishop ; and fi-om the said Court of the Arches, or audi- (r) Gibs. 83; 4 Inst. 341. PROCEDURE— GENERALLY. 1267 ence, within fifteen days then next ensuing after judgment or sentence there given, to the archbishop of the same province, there to be finally determined without any other appeal." " If the matter be commenced, for any the causes afore- said, before the archbishop, then the same shall be before him definitively determined, without any other appeal, provocation, or any other foreign process out of this realm to be sued to the let or derogation of the said judgment, sentence or decree, otherwise than is by this act limited ; saving always the prerogative of the archbishop and church of Canterbury, in all the foresaid causes of appeals, to him and his successors, to be sued within this realm, in such and like wise as they have been accustomed and used to have heretofore" (tv ). Appeals within this Realm shall be in this Form.'\ — ^^"liich is to be done by demanding letters missive, called apostoli, from the judge a quo to the judge ad quern {x). From the Ai'chdeacon or his Official to the Bishop.^ — From arch- And not per saltum to the archbishop : and this is agree- ^^^'^o^''^ court. able to the rule of the ancient canon law (y). The canon law, however, allowed an appeal to the pope, omisso medio (z), and to liis legates. i3oth an appellate and an original jurisdiction are said to belong to the Archbishop of Canterbury legationis jure{a). But this custom of appeahng to the pope is said not to have obtained in France, where if the bishops in council doubted of the ecclesiastical law, the appeal lay to the metropolitan in council, and from him to the primate, whose decision Avas final (6). The rule of the cIaoI law is that appeals shall be made gradatim, and not per saltum (c). In the case of Robinson v. Godsalve, in 8 Will. 3, it As to begin- w^as resolved by the court, that where an archdeacon has °ing suits in a peculiar jurisdiction, he is totally exempt fi'om the power court. of the bisho]), and the bishop cannot enter there and hold court. And in such case, if the party who lives in the peculiar be sued in the bishop's court, a prohibition shall be granted, for the statute intends that no suit shall be per saltitm. But if the archdeacon has not a peculiar, then the bishop and he have concurrent jurisdiction, and (k) Tliosc acts were repealed (a) X. 1, 30, 1, by 1 & 2 Pliil. & ^lar. c. 8, but (i) C. 6, Q. 4, c. 3. revived by 1 Eliz. c. 1. (c) See Huber ad Paiid. 49,3; (a;) Gibs. 1035. Dig. 49, 1, 2L AndBockelman, (y) Gibs. 1036; X. 2, 28, 66. De Differentiis Jur. Civ. et Can. (z) C. 2, Q. 6, c. 4 5, 6, et seq.; c. 79, in notis. X. 2, 28, 7. 1268 DISCIPLINE OF THE CHURCH. As to suits in archdeacon's court. Appeals from bishop's court. Appeals from archbishop's court. tlio party may commence liis suit cltlier in the archdeacon's court or the bishop's ; and if lie connnence in the bis]io])'s court, no prohil)ition sliall be granted; for if it should, it "svould confine the bishop's court to determine nothing but a]>peals, and render it incapable of having any causes originally commenced there (c). From the BishopJ] — This is to be extended to all who have episco]jal jurisdiction : as in the case of JoJinson v. Ley, in 7 Will. .3, where the Dean of Salisbury, in one of his peculiars, made letters of request to the Dean of the Arches; it was objected, in order to obtain a prohibition, that this was per saltum, and that he ought to have made request to the Bishop of Salisbury, his immediate ordi- nary : but the plea was not allowed, because this was not (as in the case of an archidiaconal peculiar) subject to the juiisdiction of the ordinary, but immediately to the arch- bishop {d). From the Bishop or his Commissary , to the Arch- bishop J\ — And not from the bishop's official or commis- sary, to the bishop himself; for the reason given in the canon law, namely, lest (having both but one auditory) the appeal should seem to be made from the same person to the same person (e). By 25 Hen. 8, c. 19, s. 4, "For lack of justice in the archbishop's courts, the party may appeal to the king in chancery ; and upon every such appeal, a commission shall be directed imder the great seal to such persons as shall be named by the king, like as in case of appeal from the admiral's court, to hear and determine such appeals; whose sentence shall be definitive : and no further appeals to be had from the said commissioners." For lack of Justice in the Archbishops'' Courts.~\ — Such appeal lies not fi-om a local visitor ; nor in any cause of a temporal natiu'C ; nor did it lie from the hifjh commission court Avhcn in being, because they themselves were the king's delegates, as acting by immediate commission from him, and there was no remedy against their sentences but a new commission to others, grantable in virtue of the royal prerogative and independent from this statute (./")• The Party grieved may appeal to the King in Chan- cery.~\ — And no commission of delegates, in any case of weight, used to be awarded, but upon petition preferred to the Lord Chancellor, who named the commissioners him- self, to the end they might be persons of convenient quality, (c) Ld. Ravm. 123. (r/) Gibs. 1035.; Skin. 589. {e) Gibs. 1036; G", 1,4, 2, and 2, 15, 3. (/) Wats. c. 6. PROCEDURE — GENERALLY. 1269 ha"\ang regard to the weight of the cause and dignity of the court from which the appeal was (^). And sometimes for a supply of justice, on petition to the king, a special commission of delegacy issued, to begin the suit, and proceed originally in the cause ; as where the archbishop himself was interested, or the like (A). A Commission shall be directed raider the Great Seal, to suck Persons as shall he named hy the King^ — These commissioners were usually some of the lords spiritual and temporal or both, and commonly one or more of the twelve judges, and one or more doctors of the civil law {i). And they were commonly called delegates (according to the language of the civil and canon law), on account of the special commission or delegation they received from the king, for the hearing and determining every particular cause. Agreeably whereunto, their proceedings were ac- cording to the rules of the ci^dl and ecclesiastical laws ; and on that account it has been particularly adjudged, that a suit there did not abate by the death of the parties : this being the course in the ecclesiastical courts. Also pro- hibitions went to them, as to an ecclesiastical court. But in the case of Stephenson v. Wood, in 10 Jac. 1 (A), the better opinion of the court was, that they coidd not grant letters of administration (/). Whose Sentence shall he dejinitive.~\ — In the case of Saul V. Wilson, in 1689; by the lords commissioners: There lies no appeal fr'om a sentence in a coiu*t of dele- gates ; for they cannot have any original jimsdiction, because it is a matter grounded upon an act of parhament, and the act gives them none {m). But on a petition to the king in council, a commission Commission of re^dew might be granted under the great seal, appoint- °^ review, ing new judges, or adding more to the former judges, to revise, re\aew, and rehear the cause (7i). And hereupon Lord Coke observes, that albeit these statutes do upon certain appeals make the sentence definitive as to any appeal, and that no further apjieal should be had ; yet the king after such a definitive sen- tence, as supreme head, may grant a commission of review, for two causes: 1. For that it is not restrained by the statute. 2. For that after a definitive sentence, the pojie as supreme head by the canon law used to grant a coin- mission ad revidendum ; and such authority as the pope (Sr) Bacon's Tracts, 204. (/.•) 2 Bills. 2. {h) 1 Oughton's Ordo Judici- (Z) Gibs. 1037. orum, 437. \m) 2 Vern. 118. (0 Floy. 20. (7j) 1 Ought. 437. 1270 DISCIPLINE OF THE CHURCH. Commission of had, claiming as supreme head, of right belongs to the review. crown, and is annexed theremito by the statutes 26 Hen. 8, c. 1, and 1 Eliz. c. 1 (o). And so it was resolved in the King's Bench, in 39 Eliz., where the case was, that sentence being given in an ecclesiastical cause in the country, the party grieved appealed according to the act of 24 Hen. 8, c. 12, to the archbishop, before whom the first sentence was affirmed. Whereupon, according to the statute of 25 Hen. 8, c. 19, he appealed to the delegates: before whom both tlie former sentences Avere repealed and * made void by definitive sentence. And thereupon the queen, as supreme head, granted a commission of review, ad revidendum the sentence of the delegates. And upon this matter a prohibition was prayed in the King's Bench, pretending that the commission of rcvdew was against law, for that the sentence before the delegates was definitive by the statute of 25 Hen. 8, c. 19. But upon mature de- liberation and debate the prohibition was denied : for that the commission for the causes abovesaid Avas resolved to be lawfiilly granted. In this case Coke says, he being then the queen's attorney, was of counsel to maintain the queen's power. And precedents were cited in this com-t, in Miclielof s case, 29 Ehz., and in Goodmaii's case, and in Hnets case, in the same year (p). But a commission of review was matter of discretion, and not of right : and if it Avere a hard case, the chancellor would advise the crown not to grant it (laintiff may apply to the judge of such court for letters of I'equest, in order that the cause may be instituted in the Court of Arches or the Chancery Court of York; and when the judge of the court beloAv has consented to sign such letters, and they have been accepted by the judge of the Arches Coiu*t or Court of York, a decree issues under his seal, calling upon the defendant to answer to the plaintiff in the suit instituted against him. The institution of a suit by Letters of Kequest doos not fall under the prohibition of the " Bill of Citations," 23 Hen. 8, c. 9 (A). The effect of the provisions of 3 & 4 Vict. c. 86, as to Letters of Request, will be considered in the chapter on that act(Z). When refused. The Dean of Arches has declined to accept letters of request presented jointly by the archdeacon and the chancellor of Norwich {in). Limit of juris- The jurisdiction of the provincial court is strictly limited to the letters of request ; and it cannot be called upon to try a civil suit for a sum of money different from that stated to be in dispute in the letters of request (w). ig) See the case of Bowles v. (/) Vide post, Part IV. Chap. Bcmles, Arches Court, 1841, 16th VIII. Feb. (?h) Office of the judge pro- (//) Fell v. Lmc, 1 Roberts. moted by Steward v. Bateinan, Eccl. 726. 3 Curteis, Rep. 201. ((■) Fletcher v. Le Breton, 3 (ii) Asterley v. Adams, L. R., Hagg. 368. 3 Adin. & Eccl. 361; apparently (A;) See Bolton v. Bolton, 1 oveiruling Uaioes v. Pellatt, 2 Lev. 225; Jones v. Jones, Ilob. Curt. Eccl. Rep. 473. 185; 2 Bro^vnl. 27; Gibs. 1007. diction. PKOCEDUllE— GEXEllALL Y, 1279 Letters of request are sometimes issued for otlier pur- Other pur- poses than for sending the cause to another court : e.g. Poses. they are sent from one judge to another to request him to examine witnesses out of the jurisdiction of the former but in that of the latter (o), to enforce a monition (/»), &c. Bv common laW. Sect. 8. — Caveat. A caveat is a caution entered in the spiritual court, to By canon law. stop licences, dispensations, faculties, institutions, and such like, fi'om being granted without the knowledge of the party that enters it. And a caveat is of such vahdity by the canon law, that if an institution, administration, or the like, be granted pending such caveat, the same is void(y). But not so by the common law. For by the common laAV, an admission, institution, probate (r), administration, or the Uke, contrary to a caveat entered, shall stand good ; in the eye of which law, the caveat is said to be only a caution for the information of the court (like a caveat entered in Chancery against the passing of a patent, or formerly in the Common Pleas against the levying of a fine) ; but that it does not preserve the right untouched so as to null all subsequent proceedings, because it does not come from any superior ; nor has it ever been deter- mined, that a bishop became a disturber, by giving insti- tution without regard to a caveat ; on the contrary, it was said by Coke and Doderidge, in the case of Hutcliins v. Glover, in 14 Jac. 1, that they have nothing to do with a caveat in the common law (5). The mere entry of a caveat will not found a jurisdiction, Effect of entrv. for it might be entered Avith intent to deny the jurisdic- tion, and prevent the court from taking cognizance of the matter (^). A caveat against an inhibition has been entered, and the inhibition, after hearing counsel, re- fused (m). The proper course to be taken by the party wishing to proceed is to revoke the caveat, that is, enter a statement that he appears notwithstanding the caveat. (o) 10ugliton,150;2Tbi(1.44G; Woods V. Woods, 2 Curt. 517. (p) See Croicley v. Crov:lcy, 3 Ilagg. Eccl. 760 (note). (q) Ayl. Par. 145, 14G: 1 Lev. 157; Owen, 50. (r) As to probates, vide 2 Sftra. 857, 956. (.s) Gibs. 778; 2 IJac. Abr. 404; Ayl. Par. 145, 146. {t) France v. Auhnnj, 2 Lee, 534. ill) Hcrhcrt v. TTcrhcrl, 2 Pliill. 430; Chichester v. Donegal, 1 Add. 23, n. 1280 DISCll'LlNE OF THE CllUKCII. If a ratepayer be dissatisfied witli liis assessment, one of liis reniedies is to enter a caveat against its confirmation by the ordinary {s). Katurc and form of. Its contents. Process of (jiiiirum no- il! ill /I for- bidden. Citation to a c(jiiii)any. Sect. 9. — Citation. A citation is a judicial act, wliereby the defendant, by authority of the judge (the plaintiff requesting it), is com- manded to ap])ear, in order to enter into suit, at a certain day, in a place ^vherc justice is administered (/). The Citation ought to contain — 1. The name of the judge, and his commission, if he be delegated ; if he is an ordinary judge, then the style of the court where he is judge. 2. The name of him who is to be cited. 3. An appointed day and place where he must appear ; which day ought either to be expressed particidarly to be such a day of the Aveek or month, or else only the next court day (or longer) from the date of the citation : and the time of appearance ought to be more or less, according to the distance of the place where they live. 4. The cause for which the suit is to be commenced. 5. The name of the party at whose instance the citation is obtained (m). 6. And also the residence and diocese of defendant, to show that he is not cited out of his diocese. By Can. 120 of 1603, " No bishop, chancellor, arch- deacon, official, or other ecclesiastical judge, shall suffer any general processes oi quorum noinina to be sent out of his court, except the names of all such as thereby are to be cited shall l^e first ex])rcssly entered by the hand of the register or his deputy under the said processes, and the said i)rocesses and names be first subscribed by the judge or his deputy, and his seal thereto affixed." The rule of the ancient canon law in which case was, that by the general clause quidam alii in citations, not more than three or four persons should be drawn into judgment ; whose names {quorum uomina) the ])erson who obtained the citation was particularly to express, that there might be no room for fraud, in varying the names at pleasure (a.-). A company in London refusing to pay a chm'ch rate set upon their hall, the master and Avardens were cited into the Ecclesiastical Court by their sirnames and names of bajitism, with the addition of master and wardens of the 87. (s) Watney v. Lamhert, 4 Hagg. J. (t) Conset, 2G. (») Tl)i(I. (x) Gibs. 1009. PROCEDURE — GENERALLY. 1281 company of wax chandlers. And upon moving for a prohibition, because they were cited in their natural capacity, when it should have been in their politic ca- pacity, the court held the citation to be good, because the body politic could not be cited, and there was no remedy but in this way : and a prohibition was denied (?/). The following extracts are copied from two manuscript < )pinions of opinions of a very eminent civilian (the late Dr. La\vi"ence) ^^''- Lawrence, upon this subject. He Avas consulted as to the liability of the Company of the Proprietors of the Bix-mingham Canal lSa\agation to pay church rates, and as to the mode of citing them. Extracts from first opinion. " The poor's rates and church rates are levied under different authorities and not necessarily on the same pro- perty always, and not necessarily in the same proportion. One may be at Zd. and another at Qd. in the pound, or at any other proportion according to the aggregate sum required by the parish. If not fairly and equally laid, the company, I apprehend, may resist a church rate on the same grounds that a poor's rate may be resisted." . " As the citation is not before me, I cannot tell whether any or what special matter of defence may appear on the face of it; but a citation addressed to a corporate body ought to call upon them to appear by their syndic, who is the party in the cause on their behalf. If the officers, or managers, or directors of the corporation against Avhom the citation issues, do not appoint a syndic in lawful form, or sufficiently instruct him, the ecclesiastical judge may compel them by censures passed even to excommunica- tion." Doctors' Commons, January, 1800. Extracts from second opinion. " The citation shoidd be directed to the managing part of the company by their proper description, as well as to the company generally : as to the warden or masters, &c., of the Bank of England; or chairman, deputy chairman, directors, &c., of the East India Company. What is the proper legal descrijition of the Birmingham Canal Com- ])any, I know not ; but whatever it is, unless that citation be used, it is a nullity, and may be resisted Avdth effect." Doctors' Commons, April, 1800. Sir Vicary Gibbs gave an opinion coinciding with that Sir V. Giljbs. of Dr. Lawrence upon the same case. The citation of a party by an erroneous christian name, (//) II., 33 & 34 Car. 2; Skin. 27. 1282 DISCU'LINE OF THE CUUUCII. I^Iisnomcr of a slin})le misnomer or false addition, where there is no doubt V>^y- as to the identity of tlie party, has been holdcn to be sufficient (z). An objection of tliis kind urged as a plea in abatement must be taken before issue, for, by giving issue, the party allows himself to be the party designed (a) ; and whoever alleffes a misnomer is bound to assign the true name by which he means to abide, and against Avhich he is not at liberty to aver(Z'); but a new citation must be taken out. Where the general law is to be relied upon, it is not necessary that it should be specifically stated in the citation (c) ; and as to variance between the articles and citation, where the charge is substantially the same, and only a part of the charge is taken away, it will not be fatal. A citation has been holden sufficient, where it only called upon the party to bring in an administration, and to show cause why another should not be granted, and did not say to show cause why the original administration should not be revoked (rZ); but it has been holden void where it was taken out upon false pretences, and not served on the party against whom it had been entered (e). In a matri- monial suit it was holden that a citation issuing as "in a suit of nullity of marriage by reason of a former marriage," will not found a sentence of separation " by reason of an undue publication of banns," the woman being therein described as spinster ; the first husband having died subse- quently to the publication of banns, but prior to the Misnomer of marriage (/)• A wrong description of the judge either judge. \jj j^g name or title is fatal to the citation, and to all proceedings founded on it, especially in criminal suits. And an error of this kind in a copy delivered to the proctor of the defendant has been holden to entitle the latter to be dismissed fi-om the suit (r/). A citation in a cause of office must describe sufficiently the offi^nce charged against the party, so as to show that it is a matter of ecclesiastical cognizance, but it need not minutely specify all the particulars of the offence which are to be charged in the articles (A). (z) Powellv. Burgh,2'Lee, 517 ; Bariuun v. Barham, 1 Consist. 7; Griffiths V. Eced, 1 Ilagg. VM. (rt) Williams v. Butt, 1 Consist. 3; PowpU v. Bunih, 2 Lee, 518. (J)) Pritchard v. Daily, 1 Con- sist. 187. (c) Hutchins v. Denziloe, 1 Consist. 172. (d) Reecc v. Strafford, 1 Hagg. 347. (r) Murphy v.^lfacarthy^^ Lee, 529. ( /^ H 'riyht V. Ellwood, 2 Hagg. 598. (//) Williams v. Bott, 1 Con- sist. 1. (Ji) Steward v, Francis, 3 Curteis, Rep. 209. See, however, Shcppard \. Bennett, 39 L..T., N. S. 59; ct infra, sub Chap. VIII. PEOCEDUEE — GENERALLY. 1283 In all cases of a process served on a minor, the court Service of, on requires a certificate of its ha\ang been served in the '^I'^o''- presence of a natural and legal guardian of the minor ; or at least, in that of some person or persons upon whom the actual care and custody of the minor, for the time being, has properly devolved {{). It has been said that a citation may be served viis et Distinction modis ( ?). There is some difference between tliis service '^.^^t^.^en a -, ^-^ ■' , . . , . , , citation and and personal service. A personal service may conclude a personal both the party and the court ; but a service viis et modis service, is a constructive service, and concludes the party, but does not conclude the court. The court on good and sufficient grounds may open the proceedings to get at the substan- tial justice of the case (k). It is laid down in the books, says Sir William Wynne, and is not to be^ denied, that parties may be put in contempt by a public citation only (0. By a constitution of Archbishop Mepham it is ordained. Citing out of that all ordinary judges of the province do readily assist ^^'^ diocese. one another in making citations and executions, and in executing all lawful mandates. Yet by the ancient laws of the church, the metropolitan was forbidden to exercise judicial authority in the diocese of a comprovincial bishop, unless in case of appeal or vacancy. And therefore when Archbishop Peccham ex- communicated the Bishop of Hereford for resisting this concurrent poAver, and affirming against the archbishop that he could not exercise any jurisdiction exclusive of the bishop Avithin the bishop's OAvn diocese, nor take cogni- zance of causes there per querelam, the archbishop de- fended his claim, not upon the common right of a metro- politan, but upon the peculiar privilege of the Church of Canterbury, that the Church of Canterbury enjoys such a privilege, that the archbishop for the time being may and ought to hear causes arising withhi the dioceses of his suf- fragans, and that in the first instance. AMiich privilege probably sprung from the Archbishops of Canterbury being legati nati to the pope {rn). But now, by 23 Hen. 8, c. 9, intituled. The Bill of 2?. TIcn. 8. c. 0. Citations, sect. 1, " AVhere great numbers of the king's ^f'^^'ifcoi subjects, as well men, wives, servants, as other the knig s Citations. (i) Cooper v. Green, 2 Add. (A:) Herbert v. Herbert, 2 Con- 454. As to service of citation, sist 2G3; In the goods of Thomas see Otlio, Atlion, 63, 123, 565; Robinson, 3 Phil'l. 511. Stratf. Lind. 96; 1 Oughton, 44, (0 1 Phill. 176. 45; Lind. 85. [w) Gibs. 1004. {j) Vide supra, p. 1258. 1284 dlslii'Lim: of the ctiui:cii. 2:5 Hen. S, c. 9. subjects, (Iwcllliio: in (livers dioceses of this realm of Eng- ^tututc ot land and \\'ales, have been at many times called bv citations Citations. , , ,1' • xi" \ 1 and other processes com])ulsorv, to ajipear m tlie Arclies, Audience, and other hlj^h courts of the archbishops of this realm, llir from and out of the diocese where tliey dwell ; and many times to answer to surmised and feigned causes, and suits of defamation, withholding of tithes, and sucli other like causes and matters, Avhich have been sued more for malice and for vexation than for any just cause of suit ; and where certificate hath been made by the sum- moner, apparitor, or any such light literate jierson, that the party against whom any such citation hath been awarded, hath been cited or summoned, and thereupon the same party so certified to be cited or summoned hath not a])peared, according to the certificate, the same party therefore hath been excommunicated, or at the least sus- ])ended fi-om all divine services; and thereupon before that he or she could be absolved, hath Ijccn comjjelled, not only to pay the fees of the court whereunto he or she was so called by citation or other process, amounting to the sum of 2s. or 20d. at the least ; but also to pay to the summoner, apparitor, or other light literate jierson by whom he or she was so certified to be summoned, for every mile being distant from the place where he or she then dwelled, unto the same court whereunto he or she Avas so cited or sum- moned to appear, 2r/. ; to the great charge and impoverish- ment of the king's subjects, and to the great occasion of misbehaviour and misliving of wives, women and seiwants, and to the great impairment and diminution of their good names and honesties:" it is therefore enacted, "that no maimer of jierson shall be from henceforth cited or sum- moned, or otherwise called to appear, by himself or by any procurator, before any ordinary, archdeacon, commissary, official, or any other judge spiritual, out of the diocese or peculiar jiu-isdlctlon where he shall be inhabiting at the time of awarding or going forth of the same citation or summons (except it shall l^e for any of the causes hereafter wi-Itten, that is to say, (1) for any spiritual ofl^ence or cause committed or omitted bj the bishop, archdeacon, commissary, official, or other person having spiritual juris- diction, or being a spiritual judge, or l)y any other person Avithin tlie diocese or other jurisdiction whereunto he shall be cited, or otherwise lawfully called to appear and answer; and (2) except also it shall be upon matter or cause of a])])cal, or for other lawful cause, Avlierein any party shall find himself grieved or wronged, by the ordinary or judge of the diocese or jurisdiction, or by any of his substitutes. PROCEDURE— GEXER ALL Y. 1285 officers or ministers, after the matter or cause there first commenced and begun to be shewed unto the archbishop or bishop, or any other ha\dng peculiar jurisdiction, within whose province the diocese or place peculiar is; or (3) in case that the bishop or other immediate judge or ordinary dare not nor will not convent the party to be sued before him ; or (4) in case that the bishop of the diocese or judge of the place, within whose jurisdiction or before whom the suit by this act shall be commenced and prosecuted, be party directly or indirectly to the matter or cause of the same suit; or (5) in case that any bishop or any inferior judge, ha\ang under him jurisdiction in his own right and title, or by commission, make request or instance to the archbishop, bishop or other superior ordinary or judge, to take, treat, examine or determine the matter before him or his substitutes, and that to be done in cases only Avhere the law civil or canon doth affirm execution of such request or instance of jurisdiction to be lawful or tolerable ; upon pain of forfeiture, to every person by any ordinary, com- missary, official or substitute, by virtue of his office or at the sviit of any jierson to be cited or otherwise summoned or called contrary to this act, of double damages and costs, to be recovered by action of debt or upon the case, in any of the king's high courts, or in any other competent tem- poral court of record, and upon pain of forfeiture for every person so summoned, cited, or otherwise called as afore- said to answer before any spiritual judge out of the diocese or other jurisdiction where the said person dwelleth, 10/., half to the king, and half to him that will sue in any of the king's said courts." Sect. 2. "Provided always, that it shall be lawful to Proviso in cases every archbishop of this realm to cite any person inhabit- °^ liciesy. ing in any bishop's diocese Avithin his province for causes of heresy; if the bishop or other ordinary immediate thereunto consent, or do not his duty in punishment of the same." Sects. 3 and o related to the prerogatives of the arch- As to probate, bishops in respect of the probate of testaments (w). Far from and out of the Diocesc.~\ — By reason of this expression in the preamble, it Avas doubted in 6 Jac. 1, . ('0 By sect. 6, " No arcli- suly'ects, any sum of money for bishop, nor bisliop, ordinary, ofK- the seal of any citation to be cial, commissary, or any" other awarded or obtaineil, than only substitute or minister of any of M.\ upon the pains and jjcnalties the said archbisliops, bishoi)s, before limited in this act, to be arclideacons, or otlier liaving any in lilce form recovered as is afore- spiritual jurisdiction, shall de- said." maud or take of anv of tlie kiuir's 12S6 TMSnrLIXE OF TTTE CHURCH. 23 Hen. 8, c. 9. Statute of Citations. Privilege may be waived. ^vllctllCl• tlic arclibislio)) was not at lihcrty (notwitlistandinpf tliis act) to cite tlie inhabitants of London and other neigh- bonring phaces of tlie same diocese, into his Court of Arches, which -would be no more a grievance to the sub- ject than the being cited into the Consistory of London, and cotdd not pro])erly be called a citing out of the diocese, since the Coiut of Arches is holden ■within the diocese of Ijondon. ]5ut all the justices of the Court of Common Pleas held, that the archbishop is restrained by this act from citing any inhabitants of London, besides his own ])ecidiars, because the excusing the subject from travel and charges was not the only benefit intended by it, but also the benefit of a]ipeals ; and by diocese in this statute, Avas understood jurisdiction, and as to the language of the pre- amble, that the enacting joart of the statutes are in many cases of larger extent than their preambles are(o). That no manner of Person shall be from henceforth cited.~\ — But if a man is cited out of his diocese, and appears, and sentence is given, or if he submits himself to the suit, he shall have no benefit by this statute, nor will a prohil)ition be granted (/?). " It is certainly true (says Sir John Xicholl) that both the canon and the statute law forbid the citing of parties out of their dioceses or pecidiar juri.'^dictions. But it is equally true that the rule, at least in the statute law, was meant for the benefit of the subject, which benefit it hath imiformly, as far as I see, been held to proWde for suffi- ciently, by giving defendants who are so cited a ]nivilege of pleading to the jurisdiction." Consequently, if a party who is so cited once waive that privilege by ap])earing and submitting to the suit, he or she is boimd to the jurisdic- tion (q). Out of the Diocese.'] — And that, as it seems, whether the see be full or vacant. For in the 13 or 14 Jac. 1, in the case of one Pickover, it was resolved upon this statute that if a bishopric within the ])rovince of Canterbury be void, and so the jurisdiction be devolved to the metropoli- tan, he must hold his coiu't within the inferior diocese, for such causes as Avere by the ecclesiastical law to be holden before the inferior ordinary ; and the prothonotaries said, it had been so formerly resolved. But a little before this, in the 11 Jac. 1, the contrary was resolved, that is, where one was cited out of his diocese before the Archbishop of (o) Tiibs. 1005; GohheCs case, Cro. Car. 330 ; Ford v. Weklon, SlrT. Kavm. 91; 1 Keb. G51. {p) C4ibs. 1006; Carth. 33. (7) Chirh ester v. Donegal, 1 A(](l.'17; 3 Phill.605; Prankard v. Dearie, 1 Ilagg. 1G9. PROCEDURE — GEXERALLY. 1287 Canterbviiy as guardian of the spiritualties, not only prohibition was denied, but it was flu'ther said, tliat if he had been cited before liim as metropolitan, it Avould have been granted upon this statute (r). Or jjeculiur jurisdiction.'] — That is, whether thej be cited out of such pecuHar to the Arches, or before the ordinary within whose diocese the pecuhar hes. And Coke said, that if a man be sued out of his diocese, yet if he be sued within his own proper peculiar, he is not ^dthin this statute (s). Where he shall he inhahitincj .~\ — In 8 Jac. 1, an attorney in the King's Bench was sued in the Arches for a legacy ; and, for that he inhabited in the diocese of Peterborough, prohibition was prayed and granted ; because, though he remained here in term time, he was properly inhabiting within the jm-isdiction of the bishop of Peterborough {t). In the case of Wilmett v. Lloyd, in 5 Anne (w), a dif- ference Avas taken by Holt, Chief Justice, where a man of another diocese is taken flagranti delicto : he said, where the party goes into another diocese, and is commorant there, and comes back casually into the first diocese, in such case the citation cannot be good ; for suj^pose a man comes casually into the diocese of London and commits a crime there, and then goes back to the diocese where he dwells, and then casually comes to London again, it seems that he cannot be here cited ; but if he had been cited before he left London, then that would he flagranti delicto. Immediate Judge or Ordinary dare not, nor will not, convent the Party.] — In Archbishop Parker's register, we find the archbishop to have put benefices in another diocese under sequestration, by reason of the negligence of the ordinary ; but this is an act only of voluntary jurisdiction. And before the Reformation, we find the archbishop re- quiring bishops to proceed against j)articular jjersons in their dioceses, or show cause why himself should not pro- ceed (j.-). Be Party.] — If the cause be begun before the arch- bishop, though the bishoj) or other judge (who Avas i:)ai'ty in the cause) dies Avhilst it is depending, and so the occa- sion ceases upon which it Avas first brouglit before the archbishop, yet he being in possession of it, it shall not be (r) Gibs. lOOG. 27 ; Woodward v. Makepeace, 1 (s) Ibid. Salk. 164; Machin v. Mohan, 2 (0 Gibs. lOOG; 2 Brownl. 12; Salk. 549; Ld. Raym. 452, 534. soe also llardr. 421; Westrote v. (u) Holt's Rep. 605. Ilardhuj, 1 Lev. UG ; 2 Brownl. (./•) Gibs. 1007. 1288 DISCIPLINE OF THE CIIUKCIT. 2;5 Hen. s, c. 9. rcmovccl (//). For ])er Doderidji'C, J., l)y the cl\ 11 law the Statute of death of the ])laintifi' or defendant is not any abatement of Citations. .i im i i i. i.i i • •_ tlie hbel, l)iit they have a revivor, as Ave a resummons, m ravishment of ward ; and the intent of the statute is not that such a cause shoidd be remanded, whereby the plaintiff should lose the costs of his suit. Can. 91. By Can. 94 of 1603, *' No dean of the Arches, nor official of the archbishop's consistory, nor any judge of the audience, shall in his own name, or in the name of the arohbi.^hop, either ex officio or at the in.stance of any party, originally cite, summon or any way compel, or procure to be cited, summoned or comjndled, any person which dwelleth not within the particular diocese or peculiar of the said archbishop, to apjiear before him or any of them, for any cause or matter whatsoever belonging to ecclesias- tical cognizance, Avithout the licence of the diocesan first had and obtained in that behalf, other than in such ])ar- ticular cases only as are expressly excepted and reserved in and by a statute 23 Hen. 8, c. 9. And if any of the said judges shall offend herein, he shall for every such offence be suspended from the exercise of his office for the space of three whole months." Return of the The return of the citation is either personally in court citation under \yy j^j,^^ ^y]^o executed the same, avIio certifies and makes t eoi dw. ^^^1^ j^^^^, ^^^^ |j^ Avhat manner the defendant was cited ; or else it is by authentic certificate, which is a kind of solemn writing, drawn or confirmed by some public autho- rity, and ought chiefly to contain the name of the manda- tory or person to whom it is directed, and the name of the judge Avho directed the same, with his pro])er style and title ; likewise the day and place in which the defendant was cited, and the causes for which he is cited ; in testi- mony whereof, some authentic seal ought to be put to it, of some archdeacon, official commissary or rural dean ; and it ought to express that they set their seal thereunto at the special instigation and request of the mandatory. To all which certificates, in all causes, as much credit is given as if the mandatory had personally made oath of the execution thereof. Modern prac- According to modern practice, a certificate of the service tite. Qf the citation is endorsed on that instnunent, setting forth the day and ])lace of its sennce on the ])arty, signed by the person who served it : an affidavit of the truth of the cer- tificate is also endorsed upon the instrument. (y) Gibs. 1007 ; Cro. Jac. 483. PROCEDURE— GENERALLY. 1289 Sect. 10. — Libel and Allegation. A libel {z) is a declaration or charge, drawn up in Nature of a writing, on the part of the plaintiff, unto which the de- ^^'^^^• fendant is obliged to answer (a). For when the defendant appears upon the citation, then the libel ought to be exhibited by the plaintiff, and a coj^y of it delivered to the defendant (Z»). To which purpose it is enacted by 2 Hen. 5, stat. 1, 2 Hen. 5, st. l» c. 3, as foUows : " Forasmuch as divers of the king's liege ^- ^• people be daily cited to appear in the Si)iritual Court before spiritual judges, there to answer to divers persons as well of things which touch freehold, debt, trespasses, covenants and other things, Avhereof the cognizance per- taineth to the court of our lord the king, as of matrimony and testament ; and when such persons so cited appear and demand a libel of that which against them is surmised to be informed, to give their answer thereunto, or other- wise to jjurchase of our lord the king a writ of prohibition according to their case ; which libel to them is denied by the said spiritual judges, to the intent that such persons should not be aided by any such writ, against the law, and to the great damage of such persons so impleaded : our said lord the king, by the advice and assent of the lords spiritual and temporal, and at the request and instance of the commons, hath ordained and established, that at what time the libel is grantable by the laio, it mag be granted and delivered to the j>artg toithout any difficulty^'' {c). The same principles of law, as to the form and substance Principles of of these pleas, govern both libel and allegation ; the alle- jaw respecting gation being, as has been shown, an answer to the Hbel, gation. and in certain causes, such as church rates, frequently altogether omitted. It often happens that the court admits part of an allegation and rejects part, or orders the whole or part to be reformed. The court will some- Delay to admit times, and in particular cases, delay the admission of a libel, libel, in order to allmv the party charged an opportunity of stating any special matter in the way of protest, to induce the court to decline fm'ther proceedings in the case. The principle, qui ponit fatetur, that is, that he who sets Principle y«i up a plea is bound by it, is invariably held in the courts point fatetur. at Doctors' Commons. The contents of a libel or allc- (s) Lihellus, a little book, or Salk. 553. In this case a pro- articles drawn out into a formal hibition shall go qnousque they allegation. 3 Black. Com. 1)9. deliver a copy. Ld. Kavra. 'J91; G {n) Gibs. 1009. Mod. 308 ; 'Syms v. Selwoocf, 3 (i) Wood, Civ. L. 318. Keb. 5G5; Reg. 58; F. N. B. 43; (c) See on this act, Anon., 2 Anon., 1 Vent. 252. P. VOL. II. 4 o 1290 DISCIPLINE OF THE CHURCH. Principle qui ponitfatetur. gation are to be presumed, in the first instance, to be true, being admitted in order to ])rocecd to proof; and this maxim has been found in ])ractice to be very beneficial to suitors, for if the facts alleged in the ])lea would not, if substantiated by evidence, entitle the party propoimding them to the relief he prays, the cause is stopped in limine^ and all furtlier expense is saved. But the maxim does not go the length of supposing every syllable alleged to be true (er v. iJopcr, 3 Phill. 97. Ilagg. 169. (r) Moorsom v. Moorsom, 3 (m) Maidman y. Mai pas A Qon- Hagg. 97. 4 o 2 1292 DISCIPLINE OF THE CHURCn. When the court is bound to admit them. tional articles, pleading the same transaction with greater niiinitoness, to be l)roiiglit in afterwards (5). If the articles contain a substantive charge, the court is bound to (idmit them, and cannot listen to a suggestion that they do not truly detail the circumstances {t), though the court is strictly confined to a consideration of the offences charged in the articles {u). In a case where the alleged offences were laid from September, 1824, till Januaiy, 1827, and the suit Avas instituted in April, 1828, the la])se of time was holden to be no bar (u). The promoter may always bring in articles, even though the defendant in ap])earing has admitted his liability to cen- sure ; foi', without the detail of the offences in the articles, the court would not know what punishment to inflict (w). "When brought in. When not. Their object. AVhat tliey should con- tain. Sect. 12. — Personal Ansicers{x). After contestation of suit (3/), the next thing which fol- lows in course of practice, if a suit proceeds, is the demand- ing and giving in of personal answers, unless it be in a criminal cause, wherein no one is bound to accuse himself. These are made in writing to the several articles or posi- tions of a libel, or to any other judicial matter exhibited in court, and ought to be expressed in very clear and certain terms ; and upon the oath also of the person that exhibits them. For personal answers are therefore pro\dded in law, that by the help of them, the adverse party may be relieved in the matter of proof. And if these answers are not clear, full and certain, they are deemed and taken in law as not given at all : and upon a motion made, the judge ought to enjoin new answers ; it being the same thing to give no an- swer at all, as to give a general and insufficient answer (z). A personal answer, therefore, ought to have these three qualities in it ; first, it ought to be pertinent to the matter in hand. Secondly, it ought to be absolute and un- (s) Madan v. Karr, 14 Jur. 275. {t) Jarman v. Bagster, 3 Ilagg. 35G. (u) Bennett v. BomtJcer, 3 Ilagg. 50. (v) Ibid. 25. (w) Jones V. Jelf, 8 L.T.,N.S. 399. (x) The same observation as to the effect of tlie introduction of viva voce evidence applies to this subject. (y) Formerly also the oath of calumny was taken by both liti- gants. See tit. Cod. Ue jurejur. propt. calumn. dando, p. 16, ii. 59; Nov. 49, c, 3; Nov. 124, c. 1; Decret. (ii. 7), and lib. vi. (ii. 4, De jur. calumn.). (z) "Nihil interest neget quis an taceat interrogatus, an obscure respondeat, ut incertum demittat intcrrogatorem (Dig. ii. i. 117), is the language of the Roman law upon this subject. PROCEDURE — GENERALLY. 1293 conditional. And, thirdly, it ought to be clear and cer- tain (a). In answers, a party, first, is bound only to answer in facts, not to his oavu motives, nor to his belief of the motives of another person : and, secondly, where the plea avers ignorance of the real nature of a transaction by a party to such transaction and to the suit, the other party is, in his answers to such plea, allowed to state facts in- ferring full knowledge thereof and acquiescence therein. A party is not bound to answer when his answer would criminate himself, nor, it should seem, when it would tend to degrade him (5). Personal answers are not confined to being mere echoes of the plea accompanied Avith simple affirmances or denials, but the respondents are further at liberty to enter into all such matter as maj fairl?/ be deemed not more than suffi- cient to place the transactions, as to which their ansAvers are, in Avhat they insist to be the true and proper light (c). If the answers of a party are not brought in at the time assigned by the court, the facts pleaded are taken pro con- fesso, and the expense of taking depositions to prove facts confessed in answers, is paid by the party producing the witnesses. It is a maxim of the law administered in the Ecclesiastical Courts, that whatever is to be done per- Require a pcr- sonally by the party principal in the cause, requires, in sonal service, strictness, a personal ser\dce of the notice or decree for doing it upon the party principal, and it has therefore been holden that a service of a decree for answers upon i\\Q^j)roctor will not justify the coiurt in putting the principal ]iarty in contempt, if these answers are not brought in. This was laid down as law by Sir John Nicholl, in his judgment in Durant v. Dwant (d), during the course of which he entered into the following accurate and elaborate history of this branch of the suit. " From the old practice {(;), then, as laid down by Old practice Oughton, Clerk, and Consett, it is to be collected, that ^^i'li "spect personal answers ivcre twofold — being to be had, in certain * causes, on special application, from tlic proctor in the cause, as well as from the principal. This is distinctly laid doAvn by Ougliton ; for instance, in the 16th section of his 61st title, ' De litis contestatione,^ and in the subse- quent section [s. 17 of the same title], the suits, in special, Avherc the proctor's answers may be had, are pointed out, (o) Ayl. Parerg. 65. Sir J. Nicholl, in Oliver and Puke (b) Swift V. Sivi/t, 4 ITagg. v. Tlcathmtr, 2 Add. 35. 139. (rf) 1 Add. 114, 118, &c. (o) See the whole judgment of (?) Ibid. 118. 1294 DISCIPLINE OF THE CHURCH. Old practice with respect to. Why a per- sonal service is requisite. Modem prac- tice of service on proctor in- correct. " and the uses to -wlilch they are capable of being made sub- sennent in these suits, are ascertained. JS'ow this being so, I apprehend that notices or decrees for personal answers were always served accordingly ; that is, notices for such answers from the ])roctor, uj)on the proctor ; and decrees for such answers irom the })arty, upon the party. " It is tnic indeed that Oughton, in his 62nd title, refers to a note on title xxi. [Obs. 9] by which it seems, that a decree for the answers of the party principal in the cause may he sei'\'ed on his proctor. But this can only be, he observes, under the special authonty of the court, in virtue of a special clause inserted in the decree itself; and conse- quently it forms no exception to the rule, that in ordinary cases, the decree for the personal answers of the party ])rincipal must be personally served upon the party prin- cipal. Oughton's Avliole 62nd title represents, under ordi- nary circumstances, the decree for the personal ansAvers of the party principal, as a foraial process, under seal of the court, against the party principal, and required to be served, personally, upon the party, as contradistinguished from any mere assignation or notice to be served upon the proctor. And this I conceive to have been invariably the old practice, except as excepted in the 9th obs. on Oughton's 21st title— an exception not at all applicable to the case of the present appeal, or in ordinaiy instances. " So stood the old practice, — a ]iractice, I must also re- mark, both perfectly reasonable in itself, and perfectly con- sonant with the practice of the court in analogous cases. For the reasonableness of the practice, it is too ob%aous to be insisted upon ; and for its consonance with analogy, we all know, that whatever is to be done, personally, by the party, absolutely requires, in strictness, a ])ersonal sei'A'ice of the notice or decree for doing it upon the party. "Where steps are to be taken by the proctor merely, a mere assignation upon the ])roctor suffices — he, quoad hcec, being ' dominus litis J' But Avhere the personal intervention of the prin- cipal is requisite to the act to be done, as it is, for instance, where costs are taxed against him, or where sums are decreed to be paid by him on account of alimony, the practice is to take out a monition against the party, not merely to sen e a notice on the jiroctor, which monition must be personally served upon the party ; in all cases, that is, where it is requisite that the proceedings should be conducted with any semblance of regularity. " It must be conceded, however, in this matter of per- sonal ansirers, that the modern practice has been to serve the decree on the proctor only, and not on the principal. PROCEDURE— GENERALLY. 1295 " This may have arisen, partly perhaps from the two species of personal answers already alluded to (the latter, for ob- vious reasons, now obsolete) being confounded in modern practice ; and, partly, because persons seldom hang back in this matter of answers, which are to be obtained, in most cases, without any sort of difficulty. Being the practice, however, I shoidd be disposed to admit, that a service of the decree for answers, though merely upon the proctor, might be a sufficient service of the decree for very many pui'poses. For instance, if, after such servace, the party's How far avail- answer to an allegation of faculties Avere not brought in *^^®' within a fit and reasonable time, it might justify the court in allotting sums on account of alimony (the marriage, that is, being proved or confessed) in proportion to the full extent of the facidties alleged ; and so on. But it is a very different question whether such a ser^dce Avould justify the court in putting the party in contempt, and proceeding to signify him, in order to his imprisonment, under the statute ; a measure which, I conceive, ecclesi- astical courts to be only warranted in adopting, where the prior proceedings have been conducted with the strictest regularity. " Nor would it vary the case, in this view of it, to my Necessity of apprehension, that notice of the decree should have been Pf sonal ser- serv^ed on the principal, or that the proctor should have appeared to the decree, and prayed further time, and so forth ; both Avhich circumstances occurred in this very suit. As for the notice, that was a mere notice from the adverse proctor ; the only notice which the party was bound (under this penalty at least) to obey, being the decree of the court, under seal of the court, dubj, i. e. personally, served upon him, the party. As for the proctor's appearing to, and • ■ acting upon the decree, I can by no means think the act of the proctor so binding on the principal — unless, indeed, in \nrtue of some special clause to the effect of enabling him to accept services of decrees, &c., upon the principal, inserted in the proxy — for I cannot concede that a party may be put in contempt, and signified so as to become liable to all the ]:)enalties of contumacy, merely from his proctor doing that, for doing which he has no strict legal authority. " Such then being the old practice, and being so, as it is, consonant both to reason and analogy, it remains only to inquire whether it has imdergone any authoritative altex-ation in later times. Nor do I conceive that the inquiry can be attended Avith any sort of difficulty. Is there any adjudged case producible where this court has 1296 DISCirLINE OF THE CIIURCIT. " proceeded to enforce decrees of this nature by its compul- sory ])rocess, in tlie absence of a personal service ? 1 am confident there are none. Can it even be shown that such decrees have been so enforced, unless after a personal ser- vice, the whole matter jiassing sub silentio ? I am nearly as confident that tliis has not occurred ; for the court is always (or means to be) satisfied that there has been a jiersonal service before issuinf]:; its compulsory process in this descrij)ti()n of cases. The result therefoi-e of the whole inquiry, Avhich is almost too obvious to be stated in terms, is, that the old practice in this matter of personal answers, being both perfectly reasonable, and perfectly analogous to the correct practice in similar cases, should and must, in all cases, stricti juris, be the practice of ecclesiastical coiu'ts at this very day." Ancient prac- It scems that the ancient practice was to give acts on t'c^' petition exceptive to answers, but never an allegation (./). Where an severs Answers cannot be claimed where they would subject can and can- ^\^q party making them to a prosecution for a felony (^). not be claimed, t • '• ^ '^ ^i i i' i j.» j.i In cnmmal suits the defendant s answers upon oatli arc not to be required even to those positions which are not In themselves criminatory. The law upon this point is fully and carefully set forth by Sir J. Nicholl, in the case of Scliultes v. Hodgson (Ji). It is a common error of coimtry courts to consider personal answers as responsive allega- tions, and to examine Avitnesses, an error which arises from a confusion of the answers Avith the plea {i). The obvious use and advantage of ansAvers is to save the necessity of taking evidence (/c), and causes are sometimes decided upon them alone (Z). Keformation Answers may be directed to be reformed. Instances o^' are to be found in the Keports where they have been so on the several scores of redundancy (w), for containing abusive matter (?/), for irrelevancy (o) ; and an assignation for fuller answers has sometimes been decreed after publi- cation (/?), AVhcn a certificate to a decree for ansAA^ers has been discontinued, it is still competent to the proctor (/) Morgan \. 1101)11718,1 Pliill. 2GG, n. ; Clarlc v. Douce, 2 riiill. 585. 335; Morgan v. Hopkins, 2 Phill. (g) liohins v. Woheley, 1 Lee, 582. 020. (m) Jehen v. JeJien, 1 Lee, 273; (/() 1 Add. 105. Mayo v. Brown, ibid. 570. (i) /ywr7?c/^v. ./fn7t7n.s, 2 Pliill. (n) Itaymond v. Baron de 394; Morgan v. Hopkins, 2 Phill. W'/tUville, 2 Lee, 499. 584. (o) Ibid. ; and see Jones v. (/•) Clntton V. Cherry, 2 Pliill. Yarnohl, 2 Lee, 5G8, co7itra. 385. (p) Smith v. Smithson, 2 Lee, (I) Wright v.Sarmuda,2Fh.lU. 505; Heath \. Heath, 2 Lee, 562. PROCEDURE— GENERALLY. 1297 having discontinued it, to object to answers (q). Time has been allowed to an agent acting under a power of attorney to plead on an answer in an interest cause, when the principal resided in Jamaica (r), but a party Consequence not giving in his answers on the day of the return of of not giving. the decree, personall?/ served, "will be pronounced contu- macious (5). The rules as to evidence are the same as those of other Evidence courts. The " exceptive allegation," that is, exception to generally, the credit of Avitnesses, has become practically obsolete since the introduction of viva voce evidence ; but see Evans v. Evans (t). Sect. 13. — Costs. The question of costs in the Ecclesiastical Courts is, for Costs. the most part, a matter in the discretion of the judge, according to the nature and justice of the case ; and the reasons for granting or reftising costs are publicly ex- pressed at the time of giving the judgment. If either party be condemned in costs, the proctor of Proctor's bill the other party brings in his bill. The bill is referred to referred to the registrar, who is attended by the proctors on both ^^^ ^^' sides, and, after examining the bill item by item, he alloAvs or disallows or modifies the several charges, according to the estabUshed practice, where such practice exists ; and, in other cases, according to the reasonableness of each charge : having taken off all overcharges, he reports to the judge, in open court, the amount of the bill as allowed, and the proctor makes oath that the sum reported has been necessarily expended by or on behalf of his party. If no objection has been offered to the report, the judge then taxes the bill at that sum, and decrees a monition for the payment of it ; but if either party is dissatisfied with the report of the registrar on apy item of the bill, the ob- jection may be brought before the court for its decision. The regular charges are, however, so well known and established, and the registrars of the se^'eral courts, who are acting under the sanction of an oath of office, are so experienced and respectable, being generally selected out of the body of proctors, on the ground of their high cha- (5) Raymond v. Baron de (a) WyUie\. Mott and French , Watteville, 2 Lee, 495. 1 Ilagg. 33, and see note. (r) Liebenrood v. Lawson, 2 (0 1 Consist. 75. Lee, 558. 1298 DISCIPLINE OF THE CHURCH. Payment of costs. General prin- ciples with respect to. Taxation of costs. meter and professional knowlc(lf:^c, that an exception to their rejwrt as to costs rarely oecurs. The jiaynient of tlie costs thus taxed, as between party and party, is enforced by the process o^ contumacy, signi- Jicavit and attachment ; but costs as between proctor and client cannot be taxed by the judge, nor the payment thereof be enforced by the court ; the })roctor must recover his bill of costs against his client by an action at law (t). It has always been holden in the ecclesiastical coxu'ts, that costs are matters of discretion, but not of a capricious but a legal discretion, exercised according to a just consi- deration of all the circumstances, and with an adherence to general rules and former precedents (?^). A client is, luider all circumstances, entitled to a detailed bill of costs from his proctor, but where this has been deliyered in, and long acquiesced in, and payment made, he is not entitled, after the suit is over, dui-ing which he has not been inops consilii, to have it referred to the registi'ar for examina- tion (x). A monition for the payment of costs will be enforced, if necessary, by the further aid of the court (?/). If a party committed for non-payment of costs under an erroneous process be thereupon released, the court is bound, at the application of the party to whom they are still due, to issue a new monition for payment of such costs (z). The court will sometimes give, in lieu of full costs, a smaller sum nomine expensarum. It has also pronounced an Irish peer in contempt for non-payment of costs, and directed such contempt to be signified, leaving the lord chancellor to decide whether the writ de contumace capiendo shoidd issue. The costs are taxed at a cei-tain sum (say 100/.), " be- sides the expense of a monition ;" but if a monition be necessary, the expense of it falls, and of course any further expense, which disobedience to the monition may occasion, on the disobeying ])arty (a). Costs may be taxed de die in diem, but usually costs are only taxed from temi to term, and for the hearing. But if many charges are made, and very few proved, the party against whom they are brought (<) Rep. of Eccles. Comm. 19; see Peddle v. Evans, 1 Ilagg. 684; Peddle v. Toller, 3 Ilagg. 287. («) Lagden v. Robinson, 1 Con- sist. 505; Burncll v. Jenkins, 2 Phill. 4rX); Wilson v. M'Nath, 3 Phill. 92; Griffith v. Reed, 1 Hagg. 210; Goodall v. Whitmore, 2 Hagg. 374. {x) Peddle v. Toller, 3 Hagg. 296. (y) Coatcs V. Brown, 1 Add. 34.5. (z) Austin v. Dregger, 1 Add. 307. (a) Coatee v. Brovj>n, 1 Add. 351. PROCEDURE — GENERALLY. 1299 will not be condemned in the expenses of the whole pro- ceeding (J). AYhei-e a prohibition has been applied for, the common law courts have no power either by custom or by 1 & 2 Will. 4, c. 21, to allow to the successful party his costs in the ecclesiastical court. And this court will not, on the other hand, include the expenses incident to proceedings for a prohibition in its taxation of costs (c). It was so decided by the judge of the Consistory of London in the case of Tliorogood (d). The court has the power in all cases upon application Security for made to it, to direct security to be given for costs by either ^osts ; or all of the parties. And in criminal suits, one of the reasons why an appli- in criminal cation must be made to the judge before his office is pro- ^°^*'^- moted is, that he may consider the fitness of the person to be made responsible for costs to the other party (e) "Where it is proved to the court that a party instituting his suit became bankrupt since the suit began, it will order such party to give security for costs, before it allow further proceedings in the cause. The court required such security in the case of Goldie v. Murray, saying, that it did not think it had the power to order the assignees to do so, as the common law courts seemed to have {/)• There appears to be no reason for the supposition that this power of the court, to order security for costs, applied principally to testa- mentary cases {g). The giWng costs is not a matter absolutely unappealable. Appeals in though such appeals, especially for trifling sums, are much respect of to be discouraged (A). An appeal is perempted by doing any subsequent act in fiirtherance of the sentence, viz., attending taxation of costs (z). On an appeal from a grievance, the court will not enforce payment of the costs incurred in the inferior court (_/) before the final hearing ; but then the court, in cases not matrimonial, may give costs in both courts. The statute of 3 & 4 Will. 4, c. 41 (A) (establishing the Costs in court Judicial Committee of the Privy Council), contains the °^ appeal, following provision with respect to costs. Sect. 15. " The costs incurred in the prosecution of any (J)) Bardin v. Calcott, 1 Con- Crompton & Meeson, 620; Tidd's sist. 20. New Practice, 340. (r) 5 B. & A. 458 ; 1 B. & A. (7) TurUm v. Turton, 3 Ilagg. 154; 1 Str. 154. 34r). ((/) Baker v. Thorogood, 2 Curt. (h) Llnydw Pooh, 3 Hagg. 477. 635(1841). (/) Lloyd and Clarke Y.Poole, (f) Carr v. Man^h, 2 Phill. 204. 3 Ilacg. 477. (/) Trcrog. Court, May 12, (./■)' Z^mco v. /?mro, 3 Phill. 38. 1841. See Mason v. Polfiill, 1 (/.•) Vide supra, p. 1273. 1300 DISCIPLINE OF THE CHURCH. In criminal suits. Proctor. appeal or matter referred to tlie paid judicial committee, and of such issues as tlie said coniniittee shall under this act direct, shall l)e })aid by such party or parties, person or persons, and be taxed by the aforesaid registrar, or such other person or persons, to be apjiointed by his Majesty in coimcil or the said judicial committee, and in such manner as the said committee shall direct." As a general princi])le, where an offence has been com- mitted, the expense of correcting it is to be borne by the offender; full costs, however, are not given in all cases, but are mitigated according to the discretion of the court (/). A proctor may be condemned in costs for improper practices in the conduct of a suit, besides being subject to other punishment for extortionate charges (m). Monition for Costs. William, by Divine Providence ArcJihisJiop of Canter- bury, Primate of all England and Metropolitan. To all and singular clerks and literate persons whomsoever and wheresoever 171 and throughout our jvhole province of Canterbury, greeting. Whereas the Right Honourable Sir H. J., Knight, Doctor of Laics, Master, Keeper or Commissary of our Prerogative Court of Canterbury lawfully constituted, rightly and duly proceeding iti a certain cause or business of proving in solemn form of law the last will and testament of G. K, late of Beading, in the county of Perks, deceased, promoted by J. S., the sole executor named in the said tcill, against J. M., the natural and laitful brother and only next of kin of the said deceased, which was lately depending in judgyiient before him, and in which cause or business a pretended codicil to the said will 7cas propo7mded on behalf of tlie said J. M., did, at the petition of the proctor of the said J. aS'., condemn the said J. M. in the costs of the said J. S. And ivhereas on the day of the date hereof, the proctor of the said J. S. porrected a bill of costs on behalf of his said party, which our said master, keeper, or commissary, rightly and duly proceeding thereupon, moderated at the sum of pounds and shillings of lawful money of Great Britain and Ireland, current in Great Britain, to be paid to the said J. S. or his proctor, besides the (I) Griffiths V. Reed, 1 Hagg, 210; Jenkins v. Barrett, 1 Ilagg. 12. See also Lee v, Matthewa, 3 Hagg. 17G; Palmrr v. Tijou, 2 Add. 203; England v. Williams, 2 Add. 309; Clinton v. Hatchard, 1 Add. 104; Taylor v. Morley, 1 Curteis, 470. (7/1) Prentice v. Prentice^ 3 Phill. 311 ; 3 Hagg. 255. . PROCEDURE — GENERALLY.. 1301 expenses of his monition, and decreed the said J. M. to he cited and admonished to jjay or cause to be paid the said sum of pounds and shillings, the amount of the said costs, to the said J. S. or his proctor in maimer and form hereinafter mentioned {justice so requiring^ We do therefore hereby authorize and empoiver, and strictly enjoin and command you, jointly and severally, that you monish or cause to be monished peremptorily the said J. M. {whom %ve do so monish by the tenor of these presents^ to pay or cause to be paid to the said J. S. or his proctor the sum of pounds and shillings, the amount of the said taxed costs, ivithin fifteen days after the due execution of this monition upon him, under pain of the law and contempt thereof And what you shall do or cause to he done in the premises you shall duly certify our said master, keeper or commissary , his surrogate, or some other competent judge in this behalf, together with these presents. Dated at London the day of , in the year of our Lord one tliousand eight hundred and thirty and in the year of our translation. S L X^^p^^y /y r> \ Registers. Certificate. This monition was personally served on the above^ named J. M., by showijig to him the same under seal, and leaving with him a true copy hereof, at Reading, in the county of Berks, this day of , in the year of our Lord one thousand eight hundred and thirty . By me, G. S. Appeared personally the above-named G. S., of Reading, in the county of Berks, Gentleman, and being sworn made oath that the whole body, series and contents of the above certificate, to which I have set and subscribed my name, were and are true. G. S. On Monday, the second day of June, , tlie above- named G. S. was duly sivorn to the truth of the above affidavit, at Reading, in the county of Berks. Before me, J. W., A Commissioner, Sfc. As to the fees in the Ecclesiastical Courts, see Canons Fees. 135, 136 of 1603, and 10 Geo. 4, c. 53, ss. 1—4. 1302 DISCIPLINE OF THE CnURCII. Curates. Clerks in orders. Spiritnal por- soDs illegally trading may be suspended, and for the third offence deprived. CIIAPTEK VII. PROCEDURE UNDER 1 & 2 ViCT. C. 106. The procedure ajrainst curates under tliis act lias been already mentioned (a). By 7 & 8 Vict. c. 59, s. 2, persons in holy orders appointed to the office of chui'ch clerk, chapel clerk or pai-ish clerk under that act arc to be proceeded against as if they were licensed curates. As to trafficking and farming it is enacted by sect. 31 of the statute 1 & 2 Vict. c. 106 {h), " That if any spiritual per- son shall trade or deal in any manner contrary to the provi- sions of this act, it shall be lawful for the bishop of the dio- cese where such person shall hold any cathedral preferment, benefice, curacy, or lectm'cship, or shall be licensed or other- Avise allowed to perform the duties of any ecclesiastical office whatever, to cause such person to be cited before liis chancellor or other competent judge, and it shall be lawful for such chancellor or other judge, on jn-oof in due course of law of .such trading, to suspend such spiritual ])erson for liis first offence for such time not exceeding one year as to such judge shall seem fit; and on proof in like manner before such or any other competent ecclesiastical judge of a second offence committed by such spiritual person subse- quent to such sentence of suspension, such spiritual person shall for such second offence be sus])ended for such time as to the judge shall seem fit; and for his third offence be de])rived ab officio et beneficio, and thereupon it shall be lawful for the ])atron or patrons of any such cathedral pre- fennent, benefice, lectureship, or office, to make donation or to ])resent or nominate to the same as if the person so deprived were actually dead ; and in all such cases of sus- pen.sion, the bishop diu'iiig such su.spension shall sequester the jn-ofits of any cathedral preferment, benefice, lecture- ship, or office of which such spiritual person may be in {(i) Vide supra, Part II. Chap. XV. (ft) It is expressly provided, that this act shall not affect any powers the bisliop may now have ♦' by statute, canon, usage or otiierwise howsoever" (see sec- tion 132). For tlie mode of pro- Cfcding to i)unish non-residence under the old law, before any act of parliament had been passed on the subject, see the case of Pavokl V. Uead, 2 Lee, 566. PROCEDURE UNDER 1 & 2 VICT. C. 106. 1303 possession, and by an order under his hand direct the application of the profits of the same respectively, after deducting the necessary expenses of providing for the due performance of the duties of the same respectively, towards the same purposes and in the same order, as near as the difference of circumstances will admit, as are hereinafter directed with respect to the profits of a benefice sequestered in case of non-compliance after monition with an order requiring a spiritual person to proceed and reside on his benefice (c), save that no part of such profits shall be paid to the spiritual person so suspended, nor applied in satis- faction of a sequestration at the suit of a creditor; and in case of deprivation the bishop shall forthwith give notice thereof in writing under his hand to the patron or patrons of any cathedral preferment, benefice, lectureshiji, or office which the said spiritual person may have liolden in the manner hereinafter required with respect to notice to the patron of a benefice continuing under sequestration 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 such last-mentioned benefice would, under the provisions of this act, lapse : provided Contract by always, that no contract shall be deemed to be void by spiritual reason only of the same having been entered into by a P^''^^'^* spiritual person trading or dealing, either solely or jointly with any other person or persons, contrary to the pro- visions of this act, but every such contract may be en- forced by or against such spiritual person, either solely or jointly with any other person or persons, as the case may be, in the same way. as if no spiritual person had been party to such contract." This statute empowers the bishop to punish the non- As to the non- residence of incumbents by the adoption of one of two [n^umben^s. modes of procedure provided by it for this purpose. rp^^,^ hkhIcs of 1. By a summary process of monition and sequestra- prucceilingto tion ; 2. By the infliction of certain penalties mentioned punish non- in Part IV. Chap. III. Sect. 5, under sect. 32 of 1 & 2 residence. Vict. c. 106 (d). In both cases an appeal is given from the order of the bishoj) to the archbishop. As to the process by monition and sequestration, it is enacted as follows : — Sect. 54. " In every case in which it shall appear to Residence the bishop that any spiritual ])erson holding any benefice ^^'^y be en- within his diocese, and not having a licence to reside else- „°onTtioIf whei'e than in the house of residence belonging thereto, instead of proceeding • - - ■ for penalties, (c) r*ra. Roberts. Ecc. Rep. 367 (184.5); .5 Moo. P. C. 308; 9 Q. B. 691. 1312 DIM II'LIXE OF THE C IIUUCII. Application of penalties. Kccovcrv of fees, &c. by monition and sequestration. Their taxation. Penalty on registrar for neglect. Commence- ment and con- clusion of the year. How months to be calculated. Statements how to be verified. iiicuiTcd sMl)sc(jucnt to tlie first day of'.Iamiary in tlic year iiumt'diatt'ly ])rc'ci'(liiig the year in which such proceedings shall be coninienced." Sect. 119. "All penalties recovered under the provi- sions of this act, the application of which is not specially directed thereby, shall be paid over to the treasurer of the governors of the bounty of (Jueen Anne, to be applied to the purposes of the said bounty." As to fees and otluu- matters: Sect. llo. "All fees, charges, costs and expenses incun-ed or directed to be paid by any spiritual person holding any benefice under the provisions of this act, which shall remain impaid for the period of twenty-one days after demand thereof in writing delivered to or left at the usual or last place of abode of such spiritual person, may be recovered by moni- tion and sequestration : provided always, that it shall be lawful for the person or persons of whom any such fees, costs, charges and expenses shall be so demanded to apply to the bishop of the diocese to order the taxation thereof, and such bishop shall thereupon order some proper person to tax and settle the same ; and the certificate of allow- ance, by the person so to be appointed, of such fees, costs, charges and expenses so to be taxed, shall be final." Sect. 116. " If the registrar of any diocese shall refuse or neglect to make any entry, or to do any other matter or thing prescril)ed by this act, he shall forfeit for every such refusal or neglect the sum of five ])ounds." Sect. 120. " For all the purposes of this act, except as herein otherwise 2:)rovided, the year shall be deemed to commence on the first day of January, and be reckoned therefrom to the thirty-first day of December, both in- clusive" (/). Sect. 121. " For all the purposes of this act the months tlierein named shall be taken to be calendar months, except in any case in which any month or months are to be made up of different jieriods less than a month, and in every such case thii-ty days shall be deemed a month." Sect. 123. " AVhen authority is given by this act to any archbishop or bishop to require any statement or facts to be verified by evidence, or to inquire or to cause inquuy to be made into any facts, such archbishop or bishop may require any such statement or any of such facts to be veri- fied in such manner as the said archbishop or bishop shall see fit; and that when anv oath, affidavit or affirmation, (/) r the correction of clerks re- quired amendment, repealed the foregoing statute of Henry the Seventh (the continuance of Avhich up to tlie present period was not a little extraordinary), and contained the following provisions: — First (though the enactment comes late in the statute), it is to be observed that it enacts as follows: — As to criminal suits generally — Sect. 23. " Xo criminal suit or proceeding against a clerk in holy ordei's of the United Church of England and Ireland, for any offence against the laws ecclesiastical (a), (o) In Riichltnm v. Bhiclc (1 penalties for non-residence under Rob. Eccl. Rep. 3G7; 5 Moo. P. 1 & 2 Vict. c. 106, ss. 33, 114, C. 308 ; 9 Q. B. 691) it was holden was not a " crinainal suit or pro- that a proceeding to recover ceeding." PROCEDURE UNDER 3 & 4 VICT. C. 86. 1315 shall be instituted in any ecclesiastical court otherwise than is hereinbefore enacted or provided" (b). Secondly, it is provided — the provision is perhaps diffi- cult to construe and ajiply — As to personal powers of ordinary — Sect. 25. " That nothing in this act contained shall be Not to affect consti-ued to affect any authority over the clergy of the re- authority of spective provinces or dioceses wliich the archbishops or ^ourt^ °" ° bishops of England and Wales may now, according to law, exercise personally and Avithout process in court." Any authority of the bishop exercised out of court is no bar to the institution of proceedings under this act (c). Thirdly, as to limitation of time. This statute limits the time within which a clerk may be prosecuted under its pi'ovisions, a limitation introduced by positive law for the first time to the theory of clerical discipline. It is provided by sect. 20, " That every suit Suits to be or proceeding against any such clerk in holy orders commenced for any offence against the laws ecclesiastical shall be years. commenced loithin two years after the commission of the offence, in respect of which the suit or proceeding shall he instituted, and not afterivards: provided always, that Proviso, whenever any such suit or proceeding shall be brought in respect of an offence for which a conviction shall have been obtained in any court of common law, such suit or proceeding may be brought against the person con- victed at any time within six calendar months after such conviction, although more than two years shall have elapsed since the commission of the offence in respect of which such suit or proceeding shall be so brought." It has been finally ruled by the Privy Council and the When the time Court of Arches, reversing the decision of the Archbishop begins to run. of Canterbury acting for the Bislio]i of Bath and Wells, that the commencement of the suit dates from the ser\'ice of the citation upon the accused clerk and not from the date of the issiie of a preliminary commission (r/). This case exhausts all the learning on the subject; see also (Jj) Tliis clause has taken away tlie case of the Dean of Bath and any power wliich the ordinary, (2?/d Wells (Dyer's Kcp. 278). visitor, mhjlit have possessed of (c) Ex ixirte Denhon, 4 El. & depriving a clerk summarie et Bl. 292; 3 C. L. R. 247. sine fig lira jmllfii ; and this power (rf) Deniwn v. Ditr/iei\'Dennc is not preserved by sect. 2r>. Erg. & Swabey's Kep. 334; 11 Moo. v.Ahp. of York (2 Ad. & Ell, N. P. C. 324. S. 1 ; 2 G. .^- D. 202). But see 1316 DISCIPLIXE OF THE CHURCH. When the time bcjrins to rim. 27 Geo. 3, c. 44, not to iipply to suits against spiritual per- sons for certain offences. Definition of the terms " preferment," " bishop," " archbishop," and " diocese." ^'/icrirood v. luii/ (c), Brookes v. Crrssirell ( f); and as io tlie ap[)licatioii ot" this section to the G8tli Canon, Titch- viarsh v. Chapman (q). The offence for which tlie clerk is articled must have been committed within the two years ]>receding the service of the citation, but it docs not follow th.at offences without that limit may not be p;iven in evidence as rendcrino^ pro- bable the commission of an offence within the limits (A). For an analogous decision see Duke of JSorfoWs rase (Ji ). See also Bishop of Hereford v. Thompson (?'). The gene- ral rule at common law seems to be that the limited time begins to run from the moment when the injury complained of is so comjilete as to enable the injiu'ed party to take legal ]>roceedings. It is fiu'ther jirovided, however, by sect. 21, " That the act 27 Geo. 3, c. 44, does not and shall not extend to the time of the commencement of suits or proceedings against spiritual persons for any of the offences in the said act named" (k). Fourthly, as to preferments subject to the provisions of this act. Sect. 2. " Unless it shall otherAvise apj^ear from the context, the term ' preferment,' when used in this act, shall be construed to comprehend every deanery, archdeaconry, prebend, canonry, office of minor canon, priest vicar, or vicar choral in holy orders (/), and every precentorshi]), treasurership, sub-deanery, chancellor.ship of the cluu'ch, and other dignity and office in any cathedral or collegiate church, and every mastership, wardenship, and fellowshi]) in any collegiate chiu'ch, and all benefices with cure of souls, comprehending therein all ])arishes, perpetual cura- cies, donatives, endowed pul)lic chapels, parochial chapeh'ies. (e) 1 lyioo. P. C. 253. (/•) 1 Koberts. Eccl. 606. (r/) 3 Curt. Eccl. 715. \h) Martin v. Jackson^ Arches, 1870, in ■which the point was as- sumed Init not argued. (A) 12 How. State Trials, p. 927. (0 2 Roberts. 595; 17 Jur. 190. (At) Vide suprct^ p. 1082, el post. Free V. Burqoyne, 2 lUigh, N. S. 65; 6 B. & C. 538, at p. 1319, infra. (l) All the vicars choral of St. Paul's are laymen, and so are many of them in other cathedrals: these, therefore, it would seem, must still remain under the con- trol of the visitor. In 1716, the dean and ciiapter of York passed sentence of deprivation on a vicar choral who was in holy orders. An appeal was prosecuted to tiic Arclibishop of York, as visitor, and to the Court of Delegates. Both these tribunals confinned tlie original sentence of the dean and ciiapter. See printed Cata- logue of Processes in the Re- gistrv of tiie High Court of Dele- gates from 1609 to 1823, p. 45, n. 801, Boughton, Vicar Choral in York Cathedral. PROCEDURE UNDER 3 & 4 VICT. C. 86. 1317 and chapeli'ies or districts belonging to or reputed to belong, or annexed or reputed to be annexed, to any cliurch or chapel, and every curacy, lectureship, reader- ship, chaplaincy, office, or place which requires the dis- charge of any spiritual duty, and "whether the same be or be not within any exempt or peculiar jurisdiction ; and the word ' bishop,' when used in this act, shall be construed to comprehend 'archbishop;' and the word ' diocese,' when used in this act, shall be construed to comprehend all places to which the jurisdiction of any bishop extends under and for the purposes of an act 1 & 2 Vict. c. 106" {m). Fifthly, all places formerly exempt and peculiar, not subject to their proper ordinary, are made subject to him for the purposes of this act. Sect. 22. " Every archbishop and bishop within the Power of arch- limit of whose province or diocese respectively any place, ^i^jiops and district or preferment, exempt or peculiar, shall be locally exempt or situate, shall, except as herein otherwise provided, have, peculiar places use, and exercise all the ]")owers and authorities necessary or preferments. for the due execution by them respectively of the provi- sions and purposes of this act, and for enforcing the same with regard thereto respectively, as such archbishop and bishop respectively would have used and exercised if the same were not exem]it or peculiar, but were subject in all respects to the jurisdiction of such archbishop or bishop ; and Avhere any place, district, or preferment, exempt or peculiar, shall be locally situate within the limits of more than one province or diocese, or where the same, or any of them, shall be locally situate between the limits of the two provinces, or between the limits of any two or more dioceses, the archbishop or bishop of the cathedral chiu-ch to whose province or diocese the cathedi-al, collegiate, or other church or chapel of the place, district, or preferment respectively shall be nearest in local situation, shall have, use and exercise all the powers and authorities which arc necessary for the due execution of the provisions of this act, and enforcing the same with regard thereto respectively, as such archbishop or bishop could have used if the same were not exempt or peculiar, Init Avere subject in all re- spects to the jurisdiction of such archbishop or bishoi) res])cctively, and the same, for all the ]iurposes of this act, shall be deemed and taken to Ixi within the limits of the province or diocese of such archbishop or bishop ; pro- vided that the peculiars belonging to anv archbishopric or bishopric, though locally situate in another diocese, shall (;/i) Vide suprii. Tart IV. Cliap. ^'11. 1318 DISCIPLINE OF THE CIIUllCII. As to exempt places. Provisions of act not to interfere with persons insti- tuting suits to establish a civil right. 23 Hen. 8, c. l». Modes of trial continue subject to the arcliLislioj) or bishop to -wliom they belong, as ^vell for tlie ptu-j^oses of this act as for all other l)urposes of ecclesiastical jurisdiction." The Act of Uuiformitv, 1 KHz. c. 2, had already, by sect. 4, empowered bishops and their officers to ])roceed for the ])urpo.se of enforcing that act in ])lrtces otherwise exempt from their jurisdiction. Sixthly, as to civil suits instituted in a criminal form. Sect. 19. '' Nothing hereinbefore contained shall prevent any person from instituting as voluntary promoter, or from prosecuting, in such form and manner and in such court as he might have done before the passing of this act, any suit ivhich, though in form criminal, shall have the effect of asserting, ascertaining , or establishing any civil rigid {n), nor to prevent the archbishop of the province from citing any such clerk before him in cases and under circumstances in and under which such archbishop might, before the passing of this act, cite such clerk under and in pursuance of a statute passed in the twenty-third year of the reign of king Henry the Eighth, intituled ' An Act that no person shall be cited out of the diocese where he or she dwelleth, except in certain cases.' " Ha\'ing considered the extent and limitation of the operation of the statute, we will now state the means which it employs for effecting the end Avhich it has in view, namely, the discipline of the clergy. The statute provides for the trial of an accused clerk as follows: — 1. The bishop may issue a commission of inquiry. 2. If that commission report that there is a prima facie ground for further j)roceedings, — 3. The bishop may try the case himself with certain assessors ; 4. Or may appoint a commissary to hear the case ; 5. Or may, after issuing commission, and before articles are filed, send the case to be heard by the court of the province ; 6. Or may pronounce sentence, with the consent of the accused and party comjjlaining, without further proceedings ; (n) E.g., to try a question of impropriation {Duke of Portland V. Biiif/liajr), 1 Consist. loG), or the right of a chaplain to mini.ster in a workhouse, notwithstanding the prohihition of the incumbent of the parish (^folyneiix v. Bag- shrno, 9 Jur., N. S. 5.5.3). See, however, Luhlfll v. Rainftffnxl, L. R., Weekly Notes (18G8), 21, PROCEDURE UXDER 3 & 4 VICT. C. 86. 1319 7. Or maj, without issuing any commission, send tlie case to be tried in the first instance by the court of the province. From the sentence of the bishop or his commissary an appeal lies to the court of the pro^-ince. From the sen- tence of the court of the pro^-ince, whether acting as a court of appeal or as a court of first instance, an appeal lies to the Judicial Committee of the Privy Council, of A^•hich a bishop must be a member. The enactments of the statute relative to these matters are as follows : — 1. As regards the issuing and Avorking of the commis- sion the clauses are — Sect. 3. " In every case of any clerk in holy orders of Bishop may the United Church of England and Ireland who may be i^?"®. ^ '^°^^- charged with any offence against the laws ecclesiastical, or I!!f,!l?° ^* • 11 • 11 •! mquiiy, concernmg whom there may exist scandal or evil report as having offended against the said laws, it shall be lawfiil for the bishop of the diocese within Avhich the offence is alleged or reported to have been committed, on the appli- cation of any party complaining thereof, or if he shall think fit of his own mere motion, to issue a commission under his hand and seal to five persons, of whom one shall Members of be his-vacar general, or an archdeacon or rural dean within ^P^^ commis- the diocese, for the purpose of making inquiry as to tlie ^^°°' gi'ounds of such charge or report : provided always, that notice of the intention to issue such commission under the hand of the bishop, containing an intimation of the nature of the offence, together with the names, addition, and resi- What notice dence of the party on Avhose application or motion such m^st be pre- commission shall be about to issue, shall be sent by the ^^""^ ^ ^'^^"' bishop to the party accused fourteen days at least before such commission shall issue." The question hoAv far "a clerk in holy orders" can, for the purposes of this act, relieve himself fi'om his responsi- bility to the ordinary, has been considered (o). The ha\ang caused a " sca?idal or evil report" is, in the What are case of a clerk, an offence per se ( p); and for this reason, offences. and for the sake of purging the church from sucli scandal, proceedings may be taken in the Ecclesiastical Court against a clerk, Avhen they could not be taken because of 27 Geo. 3, c. 44, against a layman at all, or against a clergyman pro salute animcB (y), before the passing of this act (r). (o) Vide Rtipra, p. 1187. {q) Free v. Burgnynr^ 2 Bligb, Ip) Burdrr V. — , li Curt. N. S. 05 ; 6 B. & C. 538. Eccl. Kep. 822. (r) See section 21. 1320 DISCIPLINE OF THE CIIIUC II. Discretion of bishop as to allowing the promotion of bis oflBce. Vicar-general mentioned in act. Limit of power of commis- Notice of in- tended com- mission. Proceedings of the commis- sioners. The words " it shall he latvful,^^ construed -svitli the other •words " if lie sliall tliink fit," and the whole tenor of the act, do not take away the discretion of the ordinary as to permitting or refusino; his office to be ])romoted, or in other words, a criminal suit to be instituted against a clerk (.?); but if he has allowed a commission to issue at the instance of a promoter, he has no longer a discretionary power, but must allow further proceedings to be taken if the promoter insist (t). It should be obsers'ed that the Avord "vicar-general" is here used, and not " official i)rinci])al," as if the act con- templated these two offices being liolden by separate per- sons, though since the lieformation they have, as a matter of fact, been always united in the office of " chancellor" (u). The commissioners are bound to confine their inquiry to offences committed within the diocese of the bishop Avho issues the commission (x). In the case of a bishop foiuid incompetent under 6 & 7 Viet. c. 62, all proceedings had nevertheless to be taken in his name (y). The " notice " only indicates the intention to institute proceedings, and such intention may be abandoned ; and where no commission has issued according to the notice, the issue of letters of request is considered as superseding that notice {z). Sect. 4. " It shall be laAvful for the said commissioners or any three of them to examine upon oath, or upon solemn affirmation in cases where an affirmation or decla- ration is allowed by law instead of an oath, which oath or affirmation or declaration respectively shall be administered by them to all witnesses who shall be tendered to them for examination as well by any party alleging the truth of the charge or report as by the party accused, and to all wit- nesses whom they may deem it necessaiy to summon for the pui-pose of fvdly prosecuting the inquiry, and ascer- taining whether there be sufficient priDici facie ground for instituting further proceedings ; and notice of the time when and ])lace where every .^uch meeting of the conimi.s- sioners shall be holden shall be given in writing under the hand of one of the said commissioners to the party accused seven days at least before the meeting; and it shall be law- (.s) Rpr/. V. Bp. of CliicJiester, 2 El. & El. 209: Martin v. Mac- l-onochie, L. R., 2 A. & E. p. 116; Elphinstone v. Purchas, 3 P. C. 245. (/) 7?^'ishop may send the cause to the court of appeal of the )>rovince. Judge of the court may make orders for expediting such suits. No appeal from inter- locutory decree. No form f)f letters of request. Archbishop may send letters of request to his own court. ( "ourt mu.st receive them. Therefore, (lisobcdience to the sentenee incurs the penal- ties of contumacy and of eontem[)t of court (/). As to Letters of Kequest. Sect. 13. "Tliat it i^hall be Lawful for tlic bishop of any diocese ■within which any such clerk shall hold any ])re- ferment, or if he hold no ])refenncnt, then for the bisho]> of the diocese -within whicli the otlence is alleged to have been committed, in any case, if he shall think fit, either in the first instance or after the commissioners shall have reported, that there is sufficient prima facie ground for instituting ])roceedings, and before the filing of the articles, but not afterwards, to send the case by letters of request to the court of a]ipeal of the ]irovince, to be there heard and determined according to the law and jjractice of such court: provided always, that the judge of the said coui-t may, and he is hereby authorized and empowered from time to time to make any order or orders of court for the ]nu-])ose of expediting such suits or otherwise improving the practice of the said court, and from time to time to alter and revoke the same: ]irovided also, that there shall be no appeal from any interlocutory decree or order not having the force or effect of a definitive sentence, and thereby ending the suit in the court of appeal of the province, save by the permission of the judge of such court" (^7). It is to be observed that no particular form of letters of request is authorized by the statute (/<); and the tendency of the later judgments, especially of the Privy Council, has been to render it unnecessary to state the offence so fully as was formerly required (z). This act has effected a separation betw^een the arch- bishop or bishop and his court, and it seems that under the provisions of it the archbishop may send letters of request to his own court (/t ). It has been recently ruled by the Privy Council that the court of appeal of the province must accept letters of request sent to it under this section (J), the practical effect (/) Bp. of Linroln v. Day, 1 riobcrts. Eccl. Rep. 724; 7 Notes of Cases, 1. (r/) It will be seen by sect. 24, tliat where tlic bishop is pniron of tlie preferment of the accused party, the archbishop of tlie pro- vince may do all acts that the bishop might otherwise do; see note to sect. 24: and see sect. 15, for the power of the aggrieved party to appeal. (//) Hdndtrs v. Head, 4 Moo. P. C. 186. (/) Martin v. Machmochie, L. R., 2 P. C. 365; Shqrpard v. Bennett, 39 L. J., Eccl. 59. (/j) Noble V. Voysey, L. R., 3 P. C. 357. (/) Sheppard v. rinlUmore & Bennett, L. R., 2 Adm. & Eccl. 235; 2 P. C. 450. PROCEDURE UNDER 3 & 4 VICT. C. 86. 132.3 of which is to convert the court of ap])eal into a court of first instance. The judicial committee itself will not accept letters of request, and very rarely retains a case appealed to it upon a matter preliminary to the sentence {m). As to Appeals. Sect. 15. "It shall be lawful for any party who shall What appeals think himself aggrieved by the judgment pronounced in b^'^^iieV"-'^'^'^ the first instance by the bishop, or in the court of appeal grieved party. of the province, to appeal from such judgment; and such apjjeal shall be to the archbishop, and shall be heard before the judge of the court of appeal of the province, when the cause shall have been heard and determined in the first instance by the bishop, and shall be proceeded Avith in the said court of appeal in the same manner and sub- ject only to the same appeal as in this act is provided with respect to cases sent by letters of request to the said court; and the appeal shall be to the Queen in Council, and shall be heard before the Judicial Committee of the Privy Council when the cause shall have been heard and deter- mined in the first instance in the court of the archbishop." Where the archbishop has been substituted for the Appeal from bishop under sect. 24, an appeal lies from his decision to a^'ctib^shop the court of appeal of the province (n). bishop. Sect. 16. " Every archbishop and bishop of the United Archbishops Church of P]ngland and Ireland, Avho now is or at any and bishops time hereafter shall be sworn of her INIajesty's most ™^"|^.^^^ °^ honourable Privy Council, shall be a member of the Councilto be Judicial Committee of the Privy Council for the purpose members of of every such appeal as aforesaid ; and that no such api)eal ^° Judicial shall be heard before the Judicial Committee of the Privy ah appeals Council, unless at least one of such archbishops or bishops under this shall be pi'esent at the hearing thereof: provided always, ^^''• that the archbishop or bishop who shaU have issued the commission hereinljefore mentioned in any such case, or who shall have heard any such case, or who shall have sent any such case by letters of request to the court of appeal of the province, shall not sit as a member of the Judicial Committee on an appeal in that case"(o). Mode of Procedure. Sect. 17. "It shall be lawful in any such inqiiiry for Attendance of any three or more of the commissioners, or in any such ^^^j^cdon^^f' proceeding for the bishop, or for any assessor of the bishop, papers, &c. (wi) Noble V. Voysey, L. R., 3 may allow the appeal to be re- P. C. 365. lieard, after it lias been once heard (h) licg. V. Dochon, 7 El. & 151. lietbre them, Ilcbhert v. PurcJuii), 315. L. II., 3 r. C. G64. (o) The Judicial Committee 132(7 DISCIPLINE or TIIK CIlLIiCII. may be com- pelled. Witnesses to be examined on oath, and to be liable to ])unishmcnt J or pei-jury. Accused ad- mitted as witness. Evidence in cases of heresy. Use of autho- rities. J'rortor v. iStone. or for tlic jiulge of tlie court of appeal of the province, to require the attendance of such witnesses, and the produc- tion of such deeds, evidences or writings, as may be neces- sary; and such bishoj), judge, assessor, and commissionei'S respectively shall have the same power for these purposes as now belong to the consistorial court and to the Court of Arches respectively." Sect. 18. " Every witness who shall be examined in piu'suance of this act shall give his or her evidence upon oath, or upon solemn affirmation in cases where an affirma- tion is allowed by law instead of an oath, which oath or affirmation respectively shall be administered by the judge of the court or his surrogate, or by the assessor of the bishop, or by a commissioner; and that every such witness Avho shall wilfidly swear or affirm falsely shall be deemed guilty of peijury." It has been rided by the present judge of the Court of Arches that the accused party is admissible to give evi- dence under 14 & 15 Vict. c. 99 {o), and such evidence has been received in several cases Avhich have been subse- quently appealed to the Privy Council, wliich seems to have acquiesced in this ruling, though the court has given no positive judgment npon this ])oint (7:/). I7pon the important topic of the use of authorities in a criminal suit for heresy as evidence of the liberty pre\aously exercised without ecclesiastical censure of holding the doctrine complained of, I cite tlie following passages from well-considered judgments of the coiu'ts. In the first reported case, that of The King''s Proctor v. Stone, Lord Stowell, sitting in the Consistory of L(jndon, said: — " I think myself bound at the same time to declare, that it is not the duty nor inclination of this court to be minute and rigid in a])i)lying proceedings of this nattn-e; and that if any Article is really a subject of dubiotis interpretation, it woidd be highly improjier that this court shoidd fix on one meaning, and prosecute all those who hold a contrary o])inion regarding its interpretation. It is a very different thing where the authontv of the Articles is totally eluded, and the party deliberately declares the intention of teaching doctrines contrrvy to them"((/). (0) Bp. of Norwich v. Pearse, J., n , 2 Adm. & Eccl. 281, over- ruling Burdcr v. O'Neill, 9 Jur., N. S. 1109. (p) In the recent case of Martin v. Madconochic, the ac- cused clerk was examined before the Privy Council, L. R., 3 r. C. 52. {([) King's Proctor v. Stone, 1 Consist. 428. PKOCEDUEE UNDER 3 & 4 VICT. C. 86. 1327 And in tlie case of Mr. Gorham the Judicial Committee Gorham case. of the Privy Council said — " There are other points of doctrine respecting the sacrament of baptism Avliich we are of opinion are, by the rubrics and formularies (as well as the Articles), capable of being honestly understood in different senses ; and consequently we think that, as to them, the points which were left undetermined by the Articles are not .decided by the rubrics and formularies, and that upon these points all ministers of the church, having duly made the subscriptions required bylaw (and taking holy scripture for their guide), are at liberty honestly to exercise their private judgment without offence or censure. " Upright and conscientious men cannot in all respects agree upon subjects so difficult ; and it must be carefully borne in mind that the question, and the only question for us to decide, is, Avhether Mr. Gorham's doctrine is contrary or repugnant to the doctrine of the Church of England as by law established. Mr. Gorham's doctrine may be contrary to the opinions entertained by many learned and pious persons, contrary to the opinion which such persons have, by their own particular studies, deduced from holy scripture, contrary to the opinion which they have deduced from the usages and doctrines of the primitive church, or contrary to the opinion wdiich they have deduced from uncertain and ambiguous expressions in the formularies; still, if the doctrine of Mr. Gorham is not contrary or repugnant to the doctrine of the Church of England as by laAv established, it cannot afford a legal ground for refusing him institution to the living to which he has been lawfully presented" (r). " In the examination of this case, we have not relied upon the doctrinal opinions of any of the eminent writers, by whose piety, learning and ability the Church of England has been distinguished; but it appears that opinions, which we cannot in any important particular distinguish from those entertained by INIr. Gorham, have been propounded and maintained, without censure or reproach, by many eminent and illustrious prelates and divines Avho have adorned the church from the time when the Articles were first established. We do not affirm that the doctrines and opinions of Jewel, Hooker, Usher, Jeremy Taylor, Whit- gift, Pearson, Carlton, Prideaux, and many others, can be received as evidence of the doctrine of the Church of (r) Gorham v. Bp. of Exeter, the Gorham Case, by E. F. Moore, p. 471. 1328 Discii'LiM: ()!■ Till-: ciiLiicii. Evidence in " England, but their conduct, unl)lamcd and unquestioned cases ot heresy, j^^, ^^ ^^.^^^ proves, at least, the liberty "which has been ^"^ .,. allowed of niaintaininfr such doctrine" (s). iiutiiori tics ^, , ' " Wc exi)ress no oi)iiiion on the theolojjical accuracy Cror/ia III vase. p , .» . /• xi '-pi •* i, ot these opniions or any ot them. J he Avriters whom wc have cited are not always consistent with themselves, nor are the reasons upon which they found their positions jdways valid ; and other writers of great eminence, and worthy of great respect, have expressed very different opinions. But the mere fact that such o])inions have been propounded and maintained l)y persons so eminent, and so much respected, as well as by very many others, appears to us sufficiently to prove that the liberty which was left by the Articles and Formularies has been actually enjoyed and exercised by the members and ministers of the Church of England" (t). Biirderx. And in the case of Bnrder v. Heath, Dr. Lushington, Heath. ^y]jQ ]^^(| been one of the Lords of the Privy Council in the Gorham case, sitting as judge of the Court of Arches, observed : — " And I apprehend that the course to be followed is, first, to endeavour to ascertain the plain grammatical sense of the Article of Religion said to be contravened, and if that Article admit of several meanings, without any ^■io]ation of the ordinary rules of construction or the plain grammatical sense, then I conceive that the court ought to hold that any such opinion might be lawfully avowed and maintained. " If, indeed, any controversy arise whether any given meaning is within the ])lain grammatical construction, the court must form the best judgment it can, with this assistance, as I have already said, that if the doctrine in question has been held without offence by eminent divines of the cliTirch, then, though perhaps difficult to be recon- ciled Avith the plain meaning of the Articles of Ileligion, still a judge in my position ought not to impute blame to those who hold it. That which has been allowed or tolerated in the church ought not to ])e questioned by this court" (?<). And again the same learned judge says: — " Before concluding, I think it right to explain why I do not advert to the many authorities which the zeal and learning of counsel have produced. My reason is this, (s) Gnrlimn v. Bp. of Exclcr, (/) Ibid. 474. tlie Gorham Case, liy E. F. (w) Burckr v. Heath, 15 Moo. Moore, p. 472. P. C. 45. rROCEDUUE UNDER 3 & 4 VICT. c. 8G. 1329 "that, in my judgment, not one of these authorities does that which was required in this case, namely, show that some divine of eminence has held, without reproach from ecclesiastical authority, doctrines in substance the same as those Mr. Heath has promulgated; whatever opinions may have been held in the vast field of polemical divinity, I find none which support Mr. Heath or justify him. In the Gorhain cose the Judicial Committee had the advan- tage of being able to quote, in support of their judgment, and in justification of INIr. Goi-hara, passages from the writings of divines of the highest authority." And again: — " No explanation has been offered Avhich in any way shows that Mr. Heath's opinions can be reconciled with the Articles, nor has any eminent divine been shown to have shared his views. Mr. Heath therefore must be condemned by the Articles imposed by law, and which the law alone can change." It seems, however, difficult to reconcile the law as laid Sheppard v. down in these passages with that laid doAvn by the Privy ^^"■"'^*i- Council in the recent case of Shepjyard v. Bennett, which is as follows : — • " Citations from established authors may be of use to show that ' the liberty which ^vas left by the Articles and Formularies has been actually enjoyed and exercised by the members and ministers of the Church of England.' But, to say the least, very few of the quotations in the judgment exhibit the same freedom of language as do the extracts from Mr. Bennett. And after every authority had been examined, there would still remain the question that is before this Committee, whether the licence or liberty is really allowed by the Articles and Formularies — whether anything has been said by the respondent which plainly contradicts them. If the respondent had made statements contradicting the Articles or Formu- laries, the citation of great names would not have jiro- tected him ; if he has not done so, he is safe without their protection." As to inhibition of accused clerk iiendente lite — Sect. 14. " In every case in which, from the nature of Bishop em- the offence charged, it shall appear to any bishop within powered to Avhose diocese the })arty accused may hold any preferment, a"cus'c(i'from that great scandal is likely to arise from the ])artv accused performing continuing to perform the services of the church wliile services of the such charge is imder investigation, or that his ministration ^ '"^'^ '' ^^' will be useless Avhile such charge is pending, it shall be lawfid for the bishop to cause a notice to be served on such i^iarty at the same time with the service of a copy of 1330 DISCirLINE OF THE CHURCH. If a bishop is patron of the ] ire ferment held by ac- cused party, archbishop to act in his Stead. Pensioned clerk amenable to ecclesias- tical discipline. the articles aforesaid, or at any time pending any proceed- ings before the bishop or in anv ecclesiastical court, inhibit- ing the said pai-ty from performing any services of the church within such diocese, from and after the expiration of fourteen days from the service of such notice, and until sentence shall have been given in the said cause: ])rovided that it shall be lawful for such party, being the incumbent of a benefice, within fourteen days after the serN-ice of the said notice, to nominate to the bishop any fit person or persons to perform all such services of the church during the period in which such party shall be so inhibited as aforesaid ; and if the bishop shall deem the person or persons so nominated fit for the performance of such services he shall grant his licence to him or them accordingly, or in case a fit person shall not be nominated, the bishop shall make such provision for the service of the church as to him shall seem necessary ; and in all such cases it shall be lawful for the bishop to assign such stipend, not exceeding the stipend required by law for the ciuacy of the church belonging to the said party, nor exceeding a moiety of the net annual income of the benefice, as the said bishop may think fit, and to provide for the payment of such stipend, if necessary, by sequestra- tion of the living: provided also, that it shall be lawful for the said bishop at any time to revoke such inhibition and licence respectively." As to substitution of archbishop for bishop when patron — Sect. 24. " "When any act, save sending a case by letters of request to the court of appeal of the jorovince, is to be done or any authorit}- is to be exercised by a bishop imder this act, such act shall be done or authority exercised by the archbishop of the province in all cases where the bishop who wovdd otherwi.se do the act or exercise the authority is the patron of any preferment held by the party accused." This Avas done in the case of Ditcher v. Denison, before referred to (y). As to incumbents who have resigned upon pensions — It is enacted as follows, by 34 & 35 Vict. c. 44, The Incumbents' Resignation Act, 1871 {z): — Sect. 13. " Every pensioned clerk shall remain amenable to ecclesiastical discipline, and be liable to suspension from or forfeiture of pension for offences which would have involved suspension from or forfeiture of the benefice had (y) Deane & Swabey, Hep. 334; 11 Moo. P. C. 324; vide supra, p. 689. (z) Vide supra, p. 522. PROCEDURE UNDER 3 & 4 YICT. C. 86. 1331 lie remained incumbent thereof, and proceedings under 3 & 4 Vict. c. 86, may be taken against every offending pensioned clerk in the same manner as if he had remained incumbent of the benefice, and in the same manner in all respects as if the offence alleged to have been committed had been committed w^ithin the said benefice: provided always, that in case any offending pensioned clerk shall reside elsewhere than in England or Wales or the Channel Islands it sliall be lawful for the bishop by a letter or summons under his hand, with the consent of the arch- bishop of the province, to be signified by his counter- signing such letter or summons, addressed and sent prepaid by post to such pensioned clerk at his last known place of residence, to require such clerk to attend in England and appear to any proceedings which may be instituted against him for any such offence by him com- mitted or alleged to have been committed, and to appoint a place in England Avhere service of all subsequent process, articles, and documents may be made, and service of such process, articles, and documents at such place shall be sufficient; and if such pensioned clerk shall neglect to appear to such proceedings within three calendar months after such letter or summons shall have been sent to him as aforesaid, and to appoint such place for service, such proceedings may be prosecuted in his absence." 1332 DI.SCIPLIXE OF THE CHlRCir. CHAPTER IX. VISITATION. Sect. 1. — General Laiv of Visitation . 2. — Bishop^s Triennial Visitation. .3. — Archidiaconal Visitation. 4. — Royal J^isitation. Sect. 1. — General Laic of Visitation. Origin. FoR the government of the church and the correction of offences, visitations of parishes and dioceses were instituted in the ancient church, that so all possible care might be taken to have good order kept in all places (a). Who shall For the first six hundred years after Christ, the bishops '*'*'^**' in their own persons visited all the ]iarishes within their respective dioceses every year, and they had several dea- cons in every diocese to assist them. After that tliey had authority in case of sickness or other pubHc concerns, to delegate priests or deacons to assist them ; and hereupon, as should seem, tliey cantoned their great dioceses into archdeaconries, and gave the archdeacons commissions to visit and inquire, and to give them an account of all at the end of their visitations; and the bishops reserved the tliird year to themselves, to inform themselves (amongst other things) how the archdeacons, their substitutes, performed their duties (Jj). How often and By a constitution of Otho, archbishops and bishops shall in what order, g^ about their dloceses at fit seasons, correcting and re- forming the churches, and consecrating and sowing the Avord of life in the Lord's field (c). And, regularly, the order to be observed therein is this: In a diocesan visitation, the bishop is first to visit his («) Gofl. Append. 7 Cf. toritate, Officio et Potestatc, Bishop StillingHeet's Duties and Joannis Bertacliini aFirmo; The Kights of Parochial Clergy, vol. King's Visitatorial Power as- iii. pp. 520— 63H; liishop Gibson serted, by Nathaniel Johnston, on Visitations; Barbosa de Officio London, 1G48; Attorney -General et Potestate Episcopi; Dc \'isi- v. Smithies, 1 Keen, 289. tatione cujuscumque Prs'Iati (b) Deg. pt. 2, c. 15; Johns. Ecclesiastic!, a Gaudentio de 151. Janua; De Episcopis, eoruniAuc- (c) Atli, 56. VISITATION. 13oo ratliedral chnrcli; aftenvards the diocese. In a metropoli- tical visitation, the archbishop is first to \'isit his own church and diocese ; then in every diocese to begin with the cathedral church and ]iroceed thence as he pleases to the other parts of the diocese. AVhich appears from abundance of instances in the ecclesiastical records, as well of papal dispensations for the archbishop to visit without observing the said order, as of episcopal licences for the visitor to begin in other parts of the diocese than in the cathedral church (d). . And this sprang fi-om the precept of the canon law, which requires that the archbishop willing to visit his pro- A ince shall first visit the chapter of his own church and city, and his own diocese; and after he has once visited ail the dioceses of his province, it shall be lawful for liim (having first required the advice of his sufft-agans, and the same being settled before them, which shall be put in writing that all may know thereof) to visit again, accord- ing to the order aforesaid, although his suffragans shall not assent thereunto. And the like form of visiting observed by the archbishops shall be observed also by the bishops in their ordinary visitations (e). It may be as well to mention in this place,- that where General power the ordinary or metropolitan have a right to visit, the °^ ^ visitor. manner of the visitation is not so material as to be a ground for prohibition, because any error or defect in the manner of the visitation may be remedied by appeal (f). It has been decided also, that even where a benefice is appro- priated to a prior or a dean and chapter, the bishop may AJsit, to see how the church is served, &c., and for contu- macy may proceed to suspension (p). In Bex v. Bishop of Chester, a mandamus was denied to a visitor Avho had deprived a prebendary for incontinency, and to restore a canon whom he had expelled (/<), or to reverse his own sentence ; but in this case the bishop was by royal charter visitor of the cathedral. But a prohibition has been issued to a bishop, who claimed a riglit to present by lapse, under pretence of his visitatorial authority, to the office of a canon residentiary of his cluu'ch, it being a freehold office, and the right of election thereto ; nor does it seem certain tliat by virtue of this power he may, in a case where the dean and chapter have neglected or refused to appoint ((I) Gibs. 957. (g) Harrison v. ArcJibishoji of (0 Ibid. Dublin, 2 Bro. P. C. 199. (/•) Bp. of KiUlnre v. Arch- (h) 1 Wils. 206, and 1 W. hishnp of Dublin, 2 Bro. P. C. Bla. 22. 179. 1334 DISCirLIXE OF THE CIILIU II. The Dean of York's case. Argnments of counsel. such a canon, appoint one pro tempore until such election be had (?'). In 1840 the Archbishop of York held a visitation of the dean and chapter of that cathedral church, and appointed a commissary (k), for the purpose of carrying it into effect (/). Among the presentments made to the commissary Avas one Avhich charged the dean with the sale of the livings in his ecclesiastical patronage. The dean denied the juris- diction of the commissary to try the charge, and conduc^t- ing himself with violence in court, "was ]n'onoimccd in contempt, for which he refused to purge himself during the trial. The commissary proceeded to try the charge in the visitatorial court, witnesses were examined viva voce, and their depositions taken down by the registrar. Finally, the commissary, in a very long and elaborate judgment, pronounced the dean guilty of simony, and to have incurred the penalty of deprivation on the twofold gi'ound of contu- macious behaviour and simoniacal practices. The dean applied for a prohibition, after sentence, to the Court of Queen's Bench (tn). For the prohibition it was argued, that the commissary had exceeded the limits of the visitatorial jurisdiction, even as it stood before the 3 & 4 Vict. c. 86, as the pro- ceedino;s ouo:ht to have been bv articles, like all criminal suits in the ecclesiastical courts ; but since the statute of 3 & 4 Vict, the whole trial was clearly illegal, — that the cha])ter of York Avere excm])ted from the visitatonal power of the ordinary, — that the proceedings were bad in the absence of the party accused,— that evidence was taken viva voce. On the other hand it was argiied against the prohibition, that Jure ordinario, every bishop or metropo- litan might visit his cathedral, — that if he might visit he might ])unish, and therefore deprive if the offence was of a magnitude to require such punishment, — that the 3 & 4 Vict. c. 86, was framed alio intuitu, — that the visitatorial rights required express words to take them away, — that (/) Bp. of Chvhestcr v. Ilar- ward, 1 T. R. G'.O. {]:) Dr. riiillimore. (Z) For visitation generally see chapter on Deans and Cliap- ters, Part II. Chap. IV., and for York visitation, p. 208 ; see also p. 1138. {m) 2 G.& D. 202; 2 Q. B. 2; C Jur. 412. The cause was ar- gued by Mr. Cresswell, Q. C, Sir W. FoUett, Q. C, Addams, Ad- vocate in Doctors Commons, and Mr. Cockbum, for the dean ; by Sir John Campbell, Attorney- General. Sir James Wylde, Soli- citor-Crcneral, Mr. Dundas, Q.C., R. Phillimore, Advocate in Doc- tors Commons, and Mr. Bayley, for the Archbishop of York, and the commissary. VISITATION. 1335 they were saved by sect. 25 of that act, — that such power had been exercised in Goodman s case (ti), — that there was a court of appeal (the judicial committee of the privy council) Avhicli would correct the judgment if wrong, — that it was competent to a visitor to proceed summarie, as in the case of a college, the power of the visitor being the same in both cases, — that it was too late to apply for a prohibition after sentence. It will be seen, however, that the prohibition was granted ; but it is important to observe, that every other proceeding in the visitation, up to the time of trying the charge, was recognized as valid and legal by the Court of Queen's Bench. The great importance of the judgment seems to require its insertion at length in this chapter. By Lord Denman (o). — " The proceedings in this case Judgment, may be very shortly stated. His grace the archbisho]) solemnly cited the dean and chapter of York to attend his visitation, and appointed the learned civilian, Dr. Philli- more, his commissary, for correcting and punishing, by ecclesiastical censures, Avhosoever shall be contumacious, and for administering articles in writing to the said dean and chapter, and receiving presentments and answers, and for doing everything else appertaining to the nature and quality of our said visitation. " The ancient formula observed upon such occasions is in these terms : ' Cum nos ad eiTata enormia et delicta corrigendum et extirpandum et virtutes et alia ad pietatem conducendum plantandum et ad Dei laudem instituendam et seminandam,' &c. " There seems no reason to doulit that here was suffi- cient authority to inquire into the ecclesiastical offences of every spiritual person belonging to the body visited; but at first the proceeding was confined to the fiscal concerns of the chapter, relating principally to the a])plication of the fabric fund. The dean attended, and being examined respecting some share of this money which he was said to have received, conducted himself during that proceeding in a manner whicli was deemed contumacious, and a sen- tence of contumacy was by the commissary pronounced against him ; he then absented himself. The proceedings (n) Dyer, 273. Where the mentioned in the judgment. Bishop of Batli and "Wells de- (o) Copy from ^lr. Gurney's prived the Dean of Bath and short-hand notes of the Judgment AVells by his commissary. Tt is delivered in tlie Court of Queen's remarkable that tliis case, tliough Bench, Saturday, 19th June, much relied upon by the counsel 18-41. against the prohibition, was not \X]Cy DISCII'LINK OF THK CIIIIJCII. Tlie Dean of " went forward, and in answer to an interrogatory, as to iorh'g caxe., f^^e State of repair in which several churches and chapels were, the Kev. ]\Ir. Dixon, one of the canons, made a statement tliat was considered as a direct charge of simony against the dean. He was requested to attend in order to meet this charge, and he did attend : the commissary required him, in the first place, to purge himself of the contempt, which he declined to do, and again absented himself, protesting against the proceeding, and saying, not by way of consent, but of defiance, that Mr, Dixon might go on to prove his charge in his absence ; he did so, and the learned commissary declared the proof satisfactory, pronounced the charge established in several cases, and gave judgment that the dean should be for that offence, as well as for his contumacy, deprived of his office. Sentence to the like effect was afterwards solemnly pronounced by the archbishop. " Prohibition is claimed on various grounds : and that Avhich requires to be first considered, is the late act of parliament of the 3 & 4 Vict. c. 86, for better enforcing church discipline, which recites that the manner of pro- ceeding in causes for the correction of clerks, requires amendment, repeals the act of the 1 Hen. 7, c. 4, pre- scribes tlie course of pi'oceeding that shall hereafter be observed, in every case of any clerk in holy orders, who may be charged with any offence against the laws eccle- siastical, and finally enacts that no criminal suit or pro- ceeding against a clerk in holy orders for any offence against the laws ecclesiastical, shall be instituted in any ecclesiastical court, otherwise than according to the pro- visions of that act. " These enactments are, however, qualified by a proviso, ' That nothing in this act contained shall be construed to affect any authority over the clergy of their respective provinces or dioceses which the archbishops or bishops may now, according to law, exercise personally and with- out process in court.' And the 23rd section, enacting that no criminal suit or proceeding shall be instituted in any other manner than as this act requires, was relied upon as a decisive bar against the trial which has taken place. '• The counsel for the dean argued, that he being a clerk in holy orders was prosecuted in a criminal ]iroceeding for the offence of simony, a known offence against the laws ecclesiastical, and that the authority which assumed to deprive him is an ecclesiastical couii, that is, the court of the ordinnrv holding his visitation. In answer to that, VISITATION. 133' " arguments are offered first, that what has been done is not a criminal proceeding within the meaning of the act. Secondly, that the proceedings were by virtue of the autho- rity exercised by the archbisho]) according to the law as it then stood over a clerk in his province personally and without process, and so were exempted from the operation of the act, sect. 23. The learned counsel against the pro- hibition observed in the first place, that the statute applied to causes, a word said to be well understood, and to imply suits regularly promoted in the ecclesiastical court ; but the employment of that Avord in the short preamble affords a most inadequate reason for the arbitrary restriction of the whole act to that form of proceeding which in the ecclesiastical law may be pi'operly described as a cause. It might as well be said to be restricted to causes pro- moted for incontinence, that being the only clause under the 1st of Henry VII. which is repealed in the same sec- tion after the recital that the manner of proceeding for the correction of clerks ought to be amended. But though the first section is thus limited, the general enactments are extended to all offences, and in like manner, though causes are the only 2:>roceedings mentioned in the preamble, the 23rd section clearly provides that the course imposed by the statute shall be pursued in every criminal suit or pro- ceeding against a clerk in holy orders in the courts eccle- siastical. " But is this properly styled a criminal proceeding, or is it merely an incidental fact arising out of the visitation, in the com'se of which it is brought to the ordinary's knowledge, and properly in the discharge of that duty inquired into by him, but not instituted as a criminal proceeding ? The answer appears to be, that as soon as the visitor proceeds to examine the proof of the ecclesias- tical offence charged upon the clerk for purpose of punish- ment by deprivation, or otherwise, more especially as in tliis case, at the instance of an accuser who avails himself of the aid of a professional advocate, a criminal proceeding is undoubtedly instituted and in progress. " There is yet another term in the description of suits or proceedings given in the 23rd section — they must be in some ecclesiastical court. The ordinary's visitation is said not to be an ecclesiastical court, but to range within the ]>roviso of sect. 25, which prevents the statute from apply- ing to aiithority personally exercised by a bishop without process in court. This brings us directly to the question, Avhether a bishop as visitor of a dean and chapter is legally invested with ])owcr to deprive the dean of his office for r. VOL. II. 4 It 1338 DISCIPLINE OF THE CHURCU. Tiie Dean of " an ecclesiastical offence without process in court. If he 1 orWs case. jj^g ^j^g power lie must derive it from the general words above cited, but they can scarcely be expected to receive this construction without proof that they have habitually, and in former times when church discipline was much more active than of late, been so construed, or at least that the learned writers on ecclesiastical law have put that construction upon them. " Now in the fii-st place there is no example of such a power being exercised by the bishops over their clergy even in their regular and solemn visitations. They are indeed exempted from the forms required by the common laAv ; they are to proceed, according to the language found in many of the books, and collected in ComjTi's Digest, Visitor C, ' summarie, simpliciter, et de piano, sine strepitu aut figura judicii.' That is, adds Comyn, * according to mere law and right;' some forms as involving an op])or- tunity of knowing and answering the charges were abso- lutely necessary for seciu'ing this object. " The Keport of the Ecclesiastical Commissioners was appealed to on both sides. On the one for proof that the late statute was not meant to apply to the visiting power, because no recommendation to that effect was given. We have frequently had occasion to observe that the courts have no right to look to similar reports for the purpose of constiiiing statutes foimded u])on them, Avhich must speak for themselves. On the other hand, the report was referred to as an expositor of the former law, which was said not to have trusted the \dsitor Avith the power now claimed. It states, that the ordinary was to proceed in the visitation of clerks in his forum domesticum. However those words are to be understood, spiritual persons who offended w^ere to be presented by the churchwardens, on whom this duty was cast, and if they neglected it, others might present, or even if common fame were the only accuser the ordinary might make his inquiries ; different modes of dealing with the charges are enumerated, inqumes Avere instituted and denominations and ai-ticles were exhibited, and the j)arty had time and i)lace given him to ansAver. Sentence was at length passed by the ordinary, personally perhaps, but according to all our experience in liis court, and in the usual sense of the Avords Avithout process; and on this head of the argument, a question Avas asked, and Avhich was not satisfactorily answered, Avhy if the ordinary pos- sessed this authority personally, and Avithout process, such great difficulties have been encountered and such enormous expenses have been incmTed in bringing notorious spi- VISITATION. 1339 " ritual delinquents to justice by deprivation ? It is well known that tlie assumed want of power in the covu't formed one of the strong motives for introducing the new laAv. The saving clause may not improbably have been intended to apply to some such powers vested by law in the arch- bishops and bishops, but even if none such can be sur- mised, the effect of any such saving clause cannot be greater than to continue the power the same as it has existed ; it cannot create an authority in any one to act personally and without process in any pai*ticular case, by simply saying, that the act does not deprive him of such authority in general terms. The question remains, Avhat does the law recognize ? " We are aware that the jurisdiction of \asitors has been described in most comprehensive terms by common lawyers of high authority. Lord Holt himself is cited as allomng them an arbitrary power in his often reported judgment in the case of Phillips v. Burij{p), which taken from his own manuscript, and now printed in 2nd Term Reports, agrees almost word for word with that which is recorded by Skinner — scarcely any other remark upon that requires to be made than that the case arose out of the visitation of a charitable foundation. Lord Holt's strong language is all applied to that case, that a founder might do as he would with his own, and that the pariy deriving benefit from his endowment must do so on the conditions he has annexed to it — cujris est dare ejus est disponere. " The case of The Bishop of St. David'' s v. Lucy {q), in 1st Lord Ila3rmond and 1st Salkeld, was cited, where the Archbishop of Canterbury gave sentence of deprivation against one of his suffi-agan bishops for simony and other ecclesiastical offences, and this was supposed to show that that power resided in the breast of the archbishop without any rules or forms being observed whatever. Prohibition in that case was refused, but it had been claimed, because the citation was to appear at Lambeth, not in the usual place of holding the metropolitan coui-t ; and it was answered by Lord Holt and his brethren, that an arch- bishop may hold his court where he pleases, and that the spiritual court may proceed to punish a bishop for any offence done against the duty of his office as bishop. And as the clergy are subject to different rules and duties, it is but reasonable that if such person offends in his ecclesias- tical duty, he should be punishable for it in the eccle- (p) 2 T. R. 353. ((?) Ld. Raym. 447; 1 Salk. 13G; vide supra, pp. 83—90, 113G. 4 r2 1340 DiscirLiNi: of the ciilkcji. Tlie Dean of " siastical court. Those cxjn'csslons all occur in Salkeld. lark's case. r^^^^ bislio]) Avas coinj)C'lled by citation to answer for his delinquency; the form and mode of proceeding were objected to in no other particular than the place. We scarcely need say that this case supplies no evidence of the right to proceed personally and without process in court. " Another case Avas cited for the same purpose. TJte Bishop of Kildare v. TJte Arclibishop of Dublin (r). l)rouglit by writ of error into the House of Lords in 1724. The bishop as dean of the cathedral church of the Holy Trinity, Dublin, complained that the archbishop had pro- ceeded against him for contempt committed during a visitation. The principal question there intended to be raised, was whether the king or the archbishop was the visitor of the dean and chapter of that cathedral ? and this being decided in favour of the archbishop, all other ques- tions respecting the mode of proceeding were comparatively unimportant ; nor, indeed, does the case fiimish us with any full detail of what took place. Enough however appears to show that the offence was contumacy com- mitted on shutting the doors of the cathedral against the archl)ishop, and not appearing in his visitation, and that the archbishop impleaded the dean in the Court Christian in his visitation as ordinary under pretence of a contempt. The House of Lords held that the right of the archbishop to visit the dean and chapter was established, and that the manner of his doing so was not at all material, because any error or defect in the manner might be remedied by appeal, and Avas no ground for a prohibition : and this is the marginal note ap])ended to the report, that Avhere an archbishop has a right to visit, the manner of his visita- tion is not so material as to afford a ground for a pro- hibition. But the declaration there, instead of alleging that the visitor proceeded to sentence (whatever that sentence might be, for it is not set forth in Brown's Reports) personally and Avithout process, leads to the con- trary inference. The Avords are a description of a suit instituted by the archbishop in his court as ordinary, and even where the offence was a charge of contempt against his person and authority. But it is enough to say, that it is indisputably time, that this case does not establish that proposition for Avhich alone it Avas Avanted, that the A-isitor . has a laAvful poAver to deprive personally and Avithout process in court. (/•) 2 Rro. P. C. 179. VISITATION. 1341 " So in The Bishop of Exeter s case, reported in Wilson and Blackstone (5), the acts of the bishop having been performed in his jurisdiction as visitor of Exeter College by appointment of the royal founder, were held by this court as conclusive. Such decisions can have no bearing upon the present case, unless it were shown that all the powers that any fovmder has conferred on his visitor grow out of the relation of ordinary to his clergy on his holding a visitation of them. It is highly probable that the use of the same words on two such different occasions has led to the belief that such w^as the law. The opinion is thus accounted for, but the law can only be established by practice and precedents, and both are wanting here. " Some of the books speak of the court of visitation, and the phrase appears to be a correct one. It is an authority acting Avith general forms of procedure and inquiry, held from time to time by adjournment, making certain orders and decrees, whether or not those acts are of necessity judicial ; those done in the course of establishing a charge against a party accused bear that undoubted character. This authority declared a party in contempt for withdraw- ing himself after citation. It then presided over the exami- nation of witnesses in support of charges preferred against him, and finally adjudged him guilty and awarded sentence of deprivation. All these are assuredly the acts of a court, and we cannot conceive that the right of appeal against what was done, v/hich was assumed and admitted on all hands, can be had against acts not done by a court. That court however the late statute has divested of all such jurisdiction ; it is not within the saving clause, which leaves untouched the ordinary's poAver over his clergy, as it might then be exercised by law without process in court, because this power does not appear ever to have been exercised by law. " We are constrained to conclude, that the most reve- rend prelate, in so far as he proceeded in his visitation to deprive the dean, has acted beyond his jurisdiction. We therefore decline to enter upon the consideration of the numerous points of objection raised against other portions of the proceeding of the learned commissary. But there is one which is not unfit to be disposed of; it was argued that the sentence Avas final, and that there Avas nothing noAV remaining Avhich this court could prohibit from being done, and that there was not even a continuing court to which our Avrit could be addressed. These arguments, for (s) This apparently refers to Phillips v. Bury, Ld. Kaym. 5; 2 T. R. 346. ' 1342 DlSCirLINE OF THE CHURCH. The Dean of " o1)v*ious rcasoiis, require to be narrowly watclicd, for they 1 ork's case. ■\voul(l give effect to unlawful proceedings merely because they Avere brought to a conclusion, liut to the present case they arc inapi)licable, for on looking to the sentence we find that it admonishes the party not to exercise the func- tions of dean on ]iain of the greater excommimication, (and we find, too, that the court was adjourned only when this motion was made,) the inflicting of which ]iain Avould be the mode of enforcing the sentence, and this avc may prohibit. We may also require a revocation of that sen- tence, according to the several forms, and it is plain that the dean could not apply before sentence, for the sentence of deprivation is the only thing done which is beyond the jurisdiction of the archbishop. Up to that point his grace nnquestionabli/ had potoer to inquire with a vietv to ulterior proceedings^ and it seems that the lord chancellor dis- charged an application for a prohibition that had been made to him before sentence upon that very ground. " Our clear conviction is not embarrassed by the oppo- site judgment formed by the learned commissary, for he does not appear to have adverted to the statute ; during the whole proceedings in the court below it appears to have escaped his attention, occupied as it must have been Avith a vast variety of imusual circumstances, and not assisted, as indeed it could not be, according to the Aaew Avhich he took of the duties of his ofiice, by advocates on both sides. If A\e felt any doubt, we should be bound to invite further discussion by calling on the dean of York to declare in prohibition (f), but no additional light can be expected after the full and elaborate, and Avell prepared, and maturely digested arguments, Avhich we have heard enforced Avith consummate ability by counsel of the greatest learning and the highest eminence, and Ave owe it to all the parties to saA'e them all the anxiety and incouA'cnience which Avould result from delay, and on the other hand, avc OAve it to the church to encourage no doubt, Avhere Ave feel none, on suljjccts of such great imj^ortance, and so deeply affecting its intei'ests, its rights, and its duties. The rule therefore for the prohibition must be made absolute. — Rule absolute." At a siibscquent stage of the visitation the dean ap- peared and read a paper ex]:)ressive of regret for his con- tumacy, and for the sale of his livings, Avhether illegal or not, Avhereupon the commissary absolved him from his contumacy. (/) There could therefore be no appeal from this decision. VISITATION. 1313 In the case of Regina v. Tlie Dean and Chapter of JRegina v. Chester {u), a mandamus commanding the dean and J^ej^n.^-cof chapter of a cathedral to restore a chorister, alleged that the office was a freehold in their gift, paid by salary out of their land revenues, and conferring a right to vote on the election of members of parliament, and that the chorister had been Avj-ongfully amoved. Return, that, by ordinances of the founder, for the government of the cathedral, it was provided that if any of the officers of the cathedral, including choristers, commit a small fault, he may be punished by the dean, but that, " if his cnme be of a blacker dye (if it be judged equitable), he may be expelled by whom he was admitted," and that the bishop of the diocese should be the visitor of the cathedral, to take special care that all its ordinances should be inviolably preserved, to punish and correct all offences committed by officers of the cathedral, and to do all things that are judged lawfully to appertain to the office of visitor : and that the chonster had not appealed to the bishop. It was holden, on demurrer to the return, that mandamus did not lie, as the remedy for the wrongful amotion complained of was by ap25lication to the visitor, who had sufficient and ex- chisive jurisdiction, although the foundation was spiritvial and not eleemosynary, and the office was a freehold office : and that it was not necessary to return the cause of amo- tion. In this case, in the course of his judgment. Lord Camp- bell said, " We were then told that the mandamus ought " to go, because this is a spiritual, not an eleemos^mary " foundation. But no authority was cited to show that " this distinction is material where there is a special " visitor appointed by the founder, although there is a ■*' difference with respect to the acts of a visitor merely in " his capacity of ordinary. The office here is a lay office " belonging to a spiritual foundation ; and, on principle, " there seems nothing to show for the present purpose " that it is to be viewed differently fl'om a fellowship in a *' college with a special visitor." 3 & 4 Vict. c. 113, s. 47, provides that cathedral and Cliaptcrs with collegiate chapters, or their visitors in their default, may aitcr"btatutes propose alterations in their statutes, and the visitors may confirm them ; they are then to be submitted by the Eccle- siastical Commissioners to the Queen in Council, and shall, when approved by order in council, liecome law (.r). 00 15 Adol. Sc El., N. P. 513 (1850); vide siq^ra, p. 158. (.r) Vide sup7-o^ p. 215. 1344: DISCJTLINE OF THE CIIL KCH. C'crtfiin ])OAvcrs arc also conferred on the visitors of cathedral and colle<;iatc bodies by 3 & 4 Vict. c. 113, s. 68 (y), and 4 & 5 Vict. c. 39, s. 18 {z). Sect. 2. — Triennial Visitation by Bishop. Can. 60. By Can. 60 of 1603, for the office of confirmation, it i.s enjoined, that tlic l^ishop shall ])erform that office in his visitation every thii'd year; and if in that year, by reason of some infirmity, he be not able personally to visit, then he shall not omit the same the next year after, as he may conveniently. Dr. Gibson. Upon Avhich Dr. Gibson obsen^es that by the ancient canon law, visitations were to be once a year ; but it is to be noted, that those canons Avere intended of parochial visitations, or a personal repairing to every church; as appears not only from the assignment of procurations (originally in provisions and afterwards in money) for the reception of the bishoj) ; but also by the indulgence which the law grants in special cases, where every church cannot be conveniently repaired to, of calling together the clergy and laity from several parts unto one convenient ])lace that the visitation of them may not be postponed. From this indulgence, and the great extent of the dioceses, grcAv the custom of citing clergy and people to attend visitations at particular places ; the times of which visitations, as they are now usually fixed al)out Easter and Michaelmas, have evidently sprung from the two yearly synods of the clergy, which the canons of the church required to be holden by every bishop about those two seasons, to consider of the state of the church and religion within the respective dioceses: an end that is also answered by the presentments that are there made concerning the manners of the peo])le ; as they used to be made to the bishop at his visitation of CA'ery particular church. But as to parochial visitation, or the inspection into the fabrics, mansions, utensils and ornaments of the church, that care has been long devolved upon the arch- deacons; who at their first institution in the ancient church were only to attend the bishops at their ordinations, and other ])u]jlic services in the cathedi-al; but being afterwards occasionally employed by them in the exercise of juris- diction, not only the work of parochial visitation, but also the holding of general synods or visitations when the (jj) Vide supra ^ )i. 232. (z) Vide infra, Part V. Chap. II., on " Residence Houses." VISITATION. 1345 bishop did not visit, came by degrees to be known and established branches of the archidiaconal office as snch; which by this means attained to the dignity of ordinary, instead of delegated, jurisdiction. And by these degrees came on the present laAv and practice of triennial visitations by bishops ; so as the bishop is not only not obliged by law to visit annually, but (what is more) is restrained from it (a). The Reformatio Legum contains the following provision Reformatio on this subject : " Diocesim totam tertio quoque aimo Legum. visitet, et procurationes accipiat — at vero aliis temporihus quoties visum flierit visitet propter novos casus qui incidere possint ei liberum esto modo suis inij^ensis id faciat, et nova onera stipendiorum aut procurationum ab ecclesiis non exigat"(Z'). In the bishop's triennial, as also in regal and metro- Inhibition political, visitations, all inferior jurisdictions respectively arc during the inhibited from exercising jurisdiction, during such visita- tation. tion. And we find, in the time of Archbishop Winchelscy, a bishop prosecuted for exercising jurisdiction before the relaxation of the inhibition ; and in Archbishop Tillotson's time, a bishop suspended, for acting after the inhibition. And even matters begun in the coin-t of the inferior ordi- nary (Avhether contentious or voluntary) before the visitation of the superior, are to be carried on by the authority of such superior (c). However, it has not been unusual, especially in metro- political visitations, to indulge the bishops and inferior courts, in whole or in part, in the exercise of jurisdiction, pending the visitation. Thus, we find relaxations granted, pending the visitation, by Archbishop Abbot ; and by others, an unlimited leave or commission, to exercise juris- diction, or proceed in cases, notAvithstanding the visitation ; and elsewhere, a leave to confer orders, confirm, grant fiats for institution, institute, or correct, Avhilst the inhibition continued in other respects (d). After the relaxation of the inhibition, and especially in metropolitical visitations, wc find not only reservations of power to rectify and punish the compei-ta et detecta, but also special commissions issued for that end (e). By Can. 125, " All chancellors, commissaries, archdea- Where holden. cons, officials, and all others exercising ecclesiastical juris- diction, shall appoint such meet places for the keeping of their courts, by the assignment or approbation of the bishop {a) Gibs. 958. 470. (fc) Ref. Leg. 50 a. {cT) Gibs. 958. (c) Gibs. 958; vide supra, p. {p) Ibid. 1346 DISCIPLINE OF THE CHURCH. Where huldcn. of tlic (lloccso, as sliall bc convciiicnt for entertainment of those that are to make theu* ajipcarance tlierc and most in- different for their traveL And likewise they shall keep and end their courts in such convenient time, as every man may return homewards in as due season as may be." Visitation The bishop at his triennial visitation, or Avhenever accord- ^'o^'^- ing to custom it is holden, and the archdeacon at his annual visitation, preside over a lawfid court; and those subject to its jurisdiction, and refusing to appear, are liable to ecclesiastical punishment for their contumacy. Pro- bably in the present state of the law the offender must be articled against under 3 & 4 Vict. c. 86 ; but he is cer- tainly liable to punishment and to the costs incurred by his contumacy {/). Sect. 3. — Archidiaconal Visitation. How often to Lindwood says, the archdeacon, although there be not a take place. causc, may visit once a year: but if there be cause, he may visit oftener. Nor does it hinder, where it is said in the canon law, that he ought to visit from three years to three years ; for this is to be understood so that he shall visit from three years to three years of necessity, but he may visit every year if he Avill (^7). In any part of 4 & 5 Vict. c. 39, s. 28, enacts, " that any bishop or diocese. archdeacon may hold visitations of the clergy Avithin the limits of his diocese or archdeaconry, and at such visitations may admit churchwardens, receive presentments, and do all other acts, matters, and things by custom appertaining to the visitations of bishops and archdeacons in the places assigned to their res]iective jiu-isdiction and authority under or by virtue of the provisions of the said first or secondly recited act (A); and any bishop may consecrate any ncAv clnu'ch or chapel or any new burial ground within his diocese." General power Langton. " The archdcacons in their visitation shall see in visiting. that the officcs of the church be duly administered ; and shall take an account in writing of all the ornaments and utensils of the churches, and also of the vestments and books ; Avhich they shall cause to bc presented before them every year for their inspection, that they may see what have been added, or what have been lost" (i). (/) See Cat. of Processes in (y) Lind. 49. the Delegates, No. G80, A.n. 1703, (h) G & 7 Will. 4, c. 77, and 3 office of judge promoted against & 4 Vict. c. 113. a clerk for not appearing at a (/) Lind. 50. visitation. VISITATION. 1347 Account in If' ritbirj ."[ — And it would be well to have the same indented : one part to remain with the archdeacon, and the other with the parishioners {j). Utensils.~\ — That is, which are fit or necessary for use: and by these are understood all the vessels of the church of every kind {k). Every Year.^ — That is, every year in which they shall visit (Z). That they may see.'\ — Therefore the archdeacon ought to go to the place in person to visit, and not to send any other ; which if he do, he shall not have the procura- tions (due upon the account of visiting) in money : but otherwise, he whom he shall send shall receive procura- tions for himself and his attendants in victuals (m). Otho. " Concerning archdeacons we do ordain, that they visit the churches profitably and faithfully ; by in- quiring of the sacred vessels, and vestments, and how the service is performed, and generally of temporals and spirituals; and what they shall find to want correction, that they correct diligently. And when they visit, correct or punish crimes, they shall not presume to take anything of any one (save only moderate procurations), nor to give sentence against any persons unjustly, whereby to extort money fi'om them. For whereas these and such like things do savour of simony, we decree, that they who do such things shall be compelled by the bishop to lay out twice as much for pious uses; saving nevertheless other canonical punishment against them. And they shall en- deavour fi*equently to be present at the chapters in every deanry, and therein instruct the clergy (amongst other things) to live well, and to have a sound knowledge and understanding in performing the divine offices" (??). Chapters.^ — That is, rural chapters (o). Reynolds. " We enjoin the archdeacons and their officials, that in the visitation of churches they have a diligent regard to the fabric of the church, and especially of the chancel, to see if they Avant repair; and if they find any defects of that kind, they shall limit a certain time imdcr a penalty within Avhich they shall be rejmircd. Also, they shall inquire by themselves or their officials, in the parishes where they visit, if there be ought in things or persons which wanteth to be corrected : and if they (/•) Liiid. 5U. {in) \A\u\. 50. (k) Ibid. (») Athon, 52. (0 Ibid. (o) Athon,.54. 1348 DISCIPLINE OF THE CIIUKCII. General power shall find iiiiv siicli, tlicy shall coirect the same either then iu visiting. Qj^. -jj ^]j(, j^^,^^ chapter (/>). And their Officials.^ — Here it seems to be intimated, that the archdeacon's official may visit ; which yet is not trne, at least in his own ri(!;ht ; yet he may do this in the right of the archdeacon, when the archdeacon himself is hindered ((/). Stratford. " Forasmuch as archdeacons and other ordi- naries in their visitations finding defects as Avell in the churches as in the ornaments thereof and the fences of the churchyard and in the houses of the incumbents, do com- mand them to be repaired under pecuniaiy penalties, and from those that obey not do extort the said penalties by censures, wherewith the said defects ought to be repaired, and thereby enrich their OAvn purses to the damage of the poor people : therefore that there may be no occasion of complaint against the archdeacons and other ordinaries and their ministers by reason of such penal exactions, and that it becometh not ecclesiastical persons to gape after or enrich themselves with dishonest and penal acquisitions, we do ordain, that such penalties, so often as they shall be exacted, shall be converted to the use of such repairs, under pain of suspension ab officio which they shall ipso facto incur until they shall effectually assign what was so received to the reparation of the said defects" (r). Can. 86. By Canon 86 of 1603, " Every dean, dean and chapter, archdeacon and others which have authority to hold eccle- siastical 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 the high commissioners for causes ecclesiastical (5), every year, of such defects in any the said churches as he or they do find to remain unrepaired, and the names and surnames of the parties faulty therein. Upon which certificate we desire the said high commis- sioners will ex officio mero send for such parties and compel them to obey the just and lawful decrees of such ecclesias- tical ordinaries making such certificates." Visitation In the year 1626, ISIr. Huntley, rector of Stourmouth, sermon. was required l)y Dr. Kingsley, archdeacon of Canterbury, to preach a A-isitation sermon, which he refused : and being (;)) Lind. 53. (s) The High Commission Court (7) Ibid. has since been abolished. (0 Lind. 224. VISITATIOX. 1349 cited before the high commissioners, it Avas urged that he Avas 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 implied 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 required him to do this ; but on the contrary, that the ancient canon law in- joined the visitor himself to preach at his own visita- tion. But the court admonished liim 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 ( t). But this is one instance, amongst others, in which that covu't whilst it subsisted carried matters with a pretty high hand. By Canon 137, "Forasmuch as a chief and principal Exhibits. cause and use of visitation is, that the bishop, archdeacon or other assigned to \asit, may get some knowledge of the state, sufficiency and ability of the clergy and other j^er- sons whom they are to ^dsit: 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 what- soever, to be by the said bishop either allowed, or (if there be just cause) disallowed and rejected, and being by him approved, to be (as the custom is) signed by the register: 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 afterwards but half of the said accustomed fees in every other visitation during the said bishop's continuance." To be hy the said Bishop aUowed.~\ — None but the bishop, or other person exercising ecclesiastical authority by commission from him, has right de jure communi to require these exhibits of the clergy ; nor does the enacting part of this canon convey the right to any other; and therefore if any archdeacons are entitled to require exhibits (i) Johns., Huntley's case. nistrornm," &c., is tlie precept of " Sane hnjusmodi impensurus the canon law as to episcopal officium proposito verho Dei quae- visitation. VI. 1. 3, t. 20, c. 1, § 4. rat de vita et eonversatione mi- 1350 DISCIPLINE OF THE CIIUUCII. Exhibit?, Presentments, by whom to be uiade. in their vitiltations, it must be u])on the foot of custom, the beginniuo; whereof lias probably been an encroach- ment ; since it is not likely that any l)isho]i should give to the archdeacon and his official a power of allowing or dis- allowing such instruments as have been granted by him- self or his i)redecessors(w). Whole Fees.'] — In the registry of Archbishop Islip, there is a sequestration of the benefices of divers clerg)'- men refusing to make due exhibits in a visitation (.r). And (tftcrirards hut Hrdfoftlie said accustomed Fees.] — Lindwood, speaking of the letters of orders to be exhibited by stipendiary curates going from one diocese to another, says, that after the archdeacon or his official or other ordinary has satisfied himself of their orders and of their life and conversation, they may be admitted to officiate, and their names ought to be entered in the register of such ordinary ; whereu])on in other visitations or inquu'ies, their letters of orders ought not to be reinspected, nor their names to be entered again, seeing they are sufficiently known already : and so they do ill (he says) who in every of their visitations take something for the inspection and approbation of the said letters of orders, seeing such entry ought not to be made but once, namely, at the first admis- sion (y). Edmund. " There shall be in every deanry two or three men, having God before their eyes, who shall, at the com- mand of the archbishop or his official, present unto them the public excesses of prelates and other clerks" {z). In every Deanry.] — That is, in every rural deanry («). Public excesses.] — That is, notorious, whereof there is great and public infamy ; and this, although the same be not upon oath ; but if such excesses shall not be notorious, then the same shall not be presented, unless there be proof upon oath(Z'). As to the churchwardens' duty in this particular, although they have for many hundred years been a body corporate to take care of the goods, repairs and ornaments of the church, as api)ears by the ancient register of writs ; yet this work of presenting has been devolved on them and their assistants by canons and constitutions of a more modem date. Anciently the Avay was to select a certain number, at the discretion of the ordinary, to give infor- mation upon oath ; which number the rule of the canon (m) Gibs. 959. (a;) Gibs. 1545. ly) Lind. 225 ; Gibs, 959. {z) Linrl. 277. (rt) Ibid. {h) Ibid. VISITATION. 13 J 1 law upon this head evidently supposes to have been selected ■while the synod was sitting, and the people as well as clergy in attendance there. But in process of time this method was changed, and it was directed in the citation that four, six or eight, according to the proportion of the district, should appear (together with the clergy) to re- present the people, and to be the testes s>/nodales {c). But all this while Ave find nothing of churchwardens presenting, but the style of the books is, " The parishioners say," " The laymen say," and the like, until a little before the Reformation, when the churchwardens began to pre- sent, either by themselves, or else with two or three more parishioners of credit joined Avith them. And this last (by the way) is evidently the origin of that office which our canons do call the office of sidesmen or assis- tants (d). In the beginning of the reign of King James the Fhst, a commissary had cited many persons of several parishes to appear before him at his visitation ; and because they ap2:)eared not, they were excommunicated. But a prohibi- tion was granted, because the ordinary has not power to cite any into that court, except the churchwardens and sidemen (e). But by Canon 113, "Because it often cometh to. pass. Can. 113. that churchwardens, sidemen, questmen and such other persons of the laity as are to take care for the suppressing of sin and wickedness, so much as in them lieth, by ad- monition, reprehension and denunciation to their ordi- naries, do forbear to discharge their duties therein, either through fear of their superiors, or through negligence, more than were fit, the licentiousness of these times considered, we 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 pre- sentment with the said churcliAvardens, sidemen and the rest above mentioned, at the times of visitation, if they the said churchwardens and the rest will present such enormi- ties as are apparent in the parish : or if they avlU not, then every such parson and vicar, or in their absence as afore- said their curates, may themselves present to their ordi- naries at such times, and when else they think it meet, all such crimes as they 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 (0 Gibs. 9G0. (d) Ibiil. (e) Noy, 123. 1352 DISCIPLINE OF THE CHL'RCII. Can. IIG. To be made upon oath. Can. 113. always, tliat if any man confess liis secret and liidden sins to the minister, for the unl)urdenino^ of his conscience, and to receive spiritual consohition and ease of mind from him, Ave do not any way hind the said minister by this our con- stitution; but do straightly charge and admonish him, that he do not at any time reveal and make known to any person ■wliatsoever 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 con- cealing the same) under pain of irregularity." And by Canon 116, " It shall be lawful for any godly disposed person, or for any ecclesiastical judge, upon know- ledge or notice given unto him or them, of any enormous crime within his jurisdiction, to move the minister, church- Avardens or sidemen, as they tender the gloiy of God and reformation of sin, to present the same, if they shall find sufficient cause to induce them thereunto, that it may be in due time punished and reformed." Provided, that for these voluntary presentments there be no fee required or taken. Boniface, " AYe do decree, that laymen, when inquiry shall be made by the prelates and judges ecclesiastical for correcting the sins and excesses of those that are within their jurisdiction, shall be compelled (if need be) to take an oath to speak the truth" {f). And that ordinaries are em))owered by the laws of the church to require an oath of the testes synodales, appears not only from this constitution, but also from the body of the canon law. And the same practice of administering an oath appears in the ecclesiastical records of our own chui'ch, where it is often entered, that the presenters were charged upon their consciences to discover whatever they knew to want amendment in things and persons (^). Or declaration. Oaths on taking the office of churchwarden are abolished, and a declaration substituted in their stead by sect. 9 of 5 & 6 Geo. 4, c. 62. V>\ Can. 119, " For the avoiding of such inconveniences as heretofore have happened by the hasty making of bills of presentments upon the days of visitation and sjmods, it is ordered, that always hereafter, every chancellor, arch- deacon, commissary and official, and every other person having ecclesiastical jurisdiction, 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 delivered to the churchwardens. Articles of inquiry. (/) T.inrl. 109. (.7) Gib.s. 960. VISITATION. 1353 questmen and sidemen of every parish, or to some of tliem, 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 exhibit them. In which book shall be contained the form of the oath Avhich 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 sliall 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." Frame tJiem at Home.~\ — By an entry in one of our re- cords about 200 years ago, says Bishop Gibson, the ancient way of making presentments seems to have been the ordinary's examination of the synodal witnesses, and the taking their directions and presentments by word of mouth, and then immediately entering them in the acts of the visitation. And although presentments are now re- quired to be fi'amed at home, there is no doubt but every visitor has riie same right of personal examination that ancient visitors had, as often as he shall find occasion (A). By reason of several disputes Avhich have been made concerning the articles of inquiry, the convocation has sometimes attempted to frame one general body of articles for visitations, but the same as yet has not been brought to effect (i). By Can. 115, " AYhereas for the reformation of crimi- Presentments nous persons and disorders in every parish, the church- °" common wardens, questmen, sidemen, and such other church officers are sworn, and the minister charged to present as Avell the crimes and disoi'ders committed by the said criminous persons, as also the common fame Avhich is spread abroad of them, whereby they 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 fearfiil judg- ment-seat of the highest Judge, that they admit not in any of their courts, any complaint, plea, suit or suits, against any such churchwardens, questmen, sidemen or other church officers, for making any such ])resGntments, nor against any minister for any presentments that he shall make ; all the said presentments tending to the restraint of shameless impiety, and considering that the rules both (70 Gibs. 9G3. (0 Gibs. 9G2. r. VOL. 11. 4 s 1354 DISCIPLINE OF THE CIIUllCII. of charity and government do ]ircsiimG that they did nothing tlicrciu of mahce, but for the discharge of their consciences." The ])erson accused in those days was required to an- swer u])on oath to tlie charge laid against him, and to liring his compurgators ; but the oath ex officio being now aboHshed, it is ■^^Tong and unlawful to present any person upon common fame only without proof. Presentments It is not enough to present that such a one has com- in what manner j^^^ttcd fornication, or the like, but the person ought to be named with whom he committed the offence, and that there is a pidjlic fame thereof; otherwise upon such a general and uncertain jn'csentment, the person accused cannot know how to make his defence, and there may be cause of appeal (A). At what time By Can. 116, " Xo churchwardens, questmen, or side- to be made. jj^qj^ Qf ^ny parish, shall be enforced to exhibit their pre- sentments to any ha^ang ecclesiastical jurisdiction, above once in every year where it liath been no oftener used, nor above twice in every diocese whatsoever, except it be at the bishop's visitation ; . . . provided always, that as good occasion shah requu'e, it shall be lawful for every minister, churcliM'ardens and sidemen to present offenders as oft as they shall think meet ;" and for these voluntary present- ments no fee shall be taken. 13y Can. 117, " iSo churchwardens, questmen or side- men 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 present any faults committed in theu' parishes, and punishable by ecclesiastical laws. Neither shall they nor any of them, after theii* presentments exhibited at any of those times, be any ftirther troubled for the same, except upon manifest and evident proof it may appear that they did then willingly and wittingly omit to present some such public 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 expla- nation of their former presentments ; in which case of A\ilful omission, their ordinaries shall proceed against them in such sort, as in causes of AvilfiU perjury in a court eccle- siastical it is already pro\aded." By Can. 118, " The office of all churchwardens and sidemen shall be reputed ever hereafter to continue initil the new churchwardens that shall succeed them be sworn, which {!:) 1 Ought. 229. VISITATION. 1355 fshall 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 eveiy parish shall exhibit to their several ordinaries the presentments of such enormities as have happened in llieir parishes since their last presentments. And this duty they shall perform before the newly chosen church- wardens and sidemen be sworn, and shall not be suffered to pass over the said presentments to those that are newly come into office, and are by intendment ignorant of such crimes ; under pain of those censures which are appointed for the reformation of such dalliers and dis- pensers with their own consciences and oaths." By Can. 116, " For the presentments of every parish Fee for taking church or chapel, the register of any court where they are i" present- to be exhibited shall not receive in one year above 4d. ; under pain, for every offence therein, of suspension from the execution of his office for the space of a month to ties quoties." The Common Pleas, in 1862, and the Exchequer Cham- Shephard v. ber, in 1864, decided as follows: — Payne. The office of registrar of an archdeaconry court, being a fi'cehold office, Avith duties of a continuous and pre- sumably perpetual character, and one whose existence is essential to the due exercise of the ftmctions of the arch- deacon, is an office to which fees may be annexed by immemorial usage. The archdeacon's visitation operating for the benefit of the parish at large, and, among others, of the church- wardens themselves, the performance of whose duties is facilitated by the services of the registrar, the fees payable to that officer are properly chargeable upon the church- wardens. For three centuries the practice of the archdeacons had been, in order to avoid expense, instead of visiting each ]iarish in the archdeaconry separately, to divide the arch- deaconry into districts, and to hold the visitation for all the ]tarishes of that district at some one parish church within the district: — It Avas holden, that such a visitation was not open to objection in a temporal court (/). The Queen's Bench, however, in 1870, held that the Vdey v. liability of the churchwardens to pay the registrar was not ^'^''^"'^^• personal, and that if they had no funds in their hands for (0 Shcjyhardv.Pm/nc, 12C. B., C. V. 297 ; 33 ib. 158 ; vide supra, N. S. 414 ; IG ib. 132 ; 31 L. J., p.l221. 4 S 2 13j6 DISCIPLINE OF THE CHURCH. Tabic of fees fixed in pur- suance of 80 & 31 Vict. c. 135. the repairs of tlie clnircli or any otlier expenses of their oftice, and were ■without the means of obtaining funds cxcejjt by vohmtary subscri])tions, they were not liable to l)ay the fees(7«). By 80 & 31 Vict. c. 135, the two archbishops, their vicars-g'eneral and the lord chancellor, with the consent of the lords of the treasury, were empowered, from time to time, to settle a table of fees to be paid to the chan- cellors or vicars-general, registrars and other officers of archbishops and bishops, and to archdeacons and their officials and other officers, on the visitation of such arch- l)isliops and bishops and archdeacons resjiectively. The table was to be submitted to the Queen in council, and when approved to be published in the London Gazette, and to have the force of law. A table of fees, fixed according to this statute, was pub- lished in the London Gazette of March 19, 1869. By this table the fees on visitations are fixed as fol- lows: — A'icar-gene- ral, Chancel- lor, Arch- deacon or Official. Registrar or other Officer by usat'C per- forming the Duty. Apparitor. Episcopal or Arcbidiaconal Visitation £ s. d. 2 £ S. d. 12 6 £ s. d. 3 6 Penalty for not presenting. " The chancellor's fee includes the attendance of the chancellor or his surrogate, the examination of the pre- sentments of the outgoing churchwardens and the admis- sion of the new cluu'ch wardens to office. The registrar's fee includes the dra^Wng and issuing of the inhibition and of the mandate for the citation of the clergy; the preparation of the visitation books and of the articles of inquiry, and of the presentment papers ; the attendance at the visitation and attesting the presentments and declara- tions of the churchwardens ; the registering the papers exhiljited by the clergy ; the tabulating in the registry the copies of the register books of baptisms and burials, and other papers required to be annually ti'ansmitted. The apparitor's fee includes the preparation and delivery of the citations to the clergy and churchwardens, and the attendance at the visitation." Besides being proceeded against by the censures of the (m) Velq/ v. Pertioee, 5 L. R., Q. B. 573. VliSlTATlOX. 1357 church, it is enjoined by Canon 26, that no minister shall in anywise admit to the receiving of the holy communion any churchwardens or sidesmen, who, ha^-ing taken their oaths to present to their ordinaries all such public offences as they are particularly charged to inquire of in their several parishes, shall (notwithstanding their said oaths, and that their faithful discharge of them is the chief means Avhereby public sins and offences may be reformed and punished) wittingly and willingly, desperately and irre- ligiously, incur the horrible crime of perjury («), either in neglecting or in reftising to present such of the said enor- mities and public offences as they know themselves to be committed in their said parishes, or are notoriously offen- sive 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 pre- senting of them, and not to incur so desperately the said horrible sin of perjury. In Selbifs case(o), in 1680, a prohibition was prayed Selhfscase. to the archdeacon of Exeter, because he proceeded to excommunicate the plaintiff, for that he, being chm'ch- warden, refused to present a notorious delinquent, being admonished. And a prohibition Avas granted: for they are not to direct the churchwarden to present at their pleasure ; but if one churchwarden refuses to present, he may be presented by his successor. By Can. 121, " In places where the bishop and arch- None to be deacon do by prescription or composition visit at several presented 1 ^1 1 i r 1 ii ^c twice for the times m one and the same year, lest tor one ana the seii- g^me offence. same fault any of his majesty's subjects shovdd be chal- lenged and molested in divers ecclesiastical courts, Ave order and appoint, that every archdeacon or his official, within one month afler 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 visi- tation, to the end the chancellor shall thenceforth forbear to convent any person for any crime or cause so detected or presented to the archdeacon. And the chancellor, within the like time after the bishop's Aasitation 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, AA'hich shall be detected or presented unto him in that visitation, to the same intent as is aforesaid. (jj) It has been observed that no presentments are now made iq^on oath. (o) Freem. 298. 1358 DISCIPLINE OF THE CllUIiCII. And if tlicsc officers sliall not certify each other as is here j)rescribed, or after such certificate sliall 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 jm-isdiction, by the bishop of the diocese, until he shall repay the costs and expenses which the parties grieved have been at by that vexation." Cliurch- Crimes evident and notorious, whether they be immo- wardcns to ralitics in persons, as lewdness, swearing, drunkenness, and pieTcu^mcnts ^"^^^ ^^^^ ' °^' defects in places, as the want of repairs, or of utensils, in churches, churchyards, and parsonage houses ; are not only in their nature merely spiritual and ecclesias- tical, but in the chief heads thereof (as fornication, adul- tery, and the repairing of churches and churchyards), by the statute of Circumspecte agatis, 13 Edw. 1, stat. 4, not liable to prohibition. And therefore, if offenders, being presented, do escape unpunished, it must be OAving either to the want of proof, or the want of prosecution (;j). As to legal proof, in case the party presented denies the fact to be true, the making good the truth of the present- ment, that is, the fiirnishing the court with all proper evidences of it, undoubtedly rests upon the person pre- senting. And as the spiritual court in such cases is en- titled by law to caU upon churchwardens to support their presentments, so are churchwardens obliged not only by law (Dr. Gibson says), but also in conscience, to see the presentment effectually supi)orted ; because to deny the court those evidences which induced them to present upon oath, is to desert their presentment, and is httle better, in point of conscience, than not to present at all ; inasmuch as through their dcftiult the presentment is rendered in- effectual, as to all purposes of removing the scandal, or reforming the offender. And from hence he takes occasion to wish, that the parishioners w^ould think themselves bound (as on many accounts they certainly are bound) to support their churchwardens, in seeing that theii' presentments arc rendered effectual. In any point which concerns the re- pairs or ornaments of chui'ches, or the providing conveni- ences of any kind for the service of God, Avhen such defects 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 himself, by a legal and reasonable rate upon the parish. (2J) Gibs. 966. Vide mprn^xt. Politeia in tabiilas digcsta, Tab. 1081 ; Cosin, Ecclcsia; Anglicana3 7 A. (1G34). VISITATION. 1359 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, adulterers, common swearers, drunkards, and such like, Avhose example is of pernicious consequence, and likely to bring many evils upon the parish (q). In all visitations of parochial churches made by bishops Procurations. and archdeacons, the law has provided that the charge thereof shall be answered by the procurations (r) then due and payable by the inferior clergy ; wherein custom, as to the quantum, shall prevail (s). These procurations Avere anciently made by procuring Anciently by victuals and other provisions in specie ; concerning which provisions iu constitutions have been ordained in England in accordance with the general canon law(^). But by a constitution of Stratford, " No procuration shall be due without actually visiting ; and if any shall visit more churches than one in one day, he shall have but one procuration, to be proportioned amongst the said churches. And because sometimes the retinue of a visitor exceedeth the number of men and horses appointed by the canons, so that they who pay their procurations in victuals are excessively burdened beyond the rate which is usually paid in money, it shall be in the choice of the visited to pay the same in money or in provisions" (^^). And this last constitution, by putting it in the choice Procurations of the incumbent, whether he would entertain the visitor P°^^ converted •,/>.., . . n into money. m provisions or compound tor it by a certain sum of money, was the cause of the custom generally prevailing afterwards, and which now universally obtains, of a fixed payment in money, instead of a procuration in meat, drink, provender, and other accommodation (.r). These procurations are now ]3art of the settled revenue Partof revenue of the bishop's see ; the king himself pays them for his of see. ai)propriations, as the abbeys did before the dissolution Avhen they had appropriated churches ( y). Procuration is due to the person visiting, of common Whether duo right : and althouo-h originally due by reason of visitation ^Y^'^" "" visita- only, yet the same may be due without actual visitation. The foregoing constitutions limit the payment, whether in provisions or money, to actual visitation, and warrant the (q) Gibs. 9GG. (t) See Lind. 219, 220, 221 ; (r) See Canon Law, vi. 1. 3, Athon, 53, 114. t. 20, s. 5, " Procnrationes autcm (u) Lind. 223. rocipiat," &c., ])ut to he taken in (./•) riil)s. Tracts, 13. food, not money. (?/) 27w; Kinr) \. Sir Ambrose (s) God. Introd. 19. Forth, Davy's Kep. 1. 13G0 DISCIPLINE OF THE CHURCH. VNhcthcr due when 11(1 visi- tation is made. To be sued for in the spiritaal court. To be paid by rectories im- propriate where there is no vicar endowed. flcnial of tlicni when no visitation is holdcn. Upon which a doubt lias been raised, Avliether tliose archdeacons wlio are not permitted to visit, but are inhibited from doing it in the bishop's triennial visitation, have a right to require procm-ations for that year. They who have maintained the negative, build their o})inion upon the express letter both of the ancient canon law, and of oiu' own provincial constitutions. But others, who undertake to defend the rights of the archdeacons, allege, that though it might be reasonable that they lose their procurations, in case they neglect their office of visiting (which, by the way, was all that the ancient constitutions meant), yet that reason does not hold when they are restrained and inhil:)ited from it ; and that jjrocurations are rated in the valuation of King Henry VIII. as part of the revenues of every archdeacon, who therefore paid a certain annual tenth for them ; and the law could never intend the payment of the tenth part every year, if there had been any year in Avhich he was not to receive the nine parts. Which two arguments (Dr. Gibson says) are so strong in favour of the archi- diaconal rights, the first in reason, and the second in law as well as reason, that no more need to be said upon that head (r). Procurations are suable only in the spiritual court, and are merely an ecclesiastical duty (a). And may be leaded by sequestration or other ecclesias- tical process (b). In the case of Saiinderson v. Claqctt {c), in 7 Geo. 1, Dr. Clagett, Archdeacon of Sudbury, commenced a suit in the Consistory Court of the Bishop of XorA^-ich, against Saimderson, as proprietor or curate of the impropriate rectory of Aspal in Suffolk, for the annual sum of 6;y. 8d. as a procuration or proxy due to the archdeacon for visi- tations. Satniderson moved the Court of King's Bench for a prohibition, and suggested that this rectory of Aspal was time out of mind a rectory impropriate, Avithout any vicar endowed ; that all the tithes and profits within this rector}^ time out of mind belonged to the proprietor thereof, who at his own expense used to provide a curate to celebrate divine service at the parish church of Aspal. 15ut it was denied by the Avhole court, who delivered their opinions seriatim : 1, That this Avas an ecclesiastical duty, and therefore pro])erly suable for in the spiritual court : 2, That it Avas claimed both by and from an ecclesiastical (s) Gibs. 975. (a) Lord Raym. 450. (h) Gibs. 1546. (c) 1 r. VV. 657 ; Str. 421. VISIT ATIOX. 1361 person, wliicli made it the stronger: 3, That though there was an impropriation in the case, still there must be a curate to take care of the souls of the parishioners, and that curates as well as other persons must stand in need of bishop's or archdeacon's instructions and visitation : con- sequently, 4, That the ordinary or archdeacon ought to be allowed for his procuration Avhat had been usually paid for it, Avhich here appeared to be 6s. 8d. : 5, That Avhere a thing is claimed by custom in the spiritual court, it must be intended according to their construction of a custom ; and by then' law, forty years make a custom or prescription. If there be a parsonage and a vicarage endowed, only impropriate one is to pay procurations ; but which of them mvist i3ay rectory where , ^ S- . T ^ , ii 1 L -c there is a vicar IS to be directed by custom, or the endowment, at ex- endowed. tant(rf). Stratford. A chapel of ease shall be included in the Chapel of case procuration of the mother church (e). "'^'^Jf'^ f .u*^' .u Churches newly erected shall be rated to procurations, ^^^^ ^ ^ according to the portion paid by the neighbouring newly erected, churches (y). Donatives and free chapels used to pay no procurations Places to any ecclesiastical ordinary, because they were not visit- exempted, able by any (g). But the holders of donatives have now become visitable (Ji). Sect. 4. — Royal Visitation (z). 25 Hen. 8, c. 21, taking the power of dispensations 25 Hen. 8, from the pojie, and vesting them in the Archbishop of c. 21. Canterbury, intitided " An Act concerning Peter-pence and Dispensations," provided by section 14 that neither The king by the Archbishop of Canterbuiy, nor any other person, commission should have " power or authority by reason of this act, to wes^hosp'itals visit or vex any monasteries, abbeys, priories, colleges, and pUices hospitals, houses or other places religious, which be or exempt, and were exempt before the making of this act ; any thing |,jgiiop of in this act to the contrary tliereof notwithstanding ; but Canterbury. that redress, visitation and confirmation shall be had by the king's highness, his heirs and successors, by commis- sion imder the great seal, to be directed to such ])crsons as shall be appointed requisite for the same, in such mo- (d) Deg. p. 2, c. 15. (/) The King's Visitatorial (e) Lind. 223 ; Deg. p. 2, c. 15. Power Asserted, by Natlianicl (/) Gibs. 976. Johnston, London, 1648 ; Cosin, {(f) Deg. p. 2, c. 15. Ecclcsife Anglicanre Politeia in (/i) Vide supra, pp. 326, 327. tabiilas digcsta, Tab. 1 A. (1 634). 13G2 DISCIPLINE OF THE CHURCH. 25 Hen. 8, c. 21. 1 Eliz. c. 1. Ecclesiastical j urisdiction annexed to the crown. The qnccn may a-ssign commissioners to exercise ecclesiastical jurisdiction. nastcrics, colleges, hos})itals, priories, lioiiscs and places re- ligious exempt: so that no visitation nor confirmation shall fi'om thenceforth be had or made, in or at any such monas- teries, colleges, hospitals, ])riories, houses and })laccs reli- gious exem])t by the said Bishop of liome, nor by any of his authority, nor by any out of the king's dominions ; nor that any ]ierson, religious or other, resiant in any the king's dominions, shall from henceforth de})art out of the king's dominions to or for any visitation, congregation or assembly for religion, but that all such visitations, con- gregations and assemblies shall be within the king's do- minions" (A). And 1 Ehz. c. 1, " An Act to restore to the Crown the ancient Jurisdiction over the Estate Ecclesiastical and Spiritual, and abolishing all Foreign Powers repugnant to the same," enacts as follows : — Sect. 8. " And that also it may likeAvisc please your highness, that it may be established and enacted by the authority aforesaid, that such jurisdictions, privileges, su- periorities and pre-eminences spiritual and ecclesiastical, as by any spiritual or ecclesiastical power or authority hath heretofore been, or may lawfully be exercised or used for the visitation of the ecclesiastical state and persons, and for reformation, order and correction of the same, and of all manner of eiTors, heresies, schisms, abuses, offences, contempts, and enormities, shall for ever by authority of this ])resent jmrliament be united and annexed to the im- perial crown of this realm. " [And(/) that your highness, your heirs and succes- sors, kings or queens of this realm, shall have full power and authority by virtue of this act, by letters patents under the great seal of England, to assign, name and authorize, when and as often as your highness, your heirs or successors, shall think meet and convenient, and for such and so long time as shall please your highness, your heirs or successors, such person or persons being natural- born subjects to your highness, your heirs or suc- cessors, as your majesty, your heirs or successors, shall think meet, to exercise, use, occupy and execute under your highness, your heirs and successors, all manner of jurisdictions, privileges and pre-eminences, in anywise touching or concerning any spiritual or ecclesiastical jurisdiction, within these yom- realms of England and Ireland, or any other your highness' dominions and coun- tries : and to visit, reform, redress, order, correct and (k) Pee also 37 Ilcn. 8, c. 17, s. 3, now repealed. (I) The part in brackets is now repealed. VISITATION. 1363 amend all such errors, heresies, schisms, abuses, offences, contempts and enormities whatsoever, which by any man- ner of spiritual or ecclesiastical power, authority or juris- diction can or may lawfully be reformed, ordered, redressed, corrected, restrained or amended, to the pleasure of Al- mighty God, the increase of virtue, and the conservation of the peace and unity of this realm ; and that such person or persons so to be named, assigned, authoiized and ap- pointed by your highness, your heirs or successors, after the said letters patents to him or them made and delivered, as is aforesaid, shall have full power and authority by virtue of this act, and of the said letters patents under your highness, yom- heirs and successors, to exercise, use and execute all the premises, according to the tenor and effect of the said letters patents ; any matter or cause to the con- trary in anywise notwithstanding."] To assign, name, and authorize.^ — Lord Coke said, it was resolved by all the judges, that if this act had never been made, the king or queen of England for the time being might have made such an ecclesiastical commission by the ancient prerogative and law of England (m) ; but Bishop Stillingfleet(?2) denies that " our ancient law doth give the king a j^ower, by virtue of his ecclesiastical juris- diction, to appoint commissioners, by an extraordinary way of jurisdiction, to proceed in i)rhaa instantid against parsons by ecclesiastical censures ;" and Bishop Gibson agrees with this learned prelate. To visit.^ — " This branch was enacted out of necessity, for that the bishops and most of the clergy being then popish, it was necessary to raise a commission to deprive tliem who would not deprive themselves, and to have a more summary proceeding than by the ordinary and prolix course of law is required." To this effect my Lord Coke. But Bishop Stillingfleet believes that they were deprived by a particular commission for that purpose ; which the queen might grant in \nrtue of this act by the same reason that she issued particular commissions into every county to execute the powers contained and specified in the said act. INIr. Cunningham observes that, " In Ireland, so early Ireland, as the thirteenth century, a visitation was made of the archdiocese of Dublin, the record of which visitation is generally styled the ' Crede Mild -^ copies of this docu- ment still exist, and by one of them, in the British Mu- seum, it appears that the oi-iginal was written about the (m) Caudra/s case, 5 Co. 1. (//) Eccles. Cases, part 2, p. 07. IPiGi DlSCll'LlNK Ol' THE CMLIiCII. Irclaiul. "end of the rel<2;n of Henry III. Soon after, a general siu'vey or valuiition of tlie churches of Ireland was insti- tuted, as is found by some fragments of the vahiation still remaining in the Exchequer in England : the valuation Pope Nicholas' so made is generally called ' Po|ie Nicholas' Taxation,' Taxation. j^j^(| ^^.j^^, (^.xecutcd in the reign of Edward 1. : there is a Avrit from King Edward 111. ordering a new visitation of the diocese of Ireland to be made, though no such visita- tion has as yet been discovered. The most important docimient of that description which next occurs, is the ' Repcrtorium Viride,^ or account of the former and pre- sent state of his own archdiocese, made by John Alan, Archbishop of Dublin, in the reign of Ileniy VIII. The original record, thus compiled, has continued in the pos- session of the archbishop's successors ; and when Ave find copies of it were made for preservation in the libraries of Christ Church and Saint Patrick's Cathedrals, Trinity College, &c., Avhere they noAV remain, avc may fairly pre- sume it Avas formerly a document in considerable estima- tion. During the reign of Queen Elizabeth, many A'isi- tations of the dioceses of Ireland Avere made ; some of them pursuant to order of state, and records of most of them arc still to be seen in the IVIanuscript Library of Trinity College. In the time of her successor, James I., viz. in the years 1607, 1612, and 1615, visitations AA'cre made throughout the kingdom, some of them ])ursuant to a commission noAv enrolled on the rolls of Chancery, and agreeably to instructions issued in Avriting for holding those visitations, as may be seen by a co})y of those in- structions, annexed to the visitations themselves, in the prerogative registry; but in 1622 the same king, by a commission under the great seal of England, empoAvered a certain number of persons, some of them leading mem- bers of the English parliament, to inquire into and report iqion the state of the Church in Ireland, as Avell as to do and perform the many other high and arduous duties Avhich are minutely detailed in that commission. Copies of some of the visitations and returns made accordingly Avill be found in the British jVIuseum, St. Patrick's Li- brary, and amongst the manuscripts in the College Library, Dublin. Soon after those returns, viz. in the year 1623, King .lames issued his ' Kules and Orders' for the Church of Ireland, a copy of Avhich Avill be found in St. Patrick's Library. A new regal visitation Avas made in the years 1633, 1634, and this, Avith the ' Munster Visitation' re- cords of the same period, both now remaining in the pre- rogative registry, seem to be almost the fullest specimens VISITATION. 1365 " of ancient ecclesiastical returns or reports now existing. In the preparing of these last visitations, besides the names of the parishes, incumbents, patrons, impropriators, or ' farmers,' as they frequently style the grantees of the dissolved monasteries, much tiseful information, taken from the bishop's registry, then extant, will be found an- nexed to most of the returns respecting the collations, presentations, nominations, admissions, institutions, induc- tions, &c. of the several incumbents and curates. The triennial visitations of the Deans of Kilmore, Ardagh, Dromore and Connor, made in the year 1673, are also preserved in the same registry. No other general visitations appear to have been made in Ireland until after the Revo- lution, when in or about the year 1693, the lords justices issued directions to the archbishops and bishops throughout the kingdom, and reports and returns were made in con- sequence ; copies of some of those returns are preserved in St. Patrick's Library, Dublin, and also in the primatial registry at Armagh. The above are the principal eccle- siastical returns, surveys, or visitations heretofore made in Ireland, but of course they do not include those annual and triennial visitations made of the respective sees, many of which are still to be seen in the diocesan registries ; several other miscellaneous ecclesiastical returns and do- cuments are preserved amongst the arcliiepiscopal records in Lambeth Palace, and amongst the Clarendon and other collections in the British Museum ; the surveys of the impropriate tithes, made under the commonwealth govern- ment, are preserved at Bective House, in the county Meath, with the other valuable and interesting records belonging to the most noble the Marquess of Headfort, and some of them are also at present in the Castle of Dublin. Most of the original valuations of spiritual bene- fices made in the reign of Henry VIII. and his successors, for ascertaining the first fruits payable to the crown out of such benefices, will be found amongst the inquisitions in the Chief Remembrancer's Office, and from those inqui- sitions, held specially for the purpose, an abstract com])i- lation was at a more recent period formed, which has since been termed the ' Valor Bene ficior urn. ^ " On the escheat of the northern comities in the reign of James I., inquisitions Avere also held, which afford most curious and useful information as to the situation, division and application of tithes and other church property in those counties, at and before that period" (o). (o) Cunningliam's Ecclesiastical Precedents and Practice, Ap- pendix, p .'50'.*. 13GG DISCIPLINE OF THE CIIUUCIl. CHAPTER X. ECCLESIASTICAL CENSURES. Sect. 1. — Censurce sive Coercitioncs Ecclesiastics. 2. — Admonition. 3. — Penance. 4. — Suspension. 5. — Sequestration. 6. — Deprivation. 7. — Degradation. 8. — E xcommunication. Sect. 1. — Censures sive Coercitioncs Ecclesiasticce. What spiritual Spikitual punishments (g) consist in withdrawing from punishments the baptized person a certain pri\'ilege, or certain pri- ***• vileges, which the church has given liim, or in wholly expelling him from the Christian communion. A simple ecclesiastical censure is the gentlest, — excommimication is the severest form of punishment. All classes of spiritual punishments known to this country, however, may be ranged under the general head or categoiy of censures — censur) Gibs. 1046. (2) Ayl. Tar. 413. Kol. Rep. ECCLESIASTICAL CEXSURES. 1371 Elizabeth, and In the year 1640, it was to be applied to pious and charitable uses ; and the Reformatio Legiim directed that it should be to the use of the poor of the parish where the offence was committed or the offender dwelled. And there was to be no commutation at all but for very weighty reasons and in cases very particular. And when commutation was made, it was to be with the privity and advice of the bishop. In Archbishop Whit- gifl's register we find that the commutation of penance without the bishop's privity was complained of in parlia- ment. And it was one of King William's injunctions, that commutation be not made but by the express order and direction of the bishop himself declared in open court. And by the Canons of 1640, if in any case the chancellor, commissary, or official, should commute penance without the privity of the bishop, he was at least to give a just account yearly to the bishop of all commutation money in that year, on pain of one year's suspension (r). In the reign of Queen Anne this matter was taken into Convocation consideration by the convocation, who made the folloA\ang i" Q»een regulations, viz. That no commutation of penance be here- after accepted or allowed of by any ecclesiastical judge, without an express consent given in writing by the bishop of the diocese or other ordinary having exempt jiu-isdiction, or by some person or persons to be especially deputed by them for that purpose ; and that all commutations, or pre- tended commutations, accepted or allowed otherwise than is hereby directed, be ipso facto null and void. And that no sura of money given or received for any commutation of penance, or any part thereof, shall be disposed of to any use without the like consent and direction in wiiting of the bishop or other ordinary having exempt jurisdiction, if the cause has been prosecuted in their courts ; or of the archdeacon if the cause has been prosecuted in his court. And all money received for commutation pursuant to the foregoing directions, shall be disposed of to pious and charitable uses by the respective ordinaries above named : whereof at the least one-third part shall by them be disjiosed of in the parish where the offenders dwell : and that a register be kept in every ecclesiastical court, of all such commutations, and of the ]iarticular uses to which such money has been apj^lied : and that the account so registered be every year laid before the bish )p or other ordinary exempt having episcopal jurisdiction, in order to (r) Gibs. 1045. 4 T 2 1372 DISCirLIXE OF THE CIIURCIT. Oughton's opinion. Case in 1735. Penance may be remitted. be audited hy tlicm : ami lliat any ecclesiastical judge or officer oftondiiig; in any oltlic premises be su.spended for three months for the said oHence(.s). Oughton says, generally commutation money is to be giyen to the poor ■where the offence was committed, or applied to other pious uses at the discretion of the judge {f). About the year 1735, Dr. Burn says, the Bishop of Chester cited his chancellor to the archbishop's court at York, to exhibit an account of the money receiyed for commutations, and to show cause ■why an inhilntion should not go against him, that for the future he should not pre- sume to dispose of any sum or sums received on that ac- count -without the consent of the bishop. In obedience to this, an account was exhibited ■without oath ; and that being objected to. a fuller -was exhibited upon oath. And upon the hearing several of the sums in the last account •were objected to as not allowable, and an inhibition ]n-ayed to the effect above. But the archbishop's chancellor re- fused to grant such inhibition, and was of opinion that the bishop could only oblige an account : and so dismissed the chancellor Avithout costs. It is expedient to make a special reference to some modern decisions on this sidrject. AVherc a party has been convicted of incest, penance lias been(?/) remitted where it was shown that the health of the party ordered to perform it would have been en- dangered thereby, and where the promoter expressed his conciu-rence with the prayer for such remis.sion. Lord Stowell said, " In the older canons, Avhich perhaps can liardly be said as carrying with them all their first autho- rity, a solennis penitentia is enjoined before the bishop of the diocese. This however, as I have just remarked, is now soflened down. Attending then to what I think is the most material point, the removing of such a scandal, and looking to the age and infirmity of the party, and what might be the consequence of such a punishment, the coiu't will not think it necessary to inflict the ])ul)lic penance; but condemn him in the ^m// costs of this pro- secution, accompanying this with the injunction that the same intercourse must not continue, but must be bond Jide and substantially removed." This was the case of a pai'ty proceeded against for incest. But where the (s) Gibs. 1046. (0 1 Ought. 213. (m) Chick V. Ramsdale, 1 Curt. 36 ; Burgess v. Burgess^ 1 Consist. 393. ECCLESIASTICAL CENSUKES. 1373 penance enjoined for defamation lias been to acknow- ledge the defamation and ask for the forgiveness of the party defamed in the vestry room before the clergyman and chnrcli wardens, the exact form of retractation of the defamatory words enjoined by the conrt has been com- pelled by the court (x). Where a writ de contumace capiendo, issued under 53 Schedule of Geo. 3, c. 127, expressed " that the defendant had been Ee^^^^enTo" the pronounced guilty of contumacy and contempt of the law party. and jurisdiction ecclesiastical in not having obeyed a decree made upon him to perform the usual penance in the parish church of St. M. X. in a certain cause of defamation," and it appeared that at the time the sentence was pro- nounced a schedule of penance was made out, which, by the practice of the Ecclesiastical Court, could not be de- livered to the defendant until he paid the costs of the suit : it was holden, that he ought to have had the decree exhi- bited to him in its more perfect form before he could be considered as being in contempt, especially as the costs Avere not mentioned in the significavit, and that he was consequently entitled to be discharged (y). But where an Party in con- application was made to set aside a writ de contumace t^"^?*^ ^or non- capiendo on the ground that the defendant had not been costs. admonished to take out a schedule of penance, and that he was sentenced to perform penance in the minister's house, which he had no right to enter — it appearing, nevertheless, that there was an order for the party to pay costs, for the not doing which he was in contempt, and for which in fact the significavit had issued — the applica- tion was rejected, for the sentence awarded payment of a precise sum, 25/. costs; and if the proceedings of the court had been, as Avas suggested, defective, the costs would not be thereby decreased i^z). In the Consistorial Court of Chichester, on the 17tli of June, 1856, the present judge of the Arches Court, then chancellor of the diocese, gave the following judg- ment, in which the question of penance is referred to(«) : (x) Courtail V. Hoinfray^ 2 which establishes tlie present Ilagg. 1; Thorp v. BrUhr^ 2 court for divorce and matrimonial Phill. 359 ; Cleaver v. Woodridge, causes (20 & 21 Vict. c. 85, supra, 2 Pliill. 3G2, note. p. 829) ; but that act, tliough it ()/) Ih'x V. Maby, 3 D. & R. took away tlie power of tlie cccle- 570, per Lord Tenterden. siastical court to pronounce the (z) Khujlon V. Hack, 7 Ad. & nullity of the marriage, left un- Ell. 708, per Lord Denman ; S. C. touched the jurisdiction to cen- 3 Nev. & Per, G. sure the incestuous coliabitation. {ft) This judgment was deli- Vide supra, pp. 738, 892. vered before the act was passed 1374 DISCirLINE OF THE CHURCH. nandall v. " Tliis is a proceeding of great importance, both as ^'^'^^^^ a«e money to some other (n) Morris v. Ogdcn, L. R., 4 ecclesiastical or ciiaritable pur- C. P. 687. pose. (o) Re Thakeham Sequestra- (p) The origin of this term is 1378 DISCirLINE OF THE CIIUIICII. When the writ of sequestra- tion issues. Sequestration as a punish- ment. Jurisdiction of the Ecclesiastical Courts say in their lvcport((7) : " Sequestrations issue under the following circumstances: 1st, In obedience to writs from the com'ts of common law, Avhereby the bishop is directed to lavj certain sums in pur- suance of tlie statutes regulating Queen's Anne's bounty; 2dly, Under the various provisions contained in the sta- tute 57 Geo. 3, c. 99, and [1, & 2 Vict. c. 106, which has rei)ealed 57 Geo. 3,] and in jBai^s of outhiwry; 3dly, In j^ursuance of decrees or orders emanating from the eccle- siastical courts, in cases where clergymen are proceeded against before those jm-isdictions ; and, lastly, during va- cancies. " In all these cases, we apprehend the law clearly to be, that before any proportion of the profits of the benefice can be applied in payment of debts, or for any other pur- pose, the service of the church must first be provided for, out of those profits; and when this has been done, the in the glebe, and the chancel also repairs, ought to be sustained and The light of nominating the seques- trator lies with the bishop ; but when the sequestration issues on account of debts, it may often happen that the sequestration is committed to the creditor, or his nominee; in all other cases, the bishop exercises his right of nomina- tion by selecting according to his o^^^l judgment. " By the existing law, the sequestrator has no power to compound for tithes ; and his right of action for the re- covery of the profits of the benefice is most inconveniently restncted." Sequestration, as a punishment, is inflicted under the powers of 1 & 2 Vict. c. 106, s. 54, for non-residence (r), and of 3 & 4 Vict. c. 33, s. 4, for the offences there speci- fied (..rd77; Morris (d) Re Hind, 1 Tvrw. 347 ; 1 V, Ofjden, L. 11., 4 C. P. 687. C. & J. 389. (y) God. Append. 14. (e) Ecx v. Poioell, 1 Mees. & (2) Johns. 121. Wol.'^. 321 ; Rrx v. Armstrong, 3 (a) God. Append. 14. C, M. & K. 205. (6) Watson, c. 30. 13S0 DISCIPLINE OF THE CHURCH. Debt, Sometimes a sequestration Issues upon the queen's writ to the bisho]) to satisfy the debts of tlie incumbent (y). And this is, where a judgment has been obtained against a clergyman, and upon ajieri fdcu/s, directed to the sheriff to levy the debt and damages, he returns that the defendant is a clerk beneficed having no lay fee. AVhereupon a leonri facias is directed to the l)ishop to levy the same of his ecclesiastical goods, and by virtue thereof the profits of the benefice should be sequestered. And in this case the bisho}) may name the sequestrators himself, or may grant the sequestration to such persons as shall be named by the party who obtained the writ. If the sequestration be laid and executed before the day of the return of the writ, the mean profits may be taken by virtue of the sequestration, after the Avrit is made returnable, otherwise not(*7). Appeal. Stratford. " If an appeal be made against a sentence of sequestration, and lawfidly prosecuted, the party seques- tered shall enjoy the profits pending the appeal "(A). Case of trans- The writ must be issued by the bishop, where the living f erred portions jg gituate in a portion of his diocese recently transferred to Re"-istry oif the hi^j even wheu the registrar is the officer to the former old diocese bishop. Thus, the archdeaconry of Dorset was, in 1836, retains the transferred from the diocese of Bristol to the diocese of oVthc new ^^ Salisbury ; and S., who had been registrar of the arch- diocese issues deaconry under the Bishop of Bristol, continued to act as ^^ registrar under the Bishop of Salisbury. In 1840, a writ of sequestration against the rector of a parish in the arch- deaconry was directed to the then Bishop of Salisbiuy, and delivered to S. Sequestrators Avere appointed under the seal of the Bishop of Salisbury, and the writ remained in the office of S. It was holden that the present Bishop of Salisbury was liable to return the writ (i). Nature of writ. The sequestration (/c) is a continuing execution, and the sequestrator must continue in possession until the debt is levied, and the bishop must return not the writ but the amount levied from time to time. The history and nature of the writ are very clearly Arhuchlew stated in Arbuckle v. Cotvtan{l). This case was as Cowtan. f(jllo,ys._ " By articles of agreement in writing, dated the 17th (/) Wats. c. 30. L. R. 478. (r/) 3 Bl. Com. 418. (k) Marsh v. Fawcett, 2 H. BI. ('//) Lind. 104. 582. (0 Phelps v. St. John, 3 C. (/) 3 Bos. & Pull. 322, 326. ECCLESIASTICAL CENSURES. 1381 " day of March, 1785, between the Rev. Henry Poole, clerk, then and still being vicar of the parish of Hernhill, in the county of Kent, of the one part, and the above-named defendant on the other part, it Avas agreed, that from Michaelmas 1784 the said Henry Poole, in consideration of the said defendant paying him 90/. a-year, on or before the 10th of December, and 30/. a-year to the curate, in two payments, viz. on the 9th of February and the 9 th of August, and one guinea to the widows of clergymen in Kent, and 17^. in part of the tenths and the land-tax and parochial rates, should invest the said defendant with every claim he had as vicar of HernhiU aforesaid on the several occupiers of lands, wood, fruit, &c., together with the vicarage house, garden, orchard and glebe land, except all surplice fees and churchyard dues ; but Avith proviso that necessary repairs to the vicarage house, barn, stable, and fences of the yard, and garden gates and styles, should be at the costs and charges of the said Henry Poole, as Avell as any land-tax or poor's rates other than Avhat the said vicarage Avas then charged with ; and that the said de- fendant should suffer one John Groombridge, the then tenant of the vicarage house, to continue as long as he paid the yearly rent of 8/. ; and that the said agreement should continue until either of the parties thereto should giA-e notice to the contrary three months at least before Michaelmas, at Avhich time of the year and no other the said agreement should cease and determine." By A^rtue of this agreement, the defendant, on the 17 th day of March, 1785, aforesaid, entered upon the said premises in the said agreement mentioned, and hath continued from thence hitherto to hold and enjoy the same, under and by \nrtue of the said agreement, and hath duly performed the said agreement in all things therein contained on his part to be done up to Michaelmas, 1797. On the 3rd day of October, 1797, the said Henry Poole, being a prisoner in the custody of the Avarden of his majesty's prison of the Fleet, at the suit of divers persons, for debts amounting in the Avhole to a less sum than 1,200/., and being entitled to the benefit of the act of parliament passed in the 37 th year of his present majesty's reign, intituled, ' An Act for the relief of certain Insolvent Debtors,' he the said Hemy Poole Avas, on the said 3rd day of October, 1797, at the general quarter sessions of the peace for the city of Lon- don, duly discharged from his said imprisonment by virtue of the said act, and did then and there deliver in a schedule of his real and personal estate, according to the directions of the said act, in Avhich schedule the said Henry Poole 1382 DISCIPLINE OF THE CIIUKCH. Arhiiclile v. Coirtan. How debts may be en- forced against ecclesiastics at common law. " did (amoiifjst oilier ]iarticulars of liis estate and effects) insert tlic foliowiii<^ article, viz. — ' The vicarage of Hern- liill in Kent, tlie tithes of which liave been paid to me to j\Iichaclinas, 1790, which I have appHed for the su])poi*t of myself and family.' By a deed-poll, dated the 10th day of February, 1798, William liix, Esq., tlien being clerk of the peace for the city of London, did by virtue of the said act assign and convey all and singular the estate and elfects of the said Henry Poole to the above-named plain- tiffs, in trust, for the benefit of themselves and the rest of the creditors of the said Henry Poole. On the 11th of May, 1795, the said Henry Poole was directed by the Archbishop of Canterbury to augment the curate's salary from 30/. to 35/. a-year, whereupon the said defendant was requested to pay the additional 51., and to deduct it from the 90/. annual rent ; so that the net rent payable by the said defendant fi'om Michaelmas, 1797, was 85/. a-year only. The question reserved for the opinion of the court w^as, whether under the circumstances above stated the plaintiffs were entitled to recover any, and what, sum of money from the defendant in this action ? If the coiu't should be of opinion that the plaintiffs were entitled to recover any sum of money from the defendant, a verdict to be entered for the plaintiffs for that sum, sidjject to the further directions of the Court of Chancery. If, on the contrary, the court should be of opinion that the plaintiffs wei*e not entitled to recover anything in this action, then a verdict to be entered for the defendant, subject as aforesaid. " Lord Alvanley, C. J. — With respect to all sums of money which had become due to the insolvent at the time when he took the benefit of the Insolvent Act, it is ad- mitted that the plaintiffs are entitled to recover. Un- questionably every right and interest in possession, which liad vested in the insolvent ])revious to the passing of the 37th of Geo. 3, c. 112, was by that act immediately trans- ferred to the assignees ; and whatever action might have been brought by the insolvent, may lie maintained l)y the assignees. So long as the defendant continued in the occupation of the vicarage, he was liable to the payment of the stipulated sum ; as far, therefore, as the action extends to the arrears which were due at the time when the insolvent took the benefit of the act, the claim of the assignees may be maintained. Supposing a commission of banki-u])t to extend to persons in holy orders, still the question will be. Whether the assignees under this Insol- vent Act have succeeded to the rig-hts of the insolvent in ECCLESIASTICAL CENSURES. 1383 " all the revenues of the church of which he was vicar? for it is impossible to contend that thej are entitled under the agreement, ■v\dthout also contending that if there had been no agreement they would have been in the same situation as the vicar himself, and would have been entitled to demand from the possessors of the glebe lands and from the terre-tenants of the parish the rent and tithes due to the vicar of Hernhill. In short, it must be argued, that although the Insolvent Act does not expressly make the assignees vicars, yet that it invests them with all the eccle- siastical rights of the vicar. It is material to consider hoAv the common laAV stood with respect to the rights with which creditors of persons in holy orders and beneficed clerks were clothed. No one is ignorant that, at common laAV, land could not be taken into the hands of the creditor himself; the profits only could be taken by a writ of levari facias directed to the sheriff, who was thereby em- powered to levy the profits arising fi'om time to time for the benefit of the creditor. The common law was ex- tremely jealous of obti'uding any new tenant on the lord ; it did not allow, therefore, any possession to be taken under the levari facias, but only the profits to be levied. By the statute of Westm. 2, which gave the writ of elegit, an alteration was introduced in this respect. By that act the creditor was permitted to make use of a process by which he was put into possession of the land itself. At all times, however, the king was entitled to take posses- sion under an extent, for the objection to changing the tenant did not apply to the case of the king. His right was independent of the statute of Westm. 2 : but it must not be forgotten, that, while the common law remained unaltered, the king never claimed any authority to take ])Ossession of ecclesiastical rights or dues by the hands of his own ministers the sheriffs. He was always obliged to have recourse to a writ to the bishop, under which the lands were sequestered. Under that writ possession was not given, but the ordinary was bound to take care that out of the revenues of the church the duties of the church should be provided for. We find in 2 Inst. p. 4, that Lord Coke says, ' If a person be bound in a recogni- zance in the chancery, or in any other court, &c., and he pay not the sum at the day, by the common law, if the person had nothing but ecclesiastical goods, the re- cognizee could not have had a levari facias to the sheriff to levy the same of those goods, but the writ ought to be dii-ected to the bishop of the diocese to levy the same of his ecclesiastical goods.' In Gilbert on Executions, 1384 DISCIPLINE OF THE CHURCH. ArbiicMe v. " p- 40, it IS gaid, 'Eln/if does not lie of tlic globe belong- (hwtan. ing to the pai'soimge or vicarage, nor to the churcliyard ; How debts for these are each solum Deo consecratum ;^ and for this forcedlt"" ^"^ ^^^^^ Jenkins' Re]). 207, wliere the same doctrine is common law. laid down ; and also that no capias or Jirri facias can issue against a clerk if it a))])oars that he has no lay fee, but only a levari facias to the bishop. Jenkins refers to two cases fi'om the Year-books, viz. 29 Edw. 3, 44, and 21 Edw. 4, 45. A^'e have therefore complete authority for sapng, that at common law no process ever issued to a sheriff to levy on ecclesiastical property the debt due in an action, and Gilbert is well warranted in saying that no elcf/it lies. Sir Wm. Blackstone, in the third volume of the Commentaries, p. 418, gives an account of the ^\Tit of sequestration to the bishop of the diocese, which he says is in the nature of a levari or fieri facias to levy the debt and damages de bonis ecclesiasticis, which are not to be touched by lay hands. The same account is given of the writ in Burn's Eccl. Law, tit. " Sequestration." There has been much argument respecting the power which a clergyman had over his own benefice. It has never been contended, however, that a parson was ever seised in fee ; he had only a qualified right in his living, and at common law could make no lease to bind his suc- cessor, unless confirmed by the patron and ordinary. In the reigns of Henry the Eighth and Elizabeth, several statutes were passed, introducing further restrictions with respect to the power of ecclesiastics over their benefices. Until the 13 Eliz. c. 20, they all appear to have been made for the benefit of the successor : so great was the anxiety of the legislature, however, to prevent ecclesiastics from divesting their own rights, that the statute of 13 Eliz. c. 20, explained by 18 Eliz. c. 11, empowers them to take advantage of their own non-residence to defeat leases made by themselves. Such has been determined to be the effect of that statute in the late case o^ Frof/morton d. Fleminfj v. Scott (m). It is now clearly established that the half-]iay of an officer is not assignable, and unques- tionably any salary paid for the performance of a ])ublic dutv ought not to be perverted to other uses than those for Avhich it is intended. Notwithstanding the case of Steuart v. 2\icher {n), in which it was held that the half- pay of an officer was assignable in equity, it was ex- pressly decided in Flarty v. Odium, that it was not assign- able at all, which decision met with general approbation. This doctrine is very analogous to that which has been (;«) 2 East, 4G7. («) 2 Bla. 1137. ECCLESIASTICAL CENSURES. 1385 " adopted with respect to ecclesiastics ; the same policy is applicable to both cases. Having considered in what manner debts mig-ht be enforced ao;ainst ecclesiastics at common law, I will now consider whether the statutes relative to bankrupts and insolvents have introduced any alteration in this respect. That a private creditor should Under the be able to avail himself of a writ of sequestration for the earlier insol- purpose of satisfying his debt out of the benefice of a clergy- man, and yet that where the legislature has vested the whole property of the debtor in assignees for the benefit of the creditors in general, those assignees should not have any power to affect his benefice, would certainly be an anomaly in the laAv. Whether there be any means of ob^aating this anomaly, I w^ill not pretend to say. Lord HardAvicke, in the case JEx parte Meymot (o), abstains from laying down decisively in what manner the claims of the assig- nees upon such property might be made available. He seems, however, to think, that in a Avrit to the bishop, the assignees might have the same remedy as any other cre- ditor. But he never hints at an idea that they coidd not take possession of the benefice in the same manner as they might of lay property. The only question in that case was, whether a clergyman could be made a banki-upt. ]\Ir. Wilbraham, in arguing for the negative, insisted that his li\4ng could not be assigned by the commission, for that the assignees must take all or none ; and if they took all, nothing would be left to provide for the service of the cure. Lord HardAvicke, who inclined to think that a cler- gyman might be a bankrupt, after noticing this objection, and stating the common rule Avith respect to sequestration, says, ' I do not see (but I give no opinion) why the same method may not be folloAved under the commission of bankruptcy, for it does not appear to me that this would supersede the bishop's authority.' As a long time has elapsed since this opinion Avas throAvn out, during Avhich some clergymen most probably liaA^e rendered themselves obnoxious to commissions of bankrujjt, I desired inquiries to be made respecting the mode of proceeding adopted under those commissions. But these inquiries have not produced any instance in Avhich proceedings against a benefice have taken place. Nor shall I undertake to point out in Avhat manner the assignees in this case must proceed. But although there may be difficulties in the mode of proceeding, avc are not therefore to hold that the nature of the property Avhich a clergyman has in his bene- fice is changed by the operation of an insolvent act, or (o) 1 Atk. 19G. P. VOL. II. 4 u 13SG DISCIPLINE OF THE CllUUCir. ,1 rhuckle v. Cowtan. Sequestration of ecclesi- astical bene- fice, under ])rescnt hank- ruptcy act. Case in which a later takes preceilenee of an earlier se- questration. " tliat the assignees under such an act will be entitled to demand and receive ecclesiastical dues. The agreement in this case is a mere letter of attorney given by the clerjivman to the defendant. If this agreement could be deemed a lease, it would he void upon the iiice of it. It would be a lease on the jiarsonage-honse, with a covenant that llie new tenant should occupy: this woidd hefelo de se. Whatever advantage might be derived through the inten'ention of the ordinary, 1 am of opinion that by no conveyance of the i^arty himself could he divest himself of his Ijcnefice. The same reasons which have induced the conunon law to prevent execution against a benefice l)y the hands of the king's civil ministers, may be urged with equal force against the action now brought by the assignees. We are therefore of opinion that the action is not maintainable so far as it relates to the rent which has accrued subsequent to the assignment under the Insolvent Act." By " The Bankruptcy Act, 1869," 32 & 33 Vict. c. 71, s. 88, " Where a bankrupt is a beneficed clergyman, the trustee may apjily for a sequestration of the profits of the benefice, and the certificate of the appointment of the trustee shall be sufficient authority for the granting of sequestration without any writ or other proceeding, and the same shall accordingly be issued as on a Avrit of levari facias founded on a judgment against the bankrupt, and shall ha\e ])riority over any other sequestration issued after the commencement of the bankniptcy, except a sequestration issued before the date of the order of adju- dication by or on behalf of a person Avho at the time of the issue thereof had not notice of an act of bankruptcy com- mitted by the bankru])t, and available against him for adjudication; but the sequestrator shall allow out of the )>rofits of the benefice to the bankrujit, while he performs the duties of the parish or place, such an annual siun, jiayable quarterly, as the bishop of the diocese in which the benefice is situate directs ; and the bisho]) may appoint to the bankrupt such or the like sti])end as he might by law have a])pointed to a curate duly licensed to serve the benefice in case the bankrui)t had been non-resident." The following decisions relate to the right of prionty in cases where several sequestrations have been issued. Sequestration when part of an ecclesiastical punishment takes precedence, though later in date, of a sequestration issued at the instance of a creditor. Thus where upon a writ o^ scfjuesirari facias, issued from the Court of (Queen's Bench at the suit of a creditor, a sequestration was duly issued and published In- the bishop, under which the ECCLESIASTICAL CENSUSES. 1387 sequestrator ajopointcd by him entered into the rectory, and received the profits of it ; and where, aftencards, and before the creditor's claim was satisfied, or the sequestra- tion was amoved, the bishop, in pursuance of a sentence of suspension for eighteen months, duly adjudged in the Ecclesiastical Court, under the Church Discipline Act, against the same rector, issued and published another sequestration appointing another sequestrator, — It was holden, that the effect of the first sequestration Avas sus- pended during the continuance of the second, so that, during that time, the creditor could not call upon the bishop to account for any of the profits of the living (o). As a general rule, the law requires that when several Writs of se- wi-its of levari facias are delivered to the bishop's officer, questration ^ he should issue the writs of sequestration thereon in the order in wbii li order of time in which the writs of levari facias were de- writs of levari livered to him to be executed, and not according to the /''j'."*' ^^ date of their teste. Where, therefore, writs of levari facias issued against W. were delivered to the deputy registrar of the bishop in 1847, with directions to suspend the execution of them until further instructions, and with a request that notice should be given of any subsequent writ being lodged and sequestration applied for; and on the 30th March, 1853, W. having become insolvent, the petition of the pro- visional assignee Avas lodged with the deputy registrar to be executed, and with directions that sequestration thereon should be immediately issued, and notice thereof having been given by the deputy registrar, directions were given on the 31st March to issue sequestration upon the writs of levari facias, — It was holden, that the petition of the provisional assignee was entitled to priority over the writs of levari facias ( j) ). It was holden by the Exchequer Chamber, affirming Sequestration the judgment of the Queen's Bench, that if a judgment of jmlgiuent creditor of a beneficed clergyman issue a sequestration, entitled to and, the clergyman becoming bankrupt, his assignee under priority over the bankniptcy issue a second sequestration, the former sequestration . A •' .,, . 1. T ^11 • •. by a-ssitrnee ot sequestration will remain vahd and have priority, even i,ankrupt though it Avcre not puljlished till after the filing of the ineumbent. petition in bankru])tcy (y). It is usual for the ecclesiastical judge to take bond of Bond of sequestrator. (o) Bunter v. Cresmell, 14 Jm-. (N. S.) Q. B. 93, 334. See remarks 692. of Lord Stowell in Carnphell v. (p)Sturgisy. Bishop of London, Whitehead, cited in Huhbard v. 3 Jur. 864. Bcckford, 1 Consist. 3U7. () Cro. Eliz. 775. (7) Hob. 149; Cro. Car. 05; Dy. 292, 353. 13DG DISCIPLINE OF TIIK CllUIiCII. Causes of lie- 2. Illitrrdct/. — AVliicIi, Lord II()l)art says, subjects a privjitum lit person to (lci)rivatioii, bcintr iiu/l/nn in se(r). aud by stiitute. •^- ff'""i <>f ^'^H''- — Xow regulated l)y 1.'3 Eliz. c. 12, wliicli declares admissions, institutions, and inductions, contrary to the act, void(s). 4. Simon}/ — Was a ciime at the common law {t), and is now regulated by 31 Eliz. c. 6, which declares the presenta- tion, institution, and induction so obtained, idlvrhj void{}i). 5. Pliirdliti/. — Formerly by 21 Hen. 8, c. 13, and now ])y 1 & 2 Vict. c. 106, s. 11 (.r), but before either statute the first benefice Avas void by cession, if the parson took a second without dispensation (y). Yet, though the patron might present thereto if he would, he was not compella])le to take notice till deprivation (r). Plurality was forbidden by the ancient canon law((7), and by the constitutions of Othobon and Archbishop Peccham {h). 6. Conviction of Treason, JShirder, or Felony, hij the Temporal Courts. — -On which conviction the ecclesiastical courts may build a sentence of deprivation (c). 7. Incumbent refusing to use the Book of Common Prayer, or Speaking or Preaching anything in Deroga- tion thereof, or using any other Rite or Ceremony , being thereof twice convicted, — shall ipso facto be de])rived(r/). 8. Incumbent not publicly reading the Thirty-nine Articles of Religion in the Church of his Benefice, ivith Declaration of Assent, — shall absolutely forfeit his bene- fice (e). 9. Incumbent advisedly maintaining or affirming any Doctrine contrary to the Thirty-nine Articles, and when convcnted before the Bishop or Commissioners, j)ersisting therein, and being thereof law fdly convicted,— is cause for the ordinary to deprive by sentence (y). 10. Infidelity and Miscreancy. — Under which heads may be contained atheism, blasphemy, heresy, schism, and the like, which the laws of the church have always punished with dei)rlvation (^). The jurisdiction of the Ecclesiastical Court, In these cases, is reserved by 29 Car. 2, c. 9, Avhich takes away the writ de heretico comburendo. {r) Hob. 149. (c) Hob. 121 ; see 33 & 34 Is) March, 110; Gibs. 10G8. Vict. c. 23, s. 2. (0 Cro. Eliz. 686, 789 ; Cro. (d) 2 & 3 Edw. G, c. 1 ; and Car. 361. 1 Eliz. c. 2. F/r/e si/p-a, pp. 957, (m) Vide supra, p. 1110. 1077, 1102. (.c) Vide supra, p. 1175. (f) 28 & 29 Vict. c. 122, s. 7. (y) F. N. 15. 34 L. ( f) 13 Eiiz. c. 12, s. 2; Can. 38 (2) Cro. Car. 3.57. of 1003. Vide supra, \i\x WdQ,— (a) 6". 1, G, 15-, X. .3,4,3. 1102. {h) Ath. 12G; Lind. 13G; Gibs. {0) Gibs. 1068 ; 5 Co. 58 b; 903, 905, 913. Spccofs case, 5 Co. 2, 54. ECCLESIASTICAL CENSURES. 1397 11. Incontinence (^i). 12. Drunkenness (k). 13. Disobedience to the Orders and Constitutions made for the Government of the Church. — Agreed by all the justices (/). 14. Conviction of Perjury in the Temporal or Eccle- siastical Court {m). 15. Non-payment of Tenths, according to 26 Hen. 8, c. 3, s. 15. Certified by the Bishop. — By 2 & 3 Edw. 6, c. 20, the incimibent was to be adjudged ipso facto de- })rived of that benefice, whereof such certificate was made. But now by 3 Geo. 1, c. 10, s. 2, the defaulter is to forfeit double the value of the tenths ; and the bishop is dis- charged from receiving them, and a collector appointed in his room(w). 16. Dilapidation or Alienation. — Lord Coke says, that dilapidation of ecclesiastical palaces, houses, and buildings, is a good cause of deprivation (o). But Dr. Gibson doubts Avhether the punishment was ever inflicted, and observes that the books of canon law speak oi alienations only(/>). 17. Non-residence. II. Causes of Deprivation by the Canon Law. 1. Disclosing Confessions — From anger, hatred, or even fear of death, was punished with degradation («^). 2. Wearing Arms — Was punished with excommunica- tion, and if the party remained contumacious, he was ipso facto deprived (r). 3. Non-residence (^s\ 4. Demanding Money for Sacraments — Was considered as a species of simony, by C. 1, 1, 103, and punished as such by Otho(^). 5. Obstinacy in an Intruder, where Institution had not been obtained, or tohere the prior Incumbent was proved alive — Was punished by Othobon with the loss of all bene- fices within the kingdom (?^). (0 6 Co. 13 b ; Hob. 291 ; Cro. Edw. 3, 16 ; 2 Hen. 4, 3 ; 9 Edw. Eliz. 41 ; Bonwcll v. Bhhop of 4, 34 ; S. P. Godb. 279 ; Bagqe's London, 14 Moo. P. C. 395. case, 1 1 Co. 99; vide infra, I'ait V., {k) 2 Browiil. 37 ; Parker's Chap. V. case, 1 Brownl. 70; and Can. {p) Cans. 10, 2, 8, 12, 2, 13; Apost. 41. Inst. J. C. 2, 27 ; Lind. 148. (0 In 2 Jac. 1 ; Cro. Jac. 37. {q) Walter, Lind. 354. (m) 5 Edw. 4, 3 ; 5 Co. 58 ; (r) Othobon, Ath. 85. Ayl. Par. 208 ; (Jibs. 10G8. (.s) Htejilianus, Lind. 04; X. 1, (n) Vide infra. Part V., Chap. 28, 2 ; (libs. s. 10. VIII. {t) At]). 81. (o) 3Inst.p.204,andqnotcs29 («) Ath. 90 ; Gibs. 781. 13U8 DISCIPLINE OF THE CnUIiCII. Ciuisos of (Ic- 6. Vlohitliir/ a Sancf.uari/ — AVas puiiislicd by Otliobon privation by -w'lih excoiiiinunication, ipso facto ; and if satisfaction were not made within a limited time, with deprivation (??). 7. 3larri(if/e and, a fortiuri, Bi(/(rmi/. — By 31 Hen. 8, c. 14, s. 9, now repealed, a priest keeping company with a Avife was to suffer as a felon (.r). 8. Conciihinage — AVas i)unished by degradation by Alexander II. (y). And by 31 Hen. 8, c. 14, s. 10, now repealed, a priest keeping a concubine forfeited his goods, chattels, and ])romotions, and was to suffer imprisonment at the king's will. 9. Contumacy in wearing an irregular Habit — After monition was punished Avith suspension, uh officio et henc- Jicio, by Archbishop Stratford, Avhicli could only be re- deemed by payment of a fifth part of the profits of the benefice for one year to the poor(2'). 10. Officiating after Excommunication without Abso- lution (a). 11. Keeping solemn Fasts other titan such as are ap- pointed by Law — Either publicly or privately, without the licence and direction of the bishop under his hand and seal, or being wittingly present at any of them, is punished with suspension for the first fault, excommuni- cation for the second, and deposition from the ministry for the third (i). By whom to By Can. 122 of 1603, '^ AAlien any minister is com- be prouounced. plained of in any ecclesiastical couil, belonging to any bishop of his province, for any ciime, the chancellor, com- missary, official, or any other having ecclesiastical juris- diction to whom it shall appertain, shall expedite the cause by processes and other proceedings against him : and upon contumacy continuing, excommunicate him. But if he appear, and submit himself to the course of law, then the matter being ready for sentence, and the merits of his offence exacting by law, either deprivation from his living, or deposition from the ministry, no such sentence shall be pronounced by any person whosoever, but only by the Ijishop, with the assistance of his chancellor and dean (if they may conveniently 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 {v) Ath. 101. (x) Liiid. 1-J8 ; Otlio. Ath. 38 ; X. 3, 3; Dy. 133. iy) Dist. 81, c. 16. See also Lind. 10, 127; Otho. Ath. 47; Othob. Ath. 93. {z) Liiul. 122. (fl) X. 5, 27, 3 and G ; Gibs. 1049. ih) Can. 72 of 1G03. ECCLESIASTICAL CENSURES. 1399 other at least grave ministers and preaclierSj to he called hy the hishop, when the court is kept in other places."' But the judge of the Court of Arches has authority to de- May be by prive without the presence of the bishop or archbishop (e). i"'^|j*5 °^ Sect. 7. — Degradation {d). Degradation is an ecclesiastical censure, whereby a cler- gyman is depnved of his holy orders which formerly he had, as of priest or deacon. And by the canon law, this may be done two ways: either summarily, or by word only; or solemnly, as by divesting the party degraded of the ornaments and ensigns of his order or degree. Which solemn degradation was anciently perfonned in this manner, as is set forth in the sixth book of the Decre- tals. If the offender was a person in inferior orders, then the bishop of the diocese alone ; if in higher orders, as pi-iest or deacon, then the bishop of the diocese, together Axath a certain number of other bishops, sent for the party to come before them. He was brought in, having on his sacred robes, and having in his hands a book, vessel or other instrument or ornament appertaining to his order, as if he were about to officiate in his function. Then the bishop pubhcly took away from liim, one by one, the said instruments and vestments belonging to his office, saying to this effect. This and this we take from thee, and do de])rive thee of the honour of priesthood ; and, finally, in taking away the last sacerdotal vestment, sa^-ing thus. By the authority of God Almighty, the Father, the Son, and the Holy Ghost, and of us, we do take fi-om thee the clerical habit, and do depose, degrade, despoil, and deprive thee of all order, benefit, and privilege of the clergy. And this seems to have been done in the most dis- graceful manner possible ; of which there seems to be some remains, in the common expression of "pulling a man's gown over his ears. A deposition, or degradation from the ministry, neces- sarily includes deprivation of l^encfice ; though a man may be deprived of his benefice without being degraded from the ministry. The statute 23 Hen. 8, c. 1, s. 6, now re- pealed, reserved to the ordinary the power of degrading (c) Buninync v. Free, 1 Add. Moo. P. C. 395; Bhliop of Nor- 405 ; 2 Ilagg. 40G ; Ilussry v. loieh v. Pearcc, L. 11., 2 Adm. & RadcUffe, 5 Jiir., N. S. 1014; Eccl. 281. Bislioj^t of London v. Bonwell, 14 (). By a constitution of Archbishop Stratford : '' Excom- Excommuni- municate persons shall be inhiljited to the commerce and ^=»^" P^*'*'"l comnumion of the faithful ; and they Avho communicate (.{jj'i'stian "oi Avith them shall be punished by ecclesiastical censure" (<7). muniou. Commerce.~\ — That is, buying or selling, or other inter- change of Avares or merchandize (r). 7/y Ecclesiastical Censure.~\ — That is, by the lesser ex- communication, if they have not been admonished to desist ; and by the greater excommunication, if they have been admonished, and liaA^e not desisted (s). And by Art. 33, " That person Avhich by open denun- ciation of the church is rightly cut off from the unity of the church, and excommunicated, ought to be taken, of {I) Csa^GS tempore Hardwicke, Curt. 692; 4 Moo. P. C. 104; 19U; 1 liurr. 244. supj-a, p. 1251; Tltchmarsh v. (/«) flibs. 1049. Clicqyman, 3 Notes of Cases, 387. («) Gib.s. 1()4G, 1048; Lind. {p) Gibs. 1048; G"., 5, 11, 5. 348 ; acd vide iu/ra, 53 Geo. 3, (q) Lind. 2GG. c. 127. (/•) Ibid. (rt) Vide MaUin v. Escott, 2 (.s) Ibid. r. VOL. II. 4 X coin- 1402 DISCIPLINE OF THE CIIUKCII. Exconiinuni- cate person tiepiived of Christiau com- iiumioii. To be kept out of the church. To be publicly denounced every six months. the whole muhltude of the faithful, as an heathen and publiciui ; until he be oi)cnly reconciled by penance, and received into the church by a judge that hath authority thereunto." And this is according to the ancient rule of the church : And it was fiu'ther ordained by many other ancient con- stitutions of the cluu'ch, that if a person excomnimiicated in one city or diocese went to another, whoever received him to conmiunion, should be also excommunicate : for which reason no strangers were to be received to com- munion, till they showed their letters of recommendation. This rule was incorporated into our law by the council of London, in the year 1126, that no person shall presume to receive to communion any stranger excommunicate ; and if any shall knowingly do so, he himself shall be de- prived of Clmstian communion (/). By Can. 85 of 1603, " The churchwardens or questmen especially shall see that all persons excommunicated, and so denounced, be kept out of the church." And if a clergijman presume to officiate, after he is excommunicated, the canon law orders him to be de- prived (?^). In the ancient church, the sentence of the greater ex- communication was solemnly promulged four times in the year ; with candles lighted, bells tolling, the cross and other solemnities (:r). By Can. 65, " All ordinaries shall, in their several jurisdictions, carefully see and give order, that as well those who for obstinate refusing to frequent divine service established by ])ublic authority within this realm of Eng- land, as those also (especially those of the better sort and condition) who for notorious contumacy or other notable crimes stand lawfully excommunicate (unless within three months immediately after the said sentence of excommu- nication pronounced against them, they reform themselves, and obtain the benefit of absolution,) be every six months ensuing, as well in the parish church as in the cathedral church of the dioceses in which they remain, by the minister openly in time of diWne ser\ace upon some Sun- day, denounced and declared excommunicate, that others may be thereby both admonished to refi'ain their company and society, and excited the rather to ])rocure out a writ de excommunicato cajjiendo, thereby to bring and reduce (0 Gibs. 1049. (m) Gibs. 1049; X. 5, 27, 3 and 6. (x) " Candelis accensi-s et piil- satis campanis, cum cruce et aliis solennitatibus, prout decet." — Liud. 355. ECCLESIASTICAL CENSURES. 1403 tliem into due order and obedience. Likewise the regis- ter of every ecclesiastical court, shall yearly, between JNIichaelmas and Christmas, duly certify the archbishop of the province of all and singular the premises afore- said." Lord Coke says, none can certify excommunication but Who may only the bishop, unless the bishop be beyond sea or in ^^^ify excom- parts remote ; or one that has ordinary jurisdiction, and is immediate officer to the king's courts ; as the arch- deacon of Richmond, or the dean and chapter in time of vacation. Btit in ancient time, every official or commis- sary might testify excommunication to the king's court ; and for the mischief that ensued thereupon it was ordained by parliament, that none shoidd testify excommunication but the bishop only (y). Of this power, as restrained to the bishop, Lindwood writes thus : At the request of inferior prelates, the king- uses not to write for the taking of excommunicates. A\niei'efoi-e, if any be excommunicated by a person inferior to the bishop, as by the dean, or archdeacon, the invoca- tion of the king's majesty ought to be made by the bishop ; for they who are inferior to bishops cannot call in the secular arm, but the bishops shall execute their sentences ; and if the bishops will not do this, they may be compelled thereunto by the archbishop (^). The rule of the canon law is, that an excommunicate May not be person shall not be presented to a benefice ; and he who pi"<^scnted to a knowingly shall present an excommunicate person, shall be suspended from presenting to any benefice, until he shall have obtained absolution («). Whatever may have been the civil disqualifications incident to excommunica- tion, they are now removed by 53 Geo. 3, c. 127. By Can. 68, " If the minister refuse to bury any corpse, 'Mny not have except the party deceased were denounced excommuni- ''"''"^I office. Gated by the greater excommunication, for some grievous and notorious crime, and no man able to testify of his repentance ; he shall be suspended by the bishop from his ministry for the space of three months" (6). And by the rubric in the Book of Common Prayer, The burial office shall Jiot be used for any that die excom- municate. Upon this head it is proper to take notice of a confusion Writ de px- whicli runs through almost all the books, by reason of the communU-ato cajJi (y) 1 Tnst. 134. (h) Vide Mast hi v. Escott, 2 (2) Liiul. 360. Curt. 692 ; 4 Moo. P. C. 104 ; (a) Gibs. lOoO. p. 1251, su2va. 4X2 1404 1)I>>C'ii'Li.m: of tiii: ciuKCir. Writ //r ^j-- ainl)i' tion doth proceed upon some cause or contempt of some specified in original matter of heresy, or refusing to have his child sxjii'Jtcavtt. baptized, or to receive the holy communion as it is now commonly used to be received in the Church of England, or to come to divine service now commonly nsed in the said Church of lilngland, or ciTor in matters of religion or doctrine now received and allowed in the said Church of England, incontinency, usiuy, simony, perjury in the ecclesiastical court, or idolatry : that then all and every the pains and forfeitures limited against such persons ex- 1410 DISCirLIXE OF THE CIIURCn. 5 Eliz. c. 23. commnnioate l)v tliis statute, 1)v reason of siieli writ of e.vcom)iiunicato cajncndo wanting suflicient addition, or of sucli shjnijiritrit wanting all tlic causes afore-mentioned, shall be utterly void in law ; and by way of plea, to be allowed to the party grieved. If ii.Ulition he « If the addition sliall be with a niLiper of the place, in niiu'e'^ first i>i-o- cveiy such case at the awarding of the fii'st capias with claniation to ])roclamation according to the form mentioned, one writ bi- without yf proclamation (without any ])ain expressed) shall be fckure^ ^^ '^^' •'^^^''^rded into the county where the offender shall be most commonly resiant at the time of the awarding of the said first capias with pain, in the same writ of proclamation, to be returnable the day of the return of the said first capias with pain and proclamation therenpon, at some one such time and court, as is prescribed for the proclamation uj)on the said first capias with pain : and if such pro- clamation be not made in the county where the offender shall be most commonly resiant in such cases of addition of nuper ; every such offender shall sustain no pain or forfeiture by virtue of this statute, for not yielding his body according to the tenor afore-mentioned ; anything before specified, and to the conti'ary hereof in anywise notwithstanding." Sect. 1. It shall be forthwith brought into the Court of King's Bench, S(c.~\ — It has been often adjudged that this form of taking out the writ, and the several steps therein (as contained in this clause of the act), ought to be precisely pursued ; and for default thereof many persons have been discharged (o). Into the Court of King's Bench.~\ — In Beg. v. Bishop of St. Davids, in 1 Anne, it was declared, that before this statute, the writ was returnable into Chancery; and there the significavit was quashed, if undue ; but now the judg- ment of that, by this statute, is devolved on the Court of King's Bench (//). Sect. 3. Capias.'\ — The penalties of this act being in- flicted upon none but those who are excommunicated for some of the causes specified in sect. 7, the capias accord- ingly must not be with penalty in any other case : or if it issue so by mistake, the court will grant a supersedeas upon motion: and, if the party be taken, will upon plead- ing (after the habeas corpus is granted and returned and so the matter is judicially before them) discharge him from the penalties, though not from the imprisonment. In con- (o) Gibs. 1056 ; Cro. Jac. 560 ; (p) Forrest. 57. Vide supra, Cro. Car. 583; Siderf. 165, 285. p. 90. ECCLESIASTICAL CENSURES. 1411 sidcratlon of which pleading, and the trouble and charge that attends it ; it is said, that he may have an attachment against the plaintiff (y)- He shall remain in the Custody of the said Sherijf.~\ — In the case of Slipper v. Mason, in 1 Anne, the plain- tiff obtained sentence against the defendant for 210/. for non-payment of tithes and costs. The defendant for non- payment was excommunicated, and arrested upon an ex- communicato capiendo, and the sheriff let him escape, The plaintiff brought a special action against the sheriff, and had a verdict against him for the 210/. It Avas moved in arrest of judgment, that the action would not lie. But by the coin-t it was adjudged that the action well lay : and they relied much upon the case where it was held that an action lies against the sheriff for suffering a man to escape, being aiTcsted upon a capias utlagatum after outlawry upon mesne process (r). PVithout Bail.'] — By 3 Edw. 1, c. 15, now repealed, persons excommunicate, taken at the request of the bishoj), shall be in nowise replevisable by the common \\i:\t, nor without writ. That is to say, he that is certified into the chancery by the bishop to be excommunicated, and after is taken by force of the king's writ o^ excommunicato capiendo, is not bailable ; for in ancient time men Avere excommunicated only for heresies propter lepram animce, or other heinous causes of ecclesiastical cognizance, and not for small or petty causes ; and therefore in those cases the party was not bailable by the sheriff or gaoler Avithout the king's writ; but if the party offered sufficient caution de parendo mandatis ecclesice in forma juris, then should the party have the king's writ to the bishop to accept his caution, and to cause him to be delivered. And if the bishop will not send to the sheriff to deliver him, then shall he have a writ out of the chancery to the sheriff for his delivery ; or if he be excommunicated for a temporal cause, or for a matter whereof the ecclesiastical court has no cognizance, he shall be delivered by the king's writ without any satis- faction (5). Sect. 7. Shall not in the same Writ have a sufficient mid lawful Addition.] — In R('(/. v. Sangicay, in 1 Anne, tlic defendant was excommunicated for a certain cause of jactitation of marriage, and taken upon a cajnas and brought up by habeas corpus ; and exception was taken (?) Gibs. 1050 ; 1 Salk. 294. (s) 2 Inst. 188. (r) 2 Lord Raym. 788. 1412 DISCirLINE OF THE CIURCir. 5 Kliz. c. 23. to the writ, that tlicroln no additloti was g^ivon to the dereiulant ; but tlic court held, that for any of" the causes mentioned in the st.atute, the defendant's addition oug^ht to be in the writ, l}ut that in otlicr cases no addition is necessary (^). As to showing If in f/n' significavit it he not rontcincd, ^'c.~\ — By Ilolt, nm>.e of ex- Chief Justice : At the common law the cause had no need rommiinua- , , . , . „ . • j i • lion ill writ. to be shown m the writ ot excommumcdto capiendo; hut it Avas sufficient to say that the i)arty was excommunicate for manifest contumacy ; but in the bishop's certificate it oufjht to be shown. And now, since 5 Eliz. c. 23, the cause oui^lit to be shown in the writ(7/). In Rex V. Fowler, in 12 AVill. 3, on a habeas corpus the return was, that Fowler Avas taken and in custody by a writ o^ excommunicato capiendo, and the excommunication was in the writ recited to be for certain causes of subtrac- tion of tithes or other ecclesiastical rights; and because this return was uncertain, the court was moved that he might be discharged ; and the question was, whether this return was uncertain, and whether that nncertainty would vitiate the Avrit : and the court resolved, 1, that the return was uncertain, for that the other riffhts might be such matters as were out of their jurisdiction, and they ought to show the matter was within their jurisdiction, for of that the king's courts are to be judges, and not they them- selves: 2, the cause of excommunication must be set forth in the writ. At common law, the writ de excommrinicato capiendo was always general, for contumacy, not contain- ing a special cause. And the writ Avas returnable in chan- cery, and founded on a certificate of the bishop, Avliich certificate set forth the cause before, and the party could not be discharged but by supersedeas in chancery, if the cause were insufficient. But now the cause must be set forth in the writ de excommunicato capiendo itself, because by 5 Eliz. c. 23, the writ is made returnable in this court, which Avould be to no purpose if the cause were not to be set forth in the writ, and this court judge of that cause. The court held they might discharge the party upon the insufficiency of the return. Before 5 Eliz. c. 23, there were no discharges in this court on cxcommnnicato capiendo^s, but Avhere a man was excommunicated pending a prohibi- tion : now the case is altered ; for this court may quash the Avrit of cxcommnnicato capiendo or award a supersedeas ; because this court are judges of the cause, and have it be- fore them, and the party cannot go into chancery for a super- it) 1 Salk. 294. («) 1 Ld. Kaytn. G19. ECCLESIASTICAL CENSURES. 1413 sedeas now, iDecause the writ is returnable here. Accord- ingly the writ was quashed, and this special entry made on the habeas corpus, that the party was discharged because the writ de excommunicato capiendo was quashed (ar). In Reg. v. The Bishop of St. Davids, ah'eady cited, the defendant having been arrested upon an excommuni- cato capiendo, was brought into court by habeas corpus. And upon the return it appeared that he was excommii- nicated for non-payment of costs, in which he was con- demned by commissioners delegate in a certain cause of office or correction, at the promotion of Lucy. And this by the court was holden to be ill, because it did not appear that these costs were adjudged in a cause of ecclesiastical cognizance ; and it is plain, since 5 Eliz. c. 23, that the cause ought to appear in the writ ; for otherwise how can this court make judgment of the several causes specified in that statute, in order to award several processes with penalties? And the court quashed the writ of excommu- nicato capiendo, and discharged the defendant (y). So in the Court of Chancery, in 10 Geo. 2, in Rex v. Eyre, two signijicavits were quashed, being only said to be in a cause which came by a]:>pcal concerning a matter merely spiritual. For by Lord Talbot: We are not to lend our assistance but where it appears clearly they have jurisdiction, and are not to trust them to determine what is a matter merely spiritual ; in Rex v. Fowler it was, in causes of ecclesiastical rights, and holden not sufficient (r). In Rex V. Puyton, in 37 Geo. 3, it was holden that a Avrit de excommunicato capiendo, Avhich stated that the defendant was excommunicated in a cause of defamation and slander merely spiritual, was good. If the sentence of the gi'eater, instead of the lesser, excommunication be pronounced, it is only a ground of appeal, and the Court of King's Bench will not (piash a wnt de excommunicato cajnendo for that objection. It is not necessary that the defendant should be resident in the diocese at the time of the excommunication : it is sufficient if he Avere there at the time of the citation (a). The case of Adams v. Dugger has established the prln- En-oncinis ciple, that if a party for non-])ayment of costs be committed process. under an erroneous jjroccss (which cannot fairly be ascribed {x) 1 Salk. 293; Str. 10G7. (a) 7 T. R. 153. See 2 B. & {y) Lord Raym. 817. Vide A. 139, for the modern method supra, pp. 90, 1410; et vide 5 B. of proceodiiig to obtain tlie di.s- & A. 791 ; 1 B. & C. 655. cliarge of apnrtv. See also, liow- {z) Str. 10G7. See 1 Salk. 293 ; ever, Rex v. Ihidtt, G Ad. & Ell. 3 Atk. 479. 547 ; 1 Nev. & Per. G89. 1414 DISCIPLINE OF THE ciiuncii. 6 Eliz. c. 23. to tlic party suinn; it out, or be sliown to have occasioned the otlior party material or any inconvenience), and be in consequence released, the court is bound, at the application of the party to whom they are still due, to issue a new monition for the payment of such costs (i). Alisolntionand A Jiarty could not be discharged from this writ by show- di.Hharge. j,j^ j.],.^!. ^]^^, g„,jj j'^y^. ^yiiieh he was attached was less than the 20/. prescribed by 48 Geo. 3, c. 123, now repealed; because he was committed for contempt (c). In 5 Eliz. c. 23, s. 5, there is a saving, " to all arch- bishops and bishops and all others having authority to certify any person excommunicated, the hke authority to accept and receive the submission and satisfaction of the said person so excommunicated, in manner and form here- tofore used ; and him to absolve and release, and the same to signify, as heretofore it hath been accustomed, to the king's majesty in the High Court of Chancery ; and there- upon to have such writs for the deliverance of the said person so absolved and released from the sheriff's custody or prison, as heretofore they or any of them had, or of right ought or might have had ; anything in this statute to the contrai'y notwithstanding." In which case, if due caution be offered by the party excommunicated, and admitted by the bishop, then the bishop may command the sherifi' to deliver him out of prison (r/). What is due The language of the writs, Avlien tliey speak of absolving caution. ^jid delivering an excommunicate, is facta satisf actio ne, aid prcBstita cautione, -proiLt maris est, de yarendo man- datis ecclesice, that is, either making present satisfaction at or upon his absolution, or putting in caution that he will hereafter perform that which the bishop shall reason- ably and according to law enjoin him. Which caution, in the civil law, is of three sorts: \, Jide jussoria, as where a man binds himself with sureties to perform somewhat ; 2, pifjnoratitia or realis cautio, as when a man engages goods, or mortgages lands, for the performance; 3,jura- toria, when the party Avhich is to perform anything, takes a corporal oath to do it (e). If good and sufficient caution is offered and not ad- {h) Sir John Nicholl, 1 Add. putting in cautions, see Jus- 307. See 5 Barn. & Aid. 791 ; 1 tinian's Inst. lib. 4, tit. 11, with Dowl. & Ry. 460. tlie Commentaries of Vinnius and (c) See 1 B. & A. G52. Iluber. Of these cautions Bishop {d) Gibs. 10G3. Gibson observes, that " the last (e) Ibid. For the doctrine of of them, viz. an oath de parendo the civil law on the subject of juri it atando mandatis ecclesice in ECCLESIASTICAL CEXSURES. 1415 mitted, then a \^Tit to the bishop is provided in the register, to command him (after having taken sufficient caution), to order the person to be delivered (/"). And if the bishop did not deliver him upon the said writ, then the party might have another writ to the sheriff, to command him to apply personally to the bishop, and admonish him to deliver the party after having taken suf- ficient caution ; and if the bishop would not do the same in presence of the sheriff, then the sheriff to deliver him(y). And the reason thereof was, for that by the excommu- nication the party was disabled to sue any action, or to have any remedy for any wrong done unto him so long as he shall remain excommunicate. And also the party grieved might have his action upon his case against the bishop ; in like manner as he might when the bishop ex- communicated him for a matter which belonged not to ecclesiastical cognizance. Also the bishop in those cases might be indicted at the suit of the king (A). In like manner, if one appeared in the spiritual court, and was excommunicated for refusing to answer, where he was not bound by the law to answer (as, for instance, when he could not obtain a copy of the libel), prohibition was granted, with a clause to absolve and deHver the party (z). But although, in case the party excommunicated rests Appeal. in the sentence given against him, there is no legal means forma juris, is that which is often two, and more for the ease of the accepted by ordinaries ; and as party than a pledge, and tlie to the second, it is expressly constant use and practice of the mentioned in the ancient Re- ecclesiastical courts; upon this gister (fo. 66 a, 67), and has Hale doubted whether it was always been acknowledged in good or not ; but Wild held it the temporal courts to be good was good, saying such bond had in law. But as to the first, under been frequent, and that they had which is comprehended the taking been allowed in the Court of • of a hoiul for performance, it was Common Pleas. But the cause declared, 9 Jac. 1 (1 Bulst. 122), being moved again, the court to be against law ; but as that would not proceed in it, because was a judgment given hytheioay the excommunication and offence only, so when the same matter were taken off by the king's came under consideration again, general pardon." Cod. 1063. 25 Car. 2, Bishop of Exon v. Star (/) Gibs. 1063. (per T. Raym. 226 ; 2 Lev. 36), {g) Ibid. See these writs in and it was urged that bv the the Register, fo, 66, et seq. Also tenor of the writ the choice of F. N. B. 62 (i), 63; and 3 Bl. the caution is left to the discre- Com. l()\,et srq. tion of the ordinary, and that (/t) 2 Inst. 623. caution by obligation is as much (/) Gibs, 1063; Siderf 232; 12 a caution as either of the other Co. 76 ; 10 Vin. 527 (G_). 14 10 DISCIPLINE OF Tin: CIIl'UCII. Apjical. for his deliverance, but submission and caution as is afore- said ; yet it" he appeal from such sentence to a superior ecclesiastical judge, this })uts the party in the same state that he was in before the sentence given ; which the law orders, l)y reason of the present doubtfulness whether it Avas valid or invalid. Add to this, that by appeal the judge a quo ceases to be his judge in that cause; and if the party was imprisoned, and were to continue so, he ■would thereby be hindered from the effectual prosecution of his appeal, Avhich may happen to prove just. Where- ibre, ii])on allegaticjn in behalf of the Jiarty against whom the writ is gone out, that he has ap})ealed, and upon proof made thereof by an authentic instrument, a w-rit o^ super- sedeas (Avithout any appearance of a scire facias preceding) is provided for him in the register (^). But the usual way (especially in cases where it is doubt- ful whether objections may not lie against his being de- livered) is, the issuing a scire facias, to warn the bishoji and the party prosecuting to shoAv cause why the sheriff should not surcease from attaching the excommunicate, or why he should not deliver him, if he be in pi-ison. And if the bishop in cases of office, and the prosecutor in cases of instance, do not appear in Chancery, the party is de- livered ; but if they appear, and not the party, then a re- attachment goes forth to imprison him(/). Writ cannot be In Re(j. V. Bishop of St. Davids, the defendant was quashed before taken ujiou a Avrit of excommunicato capiendo, and being da> o re uiu. -^ custody iu Xewgate, ])rayed a habeas corpus, and was brought into court thereupon ; and it appeared by the retui'u that the writ of excommunicato capiendo w^as not yet returnable. And the court held that one taken on a ■writ of excommunicato capiendo cannot come into this court but by habeas corpus ; and if he be brought in before the writ is returnable, he shall not be allowed to plead or move to quash the writ(m). Ej-commiini- But in Rex X. Theed, in 3 Geo. 1, after the writ had been cfito cajjiendo opened and entered of record, it was delivered out in order &eded ^ ^^^'^'^' to take up the defendant ; and before the return, the de- fendant moved and had it superseded ; for the court said they could judge of it by the entiy ; and since it a])pearcd that the defendant could not be legally detained u})on it if he was taken, it was proper to supersede it, to prevent the man's being restrained of his Hberty contrary to law; (k) Gibs. 1003 ; Powell v. Her- (I) Gibs. 1064"; Keg. fo. 68, 69. man, Moore's Rep.; Oughton, tit. (m) 1 Salk. 294. Vide supra, 303. pp. 90, 1410, 1413. ECCLESIASTICAL CENSURES. 1417 that the intent of tlie statute, which directs the writ to be deHvered in open court, was to apprise tlie court of tlie nature of the cause ; that this was now to be considered as a writ that improvide emanavit ; and they were not to wait till the return, till all the inconveniences which they should have prevented by not issuing the writ had happened (w). The writ de excommunicato cainendo in this case was in a suit pro correctione morum, generally, and holden to be ill on the authority of Rex v. Gapj) (o), which Avas in quodam negotio pro reformatione et correc- tione morum. And in Rex v. Manning (p) a writ de excommunicato capiendo was quashed, being only for not appearing to answer certis articulis animcB sucb salutem morumque correctionem concernentibus. If a person be excommunicated by divers excomminii- Several ex- cations, for divers offences, and produces letters of abso- c^'"iiiiuuica- lution fi-om one sentence, he shall not be discharged until he be absolved fi'om them all(<^). The two following acts have Avrought a great change in Modern the law of excommunication. The latter greatly extends statutes. the practical power of the ecclesiastical courts to enforce the observance of justice. The first, 53 Geo. .3, c. 127, is entitled "An Act for 53 Geo. 3. the better liegulation of Ecclesiastical Courts in England ; ^- i^'^- and for the more easy Recovery of Church liates and Tithes." The preamble recites as follows : — " Whereas it is expe- dient that excommunication, together with all proceedings following thereupon, should, saving in certain cases, be discontinued, and that other proceedings should be substi- tuted in lieu thereof; and that certain other regulations should be made in the proceedings of the ecclesiastical coiu'ts ; and that more convenient modes of recovering tithes and church rates in certain cases should be pro- vided." It enacts as folloAvs : — Sect. 1. " Excommunica- Excommunica- tion, together with all proceedings following thereupon, tjon discon- shall in all cases, save those hereafter to be specified, be i^'eertiihr^"^^' discontinued throughout that part of the luiited kingdom cases. of Great Britain and Ireland called England ; and that in all causes which according to the laws of this realm are cognizable in the ecclesiastical courts, when any person or persons having been duly cited to a]ipear in any ecclesi- astical court, or required to comply with the lawful orders or decrees, as well final as interlocutory, of any such court, in) Str. 43 ; 10 Mod. 350. (p) Ptr. 7G. (<0 Pas. 1 Geo. ( j . i county oj is manifestly contumacious, and contemns the jurisdiction and authority of [here fully state the non- appearance, disobedience, together -with the commands disobeyed, or the contempt in the face of the court, as the case may be], nor will he submit to the ecclesiastical Juris- diction ; but forasmuch as the royal power ought not to be wanting to enforce such jurisdiction, ice command you that you attach the said by his body, until he shall have made satisfaction for the said contempt; and how you shall execute this our precept notify unto and in nowise omit this, and have you there this writ. JVitness ourself at Westminster, the day of in the year of our reign.'^ Schedule (C.) Writ of ** IFliereas of in your county of whom deliverance. lately, at the denouncing of for contumacy, and by writ issued thereujion, you attached by his body until he should have made satisfaction for the contempt ; now he having submitted himself, and satisfied the said contempt, we hereby empower and command you, that without delay you cause the said to be delivered out of the prison in which he is so detained, if upon that occasion and no ECCLESIASTICAL CENSURES. 1421 other he shall be detained therein. Given under the seal of our of ■. " A. B., Registrar [or, ' Deputy Registrar,^ as the case may be]. " Extracted Z»?/ E. F. Proctor:' The second act, 2 & 3 Will. 4, c. 93, is entitled " An 2 & 3 Will. 4, Act for enforcing the Process upon Contempts in the ^- ^^• Courts Ecclesiastical of England and Ireland." The preamble recites as follows : — " Whereas great inconvenience has been found to arise bj reason of the j^rocess of the several ecclesiastical com-ts in England and Ireland being inoperative and unavailable out of the limits of the respective juiisdictions of such courts, and against persons having privilege of peerage, lords of parliament, and members of the house of commons ; and in many in- stances a failure of justice hath thereby ensued : And Avhereas it is expedient, for remedy thereof, that the pro- cess of the said several courts, and the means of enforcing obedience to the same, should be of equal force and have the like operation, as Avell in that part of the united king- dom of Great Britain and Ireland called England as in that part of the same united kingdom caUed Ireland, and as well against persons having privilege of peerage, lords of parliament, and members of the house of commons, as against all other his majesty's subjects." It enacts as follows : — Sect. 1, " In all causes which Where persons according to the laws of this realm are or may be cogni- i"esHiing be- zable in any of the several ecclesiastical courts, as Avell in diction of any that part of the united kingdom of Great Britain and Ire- ecclesiastical land called England as in that part of the same united ^?^^'^^ ^^^ kingdom called Ireland, Avhen any person or persons, as &(.., and refuse well those Avhich have or hereafter shall have privilege of obedience, peerage, or are or hereafter may be peers of parliament or the judge members of the house of commons, as all others who shall pronounce hajipcn to be domiciled or residing either in England or them contu- in Ireland, and be3'ond the limits of the jurisdiction of the ni=^cious, and court in Avhicli such causes have been or shall have been same "to the respectively instituted or commenced, or shall be depend- Lord Chau- ing, having been duly cited to appear in any such ecclosi- ^^'.''"r' ^^'• astical coiu-t, Avhether in England or in Ireland, or required days, and to comply with any lawful order or decree, as well final as thereupon a interlocutory, which hath been or shall have been made ^^^'^ '^^' ^"!^*'^7„ 1 ■,•' • 1 1 n 1 p mace capiendo by any such court respectively, shall neglect or retuse to phall issue, pay obedience to any such lawful order or decree, or Avheu unless the any such person or persons shall commit a contempt hi ''"^r ''&c'' ^ 1422 DISCIPLINE OF THE CHURCH. 2 & 3 Will. 1, the face of sucli court, or any otiicr contempt towards ^- ^''^- such court, or the process thereof, it shall be lawful for the judge or judges out of whose court the citation or process hath already issued or may hereafter issue, or whose lawful orders or decrees have not or shall not have been obeyed, or before Avhom such contempt in the face of the court shall be committed, or by Avhosc order or authority such process in respect of or towards which any such contempt shall have been committed has been or shall be awarded or issued, or the successor or successors in office of such judge or judges respectively, to pronounce such person or persons contumacious and in contempt, and within ten days after such person or persons shall have been so pronounced to be contumacious and in con- tempt to signify the same to the lord chancellor, lord keeper, or lords commissioners for the custody of the great seal of England for the time being respectively, whenever the person or persons who shall have been so pronounced contumacious and in contempt shall be domiciled or re- siding in England, and Avithin the like period of ten days to signify the same to the lord chancellor, lord keeper or lords commissioners for the custody of the great seal of Ireland for the time being respectively, whenever the person or persons who shall have been so pronounced con- tumacious and in contempt shall be domiciled or residing in Ireland, in the form annexed to 53 Geo. 3, c. 127; and thereupon, and in case the person so reputed to be in con- tempt shall not be a peer, lord of parliament, or member of the house of commons, a Avrit de cnntumace capiendo shall issue from his majesty's said High Court of Chancery in England or in Ireland, as the case may happen, to be directed to the same persons to whom writs de excommu- nicato capiendo were by law returnable before the joassing of the said act of parliament, and the same shall be return- able in like manner as the writ de excommunicato capi- endo had been theretofore by law returnable, and shall have the same force and effect as the last-mentioned writ ; All regulations and all rules and regidations not altered by the said act and provisions 53 q^jq. 3, c. 127, and which before the passing of the the wriT^Ze* same act applied to the said writ de excommunicato ca- excommnni- piendo, and the proceedings following thereupon, and eato, and pro- particularly the several provisions contained in 5 Eliz. c. 23, upon"fhall be' shall extend and be applied to the said Avrit de contumace applied to the capiendo, and the proceedings following thereupon, as if ■\viit de contn- ^j^^ same were herein particularly repeated ahd enacted ; and the proper officers of the said two several High Courts of Chancery in England and Ireland, as the case may ECCLESIASTICAL, CENSUEES. 1423 happen to be, are hereby authorized and required to issue such writ de contumace capiendo accordingly ; and all sheriffs, gaolers, and other officers in England and in Ire- land, as the case may happen to be, are hereby required and authorized to execute the same, by taking and detain- ing the body of the person or persons against whom the said Avrit shall be so directed to be executed ; and upon Upon the ap- the due appearance of the party or parties so cited and pearanceor ,1 •'^^1 T n • -\ J IT ^ • ' I' submission of not navmg obeyed as atoresaid, or the due submission oi ^jjg party the the party or parties so having committed a contempt in judge may the face of the court, or otherwise, as hereinbefore is men- °''^'°^' '^y" 5° , • 1 j_i • 1 • 1 r ^ ^ • j^- ^ .be absolved or tioncd, the judge or judges oi such ecclesiastical court, discharo-ed. whether in England or in Ireland, as the case may be, shall pronounce such party or parties absolved from the contumacy and contempt aforesaid, and shall forthwith make an order upon the sheriff, gaoler, or other officer in whose custody he, she, or they shall be, in the form to 53 Geo. 3, c. 127, annexed, for discharging such party or parties out of custody ; and such sheriff, gaoler, and other officer shall, on the said order being shown to him, so soon as such party or parties shall have discharged the costs lawfully incurred by reason of such custody and contempt, forthwith discharge, him, her, or them." Sect. 2. " In all such cases as are hereinbefore men- Where persons tioned, and which are or may be cognizable in any or possessed of either of the several hereinbefore mentioned courts, when England neo^° any person or persons, as well such person or persons as lect to pay '' have or shall hereafter have privilege of peerage, or are or money ordered shaU hereafter be lords of parliament or members of the courts the House of Commons, as others who shaU happen to be judges' may domiciled or residing either in England or in Ireland, pronounce such have been or shall have been ordered or required, by the macllJIfs^and"' lawful order or decree, final or interlocutory, of any such certify the court respectively, to pay any sum or sums of money, and ^^™^' *^ ^^'^ when any such person or persons, after having been duly cellor who monished, shall refuse or neglect to comply with such shall cause monition, and to pay the sum or sums of money therein Process of se- ordered to be paid by him or them, Avithin the time and i!!sue against' in the manner in any such order or decree mentioned or the estate of expressed, or a peer or lord of parliament or member of ^^ 1'^'"^ ^^ the House of Commons shall refuse or withhold obedience, ° or shall in any way neglect to perform or shall not perform any decree or order, final or interlocutory, of such courts as aforesaid, it shall be lawful for the judge or judges Avho shall have made such order or decree, or his or their suc- cessor or successors in office, to pronounce the person or persons so neglecting or refusing to comply with such 1424 DISCirUNE OF THE CIIURCir. 2 & .1 AVill. I, order or decree contuniacioiis and in contemjit, and witliin ^- ''•^- ten days after such person or ])ersons shall have been so pronounced contumacious and in contempt to cause a co])y of such order or decree, under the seal of tlie court ■wherein the same shall have been made, or under the hand or hands of such judj^e or jud<:;cs, or one of them, to be exemplified, and certified to the lord chancellor, lord keeper, or lords commissioners for the custody of the p^reat seal of England for the time being respectively, whenever the pci'son or persons who shall have been so pronounced contumacious shall be domiciled or residing, or shall be seised or possessed of or entitled to any real or personal estate, goods, chattels, or effects, situate, lying, or being in England ; and the said lord chancellor, lord keeper, or lords commissioners for the custody of the great seal of England, shall forthwith cause such copy of such order or decree, when it shall be presented to them respectively, so exemplified, to be enrolled in the rolls of the High Court of Chancery in England, and shall thereupon cause process of sequestration to issue against the real and per- sonal estate, goods, chattels, and effects, in England, of the party or parties against whom such order or decree shall have been made, in order to enforce obedience to and per- formance of the same, in the same manner and form, and with the like ]iower and effect, as if the cause wherein such order or decree shall have been made had been ori- ginally cognizable ])y and instituted in the said Court of Chancery in England, and as if all and every the pro- cess of the said Court of Chancery in England ordinarily issuing in causes there jiending antecedent to process of sequestration had been duly issued and returned in the last-mentioned court ; and it shall and may be lawful for the said lord chancellor, lord keeper, or lords commis- sioners of the great seal in England, to make such order and orders in respect of or consecjuent upon such sequestration, or in respect of the real or personal estate, goods, chattels, or effects sequestrated by virtue thereof, as he or they shall from time to time think fit, or for payment of all or any of the monies l(>vied or received by virtue thereof into the Bank of England, Avith the privity of the account- ant-general of the said Court of Chancery in England, to the credit and for the benefit of the party or parties who shall have obtained such order or decree, if the same was for ])ayment of money, or, if not, to the credit of th-e High Court of Chancery; and the governor and company of the Bank of England are hereby authorized and re- quired to receive and hold all such monies, subject to the ECCLESIASTICAL CENSURES. 1425 orders of the said Coiu-t of Chancery : provided always, that no such monies shall be charged with or subject to poundage when the same shall be paid out by order of the said court" (0- Sect. 3. " In all such causes as are hereinbefore men- The like pro- tioned, and which are or may be cognizable in any or '*''^io" ^^ to cither of the several hereinbefore mentioned courts, when gcssed of any person or persons, as well such person or persons as estates, &c. in have or shall hereafter have privilege of peerage, or are or I'^'eland. shall hereafter be lords of jiarliament or members of the House of Commons, as others, who shall happen to be domiciled or residing either in England or in Ireland, hath or have been or shall have been ordered or required by the lawful order or decree, final or interlocutory, of any such court respectively, to pay any sum or sums of money, or to do any other act or thing, and when any such person or persons, after having been duly personally served Avith a copy or copies of such order or decree, shall refuse or neglect to comply therewith, or to pay the sum or sums of money therein ordered to be paid by him or them, or to do the act or thing required by such order to be done, within the time and in the manner in any such order or decree mentioned or expressed, it shall be lawild for the judge or judges who shall have made such order or decree, or his or their successor or successors in office, to pronounce the person or persons so neglecting or refusing to comply Avith such order or decree contumacious and in contempt, and within ten days after such pei'son or per- sons shall have been so pronounced contumacious and in contempt to cause a copy of such order or decree, under the seal of the court wherein the same shall have been made, or under the hand or hands of such judge or judges, or one of them, to be exemj^lified, and certified to tlie lord chancellor, lord keeper, or lords commissioners for the custody of the great seal of Ireland for the time being respectively, whenever the person or persons who shall have been so pronounced contumacious and in contempt shall be domiciled or residing, or shall be seised or pos- sessed of or entitled to any real or personal estate, goods, chattels, or effects, situate, lying, or being in Ireland, and Avithin the like period of ten days and after such last- mentioned person or persons shall have been pronounced contumacious and in contempt to cause a copy of such (/) For the practice of the Chancery Practice (cd. 1871), Court of Chancery, see Omprr v. p. 'J33. JJoild, 15 Jur. G9; DanioU's 14 2G DISCIPLINE OF THE CHURCH. 2 & 3 Will. 1, order or decree to be exemplified, and cei'tlfied in manner c. y3. liereinbelorc mentioned to tlic barons of liis majesty's Court of Kxclic(|ucr in that part of the ujiitcd kingdom called Ireland, wliencver the ]H'rson or persons who shall have been so jironounced contumacious and in contempt shall be domiciled or residing, or shall be seised or pos- sessed of or entitled to any real or personal estate, goods, chattels, or effects, situate, lying, or being in Ireland ; and the said lord chancellor, lord keeper, or lords commis- sioners for the custody of the great seal of Ireland, shall forthwith cause such co])y of such order or decree, when it shall be ])resentcd to tliem respectively, so exemplified, to be em-oUed in the rolls of the High Court of Chancery in Ireland, and shall thereupon cause process of setiues- tration to issue against the real and personal estate, goods, chattels, and effects, in Ireland, of the party or parties against wdiom such order or decree shall have been made, in order to enforce obedience to and performance of the same, in the same manner and form, and with the like power and effect, as if the cause wherein such order or decree shall have been made had been originally cogni- zable by and instituted in the said Court of Chancery in Ireland, and as if all and every the process of the said Court of Chancery in Ireland ordinarily issuing in causes thex'c ])cnding antecedent to process of scfjuestration had been duly issued and returned in the last-mentioned court; and it shall and may be lawful for the said lord chan- cellor, lord keeper, or lords commissioners of the great seal in Ireland, to make such order or orders in respect of or consequent upon such sequestration, or in respect of the real or personal estate, goods, chattels, or effects sequestered by virtue thereof, as he or they shall from time to time think fit, or for ])ayment of all or any of the monies levied or received by virtue thereof into the bank of Ireland, with the privity of the accountant-general of the said Court of Chancery in Ireland, to the credit and for the benefit of the party or parties who shall have ob- tained such order or decree, if the same was for the pay- ment of money, or if not, then to the credit of the said Higli Court of Chancery ; and the governor and company of the said bank of Ireland are hereby authorized and required to receive and hold all such monies, subject to the orders of the said Court of Chancery in Ireland : pro- ■vided always, that no such monies shall be charged with or subject to poundage for the usher of the said Court of Chancery in Ireland, or otherwise, when the same shall be paid out by order of the last-mentioned court." ECCLESIASTICAL CENSURES. 1427 Sect. 4 provides tliat the act sliall not extend to orders made six years before. Sect. 5 places several restrictions on actions brought for anything done in pursuance of this act. The act 3 & 4 Vict. c. 93, empowering the ecclesiastical Release by courts to order the release in certain cases of persons im- ^ ^ "* ^^^^' prisoned under the writ de contumace capiendo has been already mentioned (?<). With respect to the effect of a general pardon issued by rardon. the king, it seems to have been always agreed, that the king's pardon will discharge any suit in the spiritual court ex officio : also it seems to have been settled, that it Avill likewise discharge any suit in such court ad instantiam partis pro reformatione viorum or salute animcB, as for defamation, or laying violent hands on a clerk, or such like ; for such suits are in truth the suits of the king, though prosecuted by the party (.r). Also it seems to be agreed, that if the time to Avliich s^icli pardon has relation be prior to the award of costs to the party, it shall discharge them : and it seems to be the general tenor of the books, that though it be subsequent to the award of the costs, yet if it be prior to the taxation of them, it shall discharge them, because nothing appears in certain to be due for costs before they are taxed (_?/). Also, if afler a person is excommunicate there comes a general act of pardon, it seems that the offence is taken away without any formal absolution (2'). Also, if a person be imprisoned on a writ de excommu- nicato capiendo, for his contumacy in not paying costs, and afterwards the king pardons all contempts, it seems that he shall be discharged of such imprisonment without any scire facias against the party; because it is grounded on the contempt, which is wholly pardoned ; and the party must begin anew to com]^el a payment of the costs (r?). But it seems agreed, that a pardon Avould not discharge a suit in the sj)iritual court, any more than in a temporal, for a matter of interest or property in the ])laintiif ; as for tithes, legacies, matrimonial contracts, and such like. Also it is agreed, that after costs are taxed in a suit in such court at the prosecution of the party, whether for a matter of jirivate interest, or pro reformatione morum or salute animcc, as for defamation, or the like, they shall not be discharged by a subsequent pardon (Z>). {u) Vide supra, p. 12G1. (2) 2 Bac. Abr. 32G. {x) 2 Haw. 3'J4. (a) 2 ILaw. 3"J4. (?/) Ibid. (Jb) Ibid. 1428 DISCIPLINE OF THE CHURCH. rarilon. A person admitted to the benefit of clergy was not to be deprived in the spiritual court for the crime for which he had had his clergy. For a pardon frees the ])arty from all subsequent punishment, and consequently from de])rivation (r). By 20 (Jeo. 2, c. 52, which is the last act of general pardon, all contcm})ts in the ecclesiastical court in matters of correction are pardoned ; but not in causes which have been commenced for matters of right (r/). (c) 2 Haw. 3G4. on account of tlic Pardon Act on (d) W/iialon'x cofir, begun in tlie accession of (Tcorge the First. Queen Ainie's reign, never came Vide siq)ray\). lU'JG. to a final decision, it is believed, ( 1429 ) CHAPTER XL PROHIBITION AND IVIANDAMUS. Sect. 1. — Early and late Jurisdiction of Ecclesiastical Courts. 2 . — Proliihition . 3. — Mandamus. Sect. 1. — Early and late Jurisdiction of Ecclesiastical Courts. For tlie first 300 years after Christ (a), tlie distinction of Origin of the ecclesiastical or spiritual causes, in point of jurisdiction, ecclesiastical did not begin ; for at that time no such distinction Avas leiieral ^'^^ ^^ heard of in the Christian world ; for the causes of testa- ments, matrimony, bastardy, adultery, and the rest, Avhich are called ecclesiastical or spiritual causes, were merely civil, and determined by the rules of the civil law, and subject only to the jurisdiction of the civil magistrate. But after the emperors were become Christian, out of a zeal and desire they had to grace and honour the learned and godly bishops of that time, they Avere pleased to single out certain special causes, Avherein they granted jurisdic- tion to bishops ; namely, in cases of tithes, because paid to men of the church ; in causes of matrimony, because marriages were for the most part solemnized in the church ; in causes testamentary, because testaments were many times made i7i extremis, when churchmen were present giving spiritual comfort to the testator, and therefoi'e they were thought the fittest ]:)ersons to take the jn-obates of such testaments : and so of the rest. Yet these bisho])s did not then proceed in these causes according to the canons and decrees of the church (for the canon law was not then made), but according to the rules of the imperial law, and as the civil magistrate ]")roceeded in other causes (/>). Accordingly in this kingdom, in the Saxon times, before Oiigiu thereof (a) Those introrliictory re- " Courts" in riiillimorc's edition marks, as to the ecclesiastical of Burn, jurisdiction, are taken, -with (I)) Dav. 95. sliirlit alterations, from the title 1430 DISCirUNE OF THE CIIUUCII. within this tlic Normaii Conquest, there uas no distinction of juris- miliii in dictions; but all matters, as avcU si)iritual as temiKn-al, particular. , ^ • i • .1 ^ I ii i xi 1 -a."' '■ ■were dcternmied m the county court, called the slierm s tourn, -wliere the bishop and earl (or in his absence the sherlrt') sat ton;ether ; or else in the hundred court, -whudi was held in like manner before the lord of the hundred and ecclesiastical judge (c). For the ecclesiastical ofHcers took their limits of juris- diction from a like extent of the civil powers. oVIost of the old Saxon bish()i)rics were of equal bounds with the distinct kingdoms. The archdeaconries, when first settled into local districts, were commonly fitted to the respective counties. And rural deanries, before the Conquest, were correspondent to the political tithings. Their spiritual courts were holden with a like reference to the administra- tion of civil justice. The synods of each province and diocese were holden at the discretion of the metroiiolltan and the bishop, as great councils at the pleasure of the prince. The visitations were first united to the civil in- quisitions in each county ; and afterwards, when the courts of the earl and bishop were separated, yet still the \'isita- tions were held, like the sheriff's tourns, twice a year, and like them too after Easter and INIichaelmas, and still with nearer Idleness the greater of them was at Easter. The rural chapters were also holden, like the inferior coiirts of the hundred, every three weeks ; then, and like them too, they were changed into monthly, and at last into quarterly meetings. Nay, and a prime visitation was holden com- monly, like the prime folcmotc or sheriff's tom-n, on the very calends of ]\Iay(f/). And accordingly Sir Henry Spelman observes, that the bishop and the earl sat together in one court, and heard jointly the causes of church and commonwealth ; as they yet do in parliament. And as the bishop had twice in the year two general synods, wherein all the clergy of his diocese of all sorts were bound to resort for matters con- cerning the church ; so also there was twice in the year a general assembly of all the shire for matters concerning the commonwealth, Avherein without exception all kinds of estates were required to be present ; dukes, carls, barons, and so downward of the laity ; and especially the bishop of that diocese among the clergy. For in those days the temporal lords did often sit in synods with the bishops, (c) Examin. of the Scheme of Jolins. 246. Ch. Tow. 15; Duck. 307; 1 (r/) Ken. Eccl. Svn. 233, 4. Warn. 274 ; 2 Still 14 ; God. 9G ; rROHlBITION AND MANDAMUS. 1431 and the bisliops in like manner in the conrts of the tempo- raltj, and were therein not only necessary, but the prin- cipal judges themselves. Thus by the laws of King Ca- nutus, "the shyre-gemot (for so the Saxons called this assembly of the whole shire) shall be kept twice a year and oftener if need require, wherein the bishop and the alderman of the shire shall be present, the one to teach the laws of God, the other the law of the land." And among the laws of King Henry I. it is ordained, " first, let the laws of true Christianity (which we call the eccle- siastical) be fully executed Avith due satisfaction ; then let the pleas concerning the king be dealt with ; and, lastly, those between party and party : and whomsoever the church S}nod shall find at variance, let them either make accord between them in love, or sequester them by their sentence of excommunication." Whereby it appears, that eccle- siastical causes Avere at that time under the cognizance of this court. But these, he says, he takes to be such eccle- siastical causes as Avere groimded u])on the ecclesiastical laws made by the kings themselves for the government of the church (for many such there Avere in almost CA'ery king's reign), and not for matters rising out of the Roman canons, AA'hich haply Av^ere determinable only before the bishop and his ministers. And the bishop first gaA-e a solemn charge to the people touching ecclesiastical mat- ters, opening unto them the rights and reverence of the church, and their duty therein towards God and the king, according to the Avord of God. Then the alderman in like manner related unto them the laws of the land, and their duty toAvards God, the king and commouAvealth, ac- cording to the rule and tenure thereof (e). The separation of the ecclesiastical from the temporal William the courts Avas made by William the Conqueror. And as from CoiKineroi's thence we are to date this great alteration in our constitu- separation. tion, it is judged necessary to recite the charter of separa- tion verbatim ; Avhich is as follows : " WiLLiELMUS, Dei gratia rex Anglorum, R. Bainardo et G. de Magnavilla, et P. de Valoines, creterisque mcis fidelibus de Essex et Hertfordschire et de INliddlesex, salu- tem. Sciatis a^os omnes, et creteri mei fideles qui in Angha manent, quod episcopales leges, quaa non bene, nee secun- dinn sanctorum canonum prajcepta, usque ad mea temjiora in regno Anglorum fuerunt, communi concilio et conciHo archicpiscoporum [mcorimi] et [cietcrorum ( /)] episcopo- (0 lleli.iuiiv.Sp^lm. 13,53,54. (/" Wilkius' Leg. Ang. Sax. 2'.t-_'. 1432 DISCIPLINE OF THE CHURCH. rum, ct al>l)atum, et oiniiiiiin ])riiicii)iuin Ye^i^u'i mci, emen- (laiul.is jiulicavi. I'ropteiva inaiulo, ct rcj^ia auctoritite pra'cipio, ut nullus c])i.c- Burder V. llodqson, that the court could entertain a suit (jucntiiil loss. . 1 1 ■/• 1 f 1 • • against a clerk lor the purpose oi deprivation or suspen- sion by reason of a public scandal existing against him, although the scandal originated from a charge which, if true, would constitute a criminal oftcnce at common law, and although the suit was brought before any conviction at law. A prohibition was applied for to the Queen's Bench and a rule nisi obtained ; but the rule was afterwards dis- charged, the Lord Chief Justice giving it as the unanimous opinion of the court, that they were not satisfied that the offence charged could be made the subject of an indict- ment. The question Avhether, if the offence had been clearly indictable, the Ecclesiastical Court Avould still have had jurisdiction, was therefore not determined by the Queen's Bench (_/). A similar decision was given by the Privy Council, reversing a writ in the nature of a prohibition sent by the Ivoyal Court of Jersey to the Ecclesiastical Court of that island {Ji). On trial of It has also been ruled, that if a man libel for tAvo dis- custom, modus tinct things, the one of which is of ecclesiastical cogni- oi prescnp ion. ^auce, and the other not, a prohibition shall be granted as to that which is of temporal cognizance, and the Court Christian shall proceed for the other (/). In the case of The Churcliwardem^ v. The Rector of Market Bosworth, in 10 Will. 3, " The churchwardens liljcl against the rector, that there hath been time out of mind, and is, a chapel of ease within the same parish; and that the rector of the said parish for time out of mind hath repaired and ought to repair the chancel of the said chapel ; and that the chancel being out of re]iair, the de- fendant being rector hath not repaired it. The rector in the said court denied the custom. And a decree was made for the rector, that there was no such custom, and costs were taxed there for the said rector. The church- wardens moA'ed for a prohibition : and it was argued for the prohibition that it ought to be granted, because it ap- pears that the libel is upon a custom, w^hich the defendant had denied ; and it may be the question was in the spi- (1828); Proceedings against the {k) Denn of Jersey \ . Rector of Bishop of Ciogher in the Metro- , 3 Moo. P. C. 229. politan Court of Armagh, Annual (/) Pcnse v. Prousc, Ld. Raym. Kegister for 1822, p. 252. 59 ; Free v. Bunjoyne, 6 B. & C. ( ;■) Burder v. H. or Hodgson, 538 ; Carslalee v. Ma2'>ledoram, 2 3 Curt. Eccl. 822; 4 Notes of T. R. 473. Cases, 483. i TROHIBITION AND MANDAMUS. 1443 ritual court, custom or not, wliich is not triable there, but at the common law ; and then this appearing upon the libel, that the court hath not jurisdiction, a prohibition may be granted after sentence. But all the coiu't held the contrary. For by Holt, Chief Justice : The reason for Avhich the spiritual court ought not to try customs is, because they have different notions of customs, as to the time which creates them, from those that the common law hath : For in some cases the usage of ten years, in some twenty, in some thirty years, make a custom in the spiritual court ; whereas by the common law it must be for time immemorial. And therefore since there is so much dif- ference between the laws, the common law will not permit that court to adjudge upon customs, by Avhich in many cases the inheritances of persons may be bound. But in this case, that reason fails : for the spiritual court is so far from adjudging that there is any such custom which the common law allows, that they have adjudged that there hath not been any custom allowed by their law, Avhich allows a less time than the common law to make a custom. And the plaintiffs having grounded their libel upon a custom which was well grounded if the custom had not been denied (for libels there may be upon customs), but the custom being denied and found no custom, it is not reason to prohibit the court in executing their sentence against the plaintiffs. For the design of a motion for a prohibition is only to excuse the plaintiffs from costs. And there is no reason but that they ought to pay them ; since it appears, that they have vexed the defendant with- out cause. And therefore a prohibition was denied" (?«)• Where a custom for a church rate was pleaded in the ecclesiastical court, and the plea admitted, it was ruled that it might proceed to try the custom ; but if denied, a prohibition lies ( n). In Jo7ies V. Sfo7i€ (o), in 12 "Will. 3, David Jones, the vicar of N., was libelled against in the spiritual court, for that by custom time out of mind, the vicars of X. had, by themselves or others, said and performed divine service in the chapel of Chawbury, for Avhich there Avas such a re- compense, and that he neglected. The defendant came for a prohibition, and without traversing this custom, sug- gested that all customs Avere triable at common law. And (in) L(l. Raym. 435. (o) 2 Salk. 550. But sec Bur- in) Dunn V. Coates!, 1 Atk. deaiix v. Dr. Lancaster, 1 Salk. 288; 5 B. & C. 1; IlaJlnck v. Z^^ ; French v. Tranh, 10 East, Univ. of Camhr'uhje,! A.i\.&YA\., 348; and Dnlhii y. Remington, 9 N. S. 593, an important case. Q. B. 179 (1848). 1444 DISCIPLINE OF THE CIIUKCII. On trial of fustoiii, modus or prescription. Whether sta- tute takes away jurisdic- tion. When grantablc. For miscon- struction of act of pai'lia- meut. it Avas urf^ed, tluit it was cnoufrh lor a proliibltion, that a custom a2)pearcd to charge the vicar with a duty, for Avhich he was not hablc of common right. But by Holt, Chief Justice : A parson may be bound to an ecclesias- tical duty by custom, and -when he is bound by custom, the spiritual court may punish him if he neglects that duty ; the custom might have a reasonable commencement by composition in the spiritual court, and begin by an ecclesiastical act ; and a bare prescription only is not a sufficient ground for a prohibition, unless it concerns a layman ; whereas here it is an ecclesiastical right, an eccle- siastical person, and an ecclesiastical duty, and the pre- scription not denied. An act of parliament being in the affirmative does not abrogate or take away the jurisdiction ecclesiastical, unless words in the negative be added, as and not otherwise, or in no other manner or form, or to the like effect (/y). And generally, where the suit is cognizable by the eccle- siastical court, it Avill be presumed by the temporal courts that they Avill administer the laAv correctly (^q). 27 Geo. 3, c. 44, limiting the proceedings in the Eccle- siastical Courts for incontinence to eight months from the time of the offence committed, applies to laymen and clergymen ; but where a clergyman was proceeded against for incontinence after this period had elapsed, a prohibi- tion was awarded as to proceedings for reformation of manners, but a consultation granted for deprivation ( r ). It has been held as settled law, since Lord Ellen- borough's elaborate judgment in Gould v. Gapper (s), that the misconsti-uction of an act of parliament by the Ecclesiastical Courts in the decision of a case within their jurisdiction, is matter of prohibition, and not of appeal (t). It seems also to be established, that such prohibition Avill not be granted before the decision of the ecclesiastical judge has been actually given, as the temporal courts will not presume that it will be an eiToneous construction of (2>) Gibs. 1028, (q) Griffin V. Ellis, 3 Per. & D. 398. Prohibitions are not to be granted on tlie last clay of the term. So is the rule set down in the books : to which Polle adds, nor on tlie last day save one : and the reason of botli is, that there would not be time for notice to be given to the other side. But it is added in. Latch, that upon motion, on the last day of the term, there may be a rule to stay proceedings till the next term. Gibs. 1029. {)•) Free v. Burf/oyne, 9 D. & P. 14; 2Bligh, N. S. 65. (.s) 3 P:ast, 472 ; 5 East, 345. This case contains a reference to all the preceding cases on this subject. (t) Though it may also be matter of appeal ; Dcnison v. Ditcher, 11 Moo. P. C. 324. PROHIBITION AND MANDAMUS. 1445 the statute ; nor will tliey presume that it will exceed its jurisdiction (?<). Where a party cited as resident A^dthin the ecclesiastical jurisdiction had appeared and pleaded without objection, he was not allowed afterwards to put the fact in issue, nor in such a case was an intervener allowed to raise an objec- tion on this ground to the jurisdiction (:r). But if it appear 07i the face of the ■proceedinris in the when probi- Ecclesiastical Court, that they are about to exceed their bition will be jurisdiction, and try matters which are triable only at """mediately common law, the court of common law will grant im- mediate prohibition, and not Avait till the parties have incurred the expense of further proceedings (y). Where the power of the Ecclesiastical Court is derived where statutes from a statute, the exercise of it is strictly limited. Thus create the as to the requisition by 21 Hen. 8, c. 5, s. 2, that the ex- JJ^'e^J;}^"" °^ ecutor shall " make a true and perfect inventory, and de- astical Court. liver it into the keeping of the ordinary ;" it was ruled that the bishop's office was merely ministerial, and that he could not hear objections to the inventory, for had the statute meant to invest him with larger power, it would have said so in direct words (z). In a case in 2 Anne, Holt, Chief Justice, said that it On a refusal of was formerly holden by all the judges of England, that ?-^°,P^ °^ ^^^ when there was a proceeding ex officio in the Ecclesiastical Court, they were not bound to give the party a copy of the articles ; but the law is otherwise, for in such cases, if they refuse to give a copy of the articles, a prohibition shall go until they deliver it ; and accordingly upon mo- tion, a prohibition was granted in the like case by Holt, Chief Justice, and the court (a). Such a prohibition is usually called a prohibition quous- que, as distinguished from an absolute prohibition to pro- ceed at all in the matter (i). Prohibition may be granted upon a collateral surmise ; On a collateral that is, upon a surmise of some fact or matter not appear- s"''""*^^, ing in the libel. It was heretofore a petition of the clergy to the king in parliament, that no prohibition might be (;/) Blachett v. Blizzard, 9 B. (y) Bycrlcy v. Windusi, per & C. 851 ; compare with HaU v. Bailey, J., 5 B. & C. 21 ; French Maide, 7 Ad. & Ell. 721; 3 Nev. v. Trash, 10 East, 350. & Per. 459; Ex parte Law, 2 Ad. (z) Griffiths v. Antony, 5 Ad. & Ell. 45 ; but see also the case & Ell. 623, of Blunt V. Ilarwood, 3 Nev. & {a) Anon., Ld. Raym. 442 ; Per. 577. Anon., G Mod. 308. {x) Chichester v. Donegal, .G (h) 10 East, 350. Madd. 375. 1446 Discii'Lixi: of tiii: ciiliicfi. On a collateral granted, "witliout first sliowiiig the libel; and it was a surmise. complaint of Arclil)isliop liancroft, in the time of King James the First, that ])roliil)itions were granted without sight of the lil)el, whieh (as it Avas there said) is the only rule and direction for the due granting of a prohibition ; because upon diligent consideration thereof it will easily appear, whether the cause belong to the temporal or eccle- siastical cognizance ; as, on the other side, Avithout sight of the libel, the prohibition must needs range and rove with strange and foreign suggestions, at the Mill and plea- sure of the deviser, nothing jiertinent to the matter in demand. To this charge of granting prohibitions without sight of the libel, the judges in their answer say nothing ; but as to granting them upon suggestion of matters not contained in the libel, their words are these : — " Though in the libel there appear no matter to grant a prohibition, yet upon a collateral surmise the prohiljition is to be granted ; as, where one is sued in the spiritual court for tithes of sylva ccuclua, the party may suggest, that they Avere gross or great trees, and have a prohibition, yet no such matter appeareth in the libel ; so if one be sued there for violent hands laid on a minister l)y an officer, as a con- stable, he may suggest that the ])laintiff made an affray upon another, and he to preserve the peace laid hands on him, and so have a prohibition : and so in very many other like cases ; and yet upon the libel no matter appeareth Avhy a prohibition should be granted" (c). Before appli- The suggestion must have been moved and rejected in cation for pro- ^^^ spiritual court, before it can be admitted in the tem- tion must be poral court. In The Bisliop of Winchester'' s case{d) it raised in Avas holden, that in a suit for tithes in the spiritual court a spiritual court, j^.^^^-^ jyjj^y J^ave a prohibition, suggesting a prescription or modus, before or Avithout jjleading ; but this seems not to be laAV. For in the 12 AVill. 3, a prohibition Avas moved for, suggesting a custom. But it Avas denied by Holt, Chief Justice, and the court, unless they ])leaded it beloAv, because perhaps they might admit the i)lea. Also in the 10 Will. .3, it AAas said, by Holt, Chief Justice, that if a modus be pleaded in the spiritual court, and admitted, no prohibition shall go ; but if the question be, Avhether a m.odus or no modus, a prohibition shall go ; and so is the hiAv, viz. Avherever the matter Avhich you suggest for a prohibition is foreign to the liljel, you must plead it beloAV (c) Gibs. 1027; vuh 2 Tn.st. iVaide, 7 Atl. & Ell. 721. 607; Blackett v. Blizzard, 9 B. & {>/) 2 Co. 45. C. 851; compare Avitli Hall v. PROHIBITION AND MANDAMUS. 1447 before you can have a proliibition ; otlierwise, where the cause of prohibition appears on the face of the libel (e). In Burdett v. Neiccll{f), in 4 Anne, a rule was made Affidavit to be to show cause why a prohibition should not be granted to made of the stay a suit against the plaintiff in the court of the arch- ^^°° ^°^' deacon of Lichfield for not going to his parish church nor any other church on Sundays or holidays, nor receiving the sacrament thrice a year, upon suggestion of the statute of Elizabeth and the Toleration Act, and then qualifying himself within that act, and alleging that he pleaded it below, and that they refused to receive his plea. It was showed for cause, that this fact was false, and the plaintiff was not a dissenter, nor had qualified himself as above, and therefore it was moved, that the court will not alloAV the rule to stand, unless they had an affidavit of the fact ; for by that means any person might come and suggest a false fact, and oust the spiritual court of their jurisdiction. Which was agreed to by the court, and therefore the rule was discharged. And, by Holt, Chief Justice, the distinction is this: — Where the matter suggested appears upon the face of the libel, we never insist upon an affidavit ; but, imless it appear upon the face of the libel, or if you move for a pro- hibition as to more than appears on the face of the libel to be out of their jurisdiction, you ought to have affidavit of the truth of the suggestion (^). Where it is necessary to suggest a particular fact to the court, as a custom, it must be verified by affidavit (A). It is said, the suggestion need not be precisely proved Strict proof of in order to obtain a prohibition. For where the sugges- *^® suggestion tion was for a modus for lamb and wool, though the proof ° failed as to the wool, and it was urged that therefore they had failed in the Avhole, yet a prohibition Avas granted. And in the case of Austen v. Pigot, it was said, that the proof in a proliibition need not be so precise, but if it ap- pears that the Court Christian ought not to hold plea thereof, it suffices (z). For the court will refuse a consul- tation if any modus be found, though different from that laid ; but, at the same time, if the modus be not proved as laid by the plaintiff in prohibition, there must be a verdict for the defendant, who is entitled to costs (/e). But if the suggestion appears to the court to be noto- {() Jnncs V. Stone, 2 Salk. 550; (;/) 2 Salk. 549. Ano))., ibid. 551: vide supra, p. {/t) C(itony.Jiarton,Cow\-).330. 1443. (/) Gn)s. 1029; Cro. Eliz. 736. (/) Ld. Ravm. 1211 ; see also (/) Brock v. RichunUon, 1 Johnson v. Oldham, ibid. G09. T. R. 427. traversable. scutence. 1448 PISCirLINE OF THE CIiniCTT. rlously false, tlicy will not rjrant a jiroliibition ; for, by Holt, Cliicf Justice, they ou<;lit to examine into the truth of the su<;-lish u])on less evidence than the common law requires. And Lord Mansfield said, that though he was veiy sorry that the court were obliged to grant the prohibition (because the party applied for it only to get rid of paying the costs occasioned by his own vexa- {c) 2 Inst. GOT. (e) Burr. 314. ((/) Gibs. 1027; Cro. Jac. 350. PROHIBITION AND MANDAMUS. 1453 tious suit), yet he thought they could not avoid doing it. And the rule for a prohibition was made absolute. But a declaration in prohil)ition will always be directed peclaration on the application of the party against Avhom the iirohihi- '° prohibition. tion is brouf/ht{f\ If the defendant in a prohibition die, his executors may Party dying. proceed in the spiritual coiu't, and the judges of that court out of which the prohibition was granted, %vill also in such case make a rule to the spiritual court to proceed ; but the plaintiff may, if he pleases, have a new prohibition against the executors (^). A prohibition takes off the costs assessed upon an ap- Costs. peal, where the cause is returned to the inferior court. This Avas adjudged in 7 Car. 1, in the case of Cromptoji V. Waterford, where an appeal had been to the Dele- gates, who overruled it, and assessed costs for the Avrong appeal : And the court agreed with Kichardson, that be- cause a prohibition stavs all proceedings, the costs were taken away ; and added, that if the party was excommu- nicate he should be absolved (/*). In a case in the Consistorial Court of Kochester, an application Avas made that the costs incurred by fruitless attempts to obtain a prohibition might be included in the costs of proceedings for a church rate in the Ecclesiastical Court, and be paid before the person in contempt was dis- charged. The judge (/) refused the aj^plication. (Nov. 1840.) The procedure in prohiliitions is noAv regulated by 1 Will. 4, c. 21. Some provisions as to the costs of suits in prohibition are also contained in 8 & 9 "Will. 3, c. 11, s. 3. The common laAv courts are empoAvered by these acts to award costs to the successful applicant for a prohi- bition (/^). Sect. 3. — Mandamus. As a writ oi prohibition will issue to prevent the Eccle- Object of. siastical Court from over-stepping its l)ounds, so a AATit (/■) Remincjton v. Dolby, 9 (/.:) See Free v. Burqoi/ne, 2 Q. li. 170; 14 L. J. (N. S.) Q. B. 5. Bligh, N. S. 65. For a summary (r/) Wats. c. 55. of tlic mode of {Drocecding to (/() Iletl. 1G7; Litt. 365; Gibs. obtain a prohibition, see 3 Ste- 1029. phen's Commentaries (ed. 1858), (j) Dr. Lushington. pp. 704 — 706. 14o4 DISCIPLINE OF THE CllUIiCII. of v^andcimiis Avlll issue conimaiuliiig tlicm to do justice wheuever the same is refused or unreasonably delayed (Z). Statutes. The statutes regulating the procedure on prerogative •\\Tits oi mandamus are, 9 Anne, c. 20 ; 1 Will. 4, c. 21 ; and 6 & 7 Vict. c. 67. When granted. A vwndamns has been granted to the archbishop, upon an appeal to him, luider sect. 98 of 1 & 2 Vict. c. 106, against the revocation, by the bishoj), of a curate's licence, to compel the archbishop to inquire into and hear the appeal, and decide the merits thereof(m). (/) For an account of tliis writ, see 3 Stephen's Commentaries (ed. 18.58), pp. G97— 702. (vi) Req. V. Archbishop of Can- terbim/, 28 L. J., Q. B. i54 ; 7 W. K. 212. Other instances of mandamuses to ecclesiastical judges are, Reg. v. Ahp. of Can- terbury, 6 El. & Bl. 546; 2 Jur., N. S. 835; Reg. v. Dodson, 7 El. & Bl. 315; 3 Jur., N. S. 439. ( 1455 ) PAET Y. PROPERTY OF THE CHURCH. CHAPTER I. INTRODUCTORY. Jural persons, as distinguislied from natural persons, are Jural persons. a fiction of law (a). Jural persons are di\adecl into two great classes : — Corporations. Endowed or Charitable Institutions. The substratum of the former is a union of persons, — of the latter, the existence of property. The former is governed by the will of all the members or of a certain luunber of them, — the latter by the will of the endower or ibunder. It may be difficult to distinguish between a corporation and a charitable institution ; and what is origi- nally a charitable institution may become a corporation. Another division of this subject is into secular and re- ligious jural persons. This is to be ascertained by the end which the institution has in view, namely, either a secular or an exclusively religious cnd(Z»). The first beginning of church property arose from the Be-innins of bag into which contributions were placed, and from whicli ttmrch pro- our Lord and His apostles supplied their earthly needs. ^^^ -^ ' After the Ascension of our Lord, the faithful had their goods in common. The clmrch — ecclcsia — of Jerusalem might be considered the jural person in whom these small l)cginnings of property were vested. But Avhen tlie apostles, in the execution of their office, ])lanted tlic cluu'ch in various and distant places of the earth, the local unity of church property at JeiTisalem was necessarily at an end. («) Das Eigenthum am Kir- {h) Extrav. John XXII. 1. 14, chenvermogen, Ileinricli von c. 1,4, 5. roschinger, Miinchen, 1871. 1456 PROPERTY OF THE CHURCH. Beginning of church pro- perty. The era of ("onstantinc. Their successors, tlic l)isli()ps, collected the contributions of the faithful, in the first instance at least, for separate dioceses. The religious societies of Christians, it must be remembered, did not before the time of Constantine constitute a " collrf/iinn licit.um,^' though particular so- cieties or churches Avere said " relifjioiiis causa coire,^'' and if dissolved by a legal order might have liberty to divide their common stock, " pecu7iias communes^ This was, however, the "jus slngulorum^^ and not " iiniverscB ecclesia?.^* Individual congregations appear to have had their own religious places of worshiiD, " conventicula^,^^ and their own burying places, " coemeteriaJ''' To a certain extent, there- fore, and for short periods, the churches may be said to have been more than tolerated, almost legalized, even before the time of Constantine. This Avas the state of the law and the practice at the beginning of the fourth century. The persecution of Diocletian (a.d. 303) was accompanied by a confiscation of church property, but this ceased a.d. 305, and shortly afterwards the property of the church was distinctly placed under the protection of the law. The edicts of restitution by Constantine and Licinius, and the edicts of toleration, allowed the Christians to re- Ijuild their churches, and repossess their sites and dwellings, which had been confiscated (c), ad jus fisci devoluta. The recognition of the Christian church by the state; the restitution of her property by i\\Qjiscus; the immunity of her priests from secular burdens ; her special privilege (olis. 17. — Corn Rents under Local Acts. 18. — The Tithe Commissioners. Sect. 1. — Origin of Tithes in England. What was paid to the cliurch for several of tlie first ages after Christ, was all brouglit to them by Avay of offerings ; and these were made either at the altar, or at the collections, or else occasionally {a). Afterwards, about the year 794, Offa king of Mercia (the most potent of all the Saxon kings of his time in this island), made a law, whereby he gave unto the churcli the tithes of all his kingdom; wliic]i,the historians tell us, Avas done to expiate the dcatli of Ethelbert, king of the East («) rridcaux on Tithes, i;')'J. clcsia; Disciplina, vol. 3, c. 1, Thomassini Vetus et Nova Ec- 2d. ed. fol. o C 2 1484 PROPERTY OF THE CHURCH. Angles, wliom in tlic year preceding he had caused basely to l)e murdered (b). But that tithes were before paid in England by way of offerings, according to the ancient usage and decrees of the church, appears from the canons of Egbert, Archbishop of York, al)out the year 750; and from an epistle of Boniface, Archbisho]) of iNIaint/,, wliich he wrote to Cuth])ei-t, Arch- bisho]) of Canterbiuy about the same time ; and from the seventeenth canon of the general council, holden for the whole kingdom at Chalchuth, in the year 787. But this law of Offa was that which first gave the church a civil right in them in this land by way of property and inherit- ance, and enabled the clergy to gather and recover them as their legal due, by the coercion of the civil ]iower(c). Yet this establishment of Offa reached no further than to the kingdom of Mercia, over which Offa reigned ; until Ethelwulph, about sixty years after, enlarged it for the whole realm of England (d). Division of tithes into pra;dimn (whether it be arable, meadow, or pasture), the fruit or produce thereof is called prffirZ/aZ, and consequently the tithe payable for such annual produce is called aprcedial tithe {e). Mixt tithes are those which arise not immediately from the ground, but from things immediately nourished by the gi'oimd, as by means of goods dci)astured thereuj^on, or otherwise nourished with the fruits thereof; as colts, calves, lambs, chickens, milk, cheese, cggs(y). Personal tithes are such profits as do arise by the honest labour and industry of man, employing himself in some personal work, artifice, or negociation ; being the tenth part of the clear gain, after charges deducted (//). Tithes, with regard to value, are divided into f/reat and S7nafl. (h) Pridcaux on Tithes, 1G5. (r) II .1.1. ir,7. (d) Ibid. (e) Wats. c. 49. (/) Ibid. (r/) Iljid. TITHES AND RENT-CHARGES. Great tithes; as corn, Lay and wood {h). Small tithes ; as the prfedial tithes of other kinds, to- gether with those Avhich are called mixt, and personal (z). But it is said, that this diA-ision may be altered, (1) By custom ; Avhich will make wood a small tithe, under the general words mmutice decimce, in the endowment of the vicar. (2) By quantity ; which will turn a small tithe into great, if the parish is generally sown with it. (3) By change of place ; which makes the same things, as hops, in gardens small tithes, in fields great tithes. But this seems to be contradicted in the case of Wharton v. Lisle, where the tithe of flax, though sown in great fields, was adjudged to the vicar as a small tithe. Holt, Chief Justice (who Avas of another opinion), being absent (It). And Dr. ^Yatson is of opinion, that the quantity of land within any parish sowed with any thing, cannot make the tithe of another nature ; and that what is called small tithes seems to be in respect to the thing itself, and not from the small quantity of land sowed thereAvith, A\diereby the tithes thereof are but small, and of little value ; for if that Avere to be the rule to determine Avhat shall be said to be small tithes, then corn and hay in some places might be accounted small tithes ( I). And according to this latter opinion the law is noAV settled; namely, that the tithes are to be denominated great or small tithes, according to the nature and quality thereof, and not according to the quantity. As in the case of Sjnith v. Wyatt (m), Avhere a bill was brought by the rector of a parish in Essex for the tithe of potatoes soAAm in great quantities in the common fields, and there- fore claiming it as a great tithe. The defendant, the vicar, insisted, that notAA'ithstanding it is soaa'u in fields, it still continues a small tithe, and the quantity makes no dif- ference. By the Lord Chancellor HardAvicke : " The ques- tion is, Avhether potatoes planted in fields are great or small tithes. Potatoes in their nature are small tithes ; then the question AA'ill be, Avhether they receive any alteration of their right, l)y cultiAating in greater or smaller quantities. When the distinction of great and small tithes AA-as at first settled, probably it AAas upon this foundation, that the former yielded tithes in greater quantities ; and the species of tithes, AA'hich AA'crc called small, produced but in small quantities, though it might be arbitrary at first, yet it hath (//) Dos^o, I'lu-t 2, c. 1. (/) Wats. c. 39. (/) (iibs. r,G;{. {m) 2 Atk. 364. {Ic) 4 Mud. 184; Gibs. 003. 1485 148G PROrEUTV OF THE CIIUKCir. Dinsion of tithes into great and small tithes. Tithes re- strained to the proper paiish. Portion of tithes within another parish, " grown into a rule, and fixed so for tlie sake of certainty. If this sort of roots should be called small tithes when planted in gardens, and great when planted in fields, it woidd introduce the utmost confusion, and must vary in every year in every parish. If the quantity will turn small tithes into great, why will it not turn great tithes into small, when the quantity of great tithes is but small?" Upon the whole, his lordship was of opinion, that the tithe of potatoes, in whatever quantity, is a small tithe ; and de- creed accordingly. It is said by Lord Coke and many others, that before the Cotmcil of Lateran in the year 1180, a man might have given his tithes to what church or monastery he pleased. But this Dr. Prideaux utterly denies, for two reasons : 1 . Because of the absurdity of the thing ; for all the laws which had been made for tithes would have signified nothing, if no one had been certainly invested in a right to them ; for in such case, no one could claim them, and in case of non-payment no one could make process in law for them ; and consequently no one having a special right to demand them, it must have followed in practice, that what was thus paid to every spiritual person, would in fact and reality be paid to none at all. 2. Because before the said council there were in this land many appro]mations, whereby the tithes of whole parishes were assigned to convents or other spiritual corporations ; all which would have signified nothing, if the parishioners had been at liberty to pay their tithes to what spiritual person they should think fit (7^). But be that as it will, it is certain that now tithes of common right do l)elong to that church, within the pre- cincts of whose parish they arise. This regulation, corre- sponding with the ancient law of the land, was enjoined by a decretal epistle of Innocent III. to the Archbishop of Canterbury in the year 1200 (o). Yet notwithstanding, one person may prescribe to have tithes within the ])arish of another, and this is what is called a portion of tithes { p). One reason of which might be, the lord of a manor's having his estate extending into what is now apportioned into distinct parishes ; for there Avere tithes before the present distribution of parishes took place. But whatever origin these portions might have, they (n) Prideaux on Titlies. 302. (o) See 2 Inst. 641; and 2 Bl. Com. 27. (2>) Gibs. 6G3. TITHES AND KENT-CHARGES. 1487 were in law so distinct from the rectory, that if one Avho had them purchased the rectory, the portion was not ex- tinct, but remained grantable; but as to the cognizance thereof, the case being between parson and parson, and concerning a s])iritual matter, that belonged, like the cognizance of other tithes, to the ecclesiastical court {q). If a portion of tithes were possessed for 150 years, or such a length of time as to make the right doubtful, a ' court of equity woidd not assist the plaintiff by directing an issue, but he must have established his right at law (r). Where a portion of tithes had been possessed for 250 years by the owners of the lands, the court presumed a grant of them before 13 Eliz. c. 10, though tithes were not specifically mentioned in the title deed, under which the lands were claimed {s). Tithes extra -parochial (t), or within the compass of no Tithes in certain parish, belonged to the crown. By the canon law, extra-paio- they were to be disposed of at the discretion of the bishop . ^ ''^ l' ^^ but, by the law of England, all extra-parochial tithes, as in several forests, do belong to the king, and may be granted to whom he Avill; and, accordingly, they have been actually adjudged to him, not only by several resolu- tions of law, but also in parliament, in the case of the prior and bishop of Carlisle, in the 18 Edw. 1, concerning tithes in Inglewood Forest, that the king in liis forest aforesaid may build towns, assart lands (or make them fit for tillage), and confer those churches, Avith the tithes thereof, at his pleasiu'c, upon whomsoever he pleases ; because that the same forest is not within the limits of any parish (u). In the case of Parry v. Gibbs (.r), it was held, that under a grant of tithes arising from lands de novo assar- tatis et assart andis mthin the extra-parochial parts of a forest, the grantee was not entitled to the tithes of those (7) Gibs. 663. Pellatt v. Ferrars, 2 Bos. & P. (*•) Scottv. Alny, 1779, cited 642; 2 E. & Y. 494; Bishop of in 1 Anst. 311. Carlisle v. Blain, 1 Y. &' Jerv. (.s) Oxcmlen, Bart. v. Skiimrr^ 123; Pritchett v. Iloneybournc, 1 4 (xwill. 1513; see further on tliis Y, & Jen'. 135; Wyld v. Ward, Bubject, Dean and Chapter of 3 Y. & Jerv. 192; Leicis v. BrlstoVs case, 1 E. & Y. 51 ; Sir Bridgman, 2 CI. & Fin. 738; E. Coke's case, 2 Roll. Rep. 161; Lewis v. y^oitng, 3 E. & Y. 1135. 1 E. & Y. 314; Flitter \. Borome, {t) By common law even ex- 1 E. & Y. 86; Doiones v. Moor- tra-parocliial places were not man, 1 E. & Y. 803; Ilungerfurd exemiitfrom tithes; Prt^/e v. Wil- V. Howland, 1 E. & Y. 103; son, 2 J. & W. 328. Wolleij V. Piatt, M'Clel. 468; 3 (m) 1 Roll. Abr. 657; 2 Inst. E. & Y. 1 167; Bnultnn v. Richards, 647. 9 Trice, 671; 3 E. & Y. 1068; (,/•) 4 Gwill. 1490. 1488 PROPEllTY OF THE CllUliCII. Tithes ill lands in the occupation of the keepers of the forest, nor of chial places. ^^^^^^ enclosed by a private person by incroachment upon the forest. By custom a parson or vicar mij;ht be entitled to the tithes of extra-parochial lands (y). liy 2 & 3 Edw. 6, c. 13, s. 3, every person having any cattle tithal)lc depas- tui'ing on any waste or common ground whereof the parish is not certainly known, shall pay their tithes for the in- crease of such cattle to the ]iarson, vicar, &c. of the parish where the owner of the cattle dwells {z). Tithes of agist- ment for cattle fed upon the common were not within this statute (a). Sect. 3. — Of lohat tliinc/s Tithes were paid, and of Exemptions before the Tithe Commutation Acts. Things that Of common right, tithes are to be paid for such things renew yearly, q^^j ^g ^q yield a yearly increase by the act of God (b). Yet this rule admits of some exceptions : as, for in- stance, tithe is due of saffron, though gathered but once in three years ; and concerning S7/Iva cceduo, there rs an entiy in the register, that consultations shall be granted thereof, notwithstanding that it is not renewed every year (c). But " great wood of the age of twenty years or of greater age" is not tithable {d). (y) Com. Dig. Dismes (C. 3); ivood, broom, heath, furze; 3, 1 E. & Y. 29. Agistment or jMsturarje; 4, Wood; (z) 2 Inst. 651. 5, Flax and hemp; G, bladder; 7, (a) Ellis V. Saal, 1 Anstr. Hops ;%, Roots and garden herbs 332 ; 2 E. & Y. 360 ; and gene- and seeds, as turnijjs, jxn-slei/, rally, on the subject of extra- cabbage, saffron, atul such like; d, parochial places, see Page v. Fruits of trees, as apples, pears, Wilson, 2 .]. &Vf.i2?>; Att.-Gen. acorns; 10, Calves, colts, lids, V. Lord Eardley, S E. & Y. 986; pigs; 11, Wool and lamb; 12, Banister v. Wright, Sty. 137; 1 Milk and cheese; 13, Deer and E, & Y. 404; Williams v. Pecke, conies; 14, Fuivl; 15, Bees; 16, 1 E. & Y. 1237; Att.-Gcn. v. IHlls, fishings, and other personal Oldys, 1 E. & Y. 564; Compostv. tithes. It will be seen below that , 1 E. & Y. 437; Morant v. fishing and other personal tithes Camming, Cro. Car. 94; 1 E. & are not nerc^sa?//^ included under Y. 359. the operation of the Tithe Coin- (6) AVats.c.46; 1 Rolle's Abr. mutation Acts, 6 & 7 Will. 4, c. 641. The earlier editions of 71, s. 90, and 2 & 3 Vict. c. 62, Bum contained the following s. 9. catalogue of the several parti- (c) Gibs. 669. culars tithable:—!. Corn and {d) 45 Edw. 3, c. 3. There is other grain, as beans, peas, tares, a various reading of forty for vetches; 2, Hay and other like twenty years. herbs and seeds, as clover, rape, TITHES AND RP^NT-CHAEGES. 1489 Generally, of things increasing yearly, tithes shall be Once in the paid only once in the year. year. But this rule also is not universally true : and it is evidently against the rule of the canon law, which requires, that if seeds be sown upon the same ground, and renewed oftener than once in the year, the tithes thereof shaU be paid so often as they renew (e). And this seems to have been the law ; as in the case of clover, for instance, which renews oftener than once in the year, tithes thereof were to be paid as often as it renewed. Of common right, no tithes are to be made of quames Things of the of stone or slate, for that they are parcel of the freehold, s'lbstance of and the parson has tithe of the grass or corn which grow upon the surface of the land in which the quarry is ; so, also, not for coal, turf, tlags, tin, lead, brick, tile, earthern pots, lime, marie, chalk, and such like, because they are not the increase, but of the substance of the earth. And the like has been resolved of houses (considered separately from the soil), as havdng no annual increase. But, by particular custom, tithes of any of these may be pav- able (/). By the common law of England, there is no tithe due Things /cr\ Hen. 8, c. 13, and by that means capable of being discharged of tithes ; in ivhich are the following abbreviations : — Ab. Abbey; Pr. Priory; C. Aust. Canons of St. Austin; Bl. M. Black Monks ; Wh. C. White Canons ; Ben. Benedictines ; Gilb. Gilbertines ; Prajm. Praimonstratenses; Carth. Carthusians; Men. ISIonks; Clun. Clu- niacks ; Cist. Cistertians ; T. in the time of ; Ab. about the year. Monasteries. Order. Foundeil. Value. Berkshire. £ s. d. Reading Ben T. Hen. 1 1938 14 3 BuslehamAb C. Aust. ..13 Edw. 3 28.5 Abington Ab Ben 720 1876 10 9 Bedfordsliire. Newnham Pr C. Aust. . . T. Hen. 1 293 15 11 Elmeston Ab Ben T. W. Conq 28-1: 12 11 Wardon Ab Cist 1 139 389 IG ChicksandPr. j ^ifb ^" ' | T- W- P'ufus 212 3 5 Dunstable Ab C. Aust. . . T. Hen. 1 344 13 3 Woobura Ab Cist T.John 39118 2 Biicldnghamsliirc. AshrugColl C. Aust. ..T. Edw. 1 416 16 4 Notley Ab C. Aust. ..1112 437 6 8 Missenden Ab Ben 1293 261 14 6 Ca m iridgesh ire. Thorney Ab Ben 972 Barnewell Pr C. Aust. . . 1092 Cheshire. St. Werburge Ab Ben 1095 , Combermeer Ab Cist 1 134 411 12 11 256 11 10 003 5 11 225 9 7 Curnnall. Bodmin Pr C. Aust. . . 936 270 Oil Launceston Ab C. Aust. . . T. W. Conq 354 Oil St. Germans Ab C. Aust. . . T. Ethelstan 243 8 Cumherland. Carlisle Pr C. Aust. . .T. W. Rufus 418 3 4 Holme Coltrom Ab Cist 1 135 427 19 3 Berhysltire. Darley Ab. C. Aust. . . T. Hen. 2 238 14 5 Devonshire. FordAb Cist 11.33 374 10 6 Newnham Ab Cist Ab. 1246 227 7 S Dinkcswcl Ab Cist 1201 294 18 6 Hcrtland Ab C. Aust. . . T. Hen. 2 306 3 2 Torre Ab Pra^m T. Ric. 1 396 Oil Buckfast Ab Cist T. Hen. 2 460 11 2 Plimpton Ab Cist T. Edw. 1 241 17 9 Tavcstock Ab Ben 961 902 5 7 Exon Pr Clun T. Hen. 1 502 12 9 Borsetshire. Ablintsliury Ben Ab. 1016 390 19 2 Middleton Ab Blu T. Ethelstan 538 13 11 149G PROPERTY OF THE CHURCH. Monasteries. Onlcr. Foumlecl. Vnlue. £ s. 1498 IMIOIT.UTV OF THK CHIUC II. Monasteries. OrJrr. roinideJ. Value. £ s. ,1. WenlockPr Clun 1181, or before .... 401 7 SalopAb C. Aust. ..1081 615 4 3 Hales Owen Ab Tram T. John 337 15 G SumersetshiiT. Glassenburv Ah Ben About 300 3311 7 4 Brewton Al) C. Aust. . . Ab. t. Con • • • I Cist T. Edw. 1 214 3 5 I ^QyjJ''" } T. W. Conq 1226 6 At the time of the dissohition, the rehgious were dis- llow the reli- chars:ed from payment of tithes three several wavs ; either Sio"^ were dis- 11 ? 1 11 1 ii • 1 /» '^•3 1 charged trom by the ])ope s bulls, or by their order as atoresaid, or by payment of composition : which discharges would have vanished and tithes. expired with the spiritual bodies whereunto they were annexed, if they had not been continued by the special clause above mentioned (as it happened to those Avhich were dissolved by the other statutes of dissolution, for want of such clause). " And by the said clause also is created a new discharge, wdiich was not before at the common law, that is, unity of the possession of the par- sonage and land tithable in the same hand : for if the monastery at the time of the dissolution was seised of the lands and rectory, and had paid no tithes within the memory of man for the lands, those lands shall noAV be exempted from payment of tithe, by a supposed perpetual unity of possession ; because the same persons that had the lands, having also the parsonage, they could not pay tithes to themselves (e). But though by such union tlie persons so possessed were discharged from the payment of tithes, yet the lands (n) God. .^83; Boh. 241,248. 5 D 2 1500 rUOPERTY OF THE ClIUUCII. How the rcli- Avcrc not absolutely dis('liaro;c(l of the tithes : for upon any h'''.'"i^ ^!.T'^ disunion that niiglit liai)|)en, the payment of tithes again from payment I'cvivcd : SO that the union only sus])ended the payment, of tithes. but Avas no absolute discliarge of the tithes themselves. And therefore such iniion was not to be pleaded as a dis- charge from tithes, but only as a discharge from the pay- ment of tithes (y). And such union must appear to have had these four (pialities: First, it must have hccn just ; that is, claimed by right, and good and lawful title ; and not by disseisin or other tortious, unjust, or unlawful act : for such an union would not liave been a good discharge within the statute. Secondly, it must have been equal; that is, there must have been a fee-simple both in the lands and in the tithes ; as well of the lands upon which the tithes are, as of the parsonage or rectory : for if those religious per- sons had lioldcn but by lease, that had not been such a unity as the statute intended. Thirdly, it must have hccn free ; that is, free from the ]myment of any tithes in any maimer : for if the abbots, or their farmers, or their tenants at will or for years, had paid any manner of tithes before the dis- solution, it may be alleged as a sufficient bar to avoid the unity pleaded in discharge of tithes. Foui'thly, it must have been perj^cUial, time out of mind, that such religious houses were endowed, and such religious persons must have had in their hands both the rectory and lands luiited, perpetually, and without interruption, before the memory of man, or (as it seems according to the rule of the com- mon law) before the first year of King Richard I., dis- charged of tithes : for if by any records or ancient deeds, or other legal evidence, it can be made to appear, that either the lands or the rectory came to the abbey since the said first year of King Richard I", such union cannot be said to be perpetual (//). And, moreover, the lands of such houses dissolved as aforesaid, shall be free from the payment of tithes only so far as they were free in the hands of the churchmen, namely, whilst they are in the hands and manurancc of the owners thereof; and therefore it is necessary for the party who would have the advantage of this privilege, exjn-essly to show and aver, that the lands are in his hands and manurancc : for to say that he is seised of the lands is not sufficient ; for he may be seised thereof and yet another manure them (Ji). (/) Boll. 248. Bardwell, E., 8 Geo. 2; Wood, (g) Boll. 250. b. 2, c. 2. (/() Comyns, 498 ; Fox v. TITHES AND RENT-CHARGES. 1501 It has been liolden also, that a tenant in tail, who has an estate of inheritance, shall be discharged in virtue of the clause aforesaid, so long as he occupies the same himself; but that unity of possession does not discharge a copy- holder (though a prior in that case was seised in fee of the manor of which it Avas parcel, and was also impropriator) ; much less a tenant for life or years (z). For in such case, the possession is in the copyholder or other tenant, and not in the landlord or lessor ; and consequently it is not a imity of possession (A). But in the case of Hett v. Meeds (J), it Avas holden that the lands of a tenant for life under a settlement Avere exempt from tithes. But it is otherAAase AAith regard to the king; aaIiosc farmers shall be discharged of such tithes, as the spiritual persons Avere, because the king cannot cultiA ate the lands himself. And so long as the king has the freehold, his farmers shall haA^e such privilege : but if after ha\ang leased them, he shall sell the same, or shall grant OAer the rcA^ersion, then the farmers shall pay tithes. And it has been said, that this privilege extends no further, than to the king's tenants at AA'ill ; not to tenants for life or years (tw). Upon the AAdiole, not all lands that belonged to the re- ligious houses in general are discharged from tithes; but only such lands are capable of discharge, as belonged to the houses AAdiich Avere dissoh'ed by the statute 31 Hen. 8, c. 13, and not all those lands, Avhicli belonged to re- ligious houses dissoU'ed by that statute, are discharged from tithes ; but only such of them as Avere discharged at the time of their dissolution. But Avhat shall be sufficient evidence of such discharge, that is, whether by order, bull, com])osition, or unity of possession, at this distance of time seems difficult to determine Avith precision ; as strictness of ])roof may be more or less requisite, according to the particular circumstances of the case. Sect. 4. — Recovcnj (f Tithes before the Tithe Commuta- tion Acts. It is not necessary to do more than A^ery slightly men- tion the old laAv as to the recovery of tithes. (0 Gibs. G73. (0 4 ({will. 151.5. (/>•) Ilardres, 174; ^[ool•c, 219, (w) Gibs. G73; Bob. 282, 283; 534. Moore, 915; Haidrcs, 315. 1502 niOPERTY OF THE CHURCH. Incumbent By a constitution of Archbishop Winchelsea an in- bound to de- cumbent was compelled to demand his tithes, that they might not be lost to his successors (w). Who to be The ordinary course was to bring a suit against the sued. owner of the property to be tithed ; but this rule had some exceptions in the case of agistment, and where crops Avere sold on the ground before they were fully got in (o). An executor might be sued for tithes due from his testator (jw). Recoverable in Tithes were generally to be recovered in the Eccle- the Ecclesias- giastical Courts ; and the jurisdiction of these courts for tical Courts. ^^_^^^ purpose is specially confirmed by 13 Edw. 1, the statute of Circwnspecte agatis, 9 Edw. 2, st. 1, c. 1, the statute of Articuli Cleri, 27 Hen. 8, c. 20, and 32 Hen. 8, c. 7. By 2 & 3 Edw. 6, c. 13, these statutes were confirmed; and it was further provided that, in the event of the re- liisal of any person to set out his tithes, double the value might be recovered from him by suit in the Ecclesiastical Court. By the same statute a penalty of treble the value of the tithes was also imposed upon the person so offend- ing ; this however was recoverable only in the courts of common law. Small tithes Provisions for the recovery of tithes and offerings of a and tithes small amount, and of tithes owed by Quakers, by summary oTrikci^ proceedings before two justices of the peace, were made by 7 & 8 Will. 3, c. 6 ; 7 & 8 Will. 3, c. 34 ; 1 Geo. 1, st. 2, c. 6, s. 2 ; 53 Geo. 3, c. 127 ; 7 Geo. 4, c. 15 ; 5 & 6 Will. 4, c. 74 ; and 4 & 5 Vict. c. 36. These statutes, which still have their force with respect to ofierings, obla- tions, &c., will be treated of at length in the chapter on those subjects ((7). Suits in equity. Tithes were also sued for in the courts of equity, the equity side of the Court of Exchequer being the favourite court for this purpose. Modus deci- Under the old system of tithe taking it was not uncom- mandi. mon for a custom to be established whereby some fixed sum of money or quantity of corn or other titheable goods was taken by the tithe-owner instead of the literal tithe of the various titheable objects. This fixed sum or quantity was called a modus. There might be a modus for a whole parish or for some particular lands in it only. Moduses might be sued for in the Ecclesiastical Courts(?-). Bills also (n) Lincl. 191. {p) Boh. 159. (0) Viner, Abridg. Dismes, {q) Vide infra, Part V. Chap. L.a; God. 412, 413. See 5 & 6 IV. Will. 4, c. 75, as to tithe of (r) 2 Inst. 400. turnips. TITHES AND RENT-CHARGES. 150, might be filed hj the tithe-payers in the courts of equity to establish a modus as against the tithe-owner (s). Pro- visions for dealing with moduses are made by the various Tithe Commutation Acts(?). In the nature of moduses are the customary tithes paid London and in the city of London, and the various compositions made ^"'"^^ tithes. by many towns and places and confirmed by local acts (m). The act 2 & 3 Will. 4, c. 100, provided for the shorten- Shortening of ing of the period, during which exemption from payment time for claim of tithes or a modus or composition for tithes must be ° '"ot"s. proved to have existed, to thirty years, unless there was counter-evidence, and in any case to 60 years, or the tenure of office by two successors in a corporation sole, and three years after the entry into office by a third (sect. 1). The act was not to extend to cases where the tithes had been demised, or where there had been a composition for a term between the tithe-owner and tithe-payer, if a suit was begun within three years after the expiration of such demise or composition (sect. 4) ; and the time during which the tithes and lands were in the same hands, or during which the tithe-owner was under disability, was not to be reckoned in the 30 or 60 years (sects. 5, 6). This act was not to extend to any suits then existing or which should be brought within one year (sect. 3). In consequence of this provision a great number of suits ■were immediately instituted by tithe-owners, temporary provision for which had to be made by 4 & 5 Will. 4, c. 83. Several cases have been decided upon the construction Cases on the of the clauses of 2 & 3 Will. 4, c. 100. These however ^^*- are not of much present importance. The principal of them seem to be Salkcld v. Johnson, 1 Hare, 204, 2 C. B. 749, 2 Ex. 256, 1 Mac. & G. 242 ; Felloxoes v. Clmj, 4 Q. B. 313, 3 G. & D. 443 ; Knight v. Marquis of Water- ford, 15 M. & W. 419 ; Toymhee v. Brown, 3 Ex. 117 ; and Younff v. Master of Clare Hall, 17 Q. B. 529, 21 L. J., Q. B. 12. Sect. 5. — Account of the Tithe Commutation Acts. The principal Tithe Commutation Acts are as follow : — 1. 6 & 7 Will. 4, c. 71, intituled " An Act for the Com- mutation of Tithes in England and Wales." 2. 7 Will. 4 & 1 Vict. c. 69, intituled " An Act to amend" the fore- going Act. 3. 1 & 2 Vict. c. 64, intituled " An Act to (s) Story on Equity Jurispru- ss. 44, 49; 5 & 6 Vict. c. 54, s. 7. dence, s. 520. (u) Vide infra, Sects. 16 and (0 See 6 & 7 Will. 4, c. 77, 17. 1504 rKorEiiTY of the ciiukch. Tithe Commu- flicilitate tlic :Mcrgcr of Tithes in Land." 4. 2 & 3 Vict. tation Acts ; ^ gg^ intituled " An Act to explain and amend the Acts for the Commutation of Tithes in England and Wales." 5. 3 & 4 Vict. c. 15, intituled " An Act further to explain and amend the Acts for Commutation of Tithes in England and Wales." 6. 5 & 6 Vict. c. 54, intitided " An Act to amend the Acts for the Commutation of Tithes in Eng- land and Wales, and to continue the Officers appointed under the said Acts for a Time to be limited." 7. 9 & 10 Vict. c. 73, intituled " An Act further to amend the Acts for the Commutation of Tithes in England and Wales." 8. 23 & 24 Vict. c. 93, intituled " An Act to amend and further extend the Acts for the Commutation of Tithes in England and AVales"(u). rrinciplc of. These statutes must be considered as constituting one enactment, their principle being to substitute a corn-rent, ixujahle in money and permanent in quantity, thowjh Jluc- tuatiny in value, for all tithes, whether payable under a modus, or composition or not, which may have heretofore belonged either to ecclesiastical or lay persons. Such rent-charge is to be paid by two half-yearly payments, namely, on the 1st of July and the 1st of January in every year. Certain commissioners and assistant commissioners were appointed to execute the provisions of this act (.r). Two modes were allowed of ascertaining the gross amount of the rent-charge, payable in respect of the tithes {y) of the whole parish. 1, a voluntaiy agreement, or after a specified period had elapsed Avithout any such arrangement being adopted, 2, a compulsory award. These acts are not to affect tithes due before the commutation (r), and make provision for payments due for the period interven- ing between the end of former compositions and the com- mutation («). False e-sadence given before the commis- sioners under this act was to be esteemed as perjury, and withholding eA^dence a misdemeanor (i). These provisions in the fu-st acts have been supplemented and in some few respects modified by the later acts. They are all however now rather matters whose importance has passed, as the commutation of the tithes has been some time completed. The following are the several sections bearing upon the procedure to a commutation ; 6 & 7 Will. 4, c. 71, ss. 10—28, 32, 35, 39, 44—54, 59—61, 65, (v) Tlie following acts also mentioned below. bear on this subject: 10 & 11 (^) 6 & 7 Will. 4, c. 71, s. 89. Vict. c. 104 ; 14 & 15 Vict. c. 53 ; (a) 7 Will. 4 k 1 Vict. c. 69, 31 & 32 Vict. c. 89. s. 10. (.t) Vide infra, Sect. 18. {h) 6 & 7 Will. 4, c. 71, ss. 10, (?/) Certain exceptions are 93. See 3 & 4 Vict. c. 15, s. 24. TITHES AND KENT-CIIAKGES. 1505 73-76; 7 Will. 4 & 1 Vict. c. 69, ss. 1, 4—6, 9, 11; 2 & 3 Vict. c. 62, ss. 8, 10, 22—25 ; 3 & 4 Vict. c. 15, ss. 1—12 (temporary), 13, 15, 16, 20—24; 5 & 6 Vict. c. 54, ss. 1—4, 9—11. It should perhaps also be noticed that, questions having often arisen during the process of commutation as to the boundax'ies of parishes, the commissioners have been em- poAvered to decide on such boundaries in many cases (c). It may be well in this place to observe some of the piin- Peculiarities of cipal features which discriminate the new from the old law ^^^ ^^^ ^^^'''• on tithes. 1. Under the old law there could not have been a dis- tress for tithes, but under the new law the mode of re- covering the rent-charge in arrear is, as will be seen below, by distraining for it in the same manner as a land- lord recovers his rent. When the rent-charge has been twenty-one days in arrear its owner may distrain, but not for more than two years' rent-charge ; and if the rent- charge shall have been forty days in arrear, possession of the land may be given to the owner of the rent-charge, until the arrears and costs are satisfied [d). 2. If the interest of the owner of the rent-charge shall have ceased before the 1st of January or 1st of July (the appointed times of payment), such owner or his represen- tative Avill be entitled to a proportional part of the rent- charge for the time Avhich may have elapsed from the last day of payment to the time of his interest determining ( e). 3. If the lands be uncidtivated they are nevertlieless liable to the rent-charge, but not if they have been wasted away by the sea or otherwise destroyed by any natru-al casualty (/). 4. Where a rent-charge is payable to a spiritual incum- bent, a portion of land not exceeding twenty acres may be given in lieu of all or part of the rent-charge {(/). 5. The rent-charge may at the request of the land-owner (certain forms being observed) be confined to a part of the laud, on the whole of Avhich it may have Ijeen ajiportioned ; the value of such land being treble the value of the appor- tioned rent-charge (A). 6. Tithes, or rent-charge in lieu thereof, may in certain (c) 7 Will. 4 & 1 Vict. c. c. 71, s. 86. GO, ss. 2, 3; 2 & 3 Vict. c. 62, (/) Vide post, 6 & 7 AVill. 4, ss. 34, 35, 36 ; 3 & 4 Vict. c. 15, c. 71, s. 85. s. 28. (r/) Vide pns^t, 6 & 7 Will. 4. ((/) Vide iMHt, 6 6c 7 Will. 4, c. 71, ss. 29, 62. c. 71, ss. 81, 82. (//) Vide past, 6 & 7 AVill. 4, (t) Vide post, 6 & 7 Will. 4, c. 71, ss. 58, 72. io{)6 niOPEUTY OF THE tiiLiaii. Conveyances and wills of tithes. Leases and aj^reements under Tithe Commutation Acts. Redemption of small rent- chai-jrcs. iii.stances he merged («') in land. Tithes formerly could not have Lcen so merged. But (A) "impropriate tithes arc still kept distinct from the land, and notwithstanding unity of possession, they continue to be held under sepa- rate titles. In conveyances and wills made subsequently to the purchase of the tithes by the owner of the land, they will not pass unless they be expressly named. In consequence of inattention to that circumstance, and an apprehension that after the purchase of the tithes the land was tithe free, the tithes have not in many cases been mentioned in subsequent wills and conveyances ; by which omission, the intention that the land should pass discharged of tithes has been defeated, the tithes going in one line, and the land subject to the revived burden of tithes in another. The real property commissioners proposed that the owner, having the legal and beneficial estate in fee in tithes, should have power given to him of merging those tithes in the land, and that the land for ever thereafter should be discharged of tithes (/). The above suggestion, how^ever, has not been carried into effect by the recent statvites relating to real property. *' The same thing may happen with respect to the rent- charges allotted to impropriators, or purchased by the OA^mers of lands ; and unless the tithes or rent-charges be extinguished by a declaration made tmder the 71st section of the above act(wi), it will be necessary to name expressly the rent-charge in lieu of tithes in conveying the lands upon which it is charged." 7. In all leases and agreements made subsequently to the commutation of tithes into rent-charge, the landlord is liable to the payment of the rent-charge instead of the occupying tenant (w). 8. Small rent-charges may be redeemed by payment of a sum of money not less than twenty-four times the amount of the rent-charge at the time(o). 9. Barren or waste land in a parish where the tithes have been commuted docs not, on being brought into cul- tivation, pay tithes under 2 & 3 Edw. 6, c. 13, s. 5{p), except the extraordinary hop or fruit tithe ((/). (i) Vide post, 6 & 7 Will. 4, c. 71, s. 71, and subsequent acts. (/■) Tliis is an extract from a valuable note of Mr. i^helford'.s, in his work on the Titlie Com- mutation Acts. (/) Vide 1st Real Property Kep. pp. 55, 56. (m) i.e., G& 7 Will. 4, c. 71. («) Vide post, 6 & 7 Will. 4, c. 71, ss. 70, 79, 80. (o) 9 & 10 Vict. c. 73, ss. 1—12. (p) Vide supra, p. 1489. (7) 6& 7AVill. 4, c. 71, s. 67; Wcdsh V. Trimmer, 2 L. It., II. L. 208. I TITHES AND KEXT-CIIAEGES. 1507 Sect. 6. — Of the Rent-charge substituted for Tithes. 6 & 7 AVill. 4, c. 71, after providing that tlie land- owners shall appoint the valuers of the tithes to be com- muted, enacts as follows : By sect. 33, " As soon as may be after the clioosing of such valuer Valuers to ap- or valuers, and after the confirmation of the said agree- portion the ment, the valuer or valuers so chosen shall apportion the ^^° "^ ^^^^' total sum agreed to be paid by way of rent-charge instead of tithes, and the expenses of the apportionment, amongst the several lands in the said parish, according to such principles of apportionment as shall be agreed upon at the meeting at which the valuer or valuers shall be chosen, or if no principles shall be then agreed upon for the guidance of the valuer or valuers, then having regard to the average titheable produce and productive quality of the lands, ac- cording to his or their discretion and judgment, but sub- ject in each case to the provisions hereinafter contained, and so that in each case the several lands shall have the full benefit of every modus and composition real, pre- scriptive, and customary payment, and of every exemption from, or non-liability to tithes relating to the said lands respectively, and having regard to the several tithes to which the said lands are severally liable." And by sects. 36 and 37 : " After the first day of October, 1838, the commissioners After 1st Oc- shall proceed in manner hereinafter mentioned, at such tober, 1838, time and in such order as to them shall seem fit, either m™™'sJer"aTa by themselves or by some assistant commissioner, to ascer- total value of tain and award the total sum to be paid by way of rent- tithes in any charge instead of the tithes of every parish in England j|!|^"^^jj j"," _ and Wales, in which no such agreement binding upon the vious agree- Avhole parish as aforesaid shall have been made and con- n^^nt has been firmed as aforesaid : provided nevertheless, that if any °"^ ^' proceeding shall be had towards making and executing any such agreement after the commissioners shall have given or caused to be given notice of their intention to act as aforesaid in such parish, the commissioners may refrain from acting upon such notice, if they shall think fit, until the result of such proceeding shall appear." Sect. 37. " In every case in which the commissioners Value of shall intend making such award, notice thereof shall be tithes to be given in such manner as to them shall seem fit ; and after 5",pon^JJlf^^ the expiration of twenty-one days after such notice shall averape of have been given, the commissioners or some assistant com- seven years. missioner shall, except in the cases for Avhich provision is hereinafter made, proceed to ascertain the clear average 1508 riiorEKTY or the chukcii. value (after iiiakiiiff all just deductions on account of the expenses of collecting, ])i-e])ariiig; for sale and marketing, where such tithes have been taken in kind,) of the tithes of the said parish, according to the average of seven years jireceding Christmas in the year 1835 : provided, that if during the said period of seven years, or any part thereof, the said tithes or any part thereof shall have been com- poiuided for or demised to the owner or occupier of any of the said lands in consideration of any rent or payment instead of tithes, the amount of such composition, or rent or sum agreed to be paid instead of tithes, shall be taken as the clear value of the tithes included in such composi- tion, demise or agreement, during the time for which the same shall liaA^e been made ; and the commissioners or assistant commissioners shall award the average annual value of the said seven years so ascertained as the sum to be taken for calculating tlie rent-charge to be ])aid as a permanent commutation of the said tithes : provided also, that whenever it shall appear to the commissioners that the party entitled to any such rent or composition shall in any one or more of the said seven years have allowed and made any abatement from the amount of such rent or composition on the ground of the same having in any such year or years been higher than the sum fairly payable by way of composition for the tithe, but not otherwise, then and in every such case such diminished amount, after making such abatements as aforesaid, shall be deemed and taken to have been the sum agreed to be paid for any such Tithes to be year or years ; provided also, that in estimating the value valued without of the said tithcs, the commissioners or assistant commis- deduction on gioner shall estimate the same without making anv deduc- SlCCOIltlt Ol ■ *■ parochial and tion therefi'om on account of any parliamentary, parochial, county rates, county, and other rates, charges, and assessments, to ^'^^ which the said tithes are liable ; and Avhenever the said tithes shall have been demised or compounded for on the principle of the rent or composition being paid free from all such rates, charges, and assessments, or any part thereof, the said commissioners or assistant commissioner shall have regard to that circumstance, and shall make such an addition on account thereof as shall be an equi- valent." As to rates. The same rule with respect to rates is directed to be pursued in sections 40, 41, 43. And by sect. 69, the rent-charge is to be liable to the same rates as the tithes commuted have been ( 7^). (p) By sect. 38, a power was increase or diminish the .sum to given to the commissioners to be paid for commutation, and a TITHES AND RENT-CHARGES. 1509 Sect. 55. "A draft of every apportionment shall be Form of ap- made, and shall set forth the agreement or award, as the portionnient. case may be, npon which such apportionment is founded, and every schedule thereunto annexed; and the said draught or some schedule thereunto annexed, Avhether made by or under the direction of the valuers or commis- sioners or assistant commissioners, shall state the name or description and the true or estimated quantity in statute measure of the several lands to be comprised in the ap- portionment, and shall set forth the names and description of the several proprietors and occupiers thereof, and whether the said several lands are then cultivated as arable, meadow, or pasture land, or as wood land, com- mon land, or howsoever otherwise, and shall refer, by a number set against the description of such lands, to a map or plan to be drawn on paper or parchment, and the same number shall be marked on the representation of such lands in the said map or plan ; and the draught of the ap- portionment shall also state the amount charged upon the said several lands, and to Avhom and in what right the same shall be respectively payable" (q). In the case of Re Appledure Tithe Commutation (r), lie AjipleiJore there were in the parish ancient pasture lands, arable ^'^^"^f""'" ,, T TIT 1 -in-, mutation. lands, and wood lands ; and a modus ot \s. an acre was payable to the vicar for all tithes except those of corn, the wood land being exempt by custom. An award was made and confirmed. In apportioning the award the valuer imposed upon the pasture land a small charge above the \s. an acre on the ground of the possibility of its being converted into tillage. The commissioners con- firmed this apportionment. On motion for a prohibition the Court of Queen's Bench held that a prohibition would not lie to the com- missioners in the circumstances ; but that if it did, the commissioners were right. By sect. 58, the landowner may have the rent-charge specifically apportioned upon particular lands under cer- tain conditions. Sect. 72. *' If at any time subsequent to the confirma- Apportion- tion of any such instrument of apportionment the owner °|^°!^ ^^J of any lands charged with any such rent-charge shall be commissioners desirous that the apportionment thereof shall be altered, of land tax if it shall be lawful for the commissioners of land tax for the •^^^s^''^'^^' county or place where the said lands are situate, or any report was ordered to be laid accordingly done. before parliament on tlie mode of (7) See 3 & 4 Yict. c. 15, s. 21. exercising this power, which was (r) 8 Q. B. 139, 1510 rUOPEllTY OF THE CHURCH. Mode of effect- three of them, to aher the apportionment in such manner m^ this. and in such proportion and to the exclusion of such of the lands as the landowner with the consent of two justices of the peace acting for the county, riding, division or other jurisdiction in Avhicli the lands are situated, may direct ; and such altered ap])ortionment shall be made by an instrument in writing under the hands and seals of the said commissioners of land tax and of the said landowner and justices of the like form and tenor as to the said lands as the original a]:>portionment, and bearing date the day of its execution by the said commissioners of land tax, subject to the provision hereinbefore contained with respect to the value of lands on which any rent-charge may be charged on account of the tithes of any other lands ; and every such altered apportionment shall be as valid as if made and confirmed by the tithe commissioners as afore- said, and shall be taken to be an amendment of the original apportionment ; and in every such case two counterparts of the instrument of altered apportionment under the hands and seals of the said commissioners of land tax and justices and landowner, shall be sent, one to the registrar of the diocese, and one to the incumbent and church or chapel-wardens, or other person having the custody of the other copy of the original instrument of apportionment : and one counterpart shall be annexed to the copy of the instrument of ajiportionment in the custody of the registi-ar and such other person respectively, and taken to be an amendment thei'eof ; and thenceforward such lands shall be charged only according to such altered appor- tionment; and all expenses of such alteration shall be borne by the landowner desiring the same." 5 & 6 Vict. c. 54, enacts as follows : — Power to alter Sect. 14. "If at any time after the confirmation of any apportion- instrument of apportionment it shall appear that the lands ments as charged with one entire rent-charge belong to or have be- eiit owners. conie vested in several owners, and that any of the owners of such lands shall be desirous that the appoi'tionment thereof should be altered, it shall be lawful for the com- missioners of land tax for the county or place where the said lands are situated, or any three of them, to appoint, by notice under their hands, a time and place for hearing the parties to such application, and all other parties in- terested therein ; and upon satisfactory proof of such notice having been served on all parties interested full twenty-one days before the day of hearing, to proceed to alter the apportionment in such manner and in such pro- portion amongst the said lands as to them shall seem just, TTTIIES AND EENT-CHARGES. 1511 subject nevertheless to the consent of two justices of the peace, as in the said first-recited act provided ; and fiu'ther, that upon such application being made to the said tithe commissioners, they shall have the same power of making such alteration as by the said first-recited act and by this act is vested in the commissioners of land tax, and that without any such consent of two justices of the peace ; provided that no alteration of any apportionment shall be made under the first-recited act or this act Avhereby any rent-charge shall be subdivided, so that any subdivision thereof shall be less than five shillings" (s). Sect. 15. •' The registrar of every diocese, as soon as Copy of in- conveniently may be after the passing of this act, shall stniment of cause to be made and sent to the office of the tithe com- portiomiicnt to missioners a copy, certified under his hand, of every in- be sent to strument of altered apportionment in his custody Avhich '^'''''^*^ Office. was made before the passing of this act, the reasonable cost of making and sending which copy shall be defrayed by the tithe commissioners as part of the expense of putting in execution the acts for the commutation of tithes ; and after the passing of this act three counterparts shall be made of every instrument of altered apportionment at the expense of the landowner desiring the alteration ; and two of the said counterparts shall be sent as provided by the first-recited act, and the third shall be sent to or deposited in the office of the tithe commissioners, or, after the expira- tion of the tithe commissiou, shall be sent to and kept by the person having custody of the records and papers of the said commission, and shall be annexed to the instrument of apportionment in the custody of the said commissioners, or the person having the custody of their records and papers." 23 & 24 Vict. c. 93, enacts as follows : — Sect. 11. With the consent of the owner or owners of Rent-charge any lauds charged with rent-charge under any instniment "^i^y ^^ rcap- ^'' ,. , 1 ,1 11 , portioned and ot apportionment, Avnether jjayable to one or more owners redistributed of rent-charge, and without regard to the mode in which on the same or the same rent-charge is apportioned by the said instru- °" °^^^^ lauds. ment, the commissioners may by an altered apportionment reapportion and redistribute the same rent-charge over and amongst the said lands or any part thereof, and to the exclusion of any of such lands, but no rent-charge shall be charged upon any land to the exclusion of other land of the same owner, unless the land so charged with rent- charge is held for an estate in fee simple or fee tail in pos- (s) See also 3 & 4 Vict. c. 15, ss. 26, 27; and 9 & 10 Vict. c. 73, ss. 13, 14, infra. 1512 PROPERTY OF THE CHURCH. session, or unless the same and flie land so excluded are settled to the same uses. Where fenecs Sect. 12. " Where, through the removal or alteration of removed rent- fences between land charcred "with rent-charge imder any charjrc inav he., x. r i.-i. iii \ • ^ apuortioneil on instrument ot a})))ortionment and land upon "vvhich no land titlie-fice rent- charge is now charged, or Avhich is tithe-free, it be- jointl.v with comes impossible or diliicult to distinguish the limits of the land so charged Avith rent-charge, the commissioners may, with the consent of the owner of the said lands, in- clude the whole of such lands in any instrument of altered apportionment to be made by the said commissioners, and may apportion the rent-charge as well on the said land not heretofore charged as on the said land heretofore liable to the payment thereof, or on any j^art thereof, provided that the Avhole of the lands on which such rent- charge is apportioned are held for an estate in fee simple or fee tail in ]iossession, or are settled to the same uses." Land not to he Sect. 13. " Xo land shall be charged with rent-charge charged to a payable to a different owner than the rent-charge pre- owner than viously cliarged thereon was payable to, without the con- before with- sent in writing of the owner of the rent-charge so proposed out consent. ^^ -^^ charged, except in cases of altered apportionment after inclosm'e." Consent of Sect. 14. " It shall not be necessary to obtain the con- landowner not ggj^^ Qf ^^j landowner to an altered apportionment whose hTsfands^ai-r^ lands are not charged with rent-charge by such altered not charged. appoi'tionmcnt." Power to com- Scct. 15. "Whenever it shall appear to the commis- mis.sioners to sioners that any instrument of apportionment shall have fJ^L?l!f°'' been altered by successive instiimients of altered appor- ■where succcs- tionment, so as in the judgment oi the commissioners to sive alterations render the Collection of the rent-charge upon the lands in- inconveniMU cluded iu sucli apportionment and altered apportionments ordiflicnlt, i)iit unreasonably inconvenient or dilficult, the commissioners not to alter may, upon the application of the person or persons entitled amount, &c. ^^ guch rent-charge or any part thereof, and without notice to or the consent of any owner of such lands, make a further instrument of altered apportionment as regards the whole of the said lands, or such portions thereof as to them shall seem fit, but Avithout making any alteration in the amount charged on the lands of any particular owner, and the altered apportionment so made by the commis- sioners shall be taken to be an amendment of and in sub- stitution for so much of the said original apportionment and altered apportionments as relates to the lands included in tlie said lastly made altered apportionment." Power to com- Sect. IG. "Whenever any new boundaries of parishes missioncrs to TITHES .VND EENT-CHARGES. 1513 shall have been or shall be set out upon any inclosure or alter appor- otherwise, and it shall api^ear to the commissioners that tionment '. ,^,1,1 • 1 • 1 • where boim- the apportionment or the rent-charge in such parishes is daries of thereby rendered inconvenient, the commissioners may parishes have make and confirm an altered instrument of apportionment ^^^^ altered. adapted to the altered distribution of the lands in such parishes or any of them, and to the new boundaries which shall have been so set out, or otherwise the commissioners may, by an order under their hands and seal, declare the lands which shall be affected by such alteration of boun- daries, either with or without any other lauds comprised in such inclosure, and whether such lands are situate in one or more parishes, to be a separate district for the pur- poses hereinafter mentioned, and may make and confirm an altered instrument of apportionment adapted to the altered distribution of such lands, with reference to the OAvners both of the lands and rent-charge in such district, and the commissioners may determine that the amount of rent-charge payable to each of the owners of rent- charge in such district shall be fixed and apportioned upon such particular lands as to them shall seem convenient, so that no lands are charged with more than their due proportion of rent-charge ; and every such determination shall be binding and conclusive, and such altered appor- tionment, when confirmed, shall be annexed to the original apportionment for that parish from which the greatest amount of rent-charge is payable under the altered appor- tionment, and counterparts thereof shall be annexed to the original apportionment for each of the other parishes com- prised in such district, and coj^ies thereof shall be deposited in respect of each several parish comprised in the district, in conformity with the provisions of the said recited acts.*" Sect. 17. '' All the powers given by the said recited acts Powers for or by this act in relation to the alteration of instruments altering ap- of apportionment shall extend to all altered apportionments 0° awards. and to awards of rent-charge in lieu of corn rents, and to awards under local acts by which any rent-charge is awarded in lieu of tithes, glebe or commonable or other rights or easements." By 6 & 7 AVill. IV. c. 71, s. 56, "Immediately after Comptroller of the passing of this act, and also in the month of January com returns to in every year, the comptroller of corn returns for the time average price being, or such other person as may from time to time be of coru. in that behalf authorized by the privy council, shall cause an advertisement to be inserted in the London Gazette, stating what has been, during seven years ending on the Thursday next before Christmas-day then next preceding, p. VOL. 11. 5 E 1514 rROPEllTY OF THE CnURCU. Ecnt-chargcs to be valued according to the average price of corn. Prices at which conver- sion from money into com is to be made. Confirmation by tlie com- missioners. Transcripts of the award to l)e sent to the registrar of the diocese and to the inciimbent and church- wardens. tlie average price of an imperial bushel of British wheat, barley, and oats, computed from the weekly averages of the corn returns." Sect. 57. " Every rent-charge charged upon any lands by any such intended apportionment shall be deemed at the time of the confirmation of such apportionment, as hereinafter provided, 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 pur- chased at the prices so ascertained by the advertisement to be published immediately after the passing of this act, in case one-third part of such rent-charge had been invested in the purchase of w'heat, one-thu'd part thereof in the purchase of barley, and the remaining third part thereof in the purchase of oats, and the respective quantities of wheat, barley and oats, so ascertained, shall be stated in the draught of every apjiortionment." By 7 Will. 4 & 1 Vict. c. 69, s. 7, these prices are settled to be " The prices at which the conversion from money into corn is to be made, at the time of the confirma- tion of each apportionment, according to the provisions of the said act, are seven shillings and one farthing for a bushel of wheat {t), three shillings and eleven pence half- penny for a bushel of barley, and two shillings and nine pence for a bushel of oats." And by 6 & 7 Will. 4, c. 71, it is enacted : Sect. 63. " After such proceedings as aforesaid shall have been had, and all such objections, if any, shall have been finally disposed of, the commissioners or assistant commissioner shall cause the instrument of apportionment to be ingrossed on parchment, and shall annex the map or plan thereunto belonging to the ingrossed instrument of apportionment, and shall sign the instrument of a]:)portion- ment and the map or plan, and shall send both to the office of the commissioners ; and if the commissioners shall approve the apportionment, they shall confirm the instru- ment of apportionment under their hands and seal, and shall add thereunto the date of such confirmation." Sect. 64. " Two copies of every confirmed instrument of apportionment, and of every confirmed agreement for giving land instead of any tithes or rent-charge, shall be made and sealed with the seal of the said commissioners, and one such copy shall be deposited in the registry of the diocese Avithin which the parish is situated, to be there kept among the records of the said registry, and the other (0 The Gazette (Dec. 9, 183G) made this 7s. Hd. TITHES AND RENT-CHARGES. 1515 copy sliall be deposited witli the incumbent and churcli or chapel-wardens of the parish for the time being, or such other fit persons as the commissioners shall approve, to be kept by them and their successors in office with the public books, writings, and papers of the parish ; and all persons interested therein may have access to and be fur- nished Avitli copies of or extracts from any such copy on giving reasonable notice to the person having custody of the same, and on payment of two shillings and sixpence for such inspection, and after the rate of three pence for every seventy-two words contained in such copy or extract ; and every recital or statement in or map or plan annexed to such confirmed apportionment or agreement for giving land, or any sealed copy thereof, shall be deemed satisfiic- tory evidence of the matters therein recited or stated, or of the accuracy of such plan." Sect. 66. " No confirmed agreement, award or appor- tionment, shall be impeached after the confirmation thereof by reason of any mistake or informality therein, or in any proceedings relating thereunto (^^)." In the case of Clarke v. Yonge(^x), it was decided, that though a confirmed award under this section is final as between the tithe-owners and tithe-payers, it does not exclude from further investigation a case between the tithe-owners themselves, in which there was, before the award was made, a just title to a portion of the tithes, which by mistake was not brought forward till after the award was made. Similarly, it was holden in the case of Edwards v. Bunhury (y), that a commissioner had no jurisdiction in a contested case to decide who was the person entitled to a particular rent-charge. By 9 & 10 Vict. c. 63, it is thus enacted : — Sect. 15. " Where by any agreement or award made under the provisions of the said acts a rent-charge has been or shall have been agreed or awarded to be paid to any person in lieu of any tithes, and after the apportion- ment of such rent-charge shall have been made and con- firmed under the provisions of the said acts it shall appear that some tithes included in the aggregate tithes in lieu of which such rent-charge shall have been so agreed or awarded to be paid, or some portion or undi\aded share Confinned agreements, &c. not to be questioned. ClarTte v. Tonge. Eihvards v. Bunhury. Supplemental apportionment of a rent- charge as made payable to one owner in respect of tithes belong- ing to several owners or held in separate rights. (w) This section was furtlier confirmed by 10 & 11 Vict. c. 104, s. 2. (./•) 5 Beav. 523 (1842). (y) 3 Q. B. 885; 3 G. & D. 229 ; see also Reg. v. Tltlie Com- missioners, 15 Q. B. 620. 5 E 2 1516 PROPERTY OF THE CHURCH. 9 & 10 Vict, of some tithes so included, were or was at the time of such c. 63, ?. lo. agreement or award the property of some person other than the person to whom the same rent-charge was so agreed or awarded to be paid, or that tlie whole of the tithes included in the aggregate in respect of which such rent-charge Avas agreed or awarded to be paid Avere not held by the person to whom such rent-charge was so agreed or awarded to be paid in the same right and for the same estate, or were not subject after the determination of the estate of such person to the same limitations or estates legal and equitable, it shall be lawful for the com- missioners in any of the cases afoi*esaid, in pursuance of or in accordance Avith the decree or direction of a court of equity of competent jurisdiction, or on the request in AA'riting of the parties who for the time being in case there had been no commutation AAould haAC been the OAA-ners of all the tithes included in such aggregate, to make or con- firm a supplemental aAvard or ajiportionment of such rent- charge in such manner that, Avithout alteinng the aggregate amount of rent-charge to Avhich any OAAiier of land may be subject, separate rent-charges or separate portions of rent- charge may be made payable to the parties aa'Iio woidd haA'e been owners of the tithes in case they had not been extinguished in lieu of the scAcral titlies or poi'tions of tithe included in such aggregate Avhich Avould belong to different persons, or be held in different rights, or be subject to different limitations or estates ; and by such supplemental award and apportionment the commissioners, if they shall so think fit, may apportion or aAvard to be paid to one of the respective OAvners, or to the OAA'ner in lieu of one of his respectiA'e rights, the Avhole of any rent- charges payable under the original insti'ument of appor- tionment out of specific lands, instead of diAdding each rent-charge made payable in lieu of the aggregate of the tithes of each parcel of land betAA'een or among the OA\Tiers of the separate titlics arising out of such parcel ; and such supplemental aAvard and a])])ortionment, when confirmed by the commissioners imder their hands and seal, shall take effect from the half-yearly day of payment Avhich shall happen next after the confirmation thereof." I'owcr to make By scct. 16, the commissioners are empoAvered to declare a separate dis- ^^^^^ lands as to which before ai)portionment doubts haA^e tnct tor . Ill ^ • 1 special lands, arisen, as to whether they are or not exempt fi-om tithe, or subject to some modus, or as to the boundaries of the j^arish in Avhich they lie, shall be a separate district for commutation, so that the awards may be confirmed as to the other lands in the parish. Sujiplemental aAvards may TITHES AND RENT-CHARGES. 1517 also be made for contingent rent-cliarges under 2 & 3 Vict. c. 62, s. 11, and 3 & 4 Vict. c. 15, s. 14, for inclosures of lands, and for other pm-poses. Sect. 17. "Where the place of deposit of the copy Place of de- of a confirmed instrument of apportionment, which bj posit of copy 6 & 7 Will. 4, c. 71, is directed to be deposited with the apportionment incumbent and church or chapel-wardens for the time may be altered being, or such other fit person as the commissioners shall ^^ quarter approve, shall be alleged to be inconvenient to the majority of the persons interested therein, or otherwise inconvenient or unsafe, it shall be lawful for any person interested iu the lands or rent-charge to which such apportionment shall relate to apply to the court of general quarter sessions of the peace for the county, ridmg, division or place in which such place of deposit shall be situate for an order for the deposit of such copy in some more convenient or secure custody or place, and fourteen days' notice in waiting of every such application shall be given to the persons in whose custody such copv shall at the time of such applica- cation be deposited ; and it shall be la^^^ul for the court at the quarter session for which such notice shall ]ye given to hear and determine such application in a summary way, or they may, if they think fit, adjourn it to the following session ; and upon the hearing of such application the court may, if they think fit, order such copy to be removed fi'om the custody of the persons Avith whom the same shall have been deposited, and to be deposited with such other persons or in such other custody as the court, ha\"ing reference to the security and due preservation of such copy, and to the convenience of the parties interested therein, may think fit, and may make such order concern- ing the notice to be given of such removal and deposit, and concerning the costs of such application, or of any opposition thereto, as they may think reasonable," It is enacted as follows by 23 & 24 Vict. c. 23 :— Sect. 28. " Whenever any person, other than the persons Justices may legally entitled to the possession of the same, shall have c-der an in- possessioii of the sealed copy of any confirmed instrument apportionment of aj^portionment, it shall be lawful for any two justices of to be restored the peace for the county or other iurisdiction within which ^° proper the lands mentioned m the said apportionment are situate, upon the application of any person interested in the lands or rent-charge, and uji on fourteen days'' notice in writing of such application to the person or persons in whose custody such copy shall be at the time of such application, to hear and determine such application ; and upon hearing such application the said justices may order such copy to 1518 TROrERTY OF THE CHURCH. 23 & 24 Vict, c. 23, s. 28. Map may be detached. Renewal of defaced co]iy. Corrections. Lands to be discbar<;ed from tithes, and rent- charge ])aid in lieu thereof. be removed from tlio custody of the person lioldinfr tlio same, and to be deposited in such other custody as the said justices, having reference to tlie security and due preservation of sucli copy, and to tlic convenience of the parties interested therein, may think fit, and may impose a fine, not exceeding twenty shilhngs, for each day that any sucli copy shall be retained, contrary to the terms of such order, upon the person so retaining it, and may make such further order concerning the notice to be given of such removal and deposit, and concerning the costs of such application and the said fine, or of any opposition thereto, as they may think reasonable." A notice under this section must be a notice that an application has been made, not of an intention to apply (a). By sect. 26 the commissioners may order the map to be detached in suitable cases from the instrument of apportionment. By sect. 27, Avhen the original instniment of apportion- ment has been destroyed or defaced, the commissioners may require the copy deposited in the parish or in the diocesan registry to be delivered up to them for a limited time for the purpose of restoring their defaced instrument, or making a new copy, Avhere it has been lost. Such restorations or copies are to have the force of originals. By 10 & 11 Vict. c. 104, s. 4, the commissioners could require an erroneous apportionment to be delivered up to them for correction. 6 & 7 Will. 4, c. 71, proceeds to enact as follows: — Sect. 67. " From the first day of January next follow- ing the confirmation of every such apportionment the lands of the said pai-ish shall be absolutely discharged from the payment of all tithes, except so far as relates to the liahiliti/ of any tenant at rack-rent dissenting as hereinafter pro- vided, and instead thereof there shall be payable thence- forth to the person in that behalf mentioned in the said apportionment a sum of money equal in value, according to the prices ascertained by the then next ])reccding ad- vertisement, to tlie quantity of wlieat, barley and oats, respectively mentioned therein to be })ayable instead of the said tithes, in the nature of a rent-charge issuing out of the lands charged therewith ; and sucli yearly sum shall be payable by two equal half-yearly j^ayments on the first day of July and the first day of January in every year ; the first payment, except in the case of barren reclaimed lands, as hereinafter provided, being on the first day of July next (rt) Rrg. V. Saycrs, 3 L. T., N. S. 405. TITHES AND EENT-CHARGES. 1310 after the lands shall have been discharged from tithes as aforesaid ; and such rent-charge may be recovered at the suit of the person entitled thereto, his executors or adminis- trators, bj distress and entry as hereinafter mentioned ; and after every first day of January the sum of money thence- forth payable in respect of such rent-charge shall vary so as always to consist of the price of the same number of bushels and decimal parts of a bushel of wheat, barley and oats respectively, according to the prices ascertained by the then next preceding advertisement ; and any person entitled from time to time to any such varied rent-charge shall have the same powers for enforcing payment thereof as are herein contained concerning the original rent-charge : provided always, that nothing herein contained shall be taken to render any person whomsoever personally liable to the payment of any such rent-charge ; provided always, Payment of that the rent-charge which shall be apportioned upon any rent-charge on lands in the said parish which, diu-ing any part of the said lamls'tobe period of seven years preceding Christmas, 1835, were postponed exempted from tithes by reason of having been inclosed until tithes under any act of parliament, or converted from barren ^c°cn due^° heath or waste ground, shall be payable for the first time on the first day of July or first day of January next following the confirmation of the apportionment which shall 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." The w^ords in this clause " except so far as relates to the liability of any tenant at rack-rent as hereinafter pro- vided," refer to sect. 79, which is now of no practical importance. Sect. 80. " Any tenant or occupier at the time of such Tenant paring commutation who shall have signified his dissent from icnt-charge to being bound to pay any such rent-chai-ge as aforesaid, or sanicinac- wdio shall hold his lands under a lease or agreement pvo- connt with his viding that the same shall be holden and enjoyed by him landlord. free of tithes, and every tenant or occupier who shall occupy any lands by any lease or agreement made subse- quently to such commutation, and who shall pay any such rent-charge, shall be entitled to deduct the amount thereof from the rent payable by him to his landlord, and shaU be allowed the same in account Avith the said landlord." By sect. 88, lessees of tithes might surrender their leases imder certain conditions. If they did not, they continued liable on their covenant to pay the old rent (b). (6) Tasker v. Dullman, 3 Ex. 351; 18 L. J., Ex. 153 (1841). 1520 rROrERTY OF THE CHURCH. Fixed rcnt- chart^c may be substituted for (■ontin{;cnt rent-charge on lauds partially exempt. Extension of powers to sub- stitute fixed rent-charge in- stead of con- tingent rent- charge. By 2 & 3 Vict. c. 62, s. 1 1, tlie following power is given to substitute a Jixed for a contingent rent-charge in the cases of exemjit and croAvn lanris. " AVlierc lands arc exeinjited from the payment of tithes, or of rent-charge instead of titlies, Avhil.st in the occupation of the owner of such lands, by reason of having been parcel of the possessions of any privileged order, it shall be lawfld for the respective owners of the said lands and tithes or rent-charge, by the parochial agreement for the rent-charge, or by a supplemental agreement in cases where the parochial agreements or any award shall have been confirmed by the said commissioners, to be made in such form as the commissioners shall direct or approve, to agree to the payment, or for the commissioners in the case of a compidsory award, with the consent of the respective OAvners of the said lands and tithes, to award the payment of a fixed and continuing rent-charge, without regard to the change of occupation or mauurance of such lands, equivalent in value, according to the judgment of the com- missioners, to such contingent rent-charge ; and such lands shall, from the date of the confirmation by the commis- sioners of such parochial agreement or supplemental agreement or award, as the case may be, or fi'om such date as shall be fixed by the parties, with the approval of the said commissioners, in any such agreement or suj^ple- mental agreement, be subject to such fixed rent-charge instead of the contingent tithes or rent-charge to which such lands were subject pi'cvious to such agreement or su]iplemental agi'eement or award being made ; and every such fixed rent-charge shall from such period respectively be paid and recoverable by the means provided in the said acts, in like manner as if the same had been the rent- charge originally fixed in any parochial agreement or award in respect of the said tithes." This power is thus extended by 3 & 4 Vict. c. 15, s. 14. After reciting the power given by the last act it provides that — " Such ])ower shall extend to all cases where, l)y reason of lands being ])artially exempted from the payment of tithes, by custom or otherwise, or by being subject to a shifting or leaping modus, or other customary payment, or rendered due only on certain contingencies, a contingent rent-charge has been already fixed, or would, according to the provisions of tlie said firstly-recited act, be fixed in respect of such lands; and it shall be lawful for the said commissioners, with such consent of both land-owners and tithe-owners as in the said lastly-recited act is required in that respect, at any time before the con- TITHES AND EENT-CHAEGES. 1521 firmation of the apportionment of any rent-cliarge, by any award, or by a supplemental aAvard, where an award or parochial agreement has been made before the passing of this act, or for the land-owners or tithe-owners by a paro- chial agreement or supplemental agreement where a paro- chial agreement or award has already been made in respect of such lands, to exercise such powers in such manner and subject to the same conditions as are given by the said lastly-recited act in cases of lands formerly part of the pos- sessions of a pri\dleged order : provided always, and it is hereby declared, that nothing herein contained extends to cases of change of cultivation only, nor to cases of pre- scription relating to woodland." By 2 & 3 Vict. c. 62, s. 12, "'And whereas certain crown lands, by reason of their being of the tenure of ancient demesne or otherwise, are exempted from payment of tithes whilst in the tenure, occupation, or manurance of her Majesty, her tenants, farmers, or lessees, or their under- tenants, as the case may be, but become subject to tithes when aliened or occupied by subjects not being tenants, farmers, or lessees of the crown, and doubts have arisen how far the provisions of the said first-recited act relating to lands heretofore parcel of the possessions of any privi- leged order, or in the nature of glebe, or otherwise in like manner pri^aleged and partially exempt, are applicable to such crown lands ;' be it declared and enacted, that all and every the said provisions of the said first-recited act do extend to such crown lands, and that the provision lastly in this act contained for substituting a fixed rent- chai-ge instead of a contingent rent-charge on lands par- tially exempt from tithes shall extend and be applicable to such crown lands as aforesaid : provided always, that no such fixed rent-charge shall be substituted instead of such contingent rent-charge on such crown lands without the consent of the persons or officers who are by the said first- recited act I'espectively required to be substituted in cases of commutation of tithes where the ownership of lands or tithes is vested in her Majesty" (c). 4 & 5 Vict. c. 39, " An Act for amending the Acts relating to the Ecclesiastical Commissioners," enacts by sect. 29, that "the term ' tithes' in either of the said acts(c?) or in this act contained shall extend to and com- prehend rents-charges allotted or assigned in lieu of tithes; and the ecclesiastical commissioners for Eno-land shall, in Provisions of 6 & 7 AVill. 4, c. 71, ss. 43 and 71, for substituting fixed rent- charge, ex- tended to crown lands. Provisions of Tithe Commu- tation Acts extended to ecclesiastical commissioners. (c) Tliis removes certain doubts created by sects. 43 and 71 of G & 7 Will. 4, c. 71. (d) G & 7 AYill. 4, c. 77; 3 & 4 Viet. c. 113. 1,122 ruorEUTY OF the ciiuucir. Power to sell farm Iniildiugs and sites. Power to charj^e ex- penses of com- iiuitation. respect of all lands, titlics, tenements, or oilier herecllta- ments, endowments, or emoluments, already vested or liable to l)e vested in them l)v or under the provisions of either of the said acts or of this act, ))e deemed to be the owners or joint owners thereof respectively, as the case may be, for all the purposes of G & 7 Will. 4, c. 71, and of the several acts to amend and explain the same." By 6 & 7 \s\\\. 4, c. 71, s. 87, provision is made for the sale of buildinp;s and the sites thereof rendered useless or unnecessary by the commutation of tithes. And 2 & 3 Vict. c. 62, s. 15, extends these provisions to collegiate and corporate bodies. By 6 & 7 AVill. 4, c. 71, ss. 77, 78, any owner of a limited estate in lands or any ecclesiastical owner of lands may charge the expenses of commuting the tithes on those lands u])on the lands themselves for twenty years. By 2 & 3 Vict. c. 62, s. 16, the same power is given to all cor- porations, cathedral, collegiate, or otherwise ; and by sect. 1 7 , colleges or ecclesiastical corporations ar/grefjate may, with the consent of the commissioners, charge these expenses on any other lands belonging to them. &c. Sect. 7. — Rcnt-charf/e on Lammas Lands, Commons in Gross, and gated or stiiited Pastures. By 2 & 3 Vict. c. 62, it is enacted as follows : — Provision for Sect. 13. " ' Whereas large tracts of land called lammas tithes of lands are in the occupation of certain persons during a kmraas lands, pQi'tion of the year only, and are liable to the tithes of the produce of the said lands increasing and growing thereon during such occupation, and at other portions of the year are in the occupation of other persons, and in their hands liable to different kinds of tithes arising from the agist- ment, produce, or increase of cattle or stock thereon ; and bv reason of such change of occupation such last-mentioned tithes cannot be commuted for a rent-charge issuing out of or fixed upon the said lands, and the said recited acts are thereby rendered inoperative in the several parishes where such lammas lands lie : And whereas the said acts are in like manner inoperative in certain cases where a personal right of commonage, or a right of common in gross, is vested in certain persons by reason of inhabitancy or occupation in the parish where any common may lie, or by custom or vicinage, but Avithout having such right of common so annexed or ajjpurtenant to or arising out or in respect of any lands on which any rent-charge could be TITHES AND RENT-CHARGES. 1523 fixed instead of the tithes of the cattle or stock, or their produce, increase, or agistment, on snch common, annexed to such personal right ;' for remedy thereof be it enacted, that in every case where by reason of the peculiar tenure of such lands, and the change during the year of the occu- piers thereof, or of such right of commonage, a rent-charge cannot, in the judgment of the said commissioners, be fixed oil the said lands in respect of cattle and stock re- ceived and fed thereon, or of the produce and increase of such cattle and stock, at such portion of the year as the said lands are thrown open, or where such right of com- monage alone exists, it shall be lawful for the parties inte- rested in such lands or commons and the tithes thereof in the case of a parochial agreement, or for the commissioners in the case of a compulsory award, in every such parochial agreement or award respectively, or by any supplemental agreement in the nature of a parochial agreement, or by a supplemental award, as the case may be, where any pa- rochial agreement or award has been already made, to fix a rent-charge instead of the tithes of such lammas land or commons, to be paid during the separate occupation thereof by the separate occupiers, in like manner as other rent-charges are fixed by the said acts or any of them, and to declare in such agreement or award, or supplemental agreement or award, as the case may be, such a sum or rate per head to be paid for each head of cattle or stock turned on to such lammas land or commons by the parties entitled to the occupation thereof after the same shall have been so thrown open, or by the parties entitled to such right of commonage as aforesaid; and every such sum shall be ascertained and fixed upon a calculation of the tithes received in respect of such last-mentioned occupa- tion or right for the period and according to the provisions for fixing rent-charges in the said recited acts, and shall be due and payable by the owner of such cattle or stock on the same being first turned upon such lands or com- mons, and shall be recoverable by the persons entitled thereto by distress and impounding of the cattle or stock in respect of which such sum shall be due, in like manner as cattle are distrained and impounded for rent, and be subject to the same pro\asions as to distress and replevin of the same as are by law provided in cases of distress for rent : pro^^ded always, that nothing herein contained shall extend to lammas lands Avliere no tithes or ^layments in- stead of tithes have been taken during the seven years ending at Christmas one thousand eight hundred and thirty-five in respect of the cattle or stock received and 1524 TKOrERTY OF THE CHURCH. Rent- charge in respect of tithes of com- mon appurte- nant to he a chiirge on the allotments made in respect of the lands to which right of com- mon attached. Extension of powers in respect of lammas and common lands. Alteration of a])f)()rtionment may be made after inclosurc, &c. fed tlicrcoii, or of the produce and increase of such cattle or stock at such portion of" the year as tlie said lands are thrown open." Sect. 14. " ' Whereas in certain cases of commons here- after to be inclosed allotments may be made in respect of tenements and hereditaments to -which a right of going on such common is appendant or appurtenant, the tithes whereof would be cliargeable on the tenements or lieredi- ments in respect of which such allotments may be made, and such tenements or hereditaments are not of themselves an adequate security for the rent-charge to be fixed in respect of such tithes ;' be it therefore declared and enacted, that in every such case the rent-charge to be fixed instead of such tithes shall be a charge upon and recoverable out of any allotments to be in future made in respect of such rights, as w^ell as upon such tenements or hereditaments in respect of which such allotments are made, and by the same ways and means as are provided for the recovery of rent-charges by the said acts or any of them, or this act." By 3 & 4 Vict. c. 15, s. 15, " ' Whereas by the said lastly-recited act certain provisions are made and poAvers given in respect of the tithes of lammas and common lands, Avhich powers are to be exercised by the land-owners and tithe-owners by parochial agreement, or by a supplemental agreement after a parochial agreement, and by the commis- sioners by compulsory award, or by a supplemental award after an aAvard ;' be it enacted, that such provisions may be carried into effect and such powers exercised at any time before the confirmation of the ap])ortionment of any rent- charge, by the land-owners and tithe-owners by a supple- mental agreement after an aAvard, or by the commissioners by a supjilemental award after a parochial agreement." ' By 9 & 10 Vict. c. 73, s. 13, it is enacted, that " Where lands now charged or hereafter to be charged with rent- charges or portions of rent-charges under confirmed instru- ments of a]iportionmcnt have been or shall be (after the confirmation of such apportionment) inclosed or divided, allotted or exchanged, by agreement or award made under the powers of any general or local act of inclosure (or other- wise), in such manner that the apportionment shall appear to the commissioners to be inconvenient with reference to the altered distribution of the land among the several owners thereof, it shall be lawful for the commissioners, upon the ap])lication of the owners of such lands, or the majority in number and value of such owners, or upon the ajipHcation of the person or persons entitled to such rent- TITHES AND EENT-CIIARGES. 1525 charges or portions of rent-cliarges, or any of them, to make or confirm an altered instrument of apportionment adapted to the altered distribution of the lands, in order that the rent-charges or portions of rent-charges originally charged on the several portions of land which shall have been taken or allotted away from the former owners on such inclosure, division, allotment, or exchange, shall be charged on the lands which shall have been allotted or received in the way of substitution or compensation for the lands so taken or allotted away from the former owners thereof, or as near thereto as circumstances will admit ; and every such altered apportionment, when confirmed Such altera- under the hands and seal of the commissioners, shall be *?°°' wben con- valid as from the date of such confirmation, and shall be y^l[^l ' taken to be an amendment of the original apportionment." By sect. 14, the expenses of such altered apportionment Expenses of shall be borne by the owners of the lands to which it relates, alteration. and shall be recovered in the same manner as expenses chargeable on such owners for an original apportionment might be recovered. By 23 & 24 Vict. c. 93, it is enacted as follows :— Sect. 18. " In any case in which tithes have been com- Tithes com- muted for a sum or rate per head to be paid for each head m«ted for a of cattle or stock turned on land subject to common rights pe'"h° acn^ay or held or enjoyed in common, during the whole of the be converted year, the commissioners may, upon the application in ^^^° ^ ''^"i*- writing of any person entitled to receive such sum or rate ^ ^^^^' per head, or of any person who may be liable to pay the same or any part thereof, by a supplemental award and apportionment, by way of supplement to the apportion- ment under which such rate per head shall be now payable, convert the same into a gross rent-charge, to be thereafter payable oiit of such land." Sect. 19. "Where a gross rent-charge has been made Gross rent- payable in respect of the tithes of any gated or stinted charge may be pasture, and such gates or stints are rated to the relief of galecl or" '' the poor, the commissioners may, by the instrument of stinted pas- apportionment to be made of such rent-charge, or by a *"^"'^^" su})plemental award and apportionment, Avhere an apjior- tioiunent shall have been already made, upon the ajiplica- tion in writing of the person entitled to such rent-charge, or of any owner of a gate or stint, apportion such gross rent-charge pro rata upon the gates or stints, and after such apportionment or sui)])lemental award and apportionment the owner of such rent-charge shall have the same powers for the recovery of any arrears thereof, by distress on the goods and chattels of the person rated to the relief of the 1j26 PKOPERTY OF THE CIIUKCII. Kent-charge on commons may be com- muted for a part of the land, or re- deemed. If rent-eharge is commuted for land, com- missioners to set out the land and to vest the same in owner. Commissioners to convey laud. "Where rate per head is in arrear, the same may be recovered by distress. Upon inclo- poor in respect of the gates or stints the rent-cliarge npon "Nvhicli is in arrear, as are given by the said recited acts for the recovery of rent-charge in arrear, and snch ])owers of distress may be exercised npon the goods and chattels of such person, whether found upon the said pasture or elsewliere." Sect. 20. " In every other case in which a gross rent- charge is charged upon any land subject to common rights, or held or enjoyed in common during the whole of the year, the commissioners shall, upon the application in writing of the person entitled to such rent-charge, or of any person liable to pay the same or any part thereof, convene a meeting of the owners of such land and persons liable to pay such rent-charge, of Avhich twenty-one days' notice shall be given in such manner as to the commis- sioners shall seem fit; and the majority in value of the persons attending such meeting may determine Avhether such rent-charge shall be commuted for an equivalent part of the land on which it is chai'geable, or be redeemed for a sum equal to twenty-five times the amount of such rent- charge, to be paid by a time to be limited by the commis- sioners, and may further determine, if the rent-charge is to be redeemed, whether the redemption money shall be raised by rate on the persons liable to such rent-charge, or by sale of a ])ortion of such land : jirovided always, that if no determination be come to at such meeting the com- missioners may proceed to commute the rent-charge for land as hereinafter provided." Sect. 21. " If the rent-charge is to be commuted for land, the commissioners shall define and set out the land to be so given, and shall vest the same in the owner of the rent- charge by an award, to be made by them in like manner as awards of exchano-e of glebe for otlier land are made under the said recited acts, and subject to all the like incidents." By sects. 22, 23, if the rent-charge is to be redeemed for a sum to be raised by the sale of a portion of the land liable to such rent-charge, the commissioners may define and set out the land to be sold, and are to execute the proper conveyances to the purchaser. Sect. 24. " Wherever a sum or rate pei- head shall be in aiTcar, the aiTears shall be recoverable by distress and impoimding of any cattle, stock, goods or chattels belong- ing to the person in respect of whose cattle or stock such sum or rate per head is in arrear, Avhcrever the same may be found." Sect. 25. " "Where any lands in respect to the cattle or TITHES AND RENT-CHARGES. 1527 stock upon which any sum or rate per head shall be sure, rate per payable shall be inclosed, divided, allotted, or exchanged, ^^, ™^^ j^®^^ under the powers of any general or local act of inclosure rent-charge. or otherAvise, the commissioners may, by the altered ap- jiortionment which may be made by them, adapted to the altered distribution of the said lands, charge a rent-charge equivalent to the amount of the sum or rate ]jer head which shall have been previously payable, upon the lands which shall have been allotted under the said inclosure in lieu of the rights in respect of which the said sum or rate per head was made payable, which rent-charge shall be thereafter payable out of the same lands, in such man- ner and proportion as the said altered apportionment shall direct." Sect. 8. — Fruit and Hop Plantations. By sect. 40 of 6 & 7 Will. 4, c. 71, the commissioners w^ere empowered to make a separate valuation of the hop grounds, orchards, or gardens, according to the average rate of composition for the tithes of similar lands during seven years preceding Christmas, 1835, within a certain district. By sect. 42 an ordinary and extraordinary charge for tithes was to be fixed for hop groimds or market gar- dens. Hop grounds or market gardens going out of cid- tivation were to be sulyect to such ordinary charge ; but such as were newly cultivated after the commutation, were to undergo the extraordinary charge. Sect. 40. " In case any of the lands in the parish shall be hop grounds, orchards, or gardens, and notice shall be given by the owner thereof to the commissioners or as- sistant commissioner acting in that behalf that the tithes thereof shall be separately valued, the commissioners or assistant commissioner 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 in the year 1835, within a district to be assigned in each case by the com- missioners or assistant commissioner, and estimating the same as chargeable to all parliamentary, parochial, county, and other rates, charges, and 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 ascertained as aforesaid." Sect. 42. " The amount wliich shall l)e charged by any such apportionment as hereinafter provided upon aiiy hop 6 & 7 Will. 4, c. 71. How the tithe of hops, fruit, and garden produce is to be valued. Provi.^ion for the change of 1528 niOrEKTY OF THE CHURCH. culture of hop grounds and market gar- dens. Walsh V. Trimmer. g^-onnds or market ^-ai-dens in any district so to be assigned sliall be distiiii;uis]u'd into two parts, wliicli shall be called tlic ordinary charge and the cxtraordinaiy charge, and the extraordinary charge shall be a rate per imperial acre, and so in proportion for less quantities of ground, according to the discretion of the valuers or commissioners or assistant commissioner by Avhom the a])})ortiomiient shall be made as aforesaid ; and all lands whereof the tithes shall have been commuted under this act, and which shall cease to be cultivated as hop grounds or market gardens at any time after such commutation, shall be charged after the thirty-first day of December next following such change of cultivation only with the ordinary charge upon such lands ; and all lands in any such district the tithes whereof shall have been commuted under this act, and which shall be newly cultivated as hop grounds or market gardens at any time after such commutation, shall be charged with an additional amount of rent-charge per imperial acre, equal to the extraordinary charge per acre upon hop grounds or market gardens respectively in that district ; provided always, that no such additional amount shall be charged or pavable during the first year, and half only of such additional amount during the second year, of such new cultivation ; and an additional rent-charge by way of ex- traordinary charge rq^on hop groinids and market gardens, newly cultivated as such, beyond the limits of every dis- trict in Avhich any cxtraoi'dinar}- charge for ho]) gi'ounds or market gardens respectively shall have been distin- guished as aforesaid at the time of the commutation, shall be chai'ged by the commissioners at the time of such new cultivation, iq)on the request of any person interested therein, if such new cultivation shall have taken place during the continuance of the commission of the said com- missioners, and after the expiration of the commission shall be charged in such manner and by such authority as parliament shall direct, and shall be payable and recover- able in like manner and subject to the same incidents in all respects as an extraordinary charge charged upon any hop grounds or market gardens at the time of commutation." In the case of JValsh v. Trhnmei'ie), a commutation of tithes took place in a parish where there was land culti- vated for hops, and an extraordinary charge was fixed for this culture. At the time of the coinnuitation there was a large piece of waste land which did not pay tithes. Some years aftenvards this waste land was inclosed and (0 L. R., 2 II. L. 208; 3G L. J., Q. B. 318 (18G7). I TITHES AND REXT-CIIARGES. 1529 cultivated for hops. It Avas holclen by the House of Lords, reversing the decision of the Exchequer Chamber, and restoring that of the Queen's Bench, that this land had become liable to the exti-aordinary charge for hop culture. But no provision is made in these clauses for the con- tingency of a change of cultivation in orchards and fruit plantations. 2 & 3 Vict. c. 62, supplied this defect, enact- ing as follows : — Sect. 26. " In case any of the lands in a parish, the tithes Avhereof shall be in course of commutation under the provisions of the said first recited act, shall be orchards or fruit plantations, and notice in writing, under the hands of any of the OAvners thereof whose interest therein shall not be less than two-thirds of the Avhole of the orchards and fruit plantations in such parish, shall be given to the valuers or commissioners, or assistant commissioner, by whom any apportionment provided for by the said act shall be made at any time before the draught of such ap- portionment shall be framed, that the tithes thereof should be distinguished into two parts, the amovnit which shall be charged by any such apportionment upon the several orchards and fruit plantations in such parish shall be dis- tinguished into two parts accordingly, and the same shall be called the ordinary charge and the extraordinary fruit charge ; and the extraordinary charge shall be a rate per imperial acre, and so in proportion for less quantities of ground, according to the discretion of the valuers or com- missioners, or assistant commissioner, by whom such ap- portionment shall be made as aforesaid." Sect. 27. " AU lands, the tithes whereof shall have been commuted under the said act, Avhich shall be situate within the limits of any parish in which an extraordinary fruit charge shall have been distinguished as aforesaid at the time of commutation, and which shall be newly cultivated as orchards or fruit plantations at any time after such com- mutation, shall be charged Avitli an additional amount of rent-charge per imperial acre equal to the extraordinary fruit charge per acre in that parish : provided always, that no such additional amount shall be charged in respect of any plantations of apples, pears, plums, cherries, and fil- berts, or of any one or more of those fruits, during tlie first five years, and half only of such additional amount during each of the next succeeding five years, of such new cultivation thereof; and that no such additional amount shall be charged in respect of any plantation of goose- berries, currants, and ras])berries, or of any one or more of those fruits during the fu'st two years, and half only of P. VOL. IE. 5 F 2 & 3 Vict, c. G2. Provision for dividinji' the tithe of fruit plantations ia certain cases. Newly-culti- vated finiit ])lantations to be charged an additional sum. 1530 rROPERTY OF THE CHURCH. Orchards, &c. cUsplanted to be relieved from addi- tioual charge. Provision for mixed planta- tions of hops and fruit. When land subject to rectorial and vicarial tithe, acreable rent- charge to be fixed. Provision for future mixed plantations. siicli addllional amount diirlno; eacli of the next sncccedino; two years, of such new cukivation thereof; and that no such additional amount shall be charged in respect of any- mixed plantation of ajiples, pears, plums, cherries, or filberts, and of gooseberries, currants, or raspberries, during the first three years, and lialf only of such additional amount during each of the next succeeding three years, of such new cultivation thereof." Sect. 28. " All lands the tithes Avhereof shall have been commuted as aforesaid, which shall be situated within the limits of any parish in which an exti-aordinary fruit charge shall have been distinguished as aforesaid, and Avhich shall cease to be cultivated as orchards or fruit plantations at any time after such commutation, shall be charged, after the thirty-first day of December next following such change of cultivation, only Avith the ordinary charge upon such lands." Sect. 29. "In case any lands witliin the limits of a parish in which an extraordinary fruit charge shall have been distinguished as aforesaid, shall have been or shall at any time be planted with fi-uit, and also with hops, the same shall, during the continuance of such mixed planta- tion of hops and fruit, be liable to the extraordinary hop charge only, or to the extraordinary fruit charge only, payable in resjiect of the same lands, not to both those charges ; and that the extraordinary charge to which the lands so planted shall be liable shall be the higher of the two for the time being." Sect. 30. " Where any land liable to any such extraor- dinary charge for the tithes of a mixed plantation of ho])S and fruit shall at the time of the commutation produce both rectorial and vicarial tithes payable to different per- sons, the apportionment .shall set out the same, distinguish- ing 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 quantity of land producing rectorial tithe, and the quantity producing vicarial tithe." Sect. 31. " In all cases in which there shall be hereafter mixed plantations of hops, and of such fniit as afore.'said, in any jiarish or district in which an extraordinary fruit charge shall have been declared, the rectorial and vicarial tithes whereof but for the commutation would have been payable to different OAvners, the extraordinary charge pay- able in respect of the tithes of such mixed plantation shall be divided between such owners in pro})ortion to the extent of laud occupied by that produce which would have paid TITHES AND RENT-CHAEGES. 1531 tithes to each of them respectively : provided always, that payment of the share of each tithe-owner, when so ascer- tained, shall be taken to be subject to the provisions con- tained in the said first-recited act and in this act, for lessen- ing the amount of extraordinary charge payable in respect of hop gardens and orchards respectively at the beginning of such cultivation." Sect. 32. " For the purpose of fixing any charge for How the rent- the tithes of hops or fruit, or of any mixed plantation as J^harge for (. . , , i . . *•_£• ,1 n, • hops and iruit atoresaid, the commissioners may, it they see tit, assign ^' ^^ flxed the parish or lands in respect of which due notice shall in certain have been given, requiring the tithes thereof to be sepa- cases. rately valued, as required by the said first recited act, or any part or parts of such parish or lands, as a district under the provisions of the said act, and may fix a charge upon such lauds in respect of the tithes of hops or fruit as the rent-charge to prevail and to be established in respect of the same, without specific reference in the award to any other parish or lands, but ha\ang regard nevertheless to the general amount of compositions which they shall find to have prevailed in other parishes of a similar descrip- tion, and not to the money payments in the parish vmder consideration, or the value of the tithes in kind therein." Sect. 33. " The provisions of the said first-recited act Provision for for distinguishing rent-charges apportioned upon lands S^^i^S effect cultivated as hop grounds into two parts, and for relieving ao-reements- lands from and subjecting the same to an extraordinary and proceed- charge when ceased to be cultivated, and when newly cul- ^°ss thereon in tivated as such, respectively shall be held to extend to extraordinary parochial agreements already or hereafter made, and to. charge. the proceedings consequent thereupon, and to the lands discharged from tithes by virtue thereof; and every such agreement and proceeding, whereby any district has been or shall be assigned for establishino; or distino-uishinG: into two parts any rent-charge in respect of lands, cultivated as aforesaid, shall be deemed valid, operative, and effectual for all the purposes of the said recited acts and of this act ; and every district assigned by virtue thereof shall be deemed a district duly assigned, and every rent-charge created thereby a valid rent-charge for thej;^ikc purposes." By 3 & 4 Vict. c. 15, it is enacted as follows : — Sect. 18. " In any case where the parties to a parochial Power for par- agreement, or the commissioners in the case of an award, *'/"? |" I*^''°" sliall have proceeded, according to the provisions of the ment, iTnd for said recited acts, to ascertain and fix a rent-charge in any commissioners, parish wherein any of the lands shall at the time of making *°^oj,Qt oV^^ sucli agreement or award be cultivated as hop grounds or extraordinary 5 F 2 1532 ruoPEUTY of the ciiuiicir. charge to be market gardens, and in case of ])roceedinfi^ by award ■when ^"V'^'*.!*' V\ notice shall have been fjiven that the tithes of any of the groiiuds, &f. hinds so cnltivated should be sej^arately valued, it shall be lawful for the said ])arties to declare in such agreement, or for the said commissioners to declare in such award, the amount of extraordinary charge per acre to be in future ])ayable in respect of ho]) grounds and market gardens re- spectively in such parish or any district therein ; and the rent-charge mentioned in every such agreement or award respectively shall, subject to the addition of such acrcable extraordinary charge, consist of the amoimt agreed for or awarded in respect of the tithes in such parish, other than the tithes of the lands cultivated therein as hop grounds and market gardens respectively, and the ordinary charge in respect of the lands so cultivated as hop grounds and No cxtraor- market gardens respectively added thereto : ])ro^^ded al- (linarv charge Avays, that no such extraordinary charge shall be payable •'rounds "&c °^ "^ respect of any such hop grounds and market gardens for the first diu'ing the first year, and only half such extraordinary year of their charge during the second year, in Avhich they shall be vatedassuch i^e^ly cultivated as such, Avhether such new cultivation &e. shall have commenced before or after the making of such jiarochial agreement or aAvard as aforesaid." Extraordinary Sect. 19. " It shall not be necessary to distinguish in rent-charge j^jjy ap])ortionment the amount of extraordinary rent-charo-e DGCd not OG •■^ 1. I • • . * distinn-uished ^o be charged upon the lands of each individual landowner on separate which shall be Cultivated as hop grounds, market gardens, lands in appor- orchards, fruit ])lantations, or mixed plantations of ho]>s and fruit, provided that the acreable amount of extraor- dinary charge for all the lands so cultivated respectively in any district which shall have been assigned, or in any parish Avherein any extraordinary rent-charge shall have been declared, previous to the confirmation of the instru- ment of apportionment, shall be inserted therein." Formation of By 23 & 24 Met. c. 93, s. 42, " Whenever the commis- district ^yltllln gJoncrs are requested in the manner provided by the said dinary charges I'Gcited acts" (that is, all the previous Commutation Acts) in respect of " to charge an additional rent-charge by Avay of extraordi- ^'^^]l ''™!r'!^ naiy charge upon any hop gi'ounds or market gardens gardens shall newly cultivated as such beyond the limits of any district for be ])ayable. which an extraordinary charge for hop gi'ounds or market gardens respectively shall have been already distinguished, the commissioners may declare the lands in the ])arish in Avhich such newly cultivated hop grounds or market gar- dens are situate a district within Avhich the extraordinary charge to be then fixed by them shall be thereafter pay- able." TITHES AND RENT-CHARGES. 1533 By sect. 43, tlie commissioners may enter upon land at Po%yer of reasonable times to discover the extent cultivated as hop inspection, gi-ouuds or market gardens for the purposes of the pre- ceding section. It has been holden, in the case of Russell v. The Tithe RksscII v. The Commissioners ( f), that, under these sections and sect. 42 -^.'^^'^ Commts- of 6 & 7 Will. 4, c. 71, the tithe commissioners have power to create or assign a ncAv district and to impose an extra- ordinary rent-charge upon lands newly cultivated as market gardens in a parish in which no such district had been assiffned at the time of the original commutation. Sect. 9. — Exemption of small Gardens and Tenements. By 3 & 4 Vict. c. 15, it is enacted as follows : — Sect. 25. " Whereas in many cases tithe-owners have, Gardens or during the seven years of average jDrescribed by the said I'l^™^ o^ small first-recited act" (6 & 7 Will. 4, c. 71), '' forborne to take exempted from the tithes of lands used and occupied as gardens, lawns, rent-charge. or the like, or compositions in lieu thereof, on account of such lands being of small extent, and the tithes thereof being of inconsiderable value : be it enacted, that where in such cases the tithes of a parish or district have been commuted, whether by a parochial agreement or by a compulsory award, and it shall be shown to the satisfac- tion of the said commissioners that the rent-charge or rent-charges specified in the said agreement or award has or have been based upon the average value of the tithes of the said parish or district during the seven years of average, exclusive of any tithes in respect of such gardens, lawns, or such like small holdings, according to the pro- visions of the said first-recited act, and that no part of the said rent-charge or rent-charges has been agreed to be given or awarded in respect of the tithes of such gardens, lawns, or other such like small holdings, it shall be lawful for the said commissioners, if they think fit, to order and direct that no part of the said rent-charge or rent-charges shall l)e apportioned upon such gardens, lawns, or other such like small holdings." Sect. 26. " And whereas it hath happened that in cases The commis- wherc, during the seven years of average prescribed by s'oners to the said first-recited act, tithes shall not have l)een de- apportionmiiit inanded of certain tenements, by reason of their small ex- to be made in tent of or the small amount of such tithes, such tenements ^.^^^^ ^" ^^'?'^'^ the upportiou- (/) L. R., G C. P. 59G; 40 L. J., C. P. 2G5. 1.334 TROrERTY OF THE CHURCH. inciit shall have incliulcd tenements from which no tithe has been taken during seven years previous to Christmas, 1835. Expenses of new appor- tionment. liave iiotwitlistaudlno- been included in tlie apportionment of the rcnt-charg;c for the parisli, Avhereby the occupiers of such tenements liave become liable to have their goods distrained upon, and the tithe-owner has been subjected to much increased difHculty and expense in the collection of the rent-charge, contrary to the true intent and mean- ing of the said first-recited act ; and it is therefore expe- dient, under certain restrictions, to give relief in such cases: be it enacted, that in any such case m which the apportionment .shall have included any number of small tenements, exceeding in the whole one himdred, from Avhicli tenements no tithe or composition for tithe shall have been demanded or taken (notwithstanding their lia- bility thereto) during the period of seven years next pre- ceding Christmas in the year 1835, it shall be lawful for the commissioners, and they are hereby authorized, if they shall see fit, npon the application in writing of any ten or more of the owners or occupiers of such small tenements, or of the tithe-owner, and after satisfactory proof .shall have been given that no part of the rent-charge has been agreed to be given or awarded in respect of the tithes of such small tenements, to cause a new apportionment to be made of the said rent-charge, and to order and direct that no part thereof shall be apportioned upon such small tene- ments." Provision is made by this and the following section (sect. 27), for the making of tliis new apportionment and the costs thereof: — " And as to any part of such costs as may be borne by the tithe-owner, such tithe-owner, being an ecclesiastical beneficed person, may charge or assign the rent-charge as a security for the repayment of such costs in like manner as for the costs of the commutation under the said act" of6 & 7 WiU. 4, c. 71. Act not to extend to Easter offer- ings, &c. Sect. 10. — Personal and Mineral Tithes, how affected hy the Tithe Commutation Acts. By 6 & 7 Will. 4, c. 71, s. 90, "Nothing in this act contained, unless by special provision to be inserted in some parochial agreement and .specially proved by the commissioners, in which case the same shall be valid, shall extend to Easter offerings, mortuaries, or surplice fees (r), (r) Vide Part V., Chap. IV., infra. For Mortuaries, vide p. 874, TITHES AND EENT-CHARGES. 1535 or to the tithes of fish or of fishing, or to any personal tithes other than the tithes of mills, or any mineral tithes" (5). By 2 & 3 Vict. c. 62, s. 9, however, " It shall be lawful. Power after at any time before the confirmation of any apportionment ^^^^''^.to "^^^e after a compulsory award in any parish, for the land-owners ao-reement for and tithe-owners, havino; such interest in the lands and Easter offer- • - • • 'Si. tithes of such parish as is requu'ed for the making a paro- ^"S^, «;c. chial agreement, to enter into a parochial agreement for the commutation of Easter offerings, mortuaries, or sm-- plice fees, or of the tithes of fish, or fishing, or mineral tithes ; and all the pro^dsions, conditions, limitations, and powers of the said recited acts or any of them, relating to parochial agreements, so far as the same shall in the judg- ment of the commissioners be applicable to the subject of the proposed commutation, shall be observed and applied in every such case as if no pre\4ous award had been made ; and every such agreement may fix the period at which the rent-charge to be paid under such agreement shall com- mence, but so nevertheless that the same and the subse- quent payments thereof shall be made on some day fixed for the payment of the rent-charge awarded in such parish, and shall be recoverable from time to time by the means provided in the said acts or either of them for the recovery of the rent-charges in the said parish." It does not seem to be agreed, whether or how far fish Fish in ponds. in ponds or private fisheries are liable to pay tithes ; and therefore the same must be referred to the customs of par- ticular places. ]5ut it seems that of these no tithe can be due, where no profit is made thereof, and where they are kept only for pleasure, or to be spent in the house or family ; as fisla kept in a pond generally are {t) ; for they are like deer in Deer. a park, and rabbits in an inclosed Avarren, wild in their Rabbits. natvu'C ; and partaking of the realty, go to the heir (u). Oysters, or oyster lays or beds, are not tithable {x). Oysters. ALso fish taken in common rivers are tithable only by Fish in rivers. custom {y). And in this case Lindwood says it is only a personal tithe, and shall be paid to that church where he who takes them hears divine service and receives the sacraments (z). (.s) As to the recoveiy of tliese 1 E. & Y. 698; Flnioer v. Vait/jhan, tithes when not commiited, vide Hett. 147; 1 E. & Y. 370. infra, Part V., Chap. IV., sect. 2, (.r) Murray x. Skinner, 1 Wood, pp. 1600— 1 GOG. 541; 1 E. & Y. 706. (0 Boh. 135. (y) God. 406; AVood, b. ii. c.2. («) Nicholas V. Elliolf, Bunb. (z) Lindw. 195. Vide 2'>ost, 19 ; 2 Br. P. C. 31; 1 Wood, 523; sect. 11 of 2 & 3 Edvr. 6, c. 13. 1j3G property of the onuRCii. Fish in the sea. Whcrc fisli arc taken in ihc sra, though they arc fcra; natiirce, and consequently not titliablc of common right, yet by the custom of the realm they are tithable as a per- sonal tithe, that is, not by the tenth fish, or in kind, but by some small sum of money in consideration of the profits made thereby after costs deducted («), Wy the case of Rex v. C(irIi/on{h), it appears to be the custom in the jiarish of Paul, in the county of Connvall, to pay one-tenth of all the fish caxig-ht and brought on shore within the parish ; and there the court held that the ]>ro])rietors of this tithe were rateable to the poor in respect ofit(c). Upon which foundation, it is said, that if the owners of a ship do lend it to mariners to go to an island for fish, and are in consideration of sucli loan to have a certain quantity of fish when they come back ; no tithe shall be paid by the mariners for Avhat is given to the owners, be- cause they are only to pay for the clear gain(rf). A custom that tithes in kind ought to be paid to the vicar for all sea fish taken or caught with any nets or l)oats that had been housed or wintered at or in the parish in the interval betAveen the last preceding fishing season and the season during wdiich the fish were caught or taken (whether such nets or boats were the projoerty of pa- rishioners or not) has been established (t). Unless there be a clear custom to the contrary, the tithe of fish taken in the sea appears to be payable to the parson of the parish where the fisherman resides (_/'). Pcrponal By a constitution of Archbishop Winchelsea, it is or- *^"'^'^^' dained, that " personal tithes shall be paid of artificers and merchandizers, that is, of the gain of their commerce ; as also of cai'penters, smiths, masons, weavers, inn-keepers, and all other Avorkmen and hirelings, that they pay tithes of their wages ; unless such hireling shall give something in certain to the use or for the light of the church, if the rector shall so think proper:" that is to say, they shall pay the tenth part of the profit, deducting first all neces- sary and reasonable expenses (^). 2 & 3Ed\v. fi, And by 2 & 3 Edw, 6, c. 13, s. 7, every person exer- c. 13. {a) 1 Pvolle's Abr. 036. Sec {h) ?, T. R. 385. r.l.-^o Ilolhind v. Neale, Noy, 108; (c) For more of this custom, 1 E. & Y. LOG; Stile's case, 1 E. sec I'.unl). 43, 239, 256. & Y. 361; Thompson v. Field, 1 (d) Gibs. 679. Fj. &Y.'7G\: GiK^ivasx. Keh/nnrJi, (r) Borlase w. Batten, 2 E. & Bunh. 239, 256 ; 2 E. & Y. i : Gw. Y. .300. 691; Jones v. Chveden, 2 "Wood, ( f) WiUiams v. Baron, 2 E. & 283; Earl of Scarhorom/h v. Y. 217; Gw.^ 931. Ilunfcr, Bunb.43; 1 E. & Y. 747. (g) Lind. 195. TITHES AXD REXT-CHiVP.GES. 1537 cising merclianclizes, bargaining and selling, clothing, handicraft or other art or faculty by such kind of persons, and in such places as heretofore -within these forty years have accustomably used to pay such personal tithes, or of Personal right ought to pay (other than such as be common day tithes. labourers), shall yearly at or before the feast of Easter, pay for his personal tithes the tenth part of his clear gains ; his charges and expenses, according to his estate, condition or degree, to be therein abated, allowed and deducted. Sect. 8. Provided, that in all such places where handi- craftsmen liaA'e used to pay their tithes Avithin these forty years, the same custom of payment of tithes to be observed and continue. Sect. 9. And if any person refuse to pay his personal tithes in form aforesaid, it shall be lawful to the ordinary of the diocese where the party is dwelling, to call the same party before him, and by his discretion to examine him by all lawful and reasonable means, other than by the party's own coq:)oral oath, concerning the true payment of the said personal tithes. Sect. 1 1 . Provided, that nothing in this act shall extend to any parish which stands upon and towards the sea coasts, the commodities and occupying whereof consisteth chiefly in fishing, and have by reason thereof used to satisfy their tithes by fish ; but that all such jjarishes shall pay their Tithes of fish. tithes according to the laudable customs, as they have heretofore of ancient time within these forty years used and accustomed, and shall pay their offerings as is aforesaid. Sect. 12. Provided also, that nothing in this act shall London, extend in any wise to the inhabitants of the cities of Lon- ^'"itcibury, don and Canterbury, and the suburlis of the same, nor to any other town or place that hath used to pay their tithes by their houses, otherwise than they ought or should have done before the making of this act. This act restrains the canon law in three things: First, Restrictions where the canon law was general, that all persons in all impose;c for such tithes or rent-charge : provided always, that the same consent and confirmation shall be necessary to any such agreement as in the case of an agreement for a rent-charge ; and that in case the said agreement shall not extend to the whole of the tithes of the parish, an agreement or award as hereinafter provided may and shall be made for the pay- ment of a rent-charge in satisfaction of the residue of the said tithes ; and such rent-charge, when agreed upon or awarded, or the residue thereof, shall be a])portioned in maimer hereinafter provided upon all the lands of the parish subject to the payment of tithes, unless otherwise agreed upon by the parties to the said parochial agree- ment, except the land so given by way of commutation, in like manner as if no agreement for giving land had been mada : pro\"ided also, that the land so given shall be free from incumbrances, except leases at improved rent, land tax, or other usual outgoings, and shall not be of leasehold tenure, nor of copyhold or customary tenure, subject to arbitrary fine or the render of heriots." Under these provisions it will be seen, that land in lieu of tithes could not be given after the confirmation of the apportionment. 2 & 3 Vict. c. 62, made (as will be seen) the time for civino- land in lieu of tithes co-extensive with the tithe commission. 6 & 7 Will. 4, c. 71, further provided that such lands should be subject to the same uses and trusts as the tithes, and that the agreements for the ex- change should operate as conveyances Sect. 31. " Such agreement for by the said commissioners, shall operate as a conveyance of such land to the OAvner of such tithes or rent-charge, and the land so conveyed shall thereupon vest in and be and be deemed to be holden by such person or persons, and upon the like uses and trusts in every res})ect as the tithes or rent-charge in commutation or exchange for which the same shall have been given shall be vested and holden : and for the ]nn'pose of making and completing any such agreement, the ])rovisions of this act x-especting persons under legal disability {on which the same was chargeable ; and every person who, if this act had not been made, 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 to recover against the party or parties giving such land instead of tithes or rent-charge, his, her, or their heirs, executors, or administrators, by Avay 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 plain- tifl[' in such action, shall forthwith attach upon and be payable out of the lands exonerated by such agreement." Sect. 21. "All agreements and other assurances which shall be made for the purpose of effecting the taking of land instead of rent-charge under the ])rovisions of the said recited acts, or any of them, or this act, shall be valid and effectual for the purpose of vesting an estate of in- heritance as to such lands in such ecclesiastical tithe-owner and his successors, notwithstanding the same be made by any corpoi'ation sole or aggregate, or any trustees or feoffees for charitable purposes, othcrAvise restrained fi'om or incapable of making any such valid conveyance or assurance." By 3 & 4 Vict. c. 15, s. 17, the provisions of this section TITHES AND RENT-CHARGES. 1545 are extended to churchwardens and overseers, and trustees or feoffees of parish property or of any property holden on a parochial or public trust. By 5 & 6 Vict. c. 54, s. 6, " Whereas the power of giving Extending land instead of tithes has been found beneficial to both power of tithe-owners and land-owners, but such power has been ?T"^ inoperative in a great degree by reason that the land- owners by gi\'ing land instead of vicarial tithe cannot free their lands from the liability to rectorial tithe, and the con- verse ; be it enacted, that it shall be lawful for any tithe- owner with the consent of the patron and ordinary in the case of spiritual tithes, to be testified as their consent under the first-recited act is testified to anything for which their consent is therein required, and subject in that case to the limitation of quantity of land provided by the first-recited act, and subject to the approval of the tithe commissioners, to agree for the assignment to any other owner of tithes issuing out of the same lands of so much of his tithes arising within the same parish, or of the rent-charge agi-eed or aAvarded to be paid instead of such tithes, as shall be an equivalent for the tithes belonging to such other tithe-owner issuing out of the same lands, or for the rent-charge agreed or awarded to be paid instead thereof, for the purpose of enabling any land-owner who shall be desirous of giving land Instead of tithes to fi^-ee his lands, or any part thereof, from both rectorial and vicarial tithes, and from the pay- ment of any rent-charge in respect thereof; and every such agreement shall be carried into effect by means of an award or supplemental award, to be made by the said commis- sioners cither before or after the confirmation of the ap- portionment, in like manner as awards or supplemental awards are made by them jiursuant to the powers vested in them before the passing of this act." Sect. 7. " Where any agreement shall have been made Confirmation before the passing of the first-recited act for giving land of old agree- or money, or both, instead of tithes or o-lebe or common- "^•''V*^ ^"'' , , ■,', ■' '■■ . T , P, . nil givnig land for able or other riglits or easements, winch is not oi legal tithes. validity, and such lands or money, or both, shall appear to the commissioners to be a fair equivalent for the said tithes or glebe, or rights or easements, they shall be em- powered to confirm and render valid such agreement ; and in case the same shall not appear to be a fair equivalent, the said commissioners shall nevertheless be empowered to confirm such agreement, and also to make an a^vard for such rent-charge, which with the said land or money, or both, will be a fair equivalent for the said tithes or glebe, or rights or easements, and, subject to such confirmation and r. VOL. II. 5 G 1546 PIlOrERTY OF THE CHURCH. iiAvnrd, to extinguisli the right of the tlthc-owners to the perception of the said titlies, or his title to the said glebe rights or easements, or to the receipt of any rent-charge instead thereof, other than the rent-charge awarded over and above the lands or money, or l)oth, so confirmed to them." In -what cases. Power to land- lords to redeem a rent-charge not appor- tioned, where the amount does not exceed 151. Upon payment of the con- sideration money, com- missioners to certify that the ])arish is dis- charged of tithes. Sect. 13. — Redemption of Rent-charges. Provisions for the redemption of rent-charges in three classes of cases — ( 1 ) where the whole rent-charge payable in the parish does not exceed 15/. a year; (2) where a rent-charge is divisible into ver}^ small snms ; (3) where it has been erroneously charged on lands not within the parish — are made by the later Commutation Acts, 9 & 10 Vict. c. 73, and 23 & 24 Vict. c. 93. (1) By 9 & 10 Vict. c. 73, it is enacted as folloAvs: — Sect. 1. " Where, under any agreement or award Avliich has been or hereafter shall be confirmed by the commis- sioners, the amount of the rent-charge agreed or awarded to be paid instead of the tithes of any parish shall not exceed the sum of fifteen poimds, and shall not have been apportioned, or the apportionment of such rent-charge shall not have been confirmed by the commissioners, it shall be lawful for the o^vners of the land chargeable there- with, or any of them, with the consent of the person or persons for the time being entitled to the receipt thereof, or, in the case of an infant, feme covert, or lunatic, with the consent of the guardian, husband, or committee of the estate of the person so under disability, to redeem such rent-charge on payment, in manner hereinafter mentioned (within such time as the commissioners shall in each case limit in this behalf), of a sum of money not less than twenty-four times the amount of such rent-charge." By 23 & 24 Vict. c. 93, s. 31, the commissioners may order a redemption without the consent of the person en- titled to the recei]>t of the tithes, for a sum equal to twenty- fiA'c times the amount of the rent-charge. By 9 & 10 Vict. c. 73, s. 2, " In every case in which any such rent-charge, not exceeding fifteen poimds as aforesaid, has been or shall be awarded to be paid, the commissioners shall give notice, in such manner as they shall think fit, of the time within which it shall be lawful for the owners of the land charged therewith, or any of them, to redeem such rent-charge ; and Avhen it shall TITHES AXD EENT-CIIARGES. 1547 appear to the commissioners that the consideration money for the redemption of such rent-charge as aforesaid shall have been paid, according to the provisions of this act, Avithin the time limited by them in this behalf, or within any enlarged time which the commissioners may by any order imder their hands and seal allow for that purpose, no apportionment of the rent-charge shall be made, but the commissioners shall, by a certificate under their hands and seal, certify that such rent-charge has been redeemed, and that the parish is discharged of such rent-charge, and of the tithes in lieu of which such rent-charge was agreed or awarded to be paid, as from such time as the commis- sioners shall think reasonable and declare, and such parish shall be thenceforth discharged according to the terms of such certificate." (2) By 9 & 10 Vict. c. 73, s. 5, " In every case in which. Separate rent- under any confirmed instrument of apportionment or any charges, not 1, 1 • . ^ ,^ o l^ •^ , exceeding 20s. altered apportionment under the powers ot the said acts, \^ amount the whole amount of the rent-charge or separate portion may be re- of rent-charge with which the lands of any owner shall be *i6^™^4 ^ '•^'' charged in respect either of all tithes or of any kind of tithes payable to separate tithe-owners shall be a sum not exceed- ing twenty shillings, it shall be lawful for such OAvner at his option, and with the consent of the person or persons for the time being entitled to the receipt thereof, or, in the case of an infant, feme covert, or lunatic, with the consent of the guardian, husband, or committee of the estate of the person so under disability, at any time to redeem such rent-charge or separate portion of rent-charge on payment, according to the provisions of this act, of such a sum of money as shall be not less than twenty-four times the amount of the rent-charge or portion of rent-charge ; and after payment of such consideration money according to the proAasions of this act the commissioners shall certify that such rent-charge or portion of rent-charge has been redeemed, and the same, from after the payment of the half-yearly portion of such rent-charge or portion of rent- charge which shall next accrue due subsequently to the time of the payment of such consideration money, shall cease and be extinguished : provided always, that no such Extraordinary redemption as last aforesaid shall extinguish or affect any te'affeeted **^ extraordinary rent-charge which Avould become payable in respect of such land upon any change of the cultivation thereof" By 23 & 24 Vict. c. 93, s. 32, " Whenever lands charged Where land witli rent-charge under any instrument of apportionment *J'yi*^|cd, com- or altered apportionment shall be divided for building or "Ijcr icnt- 5 G 2 1548 PROrEllTY OF THE CHURCH. charge to be redeemed after niiportioiinicnt. Power to re- deem rent- charge erro- neously appoi'-" tioncd on lands not chargeable therewith. After redemp- tion of the rent-charge erroneously apportioned, the apportion- ment of the remainder to be valid. other puiposes into numerous plots, and it sliall appear to the commissioners that no further apportioimient of the said rent-cliari2,e can conveniently be made, the commis- sioners may, if they shall see fit, upon the ap])lication of any one owner of the said lands, and -without the consent of any other owner, or of the ])erson for the time beino^ entitled to the receipt of the said rent-charge, and without limitation as to the amount thereof, by an order under their hands and seal direct that such rent-charge shall be redeemed by the payment by the owners of the lands chargeable therewith, within such time as the commis- sioners shall by such order direct and appoint, of a sum equal to twenty-five times the amount of such rent- charge." (3) By 9 &'lO Vict. c. 73, s. 3, " In every case in which, by any instrument of apportionment confirmed under the provisions of the said acts, any rent-charge or portion of rent-charge has been or shall have been (by reason of en-or as to boundary or otherwise) charged on lands not within the parish in respect of the tithes of which the aggregate rent-charge the aj^portionment of which shall have been so confirmed Avas agreed or awarded to be paid, such rent- charge or portion of rent-charge so charged on lands not within the parish shall be redeemable on payment by the owners of the lauds charged with the residue of such aggregate rent-charge, or any of them, of a sum of money equal to twenty-four times the amount of the rent-charge or portion of rent-charge hereby made redeemable, and it shall be lawful for the commissioners, before they shall proceed to direct a ucav apportionment, to give notice that the rent-charge or portion of rent-charge so erroneously apportioned on lands not within the parish may be re- deemed, under the provisions of this act, within a time in such notice to be limited in this behalf" (/t). Sect. 4. " When it shall a])])ear to the commissioners that the consideration money for the redemjition of the rent-charge or portion of rent-charge so charged by such instrument of apportioimient on lands not within the parish shall have been paid, according to the provisions of this act, within the time which shall have been limited by the commissioners in this behalf, or within any en- larged time which the commissioners may by order under their hands and seal allow for that puqiose, and that the arrears thereof (if any) have been paid, the com- missioners shall under their bands and seal certify that such rent-charge or portion of rent-charge has been re- (//) Sec 10 & 11 Vict. c. 104, ss. 3, 4. TITHES AND RENT-CHARGES. 1549 deemed, aud tliencefortli, except as respects the lands so eiToneously cliarged, and the rent-charge or portion of rent-charge apportioned thereon, the apportionment and charges made by such instrument of apportionment shall be valid and effectual in such and the same manner as if the aggregate rent-charge had originally consisted only of the sum of the portions charged on the lands "\Adthin the parish, and had been apportioned on such lands and no others, in the portions in the instrument of apportionment expressed." By 23 & 24 Vict. c. 93, s. 33, " Whenever it shall be rrovision in shown to the satisfaction of the commissioners that by ^^^^^ where I'eason of error as to boundary or otherwise any rent-charge i^^g ]jcen or portion of rent-charge shall have been charged by any charged on confii'med instrument of apportionment on lands not Avithin !''^"*^^^ which, the parish in respect of the tithes of which the aggregate of error in rent-charge, the apportionment of which shall have been boundar}% are so confirmed, was ao-reed or awarded to be paid, the com- °ot.^y^ithm the missioners may, if they shall see fit, upon the a]3plication aggregate of the owner or owners of the said lands, and without the charge is consent of any owner of land in the said parish, or of the ^^^'^'^''icJ. person for the time being entitled to the receipt of the said rent-charge, by an order under their hands and seal, direct that such rent-charge or portion of rent-charge so charged on lands not within the parish shall be redeemed by the payment by the owners of lands charged with the residue of the said rent-charge by the said apportionment, or any of them, within such time as the said commissioners shall by such order direct and appoint, of a sum equal to twenty- , five times the amount of such rent-charge ; and if there shall be any question touching the situation or boundary of the lands which shall be alleged to have been erroneously included in the said apportionment, the commissioners shall have the same powers for hearing and determining the same as are given by the said first-recited act for hear- ing and determining any difference whereby the making of an award of rent-charge in lieu of tithes is hindered." Sect. 34. " Where any land has been made chargeable Trovision for vnih rent-charsres in lieu of tithes for more than one parish, charging rent- the commissioners, on being satisfied thereof, may deter- jancrmade mine in respect of which parish the rent-charge ought to chargeable for have been charged, and may, by order, direct such rent- morc^than on^ charge to be paid in respect of such parish only." ^'^ As to all cases it is provided by the two acts as follows : — 23 & 24 Vict. c. 93, s. 35. " Before the commissioners Commissioners shall order the compulsory redemption of any rent-charge, ^^^'^!^ ^^l\ ,1 in i . -^ , . i ,.,.*'. . ^. notice of tn. they sliall cause notice to be given of their intention in intention to cir 1550 rROPERTY OF THE CHURCH. order compul- sory redemp- tion. If person refuse to receive re- demption money, to Ijc dealt with as if under disability. Trustees may be appointed to receive sums not exceeding 2001. payable to corpora- tions. Commissioners to certify the amount of consideration money for redemption. sucli mannci' as to tlicm shall seem fit, and sliall by such notice specify the time (being not less than twenty-one days) Avithin which objections in writing to such proposed order may ])e signified to them ; and in case any notice of objections shall be given within the time limited as afore- said, the conmiissioncrs shall, by them.sclves or an assistant commissioner, take such objections into their considera- tion." Sect. 3G. "If the person absolutely entitled to the redemption money refuses to receive the same, or if the rent-charge be subject to incumbrances, and the commis- sioners shall consider that the incumbrancers should be protected, such redemption money shall be dealt Avith as is provided in cases Avliere the owner of the rent-charge is only entitled thereto for a hmited estate." Sect. 37. " Where the money to be paid for the re- demption of any rent-charge does not exceed two hundred pounds, and the person for the time being entitled to such rent-charge shall be a corporation not authorized to make an absolute sale of such rent-charge otherwise than under the provisions of the said recited acts, the redemption money may be paid into the hands of trustees to be nomi- nated by the commissioners, by order under their hands and seal, and the money when so paid shall be appHed by the trustees, with the consent of the commissioners, to the pm-poses to which money to be paid for the redemption of any rent-charge into the bank of England in the name of the accountant-general is by the said recited acts directed to be applied, and upon every vacancy in the office of such trustees some other person sliall be appointed by the said commissioners in like manner. By 9 & 10 Vict. c. 73, s. 6, " In every case in which a rent-charge is redeemable under the j^rovisions of this act, the commissioners shall, upon the request of the owners of land chargeable Avith such rent-charge or any of them, certify^ under the hands and seal of the commissioners the sum of money in consideration of Avhich such rent-charge may be redeemed (?'); and Avhen it shall appear to the commissioners that payment or tender of such considera- tion money has been duly made, it shall be laAA^ful for the commissioners to certify that such rent-charge has been redeemed under the provisions of this act, and such certi- ficate shall be final and conclusiA'e : j^rovided that if any consideration money shall be paid for the redemption of a rent-charge to a person not entitled under the proA'isions (i) See Sect. 12 for form of the certificate. TITHES AND RENT-CHARGES. 1551 of this act to receive the same, the land which was charged with such reut-charge before the redemption thereof shall be charged in equity with the payment of such considera- tion money to the person rightfully entitled thereto as if the same were purchase-money for such land remaining unpaid ; but the same remedies may be had against the person who shall have wrongfully received such money as purchasers are entitled to by the rules of law and equity." Sections 7, 9, 10 provide for the payment of the consi- deration money to lay owners of the rent-charge ; as to spiritual owners, it is enacted as follows by sect. 8, " The Consideration consideration money for the redemption- under this act of money for re- any rent-charge agreed or awarded to be paid or payable re^fchar'^'es under any a])portionment to any spiritual person in respect payable to of his benefice or cure shall be paid to the ' governors of spiritual Queen Anne's Bounty for the augmentation of the main- p^i^i^to' Go-'° tenance of the poor clergy ;' and such consideration money vernors of shall be applied and disposed of by the said governors as Queen Anne's money in their hands ajiprojiriated for the augmentation °"° ^' of such benefice or cure should by law and under the rules of the said governors be applied and disposed of." By sect. 11, "Every OAvner of an estate in land less Power to pcr- than an immediate estate in fee simple or fee tail, or which sons entitled may be settled upon any uses or trusts, may, with the interests to consent of the commissioners, or in such manner as they charge ex- shall direct, charge so much of the consideration money P^nses of and other monies payable in respect of the redemption of a rent-charge, or any part thereof, with interest after the yearly rate of four pounds by the hundred vipon the lands of such OAvner which Avould have been subject to such rent- charge, or to an apportioned part thereof, but so, never- theless, that the charge upon such land shall be lessened in every year after the redemption of such rent-chai-ge by one twentieth part at least of the whole original charge thereon." By 23 & 24 Vict. c. 93, s. 39, the expenses of making How expenses new awards or apportionments or of collecting redemption *^ ^^ divided, money are to be raised by the commissioners from the tithe-owmers and land-owners in the same manner as ex- penses of making original awards under the earlier acts. By sect. 40, " Wheuev^er land or money payments, or Informal both, have been given to the tithe-owners of any parish, arrangements and are now holden by them, instead of tithes or glebe or ™nued. commonable or other rights or easements, and it shall appear that such land or money payments, or both, shall have been so given by virtue of any act of ])arliamcnt the provisions of which have not been fully carried out, or by 1552 rROrERTY OF THE CHURCH. virtue of any arrangement Avliich is not of legal validity, tlie commissioners may, if it shall appear just and expe- dient, having regard to all the circumstances of or incident to the case, by an award confirm the tithe-owner in pos- session of the said land or money, or both, and may confirm and render valid any such airangement, and may also award a rent-charge, subject to the provisions of the said recited acts, when and in such cases as to them shall seem fit ; and, subject to such confirmation and award, the commissioners may extinguish tlie right of the tithe-owners to the perception of the said tithes, or his title to the said glebe rights or easements, or to the receipt of any rent- charge instead thereof, other than the rent-charge, if any, aAvarded over and above the lands or money, or both, so confirmed to them." C, 8c7 Will. 4, c. 71. Tenant in fee simple or fee tail may de- clare rent- charge merged. 2 & 3 c. 62. Hft. On merger of tithes or rent- Sect. lA. — 3Ie?'ffe}' of Rent-charges. The first provision for merger of the rent-charge in the land is contained in 6 & 7 Will. 4, c. 71, s. 71, and is as follows : — " It shall be lawful for any person seised in possession of an estate in fee simple or fee tail of any tithes or rent- charge in lieu of tithes, by any deed or declaration under his hand and seal, to be made in such form as the said commissioners shall approve, and to be confirmed under their seal, to release, assign, or otherwise dispose of the same, so that the same may be absolutely merged and ex- tinguished in the freehold and inheritance of the lands on Avhich the same shall have been charged." The charges and incumbrances on tithes (and therefore on rent-charges) being various and many, such as liability to the repairs of the chancel, to stipends of ministers and curates, and fee-farm rents, and sometimes to mortgages, annuities, &c., the commissioners for cariying the tithe commutation acts into execution refused to confirm the merger of tithes so incuml)ered into land, till the passing of 2 & 3 Vict. c. 62, which removed this obstacle by making any legal charge on the tithes the first charge on the land in which the tithes are merged, and by giving the same remedies against such lands, or the owners thereof, as existed previously to the merger against the tithes or the owners thereof The first section of this act, after reciting the former statutes, enacts, that " In every case where any tithes or rent-charge shall have been or TITHES AND RENT-CHARGES. 1553 shall hereafter be released, assigned, or otherwise conveyed charge, the or disposed of under the pro^dsions of the said acts, or any charges r- .-I r J.1 • i. r • i.- • 1 • j^i thereon to be ot them, or oi this act, lor merging or extinguishing tlie cliarges on same, the lands in which such merger or extinguishment lands. shall take effect shall be subject to any charge, incum- brance, or liability which lawfully existed on such tithes or rent-charge previous to such merger to the extent of the value of such tithes or rent-charge ; and any such charge, incumbrance, or liability shall have priority over any charge or incumbrance existing on such lands at the time of such merger taking effect ; and such lands, and the owners thereof for the time being, shall be liable to the same remedies for the recovery of any payment and the performance of any duty in respect of such charge, incum- brance, or liability, or of any penalty or damages for nonpayment or non-performance thereof respectively, as the said tithes or rent-charge, or the owner thereof for the time being, were or was liable to previous to such merger." It gives also a power of apportioning the charges on tithes merged: Sect. 2. " Every person entitled to exercise the powers Power for for merger of tithes or rent-charge in land under the said ^?^^'^^^ appor- acts or any of them, or of this act, may, with the consent such charge on of the tithe commissioners for the time being under tlieir lands being of hands and seal of office, and of the person to whom the ^^\^^ *^?**^^ *^® lands in which such merger or extinguishment shall take charge, effect shall belong, either by the deed or other instrument or declaration by which such merger shall be effected, or by any separate deed, instrument, or declaration to be made in such form as the commissioners shall approve, specially apportion the Avhole or any part of any such charge, incumbrance, or liability affecting the said tithes or rent-charge so merged or extinguished, or proposed to be merged or extinguished in such lands, upon the same or any part thereof, or upon any other lands of such 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 an acreable rate or rates 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, Avith such consent as aforesaid, may by any such deed, instrument, or declaration direct : provided always, that no land shall be so exclusively charged unk^ss the value thereof shall in the opinion of the said commis- sioners be at least three times the value of the amount of the charge, incumbrance, or liability charged or intended 1554 rUOrERTY OF THE CIIURCIT. Power of special appor- tionment on tithes or rent- charge. Who may merge rent- charge. Persons having the power of appointment over tithes may merge them in the land. to l)c charged thereon, over and above all other charges and incumbrances, if any, affecting the same"' (A). And of a])])ortioning charges on tithes not merged: Sect. 4. " Where the whole of the great tithes or the ■whole of the small tithes, or the respective rent-charges in lien thereof, shall be lawfully subject to any such charge, incumbrance, or liability, and the person entitled to such tithes or rent-charge res])ectively shall be desirous of ap- portioning such charge, iucvimbrance, or liability respec- tively exclusively upon any part of such tithes or rent- charge, although such person has not the power or does not intend to merge the same under the said acts or this act, such person may, with the like consent of the said commissioners, and in such manner as they shall see fit and prescribe, and also with the consent of the bishop of the diocese, specially apportion such charge, incumbrance, or liability respectively upon any part or portion of the tithes or rent-charge resjaectively subject thereto, not being in the opinion of the said commissioners less than three times the value of the said chai'ge, incumbrance, or lia- bility, or of such part thereof as shall be so apportioned thereon, or intended so to be." By sect. 71 of 6 & 7 Will. 4, c. 71, only tenants in fee or in tail were empowered to merge rent-charge ; but this power was extended by 1 & 2 Vict. c. 64, and 2 & 3 Vict. c. 62, to all persons having powers of appointment over the fee simple of tithes or rent-charge, and to cases where tithes (or rent-charge in lieu of tithes), and the lands out of which they are payal)le, are both settled to the same uses, Avhen anybody in possession of an estate for life in tithes may merge : and also to the owners of glebes in certain cases specified below. 1 & 2 Vict. c. 64, s. 1, enacts, that " It shall be lawful for any person or persons who shall, either alone or toge- ther, be seised of or have the power of acquiring or dis- posing of the fee simple in possession of any tithes or rent-cliarge 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 Tithe Commissioners for Eng- land and Wales shall approve, and to be confirmed under their seal, to convey, appoint, or otherwise dispose of the same, so that the same may be absolutely merged and ex- (7() Sec G & 7 AVill. 4, c. 71, s. 58, giving a power to a])portion the rent-charge on specific lands at the request of the landowner, provided the lands are at least tliree times the value of the whole rent-charge put on them; pp. 1505, 1509, supra. TITHES AND RENT-CnARGES. 1555 tlnguislied in the freehold and inheritance of the lands out of or on which the same shall have been issuing or charged ; and every such deed or declaration as aforesaid shall be valid and effectual for the puipose aforesaid, al- though the same may not be executed or made in the manner or with the formalities or requisites which if this act had not been passed Avould have been essential to the validity of any instrument by Avhich such ]3erson or persons could have acquired or disposed of the fee simple in pos- session of such tithes, or rent-charge in lieu of tithes" (z). Sect. 3. ." In all cases where tithes, or rent-charge in lieu of tithes, and the lands out of which the same are payable, are both settled to the same uses, it shall be lawful for any person in possession of an estate for life in both such lands and tithes, or rent-charge in lieu of tithes, by any deed or declaration under his hand and seal, to be made in such form as the said commissioners shall ap- prove, and to be confirmed under their seal, to release, assign, or otherwise dispose of such tithes or rent-charge, so that the same may be absolutely merged and extin- guished in the freehold and inheritance of the lands out of which such tithes shall have been issuing, or on which such rent-charge shall have been charged." Sect. 4. " And whereas doubts have been entertained whether, according to the true construction of the said act, any tithes, or rent-charge in lieu of tithe, can be merged in lands of copyhold tenure, and it is expedient that such doubts should be removed ; be it therefore declared and enacted, that the provisions in the said act and this act contained as to the merger of any tithe, or rent-charge in lieu of tithe, shall be deemed and taken to extend to all lands, being copyhold of inheritance or copyhold for lives, or of any other tenure whatsoever." A further provision on the subject is made by 2 & 3 Vict. c. 62, s. 7, as to the valuation of tithes merged in copyhold land : — • " In every case of merger of tithes or rent-charge issu- ing out of land of copyhold tenure, and subject to arbitrary fine, it shall be lawful for the said commissioners, on the application of the owner of such land, to ascertain, by such ways and means as they shall think fit, the annual value of the tithes or rent-charge so merj^ed or intended to be merged ; and the said commissioners shall in sucli case cause to be indorsed on the deed, declaration, or other Where tithes and the lands charged there- with are settled to the same uses, the tenant for life may cause them to merge in the land. Tithes may be merged in copyhold lands. Provision for deducting value of tithes and rent- charge from arbitrary fines in cases of merger in copyholds. (0 Sect. 2. " No (Iced or de- claration authorized by this act for the merging of titlies shall be chargeable with any stamp duty." 1556 TROrERTY OF THE CnURCn. Tithe and rent-charge of glebe may be merged. Tithes or rent- charge in lieu thereof may be merged after agreement or award, but before appor- tionment. instnimont cfFcctino^ sucli merger, a certificate under their hands and seal, setting forth such annual value so ascer- tained ; and in every case of future assessment of fine on the lands ■which before such merger were subject to such tithes or rent-charge, the parties entitled to such fine shall assess the same as if such lands were sul)ject to the tithes or rcnt-chai'ffc of which the aiuuial value shall be so en- dorsed ; and the ])roduction of such deed, declaration, or instrument of merger, or of a diiplicate thereof, with such certificate endorsed, or of an office copy of such deed, de- claration, or instrument and certificate endorsed thereon, shall be sufficient evidence of the annual value of such tithes or rent-charge." This act also allows the tithes and rent-charge of glebe lands to be merged : — Sect. 6. " The provisions of the said acts and this act for merger or extinguishment of tithes or rent- charge instead of tithes in the lands out of Avhich such tithes shall have been issuing, or whereon such rent-charge shall be fixed, do and shall extend to glebe or other land, in all cases where the same and the tithes or rent-charge thereof shall belong to the same person in virtue of his benefice, or of any dignity, office, or appointment held by him." Fiu'ther provisions on this subject ai'e made by the following sections of 9 & 10 Vict. c. 73 : — Sect. 18. " AVhere by any agreement or award already made or hereafter to be made a rent-charge shall have been agreed or awarded to be paid instead of the tithes of any parish, or instead of any of such tithes, and shall not have been apportioned, it shall be laAvful for the j^erson who under the pro-^nsions of the said recited acts would have been enabled in case such agreement or award had not been made to merge the tithes in lieu of which such rent-charge shall have been agreed or a^varded to be paid, or such of the same tithes as were payable out of part of the said lands, by any deed or declaration, to be made in such form as the commissioners shall approve, and to be confii-med under their hands and seal, to declare that the tithes which he would have been so entitled to merge shall, so far as respects all the lands, or, if he shall think fit, so far as respects only any specified part of the lands out of which the same wei'e ])aya])le, and the rent-charge or portion of rent-charge which shall have been awarded or ought to be apportioned in lieu thereof on such lands, or specified parts of such lands, as the case may be, shall be merged, and such merger shall take effect accordingly ; and in case such merger shall extend to all the lands TITHES AND RENT-CHARGES. 1557 which would have been chargeable with such rent-charge, no apportionment of such rent-charge shall be made under the provisions of the said recited acts; but in case such merger shall extend to part only of the lands which would have been chargeable with such rent-charge, then such portion of the rent-charge shall be apportioned among the other lands which would have been chargeable with such rent-charge as such other lands would have been subject to in case such merger had not taken place ; and the owner of the land to which such merger shall extend shall pay such portion of the expenses of or incident to the ap- portionment as the commissioners or any assistant com- missioner may under the special circumstances order to be paid by such owner, instead of the rateable proportions to which he would have been liable in case the whole of such rent-charge had been apportioned." Sect. 19. " All the powers relating to the merger and Powers re- extinguishment of any tithes, or rent-charge instead luting to the thereof, may be executed by a person entitled in equity to ^withes may such tithes or rent- charge in all respects and with the be executed by same consequence as he coidd have done if he had been a person en- legally entitled thereunto ; and every instrument already equUy^^ executed and purporting to be made in pursuance of the powers of the said acts or any of them by any person so entitled in equity shall in every respect be as effectual and have the same consequence as if he had been legally en- titled to the said tithes or rent-charge at the time of the execution of such instrument, subject nevertheless in every case to any charge, incumbrance, or liability which law- fully or equitably existed on such tithes or rent-charge to the extent of the value of such tithes or rent-charge ; and any such charge, incumbrance, or liability shall have such priority, and the lands and the owners thereof for the time being shall be liable in the same manner in respect of such rent-charge, incumbrance, or liability, or of any penalty or damages for non-payment or non-performance thereof respectively, as by the said act of 2 & 3 Vict. c. 62 is provided in the case of such merger or extinguishment as therein mentioned ; and every instrument purporting to merge any tithes or rent-charge, and made with the con- sent of the said commissioners before the passing of this act, shall be hereby absolutely confirmed and made valid both at law and in ccpiity in all rcsjiects, subject neverthe- less to any charge, incumbrance, or liability in all respects as is lastly hereinbefore provided." In the case of Walker v. Bentleij (/), It was liolden by (0 9 Hare, G2'j. 1558 PROPER rY OF THE CHURCH. Walker V. the Vicc-Chanccllor and confirmed by tlie Lords Justices Bentletj. that under this last section an instrument purj)orting to merge the tithes executed -with the consent of the com- missioners is conchisive, though tha person executing the instrument had actually no estate in the tithes or reut- charcfc. When rent- charge is in arrear for twenty-one days, after half-yearly (lays of pay- ment, the per- son entitled thereto may distrain. Priority of right to goods distrained. Sect. 15. — Mode of recovering Rent-charges. The powers given for the recovery of the rent-charge by 6 & 7 Will. 4, c. 71, are as follows : — Sect. 81. "In case the said rent-charge shall at any time be in aiTcar and vmpaid for the space of twenty-one days next after any half-yearly day of payment, it shall be lawful for the person entitled to the same, after having given or left ten days' notice in writing at the usual or last known residence of the tenant in possession, to distrain upon the lands liable to the payment thereof, or on any part thereof, for all arrears of the said rent-charge, and to dispose of the distress when taken, and otherwise to act and demean himself in relation thereto, as any landlord may for arrears of rent reserved on a common lease for years (/t) ; provided that not more than two years' arrears shall at any time be recoverable by distress." " By(0 the stat. 8 Ann. c. 14" (or 18), " s. 1, the landlord is entitled to be paid one year's rent actually due at the time of the execution, before the goods are applied to the purposes of the execution. By 6 Geo. 4, c. 16, s. 74, no distress for rent levied after an act of bankruptcy, whether before or after the fiat, will be available for more than one year's rent, accrued prior to the date of the fiat, ])ut the landlord may come in as a creditor for the resi- due (?«). Under a sequestration from equity, the landlord is entitled to be paid arrears of rent(?/). Perhaps it is not clear that the owner of the rent-charge Avill be entitled (Jc) This provision does not give the distrainor, Avlien ulti- mately successful, a right to double costs, under the old law, nor consequently to " a full and reasonable indemnity," under 5 & G Vict. c. 'J7, s. 2; Neivnham v. Bever, 7 D. & L. 253; 8 C. B. 560. {I) The following remarks are taken from a valuable note to clause 81, in Mr. Shelford'.s elabo- rate work on the Tithe Commu- tation Acts, 3rd edit. (1848), p. 292. (m) This section has been re- pealed; but a similar provision is contained in the present act, 32 & 33 Vict. c. 71, s. 34. (n) Dixon v. Smith, 1 Swanst. 457. J TITHES AND llENT-CHARGES. 1559 to avail himself of the above statutes ; at any rate, it should seem that he can only do so for one year's arrears. " At common laAv, distresses taken for rent in arrear Distresses at were not saleable, but could only be kept as a pledge for common law. the rent. By the stat. 2 W. & M. c. 5, goods and chat- tels distrained for rent due under a contract, may be kept and sold in the manner pointed out by that act. It was not until the 11 Geo. 2, c. 19, s. 8, that landlords had power to distrain corn, grain, or other produce growing on the land demised. The grantee of a rent-charge was empowered by deed ' to detain, manage, sell, and dispose of distresses in the same manner in all respects as dis- tresses for rents reserved upon leases for years, and as if the annuity was a rent reserved wpon a lease for years ;' and it Avas held that these words were hdly satisfied by holding them to grant the powers which were given to landlords under the stat. 2 W. & M. c. 5, without extend- ing them to the new subjects of distress first granted by the statute 11 Geo. 2, c. 19. The court held that such a power ought to be construed strictly, especially in a case seeking to bring within it the grooving crops of a person who was a stranger to the deed(o). " The following case may probably Imve some applica- tion to the cases which may arise under the new act. An Distress for inclosure act provided ' that there shall be issuing and com rents on payable from time to time to the impropriators and the closed lands. vicar, according to their rights and interests therein, and of the several estates of the land-owners, in the parish, such yearly corn rents or sums as therein mentioned, and declared that the rent should be payable by the persons who should be in possession or occupation of the lands or estates out of which the same should be issuing ;' it then specified the time and place of pa3ment, and enacted ' that the several corn rents and sums of money should be in lieu of and in satisfaction for all tithes.' By a subse- quent clause, the impropriators were to have the same powers and remedies for recovering the yearly rc7it, when the same was in arrear, as were by law given for the recovery of rent service, or other rent in arrear. Part of the inclosed lands was imcultivated and imtenantcd for some years, during which time tlie owner lived on anotlier estate ; he afterwards demised them to a tenant who en- tered and occupied. A distress was taken for the corn rents, and payment was refused, on the ground that during the period when the rents respectively became due, tlie (o) Miller \. Green, 8 Bing. 107; 2 Cr. & J. 142; 1 Moore & S. 199; 2 Tyrw. 1. 1560 morERTY of the church. Distress for land ^vas not liable to the ])ayment of corn rents, because corn rents on j^q ^.j-Qp ^yj^g i-earecl iipon it, and the owner had not any closed iauds. beneficial enjoyment of it. It was said by Bayley, J. : ' The ])arties may be considered in the same situation as if the tithe-owner had granted a lease of the tithes at an annual rent. In that case it is quite clear that it would be no answer to an action for the rent, that no tithe in kind was produced, or that the land was imoccupied. Here the rent is a substitute for tithes, not merely de anno in annum, but for ever. It does not therefore follow that because no tithe in kind was produced, that no money rent is payable. It is said that this may operate as a liardship in particular cases Avhere preceding tenants have omitted to pay the rent : ]ierhaps the tithe-owner might not have any remedy by distress against an occupier not coming in under the party indebted ; here, however, the plaintiff in rej^levin came in under the landlord during whose occupation the arrears of rent accrued. ' During that time the landlord had the legal occupation, for he might have maintained trespass or ejectment against a wrong-doer. I think, therefore, that even if the rent were payable only by a person in possession, that, under the circumstances of the case, he must be considered to have been in possession during the time that there was no tenant. But my opinion proceeds principally on the ground, that by the act of parliament the corn rent is made a ]ier])etual charge or burden on the estate.' And it was held that the distress was legal " ( p). "When rent- Sect. 82. " In case the said rent-charge shall be in char(,res are in arrear and unpaid for the space of forty days next after firrciiF tor •/ •/ forty days after ^'^J half-yearly day of payment, and there shall be no half-yearly sufficient distress on the premises liable to the payment days of pay- thereof, it shall be lawful for any iudofe of his majesty's sufficient dis- courts of record at Westminster, upon affidavit of the tress on the facts, to ordcr a writ to be issued, directed to the sheriff premises, ^^^^t ^^ ^■^^^, coviutv in which the lands cliaro*eable Avith the rent- to DC issuer * • • directing ' charge are situated, requiring the said sheriff to summon sheriff to sum- a jury to asscss the arrears of rent-charge remaining un- mon jury to paij and to rctum the inquisition thereupon taken to some one oi his majesty s courts ot laAv at >v estmuister, on a day therein to be named, cither in term time or vaca- tion : a copy of Avhich writ, and notice of the time and place of executing the same, shall be given to the owner of the land, or left at his last known place of abode, or (;?) Nciding v. Pearsc, 1 B. & C. 437; 2 Dowl. & II. 607; 3 E. & Y. 1004; Gw. 2007. assess arrears. TITHES AND EEXT-CriARGES. 1561 with his known agent, ten clays previous to the execution thereof, and the sheriff is hereby required to execute such wi-it according to the exigency thereof; and the costs of such inquisition shall be taxed by the proper officer of the court ; and thereupon the owner of the rent-charge may sue out a Avrit of habere facias possessionem, directed to the sheriff, commanding him to cause the ow^ner 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 Avrit and of executing the same, and of cultivating and keeping pos- session of the lands, shall be fully satisfied : provided always, that not more than tAvo years' arrears over and above the time of such possession shall be at any time re- coverable." Under this section crops growing into profit are to be Cases on this taken into consideration in estimating the sufficient dis- section, tress (q). The judge's order under this section may be obtained ex parte {r ). Possession of the land, and recovery of the full two years' arrears, may be obtained, if there is no sufficient distress at the end of the two years, though at the end of the three half-years previous there might have been sufficient distress, if it had been taken, for the arrears then due {s). It has been holden that the injury sustained by a tithe- No action for owner, in consequence of land being rendered incapable ||o™pf,^^j!^! of producing tithe, is not such a wrongful act in law tion. as Avill entitle a tithe-owner to maintain an action for damages (t). Sect. 83. " It shall be lawfvd for the court out of which Account, how such writ shall have issued, or any judge at chambers, to to be rendered. order the owner of the rent-charge who shall be in posses- sion by virtue of such writ from time to time to render an account of the rents and produce of the lands, and of the receipts and payments in respect of the same, and to pay ■ over the surplus (if any) to the person for the time being entitled thereunto, after satisfaction of such arrears of rent-charge and all costs and expenses as aforesaid, and thereupon to order a writ of supersedeas to issue to the said writ of habere facias possessionem, and also by rule or order of such court or judge from time to time to give (q) Ex parte Anuson, L. R., 3 (.s) Re CamheiiveU Bent-charge, Ex. 50; 37 L. J., Ex. 57 (1808). 4 Q. B. 151; 3 C. & D. 305. (t-) lie llammerHinitli, Rent- {t) Rex v. Commissioners of charge, 4 Ex. 87; 19 L. J., Ex. New Reffall, 4 M. & R. 647; 9 66 (1849). B. & C. 833. P. VOL. II. 5 II 1562 rU< JTEUTV OF THE CIIL'IUH. Powers of dis- tress aiul entry to extend to all lands within the jiarish oc- cupied hy the owner or under the same land- lord or hold- Quakers. Kccovery of rent-fharges from. such summary relief" to tlu- parties as to the said court or judge sliall seem fit.'' Sect. 85. " Whenever any rent-charge payable under the ])rovisions of" this act .^^liall be in arrear, notwithstand- ing any apjiortiomncnt which may have been made of any such rent-charge, every part of the land situate in the parish in which such rent-charge shall so be in arrear, and which shall be occupied by the same person who shall be the occu])ier of the lands on which such rent-charge so in arrear shall have been charged, whether such land shall be occupied by the per.son occupying the same as the owner thereof, or as tenant thereof, holding under the same landlord inider whom he occupies the land on which such rent-charge so in arrear shall have been charged, shall be liable to be distrained upon or entered upon as aforesaid for the piu'pose of satisfying any an'cars of such rent-charge, whether chargeable on the lands on which such distress is taken or such entry made, or upon any other part of the lands so occupied or holden : provided always, that no land shall be liable to be distrained or entered upon for the purpose of satisfying any such rent- charge charged upon lands Avhich shall have been washed away by the sea, or otherwise destroyed by any natural casualty." Quakers' goods, it Avill be seen, may be distrained off the premises and sold without being impounded. Sect. 84. " In all cases in which it shall be necessary to make any distress under this act in respect of any lands in the possession of any person of the persuasion of the people called quakers, the same may be made upon the goods, chattels, or effects of such person, whether on the premises or elsewhere, but nevertheless to the same amount only, and with the same consequences in all respects as if made on the premises ; and that in all cases of distress under this act upon persons of that persuasion, the goods, chattels or effects Avhich may be distrained shall be sold without its being necessary to im])oitnd or keep the same : provided always, that no writ luider the provision herein- before contained shall be issued for assessing or recovering any rent-charge payaljle under this act in respect of any lands in the possession of any person of the persuasion aforesaid, unless the same shall be in arrear and unpaid for the space of forty days next after any half-yearly day of payment, without the person entitled thereto being able to find goods, chattels, or effects, either on the premises or elsewhere liable to be distrained as aforesaid, suflScient to TITHES AND RENT-CHARGES. 1563 satisfy the arrears to wlilcli siicli lands are liable, together with the reasonable costs of such distress." Where a tenant at rack-rent, at the time when the com- mutation was effected, has dissented from paying the rent- charge, the landlord is empowered to take the tithes, it being enacted by sect. 79, " Any tenant or occupier, who If tenant of at the time of such commutation shall occupy at rack-rent ^'iids at rack- • rent clisseTiL any lands of which the tithes shall be so commuted, may, fi-om paying Avithin one calendar month next after the confirmation the rent- of the apportionment by the commissioners, signify, by f Ip'/ writing under his hand given to or left at the usual resi- take the tithes dence of his landlord or his agent, his dissent from being during the bound to pay any rent-charge apportioned and charged on ^•'"^"^■y- the said lands as aforesaid ; and in that case such landlord shall be entitled, from the time when the said apportion- ment shall take effect, and during the tenancy or occupa- tion of such tenant or occupier, to stand, as to the percep- tion and collection of tithes or receipt of any composition instead thereof, in the place of the owner of the tithes so commuted, and to have all the powers and remedies for enforcing render and payment of such tithes or composi- tion which the tithe-owner would have had if the commu- tation had not taken place." No action for the rent-charge lies against the OAvner or Xo action for occupier of the lands (?/). rent-charge. The following supplemental provisions are made by o & 6 Vict. c. 54 :— Sect. 12. " It shall be lawful for any owner of rent- Power to charo'e having: taken possession of any laud for non-pav- o^°er of rent- » •• i*^ rliarj^^'O to let ment of the rent-charge under the provisions of the first- land taken recited act {x), from time to time during the continuance under writ of of such possession to let such land, or any part thereof, for possession. any period not exceeding one year in possession, at such rent as can be reasonably obtained for the same ; and the restitution of such land, on payment or satisfaction of the rent-charge, costs, and expenses, shall be subject and with- out prejudice to any such tenancy." Sect. 16. " In case any land charged with one amount Remedy for of rent-charffc shall belong; to two or more land-owners in enforcing pay- 1 . . -, T ^ ^ f 1 • ment ot con- several portions, and tlie owner ot any of such portions, or trihution of his tenant, shall have paid the whole of such rent-charge, rent-charge. or any portion thereof greater than shall aj^pear to liim to be his just proportion, and contribution thereto shall have been refused or neglected to be made by any other of the (w) Griffenhoofe v. Daulna, 4 E. & B. 230; 24 L. J., Q. B. 20. (x) G& 7 Will. 4, c. 71. 5 H 2 1564 rROPEUTY OF THE CHURCH. said land-owners, or his tenants, after a demand in writing made on tliem, or either of them, i'or that pnrpose, it shall be lawful for any justice of the peace acting for the county or other jurisdiction in which tlie land is situated, upon the coniphiint of any such land-owner, or his tenant or agent, to summon tlie owner so refusing or neglecting to make contribution, or his tenant, to appear before any two or more such justices of the peace, who, upon proof of the demand and of service of the summons, as hereinafter pro- vided, whether or not the party summoned shall appear, shall examine into the merits of the complaint, and deter- mine the just pro})oi-tion of the rent-charge so paid as aforesaid which ought to be contributed by the land-owner of such other portion of the said land, and by order under their hands and seals (y) shall direct the payment by him of Avhat shall in their judgment be due and payable in respect of such liability to contribution, with the reason- able costs and charges of such proceedings, to be ascer- tained by such justices ; and thereupon it shall be lawful for the complainant to take the like proceedings for en- forcing payment of the said amount of contribution and costs, and with the like restriction as to the arrears re- coverable, as are given to the owner of the rent-charge by the said first-mentioned act or this act for enforcing pay- ment of the rent-chare:e." Sect. 17. " Service of the said demand in writing, and summons, or of any notice to distrain, or copy of writ to assess the arrears of rent-charge, or notice of the execution thereof under the said first-recited act, or the several acts to amend the same, or this act, upon any person oc;cupying or residing on the land chargeable with the rent-charge, or in case no person shall be found thereon, then affixing the same in some consjjicuous j)lace on the land, shall be deemed good service of any such summons, notice, writ, or other proceeding." Sect. 18. " It shall be lawful for all defendants in re- general avowry plevin, broujjht on any distress for rent-charee payable in uctions oi • • ox./ rejdcvin for under the said first-recited act, or the several acts to amend the same, or this act, to avow or make cognizance generally that the lands and tenements whereon such dis- tress was made were chargeable with or liable to the pay- ment of a certain yearly amount of rent-charge under the provisions of the statutes for the commutation of tithes in England and ^^"ales, which rent-charge, or some part thereof, was in arrear and unpaid for the space of twenty- Service of summons, &c Provision for rent-charge. (y) See lierj. V. WilUams, 21 L. J., M. C. 150. TITHES AND RENT-CHARGES. 1565 one days next after some half-yearly day of payment thereof, and after ten days notice in writing, as required by the said acts, and that a certain amoimt of such rent-charge, according to the prices of corn, as directed by the said acts, Avas at the time of the said distress due to the person entitled to the rent-charge." Sect. 19. " Where any distress shall be made for any In-egulaiity rent-charare payable under the said recited acts or any of "°^ to vitiate them, or this act, and justly due, and any irregularity or " ' unlawfiil act shall be afterwards done by the l^arty dis- training, or his agent, in the conduct, sale, or disposition of the distress, the distress itself shall not be therefore deemed to be unlawful, nor the party making it deemed a trespasser from the beginning, but the party aggrieved by such unlawful act or irregularity may recover full satis- faction for the special damage in an action upon the case ; provided nevertheless, that no plaintiff shall recover in any action for any such unlaAvful act or irregularity, if ten days notice in writing {z) shall not have been given to the defendant by the plaintiff of his intention to bring such action before the commencement thereof, or if tender of sufficient amends has been made by the party distraining, or his agent, before such action brought, or if after action brought a sufficient sum of money shall have been paid into court, with costs, by or on behalf of the defendant." And by 23 & 24 Vict. c. 93, it is thus enacted :— Sect. 29. " If a rent-charge shall at any time be in arrear Expenses of and unpaid, and in order to enforce payment thereof it recovering shall become necessary for the person entitled to the same ^^" '^ ^'^^' to give notice of his intention to distrain upon the lands liable to the payment thereof for the aiTcars of the said rent-charge, according to the provisions of the said recited acts, the owner of the rent-charge shall in all cases be entitled to two shillings and sixpence for and in respect of each notice which shall have been so issued, and such sum shall be deemed and taken to be part of the rent- charge which is in arrear and unpaid, and shall be recover- able accordingly, in like manner as the said arrears of rent-charge are recoverable." Sect. 30. " Notice of intention to distrain may be given Notice of in- in the manner pro\dded by the said recited acts, or by t^^.'^^u to dis- i- •. -I T ^ • ■^ • 11 1 /¥» train may bo sending it by the post in a registered letter to the office or scut by post, usual place of abode of the person to Avhoni the same is addressed." A special provision is made for recovering rent-charges Remedy for (a) Sec Iluward v. Eemer, 2 E. & B. 915; 23 L. J., Q. B. GO. 1566 ruorERTY of tiik ciiuucii. recovery of from railway companies by 7 & 8 Vict. c. 85, s. 22 : '^ In 'h^^^/T'^ all cases in which any snch rent-charp;e, or part of any raUway land. I'ont-chargc, has been or hereafter shall be duly appor- tioned, under the ]irovisions of the acts for the commuta- tion of tithes in Eno;land and AVales, upon lands taken or jiurchased by any railway company for the purposes of such company, or upon any part of such lands, it shall be lawful for every person entitled to the said rent-charge or parts of such rent-charge, in case the same has been or shall be in arrear and mipaid for the space of twenty-one days next after any half-yearly day fixed for the payment thereof, to distrain for all arrears of the said rent-charge upon the goods, chattels and effects of the said company, whether on land charged therewith, or any other lands, premises or hereditaments of such company, whether situated in the same parish or elsewhere, and to dispose of the distress when taken, and otherwise to demean liim- self in relation thereto as any landlord may for arrears of rent reserved on a lease for years : provided always, that nothing herein contained shall give or be construed to give a legal right to such rent-charge, when but for this act such rent-charge was not or could not be duly appor- tioned." And, as to the relations between landlords and tenants. Tenant quit- it is provided as follows by 14 & 15 Yict. c. 25, s. 4 : " If ting, leaving ^^y occupying tenant of land shall quit leaving un]:)aid charpc unpaid, ^"J tithe rent-charge for or charged upon such land which landlord, &c. he was by the terms of his tenancy or holding legally or may pay the equitably liable to pay, and the tithe-owner shall give or recover from bave given notice of proceeding by distress upon the land the first-named for recovery thereof, it shall be lawful for the landlord, or tenant as if it ^]^q succeeding tenant or occupier, to pay such tithe rent- were a simple , T " • • 1 / ^A :: T J. contract debt, chfii'gc, and any expenses incident thereto, and to recover the amount or sum of money which he may so pay over against such first-named tenant or occupier, or his legal representatives, in the same manner as if the same were a del)t by simple contract due from such first-named tenant or occupier to the landlord or tenant making such pay- ment." Sect. 16. — Tithes in Metropolis. Excepted from In the several acts of 27 Hen. 8, c. 20 ; 32 Hen. 8, s. 7 ; statutes. 2 & 3 Edw. 6, c. 13 ; 7 & 8 Will. 3, c. 60, and 6 & 7 WiU. 4, c. 71, s. 90, there is a proviso that nothing therein shall extend to the city of London, concerning any tithe, offer- TITHES AXD EEXT-CHARGES. 1567 ing, or other ecclesiastical duty, grown and due to be paid Avitliin the said city, because there is another order made for the payment of tithes and other duties there. Which order is as follows : — It appeared by the records Order by of the city of London, that Niger, bishop of London, in ^^^'^h tiny are the 13 Hen. 3, made a constitution, in confirmation of an ^ ancient custom formerly used time out of mind, that pro- Constitution vision should be made for the ministers of London in this of Bishop manner, that is to say, that he who paid the rent of 20,?. "^ '^^^' for his house wherein he dwelt, should offer every Sunday, and eveiy Apostle's day whei'eof the evening was fasted, one halfpenny; and he that paid but lOs. rent yearly, should oflfer but one farthing ; all Avhich amounted to the proportion of 25. 6d. in the ]30und, for there were fifty-two Sundays, and eight Apostles' days the vigils of which were fasted ; and if it chanced that one of the Apostles' days fell upon a Sunday, then there was but one halfpenny or farthing paid, so that sometimes it fell out to be somewhat less than 2^. 6d. in the pound. And it appears by the book cases in the reign of Ed- ward III. that the provision made for the ministers of London was by offerings and obventions, albeit the parti- culars are not assigned there, but must be understood according to former ordinance made by Niger. And the payment of 2^. 6d. in the pound continuing Constitution until the 13 Kic. 2, Arundel, Archbishop of Canterbury, ^f^^'del^'"''''^ made an explanation of Niger's constitution, and thrast upon the citizens of London two and twenty more saints' days than -^s-ere intended by the constitution made by Nigei', whereby the offeiings now amounted unto the sum of Ss. 5d. in the poimd. And there being some relucta- tion by the citizens of London, Pope Innocent, in the 5 Hen. 4, granted his bull, whereby Arundel's explanation was confirmed. AVhich confirmation (notwithstanding the difference between the ministers and citizens of London about those two and tAventy saints' days which were added to their number), Pope Nicholas also, by his bull, did confirm in the 31 Hen. 6. Against which the citizens of London did contend with so high a hand tliat they caused a record to be made Avhoreby it might appear, in future ages, that the order of explanation made by the Archbishop of Canterbury was done without calling the citizens of London unto it, or any consent given by them : and it was branded by thcna as an order surreptitiously and abnxptly obtained, and therefore more fit to have the name of a destructory than a declaratory order. loG8 riiorERTY OF THE CHURCH. Order by whirh llipy arc goveriH'd. Constitution of Archbishop Arundel. 27 Hen. 8, c. 21. 37 Hen. c. 12. Nevertheless, notwitlistandinn; this contention, the p«iy- ment seems to have ))een most usually niade accordinp; to the rate of li.v. 5^/. in the ])oiiii(l. For Liiuhvood, who wrote in the time ofllenrv XL, in his Provincial Consti- tutions debatin*^ the question, whether the merchants and artificers of the city of London ought to pay any tithes, shows, that the citizens of London, by an ancient ordi- nance observed in the said city, arc boimd, every Lord's- day, and every principal feast-day either of the Apostles or others whose vigils are fiisted, to pay one farthing for every ]0s. rent that they paid for their houses wherein the dwelt. And in the 36 lien. 6, there was a com|)osition made between the citizens of London and the ministers, that a payment should be made by the citizens according to the rate of 3^. 5d. in the ]iound, and if any house w^ere kept in the pro]ier hand of the owner, or were demised without reservation of any rent, then the churchwardens of the ])arish Avhere the houses were should set down a rate of the houses, and according to that rate payment should be made. After which composition so made, there Avas an act of common council made in the 14 Kd^v. 4 in London, for the confirmation of the l)ull granted by Pope Nicholas. But the citizens of London finding that by the common laws of the realm, no bull of the ])ope, nor arbitrary com- position, nor act of common council, could bind them in such things as concerned their inheritance, they still wrestled Avith the clergy, and w^oidd not condescend to the payment of the said \\d. by the year, obtruded upon them by the addition of the two and twenty saints' days : whereupon there Avas a submission to the lord chancellor and divers others of the privy council in the time of King )Ienry VIII. ; and they made an order for the payment of tithes according to the rate of 2s. 9d. in the pound ; Avhich order was first promulgated by a proclamation made, and afterwards established by an act of parliament, 27 Hen. 8, c. 21, intituled " An Act for the Payment of Tithes within the City and Suburbs of London, until another Law and Order shall be made and published for the same" (a). And ten years after this another law and order was made by the statute 37 Hen. 8, c. 12, as follows: " Where of late time, contention, strife, and Aanance hath risen and grown within the city of London and the liberties of the {(i) Privilogia Loiidiui, 456 — 458. TITHES AND RENT-CHARGES. 1569 same, between the parsons, vicars, and curates of tlie said city, and the citizens and inhabitants of the same, for and concerning the payment of tithes, oljlations, and other duties within the said city and liberties ; for appeasing whereof, a certain order and decree was made thereof, by the most reverend father in God Thomas Archbishop of Canterbury, Thomas Audley, Knight, Lord Audley of Walden, and then Lord Chancellor of England, now de- ceased, and other of the king's most honourable privy council ; and also the king's letters patents and procla- mation was made thereof, and directed to the said citizens concerning the same ; whereupon it was after enacted in the parliament holden at Westminster by prorogation, the fourth day of February, in the twenty-seventh year of the king's most noble reign, that the citizens and inha- bitants of the same city should, at Easter then next follow- ing, pay unto the curates of the said city and suburbs, all such and like sums of money, for tithes, oblations, and other duties, as the said citizens and inhabitants by the order of the said late lord chancellor, and other the king's most honourable council, and the king's said proclamation, paid or ought to have paid by force and virtue of the said order at Easter, in the year 1535 ; and the same payments so to continue from time to time, imtil such time as any other order or law should be made by the king and the two and thirty persons by the king to be named, as well for the full establishment concerning the payment of all tithes, oblations, and other duties of the inhabitants within the said city, suburbs, and liberties of the same, as for the making of other ecclesiastical laws of this realm of Enff- land ; and that every person denying to pay as is aforesaid should, by the commandment of the mayor of London for the time being, be committed to prison, there to remain until such time as he should have agreed with the curate for the said tithes, oblations, and other duties as is aforesaid, as in the said act more plainly ajipeareth ; since which act, divers variances, contentions, and strifes are newly arisen and grown between the said parsons, vicars, and curates, and the said citizens and inhabitants, touching the pay- ment of the tithes, oblations, and other duties, by reason of certain words and terms specified in the said order, Avhich arc not so plainly and fully set forth as is thought convenient and meet to be ; for appeasing whereof, as Avell the said parsons, vicars, and curates, as the said citizens and inhabitants, have compromittcd and put themselves to stand to such order and decree touching the premises as shall be made by the said right reverend father in God 1570 PROrERTY OF THE CriURCIT. Order by which they arc governed. 37 Hen. c. 12. 8, Decree. ami the several otlicr persons hereunder mentioned, for a final end and conelusion to be had and made touching the premises for ever : And to the intent to have a full peace and perfect end between the said parties, their heirs and successors, touching the said tithes, oblations, and other duties for ever, it is enacted, that such end, order, and direction as .shall be made by the forenamed archbishop and the several other persons as aforesaid, or any six of them, befoi'C the hr.st day of INIarch next ensuing, con- cerning the jmyment of tithes, oblations, and other duties ■within the said city and the liberties thereof, and inrolled of record in the High Court of Chancery, shall stand, remain, and be as an act of parliament, and shall bind as well all citizens and inhabitants of the said city and liber- ties for the time being, as the said parsons, Aacars, curates, and their successors for ever, according to the effect, pur- port, and intent of the said order and decree so to be made and inrolled ; and that every person denying to pay any of his tithes, oblations, or other duties, contrary to the said decree so to be made, shall by the commandment of the mayor of London for the time being, and in his default or negligence by the lord chancellor of England for the time being, be committed to prison, there to remain till such time as he hath agreed with the curate for the same." Which decree made in pursuance hereof is as fol- lows (i) ; viz. : — " 1. As touching the payment of tithes in the city of London, and the liberties of the same : It is fully ordered and decreed by the most reverend father in God Thomas Archbishop of Canterbury, primate and metropolitan of England, Tliomas Lord Wr^'othesly, lord chancellor of England, William Lord St. John, president of his ma- jesty's council and lord great master of his majesty's house- hold, John Lord Russell, lord privy seal, Edward Earl of Hertford, lord great chamberlain of England, John Viscount Lisle, high admiral of England, Richard Lister, knight, chief justice of lilngland, and Roger Cholmely, knight, chief baron of his majesty's exchequer, this twenty- fourth day of February, in the year of our Lord 1545, according to tlic statute in such case lately provided, that the citizens and inhabitants of the said city and liberties thereof for the tin'ie being, shall yearly, without fraud or (h) In Macdongall v. Furrier^ 4 Bligh, N. S. 433; 2 Dow. & CI. 135, the IIoiLse of Lords held tliat they ■would preminc tiiat this decree ■was enrolled according to tiie act. TITHES AND RENT-CHARGES. 1571 covin, for ever pay tlieir tithes to the parsons, vicars, and curates of the said city, and their successors for the time being, after the rate hereafter following ; that is to wit : Of every lOs. rent by the year, of all houses, shops, ware- houses, cellars, stables, and every of them, within the said city and liberty thereof, 16 ^d.; and of every 205. rent by the year, 2s. 9d. ; and so above the rent of 20^. by the year, ascending from lOs. to 10^., according to the rate aforesaid. " 2. Item, that where any lease is or shall be made of any dwelling-house or houses, shops, warehouses, cellars, •or stables, or any of them, by fraud or covin, reserving less rent than hath been accustomed or is ; or Avhere any such lease shall be made w^ithout any rent reserved upon the same, by reason of any fine or income paid beforehand, or by any other fraud or covin ; in every such case, the tenant or farmer shall pay for his tithes of the same after the rate aforesaid, according to the quality of such rents as the same were last letten for, without fraud or covin before the making of such lease. " 3. Item, that every owner or inheritor of any dwelling- house, or houses, shops, warehouses, cellars, or stables, inhabiting or occupying the same himself, shall pay after such rate, according to the quantity of such yearly rent as the same was last letten for, without fraud or covin. " 4. Item, if any person hath taken, or hereafter shall take, any mease or mansion place by lease, and the taker thereof, his executors or assigns, doth or shall inhabit in any part thereof, and hath within eight years last past before this order, or hereafter shall let out the residue of the same ; in such case, the principal farmer or farmers, or first taker or takers thereof, their executors or assigns, shall pay their tithes after the rate above said, according to the quantity of tlieir rent by the year. " 5. And if any person shall take divers mansion houses, shops, warehouses, cellars, or stables in one lease, and shall let out one or more of them, and shall keep one or more in his own hands, and inhabit in the same ; the said taker, and his executors or assigns, shall pay their tithes after the rate abovesaid, according to the quantity of the yearly rent of such mansion houses or house retained in his own hands ; and his assignees of the residue of the said mansion house or houses, shall pay their tithes after the rate above- said, according to the quantity of their yearly rents. " 6. Item, if such farmer or farmers, or his or their as- signs, of any mansion house or houses, warehouses, shops, cellars, or stables, hath at anv time within eight vears last 1572 PROPERTY OF THE CHURCH. Order by which they are q^ governed. Decree. past, or shall hereafter let over all the said mansion house houses contained in his or their lease, to one or more persons ; the inhabitants, lessees, or occu])iers thereof, shall pay their tithes after the rate of such rents as the inha- bitants, lessees, or occupiers, and their assigns, have been or shall be charged Avithal, Avithout fi-aud or covin. " 7. Item, if any dwelling-lKjuse within eight years last past was or hereafter shall be converted into a warehouse, storehouse, or such like; or if a warehouse, storehouse, or such like, within the said eight years Avas or hereafter shall be converted into a dwelling-house, the occupiers thereof shall pay tithes for the same after the rate above declared of mansion house rents. " 8. Item, that Avliere any ])erson shall demise any dye- house or brewhouse, Avith implements conA^enient and ne- cessary for dyeing or breAving, reserA^ng a rent upon the same, as Avell in respect of such implements as in respect of such dy chouse or brewhouse, the tenant shall pay his tithes after such rate as is abovesaid, the third penny abated ; and CA^ery principal house or houses, with key or Avharf, having any crane or gibet belonging to the same, shall pay after the like rate of their rents as is aforesaid, the third penny abated ; and the other wharfs belonging to houses haA'ing no crane or gibet, shall pay for tithes as shall be paid for mansion houses in form aforesaid. " 9. Item, that AAliere any mansion house with a shop, stable, AA^arehouse, AA-harf Avith crane, timber yard, teinter yard, or garden belonging to the same, or as parcel of the same, is or shall be occupied together, if the same be here- after severed or divided, or at any time within eight years last past Avere scA-ered or divided, then the fanners or occupiers thereof shall pay such tithes as is abovesaid for such shops, stable, Avarehouses, wharf Avith crane, timber yard, teinter yard, or garden aforesaid, so severed or divided, after the rate of their several rents thereupon reserved. " 10. Item, that the said citizens and inhabitants shall pay their tithes quarterly, that is to say, at the feast of Easter, the nativity of St. John the Baptist, the feast of St. Michael the Archangel, and the nativity of our Lord, by even ])ortions. "11. Item, that CA-ery householder paying 10s. rent or above shall for him or herself be discharged of their four offering days; but his Avife, children, servants, or others of their family, taking the rites of the church at Easter, shall pay 2d. for their four offering days yearly. " 12. Provided alAAays, and it is decreed, that if any TITHES AND REXT-CHAEGES. 1573 house Avliich hath been or hereafter shall be letten for lO^. rent by the year, or more, be or hath been at any time within eight years last past, or hereafter shall be divided and leased into small parcels or members, yielding less yearly rent than lOs. by the year, the owner, if he shall dwell in any part of such house, or else the principal lessee (if the owner do not dwell in some part of the same) shall pay for the tithes after such rate of rent as the same house was accustomed to be letten for before such division or dividing into parts or members; and the under-farmers and lessees to be discharged of all tithes for such small parcels, parts or members, rented at less yearly rent than 10s. by the year Avithout fraud or covin, paying 2d. yearly for four offering days. " 1 3. Provided always, and it is decreed, that for such gardens as appertain not to any mansion house, and which any person holdeth in his hands for pleasure, or to his own use, the person holding the same shall pay no tithes for the same. But if any person which shall hold any such garden, containing half an acre or more, shall make any yearly profit thereof, by way of sale, he shall pay tithes for the same after such rate of his rent as is herein first above specified. " 14. Provided also, that if any such gardens now being of the quantity of half an acre or more, be hereafter by fraud or covin divided into less quantities, then to pay according to the rate abovesaid. " 15. Provided always, that this decree shall not extend to the houses of great men, or noblemen, or noblewomen, kept in their own hands, and not letten for any rent, which in times past have paid no tithes, so long as they shall so continue unletten ; nor to any halls of crafts or companies, so long as they be kept unletten, so that the same halls in times past have not used to pay any tithes. " 16. Provided always, and it is decreed, that this pre- sent order and decree shall not in anywise extend to bind or charge any sheds, stables, cellar, timber yards, nor teinter yards, which Avere never parcel of any dwelling- house, nor belonging to any dwelling-house, nor have been accustomed to pay any tithes ; but that the said citizens and inhabitants shall thereof be qviit of payment of any tithes, as it hath been used and accustomed. " 17. Provided also, and it is decreed, that where less sum than 16 ^d. in the lOs. rent, or less sum than 2s. 9d. in the 20s. rent, hath been accustomed to be paid for tithes ; in such places the said citizens and inhabitants shall pay but only after such rate as hath been accustomed. ]o74 ruorcKTV OF the t'nri;(ii. Oilier l>y wliich they are governed. Decree. Cases under decree. Men (I holt. le v. Taylor. Green v. Piper. Skid more and Eire V. Bell. " 18. Item, it is also decreed, that if any variance, con- troversy or strife sliall arise in the said city for nonpay- ment of any titlies ; or if any variance or doubt shall arise upon the true knowledge or division of any rent or tithes Avithin the liberties of the said city, or of any extent or assessment thereof; or if any doubt arise upon any other thing contained within this decree ; then, upon com- plaint made by the })arty grieved to the mayor of the city of London lor the time l)eing, the said mayor, by the advice of counsel, shall call the parties before him, and make a final end of the same, with costs to be awarded by the discretion of the said mayor and his assistants accord- ing to the intent and purport of this present decree. " 19. And if the mayor shall not make an end thereof within two months after complaint to him made, or if any of the said parties find themselves aggrieved, the lord cliancellor of England for the time being, upon complaint to him made within three months then next following, shall make an end in the same, with such costs to be awarded as shall be thought convenient, according to the intent and purj)ort of the said decree. " 20. Provided always, that if any person take any tenement for a less rent than it was accustomed to be letten for, by reason of great ruin or decay, burning, or such like occasions or misfortunes, such person, his executors or assigns, shall pay tithes only after the rate of the rent reserved in his lease, and none otherwise, as long as the same lease shall endure." Of every \0s. Rent by the Year.~\ — It w-as resolved, in the case of Meadhouse v. Taylor, that a rent for half a year, and afterwards for another half year, is a yearly rent, or a rent by the year, within the meaning of this decree (c). Of all Houses.'] — In the case of Green v. Piper, in 43 Eliz. (rf), it was suggested, in order to hinder the granting of a consultation, that the house belonged to a priory which was discharged of tithes by bull. But the court replied, that by the common law houses ])aid no tithes; and the right in the present case subsisting immediately upon this statute, which lays them upon every house, no exemption shall be allowed, but to such houses as are spe- cially exempted by the statute itself. By reason of any Fine or Income paid beforehand, or bi/ any Fraud or Covin.~\ — In the case of Skidrnore and Eire v. Bell, in 5 James 1, Bell being parson of St. (r) Nov, 130. ((/) Cro. Eliz. 279. TITHES AND KEXT-CIIAROES. 1575 ]\Iichael, Queenhithe, in London (e), libelled before the chancellor of London for the tithes of a house called the Boar's Head, in Bread-street, in the said parish, the ancient farm rent whereof Avas 61. at the time of the said decree and after ; and that of late a new lease was made of the said house, rendering the rent of 5/. a year, and over that a great income or fine, which was covenanted and agreed to be paid yearly at the same day ; that the rent was paid as a sum in gross, and that so much rent might have been reserved for the said house, as the rent reserved and the sum in gross amounted unto ; which reservation and covenant Avere made to defraud the said parson of the tithes of the true rent of the said house, Avhich to him did appertain by the purport and true intention of the said decree. And, a prohibition being moved for in this case, four points were resolved by the coiu-t. L If so much rent 1)e reserved as was accustomed to be paid at the making of the said decree (whatsoever fine or income be paid), that the parson can aver no covin ; for the Avords of the decree be, " Where any lease is or shall be made of any dwelling-house by fi-aud or covin, in reserving less rent than hath been accustomed :" so as if the accustomed rent be reserved, no fr.aud can be alleged ; for the fraud by the decree is, Avhen lesser rent than Avas then accus- tomed to be paid is reserved, or if no rent at all be re- served, for then tithe shall be paid according to the i-ent that then Avas last before reserved to be paid. So as the decree consists upon four points ; first, Avhere the accus- tomed rent Avas reserved ; secondly, Avhere the rent Avas increased, there the tithes should be paid according to the Avhole rent; thirdly, Avhere lesser rent aa^s reserA'cd ; and fourthly, Avhere no rent Avas reserA'ed, but had been formerly reserved. And this act and decree Avere very beneficial for the clergy of London, in respect of that Avhich they had before. And the defendant in his libel confesses that the accustomed rent Avas reserved, and therefoi'e no cause of suit. 2. It Avas resolved, that as to such houses as Avere never letten to farm, but inhabited by the OAvner, this is casus omissus, and shall pay no tithes by force of the decree. 3. It AA-as resolved, that Avhere the decree says, " Where no rent is reserved by reason of any fine or income paid beforehand," albeit no fine or income be paid in that case ; yet if no rent be reserved, the parson shall have his tithes according to the decree ; for that is put but for an example or cause why no rent is reserved ; and (f) 2 Inst. GCO. 1576 PROPERTY OF THE CHURCH. Order by whith tlicy arc governed. C'ases under the decree. AntJ'ohii.i V. The East India Coitt- pany. Vivian V. Cochrane. whether any fine or income were paid or no, is not ma- terial as to the parson. 4. It was resolved, that the parson could not sue for the said tithes in tlie ecclesiastical court; for that the act and decree that raised and gave these kind of tithes, did limit and appoint how and before whom the same should be sued for, and did appoint new and special judges to hear and determine the same. And in the end it was awarded that the prohibition should stand. In Aiitrobus v. Tlie East India Company {f ), a bill was filed by the plaintiff, under the decree and stat. 37 Hen. 8, c. 12, for the payment of tithes at the rate of 25. 9d. in the pound upon the annual value of premises, consisting of extensive warehouses, lately erected by the East India Company, and used by them in the course of their trade. The warehouses Avere erected upon the site of some small tenements, some of Avhich appeared by the answer to have been formerly occupied at low rents : as to the others, the ancient rents were not known. The answer did not state any specific customary payment in lieu of tithes ; but alleged generally, that some less sums than 2^. dd. in the pound had been paid. The defendants insisted, that the payment, according to the statute, could be only upon such of the old rents as were ascertained ; and that nothing was to be paid in respect of those pre- mises, the ancient rents of which were not known : and they contended, that an issue ought to be directed, which was opposed by the plaintiff, on the ground, that no spe- cific customary payment being set up, no foundation was laid for an issue. The Master of the Kolls decreed for payment at the rate of 2s. 9d. in the pound upon the value, and directed a reference to the master accordingly. In the case of Vivian v. Cochrane {(/), before the Lord Chancellor assisted by two common law judges, the de- fendant was the lessee of premises in London, which were let for a term of sixty years at a reserved rent (including insui-ance against fire) of 102^. 10^., the lease however having been granted in consideration of the lessee having laid out 2,000^. in building thereon ; and the improved value of the property was in reality 250/. It was holden by the court, affirming the decision of the Vice-Chancellor, that the defendant must, for the pin-poses of the statute and decree, be considered as owner of the house during the term, and must pay the tithes on the fidl annual value of the property, 250/. It was fiirther holden, after a most careful review of the (/) 13Ves. 9. ( ' • deposited in like manner and subject to all the like inci- dents as provided by the said recited acts in reference to the sealed copies of an instrument of apportionment." Sect. 9. " The payment of any rent-charge aAvarded in As to recovery lieu of corn rents Avhich shall be in arrear may be enforced o^ rent-charges by the same ways and means as payment of rent-charge of corn rents!"^ in arrear may be enforced under the provisions of the said recited acts, or may be enforced, at the option of the person to whom the same rent-charge is payable, by the same Avays and means as are provided by the local act for the recovery of the corn rents in lieu of Avhich such rent-charge shall have been awarded." Sect. 10. " In any case of altered apportionment in Where con- which the consent of the whole of the land-owners interested ^^"^^ "*?* in such alteration shall not be signified thereto, the com- oTproposed missioners shall, in lieu of the service of notice required altered appor- (rt) The previous Commutation Acts. 1590 PROPERTY OF THE CHURCH. tionmcnt to be tle|)osited for inspection. In case of ob- jection, com- missioners to appoint a time for hearing the same. Cases on local tithe acts. by the said acts, cause a draft of the ]iroposed altered appor- tionment to be deposited for inspection, in the same man- ner as by the said first-recited act is required in reference to an instrument of apportionment, and shall cause notice to be given of such de])Osit in such manner as to them shall seem fit, and ?\ia\\ by such notice specify the time (being not less than twenty-one days) within which objec- tions in writing to such ])roposed altered apportionment maybe signified to the commissioners; and in case any notice of objection shall be given within the time limited as aforesaid, the commissioners shall appoint a time and place for hearing such ol)jection, and shall, by themselves or by an assistant commissioner, take such objection into their consideration ; and if there be no notice of objection, or when the said commissioners or as.sistant commissioner shall have heard and determined every such objection, the commissioners shall confirm such altered apportionment, with or without amendments, as they shall see fit." The following are some of the more important cases that have recently been decided on the construction of the local tithe acts : Willouglihy \. IVillouglihy (b); Re Win- ter ingliam Tithes {c); Reg. v. Justices of Lindsei/ [d)\ Bedford y. Sutton ColdJield{e)\ Vigar y. Dudman, de- cided by the Court of Common Pleas, and affirmed by the Exchequer Chamber (/*). Sect. 18.— The Tithe Commission. This commission ( g) was originally appointed for five years only; the duration of the commission being after- wards extended from time to time by several acts. Amalpama- By 14 & 15 Vict. c. 53, the tithe commission was amal- tion with other o-amated with the copyhold commission and the inclosure commission, and commissioners were to be appointed under the act for two years : these new commissioners were to be called tithe commissioners, co])yhold commissioners, or inclosure commissioners, according to the powers by virtue of which they acted and the duties Avhich they undertook, in each case. This commission has been continued from time to time. commissions. (h) 4 Q. B. G87; 7 Jur. 798. (r) Jur., X.S. 277; 31 L. J., C. P. 274. (d) 13Q. B. 484;13Jur.491. (f) 3 C. B., N. S. 449. (/•) L. R., G C. P. 470 C. P. 72; 40 L. J. (N. S.) C. 229. (fj) Vide supra, p. 1504. TITHES AND EEXT-CHARGES. lo91 By 31 & 32 Vict. c. 89, pro^'isions are made for defi-aying Fees to be taken for de- the expenses of the commission by means of fees. By sect. 1, security for costs is to be taken before any peuVes^ ^^" inquiry is held by an assistant commissioner ; and by sect. 6, the commissioners shall prepare a table of fees, to be approved by the lords of the treasury, in respect of the business transacted under the acts administered by them ; and these fees are to be paid in stamps. The table of fees, and any alterations afterwards made therein, are to be published in the Gazette and laid before parliament. As to the liability of a commissioner to an action at law Liability of for acts done by him in discharge of his official duties, the commissioner. case oi Acland v. Bidleri^h) should be referred to. Ui) 1 Ex. 837. 1592 PROrERTY OF THE CHURCH. Subject of chapter. What they are. Origin of. Pensions paid by monas- teries. CHAPTER IV. PEXSIONS, OFFERINGS, FEES. Sect. 1. — Pnisions. 2.— Offeriufjs. 3. — Fees. This chapter deals ^vith several minor sources, from -which, as well as from the more prominent sources of glebes and tithes, the incomes, enjoyed by ecclesiastical persons in virtue of their benefices or preferments, arise. Sect. 1. — Pensions. Pensions are certain sums of money paid to clergymen in lieu of tithes ; and some churches have settled on them annuities or pensions payable by other churches. Thus, in the Registrum Honoris de Richmond {a), we find a pension paid out of Coram, or Coverham Abbey, in the county of York (imto Avhich the church of Ledburgh Avas a])])ro])riated), to the prior of Connyside (unto whose priory the church of Orton was appropriated), for the said church of Ledburgh, 20^. These pensions are due by virtue of some decree made by an ecclesiastical judge upon a controversy for tithes, by ■which the tithes have been decreed to be enjoyed by one, and a pension instead thereof to be paid to another; or they have arisen by virtue of a deed made by the consent of the parson, patron and ordinary (i). At the dissolution of monasteries there were many pen- sions issuing out of their lands, and payable to several ecclesiastical persons ; Avhich lands were vested in the croAvn by the statutes of dissolution ; in Avhich statutes there is a saving to such persons of the right which they had to those pensions : but notwithstanding such general saving, those who had that right were disturbed in the collecting and receiving such pensions ; and therefore by another statute, 34 & 35 Hen. 8, c. 19, it was enacted, that pensions, portions, coiTodies, indemnities, synodies, jjroxies, and all other profits due out of the lands of religious houses dissolved, shall continue to be paid to ecclesiastical ])crsons by the occupiers of the said lands. And the plaintiff may recover the thing in demand, and (a) Append. 94. (/>) F. N.B.I 17. for in ecclesi- astical court. PEXSIOXS, OFFERINGS, FEES. 1593 the value thereof in damages in the ecclesiastical court, together with costs. And the like he shall recover at the common law when the cause is there determinable. By the statute of Circumspecte agatis, 13 Edsv. 1, st. 4, ^ray be sued " if a prelate of a church, or the patron, demand of a parson a pension due to him, all such demands are to be made in a spu-itual court ;" in Avhich case " the spiritual judge shall have power to take knowledge, notwithstanding the king's prohibition." In pursuance of which, the general doctrine is, that pensions, as such, are of a spiritual nature, and to be sued for in the spiritual court ; and accordingly, Avhen they have come in question, prohibitions have been frequently denied or consultations granted, even though they have been claimed upon the foot of prescription (c). But Lord Coke says, if a pension be claimed by pre- scription, there, seeing a Avrit of annuity lies, and that prescription must be tried by the common law, because common and canon law therein do differ, they cannot sue for such a pension in the ecclesiastical court (fZ). But this has been denied to be law : and in the case of Jones V. Stone, in 12 Will. 3(fc'), Holt, Chief Justice, said he could never get a prohibition to stay a suit in the spiritual court against a parson for a pension by prescrip- tion. In the case of Goodie v. Bishop of London, in 4 Geo. 2(f), the bishop libelled in the spiritual court, sug- gesthig that Dr. Goodie, as archdeacon of Essex, is to pay 10/. due to the bishop as a prestation for the exer- cise of his exterior jurisdiction. The doctor moved for a prohi])ition, alleging that he had pleaded there Avas no prescription ; and then that being denied, a prohibition ought to go for defect of trial. On the contrary, it Avas argued for the bishop, that the libel being general it must not be taken that he goes upon a prescription ; but it is to be considered in the same light as the common case of a pension Avhich is suable for in the spiritual court ; and the nature of the demand sIioavs it must ha\'e its original from a composition, it being a recompense for the arch- deacon's being allowed to exercise a jurisdiction Avhich originally did belong to the ordinary. And by the court : " The bishop may certainly entitle himself ah antiqiio (c) Gibs. 706; Gondwinv.Dean (d) 2 Inst. 491. and Chapter of Wclh, Noy, IG; (e) 2 Salk. 550. See Jo//».w« Smith V. Wallh, 1 Salk. 58; Cro. Eliz. G75; CoUiers case, 3 Salk., y. liijmon, 12 Mod. 410; \Vat.s. c. 5(). 58. ( /•) 1 Str. 870. r. vol. n. 5 k 1594 rUOrEUTY OF THE CIIUKCII. Bill for, in Court of Exchequer. They which pay pensions to others out of their spi- ritual living may retain the tenth part thereof. No pension shall be re- served upon the resignation of a benefice, above the value of the third part. without laying a prescription ; anil as it is only laid in general, there is no gronnd for ns to inter))ose, till it ap- pears by the proceedings that a prescriptive right -will come in qnestion ; if they join issne on the plea, it will then be proper to apply ; but at present there ought to be no prohibition." In Bailexj v. Comes {g), in 1724, a bill was preferred in the Court of Exchequer for a pension only, payable to the preacher of Bridgnorth ; and upon heiiring of the cause (Avliich was afterw ards ended by compromise) it seemed to be admitted that a bill might be brought for a pension only. By 26 ]Ien. 8, c. 3, s. 18, "And forasmuch as every incumbent of the dignities, benefices, and promotions spi- ritual aforementioned shall be charged by this act to the payment of the tenth ])art of the value of their dignities, benefices, and promotions spiritual, without any deduction or allowance of such pension or pensions, Avherewith some of them have been charged to pay to their predecessors during their lives, or to other persons to the use of such their predecessors during their lives ; it is therefore ordained and enacted by authority aforesaid, that it shall be lawful to every incumbent charged with any such pension payable to any his predecessors, or to any to his use, to retain and keep in his hand the tenth part of every such pension ; and that every such incumbent and his sureties shall from henceforth be acquitted and discharged of the said tenth part of every such pension, by virtue and authority of this present act ; any decree, ordinance or assignment of any ordinary, or any collateral Avriting or security made for such pension to any spiritual person or persons, or to any to their uses for term of their lives, in anywise notwith- standing ; and that as well every incumbent, as such per- sons as stand bound for him for payment of any such pensions, shall plead this act in every of the king's courts, for the clear extinguishment and discharge of the tenth part of every such pension." Sect. 19. " No pension shall hereafter be assigned by tlic ordinary, or by any other manner of agi'cement, by collateral surety, or otherwise, upon any resignation of any dignity, benefice, or promotion spiritual, above the value of the third part of the dignity, benefice or ])romotion spiritual resigned : and if any pension amounting above the value of the third part of the dignity, benefice, or pro- motion sj)iritual heretofore resigned, be already limited and made sure to any spiritual person or persons, by decree of the ordinary, or otherwise by any collateral sui-ety, or (r/) Biinb. \m. PENSIONS, OFFERINGS, FEES. 1595 hereafter sliall hapj)en to be assigned and made sure to any person or persons spii'itual, or to any other to their use, by decree of the ordinary, or by any other collateral surety, upon any resignation thereof; yet nevertheless the incumbent charged with such pension, nor his sureties collateral, shall not be compelled to pay any more pension than the value of the third part of his dignity, benefice, or promotion spiritual so resigned shall amount unto ; but shall by authority of this act be clearly acquitted and dis- charged of so much of the said pension as shall amount above the value of the third part of the dignity or benefice resigned ; any decree or assignment of the ordinary, or any collateral writings or sureties heretofore made, or hereafter to be had or made for the same, to the contrary thereof notwithstanding." A bishop may sue for a pension before a chancellor, and How suits an archdeacon before his official (A). tuted. If a suit be brought for a pension or other thing due of a parsonage, it seems that the occupier (though a tenant) ought to be sued ; and if part of the rectory be in the hand of the o'^Aaier, and part in the occupation of a tenant, the suit is to be against them both(z). And though there is neither house, nor glebe, nor tithes, nor other profits, but only of Easter offerings, burials, and christenings, yet the incumbent is liable to pay the pen- sion (J). ^ If an incumbent leave arrearages of a pension, the suc- cessor shall be answerable, because the church itself is charged, into Avhatsoever hand it comes (/i). In Still §• Dunn v. Palfrey (/), where the parishioners liad the patronage of the parish and were bound to provide and pay a minister, and it was the custom to agree upon the election of each minister for the payment of a fixed stipend, Sir 11. J. Fust appears to have thought that, though no church-rate could be made for this stipend, a suit for the payment of it, in the nature of a suit for a pension or for ecclesiastical dues, might be brought in the Ecclesiastical Court. By 13 Eliz. c. 20, s. 1, the grant of any new pension is Pensions not made void {jn). Pensions may, however, be granted to in- "°antfb"e'^^ ^ cumbents resigning according to the provisions of The Incumbents Kesignation Act, 187 1 , 34 & 35 Vict. c. 44 {ii). (h) Wood, b. 2, c. 2. (I) 2 Curt. 902 (1841). (0 Wats. c. 53. (m) Vide infra, Part V., Cliap. (./) Hardr. 230. Yll. (k) Trimty College, Camhridge (??) Vide supra, pp. 521, 525, V. Tumtall, Cro. Eliz. 810J 520. 5 k2 1.59G PKOrEIlTY OF THE CHURCH. What tliov iij-c. Oblations ac- cording to canon la«-. Royal offerings. Kinds of offerinf^s. Mortnaries. Offerings at four principal feasts. Sect. 2.— Offer incjs («). Offerings, ohhitiona, and ol)vcniions, are one and the same tiling : tliougli obveiiiion is tlic largest word. And under these are eoniprehcnded, not only those small eus- tomary sums commonly paid by every person when he receives the sacrament of the Lord's Supper at Easter, sometimes called Easter dues, •which in many ])laces are by custom twopence from every communicant, and in London fourpence a house, but also the customary ])ayment for marriages, christenings, churchings and burials (o). The term oblation, in the canon law, means whatever is in any manner offered to the church by the pious and faithful, whether it be moveable or immoveable property {p'). These offerings were given on various occasions, such as at burials and marriages, by penitents, at festivals, or by will. But they Avere not to be received from persons excommunicated, or who had disinherited their sons, or been guilty of injustice, or had oppressed the poor. Such offerings constituted at first the chief revenues of the chiu"ch. AYhen established by custom, they may now be recovered as small tithes before two justices of the peace, by 7 & 8 Will. 3, c. 6, and subsequent acts. Offerings are made at the holy altar by the king and queen twelve times in the year on festivals called offeriwj days, and distril:)uted by the dean of the chapel to the poor. James the First commonly offered a piece of gold, having the foUo^A-ing mottos : Quid retribuam domino pro omnibus quce tri- huit milii? Cor contritum et humiliatum non despiciet Deusiq). The money in lieu of these accustomed offer- ings is now fixed at fifty guineas a year, and paid by the pi-ivy piu'se annually to the dean or his order; for the distribution of which offertory money, the dean directs proper lists of poor people to be made out (r). Offerings, as noAv known to the law and recoverable by legal process, may be diA-ided into two kinds, (1), mor- tuaries or offerings at the burial of the dead, and (2), offerings at the four great feasts. The law as to mortuaries has been ah-eady mentioned in the chapter on burial (s). Offerings at the four principal feasts are expressly pro- vided for by the folloAving section of 2 & 3 Edw. 6, c. 13. (h) See Comvn's Digest, tit. "Prohibition," G. 11; and Ay- liffe's Parergon, 11. (o) Wats. c. 52. Ip) X. 5, 40, 29; Spelm. in Concil. vol. i. p. 39. (fj) Lex Constit. 184. (r) Ex. MSS. (s) Vide supra, Part III., Chap, X., Sect. 5, pp. 874, 879; et vide Ken. Par. Ant. Grloss. PEXSIOXS, OFFERINGS, FEES. 1597 Sect. 10. " All and every person and jjersons Avliicli by the laws or customs of this realm ought to make or pay their offering, shall yearly from henceforth well and truly content and pay his or their offering to the parson, vicar, proj^rietor, or their deputies or farmers of the parish or parishes where it shall fortune or happen him or them to dwell or abide, and that at such four offering days as at any time heretofore within the space of four years last past hath been used and accustomed for the payment of the same ; and in default thereof, to pay for their said offer- ings at Easter then next following." The four offering days are Christmas, Easter, Whit- svmtide, and the feast of the dedication of the parish church (^). Concerning the offerings at Easter, it is directed by the Easter rubric at the end of the communion office, that " yearly at offerings Easter, every parishioner shall reckon Avith the parson, vicar, or curate, or his or their de]5uty or deputies, and pay to them or him all ecclesiastical duties, accustomably due, then and at that time to be paid." Four offering davs. Rubric. And it has been decreed, that Easter offerings are due Of common right. of common right, and not by custom only (u) ; C. B. Gil- bert said, that offerings Avere a compensation for personal tithes (.r). And in the case of Carthcio v. Edioards, it was holden that they were due from the householder for every member of his family of sixteen years of age and upwards (//). Easter offerings are due by the common laAv at the rate To what of twopence per head(r) ; but by custom it may be more. ''^'"O"^*^- In London, it is mentioned in several books of authority, that a groat a house is due (a) ; but I have not discovered on what this opinion of a groat a house for offerings in London is founded. Hobart refers to the statute, but does not mention any statute in particidar. Noav, by 37 Hen. 8, c. 12, s. 12, every householder in London paying 105. rent or above, shall be discharged of offerings; but his Avife and children, or others, taking the rites of the church, at Easter should pay tAvopence each for their offerings yearly. And London is excepted out of 27 Hen. 8, c. 20, by sect. 2, out of 2 & 3 Edw. 6, c. 13, by sect. 12, and out of 7 & 8 AVill. 3, c. 6, by sect. 5. (/) (Hbs. 739. («) Lawrence v. Jonrs, I'.unl). 173; 2 Gw. GG'2; 1 E. & Y. 801, 818. (.r) Egcrtnn v. Still, Biinb. 198; 2 AVood, 250; 2 Gav. 661. (V) Ambl. 72; Gav. 82G; 2 E. & Y. 818. (r) Bunb. 173, pi. 42.5. (o) Hob. 11; Godolph. Ilepcrt. Canon, edit. 1687, p. 427; Wats, c. 52, p. 585. 1.598 PROPERTY OF THE CHURCH. Jleglna v. Hall. Tithe Commu- tation Act not to extend to Easter offer- ings, &c. Power after award to make parochial agreements for them. Offerings at Whitsuntide. In the recent case of Beg. v. IlfiU{c), tlic ten-iers of the glebe lands and other ricrhts belonging to the parish church of Ji., dating from 1727 to 1825, contained the folloAving clause : " Easter offerings. Every communi- cant, 2d. ; every cow, 2d. ; every plough, 2d. ; every foal. Is. ; every hive of bees. Id. ; every house, 3 Ac?." It was holden — 1. That the terriers were evidence of such a custom as excluded the common law right (if such existed) to a ])ayment of 2d. for every member of a family of the age of sixteen as an Easter offering, because it included items to Avhich the common law right did not extend. 2. That the word communicant did not override the whole clavise, but that each item was an independent charge, and payable by every parishioner, Avhether he came Avithin the denomination of a communicant or not. 3. That in the absence of evidence to the conti*ary " com- municant" meant only those who were actually attendants at the communion ; and that therefore this charge could only be demanded from actual communicants. 4. That the custom attached to any house as soon as built and occupied, and was not confined to ancient houses which Avere in existence Avhen the terriers Avere made. By 6 & 7 Will. 4, c. 71, the first Tithe Commutation Act, sect. 90 : " Nothing in this act contained, unless by special proA'ision to be inserted in some parochial agree- ment and specially aj^proved by the commissioners, in Avhich case the same shall be valid, shall extend to any Easter offerings, mortuaries, or siu'plice fees." But by 2 & 3 Vict. c. 62, s. 9, it shall be laAvful at any time before the confirmation of any apj^ortionment after a compulsory award in any parish, for the land-OAvners and tithe-owners, having such interest in the lands and tithes of such parish as is required for the making a paro- chial agreement, to enter into a parochial agreement for the commutation of Easter offerings, mortuaries or surplice fees .... and all the provisions, conditions, limitations and poAvers of the said recited acts(c/), or any of them, relating to parochial agreements, so far as the same shall in the judgment of the commissioners be ap])licable to the subject of the proposed commutation, shall be observed and applied in every such case as if no prcA'ious aAvard had been made. Pentecostals, otherAA'ise called Whitsun-farthings, took their name from the usual time of payment, at the feast (r) L. II., 1 Q. B. 632 (1866). (f/) 6 & 7 Will. 4, c. 71 ; 7 Will. 4 & 1 Vict. Vict. c. 64. c. 69; 1& 2 TENSIONS, OFFERINGS, FEES. 1599 of Pentecost. These are spoken of in a remarkable grant of King Henry VIII. to the dean and chapter of Worces- ter; in which he makes over to them all those oblations and obventions, or spiritual profits, commonly called Wliitsun-farthings, yearly collected or received of divers towns within the archdeaconry of Worcester, and offered at the time of Pentecost. From hence it appears that pentecostals were oblations ; and as the inhabitants of chapelries were bound, on some certain festival or festivals, to repair to the mother church, and make their oblation there, in token of subjection and dependence, so, as it seems, were the inhabitants of the diocese obliged to repair to the cathedral (as the mother chm-ch of the whole dio- cese) at the feast of Pentecost. Something like this was the coming of many priests and their people in procession to the church of St. Austin in Canterbury, in AVhitsun- week, Avith oblations and other devotions ; and in the register of Robert Read, who was made Bishop of Chi- chester in the year 1396, there is a letter to compel the inhabitants of the parishes within the archdeaconry of Chichester, to visit their mother church in Whitsun- week (e). These oblations grew by degrees into fixed and certain papnents from every parish and every house in it, as appears not only fi'om the aforementioned grant of King Henry VIII., but also from a remarkable passage in the articles of the clergy in convocation in the year 1399 ; where the sixth article is, a humble request to the arch- bishops and bishops that it may be declared Avhether Peter-pence, the holy loaf and pentecostals were to be paid by the occupiers of the lands, though the tenements w^ere fallen or not inhabited, according to the ancient custom, when eveiy parish paid a certain quota (/"). These are still paid in some few dioceses, being now Modern pay- only a charge upon particular churches, where by custom ments of. they have been paid (r/). And if they be denied where they are due, they are recoverable in the spiritual court (A). Nothing in particular is to be found in the books as to Ofiferings at the offerings at the other two principal feasts. fcastV^° By the statute of Cir cum specie agatis, 13 Edw. 1, ' '. . ^^^^ ;,^ St. 4, " If a parson demands of his parishioners oblations spiritual court. due and accustomed," " all such demands are to be made (e) Gibs. 97G; 1 Warn. 339. (q) Ken. Tar. Ant. 59G; Deg. (/) Gibs. 976. p. 2, c. 15. {h) Gibs. 977. 1600 PROrEUTY OF THE CHURCH. 7 & s Will. :;., C. (i. Small tithes aiicl offerings, iS:c. to be duly paid. If not paid Avithin twenty days, com- plaint to two justices. Procedure be- fore justices. Appeal to quarter sessions. ill the spiritual court,"' in which case " the s})iritual judge shall have ])ower to take knowledge notwithstanding the king's proliibition." By 7 & 8 AVill. ;>, c. 6, s. 1, " For the more easy and effectual recovery of small tithes, and the value of them, Avhcrc the same shall be nnduly subtracted and detained, Avlicre the same do not amoimt to above the yearly value of forty shillings from any one person ;" it is enacted, that " all persons shall well and truly set out and pay all and singular the tithes commonly called small tithes, and compositions and agreements for the same, Avith all offer- ings, oblations, and obventions, to the several rectors, vicars, and other persons to whom they shall be due in their several parishes, according to the rights, customs, and prescriptions commonly used within the said parishes respectively : and if any person shall subtract or with- draw, or any Avays fail in the true payment of such small tithes, offerings, oblations, obventions, or compositions, by the space of tAventy days at most after demand thereof, it shall be laAvful for the person to Avhom the same shall be due to make his complaint in writing to tAvo or more jus- tices of the peace Avithin that county, place, or division Avhere the same shall grow due, neither of Avliich justices is to be ])atron of the church or chapel Avhence the said tithes shall arise, nor any Avays interested in such tithes, offerings, oblations, obventions, or compositions afore- said." By sect. 2, the justices are to summon in AA^riting the party complained of, and, upon his appearance or default, if service of the simimons is proved, may determine the cause and giA'O compensation for the small tithes or offer- ings refused and costs. By sect. 3, in default of j^ayment for ten days the con- stables and churcliAvardens of the parish, or any one of them, may by A'irtue of a Avarrant from the justices seize the goods of the party refusing by Avay of distress, and may in due time sell the same. Sect. 4 gives the justices poAA'er to administer oaths. Sect. 5 excludes fi-om the operation of the act the city of Londf)n and other places Avhere special provision is made by local statutes. Sect. 6 limits the time of complaint to the justices to tAVo years from the time aaIicu the tithes or offerings be- came duo. Sect. 7. " Any person finding himself aggrieved by any judgment to be given by tAvo such justices, may appeal to tlie next genei'al quarter sessions to be held for that PENSIONS, OFFERINGS, FEES. 1601 county or otlier division ; and the justices there shall pro- ceed finally to hear and determine the matter, and to reverse the said judgment if they shall see cause ; and if they shall find cause to confirm the said judgment, they shall decree the same by order of sessions, and shall also proceed to give such costs against the appellant, to be levied by distress and sale of the goods and chattels of the said appellant, as to them shall seem just and reasonable. And no proceedings or judgment had by virtue of this act Proceedings shall be removed or superseded by any writ of certiorari, °°* removed .1 •, , ^ 1 • • , ■> i , -i-ir , • , \)Y certiorari, or other writs out oi his majesty s courts at Westminster, unless title in or any other court, unless the title of such tithes, oblations, question. or obventions shall be in question." Sect. 8. "Where any person complained of for subtract- Where person ina* or Avithholdino- any small tithes or other duties afore- '"^^^^^ °^^ said, shall, before the justices to whom such complaint is ' made, insist upon any prescription, composition, or modus decimandi, agreement, or title, whereby he ought to be freed from payment of the said tithes or other dues in question, and deliver the same in writing to the said justices sub- scribed by him ; and shall then give the party complain- and gives ing reasonable and sufficient security, to the satisfaction security for of the said justices, to pay all such costs and damages, as ' upon a trial at law to be had for that purpose in any of his majesty's courts having cognizance of that matter, shall be given against him, in case the said prescription, composition, or modus decimandi shall not upon the said trial be allowed ; in that case, the said justices shall for- justices to bear to give any judgment in the matter, and then and in foi"^^''>^i' }^^^- sucli case the party complaining shall be at liberty to piain'ant to prosecute such person for his said subtraction in any other sue in other court Avhere he might have sued before the making of this ^^urt. act." A party summoned under this act, avIio resists the pay- ment of tithe on the ground of a modus under this last section, must set up a modus before the justices in the first instance ; and if he neglect to do so, and an order is made by the justices, he cannot, on ap})eal to the sessions, give evidence of the modus. It should seem that this eighth section takes away from the justices the power of trying a question oi modus in any case(z). By sect. 9, Avhere the judgment is given out of sessions, rroccdure it is to be enrolled at the quarter sessions; and a iuds:- Jiftprjudg- (;) Rex V. Jcfnri/.^, 1 IJ. & C. 485; 2 E. & Y. 1.53; licx v. 004; 2 1). & li. 8(X); .^. E. & Y. Furneas, 11 Mod. 320; 1 Str. 1098; Eex v. Wakefield, 1 Burr. 204; 1 E. & Y. 750. 1602 rROPERTY OF THE CHURCH. rrocediirc after judg- ment. Person suinj^ in other courts for sums within this act, to have no benefit from it. 7 & 8 Will. 3, c. U. Qnakers' tithes. incnt so curolkd, and sati.slicd by i)aynient, is to be a bar to any other suit for the same tithes or offerings. By sect. 10, Avhon tlie jiarty coni]>lained of removes out of the jurisdiction of tlie justices before tlie sum is levied on his goods, the justices are to certify the same to the justices who have jurisdiction in tlie place to which he has removed; and these latter justices are to is.sue a warrant for seizure of his goods. Sect. 12 empowers the justices to give ten shillings costs for a frivolous complaint. By sect. 1.3, any jwrson sued for anything done under the powers of this act, and succeeding in his defence, shall have double costs. Sect. 14. " Any clerk or other person Avho shall begin any suit for recovery of small tithes, oblations, or obven- tions, not exceeding the value of forty shillings, in his majesty's court of exchequer, or iu any of the ecclesiastical courts, shall have no benefit by this act for the same matter for Avhich he hath so sued." By 7 Geo. 4, c. 15, in places wdiere the justices are pa- trons of the church, the parties are to be sxunmoned before two justices of any adjoining county, riding, or division. By 53 Geo. 3, c. 127, s. 4, one justice is competent to receive the original complaint, and summon the parties to appear before two or more justices. As to Quakers' tithes, it is thus provided by 7 & 8 Will. 3, c. 34, s. 3, " AVhereas by reason of a ])retended scruple of conscience, Quakers do refuse to ])ay tithes and church rates," " where any Quaker shall refuse to pay or compound for his great or small tithes, or to pay any church rates, it shall be lawful for the two next justices of the peace of the same county (other than such justice as is patron of the church or cliapcl whence the said tithes shall arise, or anyways interested in the said tithes), upon the complaint of any parson, vicar, farmer, or proi)rietor of tithes, chiu'chwarden or church wai'dens, who ought to have received or collected the same, by Avarrant under their hands and seals, to convene before them such (Quaker or Quakers neglecting or refusing to ])ay or com])ound for the same, and to examine upon oath (or affirmation, in case of the examination of a (Quaker) the truth and justice of the said complaint, and to ascertain and state what is due and payable ; and by order under their hands and seals to direct and ajipoint the payment thereof, so as the sum ordered do not exceed ten pounds : and upon refusal to pay according to such order, it shall be lawful for any one of the said justices, l)y Avarrant under his hand and PENSIONS, OFFERINGS, FEES. 1603 seal, to levy the same by distress and sale of the goods of such offender, his executors or administrators, rendering only the overplus to him or them, the necessary charges of distraining being thereout first deducted and allowed by the said justice. And any person finding himself aggrieved by any judgment given by such two justices, may appeal to the next general quarter sessions to be held for the county, riding, city, liberty, or town corporate ; and the justices there shall proceed finally to hear and determine the matter, and to reverse the said judgment if they see cause ; and if they shall find cause to continue the said judgment, they shall then decree the same by order of sessions, and shall also proceed to give such costs against the appellant, to be levied by distress and sale of the goods and chattels of the said a])pellant, as to them shall seem just and reasonal)le. And no proceedings or judgment had by virtue of this act shall be removed or superseded by any Avrit of certiorari or other writ out of his majesty's courts at Westminster, or any other court whatsoever, unless the title of such tithes shall be in question." Sect. 5. " In case any such appeal be made as afore- said, no w^aiTant of distress shall be granted until after such aj)peal be determined." And by 1 Geo. 1, stat. 2, c. G, s. 2, " The like remedy This act ex- shall be had ao-ainst any Quaker or Quakers for the reco- tended by i c '?•,! -^ I 4. ^1 Geo. 1, Stat. 2, vering ot any tithes or rates, or any customary or other c 6. rights, dues, or payments belonging to any church or chapel, which of right by law and custom ought to be paid, for the stipend or maintenance of any minister or curate officiating in any church or chapel ; and any two or more justices of the peace of the same county or place (other than such justice as is patron of any church or chapel, or anywise interested in the said tithes), upon complaint of any parson, vicar, curate, farmer, or pro- prietor of such tithes, or any churchwarden or chapel- warden, or other person who ought to have, receive, or collect any such tithes, rates, dues, or payments as afore- said, are authorized and required to summon in writing imder their hand and seals, by reasonable warning, such Quaker or Quakers against whom such complaint shall be made ; and after his or their apjiearancc, or upon de- fault of appearance, the said warning or summons being proved before them upon oath, to proceed to hear and de- termine the said complaint, and to make such order therein as in the aforesaid act is limited ; and also to order such costs and charges as they shall think reasonable, not ex- ceeding ten shillings, as upon the merits of the cause shall appear just ; which order shall and may be so executed, 1604 ntOPEllTY OF THE ClIURCII. Further ex- tended by .">:? Geo. 3, c. 127. Justices of peace may determine complaints rc- s|)ccting tithes not exceeding lo;. Limitation of actions re- specting tithes. 5 & 6 Will. 4, c. 74. Proceedings for the reco- very of tithes under lOl. (except in the case of Quakers) shall l>e had only under the powers of the two first-re- cited acts. and on such apj)cal may be rcver.scd or affirmed by the general quarter sessions, with such costs and remedy for the same ; and shall not be removed into any other court, iuiles.>; the titles of sucli titlies, dues, or ])ayinents shall be in (question, in like manner as ])y the aforesaid act is limited and ])rovided." By 53 (xeo. 3, c. 127, s. 6, these last acts as to Quakers are extended so as to comprise any sum not exceeding 50/. ; and one justice is competent to receive the complaint and to summon the jiarty before two justices. Further, by .sect. 4 of this act, reciting 7 & 8 AVill. 3, c. 6, it is enacted, " That such justices of the peace [as ai-e in the said recited act mentioned] shall, from and after the passing of this act, be authorized and required to hear and determine all complaints touching tithes, oblations, and compositions subtracted or withheld, where the same shall not exceed ten poiuids in amount from any one ]ier- son, in all such cases, and by all such means, and subject to all such provisions and remedies, by a]iiieal or other- wise, as are contained in the said act of King William, touching small tithes, oblations, and compositions not exceeding forty shillings : provided always, nevertheless, that from and after the passing of this act, one justice of the peace shall be competent to receive the original com- plaint, and to summon the parties to a])]iear before two or more justices of the peace, as in the said act is .set forth." Sect. 5. " No action shall be brought for the recovery of any penalty for the not setting out tithes, nor any suit insti- tuted in any court of equity, or in any ecclesiastical court, to recover the vahie of any tithes, imless such action shall be brought or such suit commenced within six years from the time when such tithes became due." By 5 & 6 Will. 4, c. 74, reciting 7 & 8 Will. 3, c. 6, 53 Geo. 3, c. 127, and the other acts above mentioned, it is enacted as follows : " No suit or other proceeding shall be had or instituted in any of his majesty's courts in England now having cognizance of such matter for or in respect of any tithes, oblations, or compositions withheld, of or under the vearly value of ten pounds (save and except in the cases provided for in the two fir.st-recited acts), but that all complaints touching the same .shall, except in the case of Quakers, be heard and determined only under the powers and provisions contained in the said two first-recited acts of ])arliament in such and the same manner as if the same were herein .«et forth and re-enacted ; and that no suit or other proceeding shall be had or instituted in any of his majesty's courts either in England or Ireland now ha^dng cognizance of such matter, for or in respect of any great or TENSIOXS, OFFERINGS, FEES. 1605 small tithes, moduses, compositions, rates, or other eccle- siastical dues or demands whatsoever, of or imder the value of fifty pounds, withheld by any Quaker either in England or Ireland ; but that all complaints touching the same, if in England, shall be heard and determined only under the powers and provisions contained in the said recited acts 7 & 8 "Will. 3, c. 6, and 53 Geo. 3, c. 127 ; provided always, that nothing hereinbefore contained shall extend to any case in which the actual title to any tithe, oblation, composition, modus, due, or demand, or the rate of such composition or modus, or the actual liability or exemption of the property to or from any such tithe, obla- Proviso, tion, composition, modus, due, or demand, shall be bond fide in question, nor to any case in which any suit or other proceeding shall have been actually instituted before the passing of this act." It seems that Avhere the respondent, on a summons before the justices, disputes his liability, and the com- })lainant accordingly takes proceedings in some court, the complainant may get six years' arrears of tithes and offerings ; though if the respondent had submitted to the justices, he could only have been compelled to pay two years' arrears (A). This section takes away the right, not only of bringing suits for tithes under 10?., but also of bringing actions under 2 & 3 Edw. 6, c. 13, s. 2, for not truly setting ovit tithes under 10/. (/). Sect. 2. " In case any suit or other proceeding has been Manner of re- prosecuted or commenced, or shall hereafler be prosecuted covering tithes or commenced, in any of his majesty's courts in England Quakers. or Ireland, for recovering any great or small tithes, modus or composition for tithes, rate or other ecclesiastical de- mand, subtracted, unpaid, or Avithheld by or due from any Quaker, no execution or decree or order shall issue or be made against the person or persons of the defendant or defendants, but the plaintiff or plaintiffs shall and may have his execution or decree against the goods or other property of the defendant or defendants ; and in case any person now is detained in custody in England or Ireland under any execution or decree in such suit or proceed- ing, the sheriff or other officer having such person in his custody shall forthwith discharge him therefrom ; and the plaintiff or ])]aintiffs in such suit or proceeding shall and may, notwithstanding such discharge, issue any other (A,-) Rohimon v. Furday, IG (Z) Peyton v. WaUon, 2 G. & Mee. & Wels. 11. D. 750; .'} Q. B. G.58. 1606 riiorEiiTY or the ciilucii. execution or take any other ]n-oceedinfT for recovering his demand and his costs ont of the projierty, real or jiersonal, of the ])erson so discharged." 4 & 5 Viet. Lastly, by 4 8c 5 Yict. c. 36, it is enacted as follows : — '"• '^^' " All the enactments and provisions of 5 & 6 AVill. 4, c. 74, amfprovrsions res])ecting suits or other proceedings in any of her ma- of recited act jesty's courts in England, in respect of tithes, oblations respecting pro- r^^^d comjiositions of or under the yearly value of ten th^ recovery of pounds, and of any great or small tithes, moduses, compo- ccrtain tithes sitions, rates or other ecclesiastical dues or demands what- and other soever, of or under the value of fifty pounds, A^-ithheld by du*es extended ^^7 Quaker, shall extend and be applied to all ecclesias- to all ecclesi- tical courts in England." astical courts in England. ♦ Sect. 3. — Fees. Divisions of The sources of income to the clei'gy mentioned in this subject. section may be divided into two heads — (1.) What are commonly called " surplice fees." (2.) Fees for other acts performed in virtue of their office by beneficed clergy. What arc " Surplice fees," also sometimes called offerings or obla- surplice fees. tions(Z), are those Avhich are paid to the minister for per- forming certain of the offices of the church for the behoof of individual members. As to baptism. It has already been said that no fee is due for the admi- nistration of baptism {m). Since the chapter on Baptism went to press, a bill, brought into parliament by the Bishop of AVinchester, has become law. So & 30 Vict. This act, reciting that doubts have been entertained ^'- '^^- Avhether in certain churches and chapels, under the autho- rity of certain local statutes or of custom, fees may not be demanded for the administration of baptism or the regis- tration thereof, and that it is expedient that such doubts should not exist, enacts, that " it shall not be lawful for the minister, clerk in orders, parish clerk, vestry clerk, Avarden, or any other person, to demand any fee or reward for the celeljration of the sacrament of baptism or for the registry thereof" This act, however, " shall not a]iply to the present holder of any office who may at the present time be en- titled by any act of parliament to demand such fees." J^larriagc. The law as to fees on marriages has been already men- tioned (;^). (I) Degge, pt. 2, c. 23. (m) Vide supra, pp. 6G3, 664. (/*) Vide supra, pp. 814 — 810. PENSIONS, OFFEKINGS, FEES. 1607 The law as to fees or " accustomed offerings" on cliurcli- Churching, ings has been akeacly mentioned ( 6 ). The law as to fees on burials has been already men- Bnrial. tioned {p). Where the clergyman is entitled to a fee for performing Clerk and any of these offices, the parish clerk or sexton is often also sexton. entitled to a fee for performing his part in the office or ceremony (^). The fees for these offices depend on custom, and have Fees depend varied very much in different places. It has sometimes, ^^^ custom. too, been difficvdt to prove that any fee of constant amount has been customarily paid. Now, by 59 Geo. 3, c. 134, s. 11, " It shall be lawful 59 Geo. 3, for the commissioners" (that is, now the Ecclesiastical ^ ^^^' „ n\ .. \^.ii 11 1 Fower or Commissioners), '* and they are hereby empowered to ecclesiastical make and fix any table of fees for any parish, with the commissioners consent of the vestry or select vestry, or persons exercising ^^ * the powers of vestry in such parish, and also to make and fix any such table of fees for any extra-jjarochial place, or in or for any district, chapelry, or parochial chapelry in which any church or chapel shall be built or appropriated, under the provisions of the above-recited act or this act, with the consent, nevertheless, in all such cases of the bishop of the diocese ; and all fees so fixed may be de- manded, received, sued for, prosecuted, and recovered, by the spiritual person, or clerk, or sexton, to whom the same shall be assigned, in like manner, and by such and the same means, as any ancient legal fees of a like nature may be sued for, prosecuted and recovered." The division of these fees between the incumbents of Division of old and new parishes in cases where a parish has been *^^^- divided will, so far as it has not been already treated of, be mentioned in the chapter on The Di^dsion of Parishes. Where these fees are taken by the minister or chaplain Chaplain* of any chapel, it seems that he is accountable for the same accountable to to the parson of the mother churcli (r). paibon. The same provisions as to the commutation or iion- Commutation commutation of surplice fees are made by the Tithe Com- of. mutation Acts, 6 & 7 Will. 4, c. 71, s. 90, and 2 & 3 Vict. c. 62, s. 9, as are made with respect to Easter offerings and mortuaries (s). (o) Vide supra, pp. 833, 834. (;•) God. 427; J/oy.?^// v. nUl- (ji) Vide sitjva, pp. 8(J'2 — coat,2Uagg:.4:S;Lid(h'llv.Eains- 873; et vide Dean and Chapter of ford, L. K., Weekly Notes (1868), Exeter's case, 1 Salk. 334. 30. Vide supra, pp. 31G-318. {q) Vide infra, Part VI. on (.s) Vide supra, p. 151)8. these officers. 1608 ruorERTY of tih: ciii'ucn. Altarage. These surplice ices and the other iiunor offerings are often in old books spoken of under the name of altarage. Altarage, it is said, comprehends not only the offerings made n\nm the altar, but also all the profit which accrues to the ])riest by reason of the altar, ohvcntio aUnris{t). Out of these, the religious assigned a portion to the vicar ; and sometimes the whole altarage was allotted to him by the endowment ( u ). Legal decisions Since the lleformation, divers disputes have arisen, what *^^ ^°' dues were comprehended under the title of altaragium ; which were thus determined in a trial in the Exchequer, in 21 Eliz., aIz. : " Upon hearing of the matter, between RaJpJi Tamer, Vicar of West Haddon, and Edward Andrews, it is ordered, that the said vicar shall have by reason of the words altaragium cum manso competenti contained in the composition of the profits assigned for the vicar's maintenance, all such things as he ought to have by these words according to the definition thereof made by the lieverend Father in God John Bishop of London, upon conference with the civilians David Hewes, Judge of the Admiralty, Bartholomew Clerk, Dean of the Arches, John Gibson, Henry Joanse, Lawrence Hewes, and Edward Stanhope, all Doctors of the Civil Law ; that is to say, by altaragium, i\i\\e& of wool, lambs, colts, calves, pigs, goslings, chickens, butter, cheese, hemp, flax, honey, fruits, herbs, and such other small tithes, with offerings that shall be due Avithin the parish of West Haddon." And the like was for Is^orton in Northamptonshire, in the same court, AA-ithin two or three years before, upon hearing, ordered in like manner (.r). Yet it seems to be certain, that the religious Avhen they allotted the altarage in ])art or in whole to the vicar or capellane, did mean only the customary and voluntary offerings at the altar, for some divine office or service of the priest, and not any share of the standing tithes, whether prredial or mixed (//). And in Frankhjn v. The Master and Brethren of St. Cross, in 1721, it was decreed, that where altaragium is mentioned in old endowments, and supported by usage, it will extend to small tithes, but not otherwise (z). Altarage at St. It is most probable, that the greatest annual revenue by Taul's. altars, if not by altarages, in any one church Avithin this (0 God. Repertor. Canon. 339. (z) Biinb. 79. That this word (m) Id. Introd. 51. is to be explained by usage, see (x) Ken. Par. Ant. Gloss. Cod. also 2 Biils. 27, and Het. 137; to 330. which add Ath. 12 and 18. {ll) Ken. Par. Ant. Gloss. PENSIONS, OFFERINGS, FEES. 1609 realm, was In that of St. Paul, London. For when the chantries were granted to King Henry VIII., whereof there were forty-seven belonging to St. Paul's, there were in the same church at that time no less than fourteen sevei'al altars. And although they were but chantry priests that officiated at them, and had their annual salaries on that account, distinct from altarages in the proper sense of ob- lations ; yet in regard these annual profits accrued by their ser\^ce at the altar, they may not improperly be termed pension altarages, though not oblation altarages {a). There are various fees due to the beneficed clergy for Fees other acts done or authorized by them in virtue of their office, ^^^^^ surplice besides those due for their spiritual ministration in the cases already mentioned, which have been called surplice fees. The minister of any church is entitled to a fee for Searches of searchino^ the register books of baptisms and burials, and ^}^^ copies fo^ • ^ • r i " i.1 • rT^^ • • 1 L • ^ Iro™ reijisters. r giving copies ot entries therein. 1 his right is expressly saved by 52 Geo. 3, c. 146, s. 16 {b). As to marriages, he is, by 6 & 7 Will. 4, c. 86, s. 35, to allow searches at all reasonable times of any register book in his keeping, and to give a copy certified under his hand of any entry therein upon payment of fees as follows : " For every search extending over a period of not more than one year the sum of I5., and Qd. additional for every additional year, and the sum of 2s. 6d. for every single certificate." He is also, by 1 Vict. c. 22, s. 27, to be paid for making Duplicate the duplicate register of marriage for the superintendent '"•'-yiaf^'e registrar, at the rate of 6d. for each entry. '^ The rector or vicar is also entitled to fees for the erec- Monuments tion of gravestones and monuments in churchyai'ds, the ^"'' vaults. affixing of monumental tablets to the walls of churches, and the constniction of vaults, in the cases mentioned in tlic Chapter on Burial (c). (a) God. Tntrod. 51. (r) Vale fnipra. Part III., Cliap. (A) Vide mpra, p. 055. X., Sect. 7, pp. 883, 88G, 887. VOL. II. 5 E IGIU I'KOrEKTY OF THE CIIUKCH. CHAPTER V. WASTE AND DILAPIDATIONS. Sect. 1. — TJic General Law. 2. — Ecclesiastical Dilapidations Acts of 1871 and 1872. waste. General law of waste. Sect. 1. — The General Laxo. Ecclesiastical It has been said that ecclesiastical persons are subject to persons subject certain rulcs of law as to the committal of waste on their estates. It is obvious that no ecclesiastic can enjoy his benefice or preferment for more than his life at furthest ; and in the eye of the law every person in succession in an ecclesiastical corporation sole is a quasi-tenant for life, having the freehold and an estate for life in his benefice or preferment, but no more. The laAv as to waste in general is thus laid down by Mr. Joshua A\^illiams (a), " Every tenant for life, imless restrained by covenant or agi-eement, has the common right of all tenants to cut Avood for fuel to burn in the house, for the making and repairing of all instruments of Inisljandry, and for repairing the house, and tlic hedges and fences, and also the right to cut underwood and lop pollards in due course. But he is not allowed to cut timber, or to commit any other kind of waste: either by voluntary destruction of any part of the premises, which is called voliintarj/ waste, or by permitting the buildings to go to ruin, which is called permissive waste." Again, ]\Ir. "Williams says (Z<), "So a tenant for life cannot plough up ancient meadow land ; and he is not allowed to dig for gravel, brick, or stone, except in such l)its as were open and usually dug when he came in ; nor can he open new mines for coal or other minerals, nor cut turf for sale on bog lands ; for all such acts Avould be acts of voluntary waste. But to continue the working of existing mines, or to cut turf for sale in bogs already used for that purj)ose, is not waste ; and the tenant may accoi'dingly carry on such mines and cut turf in such bogs for his own profit." {n) Principles of the Law of Real rroperty (7tli cd.), p. 23. (//) Ibid., p. 24. WASTE AND DILAPIDATIONS. 1611 All waste of tliis kind, whether voluntary or penyiissive, Known to is called in the ecclesiastical law dilapidations. ecclesiastical In the Eeport of the commissioners of 1832, it is said: Nations/ ^^^^' " If any spiritual person holding any preferment for life Ecclesiastical allow the parsonage house, stables, barns, or any other of courts commis- the buildings, or the fences, on the property of the church, siou lieport. to fall into decay, or commit or allow to be committed any Avilful waste on the same, he may be proceeded against in the ecclesiastical court, and compelled to make the neces- sary reparation. In case of accident by fire, the same re- sponsibility attaches. " Though suits of this description are infrequent, we think that this branch of jurisdiction ought to be retained, and that it may, Avhen necessary, be beneficially exercised by the provincial courts. Some modifications may, how- ever, be advantageously introduced. These proceedings have hitherto been earned on in the criminal form : in lieu of this, we are of opinion, that a civil suit should be sub- stituted, and the defendant compelled by sequestration to obey the orders of the court ; preserving to all the autho- rities of the church, the patron and parishioners, a right to institute the proceedings. " When the chancel is repaired by a spiritual incumbent, the proceeding just described will in every respect apply ; but in cases where a lay rector or other impropriator is bound to repair, it may not be expedient to enforce a sentence given in a civil suit by sequestration issuing from the ecclesiastical court ; but we anticipate no inconvenience from this circumstance, if the suggestions we have made for carrying the process of the provincial courts into effect be adopted. The right of bringing these suits should be subjected to the same regulations as those proposed for suits instituted against spiritual incumbents. " Suits for dilapidations may also be brought upon any vacancy made by the incumbent, against him or his per- sonal representatives, by the successor to the benefice. This jurisdiction, which is enjoyed in common with the courts of common law, we think ought to be preserved. " Doubts have been entertained, Avhether suits for dila])i- dations could be brought against perpetual curates. We arc humbly of opinion, that all such or any similar persons holding ])refcnncnt for life, whether in the strict accepta- tion of the term perpetual curates or not, should, in respect of all property they hold in right of the church, be liable on account of dilapidations to all proceedings which may be lawfidly carried on against spiritual rectors or vicars. " During the last half-century, land has frequently, upon 5 l2 1612 niorEUTY of the ciirRcn. Ecclesiastical ciiclosiu'cs taking- ])lace, been allotted to benefices in lieu of courts commis- fj^],^^.. there niav l)e some question whether the o-eneral SlDIl l\CpOlt. , ' TIi'tI'T- ITl IT 1 rules applical)ie to cluapidalions could Ijc extended to such allotments ; this doubt should in our judgment be set at rest, by declaring that all ])ro]ierty of" the church so acquired should Avith respect to dila[)idations be deemed glebe. " It will be desirable also to invest the ]irovincial courts with ])ower, ujwn ap})lication, to allow mines to be opened and worked, upon conditions equitable and fair to the persons at present holding spiritual preferment and tlieir successors ; and in all cases of this description, notice should be given to the i3atron"(c). Definition in A dilapidation, according to Parson's Counsellor (d), is Parson's fljQ pulling down, or destroying in any manner, any of the Counsellor. i ' i -i t i i * • i. • -i. i t *• liouses or builtlings hclongmg to a spu'itual living, or suffering them to run into ruin or decay; or wasting or destroying the woods of the church; or committing or suffering any Avilful waste in or upon the inheritance of the church. And certainly, he adds, there can be nothing worse becoming the dignity of a clergyman than non- residence and dilapidations, which for the most part go hand in hand. Not identical. It is not to be always assumed that tlic law of waste, ap- plied to ecclesiastical persons, is exactly the same as that applied between ordinary tenants for life and remaindermen. The following ])oints have, however, been expressly decided in the law of waste as applicable to ecclesiastical persons : — That they may not commit waste by felling wood or the like (e). That they may not open new mines or gravel pits and the like. This was at one time otherwise ruled in the Countess of Rutland's case{f); but the law is noAv well settled to the contrary {rj). The law of permissive waste is very much the same as that a})plied to the cases of tenants for life. rvcmcdics The remedies in these cases are very numerous. ■where waste is j^- ^^ bisliop cvit down and sell the trees of his bishopric, conimitteil. ^ , , ., , , ., A . ' or a parson or prebendary commit waste, a proliibition lies at common law^ {Ji), for which there is a writ in the register («). (c") Rep. of Ecclcs. Comm. 51. (y) Knirjld v. Mosely, Ambl. Id) P.. 1, c. 8. 17(3 ; Huntley v. Riisi^cU, 13 Q. B. (e) Gibs. GGl; Dulce nf Marl- bl2- 13 Jur. 837; Ilohlon v. hnrow/h v. St. John, 21 L. J., Cii. Wcekes, 1 John. & Hem. 278. 381; Sowerhj \. Fnjcr, 8 L. Pt., {h) 2 Roll. Ah. 813; Regist. Eq. 417. 72 a. (/•) 1 Lev. 107; 1 Siderfin, (/) Gibs. GGl. 152. WASTE AND DILAPIDATIONS. 1613 111 the case of Jefferson v. The Bishop of Durlium, it was liolden, however, that the Court of Common Pleas had no power to issue an original writ of prohibition to restrain a bishop from committing waste in the possessions of his sec, at least at the suit of an uninterested person (/e). Moreover, it was holden in the Bishop of Salishurifs case (Z)that the ecclesiastical coui-ts might punish a bishop, parson or other ecclesiastical person for cutting down trees upon the lands, unless it be for reparations of their eccle- siastical houses, and for doing or suffering to be done any dilapidations; and Lord Coke thinks that dilapidations (which in the ecclesiastical courts clearly include waste) are sufficient cause for deposing or depriving a bishop (m), but the circumstances must be of a very aggravated cha- racter which would Avarrant such a sentence. The Court of Chancery Avill also grant an injunction at the suit of the patron to restrain waste (??). And it is said that a similar injunction will be granted against a bishop at the suit of the attorney-general (o). But the patron cannot pray an account of the Avaste already committed, for he cannot have any profit from the living (/?). An action for damages by the succeeding incumbent Action for against his predecessor, or the personal representatives of *i™iagcs. his predecessor, will in some cases lie. It has sometimes been thought that such an action would lie in all cases of waste. So Gibson {q) and, folloAV- ing him. Dr. Burn (?•) are of opinion. The point seems to have been rather assumed than de- cided in the case of Huntley v. Russell {s), where a ncAv gravel pit had been opened and part of the gravel therein sold by the incumbent, and his representatives were holden liable in an action for the value of the gravel. The point, however, Avas very careftilly considered in the recent case of Boss v. Adcock{f)\ and the Common Pleas (/.) 1 Bos. & Pull. 105. & Hem. 278. (0 Godb. 259. {q) P. 752. (ni) Bagge\s case, 11 Co. 99; (;•) Title Dilapidatrons ; and 3 liulstr. 158; Salk. 135; Serjt. see Kef. Leg. s. 39 b; Vincr, Hill's MS. Notes. Abr. tit. Waste (O. 5, G, 7); (n) Bnullcy v. Strachnj, 3 P>ar- Serjt. Ilill's MS. Notes. nard. 399; S. C\ 2 Atk. 217; (.s) 13 Q. B. 572; 18 L. J., Jloskins V. Featlierstone, 2 Br. Q. B. 240; 13 Jur. 837: see 552, arc the earliest cases. note to Eoss v. Adcock, in 3 L. R., (rt) Jefferson v. Bp. of Diir- C. P., at p. 670. /m//^, 1 Bos. t;lcct tlieir houses and other edifices, so as not to jn-eserve them in repair, nor build them Avhen ruinous and lidk-n down; by reason whereof deformity occupieth the state of the churches, and many inconveniences ensue: wc do ordain and establish, that all clerks shall take care decently to repair the houses of their benefices and other buildino;s, as need shall require j Avhereunto they shall be earnestly admonished by their bishops or archdeacons ; and if any of them, after the monition of the bishop or archdeacons, shall neglect to do the same for the space of two months, the bishop shall cause the same effectually to be done, at the costs and charges of such clerk, out of the profits of his church and benefice, by the authority of this present statute ; causing so much thereof .to be received as shall be sufficient for such reparation. The chancels also of the chiu'ch they shall also cause to be repaired by those Avho arc bound thereunto, according as is above expressed. Also we do injoin, by attestation of the divine judgment, the arch- bishops and bishops, and other inferior prelates, that they do keep in repair their houses and other edifices, by causing such reparations to be made as they know to be needful" (o). That all Clerks sliall take care. — Under which general expression are comprehended curates and ])rebendaries, and all others having any ecclesiastical benefice whatso- ever (p). This seems to have been at one time doubted {q) ; but the law is now clearly settled that perpetual curates are liable for dilajiidations (r). Vicars choral, if they have a house hj virtue of their office, are similarly liable (.;s, -wliich Ly law or custom he is bound to keep and maintain in re])anition, do make any deed or gift, or alienation or other like conveyance of his movable goods or chattels, to the intent and ])nrpose aforesaid; the suc- cessor of him that shall make such deed of gift or alien- ation, 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 I'cpara- tion of so much of the said dilapidations and decays, or just recompense of the same, as hath liap})cned by his fact or defaidt ; in such sort as he might or ought to have, if he to Avhom such deed of gift or alienation shall be so made, Avere executor or administrator of him that made such deed or alienation." Agai7ist their Executors or Administrators. — This act only makes provision against the particular abuse of fraiidu- lent deeds to defeat the successor, after the incumbent is dead ; but by the rides of the church (as appears by the foregoing constructions), the ordinary, in case of dilapida- tions, hath a right to take cognizance of them, during the life of the incumbent, either by vohuitary inquisition, or upon complaint made to him ; or to enforce rcj)aration by sequestering of the profits, or by ecclesiastical censures, even to depiivation (a). Their Executors or Administrators. — In a suit for dilapidations in the spiritual court, the executor of an administrator prayed a prohibition, upon oath that he had no goods of the first intestate ; and the court agreed, that the executor of the administrator is not liable, unless he has goods of the first intestate, or be administrator of goods not administered l)y such administrator ; iq^on which, the prohibition was granted and stood {h). By the Laics Ecclesiastical of this Realm. — In acknow- ledfi-ment of the rio-lit of the ecclesiastical courts to the sole cognizance in the case of dilapidations, a writ of consulta- tion is provided in the register (c). And Sir Simon Degge says, suits for dilapidations are most properly and naturally to be brought in the spiritual courts: and no prohil^ition lies. But nevertheless, he says, the successor may (if he will) upon the custom of England, have a special action u])on the case against the dilapidator, his executors or administrators (rZ). (a) Gibs. 753 ; 3 Inst. 2()4. (c) Gibs. 753. (/v) Gibs. 753; 3Kub. G19. {d) D^g. p. 1, c. 8; Wats. WASTE AXD DILAPIDATIONS. 1621 aiiist sequestrator andincnnil)ent for dilapida- tions. In the case of Bunhury v. Hetcson, H., the incumbent Bviihury v. of a vicarage, died leaving the buildings of the vicarage -'^^«'«'"*- out of repair. B. succeeded him, and died, whereupon S. was aj)pointed. The premises still being dilapidated, the executrix of B. was compelled to pay S. the amount necessary to put them in repair, and she then brought an action against the executor of H., and it was holden that the action was maintainable. Also that the custom of England for rectors and vicars to leave their houses in repair to their successors, was transferred to Wales by 27 Hen. 8, c. 26 (e). In Hubhard v. Beckford {f), Lord Stowell held the How to pro sequestrator liable to demands for dilapidations, and over- ^ ^ i-xded the ol ejection, that lie Avas not liable for more than the surplus on rendering his account. " On a general principle (he said) I am inchned to hold that the seques- trator will be liable to dilapidations. The king's writ issues to the bishop to levy a sum for the discharge of the debt. The Avrit has been truly described as mandatory to the bishop, who is in a general sense only ministerial. The secjuestrator is a kind of bailiff to the bishop. There is no mention of any purpose but the payment of the par- ticular debt ; it is however a thing incident to, and inse- parable from, the subject-matter itself, that there are certain duties and expenses for which the sequestrator is bound to pro^-ide. The instrument issues under the authority of the bishop, and contains a clause of allowance for all necessary charges, and I do not know on what principle it can be maintained, that the repairs of the chancel and of the parsonage are not necessary charges ;" and he adds, that the bishop has no power of exonerating the sequestrator from these charges. So too in Wingjield V. Watliins {ff), the same great authority laid down the same principle as to the duty and liability of the seques- trator : " There can be no doubt that he may be compelled, by process in the bishop's court," to make the necessary repairs. He may be compelled by the bishop and church- wardens. See the note to this case, in which Lord Stowell also said, " I do not undertake to say that he may not plead circumstances which exonerate him fi-om this obligation, as far as the authority of this court goes. If he can show that the sequestration has been finished and c. 39 ; 1 Bac. Alir. G3 ; sec Jnncs V. lim, 3 Lev. 2G8 ; Day v. llol- Un2C> rUOPEUTY OF Till-: { IlURCir. Whtit in- chulcd as buildiiiirs. Building out of diocese. "Who to have bishops' powers. Surveyors for each diocese. Their suc- cessors. Bounty of Queen Anne fur tlie augmentation of the main- tenance of the poor clergy. " Tlie term ' the arcluleacon ' shall mean the ai'chdeacon of the archtleaconry within which the benefice is situated w-ith regard to which the provisions of this act are sought to be applied. " The term * the rural dean ' shall mean the rural dean of the rural deanery within which the benefice is situated with regard to which the provisions of this act are sought to be applied." Sect. 4. " The provisions of this act respecting buildings belonging to a benefice shall apply to all such houses of residence, chancels, walls, fences, and other buildings and things as the incumbent of the benefice is by law or custom bound to maintain in repair." Sect. 5. " For the purposes of this act any building belonging to a benefice shall be deemed to be within the diocese of the bishop under whose jurisdiction the benefice is, although the building be not in fact locally situate within that diocese." By sects. 6 and 7, archbishops are in their diocese to have the powers here given to bishops. The guardians of the spirituaUties during a vacancy, and the person lawfidly empowered to exercise his general jurisdiction in the dio- cese Avhen a bishop is incapacitated, are to exercise the bishop's powers. As to surveyors of dilapidations : — Sect. 8. " "Within three months after the commence- ment of this act, a surveyor or siu-veyors of ecclesiastical dilapidations shall bo appointed in and for each diocese by the archdeacons and rural deans, if any, of such diocese, assembled at a meeting convened for that pui-pose, at which the bishop of the diocese, or in his absence the senior arch- deacon present, as to the date of his appointment as arch- deacon, shall preside. Every such ajipointment may be general or for a limited term, and may be for the whole or ]3art of the diocese as shall be stated in the appointment, and shall be subject to the approval of the bishop of the diocese ; the bishop shall have power to hear any complaint against the surveyor of neglect, breach of duty, or unfit- ness for his office, and to remove him from his office after giving him an opportunity of showing caiisc to the contraiy. Xo surveyor appointed under the provisions of this act shall have any claim to compensation in consequence of the repeal or any alteration of this act." Sect. 9. " On a vacancy occiu-ring in the office of sur- veyor, a fit person shall in like manner be appointed within three months from the occurrence of such vacancv." WASTE AND DILAPIDATIONS. 1627 Sect. 10. " Tlie surveyor shall be paid according to a Payment of rate of charges, and not by way of salary, and such charges surveyors by and also the fees of the bishop's secretary and registrar for (.har"-es. work done in pursuance of this act, shall be fixed in each diocese by the bishop, the archdeacons, the rural deans, if any, and the chancellor for the time being of such dio- cese, assembled at a meeting convened for that purpose, Avho may from time to time, at a meeting convened for that purpose, re^dse and alter such rate of charges and fees; but if any such alteration of surveyors' charges be made after the buildings belonging to any benefice shall have been inspected pursiiant to this act by a surveyor, the payment of such surveyor for such inspection, and for all subsequent proceedings after such inspection with reference thei'cto, shall be according to the rate of charges in force at the time of making such inspection." By 35 & 36 Vict. c. 96, s. 3, the tAvo archbishops, with Power to fix their vicars general and the lord chancellor, Avith consent "ni/"r™ ^c'lle or IGCS £ID(l of the lords of the Treasury, may at any time during 1873 char"-es. review the rates of fees of secretaries, registrars and sur- veyors charged under the preceding sections, and may ordain in lieu thereof one uniform table, which they may alter from time to time ; this table to be submitted to the Queen in council, and generally dealt with like the tables of fees fi-amed under 1 & 2 Vict. c. 106, s. 131, and 30 & 31 Vict. c. 135 (z). By 34 & 35 Vict. c. 43, s. 11, the surveyor is not to be interested in contracts made under this act. As to inspections at other times than when a benefice is vacant: — Sect. 12. "It shall be lawful for the bishop, on the Inspection complaint in writing of the archdeacon, or of the rural '"-y '"^ dean, or of the patron of a benefice, that the buildings of |.'^,,^ ',pj,'t. ^f the benefice are in a state of dilapidation, or at the request aiduieacon, of the incumbent, to direct the surveyor to inspect the build- '■"'"''^' ''^"'^« ings of the benefice, or any of them ; provided always, that incumbent. a copy of such complaint shall be forwarded by the bisho]) to the incumbent, or the sequestrator, if any, one month before such inspection shall be ordered." Sect. 13. "As regards a benefice under sequesti'ation As to a at the time of the commencement of this act, the bishop l^^^ncficc under , .• 1 • 1 , ■• 1 1 sequestration, may, at any time dunng such sequestration, and as regards a benefice thereafter put under sequestration, the bishop may, witliin six months after such sequestration issued, direct the surveyor to inspect as aforesaid, and such (2) Vide siipra, ]i]i. 131, 475. 5 m2 1628 rUOrEUTY OF THE CllUliCII. Form of report and service on incumbent. Its contents. Objections by incumbent, and reference thereon. Incumbent to execute works. Incumbent may bf)rrow from tlie governors. Not more than three years' income. inspection shall be renewed in every fifth year while such benefice shall be under sequestration." Sect. 14. " The surveyor shall as soon as conveniently may be after such direction insjiect, and within one month after inspection send to the bisho]) a rei)ort of the resxdt of the same, and shall send a copy to the incumbent, and to the sequestrator, if any." Sect. 15. " AMiere the surveyor shall report that any works are needed ibr putting into repair any dilapidated building; belonging to a benefice, he shall re])ort, — 1. A\'hat Avorks arc so needed, specifying the same in detail : 2. What he estimates to be the probable cost of such works : 3. At or Avithin Avhat time or times such Avorks respec- tiA'ely ought to be executed." Sect. 16. " The incumbent, or the sequestrator, if any, may AA'ithin one month after the sending the said copy, state in Avriting to the bishop objections to the report on any grounds of fact or laAv, and in such case the bishop may, if he shall think fit, at the exj)ense of the party objecting, direct a second report to be made by another sia-A'cyor or take the 0])inion of counsel upon any question of kiAv, and the bishop shall, after due consideration of the Avhole matter, give his decision in Avriting. " If no objections to the report shall be made, then, at the end of the ])eriod limited for making ol)jections thereto, the report shall be final : and if objections shall have been made, then the report, as modified by the bishop's decision, shall be final." Sect. 19. " In case of a benefice not under sequestration, it shall be the duty of the incumbent to execute the repairs jDrescribed in the final report in the manner and at or within the time or times therein prescribed, or Avithin such extended time or times as the bishop shall by Avriting under his hand direct." By sect. 17, the incumbent may borroAv from the go- Acniors, Avitli the consent of the bi.shop and patron, upon the security of the benefice, — *'(1.) The AA-hole or any part of the sum stated in the final report as the cost of the Avorks : (2.) Such sum as the governors shall think fit in respect of costs and expenses." By 35 & 36 Vict. c. 96, s. 1, the amount lent is never to exceed in the Avliole three years' net income of the benefice. By the same section, " In fixing the terms of future WASTE AND DILAriDATIONS. 1629 advances the governors may either lend moneys, to be Loans may be repaid by annual instahiients with interest on the ijrincipal made to be re- ^ -^ 1 ^ T IT I • i 1 paid 111 instal- money, or by a faxed sum or sums payable yearly m the ^ents with form of a terminable annuity, but the rate of interest to be interest or by used in all computations shall not exceed four pounds per annuity. centum per annum. Upon the appointment of a new Alteration of incumbent the mortgage term of repayment may be ex- mortgage term, tended in respect of the balance of any loan, if the go- vernors shall so direct, to be certified by a memorandum under the hand of their secretary, endorsed upon or attached to the deed and counterpart, such extension to be kept within the limits prescribed by the said recited acts," i. e., those contained in the schedule to 34 & 35 Vict. c. 43, and mentioned under sect. 62 («). By sect. 2. " It shall be lawful for the governors, with Power to the consent in writing, under the hand only, of the mort- cl^ange the gagor or of his successor, to change the day of the date of ^atc ot annual the annual payments payable to them under any mortgage payments. deed, provided that they do not thereby lengthen the period for which the benefice or preferment is encum- bered." lij 34 & 35 Vict. c. 43, s. 18, the sum lent shall be The governors placed in the books of the governors to an account entitled to keep a " The Dilapidation Account of A. B., incumbent of '^Je'Sunf '"'' ;" out of it the governors shall jjay the costs and expenses incidental to the completion of the security. Sect. 20. *' In the case of a benefice under sequestra- Sequestrators tion, the sum stated in the final report as the cost of the *'^r/'y tiiiapi- works shall be a charge upon the moneys from time to ^ the time received by the sequestrator in respect of the net governors, profits or income of the benefice in priority to all other charges, except the stipends of the ciu'ate or curates ap- pointed to perform the duties attaching to the benefice, and the sequestrator shall so long as the sequesti-ation shall remain in force pay so much of such profits as shall remain in his hands after payment of the said stipends to the governors until the whole of the sum stated shall have been paid." By sect. 21, moneys paid in respect of a benefice Ap]ilicati.lG2S. (/) Vi>fe siqmi, \->Y>.lG29,lG30. (k) Vide siqira, p. 1G35. 1640 PROPERTY OF THE CHURCH. Moneys paid to bisliop by suc- ceeding incum- bent to be a debt due from ])rior incum- bent. Form and elT'ect of secu- rity. Incumbent to fnrnisb ])arti- culars of the value of the benefice. Patron and ordinary to consent. Interim invest- ment of mouevs. Providinj; for death or change of surveyor during repairs. Sect. Gl. "All moneys Avliicli respectively Avould have been raiseable by the bisho]) by sequestration during an incumbency, and which shall be paid by a succeeding in- cumbent, or shall be recovered by sequestration during such succeeding incumbency, shall be a debt due fi-om such prior incumbent or his estate to the incumbent by ■whom or out of whose income, derived from the benefice, the same shall be paid, aud shall be recoverable as such at law or in equity." Sect. 62 gives a form of security (A), pro"\ades that the certificate of the treasm-er to the governors of any sum having been placed to the credit of the account mentioned in the certificate shall be conclusive evidence of the fact, that the governors shall, for the recovery of the sums due upon the said security, have the same remedies as if the advance had been made for repairing or rebuilding under the provisions of the following acts; 17 Geo. 3, c. 53; 21 Geo. 3, c. 66 ; 7 Geo. 4, c. 66 ; 1 & 2 Vict. c. 23 ; 28 & 29 Vict. c. 69 (i) ; and that the receipt of the treasurer of the governors shall be a discharge for all moneys paid to them. Sect. 63. " Before the governors shall lend any money on the security of the possessions of the benefice under the ])rovisions of this act they shall require the incumbent to fiirnish them with a just and particular account in A\Titing, signed by him and verified by his oath or statutoiy de- claration, of the annual profits of the living, and shall procure the consent in Avriting of the bishop and ]iatron under their respective hands, or, if the patron shall be a corporation aggregate, under the common seal of such corporation." By sect. 65, moneys paid in to a dilapidation account may be invested ; if any suiplus remain after paying for the repairs, it shall be applied to pay the princi]ial of any moi'tgage on the benefice, and subject to this it shall be paid to the incumbent or sequestrator. The governors may from tiiue to time, with the consent of the treasury, frame a scale of per-centages on the sums paid to them, to be retained by them for office expenses. Sect. 66. " In case of the death, removal from office, or resignation of a surveyor after making an inspection and before granting his final certificate of the completion of the necessary repairs, the previous acts of such surveyor (h) Vide infra, Schedule. (i) The provisions of tliesc acts are, by sect. G4, incorporated generally into this act. For an account of them, see Fart V. Chap II. WASTE AND DILAPIDATIONS. 1641 in regard to such inspection, inchiding liis report (^if any), shall be adopted by the surveyor appointed to act in his place, who shall proceed in the matter of such inspection, report, and certificate in the same manner as if the inspec- tion had originally been made by him." Sect. 67 gives power to the surveyor and his servants Power of sur- to enter and inspect the buildings of any benefice, and to ^®3'°i' to enter. execute the works, at seasonable times and hours. Sect. 68 provides that no proceedings shall be taken Limitation of against a surveyor or any one acting under the act for actions against anything done or omitted under the act, except within ™' three months, and after a month's notice of action ; and empowers the defendant in any such proceedings to make a tender of reasonable amends as a bar to the action. Sect. 69. " Every consent by or authority from a bishop Form of under this act shall be in Avriting under his hand, and bishop's order all notices, letters, reports, and other documents by this notices.^^^"^^ ° act directed to be sent, delivered, or otherwise notified or given to or left with any bishop, incumbent, officiating clergyman, or person, shall be deemed to have been duly sent, delivered, notified, given, or left respectively, if sent through the post in a prepaid letter, addressed, in the case of an incumbent or officiating minister, to the house of re- sidence of the benefice, or if there shall be no such house of residence, then to one of the church Avardens at his usual ])lace of residence, and in all other cases to the usual or last known place of residence in England of the party." Sect. 70. " If an incumbent holding a benefice at the Existing in- time of the commencement of this act shall, prior thereto, ^j.^^u-^UQ^'-pon. (withoiit due authority,) have caused any buildings be- gents) not longing to such benefice to be pulled down, and shall have liable to dilapi- substituted other buildings of equal or greater value, such *^'^,^j^?|l^^f^|^^jj ^^ incumbent shall (if the bishop of the diocese consent) not buiuiugs of be liable to dilapidations in respect of the buildings so equal or pulled down, provided such substituted buildings shall ^^''^'j^lg^j^^^^^Jj. have been insured pursuant to this act ; and no incumbent cumbent luible holding a benefice at the time of the commencement of for dilapida- this act shall be liable for dilapidations in respect of any [j\°;"^jj^^^„g'^ buildings which shall have been pulled down by a pre- p„iied down iiy ceding incumbent, unless the incumbent so holding such prior incum- benefice shall have received or shall be entitled to recover ^*^^*^ T'*^!L ., . • n 11 T • ij. amounts reco- at law or in equity irom the last preceding incumbent or vcrable from his estate the amount chargeable on account of such prior incum- dilapidations, and in such case the liability of the existing ^"^"*- incumbent shall be limited to the amount so received or recoverable at law or in equity." Sect. 71. " Wherever it shall appear that any Iniilding Removal of P, VOL. 11. 5 N 1642 niorEHTY or the cliukcit. iimiccessary part of any glebe house. Saving of powers. Schedule. Form of mortLrajre. belonging to or forming jiart of any liou.se of residence is inineccssary, it shall be lawful for the bishop, upon the application of the incumbent and with the consent in writ- ing of the patron of the benefice, to authorize by a ■written instrument under his hand the removal of the said build- ing ; and the ])roceedings, if any, of such removal shall be applied to the improvement of the benefice in such manner as the bishop of the diocese and the patron of the benefice may agree on." Sect. 72 and 73 save all the powers previously pos.sessed by the bishop, archdeacon, or other ordinary, and the powers and provisions contained in the acts mentioned above under sect. 62 (A). By 35 & 36 Vict. c. 96, s. 1, where the powers of these acts are exercised concurrently, the mortgagor need only execute one mortgage deed. The form of mortgage given in the first schedule is as follow s : — "This indenture made the day of , between A. B., incumbent of the benefice of , in the county of and diocese of , of the one part, and the governors of the bounty of Queen Anne for the augmen- tation of the maintenance of the i:)oor clergy of the other part. Whereas the said governors, pursuant to ' The Ecclesiastical Dilapidations Act, 1871,' upon the request of the said A. B., and with the consent of the bi.shop and patron (testified by their having signed \_or sealed] the instrument of consent hereto annexed), have agreed to advance the sum of pounds upon the security of the said benefice : Now this indenture Avitnesseth that the said A. B., in consideration of the sum of pounds having been carried in the books of the said governors to the credit of an account entitled ' The Dilapidation Account of A. B., incumbent of ,' as evidenced by the certi- ficate hereupon endorsed and signed by the treasurer to the said governors, doth hereby grant unto the said governors all the glebe lands, tithes, rents, rent-charges, moduses, compositions for tithe, salaries, stipends, fees, gratuities, and other emoluments and profits whatsoever arising, coming, growing, renewing, or payable to the in- cumbent of the said benefice in respect thereof, Avith all and every their rights, privileges, and appurtenances thereunto belonging, to have, hold, receive, and take the said premises, Avith their appurtenances, unto the said governors from henceforth for and during the term of (/.■) Vide supra, p. 1C40 WASTE AND DILAPIDATIONS. 1643 thirty-five years in as full, ample, and beneficial manner, and Avitli sucli remedies and powers for obtaining and re- covering tlie same, and every part thereof, to all intents and purposes, as the said incumbent or liis successors could or might or ought to have held, enjoyed, received, and taken the same if these presents had not been made : and the said A. B., for himself, his heirs, executors, and admi- nistrators, doth hereby covenant with the said governors that the said A. B., during the time he shall continue in- cumbent of the said benefice, shall and will well and truly pay or cause to be paid unto the said governors interest for the said sum of pounds, or so much thereof as shall remain due, at the end of every year, to be computed from the day of the date of these presents, after the rate of pounds per centum per annum, by yearly pay- ments, the first of the said payments to be made on the day of ■ next ; and also shall and Avill, from and after the expiration of one year fi.-om the day of the date of these presents, in each and every year dm'ing such time as aforesaid, well and truly pay or cause to be paid unto the said governors one equal thirtieth part of the said principal sum of pounds, the first of such payments to be made on the day of , 18 , and shall and will continue such respective payments of the said interest, and on ac- count of the said principal money, so long as he shall continue incumbent of the said benefice, or so long as during his incumbency anything shall remain due upon the security of these presents : provided always, and these presents are upon this condition, that if the said A. B. and his successors shall well and tndy pay or cause to be paid the said princi])al money and interest for the same, in manner and at the times aforesaid, according to the true intent and meaning of the said act and of these pre- sents, and also all costs and charges which shall have been occasioned by the nonpayment thereof, these presents and everything herein contained shall cease and be void : pro- vided also, that it shall and may be lawfiil for the said A. B. and his successors peaceably and quietly to hold, occupy, possess, and enjoy all and singular the said glebe lands, tithes, rents, rent-charges, moduses, composition for tithes, stipends, fees, gratuities, and other emoluments and profits Avhatsoever arising or to arise fi'om or in respect of the said benefice, imtil default shall be made by him or them, respectively, in the payment of the interest and principal or some part thereof, at the times and in the manner aforesaid. In Avitness, &c." 5 N 2 1G44 PROPERTY OF THE CHURCH. CHAPTER VI. LETTING AND ALIENATION. Sect. 1. — The General Law before the Statutes of Vic- toria. 2. — The Exchange of Church Property. 3. — The Leasing Statutes of Victoria. 4. — The Transfer of Property to the Ecclesias- tical Commissioners. 5. — The Exting^iishment of old Leasehold Inte- rests. 6. — The Enfranchisement of Copyholds. Sulijccts of chapter. Leases by ecclesiastical persons de facto. After depriva- tion or resig- nation. Sect. 1. — The General Laiv before the Statutes of Victoria. The subjects of the actual alienation of church property and the demising or letting of it for pui-poses of profit are so inextricably entangled, owing to the custom of English conveyancers of turning leases into means of alienation, that the two subjects, viz., practical alienation by lease, and ordinary beneficial letting, will be discussed together in this chapter. It should seem that leases of parsons, which are other- wise conformable to the statutes, are valid, although made by a parson de facto only, and though he is afterwards lawfully deprived of his benefice (a) ; but that it is different with respect to leases by a bishop de facto, although con- firmed by the dean and chaiiter(?>). If a parson make a lease for years of his tithes, it is implied " if he so long continue parson" (c) ; and the lease determines by his de- privation or resignation (). AfterAvards, by 1 Eliz. c. 19; 13 Eliz. c. 10; and 18 Eliz. c. 11, all corporations, Avhether sole or aggregate, Avere disabled from making leases for more than tAventy- one years or three lives ; and all (except bishops) from making any ncAv lease Avliere the old Avas not expired or surrendered or ended Avithin three years. In Avhich cases, confirmation Avas excluded, and could avail nothing ; and therefore confirmation is or Avas of real effect only to tAvo tins constitution Avas to bind "the greater prelates" also (Lind. 149. See 1 Inst. 144; 3 Co. 75). (w) Gibs. 744; Degge, p. 1, c, 10; Wats. c. 44; 2 Atk. 45. («) 7 C. B. 939;13 Jur. 791. (o) Gibs. 744. LETTING AXD ALIENATION. 1647 sorts of sole corporations, viz. 1. To parsons and vicars ( 7;), wlio being specially excepted out of 32 Hen. 8, c. 28, could not bind their successors without confirmation ; and 2. To bishops ; who being not included in the restraint of 18 Eliz. c. 11, hereafter mentioned, against concurrent leases, might still let such leases at any time, with confirmation ; as A^dll appear more particularly in the recital and expla- nation of the several statutes. In Doe d. Tennyson v. Lord Yarhorough, it was holden that in order to render a lease valid under 13 Eliz. c. 10, it must be made of land which had been previously let, or on which some rent had been reserved. Therefore a lease by a vicar for three lives, of uninclosed and waste land, not proved to have been before let, was holden not to be binding on his successor, althoiigh the lessee covenanted therein to inclose the land, and pay a rack rent for it ; it was held also, that 32 Hen. 8, c. 28, and 13 Eliz. c. 10, must be taken together, as being " in jjari materia''^ {q). A lease by a rector of his glebe lands, and other rectorial property, made between the years 1803 and 1816, Avhilc 13 Eliz. c. 10, continued unrepealed, was holden valid (r). All the old law of leasing, whether enabling or disabling. Old law nearly has been set on a new footing by the statutes of Victoria obsolete. hereafi:er set forth, and much of Avhat immediately follows here is of no direct legal import. It is thought however desirable to retain it, partly because of its analogical value in many questions that may arise on the new law, and partly because there may still be vested interests Avhich are governed by it. By 32 Hen. 8, c. 28, s. 1, "All leases to be made of Leases hy the any manors, lands, tenements, or other hereditaments, by ^"f'^^f^Ew?" Avriting indented, under seal, for term of years, or for term § c. 28. " of life, by any person or persons being of full age of twenty-one years, having any estate of inheritance either in fee simple or in fee tail, in their own right, or in the right of their churches or wives, or jointly with their wives, of an estate of inheritance made before the coverture or after, shall be good and effectual in the law against the lessors, their wives, heirs, and successors, and every of them, according to such estate as is comprised and speci- fied in every such indenture of lease, in like manner and form as the same shall have been, if the lessors thereof, and every of them, at the time of the making of such (7)) And, it should seem, ]iei-- at p. 300. petual curates. Vide mpra, Doc (q) 7 Moore, 258; 1 Bing. 24. d. Riclmrchon v. Thomas, 9 Ad. (r) Doe d. Coatcs v. SomerviUe, & Ell. 556; 1 Per. & Dav. 578, 9 D. & R. 130; 6 13. & C. 126. 1648 PROPKHTV OF THE CnURCn. Leases by 32 Hen. 8, c. 28. Why called the enabling statute. leases, had been lawfully sei.^ed of a good, perfect, and pure estate of fee simple thereof, to their own only- uses "(5). Sect. 2. " But this shall not extend (1) to any leases to be made of any manors, lands, tenements, or heredita- ments, being in the hands of any farmer or ftirmers, by vu'tue of an old lease, unless the same old lease be expired, surrendered, or ended within one year next after the making of the said new lease ; (2) nor shall extend to any grant to be made of any reversion of any manors, lands, tenements, or hereditaments ; (3) nor to any lease of any manors, lands, tenements, or hereditaments which have not most commonly been letten to farm, or occupied by the farmers thereof by the s])ace of twenty years next before such lease thereof made ; (4) nor to any lease to be made without impeachment of waste; (5) nor to any lease to be made above the number of twenty-one years or three lives at the most from the day of the making thereof; (6) and that upon every such lease there be resened yearly during the same lease, due and payable to the lessors, their heirs and successors to Avhom the same lands should have come after the deaths of the lessors, if no such lease had been made thereof, and to whom the revci'sion thereof shall appertain, according to their estates and in- terests, so much yearly farm or rent, or more, as hath been most accu'stomably made for the same Avithin twenty years next before such lease thereof made ; and that every i^nch person to whom the reversion shall ap])crtain after the death of such lessors or their heirs, shall have like remedy and advantage against the lessees, their executors and assigns, as the same lessor might have had against the same lessee ; so that if the lessor Avere seised of any special estate tail of the same hereditaments at the time of such lease, the issue or heir of that special estate shall liaA'c the reversion, rents and services reserved upon such lease after the death of the said lessor, as the lessor himself might have had if he had lived." Sect. 4. " Provided that nothing herein shall 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 messuages, lands, tenements, tithes, profits, or here- ditaiuents bcloiiging to tiicir churches or vicarages other- Avise or in any other manner than they might have done before the making of this act," All Leases to be made, §'c'.] — Before this statute, al- (s) Sir 0. Bridg. Rep. 124. LETTING AXD ALIENATION. 1649 thougli corporations aggregate of many (as deans and chapters) miglit have made long leases for lives or years, of themselves, and without any consent or confirmation ; yet if such leases had been made by a sole corporation (as bishop, archdeacon, prebendary), and not confirmed by such other person or persons whose consent was necessary, they expired with the lessor, and could not bind the suc- cessor. But by this statute, all sole corporations (except parsons and vicars) are enabled to make leases for twenty- one years or three lives, without any confirmation what- soever (the several conditions which follow in the statute being punctually observed) ; for which reason it is called the enabling statute, and so it wholly was, and had nothing in it of restraint, but left aggregate corporations, and also sole corporations with -proper consent, to their full liberty of going on to make all such leases as they might have made before ; Avithout being Umited at all to the conditions of this statute, if they had but the same proper confirma- tion or consent {t). Of any Manors, Lands, Tenements, or other Heredito- Of what things. ments.^ — It must be of lands, tenements, or hereditaments, manurable or corporeal, which are necessary to be letten, and whereout a rent by law may be reserved ; and not of things that lie of grant, as advowsons, fairs, markets, fi^-anchises and the like, whereout a rent cannot be re- served (?<). For the better understanding of which rule it will be Freehold leases necessary to take notice of some distinctions which plainly of tithes were arise out of the books. As, first, all the books agree, that formerly void r • ^ 1 • 1 • against a a lease for three lives, oi tithes or other mcorporeal m- successor. heritance, Avill not bind the successor, because he would then be Avithout the tithes or other such incorporeal inheritance, and have no remedy for the rent thereon reserved ; for distrain he could not, because there Avould be no place Avherein to take any distress, the things leased or granted being perfectly incorporeal, and iuA'isible ; an assize he could not have, because either he had not seisin, or if he had yet there Avould be nothing to put in vicAv of the recognitors ; and an action of debt he could not main- tain during the lease, because being for three lives, that is an estate of freehold, Avhich Avill endure no action of debt so long as it continues, and so the successor in such case would have no manner of remedy for the rent reserved, AAdiich Avould be against the express provision and intent of the several acts. Secondly, it is holden in some books, (0 Gibs. 732. {u) 1 Inst. 44. 1G50 IMJOrERTY OF THE CHURCH. Of tithes. Leases by 32 t]if^t a IciiS'C for twentij-one years of sucli incorj)orcal in- , c. - . i^ci-itancc, tlioiigh tlicy liave been visually demised, and the ancient rent be thereout reserved, is yet voidable by the successor -within these statutes ; because, though the rent reserved be good by Avay of contract between the lessor and lessee, and an action of debt may be main- tained for the recovery thereof, yet they say it is not such a rent as is incident to the reversion, nor shall pass Avitli it to the successor ; and therefore the successor, ha\ang no remedy for the rent, shall not be bound by the lease {x). The doctrine (;/) of the common law, that incorporeal hereditaments could not be distrained for, having no lo- cality (r), Avas carried to this extent, that an acceptance of rent by the succeeding bishop did not substantiate a freehold demise of tithes, because if the rent afterwards became in arrear, he could not bring either an action for debt and distress, or the species of real action called an assise of rent(«). Yet this doctrine seems to have been shaken by contrary resolutions. For some books expressly hold such lease for years to be good against the successor, because they say he has remedy for the rent by action of debt, and say it has been so judged, and talce the diversity between such lease for years and a lease for life. Also they say that the rent issues out of the tithes in point of render, thotigh not in point of remedy, because no distress can be taken for it, but that is supplied by the action of debt which lies for such rent, and shall devolve on the successor; and that such rent does not lie only in privity of contract, as a sum in gross, but is incident to tlie reversion, otherwise the suc- cessor could not have it, being only privy to the estate, not to the ])ersonal contracts of his predecessor. And to this opinion the court in one case inclined, but thought it a point of great consequence, and therefore, to avoid it, gave judgment on another point which was clear. Thirdly, all the books agree that a lease for three lives or twenty-one years of a manor with the advowson appendant, or of lands or houses and of tithes, usually let therewith, reserving the ancient rent and the like, is good and shall bind the suc- cessor ; for though the rent does not issue out of the advow- son or tithes, in ])oint of remedy, yet the rent is greater in respect thereof, and the successor has his remedy for the Avhole rent upon the lauds or other corporeal inheritance let (a-) 5 Co. 3; Litt. 44. (;■) 2 Inst. 131. {yS 2 Woiiddosoirs l^cctiires, (a) Rkkman v. Garlli, Cro. 67; Moore, 778. Jac. 173; 8 Co. 46 a. LETTING AND ALIENATION. 1651 5 Geo. 3, c. 17. Ecclesiastical &c. therewith. And Vanghan proves this from the express words of 13 EHz. c. 10, which are, that all leases by any spiritual or ecclesiastical persons, having any lands, tene- ments, tithes ov hereditaments (other than for twenty-one years or three lives), shall be void. So that the statute plainly shows that, some way or other, tithes may be leased for twenty-one years or three lives ; and if they cannot be leased singly, it must be with lands usually let therewith (Z*). But now, by 5 Geo. 3, c. 17, ss. 1, 3(c), "Whereas it may be doubtful, whether by the laws now in being, arch- bishoi)s or bishops, master and fellows, or any other head P'^^'^o"^. '"^'^X J- I- -^ -^ .' now briDd! and members of colleges or halls, deans and chapters, pre- action of debt centers, prebendaries, masters and guardians of hospitals, for rent under or any other person or persons having any spiritual and '^'''^^^ tithes, ecclesiastical promotions, heretofore had, or now have, any power to make or grant any lease or leases of tithes, or other incorporeal hereditaments only, which lie in grant, and not in livery, for one, two, or three lives, or for any term or terms of years not exceeding twenty-one, although the ancient rent is thereby reserved, and all other requisites prescribed by the acts of parliament now in being to that end, or any of them, were or are justly observed and performed, by reason that there is generally no place w^herein a distress can be taken ; and it may be also doubtful whether, in case of leases for life or lives, there is any remedy in law for svich persons, by action of debt or otherwise, for recovering the rent in arrear reserved on such leases for life or lives : therefore, for obviating all doubts, and enabling the said persons to make valid leases of such their incorporeal hereditaments, and to recover the rent reserved on leases for one, two, or three lives, and also to make good such leases as have been already granted by them," it is enacted, " that all leases for one, two, or three lives, or any term not exceeding twenty- one years, already made and granted, or hereafter to be made or granted, of any tithes, tolls or other incorporeal hereditament solely and Avithout any lands or corporeal hereditaments, by any such persons as aforesaid, shall be good and effectual in law, against such persons and their successors, as any lease made by such persons of lands or other corporeal hereditaments by virtue of 32 Hen. 8, c. 28, {!)) 3 Bac. Abr. 352 ; Yaugli. 203. (r) This power of bringing ac- tions for debt had by 8 Anne, c. 18, s. 4, been granted to lessors against tenants for life for arrears of rents. 1652 PROrERTY OF THE CHURCH. 5 Geo. 3, c. 17. or any other act. And if the rent or yearly sum reserved upon such lease shall be behind or luipaid for twenty-eight days, the said lessors, their executors, administrators and successors respectively may brino; action of debt against the lessee, his heirs, executors, administrators or assigns, for recovering the same, as any landlord or lessor or other person may do for recovering of arrears of rent due on any lease for life, lives or years, by the laws now in being." But, by sect. 2, masters and fellows of colleges, deans and chapters, &c. are disabled from granting leases for any longer term than their statutes allow. Eecovery of An action of debt lies against the assignee of lessee for ^^^- years of tithes at common law (f ). And it seems also that a lay impropriator may bring an action of debt against the assignee of a lessee for years, because 32 Hen. 8, c. 7, s. 5, puts tithes in the hands of lay impropriators upon the same footing with their corpo- real hereditaments, but it does not seem certain that he has the same remedy as to leases for life(y). Rules as to Freehold leases of tithes are governed by the principles grants. Qf ^]^q common law ; and therefore the maxim that no freehold interest can be granted, commencing infuturo, has been held applicable to a lease of tithes (y). A disclaimer of title to tithes by a rector has been holden to bind his lessee (/t). 32Hen.8, c. 28. 7iy IVritiiuj indented.~\ — It must be by deed indented. Leases must be and not by deed poll, or by parol (/). by (Iced. ^ contract in the nature of a demise may enure Avith a])t words for that purpose by way of discharge from tithes (/t). A demise of tithes for such time as lessor shall continue rector or vicar, passes a freehold, such being the estimation of uncertain interests in all species of real pro- perty, Avhich may possibly endure for any life or lives (/). (e) See Bally v. Wells, 3 AVils. (/) 1 Inst. 44. 25, and the cases therein cited; (/r) Cro. Jac. 137. Tnhntlnr. v. Denlon, Cro. Jac. (I) Braoer v. Hill, 2 Anst. \\\\ Dahton v. Reeve, 1 Raym. 413; Gwiil. 1421: for authorities 77; Dean and C/iajiter of Whidxor confirming tliat all leases and V. Grover, 2 Saund. 2i)7; Dyer, conveyances of tithes (being in- 8.0 a, 8.5 b; Tippinw Grover, Sir corporeal hereditaments lying in T. Raym. 18. grant) must be by deed, see (/•) 2 AVms. Saund. 304 a; 2 Hunb. 2; Yeh-. 95; Het. 121; Wood. Lect. 71; Toll. 31. Gwill. 1204; Godb. 354; 1 Leon. {fj) Breioer v. HiU, 2 Anst. 23; Cro. Eliz. 188, 249; Cro. Jac. 414; Edmonds v. Booth, Yclv. 137; 2 Anst. 419; Cro. Jac. G13; 131 ; Gwill. 228. 4 Bac. Abr. Leases (E. 5); 4 W. (/«) Leather v. Newitt, 4 Price, & M. 505. 374. LETTING AND ALIENATION. 1653 An agreement not under seal to demise a rectory and tithes, and a messuage used as a homestead for collecting the tithes, at an entire rent, has been holden void as to the whole (in). In the Right of their Churches.~\ — Yet a bishop that is Who are seised in the right of his bishopric, a dean of his sole pos- '*^'itl"° this sessions in the right of his deanry, an archdeacon in the ^ " ' right of his archdeaconry, a prebendary, and the like, are within this statute ; for every of them generally is seised injure ecclesice (n). And in general, all sole corporations whatsoever (par- sons and vicars only excepted) are included within this statute, and are hereby enabled to bind their successors. Accordingly it has been adjudged, on several occasions, that precentors, chancellors, and treasurers of churches, are within the benefit of this statute ; only, as to precentors, it has been determined that though there are persons of inferior rank in several churches, who are commonly so called, yet they are not within this statute ; but only those dignitaries of that denomination who are properly so called, and who are next to the deans in place and order (o). Unless the same old Lease be expired, surrendered or Expiry of ended tvithin one Year next after the making of the said fo'^ier lease. new Lease.'] — This suiTender must be absolute, and not conditional ; for the intent of the makers of the act was, to have a continual and absolute surrender, and not such an illusory surrender, which might be avoided the next day(;j). In the case of Wilson d. Eyre v. Carter, the lessor of the plaintiff, being a prebendary of Sarum, brought an ejectment to avoid a lease made by his predecessor, as not being conformable to this proviso, which requires that, upon renewals, the old lease must be expired, surrendered or ended, Avithin one year next after making of the new lease. And his objection was, that the surrender made of the former lease was with a condition, that if the then prebendary did not within a week after grant a new lease for three lives, the sui-render should be void; whereby (as was contended for the plaintiff) the old term was not absolutely gone, but the lessee reserved a power of setting {in) Gardiner v. Williamson, 2 (o) Gibs. 732; 4 Leon. 51 ; Cro. B. & A. 3.3G; Rex v. Pickering, 2 Eliz.350; Palm. lOG; 1 Leon. 112; ibid; Bird y. Higyinson, 4 N. & Siderf. 158. M. 505; Reg. v, Ilockwortlnj, 2 ( p) El/ner's case, 5 Co. 2:3 Bac. N.&F. 391. Ab. 345. (n) 1 List. 44. 1654 rROrERTY OF THE CIIUKCir. Leases by ,12 lien. 8, c. L'S. Expiry of former lease. Grant of re- version. Lands usually letteii. it up n<2;fiin. P)iit llio court, afler two arcjuments, gave judg-incMit lor tlic clcli'iulants : this iM'ing within the intent of the statute, -which was, that there should not be two long leases standing- out against the successor. Here the new lease Avas made within the week, and from thence it be- came an absolute surrender both in deed and in law. And the Avhole Avas out of the lessee, without further act to be done by him. In the proviso in the act, there is the woi'd ended as well as surrender ; and can anybody say the first lease is not at an end? This was no more than a reasonable caiition in the first lessee, to keep some hold of his old estate, till a new title w^as made to him (7-). Within one Year next after the making of the said neto Lease.'] — This, as to sole corporations inferior to bishops, is extended by 18 Eliz. c. 11, to three years; and as to bishops themselves, it holds only Avhere they make a new lease without confirmation ; for if it be confirmed by the dean and chapter, the years to come in the old lease are not material (s). Nor shall extend to any Grant to be made of any Reversion.] — That is, such grants as are made to com- mence at a day to come(?). Nor to any Lease of any Ma7iors, Lands, Tenements or Hereditaments, which have not most commonly been letten to Farm or occupied by the Farmers tliereof by the space of twenty Years next before such L^case made.] — So that if it be letten for eleven years (Lord Coke says), at one or several times within these twenty years, it is sufficient (?<). L^etten to Farm.] — A grant by copy of court roll in fee for life or years, is a sufficient letting to farm within this statute, for he is but tenant at will according to the custom, and so it is of a lease at will by the common law, but those Icttings to farm must be made by some seised of an estate of inheritance, and not by a guardian in chivalry, tenant by the curtesy, tenant in dower, or the like (.r). Nor to any Lease to be made tcithout Impeachment of Waste.] — Therefore if a lease be made for life, the re- mainder to another for life, remainder to a third for life ; this is not warranted by the statute, Ijccause the remainders make the present tenants disjiunishable of waste : but if a lease be made to one during three lives, this is good : (r) Strange, 1201. (.. ig) Gibs. 746. 1848). LETTING AND ALIENATION. 1661 times respectively, by such their i-eceipt and distribution of the rent. " And that, if the lease was absolutely A'oid, such re- ceipt and distribution were evidence from which, without proof of any instrument under seal, a demise from year to year might be presumed against them ; the presumption in such a case being the same against a corporation aggre- gate as against an ordinary person." But in Doe d. Bramall v. Collinge{l), decided about the same time, the Court of Common Pleas held that a void lease was not set up against the lessor's successor by his acceptance of rent ; such acceptance only making a tenancy from year to year. In this case the tenancy Avas treated as one from year to year, and the tenant received six months' notice to quit before the action was brought. By 13 Eliz. c. 10, s. 2, " Allleases, gifts, grants, feoff- ments, conveyances, or estates to be made, had, done, or suffered by any master and fellows of any college, dean and chajDter of any cathedral or collegiate church, master or guardian of any hospital, parson, or any other having any spiritual or ecclesiastical living, of any houses, lands, tithes, tenements or other hereditaments, being any parcel of the possessions of any such college, cathedral church, chapel, hospital, parsonage, vicarage, or other spiritual promotion, or any Avays appertaining or belonging to the same ; to any person or persons, bodies politic and corporate (other than for the term of one and twenty years, or three lives, from the time as any such lease or grant shall be made or granted, whereupon the accustomed yearly rent or more shall be reserved and payable yearly during the said term), shall be utterly void and of none effect to all intents, con- structions, and purposes" {m). Sect. 3. " Provided that this shall not be construed to make good any lease or other grant to be made by any such college or collegiate church within either of the uni- versities of Oxford or Cambridge, or elsewhere within the realm of England, for more years than are limited by the private statutes of the same college" {ii). And by 18 Eliz. c. 11, s. 1, " Whereas since the making of the said statute of the 13 Eliz. c. 10, divers of the said ecclesiastical and spiritual persons and others having spi- ritual or ecclesiastical livings, have from time to time made leases for twenty-one years or three lives long before the expiration of the former years, contrary to the true mean- Bramall v. Collinge. Leases of other corporations sole and asgre- gate, by the disabling sta- tute 13 Eliz. c. 10, and other statutes. 18 Eliz. c. 11. (I) 7 C. B. 939; 13 Jur. 791. (in) Crane v. Taylor, Hobart's R. 269; Sir 0. Bridg. 269. (h) Tlie Dean and Chapter of Ely V. Stewart, 2 Atk. 45. 1662 TROrEKTY OF THE CHURCH. ]iarsons. iSEliz. c. 11. Ino; ami iutent of the said statute;" it is enacted, that " all leases to be made by any of the said ecclesiastical, spiritual or collegiate persons, or others, of any their said ecclesiastical, spiritual or collegiate lands, tenements or liereditaments, whereof any former lease for years is in being, not to be expired, surrendered or ended Avithin three years next after the making of any such new lease, shall be void, fiiistrate and of none effect." All Leases, Gifts, Grants, c^'c.]— Corporations aggre- gate might always let long leases without any confirmation ; and so might sole corporations, with confirmation, until this act Avas made ; none but bishops being restrained by the 1 Eliz. c. 19. But by this statute all other corpora- tions, sole and aggregate, are put under the same restraint that bisho]5S were ; and the two acts being of the same tenor and form, what has been observed upon the former act will help towards the right understanding of several clauses in this act also. Charges on Littleton says, if the parson of a church charge the HilcL^c^'^^ ''"^ glebe land of his church by his deed, and after the patron and ordinary confirm the same grant, then such grant shall stand in its force according to the purport thereof. But in this case it behoves that the patron have a fee simple in the advowsou ; for if he has but an estate for life or in tail in the advowson, the grant shall not stand, but dm-ing his life, and the life of the parson which granted the same (o). Upon which there are divers things to be noted : (1) The confirmation of the grant; which indeed is but a mere assent by deed to the grant. And therefore it is holden, that if there be parson, patron and ordinary, and the patron and ordinary give licence by deed to the parson, to grant a rent-charge out of the glebe, and the parson grants the rent-charge accordingly, this is good, and shall bind the successor ; and yet here is no confirmation subse- quent, but a licence precedent. (2) The ordinary alone, Avithout the dean and chapter, may agree thereunto, either by licence precedent or confir- mation subsequent ; for the dean and chapter has nothing to do Avith that which the bishop does as ordinary in the lifetime of the bishop. (?>) But if the bishop be patron, there the bishop cannot confirm alone, but the dean and chapter must confirm also ; for the advoAA'son or patronage is parcel of the pos- (o) Litt. s. 528; Degge, 1G7. For the laAV as to Charges on Benefices, vide infra, Part Y., Chap. Vir. LETTING AND ALIEXATION. 1663 session of the bishopric ; and therefore the bishop, without the dean and chai3ter, cannot make the grant good, but only during his own life, after the decease of the incumbent, either by licence precedent or confirmation subsequent. (4) He that is patron must be patron in fee simple ; for if he be tenant in tail or tenant for life, his confirmation or agTcement is not good to bind any successor, but such as come into the church during his life. But if the estate tail be ban-ed, it shall stand good for ever ( /?). For a confirmation, being in the nature of a charge upon the advowson, can operate no further, in order to the bind- ing of the successor, than according to the degree of estate or interest which the patron has who confirms. And therefore where a tenant in tail is patron, to render the confirmation valid, the issue in tail must also confirm ; otherwise the presentee of such issue shall hold the bene- fice discharged of such lease {q). In like manner, if the patron who confirms has granted the next avoidance, the clerk of such grantee shall not be bound Avithout the grantee's joining in the confirma- tion (r). And so where there are coparceners or tenants in com- mon of an advowson, they must all join in the confirmation to bind the next incumbent, unless they have agreed before to present by turns (5). JBt/ any Master and Felloios of any College, Dean and Leases by cor- Chapter of any Cathedral or Collegiate Church.']— T\\n.t porations. is to say, by the major part of such body corporate, as it is enacted by 33 Hen. 8, c. 27 (0- But such major part are to attend in person, and to be What sort of present together at the executing of such act ; thus in the confirmation is case of The Dean and Chapter of Femes, in Ireland, Avliich was concerning the confirmation of a lease made by the bishop, it was adjudged that the confirmation was ill, because the dean Avas not only not present, but acted by a proctor, who Avas a stranger to the chapter, and not of the body. Agreeable to which are the rules of the cIa^I laAv, that he shall make no deputation in such a case but to one of the chapter only. And in the same case it was said further, upon the autho- rity of the Year Books, that neither Avould this, nor any other act that had charged the revenues of the church, have been good, though the dean had done it by one of (p) 1 Inst. 500. (;•) Gibs. 745; Cro. Car. 582. {q) Gibs, 745 ; 1 Roll. Abr. (s) Gibs. 745. 480. (/) Vide supra, p. 201. 16G4 rUorEUTY OF THE CIILltClI. Lenses by cor- porations. Wlmt sort of confirmation is rc4uisitc. "Who included under statutes. tlie cha])tcr as ///*• coitnniss/iri/ ; for (as is tlicrc allejTcd) tlioiigli the ileaii niav liave his ])rcsi{lont or comiiii.ssary to execute his sj)iritiial jurisdiction, yet such commissary cannot cliarge tlie possessions of the clnu'ch. And there- fore, liesides the authority of the president, sub-dean, or the Hke, for the exercise of tlie decanal office, a distinct proxy to one or more members of the chapter, Avho may represent him in the passinp^ of g^rants, confii-mations, and other chapter acts, is necessary to make them good and vahd in law. And their assent must be given by each member singly, and not in a confused and uncertain manner ; and this must be, ■svhen they are capitularly assembled in one certain place ; and not a consent given by the members, in several places, and at several times. Which was the case of the last cited act of the dean and chapter of Femes. The chapter consisted of ten persons, and only three Avere present (together with the dean's proctor), when the chapter seal was fixed to the confirmation ; afterwards three others of the prebendaries subscribed it : and this was adjudged ill, as being the act of particular persons only, and not of the corporation, by reason they were not assembled in one place, and in a capitular manner, that is, the act was not done simul ef semel, at the same time and place, as the law requires. But it was there agreed and acknowledged, that in case the dean and chapter be capitularly assembled in any place, their acts shall be good, though such assembly is not holden in the cltapter-lioiise ; and the act of the dean and major part of the cha])ter so assembled is properly the act of the corporation, although tlic rest do not agree, or be absent through their own default (^). A confirmation after the death of the bishop is void(w). Master and Felloics of anij CoUc(je.~\ — This includes all colleges, by Avhat name soever incorporated, and of what nature soever the foundations be, ecclesiastical, temporal or mixed ; the statute being construed most largely and beneficially against long and um*easonable leases {x^. Dean and Chajiter of anij Cathedral or Collegiate Church.^ — For the same reason, though it is .said dean and chaj)ter, it extends to chapters Avhere there are no deans (y). Master or Guardian of any Hospital.^ — In like manner, this shall extend to all manner of hospitals, be the hospital (i) Gibs. 744; Dav. 42. (m) Degge, p. 163. {cr) 11 Co. 76. (//) Gibs. 736; 1 Mod. 204. LETTING AND ALIENATION. 1665 incorporated by any other name ; or be it a sole corpora- tion, or corporation aggregate {z). Or any other having any Spiritual or Ecclesiastical Living. ~\ — That this is a general law, as it concerns all the clergy, has been often declared and adjudged, though at first much doubted. But it Avas always agreed, notwith- standing this general clause, that bishops were not in- cluded, because the statute begins with an order inferior to them («). Of any Houses.'] — But by 14 Eliz. c. 11, s. 5, this shall Leases of not extend to any grant, assurance, or lease of any houses i^vy "" !^, belonging to any persons or bodies politic or corporate aforesaid, nor to any grounds to such houses appertaining, Avhicli houses be situate in any city, borough, town corpo- rate or market town, or the suburbs of any of them ; but that all such houses and grounds may be granted, demised and assured, as by the laws of this realm, and the several statutes of the said colleges, cathedral churches, and hos- pitals, they lawfully might have been before the making of 13 Eliz. c. 10, or lawfully might be if the said statute were not ; so always that such house be not the capital or dwell- ing-house used for the habitation of the persons abovesaid, nor have ground to the same belonging above the quantity Lease of acres. of ten acres ; provided, that no lease of any such houses shall be jDcrmitted to be made by force of this act in rever- sion, nor without reserving the accustomed yearly rent at the least, nor without charging the lessee Avith the repara- tion, nor for longer term than forty years at the most ; nor any houses shall be permitted to be aliened, unless that in re- compense thereof there shall be good, laAA'ful, and sufficient assurance made in fee simple absolutely to such colleges, houses, bodies politic or corporate, and their successors, of lands as of good value, and of as great yearly value at the least, as so shall be aliened, any statute to the contrary notAvithstandinsr. So a lease by a vicar for twenty-one years, of property belonging to the vicarage in London, not being the vicar's house of habitation, nor having ground attached above ten acres, made Avithin three years of the expiration of the existing lease has been holden A'alid (h). But this statute also, referring only to such persons or bodies corporate asAvcre specified in the statute of 13 Eliz. c. 10, does not extend unto bishops ; and bislio})s had no power to let houses otherwise than according to the said {z) 11 Co. ir,. (ft) Vivianx.Dlombcrg, 3 Scott, («) Gibs. 730, citing -1 Co. 76; 681. 1 Mod. 205; Sav. 120. KiGG i'i:oi'i:i;i V oi' tiii: fiii'ucir. Lonso rif houses under 11 Kliz. t. 11. Confirmation ^^herc two chapters. Concurrent leases by hi shops. statute of 1 l^liz. c. 1!), nor niiolit tlioy make exchanges lor any rocomj^cnsc or considiM-ation (c). And by tlic cxpre.-^.s words of the act, no lease of any sucli houses shall l>o made /// I'crrrs/on ; for which reason, when the dean and cha[)ter of St. Paul's made a lease of a house for forty years, which hou.se was then in lease for ten years to come, to a stranger, it was adjudged, without argument, not to be a good lea.se, becau.'^e in reversion ; but otherwise, if both leases had been to the same per.son, becau.se the acceptance of the second lease I)y the les.see would have made tlic first lease void (rZ). Other than for the Term of One and Twentij Years, nr Three Lives.^ — Although ecclesiastical corporations agrp-e- f/ate are not within 32 Jlen. 8, c. 28, yet is that statute a pattern for leases by them made, in many things which are not here specified. And as to leases made by sole corpora- tions, according to tliis statute, they arc not good without confirmation, unless they be also made according to the limitations of the said statute {e). Ecclesiastical corporations might in some cases lease lands upon charitable trusts {f ). Where a bi.shop has two chaptci'S, the concurrent lease must have been confirmed by both, except where the iniion not being extant, there has been immemorial usage to the contrary ((/). But in all cases where concurrent lea.ses are made, the new lease, although it may be made a die confectionis, is not to take effect in interest till the old lease be expired, surrendered or ended, that is, the new lessee cannot enjoy the land till such time, for the new^ lease commences pre- sently by estoj)pcl only, not in interest ; yet it seems that the rent is due from the fir.-;t commencement of the lease, so that the bishop or other lieing lessor is entitled to two rents, and may bring an action of debt to recoN'cr the rent reserved upon the second lease, during the continuance of the former ; for the rent must be reserved and made pay- able during the term, and not from the determination of the foi'mcr lease, el.se such concurrent leases will be void, as contrary to the statute (//). Concurrent leases are good under the provi.so of a private settlement " to lease only for twenty-one years ;" and they (c) 4 liac. Ab. Lea.sc.s (E. 3); "SVooil. b. 2, c. 3; Degge, pt. 1 , c. 1 0. {d) Gibs. 7.31); Cro. Eliz. .004; O. ih-idg. II. 123; 1 Vent. 24(5. (e) Gib.s. 730; Cro. Eliz. 804; 1 Bing. 24. (/■) M^'alkrr v. Richardson, 2 Mce. & W. 882. (7) Soc Oiseof DhlinpofWater- ford ami Lisinnre, 12 Co. 71 a. (//) AVats. c. 42. LETTING AND ALIENATION. 16G7 were valid under the 13 Eliz. c. 19, till restrained by the 18 Eliz. c. 11(0' tl^^ reason being, that the inheritance is not charged upon the whole with more than twenty-one years (/i). A bishop could not make a concurrent lease for years to bind his successor Avhere there is a precedent lease for a life in being, nor can he make a concurrent lease /br life to bind the successor where there is a precedent lease for years in being, because the words of the statute enjoin that upon leases made by bishops the ancient rent must be reserved and yearly payable ; and the rent reserved upon the grant for three lives in reversion, although it be due, yet the successor has no remedy for it during the lease for years by distress, nor by action for debt, before 5 Geo. 3, c. 17 (/), because it was reserved upon a lease for life, and so it is due or payable according to the intent of the sta- tute {m). But where the second lease is made to the same person to whom the former lease was made, and not to a stranger, it seems that the former lease is wholly vacated by the same person accepting the concurrent lease {n). So if a lease for lives be made to the lessee for years, the former will merge in the latter lease, or rather the lease for years would be surrendered by accepting the lease for life, and the successor would be bound by it (o). By 39 & 40 Geo. 3, c. 41, s. 1, "Where any honours, Ecclesiastical castles, manors, messuages, lands, tithes, tenements, or J^^scs of por- other hereditaments, being parcel of the possessions of any nsually let archbishoiD, bishop, master and fellows, dean and chapter, together. master or guardian of any hospital, or any other person or persons, or body or bodies politic or corporate, having any spiritual or ecclesiastical living or promotion, and having been anciently or accustomably demised by one lease under one rent, or divers rents issuing out of the whole, now are or shall hereafter be demised by several Wlicic new leases to one or several persons under an apportioned or ^^^^^^ ^^j several rents, or Avhcre a ])art only of such honours, manors, several parts messuages, lands, tithes, tenements, or other hereditaments -, 1 Anders. (w) Moxlcr v. Wrij/it, Cro. 6, cited and agreecl in 2 Dong. Eliz. 141; More, 253. Rep. 573; Goodtillc v. Funacan, (ii) Wats. c. 44; Cro. Eliz. 5G4; Ed. 3. Gibs. 7.39: 5 Co. 11 b. (A-) 0. Bridg. 125. (o) Deggc, p. ll'J, c. 10. 1GG8 i'itisho]>, may tk'inise the allotmcuts. Jlaj- clinrfre iinprovcincnts. C & 7 Will. 1, c. 20. Restrictions on ecclesiastical persons grant- insj leases. roiiiaiiulci- of tlie tcnii, and iiikIct llic same provision as ioniHT leases. By 6 & 7 Will. 4, e. 115, s. 31, " It shall and may be lawi'ul for the rectors of the said rectories and the vicars of the said vicaraj^cs respectively for the time being, by indentnres under tlicir respective hands and seals, with the con.sent and a])i)rol)ation of the bisho]> of the diocese for the time being-, and of the patron of the said rectories and vicarages, from time to time to lea.se and demise all or any part of the allotments to be set out and allotted to them respectively by virtue of this act, to any ])erson or persons ■whomsoever, for any term not exceeding twenty-one years, so that the rent or rents for the same shall be thereby re- served to such rectors and vicars for the time being by four equal quarterly payments in every year, and so that there be thereby reserved to such rectors and vicars the best and most improved rent or rents that can be reason- ably gotten for the same, without taking any fine, forcgift, premium, sum of money, or other consideration for grant- ing any such lease, and so that no such lessee by any such lease or demise be made dis])uni.shable for waste by any ex])rcss words to be therein contained, and so that there be inserted in every such lease power of re-entry on non- payment of rent or rents to be thereby reserved within a reasonable time, to be tlierein limited, after the same shall become due, and so that a counterpart of such lease be duly executed by the lessee or lessees to Avhom such lease shall be made as aforesaid ; and every such lca.se shall be valid and effectual, any law or usage to the contrary not- withstanding." By sect. 30 of the same act they may erect buildings, and may charge the ex])enses of such buildings, and of jilanting, fencing, etc. their allotments, upon them, by way of mortgage or demise. r>y G & 7 Will. 4, c. 20, it is enacted as follows:— Sect. 1. " Xo archbishop or bishoji, ecclesiastical corpo- ration sole or aggregate, dignitary, canon, or jirebendary, or other spiritual person, nor any master or guardian of any ho.spital, shall grant any new lease of any hou.se, land, tithes or other hereditaments, ]iarcel of the posses- sions of his or their sec, chapter, dignity, canonry, prebend, benefice or hospital, by way of renewal of any lease, which .thall have Ijeen previously granted of the same for two or more lives, until one or more of the persons for whose life such lease shall have been so made shall die, and then only for the surviving lives or life, and for such new life or lives as, together with the life or lives of such survivor or LETTING AND ALIENATION. 1G71 survivors, shall make up the uumber of lives, uot exceeding three in the whole, for which such lease shall have been so made as aforesaid; and that where any siicli lease shall have been granted for forty years, no such archbishop, bishop, ecclesiastical corporation sole or aggregate, digni- tary, canon, prebendary, spiritual person, master, or guardian shall grant any new lease, by way of renewal of the same, until fourteen years of such lease shall have expired ; and that where any such lease shall have been made as aforesaid for thirty years, no such archbishop, bishop, ecclesiastical corporation sole or aggregate, digni- tary, canon, prebendary, spiritual person, master, or guardian shall grant any new lease by way of renewal of the same, until ten years of such lease shall have exi)ired ; and where any such lease shall have been granted for twenty-one years, no such archbishop, bishop, ecclesiastical corporation sole or aggregate, dignitary, canon, prebendary, spiritual person, master, or guardian shall grant any new lease, by way of renewal of the same, or (in the case of archbishops or bishops) concurrently thercAvith, mitil seven years of such lease shall have expired ; and that where any such lease shall have been granted for years, no such archbishop, bishop, ecclesiastical corporation sole or aggre- gate, dignitary, canon, prebendary, spiritual person, master, or guardian shall grant any lease, by way of renewal of the same or otherwise, for any life or lives." By sect. 2, where any renewed lease is granted it shall Recitals to be contain statements or recitals showing that the lessor is ^^'•'^cnce. empowered to grant it, and the recitals of the lease shall be taken as evidence of the fact. By sect. 3, a penalty is imposed on persons introducing recitals into leases, knowing the same to be false. Sect. 4. " In cases where it shall be certified in manner Ecclesiastical hereinafter mentioned, that for ten years now last ]iast it persons ma.v hath been the usual practice (such practice having in the fcases coufonn- case of a corporation sole commenced prior to the time of able to ancient the person for the time being representing such corporation) Practice. to renew such leases for forty, thirty, or twenty-one years respectively, at shorter periods than fourteen, ten, or seven years respectively, nothing herein contained shall prevent any archbisho]), bishop, ecclesiastical corporation sole or aggregate, dignitary, canon, prebendary, spiritual person, master or guardian, from granting a new lease conformably to such usual practice ; provided that such usual practice shall be made to a])])ear to the satisfaction of the arch- bishop of the province, in the case of a lease granted by such archbishop or by a bishop, and in the case of a lease 1G72 I'ljoriiKTV OK Tin; (iirucii. c & 7 Will. I. c. -'0. Not to prevent exchanges. Or leases for same term as prcfcdinjj leases. Act not to render valid illegal leases. Leases con- trary to this act void. C & 7 Will. 4, c. Gi. Bonds to de- fraud the Dlsahling Statutes. fjranted hy any otlicr i-oi-poratioii or j)t'Vson, to tlio satis- faction of" such arclibisliop, and nUo of the bishoji having jurisdiction over sucli corporation or person, and sliall, before the fjrantino^ of such h^ise, be certified in Avriting under the liand of tlic arcldjishop in the one case, and of the archbishop and bishoj) in the other case ; the certifi- cate so signed by an arclibi.shop only to be aflerwards deposited in the registry of such arclil)islioj^, and tlie certi- ficate so signed l)y an arclibisliop and also by a bishop to be afterwards de])osited in the registry of such bishop, Avhich certificate shall be conclusive evidence of the facts thereby certified."' By sects. 5 and G, this act is not to prevent ecclesiastical persons effecting exchanges under certain conditions, or granting leases under special .statutes. Sect. 7. " Nothing in this act contained shall prevent a lease from being granted, with a view to confirm any title or otherwise, for the life or lives of the same person or persons, or for the lives or life of the survivors or survivor of them, or for the same term of years, and commencing at the same period, as the lease last granted for a life or lives, or a term of years respectively." Sect. 8. " Xo lease not authorized by the laws and statutes now in force shall be rendered valid In- anything in this act contained." Sect. 9. If any lease contrary to this act shall have been granted since the first day of March, 1836, or shall be granted after the passing of this act, every such lease shall be A'oid to all intents and pm'poses whatsoever : provided always, that nothing in this act contained shall be deemed or taken to affect any lease granted or to be granted pur- suant to any covenant or agreement entered into i)reviously to the first day of ^Nlarch, 1836. A statute passed in the same session (^j), enacts that leases granted under this last act are not to be void by reason of not containing the several recitals mentioned in section 2. By 18 Eliz. c. 11, s. 2, it is enacted, that every bond and covenant for renewing or making of any lease or leases, contrary to the true intent of the said act of the 18 Eliz. c. 11, or of the act of the 13 KHz. c. 10, shall be utterly void. In Rndf/e v. Tliomaa (q), a parson covenanted with another, that he should have his tithes for thirteen years; afterwards he resigned, and another parson was inducted ; (p) G&l Will. 4, c. G4. (7) ."i Bui St. 202: Gibs. 737. LETTING AXD ALIEXATIOX. 1G73 the lessee brouglit an action of covenant against the lessor, and the defendant pleaded 18 Eliz. c. 11, in bar. But Coke, Dodderidge, and Ilaughton agreed, that the cove- nant was not made void by this statute ; which Avas only intended to void bonds and covenants contrary to 13 Eliz. c. 10, but does not extend to bonds and covenants made for the enjoyment of leases which become void by the common law, as leases do by resignation, or the like. But when a dean and canons made bonds among them- selves, to ascertain to each other the benefit of particular leases, and the whole body engaged, under such and such forfeitures, to make the leases respectively as there should be occasion ; such bonds were declaimed to be void by this statute. And so it Avas, AA'here the dean and chapter obliged themselves to make to one a lease of lands, which Avere then in lease to another for fifteen years to come : the covenant was declared void upon this statute (r). But this statute does not a\'oid bonds and covenants touching leases of houses in cities, boroughs, corporations or markets, according to 14 Eliz. c. 11, s. 5 {s). By 18 Eliz. c. 6, further regulations are made as to College leases, college leases, Avhich, hoAvever, have all been practically superseded by more recent legislation. Besides the restrictions above mentioned, it is enacted Leases of by 1 & 2 Vict. c. 106, s. 59, that all contracts for letting ^^"^^^ ^^ '■^'^- houses in AAdiich any spiritual persons is required by the bisliop to reside shall be Aoid ; and a penalty of 40^. a day is imposed on aU persons attempting to hold possession contrary to this act {t). It should be here observed that by virtue of 11 Geo. 2, Apportion- c. 19, s. 15, 4 & 5 Will. 4, c. 22, and lastly 33 & 34 ment. Vict. c. 35, all rents and other periodical payments are due from day to day, and are apportionable Avhere the incumbent lessor dies or vacates his preferment at a day other than that on aa hich such rent or payment l)ecomes due, between him and his successor. Sect. 2. — The Exchange of Church Property. The statute 17 Geo. 3, c. 53, an act primarily intended I'Geo. 3,c.53. to facilitate the erection and improvement of houses of residence for the parochial clergy (?/), has the following provisions relating to this subject \x) : (r) Gibs. 738; Moor. 789. generallv tlironghout this section (.s) Gibs. 738; Hob. 2(59. compare Part V., Chap. II. {t) Vide supra, pp. 1149, et seq. (.;•) Parsons, not being able to (u) Vide 811 pro, p. 14.W ; and aliene. could not exchamjc their ' P. VOL. II. 5 P 1G74 rKOrilUTY OF THE CIIIKCIT. 1 7 Geo. 3, c. 53. "Wlicrc new Imiliiiiijis are necessary for tlie residence of the iiiciunlient, tlic onlinarv, &e. may pur- chase any con- venient house MJtliin one mile of tlie chureii ; and a certain portion of land. Purchase- money for such land to be raised by sale, &e. of i)art of the glebe or tithes. Sect. 10. " AVlicrc now l)ul](liii^.s arc necessary to be ]n-ovi(lccl or erected for the lial)itati()n and residence of the rector, vicar, or otlier inciunhent, ])nr.suant to the authority hereby given, it sliall and may be lawful for the ordinary, patron, and incumbent of every such living or benefice, to contract, or to autliorize, if they shall think fit, the person so to be nominated by tliem as aforesaid, to contract, for the absolute piu'chase of any house or buildings, in a situation convenient for the habitation and residence of the rector or vicar of such living or benefice, and not at a greater distance than one mile from the church belonging to such living, benefice, or chapelry ; and also to contract for any land adjoining or lying convenient to such house or building, or to the house or building belonging to any parochial living or benefice, having no glebe lying near or convenient to the same, not exceeding two acres, if the annual value of such living, to be ascertained as aforesaid, sliall be less than one hundred pounds per annum, nor two acres for every one hundred pounds per annum, if of greater A^alue, and to cause the purchase-money for such house or buildings to be paid out of the money to arise under the powers and authorities of this act; in all which cases the said buildings and lands shall be conveyed to the patron of such living or benefice, and his heirs, in trust, for the sole use and benefit of the rector, vicar, or other incumbent of such living or benefice for the time being, and their successors, and shall be annexed to such church or chapel, and be enjoyed and go in succession with the same for ever ; but no contract so made by the nominee shall be valid, until confirmed by the ordinary, patron, and incimibent, by writing under their hands ; and every such purchase deed shall be in the form or to the effect contained in the schedule hereunto annexed, and shall be registered in such manner, and in such office, as the otlier deeds are hereby directed to l)e registered." Sect. 11. " AVhcn any such land lying near to the ]>ar- sonae;e house and buildine^s belonofinf; to such living or benefice, or to be so pinx'hased or exchanged as aforesaid, shall be thought fit to be taken and used as a convenience i'or the same, the piu-chase-money or equivalent for such land .shall be raised and had by sale or exchange of some part of the glebe or tithes of such living or benefice, which sliall appear to the said ordinary, patron, and incumbent glebes (Turther's case in 40 Eliz.). IJisliop Gibson says there is a ca.se in the Chancery Ileports in 5 Car. I. of Morgan v. Clerk, "wlierc .such an exchange Avas accomplislied by decree of tlie Court of Cliancery. (Gibs. OGl.) LETTING AND ALIENATION. 1675 most convenient for that purpose ; and every such sale or exchange shall be by deed, in the form or to the effect contained in the schedule hereunto annexed, and registered as hereinbefore directed." These provisions were much extended by 55 Geo. 3, 55 Geo. 3, c. 147. This act, reciting that " in divers ecclesiastical ^- i^''- benefices, perpetual curacies, and parochial chapeh'ies, the glebe lands, or some part or parts thereof, lie at a distance from and are inconvenient to be occupied with the parsonage or glebe houses ; and the parsonage or glebe houses of divers benefices, perpetual curacies, and parochial chapelries, are mean and inconvenient ; and it Avould often tend much to the comfort and accommodation, and thereby also to promote the residence of the incumbents of such benefices, perpetual curacies, and parochial chapelries, if the glebe lands and parsonage or glebe houses thereof could be by law exchanged for other lauds of greater value, or more conveniently situated, and for other and more convenient houses : and whereas there are also divers lands and tenements which have been accustomed to be granted or demised by the incumbent for the time being of certain ecclesiastical benefices, perpetual curacies, or parochial chapelries, for one, two, or three lives, or for a term or terms of years absolutely or determinable on a life or lives, as being holden by copy of court roll or otherwise, under some manor or lordship belonging to such benefices, per- petual curacies, or parochial chapelries, and it would there- fore be advantageous to the said benefices if the same lands and tenements, or some of them, or some part thereof, were annexed as glebe to the living or benefice to which they belong : " enacts, " that it shall be lawfiil for the Power to ex- parson, vicar, or other incumbent for the time being, of ^^^^^.'^ parson- ^ 1 • ,• 1 1 r' ,1 1 • 1 age houses and any ecclesiastical benence, perpetual ciu^acy, or parochial giebe lands for chapehy, by deed indented, and to be registered in manner other houses hereinafter mentioned, and with the consent of the patron ^"'^ lanJs- of such benefice, perpetual curacy, or parochial chapelry, and of the bishop of the diocese wherein the same is locally situate (to be signified as hereinafter is mentioned), to grant and convey to any person or persons, and to his, her, or their heirs and assigns, or otherwise, as he or they shall direct or apjioiut, or to any corporation sole or aggregate, and his or their successors, the parsonage or glebe house, and the outbuildings, yards, gardens, and ai)purtcnances thereof, and the glebe lands, and any pastures, feedings, or rights of common or Avay appendant, appurtenant, or in gross, or any or either of such house, outbuildings, yards, gardens, and glebe lands, pastures, feedings, or 5 P 2 167G rijorEUTY of the ciirnciT. 55 Geo. 3, iMfjlits of common or way, or any part or parts thereof, c- l-*7. belonging to any such benefice, perpetual curacy, or parochial chapelry, in lieu of and in exchange for any house, outbuildings, yards, gardens, and appurtenances, and any lands, or any or either of them, whether Ipng within the local limits of such benefice, perpetual curacy, or ])arochial chajiclry or not, but so as that the same be situate conveniently for actual residence or occupation by the incumbent thereof, the same also being of greater value or more conveniently situated than the premises so to be given in exchange, and being of freehold tenure, or being copyhold of inheritance, or for life or lives, holden of any manor belonging to the same benefice, and also for the pai-son, vicar, or incumbent for the time being of the same benefice, perpetual curacy, or ])arochial chajDclry, l)y the same or a like deed, and Avith the like consent, and testified as aforesaid, to accept and take in exchange to him and his successors for ever, from any person or persons, or corporation sole or aggregate, any other house, out- buildings, yards, gardens, easements, and appurtenances, and any other lands, or any or either of such house, out- buildings, yards, gardens, lands, easements, and apjiurte- nances, the same respectively being of freehold tenure, or being copyhold of inheritance, or for life or lives, holden of any manor belonging to the same benefice, and being of gi-eater value or more conveniently situated, in lieu of and in exchange for such parsonage or glebe house, out- buildings, yards, gardens, glebe lands, and appurtenances, and such pastiu'es, feedings, and rights of common or •way, or any or either of them, so to be granted and con- veyed, and which said house, outbuildings, yards, gardens, lands and appurtenances so to be accepted and taken in exchange, by any parson, vicar, or other incumbent, shall for ever, from and after such grant and conveyance thereof, be the parsonage and glebe house and glebe lands and premises of the said benefice, ]X'ri)etual curacy, or parochial cliapelry, to all intents and jiurposes whatsoever, and shall become annexed to the said benefice, perpetual curacy, or parochial chapelry, to all intents and purposes whatsoever, and be holden and enjoyed by such incumbent and his successors accordingly, without any licence or writ of ad quod damnum ; and tliat the whole, or any part or parts of the said house, outbuildings, lands, and premises so to be annexed, which before such annexation Avere of copyhold tenure, shall for ever, from and after such annexation, become and be of fi-eehold tenure, the Statute of ^Mortmain, or any other statute or law to the contrary not with stand- LETTING AND ALIENATION. 1677 ing (y) ; . . . . Pi-ovided that in all cases when such exchange shall be made by any owner or OAvners having any less estate or interest than in fee simple of or in the messuage, buildings, lands, and premises so to be by him, her, or them granted or conveyed in exchange, or being any corporation aggregate or sole, or person or persons under any legal disability, the parsonage house, out- buildings, and glebe lands respectively to be so taken in exchange as aforesaid, shall at the time of making such exchange be of equal value with, or not of less value than the said messuage, buildings, lands, and premises respectively so to be granted and conveyed in exchange to such parson, vicar, or other incumbent." By sect. 2, the premises given in exchange are to be Tithes of ex- subject to the same tithes as those taken in exchange changed lands, (unless it be agreed between the parties to such exchange that the same shall become and be subject to the render or payment of tithes in kind) from and immediately after such conveyance in exchange, in case such first-mentioned lands are situate in the same parish, vicarage, or parochial chapelry, Avith the said lands or premises before glebe thereof, or belonging thereto, but not otherwise. Sect. 3 provides for cases where the title of the person Title to lands. convepng the lands in exchange is disputed, and enacts that after the exchange the incumbent is not to be evicted. By sect. 4, " It shall and may be lawfid to and foi, ,the Power to annex T)arson, vicar, or other incumbent of any ecclesiastical premises bc- i n 1 I'lii r i. longing to bcnehce, perpetual curacy, or parochial chapelry, ot or to manors, and which benefice, perpetual curacy, or parochial chapelry, heretofore any manor or lordship is iiarcel or apijurtenaut, and as prantahle and •' 1 r- 11 • , ^ • 1 111- demisable as parcel ot or belonging to which manor or lordship any copyhold or lands or tenements are or have been usually granted or otherwise. demised, or grantable or demisable by copy of court roll, or otherwise, for any life or lives, or for any term or numl>er of years absohitely or determinable on any life or lives, by deed indented (and to be registered as hereinafter mentioned) with the consent of the patron and bishop (to be testified as hereinafter mentioned) to annex to the said benefice, ])erpetual curacy, or parochial chapelry, as and for glebe land, or parsonage or glebe house or houses and buildings thereof, all or any ]7art or parts of such lands or tenements, whether lying within the local limits of such l)cneficc, ])er[)ctual curacy, or parochial chapelry, or not, and tliat from and after such annexation the said lands (»/) The proviso here omitted was repealed by 6 Geo. 4, c. 8, s. 2. 1G78 PKOrintTY OF THE CHURCH. 55 Geo. 3, c. 147. Such nnncxa tions not to grants or dc miscs. Power to annex parsonage houses, &c. by benefaction. and tenements so annexed shall cease to be thereafter g^rantable or demisable by any incumbent of the said bene- fice, perpetual curacy, or parochial chapelry (otherwise than as glebe lands are or shall be by law grantable or demisable), but shall from thenceforth be and become, and be deemed and taken to be the glebe lands and pai*- sonage or glebe house or houses of and annexed to such benefice, perpetual curacy, or parochial chapehy, for ever, to all intents and purposes whatsoever, without any licence or writ of ad quod damnum, the Statute of INIortmain, or any other statute or law to the contraiy notwithstanding : ])rovidcd ahvays, that no such annexation shall in any wise anmil, determine, or affect any grant or demise then ffrants or'dc"^ previously madc and actually existing of the said lands and tenements so to be annexed as last aforesaid." By sect. 5, " Where there shall be no existing parson- age or glebe house on any ecclesiastical benefice, perpetual curacy, or parochial chapelry, or Avhere the existing par- sonage or glebe house, or the outbuildings thereof, on any such benefice, perpetual cm-acy, or parochial chapelry, shall be inconvenient or too small or incommodiously situate, it shall be lawfld from and after the passing of this act for any person or persons, being owners in fee simple, or for any corporation sole or aggregate, with or without confinnation, as the case may require, and l)y and with such consent, and to be signified as hereinafter mentioned, of the incumbent, patron, and bishop, to give, grant, and convey, by deed indented, and to be registered as herein- after is mentioned, to any parson, vicar, or other incum- bent of such benefice, cm-acy, or chapelry, for the time being, who shall also have power to accept the same, any messuage, outbuildings, yard, garden, orchard, and croft, or any of them, with their a])])urtcnances, or any right of way, or other easement, wliether lying within the local limits of such benefice, per])etual curacy, or parochial chapelry or not, but so as that the same be conveniently situate for actual residence or occupation by the incum- bent thereof; and which messuage, outbuildings, yard, garden, orchard, and croft, with their appurtenances or right of way, or other casement, shall for ever from and after such grant and conveyance thereof be and become annexed to and be deemed and taken to be the parsonage or glcl)e house, outbuildings, yard, garden, orchard, croft, apjjurtcnances and right of way or other easement of the said benefice, curacy, or chapelry, to all intents and pur- poses whatsoever, and be holden and enjoyed by the said incumbent and his successors accordingly, without any LETTING AXD ALIEXATIOX. 1679 licence or writ of ad quod dnmmim, the Statute of Mort- main, or any other statute or law to the contrary notwith- standing ; and from and after such grant and annexation it shall be lawM for the incumbent for the time being of the said benefice, curacy, or chapelry, to which such grant and annexation shall have been made (with the consent in writing of such patron and bishop under their hands and seals to be duly registered as hereinafter is mentioned), to take down and remove any parsonage or glebe house, and outbuildings, or any part thei'cof, which before such an- nexation belonged to the said benefice, curacy, or chapelry (if the same or part thereof cannot be better applied to the permanent advantage of such benefice, curacy, or chapelry), and with the like consent as aforesaid, to apply the mate- rials, or the produce thereof, if sold, towards some lasting improvement of the said l)encfice, curacy, or chapelry : provided always, that nothing herein contained shall ex- tend to enable any persons being infants or lunatics, or femes covert without their husbands, to make any such gift, grant, or conveyance: anything in this act contained to the contrary in anyAvise notwithstanding." By sect. 6, reciting 17 Geo. 3, c. 53, and 21 Geo. 3, c. QQ, "and that there are many ecclesiastical benefices, perpetual curacies, and parochial chapelries to Avhich no glebe land, or only a small portion of glebe land is belong- ing; and it is therefore expedient to enable the making provision by purchase, for the annexation of glebe land to such benefices, perpetual curacies and parochial chapelries;" it is enacted, that " it shall be lawful for the parson, vicar, Powcr to jiur- or other incumbent for the time being, of any ecclesiastical ^^li'isc land, benefice, perpetual curacy, or parochial chapelry, the existing glebe whereof shall not exceed five statute acres, with the consent of the patron and bishop, to be signified as hereinafter mentioned, to purchase any lands not exceed- ing in the whole twenty statute acres, with the necessary out- buildings thereon, whether being within the local limits of the said benefice, pei'petual curacy, or parochial chapelry, or not, but so as that the same be situate conveniently for building a parsonage or a glebe house and oiitbuildings, and for gardens and glebe thereof, or for any of the said pur])Oscs, and for actual residence and occupation b>' the incumbent thereof, sucli land being of freehold tenure, or being copyhold of inlicritance, or for life or lives, holden of any manor or lordship l)elonging to the same benefice, perpetual curacy, or parochial chapelry; and which lands to i)e nniicxcnrc-hascfl to be li4)l(len as freehold. 6 Geo. 4, c. 8. Kxchangcs may he made for lands or tenements that are copyhold, and not held of a manor he- longing to the beueficc, &c.; with consent of lord of manor. Lands, &f. so taken hy in- ciimlii'nt to he- come freehold premises granted hyhim. Copyhold. 55 Geo. 3, c. 147. Power to mort- gage. of" siicli benefice, perpetual eiiiaey, or j)aroeliial eliapelry, to all intents and purposes ^vllafsoever, and be lioldcn and enjoyed l)y such incumbent, and liis .succc.s,sors accordingly, Avithout any licence or writ of ad quod damjium; and the whole or any part or part.s of* the said lands, which before such annexation were or was of copyhold tenure, shall for ever, from and after such annexation, become and bo of freehold tenure ; the Statute of Mortmain or any other statute or law to the contrary notwithstandino;." By G Geo. 4, c. 8, s. 3, it" is further provided, that " It shall and may be lawfid for the parson, vicar or other incumbent for the time being of any ecclesiastical benefice, perpetual curacy or parochial chapelry, to grant and con- vey, in the manner, and by and under the several powers, provi-sions, conditions, and restrictions contained in the said act of 55 Geo. 3, c. 147, and in this act, to any such person or persons, or cor})oration, as in the said first-men- tioned act are described, any such lands or tenements as are described in the same act belonging to his benefice, in lieu of and in exchange for any lands or tenements of the description mentioned in the said first-mentioned act, as those which are thereby authorized to be accepted and taken in exchange by any such parson, vicar or other incumbent, although such last-mentioned lands or tene- ments may be copyhold of inheritance holden of a manor not belonging to such ecclesiastical benefice, perpetual curacy or parochial chapehy: provided always, that no such exchange be made without the consent of the lord of the manor of which the lands to be taken in exchange arc holden: provided always, that from and immediately after such conveyance, the lands or tenements accepted and taken in exchange by any such parson, vicar or other incumbent, shall become and be of freehold tenure, and the lands or tenements by him granted and conveyed, and which before such conveyance belonged to his benefice, per|)Ctual curacy or parochial chapelry, shall become cojiyhold of the same manor, and suljject to the same rents, fines, services, customs, and manorial rights and properties, to all intents and purposes, as the lands or tenements so to be accepted and taken in exchange were subject to before the making of such exchange." By sect. 7 of 55 Geo. 3, c. 147, the incumbent is enabled to raise money for effecting the ])iu-poses of the act by mortoraoje of the tithes and emoluments of his benefice to an amount not exceeding two years' income; but this money may be raised in addition to money" already raised for build- ing or repairing the house of residence, under 17 Geo. 3, LETTING AND ALIEXATIOX. 1681 c. 53. By 28 & 29 Vict. c. 69, s. l,this is extended to any sum not less than 100/., and not more than three years' net income. By sect. 8, the governors of Queen Anne's bounty are em- powered to lend money for promoting the piu-poses of this act. By sect. 9, any college or hall witliin the universities of Oxford or Cambridge, or any other corporate bodies, being owners of the patronage of ecclesiastical livings or benefices, may do the same, either upon interest or without any in- terest for their money. By sect. 10, " When any parson, vicar, or other incum- Consent of bent as aforesaid, shall be desirous of effecting any ex- r?V'°" f"'\, , , , . .^ •'^ I . biboop to all change, purchase, or mortgage under the provisions oi this deeds of ex- act, the consent of the patron and l^ishop to every deed of change, mort- exchange, conveyance, or mortgage shall, before the same ^^^^ °' ^'^^^' shall be signed and sealed by the parson, vicar, or other incumbent, be signified by the said patron and bishop re- spectively being made parties to and signing and sealing the said deed in the ])resence of two or more credible per- sons, who shall by indorsement thereon attest such signing and sealing, and in which attestation it shall be expressed that the same deed Avas so signed and sealed by such patron and bishop before the execution thereof by such parson, vicar, or other incumbent." By sect. 11, provision is made as to peculiars. Other provi- Bv sect. 12, powers analogous to those contained in the ^lous. Lands Clauses Consolidation Act, 1845 (z), are given to owners of limited estates and corporations of conveying land, either for exchange or sale, under this act. But by sect. 13, persons under legal incapacity ai"e not to convey (except in exchange) more than five acres. By sect. 14, as amended by 6 Geo. 4, c. 8, ''In all cases Where ex- where any exchanoe or purchase shall be made under the change or pur- authority of this act, three calendar months' previous made, notice to notice, describing the particulars, extent and situation be previously of the premises respectively to be given and taken in ex- o'^^'n- change or purchased, shall be given of the intention to make such exchange or purchase, by the insertion of the same notice for three successive weeks in some one and the same newspaper of and in general circulation in each county wherein the premises so to be given and taken in exchange or purchased, or any part thereof, are situate; and also by affixing such notice in writing on a conspicuous part of the door of the church or chapel of each jiarish or (~) 8 Vict. c. 18. 1G82 rROPEUTv of tuk chuucit. 55 Geo. 3, cliapclry wlicrciu such premises, or any part thereof, are c- H7. situate, on three Sunclays successively whereon divine service sliall be jierformed, and shortly before the com- mencement of such service on each Sunday in such churcli or chapel. A map find 1^' ^^^*- ^'^» " AVhcuover any exchanatron Avhere livings belong to the crown, or to the Duchy of Lancaster. By sect. 19, " One part of all deeds and instruments to Deeds and in- be made and executed in pursuance of or for carrying into ^t'i"i\«'"t« tobe execution this act, together with the maps and valuations, the arcli'- and the commissions of inquiry and the returns to the same i>isl)oi)'s f>i- hereinbefore directed, shall, within twelve calendar months '^l^h"P'« •*=- next after the date or dates thereof, be deposited in the office ^^'^ ^^' of the registrar of the diocese wherein such benefice, per- petual curacy, or parochial chapelry shall be locally situate, (a) In Middlesex by the Chief by the Chief Justice or senior Justice of the Queen's Bench or judge of the Court of Common Common Pleas (1 Geo. 4, c. 6, Pleas for the particular county s. 1). In Lancaster or Durham, palatine (6 Geo. 4, c. 8, s. 1). 1684 rROPEiiTV OF Tin: ciuKCir, 55 Geo. ;5, to bc ]KM'])etu;illy kept and ])reserved therein, except as to ^- ^■*^- those bencHces which are under tlie pccidiar jurisdiction of any archbishop or bishop, in -wliicli case the several docu- ments before mentioned shall Ik; deposited in the oflice of the rep^istrar of that ]>eculiar juri.-^diction, to Avhich any such benefice, perpetual curacy, or iiarocliial chapelry shall be subject, and such registrars shall respectively so dej^osit and preserve the same, and shall give and sign a certificate of such deposit thereof to be written on a duplicate, or on any other part or parts of the said deeds, or any or either of them, or on some other separate iiarchment, pa))cr, or instrument; and every such deed or instrument shall be produced at all proper and usual hours at such registry, to every person ap])lying to inspect the same, and an office copy of each such deed or instrument, certified under the hand of the registrar (and which office copy so certified the registrar shall in all cases grant to every ]ierson who shall a])ply for the same), shall in all cases be admitted and allowed as legal evidence thereof in all courts whatsoever ; and every such registrar shall bc entitled to the sum often shillings and no more (over and besides the stamp dut}', if any) for such commission and the previous requisites thereof; and the sum of five shillings and no more for so depositing as aforesaid the deeds, settlements, map, survey, valuation, commission, and instruments and so aforesaid, certifying such deposit thereof; and the sinn of one shilling and no more for each such search ; and the sum of sixpence and no more (over and besides the said stamp duty) for each folio of seventy-two words of each such office copy so certified as aforesaid." oGGco.r,, C.52. By 50 Gco. 3, c. 52, s. 1, " It shall and may be lawful Incumhcnt for the iiicumbcnt of any benefice, per])etual curacy, or uith lonscnt of parochial chapelry, with the consent of tlic patron of such hislioi) may benefice, per|)etual curacy, or parochial chapelry, and of apply money the bishop of the diocese wherein the same is locally situate, arising from ^^. ^^^ ^|^g archbishop or bishop to whom the i)eculiars sale of timlicr , . ^ ^ i- , i i • i for or t.wiuda ^vherenl such bcnence, ])erpetual curacy, or parochial cxchan-e or chapelry is situate shall belong (sxich consent to be signified purchase of jj^ manner as in the said recited act is mentioned), to pay liousc or glebe ^"d apjilv the monies to arise by sale of any timber cut lands. and sold from the glel)e lands of such benefice, perpetual curacy, or ])arochial chapelry, or from any other land, whether copyhold, holdeii under any manor of such benefice, perpetual curacy, or j)arochial chapelry, or otherwise, the timber whereof belongs to such benefice, perpetual curacy, or parochial chapelry, either for equality of exchange, or towards and in part of equality of exchange, or for the LETTING AND ALIENATION. 1685 price or purchase-money, or towards and in part of the price or purchase-money of any house, outbuildings, yards, gardens and appurtenances, or any lands, or any or either of them, by the said recited act authorized to be taken in exchange or to be purchased, and from and after such ex- change or purchase to be annexed to and to be and become the parsonage and glebe house and glebe lands and pre- mises of such benefice, perpetual curacy, or parochial cha^^elry, as in the said recited act {i. c, 55 Geo. 3, c. 147) is mentioned." By 1 & 2 Vict. c. 106, s. 70, "Where new buildings i & 2 Vict. are necessary to be provided for the residence of the in- ^- ifc. cumbent of any benefice, exceeding in value one hundred Where new poiTuds a-year, and avoided after the passing of this act, ^ g "f^. ^'^ and where such btiildings cannot be conveniently erected bishop may on the glebe of such benefice, it shall be lawful for the purchase any bishop to contract, or to authorize, if he shall think fit, the Smi^ccUionse person so to be nominated by him as aforesaid to contract, and a certain for the absolute purchase of any house or buildings in a portion of hind. situation convenient for the residence of the incumbent of such benefice, and also to contract for any land adjoining or lying convenient to such house or building, or to con- tract for any land upon which a fit house of residence can be conveniently built, and to raise the purchase-money for such house or buildings and land adjoining, or for such land upon Avhich a house of residence can be conveniently built (as the case maybe), by mortgage of the glebe, tithes, rents, and other profits and emoluments arising or to arise from .such benefice, in the same manner in all respects as is hereinbefore directed with respect to the mortgage here- inbefore authorized or directed to be made, Avhich mort- gage shall be binding upon the incumbent and his suc- cessors, and he and they and their representatives are hereby made liable to the payment of the principal, inte- rest, and costs, in the same manner and to the same ex- tent as hereinbefore directed with respect to the aforesaid mortgage; and the receipt of si;ch nominee or nominees as aforesaid shall be a sufficient discharge to the person or persons who shall advance or pay the money so to be raised : provided always, that no greater sum shall be charged on any benefice under the authority of this act than four years' net income and produce of such benefice (after such deduction as aforesaid)." Sect. 71. " The buildings and lands so to be piu'chased Buildings and shall be conveyed to the patron of such benefice and his ^'''"•';' '" ^^ heirs or successors, as the case may be, in trust for the sole pah-onTi trust use and benefit of the incumbent of such benefice for the for the incum- 1686 riiOrKUTY OF THE CIIL'UCII. bent for the time beinj?. 1 & 2 Vict. c. 2:5. Old benefice houses in cer- tain cases may be convcrtcishoprics, 13 & 1-4 Vict. c. 94, s. IG. which were exempted from the 1700 ruorKUTY OF Tin: chlkcii. Relation of this act to other acts. Isle of Man. How leases of lands acquired by any corpo- ration under this act may be made. Lands assifrncd as endowments, how to be leased. no sale, cxcliaiifjo, or ]iai'titloii shall be made under this act which could be made under 14 & 15 Vict. c. 104, so lono- as that act (which was a temporary one, continued from time to time) is in force. Sect. 7 provides that nothiuo; in the act shall repeal any powers or provisions vested in the ecclesiastical com- missioners b}' 6 & 7 Vict. c. 37, or by any acts relating to the ecclesiastical commissioners, or in the acts relating to the enfranchisement of copyholds or the inclosure of lands, or in the Cluu'ch ]iuildiiig Acts; but this act shall be cumidative thereof or alternative therewith. By 29 & 30 Vict. c. 81, neither this act nor 5 & 6 Vict. c. 108, are to apply to the Isle of Man. By 14 & 15 Vict. c. 104, s. 9 (o), " No lease of any lands purchased or acquired or in which the estate or interest of a lessee, or of a holder of copyhold or customary lands, is purchased or acquired by any ecclesiastical corporation under this act, shall, except as hereinafter provided, be granted by such ecclesiastical coqioration, otherwise than from year to year, or for a term of years in possession not exceeding fourteen years, at the best annual rent that can be reasonably gotten, without fine, the lessee not to be made dispunishable for waste or exempted from liability in respect of waste : ]irovided always, that it shall be lawful for such ecclesiastical corporation, with the approval of the church estates commissioners, from time to time to grant mining or building leases of any such lands, for such considerations, upon such terms, and generally in such manner as such commissioners, under the circum- stances of each case, may think fit ; and it shall be lawfid for such commissioners to require that any portion of the rent received on any such lease shall be invested and dis- posed of in like manner as herein provided with respect to monies to be received on the sale of any lands by any such corporation." By 23 & 24 Vict. c. 124, providing for the assignment of new estates, in lieu of the old ones, to archljishops and bishops : Sect. 8. ''Xo lands assigned or secured as the endowment of any see imder this act shall be granted by the archbishop or bishop otherwise than from year to year, or for a term of years in possession not exceeding twenty-one years, at the best annual rent that can be reasonably gotten, without fine, the lessee not to be made dispunishable for waste or exempted from liability in respect of waste, and so that (o) The rest of this act will be dealt wit'i later. Vide infra, p. 1703. LETTING AND ALIENATION. 1701 in every such lease such or the hke covenants, conditions and reservations be entered into, reserved, or contained Avith or for the benefit of the archbishop or bishop and his suc- cessors as under 5 8c 6 Vict. sess. 2, c. 27, s. 1, are to be entered into, reserved, or contained in a lease gi'anted under that enactment to or for the benefit of the incumbent and his successors, or as near thereto as the circumstances of the case Avill permit ; but where, under the said section of the last-mentioned act, any consents are provided for or required, the consent only of the archbishop or bishop for the time being shall be reqiiisite : provided always, that it shall be lawful for the archbishop or bishop, with the approval of the estates committee of the ecclesiastical commissioners testified under the common seal of the said commissioners, Avhicli the said committee are hereby em- powered to affix to any lease for this purpose, from time to time to grant mining or building or other leases of any such lands, for such periods, for such considerations, upon such terms, and generall}- in such manner as such committee under the circumstances of each case may think fit, and it shall be lawful for such committee to require that any portion of the rent reserved on any such lease shall be payable to the said ecclesiastical commissioners." Sect. 11. " The estates committee shall, Avhen required Estates com- by any archbishop or bishop to whom lands may have miwee, where been asssigned as an endowment under this act, undertake ^ana^e the the management of such lands, and receive the rents and lands "assigned. profits thereof during the incumbency of the archbishop or bishop ; and in eveiy such case as aforesaid the estates committee, diu'ing their management, may grant all such leases as might have been granted by such archbisliop or bishop if the lands had continued under his or their management, and may, with the approval of such arch- bishop or bishop, grant such other leases as might have been granted by him or them, with the approval of the estates committee ; and the commissioners shall, during the time such lands are imder the management of the said estates committee, pay to such archbishop or bishop the annual income to secure which the lands may have been assigned." By 31 & 32 Vict. c. 114, Avhich provides for the vesting Leases bv dean of capitular estates in the ecclesiastical commissioners in or chapter any case where it may be expedient ( p), sect. 9, " After jowed'.*^ ^" the passing of this act none of the deans and cha})ters men- tioned in the schedule to 31 Vict. c. 19, and no dean and {[>) Vide infra, pp. 1702, 1713. 1702 ruorERTY of the church. chapter after the makinji; of any order in council respect- ing tlieui in ])ursuance of this act, shall demise any lands vested in them otherwise than Irom year to year, or for a term of years in possession, not exceeding; twenty-one, at the best aimual rent that can be reasonably got, without fine, and shall not make the lessee dispunishable for or exempt from liability in respect of Avaste; and in every such lease such or the like covenants, conditions, and reservations shall be entered into, reserved, or contained ■with or for the benefit of the dean and chapter, and their successors, as under section 1 of 5 & G Vict. sess. 2, c. 27, are to be entered into, reserved, or contained with or for the benefit of the lessor and his successors in a lease granted under that section, or as near thereto as the cir- cumstances admit." Sect. 4. — The Transfer of Property to the Ecclesiastical Commissioners. It should now be mentioned that by force of various statutes promoted by the ecclesiastical commissioners (y) the old estates of all archbishops and bishops, and most of the cathedral and collegiate deans and chapters, have become As to bishops, vested in the ecclesiastical commissioners. The commis- deans and sioncrs are then to restore to the bishop or dean and chap- chapters, ^g^ sufficient lands to produce the income now appointed for them. In the case of bishops the estates committee of the ecclesiastical commissioners may be reqviired by the bishop to manage the lands for him, and the arrangements are to be revised from time to time on each avoidance. Till sufficient new lands have been transferred by the ecclesiastical commissioners to the see or dean and chap- ter, they are to pay a fixed annual income instead thereof. Minor eccle- By 27 & 28 Vict. c. 70, minor cathedral corporations siastical corpo- niay with the consent of their visitor transfer all their pro- rations, perty to the ecclesiastical commissioners in consideration of a fixed animal income. The whole subject wdll be treated more fully in the chapter on " The Ecclesiastical Commis- sioners." Sect. 5. — The Extinfjuislnncnt of old Leasehold Interests. Statutes re- Besides the foregoing provisions another set of enact- 'ub"e"t''' ments have been passed enabling ecclesiastical corpora- {q) 23 & 24 Vict. c. 124 ; 29 & 30 Vict. c. Ill ; 31 Vict. c. 19 ; 31 & 32 Vict. c. 114. LETTING AND ALIENATION. 1703 tions, or tlie ecclesiastical commissioners in tlieir right, to do away with the old system of leasing ecclesiastical pro- perty ; and for this purpose either to buy up the interest of lessees or to sell the reversion to them or to make exchange of interest in different lands. The acts are 14 & 15 Vict. c. 104, and its continuing acts, 17 & 18 Vict. c. 116, and 23 & 24 Vict. c. 124. By 14 & 15 Vict. c. 104, entitled " An Act to facilitate H & 15 Vict. the Management and Improvement of Episcopal and ^- ^^*- Capitular Estates in Enffland," sect. 1, every ecclesiastical Ecclesiastical i . , o ^ . , , ^ '' , . . . corporations corporation sole or aggregate, with the approval m writing j,,^^, geu^ gx- of the church estates commissioners (whose consent alone is change and en- to be sufficient by sect. 5), may sell to any lessee of lands franchise. under them their reversion, estate and interest in such lands, for such consideration, upon such terms and in such manner as they may think fit; and they may, with the like approval, enfranchise copyhold or customary lands holden of any manor of theirs; or exchange wdth any lessee of lands under them all or any of the lands comprised in such lease, or their reversion, estate and interest therein for any other lands of freehold, copyhold or customary tenure, or for the estate and interest of the lessee in any other of their lands; and may receive or pay money by way of equality of exchange. They are also empowered with the like approval to purchase the estate and interest of any lessee of lands under them, or any holder of copyhold or customary land in their manors. The church estates com- missioners are to " pay due regard to the just and reason- " able claims of the present holders of lands under lease " or otherwise arising from the long-continued practice of " renewal." By sect. 2, where the lessee surrenders his estate or Apportionment interest in part of the lands holden by him under the eccle- °^ '■^°*- siastical corporation, the church estates commissioners may, by a memorandum in writing, apportion the old rent between the lands surrendered and the lands still retained under the lease, and such apportioned rent becomes the ancient and accustomed rent for these latter lands. By sects. 3, 4, the interest acquired by any lessee under Interest of this act is to be deemed in equity to be acquired in res^ject ''-'^^ce. of his lease, and shall be subject to the same trusts and charges and covenants for renewal with and other rights of sub-lessee as the former lease or a renewal of it would have been. And where lands have been sub-let, and notice of such underlease is given to the ecclesiastical cor- poration, the interest of the lessee shall not be purchased bv thcni witliout the consent of the sub-lessee. 1704 rUOPERTY OF THE CTTUUCII. I'avnicnt to ecclesiastical commissioners. Provisions where increase or diminution of income. Definitions. 17 & 18 Vict. c. 116. Extension of sect. 2 of pre- vious act. By sects. 6, 7, ull monies to be received by any eccle- siastical corporation for sale, exchange, or enfranchise- ment under this act may be allowed to remain on mort- gao;c of the lands in question ; ])nt Avhen paid are to be paid into the liank of Kngland to an account to be appointed 1)y the church estates commii^sioners, and are to be ajiplied in ])ay)ncnt for equality of exchange, or in the purchases authorized by the act, or in buying other lands for the corporation. The monies may be invested in government stocks till they are required ; and any other monies applicable to the purchase of lands for the corpo- ration may be a])])lied for the purposes of this act. By sect. 8, if any person being a corporation sole or member of a cor[)oration aggregate shall receive an increase of his income in virtue of his office in consequence of what has been done imder this act, the church estates commi.s- sioners may require and enforce payment at any time of such annual or other sum by such person in respect of his increased income as they may think fit: and they may, if they please, make such payment a condition of their a])])roval under the act. And -where any person si;fFers diminution of income they arc to compensate him " out of any monies received by them under this act on behalf of such corporation or the investments thereof." By sect. 1 1 , tithes, but not advowsons, are to be deemed to be included imder the word " lands ;" and the expres- sion "ecclesiastical corporation" is to include archbishops, bisliops, deans and cha])ters, deans, archdeacons, canons, prebendaries and other dignitaries or officers of, and minor ecclesiastical corporations in, cathedral or collegiate churches; but is not to include Christ Chui'ch, Oxford, or any college or hospital, or " any parson, vicar, or per- petual curate or other incmnbent of any benefice" (r). This act was originally limited to three years; but has since been contiiuied by various acts, the last being 3a & 36 Vict. c. 88. By 17 & 18 Vict. c. IIG, s. 2, the provisions as to ap])ortionment of rent, where a portion of the lands holden under a lease are surrendered by the lessee under sect. 2 of 14 & lo Vict. c. 104, are extended to all cases where a portion of the lands holden mider a lease are sold, ex- chantjed or enfranchised, if the church estates commis- sioners deem it expedient to apportion the rent. (r) This provision is repealed by 24 & 25 Vict. c. 105, s. 3; and the same power of sale is given to incumbents of benefices as to other ecclesiastical corpo- rations. LETTING AND ALIENATION. 1705 By sect. 3, trustees of leases or other interests under Trustees may ecclesiastical corporations, who are empowered to raise '"'lise money. money for purchasing the renewal of leases, may raise money for purchasing the reversion or enfranchisement under these acts. By sect. 4, upon any treaty for sale, purchase or ex- Arbitration. change under these acts the value of the fee simj^le of the estate and the annual value thereof may be referred to arbitration, and the finding of the arbitrators shall be adopted in computing the terms of the sale, purchase or exchange, " regard being had, in the final settlement of " such terms, in every such case, to the just and reasonable " claims of the present holders of land under lease or " otherwise, arising from the long continued practice of " renewal." Provision is made for the appointment of arbitrators. By sect. 10, the same provisions as to arbitration are extended to cases where the ecclesiastical commissioners have become the owners of the lands formerly belonging to ecclesiastical corporations and Avish to deal Avith the lessees under them. By sects. 6, 7, money paid into the bank under the 6th Distribution of section of 14 & 15 Vict. c. 104, is to be apportioned by money. the chiu'ch estates commissioners in such a manner as to set apart for the permanent endowment of the ecclesiastical corporation a sum, which Avill secvu'e to that corporation a permanent net income equal to that Avhich they would have received from the lands had they not been dealt with under these acts; and the residue is to be handed over to the common fund of the ecclesiastical commissioners. And where an ecclesiastical corporation takes land under these acts they may be required to pay over to the church estates commissioners a sum of money " equivalent to the surplus share thereof." Sect. 11. "In computing the due regard to be paid Basis on -which " to the just and reasonable claims of the present holders |"'»i"is are to " of lands under lease or otherwise, arising from the long " continued practice of renewal, the basis of compensation " may, at the discretion and with the approval of the church " estates commissioners, be that laid down by the episcopal " and capitular revenues commissioners in their report of " 1850 or according to the recommendations laid down in " the lords' report on the same subject in 1851." By sect. 12, the expectation of a life shall not be calcu- lated according to the Nortlianipton tables, or upon any tables less favoiu-able to tlie duration of life than those appended to the twelfth report of the registrar general of p. VOL. II. 5 u ITOG PROPERTY OF THE CHURCH. Provision for determining rij^Iit of re- newal. 2.3 & 21 Vict. c. 124. Power to cor- porations, with approval of the church estates coniihissii)ncrs, to sell lands in possession, for facilitating negotiations with lessees. Schools and incumbents of benefices. blrtlis, deaths and nmrriagoi', or any others to be fi*om time to time issued by anthoritv. Provision is also made by sect. 5 of tliis act for deter- minino; by trial at law the right of renewal of any lands held for a life or lives or for years l)y copy of court roll from or under any ecclesia.stical coi'poration, whenever such coii^oration or the ecclesiastical commissioners dispute the right, or the person claiming the right desires to have the question decided. The act 23 & 24 Vict. c. 124, dealing more especially with relations between the ecclesiastical commissioners and former tenants under ecclesiastical corporations, has com- pleted the series of enactments -with reference to the extin- guishment of the old system of ecclesiastical leases. By sect. 16, " Where it appears to the church estates commissioners that inconvenience is occasioned in the negotiations betAveen any ecclesiastical corporation, sole or aggregate, and its lessees (in relation to property which it is now authorized to dispose of) by reason of its disability to sell or exchange intermixed or other lands held by such corpoi'ation in possession, or for some other estate which it is not now authorized to dispose of, it shall be lawful for such ecclesiastical corporation, with the approval in writ- ing of the said church estates commissioners, to sell any such lands (whether of fi-eehold or copyhold or customary tenure), or to exchange any such lands for other lands or any estate or interest therein ; and all the provisions of the act 14 & 15 Vict. c. 104, as amended by the act 17 & 18 Vict. c. 116, and this act, authorizing the receiving or paying of money by Avay of equality of exchange, and concerning the payment, ap])lication, and investment of any money payable to or for the benefit of any such corpo- ration on any such sale, exchange or enfranchisement as is mentioned in the said act 14 & 15 Vict. c. 104, and all other the provisions of the said acts in anywise ajijdicable for effectuating any such sale, exchange or enfranchisement or in consequence thereof, shall, so far as the nature of the case may require, extend and be applicable to and in con- sequence of any sale or exchange authorized by this act." By sect. 17, small portions of lands holden imder leases usually renewed for schools may be conveyed to trustees for the schools without consideration. By sects. 18, 19, a similar course may be taken with respect to lands usually leased for no or merely nominal fines for the endoAvment of the incumbent of any parish or chapelry, and with re- spect to rents or other annual payments usually reserved by any such corporation on any lease for the benefit of any such incumbent. LETTING AXD ALIEXATIOX. 1707 By sect. 20, " In any case in -vvlilcli any estate or in- Trustees and terest under any lease or STant made by any such eccle- ^'^^^^^^ having , ' . ^, J 1 • power to raise siastical corporation may be yestecl m any person or money for persons as a trustee or trustees, wlietlier expressly or by renewals may implication of laAv, with power to raise money for the pur- ^^^f^ money for pose of procuring a renewal of such lease or grant, and in nicnts. every other case in which a power is vested in any person or persons for that purpose, it shall be lawful for such per- son or persons to raise money for the purpose of purchasing the reversion of or otherwise enfranchising the ])roperty comprised in such lease or grant, and to apply the same accordingly, in the same manner, and subject to the same conditions, mutatis mutandis, so far as the same may be applicable to the case, as such person or persons might by virtue of such power have raised money for the purpose of renewing such lease or grant and have applied the same accoi'dingly." The effect of this and other sections upon settlements of and other dealings with the leasehold estates by the lessees, and the respective rights of tenants for life and remainder- men under such settlements, were fully considered in the cases of Mai/ward v. I^ile (^) and I?i re Wood^s Es- tate (u). By sects. 26, 27, provision is made for the rights of lessees and under lessees intej' se. By sect. 28, the powers and provisions in 14 & 15 Vict. Apportion- c. 104, s. 2, and 17 & 18 Vict. c. 116, s. 2, as to apportion- °^<=°*- ment shall extend to authorize the apportionment of heriots and fines certain and the substitution of money payments for heriots; and shall extend to all cases of surrender, conveyance or assignment to the ecclesiastical commissioners of lands in which they have a reversionary interest, and all cases of sale, exchange and enfranchise- ment of a part of the lands comprised under any lease, grant or copy of coui-t roll. By sect. 29, where there is a difficulty in making out Payment into the lessee's title the ecclesiastical commissioners may pay ^ ' the money into the Bank of England as under the Lands Clauses Consolidation Act, 1845 {x). Sect. 30 preserves the rights and obligations imjjosed by special acts in particular cases. Sects. 31, 32, extend the power of partition and confirm the powers of partition and exchange. (0 5 L. R., Cli. App. 214. (x) 8 Vict. c. 18. (m) 10 L. R., Eq. 572. 5 R 2 1708 rROPERTY OF THE CmUCFI. In estimating value of 21 years' leases an ex tension to nth October, 18S4, to be al- lowed. In estimating the value of mining leases an extension to 1884 to be al- lowed. Differences be- tween mining lessees and lessors to be referred to ar- bitration. The foUoAvlug provisions arc made in the act for asccr- taininp; the interests of lessees: — Sect. 21. " In estimatino-, for the ])urposes of any sale, purchase, or exchange, under the said acts of 14 & 15 Vict. c. 104, and 17 & 18 Vict. c. 116, and this act, or any of them, the value of the estate or interest of any lessee of any lands holden of any archhishop or bishop, or of the ecclesiastical commissioners, tmder any lease granted for a t€rm of twenty-one years, an extension of the unexpired term to the 11th day of October, 1884, at the accustomed rate of fine, shall, as a rule, be allowed, and a like exten- sion at the accustomed rate of fine shall, for the purposes of sale, purchase or exchange, be allowed in the case of any lease for lives, the extent and value of which shall be computed by arbitrators in defaidt of an agreement be- tween the parties to be less than the extent and value of a term ending on the said 11th day of October, 1884." Sect. 22. " The said ecclesiastical commissioners, or any ecclesiastical corporation aggregate or sole, in carry- ing out the powers of leasing mines and minerals vested in them, shall, in the granting to the lessees of mines and minerals holden of the ecclesiastical commissioners or any ecclesiastical corporation aggregate or sole, whether for years or for lives, an extended term or estate therein, and fixing the terms of such grant, have regard to the value of the estate and interest of the lessees of all such mines and minerals under any lease or leases heretofore ordinarily renewable on the payment of a fine, and shall as a rule in computing such value estimate and include an extension of the existing unexpired term or estate of the lessees to the 11th day of October, 1884, at the accustomed rate of fine, and in the case of such of the said leases for lives as, according to the expectancy of human life according to the life tables which are ap])ended to the twelfth annual report of the registrar general of births, deaths, and marriages in England, would not determine luitil afler the said 11th day of October, 1884, shall have regard to the actual value of the estate and interest of the lessees." Sect. 23. " In case any such lessees shall require any extended terra in such mines and minerals to be granted to them, and any difference shall arise between the said ecclesiastical commissioners or other ecclesiastical corpora- tion and such lessees thereujion, or as to the value so to be estimated, or as to the rents to be reserved, or the term of years to be granted, or other the terms and con- ditions on which such lease for any extended term or estate shall be granted, it shall be lawful for either party to LETTING AND ALIENATION. 1709 require the other party to join in referring to arbitration the matter or matters so in difference, and the same shall be refeiTed to arbitration." Sect. 24. " In any case where a treaty shall have been Upon treaty or shall be entered into under the said acts 14 & 15 Vict. ^?^ ^^^^' ^^• c. 104, and 17 & 18 Vict. c. 116, and this act, or any of ^gy require them, for any sale, exchange or purchase, it shall be lawfid reference to for either party to require the other party to join in refer- ''^ibitration. ring to arbitration the finding of the annual value of the property comprised in the lease or grant, and of the value of the fee simple, and when such values have been found it shall be binding on both parties if either party require to proceed to such sale, exchange or purchase, on terms to be computed according to such finding : Provided always, that Avhenever the ecclesiastical commissioners shall decline to enter into a treaty with a lessee for either the sale of the reversion or the purchase of the term of or in the lands held by such lessee, it shall nevertheless be lawfiil for such lessee, at any time within two years after the said commissioners shall have so declined to treat, to require that his estate and interest therein shall be pur- chased by the ecclesiastical commissioners so declining to treat as aforesaid, and that the value of such estate and interest shall be ascertained by such methods and with such extension of the unexpired term on his said lease as are by tliis act provided in respect of other leaseholds." Sect. 25. " Provided always, that under any arbitration Valuation of under the said act of 17 & 18 Vict. c. 116, or this act, {j'"^'^^^ ^"'^ where any lease shall relate to lands (except building ground or houses), the beneficial interest of the lessee shall be valued at the same rate of interest at which the value of the fee simple has been determined, and where such lease shall relate to houses or to building ground it shall be lawful for the arbitrator or arbitrators, or umpire, as the case may be, simply to find the gross sum to be paid for such sale or enfranchisement, in such manner as he or they may deem just : pro\aded also, that regard shall be had to any consideration given to the lessee by this act on account of the long continued practice of renewal : pro- vided fui'ther, that in the case of houses the lunpire shall, notwithstanding anything in the last-mentioned act or this act contained, l)c appointed by her JNIajesty's principal secretary of state for the Home Department." Sect. 35. " And whereas in some cases leases or grants Power to made by ecclesiastical corporations are in settlement, or J^Jl^^s hai^ng licld in trust, without power to raise money for renewals, interests to or the manner prescribed for raising money for renewals charge cnfran- 1710 I'KOrEllTV OF THE CIIUUCII. diiscnicnt moiiios on the laiuis enfran- chised, &c. Wherever es- tate under such lease or e paid to any archbisho]^ or bishop as herein directed, or touching the value or nature of the estates proposed to be assigned as endowment for any archbishop (:r) Where the per.«on entitled the Court of Chancery, and not to the beneficial reccii)t of tlie to the lord cliancellor or lords rent is a lunatic, the petition justices sitting in lunacy (Re should nevertheless be made to Cheshire, 7 L. R, Ch. App. 50). LETTING AND ALIENATION. 1713 or bishop, the matter In clifFerence shall be referred to two arbitrators, one to be appointed by each party, and all the provisions of ' The Common Law Procedure Act, 1854' (a), applicable in the case of such an arbitration, shall aj^ply accordingly ; and for the purpose of the application of the said act tliis act shall be deemed the ' document' autho- lizing the reference to arbitration ; and, where any matter is so refei'red, the award of the arbitrators or umpire shall be final." Sect. 44. " Nothing In this act contained, except sec- Not to affect tions eighteen, nineteen, and forty-two, shall in any manner Chnst Church, affect or apply to the cathedral church of Christ in Oxford, Collcoiate nor shall anything In this act contained affect or apply to Church at the cathedral or collegiate church of Manchester, or to the Manchester. parish of Manchester Division Act, 1850" (6). By 31 & 32 Vict. c. 114, the act giving power to the ecclesiastical commissioners to take by scheme the estates of deans and chapters : — Sect. 10. " In all cases where an agreement has been or Arliitration shall be entered into, or a treaty has been or shall be com- '*^''^,^ lessees • . under (icinis menced or is or shall be pending between a dean and and chapters, chapter and any of their lessees, for any sale and purchase ^vhose estates under 14 & 15 Vict. c. 104, 17 & 18 Vict. c. 116, or 23 fie jransfened „-,,-, r. ,^, ,,' ., . '^ , to the commis- & 24 Vict. c. 124, and tlie capitular estate is transferred sioners. to the commissioners under the provisions of this act, it shall be competent to the church estates commissioners to approve and confirm as heretofore such agreement, and to continue and bring to a conclusion and approve such treaty : provided always that in the event of the church estates commissioners declining to approve such agreement or treaty, the ecclesiastical commissioners shall be bound to purchase the lessee's Interest, if required by the lessee, with all the benefits as to arbitration and otherwise to which lessees are entitled under the above-mentioned acts or any of them ; and in every case the costs of such arbi- tration and aAvard shall be In the discretion of the said arbitrators or limpire as the case may be." Sect. 6. The Enfranchisement of Copt/holds. Ecclesiastical persons or corporations, when lords of manors, were su])joct like all other lords of manors to the provisions for compulsory enfranchisement of copyholds in (a) 17 & 18 Vict. c. 125. (6) 13 & 1 i Vict. c. 51. Kit rnorERTV of riii: ciiLUcir. General copy- hold acts. 21 & 22 Vict. c. 1)4. Acts not to ex- tent! to ecclesi- astical manors, where tenant has not a right of renewal. Application of consideration moneys in cases where enfranchise- ments might have hecn effected under 14 & 15 Vict. c. m. Appropriation of enfranchise- ment moneys in cases of ecclesiastical manors. certain cases, as provided by the various acts, 4 & 5 Vict. c. 35, 6 & 7 Vict. c. 23, 7"& 8 Vict. c. 55, and 15 & 16 Vict. c. 51. These acts were in fact cumulative of the powers of enfraiicliisement specially {j^iven to ecclesiastical corpora- tions by the statutes mentioned in the last section. Now, however, it is provided by 21 & 22 Vict. c. 94, s. 4, that " the copyhold acts shall not extend to any manors belonging, either in possession or reversion, to any eccle- siastical corporation, or to the ecclesiastical commissioners for England, where the tenant hath not a right of renewal." By the same act, sect. 5, " Whenever it shall appear to the copyhold commissioners that an enfranchisement uiidtir the Copyhold Acts is one Avhich might have been effected imder the provisions of the act 14 & 15 Vict. c. 104, so long as that act or any act for continuing the same shall be in force, the moneys or rent-charges which form the consideration of such enfranchisement shall be ])aid and ap])lied to the same account and in the same manner as if such enfi-anchisement had been effected under the said act 14 & 15 Vict. c. 104 ; and all the provisions of the said last-mentioned act which affect the application of en- ft-anchisement moneys under that act shall be applical)le to such enfranchisements as aforesaid, made under the provisions of the copyhold acts ; and the church estates commissioners and ecclesiastical commissioners shall re- sjjectively have the same powers over such consideration moneys, or the interest accruing thereon, or upon land, rent-charges or securities acquired in respect of such en- franchisements, and also over or against any ecclesiastical corporation interested therein, as such commissioners resjiectively would have had if such enfi"anchi.sement had been effected with tlie consent of the church estates com- missioners, and under the provisions of the said act 14& 15 Vict. c. 104, or any act continuing the same : but where any ecclesiastical corporation within the meaning of the said la.st-mentioned act, or the said ecclesiastical commis- sioners have only a reversionary interest in the manorial rights extinguished by enfr-anchisement, the considera- tion for such enfranchisement shall be dealt with in the manner directed by the 39th section of the Copyhold Act, 1852 (c), until the time when the said reversionary interest in the same manorial rights would, if the same had not been extinguished, have come into possession, when the ((■) Tliat is treated as belonging to a settled estate, and paid into the Bank of England. LETTING AND ALIENATION. 1715 said consideration or any government securities in which it may have been invested shall, upon petition to the Court of Chancery, be paid or transferred to the said church estates commissioners, Avho shall be considered the parties become absolutely entitled to such money, to be dealt with as if they had come into possession thereof in consequence of an enfranchisement effected under the said act 14 & 15 Vict. c. 104." Sect. 17. " Any compensation or consideration money Enfranchise- paid for the use of any spiritual person in respect of his ment money benefice or cure may, at the option of the lord, be paid to j^ny spiritual the ' governors of Queen Anne's bounty for the augmen- person may be tation of the maintenance of the poor clergy,' and when P;'*'*' *° *^^° so paid shall be applied and disposed of by the said olieen Anne's governors as money in their hands appropriated for the bounty. augmentation of such benefice or cm'e should by law, and under the rules of the said governors, be applied and dis- posed of; and the receipt of the treasurer of the said governors shall be a sufficient discharge for such money, and the person paying the same to such treasurer shall not be concerned to see to the application or disposal thereof." Sect. 19. " Where any land proposed to be enfranchised Notice to he under this act shall be held of a manor belono-lng; either in g'^f".*" th°, , 1 • J • 1 , • ecclesiastical possession or reversion to an ecclesiastical corporation commissioners within the meaning of the act 14 & 15 Vict. c. 104, the in cases ecclesiastical commissioners for England shall have notice ^^'^crein they r ^ T 11111,1 n are lutercsLcu. 01 such proceedings, and shall have the same power oi expressing assent to or dissent from such proceedings as is by this act directed with respect to persons entitled to the next estate of inheritance in reversion or remainder, and the provisions of the Co]iyhold Acts respecting such notices and all proceedings thereon (except as otherwise by this act is provided) sliall be applicable to such cases." By 24 & 25 Vict. c. 105, reciting that there are eccle- 24 & 2o Vict. slastlcal benefices to Avhich belong manors, lands and ^- ^^^• hereditaments which by custom the incumbents have had power to lease for lives or long terms of years, it is enacted, that (sect. 1) no prebendary of any prebend, not being a prebend in any cathedral or collegiate church, and no rrohihits rector, vicar, perpetual curate or Incumbent, Avho becomes, l^'^'^'^s hy copy after the passing of the act, entitled to any manors, lands or hereditaments, shall make any grant thereof by copy of court roll or lease in consideration of any fine, premium or foreglft ; but the same may be dealt with under 5 & 6 Vict. sess. 2, c. 27, 5kQ Vict. c. 108, and 21 & 22 Vict. C. 57 (r/). {d) Vide siqyra, Sect. 3. of court roll. 171G ri;ori:iM'v of tiik (.iilkcii. Not to inter- fere witli present in- terests. Provisions in 23 & 24 Vict. e. 124, applied to this act. 25 & 26 Vict. c. 52. By sect. 2, notliing in the act is to interfere with the right of any then present incumbent, or affect any grant heretofore made, or any riglit of renewal or tenant right if any sucli there l)e ; nor ])rcju(IIce any existing poAver of sale, exchange or enfranchisement under any statute now in force, or any right of admission of any person to copy- holds according to the custom of the manor. By sect. 3 the provisions of 23 & 24 Vict. c. 124, so far as they " relate to powers for the raising or application of " money by trustees, allowances to lessees, arbitration, " valuation, rate of interest, apportionment of rent, and " substitution of title on exchange," shall be applied mutatis mutandis to cases under this act, relating to rectors, vicars and perpetual curates. But the proceeds of any sales or enfranchisements and any monies received by way of equality of exchange shall be applied according to the provisions in 5 & 6 Vict. c. 108, and 21 & 22 Vict. c._ 57. By 25 & 26 Vict. c. 52, s. 1, the prohibition contained in the previous act shall extend not only to cases where a fine or premium is asked for the grant or lease, but to all cases where the grant or lease is made for a longer term or in a different manner from that prescribed by 5 & 6 Vict. sess. 2, c. 27, 5 & 6 Vict. c. 108, and 21 & 22 Vict. c. 57. By sect. 2, the provisions in sect. 3 of the previous act are extended to prebendaries of an}- prebend not being a prebend of a cathedi-al or collegiate church. ( 1717 ) CHAPTER VII. CHARGES ON BENEFICES WITH CURE OF SOULS. Besides the general restraints imposed by law upon the Special re- waste or dilapidation of ecclesiastical proijerty, the aliena- straint ou /••,ii 1 i.iij- chargme bene- tion 01 it by sale or lease or exchange, or the burdening ^^.g "j^jj cure. of it, in the hands of the successor, by the grant of new and unnecessary offices, a special enactment has been made as to benefices with cure of souls, forbidding the imposition of any charge thereon by their incumbents ; so that, even during the tenure of the incumbency, such a benefice cannot be charged Avith payments to other per- sons, and such charges if made are absolutely void. The act is 13 Eliz. c. 20, intituled " An Act touching Leases of Benefices and other Ecclesiastical Livings with Cure." Sect. L " That the livings appointed for ecclesiastical How long the ministers may not by corrupt and indirect dealings be leaseof abcne- transferred to other uses, be it enacted by the autho- ^^.^ rity of this present parliament, that no lease after the fifteenth day of May next following the beginning of this parliament, to be made of any benefice or ecclesias- tical promotion with cure, or any part thereof, and not being impropriated, shall endure any longer than while the lessor shall be ordinarily resident and serving the cure of such benefice Avithout absence above fourscore days in any one year, but that every such lease, so soon as it or any part thereof shall come to any possession or use above forbidden, or immediately upon such absence, shall cease and be void ; and the incumbent so offending shall for the same lose one year's profit of his said benefice, to be dis- tributed by the ordinary among the poor of the parish : and that all chargings of such benefices with cure here- No ]iciision or after with any pension, or with any profit out of the same w^^^ to be to be yielded or taken, hereafter to be made, other than *" ^^^S^'' • rents to be reserved upon leases hereafter to be made according to the meaning of this act, shall be utterly void." 43 Geo. 3, c. 84, Avholly repealed this act, but 57 Geo. 3, Cases on act. c. 99, repealed 43 Geo. 3, c. 84, and revived 13 Eliz. c. 20. Every case that had then been decided upon this 1718 PROPERTY OF THE CIIUKCir. subject, and all (lie ])riiK'i])les Avliich governed such deci- sions, -weiv reviewed and discussed in the judgment of iiiltmarshc v. Lord Deuniau in SaltiiKirsJie v. llewett and tihrine v. IIcHctt. J/cirrft (a). A rule nisi Avas obtained on behalf of the delendant in each of these causes, for setting aside the uaiTant of attorney, judgment, and sequestration therein. Tlie warrant of attorney (dated tlune 23rd, 1821), given by tlie defendant to the ])laintiff SaUmarshe, "svas to con- fess judgment for 3, GOO/, and it liad a defeasance which recited as follows : — That Saltmarshe liad agi'ced to pur- chase an annuity for his, llewett's, life, of 244/. a year, for 1,800/. ; that the said annuity was, or was intended to be, secured to Saltmarshe by Hewett's bond in the penal sum of 3,600/. of even date with the waiTant of attorney, and also by indenture of the same date, to which Saltmarshe and Hewett Avere parties, and whereby llewett charged the said annuity upon his rectory of llotherhithe, and the glebe lands, &c. ; that the parties had agreed that the said annuity should also be secured by a wan-ant of attorney from Hewett to confess judgment for 3,600/., which Hewett had accordingly executed ; and that the purchase- money had been ])aid by Saltmarshe. After this recital, it was declared that the judgment on the warrant of attor- ney was to be entered up as a collateral security only for payment of the annuity, and that no execution should issue on such judgment unless and until the payment of the same or some part thereof should be twenty-one days in arrear after any of the specified days of payment ; but that in case of such arrear, then, and so often as it should so happen, it should be lawful for Saltmarshe to sue out such execution on the said judgment as lie should think fit, and also to sequester the rectory, and all and singular or any of the glebe lands, &c. thereto belonging, or any other benefice or benefices Avhich Hewett might take in lieu thereof, and for that purpose to instruct counsel, &c., to act for both the ])arties in such proceedings as shoidd be necessary to obtain an immediate sequestration of the said rectory or other ecclesiastical preferment, to the intent that, by virtue of all or any of the ways aforesaid, the said Saltmarshe, his executors, &c. might recover the arrears of the said annuity, and all costs, &c. In Shrine v. llewett, the warrant of attorney (dated February 18th, 1826), began by reciting that Hewett had agi*eed to sell Skrine an annuity of 256/. jier annum for 1,950/., to be secured by and made chargeable upon, and (a) 1 Ad. & El. 812; 3 Ncv. & Man. 056. CHARGES ON BENEFICES WITH CURE OF SOULS. 1719 to be issuing and payable out of, all and singular the rectory of Ewhvu-st, and the rectory of the ]iarish church of Rotherhithe, and also to be secured by Hewetfs war- rant of attorney, and a judgment to be entered up thereon for 3,900/. and costs. It then recited an annuity deed, whereby the said annuity was to be charged and charge- able upon, and issuing and payable out of, the said rectories, and whereby it was also declared that the judgment was to be considered as a security for the said annuity ; that in case default should be made in the payment thereof for twenty-one days, it should be lawful for Skrine to issue thereupon one or more writs oifi.fa. de bonis ecclesiasticis, and such other writ or writs as he should think fit to gi-ound the same, indorsed to levy 3,900/. and costs, in order that Skrine might sequester all and singular the glebe lands, &c. belonging to the said rectories, and thereby be in pos- session in trust for better securing to him all arrears then due on the said annuity, and all future payments thereof. The indenture also stipulated that execution was not to be sued out before default, but might issue as often as the annuity should be in arrear. After this recital, the war- rant of attorney proceeded, " in pursuance of the said agreement, and for further securing the said annuity," to authorize the attornies to confess judgment for 3,900/. with costs. Judgments were entered up on the warrants of attorney ; and sequestrations were afterwards issued in two causes for arreai-s of the respective annuities. Lord Denman, C. J. — " This was a rule calling upon the plaintiff to show cause wdiy the warrant of attorney in the said rule mentioned, the judgment and Avrit of seques- tration should not be set aside. " And the question to be decided is, whether tliat war- rant of attorney is void, as being contrary to the statute of 13 Eliz. c. 20. The Avarrant of attorney is to confess judgment in an action of debt for 3,600/., and tlie de- feasance thereto, upon which the question turns, is in the following form. (His lordship then read the defeasance.) It is therefore expressly ]irovided, that in case the said annuity, or any part thereof, shall be in arrear for a certain time therein specified, ' then and so often as it shall so happen, it shall be laAvful for the said A. Saltmarshe, his heirs, &c. to sue out such execution or executions, upon or by virtue of the said judgment, as he or they shall think fit, or be advised; and also to sequester the said rectory of Rotherhithe, and all and singular or any of the glebe lands, buildings, &c. thereto belonging.' So that if we had been called upon now for the first time to put a 1720 PROPERTY OF TlIK rilUUCII. ;^(iltmtjrshe v. " construction upon tlie act of parliament, it scenis liardly Jleivett. ^Q admit of a doubt but that tlic rectory of liotlierhithe is charged with the payment of the annuity in the event of its being in arrcar, or, in other words, that the said bene- fice is charged with a '])rofit, out of the same to be yiekled and taken.' Cases, however, have been brought under our notice, bearing (as they certainly do) upon the point in question. In su])port of the rule, reliance was placed upon the case oi Flight v. Salter {b)\ and against it, upon the recent case of Volebrook and others v. hayton (c). In the former case the warrant of attorney directly referred to the annuity deed, and was declared to be ' for the pur- pose of securing the said annuity,' and to the end and intent that a sequestration may be obtained or procured, and continued by the said Thomas Flight, his executors, &c. pursuant to the hereinbefore recited indenture.' In the latter case it was averred, by affidavit, ' that the war- rant of attorney was given for the express purpose of charging the said vicarage and curacy with the payment of the annuity, and for the purpose of enabling the ]ilain- tiffs to sue out the before-mentioned executions.' Upon the discussion of this case of Colehrook and others v. Lay- ton, the authorities w-ere brought under the consideration of the court, and particularly the case of Flight v. Salter, upon which then, as now, reliance was placed to set aside the judgment entered u})on the Avarrant of attorney, which was then in question. TJie court, hoivever, distivguislird {and ice think rightly) between the impeachment of the warrant of attorney depending upon affidavit, and an ob- jection to the warrant of attorney which is presented to the notice of the court upon the face of the instrument itself And accordingly, as the court then thought, and we are now of opinion, that there icas not sufficient rela- tion or connection between the warrant of attorney and the annuity deed to show that the benefice urns to be charged to pay the annuity, in the event of its being in arrear, the rule to set aside the judgment %oas discharged. In the present case, however, from the language of the defeasance, to which reference lias been already made, we are of opi- nion that enough appears to show that the Avarrant of attornev was given ' to charge the benefice,' and is, there- fore, void by the statute. In adopting this distinction, we think that we are not only deciding in conformity to the authorities and the meaning of the statute, but are, pro- bably, laying doAvn as intelligible a rule as can easily be iP) 1 B. & A<1. 073. (.) 4 B. & Ad. 578; 1 Xev. & Man. 374. CHARGES ON BENEFICES WITH CURE OF SOULS. 1721 " suggested, for preventing the recurrence of those questions which have been so fi-equently raised, in a very short time, upon the construction of these instruments. " It seems proper to add, that the authorities cited to us (with the exception of Colehrook and othe7\s v. Layton, which is of a more recent date), namely, Shaic v. Prif- chard {d), Flight v. Salter (e), Gibbons v. Hooper {f), and Doe v. Carter (g), were brought under the considera- tion of the Court of Common Pleas, in the case of New- land V. Watliin (A). There a rule had been obtained to set aside the plaintiff's warrant of attorney, judgment and sequestration. The warrant of attorney is not set out, but the report states that the defendant, a clergyman, gave it to the plaintiff ' to enter up judgment for the arrears of the annuity, and in the warrant expressly authorized hirii to issue sequestration.' The court, having taken time to consider, made the rule absolute, deciding that the plaintiff should no further enforce his writ of sequestration, but shoidd not be subject to an action of trespass. The reasons of the court are not given, but the decision was as already stated. " Upon the whole, we are of opinion that this security cannot be supported, and that the rule must be made absolute." In Shrine v. Hewett, rule absolute. A composition with a clergyman in consideration that Alch'm v. his future income may be received by a trustee, and ap- !foj>ki/is. plied in liquidation of his debts, after providing for a curate, is void under this act (i). In a later case, to a declaration in covenant by a seques- Walthcn' v. trator for rent due imder a lease, Avhereby D., the rector (^i'"f^^- of S., demised to the defendant the rectory and parsonage, with the tithes, except the parsonage house, &c., for a term of fourteen years, if the rector should so long live, at the yearly rent of 980/., the defendant pleaded, that, before the execution of the lease, D. Avas indebted to V. and M. and others, and in consideration thereof, and of ((/) 10 B. & C. 241; 5 Man. & M. 053; 1 Ad. & Ell. 024; & Kv. 180. Cottle V. Warrinqton, 5 B. & Ad. (c) 1 B. & Ad. 073. 447 ; 2 Nev. & M. 227 ; Metcalfe if) 2 B. & Ad. 7.34. v. ArchhUlwp of York, Simon, (g) 8 T. E. 57, 300. 224 ; Moore v. Bamsdcn, 3 Nov. (A) 9 Bing. 113. & 1\ 180. As to warrant of (/) AlrJiin V. I/opJcina, A M. & attorney, Benclry v. Price, 7 Scott, 015; 1 Bing. N.R. 1)9. See Dowl. P. C. 753; Bishop v. also Johnson v. Brazier, 3 Nev, Hatch, ilnd. 703 ; 4 Jur. 318. P. VOL. II. 5 s 1722 TROrERTY OF THE CHURCH. WalthiH' V. .1 fni-thcr sum to be lout by V., and of the dufciulant con- Cnifts. sentinn: to be V.'s ao-cnt, D. agreed Avith the defendant and V. to charo-e tlie rectory of S. with that sum and the others, by making the lease in the declaration mentioned, and appointing the defendant receiver of the tithes, rents, &c. in order that he might ajiply the rent reserved by the lease in payment of the monies so to ])e charged on the benefice ; that the money "vvas advanced by V., and that 1). in pursuance of the agreement, and in order to charge the benefice, executed the lease, and -also an indenture appointing the defendant receiver ; that the lease was part of the same transaction, and was a charging of the bene- fice contrary to the statute. On special demvirrer to this plea : — It was holden that, under the second indenture, there was an equitable assignment or valid ap]H'0])riation of so much of the rent as was necessary to pay V. and M. their debts ; and that such assignment was a charge upon the benefice, and therefore the lease, which was part of the same transaction, was void under the act (/t). Loiiffv.Storic. And where a rector, who was also the patron of a living, gave Avarrants of attorney to various creditors, Avho had mortgages on the advowson, subject to an agreement that the judgment to be entered up by the first mortgagee should liaA^e priority over the rest, Avhenever execution should be issued : — It was holden, that the agi'cement pointed so particularly to making the judgments charges on the living, that the court could not give effect to it by granting an injunction and a receiver (/). irnirlnnsv. And in spite of the language in 1 & 2 Vict. c. 110, GatlurcoU. g^ y^^ j-j^^^ modified by later acts, providing that all judg- ments of the Superior Courts at Westminster entered up and registered against any person should operate as a charge upon all lands, rectories, advowsons, tithes and other hereditaments of or to which the person should be seised, entitled or ])ossessed for any estate or interest, it was holden by the lords justices, reversing a decision of Lord Cranworth, Avhen vice-chancellor, that a judgment so entered up and registered against a clergyman does not create a charge upon his benefice entitling the judgment creditor to the appointment of a receiver (m). "What charges Charges hoAvever may in certain cases be made by the may be made, incumbents on benefices Avith cure for the piu'pose of (/.) WaUlicw V. Crafts, 6 Ex. 1. G De G. M. & G. 1 ; 1 Sim. N. S. (0 Lonrf V. Storie, 3 De Gex G3; 14 Jur. 1103; 1 Jur. N. S. & Sm. 308. 481. (»/) Haichins \. Gclhcrcolc, CHARGES ON BENEFICES WITH CURE OF SOULS. 1723 building or repairing the house of residence, or for buying plots of land convenient to be annexed to the glebe (?z). In these cases the charges can only be made with the consent of certain persons specified in the statutes autho- rizing them, and where one of the persons to consent, e. g. the bishop of the diocese, himself takes the charge, the transaction A\all be considered contrary to the principles of equity, and the charge will be holden void in his hands (o). By 6 & 7 Will. 4, c. 71, ss. 77, 78, and 2 & 3 Vict. c. 62, ss. 16, 17, incumbents were empowered to charge the expenses, to which they as tithe owners were put in ob- taining a proper tithe commutation, on the lands of the benefice for a certain number of years (/»). Incumbents are also by 1 & 2 Will. 4, c. 45, s. 21, and 28 Vict. c. 42, empowered to charge their benefices for the benefit of chapels and district churches Avithin the limits of their parishes {q). But the act 13 Eliz. c. 20, applies only to benefices with Benefices with- cure of souls ; and it has been in fact holden that a canonry °"*' "^i"'*^ "•'^y of Windsor having no cure of souls attached may be ^^ ^^''^^ ' assigned, and that, on bill filed by a mortgagee, a receiver will be ap23ointed(r). In Butcher v. 3Iusgrave, being an action by another mortgagee of the same canonry, the Court of Common Pleas on the 23rd June, 1840, decided that an action of ejectment Avould 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 residen- tiary house in which the canon resided, as it appeared vested in the corporation, and not in the canon (,9). (/;) Vide supra, Part V., (q) Vide infra, Chapter on tlic Chap. II., Sect. 1. Augmentation of Benefices. (o) Greenlaio v. Kinrj, 3 Bcav. {r) Grcnfedl v. Dean, &c. of 49 (1840). Windsor, 2 Bcav. 550. (^p) Vide sujira, p. 1522. (s) Cited in Grenfcll v. Dean, &c. of Windsor, 2 Beav. 550. 5 s2 1724 rnorERTv of the ciirRrn. CHAPTER VTTT. TAXES. Sect. 1. — First Fmits and Tenths. 2. — Land Tax. 3. — Rates. Tins Chapter is intended to comjirise the several charges or taxes imposed by the State on the revenues arising from the property of tlie church. Sect. 1. — First Fruits and Tenths. First fruits. Annates, jirimiticE, or first fruits, Avere the vahie of every spiritual living by the year, which the pope, claim- ing the disposition of all ecclesiastical livings within Christendom, reserved out of every living («). History. What pope first imposed first fruits may l^e doubt- ful {])). Hume, in his history of Edward I., says " the levying of first fruits was also a new device begun in this reign, by Avhich his holiness thnist his fingers very fre- quently into the purses of the faitliful ; and the king seems to have unwarily given way to it." Blackstone, discom-s- iiig of fir.st fruits and tenths (o), says, " they were originally a ])art of the ])a])al usiu-]iations oAcr the clergy of these kingdoms, first introduced Ijy Pandulph, the pope's legate, during the reigns of King John and Henry 111. in the sec of Norwich, and afterwards attempted to be made \\n\- versal by the Popes Clement V. and .lohn XXII. about the beginning of the fourteenth century. The first fruits jirimitioi, or annates, Avere the first year's old j)rofits of the s])iritual preferment, according to a rate or valor made under the direction of Pope Innocent IV. by Walter, Bishop of Norwich, in 38 Hen. 3, and afterwards ad- vanced in value by commission from Pope Nicholas III., A. D. 1292, 20 Edw. 1. Which valuation of Po])c Nicholas is still preserved in the Exchequer ((/). Tlie tenths, or decinicc, were the tenth part of the annual profit of each living l)y the same valuation." When the first (a) 12 Co. 45. (c) Vol. i. p. 283. \h) 4 IiLst. 120. Id) 3 Inst. 154. TAXES. 1725 fruits and tenths were transferred to the king by 26 Hen. 8, c. 3, confirmed by 1 Eliz. c. 4, commissioners Avere ap- pointed in each diocese to make a new valor beneficiorum, by which the clergy are at present rated. This is com- monly called the King^s Books, and a transcript of it is given in Ecton's Thesaurus, and Bacon's Liber Regis (e). The reason alleged by the canonists for the exaction of these first fruits by the pope was, pro conservando decenti statu suo, ut qui omnium curam. habet de communi alatur {/). In the 34 Edw. 1, 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 pope, and princi[)ally con- cerning 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 effect he Avrote to the pope ; and thereupon the pope relinquished his demand of first fiaiits of abbeys ; in Avhich parliament the first fruits for two years were granted to the king (^). In the 50 Edw. 3, the commons complain, amongst other grievances fl'ora the court of Rome, that the pope's collector that year (a thing never before done) had taken the first fruits of every benefice whereof he had made pro- vision or collation ; Avhereas he Avas used to take first fruits only of benefices vacant in the court of Rome (A). In truth this tribute or revenue of first fruits Avas gradually by little and little imposed by the bishop of Rome on such \'acant benefices as himself conferred and bestoAved ; and this Avas often complained of as a A'ery great grievance ; so that in the council at Vienna, Clement V., AA'hoAA'as made pope in the year 1305, forbade the receiving thereof, and ordered the same to be laid aside, and that the tAventieth part of the sacerdotal revenues should instead thereof be annually ])aid to the bishop of Rome ; but this not taking effect, the pope so retained the said annates to liis cxcliequer, as that it long remained one of the most considerable parts of his revenue (/). ((') 1 Bl. Com. 285, with the Tenths, 12 Co. 45. note of Mr. Christian. (r/) I1)i(]. (/) God. Kep. Can. 337 ; see (h) Deggc, pt. 2, c. 15. the case of First Fruits and (/) (Jod. 337. 172G PKOrERTY OF THE CIIURCII. Tuiiibs. Tenths, dccimo', are the tenth j)art of the yearly value of all ecelesiastical livings (/t). These tenths the pope (after the cxamjjle of the high priest among the Jews, who had of the Levites a tenth part of the tithes), claimed as due to himself by divine right. And this portion or tribute was by ordinance yielded to the pope in the 20 Edw. 1, and a valuation then made of the ecclesiastical livings within this realm, to the end the pope might know and be answered of that yearly revenue ; so as the ecclesiastical livings chargeable with the tenth (which was called spiritual) to the pope were not charge- able with the tcm])oral tenths or fifteenths gi'anted to the king in parliament, lest they should be doubly charged ; but their possessions acquired after that taxation were liable to the temjioral tenths or fifteenths, because they were not charged to the other. So as the tenths of ecclesiastical livings were not yielded to the pope de jure after the example of the high priest among the Jews, for then he should have had the tenths of all ecclesiastical livings whensoever they Avcre acquired, but he contented himself with what he had got, and never claimed more ; and that he might the better keej) and enjoy that which he had got, the popes did often after grant the same for certain terms to divers of the kings of England, as by our historians appears {J). Taken from By 25 lien. 8, c. 20, s. 2, " No person shall be presented the pope. j^jj(j nominated or commended to the bishop of Rome for the ofhce of an archbishop or bishop, nor send nor procure there for any Ijulls, breeves, palls or other things requisite for an archbishop or bishop, nor shall pay any sums of money for annates, first fruits, nor otherwise for expedition of any such bidls, breeves or palls; but the same shall utterly cease, and no longer be used within this realm." Given to the And by 26 lien, 8, c. 3, s. 1, " The king, his heirs and ^'"o- successors, kings of this realm, shall have from time to time to endure for ever, of every person who shall be nominated, elected, prefected, presented, collated, or by any other means appointed to have any archbishopric, bishopric, abbacy, monastery, priory, college, hos])ital, archdeaconrj', dcanry, j)rovostship, prebend, parsonage, vicarage, chauntrv, free chapel, or other dignity, benefice, or promotion spiritual, of what name, nature or quality soever they be, or to whose foundation, patronage, or gift soever they belong, the fii'st fruits, revenues and profits thereof for one year." (A-) 4 Inst. 120, 121. {I) 2 Inst. G27, 628. TAXES. 1727 Sect. 8. " And lie shall also yearly have united to his im2)erial crown for ever, one yearly rent or jjension amount- ing to the value of the tenth part of all the revenues, rents, farms, tithes, offerings, emoluments, and of all other profits as well called spiritual as temporal, belonging to any archbishopric, bishopric, abbacy, monastery, priory, archdeaconry, deanry, hospital, college, house collegiate, prebend, cathedral church, conventual church, parsonage, vicarage, chauntry, free chapel, or other benefice or pro- motion spiritual, of what name, nature or- quality soever they be, within any diocese of this realm or in Wales (?/2)." By sect. 1, every person, before any actual or real Compounding possession or meddling with, the profits of his benefice, for and pay- shall pay or compound for the first fruits to the king's use, fruits" at reasonable days, and upon good sureties. Sect. 2. " And the chancellor of England and master of the rolls, jointly and severally, or such other persons as the king shall depute by commission under the great seal, shall have power to examine and search for the true value of such first fruits, and to compound for the same, and to limit reasonable days of payment thereof upon good surety by writing obligatory : and if composition be made for the same before the lord chancellor or master of the rolls, then the writings obligatory or money taken for the same shall be delivered to the clerk of the hanaper for the king's use ; and if composition be made before any other persons so dejiutcd by the king as aforesaid, then the same shall be delivered to the treasurer of the chamber or elsewhere as the king by commission under the great seal shall appoint." Sect. 3. AVhose acquittance respectively shall be a suffi- cient discharge. " And such writings obligatory shall be of the same effect as writings obligatory made by any lay person by authority of the statute of the staple ; and, upon certifi- cate thereof into the chancery, like process and execution shall be thereupon had, as upon certificate of Avritings obligatory of the statute of the staple." " x\nd the sura of 8r/. (over and above the stamps) shall be paid for such writing obligatory, and no more ; and 4f/. for an acquittance." By 2 & 3 Anne, c. 20, s. 7, one bond only shall be given for the se\eral payments. By 26 Ilcn. 8, c. 3, s. 3, " Persons so deputed as aforesaid shall every six months deliver to the treasurer of the chamber, or elsewhere to such other commissioners as (m) Bee 2 & 3 Edw. G, c. 20. 1728 ruorERTV of thi: chlkcii. tlic kintj^ sliall appoint, as well all such money as all such specialties and bonds, by indentm-e to be made between them ; and if any such person so deputed, his heirs, exe- cutors or administrators, shall conceal or embezzle any of the said specialties or bonds, and do not deliver them according to the tenor of this act, he shall forfeit his office, and make fine and ransom at the king's will." Penalty on By sect, 4, '' If any person shall enter into the ])ossession °oVr"^iului^''^ or meddle with the profits of his si)iritual i)romotiun before "* he hath paid oi* compounded as aforesaid, and be convict thereof by j^resentmcnt, verdict, confession or witness, before the said lord chancellor, or such other as shall have authority by commission to compound for the same ; he shall be accepted and taken an intruder npon the king's possession, and shall forfeit double value." Value how to In order to ascertain the valuation, it was enacted by be ascertained, gg^ts. 9, 10, that the chancellor of England should have power to direct into every diocese commissions in the king's name under his great seal, as well to the archbisho]) or bishop as to such other persons as the king should appoint, commanding them to examine and inquire of the true yearly values of all the manors, lands, tenements, hereditaments, rents, tithes, offerings, emoluments, and all other profits as well spiritual as temjjoral, appertaining to any such benefice or promotion ; with a clause to be con- tained in every such commission, that they should deduct and allow these deductions following and none other, that is to say, the rents resolute to the chief lords, and all other annual and perpetual rents and charges which any spiritual ]3erson is bound yearly to pay to any i)erson, or to give yearly in alms by reason of any foundation or ordinance, and all fees for stewards, receivers, bailiffs and auditors, and synods and ])roxies ; and with another clause to be contained in their commission, that they should certify under their seals, at such days as should be limited by the said commissions, as well the whole and entii'e value as the deductions aforesaid. Sect. 25. And furthermore, all fees which any arch- bishop, bishoj), or other i)relate of the church is bound yearly to ]iay to any chancellor, master of the rolls, justices, sheriffs, or other officers, or ministers of record, for temporal justice to be done or ministered Avithin their diocese or jurisdictions, were to be deducted b}- the commissioners in their valuation. Inwhatdio- And by sect. 12, every archbishopric, bishopric, and cese to be other benefice and promotion above specified, shall be severally and distinctly rated in the j)roper diocese where TAXES. 1729 they be, Avlieresoevcr their possessions or profits shall happen to lie. The unfortunate consequence of this valuation having been made in Henry the Eighth's time is, that the actual revenue of Queen Anne's bounty averaged for many years only 14,000/. {71). By 28 Hen. 8, c. 11, s. 1, the year in which the first Year when to fruits shall be paid, shall begin and be accounted imme- ^o"""ence. diately after the avoidance ; and the profits belonging to any archdeaconry, deanry, prebend, parsonage, -vdcarage, or other spiritual promotion, benefice, dignity, or office during the vacation (chauntries only excepted), shall go to the successor towards the payment thereof. By sect. 23, a person presented or collated to a par- Incumbeut sonage or vicarage, not exceeding eight marks a year ^3''"S- (that is, according to the valuation then to be made), Avas not to pay first fruits except he lived three years after his admission ; and in the com^^osition there was to be a clause, that if the incumbent died within three years, the obligation should be void. And by 1 Eliz. c. 4, s. 6, " if an incumbent live to the end of half a year next after the avoidance, so as he hath received or without fraud might lawfidly have received the rents and pi'ofits of that half year, and before the end of the next half year shall die or be lawfully evicted, removed, or put out by judgment at common law without fraud ; he, his heirs, executors, administrators and sureties, shall be charged but only with a fourth part of the first fi'uits, any bond or other matter to the contraiy notwithstanding. And if he live for one Avhole year next after such avoidance, and before the end of half a year then next following shall die or be removed as aforesaid; he shall be charged but with half of the first fruits. jVnd if he live to the end of one whole year and an half, and before the end of six months then next following shall so die or be removed, he shall be charged but only with three parts of the fu'st fl-uits. And if he shall live to the end of tAvo whole years, and not be lawfully evicted, removed, or put out as aforesaid, he shall ])ay the Avhole." By 6 Ann. c. 54, s. 5, "every archbishop and bishop shall Within Avhut have four years allowed him, Avhen he shall comjiound for j'.'"/" "'■^'''" the same, for the payment of his first fruits, Avhich shall bishops shall commence from the time of restitution of his temporalties ; pay. and in eveiy year he shall pay one fourth part ; and if he die or ]jc remoAcd before the four years be expired, he shall («) Report of Select Committee, 1837. 1730 rROPKUTV OF THE CIIUUCII. Deans, arch- dcacons, \n-c- liL'iuhirics, bow to jiay. Tciitlis to 1)C ilcdiictt'il out of tlic first fruits. Grants of ex- emption from first fruits and tenths to con- tinue. What livings arc excmjjtcd from first fruits accord- ing; to the valuation in the king's books. l)c (llsc'liarg(Ml of so inucli as did not become due or payable at or before the time of his death or removal, in like manner as the heirs, executors and administrators of rectors and vicars shall be discharged." There were in 1837 two archbishoprics and twenty-three bislioprics liable to first fruits, but only eighteen ])ishoprics liable to tenths; and out of 10,4:98 benefices ■with or without cure of souls, there were only 4,898 which remained liable to tenths, and of that number 4,500 were also liable to first fruits {()). l>y G Ann.c. 54, s. 6, "deans, archdeacons, prebendaries, and other dignitaries, shall compound for their first fruits in like manner as rectors and vicars : and in case of deatii or removal within the time usually allowed to rectors and vicars for payment of their fu'st fi'uits, they shall be in the lilvc condition, and have the same benefit as is allowed to rectors and vicars." And whereas by 26 Hen. 8, c. 3, there was no i)ro\ision for deduction of the tenths of that same year for which the first fruits were due to be paid, vvhereby there became a double charge; therefore by 27 Hen. 8, c. 8, ss. 1, 2, 3, it is enacted as follows : \dz. " for reformation thereof, the king's highness, for the entire and hearty love that his grace bears to the prelates and other incumbents charge- able to the payment of the tenth and first fruits, of his excellent goodness is ])leased and contented that it be enacted, that at the composition, allowance and deduction shall be made of the tenth part out of the first fruits, which tenth shall be paid to the king for that first year." By 1 Eliz. c. 4, s. 7, all grants made to the universities or any college or hall therein, and to the college of Eton and AVinchcster, by any kings of this realm or by act of parliament, for the discharge of first fruits and tenths, shall remain in force. I>y 1 Eliz. c. 4, s. 5, vicarages not exceeding the yearly value of 10/. after the rate and value upon the records and books of the rates and values for the first fruits and tenths remaining in the exchequer (according to the valuation made in the 20 lien. 8), and parsonages not exceeding the like yearly value of ten marks, shall be discharged of first fruits. And the reason Avhy vicarages not exceeding 10/. shoidd be freed of this charge, and parsonages of ten marks should pay, was because the vicarages in former times, and when the valuation was taken, had a great (o) Report of Select Committee on First Fruits, Sess. 1837. TAXES. 1731 income by voluntary offerings, Avliicli falling to little or nothing upon the dissolution of monasteries this favour was afforded them in their first fruits ( /?). And by 6 Ann. c. 24, s. 2, all ecclesiastical benefices What livings with cm-e of souls, not exceding the clear yearly value of f'-o^^^^^t^'^^ 50/. by the improved valuation of the same, shall be dis- fvuits and chai'ged for ever from the first fruits and tenths. tenths accord- Sect. 4. But this shall not discharge any benefices Avith "J^^J" ^^X cure of souls, the tenths whereof were granted away by value, any of her majesty's predecessors in perpetuity. That is to say, it shall not discharge them of such tenths; but, if such livings do not exceed the said clear yearly value of 50/. by the said improved valuation, they shall be dis- charged for ever from. Jirst fruits {q). Sect. 7. " Also this shall not diminish any annual sum, stipend, pension or annuity heretofore granted to any person, body politic or corporate, and charged upon the said revenues of first fi.-uits and tenths or any part thereof; but in case it shall so happen that by discharging such small livings the first fruits and tenths which shall here- afler be collected in any diocese or dioceses shall not be sufficient to pay such annual sums as they now stand charged with, then the whole revenues of the first fruits and tenths throughout the kingdom shall be liable to make good such deficiency, during the continuance of such grants." And for ascertaining the said clear yearly value, the bishops of every diocese or guardians of the spiritualties i^scde vacante), and the ordinaries of peculiars and places of exempt jurisdiction, were required by the said act of 6 Anne, c. 24, s. 3, as well by the oaths of witnesses as by other lawful means, to inform themselves of the clear imi)roved yearly value of every benefice with cure of souls within their respective jurisdictions, the clear im- proved yearly value Avhereof did not then exceed 50/., and were to certifv the same mider hand and seal into the exchequer, Avhich certificate being made and filed in the said court, Avas to ascertain the clear yearly A'alue of such benefices to be discharged. , Also, by 1 Eliz. c. 4, s. 8, the dean and canons of the ch.xwl in free chapel of St. George Avithin the Castle of AVindsor, Windsor cx- and all the possessions thereof, shall be discharged of tenths ^'"i^^f' f'"'" , dn , r 'j. ni"st fruits and first fruits. tenths. By 1 Eliz. c. 4, s. 13, also, " nothing herein shall charge Hospitals and any hospital or the possessions thereof employed for the schools cx- (p) Deggc, pt. 2, c. 15. (q) G Anne, c. 27, s. 1. 1732 rRorEUTY of the ciiukcii. cmptcd from relief of poor pcoplc, or any school, or tlie possessions or first fruits aud revenues thereof, with the iiavmcnt of tenths or first tenths. !• •. 1? iruits. Lessor to pay By 26 Ilcn. 8, c. 17, farmers and lessees of any manors, first fruits and jorclshiijs, lands, parsonafTcs, vicarao^es, portions of tithes, tenths and not , » ' ,. ' ^ '^ t.- i 7 • . i the lessee. or other ])ronts or commodities belonging to any arch- bishoji, bishop, or other prelate or s])iritual person, or sj)iritual body corporate or politic, shall be discharged of first fruits or tenths ; but the lessors and owners shall pay the same. Account of 13 y I Vict. c. 20, s. 8, " The treasurer for the time l)elng tenths payable of the bounty of (^ueeu Anne shall, upon or immediately to i)e sent to after the receipt of every return of institutions made l)y the elciks on insti- bisliops of the respective dioceses in England or A\'ales, "^'^"' or other ordinaries, 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 for or in respect of the first fruits and yearly tenths of sxich benefice, and of the times and manner of making such payments." Notice of ar- Sect. 9. " When and as often as it shall ajjpear to the seurto*thc treasurer for the time being of the governors of the bounty party omitting of" Quccn Anne that any j^erson liable to the ])aymcnt of t^ l"iy- first fruits or tenths shall have omitted or neglected to ])ay the same respectively for one calendar month over or after the proper time for such payment, the said treasurer for the time being shall thereupon give to each such person a notice in writing, or transmit the same by the post ad- dressed to him at the place of residence belonging to the benefice or other ecclesiastical preferment in resjiect of which such ])aymcnt is required, or other his usual ])lace of residence, if known to the said treasurer, stating the amount then appearing to be due from such person for or in respect of first fruits and tenths respectively ; and that such notice shall from time to time be repeated as often as the said treasurer may deem expedient ; and that in j)articular between the twenty-ninth day of September and the twenty-fifth day of December in every year such a notice shall l)e given, sent or transmitted as aforesaid to every archbisho]), bishop, or other dignitary, rector, vicar or other person from whom any first fruits or yearly tenths or any sum or sums of money in respect thereof, may then ap))ear to be due, to the end that the payments of such first fruits and tenths may in no ease be omitted or neglected through ignorance or inadvertence." Provisions of Sect. lU. " All the laws, statutes aud pro\isions touch- TAXES. 1733 ing or concerning the said revenues of first fruits and former acts rc- tentlis, and the imposing, charging, assessing and levying, latmg to first and the true answering and payment of the said first fruits tenths ^to^con- and tenths, or touching the charge or discharge or altera- tinue in force, tion of thera or any of them, or any matter or thing relat- except wliere ing thereto, which were in force immediately before the ^^t^^ ''^ passing of this act, and Avhich are not hereby or hereinbefore altered or repealed, shall be, remain and continue in their full force and effect, and shall hereafter be observed and put in due execution according to the tenor or purport of the same and every of them in all things, excepting such as are in or by this act altered or repealed." By 26 Hen. 8, c. 3, s. 8, the tenths are to become due Times of pay- yearly at the feast of the Nativity of our Lord God. ment of tenths. And by 3 Geo. 1, c. 10, s. 3, if any person charged with the payment of tenths shall not pay or duly tender the same yearly before the last day of April succeeding the feast of the Nativity whereon the same shall become due; then upon certificate thereof made by the collector or receiver, on or before the first day of June following, he shall be alloAved upon his account all such sums as any persons against whom such certificates shall be made should or ought to have paid. And in every such case the trea- surer, chancellor and barons of the exchequer shall issue upon every such certificate such process as to them shall seem proper and reasonable, against every such person against Avhom such certificate shall be made, his executors or administrators, wdicreby the same may be truly levied and paid to the said collector or receiver. And every sum so levied and paid the collector or receiver shall bring to account, and charge himself therewith in his next account. By 26 Hen. 8, c. 3, s. 15, and 2 & 3 Edw. 6, c. 20, Forfeiture on persons making default in payment Avere to be deprived of nonpayment of their benefice ; and the reason of this severe penalty was ^" '^' because upon the Beformation many clergymen scrupled and denied to pay these tenths to the king, being (as they supposed) a duty properly due to the pope (r). But now by 3 Geo. 1, c. 10, s. 2, persons making default of payment shall forfeit double value of the tenths. By 26 Hen. 8, c. 3, s. 12, the bishops were charged to Tcntlisa collect the tenths, and upon their certificate into the ex- charge upon chequer on non-payment by any incumbent, process was ^,^i^[i"tnitoi^s ' to be issued out of the said court against such incumbent, and successors. his executors and administrators; or for insufficiency of (;■) Deggc, pt. 2. c. 15. 1734 TROrERTY OF THE CHURCH. Tenths a charjic upon cxoiutors, administrators and successors. Case of tenths where thci-c is no incumbent. LIcmhcrs of cathedrals and colleges to pay separately. Collector to give acquit- tances. To pay the tenths into the exchequer. His estate chargeable. thorn, ng-ainst the successors of such incumbent; whereby the kini>; nii^ht be truly answered and paid. And by 27 lien. 8, c. 8, s. 4, in cases whereby the suc- cessor shall be chargeable to the payment of tenths unpaid in the time or life of his predecessor, he may distrain such goods of his predecessor as shall be u])on the premises, and retain the same till the predecessor, if he be alive, and if he be dead till his executors or administrators, shall pay the same ; and if the same shall not be paid in twelve days, then he may cause the goods to be ap])raised by two or three indifferent persons to be sworn for the same ; and according to the same appraising may sell so much thereof as shall pay the same and also the reasonable costs that shall be spent by the occasion of distraining and a]">praising the same ; and if no such distress can be found, then such predecessor if he be alive, and if he be dead his executors or administrators, may be compelled to the payment thereof by bill in chancery, or by action or plaint of debt at common law. But by 3 Geo. 1, c. 10, s. 1, the bishops are discharged fi'om the said collection : nevertheless, all former statutes for the imposing, charging, assessing and levying, and the true answering and payment of the first fruits and tenths, not altered by the said statute of 3 Geo. 1, shall continue in force. And by 7 Edw. 6, c. 4, s. 3, if any promotion spiritual should chance to be or remain in such sort void, that no incumbent could be conveniently provided, the bishops were to certify the same specially ; in which case it is enacted, that the king may levy and take all the glebe lands, tithes, issues or profits of such benefice, until he be paid the Avhole arrearages of the tenths. By 26 Hen. 8, c. 3, s. 22, in cathedral churches and colleges, every distinct head and member shall pay ac- cording to his own respective salary, and not for any others. By 3 Geo. 1, c. 10, s. 2, the collector shall give acquit- tances under his hand to the persons paying the same, which shall be a sufficient discharge ; for every of which acquittances shall be paid the sum of 6cL and no more. And by 7 Edw. 6, c. 4 : 3 Geo. 1, c. 10, s. 2, he shall pay the same yearly into the exchequer before or on the last day of jNIay. And by 34 & 35 Hen. 8, c. 2 ; 13 Eliz. c. 4 : 27 Eliz. c. 3 ; 3 Geo. 1, c. 10, s. 2, such collector and receiver, his lands and tenements, shall stand charged for the true payment of such sums as he shall receive. TAXES. 1735 And by 26 Hen 8, c. 3, s. 17 ; 3 Geo. 1, c. 10, s. 2, no Passing Lis officer of tlie excliequer shall take of any such collector or accounts. receiver any reward for making his account or quietus est in the exchequer, on pain of forfeiting his office, and making fine at the king's will. By 6 & 7 Will. 4, c. 77, one of the objects of the act, Apportion- which is to be can-ied into effect by the ecclesiastical "''C'.^t of iii-st commissioners, is, that on the alteration of the incomes of incomes of^^ the several sees made according to that act the first fi:uits bishops. shall be apportioned, so as to leave the same aggregate sum payable to the governors of Queen Anne's bounty, but to divide that sum pro rata according to the new incomes of the several sees, throwing also a portion of the charge on the excess of income of the sees of Durham and Ely, which is received by the commissioners for the purposes of their general fund. The same ride was to be applied to the tenths. By 4 & 5 Vict. c. 39, s. 4, where the estates of holders On estates of dignities, prebends and offices are vested in the com- '^este'i in com- missioners, the holders thereof are to be discharged from all liability to pay first fruits and tenths ; and the com- missioners are yearly to pay over to the treasurer of Queen Anne's bounty one-twentieth of the estimated first fi-uits of the estates as an average compensation for the loss of the first fruits; and are also to pay the regular tenths of all these offices and of the sinecure rectories in their possession annually to the said treasurer. It will be shown hereafter how the receipt and manage- Present appH- ment of all first fruits and tenths has now been given to cation of lirst the governors of Queen Anne's bounty (^q). The use of the tenths'^"' funds by way of loans to the incumbents of benefices for the building and repairing of their houses, the purchase of small portions of glebe, &c. has been already men- tioned (?•). The idtimate application of the fimds to the augmentation of the poorer benefices and otherwise to the relief of spiritual destitution will also be mentioned here- after. Sect. 2. — Land Tax. Besides the liability to first fruits and tenths, ecclesias- tical property in England, in common with all other real estate, is subject to land tax. This tax has been often imposed at various periods of History of our history, but the act which first put the tax and the *^''^-'^- assessment of it on a regular footing was 38 Geo. 3, c. 5. {q) Vide post, Cliapter on Queen Anne's Bounty, (r) Vide supra, Part V., Cliap. 11. laud tax. 1730 rROPERTY or the ciiURcn. This act expressly (l)y sect. 4) cliariifed all manors, lands, tithes, annuities and other yearly profits and all heredita- ments ; and special ])rovision is made for the seizing and sale of tithes, where the tax on them is unpaid (by sect. Ecdcmption of By 38 Geo. 3, c. 60, various provisions were made for the redem]ition of land tax by persons having any interest in the land, and for keeping the tax on foot as an annuity in favour of the redemption, -where his interest was only a partial one (sect. 37). But these provisions, except as to contracts already made or begun, arc repealed by 42 Geo. 3, c. 116. There Avas also an act, 39 Geo. 3, c. 21, which Avas repealed by the same act. fVibon V. In the case of fVilso?i y. Grey (s), a contract for the '■^^ sale of lands, Avitli their ajipurtenances, belonging to a rectory, Avas entered into under the 38 Geo. 3, c. 60, and 39 Geo. 3, c. 6, which enabled ecclesiastical corporations to sell lands for the redemption of land tax. Before the payment of the purchase-money into the Bank of Eng- land, as directed by the acts, and the execution of the con- Acyance, the 39 Geo. 3, c. 21 was ])assed, AAdiich enacted that no minerals under lands belonging to any ecclesiastical corporation Avhich should be sold shoidd pass to the pur- chaser ; and that the provisions of this act should, in the execution of the former acts, be applied as if they had been specially enacted in those acts : — The conveyance did not pass the minerals except by general Avords. It Avas holden, nevertheless, that the minerals passed to the purchaser. Corporations By 42 Gco. 3,c. 116, s. 9, " It shall be lawful for all bodies and trustees politic and corporate, and companies, notAA'ithstanding any poses may con- Statutes of mortmain or other statutes or acts of parliament tract for the to the contrary, and for all feoifees or trustees for charitable redemption of ^j. q{\^qy public purposes, haAang any estate or interest in any manors, messuages, lands, tenements, or heredita- ments Avhereon any land tax shall be charged, to contract and agree for the redemption of such land tax or any part thereof." All persons Sect. 10. " It shall also be laAvful for all other persons (excci)t tenants J^j^-ving any cstatc or interest in any manors, messuages, of crown lands Innds, tenements, or hereditaments Avhereon any land tax &c.) may con- shall be charged (except tenants at rack rent for any term tract for re- ^f years, or from year to year, or at Avill, and except land-tax. tenants holding under the crown any lands or tenements Avithin the survey and receipt of the exchequer or the duchy of Lancaster, or, under the duke of CornAvall, any (.9) 3 L. Pt. Eq. 117. I TAXES. 1737 lands or tenements belonging to and parcel of tlie ducliy of Cornwall, for any term of years, or from year to year, or at will), to contract and agree for tlie redemption of sucli land tax or any part thereof." It Avas holden in a case turning on a similar section in tlie act of 38 Geo. 3, c. 5, that an incumbent of a benefice is a person entitled to redeem the land tax, and that the tax may be kept on foot for the benefit of his assignees or representatives (t). By sect. 15, "It shall be lawful for the governors of Governors of the bounty of Queen Anne for the augmentation of the Q"een Anne's maintenance of the poor clergy to contract and agree for contract for the redemption of the land tax charged or hereafter to be redemption of charged upon the lands, tithes, or other profits arising the land tax ft^•• T ' • ,T ' ji • r*ji on Jivinijs not •om any living or livings withm the meaning ot the contracted for charter granted in the reign of Queen Anne, or any act by incumbents. Qr acts now in force directing the application of such bounty, which shall not have been contracted for by the incumbent or incumbents thereof." Sect. 16. "It shall be lawful for the trustees for the Trustees of time being of any trust property heretofore given by any property given will for the purpose of being laid out in the purchase of lands qE the poor or impropriate tithes for the benefit of the poor clergy in clergy may England, "svith such consent as is required by such will, to contract for contract and agree for the redemption of the land tax ^he land tax charged or hereafter to be charged upon the lands, tithes, on livings. or other profits arising from such living or livings be- longing to the Church of England as the tiiistees for the time being, with such consent as aforesaid, shall think fit." Sect. 17. " Where the land tax charged upon the Patrons of glebe lands, tithes, or other profits of any living or livings livings may in the patronage of any college, cathedral church, hall, or ^^^ redemption house of learning in either of the universities of Oxford or of the land Cambrido;e, or in the patronao-e of either of the colleges of ^^^ thereon not Todf'cinod Eton or Winchester, or of any trustee or trustees for any b„ iDcumi)ents. such college, cathedral church, hall, or house of learning as aforesaid, or in the patronage of any other bodies politic or corporate, or companies, or feoffees or trustees for cha- ritable or other public purposes, or other person or per- sons, shall not then have been redeemed by the incumbent or incumbents of such living or livings, it shall be lawful for the corporations of such colleges, cathedral churches, halls, or houses of learning respectively, or for such other bodies politic or corporate, or companies, or other person (0 Kllderhee v. Amhrnse, 24 L. J., Ex. 49. P. VOL. II. 5 T 1738 TROPERTY OF THE CHURCH. The considera- tion for the re- demption shall he so much in the Three p -r Cents, as will jiroducc a divi- dend exceeding liie amount of the land tax redeemed by ]-10th. Governors of C^ueen Anne's ]5ounty may lay out money in redeeming land tax on livings and in ]jnrchasing rent-charges granted by in- cumbents. or ]iersons aforcstild in Avliose patronage any sticli living or livings shall be, to contract and agree for the redem])- tion of such land tax, upon the same terms and with the same benefits and advantages as the incumbent or incimi- bents of such living or livino-g could or inioht have con- tracted to redeem the same." Sect. 22. " The consideration to be given for the re- demption of any such land tax as aforesaid shall be so much capital stock of public annuities transferable at the ]5ank of England bearing interest after the rate of three jiounds per centum per annum, commonly called the Three Pounds per Centum Consolidated Annuities and the Three Poinids ])er Centum lleduced Annuities, or one of them, as will yield an annuity or dividend ex- ceeding the amount of the land tax so to be redeemed as aforesaid by one tenth part thereof, such capital stock to be transferred to the commissioners ap})ointed by 26 Geo. 3, c. 31, for the reduction of the national debt, in trust for the purposes of this act." By sect. 44, " It shall be lawful for the governors of the bounty of Queen Anne for the augmentation of the maintenance of the poor clergy from time to time to apply any sum or sums of money or other funds which under or by virtue of any laws now in force, or of the charter granted in the reign of Queen Anne, now is or are or hereafter shall be applicable towards the augmentation of any living or livings within the meaning of such laws or charter respectively, in and for the redemption of the land tax charged or hereafter to be charged upon the lands, tithes, or other profits arising from any such living or livings which at any time before or on or after the 24th day of June, 1802, shall have been or shall be contracted for by the incumbent or incumbents of such living or livings (with the consent of the said governors), or which may be contracted for by the said governors in pursuance of this act, and the transfer or payment of the considera- tion for such redem]")tion by the said governors, or by their order or direction, shall, fi-om the quarter day next pre- ceding the making thereof, wholly exonerate and discharge the lands, tithes, or other profits of such living or livings from such land tax, which shall from thenceforth sink and be extinguished for the benefit of such living or li\angs ; and it shall also be lawful for the said governors from time to time to apply any such sum or sums of money, or other fluids as aforesaid, in, for, and towards the purchasing any rent-charge or rent-charges which shall have been or shall be granted under the authority of any of the said recited T.vxES. ' 1739 acts or of this act, by any incumbeut or incumbents of any living or li\dngs which the said governors have already ' agreed or shall hereafter agree to augment; and every such rent-charge, when so purchased, shall be surrendered to the incumbent for the time being of the living upon which the same shall have been charged, to the intent that the same may sink and be extinguished for the benefit of such living or livings." Sect. 45. " It shaU be lawful for the trustees for the Trustees for time being of any trust property heretofore given by any *^° ^°^l clergy will for the purpose of being laid out in the purchase of trust monev in lands or impropriate tithes for the benefit of the poor redeeming clergy in England (with such consent as is required by 1?"*^^^^^ ^^ such will) to apply from time to time any sum or sums of '''" money or other funds which by virtue of such •will now is or are or hereafter shall be applicable for the purpose aforesaid, in, for, or towards the redemption of any land tax charged or to be charged upon the lands, tithes, or other profits arising from any living or livings belonging to the Church of England which at any time before or on or after the said 24th day of June, 1802, shall have been or shall be contracted for by the incumbent or incumbents of such living or livings, with the consent of the said trustees, or of such other persons whose consent is requu"ed by such will, or which may be contracted for by the said trustees, in pursuance of this act ; and the transfer or payment of the consideration for such redemption by the said trustees, or by their order or direction, shall, from the quarter day next preceding the making thereof, Avholly exonerate and discharge the lands, tithes, or other profits of such living or livings from such land tax, which shall from thenceforth sink and be extinguished for the benefit of such hving or livings ; and every such redemp- tion of land tax by virtue of this act, for the benefit of such living or livings, shall be deemed valid and eflfectual in the law, and equivalent, to all intents, constructions, and purposes, to a purchase or purchases of lands or titlies for that purpose under the trusts of such will, any statutes of mortmain or other statute or law to the contrary not- Avithstandino*." By sect. 51, for the purpose of redeeming the land tax Power to sell on lands belonging to persons (other than corporations, fo/' redemption feoffees, or trustees), the persons in possession, but who shall not have the absolute estate (except tenants at rack rent), may sell part of the lands and heriots, for redem]> tion of the land tax, and also rent reseiwed out of lands granted for beneficial leases, or by copies of court roll, or 5 T 2 1740 rRorEiiTY of the ciiLucir. Power to sell may mortgage the lands, or grant any rent-charge to the o7l!"7li''"^'!'°" amount of the land tax{u). By sect. 60, similar powers are given of enfranchising copyhold or customary estates with the approbation of the Court of Chancery. By sect. 67, timber may be cut down, Avith the appro- bation of the Court of Chancery, and the produce applied in the redemption of the land tax, as in cases of real estate, and the land tax shall merge in the lands, unless otherwise ordered by the courts. By sect. 77, the governors of the charity for the relief of the Avidows and children of clergymen, with the consent of the commissioners appointed according to sect. 72, Avhich is, hoAvever, now repealed (x), for regulating and approv- ing all sales made by corporations, may sell lands given by will for redeeming the land tax on other lands v^ested in them. Where the Sect. 78. " AVliere the land tax charged upon the glebe huid tax on lands, tithcs, or other profits of any living or livings in the of aifv'livin"^ patronage of any college, cathedral church, hall, or house hcloiiging to of learning, in either of the universities of Oxford and colleges, &e. Cambridge, or in the patronage of either of the colleges of (u'ciiiecl' \t'ma.Y l^^on or Winchester, or of any trustee or trustees for any he provided for such college. Cathedral church, hall, or house of leai'ning, I)}- sale of any or ill the patronage of any other corporation aggregate, in"' til ere to ^or ^^^^^^ have been or shall be redeemed by or on the behalf grant of a rent- of any such college, cathedral church, hall, or house of charge, hut learning, or by any such corporation aggregate, by virtue &e UiallTe' ^^ ^"^ ^^ ^^^® provisions of the said recited acts or of this entitled to a act, it shall be laAvful for any such college, cathedral rent-charge church, hall, or liouse of learning, or for any such trustee liviii" unless ^^' trustees thereof respectively as aforesaid, or for any such it he declared Corporation aggregate, to proAdde for such redemption by otherwise at gQ^je of any lands, tenements, or hereditaments belonging presentation. ^" such corporations respectively, or by the grant of any rent-charge Avhich they could or might respectiA^ely laAvfully make for the redemption of any land tax charged on the lands belonging to such corporations, and the land tax so redeemed sliall be fortlnvith extinguished ; but every such college, cathedral church, hall, or house of learning re- spectively, or such corporation aggregate, shall neverthe- less be entitled to an annual rent-charge issuing out of (u) It seems tliat under Uiis Court of Chancery held the title section the vendor may not him- made through liim a bad one self be the purchaser; and in a {Grover v. Hmjdl, 3 Russ. 428). case wliere the rector purchased (.r) By .85 & .30 Vict. c. G3. in the name of his curate, the TAXES. 1741 sucli living equivalent to the amount of the land tax re- deemed, unless it shall be declared in Avriting under the common seal of the body or bodies having such right of patronage or nomination, at the time of presenting or nominating any clerk or clerks to such living or liAangs, that such rent-charge shall be suspended during his or their incumbency or resj^ective incumbencies, which de- claration the body or bodies entitled to nominate to such living or livings shall from time to time be competent to make : Pro^^ded alwa3's, that such suspension shall be "without prejudice to the right of the said body or bodies respectively to recover such rent-charge after the next or any future avoidance : provided also, that any declaration made by any such body at the time of redeeming the said land tax shall be as available during the incumbency of the then rector> vicar, or curate, as if it had been made at the time of his being preferred to such living." Sect. 79. " Where any ecclesiastical rector shall in Where any right of his rectory be entitled to the patronage or dona- I'ectoi- shall he tion of or to any vicarage or perpetual curacy, and there patronage of shall not be any glebe land belonging to such vicarage or any vicarage perpetual curacy which shall be eligible or proper to be °^ perpetual sold for the purpose of redeeming the land tax charged on the'laml tax the glebe lands, tithes, or other profits thereof, and such on the glche, land tax shall have been or shall be redeemed by such ^'i- ^'^'^^' ''^ ecclesiastical rector, then and in such case it shall be law- ]j;,j^^ j,g ^^^y ful for such ecclesiastical rector, whether he shall be also provide for incumbent of the vicarage or perpetual curacy or not, to such redemp- provide for the redemption of such land tax by sale of part p^-t of the of the glebe lands belonging to such rectory in the same glebe belong- manner in all respects as he could or might provide for the !"= ^^ the rec- I'edemption of the land tax charged on the glebe lands, incii'mbcnt of tithes, or other profits thereof, and the land tax so re- the rectory, deemed shall be forthwith extino-uished : but whenever y^^*^" "°*'. ^'°''^" T 1 1 , 1 • ,1 ing the vica- and so Jong as such rectory and vicarage or perpetual rao-e, &c. shall curacy respectively shall be held by different incum- be entitled to bents, the incumbent for the time beine; of such ecclesias- ''^" •mnual tical rectory shall be entitled to an annual rent-charge o^t of the issuing out of the vicarage or perpetual curacy equivalent vicarage. to the amoimt of the land tax charged thereon at the time of such redemption as aforesaid." Sect. 80. " No mines or minerals, or seams or veins of Mines, &c. coal, metals, or other profits of the like nature, belon"ino- to f^^'^'^ "°* l''^^^ ■-1 -, , , 1 T,, bv conveyance any manors, messuages, lands, tenements, or hereditaments, ^j ]a„,i .soM, which shall be sold l:)y any bishop or other ecclesiastical nor advowaons, corporation aforesaid, for "the purpose of redeeming any &'■• though ap- land tax, whether the same shall be opened or unopened, ^mi.'^" 1742 niorEiiTY OF THE ciiuncn. When re- deemed by bishops. A^'hcn by re- versioners. Governors of Queen Anne's liounty and trustees of any property given for the benefit of the poor clerjry may purchase land tax for aug- menting livings, which shall issue as a fee-farm out of the lands. nor any I'lglit, title, or claim to open or -work tlie same, nor any advowson or right of patronage or presentation to any living or ecclesiastical benefice, or right of nomination to any perpetual curacy, shall pass by any conveyance of such manors, messuages, lands, tenements, or heredita- ments, either by express or general words in such convey- ance, although such advowson, right of patronage or pre- sentation or nomination, may be appendant or appurtenant to such manors, messuages, lands, tenements, or heredita- ments ; and such mines or minerals, seams or veins of coal, metal, or other profits aforesaid, together with all proper and necessary powers for opening and working the same, and such advowsons, rights of patronage or presentation, or nomination, shall be always absohitely excepted and reserved to such bishops or other ecclesiastical corporations aforesaid, as fully and effectually, to all intents and pur- poses, as if the same were in such conveyance expressly excepted and reserved." Sect. 88, made provision as to the land tax Avhen re- deemed by bishops or other ecclesiastical coqiorations on lands customarily let by them, and as to the mode of estimating the future rent on these lands. By sect. 123, where any person having an estate other than of inheritance shall redeem the land tax out of his own property, the estate shall be chargeable with the amount of the stock transferred or money paid, and a yearly sum by way of interest equal to the land tax re- deemed ; but reversioners shall be liable to payment of the interest only from the time of their coming into possession; and when the land tax has been redeemed by reversioners they shall be entitled to a yearly sum equal thereto until the estates vest in them {x). By sect. 161, the first part of Avhich is now repealed (y), " It shall also be lawful for the said governors of the bounty of Queen Anne, notwithstanding any such statutes or law to the contrary, to acce[)t and take any land tax which shall have been so ])urchascd as a fee-farm rent as aforesaid, and which shall be given or bequeathed to them by any deed, will, or otherwise, for the pm'pose of aug- menting any such living or livings as aforesaid, and to apply the same for or towards the augmentation of such living or livings accordingly, and the incumbent or in- cumbents for the time being of such living or livings shall hold and enjoy such land tax, and all powers and remedies (x) See Kilderhce v. Amhrone, 2-i L. J. Ex. 49, sxqjra, p. 1737. {y) By 35 & 3G Vict. c. 03. TAXES. 17-1:3 for the recovery thereof, in the same manner as if such land tax had been purchased by the said governors, and annexed to such Kving or livings in pursuance of this act." Sect. 162. "Every gift or disposition of any land tax Gifts of land which shall have been redeemed under the pro-visions of ^^^ redeemed the said recited acts, or which shall be redeemed or pur- mcntiition'of chased under the provisions of this act, made by the person any living or persons entitled thereto by deed, v.'ill, or otherwise, for shall be valid. the augmentation of any living or livings v>'hatever, shall be valid and effectual ; and such land tax shall be held and enjoyed by or for the benefit of the incumbent or in- cumbents for the time being of the living or livings which shall be so augmented thereby, according to the tenor of such deed, will, or instrument of gift ; any statutes of mortmain or other statute or law to the contrary notwith- standing." By 54 Geo. 3, c. 173, s. 6, " For the purpose of redeeming Sales by rec- auy land tax by any rector or vicar, or for the pm-pose of *?''s '"^"^ raising any money for reimbursing the stock or money previously transferred or paid for the redemption of such land tax, or for purchasing and assignment of such land tax, under the powers and provisions of the said acts, or any of them, the land sold or proposed to be sold for those purposes, or any of them, under the powers of the said acts or any of them, shall not necessarily be confined to such a quantity of any lands belonging to such rector or vicar as shall appear to the commissioners authorizing the same necessary to be sold for such purposes, but that any sale of lands hereafter to be made for any of the purposes aforesaid shall be deemed and considered good and effectual sales, notwithstanding the restrictions contained in any of the said acts, although the lands so sold, or proposed to be sold, shall aj^pear to the said commissioners more than shall be necessary for the purposes thereof; provided the said commissioners shall be satisfied that such proposed sale shall, under all circumstances, be beneficial or likely to prove beneficial to the rector or vicar making such sale, and to their respective successors ; and pro\aded the ordi- nary shall signify his consent to such sale, by any writing under his hand, to be produced before the said commis- sioners." By this act and many previous ones provision Avas made Disebarge of for exempting in certain cases benefices or charitable insti- small livings tutions having an annual income of less than 150/. Tliis provision was greatly extended by 57 Geo. 3, c. 100, which, after reciting what had been done towards the 1744 rROPEUTY OF THE CIIUIICII. Disihnrsc of cxonenitiou of" small livings and charities under the last- f'""'"/'^!i"^'^. nicntioncd acts and others now expired, and fufther recit- ing- that " it may be expedient to angment the incomes of " other small livings or other ecclesiastical benefices and " of" charital)le institutions not already exonerated fi'om " land tax," proceeds to enact that two or more of the commissioners appointed under the great seal pursuant to 54 Geo. 3, c. 173, might " direct the exoneration and dis- " charge of the land tax charged upon the messuages, " lands or other hereditaments belonging to any livings " or other ecclesiastical benefices or charitable institu- " tions, in cases where the whole clear annual income of " such livings or other ecclesiastical benefices or chaiit- " able institutions respectively shall not exceed the sum of " 1501. , without the transfer or payment of any considera- " tion for the same, in the manner and under the directions " and restrictions in this act mentioned." By sects. 2, 3, incumbents are to send in statements of the value of their livings for this pui'pose. By sects. 4, 6, the commissioners are to certify what lands are discharged of tax. By sect. 5, these provisions shall extend to exonerate farms with AAdiich tAvo or more livings have been jointly augmented through the assistance of Queen Anne's bounty. By sect. 7, small livings never yet assessed to the tax may be exonerated from liability to assessment. Sect. 9 has a provision in aid of tenants at rack rent of lands holden under such small livings. By sect. 17 of the same act,— Siirjilns stock " Where the land tax chai-ged upon any lands, tithes, luisint; l)y q^ otlicr hereditaments belonging to any archi-episcopal iiiade i)v arch- or episcopal see, or to any rectory or vicarage, shall have bislinps", &c. been redeemed by any archbishop, bishoj), rector or vicar niay be applied fQj. ^jjg ^j^ie being, by and out of the private monies aLrMimcntsof belonging to such archbishop, bishop, or rector or vicar, lanil tax re- and it shall happen that any stock shall be standing in deemed. ^],g uf^mes of the commissioners for the reduction of the national debt, or in the name of the accountant-general of the Court of Chancery, or in the names or name of any trustees or trustee on account or for the use of any such archi-e])isco])al or episcopal see, or rectory or vicarage, Avhich shall have arisen from any sale, mortgage or grant, and Avhich shall not have been applied for the purposes for which such sale, mortgage or grant, shall have been made, it shall be lawful for the archbishop or bishop, or rector or vicar for the time being, by and under the direc- TAXES. 1 745 tion and authority of the commissioners appointed or to be appointed by letters patent under the great seal, to treat and agree with the archbishop, bishop, rector or vicar, who shall have so redeemed such land tax, or with the execu- tors, administrators or assigns of such archbishop, bishop, rector or vicar, for the purchase of an assignment from them respectively of the land tax so redeemed ; and for the purpose of completing the })urchase of such assign- ment, it shall be lawful for the said last-mentioned commis- sioners or any two or more of them to order and direct that the consideration for such purchase shall be paid or trans- ferred by sale or transfer of a sufficient part of such stock ; and the governor and company of the Bank of England and the said commissioners for reduction of the national debt, and the said accountant-general and also such trus- tees or trustee as aforesaid, are hereby respectively autho- nzed and required, upon the production of such order, signed by any two or more of the said commissioners under the great seal, by sale or transfer of a sufficient part of such stock, to pay or transfer to the person or }iersons assigning such land tax the money or stock speci- fied in such certificate; and the receipt or receipts of such person or persons shall be sufficient discharges for the money or stock so to be paid or transferred ; and upon any such payment or transfer being made as hereby is directed, and upon an assignment being made of such land tax to the archbishop, bishop, rector or vicar for the time being (and which assignment shall not be liable to any stamp duty), such land tax shall fortliAvith become merged and extinguished for the benefit of the see or living, the hereditaments belonging to which respectively or any of them shall have been charged with the said land tax." Sect. '6.— Rates. It has been said already that by the common law eccle- By conuiion siastical persons were to be quit of tolls, pontage, &c. for l^^- their ecclesiastical goods ; and that, according to the old view of the law, they Avere not, unless expressly charged, made chargeable for any of the general burdens imposed u])on the subjects of the realm, as to liighways, bridges, gaols, watch and Avard, &c. ; but that tlie modern vicAv is otherwise (z). (.v) Vide stqn-a, pp. G2'J — 03 1. 1746 PROrERTY OF THE CHURCH. Poor rates. It lias bccn long liolJcn, thoiigli the law at first was uncertain, that incumbents of benefices are liable to the rates fi^r the relief of the poor according to 43 Eliz. c. 2 (^n). These rates have been imjioscd on them not only in re- spect of their glebes, but also in resp^ect of tithes, even tithes of fish, and apparently CAxn oblations (b) and pen- sions (c). There does not appear, however, to be any authority for the rating of surplice fees. Moile of The house and glcl^e lands of the incumbent will, it assessment. scems, bc rated in the same manner as other lands in the parish. It Avill be seen that several questions have arisen and several cases decided which require consideration as to the way in which tithe or tithe commutation rent-charge is to be assessed. Tithe rent- By the first Tithe Commutation Act, G & 7 Will. 4, t^".'.T. ^^^'^'^ c. 71, s. 69, "Every rent-charge payable as aforesaid " instead of tithes shall be subject to all parliamentary, " parochial and county and other rates, charges and as- " sessraents in like manner as the tithes commuted for " such rent-chai'ge have heretofore been subject." What dednc- "ji^q principles upon which tithe or corn-rents in lieu of iiiade'in ratino- tithe used to be valued were thus laid down in the case of a tithe com- Bex V. Joddrell {d ). In this case, by an act of parlia- jmuation rent- ^ent the tithes in a parish were extinguished, and in lieu ^ " ^ ' thereof the rector was entitled to a corn rent. In a rate for the relief of the poor, he was assessed for the fuU amoimt of that corn rent, after deducting the amount of parochial dues levied on the rector. The farmers in the parish, who paid the corn rent to the rector, Avere rated vipon the bo?id Jide amount of the rack rent paid by them to their landlords. It was holden, that as the tithe is an outgoing, the corn rent or compensation for tithes was not to be added, as required by the rector, to the amount upon Avhich the farmer is I'ateable ; and in respect of that portion of the annual profit or value, consisting of corn rent, the rector Avas to be assessed. Another objection Avas, that the farmer's share of the profit ought to have been rated, or that the rector shovdd have been rated proportion ably less ; and this objection prcA'ailed on the ground of inequality, because the farmer Avas rated, not (f?) Rrx V. Turner, 1 Str. 77 ; 385 ; 2 E. & Y. 359. 1 E. & Y. 734; liex v. Carhjon, (c) 2 W. Bl. 1252; 2 E. & Y. 3 T. R. 385 ; 2 E. & Y. 359. 341. {b) Rex v. Carlyon, 3 T. R. (r/) IB. & Ad. 403. TAXES. 1747 for the full vahie of the land which comprised the land- lord's and tenant's profit, but for the rack rent, which Avas the landlord's profit onlj, Avhile the i-ector was rated for the full value of his corn rent ; for it was said, that the ratio which the rent of land bears to its average annual profit or value ought to have been ascertained, and that the rector ought to have been assessed for his tithe rent in the same ratio. It was holden, that in esti- mating the amount at which the rector ought to be rated, the land-tax ought to be deducted from the full amount of his corn rent, provided the tenants of the other lands in the parish paid the land-tax wdthout being allowed for it by the landlord, but not if such allowance was made. It w^as also holden, that the ecclesiastical dues, including tenths, synodals, &c., ought to be deducted, because they are payable in respect of the rectory, the profits of which constitute the only fund out of which they can be paid ; but it was holden, that the expenses of providing for the duties of the incumbency, in respect of Avhich the rector claimed a deduction, were not to be allowed, because such duties ought to be performed personally by the rector. By the act to regulate parochial assessments, 6 & 7 Will. 4, c. 96, passed in the same year as the first Tithe Commutation Act, sect. 1, no rate for the relief of the poor shall be of force, " wdiich shall not be made upon an esti- mate of the net annual value of the several hereditaments rated thereunto ; that is to say, of the rent at which the same might reasonably be expected to let from year to year, free of all usual tenants' rates and taxes and tithe commutation rent-charge, if any, and deducting therefrom the probable average annual costs of the repairs, insurance and other expenses, if any, necessary to maintain them in a state to command such rent : Provided always, that nothing herein contained shall be construed to alter or affect the principles or different relative liabilities (if any) according to Avliich different kinds of hereditaments are noAv by law rateable." Many of the deductions specified in this section are inapplicable to tithe rent-charge ; Avhile a tithe-owner is subject to other charges and outgoings Avhich are not mentioned in this section. The exceptions contained in this section must therefore he taken as instances applicable to one class of property and applied analogically to other classes of property (e). C cSc 7 Will. 4, c. 9G. All rates to be made on the net annual value of the property. Exemptions not universally applicable. ((') Per Coleridge J., in Rccj. v. Goodclnld, E., B. & E. 41; 27 L. J., M. C. 233. 1748 niOPERTY OF THE ClIUKCII. Iii.c V. Capel. Shortly after this act was passed came the decision in Hex V. Cnpel (h). This decision established that tithes are hereditaments under 6 8c 7 AVill. 4, c. 96, s. 1, and that a tithe-owner is rateable at their net annual value, i. e. at such a sum as the tithes might reasonably be ex- pected to let for from year to year, free of the usual tenants' rates and taxes, and deducting the anioimt of ecclesiastical dues payable in respect thereof. J?rfj. V. Good- The next case on this subject, which decided many im- ^^" ■ ])ortant points, is that of Jicj. y. Goodchild (i). This case decided that the following are proper deductions to be made from the I'cnt-charge : — estimated loss by non-payment; estimated law expenses in enforcing payment ; other esti- mated expenses of collection ; all usual tenants' rates and taxes, including therein tenants' property tax, and, where they are charged, lighting rate and general rate ; first- fruits ; tenths ; and ecclesiastical dues. The following deductions, however, Avere not to be made : — land-tax, and any claim in respect of the personal services of the incum- bent, or expenses of providing for the duties of the incum- bency. This last deduction had previously been disallowed in Hex v. Joddrell {k). In the case oi Reg. v. Goodchild, two other claims were made — for the salary of a curate (that is, an assistant to, not a substitute for, the incumbent), and for the amount paid towards the salary of a minister of a district church or chapel in the pai'ish ; and the court held, that where the circumstances were such as to make the employment of an assistant curate morally necessary, his reasonal)lc stipend should form a deduction ; and that if the salary of the minister of the district church was compulsorily payable by the incumbent of the mother church, the incumbent might make this a deduction. Lastly, a claim was made in this case for a deduction in respect of tenants' profits, i. e., that profit which a tenant would ex]iect for imdertaking the trouble and cost of col- lection and the risk of loss, and guaranteeing the jjayment of a fixed rent to the owner of the rent-charge. This question was not decided on the first hearing; but the case being afterwards re-argued, the court held, that the question whether any allowance in respect of this should be made, and the amount of such allowance (if any), de- (/() 4 P. & D. 87; 12 \<\. & (/) E, B. & E. 1; 27 L. J., El. 382; 4 Jur. 88G. M. C. 233. (/.•) 1 B. & Ad. 403. TAXES, 1749 pended on the particular facts of each case, and must be a question to be determined by the sessions ( / ). In the case of Reg. v. Hmokins (m), argued and decided I^e^. v. at the same time as Beg. v. Goodchild, it was holden, that ^^«'^"^'='"*'- no deduction should be made in respect of monies paid annually to Queen Anne's bounty for liquidation of prin- cipal and interest of a mortgage debt, borrowed for the purpose of rebuilding or repairing the residence-house. Two of the points, however, decided in the case of Reg. V. Goodchild have since been other^\^se decided. In the case of Frend v. Tolleshunt ICnights (n), it Avas Frendv.Tolh- holden, that the minister of a district chapel, part of whose slumtKnujlits. endowment consisted in a rent-charge granted under the powers of several statutes by the incumbent of the mother church out of all his rectory, with powers of distress and entry in the event of non-payment, was not liable to be rated in respect of this rent-charge ; though, if he had exercised his power of entry and possessed himself of the tithes, he would have been rateable. And in the subsequent case oi Laivrence v. Tolleshunt Lan-rcncev. Knights (o) it was expi'cssly holden, thereby oveiTuling ^f'^f'-^^''"i^ part of the judgment in Reg. v. Goodchild (^p), that the incumbent of the mother church was rateable in respect of the whole rent-charge received by him, without deduction for the amount compulsorily paid over by him to the minister of the district church. It remains to be seen whether this severe principle will be applied to cases of pensions granted under the Incumbents' Resignation Act, 1871 (y). In Reg. v. Sherford, the Queen's Bench (r), holding Beg.y.Slicr- that the principle of the decision of the House of Lords ^'^^''^■ in The Mersey Docks'' Case [s) is, that all property capable of beneficial occupation is to be assessed to the poor rate irrespectively of the amount of remunerative value to the particular occupier, and that this principle is not consistent (I) E., B. & E. GO: See a (q) Vide sujv-a,\)ix 521-528. very able Report of the Cases of (r) 2 L. R., Q. B. 503 (18G7). ■Rig. V. Goodchild, &c., and Sup- Before this decision the court had plcment thereto, by F. Meadows in Williams v. Llaiujeiiiwen (1 B, Wiiite, Esq. (Shaw & Sons), & S. G99 ; 31 L. J., M. C. 54) 1858. alh>wed this deduction, and in (m) 27 L. J., M. C. 2-48. And Wheeler v. Burmington (1 P.. & S. see Mr. White's Report. 709 ; 31 L. J., M. C. 57) refused («) 1 EL & El. 753; 28 L. J , it in the special circumstances of M. C. 1G9. the case. (o) 2 B. & S. 533; 31 L. J., (.s) 11 H. L. 443; 35 L. J., M. C. 148. M. C. 1. (P) Siqira. 1750 PROPERTY OF THE CIlURCn. ■\vltli tlie decision in Iicf/. v. Goodchil(l{i), in "v\liicli, on rating- a tithe rent-charo-e, a deduction ^vas allowed to the incumbent in respect of the salary of a curate whose services were neccssarj, in addition to those of the incuniLcnt himself, to the due discharge of the duties of the benefice, and which can only be supported on the ground, that the incumbent was bound to employ a curate whom he had to pay out of the subject-matter in res])ect of which he was rated, and the occupation by him of the rent-charge was rendered pro tanto less beneficial, decided that the latter case must, therefore, be taken as oveiTuled, and such a deduction ought not to be alloAved. AVhcthcr com- It seems to be a question turning on the construction jDeiisations in ^f ^\^q particular statute in each case whether corn rents, are or arc not J^m^^iities or land given in lieu of tithes by some local act rateable. of parliament are rateable to the poor or not. In the cases of LrOivJides V. Horne{u), Rex v. Boldero{v), and Rex \. Wistow {x), it was holden that the corn rents were rateable. In Hachett v. Long Bennington (y), land given in lieu of tithes was holden to be rateable. But annuities given in lieu of tithes and charged on land, where the tithes were not extinguished in specie, were holden not to be rateable in the cases of Rex v. Great Hamhleton{z), and Reg. \. Shaiv (a). And where it is expressly provided by the statute that the corn rent shall be fi'ce and clear of all taxes and deductions, it is not rateable (Z»). Ili<:liway It has been said that by the old law incumbents were not considered to be rateable in respect of their benefices to the repair of the highways (c). Ever since, however, the Highway Act of 13 Geo. 3, c. 78, they have been holden rateable in respect of their benefices to the repair of the highways (fZ). The present Highway Act, 5 8c 6 Will. 4, c. 50, by sect. 27, expressly charges " all proj^erty now liable to be rated and assessed to the relief of the pooi'," Avith the highway rates («). (0 Supra. (h) Chnffirld v. Euston, 5 D. & (m) AV. Black. 1252; 2 E. & Y. R. r,75; 3 B. & C. 863; Mitchell 340. V. Furdham, 9 D. & R. 335; 6 B. (i;)4B.&C.4G7;GD.&R.557. & C. 274. {x) 5 Ad. & El. 250; G Nov. & (c) Vide supra, pp. 630, 1745. I\r. 657; 2 II. & W. 95. {d) Rex v. Laaj, 5 B. & C. {y) 16 C. B., N. S. 38; 33 L. J., 702; 8 D. & R. 457; Chanter v. M. C. 1. Gluhh, 9 B. & C. 479. (z) 1 Ad. & El. 145. (e) Rex v. Sussex Justices, 3 (fl) 12 Ad. & El., N. S. 419; Ncv. & M. 263; Rex v. Bucking- 12 Jur. 651 ; 17 L. J., M. C. 137. hamshire Justices, 1 B. & C. 485. rales. TAXES. 1751 It does not seem a settled point Avliether tltlie, or rent- Sewers rates. charge in lieu of titlie, is liable to be rated by the com- missioners of sewers (_/). In Reg. v. Goodc]iild{g\ in the particular circumstances of the case, the rent-charge was holden not to be liable to sewers rate. Apparently, wherever tithe was not charged to sewers rate, the rent-charge in lieu of it is not charge- able ; but in cases where tithe was charged to sewers rate a question may still arise whether the fixed rent-cha,rge in lieu of tithe is or is not now chargeable (h). The glebe and house of the incumbent are apparently liable, like other land and houses, to this rate. It has been decided, in the case of Reg. v. Goodcluldi g), General and that tithe rent-charge in the metropolis is liable to the |is'iting rate general rate and the lighting rate imposed under the pro- visions of the Metropolis Local Improvement Act, 18 & 19 Vict. c. 120, s. 161. There is, apparently, no question as to the liability of the land and house of a benefice to these rates. All houses and lands within the districts to which the Lisihtino; and acts severally apply are liable to be rated to the lighting health rates. rate and the rate for purposes of public health, under the acts 3 & 4 Will. 4, c. 90, and 11 & 12 Vict. c. 63. By 14 & 15 Vict. c. 50, these rates are specially im- posed upon " tithes, tithe rent-charges, moduses, compo- sitions real, and other payments in lieu of tithe;" and it is provided that these tithes and rent-charges shall be rateable to the lighting rate, under 3 & 4 Will. 4, c. 90, in the same proportion of their annual value as land, that is, one-third of the proportion payable by houses and buildings; and to the health rate, under 11 & 12 Vict. c. 63, in the same proportion of their annual value as land used as arable, meadow or pasture gi'ound only, that is, one-fourth of the net annual value. The rector or impropriator of the great tithes is, in the Church rate. absence of any legal custom to the contrary, liable to the repairs of the chancel, and is, in consideration thereof, discharged fi-om the ordinary liability incident to every parishioner to contribute to the repairs of the body of the church, that is, to church rate. (/) See Callis on Sewers, 131; 18 & 19 Vict, c. 120, ss. IGl, Com. Dig. Sewers, E. 5; Wood, 1 165. Inst. 176; SomJyv. Wilson, 3 Ad. (r/) E., B. & E. 1; 27 L. J., & Ell. 248; 23 Ilcn. 8, c. 5; 7 M. C. 233. Ann. G. 33; 3 & 4 Will. 4, c. 22, (h) Sec Mr. White's Report of ss. 13, 14; as to sewers in the Ecg. v. Goodrliild, &c., pp. 75, metropolis, 11 & 12 Vict. c. 112; 76; supra, p. 1748. be recovered. 1752 niopEUTY OF tiik church. Kate under But Avlicrc moucy is borrowed, untlor 5 Geo. 4, c. 36, to 5Geo. 4,c. 36. i-epair or rebuild the church, part of the money may be expended in repairinp; or rebuilding the chancel (z); and the rector or impropriator of the great tithes is liable to be rated towards the repayment of the money so borrowed, and cannot claim exemption from rates levied for this pur- pose, as he could from an ordinary church rate(/r:). The following provisions for the recovery of rates on a rent-charge, and for the power of the owner of the rent- charge to a])peal against the rates, are contained in the Tithe Commutation Acts. How rates and By 6 & 7 Will. 4, c. 71, s. 70, " All rates and charges to charges are to ^yhich any Such rcnt-charore is liable shall be assessed upon the occupier of the lands out of which such rent-charge sliall issue ; and, in case the same shall not be sooner paid by the owner of the rent-charge for the time being, may be reco- vered from such occupier in like manner as any poor rate assessed on him in resjiect of such lands ; and any occupier holding such lands under anv landlord, and avIio shall have paid 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 for the time being, and shall be allowed the same in account with his land- lord ; and any landlord or owner in possession who shall have paid any such rate or charge, or from wdiose rent the amount of any such rate or charge in respect of any such rent-charge shall have been so deducted, or who shall have allowed the same in account with any tenant paying the same, shall be entitled to deduct the amount thereof from the rent-charge, or by all other lawful ways and ©leans to recover the same from the owner of the rent-charge, his executors and administrators ; Provided that the owner of every such rent-charge shall have and be entitled to the like right of demanding, inspecting, and taking copies of every assessment containing such rate or charge, and of appeal against the same, and the like poAver of prosecuting such appeal, and the like remedies in respect thereof, as any occupier or ratepayer has or may have in the case of poor rates, although such rate or charge is herein made assessable upon the occupier, and the owner of the rent- charge is not mentioned by name in such assessment." For the assess- By 7 Will. 4 & 1 Vict. c. 69, s. 8, "All rates and ment and reco- (.]iai-pres to Avhich any rent-charge payable in lieu of tithes very of rates. ^ •' g l j (i) Bippinand Wilsonv. Baslin, (k) Smallhones v. Edney cnul L. K., 2 Adm. & Eccl. 386. See Queen, L. R., 3 P. C. 444; 7 Moo. Rex V. Barker, 6 Ad. & El. 388. P. C, N. S. 286. TAXES. 1753 shall be liable may be assessed upon the OAvner of the rent- charge, and the whole or any part thereof may be reco- vered fi-om any one or more of the occupiers of the 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 Avhom the same shall be assessed, in like manner as any poor rate assessed on such occupier or occupiers in respect of such lands may be recovered, upon giving to such occupier twenty-one days' notice in writing previous to any one of the half-yearly days of payment of the rent- charge, and the collector's receipt for the payment of such rates and charges, or of any part thereof, shall be received in satisfaction 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 j^arish shall amount to for the current half-year in Avhich such notice shall have been given." By 2 & 3 Vict. c. 62, s. 3, "The assessor or collector of Name of each any rate or tax shall, within forty days after the receipt of occupier and ,• • •.• • 11 in j-ii sum charired a notice m -wi-itrng signed by any land-owner or tithe-owner on him to be interested therein, specify in his assessment made for the specified by purpose of collecting and levying such rate or tax the ^'^s^essor on names of the several occupiers of tithes, lands, and tene- owner, ments subject to such rate or tax, as Avell as the sum assessed on the tithes, lands, or tenements held by each such occupier." r. VOL. II. 5 u ( I'^-i ) PART VI. FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. CHAPTER I. INTRODUCTORY. It remains to consider the law applicable to the following subjects : — 1. The fabric of churches and chapels and the ground attached by consecration thereto, apart from the questions of ornament, already treated of under the head of Liturgy and Ritual ( a), and monuments of the dead, treated of under the head of Burial (b). 2. Officers liaving duties connected with the fabric and the churchyards, such as — 1. Churchwardens, Avith their Assistant Sidesmen or Questmen —and herein of the Law of Vestries. 2. Trustees under the Compulsory Church Rate Abolition Act, 1868. 3. Parish Clerks. 4. Sextons. 5. Organists. 6. Vestry Clerks. (n) Vide su2)ra, Part III., Cliap. (h) Vide atqira, Part III., Cliap. XI., Sect. 4. X., Sect. 7. ( 1755 ) CHAPTER 11. CHURCHES AND CHURCHYARDS. Sect 1. — Foundincj of Churclies. 2. — Consecration and Dedication of Churclies. 3. — Chancel. 4. — Aisle. 5. — Churchyard. 6. — Repairs, Alterations and Faculties. 7. — Church Seat. 8. — Church Way. 9. — Church Rate. mauncr. Sect. 1. — Founding of Churches. Dr. Burn observes that the ancient Saxon word is cyrce, Origin of word. the Danish kircke, the Bertie kercke, the Cimbric kirkia or kiirk ; probably from the Greek word Ku^iaxov, belonging to the Lord, or Kupiov oIkoc, the Lord's house ; so that we have lost the ancient pronunciation of the Avord (except in the northern parts of England and in Scotland) by softening the letters c or ch, as we have done in many cases ; which letters the ancient Greeks and Romans always pronounced hard, as the letter k. The ancient manner of founding churches Avas, after the Ancient founders had made their application to the bishop of the diocese, and had his licence, the bishop or his commis- sioners set up a cross, and set forth the ground, where the church was to be built ; and then the founders might pro- ceed in the building of the church : and Avhen the church was finished, the bishop Avas to consecrate it, but not till it was endoAved ; and before, the sacraments Avere not to be administered in it (a). For albeit churches or chapels may be built by any of the king's svibjects, yet before the laAv take knowledge of them to be churches or chapels, the bishop is to consecrate or dedicate the same: and this is the reason, that a church or not a church, a chapel or not a chapel, shall be tried and certified by the bishop {h). (a) Deggc, part i. c. 12 ; Gibs. (h) 3 Inst. 203. 188. 5 u 2 17oG FABRICS AND OFFICEKS OF FABRICS OF TIIF CHURCH. Frcehokl. Power of in- cumbent. Canons as to bell ringing. It is to be boriic in miiul tluit the Iroc-liokl of" churches antl clmrcliyards is in the rector or vicar, the chancel in the rector. In the case of perjx'tiial curates it is questionable ■whether the iVeehokl be not in the lay inij)r()])riator (c). It is ])artly a consequence oi' this hiw as to tiechokl, and ])artly of the law as to the use of all thiiif^s connected with the church beiiifj under the control of the inciunbent, such as the playing of the orjran(^/) during service and the like, that the custody of the key of the church and the ringing of bells on all occasions is subject to his control, and the ringing contrary to his order becomes an ecclesiastical offence; although, on the other hand, some authority in this matter is vested in the churclnvardens. Thus in Lee v. Matthews {e) Sir John Nicholl said, — " The minister has, in the first instance, the right to the possession of the key, and the churchwardens have only the custody of the church under him. If the minister refuses access to the church on fitting occasions, he will be set right, on aj^plication and complaint to higher authorities." In Deicdney v. Good and Ford(f), the churcliAvarden was ordered to deliver np a duplicate key to the chui-ch which he had obtained. By Can. 88 of 1G03, " The churchwardens or questmen, and their assistants, shall not suffer the bells to be rung superstitiously iipon holidays or eves abrogated by the Book of Common Prayer, nor at any other times, without good cause, to be allowed by the minister of the place and by themselves." Can. 111. " The churchwardens shall present all per- sons who, by untimely ringing of bells, do hinder the minister or preacher." Can. 15. " Upon AVednesdays and Fridays, Aveekl}^, the minister, at the accustomed hours of sei'vice, shall resort to the church or chapel ; and Avarning being given to the people by tolling of a bell, shall say the Litany." Can. 67. " When any is jiassing out of this life, a bell shall be tolled, and the minister shall not then slack to do his last duty. And after the party's death (if it so fall out) there shall be rung no more but one short peal, and one other Ijcfore the Inu-ial, and one after the burial." " Although the churchwardens may concur in directing the ringing or tolling of the bells on certain public and (c) Vide supra, p. 309. (d) Vide suj/ra, p. 929. (e) 3 Consist. 173. (/) 7 Jiir., N. S. G73 ; vide Hitching 8 V. Cord intf ley, 3 L. R., Adin. & Eccl. 113 ; et infra, p. 1795. CHURCHES AXD CHURCHYARDS. 1757 " private occasions, tlie incumbent nevertheless lias so far the control over the bells of the church, that he may prevent the churchwardens from ringing or tolling them at undue hours and without just cause. Indeed, as the freehold of the church is vested in the incumbent, there is no doubt that he has a right to the custody of the keys of the church, subject to the granting admission to the churchwardens, for purposes connected with the due execution of their office. Proceedings may be instituted in the Ecclesiastical Court against churchwardens who have ^aolently and illegally persisted in ringing the bells without consent of the incumbent. The citation may be as follows : — ' For ' violently and outrageously breaking into the belfiy of the ' parish church of , and mthout the leave and per- ' mission of the rector, and in defiance of his authority, ' several times ringing the bells in the said church ' " (^). Lord Stowell gave the following opinion on this sub- ject : — " Case. " Churchwardens insist they have a right at all times to ring the bells at the church, to the great annoyance of the rector and family, whose house is close to the church. " Opinion. "■ I think that the bells cannot be rung without the con- sent of the rector ; the 88th Canon is precise to this point, and is, I conceive, binding upon the churchwardens. " I think that the churchwardens might be articled against for breach of the canon, and permitting or direct- ing: the bells to be runo; without and against the consent of : the rector at times not proper or stated for that purpose. If the bells are so constantly rung as really to be what they are described — a nuisance, the parties who are guilty of that nuisance might be punished at the common law, and the mere consent of the churchwardens would not be a sufficient defence to such a prosecution. I do not know that any injunction could 1)C obtained pending such a suit, but a fresh citation might be taken out for each offence. " If the rector could induce them to come to some agreement as to the times of ringing, it would be the most desirable way upon the whole of settling this matter. " AV.ai. Scott. "Doctors' Commons, Jan. 29, 1793." (^0 (.7) Tlie statement is taken tlic last edition of Burn's Ecclc- from an opinion of Dr. I'liilli- siastical Law, vol. i. p. i;}5. moi'e ; it was also contained in (A) Mr. Tokcr's M.SS. p. 333, 1758 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Robbing of churches. Bell-ringing. This Avas SO ruled by Dr. Liisliiiio^ton in Redhead v. Wait if). In Daunt v. Crocker (/<), a criminal suit promoted by the incumbent for ringing the church bells, it was holden by the present judge of the Arches Court, that it is not sufficient to allege that the ringing took place without the consent of the incumbent ; it must be alleged to have been against his express wish. The offence of creating a distiu'bance of divine service in church, or of brawling in the church or churchyard, has been dealt with in former chapters (/). If a man do break and enter a church in the night of intent to steal, this is burglary, for the church is the man- sion house of Almighty God (m). And here is to be noted a diversity between a spiritual man of the church consecrated to the service' of God, and goods dedicated to divine service, or merely ecclesiastical ; lor laying of violent hands upon a person in holy orders the Ecclesiastical Court used to have conusance, but for the violent taking away or consuming of the ornaments of the church or goods dedicated to divine service, that court (Lord Coke says) has no conusance, for that it is not given to them ; as for taking away of the Bible, the Ijook of Common Prayer, the chalice, and the like, or for the taking away of an image out of the church ; but remedy must be taken for these at the common law (n). Nevertheless I am disposed to agree wdth Dr. AVatson, who says, a libel may be also in the spiritual covirt against the offender, pro salute anima> et reformatione morum, although not to recover damages (o). Sanctuary. Anciently, the church and churchyard was a sanctuary, and the foundation of abjuration ; for whoever 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 sanctuary, could not abjure. This abjvu-ation was, when a person had com- mitted felony, and for safeguard of his life had fled to the sanctuary of a church or church}ard, and there before the coroner of that place, 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 cormtry into Avhich he Avas to be exiled might not be amongst infidels ( 7? ). (0 6 Law Times, N. S. 580. (m) 3 Inst. 64. {h) 2 L. R, Adm. & Eccl. 41. (n) 2 Inst. 492. (0 Vide supra, Part III., Cliap. \o) Wats. c. 39. XI., Sect. 5, pp. 936—940; Part 0>) 3 Inst. 115. IV., Chap. I., p. 1083. CHUKCHES AND CHUKCHYARDS. 1759 But by 21 Jac. 1, c. 28, s. 7, it was enacted, that no sanc- tuary, or privilege of sanctuary, shall be admitted or allowed in any case. By which act, such abjuration as was at the common law, founded upon the privilege of sanctuary, was wholly taken away. And the law was so favourable 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 back again to prison, upon his arraignment he might have pleaded the same, and should have been restored again to the sanctuary (//). Sect. 2, — Consecration and Dedication of Churches (?■). The law (as was said before) takes no notice of churches No church till or chapels till they are consecrated by the bishop : but the consecration, canon law supposes, that, with consent of the bishop, divine seridce may be performed, and sacraments administered in churches and chapels not consecrated ; inasmuch as it pro- vides, that a church shall have the privilege of immunity, in which the divine mysteries are celebrated, although it be not yet consecrated : and there are many licences to that effect (granted on special occasions) in our ecclesi- astical records {s). This, however, is an exception to the general rule, " that a church is to be consecrated as soon as may be." Another exception obtained in cases of ex- treme necessity ; for if the church was destroyed by fire, the service might be performed in chapels, tents, or in the open air, before the consecrated altar table {t). And after a new church is erected, it may not be conse- No consccra- crated, without a competent endowment. And this was *^°l^ before made a law of the Church of England in the 16th Canon of the Council of London, " A church shall not be conse- crated, until necessary provision be made for the priest." And the canon law goes fiu'ther ; requiring the endow- ment, not only to be made before consecration, but even to be ascertained and exhibited before they begin to build. And the civil law is yet more strict ; enjoining, that the endowment be actually made, before the building be begun (k). (q) 3 Inst. 217. (/) De Cons. i. 30; Inst. J. C. (r) Vide 2 Ought. 249, & sqq. ii. 18. («) Gibs. 190 ; Dc Cons. i. 12; (u) Gibs. 189. X. 3, 49, 9. 1760 FABltlCS AND OFFICERS OF FABUICS OF THE CnURCII. Which cudowmciit -was coninionly made, by an allot- ment of" manse and glebe by the lord of the manor, who thereby became pati'on of the church (.1). Other ])er9ons, alt^o, at the time of dedication, often conti-ibuted small portions of ground : which is the reason -vvhy in many parishes the glebe is not only distant from the manor, but lies in remote divided parcels (//). Consecration By a constitution of Otho, " The dedication of churches eDjoincil, jg known to have had its beginning under the Old Testa- ment, and "was observed by the holy fathers imder the Is en- Testament ; under which it ought to be done with the greater care and dignity, because that under the Old Testament were only offered sacrifices of dead animals, but under the New Testament is offered for us upon the altar by the hands of the priest, the heavenly, living and true sacrifice, the only begotten Son of God. Wherefore the holy fathers provided, that so sublime an oflEice should not be performed (unless in case of necessity) but in places dedicated. Now^ because we have seen and heard, that so wholesome a mystery is contemned, or at least neglected, by some ; having found many churches, and some of them cathedrals, which, although they have been built of old time, yet have not as yet been consecrated with the oil of sanctification : therefore, being desirous to remedy so dan- gerous a neglect, we do decree, that all cathedral, con- ventual, and parochial churches, Avhich are now built and the walls thereof perfected, be consecrated by the diocesan bishops, or others authorized by them, witliin two years : and let it be so done within the like time, in all churches hereafter to be built. And to the end that so wholesome a mystery and ordinance may not ]^ass into contempt ; if such places be not dedicated within two years from the time of the finishing thereof, they shall be interdicted fi*om the solemnities of the mass, until they be consecrated, unless they be excused for some reasonable cause. More- over, by the present ordinance, we do forbid the abbots and rectors of churches to ])ull down ancient consecrated churches, under pretence of building larger or more beau- tiful, without licence and consent of the diocesan : and the diocesan shall diligently consider, Avhether it be expedient to grant or to deny such licence ; and if he shall grant the same, let him take care that the work be finished as soon as may be" (z). (.r) Vide sujyro, p. 1450. (i) Atlion, 7. (j/) Ken. Par. Ant. 222, 223. CHURCHES AND CHURCHYARDS. 1761 Interdicted from the solemnities of the Mass.'] — That is, from the solemn or high mass ; but not from the common celebration of mass, or other infeiior offices {a). And also by a constitution of Othobon : " The i-ector or vicar of an unconsecrated church shall apply to the bishop, (if it can conveniently be done,) otherwise to the arch- deacon that he may apply to the bishop, within a year after the building of the church, for the consecration thereof: upon pain that such rector, vicar or archdeacon, making default, shall be suspended from their office till they comply : and the bishop shall exact nothing there- fore, but the accustomed procuration" {b). The consecration of churches may be performed, indif- Time of con- ferently, on any day : so it was established by a decretal secration. epistle of Pope Innocent II. (c). And according to the calculation of learned men, Constantine's famous dedica- tion of the church at Jerusalem, in a full synod, Avas on a Saturday, and not on the Sunday (d). And this consecration ought to be in the time of divine service. The gloss upon the canon law makes a doubt Avhether this is not of the substance of the consecration : but, be that as it will, it is certainly very decent (e). The Emperor Justinian, in his care of the church, has Form of con- prescribed a form of consecration of churches (or rather of secration. the gi'ound upon Avhich it is to be built) in this manner : his law is, " That none shall presume to erect a church, until the bishop of the diocese hath been first acquainted therewith, and shall come and lift up his hands to heaven, and consecrate the place to God by prayer, and erect the symbol of our salvation, the venerable and truly precious rood "(/)• J^hc canon law also requires, that the bishop should mark out the consecrated ground, erect the cross, celebrate mass, &c. {g). In the Church of England, every bishop is left to his own discretion, as to the form of consecrating churches and chapels: only by the statute of the 21 Hen. 8,c. 13 (/f), for limiting the number of chaplains, it was assigned as one reason why a bishop may retain six chaplains because he mixst occiipy that number in tlie consecration of churches. There Avas a form drawn up in the convocation, in the year 1661, (occasioned, as some think, by the offence taken at Bishop Laud's ceremonious manner of consecrating {a) Athon, 7. (/) God. 47; Nov. 5, cap. 1; {b) Ibid. 83. Nov. 131, cap. 10. (t) X. 3, 40, 2. (ry) De Cons. 1. (fZ) Gibs. 180. (It) Now repealed. {f) Ibid. 1762 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. St. Katlicrinc's Crccd-Cliurcli in London,) but this was not autliorizcd nor published (z). Bishop Laud's AVhich form of Bishop Laud's in the aforesaid instance, ^^™' is said (but probably the account is inaccurate) to have been thus: He came on a Sunday, beino; the 16th day of January, 1630, to the Avcst door of that church; and some persons, who were prepared for that puqiose, spoke aloud these Avords, Open, open ye everlasting doors, that the King of Glorg may enter in. Immediately the doors were opened, and the bishop and some other doctors entered ; then he kneeled, and with eyes lifted up, and his arms spread, he pronounced the place to be holy, in the name of the Father, and of the Son, and of the Holy Ghost. Then he threw some of the dust of the church into the air, several times, as he approached the chancel ; and when he came to the rails of the communion table, he bowed towards it several times. Then they all went round the church, repeating the 100th psalm, and afterwards a form of prayer, which concluded thus : " We consecrate this church, and set it apart to thee, O Lord Christ, as holy ground, not to he profaned any more to common use." Retuniing to the communion table, he pronounced curses against those who should profane that place, and at every curse he bowed towards the east, and said, Let all the people say Amen. Afterwards he pronomiccd blessings on all those who should be benefactors, and repeated. Let all the people say Amen. Then there was a sermon ; and after that the sacrament was administered ; and when he came near the altar, he bowed seven times ; and coming to the bread, he gently lifted up the napkin, which he laid down again, and withdrew, and bowed several times ; then he uncovered the bread, and bowed as before ; the like he did with the cover of the cup ; then he received the sacra- ment, and gave it to some principal men ; after which, many prayers being said, the solemnity of the consecration ended (/d). Form of A.D. Again, in the year 1 7 12, a form of consecrating churches 1712. jxnd chapels and churchyards or places of burial was sent down from the bishops to the lower house of convocation, on the 2nd day of April, and was altered by the com- mittee of the Avhole house, and re]iorted to the house on the 9th day of the same month, which was agreed to, with some alterations : which form, as it did not receive the royal assent, was not enjoined to be observed; but is (0 Gibs. 189 ; Julius. 20. (/.) 2 Rualnv. Hist. Coll. 77. CHURCHES AND CHURCHYARDS. 1763 now generally, tliougli not necessarily, used, and is as follows : — Preparations in order to the Consecrating of A Church. The church is to be peicecKj), and furnished with a reading desk, Common Prayer, and great Bible, and one or more surplices, as also xoith a pulpit and cushion, a font, and a communion table, and with linen and vessels for the same. The endoicment, and the evidences thereof, are to be laid before the bishop, or his chancellor, some time before the dag ajjpointcd, in order to the preparing of the act or sentence of consecration against that dag. An intimation of the bishop^s intention to consecrate the church, with the dag and hour appointed for it, is to be fixed on the church door at least three dags before. A chair is to be set for the bishop on the nortJi side of the communion table, tcithin the rails ; and another for his chancellor zcithout the rails, on the same side. All tilings are to be prepared for a communion. The church is to be kej}t shut, and empty, till the bishoj) comes, ■ and till it be opened for his going in. The Form of Consecrating a Church. The bishop is to be received at the icest door, or at some other ■part of the church or churchyard, xohich is most convenient for his entrance, by some of the principal inhabitants {m). At the place ichere the bishop is received, a jietition is to be delivered to him by some one of the persons who receive him, praging that he ivill consecrate the church. The jjetition is to be read bg the register. The bishop, his chaplains, the preacher, and the minister tvho is to read divine service, together with the rest of the clergg, if ang other be present, enter the church, and repair to the vestrg, or {if there be no vestrg) to some convenient part of the church, where, as mang as are to officiate, jnit on their severed habits ; during tvhich time tlte parishiojiers (I) This Avould probably be an old parish ; then to be met now omitted, — chairs or move- by the minister of the place, the able seats may be used. churchwardons, and some of the (m) If the churcli to be conse- principal inhabitants. crated be a new church, built in 1764 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Form of con- ore to repair to their seats, and the middle aisle is to be secration. J{f,pt clear. A.D. 1712. As soon as the church is fjin'et, the bishop aiid his chaplains, with the preacher, and the minister icho is to officiate, and the rest of the cler(/i/, if any other be present, return to the icest door, and f/o up the middle aisle to the communion table, repeating the 24th psalm alternately, as they go up, the bishop one verse, and they another. Psalm xxiv. 1. The earth is the Lord's, and all that therein is: the compass of the world, and they that dwell therein. 2. For he hath founded it upon the seas : and prepared it upon the floods. .3. AVho shall ascend into the hill of the Lord, or who shall rise up in his holy place ? 4. Even he that hath clean hands, and a pure heart : and that hath not lift up his mind unto vanity, nor sworn to deceive his neighbour. 5. He shall receive the blessing from the Lord : and righteousness from the God of his salvation. 6. This is the generation of them that seek him : even of them that seek thy face, O Jacob. 7. Lift up your heads, O ye gates ; and be ye lift up, ye everlasting doors: and the King of glory shall come in. 8. Who is the King of glory? it is the Lord, strong and mighty, even the Lord mighty in battle. 9. Lift up your heads, O ye gates, and be ye lift up, je everlasting doors: and the King of glory shall come in. 10. "Who is the King of glory? even the Lord of hosts. He is the King of glory. The bishop and the chaplains go loithin the rails ; the bishop to the north side of the communion table, and the chaplai/is to the soutli side: the minister officiating goes to the reading desk, and the preacher to some convenient seat near the pulpit. The bishop, sifting in the chair, is to have the ijistru- ment or instruments of donation and endowment presented to him by the founder, or some proper substitute : ichich he lays upon the communion table, and then standing up, and turning to the congregation, says — (n) " Dearly beloved in the Lord ; forasmuch as devout and holy men, as well under the law as under the gospel, moved either by the secret inspiration of the Blessed (h) This not needful, if it be a new cluuxli built in an old parish. CHURCHES AXD CHURCHYARDS. 1765 Spirit, or by the express command of God, or by their own reason and sense of the natural decency of things, have erected houses for the public Avorship of God, and separated them from all profane and common uses, in order to fill men's minds with greater reverence for his glorious majesty, and affect their hearts with more devo- tion and humility in his service ; Avhich pious works have been approved and graciously accepted by our heavenly Father: Let vis not doubt but he will also favourably approve our godly purpose, of setting apart this place in solemn manner, to the performance of the several offices of religious Avorship, and let us faithfully and devoutly beg his blessing on this our undertaking." Then the bishop kneelinr/, says tlte following prayer : — " O Eternal God, mighty in power, and of majesty incom- prehensible, whom the heaven of heavens cannot contain, much less the walls of temples made with hands, and who yet hast been graciously pleased to promise thy especial presence in whatever place even two or three of thy faithful servants shall assemble in thy name to offer up their praises and supplications unto thee ; vouchsafe, O Lord, to be present with iis, Avho are here gathered together, with all humility and readiness of heart, to consecrate this place to the honour of thy great name ; separating it from henceforth from all unhallowed, ordinary, and common uses, and dedicating it to thy service, for reading thy holy word, for celebrating thy holy sacraments, for offering to thy glorious Majesty the sacrifices of prayer and thanks- giving, for blessing thy people in thy Name, and for the performance of all other holy ordinances: Accept, O Lord, this service at our hands, and bless it with such success, as may tend most to thy glory, and the furtherance of our happiness both temporal and spiritual, through Jesus Christ our blessed Lord and Saviour." Amen. After this, let the Mshop stand up, and turniny his face toward the congregation, say : — " Regard, O Lord, the supplications of thy servants : and grant, that whosoever shall be dedicated to thee in this house by baptism, may be sanctified with the Holy Ghost, delivered fi'om thy wrath and eternal death, and received as a living member of Christ's Church, and may ever remain in the number of thy faithful and elect chil- dren. Amen. " Grant, O Lord, that they who at this place shall in their own persons renew the promises and vows made by AD. 1712 17(5G FABRICS AND OFFICERS OF FABRICS OF THE CnURCII. rormofcon- their surctics for them at their baptism, and thei'eupon secratiuii. shall bc confirmed l)y the bishop, may receive such a measure of the Holy Sj^rit, that they may be enabled faithfully to fulfil the same, and grow in grace unto their lives end. Aiucn. " Grant, O Lord, that Avhosoever shall receive in this place the blessed sacrament of the body and blood of Chi'ist, may come to that holy ordinance Avith faith, charity and true repentance ; and, being filled with thy grace and heavenly benediction, may to their great and endless com- fort, obtain remission of their sins, and all other benefits of his passion. Amen. " Grant, O Lord, that by thy holy word which shall be read and preached in this i)lace, and by thy Holy Spirit grafting it inwardly in the heart, the hearers thereof may both perceive and know what things they ought to do, and may have power and strength to fulfil the same. Amen. " Grant, O Lord, that whosoever shall be joined together in this place in the holy estate of matrimony, may faithfully perform and keep the vow and covenant betwixt them made, and may remain in perfect love together unto their lives end. Amen. " Grant, we beseech thee, blessed Lord, that whosoever shall draw near unto thee in this place, to give thee thanks for the benefits which they have received at thy hands, to set forth thy most worthy praise, to confess their sins unto thee, and to ask such things as are requisite and necessary, as well for the body as the soul, — may do it with such sted- fastness of faith, and Avith such seriousness, aflfection, and devotion of mind, that thou mayest accept their boundcn duty and service, and vouchsafe to give Avhatever in thy infinite wisdom thou shalt see to be most expedient for them : All which Ave beg for Jesus Christ his sake, our blessed Lord and SaA-iour." Amen. The bishop sitting in his chair. Then the sentence of consecration is to he read hy the chancellor, and signed hy the hisJiop, and hy him ordered to he registered, and then laid upon the communion tahle. After this, tJie person appointed is to read the service for the day, except where it is otherwise directed. Proper psalms, Ixxxiv., cxxii., cxxxii. First lesson, 1 Kings, viii. from verse 22 to Averse 62, inclusive. Second lesson, Ilcb. x. from verse 19 to A'crse 26 in- clusive. After the collect for the day, the mi?iister who reads CHURCHES AXD CnURCHYAEDS. 1767 the service stops till the bishop hath said the foUoicin// prayer : — " O most blessed Saviour, Avho by thy gracious preserico at the feast of dedication didst approve and honour such religious services, as this which we are now performing imto thee, be present at this time with us also by thy Holy Spirit ; and, because holiness becometh thine house for ever, sanctify us Ave pray thee, that we may be living temples, holy and acceptable vuito thee ; and so dwell in our hearts by faith, and possess our souls by thy grace, that nothing which defilcth may enter into us ; but that, being cleansed from all carnal and corrupt affections, we may ever be devoutly given to serve thee in all good Avorks, Avho art our Saviour. Lord, and God, blessed for ever- more." Amen. Then the minister proceeds in the scrcice of the ddy, to the end of the general thanksgiving. After which the bishop says the folloicing prayer \if it be not one of the fifty new churches^ : — " Blessed be thy name, O Lord, that it hath pleased thee to put it into the heart of thy (o) servant N. to erect this house to thy honoiu- and Avorship. Bless, O Lord, (;>) him, his family, and substance, and accept the work of his hands ; remember //z'm concerning this ; wipe not out this kindness that he hath shewed for the house of his God and the offices thereof; and grant that all who shall enjoy the benefit of this pious work may sIicav forth their thank- fulness by making a right use of it, to the glory of thy blessed name, through Jesus Christ our Lord." Amen. If the church that is to be consecrated be one of the fifty new churches which are ordered to be built by the lute acts of parliament i^q), the bishop says: — " Blessed be thy name, O Lord God, that it hath pleased thee by thy good Spirit to dispose our gracious sovereign and the estates of this realm, to sup]ily the spiritual Avants of thy people, by appointing this and many other churches to be erected and endoAvcd for thy Avorship and service ; multiply thy blessings upon them, for their pious regard to thy honour, and to the good of soids ; remember them concerning this, and Avipe not out the kindness they have shewed to thy church, and to the offices thereof; and grant that our gracious king may see and long enjoy the fruits of his godly zeal, in the edification of the members (o) Or servants. occasion shall require. (;)) Tliroughout this prayer, (7) 9 Anne, c. 17 ; 10 Anne, for him, his, lie, hath ; say the?n, c. 20 ; 1 Geo. 1, st. 2, c. 23. they, their, she, her, have, as the 17G8 FABRICS AND Ol FICERS OF FABRICS OF THE CHURCH. Fonii of con- of our cliurcli, and in tlie reduction of" those, in the spirit seciation. q£ meekness, who dissent from it ; that Ave may all live AD. 1712. together in the unity of the Sj^irit, and in the bond of ])eace, through Jesus Christ our Lord." Amen. Then the minister trlto officiate fi is to go on with the •prayer of St. Chry.so.stoni, and tlie Grace of our Lord Jesus Christ, Then a psalm is to be sung, viz. xxvi. G, 7, 8, icith Gloria Patri. Communion Service. The bishop standing on tlie north side of the communion table, as before, reads the communion service. After tlie collect for tlie king, he says the following prayer: — " O most glorious Lord God, we acknowledge that wc are not worthy to offer unto thee any thing belonging to us ; yet we beseech thee, in thy great goodness graciously to accept the dedication of this place to thy service, and to prosper this our undertaking: receive the prayers and inter- cessions of vis, and all others thy servants, who either now or hereafter entering into this house shall call upon thee ; and give both them and us grace to prepare our hearts to serve thee Avith reverence and godly fear : Affect us Avith an aAA'ful apprehension of thy Di\4ne INLajesty, and a deep sense of our OAvn unworthiness ; that so, approaching thy sanctuary Avith loAvlincss and devotion, and coming before thee Avith clean thoughts and pure hearts, Avitli bodies un- defiled, and minds sanctified, Ave may ahvays perform a service acceptable to thee, through Jesus Christ our Lord." Amen. The two chaplains are to read, one the epistle, and the other the gospel. The Epistle, 2 Cor. Ad. 14 to 17 inclusiA'e. The Gospel, John ii. 13 to 18 inclusive. Then the bishop reads the Nicene Creed. After which, a psalm is sung, viz. Psalm c. The Sermon. The sermon being ended, and all icho do 7iot receive the holy communion returned, and the doors shut, the bishop proceeds in the communion service ; and he and the clergy having made their oblations, the chur chic ur dens collect the offerings of the rest of the congregation. After the communion, and immediately before the final blessing, tlie bishop says the following prayer : — " Blessed be thy name, O Lord God, for that it pleaseth thee to have thy habitation among the sons of men, and to CHURCHES AND CHURCHYARDS. 1769 dwell in the midst of tlie assembly of the saints, upon earth ; bless, Ave beseech thee, the religious performance of this day : and grant that in this place, now set apart to thy service, thy holy name may be worshipjied in truth and jDurity to all generations, through Jesus Christ our Lord." Amen. " The peace of God, which passeth all understanding, keep your hearts and minds in the knoAvledge and love of God, and of his Son Jesus Christ our Lord : and the ' blessing of God Almighty, the Father, the Son, and the Holy Ghost, be amongst you, and remain with you always." Ameii. Consecration of a Churchyard together with THE Church. When the service in the church is finished, the bishop, clergy and people proceed to the churchyard. And, the bishop, standing in the place prepared for the performance of the office there, the actor sentence of consecration is read by the chancellor , and signed by the bishop, and ordered to be registered. After ivhich the bishop says the following prayer : — " O God, Avho has taught us in thy holy word, that there is a difference between the spirit of a beast that goeth downwards to the earth, and the spirit of a man Avhicli ascendeth up to God avIio gave it ; and likewise by the example of thy holy servants, in all ages, has taught us to assign peculiar places, where the bodies of thy saints may rest in peace, and be preserved from all indignities, "whilst their souls are safely kept in the hands of their fiiithful Redeemer : Accept, Ave beseech thee, this chari- table Avork of ours, in separating this portion of ground to that good purpose ; and give us grace, that by the frequent instances of mortality AA'hich avc behold, Ave may learn and seriously consider, hoAv frail and uncertain our condition here on earth is, and so number our days, as to apply our hearts unto Avisdom. That in the midst of life thinking upon death, and daily preparing ourselves for the judgment that is to folloAv, Ave may liaA^e our part in the resurrection to eternal life, Avith Him who died for our sins, and rose again for our justification, and uoav livetli and reigneth with Thee and the Holy Ghost, one God Avorld Avithout end. Amen. " The grace of our Lord Jesus Christ, and the love of God, and the felloAvship of the Holy Ghost, be Avith us all evermore." Amen. p. VOL. II. 5 X 1770 FABKICS AND OFFICEI^S OF FAURICS OF TIIH CHURCH. Form of con- secration. A.D. 1712. Power for bishop to sign instrument of consecration at churchyard without presence of chancellor, &c Consecration of a Ciiuhchyard singly. The ordinary service for the day is to he read at the church, except ivhere it is otherwise ordered. Psalms xxxix. xc. First lesson, Gen. xxiii. Second lesson, John v. verse 21 to verse 30 inclusive, or 1 Thess. iv. 13, to the end. When the service at the church is over, the bishop, clergy and parishioners repair to the (/round which is to be con- secrated : and the bishop, standing in the place prepared for the performance of the office, says: — " The glorious majesty of the Lord our God be upon us ; prosper thou the work of our hands upon us, O prosper thou our handywork." Then the instrument of donation is presented to the bishop. Next, the act or sentence of consecration is read by the chancellor, and signed by the bishop, and ordered to be registered. This done, the bishop reads the prayer that is before directed to be used in a churchyard which is consecrated together with the church. Then are sung two staves of the 39th psalm, viz. v. 5, 6,7,8. After tvhich the bishop lets them depart with the blessing. ^" The peace of God Avhicli passeth all understanding, keep your hearts and minds in the knowledge and love of God, and of his Son Jesus Christ our Lord ; and the blessing of God Almighty, the Father, the Son, and the Holy Ghost, be amongst you, and remain with you always." Amen (o). By 30 & 31 Vict. c. 133, s. 1, "Where any gi-ound adjoining to an existing chvu'chyard has been or is added thereto, the bishop of the diocese may if he thinks fit, at the churchyard or in the church to Avhich it belongs, by his own hand, or by the hand of any bishop of the United Church of England and Ireland lawfully appointed as his commissary, sign an instnmicnt declaring or recording the consecration of such ground, without the presence of the chancellor or registrar of the diocese being necessary ; and the signature of the bishop to such instrument shall be attested by the chancellor or by a suiTogate or by any two clergymen of the diocese and shall be in the follow- ing form, endorsed on a plan of the ground so added: — (o) Vide 2 Oughton, 269, ct seq., as to consecration of church- yards. CriUKCHES AXD CIIUKCHYARDS. 1771 I., A. B., bishop , do hereby declare and record the ground added to the churchyard of , as on the written plan, to be consecrated ground and part of the said church- yard ; and such instrument, so signed and attested, on being deposited in the registry of the diocese, shall have the same effect as a sentence of consecration" (^j). According to the general law, in the consecration of a Other churches new church, provision is to be made, that no damage °ot to he • u. !• • 1 J. A. i.1 prejudiced accrue, in pomt oi rights or revenues, to any other therehy. church (^q). A reasonable procuration is due to every bishop Avho Procuration. consecrates a church, from the person or persons praying such consecration ; not for the consecration, but for the necessary refreshment of the bishop and his servants. For whereas ordinations, institutions, and other acts of the like nature, are performed by the bishop Avithin his own Avails ; this di'aws him sometimes to a great distance from his palace, where proper accommodations cannot be procured: and therefore, as in his visitations, so also in his consecra- tion of churches, the laAV has provided a reasonable pro- curation. At first, the laws of the church forbad the demanding or taking any thing, but what the founder voluntarily offered (and some even forbad that) ; but after- Avards the prohibition an^s limited, saving the honest ajid latcful customs of the ecclesiastics, and (as it is in the fore- going constitution of Othobou) except the clue procuration: the measure and proportion of AA'hich must be determined by the usage of every diocese. In Archbishop AVarham's time, the see of Bath and Wells being vacant, there is returned among the revenues of the vacancy, for the con- secration of three churches, 10/. ; that is, 3/. 6s. 8d. each (r). The church of Elsefeld, in the diocese of Lincoln, Avas consecrated in the year 1273 ; for which Avas paid a pro- curation of tAvo marks (5). By 30 & 31 Yict. c. 135, the tAVO archbishops, their vicars New tahle of general, and the lord chancellor, Avitli the consent of the ^^^^ <5? '-'""" lords of the treasury, Avcre empoAvcred to settle a table of "^ fees to be paid to the chancellors, vicars general, registrars, secretaries and other officers on {ititer alia) the consecra- tion of churches and churchyards, and the granting of faculties for alterations in churches and churchyards. A {p) Vide supra, pp. 853, 854; (r) Gibs. 190. infra, p. 1772. («■) Ken. Tar. Ant. 515. (2) Gibs. 189. 5x2 1772 FABRICS AND OFFICERS OF FAHUICS OF THE CHURCH. New tabic of table of fecs fixed acconllnii' to this statute was published fees on con- i^ ^]^q London Gazette ol" March ID, 18G9. secratioD. rpj^^^ ^^y^^^ ^^,^g^ j^g ^^ ^l^p points above-mentioned, as follows : — 1. Consecration of a Church and Burial Ground . . . . 2. Consecration of a Cemetery or Burial Ground . . . 4. Faculty for altera tions in Churches or Churchyards Vicar General, Chancellor, Archil eacon or Offlclal. il s. d. 3 3 2 2 1 1 Registrar or other ofllccr bj- usiiKC per- forming the duty. Secretary of Archbishop or Bishop. Apparitor. £ S. d. £ 8. d. £ s. d. 7 7 1 1 1 1 6 G 1 1 1 1 3 13 6 10 G " 1 & 2. The chancelloi-'s fee includes the approval of plans, the perusal of the petition and other papers, the settling the sentence, and the approval of the draft act. The registrar's fee includes the perusal of the deeds of conveyance, the drawing and engrossing of the petition, and the sentence and the notarial act, the necessary atten- dance at the consecratioji, and the registering the deeds and the act in the register book of the diocese. The secretary's fee includes the inspection of plans and corre- spondence prior to the papers being sent to the registry. The apparitor's fee includes all necessary citations and attendance on the bishop at the consecration. " 4. The chancellor's fee includes the perusal of the peti- tion, the order for the notice or citation as the case may be, the perusal of the certificate and other papers, and making the decree. The registrar's fee includes the perusal of the minutes of vestiy and the petition, the drawing of the notice or citation and attending the cliancellor for his order, the preparation of the certificate and attendance on the chancellor for his decree, and the drawing and signing the faculty. The apparitor's fee includes the service of the notice or citation, but is exclusive of one shilling a mile for travelling expenses if the citation is to be personally served in the country" (.?). (s) By 30 & 31 Vict. c. 1.33, BS. 2, 3, where additional land to a churchyard is to be conse- crated only, no fees are to be paid except 5s. to the registrar. CHURCHES AND CHURCHYARDS. 1773 A church once consecrated, may not be consecrated Re-consecra- again. To which general rule of the canon law, one ex- *^°°- ception was, unless they he polluted by the shedding of ^^^ ^^'^• blood ; and in that case, the canon supposes a re-conse- cration ; though the common method in England was, a reconciliation only, as appears by many instances in our ecclesiastical records (J). But in point of ruins or decay, the only exception to the general rule, laid down in the canon, is, unless they he burnt (that is, says the gloss, /br the greater part thereof, and not otherwise^ And a de- cretal epistle of Innocent III., where the roof was con- sumed, is, that since the icalls icere entire, and the com- munion table not hurt, neither the one nor the other ought to be re-consecrated. Thus, a chapel in the suburbs of Hereford, which belonged to the priory of St. John of Jerusalem, had been from the time of the dissolution of monasteries, applied to secular uses and profaned, by making the same a stall for cattle, and a place for laying up their hay and other provender ; yet because the walls and I'oof were never demolished, a reconciliation was judged sufficient. In like manner, when another chapel had been long disused, and was repaired, and made fit for divine service, the tenor of the reconciliation was, the same chapel from all canonical impediment, and from every profanation {if any there tcere) contracted and in- curred, as much as in us lieth, and so far as laivfully we may, by the authority aforesaid we do exempt, relax and reconcile the same (^u^. But on the contrary, when the church of Southmalling had not only been polluted in manner as aforesaid, but was also neiv-built, and then used for divine offices without new consecration. Archbishop Abbot interdicted the minister, churchwardens, and parishioners, from the en- trance of the church, until the said church and church- yard thereof should be again consecrated (.r). When a churchyard has been enlarged, there is a new consecration of the additional part (_y). It was decided by the present learned Chancellor of Modem cases. Rochester, that an ecclesiastical court cannot entertain a suit as to the allotment of seats in a place for divine wor- ship, unless such place be a legally consecrated build- ing (z) ; and that where the altar of a consecrated church lias been removed, a re-consecration is necessary to found (0 This reconciliation was also (.r) Ibid. 190. allowed by the decretal of Gre- (//) Ibid, gory X. 3, 40, 4. (z) Battiscomhe v. Ev% 9 Jur., (w) Gibs. 189. N. S. 210 (1862). 1774 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Rc-con?ccra- tion. Modem cases. 30 & 31 Vict. c. 133. Where com- munion tabic has been moved, or ■walls of church have been partly demo- lished, mar- riages, &c. to be valid, al- though the church be not re-consecrated or reconciled. tlie jurisdiction of tlio ecclesiastical court. This was the old law of the church, but the authority of this case, as Avell as that of Dr. Lu.shinp;ton, in the case of the Parish- ioners of Hamcell (a), has been aftccted by a more recent decision of the privy council ; Avhich was as follows: — L., the tenant and occupier of the manor-house in the parish of AV., instituted a suit in the chancery court of Vork against P., the incumbent and perpetual curate, for perturbation of a pew holden by L. as appurtenant to the manor-house, and occupied by him therewith for nearly forty years. P., the incumbent, admitted the destruction of the pew by his orders and direction, but pleaded to the JTU-isdiction of the court, o)i the gromid that the church was not in law a church, never having been re-conse- crated since its general repair in 1825. The judicial committee decided that, it appearing from the e-sddence, that the church of W. had been repaired and rebuilt under a faculty, upon its old foundation, the tower and eastern wall and windows never ha^nng been removed, and some of the offices of the church having been performed during the repairs, it had never ceased to be a parish church, so as to require re-consecration, but remained sub- ject to the authority of the diocesan ; and that the judg- ment of the court below overruling the protest to the jurisdiction was right (i). After this decision, which turned principally upon the peculiar facts of the case, the statute 30 & 31 Vict, c. 133 (c), Avas passed, which enacted as follows : — Sect. 12. " AV^hereas doubts are entertained whether in cases where a church or chapel has been re-built, repaired or enlarged, and the external walls have been partly de- stroyed, or the position of the communion table altered, a re-consecration of such church or chapel be not necessary in order to the due and valid administration of divine offices there : be it declared and enacted, that all mar- riages, rites and cei'emonies heretofore or hereafter cele- brated or performed in a consecrated church or chapel which may have been rebuilt, repaired, or enlarged prior to such celebration or performance, and wherein such marriages, rites, and ceremonies might have been legally solemnized or performed previously to such rebuilding, repair, or enlargement, shall be valid and effectual for' all purposes, notwithstanding that upon such repair or cn- (fl) Turner v. Parishioners of Ilamvell, 1 Notes of Cases, 368. (h) Parker v. Leach, L. R., 1 P. C. 312. (c) Vide supra, p. 853. CHURCHES AND CnURCHYARDS. 1775 largement the external walls of such church or chapel may not have remained entu'e, or the position of the com- munion table may have been altered ; and notwithstanding that since the rebuilding, repair, or enlargement no re- consecration of such church or chapel may have taken place." In Clayton v. Dean (rf), which is referred to in the Removal of Chapter on Chapels (e), a faculty Avas granted for removing chapel. a consecrated chapel to another site ; but the learned judge who granted the faculty observed, that it Avas pos- sible that different legal considerations might apply to the case of a parish church. By 59 Geo. 3, c. 134, one of the Church Building Acts, 59 Geo. 3, sect. 40, a general provision Avas made for the pulling doAvn c- 1^"*- of old pari.sh churches and rebuilding them on ncAV sites, as folloAvs : — " Where any j^arish shall be desirous of extending and Power to pull increasing the accommodation in the parish church, and "°^^° °,^^^" • ~ . -*■ inov6 Old it shall be found necessary or expedient to that end to church. take doAvn the existing church, and to rebuild the same on the same site, or on a more convenient site, it shall and may be lawfid for the churchwardens of any such parish, Avith the consent of the vestry, or persons possess- ing the powers of A'estry, and Tsdth the consent also of the ordinary, patron, incumbent and lay impropriator, if any such there be, to take doAvn such existing church, and to rebuild the same upon the same or upon a ncAV site." This section goes on to empower the churcliAvardens to Rates to be levy chm-ch rates for these purposes ; but this poAver, ^^^^e^- like that of levying other church rates, is affected by the Compulsory Church Bate Abohtion Act, 31 & 32 Vict, c. 109. By 3 Geo. 4, c. 72, s. 30, the commissioners, that is Transfer of noAv the ecclesiastical commissioners, may transfer the en- endowments. dowments of the old chm'ches to the neAV ones. These provisions are further extended by 8 & 9 Vict. c. 70, s. 1. The Avhole matter will be found treated of more at length in the Chapter on the Building of Churches (/). In a form of consecrating churches, Avhich Ave meet with Dedication to in a canon of the SATiod holden at Celchyth under Wulfred, *^^ ''*^"*- Archbishop of Canterbury, in the year 816, it is ordained, that when a church is built, it shall be consecrated by the proper diocesan, Avho shall take care that the saint, to whom it is dedicated, be pictured on the Avail, or on a (rZ) 7 Notes of Cases, 4G. (/•) VuU infra, Part IX., (e) Part YL, Chap. III. Chap. V. 177G FAHinCS AND OFFlCEllS OF FAI5KICS OF THE CIIUIICH. Deiliciition to the saint. Feast of the dedication. tablet, or on tlie altar. And Sir William Dugdalc had an old transcri])t of a decree made by Kobcrt de Win- clielsca, Archbisliop of Canterbury, and confirmed by- Walter Reynolds, bis immediate successor, whereby the parishioners throuij^h that whole ])rovince were commanded to provide, that the image of that saint to whose memory the chm-ch was dedicated, should be carefully preserved in the chancel of every ])arish chiu-ch. And Dr. Kennct says, he remembers in tbe chancel of the church at Po.st- ling, in Kent, on the side of the north Avail, about five feet fi-om the groimd, there was a small square tablet of brass, with a Latin inscription in old characters, telling the time when the church was dedicated to the Virgin INIary. The loake, or customary festival for the dedication of churches, signifies the same as vigil or eve. The reason of the name is best given from an old mantiscript legend of St. John Baptist : " Ye shall understand and know how the evens were first founded in old times. In the beginning of holy church it was so, that the people came to the cluu'ch Avith candles burning, and would wake and come with lights toAvards night to the church in their devotions : and after, they fell to lechery, and songs, and dances, harping and ]iiping, and also to gluttony and sin ; and so turiTcd the holiness to cursedness. Wherefore the lioly fiithers ordained the peo])le to leave that Avaking and to fast the even. But it is still called vigil, that is wahiin/ in English ; and it is also called the even, for at even they Avere Avont to come to church" (//). Origin of name. Rubric. Sect. 3. — Chancel. Chancel, cancellus, seems properly to be so called a caiicellis, from the lattice-Avork partition betAvixt the quire and the bmly of the church, so framed as to separate the one from the other, but not to intercept the sight. By the ruln-ic before the Commer Prayer it is ordained, that the chanceh shall remain as theij leave done in times past. That is to say, distinguished from the body of the church in manner aforesaid ; against Avhich distinction Bucer (at the time of the Beformation) inveighed vehe- mently, as tending only to magnify the priesthood; but {g) See too Ken. Par. Ant. GOO— G14. CHURCHES AND CHURCHYARDS. 1777 though the king and parliament yielded so far, as to allow the daily service to be read in the body of the church, if the ordinary thought fit ; yet they would not suffer the chancel itself to be taken away or altered (/i). The chancel was originally known by a variety of Other names names, one of the most common being /Sijfia, or tribunal ; ^o"^- and this word had also various significations, denoting sometimes the ambo or reading-desk, sometimes the altar, sometimes the seats or thrones of the bishops and pres- byters, sometimes the whole space where these thrones and the altars stood. The name of sanctuary was also applied to this part of the church ; and it would seem in some of the canons to have borne the name of " chorus," whence is derived our English " quire" or " choir." The highest part of the chancel had the various names of " apsis,'''' " exedra^'' " conchula hematis,'''' all words that signify any arched or spherical building {i). It was holden by the Exchequer Chamber, affirming iiight of vicar the judgment of the Court of Queen's Bench, that though in church. the freehold of a parish church may be in a lay rector, the right of the possession of the church is in the minister and churchwardens ; and therefore a lay rector cannot maintain trespass against the vicar of the parish for breaking open a door leading from the churchyard into the chancel {]i). Sect. 4. — Aisle. Aisle is said to proceed from the French word aile Derivation of {r/la), a wing ; for that the Norman churches were built ^^'^ v>'OYd. in the form of a cross, with a nave and tAvo icings. An aisle in a church which has time out of mind be- Aisle a private longed to a particular house, and been maintained and Property. repaired by the owner of that house, is part of his frank tenement; and the ordinary cannot dispose of it, or inter- meddle in it. And the reason is, because the law in that case presumes, that the aisle was erected by his ancestors, or those whose estate he has, and is thereupon particularly appropriated to their house. But otherwise it is, if he has only used to sit and bury in the aisle, and not repaired it ; for the constant sitting and burying, without reparation, does not gain any pecuHar property tlierein ; but the aisle being repaired at the common charge of the parish, the (/() Gibs. 190. Sect. 7. (0 Cf. 1 Biiigh. 297; as to (k)Gr>:ffinv.Dci>jhtn,7, 33L.J., seats in tlie cliancel, vide infra, Q. B. 18i; et vide suj^'o,^. 298. 1778 FABRICS AND OFFICERS OF FABRICS OF THE CIIURCn. common right of the ordinary takes place, and he may, from time to time, ap])oint whom lie pleases to sit there (I). Old decisions. And in the case of Corvcji v. Pijm, in 10 Jac. 1, it was resolved, that albeit the freehold of the church -be in the parson, yet if a lord of the manor, or any other, has a house within the town or parish, and he and all those whose estate he has in the mansion-house of the manor or other liouse, has had a seat in an aisle of the church for him and his fiimily only, and have repaired it at its proper charges ; it shall be intended, that some of his ancestors, or of the parties whose estate he has, did build and erect that aisle for him and his fiimily only ; and therefore if the ordinary endeavour to remove him, or place any other there, he may have a prohibition (m). And in Francis v. Ley, in 12 Jac. 1, in the Star Chamber, it Avas resolved by the court, that if an inha- bitant and his ancestors only have used, time out of mind, to repair an aisle in a church, and to sit there with his family to hear divdne ser\ace, and to bury there ; this makes the aisle proper and peculiar to his house, and he cannot be displaced or interrupted by the parson, church- warden, or ordinary himself: but the constant sitting and burying there, without using to repair it, does not gain any peculiar property, or pre-eminence therein. And if the aisle has been used to be repaired at the charge of all the parish in common, the ordinary may then, from time to time, appoint whom he pleases to sit there, notwith- standing any visage to the contrary (w). Modem cases. And in a very recent case it has been ruled as follows : — that the freehold of a side aisle or chapel or lesser chancel may be vested in a private person, though such chapel or chancel forms an integral portion of, and is under the same roof with, a parish church. The enjoyment of such a chapel or chancel, and the right to its exclusive use, is not necessarily annexed to a dwelling-house (r>). Immemorial repair of a chapel or lesser chancel which is part of a parish church, coupled with other acts of ownership, is evidence of a freehold of inheritance in it being vested in those who have exe- cuted the repairs and exercised the acts of ownership (p). Upon bill filed to establish a right to a side aisle or lesser chancel as part of the parish church, against the lord of (Z) Gibs. 197; Lonsler v. Ilai/- to liave been laid down in some wood, 1 Y. & Jer. 583. old cases, 12 Co. 106 ; 2 Keb. 92; (m) 3 Inst. 202. 2 Bulst. 150; 1 Sid. 88. (n) Cro. Jac. 366. (p) Chapman v. Jones, L. R., 4 (o) 'i;iiough the contrary seems Ex. 273 (1860). CHURCHES AND CHURCHYARDS. 1779 the manor, who claimed it as appendant to the manor or manor-house, it appearing that the chancel was an ancient chapel, coeval with the church, and that it was a private chapel erected by the lord of the manor: — It was holden, that immemorial use and occupation, coupled with repa- ration, entitled the lord of the manor by prescription to the perpetual and exclusive use of the chancel ; and that this right might exist, notwithstanding that the fi'eehold might not be in the person prescribing, and although the estate or house to which the chancel was appendant might not be situate in the parish {g\ And the reason of any person's property in an aisle, is Reason of the from the prescription to repair and use it alone ; because '^^^• it is from thence presumed, that the aisle was erected by him whose estate he has, with the assent of the parson, patron, and ordinary, to the intent to have it only to him self (r). And therefore where any person has good title to such Remedies. aisle ; if the ordinary places another person therein with the proprietor, the proprietor may have his action upon the case against the ordinary ; and if he be impleaded in the spiritual court for the same, a prohibition will lie ; or if any private person sits therein, or keeps out him that has the right, or buries his dead there without his consent ; an action upon the case lies for the proprietor (5). Sect. 5. — Churchy ard^t). It is clear that by the common law the rector has the Rector's rights, freehold in the churchyard, qualified undoubtedly by the rights of the parishioners, but he may bring an action for trespass if his right be unjustly invaded {u). By 15 Ric. 2, c. 5, " Whereas it is contained in the Mortm;iin. statute De ReJigiosis (7 Edw. 1, st. 2), that no religious, nor other whatsoever he be, do buy or sell, or under colour of gift or term, or any other manner of title whatsoever, receive of any man, or in any manner by gift or engine cause to be appropriated unto him any lands or tenements, upon pain of forfeiture of the same, whereby the said lands and tenements in any manner might come to mortmain : and if any religious or any other do against the said statute by art or engine in any manner, that it be lawful to the king and to other lords, upon the said lands and tenements iq) Chnrton\.Frcwcn,'L.'R.,2 (t) Vide supra. Part III., Ex. 634 (186G). Chap. X., on Burial, (r) 12 Co. 105. (») 1 Ciirteis, 2G0. (s) Wats. c. no. 1780 FABUICS AND OFFICERS OF FAIUilCS OF THE CHURCH. Mortmain. Fence. Bv canon. By statute. "Where suits to be. to enter, as in the said statute doth more fully appear ; and now of late by subtle imagination, and by art and engine, some religious ])ersons, ])arsons, vicars, and other spiritual ])ersons, have entered in divers lands and tenements which be adjoining to their churches, and of the same, by sufferance and assent of the tenants, have made churchyards, and by bulls of the bishop of Home have dedicated and hallowed the same, and in them do make continually parochial burying without licence of the king and of the chief lords ; therefore it is declared in this parliament, that it is mani- festly within the compass of the said statute." By a constitution of Archbishop Winchelsea, the parish- ioners shall repair the fence of the churchyard at their own charge (x). And Lord Coke says, that the parishioners ought to repair the inclosure of the churchyard, because the bodies of the more common sort are buried there, and for the preservation of the burials of those that were or should have been, while they lived, the temple of the Holy Ghost (y). And if the churchyard be not decently inclosed, the church, which is God's house, cannot decently be kept, and therefore this the parishioners ought to do, by custom known and appi'oved ; and the conusance thereof belongs to the ecclesiastical court (r). But nevertheless, if the owners of lands adjoining to the churchyard, have used time out of mind to repair so much of the fence thereof, as adjoins to their ground ; such custom is a good custom ; and the churchwardens have an action against them at the common law for the same («). By Can. 85 of 1603, " The churchwardens or questmen shall take care, that the churchyards be well and sufficiently repaired, fenced, and maintained with walls, rails or pales, as have been in each place accustomed, at their charges vmto Avhora by law the same appertaineth." By the statute of Circiimspecte agatis, 13 Edw. 1, st. 4, " If prelates do punish for leaving the churchyard un- closed," " the spiritual judge shall have power to take knoAvledge, notwithstanding the king's prohibition." Nevertheless, if the churchwardens sue a person in the Court Christian, supjjosing by their libel, that he and all they whose estate he has in certain land next adjoining to the churchyard, have used time out of mind to repair all the fences of the churchyard which are next adjoining (x) Lind. 2.53. (y) 2 Inst. 489. {z) Ibid. (a) 2 Rolle's Abr. 287; 194. Gibs. CHURCHES AND CHURCHYARDS. 1781 to the said land, a prohibition will lie ; for this onght to be tried at the common law, inasmuch as this is to charge a temporal inheritance (b). The churchwardens, by virtue of their office, are bound to see that the footpaths are kept in proper order, and the fences in repair (c). The abstract law, stated in the fore- going paragraphs, must be considered as affected in its application by the Compulsory Church Rates Abolition Act, 1868 (d). A constitution of Stratford says : " Seeing it is ])ro- Trees. hibited by the law both ecclesiastical and secular, for lay- men to have power to dispose of things ecclesiastical ; in order therefore that the scandal of such usurpation may be utterly abolished, whereby certain parishioners of the parishes within our province, not knowing the limits of their own power, or rather not regarding the same, have cut down, or rooted up the trees, or mowed the grass growing in the churchyards of the churches or chapels of our said province, against the will of the rectors or vicars of such churches or chapels, or others deputed by them for the custody or cure thereof, and have sacrilegiously applied the same to their own use, or to the use of the churches, or of other persons, at their Avill and pleasure ; from whence peril of souls, contentions, and grievous scandals do arise betwixt the ministers of such cburches and their parishioners : we do declare by the authority of the present coimcil, that persons guilty of such contempt shall incur the sentence of the greater excommunication, until they shall make sufficient amends and satisfaction" (e). Against the tvill of the Rectors or Vicars.~\ — This is, in chvn-ches where there is a rector only, or a vicar only. But if in the same church there be both rector and vicar, it may be doubted (says Lindwood) to whether of them the trees or grass shall belong. But I suppose (says he) they shall belong to the rector ; unless in the endowment of the vicarage they shall be otherwise assigned ( /). In Bellamijs case, in 13 Jac. 1, this ])oint, unto Avhich Whetlier the of the two the trees do belong, was considered but not de- ^^^^^ in-long to tci'mined ; Avhere the vicar sued tlie parson impropriate in yjcar. the spiritual court, for cutting them down ; and the suit being for damages, and an action of trespass lying at com- mon law, a prohibition was granted, and afterwards upon the same grounds a consultation denied ; but what became (i) 2 Rolle's Abr. 287; G East, pp. 1791, 1817. 315. (e) Stratford, Lindw. 2G7. (c) 1 Curteis, G21. (/) Lindw. 2G7. id) Vide supra, p. 1775; infra^ 1782 FABRICS AND ori'lCEUS OV FABRICS OF THE CHURCH. the rector or vicar. 35Edw. 1, St. 2. As to trees in the church- vaid. AVhether the of tlie main point, tliat is, to whom the trees of riglit trees belong to belonged, a]i]icars not ; only Kolle seems to make the right turn upon this, (liat thev did belong to him Avho is bound to repair; >vliioli detennination agrees \vell with Avhat is said in the statute here Ibliowing, namely, that the par.son shall not cut them down, but when the chancel wants reparation (/). Or to the tjse of the Churclies.^ — That is, to the use of the fabric of the church ; which it is not lawful to do, without the consent of the rector or vicar to whom they belong. And it is very reasonable, that neither rector nor vicar do fell such trees but for evident necessity of the reparation of the manse of the rector}-, or of the chancel. But if the nave of the church Avant repairing, the rector or -vdcar will do well (says Lindwood) not to be difficult in si'anting leave to cut down one or two for that use (//). By 35 Edw. 1, st. 2, or the statute Ne rector prosternat arhorcs in coomiterio : " Because we do understand, that controversies do oftimes grow between parsons of churches and their parishioners, touching trees growing in the churchyard, both of them pretending that they do belong unto themselves: we have thought it good, rather to decide this controversy by Avriting than by statute. For- asmuch as a churchyard that is dedicated is the soil of a church, and whatsoever is planted belongeth to the soil ; it must needs follow, that those trees which be grow- ing in the churchyard are to be reckoned amongst the goods of the church, the which laymen have no authority to dispose ; but as the Holy Scriptxu'c doth testify, the charge of them is committed only to priest's to be disposed of: And yet seeing those trees be often planted to defend the force of the wind from hurting the church ; avc do prohibit the parsons of the church, that they do not pre- sume to fell them doAvn unadvisedly, but when the chancel of the church doth Avant necessary reparation : neither shall they be converted to any other use, exce]it the body of the church doth need like repair; in which the parsons of their charity shall do well to relieve the ])arishioners, with bestowing upon them the same trees ; Avhich we will not command to be done, but we Avill commend it when it is done." lidtJier to decide this Controversy hy Writing than by Statute.'] — And therefore Lord Coke calls this law a (/) 2 Rolle's Abr. 337; Gibs. 207, 208. {). In Ililliard v. Jefferaon, in 9 \\'ill. 3, a parson was libelled against the defendant in the spiritual court of York, for liaving cut elms in the churchyard ; and a pro- hibition was granted upon suggestion that they gi'cw on his freehold (^). AVhere a portion of a churchyard is taken under tl>e powers of an act of parliament incorporating the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), the rector is entitled to the interest of the purchase-money, even though the burial ground had been previoiisly closed, so that he Avas in receipt of no fees from burials (r). But where a churchyard is taken under similar powers, and the amount to be paid by the takers to the then incumbent is to be settled by arbitration, it has been holden that the arbitrator should not award to the incumbent an amount calculated upon the value that might be put upon the lands divested of their ecclesiastical position, but only so much as will compensate him for his actual loss (5). The case of Adlam v. Colthurst should be mentioned here ; it was on this wise. — In a suit promoted by one parishioner against another for having,' without laAvful authority, caused human bones and portions of the soil to be removed from a churchyard to a field belonging to the defendant, the Court of Arches decreed that the defendant had offended against the laws ecclesiastical, and issued a monition to him to replace in the burial ground, before a certain day, the bones and earth so removed. The defendant failed to comply with the order, alleging that he was imable to do so by reason that the field in which the bones and earth had been placed Avas no longer in his occupation or possession : — It was holden, that his conduct . (;j) Sir. 1013. Sed vide infra, p. 1859. (9) L. Itaym. 212. (r) Ex parte Rector of Liver- ^xW,L.Il.,ni^ql5;20W.R.47; Ex parte Rector of St. Martiii's, Birmingham, L. II., 11 Eq. 23. (s) Stebbing v. Metropolitan Board of Worhs, L. R., G Q. B. 37. As to the right of a perpetual curate with respect to tlie church- yard, vide supra, p. 309. CHURCHES AND CHURCHYARDS. 1785 amounted to contempt of court, and that, unless lie obeyed the monition within six days, and certified that he had done so, the court would pronounce him in contempt, and signify the contempt to the Court of Chancery (^). Sect. 6. — Repairs, Alterations and Faculties. Anciently, the bishops had the whole tithes of the Anciently by diocese ; a fourth part of which, in every parish, was to ^^^ bishops. be applied to the repairs of the church; but upon a re- lease of this interest to the rectors, they were consequently acquitted of the repairs of the churches (m). And by the canon law, the repair of the church belongs Next by the to him who receives this fourth part, that is, to the rector, I'ectors. and not to the parishioners (.r). But custom (that is, the common law) transfers the Finally by the burden of reparation, at least of the nave of the church, inli^^^l^-tants. upon the parishioners, and likewise sometimes of the chancel, as particularly in the city of London in many churches there, and this custom the parishioners may be compelled to observe, where such custom is (y). Where there is no such custom, the parson is to repair the chancel (r). But, generally, the parson is bound to repair the Repair of the chancel. Not because the freehold is in him, for so is chancel in the freehold of the church; but by the custom of England, bwhe" rector which has allotted the repairs of the chancel to the parson, and the repairs of the church to the parishioners ; yet so, that if the custom has been for the parish, or the estate of a particular person, to repair the chancel, that custom shall be good ; which is plainly intimated by Lindwood as the law of the church, and is also confirmed by" the common law in the books of reports. But as to the obligation resting upon the parson, or upon the vicar, concerning that, the books of common law say nothing ; and so it is wholly left upon that foot on which the law of the church has placed it (a). As to the vicars, it is ordained by a constitution of Sometimes by Archbishop Winchelsea, that the (diancel shall be repaired ^^^ ^'^^'■• (0 Adlain v. Colthurst, L. R.. (y) Lindw. 53. 2 Adm. & Eccl. 30. ('-) 1 Raym. 59, per Holt, C. .1. (u) Degge, part 1, c. 12. (a) Gibs. 199; Pcnsev.Pnmse, (.r) 1 Salk. 1G4. 1 Raym. 59. P. VOL. n. 5 Y 1780 FABRICS AND OFFICERS OF FABRICS OF THE CliURCII. by tliG rectors and vicars, or otlicrs to whom sucli repair belongs (/>). AVherenpon Tjindwood observes, that wliere there is botli rector and vicar in the same chnrch, tliey shall con- ti-il)ntc in proportion to tlieir benefice (c). A\'hicli is to be nnderstood, ■where there is not a certain direction, order, or cnstoni,unto which of them such repa- ration should appertain (d). By lay impro- And as rectors or spiritual persons, so also impropri- priatois. ators, are bound of common rin;ht to repair the chancels. This doctrine under the limitations expressed in the fore- going article is clear and imcontested ; there has been some doubt as to how they shall be compelled to do it ; whether by spiritual censures only, in like manner as the parishioners are compelled to contribute to the repairs of the chwrch, since impropriations are now become lay fees ; or whetlier by sequestrations (as incumbents, and, as it should seem, spii'itual impropriators of all kinds, may be compelled) (e). The better opinion seems to be, that the spiritual court may grant sequestration upon an impropriate parsonage for not repairing the chancel {/)- Dr. Gibson observes, that impropriations, before they became lay fees, were undoubtedly liable to sequestration : that the king was to enjo}- them in the same manner as the religious had done, and nothing was conveyed to the king at the dissolution of monasteries but what the religious had enjoyed, that is, the profits over and above the finding of divine service, and the repairing of the chancel, and other ecclesiastical burdens ; and the general saving (he says) in the 31 lien. 8, c. 13, may be well extended to a saving of the right of the ordinary in this ])articular, which right he undoubtedly had by the law and practice of the church, w'liich said right is not abrogated by any statute whatsoever (y). And he observes further these things : 1 . That although (as was expressly alleged in the two cases above referred to) this power has been frequently exercised by the sj)iritual courts ; yet no instances appear, before these, of any oj^po- sition made. 2. That in both the said instances, judgment was given, not u])on the matter or point in hand, but upon errors found in the pleadings. 3. That one argument against the allowing the ordinary such jurisdiction, was ab (b) Lind. 253. (f) M. 29 Car. 2, 3 Kcb. 829 ; (f) Ibid. T. "22 Car. 2, 2 Ventr. 35; S. C, ((/) Ibid. 2 lAIod. 257. (e) Gibs. 199. (rj) Gibs. 199. CHURCHES AND CHURCHYARDS. 1787 inconvenieiitl, that such allowance would be a step towards gi^qng ordinaries a power to augment vicarages ; as they might have done, and frequently did, before the disso- hition (h). Where there are more impropriators than one (as is very frequently the case) and the prosecution is to be carried on by the churchwardens to compel them to repair, it seems advisable for the churchwardens first to call a vestry, and there (after having made a rate for the repair of the church and other expenses necessary in the execution of their office) that the vestry do make an order for the churchwardens to prosecute the impropriators at the parish expense. In which prosecution, the court will not settle the proportion amongst the impropriators, but admonish all who are made parties to the suit to repair the chancel, imder pain of excommiuiication. Nor will it be necessary to make every impropriator a party, but only to prove that the parties prosecuted have received tithes or other profits belonging to the rectory sufficient to repair it ; and they must settle the proportion amongst themselves. For it is not a suit against them for a sum of money, but for a neglect of the duty which is incumbent on all of them. Though it maybe advisable to make as many of them par- ties as can be come at with certainty. Repairing of the chancel is a discharge from contri- Eepairing the buting to the repairs of the church. This is supposed to ^^ji'i^ccl '"i <^l>s- be the known law of the church in the gloss of John de tj^g ^paiis of Athon, upon a constitution of Othobou (hereafter men- the church, tioned) for the reparation of chancels ; and is also evident from the ground of the respective obligations upon parson and parishioners to repah% the first the chancel, the second the church ; which was evidently a division of the burden, and, by consequence, a mutual disengaging of each from that part which the other took. And therefore, as it was declared in Serjeant Davics'^s case{f), that there coidd be no doubt but the impropriator Avas rateable to the church, for lands Avhicli were not parcel of the parsonage, not- withstanding his obligation, as parson, to repair the chancel ; so, when this plea of the farmer of an impro- priation (/{), to be exempt from the parish rate because he repaired the chancel, was refused in the spiritual court, it must probal)ly have Ijcen a plea offered to exempt other possessions also from church rates (/). (h) Gibs. 199. (/,;) 2 Keb. 730, 742. (0 2 Rolle's Hop. 211. (/) Gibs. 199, 200. a Y 2 1788 FABRICS AND OFFICEUS OF FABRICS OF THE CHURCH. Duty of seques- trator. Duty of pa- rishioners. Repairing a chapel of ease no discharge from the repair of the church. The sequestrator of a rectory is bound to keep the chancel in repair {771). By sect. 54 of 1 & 2 Yict. c. 106, a part of the profits of a living sequestered by the bishop for non-residence is to be applied to the re])airs of the chancel. A suit Avas brought by the churchwardens of Clare, in the diocese of Norwich, against the Bishoj) of Ely, as im- propriator of a portion of the great tithes, to compel him to repair the chancel. The bishop pleaded, that from time immemorial the pari.shioners had by custom repaired the chancel. A prohibition was granted to try the issue by jury, and their verdict was in favour of the bishop. Sir John Nicholl held the finding of the jury decisive of the case, and that custom controlled in this instance the general law, — that the jjarson repairs the chancel (?«). If there be a cha])el of ease within a parish, and some part of the parish have used, time out of mind alone, without others of the parishioners, to repair the chapel of ease, and there to hear service, and to marry, and all other things, but only they bury at the mother church, yet they shall not be discharged of the reparation of the mother church, but ought to contribute thereto, for the chapel was ordained only for their ease (0). So in the said case, if the inhabitants who have used to repair the chapel, prescribe that they have, time out of mind, used to repair the chapel, and by reason thereof have been discharged of the reparation of the mother church, yet this shall not discharge them of the reparation of the mother church, for that is not any direct prescription to be discharged thereof, but it is by reason thereof a pre- scription for the reparation of the chapel (/?). If the chapel be three miles distant from the mother church, and the inhabitants who have used to come to the chapel have used always to repair the chapel, and there many and bury, and have never Avithin sixty years been charged to the repair of the mother cIuutIi, yet this is not any cause to have a prohibition, but they ought to show in the spiritual court their exemption, if they have any, uj^on the endowment (y). But if the inhabitants of a chapelry prescribe to be dis- (m) 1 Consist. 312, per Lord Stowell. (n) The Bishop of Ely v. Gib- bons and Goody, 4 Hagg. 1G2 ; see Seger and Hill v. Dean and Chapter of Christ Churchy suit for not repairing tlie chancel, cited by Sir J. Nicholl, 3 Phill. 90. (0) 2 Rolle's Abr. 289. (;;) 2 Rolle's Abr. 290. (7) Ibid. CHURCHES A^D CHURCHYARDS. 1789 charged time out of mind of the reparation of the mother church, and they are sued for the repai-ation of the mother church, a prohibition lies upon this surmise (r). If there be a parish church and chapel of ease \\"ithin the same parish, and the chapel of ease has time out of mind had all spiritual rights, except sepulture, and this has been used to be done at the parish church, and therefore they who have used to go to the chapel of ease have used time out of mind to repair a part of the wall of the churchyard of the parish church, and in consideration thereof, and be- cause that they Avho are of the chapel of ease have used time out of mind to repair the chapel of ease at their own costs, they have been time out of mind discharged of the reparation of the parish church, this is a good prescrip- tion ; and therefore if they be sued in the spiritual court to repair the parish church, a prohibition lies (5). If the chapel of ease has used time out of mind to have all divine services except burial, and the inhabitants within the chapehy have likewise always repaired the chapel, and prescribe in consideration of ^s. 4(1. a year to be paid for the reparation of the mother church to be discharged of the reparation of the mother church ; if the inhabitants of the chapelry are sued for the reparation of the mother church, a prohibition lies upon this modus (/). In Ball V. Cross, in 1 Will. 3, the inhabitants of a chapelry within a parish Avere prosecuted in the eccle- siastical court for not paying towards the repairs of the parish church ; and the case Avas, those of the chapelry never had contributed, but always buried in the mother church, till about Henry the Eighth's time the. bishop Avas prevailed on to consecrate them a burial place, in consi- deration of Avhich they agreed to pay toAvards the repair of the mother church. All AA-hich appeared upon the libel. And it Avas holden by Holt, Chief Justice, that those of a chapelry may prescribe to be exempt from repairing the mother church, as where it buries and christens Avithin itself, and has ncA^er contributed to the mother church : for in that case it shall be intended coeval and not a latter erection in ease of those in the chapelry ; but here it appears that the chapel could be only an erec- tion in ease and favour of them of the chapelry, for they of the chapelry buried at the mother church till Henry the Eighth's time, and then undertook to contribute to the repairs of the mother church (?/). ()•) 2 Rolle's Abr. 290. (t) Ilnd. (s) Ibid. («) 1 Salk. 16J, 165. 1790 FABRICS AND OFFICERS OF FAIUIICS OF THE ( IIIIU IE Churches If two c'liiirclic's bc uiiltccl, llic I'opairs of the several nniteil, how cliurelies sluiU bc made as tliey were before the union (.r). K-.r.'-'^'t". 1 " ^^''^ arcluleacon shall cause chancels to berepaireil by 3iulj;e shall tliosc wlio are bound thereunto" (y). laiiso the re- By a Constitution of Kcynokls : " AVe enjoin the arch- piius to be deacons and their officials, that in the visitation of churches, they have a diligent rc Ad. & Ecc. 118. ' ((/) Harper v. Forhen aitd Sis- (/) Wcslerlony.Liddell^'SlooxG's son, 5 Jur., N. S. 275; Ritchinrjs Special Report. CHUECHES AND CHURCHYARDS. 1 7 93 cliurcli in cases of difficulty arising out of suggested alterations (A). This course has often been pursued. It will be found that, in the following decisions, these Principal de- principles of law are put in execution (/). cisions. In the case of Hopton and Quarrell \. Minister and Hopton, A'c. Churchwardens of Kemerton (m), the judge said : — " It is ^ Minister, ^ the boundeu duty of the ordinary never to grant a faculty ^^^j/ emei- for expensive alterations in any church, which are pro- fessed not to be paid by a church rate, unless the judge has before him the most ample security that the funds AviU be otherwise provided for than by the parish" (n). In Sieveking and Evans v. Kingsford, articles having Sievching and been filed under the Church Discipline Act (3 & 4 Vict, l^rans v. c. 86), against a clergyman for making certain alterations "'/7-y'"'^- in his cluu'ch without having first obtained a legal sanc- tion to them, he gave an affirmative issue thereto. The court then requested the archdeacon of the district in which the church is situated to inspect such alterations, and to report to it as to their nature and propriety, which he did. It was ruled, in the particular circumstances of the case, that the court will adopt the recommendation of such a report, unless it contains some grievous misstate- ment of fact, or erroneous conclusion of law. The court ordered a confirmatory faculty to issue in re- gard to those alterations which met Avith the archdeacon's approval, and admonished the clergyman to restore the church in every other respect to the state it was in before he commenced the alterations (o). In Cardinall v. Molyneux, a case in a court of equity. Cardinally. the defendant J. M., the incumbent of a parish church, in ^ohjncux. jNIarch, 1859, without the consent of the churchwardens {k) E.g., in the C&&Q ol Hopton of Gloucester, published by "W. ami Quarrell V .Vicar and Church- Benning & Co., London, 1848. wardens of Kemerton, just men- («) This was also said to be tioned ; by the Chancellor of Ely the uniform practice of the Court in the stone altar case, Faulkner of Arches; and the case of Roop V. Litchfield; by Lord Stowell in and Clark v. Vicar, d-c. of Ches- Barclin v. Calcott, 1 Consist. 145; terfield was referred to, where the by Dr. Lushington in Westerton faculty was not allowed to pass V. Liddell; and by Mr. Pemberton till a bond in the sum of 3,200/. Leigh, one of the lords of the had l^een given by the apjilicants, Privy Council, in the same case with sureties, for the performance on appeal. of the intended alterations and (/) Vide supra, as to mode of tlie payment of all tlie expenses proceeding to obtain a faculty, attending the same. Part IV., Ciiap. VL, pp. 1254, (o) Sievcking and Evans v. 1 259. Kinqsford, 3G L. J. (N. S.) Eccl. 1 (m) Judgment of Dr. Pliilli- (1866). more, chancellor of the diocese 1704 FARRICS AND OFFICERS OF FAURICS OF THE CIIURCII. Conlintill y. or ])arIslii()ncTs, and without a f'acultv, (llrccted tlic dc- Moli/iuiix. fendant Ci. to rcinovo the pews, sittings, and arish, and he and those whose estate lie has in the house, liave had time out of mind a certain ])ew or seat in the church, maintained by him and them, the ordinary cannot remove him, (for prescrij)tion makes certainty, tlic mother of quietness,) and if he do, a pro- hibition lies against him. But where there is no prescrip- tion, there the ordinary, that has the cure and charge of souls, may for the avoiding of contention in the church or chapel, and the more quiet and better service of God, and placing of men according to their qualities and degrees, take order for the placing of the parishioners in the church or chapel ]3ublic, which is dedicate and consecrate to the serWce of God {u). For the disposal of the seats in the naA^e of the church appertains of common right to the bislio]) of the diocese ; so that he may place and displace whomsoever he pleases (.r). Parishioners are not at liberty to choose what seats they like ; the distribution of seats among them rests in the dis- cretion of the ordinary, which he generally exercises by the churchwardens, who are his officers as well as those of the parish ( ?/). To exclude the ordinaiy from his jurisdiction, it is necessary not merely that a possession shoidd be shown for many years, but that the pew should have been built and repaired time out of mind (r). Churcli- But by custom the churchwardens may have the order- waickiis ii^o^ of the seats, as in London ; which, by the like custom, power to (lis- ®i-,ii /\ pose of the may be in other placcs (a). same. For a custom time out of mind of disposing of seats by the churchwardens and major pai't of the parish, or by twelve or any particular number of the parisliioners, is a good custom ; and if the ordinary interpose, a prohibition will be granted (//). But the churchwardens must show some particular reason why they are to order the seats exclusive of the ordinary ; for a general allegation, that the ])arishioners have used to repair and l)uild all the seats in the church, and by reason thereof the cliuichwardens have used to order and dispose (u) 3 Inst. 202. (^) Stocks v. Booth, 1 T. R. \x) 2 Kolle's Abr. 288. 428; 1 Consist. 332. {y) 1 Phill. 31G, 323; 1 Ilagg. (a) Wats. c. 39. 394. (h) Gibs. 198; 1 Salk. 1G7. CHURCHES AND CHURCHYARDS. 1801 of the seats, is not sufficient to take awaj the ordinary's power in disposing and ordering the seats ; because this is no more than tlie parishioners are bound to do of common right, to Avit, building and repairing the seats, for which they have the easement and convenience of sitting in them (c). Their general authority must be exercised justly and dis- creetly (^) by the churchwardens, or they maybe corrected by the ordinary (e). In churches Avhere the seats are fixed they should ])lace the parishioners with some regard to their rank and station (/), and families should be seated together (if) ; but in no case are the higher classes to be accommodated beyond their real wants, to the exclusion of their poorer neighbours (/*). If through the increase of inhabitants more seats be necessary, the churchwardens cannot erect them of their own head.. It cannot be done without the licence of the ordinary. If there be a dispute whether more seats are necessary, or Avhere they shall be placed, the ordinary is sole judge in that case. A person claiming a pcAv must show either a faculty or Appropriation prescription, which will suppose a faculty (z). If a pew is of a pen- rightly appurtenant, the occupancy of it must pass Avith ™"^]/!^^v the house, and the indiA'iduals cannot, by contract between prescription. themselves, defeat the general right of the parish {j) : even if there is a prescriptiA-e right, it could not be exer- cised by transferring it to ])ersons not inhabitants of the house or the parish (^). Where the prescription is inter- ru])ted, a jury is not bound to presume a faculty from long undisturbed possession (J). If a person prescribe that he and his ancestors, and all Reparation they AA'hose estate he has in a certain messuage, have used necessary to to sit in a certain seat in the nave of the church for time ^'^ ^ ^ ^^^ ^' out of mind, in consideration that they have used time out of mind to repair the said seat ; if the ordinary remove him from this seat, a ]:)rohibition lies ; for the ordinary has not any poAAcr to dis]:)Ose thereof, for this is a good prescription, and by intendment there may be a good con- sideration for the commencement of this prescription, (<■) Wats. c. 39. (7) 2 Add. 434. (J) Rnjnnlds v. MoncTcton, 2 (/() 2 Add. 426. Moody & Rob. 384. Same law (/) Ld. Stowell, 1 Consist. 322; laid down in an action on the Fullei' v. Lane, 2 Add. 247; 1 case. Hagg. 39. (0 Wyllic V. Mott and Frmch, ( /) Ld. StOA\-ell, 2 Consist. 319. 1 Hagg. 33. (A) Ibid. (/) 1 Phill. 323. (l) 3 M. & Ry. 389. r. VOL. II. 5 z 1802 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Scat not to po to a man and his heirs. Seat may be prescribed lor, as belonging to a house. AVhen repara- tion need not be pleaded. altliongli tlic place wlicrc tlie seat is be the freehold of the ])ai'son(;>). But if a person prescribe to have a scat in the nave of the churcli generally, Avithout the said consideration of repairing the scat, the ordinary may disj)lacc hini(y). A .) 2 Pvollc'-s Abr. (V) Ibi.l. (/•) Gibs. 197. 288. (.s) 1 T. R. 431. (0 Vide supra^ Sect. 4. (m) Gibs. 197, 198. CHURCHES AND CHURCHYARDS. 1803 the plaintifF in his pew, which he claims by prescription as appurtenant to his messuage in the parish ; the declaration sets forth that the plaintiff and all those whose estate he hath in the said messuage have time out of mind repaired the pew. A verdict Avas given for the plaintiff', subject to the opinion of the court, upon a case which stated that at the trial there Avas no evidence given that the plaintiff", or any of the OAvners of the messuage, had ever repaired or been obliged to repair the pew, or that the pcAV had ever wanted repairing. The question Avas, Avhether the plaintiff' can maintain this action AAdthout proAdng repairs done to the pew. It was argued for the plaintiff, that as this was an action by one in possession against a mere stranger and AATongdoer, there Avas no necessity to proA^e any repairs ; and that there was a great difference betAveen an action against a stranger and a contest with the ordinary in pro- hibition ; for at common law the ordinary has the disposal of all the seats in the church ; and. although they be built and repaired at the charge of the whole parish, yet that Avill not oust him of his jurisdiction, and therefore a special title must be shoAved against him by building or repairing the seat ; but possession alone is sufficient against a mere stranger. And of this opinion was the court ; aaIio said, that this being a possessory action against a stranger and a mere Avrongdoer, the plaintiff Avas not obliged to proA-e • any repau-s done by himself or others whose estate he has ; for it is a rule in law, that one in possession need not to show any title or consideration for such possession against a wrongdoer. But it is otherAvise Avhere one claims a pcAv or an aisle against the ordinary, who undoubtedly has -prima facie the disposal of all the seats in the church; and against him a title or consideration must be shoAvn in the declaration and proved (a,-). Possession must, howcA^er, be understood according to Eviiknce of the subject-matter, and in this case must be su])ported by possession. a title deriA'ed either from prescription or a fiiculty (?/). But possession for thirty-six years Avas holden to be pre- sumptive CA-idence of a prescriptive right, in a case Avhere the church had been rebuilt about forty years before (z). Yet in a later case, it appearing that the seat itself Avas built thirty-five years ago, for the accommodation of the plaintiff', and to put an end to a dispute between tAvo (x) 1 Wils. 32G; 1 Lev. 71; 3 {z) Rogers v. Broolcs, 1 T. R. Lev. 73. 431. {y) Stocks v. Booth, 1 T. R. 428. 5 z2 dcnce of re- pairs, 1804 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. liunillcs, this proof Avas liolden to rol)iit tlic presumption uliicli would otlicrwise arise from so loiifj a possession (a). ■\Vhntisevi- '• The stron<2;est evidenee of tliat kind is the huihlin<^ and repairing time out of mind; for mere repairing thirty or forty years will not exclude the ordinary. The posses- sion must be ancient, and going beyond memory ; and though on this subject I do not mean the high legal memory, it must be longer than ap])ears in the circum- stances of this case" (/>). That a house has been built only eighty years is not sufficient to establish a ]nvscrii)tive right, because it might be presumed that the evidence of the grant of a faculty was not extinct in that time (c). A prescriptive right must be clearly proved ; the facts must not be left equivocal, and they must be such as are not inconsistent with the general right. In the first place, iise and occupation of the pew must be shown to have gone fi-om time immemorial, as appurtenant to a certain messucif/e, not to hauls. Secondly, it must be shown that if any acts have been done by the inha))itants of such a messuage, they maintained and upheld the right. At all events, if any repairs have been required within memory, it must be proved that they have been made at the expense of the party setting up the ])rescriptiye right. The onus and hcnejiciam are sujiposed to go together; mere occu- pancy does not prove the right (^d ). On an ap])lication for a faculty to repair and repew a church, a parishioner appeared to the decree and prayed a faculty might not be granted without a proviso that a pew, claimed to be holden by him by prescrijition, should not be removed or altered. The prescri])tion Avas denied. Ruled, that a prima facie title by jirescription was esta- blished, and that the faculty should be issued witli the proviso prayed. It was said in this case that evidence of repair to a pew claimed by prescription is not absolutely necessary, as no repair may have been made within the period of any one living (e). It has however been generally holden (y) that repara- tion from time to time is necessary to be pleaded and proved in order to make out a prescriptive right to a pew (y). Lining and putting new cushions into pews are (a) Griffith V. Matthews, 5 T. IT. R. 431; Mai?iwaringv. Giles, R. 290. [)B.& Aid. 350. (h) Ld. Stowoll, 1 Consist. (c) Knajip v. The Parishioners 322. of IVi/trsdcn, 2 Roberts. 358. ( c) Ibid. ( /) See also Pepper v. Barnard, (d) Pettmanv.Bridger, 1 Pliill. 7 Jur. 1123 (1843). 325. See also Stocks v. Booth, (g) 3 Add. 0. CHURCHES AND CHURCHYARDS. 1805 not repairs, but mere ornament ; these are not usually done by the jiarish (// ). A seat cannot be claimed by prescription, as appendant Seats cannot to land, but to a house (i). For such a seat belongs to the ''e claimed as • • • bclori'^-''itio' to house in respect of the inhabitants thereof ; and yet it has h^q landr been holden that a seat in an aisle may be prescribed for by an inhabitant of another parish {i); for the inhabitant may liave built the aisle, and may be bound to repair it. But the court doubted if such presciiption would be good for a seat in the nave of the church (k). In the Court of Exchequer it was holden, that a pew in the aisle of a church may be prescribed for as appurtenant to a house out of the parish (/). As a seat in the church, so priority in a seat may be Priority in a prescribed for. Thus it was declared in the case of Carle- ^^^^ ^^\^^ ^^ ton V. Hutton, in 2 Cha. 1. Carleton claimed the upper place in a seat. Hutton distm-bed him. The Archbishop of York sent an inhibition to Carleton, till the matter siiould be determined before him. But prescription was svu'mised, and thereupon prohibition obtained ; becaiise as well the priority in the seat, as the seat itself, may be claimed by prescription (?«). The right to sit in a pew may be apportioned ; and Apportion- therefore wliere by a faculty, reciting " that A. had applied "^^^^ °^ *^*^'^- to have a pew appropriated to him in the parish church in respect of his dwelling-house," a pcAV was granted to him and his family for ever and the owners and occupiers of the said dwelling-house, and the dwelling-house was after- Avards divided into two, it Avas holden that the occupier of one of the two (constituting a very small part of the original messuage) had some right to the pew, and in virtue thereof might maintain an action against a Avrong- doer(w). Priority in a seat in the body or aisle of the church may be appropriated, and belong to a house by faculty or by prescription, which presupposes a facidty (o). With the ex])ei'ience of the mischief that has resulted Faculties for from a too lavish gTant of these faculties in former times, pp«s— eonsi- it is the duty (says Sir J. Nicholl) of the ordinary to pre- ^!^\^^^.\y should vent its reciuTcnce, by proceeding in this whole matter Avith guide the ordi- prudence and circumspection. Faculties which might with "'"T i" issuing propriety have been granted a century or two ago, the (//) 3 Pliill. 331. (m) Noy, 78; Latch. IIG. (J) Gibs. 198; Sidcrf. 3<31 ; 2 {n) Harris v. Dreicc, 2 B. & eb. 342. Vuh supra, Sect. 4. Ad. 1G4. (A;) 8iclerf. 361. (o) Roll. Abr. 288; Gibs. 221; (/) Davis V. Witts, Forr. Rep. IHagg. 39; Lonsley v. Uoyivard, 180G FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Faculties for present statc of population niav render most improper, pews— consi- True it may be that at the ixirtieular time the faculty is ap- wliith should plicci lor, its issuc may not be generally inconvenient — the guide the ordi- parishioners at large may be sufficiently accommodated, thm*" ^®*""'° notwithstanding its issue ; but in this even, the most favour- able case, there are obvious reasons for inducing the ordi- nary to entertain such applications Avith a good deal of reserve (p). The court should incpiire, 1, -whether such a grant be prejudicial to the parish ; 2, Avliether to the ])er- sons opposing the grant ; 3, -whether the applicant for the grant is qualified for it by station and property in the ])arish ( ^vhere the Court of Arches confirmed the decree inferior court of the inferior court, observing that faculties generally are in the matter matters SO much within the discretion of the local iudf>:e, I'^cuities. |.jjjj^^ there must be a considerable desrree of sreneral incon- venience to induce a reversal of his decree. Form of the The best form of a grant of this description is " to a man faculty ^ ^'^^ ^^^ family so long as they continue inhabitants of a cer- tain house in the parish;" though modern usage sometimes omits " of a certain house" (r). All intimations should run " to show cause Avhy a facidty should not be granted to appropriate," &c. (s). How far re- llvtt v. Jones seems to have established that a faculty ob- vocable. tallied by surprise and undue connivance may be revoked {t). When a faculty limited to a certain period expires, the right of the panshioners revives to the pews which were the sub- ject of the faculty {71). Generally speaking, the faculty. ip) Fuller V. Lane, 2 Add. 1 Pliill. 237. 428. (.s) 2 Sir G. Lee's Rep. 354. (fj) Partington v. Rector of (/) 2 Hagg. 417. Barnes, 2 Lee, 345. (?<) 3 Hagg. 733. (r) Fuller v. Lane, 2 Add. 42G; CHURCHES AND CHURCHYARDS. 1807 if once issued, is good, even against the ordinary liim- Dr. Gibson asserts, that the seats in the chancel are Ordinary's dis- under the disposition of the ordinary, in hke manner as position of those in the body of the cliurch. Which needs only to be chancel, mentioned (he says) because there can be no real ground for exempting it from the power of the ordinary ; since the freehold of the church is as much in the parson as the free- hold of the chancel ; but this hinders not the authority of the ordinary in the church, and therefore not in the chancel. And in one of our records, he says, in Archbishop Grindal's time, we find a special licence issued, for the erecting seats in the chancel of a church, together with the rules arnd directions to be observed therein (?/). After the parson and his family be seated, if there he room for any other seats, the bishop can grant faculties for the building and disposing ;of them in the chancel as well as the body of the church {z). A general grant of part of the chancel of a chiu-ch by a lay impropriator to A., his heirs and assigns, is not valid, because it Avould take the chancel entirely out of the juris- diction of the ordinary. The chancel was unalienable by the rector, without consent of the ordinary, before the dis- solution of the monasteries ; and the general saving in 31 Hen. 8, c. 13, s. 4, leaves the right as it existed be- fore («). The parson or rector impropriate is entitled to the chief Impropriator's seat in the chancel. This was resolved by the Court of ^haVce/^'^ King's Bench, in 7 Jac. 1, in the case of Hall v. Ellis, that so it is of common right, in regard to his repairing the chancel; but it was declared at the same time, that by prescription another parishioner may have it {h). In Spry v. Flood, Dr. Lushington said, " I apprehend the rector woidd be entitled, according to the common law of the land, to the chief seat in the chancel, whether he be endowed rector, or spiritual rector only, unless some other person be in a condition to prescribe it for himself from time immemorial ; and that the ecclesiastical court, in the exercise of its ordinary authority, would allot to him such a right, and protect him against the disturbance of it " {c). In some places, where the parson repairs the chancel. Vicar's scat in the vicar by prescription claims a right of a seat for his *^^ chancel. {x) 2 Add. 431. (a) Per Holroyd, J., in C/^/orcZ iy) Gibs. 200. v. Wicls, 1 B. & Aid. 498. (0) Prideaux, 128. In CUffnrd {h) Nov, 153; Johns. 264. V. Wicks, 1 B. & Aid. .506, Bayley, (c) 2 Curt. 359. J., repeats this rule. 1808 FABUICS AND OFFICERS OF FABUICS OF THE CHURCH. Vicar's scat in the chancel. Difference between chancels and aisles. family, and of giving leave to bnrj there, and a fee upon the burial of any cor|>se(r/). As to the right of a scat in the chancel, it was originally inherent in every vicar. For before the Reformation, the hours of the breviary were to be sung or said in the chancel (not in the body of the church) by the express ■words of a constitution of Archbishop AVinchelsea; and this was to be done, not only on Sundays and festivals, but on other days, by another constitution of the said arch- bishop; and these hours were to be siuig or rehearsed, not by the vicar alone, but with the consort and assistance of all the clergymen belonging to the church, which Avere the ecclesiastical family of the vicar. So that it is evident, that all vicars had a right of sitting there before the Kefn-- mation, and by consequence must retain this right still, unless it appear that they have quitted it ; and if they have not for forty years past used the right, this breads a pre- scription against them in the ecclesiastical courts. In many chancels are to be seen the ancient seats or stalls used by the vicar and his brethren in performing these religious offices, like those which remain in the old choirs of cathedral and collegiate churches ; and from hence it is, that caucf'llus and chorus (the chancel and the choir) are words of the same signification. This being the place where the body of the clergy of every church did sing, or at least rehearsed their breviary ; and if any common parishioner may prescribe to a pew in the chancel, much more may the vicar (e). As these seats were placed at the lower end of the choir or chancel, for the daily use of the vicar, so at the upper end stood the high altar of eveiy church, Avhere, as the vicar, or his representative, was obliged to celebrate mass every Sunday and holiday of obligation, so he might do it every day, if there was occasion, or if he pleased ; so that it is clear, the vise of the chancel was entirely in the vicar, whoever repaired it ; and therefore no wonder if the pave- ment were not to l^e broken up without his leave ; and that thereupon he should acquire a right of receiving what fees were due on such occasions. And the Reformation left the riglits of jiarson and vicar as it found them {f ). " It is therefore,"' I\Ir. Johnson says, "a very groundless notion with impropriators, that they have the same right in the gi'cat chancel that a nobleman hath in a lesser. These lesser chancels are supposed by lawyers to have {d) Johns. 242, 243 ; Vide supra, Part III. Chap. X. Sect. 7. (c) Johns. 243. (/) Johns. 244. CHURCHES AND CIIUECHYARDS. 1809 been erected for the sole use of these noble persons ; Avhereas it is clear the great chancels were originally for the use of clergy and people ; but especially for the cele- bration of the eucharist, and other public offices of religion, there to be performed by the curate and his assistants. That the parsons repair these gi'eat chancels doth not at all prove their sole right to them, for they were bound originally to repair the church as well as chancel ; and of common right the repairs of the church are still in the parson ; it is custom only eases them of this burden. The ordinary hath no power to order morning or evening prayer to be said in noblemen's chancels, but he can order them to be said in the great chancel " {g). The incumbent has no authority in the seating and Incumbent has aiTano-ino; the parishioners bevond that of an individual ^^ power as to member of the vestry, and which his station and influence naturally give him: it is not the vicar but the vestry Avhich appro})riates the seats ; the general superintendence and authority in allotting them rests with the ordinary (A). If any seats annexed to the church be pulled down, the Scats pulled property of the materials is in the parson, and he may down. make use of them if they were placed in the church by any one of his own head, without legal authonty ; but for the seats erected by the ])arishioners by good authority, it seems that the property of the materials upon removal is in the parishioners (z). If any persons on their own heads shall presume to build any seat in the church, without licence of the ordinary, or consent of the minister and churchwardens, or in any inconvenient place, or too high, it may be pidled down by order from the bishop or his archdeacon, or by the church- Avardens by the consent of the parson : for the freehold of the church, and all things annexed to it, are in the parson ; and therefore if any presume to cut or pull doAvn any seat annexed to the chiux-h, the parson may have an action of trespass against the misdoer (though he formerly set it up), if he do it without the parson's consent, or order from the ordinary ; but if the seat be set loose, he that built it may remove it at his pleasure {h). In Gibson v. fVrifjht, in an action of trespass brought by Gibson, for breaking and cutting in pieces his pew, and taking it away ; the defendants pleaded, that they (.7) Johns. 244, 245. Vide (/) De?:ge, part 1, c. 12 ; Tri- supm, Sect. 4. dcanx, 125. {h) Tattcrsall v. Knlfjld, 1 (/.) Dccge, part 1, c. 12. Phill. 233. 1810 FABIilCS AND OFFICERS OF FAT3inCS OF THE CHURCH. Seats pulled werc clnu'clnvanloiis, and tliat tlic plaintiff liad built it in °^^'°* the church without licence. And by the court, the trespass is confessed ; for though they may remove the seat, they cannot cut the timber and materials into pieces (Z). But it has been said, that this case is not law ; because the freehold of the church being in the incumbent, when the person has fixed a seat to it, it is then become parcel of his freehold, and consequently the right is in him ; so that the breaking the timber could not be ])rejudicial to the other, because he had no legal right to the matci'ials, after they were fixed to the freehold (m). And Dr. Watson says, although he AA'ill not question the law of this case, yet thus much is to be said against it, that the freehold being in another person, the annexing of the seat thereto seems to make the seat to be a part of the freehold, and so to be in him in whom the freehold is, and the use of it in them that have the use of the church ; and if so, then the breaking the timber could be no A^Tong to him that had no legal right in it afler it was fastened to the freehold, and became (as other seats) of common use, and at the disposal of the ordinary (w). And further, he says, that if a man with the assent of the ordinary sets up a seat in the nave of the church for himself, and another pulls down or defaces it, trespass vi et a?' mis in svich case does not lie against him, because the fi'eehold is in the parson, and so the only remedy is in the ecclesiastical coui't (o). J^er Buller, J. : Trespass will not lie for entering into a pew, because the plaintiff has not the exclusive posses- sion ; the possession of the church being in the parson {p)', and the plaintiff having only the liberty to use the seat(^). But an action on the case lies for a disturbance of the right (r). Power of the All persons (says Sir J. NiclioU) ought to understand ecclesiastical that the sacred edifice of the chiu-ch is under the protection *k"!*^ ^\^",^i'? of the ecclesiastical laws as they are administered in these those who lUe- . n ^ ^ i • • i • • gaily erect or courts ; that the possession of tlie cliurcfi is in tlie minister pull down or and the churchwardens; that no person has a i-ight to a ter pews, c. ^^^^q^. j^ -wlieji it is not o]:)en for divine service, except under their pei'mission and with their authority ; that pews already erected cannot be pulled down without the consent of the (0 Noy, lOS. (q) Dau-trie v. Dee, 2 Roll, (m) Nels. 49:3; Ayl. Par. 486. Rep. 139; Palm. 46. (n) Wats. c. 39. {>•) Noy, 78; 1 Siderf. 88; Sir (o) Ibid. T. Jones, 3; 3 Kcb. 745; 1 T. Ip) Stocks V. Booth, 1 T. R. Rep. 428. 430. CHURCHES AND CHURCHYARDS. 1811 minister and churchwardens, unless after cause shoAvn by a faculty or licence from the ordinary. The learned judge, in this case, condemned a lessee of an impropriator of great tithes in the costs of the proceeding, admonished him to pull down the seats he had erected, to reinstate the chancel as it was, and to certify by the first day of next term that he had complied with the sentence (s). Trifling alterations, however, may be made in a pew without a faculty fi'om the ordinary, unless some private right is infringed thereby ( t). It is to be observed that acts of parliament for building churches, or a particular church in a specific mode, do not oust the jurisdiction of the ecclesiastical com-t, but merely prescribe the rules which such jurisdiction shall observe in the particular instance. There remains yet to be considered that sort of right Possessory to a pew which is termed " possessory" (u). This, by the "Sl^t to a pew- common law of the church, is holden sufficient to main- tain a suit against a mere distvu'ber : the fact of possession implies either the virtual or actual authority of those having power to place ; the disturber must show that he has been placed there by this authority. But a possessory right is not good against the churchwardens and ordinary ; they may displace and make new arrangements, but they ought not, without cause, to displace persons in possession ; if they do, the ordinary would reinstate them. The pos- session, therefore, will have weight : the ordinary Avould give a person in possession ccsteris -paribus the preference over a mere stranger {x). A possessory title is sufficient ground for resisting a faculty (?/); but this right is only co-extensive in duration with actual possession, and if this be abandoned, the right wholly ceases (2:). And in S-pry V. Flood {a), the judge said — "Whether under any cir- cumstances the rector, or any one else, can properly be displaced fr-om a pew except by the churchwardens, and (s) Jarratt v. Steele, 3 Pliill. that lodgers may he placed by a Rep. 167. cliurcliwarclen, and not to be dis- (t) FarJuimY.Temjjhn-juI'hill. phiced by a parisliioner." (Vide 527. tliis and Dr. Arnold's opinion ; (u) " 19th Febry. 1740, and Mr. Toker's MSS. p. 459.) Dec. 8. Arches. Britdc v. {x) Pettman\.Bridger,\V\\\\\. UmfrcviUe. Pew in Ilornsey 324. Church. Brittle a parisliioner (?/) Wilhinson v. Moss, 2 Lee, and Umfreville and his wife onbj 259. Zoc/r/cnSjiilaccdby churclnvardens. (,:) Woolcoinhe v. Ouldridf/e,3 After pnl)lication would not allow Add. 7. Brittle to prove a title. Iloldcn, (a) 2 Curt. 359. Mhcrc triable. 1812 FABRICS AND OFFICERf; OF FABFJCS OF THE CHURCH. how far tlio clmrcliwanlens could interfere of tlicir own authority with a jjossessorv ri<2;ht, arc (jucstions upon which I do not mean to enter. It was the oi)inion of Lord Stowell that they couUl not do so without reference to the ordinary. Perhaps later cases and the necessity of the times may have extended that power, and it may be com- petent for them to act without any authority of tlie ordinary previously conferred." Rights to seats, liy the fjcncral law there can l)e no permanent property in pews(/^), but it has been said, that in all cases of pre- scriptions for seats, the onlinary has nothing to do, but the matter is solely determinable at the common law (c) ; and that therefore, if a suit be commenced in the spiritual court for a seat, upon the account of prescrijition, a pi'ohibition will lie for the party sued, because, whetlier the prescription be good or not, is not in the spiritual court to judge {d). And it has been also said that the plaintifi', if it go against him, may have a prohibition as to the costs, because the suit is coram nonjudice as to the principal ; but there seem to be good reasons against that. For the spiritual court may in several cases proceed upon libels grounded on pi'cscrip- tion, where the prescription is not denied (so that such suits are not absolutely coram nov judice); and the reason why a prohibition shall be granted Avhere the prescription or custom is denied, seems to be this : that the notion of customs and prescriptions is different by the ecclesi- astical law from what it is at the common law, as to the time in which such custom or prescription may be created ; for the ecclesiastical law allows of different times in creat- ing customs or prescriptions, and generally of less time than is allowed of by the common law, which owns no time in such case, but that whereof there is no memory of man to the contrary. Therefore the common law will not suffer the spiritual courts to try prescriptions, whereby they might affect and charge persons' inheritances by adjudging them to be good, which by the common law are no prescriptions (e). The title to a seat is triable at the common law, by action upon the case ; and it is agreed that the plaintiff need not to show any reparation in his declai'ation, but he ought to prove reparation in evidence ( /). And this is (Jt) Deggc, part 1, c. 12. Cheslom, 1 Wils. 17. (c) Hawkins v. Comjiicf/ne, 3 (c) Wats. c. 39. Phill. 11. (/) VerUsi\e,C.B.,iu Stephens (d) Wats. c. 39 ; W'dcher v. caie, ibid. CHUKCHES AND CHURCHYARDS. 1813 a probable reason for the prescription, for, per Bridgman, C.J. — Althongli prescriptions resemble the river Xile, in this respect, that no one can trace their origin, so that no direct reason can be given for them, for they were before the memory of man ; yet some probable reason, sufficient to make the prescription reasonable, ought to be given {g). Nevertheless, for a disturbance in the seat, a man may sue in the spiritual court, and the defendant, if he will, may admit the prescription to be tried there, as a defen- dant does a modus or a pension by prescription (A). The ecclesiastical court will admonish a Avrongdoer not When such to disturb a person in possession of a pew, although he ^ipbts are has no well-founded title to \t{i). Trespass will not lie ecdesiasticaf by an individual for entering a pew because he has not courts. exclusive possession (A), but an action on the case lies for disturbance of his right (/). Such an action was brought in Morgan v. Curtis {ni), and in Rogers v. Brooks (^n). The temporal courts in both these cases held a shorter pei'iod of possession sufficient to raise a presumption of a faculty, than Lord Stowell in Walker v. Gunner {o). But the usual method of procedure is by a suit in the ecclesi- astical courts for perturbation of seat ; this is a civil suit : as also is another remedy afforded by the ecclesiastical court, that of citing the churchwardens to show cause why they have not seated certain persons suitably to their con- dition ; this was the mode adopted in Walker v. Gunner, in Avhich case Lord Stowell said, " I think the process has issued very properly in this case, and this is a convenient mode of proceeding." There appears to be another differ- ence in the doctrine of the temporal and ecclesiastical courts upon this subject ; namely, in the former, repairs need not be pleaded in an action against a stranger for disturbing a person in his prescriptive possession (/>), which seem to be usually requLred in such a suit before the ordinary. The law as to scats, under the special provisions of the (f/) 1 Siderf. 203. borough and Tenterden. (A) 2 Salk. 551 ; 2 Ld. Ravm. (/) Cra.ss v. Salter, 3 T. R. G30. 755 ; CUffordy. Tl'/c/j.s, 1 B. & Akl. (Z) Stocks v. Booth, 1 T. R. 430. 498. This case, as lias been said, {!) Nov, 78; 1 Sid. 88. decided tiiat a grant of part of {m) 3 Man. & Ry. 389. tlie chancel by the rector to a (??) 1 T. R. 431. man and his heirs was void. See (o) 1 Consist. 322. remarks on the rector's power {p) Lofft, 423; 1 "Wils. 32G. over the chancel, by Lds. Ellen- 18U FABRICS AND OFFICEUS OF FABRICS OF THE CHURCH. Cliurcli Building Acts, is .iiiomaloiis and com])licatcd, and is treated of" hereafter in the Ciiapter on the liuikling of Churches (<7). Subject to ecclesiastical court. When not a highway. Sect. 8. — Church-xoay. The right to a church--\vay may be claimed and main- tained by Hbel in the spiritual courts. This is supposed in the several reports upon this head, by the mention of particular circumstances, "without which prohibitions would not have laid(r). A church-way may commonly be claimed as a private way ; and upon suggestion that it is a highway, a prohibi- tion will be granted ; so if the suggestion prove true, the right is triable at common law (5). A way to a parish church, or to the common fields of a town, or to a village, which terminates there, may be called a private way, because it belongs not to all the king's subjects, but to the particular inhabitants of such parish, house or village, each of which, as it seems, may laave an action for nuisance therein ; whereas nuisances in highways are punishable by indictment, and are not actionable unless they cause a special damage to some particular person {t). Yet an indictment for stopping communem viam pedestrcm ad ecclesiam de Whitby was liolden good, for it was taken to be a foot -way common to all, and not merely to the panshioners, and that the church was only the terminus ad quem{ti). If a way leading to a cluu-ch be a private way, he who ought to repair may be compelled to repau* by the ecclesiastical court, and no prohibition will lie ; but otherwise, if it be a highway, though it lead to a chm-ch. If it be a highway, that is, common to all his majesty's subjects, the charge of repair- ing it, of common right, lies on the occupiers of lands within the parish, but may be cast on certain persons by reason of inclosure, tenure, or prescription, and, in some cases. Is to be regulated by the surveyors (x). Prescription for a church-way may be pleaded by any iq) Part IX., Chap. V. (r) Avl. Par. 438; Gibs. 293. (s) Gfbs. 293; 2 RoUe's Abr. 287; Ayl. Par, 438. (0 3 Bac. Ab. 54. («) 1 Vontr. 208, cited in 2 Ilaym. 1175. {X) See 3 Bac. Ab. 58, 59. CHURCHES AND CHURCHYARDS. 1815 inhabitant in tlie spiritual conrt. This was done in 16 Jac. 1 ; but upon suggestion that it had been enjoyed by permission only, and not as of right, a prohibition Avas granted : as it was also in a case which Rolle mentions in the same year, when the churchwardens of Bithorne and Bowe sued for a church-way as appertaining to all the parishioners by prescription (y). Which case mentioned by RoUe is thus : if the church- wardens of a church sue for a way to a clmrch that they claim to belong to aU the parishioners by prescription, a prohibition shall be granted, for this is temporal (z). In Walter v. Mountague(^a), a case in the Arches Alteration of Court, it is said : " Individuals may by prescription have j,*- 'requires a a right of Avay, and parishioners for attendance on di^ane worship, vestides, &c. Neither the rector nor the church- wardens can make a new path Avithout a faculty from this court. With regard to the jurisdiction, the churchyard being consecrated gi-ound, this court has cognizance of the matter ; it Avould not sanction alterations, however con- A^enicnt, unless the consent of the rector had been pre- A-iously given, or at least asked. If this is an ancient footpath, it is competent to any indiAddual to proceed at law, and this com-t may be stopped by a jorohibition." In this case the court condemned the churcliAvardens in 40/. costs, nomine exjiejisarum, monishing them to be more careful in future, and not considering it a good defence that the ncAv footpath they had made through the church- yard was bona fide for the good of the parishioners. By 59 Geo. 3, c. 134, s. 39, " It shall be lawful for the Power given said commissioners (i), if they shoidd think fit, to alter, re- by Church pair, puU doAAni and rebuild, or order or direct to be altered, "^ ^ ° repaired, pulled down and rebuilt, the walls or fences of any existing churchyard or burial ground of any parish or chapelry, and to fence off, Avith Avails or otherAvise, any additional or new biu-ial ground, to be set out or provided by virtue of this act ; and also to stop up and discontinue, or alter or A^ary, or order to be stopped up and discon- tinued, or altered or varied, any entrance or gate leading into any churchyard or burial ground, and the paths, foot- ways and passages into, through or over the same, as to them may appear useless and unnecessary, or as they shall think fit to alter or vary ; provided that the same be done (7/) Gibs. 293. {h) Tliat is, the Church Buikl- (s) 2 RoUe's Abr. 287. ing, and now the Ecclesiastical, (a) 1 Curteis, 2G1. Commissioners. 18 IG FABRICS AND OFFICEUS OF FABRICS OF THE CHURCH. " Avith the consent of any two justices of the peace of the county, city, town or phico, where any such entrance, gate, ]iath or passage sliall be stopped up or altered; and on notice being given in the maimer and form prescribed by an act 55 (ieo. 3, c. OS.*' No apiwal. Schedule A of that statute gives a form of notice of an oi'der for sto]>ping uj) an useless road, and the form states that such order will be enrolled at sessions, unless, upon an appeal ar/ainst the same to be then made, it be otherwise determined. It has been holden that 59 Geo. 3, c. 134, though incorporating the foregoing statute, did not give an api)cal against the order of the commissioners ; for an appeal cannot be r/ivcn by implication, otherwise it Avould not have been taken aAvay by the repeal of iiii Geo. 3, c. 68, by 5 & 6 Will. 4, c. 50, s. \\{b). Under this act it has been ruled, that the notice required must be given before the making of the order by the com- missioners (c). Sect. 9. — Church Rates. Old law. According to the old law, rates for repai-ation of the church were to be made by the churchwardens, together with the parishioners, duly assembled, after due notice, in the vestry or the church. '•' Unusquisque parocliianus tenetur ad reparationem ecclesioE juxta portioncm terrcB quam possidet intra paro- chiam, et secundum numerum animalium qua tenet et nutrit ibidem,^^ said Lindwood {d). That was according to lands and stock ; but the rate was a personal, not a real charge, laid upon persons in respect of their lands. It is unnecessary to state the various stages in the history of the subject, by ■which in our day this doctrine was prac- tically underiuined. The Braintrce church rate case de- cided that a majority of the pai'ishioners might refuse a rate : the question Avhethcr the recusants were punishable in the Ecclesiastical Court being left open(e). In the (i) Reg. V. Stock, 8 Ad. & El. Atlion in Otiiob. C. Arcliidiac. 405. verbo ad hoc tenentur. (r) Rfig. V. Arkwrifjht, 18 L. (e) Burder v. Velfij, 12 Ad. & J. (N. S.) Q. li. 2G. El. 238; 4 .Jur. 383; 10 L. J. (r/) De Eccde."^. Ref. C. licet (N. S.) Ex. 532. Paroch. verb, refic. Eccles. ; and CHURCHES AXD CHURCHYARDS. 1817 year 1868 the 31 & 32 Vict. c. 109, was passed, which Compulsory rendered a comi)ulsory church rate illeoal, but iirovided f'hurch Rate ,, 1 ^ /• 1 ^ 1 1 i. Abolition Act, in ratlier an obscure manner tor a voluntary church rate, ^ggg ' clothed Avith some of the characteristics of the old law. This statute has been found generally inapplicable, and chiu-ches are now for the most part supported by volun- tary contributions. The statute, however, is as follows : — Sect. 1. " No suit shall be instituted or proceeding Compulsory taken in any ecclesiastical or other court, or before any church rates justice or magistrate, to enforce or compel the payment ^"ohsfaed. of any church rate made in any parish or place in England or Wales." Sect. 2. " Where in pursuance of any general or local Saving of rates act any rate may be made and levied Avhich is applicable called church partly to ecclesiastical purposes and partly to other pui- piicaLie to poses, such rate shall be made, levied, and applied for secular pur- such last-mentioned piu'poses only, and so far as it is ap- V^^^^- plicable to such purposes shall be deemed to be a separate I'ate, and not a church rate, and shall not be affected by this act. " Where in pursuance of any act of parliament a mixed fund, arising partly from rates affected by this act and partly from other sources, is directed to be applied to purposes some of which are ecclesiastical pur])Oses, the portion of such fund which is derived from such other sources shall be henceforth primarily applicable to such of the said purposes as are ecclesiastical." Sect. 3. " In any parish where a sum of money is at Provision tlie time of the passing of this act due on the security of )^heie money church rates, or of rates in the natvire of church rates, to c„rity of such be made or levied in such parish under the pro\dsions of rates. any act of parliament, or where any money in the name of church I'ate is ordered to be raised imder any such pro- visions, such rates may still be made and levied, and the payment thereof enforced by process of law, pursuant to such provisions, for the purpose of paying off the money so due, or paying the money so ordered to be raised, and the costs incidental thereto, but not otherwise, until the same shall have been liquidated : Provided, that the accounts of the churchwaixlens of such parish in reference to the receipt and expenditure of the monies levied under such acts shall be audited annually l^y the auditor of tlie poor law union within whose district sucli parish shall be situate, unless another mode of audit is provided by act of parliament." Sect. 4 saves rates already made. p. VOL. II. 6 A 1818 FABRICS AXD OFFICEIIS OF FAr.i:iC>^ OF THE CHURCH. Not to affect Scct. 5. " Tills act shall not affect any enactment in nmctinciits in anv ])i-ivate or local act of ])ai-lianicnt under the authority local acts, &r. ()f'^yijj(.]i ohurcli rates maybe made or levied in lieu of, are iiiade for or 111 consideration 01 the extmguisliment or ot the ai)pro- pui])oscs herein priation to any other puri)0se of, any tithes, customary named. ]iayments, or other property or charge upon property, ■which tithes, payments, ])roperty, or charge, previously to the passing of such act, had been appropriated by law to ecclesiastical purposes as defined by this act, or in con- sideration of the abolition of tithes in any place, or u])on any contract made, or for good or valuable consideration given, and every such enactment shall continue in force in the same manner as if this act had not passed." Act not to Sect. G. " This act shall not affect vestries, or the nffpct vestries, making, assessing, receiving, or otherwise dealing Avith any church rate, save in so far as relates to the recovery thereof; but, subject to the provisions hereinbefore con- tained, whensoever any ecclesiastical distiict having Avithin its limits a consecrated church in use for the purposes of divine worship shall have been legally constituted out of any parish or parishes, and Avhether such district shall or shall not be a separate and distinct parish, the inhabitants of such district shall not be entitled to A'otc for or in refer- ence to a church rate or the expenditure thereof at any vestry meeting of the parish or parishes out of which the said district is formed, nor shall they be assessed to any rate made in relation to the parish church of the said parish or parishes, but such inhabitants may assemble in vestry, and, subject to the provisions of this act, may make and assess a i"ate in relation to the chiu'ch of their own district in like manner as if such church Avcre the church of an ancient parish : Provided that nothing in this act contained shall affect any right of burial to which the inhabitants of the district may be entitled in the church- yard of the mother church." Trnstecs and Sect. 7. "It shall be lawful for all bodies corporate, others under tiiistees, guardians, and committees Avho or whose cestuis 6uhscri*^je^to^"^ 1^'-^ //•?<5^ are in the occupation of any lands, houses, or voluntary rate, tenements, to pay, if they think fit, any church rate made in respect of such pro])erty, although the payment of the same may not be enforceable after the passing of this act, and the same shall be allowed to them in any accounts to be rendered by them respectively." Regulations as Sect. 8. " No ])erson who makes default in paying the to persons re- amount of a church rate fur Avhich he is rated shall be church xixtcl entitled to inquire into, or object to, or vote in respect of the expenditure of the monies arising from such church CHURCHES AND CHURCHYARDS. 1819 rate ; and if the occupier of any premises shall make de- fliult for one month after demand in pajTiieut of any church rate for whicli he is rated, the owner shall be en- titled to pay the same, and shall thereupon be entitled, until the next succeeding church rate is made, to stand for all purposes relating to church rates (including the attending at vestries and voting thereat) in the place in which such occupier would have stood." Sect. 9 refers to church trustees (a). By sect. 10, " ' Ecclesiastical purposes" shall mean the Definition of buildins:. rebuilding, enlaro:ement, and repair of any " ecclesiastical church or chapel, and any purpose to which by common .i church'rate," or ecclesiastical law a church rate is applicable, or any of and " parish." such purposes : " ' Church rate' shall mean any rate for ecclesiastical purposes as hereinbefore defined : " ' Parish' shall mean any parish, ecclesiastical district, chapelry, or place Avithin the limits ofAvhich any person has the exclusive cure of souls." Sect. 1 of 5 Geo. 4, c. 36, enacts, that churchwardens Loans under and overseers of a parish may, Avith the consent of the ^ ^^°- ^' ^- ^^• vestry, of the bishop of the diocese, and of the incumbent, apply to the commissioners empoAvered to make advances on public Avorks for a loan for " rebuilding, repairing, en- larging, or otherAvise extending the accommodation of any church or chapel of such parish," and the commissioners, on being satisfied that the required consent has been given, may advance the loan ; which is to be applied " for the purposes mentioned in such application," and rates are to be made for the rejmyment of the loan. A loan Avas made under this act for the purpose of JRippln and repairing the church of H. All the formalities required ^'^^^y*'^- by the act Avere duly complied Avith before the loan Avas granted. A portion of the money Avas expended in re- pairing the chancel, and the rest in repairing the other portions of the church. Subsequently a rate Avas made in due form to repay the loan. In a suit against a rate-payer for refusal to pay the rate, the defendant alleged in his ansAver, that it Avas the duty of the rector alone to repair the chancel : that the preliminary resolution of the vestry contemplated the ap- plication of a portion of the loan to the repair of the chancel ; that a portion of the loan Avas exjiended in repairing the chancel ; that the consent of the bishop, and the advance by the commissioners, Avere given and made (a) Vulc infra, Part VI., Cliap. VI. G A 2 1820 FABRICS AND OFFICERS OF TATUtTCS OF THE CHURCn. respectively on tlie representation that tlie loan was •wanted for purposes that did not include the repair of the chancel ; and that, therefore, the rate "svas void : — It was ruled by the ])rescnt judfTC of the Arches, that the word "church," in the above section, included the chancel, and that, there- fore, a ])ortion of the loan might ])roperly be expended in repairing the chancel. It was ruled further, that even if the word " church" did not include the chancel, yet, as all the required for- malities had been observed before the loan was granted, an inijiroper expenditiu'e of the loan could not affect the commissioners' right to repayment ; and that the rate, being duly made in form, was valid (b). J^maJlhotieK y. In SnutUboiics \. Edney and Lu7in{c), the Privy Edncij and Coimcil decided, that the impropriator of the great tithes """■ was liable to contribute to rates raised for the repayment of loans raised under the foregoing statute. ih) Rlppin and Wilson v. (e) 7 Moo., N. S. 28G; L. R., 3 Bastin, L. K., 2 Ailm. & Eccl. Y*. C. Hi; sec A stcrhyy. Adams, 38G (1869). L. R., 3 Adm, & Eccl. 3G1. ( 1821 ) CHAPTER III. CHAPELS. Sect. 1. — Different kinds of. 2. — Their Endoioment and Dependence. 3. — Repairs of. 4. — Who may nominate to. 5. — Modern Law as to Cliajyels to Public Institu- tions. 6. — Chapels under Burial Acts. Sect. 1. — Different kinds of. Private chapels are sucli as noblemen and other religious Private and Avorthj persons have at their own private charge built cliapels. in or near their own houses for them and their families to perform religious duties in. These private chapels and their ornaments are maintained at those persons' charge to whom they belong, and chaplains provided for them by themselves with honourable pensions ; and these anciently were aU consecrated by the bishop of the diocese, and ought to be so still (a). Building and endowing a church originally entitled the patron to the patronage, but an impropriator of a parish has no right to nominate a preacher to every chapel within the parish ; it Avould be a hardship should he be bound so to do, neither ought it to be at his election. A man may build a private chapel for himself and family, or for him- self and his neighbours, l)ut that will not give the parson a I'ight to nominate his preacher (i). " We do decree," says Stratford, " that whosoever Constitution of against the prohil)ition of the canons shall celebrate mass Stratioid. in oratories, chapels, houses, or other places, not conse- crated, without having obtained the licence of the diocesan, shall be suspended from the celebration of divine service for the space of a month. And all licences granted l)y (a) Degge, pt. 1, c. 12. Duke of Portland v. Bingham, {b) Herbert v. Dea7i and decided by Lord Stowell, 1 Con- CliajHcr of Westminnfer, 1 P. W. sist. 1G2, treated of supra, pp. 273 774. Vide suj^ra, p. 345. See —280. 1822 FABRICS AXD OFFICERS OF FABRICS OF THE CHURCH. Private cbapcls. Licence of the diocesan re(iui- site for the performance of divine service in a chapel. the bishops for celehnithio; mass in places not consecrated other than to noblemen or other great men of the realm, living at a considerable distance from the church, or notoriously weak or infirm, shall be void. Nevertheless, the heads, governors, and canons of cathedral clnn'chcs, and others of the clergy, may celebrate mass in their oratories of ancient erection, as hath been accustomed. Moreover, the })riests who shall celebrate mass in ora- tories or chapels built by the kings or queens of England, or their children, shall not incur such pain"(c). In Oratories J\^- Aw oratory differs from a church; for in a church there is appointed a certain endowment for the minister and others ; but an oratory is that Avhich is not built for saying mass, nor endowed, but ordained for prayer (f/). Or other Places.^ — As suppose, in a tent, or in the open air { e). Witlwut luwinrj obtained the Licence of the Diocesan.~\ — Such oratory any one may build without the consent of the bishop ; but Avithout the consent of the bishop divine service may not be performed there. And this licence he shall not grant, for divine service there to be performed upon the greater festivals (y ). Abundance of such licences both before and since the Reformation remain in our ecclesiastical records, not only for prayers and sermons, but in some instances for sacra- ments also. But the law is (as Lindwood has it in his gloss on the said canon), that such licence be granted sparingly. And these restrictions were laid on private oratories, out of a just regard to places of public worship, that while the laws of tliQ church provided for great in- firmities or great distance, such indulgence might not be abused to an unnecessary neglect of public or parochial communion (^). vVnd in the said oratories a bell might not be put up without the bishop's authority (A). At a considerable Distance.'] — As suppose, a mile or more ; and in such case and not otherwise (says Lind- wood) the bishop ought to permit service to be performed there (?'). 15y 2 & 3 Edw. 6, c. 1, s. 1, and 1 Eliz. c. 2, s. 4, open })rayer in and throughout those acts is explained (c) Stratford, Lind. 233. {(l) Lind. 233. (0 Ibid. (/) Ibid. {fj) Gibs. 212. (/O Lind. 233. (0 Ibid. CHAPELS. 1823 thereby to be tliat prayer wliicli is for others to come unto or hear, either in common chm-ches, or private chapels, or oratories. By Can. 71 of 1603, " No minister shall preach or ad- minister the holy communion in any private house, except it be in times of necessity, when any being either so im- potent as they cannot go to church, or very dangerously sick, are desirous to be partakers of the holy sacrament, upon pain of suspension for the first offence, and excom- munication for the second : provided that houses are here reputed for private houses, wherein are no chapels dedi- cated and allowed by the ecclesiastical laws of this realm : and provided also, under the pain before expressed, that no chaplains do preach or 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 tlie said houses, and their families, shall at other times resort to their OAvn parish chm-ches, and there receive the holy communion at the least once every year" (A). The distinction of free chapels is grounded on their Free chapels. freedom or exemption from all ordinary jurisdiction (/). Sir Simon Degge says, it is agreed on all hands, that the king may erect a free chapel, and exempt it from the jurisdiction of the ordinary, or may license a subject so to do (vi). By 26 Hen. 8, c. 3, s. 1, and 1 Eliz. c. 4, s. 1, free chapels are charged Avith first fruits ; but this the late Mr. Serjeant Hill conjectures must mean only such as were in the hands of subjects. No other chapels are ex- pressly named in the statutes : parsonages and vicarages are expressly noticed ; it seems that parochial chapels are included in those Avords ; and chapels of ease were not supposed to have any revenue (n). And Dr. Godolphin says, the king may license a subject to found a chapel, and by his charter exempt it fl'om the visitation of the ordinary (o). But Dr. Gibson observes, nevertheless, that no instances are produced in confirmation hereof; it is true, he says, that many free chapels have been in the hands of subjects; but it does not therefore follow, that those were not originally of royal fomidation(/>). By a constitution of Archbishop Stratford, as before mentioned, viinisters loho officiate in oratories or chapels (k) Vide supra, Part IV., (m) Degge. p. 1, c. 12. Chap. III., Sect. 7, pp. 1180— (n) Serjt. Hill's MS. notes. 1185. (o) God. 145. (Z) Gibs. 210. {p) Gibs. 211. 1824 FABRICS AND OFTICERS OF FABRICS OF THE CHURCH. Free chaptls. erected hi/ the hhif/s or (jitcena of England or their chil- dren, shall not need to hare the licence of the ordinary. Or their Children.^ — AVliich -word cliildren extends not furthci- than to grandchildren ; after tliesc they are called posterity {q). All free chapels, together Avith the chantries, were given to the king in the 1st year of King Edward the Sixth; except sonic few that are excepted in the acts of parlia- ment by which they Avere given ; or such as are founded by the king or his licence since the dissolution (r). And the king himself visits his free chapels and hos- pitals, and not the ordinary ; which office of visitation is executed for the king by the lord high chancellor (.9). Free chapels may continue such in point of exemption from ordinary visitation, though the head or members do receive institution from the ordinary (^). In short, the sum of all is this : Free chapels (says the learned and accurate Bishop Tanner) were places of re- ligious 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. ]\Iost of these chapels Avere built u[)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 thei'C. And when the crown parted Avith those estates, the chapels Avent along Avith them, and retained their first freedom ; but some lords having had fi'ce chapels in manors that do not a])pear to have l>ccn ancient demesnes of the crown, such are thouglit to have been built and privileged by grants from the crown («). Chapels of Of chapels subject to a mother church, some are merely easc^under a ^ cliapels of casc, others chapels of ease and parochial (.r). But qucere if they can be both at the same time. A cha])el merely of ease is that Avliich Avas not alloAved a font at its institution, and Avhich is used only for the ease of the ]i:irislii()ners in prayers and jireaching (sacra- ments and burials being receiA'cd and performed at the mother church), and commonly Avhere the curate is re- movable at the pleasure of the parochial minister ; accord- ing to Avhat LindAvood says, Avhere the minister of the mother church has the cure of them both, yet he exercises the cure there by a vicar not pci'petual, but temporary, (7) Lind. 234. (u) Tanner's Notit. Monast. (r) Degge, p. 1, c. 12. Pref. 28. (.s) God. 145. {x) Gibs. 209. (/; Gibs. 211. mother church. ciiArELS. 1825 and removable at pleasure ; tliougli in this case, Lindwood observes elsewhere, that there may be in other respects the rights of a parochial chapel by custom. But where a chapel is instituted, though with parochial rights, there is usually (if not always) a reservation of repairing to the mother church, on a certain day or days, in order to pre- serve the subordination (?/). A parochial chapel is that Avhich has the ]3arochial rights Parochial of christening and burying ; and this differs in nothing chapels. from a church, but in the want of a rectory and endow- ment (z). For the privileges of administering the sacraments (espe- cially that of baptism) and the office of biu'ial, are the proper rites and jurisdiction that make it no longer a de- pending chapel of ease, but a separate parochial chapel. For the liberties of baptism and sepulture are the true distinct parochial rites. And if any new oratory has ac- quired and enjoyed this immunity, then it differs not from a parish church, but (says Mr. Selden) may be styled capella parochlalis. And till the year 1300, in all trials of the rights of particular churches, if it could be proved that any chapel had a custom for free baptism and burial, such place was adjudged to be a parochial church (a). Hence at the first erection of these chapels, while they were designed to continue in subjection to the mother church, express care was taken at the ordination of them, that there should be no allowance of font or bells, or any- thing that might be to the prejudice of the old church (i). And when any subordinate chapel did assume tlie liberty of burial, it was always judged an usurpation upon the rights of the mother church, to which the dead bodies of all inhabitants ought to be duly brought, and there alone interred. And if any doubt arose whether a village Avere within the bounds of such a parish, no argument could more directly prove the affirmative than evidence given that the inhabitants of that village did bury their dead in the churchyard of the said parish (c). Sir G. Lee, in Line v. Harris {d^, says, "its having sacraments and burials does not make it cease to be such," i. e. a cha])el of ease ; and " a chapel of ease is built for the ease of the parishioners that dwell too far from the church, and served by a curate provided at the charge of iy) Gibs. 209. dkiuinaJtrrius construcnda. X. 5, {z) Deggo, p. 1, c. 12. 32, 1. («) 2 Inst. 3G3. (c) Ken. Par. Ant. 590, 591. {b) Nulla ccclcsia est in preju- [d ) 1 Lee's l\ep. 1-10. 1826 FAmjICS AND OFFICERS OF FABRICS OF THE CHURCH. the rector" (e). A perpetual curac}' or cluapcl lias all sorts of ])arocliial rif^hts, as a clerk, -wardens, &c., the right of performing divine service, l)aptism, sejnilture, &c., and the curate has small tithes and surplice fees ; but chapels of ease are merely ad libitum, and have no parochial lights ; therefore, on the union of the two parishes, one is frequently deemed the parish church, and the other as a parochial chapel, but not as a chajiel of ease (y). Evidence of The ])erformance of baptisms, marriages, and bvu'ials in ehajieln- being ^ chapel cxistino" from time immemorial mio-ht possibly be presumptive evidence of consecration, and of a composition; aliter, as to a chapel the oi'igin of which is ascertained {(j). It has been decided that where parishioners dwelling within a chapelry contribute to the repairs of the parish church, it is strong but not conclusive evidence that the chapel is a chapel of ease to the inhabitants of the parish, and not a separate and distinct chapelry (A). Upon a trial, where the question was, whether the chapelry of St. H. was a legal parochial chapelry — it was holden, that the statement of a witness, that he had heard fi'om a former incumbent of H. that the people of four townshi]:)S and another parish came to the chapelry, was admissible in evidence, inasmuch as the rights of the chapel in question were sufficiently of a public nature to make reputation admissible. 80, a case stated by a deceased incumbent of St. H. for the opinion of a proctor, Avith his opinion thereon, was holden admissible, on the same principle as the statement of a deceased occupier, Avhich qualifies his estate, is ad- missible. It was holden, also, that the answer of the incumbent of St. H., and other clergymen, to questions sent by the bishop of C, the diocesan, for the information of the governors of Queen Anne's bounty, at the time an aug- mentation was made, Avas admissible, as bemg in the na- ture of an inquisition on a public matter {i). Provisions in The Church Building Acts (A) contain, Avith respect to Church Build- \\yQ general laio as to chapels of ease, provisions that those Avdiich have reputed toAvnships or districts attached to theni may, as being properly endoAved, Avith consent of bishop, patron, and incumbent of parish, be made independent of (e) 1 Lee's Ecp. 146. (i) Curr v. Mostyn, 5 Ex. CO (/) Attorney-General v. Bre- (1850). reton, 2 Ves. 425, 427. {k) As to cliapels built under ((/) 2 Hagg. 50. authority of these acts, vide infra, (h) Dent V. Eoh, 1 Y. & Col. 1. Part IX., Chaps. V., VI. ins Acts, CHAPELS. 1827 the parish church, and their township or district may be made a parish (/). It is said by Rolle, that if the question be in the Court Church or Christian, whetlier a church be a parish church or only a chapel, how to chapel of ease, a prohibition lies(??2). And Dr. AVatson says, if the defendant in a quare im- pedit shall plead that the same is a chapel and no church, this matter shall be tried by the country, and not by the bishop (?2). But Dr. Gibson says, that a chapel or no chapel ought to be tried by the spiritual judge, for a chapel is spiritual as well as a church ; and when tAvo spiritual things are to be tried, no prohibition shall be granted ; in like manner, as it goes not, when a modus is pleaded in a dispute be- tween two spiritual persons, to wit, the rector and vicar, about tithes (o). But he says, if a question is depending as to the limits thereof, whether a chapel of ease or a parish church, or whether a chapel of ease or a parochial chapel, the same shall be tried, as to the limits, in the temporal court {jj). If a person be patron of a chapel that has parochial Criteria of right, and presents thereto by the name of a church, and ^huii'h and the presentees have been received thereto, as to a church ; '^"^^^^ ' it is no longer a chapel but a church ; and if a disturbance happen upon any avoidance thereof, the patron may have his quare impedit as to a church ((7). But on the contrary, a presentation to a church by the name of a chapel will not make it cease to be a church ; for the case was, that in the time of Henry III. there were two rectories, A. and B., and the patron of A. purchased the rectory of B. After Avhich, constantly, presentations were to the church of A. with the chapel of B. And it was resolved, that although the patron of A. ever after the said piu'chase, had presented only unto the said church of A. with the chapel of B., yet B. notwithstanding remained in right a church, and the freehold of it in suspense (/■). These cases are governed by the maxim, nomijia sunt mutabilia, res autem immohiles (5). Chapels of ease have the like officers for the most part Govcrmncut as churches have, distinguished only in name(^). thereof. And are in like manner visitable by the ordinary ( u). (/) 1 & 2 Will. 4, c. 38, s. 23; {q) Wats. c. 23; 2 Inst. 363. 1 & 2 Vict. c. 107, s. 7. (r) Wats. c. 23; Sav. 17, 18. {m) 2 Kolle's Abr. 291. (s) 6 Co. m. (n) Wats. c. 23. (t) Deggc, pt. 1, c. 12. (0) (libs. 210. (H) Ibid. (p) Ibid. 213. 1828 FABRICS AND OFFICERS OF FABRICS OF THE CllUliCII. Their endow- ment and dependence. Consents re- quisite for their erection . Sect. 2. — Tlnir J-Jjidoinnri/t and Dependence. When l)y lono; usajrc mid custom parocliial bounds be- came fixed and settled, many of'tlie ])arishcs -were still so lar<;'e that some of the remoter hamlets found it very incon- veuient to be at so great a distance from the church ; and therefore for the relief and ease of such inhabitants, this new method Avas practised of l)uilding private oratories or chapels in any such remote hamlet, in Avhich a capellane Avas sometimes endowed by the lord of the manor or some other benefactor, but generally maintained by a sti])end from the ])arish ]>riest, to whom all the rights and dues Avere entirely preserved (^). But in order to authorize the erecting of a chapel of case, the joint consent of the diocesan, the patron, and the incumbent (if the church Avas fidl) AA^ere (and as it seems still are) all required (?^). By a constitution of Othobon, Avhen a private person de- sires to have a chapel of his OAvn, and the bishop for just cause has granted the same, the said bishop has always provided that this be done Avithout prejudice to the right of any other ; " agreeably Avhereunto Ave do injoln, that the chaplains ministering in such chapels, Avhich have been granted saving the right of the mother church, shall render to the rector of the said church all oblations and other things, Avhich, if the said chaplains did not receive them, ought to accrue to the said mother church : and if any shall neglect or refuse so to do, lie shall incur the pain of suspension until he shall conform" (:r). But this is to be understood, unless a special priAalege or ancient custom alloAvs the contrary ; or tmless by com- position Avith the rector of the mother church, he retains yearly the fruits arising AA'ithin the cha])elry, paying for the same something in certain to the said rector (3/). For a chapel may ]:)rescribe for tithes against the mother church. Thus in Sayer v. Bland (yz), Avhcn the parson libelled for tithes against an inhabitant of a hamlet Avhere Avas a chapel of ease, and it Avas showed on the other side, that time out of mind the said hamlet had found a clerk to do divine service in the said chapel, Avith part of their tithes, and (Avhat Avas an usual composition upon the erec- tion of a chapel) paid a certain sxuu of money to the parson and his ])redecessors for all tithes ; the prescription Avas holden to be good, and a prohibition Avas granted (a). (<) Ken. Par Ant. 587. (m) Ibid. 585, 586. \x) Athon. 112. (//) Ilnd. (z) 4 Leon. 24. («) Gibs. 209. CHAPELS. 1829 And at the consecration of a chape], there was often some fixed endowment given to it, for its more light and easy dependence on the mother church : in some places being endowed with lands or tithes, and in some places by voluntary contributions (Z»). It was ruled by Dr. Phillimore, chancellor of the diocese of Oxford, in 1849, that the Consistorial Court had poAver to grant a faculty for the removal of a consecrated chapel to another site authorized by the ordinary (c). Yet, nevertheless, at the first there Avere very many signs Dependence of of the dependence of chapels on the mother church ; of chapc^s on the which the prime and most effectual Avas the payment of tithes and offerings, and all profits whatsoever, to the in- cumbent of the mother church. And therefore Avhen such chapels were first allowed, a particular reserve was always made, that such a new foundation should be no prejudice to the parish priest and chiu'ch. The constitutions of Egbert, archbishop of York, in the year 750, take care that churches of ancient institution should not be deprived of tithes or any other rights, by gi\dng or allotting any part to new oratories. The same was also provided in coimcil under King Ethelred, by the advice of his tAvo archbishops, Alpheg and Wulstan. Which constitution is also found in an elder council of Mentz ; and in the imperial capitularies. And by the laAvs of King Edgar, made about the year 970, it Avas ordained, that every man should pay his tithes to the ealdan mynstre, to the elder or mother church. Only if a thain or lord should have Avithin his OAvn see a church, Avith a burial place, (that is, a parochial chapel,) he might give a third part of his tithes to it ; but if it had no privilege of burial, (that is, if it Avere a bare appendant chapel,) then the law was, to main- tain the priest out of his nine parts, that is, purely at his OAvn charge, Avitliout laying any part of the burden on the priest of the parish church (r/). Another mark of dependence on the mother church Avas this : The inhabitants of the village, Avhich Avas thus ac- commodated Avitli a chapel, were upon some festivals to repair to the mother church, as an expression of duty and obedience to it. This practice Avas enjoined by the .31st canon of the Council of Agatha, and recommended by a decree of Gratian, and obtained as a custom in this king- dom. Yea, Avhen chapels Avere first alloAved to our col- leges in Oxford, it Avas generally provided, that such liberty (&) Degge, pt. 1, c. 12. of Cases, 4G. (c) Clayton v. Dean, 7 Notes {d) Ken. Par. Ant. 594. 1830 FABHirs AND OFFICKKS OF FARKICS OF TIIF CIIUKCII. Pcpcmlcncc of slioukl bc no prejudice to the parisli church; and that the chapels on scholars of evei'v sucli house slioidd ircqucnt the said paro- chial church in the p;reater solemnities of the year. Which custom still prevails at Lincoln college, where the rector and fellows on Michaelmas-day go in their respective liabits to the chiu'ch of St. ^Michael, and on the day of All Saints to the church of All llallows(e). Nor did the inhalntants of any village so privileged with a chapel barely visit the mother church, and join in tlie divine service ; but as a farther sign of suV)jcction, they made their oblations, and paid some accustomed dues at those solemn seasons. This was sometimes done n])on every one of the three greater festivals of Christmas, Easter, and Whitsunday. Sometimes those offerings Avere made only on the day of the dedication of the mother church. At other times and places, these solemn oblations were made only at Whitsuntide, and this chiefly in cathedral and conventnal churches, where, among all parish chnrches that Avere approjmated to them, or of their patronage, the priests and people came in solemn jirocession within the Aveek of Pentecost, and brought their usual offerings. Whereupon Ave may fairly presume, that this old custom gave birth and name to the pentecostals or AVhitsun-con- tributions that Avere allotted to the bishops, and are still paid in some fcAV dioceses {/)- It Avas a farther honour done to mother churches, that all the hamlets and distant villages of a large parish, made one of their annual j)rocessions to the ])arochial church, Avith flags and streamers, and other ensigns of joy and triumph. This custom might possibly after the Conquest be introduced by the Normans ; for among the ecclesias- tical constitutions made in Xormandy in the year 1080, it is decreed, that once in a year about Pentecost, the ])riests and capellanes should come with their people in a full pro- cession to the mother church, and for every house shoidd offer on the altar a Avax tajjer to enlighten the church, or something of like A'alue(//). Submission of ]\Ioreover, the capellane or curate of a chapel Avas to be the curate of a jjouud by an oatli of due reverence and obedience to the *^^ ''^ ■ rector or vicar of the mother church (/i). (;reed to jxiy towards the repair of" the mother church, mother church All Avliich a])])earod u])<)n the libel. And it was holden by Holt, Chiei". lust ice, that those of a chajielry may pre- scribe to be exem])t from repairing the mother church, as where it buries and christens within itself, and has never contributed to the mother church ; for in that case it shall be intended coeval, and not a latter erection in ease of those of the chapelry : but here it a])])ears, that the chapel could be only an erection in ease and flxvour of them of the chapelry; for they of the chapelry buried at the mother chixrch till Henry the Eighth's time, and then undertook to contribute to the rej^airs of the mother church (?*). And although, at the first sight, this may seem somewhat hard, yet it has this good fomidation of reason ; that all chapels, and all discharges from attending divine serA-ice at the mother church, were originally matters of grace and fa- vour ; and tlie ease and convenience of particular inhabit- ants ought not to be purchased Avitli inconvenience and damage to the mother church ; in whose light it was specially pi'ovided on those occasions, that nothing should be done in prejudice thereof (o). How to be The repairs of a chapel are to be made by rates on the repaired. landowners AA-ithin the chapelry, in the same manner as the repairs of a church, and such rates are to be enforced by ecclesiastical authority ( />). And there shall be the like appeals to the ordinary for unequal assessments. But all this must be intended of ancient chapels, and Avhere this course has been used ; for if there be land given for the repair of them, or any land or estate charged by prescription to the repairs of them, then the custom must be observed ((^). The inhabitants of a chapelry may, hoAA^ever, prescribe to be exempt from the repairing the mother church, if it can be intended that the chapel Avas a coeval and not a subsequent erection ; but nothing short of a prescri})tion seems to be sufficient, unless indeed they can shoAV an ex- emption from the endowment (r). (n) 1 Salk. 164, 165. (o) Gibs. 209. Ip) Ibifl. (h ; and again, " By law no persons can procure divine service to be administered without the consent of the incumbent and the licence of the bishop (to Avhich, in some instances, must be added the consent of the patron), and the person officiating without such con- sent is liable to ecclesiastical censures" (e). In these two last cases the nature of unconsecrated proprietary chapels was discussed. They are anomalies unknown to the eccle- siastical constitution of this kingdom, and can possess no parochial rights. The two principal decisions upon this subject are Moysey v. IIillcoat{f^ and Hodgson v. Dil- lon (g), ah'cady referred to. The substance of the former case Avas as follows : a chapel being built shortly before 1735 by private subscription, and the subscnbers agreeing out of the pew-rents to pay the rector of the parish a yearly stipend for performing divine service, a licence was obtained from the bishop to the rector and liis successors, who from time to time performed therein parochial duties ; but there being no proof of consecration, nor of any com- position betAveen the patron, incumbent, and ordinary, such chapel was holden merely proprietary, and the minister, nominated by the rector of the parish, cannot perform pa- rochial duties therein, nor distribute the alms collected at the Lord's Supper (/<). The case oi Hodgson \. Dillon decided that tlie bishop has the power of revoking abso- lutely and discretionallg licences to officiate in unconse- crated chapels. It should seem that it is at any time competent to the proprietors of an unconsecrated chapel to convert it to secular purposes {i). It Avas decided in the case of Bosanquet v. Heath (Ji), that the proprietor of a licensed chapel retains his right of property in the cha]iel, and may refuse to admit any person during the celebration of divine service, even the churchwarden of the parish in Avhich the chapel is situate. (d)Moi/seyv.nUlcoat,2 Ilagg. (g) 2 Curt. 388 (1840). 48. (h) 2 Ilagg. 30. (e) Can- v. 3IarsJi, 2 riiill. 198. . (i) 2 llagg. 50. (/) 2 llagg. 30. (^•) 9 W. K. 35. CHAPELS. 1835 Sect. 5. — Modern Law as to Chapels to Public Institutions. By 31 & 32 Vict. c. 118, s. 31, it is enacted that, " The Chapels to chajjel of every school to Avhich this act applies (J.) shall Pi^i^^^c schools. be deemed to be a chapel dedicated and allowed by the ecclesiastical law of this realm, for the performance of ]oublic worship and the administration of the sacraments according to the liturgy of the Chm-ch of England, and to be fi'ee from the jurisdiction or control of the incumbent of the parish in which such chapel is situate." By 32 & 33 Vict. c. 86, s. 53, " The chapel of an en- Chapels to dowed school subject to this act(m), which either has been endowed before or after the commencement of this act consecrated ^^ °° ^' according to law, or is authorized for the time being by the bishop of the diocese in which the chapel is situate, by writing under his hand, to be used as a chapel for such school, shall be deemed to be allowed by law for the per- formance of public worship and the administration of the sacraments according to the liturgy of the Church of England, and shall be free from the jurisdiction and con- trol of the incumbent of the parish in which such chapel is situate." In 1871, 34 & 35 Vict. c. %Q was passed; it was entitled " An Act to amend and define the Law relating to Private Chapels and to Chapels belonging to Colleges, Schools, Hospitals, Asylums, and other Public Institutions" (;«). It provided as follows : — Sect. 1 . " The bishop of the diocese within Avhich any Bishop may chapel belonging to any college, school, hospital, asylum, license clci-gy- or ])ublic or charitable institution is situated, whether con- "^a" of Church ^T ' or England to secrated or unconsecrated, may license a clergyman ot the certain private Church of England to serve such chapel and administer chapels; therein the sacrament of the Lord's Supper, and perform such other offices and serA^ccs of the Church of England as shall be specified in such licence, provided that the bishop shall not include in any such licence the solemnization of marriage, and may, if he think fit, revoke the same at any and revoke time." such licence. Sect. 2. *' The minister officiating in such chapel shall, Status of with respect to the performance of the offices and services """'f,^^£ ^""^ of the church specified in such licence, be subject to no i-ight^of in- control or interference on the part of the incumbent of the cumbcnt. (I) Vide infra, Part VIII., ing, as tlie act refers only "to Chap. V. cliapels belonging to colleges," (m) Vide infra, ibid. &c. The bill had a wider scope. (») This title is now mislead- G B 2 1836 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. parish or district iu -vvliicli sucli clmpel is situate ; but nothing lierein contained shall prejudice or affect the right of such incumbent to the entire cure of souls throughout such parish or district elsewhere than within such institu- tion and the chapel thereof." Offertory. Sect. 3. " The offertory and alms collected at any chapel subject to the provisions of this act shall be dis- posed of as the minister thereof shall determine, subject to the direction of the ordinary." By sect. 4, the act may be cited as " The Private Cha- pels Act, 1871." Conveyance of cliapcl of closed burial ground. Sect. G. — Cliapels under Burial Acts. "Where a burial ground in the metropolis is closed under 15 & 16 Vict. c. 85, and it is locally situate in a parish other than that to which it belongs, and has a cha])el annexed to it, the incumbent and churchwardens of the parish to which it belongs, with consent of the vestiy and bishop, may, by sect. 51, convey the chapel to nominees of the incumbent and clmrchwardens of the parish within which it is situate, Avith consent of the vestry and bishop thereof, upon such trusts for the last-mentioned parish and subject to such provisions as to the bishop may seem l)roper (o). (o) Vide supra, p. 847. ( 1837 ) CHAPTER IV. CHURCH WAKDENS. Sect. \.— Their Office. 2. — f^f^'ho are exempted from heinc). 3. — Choice of. 4. — Refusinr/ to act. 5. — Refusing to admit. 6. — Official Acts of. 7. — Accounts of. 8. — Actions hij. 9. — Proceedings against. 10. — Perambulation of Parishes. Sect. 1. — The Office of C]turch2oarden{a). In tlie ancient episcopal sgnods, the bishops were wont to Origin. summon divers creditable persons out of every parish, to give information of and to attest the disorders of clergy and people. These were called testes synodales, and were in aftertimes a kind of impannelled jury, consisting of two, three, or more persons in every parish, who were upon oath to present all heretics and other iiTCgular persons (i). And these in process of time became standing officers in several places, especially in great cities, and from hence were called synods men, and by corruption sidesmen ; they are also sometimes called qiiestmen, from the nature of their office, in making inquirg concerning offiinces. And these sidesmen or questmen, by canon 90 of 1603, are to be chosen yearly in Easter week, by the minister and parishioners (if they can agree); otherwise to be ap- pointed by the ordinary of the diocese. liut for the most part this whole office is now devolved upon the churchwardens, together Avitli that other oflice which their name more properly imports, of taking care (a) Questmen, sidesmen, or as- churchwardens under tlie Church sistants, are also considered in tliis Buildinj:^ Acts,v«/e^jos^,Part IX., cliapter; cl vide stqmi, Part IV., Chap. VI. Chap. IX., on Visitations. As to {b) Ken. Par. Ant, 649. den's office. 1838 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. of the clmrcli and of the goods thereof, which they had of very ancient time. Nature of Chiu'chwardens are parochial officers for several ])ur- churchwnr- poscs, and are to inspect tlie morals and behaviour of the parishioners, as ■well as to take care of the goods and repau-s of the church (c). " I conceive" (says Lord StoAvell ) " that their duties were originally confined to the care of the ecclesiastical property of the parish, over wliich they exercise a discretionary power for certain pur- poses. In all other respects it is an office of observation find complaint, hut not of control, with respect to divine worship : so it is laid down in Ayliftc in one of the best dissertations on the duties of churchwardens, and in the canons of 1591. In these it is observed that the church- wardens are appointed to provide the furniture of the church, the bread and wine of the holy sacrament, the surplice and the books necessary for the performance of divine Avorship, and such as are directed by law ; hut it is the minister who has the use. If, indeed, he errs in this respect, it is just matter of complaint, Avhidli the church- wardens are iDound to attend to, but the law would not oblige them to complain if they had a ]iower themselves to redress the abuse. In the service, the churchwardens have nothing to do but to collect the alms at the offertory; and they may refuse the admission of strange preachers into the pulpit ; for this purpose they are authorized by the canon (c?), but Itoio ? Wlien letters of orders are pro- duced, 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 ordi- nary of his conduct. I do not say there may not be cases where they may not be bound to interpose. In such cases they may repress, and ought to repress, all indecent inter- ruptions of the service by others, and are the most proper persons to repress them, and desert their duty if they do not. And if a case should be imagined in which even a preacher himself was guilty of an act grossly offensive either from natural infirmity or fi-om 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 overbearing necessity, that supersedes all ordinary lades. 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 (c) GoveiTiors of St. T/mmas's Lee, 120. Hospital V. Trehome and Cove, 1 (cl) 1603, can. 50. CHUECHWARDENS. 1839 " be pursued by a cliurcliwarden, if private and decent ap- plication to the minister himself shall have failed in pre- venting what he deems the repetition of an irregularity at all, and is nothing more than a misrepresentation of his own'' (e). Tlicy liave only the custody of the church under How far they the minister ; if he refuses access to the church on fitting bavc the cus- occasions, complaint must be made to higher autho- *? ■^' ? rities(y). Churchwardens are the guardians or keepers of the church, and representatives of the body of the parish (^). They have the care of a benefice during a vacancy; and the death or avoidance of the spiritual person, who was the incumbent of any parish or place in ■which any separated parish or district shall be conse- crated, shall be notified by the bishop under his hand and seal to the spiritual person then serving the church or chapel, and the churchwardens of the parish or place, and is to be preserved with the registers of births, &c. (/<). A parish clerk, having been dismissed from his office Hare power to by the rector, though irregularly, and another appointed, ri"evpnt inter- thc former entered the church before divine service had divine'^eryicc. commenced, and took possession of the clerk's seat : — It Avas decided, that the churcliAvardeus were justified in removing him from the clerk's desk, and also out of the church, if they had reasonable grounds for believing that he would offer interruption during the celebration of divine service (^■). The churchwarden has, as such, no authority in a pri- No power in vate proprietary chapel, even though clergymen be licensed private chapel. by the ordinary to officiate therein {li). Chiu'chwardens are a corporation for the purpose of the How far a cor- custody of the ornaments of the church. poration as to • •'.,., . , ,. . -, , /• ,1 ornaments of A monition to carry into execution a judgment ot the the church. Judicial Committee, approved by her Majesty in council, was issued against P. and E.^ the church or chapel- Avardcns of St. B., to remove certain ornaments, and do other acts in the chapel of St. B., as therein directed. At the time the monition Avas served on P. and E. they had ceased to be chapel-wardens. Upon motion l)y the original promovent, B., a new monition was directed to be issued, addressed to and monishing the church or {e^HutcJunsv.Dejiziloe^ Cons. (/) Burton v. JToison and 173. Kcshey, 10 Mec. & W. 105 (/) Lee V. Mattheius, 3 Ilagg. (1842). 173. (/.) Dosanquet v. Heaili, 9 W. (r/) 1 r.la. Com. 394. R 35. (//) By 58 Geo. 3, c. 45, s. 20. 1840 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. cliapel-wardcns, for the time being, of St. B., by their official desio-natioii only, to do tlic acts directed by the former monition (?«). Overseers. Peers. Clerfrvnien. !Menil)crs of parliament. Attorneys. Clerks of Queen'sBench. Apothecaries. Sect. 2. — IVho are exempted from being Churchwardens. Tlie same person may hold the offices of churchwarden and overseer {n). All peers of the realm, by reason of their dignity, are exempted from the office of churchwarden (o). So arc all clerf/ijmen, by reason of their order (/>). In like manner all parliament men, by reason of their privilege ((7). If an attorney of the King's Bench be made a church- warden of the parish, he shall have a writ of privilege out of the King's Bench, showing his privilege to be dis- charged thereof by reason of his attendance in the said court. In 14 Car. 1, Felix Wilson, being an attorney of the King's Bench, was made churchwarden of Ilanwell, and he refused, and was sued in the spiritual court to take u])on him the office, and a proliiJjition was granted. So in like manner, in 15 Car. 1, jSIr. Barber being chosen churchwarden of Aldermanbury in London, such writ ■N\as granted (/•). In 21 Jac. 1, Stampe, clerk of the King's Bench, was chosen churchwarden of Kingston, and had a writ of pri- vilege to the .spiritual court, requiring them not to compel him to take the oath ; which Avrit being disobeyed, he had a prohibition (5). By 6 & 7 AVill. & Mary, c. 4, ss. 1, 2, eveiy person that shall use and exercise the art of an apothecary Avithin the city of London and seven miles thereof, being free of the company of apothecaries, and who slaall be duly examined of his skill in the said mystery, and shall be aj^proved for the same, shall, for so long as he shall use and exercise the said art, and no longer, be freed and exempted from all parish offices ; and if he shall be chosen and elected into any such office, or be disquieted or disturbed by reason thereof, he shall, on pix)duciug a testimonial under the common .seal of the said corporation, of such his examina- tion, approbation, and freedom, to the person by whom he shall be so elected or appointed, or by or before whom he (ra) LkUcll V. Bml, 14 Moo. r. C. 1 (18G0). (n) 29 & 30 Vict. c. 113, s. 12. (o) Gibs. 215. (;;) Ibid. (7) Ibid. (;•) 2 Koll. Abr. 272. (.^) 1 Roll. Abr. 368. CHURCHWAEDENS. 1841 Registrars of births, &o. sliall be summoned, retumed, or required to serve or liold any such office, be absolutely discharged from the same, and such nomination, election, return, and appointment shall be void and of none effect. And all persons that shall use and exercise the said aii; of an apothecary y,dthin any other part of the realm, and have been brought up and served in the said art as apprentices for seven years ac- cording to the statute of the 5 Eliz. c. 4, shall be freed and exempted from all such offices within the several places where they live, so long as they shall use and exercise the said art, and no longer ; and if any person so qualified shall be elected or chosen into any such office, such nomi- nation, election, return, and appointment shall be void, unless he shall voluntarily consent and agree to hold the same. By 21 & 22 Vict. c. 90 (the Medical Act), s. 35, every Medical prac person registered under the act shall be exempt, if he so titioners. desire, from serving any corporate, parochial, or ward office. By 1 Vict. c. 22, s. 18, registi-ars of births and deaths or of marriages are exempt from every parochial and corporate office. By 1 Will. & Mary, c. 18, ss. 5, 8, commonly called Dissenters. the Act of Toleration, if any person dissentmc/ from the Church of England shall be chosen or otherwise appointed to bear the office of churchwarden, or any other parochial office, and such ]5erson shall scruple to take upon him such office in regard of the oaths or any other matter or thing required by the law to.be taken or done in respect of such office ; he shall aud may execute the same by a sufficient deputy by him to be provided, that shall com])ly with the laws in that behalf: provided, that the said deputy be allowed and approved by such ])ersons and in such manner as such officer should by la^v have been allowed and ap- proved. And every teacher or preacher in holy orders, or pretended holy orders, that is, a minister, preacher or teacher of a congregation, and duly qualified by the said act, shall be exempted from being chosen or appointed to bear the office of churchwarden, or any other parochial office (0- Every Boman Catholic minister shall be exempted from the office of churcliwarden, on taking the oath, aud con- forming to the regulations prescribed by 3 1 Geo. 3, c. 32, s. 8. Xo Serjeant, drummer, or corporal of the militia, nor Militiamen any private man, from the time of his enrolment until {t) Extended by 52 Geo. 3, c. 155, s. 9. 1842 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Excisemen. Other cases. Non-residents. Ills discharge, sliall be liable to serve as a peace or parish oHiccr, by 42 Geo. 3, c. 90, s. 174. No excise, or custom officer, by 7 & 8 Geo. 4, c. 53, s. 1 1, and 8 & 9 Vict. c. 85, s. 12. No alien born, or alien naturalized (2^). " If tlie parish," says Lord Stowell, " had returned a papist, Jexi\ or a child of ten years of ag-e, or a ])erson convicted of felony, I conceive the ordinary -would be bound to re- ject "(.r). In Adcy v. Theobald {y), the court refused to compel a Quaker to imdertake the office. Deafness is no ground of exemption (r). When a person first elected cluu-clnvarden had, on the payment of a fine, been excused, a jierson elected in his place, at the same vestry meeting, is bound to serve, unless some exemption is shown (a). No person living out of the -parish, although he occupies lands within the parish, may be chosen churchwarden ; because he cannot take notice of absences from chiu'ch, nor disorders in it, for the due presenting of them (Z»). But a person may be a parishioner without iidiabiting a house, for he may occupy a farm(c). A partner in trade, lodging in another parish, is bound to serve in the parish wherein is his house of trade ; and even a non-resident partner in a house of trade has been holdeu liable to serve the office of churchwarden (rZ). Sect. 3. — Choice of Churchwardens. Time. By Can. 90 of 1603, churchwardens, questmen, sides- men, and assistants shall be chosen in Easter Avcek. By Mbom. And by Can. 89, " All churcliwardens or questmen, in every parish, 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 : and without such a joint or several choice, none shall take upon them to be churchwardens" {e). (w) Anthony v. Scr/cr, 1 Cons. 10. (x) Ibid. (y) 1 Curtcis, 447; Court of Arcluleaconry of London, Dr. riiillimore. (s) Cooper v. Allnutt, 3 Phill. 1G5, Lord Stowell. In this case counsel moved tiic court to com- pel Allnutt to take upon himself tlie office of cliurchwanhn, and the court directed him to take the oath before the proper ordinary. {a) Birniev. Weller and Elliott, 3 IIat,^g. 474. (bj Gibs. 215. ((■) Brook V. Owen, 3 Phill. 517, in note. {(I) Stephenson v. Lang ton, 1 Consist. 379. See also Eex v. Pnymler, 1 B. & C. 178; and Att.- Gen. V. Foster, 10 Ves. 333. {(■) As to the meaning of the term " parishioners," the cases of CHURCHWARDENS. 1843 Tlie books of common law interpret tliis witli a limita- tion ; namely, if a custom has not been for the parishioners to choose both. In which case when two have been chosen by the parish, on pretence of custom, and one by the in- cumbent on the foot of this canon, and the ecclesiastical judge has refused to admit the swearing more than one of those who have been chosen by the parish, upon surmise of such custom, mandamuses have been frequently granted by the temporal courts to swear the person so elected by the parish : and also prohibitions have gone, in cases where the^ spiritual court has attempted to try or overrule the custom, or otherwise to do anything to the prejudice of that title. Upon which occasion it has been said, that churchwardens are lay incorporations and temporal officers ; and that of common right every parish ought to choose their own churchwardens, which right is not to be over- thrown but by proof of a contrary custom ; and that although one is sworn, a writ may go to swear another in the same place, to the end both parties may be made capable to try the right (_/). 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 and custom of the realm : and they cannot make churchwardens that were eligible to be donative, without act of parlia- ment. And the canon is to be intended, where the parson had nomination of a churchwarden before the making of the canon" {g). When two sets of churchwardens are sworn in, the right How to be de- ls to be settled in an action. A quo icarranto will not be termined. granted, as the office does not concern the rights or pre- rogatives of the crown (/i). The right is now, however, most usually and conveniently tried by mandamris (i). The mode of election is first by show of hands, and then by polling (j). It has been said that " the Ecclesiastical Court has no authority to determine the question of the validity of an election, and that the extent of discretion which it should exercise in swearing in or declining to swear in persons Att.-Gcn. V. Parker, 3 Atk. 577; (g) Godol. 162. 1 Ves. sen. 43; and Faulkner v. (h) 2 Str. 1196; 4 T. R. 381; Gh/n, 4 B. & C. 457; 6 D. & R. 7?e Barlow, 30 L. J., Q. B. 270 524, sliould be consulted. (ISGl). (/) Gibs. 215; Cro. Car. 551; (/) Sec Ec Barlow, 30 L. J., 1 Keb. 517; 3 Burr. 1420; Nov, Q. B. 270. 31—130; 2 Roll. 234; Degge, p. 1, ( /) Anlhnnyy. Srgn; 1 Consist. c. 12. 10. ' Vide infra, Part' VI., Chap. V. 1844 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. How to be dc- tcrmiucd. In London. Dr. Harris's opinion. Churchwarden not to serve twice. Decision of the Common IMcas to the same etfect. " alleged to be chosen churchwardens is difficult to be de- fined, and tliat it can l)e tried only by an action at law" (k). ►Sec however Anthoni/ v. Sc(/cr ( / ), where the validity of the election was tried, and Cliitty's l>uru's Justice (??i), where it is said, and sui)i)ortod by authoi'ities, that the spiritual court may become the means of trying the validity of tlie elec- tion by a return of " not elected," or " not duly elected ;" and the right may be tried by an action for a false return. " The ])roper and regtdar mode is for the churchwardens to return two persons to succeed them : but tliis is not exclusive of other methods, and though customary, is not indispensably necessary, provided the court has satisfactory information of the election in any other Avay"(n). To a question whether a churchwarden, in London, who had served one year as under-churchwarden, could be com- pelled to take the office of upper-church^varden, the late Dr. Harris gave the following opinion : " The intent of the 89th canon seems to have been to hinder the continuance of any person in the office of cluu'chAvarden for more than a year, unless under parti- cular circumstances; and if a majority in vestry should choose the same person a second time, without good reason, and a precedent for so doing, I have no doubt but that the officer so elected would be warranted for refusing to serve, and would be excused and dismissed if prosecuted in an ecclesiastical court before the ordinary. " But the pro%'iso in the above-mentioned canon (except perhaps they be chosen again in like manner) must, I think, be undei'stood to authorize a second election in special cases, and on a justifiable account ; and in the present instance, as the second election of Mr. Conach for a second year is according to the constant custom of the j)arisli of St. Ethelburg (London), I apprehend that he would be obliged to take the oath, if cited for that purpose into the ecclesiastical court by the present churchwarden, who in strictness of laAV does not go out of office till the new elected one has been sworn. " 27th April, 1767. George Harris." In accordance with this opinion was a decision of the Common Pleas in 184G. From the year 1648 (the earliest period of Avhich any records could be found), the parish of St. S. W., in the city of London, had been governed by a select vestry. (/•) Rep. of Ecck's. Coniinis. 4.0 (1832). (/) 1 Consist. 11. {m) Vol. i. p. G88. (ii) Anl/ioinjv. Sejer, 1 Consist. 10, Lord Stowell. CHURCHWARDENS. 1845 composed of tlie rector and churcliwardens, and those inhabitants who had served the office of churchwarden, or paid a fine for not serving-. Down to the year 1734 (ex- cept in two or three instances, and between 1667 and 1672, w^hen the affairs of the parish were deranged by the Great Fhe of London), the course had been for the select vestry annually to choose, from among the parishioners at large, one person to act as junior churchwarden, Avho at the end of the year succeeded to the office of senior church- warden. From 1734 to 1775, no records of the parish could be found. And from 1775 to 1824, the same course had been pursued except only in four instances. The number of persons composing the vestrj^ on these occasions A'aried, sometimes as many as sixteen being present, some- times only three. Upon a special case, lea^dng it to the court to draw such inferences from the facts as a jury would be warranted in drawing, it was decided that a repeated re-election of the same person to the office of senior churchwarden, without any necessity for so doing, was in violation of the custom, and, consequently, void(o). In 7 Car. 1, a prohibition was granted against the Other cases. churchwarden chosen by the parson of St. Magnus nigh London Bridge, by force of the canon ; upon a surmise, that the parish has a custom to choose both church- wardens (p). And, by Holt, Chief Justice : In London, generally, both the churchwardens are appointed by the parish {q). In Warner s case, in 17 Jac. 1, Warner, one of the churchwardens of All-Hallows, in London, prayed a prohi- bition ; for that whereas, by the custom of the said parish, the parishioners used every year to elect one of the parish, ■svho had borne the office of scavenger, sidesman, or con- stable, to be churchwarden ; and that every year one who had been so elected churchwarden, Avas to continue a year longer, and to be the upper-churchwarden, and another was to be chosen to him, avIio is called the undcr-church- "warden, that such a choice being made in that parish of the said Warner to be churchwarden, the parson notwith- standing that election nominated one Carter to be church- warden, and jirocured him to be sworn in the Ecclesiastical Court, and denied the said Warner to be churchwarden according to the election of the parishioners ; and this by colour of the late canon, that the parson should have the (o) Gihhs V. Flicjht, 3 ^lann. ( «) 2 Kolle's Abr. 287. G. & S. 581 (1846). {q) \A. Kaym. 138. 1846 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. In London. election of One of the clmrcliwardens ; and tins being against the custom, a ])rohibition Avas prayed, and a pre- cedent shown in the common bench, in Kaster term of 5 Jac. 1, for the ]iarisli loners of AValbrook, in London, Avhere such a prohibition was granted ; for it being a special custom, the canons cannot alter it, especially in London, where the parson and churchwardens are a cor- poration to ])urchase and demise their lands ; and if every ])arson might have election of one cluu-chwarden, without the assent of the parishioners, they might be much preju- diced thereby (r). But although the greatest part of the parishes in Lon- don choose both the churchwardens by custom ; yet in all the new erected parishes the canon takes place (unless the act of parliament, in virtue of which any chiu-ch was ci'ected, shall have specially provided that the parishioners shall choose both) ; inasmuch as no custom can be pleaded in such new parishes (.s-). Customs out of In Cotton V. Bericick, in 5 Geo. 1, a judgment of the Londou. Court of Delegates ; the custom was, for the parson to appoint one, and the two old churchwardens the other: but it Avent no fiu'ther. In this case the two church- Avardens could not agree, so the one presents Bermck, and the parishioners at large choose Catton. It Avas insisted for Berwick, that his case Avas like that of coparceners, Avhere if they disagree, the ordinary may admit the pre- sentee of Avhich he Avill, except the eldest alone presents. On the other side it Avas said, that the cases Avidely dif- fered ; for in the case of a presentation the ordinary has a poAver to refuse, but he has not so in the case of church- Avardens, for they are a corporation at common laAV, and more temporal than spiritual ofticers. And a case Avas cited to have been adjudged in the King's Bench, Avhere, to a mandamus to SAvear in a cluu-cliAvarden, the ordinary returned that he Avas a very imfit person ; but a peremp- tory mandamus Avas granted, because the ordinary Avas not a judge in that case. And the court held, that by this disagreement the custom Avas laid out of the case ; and then they must resort to the canon : imder Avhich, Catton being duly elected, they decreed for him, Avith sixty pounds costs (t). (r) Cro. Jac. 532; Cro. Car. tliis case, wliich was appealed to 515, 552. tliat court from York. "In 1718, (.S-) Gibs. 215. Catton v. Bericich : 'In Ima inst (<) 1 Str. 145. In tlie printed negotium circa jus electionis, ad- Catalogiies of Proces.ses in tlie missionis, etjurationis guardian! High Court of Delegates, No. pro Capella do UiUTowbridge pro 808, is the folIoA\'ing notice of aiin. 1715.' " CHURCHWARDENS. 1847 The parish of Prestwich, in the county of Lancaster, formerly consisted of six several townships or hamlets, viz., Prestwich, Uusworth, Great and Little Heaton, Tonge-cura-Alkrington, Outwood, and Whitefield, each of Avhich had its own churchwarden, and collected its own church rates, which afterwards formed a common fund for the parish. In 1848 Whitefield was, by order in council, created a separate rectory, and thenceforth ceased to form part of the parish of Prest-\vich, or to furnish a church- warden, or to contribute any rates thereto. The evidence of the custom as to the appointment of churchwardens was as follows : — In the township of Prest- wich, the outgoing churchwarden, either orally or in Avriting, presented to the rector the names of two persons (one of whom might be himself), of Avhom the rector chose one to be churchwarden for the ensuing year ; in each of the other hamlets or townships the selection of the ^lersons submitted to the rector's choice wns made at a meeting of the rate-payers of the hamlet or township. As to Prestwich, this course was not always strictly ad- hered to ; the churchwarden for the time being w^as some- times, when circumstances rendered it convenient, re- quested by the rector to continue in office for another year. Upon a special case, in which it Avas agreed that the court should draw inferences of fact : It was holden, that the custom was valid and sufficiently proved, notwith- standing the occasional deviations ; and that the severance of the hamlet of Whitefield from the rest of the parish of Prestwich, did not affect the validity of the ancient custom. Declarations of a deceased rector were received as evi- dence of the custom. In 1863, the rate-payers of the township of Prestwich claimed to be entitled to appoint a churchwarden, or to nominate tAvo persons to be submitted to the rector for his choice ; and at a meeting holden for that ]3urpose the de- fendant Avas appointed churclnvarden, and proceeded to collect a church-rate in the toAvnship of PrestAvich. In an action by the five churchAvardcns appointed according to the above custom, to recover fi-om him the money so levied : — It A\'as decided, that the action was maintainable, although it appeared that some of the plaintiffs had omitted to make the declaration prescribed by 5 &: 6 Will. 4, c. 62, s. 9 — the court having power under the 19th section of the Common LaAv Procedure Act, 1860 (23 & 24 Vict. c. 126), to give judgment for such of the plaiutifls as might be proved to be entitled. 1848 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Customs out of Loudon. Where no clmichwaiilcns are aj)i)oiiitcd. Mode of con- ducting elec- tions. . Churchwarden ceasing to reside in parish. Iloldinp; office, j>r'n)i('i f() Gibs. 216. (0 Ibid. (A-) Gibs. 961; 3 Keb. 206; Ventr. 127. (I) Gibs. 216. (m) 1 Lord Raym. 138. CHURCIIAVARDEXS. 1851 and admit a person duly elected by the parish, according to the custom, to be churchwarden. To which it was re- turned, that he was a person unfit, being a 2:)Oor dairyman, and the like. And the question was, whether the arch- deacon can refuse to swear and admit the churchwarden so elected, for any cause whatsoever. And it was resolved, that he has no such power : for the churchwarden is an officer of the parish ; and his misbehaviour Avill 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 may maintain actions for them ; and for that reason it is an office merely temporal, and the arch- deacon is only a ministerial officer. And therefore a pe- remptory mandamus Avas granted. Which same case, as it seems, is reported by Salkeld vinder the name of Morgan v. Archdeacon of Cardigan {ji), as follows : jNIandamus to the archdeacon, to swear a churchwarden, being duly elected. The archdeacon made this return, that he was a poor dairyman, and a servant, and unable and imfit to execute the office. And thereupon a peremptory mandamus Avas aAvarded : for the church- AA'arden is a temporal officer; he has the property and custody of the parish goods ; and as it is at the peril of the parishioners, so they may choose and trust whom they think fit ; and the archdeacon has no poAver to elect, or control their election. In Rex V. Simpson (o), in 11 Geo. 1, a mandamus to the Hex v. Shn_p- Archdeacon of Colchester, to SAvear Rodney Fane into *""• the office of churchwarden ; he returns, that before the coming of the Avrit, he received an inhibition from the Bishop of London, Avith a signification that he had taken upon himself to act in the premises. But by the court : The return is ilL It does not appear, that the toAvn of Colchester is Avithin the diocese of the bishop AA-ho inhibits ; besides, the ai'chdeacon is but a ministerial officer, and is obliged to do the act, Avhether it be of any validity or not. And a peremptory mandamus Avas granted. In Rex y. H hite(p), in the same year, to a mandamus If ex v. White. directed to the archdeacon to SAvear a churcliAvarden, he returned, that he was not elected. Upon o]jening Avhich Mr. Justice Fortescue said, that it Avas settled, and had been often ruled, that the archdeacon could not judge of the election ; and therefore this return was ill, Avhereupon a peremptory mandamus Avas granted. But note (says Lord Raymond) it Avas certainly Avrong ; for the return Avas (n) 1 Salk. 166. (;,) 2 Lord Ravm. 1379. (o) 1 Str. 610. 6 C 2 1852 FAUUKS AM) OFFICEUS OF FAHUICS OF THE CHURCH. a good rc'tiirii, aiul has often been made to sucli mandamus, and actions ))r()ii<;lit npon tlic return and tried. Jtcj'v. liar- In R<'x V, J/tinrood {(/), in tlic same year, to a manda- "'"'"'■ mus directed to the defendant, Dr. Ilarwood, as commis- sary of the dean and chapter of St. Paid's, commandins, Cripplegate, London; the de- fendant returned, tliat he was not elected. And it was insisted on the behalf of Folbij^:!!;, that the return Avas ill ; that the archdeacon, Avho was only to obey the writ, coidd not judge of the election : and therefore upon such a return to such a writ, a peremptory mandamus was granted last jMichaelmas term, in the case of Jie.v v. IVIiite. That the archdeacon could not judge of the qualities of a person chosen by the parish, was cited Rex v. Martin Rice. But liaymond. Chief Justice, and Keynolds, Justice, held the return to be good. But upon the importunity of the coimsel for Foll)igg, and pressing the authority of that case of Rex v. IVhite, and no counsel for the defendant appearing, a rule was made for a peremptory mandamus unless cause showed. And at another day, the counsel for the defendant coming to show cause against the rule, it was discharged. But the covu't not being unanimous, it Avas ordered to come on again in the paper. But Lord Baymond (who reports this case) says, he never heard that it was stirred again. But there can be no doubt (he says) but such return is good. JReg.y.TicUtij. And the proper distinction, as to this point, seems to be taken in the case of Rerj. v. Twitty, in 1 Anne(r). INIandamus to swear a churchwarden, suggesting that he Avas dxihj elected. The return Avas, that he Avas not duhj elected. It Avas objected, that this Avas not a good return. But by Ilolt, Chief Justice : Where the wi'it is, to swear one duly elected, there a return that he was not duly elected, is a good return, for it is an answer to the writ ; but Avhere it is to SAvear one chosen churcliAA'arden, there a return that he is not duly chosen is naught, because it is out of the Avrit and evasive. ITuhhardx. In Iluhhard \. Sir Henry Pcnrice {s ), in 19 Geo. 2, to Penru-e. j^ mandamus to SAvear the plaintiff churclnvarden of Hestou in Middlesex, the defendant returned, that he was not duly elected. And in the course of the trial, the question Avas, AA-here the common right of choosing churcliAvardens rests. The plaintiff insisted, it Avas in the parishioners at large (5) 2 Lord Ravm. 1405. (s') Str. 124G. (r) 2 Salk. 433. CHURCHWARDENS. 1853 as to both the churchwardens, and would therefore have lefl it upon the defendant, to show a custom or right in the parson to name one. The defendant, on the contrary, insisted, that of common right it was in the parson and parishioners, and therefore it lay upon the plaintiff to prove a custom in the parishioners to choose both. And of this opinion was Lee, Chief Justice, and that though there are some dictums to the contrary, yet they had never been regarded. The plaintiff therefore went on to prove a cus- tom to choose both by the parishioners, but failed in it ; it appearing, that though the ])arson had generally left it to the parishioners, yet he had sometimes interfered. Lee, Curate's Chief Justice, likewise held, that a curate stood in the ^i^thority. place of the parson, for the purpose of nominating one churchwarden. In Rex v. Harris (^t), in 3 Geo. 3, a mandamus was Hex v. Harris. directed to Dr. Harris, commissary of the consistorial and episcopal court of the Bishop of Winchester for the parts of Surrey, to admit and swear Henry Griffith and Thomas Garner, cluu'ch wardens of the parish of St. Olave, South- wark. And a like mandamus was also directed to him to admit and swear another set of churchwardens into the same office. Dr. Harris returns, that a cause was dejoending before him, in which it was disputed, which of the two sets of churchwardens had been duly -elected ; and till that is determined, he cannot admit either one set or the other. By Lord ]Mansfield and the court : The return is bad ; the commissary cannot try the right. He ought to obey both writs, and it is of no prejudice to either j^arty. It was proposed by the court, and consented to by the parties, to try the right on a feigned issue ; and the execution of the peremptory mandamus to be suspended till after the trial, and then the pcremptor^^ mandamus to go to swear in those that shall prevail upon the trial. But hear Lord Stowell(?<). " It has been said there Lord Stowcll's would be ground for a mandamus, but inaccurately ; for o\-innon. offices t/ie most ministcriul leave a. discretion not to join in an illegal act ; and if a parish had returned a Papist, or a Jew, or a child of ten years of age, or a person convicted of felony, I conceive the ordinary would be bound to reject; and though it is the duty of the ordinary not to take slight exceptions, lie is honnd, I conceive, to take care that an election, in his opinion void in itself, should have no legal (/) 3 Bur. 1420; 1 W. Black. 430. (") Anthony v. Scger. 1 si.st. 10. Con- 1854 FABRICS AND OFFICERS OF FAIiKICS OF THE CHURCH. effect, and this is a duty which he owes to the parish and the p^enoral law of tlio coimtry." Pe.r V. Wil- Tlic following case of Itcv v. JVilliams, in 1828 (x), "*■ contains one of the latest decisions as to the proper return to a mandamns. To a mnnda- " Mandamus to the defendant as official and commissary a'^B^IiUo"'' of the parish of Hornchurch and liberty of Ilavering-atte- the ohke of Bowcr in the county of Essex, to swear and admit into the chuithwardcn, office of cluircliwardon .James Meakins. The mandamus reciting that I'ecited, that he had been didv nominated, elected, and lie iiJid been . "^ (luly elected, a chosen into the place and office of churchAvarden of the return that said parish. The defendant having rctiu-ned, that Meakins ^'l^r^f d"*^ was not duly elected into the place and office of church- is good. ' warden : the case now came on for argument in the crown paper. " Brodrick. — The return is insufficient. The commis- sary had no right to exercise any judgment on the subject. He was a ministerial officer, and was bound to swear in the churchwarden, Rex\. Martin Bice^t/), Bex v. Simpson{z). In Rex V. White {a^, to a mandamus to swear in a church- warden, a return that he was not elected, was held bad, on the ground that the archdeacon could not judge of the election. Rex v. Harris {h) is an authority to the same effect. These authorities show that a return denying the election is bad. Here the return is that ]\Ieakins was not duly elected. The commissary, therefore, exercised his judgment, not only as to the fact of the election, but as to the validity of it. Hereford's case and Cripjis case (c) show that such a return is bad. ".Erie, contra, was stopjied by the court. " Bayley, J. — At the end of the report of Rex v. White (^d), Lord Raymond adds a note, ' It was certainly wrong ; for the return Avas a good return, and has been often made to such mandamuses, and actions brought upon the return and tried :' and he refers to Rex v. Harwood{e). There the mandamus was directed to the defendant, a commissary, commanding him to swear in a churchwarden, and he returned nonfuit elecius ; and it was insisted that the return Avas ill, that the archdeacon, Avho was only to obey the writ, could not judge of the election or of the qualities of a person chosen by the parish. But Raymond, C. J., and Reynolds, J., took the return to be good. But, being (x) 8 B. & C. 681—087; 3 Man. (h) 3 Burr. 1420. & Ky. 403. (c) 1 Sic]. 209. (y) 1 Lord Ravm. 138. (d) 2 Lord Raym. 1379, (z) Str. 610. {() Ibid. 1405. (n) 2 Lord Ravm. 1379. CHURCHWARDENS. 1 855 " pressed with the authority of Bex v. Wliite, and no counsel for the defendant appearing, a rule nisi was made for a peremptory mandamus. Cause was afterwards shown ; but the court not being unanimous, it was ordered to come on again in the paper. Lord Raymond says, * I never heard it stirred again. There can be no dovibt that it was a good return.' In Rex v. Ward{f), it was said in argument to have been decided in Rex v. Harivood, that nonfuit electus was a good return. In Reg. v. Twitty {g), there was a mandamus to swear a churchwarden, suggesting that lie tvas duly elected. The return was, that he was not duly elected. It was objected, that it was not a good return. Holt, C. J., says, ' Where the writ is to swear one duly elected, there a return that he Avas not duly elected is a good return, for it is an answer to the writ ; but Avhere it is to swear one chosen churchwarden, there a return that he is not duly chosen is naught, because it is out of the writ, and evasive.' These authorities show that the return in the present case is good. " Littledale, J. — The commissary has a right to say by the return, that he is not bound to do the thing -which he is required to do by the mandamus. Here he does say so, by showing that the party was not duly elected. " Parke, J. — The commissary may deny any material allegation in the writ. He cannot exercise any judicial authority, but he may inquire whether the party has been duly elected, otherwise he would be bound to admit any person who presents himself for admission, even if he knew the fact to be that such person was never elected. The party who obtains the mandamus states the foundation of his right in the writ. The commissary may deny it. In this case he has done it, by showing that the party who seeks to be admitted was not duly elected. The re- turn, therefore, is sufficient, and the judgment must be for the defendant. Jiidgment for tlie defendant" (/i). Where there is a yrimd facie case of an improper elec- "Where im- tion, the Coiu't of Queen's Bench will award a mandamus P"'!'^'' ^^^^' to elect a churchwarden {%) ; but ajiparently not now with- out a previous rule to show cause (A). (/) Strang. 894. (/) Rex v. Rector of Birming- (fj) 2 Salk. 433. ham, 7 Adol. & Ell. 254. (h) "A return is good if it (/.•) Reg. v. Sfep/>cns (T. T. pursues the suggestion of the 1870), cited in Prideaux'sChurch- writ. Rex v. Penrice, Strange, wardens' Guide (ed. 1871), pre- 1235; Rex v. Hill, 1 Shower, fatory advertisement. 253." 1856 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Sect. 6. — Official Acts of Churchwardens. Churchwar- The cluu'chwardeiis are so fai* incorporated by law, as dcnsacoqirra- iq g^jg ^q^ the goods of the chiirch, and to bring an action of trespass for them ; and also to purchase goods for the use of the ]iarish ; but they are not a coi'poration in such sort as to jHirchasc lands, or to take bv grant ; except in London, -where they are a corporation for those purposes also(/). But by 9 Geo. 1, c. 7, the churchwardens, with consent of the major part of the parishioners or inhabitants in vestry, may purchase houses to lodge and employ the poor in. A lease of parish land granted by the churcli- Avardens alone is invalid (?«). And therefore, if any one give land to the parish, for the use of the chm-ch,it must not be to the churchwardens and their successors, but it should be to feoffees in trust to the use intended ; Avhich must fi'om time to time be renewed, as the trustees die aAvay(n). And although the churchwardens may have their action for the goods of the parish, yet they cannot dispose of them without the consent of the parish ; and a gift of such goods by them, without the consent of the sidesmen or vestry, is void (o). And Prideaux thinks the ordinary's licence is neces- sary (y?). In Jackson v. Adams (^q), it was holden that the property of the bellropes of a parish church was in the chiu'ch wardens. It has been laid down as a general rule that an agree- ment l)y parish officers in the course of their official duties, which is beneficial to the parish, is binding on it and suc- ceeding churchwardens (r). A churcliAvarden has no au- thority to pledge the credit of his co-churcliAvarden for the repairs of the church. If he orders such repairs, without the knowledge of the other churcliAvarden, he will be liable individually (■*.). By 1 & 2 Win. 4, c. 59, they may, Avith consent of the treasury, inclose crown lands not exceeding fifty acres. They cannot make a lease of lands given to feoffees for parishioners (/). Contracts by church- Avardens. Crown lands. il) Gibs. 215; Bac. Al)r. Churchwardens (B.); Cro. Ja. 532. (m) Phillips \. Pearce, 5 B. & C. 433; 8 D. & Ry. 43. (n) Gibs. 215; "Mar. 2, 67. (o) Wats. c. 39; 1 Roll. Abr. 393. (p) Sec Direct. 178. iq) 2 Bing. N. S. 402. (/•) 2 P. AVms. 266; 1 Powell on Contr. 114. (s) Northicaite v. Bennett, 2 C. & M. 316. (0 12 Hen. 7,29 a; 13 Hen. 7, 29 a. CHURCHWARDENS. 1857 By 59 Geo. 3, c. 12, s. 17, "all buildings, lands and Leases by hereditaments, whicli shall be purchased, hired, or taken ^^"'T^' on lease by the churchwardens and overseers of the poor of any parish, by the authority and for any of the purposes of this act, shall be conveyed, &c. to the churchwardens and overseers of the poor of every such parish respectively and their successors, in trust for the parish ; and such churchwardens, &;c. shall and may, and they are hereby empoAvered to accept, take and hold, in the nature of a body corporate, for and on behalf of the parish, all such buildings, &c., and also all other buildings, S^c. belonging to such parish''^ (u). Churchwardens alone, or overseers alone, have no power as a body corporate under that act to make leases, &c. of such lands (v). AVhere a lease had been granted by churchwardens before the act, the acceptance of rent by the parish officers, after the passing of the act, was holden not to set up the lease, because that was void, but to create a tenancy from year to year [x). A covenant in a lease of lands by the churchwardens and overseers of a town- ship, that the lessee might take manure, &c. from the poorhouse, to be used on the land, the lessee covenanting to provide straw, to be used in the poorhouse, has been holden not to bind succeeding overseers (g). It seems Cannot ap- that churchwardens and overseers, having no corporate P^^"* ^ttomc}-. seal, cannot appoint an attorney (z). The release of one churchwarden is in no case a bar to One church- the action of the other ; for what they have is to the use ^^f Jen cannot 01 the parish. In Star keg v. Berton (a), in 7 Jac. 1, the case was, two churchwardens sue in the spiritual court, for a levy towards the reparation of their church, and had a sentence to recover, and costs assessed ; the one releases, and the other sues for the costs, and there this release was pleaded, and disallowed. AVhereupon he ]irays a prohibition ; and all this matter was disclosed in the prohibition ; and the («) See as to the last words, 28. Doe d. Jackson v. Il'dey, 5 M. & {z) Ex imrte Anneslaj, 2 Von. Ry. 706; Doe d. Higgs v. Terry, & C. 350; Doe d. Hic/gs v. Ternj, 5 N. & M. 556; Doe v. Cockcll, 6 4 Ad. & Ell. 274; Doe d. Ilobbs ibid. 179; Ex parte Annesley, 2 v. Co(dcell, ibid. 478; Rex v. You. & C. 350; Alderman v. C/iurchivardens of St. JlicJiael, Neate, 4 Mee. & W. 704 ; A llason PemhroJce, 1 Nev. et Per. 69; Rex V. Stark, 1 Per. & D. 183. v. St. A^aviours, Southwark, ibid. {V) Woodcock V. Gibson, 6 D. 496; Rex v. Brighton Church- 6 R. 524; Phillips v. Pearce, 8 loardens, ibid. 774; Wrench v. ibid. 43; and see Co. Litt. 3 a. Lord, 4 Scott, 381, ibr the power {x) Doe ^.Iliggsw Terry, b^. of churchwardons as a corporate &M.556. body. (y) Snowden v. Emslcy, 3 Stark. {a) Cro. Jac. 234. release. 1858 FARKICS AND OFFICERS OF FABRICS OF THE CHURCH. Presentments. One church- defendant thereujDon deiniu-red in law. And now it was warden cannot moved, that this release bv the one, being in the personalty, release. should discharge the entire. But it was resolved by all the court to the contrary : for churchwardens have nothing but to the use of their ]iarish, and therefore the corpora- tion consists in the churchwardens ; and the one solely cannot release nor give away the goods of the church ; and the costs are in the same nature, which the one without the other cannot discharge. And of that opinion was all the Court of King's Bench. Wherefore it was adjudged for the defendant. Upon the like foundation, where an obligation is made to them and their successors, and they die, their executors shall have action, and not their successors (/>). Taking posses- AYlierc lands are vested in churchwardens and overseers Bion of lands. Qf ^ parish as a quasi corporation, under 59 Geo. 3, c. 12, s. 17, and the interests of the parish require possession of land to be taken, or similar acts done, any one of the churchwardens or overseers may do it without the concur- rence of the rest(c). The persons who are to make presentments are now chiefly the churchwardens ; which is not according to the rule of the ancient canon law, nor according to the prac- tice of the Church of England before the Reformation ; churchwardens being, by their original office, only to take care of the goods, repairs, and ornaments of the church ; for which purposes, and no other, they have been reputed a body corporate for many hundred years ; but the busi- ness of presenting was devolved upon them by canons and constitutions of a more modern date(f/). The ancient method Avas, not only for the clergy, but the body of the people within such a district, to appear at synods, or (as we now call them) general visitations; (for Avhat Ave now call visitations were really the annual synods, the laws of the church by visitations always meaning visitations parochial ;) and the Avay Avas, to select a certain number, at the discretion of the ordinary, to giA^e informa- tion upon oath concerning the manners of the people Avithin the district ; which persons, the rule of the canon laAv upon this head supposes to haA'C been selected, Avhile the synod Avas sitting : but afterwards, Avhen the body of the people began to be excused from attendance, it Avas directed in the citation, that four, six, or eight, according to the proportion of the district, should appear together Avith the clergy, to represent the rest, and to be the testes (b) Vin. tit. Churclnvariiens (D). (c) Ganvill v. Utting, 9 Jiir. lOSl (1845). ((1) Gibs, on Visitat. 50. CHURCHWARDEXS. 1859 synodales, as the canon law elsewhere styles them. But all this while, we find nothing of churchwardens present- ing, till a little before the Reformation ; when we find the churchwardens began to present, either by themselves, or with tAvo, three, or more, credible parishioners joined with I them : and this (as Avas before obserA^ed) seems evidently to be the origin of that office Avhicli our canons call the office of sidesmen or assistants (e). As the churcliAvardens may present, so also they may A nuisance in libel, in the spiritual courts. In 2 W. & M., Newton, the churchyard one of the churchwardens of St. Botolph's, London, a^sticaTcouu" libelled against Quiltes for stopping the church door and sance. AvindoAvs by sheds, &c., built, as he supposed, upon part of the churchyard. Upon Avhich a prohibition Avas prayed, and the suggestion Avas, that they Avere not built upon any part of the churchyard, but upon a lay fee. But the court agreed, that no prohibition should be granted to any suit in the spiritual court, for any nuisance or other matter done in the churchyard, upon a suggestion that the church- yard is a lay fee ; for a nuisance there is properly of eccle- siastical conusance (/"). They may present as often as they please, but shall not be obliged to do so more than tAvice, except at the bishop's visitation (^). The minister may present Avhen the church- Avardens neglect, but such presentments ought to be upon oath(/i). By Can. 89 of 1603, the churchAvardens or questmen How long they shall not continue any longer than one year in that office ; shall continue except perhaps they iDe chosen again in like manner. ^^ office. For although, in some places, there is but one ncAv churchwarden yearly elected (he Avho AA'as junior church- Avarden before iDcing continued of course) ; yet in that case the books of common laAv, as Avell as the canon, suppose a neAv election to be made of both(?). But by Can. 118, the office of all churcliAvardens and sidesmen shall be reputed to continue until the ncAv churcli- Avardens that shall succeed them be SAvorn. And it has been holden, that a churcliAvarden remains in office, and is liable for the non-performance of the duties thereof, until his successor has made and subscribed the declaration required by 5 & 6 Will. 4, c. 62, s. 9 (A). (e) Gibs, on Visitat. 59, 60, 61. (/() Can. 113; Grove v. Elliott, Vide supra, Part IV., Chap. IX., 2 Vent. 42. Sect. 3. (i) Gibs. 215; Cro. Jac. 532; (/) Cartli. 151. Sed vide supra, Noy, 31. Vide supra, pp. 1844, p. 1784. 1845. {fj) Can. 116, 117 of 1603. (l-)Bray v. Somer, 8 Jur., N. S. 716 (1861). 1860 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. How long they And altliouoh a ])arisli prescribe to clioose two churcli- f'"'''''""'^^^"® wardens, and that the person so chosen shall continne in that ofhce for two years ; yet there is considerable autho- rity for sayino^ that the ])arish may, notwithstanding the prescription, remove such churchwardens at their pleasure, and choose new ones : for, as it is said, the ])arish might sufier great loss, if the churchwardens should continue so long in their office contrary to their will ; for in that time they might waste all the parish goods belonging to the church (/). Sect. 7. — Accounts of Churchwardens. By Cauon. By Can. 89 of 1603, " All churcliAvardens at the end of their year, or within a mouth after at the most, shall, be- fore the minister and the parishioners, give up a just account of such money as they have received, and also "what particularly they have bestowed in reparations and otherwise for the use of the church. And last of all, going out of their office, they shall truly deliver up to the parishioners whatsoever money or other things of right belonging to the church or parish, which remaineth in their hands ; that it may be delivered over by them to the next churchwardens, by bill indented." A just Account.] — If the custom of the paiish is, for a certain number of persons to have the government thereof, and the account is given uj) to them ; the custom is good in law, and the account given to them is a good ac- count (m). JBi/ Bill indented .2 — Lindwood, speaking of the inven- tory of the goods of the church, to be delivered in writing to the archdeacon, says, " It Avere good that these Avritings should be indented, so that one part might remain Avith the archdeacon, and the other with the parishioners:" from Avhence this branch of the present canon seems to have been taken (n). In Sti/rrop v. Stoakes (a), in 3 Will. & M., it was holden, that if money be disbursed by churchwardens for repairing the church, or any thing else merely ecclesias- tical, the spiritual courts shall alloAv their accounts: but if there be any thing else that is an agreement between the parishioners, the succeeding churclnvardens may have an action of account at law, and the spiritual court in such case has not jurisdiction. (0 Wats. c. 39; 13 Co. 70. (n) Ibid.; Liiid. 50. (w) Gibs. 216. (o) 12 Mod. CHURCHWARDENS. 1861 If a cluircliwardeii in any case is maliciously sued in Account, when the spiritual court for not making up his account, and is settled, final, excommunicated, when in fact it has been duly made ; he may have a prohibition : and also an action upon the case will lie (/»). In Snoioden v. Herring {q), in 4 Geo. 2, it was said, that where churchwardens have passed their accounts at a vestry, the spiritual court shall not afterwards proceed against them to account upon oath. In WainiDiHght v. Bagshaic (r), in 7 Geo. 2, the church- wardens were cited into the Court of Lichfield to account : they pleaded, that they had accounted at the vestry, accord- ing to law ; which was rejected ; and a prohibition was granted. For the ordinary is not to take the account ; he can only give a judgment that they do account ; and to Avhat purpose should they be sent back to those, who have taken their account already ? In Adams v. Rush (s), in 13 Geo. 2, the court said : Power of the *' The spiritual court has no jurisdiction to settle the spiritual court churchwardens' accounts." And a prohibition was granted, accounts. after sentence, allowing the accounts, and an appeal to the Arches. The spiritual court may compel the churchwardens to deliver in their account, but cannot decide on the pro- priety of the charges. Therefore if they take any step after the accounts are delivered in, it is an excess of juris- diction for which a prohibition will be granted, even after sentence (t). And if the churchwardens have laid out the parish money imprudently and improvidently, yet if it be truly and honestly laid out, they must be reimbursed again ; and the parishioners can have no remedy herein, unless some fravid or deceit be proved against them ; because the parish have made them their trustees. But if they be going on in an expensive way, the parishioners may complain to the ordinary, in order to give a check to them, or to procure (Dr. Gibson says) a removal of them from their office (?<). There is no general right in parishioners to inspect the Inspection of churchwardens' books. Therefore the Court of Queen's churchwardens Bench has refused an application for a mandamus to church- '^°°'^^- (p) Gibs. 216 ; Bunb. 247. Ckar, 4 B. & C. 899; 7 D. & Ry. (q) Bunb. 289. 393; Hex v. Clapham, 1 Wils. (0 2 Stra. 974. 505; Eex v. Bletdtow, 1 Bott. (s) Ibid. 1133. 300; Astle v. Thomas, 2 li. & C. (0 Laimn v. Goidti/,3T. R. 3. 271; 3 D. & R. 492; AchUson v. (u) Gibs. 196; see, on the sub- Round, 4 Adol. & Ell. 799 ; 6 ject of inspection, also Rex v. Nev. & M. 422. 1862 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Avardens to allow an insj^ection, where the affidavit, with- out showing any special ground, stated that the request for inspection had been made to the churchwardens bond Jidc, and for the purpose of enabling the ap]3licant and other ratepayers to take part in the proceedings of tlie vestry {x). Cannot bring actions after their office is expired. But their suc- cessors must doit. Church- wardens de facto. Sect. 8. — Actions liy Chur clnvardens. In Dent v. Prudence and Bond{y), in 3 Geo. 2, before the Court of Delegates, it was adjudged that the church- wardens, Prudence and Bond, could not cite the defendant Dent into the spiritual -court, for nonpayment of his church rate, after their year was expired ; for they can only sue in their politic capacity, and cannot institute any suit after that capacity is gone. It was agreed, that if the suit had been begun within their year, they might have proceeded in it after their year was out, this being of necessity to prevent people from delays in order to wear out the year ; but in regard this suit was not commenced till the year was out, and no precedents were shown to Avarrant this suit, the defendant Dent Avas dismissed. But if the action be commenced Avithin the year, they may proceed in it after the year (r). If the churchAvardens for the time being neglect to bring an action for any of the goods of the church taken aAvay, their successors may bring trespass for them in respect of their office ; but then the ncAv churchwardens must say to the damage of the parishioners and not of tJicmselvcs, though the old churcliAvardens, in whose time the goods Avere taken aAva_y, might say either (a). And if any of the goods of the church are detained, or not delivered by the j)redecessor, the successor has an action against him also (b). It is said that churclnvardens de facto, although the validity of their election be doubtful, may bring an action against foniier churcliAvardens for money received to the u.se of the parish {c). But churchAvardens are not ansAvei'- able for indiscretion, but for deceit only, if they lay out more money than is needful (r/). An indictment lies against them for extortion and corruption in their office (e). (x) Reg. V. The Churchwardens of Davenhij, 5 Jur., N. S. 940 (1859). (2/) 2 Stra. 852; 1 Bac. Abr. 37G. (z) 2 P. W. 120; 2 Stra. 852. (rt) Wats. c.39;Cro.Eliz.l45, 179. Qj) Gibs. 21G. (c) 2 H. Bla. 559. (cZ) 1 Wood's Inst. 6, 1, c. 7. (c) Rex V. Eyres, 1 Sid. 307. CHURCHWARDENS. 1863 In Nicholson v. Masters (f), in 13 Anne, on a bill in Yet they may chancery against ninety parishioners, by the executrix of '^*^ ^.'^^^^^'^'^ ^'^ one of the churchwai'dens of Woodford, to be reimbursed money laid out by the testator as churchwarden, for re- building the steeple of the church, it was objected that this matter was proper for the ecclesiastical court, and not for this court. But by Harcourt, Chancellor, the plaintiff is proper for relief in this court, and there are many pre- cedents of the like nature. And it was decreed, that the parishioners should reimburse the plaintiff the money laid out by her testator, with costs of this suit ; and that the money should be raised by a parish rate. In the case of Radnor farish in Wales, in 1718 (^), the churchwardens, as being a corporation for the goods of the parish, commenced a suit Avith the consent and by order of the parish, concerning a charity for the poor ; in which suit they miscarried. And then they brought a bill against the subsequent churchwardens, to be repaid the costs by them expended, and had a decree for it. It was proved that from time to time the parish was made acquainted with what they did ; and though there was no vestry by prescription, yet a vestry book, kept for the parish acts, was allowed as evidence of their consent. The Master of the Rolls said, they are the trustees of the parish, and the parishioners ought to contribute, and not lay the burthen upon these poor people the churchwardens. And the annual successive churchwardens need not to be made parties, as they are renewed. But it is said the spiritual court had no power to order a rate to reimburse the preceding churchwardens ; and a prohibition Avas granted after sentence, in Dawson v. PVilkinson, in 10 & 11 Geo. 2 (/i), because upon the face of the order it appeared the ecclesiastical court had no jurisdiction : and by the whole Court of King's Bench unanimously, there cannot be a rate made to reimburse the churchwardens, because tliey are not obliged to lay any money out of their own pockets. In French v. Dear {{), on a bill by a former church- warden against the parish officers, trustees of an estate for the poor of the parish, and forty inhabitants, to be reim- bursed money laid out on account of the trust under an (/) Vin. tit. Churclnvardens {fj) Vin. Abr. tit. Cluircliwar- (C). See also Marriott v. Tarp- dens (C). ley, 2 Jur. 4C4 ; and Rex v. (/;) Cases temp. Hard w. 381. Churchwardens of St. Michael, (i) 5 Ves. 547; 5 Madd. 4; Pembroke, 5 Ad. & Ell. 603. 2 Vern. 262. 18G-4 FARUK S AND OrilCEUS OF FABRICS OF THE CIIURCir. One cannot sue. Cannot sue for chose iu action. order of vestry, his accounts Ix'ino; ])assed, and an order made for })ayment, the lord cliancellor expressed a strong o})inion a), in 8 Car. 1, an action u])on the case was brought against the defendants, because that they being churchwardens, ])resented the ])laintifF falsely and maliciously, npon a pretended fame of incontinency. Upon not guilty it was found for the defendants, and moved that they might have double costs, because they were troubled and vexed for matter which did concern their office. But it was resolved it was not within the statute ; for it is merely ecclesiastical ; and the statute was never intended but where they shall be vexed concerning tem- poi'al matters which they do by virtue of their office, and not for ])resentments concerning matters of fame. In Millar and Sijmes v. Palmer and Kilhy (y) church- wardens Avere criminally jiroceeded against for not repair- ing the church. Sir H. .Tenner's judgment lays down the ])rinciples which govern this sulyect. It was laid down as laAv in this and a subsequent case that the repairs must be {Ic) Fry and Greala v. Trea- sure, 2 Moo. P. C, N. S. 539 (1865). (I) Comyn's Dig. tit. Eglisc. (m) Ward v. Clarke^ 8 Jur. 3G4. (»?) Cliurcliwardens have duties in connexion with the poor with- out respect to the cliurch, Avhich are not liere mentioned. (0) 7 Jac. 1, c. 5; 21 Jac. 1, c. 12. (p) Cro. Car. 285. {q) 1 Cnrteis, 553. CHURCHWARDENS. 1865 absolutely necessary to warrant sucli a suit ; but since tlie Compulsory Church Rate Abolition Act, 31 & 32 Vict. c. 109, and the principle set forth in Veley v. Pertwee (r), such a suit could not be maintained. If churcliAvardens misbehave themselves, it seems the Removal of parishioners may remove them {s). As soon as a church- ^^"^^'i" warden ceases to inhabit a parish, his place must be sup- plied (^). ChurcliAvardens," says Blackstone, "may not waste the church goods, but may be removed by the parish "(m): and Sir John Nicholl, in Dawe v. Wil- liams {x\ says, "The poAver of parishioners to remoAe their churcliAvardens in case of their Avasting the goods of the parish (or, it may be presumed, in case of their other misbehaviour), is pretty broadly laid doAvn in many books of authority." The folloAving form, taken from the Appendix of Gibson's Codex, seems to confirm this doctrine (y): — " Suspensio Guardianorum Ecclcsics pro pcrmittendo Prcedicator^ non liccntiaf ad prcedicandum.^'' "' John, by the Providence of God Bishop of London, Bishop recites to all and singular parsons, vicars and curates Avhatsoever, that her Ma- Avithin the diocese and jurisdiction of London, and espe- sioners have cially to the parson or curate of the parish of St. Clement suspended the Danes Avithout Temple Bar, London, sendeth gTceting in ehurdr^vardens our Lord God everlasting. Whereas Ave the said John, ^n unlicensed and the right Avorshipful our Avell beloved in Christ Mr. minister to Valentine Dale, doctor of laws, one of the masters of the P^'^^ch. request, Sir Oavcu Hopton, knight, and Mr.* EdAvard Stanhope, doctor of laAv, our chancellor, our colleagues, her majestie's high commissioners for causes ecclesiastical, rightly and justly proceeding, have suspended John Ceely and Christopher Fisher, clmrcJncardens of the parish church of St. Clement Danes without Temple Bar afore- said, because that they, contrary to an intimation directed from my Lord's Grace of Canterbury, and also the afore- said Lord Bishop of London, and others her majestie's high commissioners for causes ecclesiastical, did permit and suffer a preacher unlicensed to preach in the said parish church of St. Clement Danes, in contempt of us and our jurisdiction ecclesiastical, and liaA^e decreed the same to be ])ublished Avith the cause thereof on Sunday next in the time of divine service, in the said church of St. Clement Danes, (r) 5 L. R., Q. B. 573. (<) 1 Consist. 383. (s) 13 Co. 70; Com. Dig. tit. (m) 1 Com. 394. Eglise; Fnj and Greata v. Trea- {x) 2 Add. 133, 134. sure, 2 Moo. P. C, N. S. 539 ; {y) Gibs. Cod. \^. 1479. Ajip. Gnnville v. Utting, 9 Jur. 1081. s. v. F. VOL. II. 6 D 186G FABniCS AND OFFICERS OF FABRICS OF THE CHURCH. And i-equircs the minister to pnlilish it on the next 8un- iliiy or holyday. Hughes' opinion. Pridcaux' opinion. Liability of ch arch wardens as to fees of visitation. by ordinary authority : These are therefore to will and require you jointly and severally, upon the next Sunday or Festival day after the receipt of these presents, in the . parish church of St. Clement Danes aforesaid, at such time as divine service shall be there celebrated and as there be most assembly there congregated, to publish and declare openly that the said John Ceely and Christopher Fisher so Avere and are suspended from the exercise of their function or office of churchwarden for the causes aforesaid. In witness we have- set the seal of our said chancellor which Ave use in this behalf, the third day, in the year of our Lord God, after the computation of the Church of England, one thousand five hundred and eighty- eight, and in the twelfth year of our translation. — AVilliam Blackweir'(^). Hughes says, " Although they have so large authority in the parish and church under the ordinaiy, yet are they not esteemed ecclesiastical persons, but are for the most part lay men, and may be removed from their offices or places by the ordinary upon just cause of complaint made unto him, or else by the parishioners themselves ; and there- fore if a parish do prescribe to haA^e the election of their churcliAvardens, and that the churcliAvardens elected by them haAC used time out of mind to continue churcli- Avardens for two years together Avith the assent of the parishioners, yet may the parishioners themselves Avithiu the tAvo years remove such churcliAvardens and appoint others in their places ; otherAvise they might within the two years Avaste all the church goods, for Avhich the parishioners could have no remedy against them" (a). And the learned Prideaux says, " if their improvidence and negligence be such as to Avaste the church goods in their custody or otherAA'ise much damnif)' the parish, they may on proof hereof hy the uutlwrity of the ordinary at any time be removed and others chosen in their stead" (h). The liability of churcliAvardens to pay the fee of the registrar to an archdeacon is not personal, but is contin- gent upon their possessing funds out of Avhich the fees may be legally paid. Therefore, Avliere churcliAvardens had no funds in their hands for the repairs of the church, or for any other expense incident to their office, except by A'olun- (2) In the edition of Gibson's Codex (Oxford, 1761), it is printed " one thousand six hundred and eighty-eight," but this is clearly a misprint for Jive hundred. (a) The Parson's Law, p. llf). (h) Prideaux, Directions to Churchwardens, p. 30; citing 8 Ed. 4, 6; Finch, 1. 2, c. 17; 13 Coke, 70 f. See also Lamb's Office of Churchwardens, s. 3. CnURCIRVARDENS. 1807 tary subscnptions, and were without tlie means of obtaining funds: — It was holdeu that they were not liable to pay the fee of the registrar due upon a visitation of the arch- deacon (c) But with resp'ect to payment of parochial rates and assess- ^ ments by churchwardens, the law seems to be different. Under 9 Geo. 4, c. Ixiv. (local), sect. 33, for more effec- Liability as to i tually liffhting;, pavino;, &c. certain parts of Westminster, pai^ochial by which act the commissioners are empowered to make rates and assessments in respect of any cathedral, chm-ch, chapel, &c., according to the number of square yards of pavement or ground belonging to such cathedral or church, &c., and to determine the same, " and the rates and assess- " ments to be levied or assessed upon or in respect of any " other church, or any chapel, place of worship, hospital, " school, or other public building, wall, or void space of " ground, shall be paid Z>y the churchwardens, chapel- " wardens, trustees, or owners, or proprietors thereof " respectively," the churchwardens are personalis/ liable to the commissioners for the rates, and the want of parochial funds does not exempt them from that liability (d). And this case was followed in a question raised on the construction of a similar act, in the case of a new church under 6 & 7 Vict. c. 37 (e). Sect. 10. — Perambulation of Parishes. Before leaving the subject of chiurch wardens, it is proper to mention the custom and law relating to what is called the perambulation of parishes. The settling the bounds of parishes depends upon ancient Boundaries of and immemorial custom. For they have not been limited parishes. by any act of parliament, nor set forth by special commis- sioners ; but have been established, as the circumstances of times and places and persons did happen to make them, greater or lesser (/). In some places, parishes seem to interfere, Avhen some place in the middle of another parish belongs to one that is distant ; but that has generally happened by an unity of possession, when the lord of a manor was at the charge to erect a new church, and to make a distinct parish of his (c) Veley v. Pertwee^ 5 L. R., (d) Hojjldnson v. Puncher, 3 Q. B. 573 (1870). Vkh supra, Ex. 95 (1848). p. 1355. (f) Mills V. Bydrr, 10 Ex. 07. (/) 1 Still. 243. G I) 2 " 18G8 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. OAvn demesnes, some of uliich lav in tlie compass of another parish {(/). But now care is taken (or ought to be) by annual per- ambulations to preserve those bounds of parishes, Avhich have l)een long settled by custom (/i). reranibiilaiion By a constitution of Archbishop Winchelsey, the pa- of the bounda- righioners shall find at their own charge banners for the ries. ,. - ., rogations \i). And upon the account of perambulations being per- formed in rogation week, the rogation days were anciently called (jange-days; from the Saxon //on ox gang en, to go. In Goodday v. Michell {k), in 37 & 38 Eliz, trespass for breaking his close, and for breaking down two gates, and three perches of hedge. The defendant justifies; for that the said close was in the parish of Rudham, and that all the parishioners there for time immemorial had used to go over the said close upon their perambulation in rogation Aveek ; and because the plaintiff stopped the tAvo gates and obstructed three perches of hedge in the said Avay, the defendant, being one of the parishioners, broke them down. And by the court : It is not to be doubted but that pa- rishioners may well jvistify the going over any man's land in the perambulation, according to their usage, and abate all nuisances in their way. In the perambulation of a parish, no refreshment can be claimed by the parishioners, as due of right from any house or lands in virtue of custom. The making good such a right on that foot, has been twice attempted in the spiritual courts ; but in both cases prohibitions were granted, and the custom declared to be against law and reason (/). These perambulations (though of great use in order to preserve the bounds of parishes) were accompanied Anth abuses; nevertheless ^K^ram^MZaf/ons were retained in the injunctions of Queen Elizabeth ; Avherein it Avas required, that for the retaining of the perambulation of the circuits of parishes, the people should once in the year, at the time accustomed, Avith the curate and the substantial men of the parish, walk about the pai-ishes, as they Avere accustomed, and at their return to the chvu-ch make their common prayers. And the curate, in their said common perambu- lations, was at certain convenient places to admonish the people to give thanks to God (in the beholding of his benefits), and for the increase and abundance of his fruits (g) 1 Still. 244. (k) Cro. Eliz. 441. ■ (/i) Ibid. (/) Gibs. 213; WiUy \. Har- (0 Lind. 252. bert, 3 Keb. 609. CHURCHWARDENS. 1869 upon the face of the earth; Avith the saying of the 103rd Psalm. At which time also the said minister was required to inculcate these or such like sentences. Cursed be he which translateth the bounds and dolles of his neicjltbour ; or such other order of prayers as should be lawhiUy ap- pointed (7/2). Lord Denman, in his judgment in Taylor v. Devey (?i), said that the right to enter private houses, and to remove all obstructions to such entrance, for the purpose of per- ambulating parochial boundaries, had been long confirmed bj high judicial sanction. But a custom for the parishioners on perambulation of the parish boundaries to go through a house which is not on the boundary line, is bad (o). The bounds of parishes, though coming in question in Boundaries of a spiritual matter, shall be tried in the temporal court, panshes, where This is a maxim, in which all the books of common law are unanimous ; although our provincial constitutions do mention the bounds of parishes, amongst the matters which merely belong to the ecclesiastical court, and cannot belong to any other ( p). The bounds of a parish may be tried in an action at law ; but a biU will not lie for an issue or commission to ascertain boundaries between two parishes : except pex'haps the parishioners have a common right, as where all the tenants of a manor claim a right of common by custom, in which case the right of aU is tried by trying the right of one ; or where all parties con- cerned are before the court (^); or where a commission was prayed, in the Court of Exchequer, to ascertain the bounds of a parish, upon a presumption that all the lands within it woidd be titheable to the parson, but denied ; and where it is said, that the first-mentioned decision Avas upon a bill brought by the parish of St. Luke, to avoid coni'usion in making the rates, a number of houses having been built on Avaste land, and it being doubtful to which parish the different parts of the waste belonged. In 14 Car. 1, when a prohibition was prayed to the spiritual court, for proceeding to determine a case of tithes, the right to which depended on the lands lying in this or that vill ; it Avas denied by the whole court of King's Bench, who declared, that the bounds of vills are (m) Gibs. 213. (q) St. Luke, Old Street, v. St. (n) 7 Ad. & Ell. 412; 2 Nev. Leonard, Shoreditch, Athjns v. & Per. 472. Hatton, 1 Anstr. 395; 1 Bro. C. (0) Ibid. C. 40. ip) Gibs. 212. 1870 FABRICS AND OFFICERS OF FABRICS OF THE CHUECH. Bonndaiios, triable in the ecclesiastical court (r). But this was Le- wheic to be twecn two spiritual persons, the rector and vicar (s). And in Ives v. JVritjht, in 15 Car. 1 {t), it was said if the bounds of a village in a parish {u) come in question in the ecclesiastical court, in a suit between the parson impro- priate and the vicar of the same parish, as if the vicar claim all the tithes within the village of D. witliin the parish, and the parson all the tithes in the residue of the parish, and the question between them is, whether certain lands, whereof the vicar claims the tithe, be within the village of D. or not ; yet inasmuch as it is between spiritual persons, viz. between the parson and vicar, although the parson be a layman, and the parsonage appropriate a lay fee, yet it shall be tried in the ecclesiastical court. And in this case the prohibition Avas denied. (r) Gibs. 213. Atkins v. Hatton, 2 Anstr. 386; (.s) 2 Rolle's Abr. 312. Wake v. Comjers, 1 Eden, 331; (i) Ibid. Miller v. Warmington, 1 Jac. & (m) See Siderfin, 89, Buller v. AValk. 484; Carhernj v. Mansell, Yateman, 1 Keble, 369, for a dis- Vern. & Scriv. R. 112; Woolastoa tinction between the bounds of v. Wright, 3 Anst. 801, as to vills and of parishes. See also commissioners for ascertaining Sjieer v. Crawler, 2 Meriv. 410; boundaries. ( 1871 ) J CHAPTER V. VESTRIES. Sect. 1. — What mid where to be holden. 2. — Ads regulating. 3. — Mode of Procedure. 4. — Officers of. 5. — Select Vestries. Sect. 1. — WJiat and xvliere to be holden. A VESTRY, properly speaking, is the assembly of the Avhole Definition of. parish met together in some convenient place, for the dis- patch of the affairs and business of the parish ; and this meeting being commonly holden in the vestry adjoining to, or belonging to the church, it thence takes the name of vestry, as the place itself does, from the priest's vestments, "svhich were usually deposited and kept there (a). A town hall has been holden not be an improper place Place of. to take the poll, by reason of its being private property ; where no person had been prevented from voting on that account (Z»). The ecclesiastical court has jurisdiction ratione loci Ecclesiastical over the proceedings of a vestry meeting holden in a parish jurisdiction. church (c). In 1850 the 13 & 14 Vict. c. 57, was passed, which was 13 & 14 Vict. entitled " An Act to prevent the holding of Vestry or ^- ^'• other Meetings in Churches, and for regulating the Ap- pointment of Vestry Clerks." The act recited, " Whereas the holding of vestry or other parochial meetings in the parish church or chapel, or in the vestry room attached to such church or chapel, is productive of scandal to religion and other great inconveniences ;" and for remedy thereof enacted as follows : " It shall be lawful for the commis- Poor law com- sloners for administering the laws for relief of the poor missioners ^ ^ upon applica- (a) Par. L. c. 17. A. 241; see post, s. 29 of 1 & 2 (6) Bal-cr and Dovming v. Will. 4, c. 60, for the place of Wood, 1 Curteis, 527, and cases meeting for parishioners adopt- there cited. ing tliat act. (c) Wilson V. M'Math, 3 B. & 1872 FABRICS AND OmCERS OF FABniCS f)F TITE CnURCII. tion of church- warilens, &c. of any parish where popula- tion exei'ctls 2,0(H), niay makc an order to pnt this act ia force. On expiration of twelve months from the publishing of any such order certain meetings pro- hibited from being held in churches and chapels. Power to pro- vide other places of meeting. Purchase of lands. in England, at any time f)r tinier after the jias.'^ing of this aet, upon application in ^vriting of the churchwardens, or, ■where there are no chinvhwardens, of the overseers of any parish in England the population whereof exceeds two thousand jiersons according to the then last preceding census, such application being made pursuant to a resolu- tion of the vestry of such ])arish, to make an order under their seal of office that this act or any part thereof shall be ap})lied to and be put in force ANnthin such parish ; and a copy of such order shall be published in such newspa]ier or Gazette, or both, as the said commissioners may du*ect, and shall be deposited with the cluu'chwardens or over- seers (where there are no churchwardens) of any such parish." Sect. 2. " From and after the expiration of twelve calendar months from the making and publishing of any such order no meeting of the inhabitants of the parish for the purpose of holding a vestry, or for any other purpose than that of di^nne worship, or some ecclesiastical or cha- ritable object, or some other purpose approved by the bishop of the diocese, shall be holden in any parish church or chapel, or other consecrated church or chapel, nor in the chancel thereof, nor, except in case of urgency, and with the prcAaous approval of the said commissioners, in the vestry room attached to such church or chapel, in any parish or place named in such order, any public or private act of parliament to the contrary notwithstanding." Sect. .3. " Where any vestry or other meeting, by Aartue of any statute, law, or custom, has heretofore been holden in the church or chapel of any parish or place named in any such order as aforesaid, or in the vestry room of such church or chapel, any such vestry or other meeting shall from and after the making and publishing of such order be holden in such other room or place within the ]iarish or place as shall be provided for the holding thereof in pur- suance of the provisions of this act, and all acts done in such other room or place as aforesaid shall be as good, valid, and effectual in the law, to all intents and purposes whatsoever, as if such vestry meeting had been held in the vestry room of such church or chapel or in the body of such church or chapel as aforesaid." Sect-s. 4 and 5 relate to the purchase of lands for vestry rooms, and to the hiring of rooms, &c., and to the mode of borrowing money for such purposes. VESTRIES. 1873 Sect. 2. — Acts regulating Vestries. The statutes by which parish vestries are regulated are 58 Geo. 3, c. 69, and 59 Geo. 3, c. 85 {d ). The first of these acts is generally called Mr. Sturges 58 Geo. 3, Bourne's Act, from the name of its author ; it enacts as ^- ^^• follows : — Sect. 1. " No vestry or meeting of the inhabitants in Three days' vestry of or for any parish shall be holden until public notice to be notice shall have been given of such vestry, and of the ^H^^^ \^y miiji- place and hour of holding the same, and the special purpose cation in thereof, three days at the least before the day to be ap- church, and pointed for holding such vestry, by the publication of such chin-c'h'Voor. notice in the parish church or chapel on some Sunday during or immediately after divine service (e), and by affixing the same, fairly -wTitten or printed, on the principal door of such church or chapel." Sect. 2. " And for the more orderly conduct of vestries. Chairman of be it further enacted, that in case the rector or ^dcar or '^estne^ ap- perpetual curate shall not be present, the persons so as- ' sembled in pursuance of such notice shall forthwith nomi- nate and appoint by plurality of votes to be ascertained as hereinafter is directed, one of the inhabitants of such parish to be the chairman of and preside in every such vestry ; and in all cases of equality of v6tes upon any question arising therein, the chairman shall (in addition to such to have casting vote or votes as he may by virtue of this act be entitled to "^'°^*^- give in right of his assessment) have the casting vote; and minutes of the proceedings and resolutions of every vestry Minutes to he shall be fairly and distinctly entered in a book (to be pro- entered and vided for that purpose by the churchwardens and overseers ° of the poor), and shall be signed by the chairman, and by such other of the inhabitants present as shall think proper to sign the same." Sect. 3. "In all such vestries eveiy inhabitant present, Manner of who shall, by the last rate wdiich shall have been made for noting in the relief of the poor, have been assessed and charged upon or in respect of any annual rent, profit or value not amounting to fifty pounds, shall have and be entitled to give one vote and no more ; and every inhabitant there present, who shall in such last rate have been assessed or (f/) Tlicre is also 59 Geo. 3, they are themselves subject to c. 1'2, whicli cmj)owers parishes the poor law commissioners. See to establish vestries of a certain 4 & 5 Will. 4, c. 7G, ss. 21, 54. description for the management (e) But for the present law of the poor; and for this purpose as to publication in church, see their authority supersedes that of 1 Vict. c. 45, supra, p. 1031. the ordinary parish officers; but 1874 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Inhabitants coming into a parish since the last rate may vote. Inhabitants re- fusing pay- ment of poor's rate excluded from vestries. *Sic. Parish books and papers preserved. Retaining or injuring parish books, &c. charged upon or in respect of any. annual rent or rents, profit or value, amounting to fifty pounds or up^vards (Avhether in one or in more than one sum or charge), shall haye and be entitled to giye one yote for everj twenty-fiye pounds of annual rent, profit and yalue upon or in respect of -which he shall have been assessed or charged in such last rate, so nevertheless that no inha- bitant shall be entitled to give more than six votes ; and in cases -where two or more of the inhabitants present shall be jointly rated, each of them shall be entitled to vote according to the proportion and amount which shall be borne by him of the joint charge ; and -where one only of the persons jointly rated shall attend, he shall be entitled to vote according to and in respect of the -whole of the joint cha?'ge." Sect. 4. " "When any person shall have become an in- habitant of any parish, or become liable to be rated therein, since the making of the l^ist 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." Sect. 5. " No person who shall have refused or neg- lected to pay any rate for the relief of the poor, Avhich shall be due from and shall have been demanded of him, and* shall be 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"(y). Sect. 6. " As well the books hereby directed to be pro- -rided and kept for the entry of the proceedings of vestries, as all former 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 officers, and all certificates, orders of courts and of justices, and other parish books, documents, writings and public papers of every parish, except the registry of marriages, baptisms and burials, shall be kept by such person and pei'sons, and depo.sited in such place and manner, as the inhabitants in vestry assembled shall direct ; and if any person in whose hands or custody any such book, rate, assessment, account, voucher, certificate, order, document, writing, or paper shall be, shall Avilfully or negligently de- stroy, obliterate or injure the same, or suffer the same to (/) Not ho-wever, by 16 & 17 three calendar months of the Vict. c. 65, rates -vN-hicb have vestry meeting, been made or become due -within VESTRIES. 1875 be destroyed, obliterated or injured, or shall, after reason- able notice and demand, refuse or neglect to deliver the same to such person or persons, or to deposit the same in such place, as shall bj the order of any such vestry be directed, every person so offending, and being lawfully con^dcted thereof on his own confession, or on the oath of one or more credible witness or witnesses, by and before two of his majesty's justices of the peace, upon complaint thereof to them made, shall for every such offence forfeit and pay such sum, not exceeding fifty pounds, nor less than forty shillings, as shall by such justices be adjudged and determined ; and the same shall be recovered and leA'ied by waiTant of such justices in such manner and by such ways and means as poor's rates in arrear are by law to be recovered and levied, and shall be paid to the over- seers of the poor of the parish against which the offence shall be committed, or to some of them, and be applied for and towards the relief of the poor thereof: Provided never- theless, that every person Avho shall unlawfully retain in his custody, or shall refuse to deliver to any person or persons authorized to receive the same, or who shall obli- terate, destroy or injure, or suffer to be obliterated, de- stroyed or injured, any book, rate, assessment, account, voucher, certificate, order, document, writing or paper be- longing to any parish, or to the churchwardens, overseers of the poor, or surveyors of the highways thereof, may in every such case be proceeded against in any of his majesty's courts, civilly or criminally, in like manner as if this act had not been made." Sect, 7. " All provisions, authorities and directions in this act contained in relation to parishes, shall extend, and be construed to extend, to all townships, vills and places having separate overseers of the poor and main- taining their poor separately, and that all the directions and regulations herein contained in regard to vestries shall extend and be applied to all meetings which may by law be holden of the inhabitants of any parish, township, vill or place, for any of the purposes in this act expressed ; and that the notices by this act required to be given of every vestry may, in places in which there is or shall be no parish church or chapel, or where there shall not be divine service in such church or chapel, be given and pub- lished in such manner as notices of the like nature shall have been there usually given and published, or as shall be most effectual for communicating the same to the in- habitants of every such parish, township, vill, or place respectively." Peuiilty. And suhject to other pro- ceedings. Provisions in relations to parishes ex- tended to townships, &c. Manner of giving notices of vestries and meetings in special cases. 1876 FABRICS AND OFFICERS OF FABRICS OF THE CflURCH. Time for hold- Sect. 8. " Nothing In this act contained sliall extend or ing vestries be construcd to extend to alter the time of holding any rcctcd not ^' vestrj, parish or town meeting Avhich is by the authority of altered. any act required to be holden on any certain day, or within Proviso for any certain time in such act jirescribed and directed ; nor special vcs- shall anything in this act contained extend to take away, ' lessen, j)rejudice or affect the powers of any vestry or meeting holden in any parish, township or place by virtue of any special act or acts, of any ancient and special usage or custom, or to change or affect the right or manner of voting in any vestry or meeting so holden" (f/). and for Lon- Sects. 9 and 10. Nothing in this act contained shall don and South- extend to any parish within the city of London, or the wark. borough of Southwark. 59 Geo. 3, And by 59 Geo. 3, c. 85, intituled " An Act to amend ^- ^^- and correct an Act of the last Session of Parliament for the Regulation of Parish Vestries in England," and re- citing the previous act, it was enacted as follows : — Persons rated Sect. 1. " Any person Avho shall be assessed and rated l] *'^^P°°'^' for the relief of the poor in respect of any annual rent, parishioners, pi'ofit or value arising from any lands, tenements or here- may vote in ditaments situate in any parish, in which any vestry shall vestry accord- |jg holden under the said recited act, although such person v" hie of the shall not reside in or be an inhabitant of such parish, shall premises rated, and may laAvfully be present at such vestry, and such person shall have and be entitled to give such and so many vote or votes at such vestry, in respect of the amount of such rent, profit or value, as by the said act any inhabitant of such parish present at such vestry might or ought to have and be entitled to give in respect of such amount, and to all intents and purposes, as if such person Avere an inhabitant of such parish, any thing in the said recited act to the contrary in anywise notwithstanding." Clerk or agent Sect. 2. " In all cases Avhere any corporation or body of corporation, politic or Corporate or company shall be charged to the in vestry ac- ^'^^^ ^o^' the relief of the poor of such parish, either in the cording to the name of such corporation or of any officer of the said cor- valueof the poration, it shall and may be lawful for the clerk, secre- tary, steward or other agent duly authorized for that purpose of such corporation or body politic or corporate or company, to be present at any vestry to be holden in the said parish under the said recited act ; and such clerk, secretary, steward or agent shall be entitled to give such (7) Sec Cariiphell v. Mound, 1 act of Paddington (5 Geo. 4, Nev. & Per. .558, in wliicli it was c. cxxvi.) did not exempt it from holden that the local parochial this act. VESTRIES. 1877 and so many vote or votes at sucli vestiy, in respect of the amount of the rent, profit or value of such lands, tene- ments or hereditaments, as by the said act any inhabitant assessed to such rate present at such vestry might or ought to have and be entitled to in respect of such amount ; any thing in the said recited act to the contrary in anywise notwithstanding. " Sect. 3. " ' And whereas by the said act it was intended [58 Geo. 3, to be enacted that no person should be present at or vote ^- ^^' ^- ^O at any vestry who should have refused to pay any assessment Non-payment that had become due and had been demanded of such qualify from person, but the word " and" was by mistake so inserted in being present the said act, as to make the same in that respect ambi- °^ voting in guous :' now, to rectify such mistake, be it further enacted, that no person who shall have refused or neglected to pay any rate for the relief of the poor which shall be due from and shall have been demanded of him, shall be entitled to vote or to be present in any vestry of the parish for which such rate shall have been made, nntil he shall have paid the same (A) ; nor shall any such clerk, secretary, steward or agent be entitled to be present or to vote, nor shall be present or vote, at any vestry in such parish, unless all rates for the relief of the poor which shall have been assessed and charged upon or in respect of the annual rent, profit or value, in right of which any such clerk, secretary, steward or agent shall claim to be present and vote, which shall be due, and which shall have been de- manded at any time before the meeting of such vestry, shall have been paid and satisfied." With respect to the application of the 3rd section of Cases to whiLh 58 Geo. 3, c. 69, to a parish where the poor rates had, ^^^*- ^ °^ according to ancient custom, been always assessed without jg ^Qt appli- ' regard to the annual value of property in the parish, but cable. according to the supposed ability of the party assessed, it was holden, that persons so rated were not entitled to the benefit conferred by this section as to the plurality of votes, although assessed in respect of property exceeding the annual value of 50/. (i). Outdwellers, occupying land in the parish, have a vote Who have in the vestry as well as the inhabitants (A). ^'°^^^- Anciently, at the common law, every parishioner who who shall paid to the church rates, or scot and lot, and no other pieside. (//) But see IG & 17 Vict. Moore, 187; 3 B. & B. 28G; Rex c. 65, mjjra, p. 1874, note. v. ClerkemveU, 3 Nev. & M. 411; (0 Ntcjhthujah v. Marshall, 3 1 Arl. & Ell. 317. D. & R. 549; 2 B. & C. 313; et (A) Johns. 19. vide Att.-Gen. v. Wilkinson, 7 1878 FABRICS AXD OFFICERS OF FABRICS OF THE CHURCH. Who sliall pre- side. Hinderinif persons from meetinjr. Majoritj' con- dnsivc. How votes are to be taken. person, had a riglit to come to these meetings ; but this must not be understood of the minister, who has a special duty inciunbent on him in this matter, and must be re- sponsible to tlie bishop for his care licrcin ; and therefore in every parish meeting, lie ])resides for the regulating and directing this affair ; and tliis equally holds whether he be rector or vicar (?n). The right of the minister to preside at a meeting of his parishioners seems to have been unquestioned law since the learned decision of Sir J. Nicholl in Wilson \. Mac- viath{n); but the minister is not an essential part of the vestry {o). In Philhjhrown v. Rijland(^p), in 11 Geo. 1, the ])lain- tiff brought a special action upon the case for excluding him from the vestry room, and upon demurrer the court made no difficidty but that such an action was maintain- able ; however, in this case, they gave judgment for the defendant, it not being averred that the parish had any projierty in this room, or right to meet there ; so that for aught a^^pears, it might be the defendant's own house, and then he might let in >vhom he pleased, and refuse the rest. And when they are met, the major part present will bind the whole parish ((jr). " There is no doubt of the law" (says Lord Denman), " that the rate payers in the vcstiy are to elect, and that if a poll be demanded, it should be kept open for all quali- fied persons" ( r). It should be here remarked, that where a statute directs an election by poll, the poll may be taken from the holding up of the electors' hands. But if the tellers appointed to take the numbers differ, and a poll is demanded and refused, the court will grant a mandamus to enter an adjournment of the election meeting, and to pro- ceed to complete the election (5). A person not present at the show of hands may vote at a poll subsequently taken {t) ; nor is it any impeachment of the validity of the (ill) Par. L. c. 17. (n) 3 Pliill. 67; 3 B. & AM. 244, note {h)\ Baker and Doiming V. Wood, 1 Curteis, 522; see filso the recent case of R. v. D'Oyli/, 4 P. & D. 58. (0) Mail-ley v. Barbet, 2 Esp. 687, Kenvon. (j)) 1 "Str. 624; 2 L. Raym. 1388; Yin. Abr. Vestry (A 3); see also Dobson v. Fusaeij, 5 ^I. & P. 112; 7 Bing. .305. {q) AVats. c. 39; Vin. Abr. Vestry (A 1); Clutton v. Cherry, 2 Pliill. 380. (/•) Itcg. V. St. Mary, Lambeth, 3 Nev. & P. 416; Veley v. Burder, 12 A. & E. 265. (s) Rex V. Vestrymen and Vestry Clerks of the Parish of St. Luke's, Middlesex, 2 Nev. & M. 464. (t) Campbell v. Maund, 5 Ad. & El. 865; 1 N. &P. 658. VESTRIES. 1879 proceedings at au election that the chairman ordered a poll without first taking a show of hands ; of course under 58 Geo. 3, c. 69, a show of hands would be no criterion of the number of votes (u). But where a vestry had by show of hands passed a resolution directing an illegal application of some charitable funds, and a poll had been demanded of the persons presiding at the vestry and not granted, the court refused a rule for a mandamus to compel such persons to grant a poll, observing that it ought not to grant a mandamus for the purpose of putting- it to the vote whether a breach of trust should be com- mitted (.r). Sect, 3. — Mode of Procedure. In Stougliton v. Reynolds (y), in 9 Geo. 2, it was ad- stov^hton v judged, that the right of adjourning the vestry is not in the HfynoUh. minister or any other person as chairman, nor in the churchwardens, but in the whole assembly, where all are upon an equal footing, and the same must be decided (as other matters there) by a majority of votes. The whole law upon this subject is exhausted in the judgment of Sir Herbert Jenner in the Court of Arches, during the course of which the doctrine laid down in Stoughton v. Reynolds was fully discussed, in the case of Baker and Downing v. Woodi^z). The notice was as Baiter and follows : " Notice is hereby given, that a meeting of the J^ojcning v. inhabitants in vestry of, and for this parish, Avill be holden "" ' in the vestry of St. Thomas's Church, at 1 1 o'clock in the forenoon of Thursday, the 25th of September instant, for the purpose of expunging an irregular and improper entry made in the vestry order book at a meeting held on the 7th day of August last, and for the purpose of granting the churchwardens a levy of tenpence in the pound. If a poll be demanded, the meeting will be immediately ad- journed to the town hall, and the poll will commence forthwith, and be kept open till 4 o'clock in the afternoon of the said 25th of September ; and the polling will be continued at the town hall aforesaid from the hours of 10 in the forenoon of Friday, the 26th of September, to the hour of 4 in the afternoon of the same day ; and again at (m) Reg. V. Ructor of Binning- St. Saviour s^Southioark, 1 Ad.& ham, 7 Ad. & Ell. 254; Req.'x. Ell. 381; 3 Nev. & M. 879. St. Mary, Lambeth, 8 Ad. & Ell. (y) 2 Str. 1045. 356. (z) 1 Curteis, 507. (a;) Rex v. Churchwardens of 1880 FAHURS AND Ol- riCEUS OF FAUUICS OF THE CIUKCH. Wood. Bnher and the ^ViXwd ])lace from the hour of 10 in tlie forenoon till I)on-nU,g\. the hour of 12 at noon, on Saturday, the 27th day of September, m hen the poll will finally close." The judge said : — " The validity of the rate is not questioned on the usual grounds of objection to church rates, — it is not alleged that the rate recjuired Avas not necessary ; nor that there is any excess in the amount of the rate, although the sum to be collected Avas considerable, being u])wards of nine liundred pounds ; it is not stated that there is any inequa- lity of assessment, nor that the purposes for "which the rate was made were those to which a church rate cannot pi'operly be applied, and no o])jection is taken as to a want of due sjiecification of the purpose for which the meeting Avas called : indeed, it AA-as contended in the argu- ment that the notice Avas too specific, that the chui-ch- AA'ardens had no right to fix tenpence in the pound as the amount of the rate ; that all they had to do Avas to call a meeting, and to leaA^e the parishioners to determine the amount of the rate. But this is an objection Avhich can- not be insisted on, for it Avas nothing more than an inti- mation of the church Avard ens of the amount of rate which AA'ould be I'equired, leaA'ing it to the A'estry to determine Avhether the amount should be reduced to sevenpence or any smaller sum. So Avith regard to the objection as to that part of the notice for expunging the entry irregularly and im]H-operly made in the Aestry book ; if the impression on their minds Avas that the proceeding Avas irregular and improper, it might be necessary that notice should be giA'en in the church ; and considering the circumstances of the case, — the room being filled, and there being indi- ■\-iduals in the churchyard Avho could not get access to the room to express their sentiments bj a show of hands, — my opinion is that they justified the chairman in the course he took on that occasion. " HaA-ing stated that the objections to the validity of this rate are not the usual objections in questions of this description, that no objection has been made on the grounds I haA^e stated, the court may assume that the rate Avas proper in itself, in its amount, in the manner in Avhich it Avas proposed, and as to the persons from Avhom it Avas to be collected. Under these circumstances, undoubtedly the rate comes before the court under circumstances pecu- liarly favourable to it, and it Avould be the Avish of the court, not less than its duty, to support it, unless the party opposing it can shoAv such grounds of opposition as should render it impossible for the court to do so : and it is ad- VESTRIES. 1881 ** mitted that the party opposing the rate stands on his strict right of law, and that he is not entitled to any favourable consideration. " What then are the grounds on -which the rate is im- pugned ? The grounds ^\'hicli I collect from the argu- ment which has been addressed to the court are these : first, that the chairman adjourned the poll without any legal authority; secondly, that the place to which it was ad- journed was private property, to which the parishioners and inhabitants of the town of Dudley had no legal right of access, and Avas, therefore, an improper place ; and, thirdly, that the time fixed for the duration of the poll was insufficient with reference to the number of persons en- titled to vote ; and on all or some of these grounds, it is contended that the rate is invalid. " Before the case was ripe for determination before the court, other objections had been urged, both in plea and in argument, in this court. It was stated as a ground of objection to the rate, that only those persons Avere entitled to vote who Avere present in the vestry room Avhen the sliOAv of hands AA^as called for ; that the A'oting shoidd not be according to the value of the property, but according to numbers ; these and other minor objections, the Avhole of Avhich Avere abandoned subsequently (being disposed of during the progress of the cause, by the decision in Maund against Campbell (n), referred to in the argu- ment), it is not necessary for the court particularly to notice. " The first objection, then, is to the adjournment of the poll, Avliich, it is admitted, took place Avithout the opinion of the vestry having been taken upon it ; and the case of Stougliton \. Reynolds ( h\ reported in Fortescue and Strange's Keports, and in cases temp. Lord Hardwicke, has been relied on, as showing directly that the poAver of adjoiu-ning a A'cstry meeting is not in the chairman of the meeting, but in the whole body of the vestry ; and it a])poars from Avhat Avas said by Lord Hardwicke and the other judges, that the Court of King's Bench Avas of opinion imder the circumstances of the case, that the chairman had no such right as he had assumed on that occa- sion. But in order to see the full effect of that decision, tlic circumstances of that case must be considered ; and it Avill appear, that they are as far removed from the circum- stances of the present case as can be avcU conceived. {(i) Camphdl \ . Maund, 1 Nov. {h) Fortescue, 1G8; 2 Strange, & Per. 564. 1045; Cases temp. Hard. 274. r. VOL. II. G E 1882 FABRICS AXD OFFICERS OF FABRICS OF THE CHURCH. Wo(»l. Jidher and " I will refer to the case as re[)ortcd by Fortescue, bc- jjoirinnt/ v. causc it lias been stated that Lord Ilardwicke's opinion was more strongly expressed in that Report than in Strange, and in the Report of Cases in the time of Lord I lard wi eke. " The declaration set forth that the plaintiff, being an inhabitant of the jiarish of All Soids, Northampton, was chosen churchwarden, and offered himself to Dr. Reynolds, chancellor of the diocese, to be admitted to the office, and the chancellor refiised to admit him. Mr. Stoughton thereujion moved for a mandamus to the chancellor to admit him to the office, and the chancellor retm-ned to the mandamus, that he considered the plaintiff was not chosen churchwarden, but another person. The action was brought for a false return, and a special verdict was found to this effect : That in the parish of All Souls, the vicar has immemorially had the nomination of one of the churchwardens ; that the time appointed for choosing churchwardens was a day in Easter week, 1734, when the vicar nominated Mr. Lowlk, and the parishioners the plaintiff; that in the Easter week following, in the year 1735, the vicar chose the same person, and upon a dispute arising, whether the parishioners could choose the plaintiff Stoughton a second time, the vicar adjourned the assembly till the next morning, but that part of the parish who w^ere for the plaintiff staid behind and elected him ; and the other party assembling next day, elected another person, and the question was, Avhether the vicar, Avho presided, was at liberty, ex mero motu, to adjourn the election of churchwardens without any previous notice or the consent of the meeting, and, after the persons present at the meet- ing had elected a churchwarden, to proceed without notice to elect another churchwarden the next morning. " ]\lost \indoubtedly, in such circumstances, there is no authority for the power assumed and exercised by the chairman in that case ; it was calculated to put an end to the privilege possessed by the parishioners, of electing a person for churchwarden, and to put a stop to all discus- sion at a meeting called for the purpose of election. " In deciding the question in that case. Lord Ilardwicke delivered an opinion very strongly ; that, even sujiposing the vicar had a power of presiding (that point has been settled since) (c), it did not follow that he had a power of adjourning the meeting, and that the adjournment Avas void. And the other judges, Mr. Justice Page and Mr. Justice (c) Wilson V. M'Math, 3 riiill. G7; 3 B. & Aid. 244, note (b). VESTRIES. 1883 " Lee, delivered tlie same opinion as Lord Hardwicke. Mr. Justice Lee said : ' The parson has a right of sitting from his freehold in the church ; but I do not think that can any ways give him a greater right or authority than any of the other members of the assembly ; and it is a rule in law, that the major part in all elections have the right of determining for themselves.' So that the decision in that case comes to this, that the chairman or vicar has no right, under the circumstances which have been stated, ex inero motu, to adjourn a vestry meeting whilst the busi- ness of the vestry meeting is in progress. " Rex V. The Commissary 'of the Bishop of Win- chester (d) is an authority for showing (for that is the effect of the case) that Avhere there is no regular presiding officer, the regulation of the meeting devolves on the whole body, and that in the absence of the vicar, the church- warden is not entitled to preside. To the extent to which this case goes, it supports the authority of the case of Stoughton and Reynolds ; that the chairman, as such, has not the power to adjourn the vestry at any time and under any circumstances he may think proper. Another effect of this case the court Avill refer to by and by ; but one effect of the case is to show, that where there is no regular presiding officer, the adjournment devolves on the meet- ing, and not on the chairman. " Considering the nature of these decisions, and the circumstances of the cases, the question is whether they are applicable to the present, and Avhether there are not many material distinctions between these cases and that which the court has under its consideration. " Without relying on my own judgment in this par- ticular, it does seem to me that the question has already been decided by the Court of King's Bench, in a case Avhicli has been cited in the argument as the Manchester case (e), which seems to me to run on all fours with the present case. " In the case now before the court, the notice for call- ing the vestry in the parish of Dudley, on the 25tli of September, was (I believe it has been stated in the argu- ment) copied from the notice in that case, and considering the decision in that case as a precedent for their direction, the churcliAvardens and vicar of Dudley governed them- selves according to that case, and followed its provisions as exactly as the nature of the circumstances would permit ; (fZ) 7 East, 573. Chester, 1 Adol. & Ell. 342; 3 (e) Rex V. The, Archdeacon of Nev. & M. 413. 6 E 2 1884 FABRICS AND OFFICERS OF FABUICS OF THE CHURCH. Jiakcr and " ^''tl? i" ^11 the subsequent proceedings, conformed with Ijowning y. -Nvhat had bccn there decided ; and the only distinction Mood. J gj^(j between that case and the present is, that the former was for the election of a churchwarden, whereas the present was for the makino- of a church rate. But this does not make any real difference between the two cases ; the principle which it is proper to follow in respect to making a church rate will be found to be the same as those Avhich apply to the election of cluu'chAvardens ; and all the conditions in respect to the conduct of the poll, and the course of the ]iroceedings in an election of a churchwarden, are equally applicable to a poll in the question of a chvu'ch rate. " "What then were the circumstances of that case ? A rule had been obtained, calling on the Archdeacon of Chester to show cavise why a mandamus should not issue, calling iipon him to swear in certain j^ersons as church- wardens of ]\Ianchester, on the grounds that they were duly elected ; that the meeting at Avhicli their election took place was illegally adjourned, and that a poll subsequently taken was not duly taken. " No case can be more clear and direct in its application to the present case than this." The learned judge, after referring at some length to the case, concluded — " I cannot, therefore, on this first point see any distinc- tion between the two cases, and having this, as I consider it, direct authority and precedent on this point, I am of opinion that the adjournment from the vestry room to the town hall, for the purpose of the poll, was a legal adjourn- ment." The question of the requisite time for duration of the poll was also much discussed in the course of his judg- ment. As 785 persons were the greatest number proved to have voted on any occasion, the judge, regretting that a longer period had not been allowed, held that eleven hours was a sufficient time if due diligence had been used for taking the poll, observing : — " These two points being disposed of, the only question is, whether the time allowed for the poll was sufficient ; and I confess this is the only part of the case on which I have felt any real difficulty. It is not very easy to de- termine what time should be allowed so as to give every person entitled to vote an ojiportunity of recording his vote ; and all that can be said is, that where no custom exists, a reasonable time should be given, and which I VESTRIES. 1885 " consider is the result of the Wincliestcr case (f), which I have adverted to ah^eady. But it can hardly be said that it was decided that the time allowed in that case was only a reasonable time for polling one hundred and eighty voters. One hundred and eighty persons only Avere entitled to vote, and it cannot be contended that the result of that case is, that the whole of the time was necessary for them to record their votes. The question was not as to the time solely, and it was decided that that was a question of custom. Mr. Justice Le Blanc says : — ' If there had been no custom, there would have been a difficulty in the case ; but if there be a custom to conclude the poll at a certain time, that being a reasonable time, the voters must tender their votes within it : and this is fit to be tried.' And Lord Ellenborough, after stating that the custom was a sufficient foundation for the court to go upon, observes, that if there were no custom, there must be some limit, if the limit Avere assigned by a competent authority, and were in itself rea- sonable : ' Now putting out of question the resolution of the vestry on the first day to determine the election at four o'clock on the evening of the second day, it still appears that for two hundred years past there has been no instance of an election of churchwarden continuing beyond four o'clock on the second day : I see nothing unreason- able in that limit.' There then the time of the d^etermina- tion of the poll was previously fixed at four o'clock of the second day, and it appeared that in no instance had the election continued beyond that period for two hundred years past, and this was held to be a reasonable time, not with reference, I apprehend, to the number of voters, one hundred and eighty ; but altogether, Avith reference to the custom, and a mandcnnus Avas directed to issue in that case. I cannot, therefore, consider that this case de- termines anything more than that Avhere a custom prevails, the custom shall rvde ; but Avhere there is no custom, that a reasonable time should be alloAved for persons to gi\'e their votes." The laAv laid doAvn in this case is confirmed and ex- General power tended by the decision of the Queen's Bench in Reg. v. of the presi- X>' Oyh/ [g). It is there said that the president of the vestry. vestry has authority to regulate the whole of the proceed- ings ; to decide on Avhat they shall be, so as to insure the voters of the pai'ish a reasonable time to vote ; to adjourn the poll, if he thinks fit, and to do all necessary acts on his (/) Rex V. The Commiasary of 573. the Bishop of Winchester, 7 East, {(j) -i Perry & Davison, 58. 188G FABRICS AND OFFICERS OF FA15KICS OF THE CIIURCn. Election. Votes refused. Show of hands. Poll. Ballot. Poll in writing own responsibility, beiiijT amenaLlo for the propriety of Ills conduct to a court of justice. But it has been ruled that the chairman of a vestry meeting holden for the purpose of taking a poll for the election of a chiu'clnvardcn, has no po^ver to close the poll on account of disturbance (/<). AVhere, upon the election of a churchwarden, the chair- man of the vestry meeting had rejected votes Avliich Avere alleged to be admissible, but it did not ajipear that the rejection had caused any diffei'ence in the result, a court of common laAv has refused to grant a mandamus ordering a fresh election, though tlic persons, whose votes had been rejected, were parties to the application (^). In a case as to the election of churchwarden, decided in the court of the Archdeacon of jNliddlesex : after a show of hands a poll Avas demanded, Avhich by mutual agree- ment AA'as commenced immediately. The chairman agreed Avith one of the candidates that the poll should close at seven o'clock, Avhich Avas accordingly done, and thereby some qualified electors Avere prevented from recording their Aotes, and the election Avas holden to be Aoid (J). In the same court it Avas decided that to take the vote by ballot on a poU AA'as illegal {k). But tliis does not apply to vestries under 1 & 2 Will. 4, c. 60(/). In another case, at a A^estiy tAvo candidates Avere nomi- nated for the office of parishioners' churchAA^ardcn. The chairman refused to take a shoAv of hands, but proceeded to take a ])oll in Avriting of all the members of the A'cstry present, AAriting doAvn the number of Azotes to Avhich each AA^as entitled, and then declared one of the candidates elected. On motion a mandamus Avas refused, it being holden that, though the chairman's action AA^as iiTcgular, no one Avas shoAAai to have been excluded from voting by \i{m). Entry of acts made. Sect. 4. — Officers of Vesin/. To prcA'cnt disputes, it may be convenient, that CA^ery A'cstry act be entered in the pari.sh book of accounts ; and that every man's hand consenting to it be set thereto (;2). (7() Jierj. V. Graham, 9 W. R. (/.) Sto7-y v. Cohh, G N. of C. 738. -^PP- xxxiii. (/) Er parte Mawhy, 3 El. & (/) Vide infra, p. 1895. Bl. 718 (1854). (w) Epcj. V, Linunhent of Goole, (/) Wcstcrtnn V. Davidson, 1 4 L. T., N. S. 322. Spiiiks, 385 (1854). (7^ Par. L. 54. ■VESTRIES. 1887' The beadle (in the saxon hydel, from beoclan, to bid) is Beadle, chosen by the vestry; and his business is to attend the vestry, to give notice to the parishioners Avhen and Avhere it is to meet, and to execute its orders as their messenger or servant (o). The vestry clerk is chosen by the vestry ; and he acts Vestry clerk. as register or secretary thereto, but has no vote : and his business is, to attend at all parish meetings, and to draw u]) and copy all orders and other acts of the vestry, and to give out copies thereof when necessary : and therefore he has the custody of all books and papers relating thereto ( p'). But his office is not such for Avhicli mandamus Avill lie, though perhaps the vestry clerk may have that writ to compel those who have the custody of the parish books to deliver them to him \q\ The status of vestry clerks in certain parishes is the 13 & 14 Vict, subject of the concluding provisions (r) of 13 & 14 Vict. '^^ ^'• c. 57, Avhich enact as follows: — Sect. 6. " And whereas in parishes whereof the popula- Charchwar- tion exceeds two thousand persons as aforesaid {s) various ^^}^^: ^'^' duties are by law imposed upon and required to be per- month after formed by the officers of parishes, and much business is publication of transacted at vestry meetings, and the parish officers and °^'^^^' *° ^°".' •^1 •.!• i.11- A ■^'ene a meeting vestries requu'e the assistance ol a vestry clerk m respect f^^ electing; a of such duties and business ; and it is expedient that pro- vestry clerk. vision should be made for regulating the appointment and for the payment of such vestry clerks: be it therefore enacted, that the churchwardens or other persons to whom it belongs to convene meetings of the vestry in any such parish shall, within the space of one calendar month from and after the making and publishing of any order of the commissioners so applied for, if such order extend to the appointment of vestry clerk as aforesaid, and also, in case of any subsequent vacancy in the office of vestry clerk, ivithin one calendar month next after such vacancy, con- vene a meeting of the vestry of any parish named in such order, for the special purpose of electing a vestry clerk, to perform such of the duties hereinafter mentioned as shall be applicable to such parish, in addition to those which are or may be imposed upon vestry clerks by any act or acts of parliament ; and public notice of such vestry, and the ])lace of holding the same, and the s]iecial purpose thereof, shall be given, in the usual manner in which notice of the (o) Tar. L. c. 17. Croydon, 5 T. R. 713. (iO Ihid. c. 18. (r) Vide fnipra, ]>. 1871. (q) Rex v. Churchwardens of Cs) I'u/e Sect. i,6'J<;>ra, p. 1872. 1888 FAnPiics AND orriCF.r.s or fakhk s of the ciirncn. meetings of tlic vcstrv is now f;;ivcMi, nt least seven days before tlie day to be a])])ointed for lioldino; such vestry ; Vestry clerk and at sucli meeting tlie vestry shall ])roceed to elect some clectcil at such fit and comjietcut ])crson to be vestry clerk, and the person bc^rcmmable " ^'^ elected shall not be removable from office except by a except by re- resolution passed at a vestry to be called for that special solution of purpose in the manner hereinbefore mentioned, and with vcstrv and Ti i. r xI • i • • r i • • i. • ii „ conse"ntof poor ^"^ couscnt ol tlic said commissioners lor administering tlic law board, &c. laws for the relief of the jioor in England, or by an order under the seal of the said commissioners." Duties of Sect. 7. " It shall be the duty of such vestry clerk, vestry clerk. indess otherwise directed by the poor law commissioners, To give notice of and attend the meetings of vestry and committees ap]iointed thereat : To summon and attend meetings of the churchwardens and overseers, when required, and to enter the minutes thereof respectively : To keep the account of all charity monies which the churchwardens or overseers are authorized or are accustomed to distribute : To keep the vestry books, and the parish deeds and documents, and the rate books and accounts which are closed, and to give copies of and extracts from the same to any person entitled thereto, such person paying for the same at the rate of four-pence for every seventy-two words or figures, and to permit any person or persons rated to the relief of the poor of the said parish, at all reasonable times, to inspect the same or any of them, on pain of dismissal for neglecting to give such copies or permit such in- spection : To make out, when required by the vestry, the church rate, and procure the same to be signed and com- pleted, and to retain the custody thereof, and where there is no collector of poor rates or assistant overseer, to make out the poor rate, and procin*e the same to l)e allowed, and to make all the subsequent entries in the rate books, and to give the notices thereof required by law : To prepare and issue the necessary process for recover- ing of arrears of such rates respectively before the justices, and jn-ocure the sunnnons to be served, and to attend the justices thereon, and advise the church- wardens and overseers as to the recovery of such arrears : To keep and make out the accounts of the church- wardens, and to present such accounts to the vestry VESTRIES. 1889 or other legal aiitliority, to be passed, and to examine the church rate collectors' accounts and returns of arrears : To assist the overseers in making out their accounts (whenever required by them), and, suljject to the rules and regulations of the commissioners for ad- ministering the laws for the relief of the poor, to examine from time to time the accounts of the as- sistant overseers or collectors of poor rates, and their returns of arrears : To attend the audit of accounts of the overseers, and conduct all corres]3ondence arising therefrom : To assist the churchwardens or overseers in preparing and making out all other parochial assessments and accounts, and in examining the accounts of the col- lectors of such assessments : To ascertain and make out the list of persons liable to serve on juries, and to cause them to be printed and duly published, and returned to the justices : To give the notices for claims to vote for members of parliament, and to make out lists of voters, and get the same printed and published, and duly returned, according to law, and to attend the court for revising them, and to prepare, make out, and publish the bur- gess lists and the lists of constables : To make all returns required of the churchwardens or of the overseers by law or proper authority : To ad\nse the churchwardens and overseers in all the duties of their office ; and also to perform such other duties and services of a like nature as the said com- missioners for administering the laws for the relief of the poor in England, from time to time, at the re- quest of the churchwardens or overseers of any such parish, or otherwise, shall prescribe and direct to be performed by such vestry clerk." Sect. 8. " The amount of salary or other remuneration Salary of to be paid to the vestry clerk, as well as the days and ■vestry clerk to times on which and the persons by whom the same shall ,5oorM\v com- be payable, shall be fixed by the said commissioners, and niissioncrs. altered from time to time as there shall be occasion ; and such salary or remuneration shall be chargeable upon and paid out of the moneys to be raised for the relief of the ])oor of any such parish ; and, Avhere the said commissioners shall deem requisite, such vestry clerk shall give such security and to such persons as the said commissioners shall by their order under seal direct: Provided always, that Avhere, under the provisions of any local act or acts of 1890 rAiiiiics AND orricEus ok iahuk s of the ciii'ncir. Chnrcli war- dens and over- seers not to 1)0 (liscliariicd from i)erform- ance of duty. Interpretation of terms. parliament, any person or ]icr.sons shall be paid for the pcrfonnant'c of any of the duties of vestry clerk, or for assisting in the ])erfbrniaiiee of any of the duties of chureh- wardens or overseers of the poor, notliing herein contained respecting the duties of the vcstiy clerk shall ap])ly to or be deemed to apply to the performance of such duties "while the same are so performed, or while payment shall be made for the performance of them as aforesaid." Sect. 9. " Nothing herein contained shall exempt or discharge, or be construed to exempt or discharge, any churchwarden or overseer of the poor from the perf^-m- ancc of any duty required of him by law, nor oblige him to avail himself of the assistance of any vestry clerk to be appointed as aforesaid in the performance of his duties, unless he shall think fit so to do." By sect. 10, the following words and expressions shall have their several meanings as follows: "jiarish" shall mean every place having separate overseers of the ]ioor and maintaining its own jioor, and also every parish or place having a separate ecclesiastical jurisdiction, and in Avhich a vestry shall have been heretofore constituted and held for parochial as well as ecclesiastical purposes, either separately or jointly with any other parish ; " church- warden" shall mean also chapelwardens or other persons discharging the duties of churchwardens in any jiarish or place as last aforesaid ; " vestry" shall mean the inhabit- ants of the parish lawfully assembled in vestry, or for any of the purposes for which vestries are holden, except in those parishes in Avhicli there is a select vestry elected under 59 Geo. 3, c. 12, and 1 & 2 Will. 4, c. 60, or elected under the provisions of any local act of parliament for the go\'crnment of any parish by vestries, or mider or by virtue of any prescriptive custom or otherwise, in which parishes it shall mean select vestry ; and " lands" shall mean lands tenements, and hereditaments, of Avhatsoever nature or tenure. Sect. 5. — Select Vestries. Origin of. Select vestries seem to have grown from the practice of choosing a certain number of persons yearly, to manage the concerns of the parish for that year ; Avhich by degrees came to be a fixed method, and the parishioners lost not only their right to concur in the public management as oft as they would attend, but also (in most places, if not in all) the right of electing the managers. And such a custom, of the government of parishes by a select number, VESTRIES. 1891 has been adjudged a good custom, in tliat tlie cliurcli- wardens accounting to them Avas adjudged a good ac- count (t). In some parishes, these select vestries having been tliought oppressive and injurious, great struggles have been made to set aside and demolish them (z<). And no wonder that it has been so, in such parishes where by custom they have obtained the poAver to choose one another ; for it is not to be supposed, but that if they are guilty of evil practices, they Avill choose such persons as they think will connive at or concur Avith them therein. In Batt V. JVutkinson (.r), in 3 Will. 3, in a prohibition Bait v. Wat- prayed to the spiritual court at York, the suggestion set ^^i'^so"- fortli, that the parish of Masham in Yorkshire AA^as an ancient parish, and that time out of mind there Avere twenty-four of the chief parishitmers, Avho all along had been called the four and twenty; and that during time immemorial, as often as any one of the said four and twenty ])arishioners happened to die, the rest surviving of the four and tAventy did choose, and during all the same time used to choose, one other fit and able parishioner of the same parish, to be one of the four and tAA^enty in the room of him so deceased ; and that Avithin the said parish there is, and during time immemorial there ahvays hath been a custom, that the said four and twenty for the time being have been used and accustomed, as often as there aa^s occasion, to make rates, and to assess reasonable smns of money upon the parishioners and inhabitants in the said ])arish for the time being for the repairs of the church; and that the church Avardens of the said parish, during all the time aforesaid, have used to receive all duties and dues for burials in the body or aisles of the said church ; and if any of the inhabitants refused to pay the said rates or dues for burials as aforesaid, then the churcliAA^ardens, by Avar- rant from the tAventy-four for the time being, Avere used to distrain the goods and chattels of the said parishioners in the said parish ; and that the said. tAventy-four, Avith the consent of the vicar or curate, haA^e used to repair the body and aisles of the said church ; and that the church- Avardcns for the time being, during all the time aforesaid, liave always used to give up their accoimts to the said four and twenty, Avho alloAved or disallowed the said ac- counts as they saw expedient ; and tliat on the alloAvancc of such account, the churclnvardens have ahvays been dis- charged from giving any other account in any otlier place ; that tlic plaintiffs Averc chm-chwardens for the year 1680; (0 Gibs. 219. (;/) Tar. L. c. 17. (.r) Lutw. 1227. 1892 FABRICS ANt) OFFICERS OF FABRICS OF THE CHURCH. Ihltt V. kiason. Wat- Cascs on the constitution of select vestries. and after this year was ended, they gave in their accounts to the fotir and twenty ; and that though all pleas con- cerning prescriptions and customs ought to he determined by tlie common law, yet tlie defendant hath drawn and cited them into the spiritual court to give in and pass their said accounts there ; and although the said plaintiffs have pleaded all the matters aforesaid in the said s])iritual court, yet the said defendant hath refused to admit or to receive the said plea. Upon great debate of this case at several times, the court was of opinion, that the custom was good and reasonable, and a ])rohibition Avas granted. So that prescription and constant immemorial usage seems to be the basis and only support of this select vestry. And pursuant hereunto, upon the same foundation, and for the same reasons, was the select vestry of the parish of St. Mary-at-Hill in London confirmed and established in the King's Bench. And since that time, the select vestries of St. Saviour's and St. Olave's in Southwark, for want of proof of such prescription and immemorial usage, have been set aside and demolished (?/). If in pleading it is stated " that from time immemorial there had been a select vestry composed of a certain number of select persons," it is incumbent on the party making that averment to prove that the vestry had con- sisted of a definite number, and so it seems it Avould be if it liad been stated that the vestry was composed of a certain number of select persons (z). A select vestry cannot be constituted by a faculty from the bishop (a). Nor when it exists by ancient custom for the management of parochial affairs can it elect another select vestry for the management of the poor within 59 Geo. 3, c. 12 (Z»). But a custom in a parish lias been holden not to be de- stoyed, because in 1662 it had accepted a faculty corrobo- rative of its power, though the faculty was not binding in laAv and the vestry had poAver at any time to dejjart from its instructions. A custom that there shall be a select vestry f)f an indefinite number of persons continued by election of new members made by itself, and not by the parish- ioners, is valid in law(c); but it woidd a]i]iear tliat it must be part of sucli custom that there should always be a reasonable number, and that the reasonableness of that number must be decided with reference to lonff-establishcd (y) Vay. L. c. 17. (s) Bern/ v. Banner, Peake, 212, per Lord Kenyon; this seems to liave been, to a certain extent, overruled by Goldine/ y. Favi, cited post. («) Ibid. (b) Rex V. Goodman, 4 B. & Ad. 507. (c) Golding v. Fenn, 7 B. & C. 765; 1 M. & R. 647. VESTRIES. 1893 usage and to the population of the parish, and such custom must have existed from time immemorial in a parish (r/). It has been holden, that a select vestry appointed pursuant to sect. 30 of 59 Geo. 3, c. 134, had no ])Ower to impose a rate for the repair of the district church (e). AVhere au ancient select vestry existed in a parish having and exer- cising certain powers in the management and care of the poor, but not all the powers required by the statute of 59 Geo. 3 to be exercised by select vestries, the court granted a mandamus calling upon the parish officers to convene a meeting, piusuant to the act, for the purpose of establishing a new select vestry to perform those functions under the act, Avhich the former vestry could not discharge, but not otherwise to interfere with it[f). To a man- damus calUng on churchwardens and overseers to summon a meeting for the purpose of establishing a select vestry for the concerns of the poor, pursuant to 59 Geo. 3, c. 12, a return was made, stating that there was by custom an ancient vestry in the parish, which had from time to time immemorial consvilted and delil^erated on parochial matters, and acted as a select vestry for the concerns of the poor, and that they had immemorially been accustomed to per- form the duties imposed on select vestries by the statute ; it was holden that the return was bad, since the statute imposes some duties, as the management of money raised by poor rates, and making orders for the government of overseers, which coidd not have existed before 43 Eliz. c. 2 (ff). By a local act, the inhabitants of the parish of C, paying church and poor rates, were empowered to elect guardians of the poor. In the vestry act of 58 Geo. 3, 0. 69, is a proviso that that act shall not affect the right or manner of voting in any vestry holden by ancient usage or by a special act ; it was holden that tliis proviso did not except the parish of C. from the operation of the above-mentioned act, and that to bring a vestry Avithin the exception it must have a peculiar constitution (A). The magistrates are bound under 59 Geo. 3, c. 12, to appoint all persons nominated and elected by the parish- ioners to be members of the select vestry, and have no dis- cretion to reject any person so nominated and so elected (/). (d) Gohlhifj V. Fenn, 7 B. & (rj) Rex v. St. Bartholomew the C. 7G5; 1 M. & R. 647. Great, 2 B. & Ad. 506. (c) Cochhurn v. Haircy, 2 B. (//) Rex v. Clerkcnwell, 3 Nev, & Ad. 797. & i\[. 411 ; 1 Ad. & El. 317. (/) Rex y. St. Martin in the (i) Rex y. Kent Ju-^^ticrs, ■i'!) Ibid. VESTRIES. 1895 In tlie several private acts for building particular cluu-ches, sometimes the minister, churchwardens, over- seers of the poor, and others who have served, or paid fines for being excused from serving those offices ; some- times the minister, churchwardens, overseers of the poor, and all who pay to the poor rate ; sometimes only all who pay such a sum to the poor rate ; sometimes all who rent houses of so much a year ; — are appointed to be vestrymen within such parishes, and no other persons. Vestrymen who have signed a resolution ordering the Liability of parish surveyor to take steps for defending an indictment vestrymen, for not repairing a road, were holden not to be responsible for the payment of the attorney employed by the sur- veyor (<^). Where several parishioners joined at a vestry meeting in signing an order authorizing two chiu'chwardens to put a new roof on the parish tower, and both concurred in giving orders for that purpose, and one of them (the plaintiff) paid the artificers, and a rate for reimbursing them having been quashed, the plaintiff sued the defendant, being the other churchwarden, for a moiety of the money so paid ; it was holden that the defendant could not insist on those parishioners who had signed the vestry order being joined with him as co-defendants in the action (r). In a case where several parishioners in the vestry signed a re- solution in the vestry minute-book, stating that they approve of an action brought by the surveyor of the highways against A., and that they do thereby guarantee to him all legal expenses that are or may be incurred by him in pro- secuting that suit; it was holden that this binds them l^ersonally, and will render each person signing it incom- petent to be a witness on the trial of that action (s). Vestries may be constituted by Sir J. Hobhouse's Act, i & 2 Will. 4, the distinguishing feature of which, it will be seen on re- ^- ^^■ ference to it, . is a provision for the auditing and keeping of parochial accounts by a select body of vestrpnen elected from the ratepayers. It Avill be observed also that it is applicable only to parishes forming part of a city or town, or containing more than 800 ratepayers, and that it in no way affects the ecclesiastical jurisdiction. It no longer applies to the metropolis (i'). (fj) Spratt V. Poxi-rU, 3 Bing. (s) Ileiidehourclc v. Langton, 3 478; 11 Mooro, 308; Lmiclirster C. & P. 6G6, per Lord Teiitcnleii. V. Frewer, 9 Moore, G88: 2 Bing. A rule for a new trial was refused; 361. 10 B. & C. 546. (r) Lanchester v. Tricker, 8 (0 1 & 2 AVill. 4, c. GO, " An ^loore, 20; 1 Bing. 201. Act for the better Regulation of 189G FABHICS AND 01 FICEUS OF FABUICS OF THE CHURCH. Vestries in metropolis. Church rates where made in open vestry before passing of the act 18 & 19 Vict, c. 120, to be so made. Nothing in this act, or in 18 & 1'.) Vict. c. 120, to affect ecclesiastical districts. Other powers of vestries and like meetings declared to have been transferred to vestries under act 18 & 19 Vict. c. 120. Vestries in tlie metropolis are now to be constituted under the Metropolis Loeal Manag-ement Acts. The first of these, 18 & 19 Vict. c. 120, repeals, by- sect. 1, 1 & 2 Will. 4, c. 60, so far as it relates to the metropolis, and proceeds to provide for the formation of vestries in the metropolitan parishes. No such vestries are, by sect. 29, to be holden in any church or chapel. By sect. 90, all duties, powers and authorities as to the concerns of any parish {except such duties and powers as relate, inter alia, to the affairs of the churcli) are to be vested in the vestries formed under this act. By the second act, 19 & 20 Vict. c. 112, s. 1, "Where at the time of the passing of the said act the power of niakino; chiu-ch rates, or rates of the nature of chui-ch rates, in any parish Avas vested m any open vestry, or in any meeting in the nature of an open vestry meeting, or in any meeting of the parishioners, inhabitants or rate- payers generally, or of such of the parishioners, inhabitants or ratepayers as were rated at or above any specified amount or value (whether such vestry or meeting were holden for the parish at large or for any lil^erty or district therein), such power shall not be deemed to have become vested in the vestry constituted in such parish under the said act, but shall be exercised as if the said act had not been passed: Provided always, that this act shall not affect any such rate made before the passing thereof by any such vestry as last aforesaid." Sect. 2. " Kothing in the said act or this act shall affect, or be deemed to have affected, any power of electing or appointing churchwardens or making church rates, or other power, which at the time of the passing of the said act was vested in any such open vestry or meeting as afore- said, or any elected or other vestry, Avhere such vestry or meeting acts exclusively for any district (by Avhatever de- nomination distinguished) created for ecclesiastical pui'- poses only." Sect. 3. " Save as hereinbefore otherwise provided, all the duties, ])owers and privileges (including such as relate to the afliiirs of the church) . . . which might have been performed or exerci.sed by any 0|)en or elected or other vestry, or any such meeting as aforesaid in any parish, under any local act or otherAAase, at the time of the passing of the said act of the last session, shall be deemed to have Vestries, and for the Api)oint- ment of Auditors of Accounts, in certain Parishes of England and AVales. (Oct. 20, 1831.) VESTRIES. 1897 become transferred to and vested in the vestry constituted by sucli last-mentioned act ; . . . Provided that all duties and powers relating to the affairs of the church . which at the time of the passing of the said act were vested in or might be exercised by any guardians, governors, trustees or commissioners, or any body other than any open or elected or other vestry, or any such meeting as hereinbefore mentioned, shall continue vested in and be exercised by such guardians, governors, trustees or commissioners, or other body as aforesaid." The case of Carter v. Croplei/ [u), deciding that the right to elect their incumbent when previously vested in the inhabitants and parishioners paying rates, is not by these acts transferred to the statutory vestries, has been already mentioned (a,-). (u) 8 De G., M. & G. G80; 2 Jur., N. S. 1200; 3 Jur., N. S. 171. {x) Vide supra^ p. 364. P. VOL. II. G F 1898 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. trustees. CHAPTER VI. CHURCH TRUSTEES. Origin of. Church trustees have their origin in the Compulsory Church Eate Abolition Act 1868 (31 & 32 Vict. c. 109). Power to ap- By the 9th section of this act it is provided as follows : ]nnm church «' ^\^ body of trustees may be appointed in any parish for the purpose of accepting-, by bequest, donation, con- tract, or otherwise, and of holding any contributions which may be given to them for ecclesiastical purposes in the parish. " The trustees shall eonsist of the incumbent and of two householders or owners or occupiers of land in the pansh, to be chosen in the first instance, and also from time to time on any vacancy in the office by death, incapacity, or resignation, one by the patron, and the other by the bishop of the diocese in which the parish is situate. The tntstees shall be a body corporate, by the name of the church trustees of the parish to which they belong, having a perpetual succession and a common seal, with power to sue and be sued in their corporate name. The trustees may from time to time, as circumstances may require, pay over to the churchwardens, to be applied by them either to the general ecclesiastical purposes of the parish, or to any specific ecclesiastical purposes of the parish, any flinds in their hands, and the funds so paid over may be applied to such purposes and shall not be applied to any other purpose : Provided always, that no power shall be thereby conferred on the churchwardens to take order with regard to the ecclesiastical purposes of the parish fiu'ther or otherwise than they are noAv by law en- titled to do : provided also, that due regard shall be had to the direction of the donors of funds contributed for any special ecclesiastical purposes ; and, subject as aforesaid, The trustees may invest in government or real securities any funds in their hands, and accumulate the income thereof, or otherwise deal with such fimds as they think expedient, subject to the proWsions of this act. The incumbent shall be the chaii'man of the trustees. CHURCH TRUSTEES. 1899 " The trustees shall, once at the least in every year, lay before the vestry an account of their receipts and expen- diture during the preceding year, and of the mode in 'o^hich such receipts have been derived and expenditure incurred, together with a statement of the amount (if any) of funds remaining in their hands at the date of such ac- count." It does not appear whether any instance of the applica- As to applica- tion of this section has yet occurred. *^"^ °^ section. 6 F 2 1900 FABRICS AXD OFFICERS OF FABRICS OF THE CHURCn. CHAPTER VII. MINOR OFFICERS. Sect. 1. — Parish Clerks. 2. — Sextons. 3. — Organists. Clerk in holy orders. Constitution of Boniface. His qualifica- tion. How to be appointed. Sect. 1. — Parish Clerks (a). The status of parish clerks in holy orders has been ah'eady considered (i). " We do decree that the offices for holy water be con- ferred upon poor clerks" (c). For the understanding of which constitution, it is to be observed, that parish clerks were heretofore real clerks, of whom every minister had at least one, to assist imdcr him in the celebration of divine offices ; and for his better maintenance, the profits of the office o^ aqucebajalus (who was an assistant to the minister in carrying the holy water) were annexed unto the office of the parish clerk by this Constitution; so as, in after times, aquahnjalus was only anotlier name for the clerk officiating luider the chief minister. By Can. 91 of 1603, " And the said clerk shall be twenty years of age at the least ; known to the parson, vicar, or minister to be of honest conversation, and sufficient for his reading, writing, and also for his competent skill in sing- ing (if it may be)." All mcumbents once had the right of nomination of the parish clerks, by the common law and custom of the realm (d). And by the aforesaid constitution of Archbishop Boni- face, " Because differences do sometimes arise between rectors and vicars and their parishioners, about the con- ferring of such offices, we do decree, that the same rectors and vicars, whom it more particularly concerueth to know (o) Called originally "cecZtVuj," Ayl. Farerg. 409. {h) Vide sui)ra, pp. 588 — 590. (c) Boniface, Lind. 142. {d) Gibs. 214. MINOR OFFICERS. 1901 Avlio are fit for such offices, shall endeavour to place such clerks in the aforesaid offices, Avho, according to their judgment, are skilled and able to serve them agTeeably in the divine administration, and Avho Avill be obedient to their commands." And by Can. 91, " Xo parish clerk upon any vacation shall be chosen within the city of London or elsewhere, but by the parson or vicar ; or where there 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." Since the making of which canon, the right of putting in the parish clerk has often been contested between in- cumbents and parishioners, and prohibitions prayed, and always ol^tainecl, to the spiritual court for maintaining the authority of the canon in favour of the incumbent against the plea of custom in behalf of the parishioners (e). Thus, in Cundict v. Plomer{f), in 8 Jac. 1, the pa- rishioners of the parish of St. Alj^hage in Canterbury pre- scribed to have the election of their parish clerk, and by the canon the election of the clerk is given to the vicar. It was adjudged in this case, that the prescription should be preferred before the canon, and a prohibition was awarded accordingly. In Jermyiis Case{^g), in 21 Jac. 1, Jermyn, rector of the parish of St. Katherine's in Coleman Street, and Ham- mond, as clerk there, sued in the spiritual court to have the said clerk established there, being placed there by the parson according to the late canon, where the parishioners disturbed him, upon a pretence of a custom to place the clerk there by the election of their vestry. And upon this surmise of a custom, the churchwardens and parishioners prayed a prohibition ; and after divers motions a prohibi- tion Avas granted ; for they held that it was a good custom, and that the canon cannot take it away. Before the union of parishes in London, effiscted by 22 In united Car. 2, c. 11, there was a custom in the parish of St. M. P. pa^^lies. for the jiarishioners to join with the rector in the election of a parish clerk. By that act the parish of St. M. C. was imited to that of St. M. P., the church of the latter parish still remaining ; and it was holden that the right of election after the union continued in the inhabitants jointly with the rector ; and that an appointment by the rector (e) Gibs. 214. {n\ Cio. Jac. G70. (/) Hughes, 275; 13 Coke, 70. 1902 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Authority of curate, where incumbent is suspended. How to be admitted. alone, Avitliout the concurrence of the majority of such jiari.sliioners, was void ; and consequently that a person so appointed could not maintain trespass against the church- "wardens, &c., for forcihly expelling him from the reading- desk of the parish church. It was not decided whether the election should be made by the rector and the inha- bitants of both ])arishes in joint vestry assembled, or by the rector with the inhabitants of St. M. P. alone, and whether the presence of the rector at the time of the election was necessary for the validity of the appoint- ment (/i). AVhere D., the \acar of F., was suspended, for miscon- duct, by the bishop of the diocese, from performing the duties and receiving the profits of the vicarage, for the space of two years, and, further, until he should exhibit a certificate of good behavioiu*, and K. Avas licensed by the bishop to act as curate of F., and officiated ; and after the expiration of the two years, and before the exhibition of a certificate, the parish clerk of F. died, and K. ap- pointed plaintiff to be parish clerk during the suspension of D. ; and D., during the continuance of the suspension, appointed defendant as parish clerk, avIio received fees in that character; plaintiff haA^ng, during the continuance of the suspension, sued the defendant, in respect of these fees, for money had and received: It Avas niled — (1) that K. had the right of appointing the parish clerk ; (2) that the appointment of plaintiff was good ; but (3) that a general appointment by K. would be more advisable than one limited to the time of D.'s suspension (z). Parish clerks, after having been duly chosen and ap- pointed, are usually licensed by the ordinary (k) ; but this, though not unusual, does not seem to be absolutely neces- sary ( / ). And when they are licensed, they are sworn to obey the minister (m). And if a parish clerk has been used time out of mind to be chosen by the vestry, and after admitted and sworn before the archdeacon, and he refuse to swear such parish clerk so elected, but admits another chosen by the parson, a writ may be awarded to him commanding him to swear him (?/). (/() IlarlJey v. Cnoh, 9 Bing. 728; 3 M. & Scott, 230; 5 C. & r. 441. (!) Finder v. Barr, 4 Ell. & lil. 10.5 (1854). (/.•) Johns. 204. (0 Peah V. Bourne, Str. 942, infra^ p. 1905. ' {in) Jolms. 205. (?0 2 Eoll. Abr. 234; Viner, Mandamus (11. 3); 3 Bac. Abr. 531. MINOR OFFICERS. 1903 And in tlie case oi Rex v. Henchman (o), official of tlie consistory court of the Bishop of London, a mandamus ■was granted to admit one Robert Trott to the office of parish clerk of Clerkenwell, being elected by the parish, it being shown that the official had usually admitted to that office. By the aforesaid constitution of Archbishop Boniface, Ilis salary. " If the parishioners shall maliciously withhold the accus- tomed alms from the oquabajalus, they shall be earnestly admonished to render the same ; and if need be, shall be compelled by ecclesiastical censure." Ahns.~\ — By which ^Yord "we may understand that such clerks cannot claim anything by way of a certain allowance or endowment by reason of their office of acjucehajalus : but their sustentation ought to be collected and levied according to the manner and custom of the country (p). Accustomed Alms.~\ — For this custom ought to be con- sidered according to the manner anciently observed ; whicli also, inasmvich as it concerns the increase of divine ■worship, ought not to be changed at pleasure : but here- unto the parishioners may be compelled by the bishop {q). And a custom of this kind is good and laudable, that every master of a family (for instance) on every Lord's day, give to the clerk beai-Ing the holy water somewhat according to the exigency of his condition ; and that on Christmas day he have of every house one loaf of bread, and a certain number of eggs at Easter, and in the autumn certain sheaves. Also that may be called a laudable custom, where such clerk every quarter of the year receives something In certain in money for his sustenance, w'hicli ought to l)e collected and levied in the whole parish. For such laudable custom is to be observed, and to this the parishioners ought to be compelled ; for having paid the same for so long a time. It shall be ]5resumed that at first they voluntarily bound themselves thereunto (r). Admonished.^ — Not only by the ministers, but also and more especially by the ordhiary of the place (5). By Can. 91, " The said clerks shall have and receive their ancient wages, without fraud or diminution, cither at the hands of the churchwardens, at such times as hath been accustomed, or by their own collection, according to the most ancient custom of every parish." Ancient Wayes.l — ^^ ^^^^ such customary allowance is (o) 3 r,ac. Abr. 531. (r) Ibid, (p) Lindw. 143. U) Ibid. {1) Ibid. 1904 FABUICS AND OFFICERS OF FABRICS OF THE CnURCH. Where to be tlcnicJ, tlic Ibrcgoin"; constitution, and the practice there- sued for. upon, direct where it is to be sued for, viz. before the ordinary in liis ecclesiastical court. That constitution (as "\ve sec) calls those Avaj^cs accustomed dims: and in the register there is a consultation jirovided in a case of the same nature, for what the writ calls lar) Str. 1)42. Tliis case is also 8 I). iVJ R. .'387), said, " ( )hjection reported in 2 Lee, 687. has since been made to that case, 1906 F.vr.RICS AND OFFICERS OF FABllICS OF THE CnURCH. How to he In Tarrant v. Ilaxhi/ {d), in 30 & 31 Geo. 2, a motion removed 1 rem ^jj^g t^^^q for a proliibition to the consistory court of York, to stay their proccedinijs against Tarrant, the present parish clerk of St. Osith in York ; wliich proceedings Avere there instituted at tlic instance of Haxby, the de- prived parisli clerk, for the restoration of the said Haxby. It Avas in-ged that the office is temporal, and therefore that the spiritual court has no junsdiction concerning his de- privation. This Ilaxby, they said, was deprived by the jiarson and the -whole parish, for drunkenness dui-ing divine service and other misdemeanors : AVhereupon the parson apjiointcd TaiTant in his room. Against whom Haxby libelled in the consistory court, -Nvhere there was a monition, and they were proceeding to restore Haxby. And all this was suggested. Upon which a rule was granted to show cause. And now cause was to have been shoAvn. But the counsel, being satisfied that it Avas too strong against them, gave it up. And the rule for the prohibition was made absolute. Mandamus to In Rex V. Erasmus Warren (e), in 16 Geo. 3, in the restore. j^^^^ term cause was shoAA'n against a mandamus to restore William Readshaw to the office of ])arish clerk of Hamp- stead. It Avas stated, that the clerk AA-as appointed by the minister; that he had since become bankrupt, and had not obtained his certificate ; that he had been guilty of many omissions in his office ; Avas actually in prison at the time of his amoval ; and had appointed a deputy who was totally unfit for the office. Against Avhich it was insisted, that the office of parish clerk is a temporal office during life ; that the parson cannot remove him ; and that he has a right to appoint a deputy. Lord ]\lansfield then said, there Avas an application of this sort in a cause of Rex v. Proctor, in 15 Geo. 3, Avhere the parson removed a parish clerk appointed by the former incumbent. There the right of amotion Avas in question, and all agreed it must be somcAvhere, but that case was not decided. Lord jSIansfield asked, Avhat remedy is there in Westminster Hall to remoAC him? lie certainly has his office only during his good behaviour. But though the minister may haA'e a poAA'cr of remoA-ing him on a good and sufficient cause, he can never be the sole judge and remove him at pleasure, without being subject to the control of this court. on the ground that the ecclesi- v. AsJiton, 1 Lee, 353, infra, p. astical court had no autliority to 1908. suspend or deprive, perhaps that (cZ) Burr. 3G7. objection is Avell founded." But (e) Cowpcr, 370. see Sir G. Lee's remarks in Barton MINOE OFFICERS. 1 907 By Mr. Justice Aston : As long as the clerk behaves him- self Avell, he has a good right and title to continue in his office. Therefore if the clergyman has any just cause for removing him, he should state it to the court. Accord- ingly, the court enlarged the rule to this term, that affida- vits might be made on both sides, of the cause and manner of amotion. And now on this day, upon reading the affi- davits. Lord Mansfield said, it was settled in the case of Rex V. Ashton, in 28 Geo. 2, that a parish clerk is a tem- poral officer, and that the minister must show ground for turning him out. Noav in this case, there is no sufficient reason assigned in the affidavits that have been read, upon which the court can exercise their judgment, nor is there any instance produced of any misbehaviour of consequence; therefore the rule for a mandamus to restore him must be made absolute. In a more recent case, in which a mandamus had issued Dutv to hear to a vicar to restore T. H. to the office of parish clerk, before removal. lleturn, that T. H. had on several specified occasions mis- conducted himself by designedly irreverent and ndiculous behaviour in his performance of his duty ; by appearing in church drunk, so as to be incapable of performing it ; and by indecently disturbing the congregation during the ad- ministration of the sacrament. The return stated that the alleged acts were done in the view and presence of the defendant, and after repeated reproof, whereu]3on the de- fendant removed him from his office of clerk. Plea, stating that T. H. had not been summoned to answer for his con- duct before his removal. It was ruled, that the return Avas bad for not showing such summons (_/). A pauper Avas appointed a paiish clei-k in the following Mode of manner : The rector sent for the pauper on a Sunday, and appointment. requested him to perform duty on that day, and on coming out of the desk, the rector said to the pauper, " I appoint you my regular clerk and sexton, and to follow me in funerals and marriages" {g^. It was holden that this was a proper appointment of the pauper as parish clerk (A). It seems to 'be doubtful Avhctlicr the canon renders it ne- cessary that the a})]iointment of a parish clerk should be signified to the parishioners. A right to demand a poll is l)y law incidental to the election of a parish officer by shoAV of hands (z). (/) Reg. v. SmUh, 5 Atl. & (//) Rrx v. Bohhlmj (Lihah.), 1 Ell., N.S.C14 (1844). N. & P. 16G. (f/) Rex V. 8t. Ann's, SoJio, 3 (i) Campbell v. Mauml, 1 N. & Burr. 1877. P. 558. 1908 FABRICS AND OFFICERS OF FABRICS OF THE CnURCH. "\V here iiiaiulaiiins iloes not lie. As to vote of parish clerk. Office cannot be assigned. 7 & S Vict. c. o'J. Power to suspend or remove eliurch clerks not in holy orders who may be guilty of neg- lect or misbe- haviour. ]>ut a niandaiiius docs not lie to restore one to the office of deputy parish clerk (/t). It has been holden, as we have seen, that it hes to a minister to restore a parish clerk removed bv him without just cause. And the court will not judg-c of the justice of the cause of the removal iipon the ex jxirte statement of the minister; he must state it in his return to the mandamus, and give to the clerk an op- portunity of answering it(/). But Sir G. Lee said, that where a parish clerk Avas appointed by the parishioners by custom, he had been holden to be a tem])oral officer ; but Avhere he was nominated Ijy the parson he was a spiritual officer, and that all proceedings to deprive a clerk in the ecclesiastical court mitst be plenary and by articles (w). Serving the office of parish clerk for a year gains a settlement, although he be chosen by the parson and not by the ])arishioners, and have no licence from the ordinary, and although he be a certificate man {n). A parish clerk, receiving more than 40^. a year from the parochial burial fees, is not entitled to vote for the county, either as holding a fi'eehold office, or as having an interest in freehold land in virtue of his receipt of such fees (o). It has been holden that the office of parish clerk cannot be assigned, and that the assignor Avas therefore still the parish clerk, and could sue for the fees (/;). In 1844, the 7 & 8 Vict. c. 59 was passed, entitled " An Act for better regulating the Office of Lecturers and Parish Clerks." The following sections relate to the removal of parish clerks : — Sect. 5. " If at a;iy time it shall appear, upon complaint or otherwise, to any archdeacon or other ordinary that any person not in holy orders, holding or exercising the office of church clerk, chapel clerk, or ]iarish clerk in any dis- trict, 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 ])erson to hold or exercise the same, it shall be lawful for such archdeacon or other ordi- (k) Anon., Lofft, 434. (0 Jirx V. Dovic!^, D. & R. 234; and see Lord Kenyon's re- marks, Rex V. Gas kin, 8 T. K. 209. (;«) Barton v. A.ihtnn, 1 Lee, 353. Sec the collection of cases of older date in the rK>tc. A copy of such articles is in Philli- more's Burn, vol. 3, " Practice." (n) Inter the pariislies of Gntton and Mihdch, 2 Salk. 536; Peak v. Bourne, 2 Str. 942; 2 Sess. Cas. 182. (o) Bushell V. Eastcs, 8 Jur., N. S. 655(1801). ( ;)) Nichols v. Davis, L. 11., 4 C. r. 80 (18G8). MINOK OFFICERS. 1 909 narj fortliwitli to summon siicli chvirch clerk, cliapel clerk, or ])arish clerk to appear before liim, and also by writing imder his band, or by sucb process as is commonly used in any of the courts ecclesiastical for procuring the attend- ance of witnesses, to call before him all such persons as may be competent to give e\adence or information respect- ing any of the matters imputed to or charged against such church clerk, chapel clerk, or parish clerk as aforesaid ; and such archdeacon or other ordinary shall and may, if he see fit, examine upon oath, to be by him administered in that behalf, any of the persons so appearing or attend- ing before him respecting any of the matters aforesaid, and shall and may thereupon summarily hear and deter- mine the truth of the matters so imputed to or charged against such church clerk, chapel clerk, or parish clerk as aforesaid ; 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 church clerk, chapel clerk, or parish clerk are true, it shall be lawfid for the said archdeacon or other ordinary forth- Avith to suspend or remove such church clerk, chapel clerk, or parish clerk from his said office, and by certifi- cate under his hand and seal directed to the rector or other officiating minister of the parish, district, or place wherein such church clerk, chapel clerk, or parish clerk held or exercised his said office, to declare the said office vacant, and a copy of such certificate shall thereupon, by such rector or other officiating minister, be affixed to the principal door of the church or chapel in which the said church clerk, chapel clerk, or parish clerk usually exer- cised his said office ; and the person or persons who upon the vacancy of such office are entitled to elect or appoint a person to fill the same, shall and may forthwith proceed to elect or appoint some other person to fill the same in the place of the said church clerk, chapel clerk, or parish clerk so removed as aforesaid : Pro^dded always, that the exercise of such office by a sufficient deputy who shall duly and faithfully perform the duties thereof, and in all respects well and properly demean himself, shall not be deemed a wilful neglect of his office on the part of such cluirch clerk, chapel clerk, or parish clerk, so as to render him liable, for such cause alone, to be suspended or removed therefi'om." Sect. 6. " In case any person, having ceased to be em- PoT^-cr to re- ployed in any of the offices or duties inthis act mentioned '"o^c person or referred to, or having been duly suspended or removed ^*^^^'°S ^ ^o 1910 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. employed as iiieiitioiu'd in this act from eniploymcut. from any such office or cmplo^Tnent as aforesaid, shall at any time refuse or neglect to give up the possession of any preiiuscs house, building, land, or premises, or any part or parcel holilcn hy him thereof, by him held or occupied by virtue or in respect m right uf his gf any such office or employment as aforesaid, it shall be lawful for the bishoj) of the diocese, upon complaint thereof to him made, to summon such person fortliAvith personally to appear before him, and to show cause for such refusal or neglect ; and upon the failure of the person so sum- moned as aforesaid 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 certifi- cate of the facts aforesaid, under his hand and seal, to the ])erson or persons entitled to the possession of such house, building, land, or premises as aforesaid, who may thereupon go before any neighbouring justice of the peace ; and such justice, upon production of such certificate, and proof of such wi'ongful retention of possession as aforesaid, shall and he is hereby 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 neighbouring district, parish, or place, requiring them forthwith to expel and remove from the said house, building, land or pre- mises, and from every part and parcel thereof, the person so wrongfully retainmg ])ossession thereof, and to deliver the peaceable possession thereof to the person or persons so en- titled to the same as aforesaid ; and such constables or other peace officers shall and they are hereby required prom.ptly and effectually, to obey and execute such warrant, accord- ing to the exigency thereof, and thereupon it shall be lawful for them also to levy, upon the goods and chattels of the person so by them expelled and removed as aforesaid, the necessary costs and expenses of executing such warrant, the ainoutit whereof, in case the same shall be disputed, shall be forthwith settled and determined by the said justice of the peace by whom the said warrant was so issued as aforesaid, or by any other justice of the peace residing in or near to the said district, ]:)arish, or place, whose decision thereupon shall be final, and who is herel)y authorized to make such order in that behalf as to him shall seem reasonable." By 10 & 11 Vict. c. 65, s. 34, cemetery companies, with consent of the chaplains of the cemeteries, may aj)- In cemeteries. MINOK OFFICEKS. 1911 point clerks, and allow them such stipends as they thmk proper, and may remove them at their pleasure (q). As to the rights of parish clerks in certain cases to offi- ciate in cemeteries and claim fees for their services, see chapter on Burial (r). Parish clerks belonging to churches built under the Church Building Acts are treated of hereafter in the chaj^ter on the Building of Churches (s). Sect. 2. — Sextons. The sexton, scgsten, segerstane, sacristan, {sacrista, the Nature of keeper of the holy things belonging to the divine worship,) o^^e. ■ seems to be the same with the ostiarius in the Roman Church, and is appointed by the minister or others, and receives his salary according to the custom of each parish. It has been adjudged that a mandamus lies to restore a iMandamus sexton ; though as to this the court at first doubted, be- for. cause he was rather a servant of the parish than an officer, or one that had a freehold in his place ; but upon a certi- ficate shown from the minister and divers of the parish that the custom was to choose a sexton, and that he held it for his life, and that he had 2d. a year of every house within the parish, they granted a mandamus directed to the churchwardens to restore him (f). In Olive v. Ingram (u), in 12 Geo. 1, in assumpsit for Women may money had and received to the plaintiff's use, a case was ^° sextons. made at nisi prius for the opinion of the court, that there being a vacancy in the office of sexton of the parish of St. Botoljih without Aldersgate, in the city of London, the plaintiff and Sarah Bly were candidates ; and Sarah Bly had 169 indisputable votes, and 40 which were given by women Avho were housekeepers and paid to the church and poor; that the plaintiff had 174 indisputable votes, and 22 other votes given by such women as aforesaid : that Sarah Bly Avas declared duly elected ; upon which the ])laintiff brought a mandamus, and was sworn in, and the defendant had received 5s. belonging to the office. In this case two points were raised: 1st, whether a woman was capable of being chosen sexton; and 2nd, whether Avomen could vote in the election. As to the first, the court seemed to have no difficulty about it, there having been many cases Avhere offices of greater consequence have C*?) Vi(^6 supra, p. 84G. (?•) Sujira, p. 872. (d) Vide infra, Part IX., Chap. V. (0 3 Eac. Abr. 530 («) Str. IIU. 1912 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. Women may be sextons. Mandamns refused for office. Quo war- ranto. When office full iind right to elect doubt- ful. been held by women, and tliere being many women sextons at that time in London. In the second year of Queen Anne a woman Avas appointed governor of Chelms- ford workliouse ; Lady Broughton was, keeper of the Gatelionsc ; Lady l^ackiiigton was the retiu'ning officer for mcm])ers at Ailesbury. As to the second ]wint, it Avas shown that women cannot vote for members of parHament or coroners, and yet they have freehold, and contribute to all public charges ; and though they vote in the monied companies, yet that is by virtue of the acts which give the right to all persons possessed of so much stock ; that mili- tary tenures never descended to them. But the court notwithstanding held, that this being an office that did not concern the public, or the care and inspection of the morals of the parishioners, there was no reason to exclude women who paid rates from the privilege of voting ; they observed, here was no usage of excluding them stated, which perhaps might have altered the case ; and that as this case was stated, the plaintiff did not appear to have been duly elected, and therefore there ought to be judg- ment against him ( u ). In Rex V. Churchivardens of Thame {x), in 5 Geo. 1, an application was made to the Coiu't of King's Bench for a mandanuis to restore John Williams to the office of sexton. A return Avas made that he held it at jdeasure. The court refused the mandanuis Avithout a certificate that he was chosen ybr life. It has been said, that the common laAv considers sextons to have a freehold in their office, and has never decided that a Avrit of quo icarranto Avould not lie in the case of a sexton {]/). In 183G a mandamus Avas a])plicd for on affidavits making a irrimCi facie case of right in the inhabitants to elect a sexton for the parish of Stoke Damerel in Devonshire. AffidaA^its Avere filed in answer, stating facts to shoAv that the right Avas in the rector, Avho had fiUed up the appoint- ment. The office being full, a question arose as to Avhether the proper remedy Avas not by " quo warranto,^'' instead of " mandamus.'''' ]\Ir. Justice Patteson (agreeing Avith Lord Chief Justice Denman, A\'illiams and Coleridge, Justices, (ii) Anne, Countess of Pem- broke, Dorset, and Montgomery, sat on the Bench Avitli tlic judges at the assizes at Ajipleby as here- ditary sheriff of Westmoreland. (x-) Str. 115. (y) See 2 Roll. Abr. 234; He's case, 1 Ventr. 153; Rex v. Church- wardens of St. James's, Taunton, 1 CoAvp. 413; 5 Ad. & Ell. 584; Stokes V. Leicis, 1 T. K. 20; case of sexton chosen by two parishes. MINOR OFFICERS. 1913 said {z), " I am of the same opinion. I cannot at present find any reported case in which a mandamus has been granted to elect, where the office was abeady filled by a void election ; but I am sure, from my recollection, that the practice is so, if the court is satisfied of the election being void (a). \nRexY. The Corporation of Bedford (I)), where the corporation had elected a m.ayor who would not attend to be sworn in, because he had not qualified, the court ultimately granted a mandamus to proceed to a new election ; that, however, was after much doubt, and the office was expressly avoided by stat. 13 Car. 2, stat. 2, c. 1, s. 12. But I am confident that, if the question can- not be tried by a quo warranto, the course is to grant a mandamus for a new election, where the court is satisfied that the first election is void. Where there is any other mode of trying the right, a mandamus ought not to go. Here, prima facie, the aj^pointment is right, being made by the rector, who, by the general law, is the proper person to make it. Strong evidence would be necessary to disprove his authority. There is, on the other hand, a custom alleged for the parishioners to elect ; and some evidence, not conclusive, but amounting to a pri7ndfacie case, has been given to show that the last election was by them. The office, however, is now full by the rector's appointment. If there were no other remedy, I should say that a mandamus ought to go ; but there is such a remedy, by refusing the fees, or bringing an action for money had and received if they are taken. It cannot be supposed that the sexton will go on . for five or six years refusing his fees, to prevent a trial of the right ; at least the probability of it is not one Avhicli we can enter into. The rule must therefore be discharged." The appointment to the office of sexton, prima facie. Appointment is not vested in the inhabitants of the parish at large, of. Where the duties of that office consist in the care of the General law. sacred vestments and vessels, in the care of the church, by keeping it clean, in ringing the beUs, and in opening and closing the doors for divine service, the presumption Presumption is, that the churchwardens have the right of appointment ; of I'l'^^'- and where the duties are confined to the churchyard, in digging graves, &c., the presumption is, that the appoint- (z) Rex V. The Minifitcr and dens of St. Pancrafi, 1 A. & E. CJnirchivardens of Stoke Da- 80; and see there tlie judiimcnts viercl, 5 Ad. & Ell. 589; 1 Nev. of Parke, J., p. 100, and of Pattc- & Per. 453. son, J., p. 102. (rt) It seems to have been so (h) 1 East, 79. understood in Hex v. Churdncar- P. VOL. II. 6 G - 1914 FABRICS AND OFFICERS OF FABRICS OF THE CHURCH. ment is in the incumbent ; and -svlid'c tlie office embraces both the above-mentioned duties, the presumption is, that his appointment is vested in the chiu'chwardens and in- cumbent jointly (c). His duties. Subject to control of minister. No mandamus to elect. Sect. 3. — Orcjanists. The organist has become of late years an important officer in parish churches, though formerly his duties Avere chiefly confined to cathedrals and the churches of large toAvns. Something has been said about organists and organs in the Chapter on Liturgy and Ritual (r/f). It has also been said that the minister has the right of directing the service, e. =^£ yap rS ayitt) nv£i>|UiXTi xai hfjuv. . . ." (d) Synodus autem ex Grseco Concilii vero nomen tractum est ex more Romano. Dist. xv. 7. (e) C. 1, dist. 15, vers, inter eat. GENERAL COUNCILS. 1917 Avltliout the comnifindment and will of princes. And when they be gathered together, (forasmuch as they be an assembly of men, whereof all be not governed with the Spirit and Word of God), they may err, and sometimes have erred, even in things pertaining unto God. Where- fore things ordained by them as necessary to salvation have neither strength nor authority, unless it may be declared that they be taken out of the Holy Scripture." II. Na- tional Councils are an assembly composed of the clergy of one entii'e nation ; such were the councils of Toledo in Spain, of Carthage in Africa, and of Orleans in France. It is said that the fii'st national council in England Avas holden at Herudford, now Hertford, in the year G73. The last was holden by Cardinal Pole in the year 1555 ( /*). III. Pro\dncial Councils, composed of the metropolitan and the bishops of the province (^). It should be ob- served, however, that there arc some councils which seem to be more than national, and less than general ; such Avere the various councils convoked by the pope to heal the schisms which from time to time disturbed the peace of the western church (A). On the other hand, ecclesiastical history affords several instances of councils apparently more than provincial, without being national. Such were the councils, in Avhich the prelates of one or more patri- archates met together by deputy. IV. Diocesan or Episcopal Coimcils, (called by the Galilean Church " Synods" (i),) in which the bishop and his clergy assembled together to confer upon matters relating to the diocese (k). These were frequently holden in England, and did not fall into desuetude till the Act of Submission, 25 Hen. 8, c. 19. Of late years some attempts have been made to revive them. Some canonists have added a fifth Coimcil, viz. a Council of Kegidars or Keligious, which is more correctly denomi- nated, as in our country, a Chapter. " Die quod illud rcctius et frequenter consueverlt ajjpellari cajntuluni'^ is the remark of Lancelot (/). There are some really Qi^cumenic or General Comicils, GcTicrai which form a part of the Canon LaAV. Couucils. (/) Johnson's Coll. of Eccles. Iconoclasts, &:c., &c. Laws, &c. 139. (/) The work of Benedict XIV. (fj) Vide infra^ the English (De Pynoda Dioccsann, Vcne- rrovincial Councils and the tiis, lt87, 2 vols.) is the great Chai)ter on Convocation. work on this snliject. (//) E. q. that of Felix III. (/,;) Johnson's Collect, of Ec- against Xenicus, of Celestin clcs. Law, 140. against Ncstorius, jNIartin and (Z) C. in singulis stat. Monach. Agathon against the Monothe- Glos. in instit. litcs, Stephen IV. against the 1918 COUNCILS OF THE CIIURCn. General Couucils. Decree of Justinian. Seven or Eight General Councils {m). It is remarkable that the eight General Councils on ■which the Eastern Church relies Avere convened by the authority of the Emperors of the East and West(n). The eight General Councils of the Eastern Church arc — 1. Nice, 1 325 Convened under Constantino the Great ; condemned the heresy of Anus, -who denied the true Divinity of our Lord. 2. Constantinople, 1 . . .381 Convened under Theodosius the Elder; condemned the heresy of Macedonius, who denied the Divinity of the Holy Ghost, and that of Apollinarius, who denied that our Lord had a rational human soul. 3. Ephesus . . . . .431 Convened under Theodosius the Younger ; condemned the heresy of Nestorius, Patriarch of Constantinople. His heresy related to the Divinity of our Lord, and to denying that the Blessed Virgin was 0:otoxoj, asserting her to be Xgia-TOTOKog only — that was, in his meaning, aydgcoTroxoxoj. 4. Chalcedon . . . . .451 Convened under the Emperor Marcianus ; condemned the heresy of Eutyches, who taught the opposite error to that of Xestorius relating to the incarnation and natures of our Lord. As to these four councils the Emperor Justinian decreed as follows: — " Sancimus igitur vicem legum obtinere sanctas ecclesi- asticas regulas,quje a Sanctis quatuor conciliis exposita} sunt aut firmata3, hoc est in Nic;ena trecentorum decem et octo, et in Constantinopolitana sanctorum centum quinquaginta Patrum, et in E]:)hesina prima, in qua Nestorius est dam- natus, et in Chalcedonia in qua Eutyches cum Nestorio anathematizatus est. Pra?dictarum etiam quatuor Synodo- (m) There seems to be no practical rlifference as to dogma between those who reckon seven and those who reckon eight. M. Michaiid, one of tlie leaders of the old Catholics, speaks of the dogmatic decrees of tlie seven fir.'it councils as binding upon him; Jour, dcs Dobats, 2 Oct. 1872. lieverege reckons eight; Proleg. V. (n) Bishop Beverege (Proleg. ii.) however remarks, " ICtiamsi Imperatores multa dc ecclesias- ticis personis et rebus in Con- stitutionibus suis ediderint, niliil tamen de novo constitucrunt, sed ea tantum quaj ab Ecclesiasticis synodis prius constituta fuerant, ipsi sufi etiam auctoritate confir- marunt." He cites .lu.stinian's expression in Novel. 83, "Secun- dum sacras et divinas i-egulas quas etiam nostras sequi non dc- dignantur leges." Hooker (bk. viii.) cites St. Jerome as saying, "Die quis Ihipcrator banc syno- dum jussit convocari ?" GENERAL COUNCILS. 1919 rum dogmata sicut sauctas Scriptm-as accipimus et regulas sicut leges observamus"(o). That early portion of the canon law called the Decretum, Decretam. in its first part and in Distinctio XV. says, " Inter ca?tera autem Concilia quatuor esse scimus venerabiles Synodos, qua3 totam principaliter fidem complectuntiu-, quasi quatuor Evangelia, vel totidem Paradisi'flumina." It proceeds to enumerate the four first councils, the emperors under which they were convened, and the heresies which they con- demned. " Hre sunt quatuor Synodi principales, fidei doctrinam plenissime prajdicantes. Sed et si qua3 sunt alia Concilia, quje sancti Patres Spiritu Dei pleni sanxerunt, post istorum quatuor authoritatem, omni manent stabilita vigore, quorum gesta in hoc opere condita continentur." According to our English statute, 1 Eliz. c. 1, s. 17 (/j), 1 Eliz. c. l. heresy is to be determined " by the authority of the Ca- nonical Scriptm'cs, or by the Jirstfoicr General Co^mcils, or any of them, or by any other general council Avherein the same was declared heresie by the express and plain words of the said Canonical Scriptures, or such as here- after shall be ordered, judged or determined to be heresie, by the high court of parliament in this realm, with the assent of the clergy in their convocation, anything in this act contained to the contrary notwithstanding." The effect of these four Great Councils is thus summed up by the learned Mahan((7): — "That Jesus Christ is " true God had been witnessed at Nic^a ; that he is perfect " man had been defined at Constantinople ; that he is " indivisihhj One Person had been settled at Ephesus ; *' finally, the six hundred and thirty at Chalcedon declared " that ' he is one and the same Christ, the Son, the Lord, " ' the Only-begotten in two Natures without confusion, " ' change, division or separation.' " 5. Constantinople, 2 . . . 553 Convened under Justinian, having for its object to sup- port and amplify the decrees of the Council of Ephesus ; but it promulgated no canons. The first and second councils of Constantinople have obtained from canonists the name of general councils, although not composed of prelates assembled fi-om all countries, because having been hoi den by orthodox Cathohc bishops of the Eastern, they were afterwards ratified by the pope and bishops of the Western, church. The Gal- lican as Avell as the Anglican clmrch has combated the doctrine that the ratification of the pope was necessary for (o) Novell. 131, tit. 14. (ry) Note, p. 538. {p) Vide supra, p. 1092. 1920 COUNCILS OF THE CHURCH. Second four Cicncral Councils. the validity of canons enacted by general conncils. It seems that the former church (altliough the Councils of Constance and Basle seem to speak another language) considers such ratification as jiroper and becoming, inas- much as the consent of all churches is represented by that of liome {q), the mother of all. This doctrine is repu- diated by the Church of England, and also by the Eastern church. G. Constantinople, 3 . . . 680 Under Constantino Pogonatus ; it condemned the heresy which asserted that our Lord had only ev (l'tXr,i/.u xai /x/av svegysluv, after his incarnation — a development of the heresy condemned by the Council of Chalcedon. This council excommunicated and anathematized by name certain holders of the heresy condemned. Amongst others the Pope Honorius(r). The next council, the Quini-sextan, is not numbered in the regular order. It was holden at Constantinople a. d. 680, and was the fourth there holden. It is usually called Quini-sextan, as supplying what was wanting in the fifth and sixth councils, and it is refeiTcd to by this name in the acts of the next council. It was holden Iv tm Tgo'jXXoo, in Trullo, a particular room, so called from its domed shape, in the imperial palace. A.D. 630, Theodore, Archbishop of Canterbury, pre- sided over an Enghsli council at Hadfield (" qui Saxo- nlco vocabulo Ilathfclfh nominatur"), at which the ortho- doxy of the English church respecting the Monothelite heresy, with especial regard to the Council of Constanti- nople holden in the same year, was asserted. At this council, also, the first five general councils and canons of the Lateran council of 649, a.d. (s), were received. 7- :Nice, 2 . . . , . 787 Convened under Constantine and Irene ; it related to the use of images in the church. It passed twenty-two canons upon this and other subjects. In the first canon it con- tained the decrees of the six universal councils. 8. Constantinople, 4 . . . 869 Two spiods appear to have been convened at Con- stantinople luider Basilius jNIacedo, when Photius Avas (r/) " Tarce qu'cUc repruscnte riinifiirmiti' ct I'acccptntion do toutes les Egliscs dans celle de Kome, la mere dc toutes les autres." Diet, de Droit Canon, vol. i. p. 612. ()•) The condemnation of Ho- norius fur the Monotlielite heresy was re]>«ated " annually for a tlioupand years by every jiriost and prelate who made faitliful use of his breviary," Mahan, App. 5G2, 5G3. (s) Councils, &c., ITaddan & Stubbs, vol. 3, p. 141. GENERAL COUNCILS. 1921 patriarch of Constantinople. He composed what is called the " Nomocanonon," which contained the decrees of these two synods, and the Eastern church appears on tliis ac- count to consider them as part of her canon law ( t). The general councils, properly so called, end here. It will be remembered that Savonarola, Luther and Cran- mer apjjealed to a general council, if and whenever a really free one could be convened ; but long before the period of the Reformation, in 1427, Archbishop Chichele appealed against Pope Martin V. to a future general council (e^). In the canon law are also to be found these seven councils in the West {x). 9. Lateran, 1 . 1123 13. Lyons, 1 . . . 1245 10. Lateran, 2 . 1139 14. Lyons, 2 . . . 1274 11. Lateran, 3 . 1179 15. Vienna . . 1311 12. Lateran, 4 . 1215 The extent to which the canon law has prevailed in this country has been considered (?/) ; but it may be as well to remark here, that the fourth council of Lateran has been often referred to by the temporal courts as being engrafted into the ecclesiastical laws of this realm (2:). The fore- going councils constitute a part of the corpus Juris ca- nonici; but it should be observed that the councils of Carthage, although not general councils, have frn-nished canons for the Decretum of Gratian ; and the council of Elvira («), holden in Spain, a.d. 304, is said to have fm-nished the first canons for the discijiline of the church. The seven councils, of later date, also called " general" b3'the Roman chvu'ch, are those " quorum nulla in corjjore juris mentio Jit.''^ 16. Pisa . . . . 1409 19. Florence . . . 1439 17. Constance . 1414 20. Lateran, 5 . 1512 18. Basle . . . . 1431 21. Trent . . . . 1545 {t) Bovercgc, Proleg. v., ix. {11) Burnet, Records, iv. 382. See note 7, p. 190; Curteis, Bampton Lectures. {x) Tliere are five councils Avhich, though strictly speaking national, have, from the import- ance and wisdom of their regula- tions, been generally received in the Greek and I^atin churches. 1. Ancyra (^letropolis of Cla- latia), A.D. 314. 2. Neocesarea (Metropolis of Pontus), a.d. 315. 3. Gangra (Mctrojiolis of Paph- lagonia). 4. Antioch (Metropolis of Syria), a.d. 341. 5. Laodicea (^Metropolis of Phrvgia), about a.d. 3G4. iy) Vide supra, pp. IG — 19, 1070, 1437, 1438. (z) Croft v. MidcUeton, 2 Atk. G50; Str. 105G. (a) The place exists no longer. TtAvas about two or three leagues from (rrenada. The old name was Eliberis, or lUiberis. The severity of these canons was such that they were thought by some to be a compilation from various councils. 1922 COUNCILS OF THE CIIURCn. Council of Trent, Its ITetcro- doxiesv Vatican coun- cil of 1870, Lambeth synod. The council of Trent, holdcu under Paul III., Julius III. and Pius V., and so celebrated in histoiy, -was never acknowledjTed bv France as a jTcncral council (b). That kinfjdom admitted the catholicity of its doctrines, but de- nied tlie validity of its regulations respecting the discipline of the church (r). In England it has never been recog- nized in either res])ect. " Their new creed of Pius IV. containeth," says Barrow (speaking of the creed, Avliich contained in twelve articles a summary of the Trent council), "these novelties and heterodoxies. 1. Seven sacraments ; 2. Trent doctrines of justification and original sin; 3. Propitiatory sacrifice of the mass; 4. Transub- stantiation ; 5. Communicating under one kind ; 6. Pur- gatory; 7. Invocation of saints ; 8. Veneration of reliques; 9. Worsldp of images ; 10. The Roman church to be the mother and mistress of all churches; 11. Swearing obedience to the pope ; 12. Receiving the decrees of all synods and of Trent" (<-/). 22. The Vatican council of 1870. The doctrine of papal infallibility promulgated by this Roman council is, perhaps, the strict logical conclusion from Ultramontane tenets, as it certainly is at variance Avith all sound catholic teaching and principle. Moreover, this council ap])ears to have been wanting in some of the essential elements Avhich aU canonists require for the validity of a general council. The assemblage in 1867 of prelates from different parts of the globe imder the presidency of the Metropolitan of Canterbmy has been already noticed (e). (&) Ileniy III. told the pope that as to matters of faith the decrees of the council were iin- necessaiy for France, Avhicli was already orthodox; and as to mat- ters of discipline, since the coun- cil could not, for various reasons, be considered general, he would cause certain of its decrees to become law by royal ordinances. This was done by the ordinances of Blois and Melun, and various edicts. See title " Trente," vol. iv. Diet, de Droit Canonique. (c) See Barrow's Treatise on the Pope's Supremacy, in fine. (d) A good edition of the canons and decrees of this coun- cil was published in 1837 at Leipsic, by Koehler and Tauch- nitz. It contains an accurate and copious index. (e) Vide supra, p. 3. ( 1923 ) CHAPTER 11. CONVOCATION. Sect. 1. — History and Law before Henry VIII. 2. — From the- Time of Henry VIII. to that of Queen Victoria. 3. — Forms of Procedure generally and in Upjier House. 4. — Forms of Procedure in Loioer House. 5. — General Poioers and Privileges. Sect. 1. — History and Law before Henry VIII. Though the word convocation {a) be in itself of a general Convocation, signification,, and may indifferentlj be applied to any as- '"'^'**'- sembly whicb is summoned or called together after an orderly manner ; yet custom has determined its sense to an ecclesiastical use, and made it, if not only, yet principally, to be restrained to the assemblies of the clergy (Z»). That the bishop of every diocese had here as in all other Before tho Christian countries power to convene the clergy of his Conquest. diocese, and in a common synod or council with them to transact such affairs as specially related to the order and government of the churches under his jurisdiction, is not (a) Tractatus de rolitiu Eccles. cation of the Church of EnghancI, Anglicanaj (Mocket), cap. 11; De Lathbury; The Law relating Angl. Eccles. Synodis Nationali- to Convocations of the Clergy, bus et Provincialibus, 1616, pub- 1848, Pearce ; Convocations of lished 1705, with the two Tracts Canterbury and York, Trevor; of Zouch — see Preface to this Synodalia, A Journal of Convo- coUection, and Heylin's Life of cation, Warren, 1853, contains Laud, p. 70; The Authority of some valuable historical papers. Christian Princes, &c., Arcli- Since 1853 have been published bishop Wake; Ecclesiastical Sy- Journals of Convocation, suc- nods and Parliamentary Convo- ceeded by the present Chronicles cations in the Church of England, of Convocation, which begin Feb- Wiiite Kennett, D.D.; Complete ruary 10, 1858, Ilistoryof Convocations, or Syno- (h) As to Convocation of Ire- dusAnglicana,Gibson; England's land, see Journal of Conv, for Sacred Synods, Joyce, 1853; 1856, p. 138; Synodical Action History of English Synods and of the Scotch Church, Synodalia, Convocations, Hody; Synodalia, 248; Journal of Convocation, Cardwell; History of the Convo- 1854, p, 155. 1924 COUNCILS OF THE CHURCH. Diocesan synods. Provincial councils. Synods of the church com- mon to Knfj- laiid and other countries. Parliament. Epochs in the history of Convocation. to be questioned. These assemblies of the clergy were as old almost as the first settlement of" Christianity amongst us, and, amidst all our revolutions, continued to be holden till the time of King Ilonry the Eighth. What the bishop of every diocese did Avithin his own district, the archhisliop of each province, after the king- dom was divided into provinces, did within his proper province. They called together first the bishops, after- wards the other prelates, of their provinces ; and by de- grees added to these such of their inferior clergy as they thought needful. In these two assemblies of the clergy (the diocesan synods and provincial councils) only the spiritual affairs of the church were wont for a long time to be transacted. So that in this respect, therefore, there was no diference between the bishops and clergy of our OAvn and of all other Clii'istian churches. Our metropolitans and their suffragans acted by the same rules here, as they did in all other countries. They held these assemblies by the same power, convened the same persons, and did the same things in them. But, as will be seen, the bishops first, and then some of the other prelates (as abbots and priors) were very early brought into the great councils of the realm, or parlia- ment; and there consulted and acted together with the laity. Thus were the greater clergy first brought into our state councils, and made a constant or established part of them. The Convocation of the English Church became in its ])rogress a very remarkable instance of the independence and autonomy Avlilch has always distinguished that church {h), as the liberties of the Galilean Church once {h) The constitution of Arch- bishop Boniface says, " Item statuimus quod Episcopi in suis Synodis et aliis Convocatlonihus et singuli Arcliidiaconi in suis Capitulis, et Capellani Ecclesia- rum I'arocliialium in suis Eccle- siis," &c.; Gloss. Synodis. " Ilae dicuntur convcntus sive congre- gationcs scnum et Prcsbytero- rum, ct (Icbcnt fieri per Ejiiscopos annuatim, et ad eas tenentur ve- nire omnes illi qui sub illo Epis- copo liabent curam animarum — allls Convocallonlbus, quas ex variis causis facere poicst ICpis- copus, viz. propter subsidium Charitativum exhibendum, ))rop- tcr visitationcm cxercondam; item propter prfcdicationem verbi Dei, et in aliis qua? variis de causis possuntoccurrere. Capitu- lis— noi^ bene proprietatem ter- minorum, nam Episcopis tribuit Synodos, Arcbidiaconis vero Ca- jtitula," &c.; Lvnd. 1. i. t. 14, p. 08; and 1. v. t. 13, p. 298, Gloss, on Synodalihus, i. e. Con- stitutionibus qua3 fiunt in Synodis Episcoporum, unde ct Consti- tutio Synodalis ligat subditos statuentes, ita quod non licet con- CONVOCATION. 1925 distinguished it from the general subser\dence of the other branches of the Western Church to Rome. The most remarkable epochs of the actual and legal histoiy of Convocation are as follows : — 1. The original ecclesiastical synod, formed upon the usual model. 2. The summoning of the lower clergy to attend the prelates in this synod. 3. The prcBmunientes clause of Edward the First, sum- moning proctors of the clergy to parliament. 4. The division of the clerus into two houses or cham- bers. 5. The Act of Submission and legislation of Henry the Eighth. By it, inter alia, Convocation was forbidden to meet without the summons of the crown. 6. The arrangement between Lord Chancellor Claren- don and Archbishop Sheldon as to the subsidies of the clergy. 7. The accession of William and Mary, and their legis- lation with respect to the church. 8. The recourse of the government in 1717 to imme- diate prorogation, in order to prevent the Lower House of Convocation from censuring the sermons of Hoadley, Bishop of Bangor, and the reflisal of this and subsequent governments diu'ing the reign of the Georges and AV^illiam the Fourth to allow Convocation to discuss any subject whatever. 9. This clumsy and unworthy resource having been fonnd to foster the evil which it was intended to prevent, like all attempts in this free country to stifle debate and discussion, Avliether in the civil or ecclesiastical part of the constitution, has been partially, and it may be hoped Avill be totally, abandoned dm-ing the reign of her present majesty (c). These are the principal divisions of the subject which the ecclesiastical historian, and to some extent the eccle- siastical lawyer, must bear in mind while considering the subject of Convocation. The Fire of London in 1666 consumed the " Schedules of Continuation," and probably other records of Convocation. travenire deterrainatis in Synodo tion of the Clcrgj' of the Lower Ej)iscopali; miiltu fortius hoc erit House of Convocation," pre- dicendum quoad decisa et deter- sented to the Upper House, No- minata in Synodo Provinciali, vember, 1853, setting forth tlie &c. necessity of synodical action to (c) See a very able paper en- the life of the'cliurch. titled " The Humble liepreseu- 1926 COUNCILS OF THE CHUUCII. Attcrbury's attempts. Subsidies voted in con- vocation. At the beginning of the 18th century poKtical questions mingled largely "with the discussion of questions properly belonging to Convocation. Atterbury endeavoured to establisli the entire indcjicndencc of the Lower House, ^vhich numbered many adherents of the house of Stuart, upon the analogy of the House of Commons. It is not to be regretted tliat the eloquence and ingenuity of this accom- plished man proved unequal to the fulfilment of this task. For the analogy was certainly false, and had it prevailed, the consequences must have been destructive of the synodi- cal character of Convocation and of the disciplme of the chiu'ch. His chief opponents were Wake, Kennett and Hody ; the errors of the two former being, I incline to think, a depreciation of the s}aiodical character of Convocation, when the crown ordered the archbishops to summon it, and too stringent a construction of the Act of Submission ; but, speaking generally, their ojiinion of the law of Convo- cation was sound. The work, however, of Bishop Gibson on the subject of Convocation is facile prhiccps, and is for the most part adopted (f/) in this work. In the provincial (e) synods summoned by the arch- bishops of their own authority, the clergy taxed them- selves, and gave subsidies to the crown, a practice which — though the legislation of Henry VIII. required the autho- rity of ])arliament to confirm the grant of the subsidy — contiiuicd till the reign of Charles the Second ; and there- fore the synodical assembly dealt with questions of secular finance as well as with those of a purely spiritual character. Edward the First (1283) endeavoured to raise these sub- sidies by calling the clergy to parliament; the attempt failed. In 1294, he made another attempt to summon a national synod by Avrits directed to each bishop. " Thus" (Mr. Joyce observes) " Avas a national synod summoned, not " jn'ovincially by the metropolitans, but by accumulated " diocesan authority." The attempt seems to have been unsuccessful ; it was at all events not repeated. Edward II. (1314) issued an order to the metropolitans to summon ])rovlncial synods in the presence of royal commissioners, for the ]iur])ose of voting subsidies, but the experiment excited much dissatisfaction. I pass by for the moment the further attempt in 1295. In the first year of Edward III., {d) I have generally adopted the language as well as the oi)inion of Gibson, though with occasional alterations. (e) England's Sacred Synods, Joyce, ch. ix., a work containing much information. CONVOCATION. 1927 as Mr. Joyce says, " an arrangement between the royal " and arcliiepiscopal autliority of summoning provincial " synods was agreed upon, which prevails down to this day." The prerogative of the crown was so exerted as to be consistent, as will be seen, with canonical obedience. It is necessary to return for an instant to the reign of Edward I. in 1295. That monarch seems to have devised a scheme for bringing the clergy, not to a provincial synod, but to parliament. He directed a ^^orit to each bishop to attend in his place in parliament, joremonishing him by a clause, known as the jjrcemunientes clause, to bring Avith him to parliament the prior of his cathedral, the archdeacons, a proctor for the chapter of the cathedral, and two proctors for the diocesan clergy. This writ is issued at the present day, but never obeyed. It has been the cause of much historical error as to the origin and duties of convocation, partly because it naturally happened that the proctors for the clergy in parliament were also chosen to represent the clergy in synod or convocation. These parliamentary proctors " are (Lord Coke says(jf ) ) *' procuratores cleri, and many times have appeared in " parliament as spiritual assistants to consider, consult, " and consent, ut supra{(j\ but never had voices there, " because they were no lords of parliament." The double aspect, so to speak, of convocation is fairly Kennett's represented by Kennett, who says, " The truth is, as our account. convocations were intended for the king's temporal assist- ance, and the civil rights of the clergy, they were properly summoned with or near the parliament, and so far made a part of it. And as they are still summoned with every parliament, it is upon the old supposal, that they have some concern there, to aid the kiug, and maintain their own civil rights. But as our convocations were proper ecclesiastical councils, to debate and define the matters of faith and spiritual discipline, they bore no relation to a parliament, but were rather inconsistent with it, because the archbishop was not inclined (and, if lie Avere so, was sometimes expressly prohibited) to call his suffragans and clergy to a synod, when the king had occasion for their attendance in parliament. So still, our ecclesiastical synods to be summoned by the ki7iy^s writ to the arch- bishop are not confined to parliament time ; they may he then held, but they may too at other seasons, if the exigence of affairs shall so rerjuire" [h). (f) 4 Inst. 5. (h) Kennett, Eccles. Synod.«, (g) Kcforring to the office of 88; see too 273. judges in the House of Peers. 1928 COUNCILS OF TUE CHURCH. Ilody's The learned Hody says, " Upon comparing all things account together, I take it, ])ra'viiinic7itcs, to liave been continued in the writs after it became a constant custom for the clergy to meet in a separate body by virtue of the arch- bishop's mandate, tliat thereby our kings might assert their right of calling the clergy (if they please) to parlia- ment : which the clergy opposed as an invasion and inroad upon their lil)erties" (A). In truth, however, the exact date and origin of the Lower House of Convocation is a question now of no prac- tical moment. I agree with a recent (?) writer, who says: " It is enough that our two convocations are legally and constitutionally both the ju-ovincial synods of the church and the representative chambers of the clergy. As such they have been summoned to meet at least ever since the Reformation ; and when King William attempted to su- persede them after the Revolution, he was aiTcsted by the addresses of both houses of parliament requiring him to issue his \rc\ts, for a convocation of the clergy ' according to the ancient practice and usage of this kingdom in time of parliament ' " (Jt). Sect. 2. — From the Time of HenrTj VIII. to that of Queen Victoi'ia, The Act of The archbishops continued to summon provincial synods Submission of according to the exigencies of the clnu'ch until the Act the 25 lieu. 8. ^^ Submission, 25 Hen. 8, c. 19, was made ; by whieh it is enacted as follows : " Where the king's humble and obedient subjects the clergy of this realm of England, have not only acknowledged, according to the truth, that the convocation of the same clergy is, ahvays hath been, and ought to be assembled only by the king's Avrit ; but also submitting themselves to the king's majesty, have promised in verho sacerdotii that they will never from henceforth presume to attempt, allcdge, claim, or put in ure, enact, promulge, or execute any new canons, constitutions, ordi- nances, provincial or other, or by whatsoever name they shall be called, in the convocation, unless the king's most royal assent and licence may to them be had, to make, promulge, 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 (7t) Hody, Hist, of Conv. 431. {Ic) Card. Conf. 4G0. \i) Syuodalia, 439. CONVOCATION. 1929 submission, that they nor any of them shall presume to attempt, alledge, claim, or put in ure, any constitutions or ordinances 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 licence, to make, promulge, and execute such canons, constitutions, and ordinances, pro- vincial or synodal : upon pain of every one of the said clergy doing contrary to this act, and being thereof con- vict, to suffer imprisonment, and make fine at the king's wiU." Accordingly, in 8 Jac. 1, it was resolved upon this statute by the two chief justices and divers other justices, at a committee before the lords in parliament : 1 . That a convocation cannot assemble Avithout the assent of the king ; 2. That after their assembly they cannot confer to constitute any canons without licence of the king ; 3. AYhen they upon conference conclude any canons, yet they can- not execute any of their canons ^^^athout the royal assent ; 4. That they cannot execute any after the royal assent, but with these four limitations, ( 1 ) that they be not against the prerogative of the king, nor (2) against the common law, nor (3) against any statute law, nor (4) against any custom of the realm. All which appears by the said statute. And this (Coke says) was but an affirmance of what was before the said statute ; for it was holden before, that if a canon be against the law of the land the bishop ought to obey the commandment of the king, according to the law of the land(/). Cardinal Pole held a convocation in the year 1557, the Convocation, latter end of Queen INIary's reign ; and the title of it was howsummoned C,- • r< o 1 ^ J -J J in rhilip and onvocatio sive hacra feynodus convocata auctoritate Mary's i-ei"-n. brevis liegis Phillippi et Marice, &c. " Now it is not to Cardinal Pole. be imagined," Gibson observes, " that either the queen or 'the cardinal (so remarkably tender of the privileges and immunities of their church) Avould have given way to a convocation upon that foot, had it been the opinion of those times that tlie authority of the royal writ destroyed that authoritative summons which the archbishops before the Reformation had always exercised. They knew the kings of England had often directed their Avrits to the archbishop before the Act of Submission was thought o^, and were as constantly obeyed ; and the writ being an immediate direction to the archbishop, and not to any (/) 12 Co. 72. P. VOL. II. G 11 1930 cou^'C^LS of the ciiukcii. Subsidy by convocation. ColUer. " particular mcmljcr of convocation, they were so far from considering- tliat a sunnnons upon tlie authority of such Avrit destroyed his grace's authoritative summons, that -vve see they use the terai even Avhile the act was repealed, and they Avere by consequence under no obligation to use it." Lingard, in speaking of Henry the Eighth's reign, ob- serves : " The ecclesiastical constitutions -which had so " long formed ])art of the law of the land now depended " on his breath, and were execvited only by his suflerance. " The convocation, indeed, continued to be summoned, " but its legislative authority was no more. Its principal " business Avas to grant money : yet even these grants now " owed their force not to the consent of the grantors, but " to the a]i]irobation of the other tAvo houses and the " assent of the crown." He adds, in a note, " Journals " 156, 218, 277. The first instance which I find was in " 1540" (m). CoUier observes that, " The clergj'^ had' always the pri- vilege of taxing their own body. Neither from Magna Charta until the thirty-seventh of Henry VIII. is there any parliamentary confirmation of subsidies given by the clerey. For what reason this custom Avas after- Avards altered is not easy to account for. It is possible it might be for the benefit of the croAvn, and for the better securing the paA'ment of the money granted; for since the Keformation, the jurisdiction of the church Avas much sunk, and her censures less regarded. Noav the convoca- tion could proceed no further than spiritual penalties. They had no authority over the secular magistrate, neither could they command the justices of the peace to levy their subsidies by distress : and therefore that the croAvn might not be disappointed of the money granted by the convo- cation, their subsidies from the thirty-seventh of Henry VIII. downwards Avere generally confirmed by act of parliament. But that the clergy's granting the king a" benevolence Avithout such confii-mation, exceeded their (m) Lingard, Hist, of Engl. A'ol. vi., ch. v., p. 478. The Jour- nals of the Lords begin 1 Hen. 8, 1509; the Journals of the Com- mons begin 1 Edw. G, Nov. 8, 1.547; the Itolls of Parliament from 6 Edw. 1 to 19 Hen. 7, A.D. 1278—1503. See title in Index, " Convocation" with refer- ences. See Journals of the House of Lords, vol. 1, 15G, A. 1.040, ?,2 Hen. 8, item lecta est Billa Subsidii Cleri; ibid. 218, A. 1542, the Act for the Subsidy of the Temporalty, item, the Sub- sidy of the Clergy; ibid. 277, 37 Hen. 8, itevi 1« vice lecta est Billa Subsidii concessa a Clero Domino Regi A. 1545. CONVOCATION. 1^31 " power, is more than is proved. Had the convocation pretended to tax the laity, the objection had been good. " But to contest their authority for raising money upon their own body, is to cross upon custom and known privi- lege : neither could the clergy Avithout doors reckon this a grievance, for they had already given their consent for this piu'pose in their procuratorial letters ; for in this in- strument, signed and sealed by the electors for convoca- tion, they engage themselves to allow and abide by the proceedings of their clerks and proctors. Besides, there was a precedent in Queen Elizabeth's reign in defence of this practice. For in the year 1585, the convocation granted a subsidy or benevolence, and levied the money by synodical authority, without any confirmation from the parliament; neither was this at all complained of"(?i). In the second year of James the First, the House of Lords (o) received a message from the Convocation House for a conference on ecclesiastical matters ; the House of Lords declared itself Avilling to have conference with some select number of the bishops, but so as they might confer with them as lords of parliament, and not in such condi- tion and quality as they are of convocation. It appears that in 1553, the House of Commons re- solved, that any person having a voice in the Convocation House cannot be a member of this house. In the 18 Jac. 1, there was a motion that the House of Lords should not sit on Wednesdays and Fridays,- as the bishops met in convocation on those days. In 16 Car. 1, there was a motion for the adjournment of the lords in consequence of the meeting of the Convo- cation House ; it was refused, and the high court of par- liament declared not to be subordinate to any other court. The House of Lords, however, had a report made to them relative to the days when the Convocation House usvially sat. In 1702, the Lower House of Convocation sent a mes- sage of thanks to the House of Commons for the regard shown to their privileges ; and the House of Commons resolved, that it Avill upon all occasions assert the just rights and privileges of the Lower House of Convocation. In 1703, the Lower House of Convocation sent a mes- sage of thanks to the House of Commons for the attention As to confer- ence between House of Lords and Convocation. Jlember of Lower House of Convocation ineligible to House of Com- mons. As to adjoui'n- nient of House of Lords over convocation meetings. dressages from Lower House of Convocation to House of Connnons. («) Collier's Ecclesiastical His- references to Parliament, see tory of Great Britain, vol. viii., Index to Journals of the Lords, pp. 192, 193. titles "Convocation" and "Ad- Co) For this and the followincj journment of this House." G n"2 : 1932 COUNCILS OF TUE CIIURCU. Convocations in 16G1— 1G03. Speaker On- slow's remarks on tlieir cessation. given by the liouse to tlie interests of tlie clergy in respect of her majesty's bounty. In 1710, the Lower House sent a message of thanks to the House of Commons for the regard shown by that liouse to the established church, in ])romoting the scheme for building new ehurches in London and Westminster; and the liouse of Commons resolved, that it will pay all regard to the said House of Convocation in matters eccle- siastical ( //j. In 1G61, the convocation prepared the Act of Uniformity, under the direction of Sheldon, Archbishop of Canter- bury, and ]Morley, Lisho]) of AVorcester (7). \n 1663 convocation gave four subsidies to the crown, and this was the last time the clergy imposed a tax upon themselves, the agreement already referred to being effected soon afterwards (r). Speaker Onslow makes the following note to a passage in Burnet, containing the history of this transaction (5). "It was first settled by a verbal agi'ee- ment between Archbishop Sheldon and the Lord Chan- cellor Clarendon, and tacitly given in to by the clergy in general, as a great ease to them in taxations. The first public act of any kind relating to it, was an act of parlia- ment in 1665, by which the clergy were, in common with the laity, charged with the tax given in that act, and "were discharged fi'om payment of the subsidies they had granted before in convocation ; but in this act of par- liament in 1665, there is an express sa^nng of the right of the clergy to tax themselves in convocation, if they think fit : but that has never been done since nor attempted, as I know of, and the clergy have been constantly from that time charged, with the laity, in all public aids to the crown, by the House of Commons. In consequence of this (but from Avhat period I cannot say), without the in- terveuLion of any particidar law for it, except what I shall mention presentl}', the clei'gy (who are not lords of par- liament) have assumed, and without any objection enjoyed, the ])rivilcge of voting in the election of members of the House of Commons, in virtue of their ecclesiastical free- holds." " This having constantly been practised from the time it first began, there are two acts of parliament which sup- pose it now a right. These acts are, the 10th of Anne, I ( p) For all these references, see Gen. Index of the H. of C. 1547 — 1714, title " Convocation." {q) See 8vo. edit, of liurnet's History of his own Times, i. 302 —316. (r) Ibid. i. 340, 341. (s) Ibid. iv. 508. CONYOCATIOX. 1933 c. 23(f), and I8tli of Geo. 2, c. 18: and here It is best the whole of this matter shoidd remain, "without further question or consequence of any kind. As it now stands, both the church and the state have a benefit from it. Gibson, Bishop of London, said to me that this was the greatest aheration in the constitution ever made without an express law." The effect of this abandonment of tlie power of taxing Effect of aban- the clergy has operated in the peculiar religious circum- donment of stances of this country unfavourably to the meeting of vocation.^ convocation. Collier, the church historian, foresaw this effect. " Being," he observed, " in no condition to give " subsidies and presents to the crown, 'tis well if their con- " vocation meetings are not sometimes discontinued, if " they do not sink in their insignificancy, lie by for want " of a royal licence, and grow less regarded when their " grievances are offered " (?<). It may well be questioned whether this discontinuance has not worked mischief to the state as Avell as the church. Probably if convocation had been allowed to sit to make the reforms, both in its own constitution and generally in the administration of spiritual matters, Avhich time had ren- dered necessary, the apathy and erastianism which at one time ate into the very life of our church, the spiritual neg- lect of our large cities at home in England, and of our colonies abroad, and the fruit of these things, the schism created by the followers of Wesley, would not have oc- curred, and the state would have escaped the evil of those religious divisions which have largely influenced, hampered and perplexed the legislation of her parliaments and the policy of her statesmen. The long parliament of Charles the Second was dis- Convocation solved in 1678. Convocation Avas summoned with the "J^^'"'" t'liarlcs new parliament in 1680. It Avas dissolved in 1681. It and William met again in 1685, but dm-ing this troubled and eventful III. reign was not allowed to act, for James the Second feared the censure Avith Avliich it Avould have A-isited his policy. In 1689, the lords besought AVilliam "to issue forth Avrits as soon as conveniently may be for calling a convocation of the clergy to be adA'ised AA-ith in ecclesiastical matters." On November 21 (x), 1689, convocation met, and imme- diately shoAved a strong disinclination to permit Avhat Avas then being attempted, the alteration of the liturgy. (0 Chap. 31 in The Statutes («) Eccl. Ilis^t. ii. 393; Lath- llevised. bury, History of Conv. 3U'J. (.r) Lathbury, Conv. 321. 1934 COUNCILS OF THE CIIUKCII. Convocation under Queeu Anne. Under George I. A royal commission empowered the convocation to treat of altci'ations, and form canons and constitutions relative to rites and ceremonies and the ecclesiastical courts (y); but on the 2-ith of January next, the king dissolved(z) con- vocation, -without allowing them to proceed to business. Tillotson («), on the deprivation of Sancroft, became Archbishop of Canterbury. During his primacy convo- cation did no business. He died in 1694, and was suc- ceeded l)y Tenison. In 1697 appeared Atterbury's once celebrated "Letter to a Convocation ]Man"(Z'); and in 1700, after ten years of enforced silence, convocation met again (c), for the transaction of business. Tiien {d) At- terbury reprinted his Mork, correcting various eiTors in it. A question arose as to the censures of Poland's book(e), and Bishop Burnet's work on the Articles. Tlie Lower House was at this time guilty of various irregularities. The controversies earned on by Wake, Hody, Gibson, Attcrbury, have been already mentioned (f). In 1701, convocation was again assembled, and the disputes between the Upper and Lower House disfigure this period. After King William's death, and during Queen's Anne's reign, convocation sat frequently, with licence to transact business. It censm-ed Whiston's book ((7), eight judges against four thinking that convoca- tion had jm-isdiction in cases of heresy. The queen's government allowed convocation to proceed. It extracted and censured as heretical various passages in this work. This judgment was sent to her majesty, but, whether in- tentionally or not, was never confirmed by her. In 1713, convocation had royal letters of business, and considered various subjects, — penance, excommunication, forms for the visitation of prisoners, Dr. Clarke's book on the Scripture Doctrine of the Trinity, &:c. At the beginning of George the First's reign, 1715, con- vocation had letters of business, and considered, among other things, a form of consecrating churches and com- munion ])late. In 1716-7, Hoadley published a work and preached a sermon which gave rise to the once cele- brated Bangorian controversy. The action of the Lower (?/) Latlibury, Conv. 329. (z) Ibid. 332. (a) Bircivs Life of TiIlot.son, pp. cxxxi, cxxxiv, cxxxviii. (0) Lathbury, Conv. 343. (c) Ibid. 346. (fZ) Ibid. 359. (c) Christianity not ^Mysterious. (/) Vide supra, p. 192G. ([/) An Historical Preface to Primitive Christianity Revived, CONVOCATIOX. 1935 House of Convocation affronted the government, who de- termined and effected their determination to punish the church by the sup2)ression of convocation. In 1717, convocation was prorogued, and till the reign Prorogation of of her present majesty Avas never allowed to transact convocation. business — though in 1741-2 it was allowed to meet for a short time, and began to take some matters into con- sideration. It has been temperately and truly said by the last his- torian of convocation, " It is evident that no argument can fairly be derived from Hoadley's case against the revival of convocation : for the controversy, like all the rest from the year 1689, arose out of the circumstances of the country. Yet the opponents of convocation constantly refer to the contests Avhich took place, Avithout caring to ascertain their cause, and then draw their inferences against synodical action. In all these matters the views of the Lower House were generally received by the great body of the clergy : and the reason is obvious, namely, that being less dependent on the crown than the bishops, it was supposed to speak with more certainty the senti- ments of the church" (//). " Shall the presbyterian kirk of Scotland have its " general assembly, and the church of England be denied " its convocation ?" said Dr. Johnson, with characteristic indignation (z), in 1763. This manifest injustice continued till our days (h). Re-assemblmg A feeling which had existed for some time that parlia- of convocatiou. ment, in a great measure composed of members Avholly unconnected Avith and even necessarily hostile to the church of England, could not, to say the least, properly claim the sole legislation on matters relating to her doctrine and discipline, conspired Avith a general sense ofAvrong done to the church to procure, about 1840, a relaxation of the practice of immediately proroguing convocation after it (h) Lathbury, Conv. 4G3, 464. " polite ecclesiastical corapli- (i) See his biogra])licr's ac- " ments to the king; and Avhen count (Boswell's Johnson), vol. i. " tliat grace is said, retires, and 364. " is heard no more. It is, how- (/.•) "We know," writes Mr. " ever, a part of tlie constitution, Burke, " that the convocation of " and may be called out into act " the clergy had formerly been " and energy AvhcncA'cr there is " called, and sat with nearly as " occasion, and whenever those " much regularity to business as " who conjure up that spirit will " parliament itselt". It is now " choose to abide the conse- " called for form only. It sits " quence." — Letter to the Sheriffs " for the purpose of making some of Bristol. 1936 COUNCILS OF THE CIIL'UCn. Ke-asscmbling oi convocation. Eeform of convocation. Letters of busi- ness in 1872. liad made (Avliat ]\Ir. Burke calls) " some polite ecclesias- tical comjiliments to the king^." Since this period, convocation has discussed a great variety of sul)jc'cts attecting the interests of the church, and has issued valuaMe reports made by committees sitting during the ])rorogati()ns. It is true that convocation has not as yet been allowed to legislate by itself, except on the alteration of the sub- scription canons (?'), and the canon about sponsors in baptism (/i); and even upon this last suljject the legisla- tion, owing to the course taken by the ])rovince of i ork, has been ini])erfect : but it has sanctioned the new Lec- tionaiy, subsequently adopted by parliament, and advised (as will be seen hereafter) the crown as to the adoption of a part of the last lieport of the Ritual Commissioners. In 1867, a committee of convocation made an elaborate report of a proposed reform of convocation. In 1872, the crown gave to the two convocations (1) Ge- neral, and (2) Special Letters of Business. By the latter these convocations were emj)owered to consider the recom- mendations in a Report of the Ritual Commissioners. The convocations expressed their approval of some of the recommendations, and drew up a scheme of shortened services. This scheme Avas afterwards sanctioned by the statute 35 & 36 Vict. c. 35, Avhich Avill be foiuid in the Addenda to this work. The preamble of this statute recites in part as fol- lows : — " And whereas her majesty was pleased to authorize the convocations of Canterbury and York to consider the said Report of the said commissioners and to report to her majesty thereon, and the said convocations have accord- ingly made their first reports to her majesty." Letters of business were given to the convocations for considering the Prayer Book framed in 1662 {I), and sanctioned by the Act of L^niformity, 14 Car. 2, c. 4 ; and the reference to the convocations, and their approval of the Prayer Book then to be sanctioned, is recited in the preamble to that act. (/) Vide supra, pp, 4G7- 11 OU. (/•) Vide supra, p. 641, (/) Vide supra, p. 952. CONVOCATION. 1937 Sect. 3. — Forms of Procedure generally and in Upper House. With respect to the form of opemng Convocation (/) OpcBing Con- and the proceedings, especially of the Upper House, the vocation. authority of Gibson may be relied upon. On the day (he observes) prefixed in the archbishop's mandate for the Convocation's meeting, all the members cited thereby are obliged to be ready at St. Paul's for the coming of his grace.- Thus it is, and ever has been, ac- cording to Archbishop Parker's account of the established form of opening a convocation : Sciendum est, quod omnes qui authoritate reverendissimi citantur ad comparendurn coram eo in domo capitulari ecclesice cathedralis D. Pauli London. die tenentur prcejixo tempore interesse atqiie in eadem ecclesia ^ catliedrali p)r(jP.stolari adventum dicti reverendissimi. His grace (??i), waited on at his landing by all the ad- vocates and proctors of his court, is by them and his own retinue conducted to the chiu'ch of St. Paul's; at the door whereof the bishops and clergy meet and receive him, and all walk in procession to the choir. Prayers and sermon ended, he with the bishops and clergy go into the chapter-house, where the Lord Bishop of Loudon, dean of the province, exhibits a certificate that the mandate has been duly executed : Reverendissimo ac ccBteris suis coepiscopis in suis sedi- hus ordine consedentihus, ac reliquo clero circumstante, reverendus dominus episcopus London, mandatum sihi a dicto reverendissimo ad convocationem hujusmodi sum- monend. directum, una cum dehito certijicntorio super executione ejusdem introducere, ac dchita cum reverentia eidcm reverendissimo patri prcBsentare et tradere tenetur. This certificate under the episcopal seal, and directed to the archbishop, first acknowledging the receipt of his grace's mandate, recites it ; and then signifies, how by virtue and authority thereof, the bishops of his province, and by them the deans, &c., have been regularly sum- moned : that he owns himself duly cited by the authority of the same mandate : that he has intimated to them his (Z) Syn. Ang. 19, c. 2; Synod. Museum), analogous to t]ie pre- (Warren), 11. scnce of the judges in tlic House (m) The presence of the civi- of Lords. They were there to Hans, advocates in Doctors' Com- advise, not to vote. This attend - mons, was, according to Bishop ance of civilians has ceased since Andrews' IMS. note in his prayer- the abolition of the college of book (now, I think, in the British advocates. 1938 COUNCILS OF THE CHURCH. Opening convocation. As to colonial bishops. Special prnver for Convoca- tion. grace's resolution not to liold any excused but upon good reasons to be tlien and there alleged : that he has also enjoined every bishop to bring Avith him a certificate of the execution of the foresaid mandate in his own diocese : and then, adding hoAv he has executed it, particularly in the diocese of London, he subjoins a catalogue of the members therein. In like manner every bishop makes his return immediately to the arclibishop in a formal instru- ment imder his e])iscopal seal, certifying the summons of his dean, archdeacons and clergy, in virtue of his gi'ace's letters mandatory transmitted by the Lord Bishop of Lon- don, and adding their several names and surnames. By the archbishop's order the Bishop of London's certi- ficate is publicly read, and one or more officers of his coiu't appointed by him to receive in his name the certificates of the other bishops, and all the letters of proxy. Then a written schedule is put into his grace's hand, by Avhicli he pronounces all members cited, and not appearing, contumacious ; reserving the punishment of their contu- macy to another time. Reservando pcenam eorum contumacice in aliquem diem comiietcniem jiro heneplacito ipsius reverendissimi(^n). In 1853, Convocation had to consider the difficult and delicate question whether the bishops who had colonial sees, wei'e not by their patents — then supposed to have a much greater force than has since been ascribed to them — entitled to be summoned to Convocation, that is, to the L'pper House. After a learned report (Feb. 16, 1853) from the vicar general (o), the L^pper House decided against their claim. Suffi-agan bishops, appointed about eighteen years after this report, being also archdeacons, have taken their seats in the Lower House. The special prayer said by Convocation is as follows : — " Oratio pro prasente Convocatione, sive Synodo. " Domine Dens, Pater Luminum, & Fons omnis Sa- pientias ; Nos ad scabellum pedum tuorura provoluti, liu- miles tui & indigni famuli, Te rogamus, ut qui in Nomine tuo, sub auspiciis Clementissima3 Reginge Victoria, hie convenimus. Gratia tua cn?litus adjuti, ea omnia investi- gare, mcditari, tractare, & disceniere valeamus, qua hono- rem tuum & gloriam promovcant, & in Ecclesia cedant profectum. Concede igitur ut Spiritus tuus, qui Concilio dim Apostolico, huic nostro etiam nunc insideat, ducatque in) Gibson's Svnoclus Angll- {n) 8ynodalier House, except in their relation to those of the Lower House ; and when they have spoken of the acts of the president, they have equally abstained from expressing any opinion whether they may or may not require the concurrence of his brother prelates. " George Peacock, Chairman.'''' f rat rum. Character and general power under the Canons of 1C03. No power ta bind the teujporalty. Sect. 5. — General Powers and Privileges, By Can. 139 of 1603, " A^Tiosoever shall affirm that the sacred synod of this nation, in the name of Christ and by the king's authority assembled, is not the true Church of England by representation, let him be excommunicated, and not restored until he repent and publicly revoke that his wicked error." Can. 140. " AVhosoever shall affirm that no manner of person, either of the clergy or laity, not being themselves particularly assembled in the said sacred synod, are to be subject to the decrees thereof in causes ecclesiastical (made and ratified by the king's supreme authority) as not ha^'ing given their voices unto them, let him be excommunicated, and not restored until he repent and publicly revoke that his wicked error." Can. 141. " "Whosoever shall affirm that the sacred synod assembled as aforesaid was a company of such per- sons as did conspire together against godly and religious professors of the Gospel, and that therefore both they and their proceedings, in making of canons and constitutions in causes ecclesiastical by the Icing's authority as aforesaid, ought to be despised and contemned, the same being rati- fied, confirmed, and enjoined by the said regal power, su- premacy and authority, let them be excommunicated, and not restored until they repent and publicly revoke that their Avicked error." Lord Coke says, a convocation may make constitutions by Avhich those of the spiritualty shall be bound, for this. COXVOCATIOX. 19^9 tliat they all, citlier hj representation or in person, are present, but not the temporalty (p). And in Mattlieios v. Burdett, in 1 Anne, it was said, that, in the primitive church, the laity were present at all s}Tiods. When the empire became Christian, no canon was made without the emperor's consent. The emperor's consent in- cluded that of the people : he having in himself the whole legislative power, which our kings have not. Therefore if the king and clergy make a canon, it binds the clergy in re ecclesiasticd, but it does not bind laymen ; they are not represented in convocation, their consent being neither given nor asked {q\ And in Co.vs case, in 1700, by Wright, Lord Keeper, the canons of a convocation do not bind the laity without an act of parliament (r). And, finally, in the case of Croft v. Middleton, in 10 Geo. 2, it was determined by the unanimous resolution of the Court of King's Bench, that such canons do not pro- pria viffore bind the laity {s). The convocation can do nothing against the law of the Xor against land, for no part of the law, be it common law or statute |l^e law of the law, can be abrogated or altered without act of parlia- ment (^). And by 25 Hen. 8, c. 19, it is provided, " That no canons, constitutions, or ordinances, shall be made or put in execution within this realm, by authority of the convo- cation of the clergy, which shall be contrariant or repug- nant to the king's prerogative royal, or the customs, laws, or statutes, of this realm." This statute was declaratory of the old common law(2^). By 24 Hen. 8, c. 12, it is enacted, " That in all causes Appeal to the testamentary, matrimonial, or of tithes, depending in the convocation, ecclesiastical courts, which shall touch the king, the party grieved may ap])eal to the upper house of convocation being then convocate by the king's writ, or next ensuing, within the ])rovince, so that such appeal be taken l)y the party grieved within fifteen days next after judgment given, and that determination shall be final, so as that the matter so determined shall never after come in question and de- bate, to be examined in any other court." But it has been determined that this enactment is re- (;)) 12 Co. 73. SMjim, p. 107G. (7) 2 Saliv. 412. (/) 12 Co. 73. (r) 1 P. Wms. 32. (it) Ibid. 72; 1 Bl. Com. 279. (v) Str. 10.0(>;2 Atk. 650; vidt 19G0 COUNCILS OF THE CHURCH. Continuance. Privilege of free coming to convocatiou. Trial of heres7. ]icalc(l, and that all appeals from the ecclesiastical courts lie to the crown in council (r). The convocation usually continues (luring the time of parliament, but, as Dr. Warner observes, the parliament and convocation are sei)arate bodies, independent on one another, and called tooethcr l)y different writs, and there- fore the dissolution of jiarliament docs not necessarily, or in any respect, dissolve the convocation, so that they may continue to sit longer than the parliament, if the king pleases (:i-). After the clergy had furnished a tenth to Henry the Sixth (y), they obtained the statute of 8 Hen. 6, c. 1, which enacted, " Because the prelates and clergy of the realm called to the convocation, and their servants and familiars that come with them to such convocation, often- times be arrested, molested, and inquieted ; our lord the king, willing to provide for the security and quietness of the said prelates and clergy, at the supplication of the same ]:)relates and clergy, and by the consent of the great men and commons of the realm, hath ordained and esta- blished, that all the clergy hereafter to be called to the convocation by the king's writ, and their servants and familiars, shall for ever hereafter fully use and enjoy such liberty or defence in coming, tarrying, and returning, as the great men and commonalty of the realm, called or to be called to the king's parliament, do enjoy, and were wont to enjoy, or in time to come ought to enjoy." And in the journals of the House of Lords, we find several applications to their lordships for redress in cases where this liberty of the convocation clergy has been invaded, which their lordships have fonnerly granted. There prevailed at one time considerable doubt whether the convocation might or might not try a clerk for heresy. It may be said that, even without considering the effect of the Clergy Discipline Act, 3 & 4 Vict, c. 86, s. 23, this doubt is now practically resolved, and that convocation has no such power (z). (v) Ex parte Bishop of Exeter, 15 Q. li. 52; IOC. li. 102; 5 Ex. 030; 14 .Tur. 443, 480, 522, 87C>; 19 L. J. (N. S.) Q. B. 27'J; C. 1'. 200; Ex. 376. (x) 2 "Warn. 611, 612; an.l 8 Collier, Eccl. Hist. 182, 183. Vide Hiipra, p. 1042. {y) Collier, Eccl. Hist. iii. 351. (z) See Ex parte Bi>). The great office of chancellor was always holden by ecclesiastics before the reign of Henry the Eighth, and during ]>art of his reign ; and the proceedings of the Court of Chancery were founded upon the basis of the civil and canon law (b). Remnants of the authority of the church in charitable Existing in- and educational trusts still remain. stances of The gifts or bequests for the furtherance of religious ^lipisdictioiu olvjects are, according to English law, charitable, and liable to the provisions of the Mortmain Acts. The bishops still have the power of licensing midAvives, and the Archbishop of Canterbury of conferring medical as Avell as other degrees. The education of the people is and probably always will be much guided by the teaching of the clergy under the inspection of the diocesan. (■«) Walter's Kirclienrcclit, Von stalten, § 337, u. s. w. der besoiulcren Kircliliclicn An- (JA V'tdr siqtra, pp. 1075, 1076. G iv 2 19G4 THE CHUECH IN HER RELATION TO CHARITIES, ETC. Severing of connection in modern times. Subject oE part. The effect of modem legislation, however, has been to sever the necessary connection between the church and education. The Toleration Acts have taken away the penalties Avhich might at one time have been inflicted on teachers who did not profess obedience to the church. The canons that require licence from the ordinary for every teacher were not binding on the laitj, and have become almost obsolete as to the clergy. Finally, in regard to the four great classes of teaching institutions, the University Commission Acts, and The University Tests Act, ] 87 1, as to the universities ; The Public Schools Act, 1868, for the larger schools ; The Endowed Schools Act, 1869, for the middle class of schools ; and The Ele- mentary Education Act, 1870, for the primary schools, have either caused or recognized with a legislative sanction an increased separation between the church and education in this country. Such instances of ecclesiastical influence as still remain, which show themselves not in the mode of teaching so much, as in the nature and government of the teaching institutions, will be treated of in the following pages. ( 1965 ) CHAPTER II. CHARITABLE TRUSTS. Sect. 1. — Generally. 2. — Laio of Moi'tmain. Sect. \.— Generally. The connection of the church with chanties, which was instances of at one time productive of most important results in the connection "" ■ " - . . - _ - ._^ . between chi and charities. application of general principles to both, still remains and ''^*'^^^''" church operates in some material cu-cumstances. These may thus be classified ; — (A.) The established chm-ch itself is a charity, and aU religious uses are charitable ones, and as such subject to the general law of charities, — including especially therein the law of mortmain. (B.) The authorities of the church have certain jurisdic- tion over charities. (C.) The church has, in some cases, recognized the status conferred on its members by their position in a charitable corporation. (D.) Questions relating to charities have frequently been decided according to the principles of civil or ecclesiastical law. (E.) By the law of the land the church has certain peculiar privileges in relation to charities. (A.) The scope and meaning of the word "charity" wiiat are as a legal term has been clearly laid down by judicial charities. authority. Charity may, " in its widest sense, denote all the good " affections men ought to bear towards each other ; in its " most restricted and common sense, relief of the poor." But the legal sense of the term is neither of these. " Here its signification is derived chiefly from the Sta- " tute of Elizabeth. Those ])uq)oses are considered " charitable which that statute enumerates, or Avhich by 19GG THE ciiurxii ix iter relation to charities, etc. " analogies are deemed within its spirit and intend- " ment" (a). This statute of Elizabeth (43 Eliz. c. 4) provides for tlic issuing of certain commissions to inquire into and reform abuses and neglects of charities. Its active portion is practically obsolete, being now replaced by the institution of a permanent charity commission ; but technically its machiueiy might still, if expedient, be put in force ; and in any case the act remains as a declaration of the legal sense of the word charity. 43 Eliz. c. 4. By sect. 1 of this act, reciting as follows : — " Whereas divers lands, tenements, rents, annuities, profits, heredita- ments, goods, chattels, money, and stocks of money, have been heretofore given, limited, appointed, and assigned, as well by the queen's most excellent majesty, and her most noble progenitors, as by sundiy other well disposed per- sons , some for relief of aged, impotent, and poor people ; some for maintenance of sick and maimed soldiers and mariners, schools of leaniing, free schools and scholars in universities; some for repair of bridges, ports, havens, causeways, chiu'ches, sea banks, and highways ; some for education and preferment of orphans ; some for or towards relief, stock, or maintenance for houses of coiTection ; some for marriages of poor maids ; some for supportation, aid, and help of young tradesmen, handicraftsmen, and persons decayed ; and other for relief or redemption of prisoners or captives ; and for aid or ease of any poor inhabitants con- cerning payments of fifteens, setting out of soldiers, and other taxes ; which . . . nevertheless have not been employed according to the charitable intent of the givers and founders thereof, by reason of fi^-aud, breaches of trust, and negligence in those that should pay, deliver, and em- ploy the same :" for remedy thereof it is enacted, that it shall be lawful for the lord chancellor or keeper of the great seal of England, and for the chancellor of the duchy of Lancaster, for lands Avithin the coimty palatine of Lan- caster, " from time to time to award commissions . . to the bishop of every several diocese respectively, and his chancellor (in case there shall be any bishop of that diocese at the time of awarding the commission) and other persons of good and sound behaviour ; authorizing them thereby, or any four or more of them, to inquire as w^ell by the oaths of twelve lawful men or more of the county, as by all other good and lawful Avays and means, of all and sin- (o) Sir William Grant in Moricc v. Bixliop of Durham^ 9 Yes. 405 (a.d. 1804). i CHARITABLE TRUSTS. 1967 gular such gifts, limitations, assignments, and appoint- ments aforesaid, and of the abuses, breaches of trusts, negligences, misemployments, not employing, concealing, defrauding, miscon verting, or misgovernment, of any lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, or stocks of money, heretofore given, limited, appointed, or assigned, or which hereafter shall be given, limited, appointed, or assigned, to or for any the charitable and godly uses before rehearsed. And after, the said commissioners, or any four or more of them (upon calling the parties interested in any such lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money, and stocks of money), shall make inquiry by the oaths of twelve men or more of the said county (whereunto the said parties interested may have their lawful chal- lenges) : and upon such inquiry, hearing, and examining thereof, set down such orders, judgments, and decrees, as the said lands, tenements, rents, annuities, profits, goods, chattels, money, and stocks of money, may be duly and faithfully employed, to and for such of the charitable uses and intents before rehearsed respectively, for which they were given. Which orders, judgments, and decrees, not being contrary to the orders, statutes, or decrees of the donors or founders, shall stand firm and good, and be executed accordingly : until the same shall be undone or altered by the lord chancellor, or lord keeper, or chancellor of the county palatine of Lancaster respectively, u]3on complaint by any party grieved to be made unto them." By sects. 2, 3, it is provided that this shall not extend to any lands, tenements, rents, annuities, profits, goods, chattels, money, or stocks of money, given or which shall be given to any college, hall, or house of learning within the universities of Oxford or Cambridge, or to any of the colleges of Westminster, Eton, or Winchester ; or to any cathedral or collegiate church ; or to any city or town cor- porate, or to any the lands or tenements given to the uses aforesaid, within any such city or town corporate, Avhere there is a special governor or governors appointed to govern or direct the same ; or to any college, hospital, or Iree school, which have special visitors, governors, or overseers appointed by their founders. By sect. 4 it is provided also, that this shall not be prejudicial to the junsdiction or povv'cr of the ordinary ; but that he may lawfully, in every case, execute and pci- form the same, as though this act had not been made. The term charity, as constiaied by the statute of Eliza- chnrch a beth, has, it has been said, been always liolden to extend charity. VJGS THE CIIUKCII IN TIER RELATION TO CHARITIES, ETC. Clmrc'h a charity. Privileges of charities. Control of charities by Ciiurt of C'hancery. to the clnircli and to rcH<2:ious ])urposcs. Spocificially, bequests lor the use or oniaiucnt of a parish cliiircli, for stipends to curates, singers and organists in churches, to societies for the spread and advancement of rehgion, either in England or abroad (i), have all been holden to be charit- able legacies (c). It should be noticed that while gifts for the repair of the chui'ch or ornaments in it are charitable, a gift for the re})air of a grave in the churchyard and not in the church, is not charitable (r/). The peculiar principles of law which govern charities may be classified as follows : — (1.) Gifts to charities are especially favoured by the law, and every attempt is made to effectuate the charitable intention of the donor (e). This takes place in several ways : The courts supply any formal defects in the gift or assurance, or in the trustees who are to be the chaimels of the gift (/). The courts seize on any intention of a charitable gift, however vague and uncertain the gift may be, and appro- priate it to charitable purposes of some kind or other — those charitable purposes to be afterwards worked out by the court or the trustees {(/). Charities are exempted ft'om the general rules of the law against perpetuities ; and, where it is for the benefit of the charity, it will rather be construed as perpetual than otherwise (A). One who has endowed a charity with lands is not allowed to defeat his gift by an attempted sale to a pur- chaser for value under 27 Eliz. c. 4 ({). (2.) Charities are under the especial control of the Court of Chancery, which fi'ames schemes for their admi- nistration, directs the funds where the object of the founder has failed to be bestoAved on the nearest resembling cha- (h) The Society for the Pro- pagation of the Gospel is within tlie law as to charities; Cheater V. Chester, L. K., Weekly Notes (1871), 158. (c) See cases cited in Tutlor's Law of Charitable Trusts, pp. 10, 11; und Attorneij-Gencird v. Bishop of Chester, 1 Bro. C. C. 444; Iloarr. v. Osborne, L. \i., 1 Eq. 585; Fish v. Attorney -Gene- ral, 4 Eq. 521; Re Miujuirc, 9 Eq. G32. ((/) Hoarev. Oshorne, L. R., 1 Eq. 585; Re Rigley's Trusts, 30 L. J., Chan. 137. (e) Mogrjridge v. Thackwell, 7 Yes. 30. (/) Duke's Charitable Uses, pp. 84, 85, 115; Tudor's Law of Charitable Trusts, p. 37, and cases there cited; Sayer\.So- I'atiou. Decisions ac- cording to ecclesiastical law. Privileges of the church. Thus, a fellowslilp in a college has always Lcen con- sidered as conferring a title to receive holy orders (/?). The headship of any college or hall in cither of the uni- A'ersities or of certain other charitable foundations is treated as a benefice for certain purposes in the statutes against pluralities (<7"). The chapels of the colleges at Oxford and Cambridge, and prol)ably of some other colleges and some hospitals, arc considered as chapels dedicated and allowed by the ecclesiastical laws of this realm within the meaning of Canon 71 of 1603: they are exempt from the ordinary parochial jurisdiction, and in some cases even from the ordinary ejiiscopal jurisdiction. By recent statutes the same has been declared to be the law concerning the chapels of public schools, endowed schools, and many other charitable foundations (r). (D.) Questions relating to charities have frequently been decided according to the principles of ci%'il or eccle- siastical law. This would naturally be the case, because they alwa^'s came more especially under the control of the courts of equity, Avhose origin Avas ecclesiastical, and which always referred freely to the civil law in cases where the maxims of their OAvn courts Avere silent (s). The decisions on analo- gous cases in charities proper and in ecclesiastical matters often throw light u])on each other ; and are frequently re- ferred to in this book. In questions of visitation and of the powers and duties of visitors, the laAv is generally similar for charities proper and for ecclesiastical cases {t). So it is for elections into corporate bodies and for the action of such corporate bodies, as in colleges on the one hand and deans and chapters on the other (?<). (E.) By the laAv of the land the church has certain IK'Culiar ])rivileges in relation to charities. It was laid down by Lord Eldon, C, " that if land or " money were given for the purpose of building a church " or a house, or otherwise for the maintaining and propa- " gating the worship of God, and if there were nothing " more ])rccise in the case, this court would execute such a " tnist, by making it a provision for maintaining and pro- " pagating the established religion of the country" (i). (p) Vide supra, pp. 110, 120. (q) Vide supra, pp. 1 1 70, 1 177. {r) Vide supra, Tart VII., Cliap. III., Sect. 5, pp. 1835, 183G. (s) Vide supra, I'art IV., Chap. I., p. 1075. (t) Vide supra, Part IV., Cliap. IX.; infra, Part VIII., Chap. IV. {u) Vide supra. Part II., Cliap. IV. (.r) Attorney -General v. Pear- son, 3 Meriv. 409. CHARITABLE TRUSTS. 1971 By tlie first Cliaritable Trusts Act{y) it is provided as follows : " Xothiug- herein contained shall diminish or de- Reservation of tract from any rio-ht or privilege which by any rule or prac- ^'e"*f ^"^^ tice of the Court of Chancery, or by the construction of law, chmch of now subsists for the preference or the exclusive or special England with benefit of the Church of Ensrland, or the members of the ''f^l'^^.'' ^^ . , ^ . cii-iritiGS. same church, in settling any scheme for the regulation of any charity, or in the appointment or removal of trustees, or generally in the application or management of any charity." The position and claims of the church in respect to schools, more especially grammar schools, is treated of more folly afterwards {z). In favour of the church also, gifts for religious purposes. Superstitions not being those of the Church of England, were at one "^^*' time held unlawful as " superstitious uses." By successive statutes, however, the endowments of Protestant Dissen- ters, Koman Catholics and Jews have been rendered law- fid («), exce])t in cases specified in the following paragraj)h. And it would seem now as if those uses only which come under the provisions of 23 Hen. 8, c. 10, 1 Edw. 6, c. 14, and'l Geo. 1, st. 2, c. 50, being principally foun- dations for providing masses or prayers for the dead and supporting particular religious anniversaries, and not being ]n-otected by 2 & 3 AVill. 4, c. 115, which extends only to lioman Catholic schools and places for religious Avorship, education and charitable purposes (6), Avere suj)erstitious. By 23 & 24 Vict. c. 134, s. 1, special provision is made, in the case of Roman Catholic charities, for separating the superstitious from the lawful part in certain mixed cha- ritable benefactions made by persons of that church, and for apportioning the whole sum, and applying the portion be- queathed to superstitious uses itpon other lawful trusts for the benefit of persons professing the Roman Catholic re- ligion. Sect. 2. — 3Iortmain. The legal personality of the church, and its consequent capacity of inheriting (c), is a principle incoiijorated into the jurisprudence of all Clu'istian coiuitries under all forms (?/) 16 & 17 Vict. c. 137, s. 4G. (r) Fifty years after tlie civil (z) Vide infra, Part VIII., establishment of tiic church by Cliap. V. Constantino, Valentinian tlic (i') 1 Will. & Mar. c. 18; 53 elder enacted the prototype of (Jeo. 3, c. 100; 2 & 3 Will. 4, mortmain laws restraining, c. 115; 9 & 10 Vict. c. 59. among other regulations, the (Ij) West V. Shuttleicoiih, 2 M}'. prodigality of bequest by women & Ke. 081. to the church: and twenty vears 1972 THE cnuRCii in her relation to charities, etc. of ecclesiastical government (r/). The restrictions under which this capacity of inheritance is placed in this country remains to be considered. Blackstonc on Blackstone in the eighteenth chapter of his first book this subject. Qj^ ^]jg Kights of Persons, says(e), " AVe before observed that it "svas incident to every corj)oration, to have a capa- city to purchase lands for themselves and successors ; and this is regularly true at the common law {f). But they are excepted out of the Statute of Wills {erson or persons as shall be assigned by the foiuider, his heirs or assigns, by writing under his or their hand and seal, not being rejiugnant or contrary to the laws and statutes of this realm. And by another clause in the same statute, it shall be lawful to the founder, his heirs or assigns, upon the death or removing of any head or member, to ])lace one other in the room of him that dies or is removed, successively for ever. And by 31 Eliz. c. 6, if any person shall take any re- ward for nominating to an hospital, his place (if he shall have any) in such hosj^ital shall be void. And any person receiving any reward for resigning his place in any such hospital, shall forfeit double the sum, and the person for whom he resigns shall be incapacitated. Poor rate. It was said by Holt, Chief Justice, that hospital lands are chargeable to the poor as well as others ; for no man by appropriating his lands to an hospital, can discharge or exeni})t them from taxes to which they were subject before, and throAv a greater burden upon his neighbours (Z). But in the case of St. Luke's Hospital for Lunatics, it was determined, that the said hospital was not charge- able to the parish rates ; and that in general no hospital is so, with respect to the site thei'cof, except those parts of it Avhich are inhabited by the officers belonging to the hospital, as the chaplain, physician, and the like in Chel- sea Hospital. And these apartments are to be rated as single tenements, of which the said officers are the occu- piers. The reason why the apartments in this hos23ital, of the sick or mad persons, are not to be rated, is, that there are no persons Avho can be said to be the occupiers of them, and it is upon the occupiers of houses that the rate is to be levied. For it would be absurd to call the jioor objects so with respect to this purpose ; and the Com. 475. The riglit of election cannot, by a bye-law, exclude an may also be regulated by a bye- integral ])art of the body at large law under the existence of a from voting; nor can they impo.se cliarter or prescription thus: if a qualification on the electors, the power of making bye-laws contrary to the original constitu- originally is in the &of/y a< /ffrr/e, lion of the corporation; 4 Co. they may delegate the right of 77, The case of corporations, 4 election to a .se/ec< hmJif, which Inst. 48; 3 Burr. 1827, Rex v. thus becomes the representative Spencer, common comicilman of of the whole community, for the Maidstone; 4 Burr. 2515, Hex v. pmi^ose of election: but if the ZTcac/, freeman of Ilelston. power of making bye-laws is (/) 2 Salk. 527, vested in a select body, thsy HOSPITALS. 1987 lessees of tlie hospital in trust for the charitable pm-poses to which it is applied cannot with any propriety be con- sidered as the occupiers of it ; nor, lastly, can the servants of the hospital, who attend there for their livelihood ; and no other persons, said Lord Mansfield, Chief Justice, can with any shadow of reason be considered as the occupiers of it (w). By 38 Geo. 3, c. 5, an act for raising the land tax, it is Land tax. provided, by sects. 25 — 29, that the same shall not extend to charge any hospital, for or in respect to the site of such hospital, or any of the buildings within the walls and limits thereof: or to charge any of the houses or lands, which on or before March 25, 1693, did belong to Christ's Hospital, St. Bartholomew, Bridewell, St. Thomas, Bethlehem hos- pitals in London and Southwark ; or to charge any other hospitals or alms-houses, for or in respect only of any rents or revenues, which on or before March 25, 1693, Avere payable to the said hospitals or alms-houses being to be received and disbursed for the immediate use and relief of the poor of the said hospitals and alms-houses only. Provided, that no tenants that hold any lands or houses, by lease or other grant from any of the said hospitals or alms-houses, do claim any exemption ; but that all the houses and lands which they so hold, shall be rated for so much as they are yearly worth, over and above the rents reserved and payable to the said hospitals or alms- houses, to be received and disbin-sed for the immediate support and relief of the poor of the said hospitals and alms-houses. Provided, that nothing herein shall be construed to extend to discharge any tenant of any of the houses or lands belonging to the said hospitals or alms-houses, who by their leases or other contracts are obliged to pay all rates, taxes and impositions whatsoever ; but that they shall be rated, and pay all such rates, taxes and impo- sitions. And if any question shall be made, how far any lands dr tenements belonging to any hospital or alms-house, not exempted by name, ought to ]je assessed and charged, the same shall be determined by the commissioners upon the appeal day. And there is, further, a general clause, that all such (ni) Rex V. Occupiers of St. Munday, 1 East, 584; Rex v. Luke's Hospital, 2 Burr. '1053. Watwii, 5 East, 580 ; Rex v. ^cc Rex y. InJiabitants of St. Bar- Truatecs of Teidceshury, 13 East, (holomcics, 4 Burr. 2435; Rex v. 155. 1988 THE CIIUUCH IN Ui:U KELATION TO CHAUITIES, ETC. Land tax. Hospitals en- dowed since the 9 Geo. 2, c. :}(;, l)y statute. The hospital of St. Ca- therine. Dealings with estates. lands, revenues, or rents ])elonglniT to any hospital or alms-house, or settled to any charitable or pious use, as ■were assessed in the fourth year of William and jMary, shall be liable to be charged : and that no otlier lands, tenements, or hereditaments, revenues or rents whatsoever, tiian belonging to any hospital or alms-house, or settled to any charitable or pious uses, as aforesaid, shall be charged. 10 Geo. 4, c. 2o, s. 37, empowers any person to leave lands or monies to Greenwich Hospital, founded ])y Wil- liam III. 10th September, 1695, Avhen an annual sum was granted to it by the Treasury, and the king was emjiowered to grant part of the manor of Greenwich to its use, and afterwards the rents of the forfeited Derwentwater estates were allotted to it. ]\Iany statutes have been passed re- lating to this hospital. See the last, 32 & 33 Vict. c. 44. The last statutes relating to Chelsea Hospital are 21 & 22 Yict cc. 18, 21. 51 Geo. 3, c. 105, empowers any person to bequcatli money or lands to the Royal Xavy Asylum. 3 & 4 AA^ill. 4, c. 9, s. 1, grants a similar exemption from the mortmain statutes to the Seaman's Hospital Society, except that its lands are restricted to the yearly value of 12,000/. 4 Will. 4, c. 38, accords the like jirivilcge to vSt. George's Hospital at Hyde Park Corner, limiting the yeai'ly value of the lands which its governors are empowered to receive to 20,000/. 9 Geo. 4, c. 40, gives similar powers to the visitors of the county lunatic asylums, with no limitation as to the yearly value of the lands. 13 Geo. 2, c. 29, enabled the governors of the Found- ling Hospital, incor}3orated by charter, to hold lands to the value of 4,000/. a year. The hos])ital of St. Catherine was founded by charter of Queen Eleanor, dowager of Henry III. confirmed by charters of Edward II. and Edward III., which reserved the appointment of a master to the queen and all suc- ceeding queens of England (m). As to dealings with their estates, hospitals founded under the provisions of 39 Eliz. c. 5, are, by sect. 2 of that act, prevented from making any grants or leases exceed- ing the number of twenty-one years, and that in posses- sion, and then only when the accustomed yearly rent, according to that reserved for the last twenty years, be (m) See Chief Justice Ilale's remarks on this institution, ^^/t/ns v. Montague, 1 Cas. in Chan. 214; Dugdale's Monasticon, vol. ii. 460; and Att.-Gen. v. Sir J. Butler, Skinn. 414. HOSPITALS, 1989 reserved : and, by sect. 6, there is a general restraint against alienation. Hospitals, moreover, come within the restraining pro- visions of the several acts of EKzabeth — 13 Eliz. c. 10; 14 Ehz. c. 11; 18 Eliz. c. U(n). Since the passing of these acts, it is very doubtful whe- ther a coiporate hospital can alienate lands for more than twenty-one years or three lives — even with the consent of the Charity Commissioners. The point was raised, but not decided, in Governors of St. Thomas^ Uosjntal v. Charing Cross Railway Com- pany (o). " Ecclesiastical hospitals" and " the masters thereof" are specially exempted from the pro\dsions of 5 & 6 Vict, c. 108, 14 & 15 Vict. c. 104, 17 & 18 Vict. c. 116, 21 & 22 Vict, c, 57, and 28 & 29 Vict. c. 57, the recent acts relating to leases and sales of ecclesiastical property. (k) Vide supra, Part V., Eliz. c. 11, s. 3. Chap. VI., Sect. 1; et vide 14 (o) 1 John. & Ilemra. 400. 1990 THE CllUKCll IN IIEK KELATION TO CTIAIUTIES, ETC. CHArTER ly. COLLEGES AND UNIVERSITIES. Changes in relation to church. Position of this In the last edition of Dr. Burn's Ecclesiastical Law, coii- j) I^^n * '", sidcrable space was devoted to tlie Universities of Oxford „ork. find Cambridge and the colleges therein, on account of their intimate connection Avith tlie church. Since that time great changes have been made in the law, and much has been done to divest the universities, more particularly, but also the colleges to a certain extent, of the distinctive ecclesiastical features which they formerly possessed. Again, while the colleges still retain much of their ecclesiastical origin or position, their influence on the university has been largely diminished ; individuals and societies have been allowed to enter into relations with the xmiversity apart from the colleges, and the imiversities are no longer mere aggregations of colleges and halls. jNIany of these changes have been directly effected by express parliamentary legislation; some have been Ijrought about by the ordinances of the commissioners appointed by statute ; many more by the action of the universities them- selves, with the new powers and imder the new influences conferred or ins]:)ired by parliamentary legislation. The commission for " enlarging the powers of making " and altering statutes and regulations now possessed by " the University of Oxford and the colleges thereof, and " for making and enabling to be made further provision for " the government and for the extension of the said univer- " sity, and for the abrogation of oaths now taken therein, " and otherwise for maintaining and imj^roving the disci- " ])line and studies and the good govermnent of the said " University of Oxfoi'd and the colleges thereof," Avas ci-eated bv 17 & 18 Vict. c. 81. Its powers were con- firmed and extended by 19 & 20 Vict. c. 31, 20 & 21 Vict. c. 25, and 23 Vict. c. 23. The acts for the Cambridge commission are 19 & 20 Vict. c. 88 and 22 & 23 Met. c. 34. The college of St. INIary of AVinchestcr, at Winchester, is included under the Oxford Act; and that of King Henry the Sixth at Eton, imder the Cambridge Act. These colleges have, however. University commissions. COLLEGES AND U^IVERSITIES. 1991 since been dealt Avitli fiirtlier as schools under the Public Schools Act, 1868 (31 & 32 Vict._ c. 118) (a). As to Oxford, provision is made for abolishing the old committee of heads of colleges (called " Hebdomadal Board"), with whom it rested to bring every matter before the governing body of the university ; and for establishing in its stead an hebdomadal council, in which the colleges as such are only very slightly represented, the residue of the representation being given to the members of the general governing body Avithout relation to colleges (i). As to both universities, directions are given for the establishment of private halls or hostels, to be licensed by the university, to Avhich mem- bers of the university may attach themselves, Avithout be- coming members of any college (c). This last provision has recently been supplemented by statutes of the univer- sities, allowing matriculation to persons without requiring them to become members of any college or hall or private hall, and making provision for their residence and separate good government. The general result of these provisions has been to create Effect on a large and increasing class of persons, whose main or only universities, status is an university one, quite apart from the colleges, and to reduce the colleges to somewhat of their old position as societies in, but not constituent parts of, the university. As regards the ecclesiastical aspect of the luiiversities, the principal direct changes made by the University Com- mission Acts were, by abolishing the oaths and subscrip- tions, most of them of a religious nature, formerly required at matriculation and on taking the degree of bachelor in any faculty except that of divinity (rZ). This provision has since been extended by the Universities Tests Act, 1871 (34 & 35 Vict. c. 26); and the result is that the univer- sities and all the degrees except divinity degrees are now open to persons Avho are not members of the church. By the Universities Tests Act, 1871, reciting as 34 & 35 Vict. follows:— c. 26. " Whereas it is expedient that the benefits of the uni- versities of Oxford, Cambridge, and Durham, and of the colleges and halls now subsisting therein, as places of re- ligion and learning, shoidd be rendered freely accessible to tlie nation : And whereas, by means of divers restrictions, tests, and (a) Vide infra, Part A^III., 26, 27 ; 19 & 20 Vict. c. 88, Ch. V. ss. 23, 24, 25,-26. (i) 17 & 18 Vict. c. 81, ss. 5, (d) 17 & 18 Vict. c. 81, ss.43, 6. 44; 19 & 20 Vict. c. 88, ss. 45, (<•) 17 & 18 Vict. c. 81,.ss. 25, 46- 1992 THE CHURCH IN IIEIl KELATIOX TO CHARITIES, ETC. Persons taking lay academical degrees or holding lay academical or collegiate offices not to be required to subscribe any formulary of faith, &c. disabilities, many of lier majesty's subjects are debarred from the full enjoyment of the same : And whereas it is expedient that such restrictions, tests, and disalnlities should be removed, under ]H-oper safe<;uards for the maintenance of religious instruction and ■worship in the said luiiversities and the colleges and halls now sub- sisting within the same :" It is enacted as follows : — Sect. 3. " Xo person shall be required, upon taking or to enable him to take any degree (other than a degree in divinity) within the Universities of Oxford, Cambridge, and Durham, or any of them, or upon exercising or to enable him to exercise any of the rights and privileges Avhich may heretofore have been or may hereafter be exercised by graduates in the said universities or any of them, or in any college {g) subsisting at the time of the passing of this act in any of the said universities, or upon taking or holding or to enable him to take or hold any office (A) in any of the said universities or any such college as aforesaid, or upon teaching or to enable him to teach Avithin any of the said universities or any such college as aforesaid, or upon opening or to enable him to open a private hall or hostel in any of the said universities ibr the reception of students, to subscribe any article or for- mulary of faith, or to make any declaration or take any oath respecting his religious belief or profession, or to conform to any religious observance, or to attend or abstain from attending any form of pubhc worship, or to belong to any specified church, sect, or denomina- tion ; nor shall any person be compelled, in any of the said universities or any such college as aforesaid, to at- tend the public Avorship of any church, sect, or denomi- nation to Avhicli he does not belong : Provided that — (1.) Nothing in this section shall render a layman or a person not a member of the Church of England eligible to any office or capable of exercising any right or privilege in any of the said universities {(l) " College," by sect. 2, in- cludes Christ Church and any liall not being a private hall under 17 & 18 Vict. c. 81, or a hostel under 19 & 20 Vict. c. 88. (/t) I3y sect. 2, "Office" in- cludes every professorsliip other than professorships of divinity, every assistant or deputy pro- fessorship, public readership, prelectorship, lectureship, liead- ship of a college or hall, fellow- shij), studentship, tutorship, scholarship, and exhibition, and also " any office or emolument not in this section specified, the in- come of which is payable out of the revenues of any of the said universities, or of any college •within the said universities, or which is held or enjoyed by any member as such of any of the said universities, or of any col- lege within any of the said uni- versities." COLLEGES AXD UNIVEKSITIES. 1993 or colleg-es, which office, right, or privilege, under the authority of auy act of parhameut or any statute or ordinance of such university or college in force at the time of the passing of this act, is restricted to persons in holy orders, or shall remove any obligation to enter into holy orders -which is by such authority attached to any such office. (2.) Nothing in this section shall open any office (not being an office mentioned in this section) to any person who is not a member of the Church of England, Avhere such office is at the passing of this act confined to members of the said church by reason of any such degree as aforesaid, being a qualification for holding that office." Sect. 4. " Nothing in this act shall interfere with or Act not to affect, any further or otherwise than is hereby expressly interfere with enacted, the system of religious instruction, worship, and tiished'^system discipline which now is' or which may hereafter be law^fully of religious established in the said universities respectively, or in the instruction, colleges thereof or any of them, or the statutes and ordi- ji^J-ipiiQe"' nances of the said universities and colleges respectively re- lating to such instniction, worship, and discipline." Sect. 5. " The governing body of every college subsist- Religious ing at the time of the passing of this act in any of the said instruction, universities shall provide sufficient religious instruction for all members thereof in statu lyapillari belonging to the Established Cluu'ch." Sect. 6. " The morning and evening prayer according Morning and to the order of the Book of Common Prayer shall continue evening prayer to be used daily as heretofore in the chapel of every college [j^r/to^OTe ^but subsisting at the time of the passing of this act in any of an abridgment the said universities ; but notwithstanding anvthing con- may be used tained in 14 Car. 2, c. 4, or in this act, it shall be lawful ^J J^'J^stof for the visitor of auy such college, on the request of the governing governing body thereof, to authorize from time to time, in body. writing, the use on week days only of any abridgment or adaptation of the said morning and evenuig prayer in the chapel of such college instead of the order set forth in the Book of Common Prayer." (e) Sect. 7. " No person shall be required to attend any Attendance at college or vmiversity lecture to which he, if he be of full lectures, age, or, if he be not of full age, his parent or guardian, shall object upon religious grounds." As to the colleges, the only direct change in the nature Effect on col lc*^tis (OTliLs provision is not affected ment Act (.35 & 36 Yict. c. .'i'*). ° by the Act of Uniformity Amend- Vide. sect. 7, and " Addenda." P. VOL. II. ' 6 31 1994 THE CIIUKCII IX IIKK IJELATIOX TO CIIAKITIES, ETC. Effect on colli-yrcs. Ecclesiastical elements in the universi- ties. (~)ther uni- versities. of scciilnrizinj^ tlic.sc inslllutioiis made by tlie University Coinmissiou Acts was in iiivinti,' lliem power, with certain sanctions, to separate ecclesiastical l)eneticcs Avliicli had become united to the headship or to any particular member- ship in the college, and to sell the advoAvsons and apply the proceeds of the sale for the benefit of the officer who would otlierwisc have holden the benefice (./), so that such officer need now no longer be an ecclesiastical person; and also in enabling them, Avith the sanction of the visitor, to a])ply funds holden in trust for the purchase of advowsons, " to " other ])in'poscs for the advancement of religion, learning " and education within the college" (//). Indirectly, the commissioners, in the exercise of the poAvers given them by parliament, made ordinances throw- ing open a vast number of fellowships and other emolu- ments, formerly holden by clerical persons only, to laymen ; and, by consequence, largely diminished the ecclesiastical element till then dominant in the governing bodies of the different colleges. The colleges, however, still remain for very many pur- poses ecclesiastical, as will be seen in reading the last act. The only ecclesiastical elements that seem to be left in the universities are the divinity degrees and certain pro- fessorships of divinity ; the puljlic ]irayers, sermons and religioiis ceremonies, and the examinations in certain matters of religion at present enjoined by the internal statutes of either university ; certain positions and privi- leges accorded by the Church to graduates of the univer- sities ; and the right of presenting to livings whereof the advowsons are in the hands of papists (A). Of the other imiversities in England (/), that of London has been always a purely secular institution. The Uni- versity of Durham Avas originally founded in 18.32 out of lands belonging to the dean and chapter of Durham. It Avas and still is subject to the jurisdiction of the bisho]5 as A'isitor, and the dean and chajiter as governors, and had once a specially ecclesiastical character (/f). By 24 & 25 Vict. c. 82, " An Act for making jiroA-i- " sion for the good government and extension of the " University of Durham," commissioners Avere appointed (/•) 3& 4 Vict. c. 113, s. G9; 19 & 20 Vict. c. 31, s. 4; c. 88, s. 28; 23 & 24 Vict. c. 69, s. 7. (f/) 20 & 21 Vict. c. 25, s. 3. (k) Vide supra, pp. 394-400. (0 By 35 & 3G Vict. c. 53, any application for a charter for a colle^^'e or university may be referred to a committee of tlie rri\y Council, and tlie applica- tion, A\-ith the report of the com- mittee thereon and the draft charter applied for, is to be laid before both Houses of Parliament for tliirty days before the re2)ort is submitted to the crown. (/.') 2 & 3 AVill. 4, c. xix., pri- vate; 3 & 4 Vict. c. 1 13, ss. 37, 44. I COLLEGES AXD UNIVERSITIES. 1995 with full powers for making ordinances of all kinds in relation to the university and its colleges, so long as such ordinances were not inconsistent with the above-mentioned act of Will. 4, and the charter granted to the imiversity on the 1st of Jime, 1837 ; " but the admission of persons " other than those belonging to the Established Church " to the emoluments of the university shall not be deemed " inconsistent with the said act or charter" (sect. 7). Durham is expressly made subject to the Universities Tests Act, 1871. In this chapter colleges (/) will be generally treated of, Subject of such mention only being made of the universities (?«) of ^^'''^P*^'"- Oxford and Cambridge as seems required by their present ecclesiastical position and their relation to the colleges (n). (/) "Collegia" were objects of suspicion to the Iioman law, " propter conjuration om in corpus et alia quj«(lam incoinmoda," and tliey required a special permis- sion of the senate, or, in later days, a constitution of the I<]m- peror, such as sanctioned " Col- legia in academiis literatorum liominum," " Sodalitia negotia- torum aut artificum," " Ambu- baiarum collegia, pharmacojiola?," Hor. Sat. I. 1, '2; the " illicita sodalitia" Avere the subjects of the " Lex Licinia," see Calvin, Lex. jurid. tit. " Collegium," and Cicero's Orations, " Pro Syllu," " Ero Murpena," " Pro Planco ;" and " De ambitu," Dig. iii. 4 ; xlvii. 22; 1. 1, 4, 5, G, 8, 9 ; Cod. X. 40-08; xi. 29—39. See also Mackeldey's Lchrbuch des Po- mischen Kechts, part 1, p. 227, and Savigny's System des Po- mischen Rechts, vol. iii. See Ayliffc's Hist, of Oxf. for a defi- nition distinguishing our colleges from those mentioned in the Poman law, vol. ii. part i. ch. i. The only college of recent foun- dation is Kcbie College, incor- porated by Royal Charter in 1870. (m) The word " universitas " was applied to schools in the sense which it bears in the Ro- man law, namely, to signify a corporation. During the middle ages, it G M was composed of very dissimilar elements in different places: Thus at Bologna we find " uni- versitas scholarum," and at Paris " universitas magistrorum." The modern sense of an assemblage of all the sciences could not have prevailed at an epoch when there existed, in close vicinity, an uni- versity of jurists and an uni- versity of artists. It was not, indeed, till the twelfth century, tliat the word " imiversitas " was used to denote a gathering to- gether of students and teachers in one spot. " Scholar " or " studia " were the appellations of earlier times, and in the older Italian writers, the universities of I'adua and Bologna are desig- nated as " Studium Patavinum — Bononiense." (ii) The following works may be consulted upon the subject of this chapter: — For Universities in General. Meiner's CJeschichte der hohen Scluilen. 4 vols. 8vo. Got- tingen, 1802. Conringius de Antiquitatibus Acadcmicis. Gottingen, 1739. Ittcrus de Honorilnis sive Gra- dibus Academicis, 1G98. Meudo de Jure Acadomico. Fol. Lugd. 1GG8. Savigny, Geschichte des Ro- mischen Rechts im Mittel Alter. Vol. iii., p. 412, &c. 9 1996 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Tliomassini Vetuset Nova Eccle- siae Disciplina, tit. Universi- tates — Scliolai— Studia. Lyiidwood's Glosses upon tlic Constitutions " De ^Slagistris," cap. "Quia;" and " De Ila-rc- ticis," cap. '■ FinalitiT," &c. and the Canonists generally. Fo7- English Universities. The King's Visitatorial Power asS'crted. ByNathl. Johnston. Lond. 1G88. 4to. Brief Historical Notices of the Interference of the Crown, &c. By G. E. Corrie. Camb. 1839. 8vo. Die Englischen Universitaten. Von V. A. Iluber. Cassel, 1839. Origin of Universities. By II. Maiden. Lond. 1835. Oxford. A. "Wood's History. By Gutch. Oxf 1786. 3 vols. 4to. History of the Universitv of Ox- ford. Oxf 1773. 1 vol. 4to. The Ancient and Present State of the University of Oxford. By John Aylifte. Lond. 1773. 2 vols. 8vo. (This contains much of the law about I ni- versities and Colleges.) Ingram's Memorials of Oxford. Oxf. 1837. 3 vols. 8vo. (A very accurate and beautiful book.) The Account of Pythagoras' School. (By J. Kilner.) Fol. Privately printed. The Life of AV. Waynflete, founder of Magdalen College. Bv R. Ciiandler. Lond. 1811. 1 vol. 8vo. Tlie Life of W. of Wykeham, founder of New College. By R. Lowth, Bishop of Oxford. Oxf 1777. 1 vol. 8vo. Lives of the Founders of B. N. . College. By R. Churton. Oxf 1800. 1 v6l. 8vo. Life of II. Chichele, founder of All Souls' College. By (). L. Spencer. Lond. 1783. 1 vol. 8vo. Vita H. Chichelaj. Ab Arth. Duck. Oxon. 1G17. 1 vol. 4to. "Wharton's Life of Sir T. Pope. Smith's Annals of l^niversity College. Newcastle, 1728. In 8vo. Statuta Univ. Oxon. 17G8. 1 vol. 4to. Camhridge. Fuller's History of the Uni- versitv. Dyer's History of the University of Cambridge. Lond. 1814. 2 vols. 8vo. Privileges of the Uni- versity of Cambridge. Lond. 1824. 2 vols. 8vo. Masters' History of C. C. College. By John Lamb. Camb. & Lond. 1831. 1 vol. 4to. A Collection of Letters, Statutes, &c. from the MS. Library of Corp. Christ. Coll. Edited by John Lamb. Lond. 1838. 1vol. 8vo. Hist. Coll. Jesu Cantab, a J. Shermanno. By J. O. Halli- wcll. Lond. 1840. 8vo. Scotch Universities. Reports of Royal Commissioners, (Very valuable.) 1832—1837, et seq. Bown's History of the Universitv of Edinburgh. Edinb. 1817. 2 vols. 8vo. Foreign Universities. Ilistoria Univ. Parisiensis, &c. Auth. C. E. Bulieo. Paris. 1G()5, ot seq. 6 vols. fol. (A most important work ) Academia Parisiensis illustrata. Auctore Joan. Lannoio. Paris. 1683. 2 vols. 4to. Storia deir Universita di Roma, &o. Phili])po M. Renazzi. Roma, 1803. 4 vols. 4to. Die Prcussischen Universitaten. Von I. F. "W. Koch. Berlin, 1839. 8vo. For others, see the list in Meiner's Geschichte der hohen Schulen, at the end of first and second vols. COLLEGES AXD UNIVERSITIES. 1997 According to tlie generally received opinion (o), the Origin of first authentic records of the universities of Oxford and o'^^^'h'^/"'^ Cambridge belong to the twelfth century (77): they seem in their origin to have been voluntary associations (y) of the clergy, for the purpose of promoting the study of Avhat- ever arts and sciences were then known to western Europe. Limited in the first place, probably, to one or two branches of knowledge, they gradually came to include distinct Faculties (r) of arts, medicine, law and theology, — the Faculties. latter being justly considered the ultimate object of the human intellect. By a similar process, the voluntary ac- (0) It has been said (note {m) ), that it is not easy to assign a particular date to the origin of the common \ise of the word " University," in the restricted sense which it now bears. But it seems certain that the titles of " Scholfe " and " Studia " are more ancient, and that the term " Universitas," according to the older civil and canon law, merely denotes a collective or corporate body, without respect to the ele- ments of which it is composed, or the objects for which it exists. Discussions upon the use of the word will be found in the general works already referred to. See also Calvin, Lexicon Juridicum, in verb.; Co. Lit. 250 a; Lyndwood, pp. 285—299, ed. Oxon.; Bodin de Repul)lica, lib. 3, c. 7, and particular illus- trations, 3 Wilkins' Concilia, p. 144; Rymer's Fcedera (Hague edit), vol. ii. pt. 1, pp. 5 — 139 — 150, &c.; Riley, Plac. 534; Ay- liffe's Present State, &c. vol. ii. app. p. xvii. {p) By the edict of Charle- magne, schools were attached to every cathedral and monastery {vide infra, Part VIIL, Chap. V.). Thomassin, pai-t 2, 1. 1, c. 101, s. 1, remarks, " Ruente Caroli Magni stirpe et imperio coUapsadilapsa- que sunt et liaec clericorum et vita^ communis collegia, &c.detluxisset clerus in altissimas ignorantiaj tenebras, nisi imminenti ei cala- mitati obviassent publicae scholaj et universitates;" and in another place he uses the remarkable words " in eo quasi cleri vesti- bule " for the schools of the cloister; and sect. 3, " nee tamen dissimulabimus ab Episcopis ipsa prima jacta fundamenta scho- larum publicarum et universita- tum hac extrema retate quam ab Hugonis Capetii regno auspica- mur;" and again, sect. 7, " Nee plura accumulari necesse jam est ut constet universitates ab iis manasse scholis qua3 in Ecclesiis ante cathedralibus effulserant," &c. Abelard, in the letter con- taining the history of his misfor- tunes, sjieaks more than once of schools " juxta claustrum eccle- sije Parisiensis." {q) Thomassin says, that the only "seminaria" existing a.d. 1000, wei*e " coenobia mona- chorum vel canonicorum regu- larium aut universitates," part 2, 1. 1, c. 102, s. 1. See also Dyer's History of the University of Cambridge, pp. 138 and 55. A mother cathedral church with its officei's and dependent churches, and a mother abbey with its dependent religions houses, was called '' universitas." Calvin, in his Lexicon Juridicum (citing the canon law), says, " Col- legium, corpus, universitas, con- ventus idem saspe significant." (r) Buheus defines "Facultas" " Corpus et sodalitium plurium magistrorum certse alicui disci- plina3 addictorum." Hist. Univ. Paris, t. i. p. 251. 11)98 TIIK CllUUCII IX lIEIi IJKLATION TO CIIAUITIES, ETC. Degrees. Clerical education. knowlcdgiucnt of incrit passed into lonnal recognitions of it by Degrees; Avliile the Church, "within whose bosom, and from tlie concourse of Avhose members the institutions had spruno; up, silently incorijoi'uted them into her system, subjected them to lier disci] )line, and gave authority and imiversal reception to their honorary distinctions (5). By these means clerical education, Avhich long (t) before this ])eriod had been confined to cathedi'al and monastic schools, received a new direction ; monasteries made pro- vision by which their younger members might ])rosecutc their studies to greater advantage under the more famous teachers in the universities ; ])relates and other benefactors gave stipends for assistance of the secular students ; and while the former class were supported and superintended within seminaries dependent upon the mother house, the latter associated together in small bodies, and Avcre domi- ciled during their studies in " Ilostelries" (ii), or " Halls," under the superintendence of particular teachers. It Avas soon found, however, that uncertainty in the means of support, and the Avant of domestic discipline, exposed those of the students, Avho Avere not under the protection of the monastic system, to distress on the one hand, and irregularity of conduct on the other ; and hence the origin of the present colleges (lo). (s) TIic catholicity of the de- grees of any uiiivcrsit}^ are said to have been the results of the confu-mation of themljy the I'ope. Bee Mahlen's Univ. p. 21. {i) See note (/y). («) Ilospitia — Aulaj. {w) The Avord " Collegium," like " Universitas," is in itself merely a corporate title; and thus in our earlier law books, " College and Common Seal " arc not unfrecpiently used to denote incorporation. " Hospitium," or " Hostelry," was a term a]i])lied to the burgher's houses in Avhich students lodged ; Lynd. 285. " Aula " meant a locality wholly in possession of the students, or, as Lyndwood (ib.) calls it, " Ilabitaculum Scholarium;" and this might be occupied either by an unincorporated body, as is still the case in Avhat are called " Halls " at Oxford, or by a " Collegium," or incorporated company. In the latter case, the body Avas designated either from its i)lace of abode (as various colleges are at Cambridge), or (as is more common at Oxford) by its title as a corporation. This circumstance is Avell illus- trated in the foundation deed " Aulai Annunciationis Beatic Mariai in Cantab.," Avhich runs " et volumus quod dictum colle- gium vocetur Collegium Annun- ciationis B. M., et domus quam inhabitabit dictum collegium no- minetur Aula Annunciationis 15. J\I. in Cantab." Gough's MSS. Camb. 23, in Bib. Bodl. Aula, however, is not the most ancient name for the residence of collegiate bodies in the uni- versities; " Domus Scholarium de Merton," and " Peterhouse," being earlier. The influence of the corporate character has also had much to do Avith the titles of individual members. The term " Socius," or fellow, being relative to COLLEGES AND UNIVERSITIES. 1999 lege. Of those institutious, in tlicir complete and formal clia- Walter do racter (whatever merely eleemosynary provisions might Meiton's col- before have been made), there seems every reason to be- lieve that Walter de jMerton (x), who Avas several times chancellor of England, and bishop of Rochester, was the first founder. But even he, in his first establishment of the body which for six hundred years has perpetuated his name, did not bring it into that mature form which he afterAvards gave it. In the year 1264, he organized a body of students, to Avhom he assigned revenues for their support, and a capitular house for their occasional meeting, and for the residence of certain of their officers ; but this mansion was not even in the neighbourhood of any university, and his intention was, that his band of scholars should Avander about in search of knowledge wherever it might best be obtained: — " Oxon. vol alibi uhi studium. viyeve contigcrit.''^ Within ten years after, however, he, by tAvo successive bodies of statutes, organized and settled it Avithin the UniA-ersity of Oxford, reputed to l^e in those days, after Paris (y), " the second school of the church." He did the collective existence, whereas " Scholaris " is the general Avord in the older statutes. The distinction, (although by no means strictly observed) be- tween " Collegium " and " Uni- versitas," as a corporate title, is said to consist in the " vita com- munis," or living together in one house, Avith a common table, &c., being an incident of the former. Endowment, too, is sometimes mentioned as a feature (although not a distinctive one) of a col- lege. In another sense, besides that of mere incorporation (in which it is often applied alike to regular and secular bodies, as in Bede's Eccl. Hist. 1. 3, c. 5; Leland's Collect, ii. p. GO; Mon. Angl. i. 270 «, &c.), the Avord collegium seems to have distinguished the societies of the secular from those of tlie monastic clergy (see Tanner's Pref. to Notitia Monas- tica, p. 15) ; and it is in this general sense that it is used in 37 Hen. 8, c. 4, and others of the Dissolution x\.cts. In tliis sense " Collegium," and " Ecclesia Collegiata," are often used in- differently; and, in fact, several of the colleges in Oxford and Cambridge are, properly speak- ing, " Collegiate Churches," i. c. these colleges are annexed to parochial or other churches. There is a valuable gloss upon the use of these, and other similar w^ords, in Lyndwood, ed. Oxon. p. 14, verb. " Capitulis." (.'•) AValter de ]\Ierton's monu- ment calls him the founder by example " omnium, quotquot ex- tant, collegiorum." (?/) Tlie great celebrity of the scliools of theology at Paris in- duced the ])ope to found univer- sities Avithout professors of the- ology, " ut ad Parisiensem un- dique concurreretur, qucc Eiiropa: itmi siifllccre vidt:hatui\^^ c. 101, •s. 4, part 2, 1. 1, of Thomassin. Tlie effect of the University of Paris on our universities is de- monstrated with ranch learning by Huber, in his work " Die Englisclien Universitaten." 1 vol. 8vo. (1830). 2000 TIIK CIIURC]! IN IIKU KKLAI ION Tf) CHARITIES, ETC. Walter de Mcrton's col- lege. Colleges before and since the Reformation. Relation of colleges to universities. not, however, jji'efer tlic ])la('e of his college to its purpose, but still couteniplatod aiul allowed for the possibility of its })eino- removed elsewhere. And this allowance of removal from Oxford is still a |)ortion of his statutes. By the rules of his institution, careful provision was made for divine worship, for internal discipline, and for the management of its pro])erty. He contemplated it as tlie means of sup]>orting a ])ious and industrious body of students, from theii* first instruction in grammar, up to the time of their becoming fitted for the highest offices of the church, unless they should ]3refer a life spent in contem- plation and learning Avithin its walls. For the acquisition of classical knowledge, he provided within the college itself; and for instruction in the higher branches, he re- lied upon the academical institution within which he had placed it. This college, which may be rather called a private means for profitably using the university, than a constituent por- tion of it, Avas the model u]ion which the earlier colleges, both at Oxford and Cambridge (such as Pcterhouse and Oriel), were formed. Those of later date, but before the lleformation (such as New College, jNIagdalen, and the like), were based upon the same principles, but included more largely the liturgical character of other ecclesiastical foundations, and in their scholastic provisions w^ere more expressly connected with the vmiversity system in Avhich they were placed. Those subsequent to the Reformation, again, are in their constitution more strictly academical, and more expressly related to the universities ; but all, from the first to the last, are in themselves substantive in- stitutions, having their separate corporate rights, their distinct revenues, and a system of internal discipline, over which the universities have no control. It is evident, then, that according to the original idea of such colleges as are treated of in this chapter (2), they have no more necessary relation to the universities in which they stand, than that which arises from the iimiates of the former being students and graduates in the latter. A more in- tricate state of things grew up in the course of time ; — the universities consisting, with the exception of those members of it who had collegiate or monastic protection, of an un- endowed, and, in many respects, ill-organized, body of teachers and hearers, were subject to diminution, sometimes almost to extinction, from the frequent ravages of disease, or the distresses consequent upon civil and ecclesiastical (2) Ayliffe's Hist, of Univ. of Oxf., vol. ii. part ii. ch. 2, p. 21. COLLEGES AND UNIVERSITIES. 2001 disorders, till at length the old "hostelries" or "halls" became deserted, and (with some exceptions at Oxford) dis- appeared ; and while the monastic seminaries were swept away, together with their present foundations, the colleges becoming more numerous, and even those which were origi- nally designed only for persons on their foundations having for the most part admitted independent members, they gradually absorbed the great body of students, and became by those means co-extensive with the universities them- selves. It was natural that under these circumstances the heads of the colleges should acquire corresponding aca- demical authority, and that the new statutes of the univer- sities should be framed with a view to the existing state of things. And thus the systems both at Oxford and Cam- bridge assumed till recent legislation an appearance calcu- lated to make even well informed men confuse the two classes of institutions, and to account the colleges merely as constituent parts of the universities. Very important distinctions, however, always existed between them. The laAvs which govern the corporate existence, the pro- important dis- perty, and the privileges, incidental to these two classes tinctions be- of institutions, are in many points (particularly in that of t'^^'^^'^ t^^™- visitation) distinct : and it is perfectly conceivable, either that the colleges should be swept away and the universities continue, or that the universities should be suppressed, and the colleges remain as independent seminaries. To state exactly wherein the connection («) now subsists, would occupy a space inconsistent Avith the limits of this Avork. The object of the Avriter Avill have been attained, if these brief notices should pi-ove sufficient to obviate a common misapprehension, and to guide others in a more detailed inquiry. Before the Reformation, colleges in this country Avere Colleges considered, as is evident from the earlier statutes of Eliza- ^^cfore the Keformation (o) One point of connection is scription is the Corporation Qf spin iia well illustrated in the following the City of London {vide Dong, passage from Kyd on Corpora- 374, 359), and of many other tions, Introd. p. 35: — cities and toAvns ; and the gene- " There are some towns in ral corporate bodies of the iini- Avhicli there are several incorpo- versities are constituted nearly rated companies of trades, which in the same manner; for every liave so far a connection Avith the member of the general corpora- general corporation of the town, tion must be a member of some that no man can be a freeman one or other of the colleges or of the town at large, and conse- halls Avitiiin the university." By quently a member of the general the Avord " member," as la'st used, corporation, Avithout being pre- is meant only a person liaving viously a freeman of some one his name on the books, not a of these companies. Of this dc- corporate member. Oxford. 2002 THE CIILUCIl l.\ IIKU KKLATION TO CIIAIIITIES, ETC. butli {/>), ami some ol" the cases in the Year Book (c), as C()r|)ui-at ions of" an ccelesiaslical character ; and even since tliat period, they appear to be of a mixed lay and spiritual nature : for instance, the archbislio])s of Canterbury have successfully claimed a qualified right of visitation over them (d), and several of the canons (c) of IGO.'J directly relate to their dress and discii)line. IJut, since the epoch of the Iveformation, the doctrine of the common law is. But since lay that, generally, colleges in the university are lay corpora- corporatious. tj^.^g ^^^^ although the mendjcrs of the college may be all spiritual. Christ Cb inch, But the dcau and chapter of Christ Church in Oxford is a s{)iritual, and not a lay body (r/). It has, however, been dealt Avith as a college under the recent acts (//). By sect. 5 of 3 & 4 V^ict. c. 113, the first vacant canonry in Clu'ist Church is to be annexed to the Lady jNIargaret's professorship of divinity in the university, in lieu of the canonry in Worcester cathedi-al, now annexed thereunto ; and by section 6 of the same statute, two canonries are to be annexed to two new j^rofessorships intended to be founded by her majesty in the University of Oxford : namely, those of Pastoral Theology and Ecclesiastical History. Section 7 provides that, otherwise than as above specified, the act shall not ajiply to Christ Church, which is in fiict the only cathedral in England or AVales which, since the passing of this act, will retain its ancient complement. Christ Church has also been generally excluded from all the other acts relating to cathedrals. The rectory of Ewclme was separated from the Begins Professorship of (h) 13 Eliz. c. 10; 43 Eliz. c. 4. cision rests, to say the least, upon (c) See8 Ass. 29, 3(J (Edw. 3), very uncertain grounds; l)ut it where convent, hospital and col- would recpiire a lull examination lege, are treated of as being in of the arguments to point this the same category. In this case out in a satisfactory manner; and the ordinary, as visitor, deprived it will therefore be enough here the master of an hospital, and a to direct attention to the ques- writ of assise was. refused by the tion, which is still of importance judges. — " L'ordinaire de lieu lui in points bearing upon the legal vialt et ]mr dt'faut quil truuva tii incidents of the colleges. See lu)/ il III]/ deprivay also Mutthnos v. Burdctl, 2 Salk. ((/) Vidr post. G72; Ait. -Gen. v. ISt. Cross Hos- (e) IG, 17, and 30. pital, 17 Ueav. 435. (/) The legal doctrine, that (7) Fishers case, Buid). 209. colleges are lay cor|)orations, (A) A special act regulating depends mainly upon the case of the constitution of tiic governing Dr. Patrick, which is reported body and other matters relating in Raym. & Keble. It is clear to Christ Church has since been that in regard to colleges foinided passed, 30 & 31 Vict. c. 76. before the lleformation, this de- COLLEGES .VXD UNIVERSITIES. 2003 Divinity and Canoniy of Christ Cliurcli by 34 cS; 35 Vict. c. 23. The universities from time to time have had ample Charters privileges granted to them by sundry charters of the kings granted to the of this realm (i). Particularly, divers ancient charters ""/.li^.lucJ'L were granted to the University of Oxford, by King John, statute. King Henry the Third, King Edward the First, and King Edward the Third : with power of coercion of the con- tumacious, by imprisonment and expulsion ; and also by the censures of excommunication, indulged to them by the popes of Rome (especially Innocent the Fourth), and by the archbishops of Canterbury, the pope's legates. The University of Cambridge had the like privileges granted to them of ancient times ; but most of their old charters Avere lost in the wars of King Henry the Third, or perished in the burning of the town in the time of King Kichard the Second. AVhicli king renewed or granted further privileges to both the imivcrsities ; as did also divers other succeeding princes of this realm (A). These powers and jurisdictions were confirmed to the universities by 13 Eliz. c. 29. By which blessed act (as Lord Coke calls it(Z) ) all the coui-ts, franchises, privileges, and immunities mentioned in any letters patents, to either of the said universities, that they might prosper in their study with quietness, are established and made good and effectual in the law, against any quo ivarranto, scire facias, or other suits, or any quarrel, concealment, or other opposition Avhatsoever {m). (/) Amonj^.st otlicrs, tliat of College, foimdcd 1817, for the returning two members to par- education of candidates fur holy liament. orders in the four northern dio- (/.:) Duck. 347, 348. ceses. — St. David's College, (/) 4 Inst. 227; Hale's Hist. Lampeter, Cardigan, incorpo- Com. Law, 33. rated by royal charter in 1822, (m) Besides the Colleges and for the education of candidates Halls which belong to the Cni- for orders in the diocese of versifies of Oxford, Cambridge St. David's, &c. ; visitor, Lord and Durham, the following insti- Bishop of St. David's. See sect, tutions have at various times 72 of 3 «& 4 Vict. c. 113. — Dulwich been established as corporate College, founded by Edward bodies, bearing a similar title, Alleyne, 1G19. See Att.-Gcn. v. in England : — King's College, Dulwich Colleyc^ 4 Beav. 255. — London, incorporated by royal Gresham College, founded by charter; patron, the Queen; visi- Sir Thomas Gresham, 1581, for tor, the Archbishop of Canter- lectures to be read during term bury.— University College, Lon- time in the Royal Exchange. — don, founded 182G. — Sion Col- East India College, visitor, lege, founded 1G30; visitor, the Bishop of London. In Ireland Bishop of Loudon.— St. Bees' there is the University of Dublin, 200-t J 111, ( III UCII IN IIKll KKLATIOX TO CIIAUITIES, KTC. Internal t;f>- vernnicnt of collcjrcs. Power of governors of colleges. Consent of fellows. College laws. l>y 17 y the civil and canon law, a person cannot be a Hot belong to feUoAv in two colleges at one and the same time, Avhich is two colleges • " ' to be imderstood Avhen the studies and exercises of one college do thwart and im])each his studies and exercises in the other, and especially if these different colleges have no subordination the one to the other ; for it may happen that lie may be summoned at one and the same time to these different colleges, and he cannot serve both." A mandamus lies to compel the warden of a college to affix the common seal of the college to an answct of the fellows, &c. in chancery, contrary to his oyvn. separate answer put in (ii). A mandamus has been refused for the deprivation of the head of a college, or for the expulsion of a fellow, or for the restoration of a felloAv (o). The various University Commission Acts gave full powers to the colleges with the consent of the commissioners, or for the commissioners in their default, to prepare new codes of statutes ; and these powers were exercised in almost every case. By these acts it was declared that every oath not to disclose matters relating to the college when required to do so by lawful authority, or to resist or im])ede an^- change in the statutes of the college, was illegal, and should not be fur the future administered (p). Visitor. Besides the authority within the colleges themselves, in all charitable foundations some one must be Visitor (q). If no one be ajipointed by the founder of the charity, he himself during his life is visitor, and after his death the (n) Rex v. Windham, Co'^-p. {q) Comyn's Digest, tit. Visi- 377. tor, anil see Tudor's Law of (o) Vidr infra, pp. 2010, 2011. Charitable Trusts, pp. Ill, 399. {]>) 17 ). summary kind (1828). (]f) Re.v V. Bixhnp f,f Chester, 2008 Tin: ClUnCII in IIKK KKLAIIoN to tllARITIES. ETC. Visitor. " viiiitoi-, "wliicli need nut be expre.^sed ; us the jKJWcr of susjicnsion and deprivation foi' contumacy and other rea- sonable causes, Sec, for tliat his visitatorial power cannot be su])j)orted without the power of such and the like cen- sures, and ])enal sanctions." — And a<;ain : "■ Althou<4h a visitor may be restrained, by the par- ticular laws and statutes of the founder, as to visit ex officio but once in two, three, four or five years ; yet he has always a constant and standing authority given to him by the laws of the land, to hear and determine all particular differences whatsoever, that may arise in the college, whereof he is visitor, during the intermediate time of his general visitation ; from Avhose sentence there lies no appeal to any court of law, but only to the (jueen in coun- cil as aforesaid. Diocesan bislio])s can visit but once in three years, yet their courts arc always open to hear and determine quarrels and offences, and all particular com- ])laints. And the like it is with visitors, Avhose general authority is restrained in ]^oint of time ; and it would be a vain and absurd thing to suppose that the intention of the founder, or his laws, was that such disorders and causes of complaint should not be examined and redressed, in the intermediate time of a general visitation," &c. (6). He also observes that our colleges were of ecclesiastical origin, and that it was the object of their founders to make their institutions " as much ecclesiastical as in them lay, as a])pears by the style and dispensations of their statutes, which follow the model of the canon law, and for the most part square the best with it"(c). Appointment The appointment of a visitor may be made in any in- of a visitor. tcUigible form of words Mliich the founder chooses to adopt ; " visitationem illi commendaimis''' are the words by which the Bishoji of Ely is a))])ointed visitor of St. John's Col- lege, Cambridge {(I), and it has been laid down that " a power to interpret and determine doubts upon the statutes, given in clear words, may itself constitute visitatorial power" (e). A \nsitor may be either general or special. He is presumed to be the former, unless there are express words which abridge his authority (/). The founder may also appoint different visitors for different pur])oses(^). {h) Ayliffe's Hist, of Univ. of (/) Sec on tliis point the Oxford. 84. cases of Rex v. Bluhop of Wor- (c) Ibid. 51; see also p. 57. cester, 4 M. & S. 421 (1815); ((/) Green v. Rutherford, 1 St. John's College v. Todiinjton, Ves. 4G5. 1 liiiri"- 200; Philips v. Bury, 2 (e) By Lord Eldon, Ex parte T. R. 349. Kirkhy Ravemworth Hoapital, 15 ({/) See also St. John's College Ves-. 317. V. TocUngton 1 Uinr. 200; Att.- COLLEGES AND UNIVERSITIES. 2009 There can be no question that tlie visitor possesses a judi- cial power as to explaining the true intent and meaning of the statutes Avhich govern the foundation he xasits. A reference to the reported cases will show that a close adherence to the directions given bj the founder has in- variably guided the exercise of this power of intei'preta- tion(/<). It has been said that the \isitor has a judicial j)Ower; but the better opinion seems to be, though no great authority can be cited for it, that he has no ler/isla- tive authority. It would appear, from all analogy, that colleges must have a power to enact bye-laws (z), not at variance with the laws of the land or their fundamental statutes, for their own government: how far, or whether at all these ai-e subject to the revision of the \asitor, is a consideration of much difficult}-, and Avhich has not, I believe, yet received any authoritative decision. It is now clear law, as has" been already remarked, that Visitation in in the case of a private eleemosynary foundation, if no *^° crown, special visitor be a])])ointcd by the founder, the right of visitation on the failure of his heirs devolves upon the king, to be exercised by the great seal (A). And wh<3re the heir of a founder of a charity is visitor, and has been found a lunatic by inquisition, the right of visitation during his lunacy devolves on the crown (/). The king's courts will not interfere where there is a visitor specifically ap- pointed unless it be clearly shown that he has not juris- diction. The leading case on this subject is Philips v. Gen. V. Middleton, 2 Ves. 323; Hex V. Bishop of Ely, 2 T. R. 335; Ex parte KirJ>ij Ravensworth Hospital, 8 East, 221. (/() Tlie cases of Catherine Hall, 5 Russ. 85, by Lord Elrlon; of Green v. Rutherford, 1 Ves. 4G2, by Lord Hardwicke and Sir J. Strange; Queen's Collcffe case, 5 Russ. 05, by Lord Lyndhurst ; DoxDninrj College case, 3 My. & Cr. G42, by Loi'd Cottenbam. (/) As to the power of a cor- poration to enact bye-laws, see 1 JJIack. Com. 476; Blakcmore v. Glamorganshire Canal Company, 1 M. & K. 163; Rex v. Gray's Inn, 1 Doug.354; Rcxv.Benchfrs (f Lincoln's Inn, A h. & C. 858; and an Essay on tlie Legislative Power of Colleges, Law Maga- P. VOL. II. zine, No. XL. (/.•) Rex V. St. Catherine's Half, Cambridge,4:T.'R.233; and^??» ^. 12 Mod. '232; Ex parte Wrang- ham, 2 Ves. jun. 609, Lord Eldon; case of two Fellowships (f New College, 3 Atk. 667; Lord Hardwicke, 1 Burr. 203; case of Queen's College, Jac. 19; S. C. Jac. 47 ; cases of Grantham School and Riclunond School, cited 17 Ves. 499 ; and in Re Garstang School (1 August, 1829), 7 L. J. 169, 172, for cases where up to that time the great seal exercised the crown's visita- torial power. il) Att.-Gen. v. Di.xie, 13 Ves. 519. (7h) Lord Raym. 5 ; 4 Mod. 106; Skin. 447; 2 T. R. 34G. G N 2010 THE CllUltClI IN IIEU RELATION TO CHARITIES, ETC. case. Etj-y. Chan- In Rex v. Cli(nic('lhn', cS*'-. af the University of Ca/n- cfllor, S,c- t>f hri(I(/c{^n), \\\Q Court of" (^110011'^ liencli took cog^nizaTicc of proceedings in the conn^-ej^al ion of" the University, and after much argument and deliheration issued a mandamtis to the iniiversity to restore Kichard Bentlcy to his aca- demical degrees, of -wliicli lie had been de])rived by a jiroceeding in the nature of one for contempt ; but this decision ^vas founded on the gromid tliat it ajijwared that tlie xmiversity had no visitor according to tlie i-ecord. Dr. M'allier's A maiulamus Avas directed to Dr. Kichard ^^^alker, vice- master of Trinity College in Camljridge (o), reciting tlic statutes of the college, and that thereby it was ordained, that in case the master of the said college should at any time be examined before the visitor, the Bishop of Ely, and be lawfully convicted before the said visitor of dihipi- dation of the goods of the college, or violation of the statutes, he should without delay be deprived of the office of master by the vice-master of the said college, and that Avithout appeal : and that a cause of office was lately de- pending l)eforc Thomas Lord Bishop of P^ly, then and still visitor, at the ]n'omotion of liobert Jackson, clerk, one of the fellows of the said college, against Dr. Kichard Kentlev, master of the said college, for dila])idation of the goods of the said college, and violation of the statutes, wherein several articles were exhibited for that jiurpose, and that a prohibition, and afterwards a consultation, was awarded upon the said articles to the said Bishop of Ely the visitor: and that the said bishoj), having considered the evidence on both sides, did adjudge, as visitor aforesaid, that the said Dr. Kichard Bentley was guilty of dila])idation, and violation of the statutes, and thereby incurred the penalty of deprivation of his office ; Avhich said sentence is still in force ; and that it is the duty of the said Kichard Walker, as vice-master, to execute the said sentence, by dej)riving the said Dr. Kichard Bentley of his office of master; and that the said Di-. AValkcr, having had due notice of the sentence, and being duly required to deprive him, neglects and refuses so to do : the writ therefore commands him without delay to deprive the said Dr. Bentley of the said office of master of the said college, or to show cause to the contrary. Dr. AValker returns, that the statute appointing the Bishop of Ely visitor is void; and that the college being of royal foundation, the king only is visitor. By («) Sir. 557; L.l. Ravm. 133-1; (0) Dr. Walker's case, Cas. t. 8 Mod. 148; 6 T. K. 104. Hardwicke. 212. COLLEGES AND UXIVERSITIES. 2011 Lord Hardwicke, Chief Justice : " There are two things Avhich seem to be aimed at by this wi-it and return, which I do not see that the court can do ; first, to aid the juris- diction of the Bishop of Ely as \'isitor ; secondly, to deter- mine that the king is general visitor. But the writ in this case is felo de se ; for it suggests that the bishop is visitor of the college, and if so, he may visit, and remove, or punish the vice-master, and we could do no more ; and on the contrary, if the king be visitor, as the return suggests, you may apply to the king for him to visit." And on the Mandamus last day of the term the court quashed the writ of man- 'refused. damns ; but said they did not intend it should be under- stood that they had thereby determined Avhether the king or the bishop is general visitor. In Rex V. The Bishop of Ely (p) this case came to be Bex v. Bisliop considered, whether the Bishop of Ely was visitor or not ; of Ely. but not determined. The case was, a rule was made to show cause, why a mandamus shoidd not go to the Bishop of Ely, commanding him to hear an appeal made to him as visitor of Trinity College in Cambridge, by Dr. Edward Vernon, who has therein complained, that he has been wrongfully deprived of his senior fellowship in the college, contrary to the statutes thereof, made upon affidavits that the bisho]) declined hearing the appeal until he could be satisfied that he had a right to visit the college. By Lee, Chief Justice : " It appears from the affidavits that there Court refuse lias been an appeal to the bishop as visitor; that the bishop t" determine , 1 V 1 • • • -i. - • 1 • 1 / who IS visitor. has declmed exercismg any visitatorial power, in order to take the opinion of this court whether he has any right to exercise it. This is a controverted question, and it is not at all clear to the court who is visitor ; and if we had seen and read all the statutes of the college, we have no autho- rity to determine who is visitor, that being the proper pro- vince of a jury." And the iiilc was discharged. It is, however, now settled, where there is no question Mnndamus to in whom the right of visitation is vested, and a visitor visitor. refuses to receive and hear an appeal, that the Court of Queen's Bench will compel him by mandamus to exercise his visitatorial power ; but that court Avill not interfere for the purpose of compelling him to give a ]mrticular decision upon the merits, or to control his judgment. And the visitor is not obliged to hear the party personally, or to receive parol evidence ; but it is sufficient if the visitor re- ceives the grounds of the appeal, and gives an answer to {p) 1 Wilson, 2GG; -S. C. 1 AV. Bl. 52. G N 2 2012 THE CHURCH in heu kelation to ciiakities, etc. them in -writing (q). Lord ITardwicke held that the bare averment of there beino; a vit;itor was not sufficient to ex- chide the jurisdiction of tlie court ; but the ext-ent of his authority must a])|)ear, and the court must be satisfied that lie can do complete justice, otherwise a mandamus Avill be issued (/•). Xevertheless, it seems that a college may re- turn o-cnerally that there is a visitor, without stating that by the statutes he has power to decide the particular matters in dispute, for it is incident to his office to deter- mine all grievances which come before him (.s). Where the Jjj^^t although the courts may not interfere with regard fere '^ ^" '^^" ^^ ^^^^ pri\ate statutes of the society, as established l)y the founder, yet as to the ])ublic laws of the land, it seems that 'they may interfere, for o\'er these the founder could give to the visitor no exclusive jurisdiction. As in the Case of St. Joints College in Cambridge {t): Where by an act of 1 Will. & Mar. c. 8, now repealed, if any fellow of any college in either of the universities should neglect or refuse to take the oaths for six months after the first day of Avigust then next following, his fellowshi]) was to be void, and several of the fellows of that college had not taken the oaths ])ursuant to the statute, and thereupon a mandamus was directed to Humphrey Gower, head of tliat college, setting forth the act, and that such fellows had not taken the oatlis, and that they still contiimed in their fellowshijis, by which ^vrlt they Avere commanded to remove them, or to show cause. They return, that the college Avas founded by Margai'ct Countess of Kichmond; that the liishop of 3t)ly for the time being was by her appointed visitor; and on their behalf it was objected, that a mandamus is a reme- dial writ ; that no precedent can be produced where it has been granted to expel persons, but always to restore them to i)laces of which they had been deprived ; and that it will not lie where there is a local and proper visitor. But by Holt, Chief Justice : " The visitor is made by the founder, and is the proper judge of the laws of the college; he is to determine offences against these private laAvs ; but where the law of the land is disobeyed (as it is in this case), the Coui-t of King's Bench will take notice tliereof, notwithstanding the visitor ; and the proper remedy to put (q) See Rex v. Dl>^hnp of Ely, C. L. R. 534; 1 Jur. N. S. 700. 5 T. R. 475; tliis case is again (»•) Rex v. Bland, cited 1 Vcs. referred to below. See also Rex sen. 470. V. Bishop of Lincoln, 2 T. R. (.s) Rex v. All Souls, Oxford, .338; Philijys v. Biinj. 2 T. R. 34G; Skinner, 13; Sir T. .Jones, 174. Rex V. Bishop of Worrrxifr, 4 (/) 4 :\Iod. 233; 15 Viner, 200. M. & S. 415; Ex parte Buller, 1 COLLEGES AND UNIVERSITIES. 2013 the law in execution is by a mandamus." But the cause Avas adjourned. In general, where there is no other specific legal remedy to obtain the ends of justice, the courts of law will interfere, lest there should be a defect of justice. On this principle a mandamus was directed to the keepers of the seal of the University of Cambridge, to set the university seal to the appointment of a lord high steward (^^). Also to compel the warden of Wadham College, Oxford, to affix the com- mon seal of the college to an answer of the fellows to a bill in chancery, though contrary to his o^vn separate answer put in (x) ; because these cases do not come within the cognizance of a visitor. Upon which principle a mandamus was also granted to the Bishop of Ely, to appoint one of two persons presented to him by the fellows of Peterhouse College, in Cambridge, to be master ; the coiu^t being of opinion, from a ^'ie^v of the charters of the college, that the right which the bishop claimed of ajipointing to the mastership, on neglect of the fellows to elect, devolved on him, not as visitor, but by the special appointment of the , founder ; and therefore in this case the statutes were to be construed by tlie courts of law, for he could not visit him- self (_y). But if there be a \isitor who can exercise juris- diction, the appeal must Ije to him ; and therefore a sen- tence of expulsion un appealed from being given in evidence on an indictment for assaulting a fellow commoner of Queen's College, Cambridge, by turning him out of the college garden, was holden conclusive for the defendant (z). And a bill filed by a ])urchaser of a set of chambers in an inn of court against the benchers, relative to a renewal of the grant of the chambers, was dismissed (a), the apj^eal Ijeing to tli€ twelve judges, who are visitors (/>). Where the right of visitation, in default of his heirs, devolves upon the king, and is to be exercised by the great seal, the King's ]5ench refused, in the case of St. Catherine's Hall, Cam- bridge, to interfere by mandamus to compel the master and fellows to declare one of the fellowships vacant, and tq proceed to a new election, referring the question to the («) Hex V. University nf Cum- 2G0. hriclf/e, 1 Black. Rep. 647. (?/) Ecx v. Bishop of Ely, 2 {x) Tliiis case establishes the T. 11. 290. principle, that where a corpora- (s) Rex v. Grunden, Cowp. lion enters into a dispute with 315. a private person, tlie ordinary (n) Cunningham v. Wegg, 2 courts will interfere; Hex v. Br. C. C. 241. Windham, Cowp. 377. See also (h) Hart's and Savage's cases, Hex V. St. John's College, 4 Mod. Doug. 353. 2014 THE CHURCH IX HER REI.ATIOX TO CHARITIES, ETC. "Where the lord flmncclloi* (e). AVhethcr coniinoiicrs, and other inde- (•ou Its inter- pendent mendjcrs of a collep;c, beloiif]^ to the foundation, so as to be entitled to the ])roteetion of the visitor, may perhai)s depend on the statutes of the eollegc ; but in Davison's case, in chancery, Lord A])sley, assisted by De (irev, Chief Justice of the Common Pleas, and J\lr. Baron Adams, was of o])inion, that a commoner of University College in Oxford was a mere boarder, and theix'fore that his expidsion o])crated as a notice to quit(r/). jVnd in the above-mentioned case of Rex v. The Jiis/io/> of Eh/, the Court of King's Bench was of opinion, that Air. Longmire, who had been a fellow of Peterhouse, Cambridge, and had vacated his felloAvship by taking a college living, but had continued his name on the college boards, was not entitled to any preference in the election of a master, as being a member of the domus or foundation, imder these words: " Ipsius domiis atque sociorian fjusdem semper ratio lia- heaiur, ut hi, si qui inter cos ad hoc munus oheiindum inveneantur idonei, ceteris preferantur ; sin hujusmodi in domo nulli extiterint, turn aliunde assuma?itur." A man- damus ap]ilied for to expel the fellow of a college has been refused (e). A mandamus Avas refused to the master and fellows of Cains College, Cambridge, to restore an usher of a free school of wliich they were visitors (y), and to restore a party to his fellowship of Christ College in Cam- bridge, Avho ought to appeal to the visitor (^). Return of a J^ tlie case of JRex V. Whale?/ ((/), a mandamus Avas granted, directed to the defendant as master of Peterhouse College, in the University of Cambridge, to admit Thomas liogers to a fellowship of that college, upon affidavit of his election. A motion was made to supersede this writ, upon affidavits of there being a visitor, namel}', the Bishop of Ely. But tlie court put the master to make a return, and refused to determine the point upon affidavits, where the other party had no opportunity to right himself by an action. It must aj:)pear by matter of record, which tlie party may contest. (c) Rrg.v. St. Catherine's II((ll, 112. Sec also the case of jRej;v, Camhrk/ge, 4 T. ]{. 233. St. Johns College, 4 Mod. 2G0, ((/) Rex V. Grundon, Cowp. as to a mandamus to admit a 319. scholar not actually a member, (e) Dr. Gowers case, 3 Salk. but claiming to be one. So a 230. mandamus to tlie visitors of the (/) The Protector v. Craford, College of Advocates at Doctors' Styles, 457. See also Stamp's Commons was refused : Ex parte case, 1 Sid. 40; Dr. Goddard's Z^'(?, .5 Jur. N. S. 218; El.. Bl. & case, ibid. 29; Le case del Clerk El. 863. de City Works de Londres, 2 Sid. (g) Str. 1139. visitor. COLLEGES AND UNIVERSITIES. 2015 The jurisdiction of courts of law is more easily distin- Court of equity ffuisliable from that of the visitor than the iurisdiction of ^^'^^^ interfere , c •, rm , , • •, ,1 to sec a trust courts 01 equity. 1 lie trusts in equity seem to bear some ^f j^ college resemblance to the duties Avhich it is the visitor's province executed, to enforce. It is clear law, that where there is a particular trust to be executed by the college, a court of equity will interfere to carry that trust into execution. The leading case on this subject is that of Green v. Rutherford {h). The following cases are also of importance on this subject: Attorney-General v. Dulwich College (i), Attorney -Geiie- ral y. St. Cross Hospital (j) ; Daiigars y. JRivaz (k). In Thomson v. University of London (/), the Court of Chan- cery refused to interfere in a question relating to a gold medal granted by the university as the result of an exami- nation, on the ground that it was a proj)er subject for the visitor ; but query Avhether a university, not being au eleemosynary corporation (m), is subject to visitation (?«). The doctrine laid down in the case of Green v. Ruther- ford, as to the power of the general visitor over endow- ments engrafted on the original charity, without any declaration of a special trust or a special visitor, is con- firmed by Attorney- General v. Talljot {o) ; by Lord Mansfield in St. Johns College v. Todington {^jp) ; and by Lord Brougham in the case oi Ex parte Inge \q). The internal management of a charity has been holden to be the exclusive subject of visitatorial jurisdiction, but under a trust as to the revenue. Abuse by misapplication will be controlled by a court of equity (7-). In one case it was contended that the jurisdiction of the court of equity was excluded, because the persons avIio were to enjoy beneficial interests were members of the corporate body, but the Master of the Rolls, Lord Lang- dale, assumed as a matter of course that he had jurisdic- tion (.9). In another case the Lord Chancellor, Lord (A) 1 Ves. sen. 4G2. This case, supra. and that of P//////;.s v. Bur]i, 2 (o) 3 Atk. 075. T. R. 346, determine the chief (/>) 2 Kush. Hist. Coll. 324 — practical points respecting the 332. nature of a visitor's jurisdiction. (p s ge- pened the fixmous cause between the xVrchbishoi^ of Can- ncral power 01 i -, ^ -, n t f ^ \i ■ visitation. terouiy and the chancellor and proctors ot the University of Oxford (i); which was thus: Archbishop Arundel being in his visitation of the diocese of Lincohi, came in his Avay to visit the University of Oxford, which Avas then Avithin the limits of that diocese. The uniA'crsity insisted upon their exemption by papal authority, and refused to submit to his visitation. The archbishop urged a sentence given against them in this same cause by King liichard the Second ; but in vain. They stood upon their exemp- tion, and referred themsblves (in Avliich the archbishop also agreed Avith them) to the king's judgment. Their cause was accordingly heard before the said King Henry the Fourth, and sentence given for the archbishop, and his visitatorial ])OAver over them. And this Avhole process and sentence, at the archbishop's petition, Avas ratified and enrolled in parliament, to prevent any future disputes upon that subject (c). {h) IJot. Pari. 1;') Hen. 4, the visitation, and " ncqueiuit se num. 15 ; Wake's State of tlic esse excei)tos." In the reign of Ciunch, 348. liichard II. a contest arose bc- (c) Sec Strype's Life of Parker, twecn the archbishop and clian- A'ol. i. p. 528, c. 2(1, wliere it is ceilor, tlie latter alleging it be- said that the Archbishop or- longed to the king alone ; but dcred this decision to be i)ut " Declaratio regis per literas into his Register, with a memo- suas patcntes quod jus visitandi randuin, A.i). 15G8. The notes of cancellarium et universitatem Dr. Yale, in the Cotton Library, Oxon. pertinet et pertinere debet, confirm the prerogative of the in perpctuum pertinebit ad archbishop ; according to them Archiepiscopum Cantuar. et ec- tlie scholars of Oxon submit to clesiam suam, et non ad i.)jsum COLLEGES AND UNIVERSITIES. 2019 Upon tills, the Archbishop of York put in his claim for the exception of the college called Qneen Hall, in the said university ; the result of which was this : that the Arch- bishop of Canterbury, in presence of the king and of the lords in the said jDarliament, promised, that if the Arch- bishop of York could sufficiently show any privilege or specialty of record, wherefore the said Archbishop of Canterbury might not use or exercise his visitation of the said college, he would then abstain ; saving to him always the visitation of the scholars abiding in the said college, according to the judgments and decrees made and given by the said King Richard the Second and the said King Henry the Fourth {d). But this claim of the Archbishop of York seems to have been frivolous, seeing the exclusive right which he insisted on was only in respect of his being local visitor of that college ; for if the Archbishop of Canterbury had other- wise a power of visiting, tlie founder of the college could not take it from him by his statutes. Afterwards, in the 12th year of King Charles the First, this matter was again contested by both the universities against Archbishop Laud, Avho claimed a right of A^siting them ju7'e 7netropolitico, and they pleaded that the power of visiting them Avas in the king alone as their founder. This cause also came to a hearing before his majesty in council. For the archbishop it was urged, that his power of visitation within his province is of common right, and as ancient as the archbishopric itself; that it is a general power, and not over certain particular persons, but over clergy and people, in all causes ecclesiastical, and in all places within his province without exception ; that if the universities have any exemption, it is incumbent upon them to show it ; that the exemptions (if any) which they had by any bulls from the pope, were abolished by the act of parliament of 28 Hen. 8, c. 16, and not pleadable in any court ; that this power of the archl)ishop does no way trench upon the king's power ; but that the king by him- self or his commissioners may visit as founder, and the archbishop nevertheless as metropolitan ; that the arch- bishop's intention is not to visit the statutes of the univer- sity or of any particular college, but to visit metropolitically, that is, to visit the body of the university, and every scholar regem." "Westminster, 20tli vcar num. 15; Wake's State of tlie of Rich. II. " Church, 348. (d) Rot. Pari. 13 Hen. 4, 2020 THE CHURCH in her relation to charities, etc. The arch- hishop's (gene- ral jKiwcr of visitation. therein, for his obedience to the doctrine and disci])]ine of the Churcli of Eni>land, but not to meddle with the sta- tutes of coUeg^cs or of tlie university, or the particular visitors of any colleji^e. For the University of Canil)ndfi;c it "svas uro;ed, that the power of visiting them of right l)clongs to the king, Avhich is an exemption from any ordinary jurisdiction; and for other exem])tions they had bulls from the pope and charters ; that about the beginning of the reign of King Kichard the Second, most of their charters were burned by an insiuTCCtion in the town ; but many of them were confirmed in the time of Henry the Sixth, njion a suit made to the pope to give some confirmation to their privi- leges in regard their charters were burned ; whereupon the pope granted a commission, and witnesses were exa- mined ; Avhich examination was a means to produce two ancient bulls, exempting them from metropolitical visita- tion, the one bearing date in the year 624, and the other in 099. For the University of Oxford it was argued, that it was an ancient university, founded long before the Conquest, and had as ancient priA-ileges ; and by bulls from the pope was ever exemj^t from the visitation of any archliishop, as in his metropolitical right, but that tlie few visitations which had been made by any of the archbishops were by vu'tue only of their legatine power; that as none can found an university but the king, so none has power but the king to visit it. That indeed their ancient charters are lost ; but although there are no records so old, yet tlicre are divers recitals in Edward the Third's time, which show that they had some original grant of exemption ; and in confirmation thereof that there had never been in so many hundred years any visitation made by any archbishop as being within his ])rovincc. Upon the hearing of the whole cause it was declared by the king, with the advice of the privy council, that it was granted on all hands that the king had an undoubted right to visit the imiversities, and that the archbishop, in the right of his metropolitical church of Canterbury, had power to visit the whole province in wliich the universities were situated, and were imder the same poAver, unless they could show privilege and exemption ; that the exceptions then alleged were not such as could give satisfaction ; that they could be exempted by no papal bull ; and that they were exempted by none of their charters; that the long omission of the archbishops to visit, could be no prescnp- tion to bar the right of the metropolitical see ; that it COLLEGES AND UNIVERSITIES. 2021 appeared that both universities had been visited by three archbishops jure metropolitico, and not by a legatine power ; that this coming* in question upon the resistance of the University of Oxford, it was, upon frill hearing of both parties, adjudged for the archbishop by King Richard the Second, and afterwards upon the like hearing and re- examination by King Henry the Fourth; and both of their judgments established by act of parliament, 13 Hen. 4. And the archbishop produced before his majesty an ori- ginal deed from the University of Cambridge to the arch- bishop, under the hands of the heads of houses, containing a renunciation of all privileges from any pope, and wherein they bind themselves under the penalty of 1,000/. not to oppose the archbishop's jurisdiction : and this was in the 27 Hen. 8, being a year before the said bulls were abolished by act of parliament. So the king and council adjudged the right of visiting the universities, chancellors, scholars, and all persons en- joying the privileges thereof, to belong to the archbishop and metropolitical church of Canterbury, by himself or his commissary. Whereupon the archbishop made this motion to the king: first for himself, that his majesty would be graciously pleased that he might have the sentence drawn up hj the advice of his majesty's learned counsel, and put under the broad seal, to settle all differences that hereafter might arise: then on the behalf of both the universities, that they should remain fi'ee and exempt from the visitation and jurisdiction of the bishop of the diocese or archdeacon. The grounds of exemption from episcopal visitation, whilst at the same time they are supposed subject to the archiepiscopal, are not set forth : this must be from some clause of exemption in the university charters, or from some restrictive clause in the foundation of the bishoprics, especially of Oxford, where the episcopal see was not erected until the latter end of the reign of King Heniy the Eighth ; and even wdth respect to Cambridge this might be the case, if that is true which is intimated above, that the university there is at least as ancient as the year 624, for that was long l)cfore the erection of the bishopric of Ely, which was taken out of the diocese of Lincoln about the year 1111. Or else the archljishop here must have meant that the king, from his authority over the church here, and as visitor of the universities in right of foundation, should by his royal authority now establish it. Furthermore, since it was declared to be the arch- 2022 TJIi: CUUKCH IN UER RELATION TO CHARITIES, ETC. The nrch- l)ish,.i>'s general power of visitatiou. Exemption from y Geo. 2, c. 3G. l)ishop'.s r\cr\\t to visit mctro))olitically, and it was not limited by Ian' how often, tlieielore the arclibishop moved that notwithstandini:; the last custom of visitation was only once in the archbish()j)\s time, he might by himself or his commissary visit the universities as often as any great emergent cause should move him ; provided that neither he nor any of his successors should after the first visitation visit upon such emergent causes, unless it be first made known to his majesty and his successors. All which was granted by the king and so settled. Lastly, whereas it was alleged that the chancellors of either university were, and are like to be, persons of great honour and eminence, and therefore it might be incon- venient that they should be called to such visitation, it was declared by his majesty that in the course of law the chancellor Avould be allowed to appear by his proxy (e). But Ayliffe(/) is indignant at this decision: he says, " It is allowed that the arclibishop has power to visit the two universities metropolitically in matters relating to the doctrine and discipline of the Church of England, as for heresy and schism, but not for other crimes ; and if he should attempt the same, he might be opposed. * * * * * * It is to be observed, that between Arundel and Laud there had been thirteen archbishoi)s, among whom there Avas not any besides Cardinal Pole (who visited the imiversity by his legatine authority) who pretended to revive their title to a metropolitical visitation or a legatine jurisdiction." By sect. 4 of 9 Geo. 2, c. 36, restraining gifts to charitable uses, it is provided that the same shall not extend to make void the dispositions of any lands, tene- ments, or hereditaments, which shall be made in other manner and form than in this act is directed, to or in trust for either of the two universities, or any of the colleges or houses of learning within the same ; or to or in trust for the colleges of Eton, Winchester, or Westminster, for better su|)port and maintenance of the scholai's only u])on the "foundations of the said colleges of Eton, Winchester, (e) The ipsissima verba of this decision, and a variety of iiUis- trative matter, may be seen Collect. Br. Twyne, in Turr. Schol. Oxon. vol. vii. cited as Lib. Vis. in AVood's Annals, b. 1, 187, ed. Gutch, wiiich contains also collections on the same sub- ject. See "Wilkins's Concilia, vol. iv., p. 528; also the Letters Patent founded on the foregoing judgments, and Vossius's Letter, "ibid. (/) Ayliffe's History of the University of Oxford, vol. ii. pp. 2G.3, 204, part ii. ch. 5. See Att.-Gen. V. Lady Downinrj, Amb. 550; 3 Ves. jun. 714, and in the Opinions and Judgments by Lord Ciiief Justice Wilmot. COLLEGES AND UNIVERSITIES. 2023 and ^Westminster {g'). This proviso extends only to devises honajide made to the actual colleges for their own benefit, and not in trust for other charitable purposes (/<). It probably applies as well to colleges founded since the act as to the old ones (z). The restrictive clause, sect. 5, as to the number of advowsons to be holden by a college, has since been re- pealed. The universities and the colleges therein, and the rrom other colleges of "Westminster, Eton and AVinchester, are ^^*'^* exempted from the operation of 43 Eliz. c. 4, and from the jurisdiction of the charity commissioners. The acts 33 Hen. 8, c. 27, and 31 Eliz. c. 6, as to Elections. elections into colleges, have been already set forth {li). The following cases as to the election of fellows into colleges have occurred. They all turn on the construction of the old statutes : — Marriott v. Gregory (I). Disputes as to elections in lay foundations are to be tried in the king's courts. Hex V. St. Catherine s Hall, Cambridge (?»). In the case of a private eleemos}Tiary lay foundation, if no special visitor be appointed by the founder, the right of visitation, in default of his heirs, devolves ujjon the king, to be exer- cised by the great seal ; on this ground the court refused to interfere by mandamus to compel the master and fellows to declare one of the fellowships vacant, and to proceed to a ncAv election. Rex V. Gregory (n). The court thought that a man- damus was the proper mode of trying the validity of an election to a vacant fellowship made by the fellows of Trinity Hall, Cambridge, which was disputed by the master. In re Catherine Hall, Cambridge (o). In Catherine Hall, Cambridge, the election of fellows is to be " communi omnium assensu aid saltern ex consensu magistriet major is partis communitatis ;" and it Avas holden, that no election was valid in which the master did not concur. I?i re Queen^s College, Cambridge (^p). The statutes of Queen's College, Cambridge, direct certain elections to . (rj) Vide ftiqyra, Part YIIL, (k) Vide stipra,'Pa,rtJl. ,Chnp. Chap. II., Sect. 2, p. 1978. IV., Sect. 2, pp. 194—199. (h) Att.-Gen. v. Tancred, 1 (/) Lofft, 21. Eden, 15 ; Ambl. 351; Att.-Gen. (?«) 4 T. K. 233. V. Munhy, 1 Mer. 327; Whoncood (n) Ibid. 240, n. (a). V. Univ. Colleqe, 1 Yes. sen. 53. (o) 5 Russ. 85. (0 Att.-Gen. wBowyer, 3 Yes. {p) Ibid. G5. 728, n. 8. 2024 THE CIIUKCII IN IIEK KELATION TO CHARITIES, ETC. Elections. l)C made by the president and the majority of the fellows ; and it was holden that the concurrent voice of the president was necessary in all such elections. For a decision as to the form of adiuission of a ])resident of this collej^e, and as to the power of the crown to dispense with a restriction on the election of fellows and the i)resumption of such a dis- pensation, see Case of Queen's College, Canihridge {q). In re Clare Hall, Cambridge (/•). The statutes of Clare Hall, Cambridge, provide " that the election of a fellow shall be by the master and the major part of the iL'llows present ;" and it was holden, that a valid election might be made without the concurrent voice of the master. In re Gonville and Cains College, Cambridge (s). In Cains College, Cambridge, the election of a fellow is to be by the master and the major part of the fellows ; and it was holden, that an election by the major part of the persons entitled to vote in the election is valid, though the master refuses to concur with them. In re Downing College, Cambridge (t). Upon the true construction of the charter and statutes of Downing College, Cambridge, a person who is in holy orders is not ineligible to the office of master of the college, provided he lias the other qualifications thereby prescribed. A further point was mooted in this case as to the election of the original fellows Avho Avere constituting the college, but was not expressly decided. Li re University College, Oxford (n), is a decision on the meaning of the words " in sacerdotio co7isti tutus," and on another ])oint now rendered immaterial by the general effect of modern university legislation. In re St. Catherine Hall, Cambridge {x), is a decision on a question of the forfeiture of a fellowship. Ex parte Edlestone (y). The new statutes of Trinity College, Cambridge, given by the crown in 1844, re-enact the provision in the original statutes of Ehzabeth as to the Kegius Professor of Greek, and repeal certain letters- patent of Charles II. ; so that now, as before the time of Charles II., any fellow of Trinity College who becomes professor of Greek " Socii nomen mlum tenet." There does not appear to be any case where the con- struction of any of the new codes of statutes given to the colleges by the university commissioners has been brought («) Jac. 1. (h) 2 Phillips, 521. (r) Ibid. 73. {x) 1 M. & G. 473. (.9) Ibid. 76. (y) 3 Dc G. M. & G. 742. (0 3 My. & Cr. G42. COLLEGES AND UXI"\^EKSITIES. 2025 before tlie law courts ; but in several instances these new codes have given matter of appeal to the college visitor — notably in the case of All Souls College, Oxford — where there have been two a]:)peals and two formal hearings, one of which is reported (r). Ex parte Buller {a), is a case of an expulsion of a fellow, where a mandamus was sent to the visitor to hear the case ; but on his deciding in favour of the expulsion a mandamus to the college to restore the fellow was refused. Ref). V. Dulwich College (b), is an important case on the election of a Avarden for that college : in which the right of a founder of an incorporated college to make subsequent ordinances for the government of the college under a power reserved by the letters-patent, and by these ordi- nances to introduce strangers to the corporation as electors of the members of the corporation, is asserted and most carefully determined. Several founders of colleges have, in their statutes for rrefcrcnce the government of the said colleges, given a certain degree S'™" to of preference, in the election of scholars or others, to those kinsmen. of their own blood. Concerning Avhich there has been much dispute. But as the effect of the University Com- mission Acts and the subsequent legislation of the com- missioners has been to abolish this preference in all the then existing cases, the learning on this subject has become almost obsolete (c). It is, however, possible that such a preference may be created in a modern benefaction ; and this has actually been done in the case of the Fereday Scholarships at St. John's College, Oxford. (z) Watson V. All SouW Col- our, 11 L. T., N. S. IGG; see also Att.-Gcn. V. Sidney Sussex Od- Irf/e, 34 Beav. G51; 4 L. 11, Ch. A pp. 722. (a) 1 C. L. R. 534 ; 1 Jiir., N. 8. 709; vide supra, p. 2012. (I') 17 Q. B.GOO; IG Jur. G54; see Atl.-Gen. v. Duhcivh CoUc(je, 4 Beav. 255. ((') Mucli of it may l)c found in B.lackstone on Collatoral Con- .^angiiinity ; and see Report of the Appeal from the College of All-Souls to the Arelibishop of Canterhury, in 17G2, reported in Lord Cliief Justice AMImot's opinions and Judgments, p. 1G3; the assessors in this case Avere, Sir ,J. E. Wilmot, one of the justices of the Court of Queen's r. VOL. II. lionch, and George ITay, D.C. L., vicar-gcneral to the Archbishoj) of Canterbury; and of an appeal l)referred by tlie provost and scholars of King's College, Cam- bridge, against the provost and fellows of Eton College, to the Jjord Bishop of Lincoln, visitor of both societies, edited by P. Williams, Esq., 181G ; the asses- sors were, Sir W. Grant, I\Iaster of the Ptolls, and Sir W. Scott, judge of the Consistory of Lon- don; see also an Ajipeal to the Lord Bisho]i of Winchester, visitor of St. Mary Winton Col- leges, edited by J. Pliillimore, D.C.Ij., 1S.''.'J, the assessors were, Mr. .lustice Patteson and Dr. Lushington, Judge of the Con- sistory of London. 6 o 2026 THE CllUKCIT IX ITER KELATIOX TO CITAUITIES, ETC. riincii)lc de- li veil tVoin ciinon law. Preference to ]iarticular places. Assignment of fellowship. Advowsons of papists. Licenee to preach. Title for orders. AYhat degrees are requisite for plurality. Pluralities. Tlie same or a closely analoi>:ous ])i-lncl])lc as to the pre- ference of Ibuiulers' kill is to be found in foreign charitable foiimlations. Tliis jirinciple may be cleai'ly traced to the canon law as its fountain. " Benefactors to churches," (^observes Bishop Gil)son (d)), "and much more they who founded and endowed, had a title to maintenance if they or their sons came to poverty. " Qnicinntjitc JidcUzim devo- tione jiroprid dc facultatibus siiis J^cclcsioi (di(jmd contu- lerint, si forte ipsi, aut Jilii eorum reducti fucrint ad inopiam, ab eadem Ecclesid suffrogiuvi vitce pro tcmporis nsu percipianf (cav. 550; supra, p. 1723. (^) Vide supra, Part II., Chap. XI., Sect. 3, pp. 394-400. (//) Vide supra, Part IT., Chap. III.,Scct. G, p. 119. COLLEGES AND UNIVERSITIES. 2027 to and form part of tlie endowment of the headship (/). The Residence. saving in 1 & 2 Vict. c. 106, s. 38, of certain persons hold- ing university and similar preferments from the operation of the laws as to residence of the clergy has been already set forth {j). The provisions in 17 Geo. .3, c. 53, 1 & 2 Vict. c. 23 Rcsiflence and 1 & 2 Vict. c. lOG, enabling colleges to lend money ^^oises. to the incumbents of benefices in their patronage to enable them to build houses of residence have been already men- tioned (/d). Colleges in Oxford and Cambridge, and the Colleges of Augmentation Eton and Winchester, may augment vicarages whereof ^^ vicarages, they are rectors by the grant of the tithes or a portion thei'cof, like other rectors under 1 & 2 AVill. 4, c. 45 (/). By 3 & 4 Vict. c. 113, s. 69, it is provided that, " So soon Power to dis- as conveniently may be, and by the authority hereinafter ^evcr benefices pro'sdded, such arrangenients may be made Avith respect to of^colkges^ "''^ benefices which are annexed by act of parliament or other- wise to the headships of colleges in the universities of Oxford and Cam})ridge, as may enable the respective colleges, if they shall think fit, to sell, or themselves to purchase, the advowsons of such benefices, and to invest the proceeds in proper securities, with provisions for the payment of the interest and annual profits thereof to the respective heads of the colleges for the time being ; and that upon the completion of the said arrangements respec- tively the existing incumbents of such benefices respec- tively shall be at liberty, upon resigning the same, to receive the interest and annual profits of the proceeds arising from such sales respectively" (/»). And by 23 & 24 Vict. c. 59, s. 7, this section '* shall be Extension of construed to extend to and shall include as well benefices *'"^ power. Avith cure of souls, as ecclesiastical rectories, prebends, and other preferments Avithout cure of soids, advowsons, and rights of patronage, whether exclusive or alternate, impropriate rectories, and other lands and hereditaments, annexed or belonging to or held either Avholly or partly l:>y, or in trust for, any of the imiversities of Oxford, Cam- bridge and Durham, or any college therein respectively, or either of the colleges of St. Mary of Winchester, near AVinchester, and of King Henry the Sixth at Eton, or (0 Vide supra, pp. 11 TG, {l) Vide inf r a, VAriAX.^Cha^. 1177. ^ IV. (./) Vide supra, \).\\bO. (m) By s. 70, the benefices an- (^•) Vide supra, Tart V., Chap. noxcd to the rcgius professor- II., Sect. 1, pp. 1475, 1476. ship of divinity at Cambridge are to bo sold, G O 2 202S THE cnuRCir i\ iir.i; im:i.atiox to ciiaiutiks, etc. TSSi 24 Vict, llie lioad or any otlior nionibor of any siicli coll(\2;o, ami *-'-^-'^- '■ also to extciul to and to im-hulo and to antliorize sales by each of the same universities, as uell as each of the colloffes therein respectively and the said eolle|Tes of St. ^larv of AN'iiK'hestcr, near \\'inc-hester, and of K'uv^ Ilemy the Sixth at Eton; and shall also l)e construed to enable the said universities or C()lle<2;es to sell advowsonsof benefices, the patrona^'c whereof shall be vested in any ])erson or persons in trust for any of the said imiversities or colleges or for the benefit of the head or any other menilier thereof respectively ; and also to authorize, under the authority hereinafter mentioned, the annexation of the whole or any ]iart of the lands or other hereditaments or endowments belonj^-ing to any such ecclesiastical rectory, ])rcbend or other preferment without cure of souls, im])i()- priatc rectories, and other lands and hereditaments afore- said, or the application of the proceeds or any sale thereof; and also the a])])lication of the proceeds of any sale of advowsons and rights of ])atronao-c or any part of the proceeds of any such sales which may be made imder the said section of the said last-mentioned act, or " The Uni- versities and College Estates Act, 1858" (w), or under any other authority, or of any monies, stocks, funds, or secu- rities belonging to such university, college, head, or mem- ber by way of endowment or augmentation of anv benefice with cure of souls, the patronage whereof shall belong to or be held in trust for or for the benefit of such university or college, or the head or other member thereof. l*rovided nevertheless, that the powers conferred by this clause shall not be exercised to the prejudice of the existing interest of any such.liead or other member of a college without his consent ; aiul in case of any diminution being occasioned in the income of any such head or other member of a college by any sale, annexation, jmrchase or investment that may be made under the provisions of the said acts, arrangements may be made under the like authority for giving to such head or other member adcfjuate compensa- tion for such diminution of his income out of the revenues of such college, or out of the proceeds of any such sale or investment, and the said section of the said last-mentioned act shall extend to authorize under the like authority the purchase out of any of the corporate funds or revenues of any such university or college of advowsons of benefices, and also of any rights of perpetual presentation or nomi- nation to benefices, whether such benefices be or be not (») 21 & 22 Vict. c. 44. COLLEGES AND UNIVERSITIES. 2029 annexed to or held by or in trust for any of the said uni- versities, or any such college as aforesaid, or the head or other meniljer of any such college, to be added to those in the patronage of such university or college ; and the words "colleges" and " college" in the said section of the said last-mentioned act, shall include cathedral or house of C/hrist Church in Oxford, and the words, " proper secu- rities" in the same section, shall be construed to extend to authorize and shall include the purchase of lands in fee simple ; and also an investment on any of the parliamen- tary stocks or public funds of Great Britain ; and all such securities, lands, and stocks or funds shall be settled, held, applied or disposed of in such manner as by the university or college effecting such sale, purchase, or investment, and by the like authority, shall be arranged and determined in that behalf; and every endowment or augmentation Avhich shall ])e made by any university or college of any benehce with cure of souls under the authority of this section, or by virtue of the pro^dsions of 1 & 2 AVill. 4, c. 45 (o), or any other act or acts of parliament, shall be valid notwithstanding the clear annual value of such benefice shall, at the time of such endowment or augmentation, exceed or be thereby made to exceed the limits prescribed by section 16 of the said act, or any other act or acts of ])arliament: Provided that no such augmentation or en- dowment, beyond the clear annual value of five hundred ])Ounds shall be made under the said act, except Avith the consent of the ecclesiastical commissioners for England (to be testified by writing under their common seal) in addi- tion to such other consent as may be otherwise rerpiired thereto." By sect. 8, ])rovision is made as to the right of patronage in the severed benefice ; by sect, 9, the provisions of the Lands Clauses Consolidation Act(y>) is incorporated, and by sect. 10 the ecclesiastical commissioners are constituted "the authority" for the purposes before mentioned. By 20 & 21 Vict. c. 25, s. 3, " It shall be lawful for any Power to college Avithin the university from time to time, with con- '^'^'^''^ ^^ •'t'lcr sent of the visitor, to appropriate and apply any property, holilcn for or the income of any property, held by or in trust for the pmcliasc of college, for the purpose that the same, or the income ^^vowsous. thereof, may be a]i])lied in ])urchasing advowsons for the benefit of the college, to the augmentation of the endow- ment of livings in the ])atronage of the college to such an amount as may be by law allowed, or towards the building of fit and suitable parsonage houses on any livings in the (o) Vide supra, p. 2027. Q>) 8 Vict, c i«. 2030 THE ClIUKeil IN IIKU ICKLATIoN TU CHAlilTIES, ETC. Canonries at Ely. First fruits and tenths. Land tax. patroiiaf>;c of the college, or to the IbunJatlon or augmen- tation of scholarships or exhibitions or to other purposes for the advancement of religious learning and education within the college ; and in exercise of this power the college may amiex to any living in the patronage of the college (by way of augmentation of the endowment of such living) any tithe rent-charge which may be vested in the college, or any portion thereof, in consideration of the appropriation to other piu-poses of the college of a part of the trust property or income not exceeding the amount which the visitor shall adjudge to be an adequate con- sideration for the tithe rent-charge to be annexed ; pro- vided that this power shall not extend to property or income applicable to the purchase of advowsons for the benefit of scholars or exhibitioners on any particular foundation within a college." By sect. 12 of 3 & 4 Vict. c. 113, two canonries in the cathedral church of Ely are to be annexed to the regius professorships of Hebrew and Greek ; and by sect. 15, it is enacted that provisions respecting the suspension of canonries shall not extend to any canonry in the chapter of Ely which may be annexed to any professorship. By 1 Eliz. c. 4, for the restitution of first fruits and tenths to the crown, it is provided, that all grants, im- munities and liberties given to the imiversities of Cam- bridge and Oxford, or to any college or hall in either of them, and to the colleges of Eton and AMnchester, by King Henry the Eighth or any other of the queen's pro- genitors or predecessors, or by act of parliament, touching the release or discharge of first fi'uits and tenths, shall be alwavs and remain in their full strength and virtue. By 38 Geo. 3, c. 5, ss. 25, 26, it is provided, that the same shall not extend to charge any college or hall in either of the two universities of Oxford or Cambridge ; or the colleges of AVindsor, Eton, AVinton, or Westminster ; or the college of Bromley ; for or in respect of the sites of the said colleges or halls, or any of the buildings within the walls or limits thereof; or any master, fellow, or scholar, or exhibitioner of any such college or hall, or any masters or ushers of any school, for or in respect of any stipend, wages, rents, profits, or exhibitions whatsoever, arising or growing due to them, in respect of the said several places or employments in the said universities, colleges or schools ; or to charge any of the houses or lands, which on or befjre March 25th, 1G93, did belong to the sites of any college or hall. Provided, that nothing herein shall be construed or taken to discharge any tenant of any of the houses or lands belonging to the said colleges. COLLEGES AND UXIVERSITIES. 2031 halls or schools, who by their leases or other contracts arc obliged to pay all rates, taxes and impositions whatsoever, but that they shall be rated and pay all such rates, taxes and impositions. Provided also, that all such lands, re- venues or rents, settled to any charitable or pious use, as were assessed in the fourth year of the reign of William and Mary, shall be liable to be charged ; and that no other lands, tenements or hereditaments, revenues or rents ■whatsoever, then settled to any charitable or pious uses, as aforesaid, shall be charged. The provisions in 42 Geo. 3, c. 116, ss. 17, 78, for redemption and sale of the land-tax by collet/ es and other patrons of livings have been already mentioned (o). In All Souls Collerje, Oxford, v. Costar{p), it was holden, that the buildings of a college, taken into and made part of the college between the passing of the first land-tax act and the act Avhich made that tax perpetual, Avere exemjited from the land tax. liut where a college, soon after the passing of the first land-tax act, purchased land of a ]:)arish under a private act of parliament, which provided that the college should pay all taxes Avhich the premises then Avere or hereafter should be subject to, such lands were still liable to the land tax. As to the administratiou of the real estates of colleges Real estates. it will be sufficient to give a short summary of the laAv. Colleges, like other corporations, had at common law a right to deal with their property as they pleased (ra, Part X., Chap. VIII., Sect. 2, pp. 1737, 1740. VI., Sect. 1. (;>) 3 IJos. & Pul. G35. (,.) Ibild commissioners («) ; and the money received on account ) There is a remarkable rcrum sapicntia Roma; sibi tcm- passage in a letter of Trregory of plum visibiliter quodammodo Tours, Avho Avriting about the fobricarat, &c. &c., refloruerant studies pursued by tiie son of a ibi diversarum artium studia, senator, and a slaVe Avho Avas liis &c." Vol. iii. 1. i. c. 95, s. 3. selioolfellow, observes, " nam de ([/) " Conveniebat olim mirum operibus Virgilii, Legis Theodo- in modum Anglite Ecclesia cum siana> libris, arteque calculi ap- IJomana, Oswaldus Hex ex Ili- primC" eruditus est." bernia arcessivit in Angliam (c) See also the canon on tliis sanctissimum cpiscopum," Avliom subject by Eugenius the Second, he placed at l^iindisfarn, " Ex soon after tlie time of Cluirle- h;1c scilicet schola Iliberni mo- magne. Dist. 37, c. 12 ; and nachi ecclesiastictc sapicntias et another ancient canon. Extra. disciplinje fontes in omnem An- 1. 3, t. 1, c. 2. gliam dcriA^rirunt, &c. ita cpisco- {(f) Erat ipsius Caroli pala- pales et monastic;xi schola; coepe- tium schola longesplendidissima, runt nee injucunde nee infruc- sedcs potissima in (pia humanai tuose immisceri ; " and again omncs divina^que liters; efflores- Sigebert, king of East Anglia, cerent. " ea qua^ in Gallos bene disposita (c) "Quarum subsidio freti " vidit imitari cupiens, instituit is tlic expression cited by Tho- scliolam in qua pueri litteris massin, c. I^G, s. 8, c. 2. erudirentur, juvante sc episcopo." (/) Thomassin, citingjoannes Sec Thomassin, ut sup.; and Diaconus, the biographer of Gre- liedc, lib. iii. s. 2, c. 27. gory the Great, says, " Tunc, 2036 riii: ( iiriHii i.\ iii.i: uklation lo ( iiaimtiks, ictc. Siliools after the 12th cciiturv. l)urv (A), whom 1*()|k' A^atlio, writiiig to the sixth Cienenil Council, entitles, "T^j ju-ryaAi^^j vi^cth Bg:T«vv»a5 'Ag^iznta-KOTrov xu) (JiXo(7o:f'>y." Bede enuinerates Astronomy, Poetry «^n(l Arithmetio, amon<2; the elements of eeelesiustical instruc- tion as administered in the aji;e in ^vhieh he lived, and of Avliose ii'ood ellects he himself was the most remarkaljle example (/). The history of" schools from the close of the el<>;hth to that of the twelfth century is involved in considerable obscurity, l)ut it would appear from the lan(»;ua<::c of the I^ateran Councils, enjoining; the appointment oi" school- masters to be licensed by the bishop, in all monasteries and cathedrals, that they had I'allen into considerable neglect. From the close of the twelfth century the iu»i- versities became a sort of higher school for those who had derived the rudiments of instruction from the cloister (/t). The chief provisions of the Councils of Lateran (/) have been incorporated in the ecclesiastical law of England, and any l)ody consulting the Concilia of Spelman (///) will see that the j>ractice of the clnu'ch in this country was always in accordance with the spirit of the orders respecting schools contained in these Councils. The injunctions issued by (^ueen Elizabeth at the beginning of her reign, and the canons of 1571 and 1603, as will be seen in the course of this chapter, Avere to the same eft'ect. It was doubtless with reference to these considerations, that Lord Keeper (/;) ThoiTi. vol. ii. 1. i. c. 95, s. 1-2. (i) " II.'oc omnia approljal/it Beda exeiiii)li.s meliuscule snis (juam vcrliis. yEterna ciiim oiniiiiim liarum disciplinaniin momiinciita ille ad nos trans- niisit, ftsi jam indc a piiero in monasteries cnutritus literit." TJiom. ubi supra, s. 12. (/.•) Tlic language ol'Tliomassin on tliis sulijcct is very remark- able : '• His accessorc concilia Lateranensialll. IV. ul)i institiiti grammatica- et theologiic loctorcs in omnibus ecclcsiis mctropoli- tanis ct cathedralibus. Cfju're etiani increhescrre tinivcrsitatcs vcluti cirri luculmtn scmiiian'a. Quia ct beneficiorum pars non mcdiocris gradibus universitatum dodicata I'uit, ct his quidam macliiuis expugnata est igno- rantia." Tiiom. pt. ii., 1. i. c. 91, s. 7. (/) In the third Council of Lateral! (1139), liolden under Alexander tlie Third, the follow- ing Constitution was made and afterwards inserted in the body of the canon law. (Extra. 1. v. t. 3, c. 1.) " Quoniam ecclcsia Dei sicut pia mater providerc tenctur ne paupcribus, qui pa- rentum opibus Juvari non pos- sunt, Icgcndi et i)n)ficiendi op- ])ortunitas per unanuiuamquc cathedralem ecclcsiam inarjistro qui clericos cjusdcm ct srhohins jnntpfrcti (jralis doccat compctens aliquod beneticinm pncbeatur." This constitution was enlarged and confirmed by tiie fourth Lateran Council under Innocent the Third (1215). {}ii') Spelman, vol. i. p. 595 ; vol. ii. pp. 42, 120. SCHOOLS. 2037 '\^'l■^ght said, " I always Avas and still am of opinion that keeping of schools is by the old law of England of eccle- siastical cognizance (/i)." So Bishop Gibson observes, Of cccle- " the truth is, in our records before the Reformation schools siastical cog- arc often spoken of as ecclesiastical places, and the pos- jEnuiand'^ session of them in ecclesiastical terms. So, Avhere arch- bisho])s or bislio])s Averc patrons, the grant of them is styled collation (o)." In England, the names free school, endowed school and Different grammar school, are often used Avithout discrimination, ^^i"'^^ <'t^ But they haA'C distinct significations. En''l'and" A free school, to siieak strictly, is any school in which ,. " , „ ,, 1 . ' . ^ . • ^ re -I -I ^ ^^^ SCllOOlS. elementary instruction is gratuitously aiiorded, or Aery nearly so, to the children of a particular locality, AA'hether the funds be supplied by priA'ate subscriptions, as in many of our parochial schools, or, as in some corporate toAvns, from the property of the corporation. Endowed schools are those of Avhich the Avhole or ])rin- Endowed cipal expenses are defi'ayed oiit of cndoAvments bequeathed schools. by the munificence of their founder. Grammar schools are also endoAAcd schools, but to AAhich Grammar the constitution of their founder has annexed the condition schools. that classical instruction shall form either the Avhole or a large portion of the education AAhich they impart. These schools are no insignificant characteristic of the genius of this country. It is said that Spain is the only other kingdom in Europe Avhich affords any similar instance of the existence of a large and Avealthy class of national insti- tutions, gOA'crned entirely by the original laAA's of their rcspectiA-e founders, AAatli the exception of a fcAV cases in Avhich they liaAX been modified by the tribunals of parlia- ment or of courts of justice. After the Bcformation the fortunes of the cndoAved grammar schools undcrAvent con- siderable vicissitudes, for this CA'cnt abolishing the use of I^atin in the services of the church, rendered the knoAv- ledgc of that language an attainment of less necessity and an object of less desire than it had hitherto been. The grammar schools situated in populous and Avealthy toAvns, or those Avhich afterwards became so, retained their im- ]iortance ; nnd many also Avere preserved by their connec- tion Avith the universities, and the great advantages Avhicli they oftered ( y^) in the shape of felloAvships, scholarships (h) Vide infra, p. 2042. about 1')0 liavctlieso advantages. (o) Gibs. vol. ii. p. 1100, nolo. Since that time many of these (p) It is said by Mr. Carlisle, preferences liavc been abcdished in his work on this subject, that liy tlie University Commission cftit of 500 free and endowed, Acts. 2038 THE CnURCII IX Ili:U KKLATION TO CIIAUITIES, ETC. Foumlfttion of Sfliool.s in Eu-rland. Relation to colleircs. Erection of schoiil in churclivard. Application of land not ■wantt'd for church. Empowering grants of sites. and exlilbitions to those ■whom they ecliicated. Those schools to wliich tlicir founders liad not annexed the con- dition of instruction in the dead lanjjuafres have remained for the most ])art as charity or jj,ratiiitous schools of ele- mentary education, The j^reater ])art of the schools now existing in this country have indeed been founded during the sixteenth and seventeenth centuries, -when the liberal charity of individuals in some measure supplied the grievous deficiency of education occasioned by the spoliation of cathedrals and monasteries, and the confiscation of eccle- siastical property. Some, however, of the schools which most fiourished in England, and have obtained the general appellation of ])ublic schools, are of considerable antiquity ; some, like Eton and AVestminster, being the fruit of royal, and some, like Winchester and the Charter House, of private munificence. Some of these schools are colleges, or parts of colleges, as Eton, Westminster, Winchester, Dulwich ; some are hospitals, as Christ's Hospital, Sutton's Hospital (the Charter House), Emmanuel Hospital. Winchester was included under the Oxford University Commission Acts and Eton under the Cambridge ones (r). Both col- leges are legislated for in the Universities and Colleges Estates Acts (s). Provisions as to the AVcstminster stu- dentships at Clu-ist Chiu'ch, Oxford, are made by 30 & 31 Vict. c. 76, and as to the scholarships of the same school at Trinity College, Cambridge, by 19 & 20 Vict. c. 88, s. 36, and a subsequent order in council. Faculties have recently been granted for the erection of schools on portions of churchyards, though at one time it seems to have been thought that they could not be built on consecrated ground (t). 3 & 4 Vict. c. 60, s. 19, as extended by 4 8c 5 Vict. c. 38, s. 1 9, empowers the church building commissioners to apply land in any ]>arish granted to them for any of the purposes of the Church Building Acts, " for the purpose of any parochial or charitable school." Several acts have been ]iassed to enable bodies coi'jiorate and persons under disability to convey land for sites of schools for the education of poor children (?/). By 15 & 16 Vict. c. 49, reciting these acts, it is enacted that, "All the provisions contained in the said recited acts or any of them in relation to the conveyance and endow- (r) Vide supra, p. 1990. (s) Vide supra, pp. 2031— 2033. (<) Vide su2)ra, p. 1783. («) 4 & 5 Vict. c. 38 (repeal- ing G & 7 Will. 4, c. 70) ; 7 & 8 Vict. c. .37; 12 & 13 Vict. c. 49; 14 & loVict. C.24. SCHOOLS. 2039 ment of sites for such schools as are coDtemplatcd by the provisions of the said acts respectively, shall apply to and Sites of be construed to be applicable to the cases of such schools colleges for as hereinafter specified; (that is to say) schools or colleges ^"^ and'theo^ for the religious or educational training of the sons of lo^^ical yeomen or tradesmen or others, or for the theological colleges. training of candidates for holy orders, which are erected or maintained in part by charitable aid, and Avhicli in part are self supporting, in the same or the like manner as if such schools or colleges as last aforesaid had been expressly specified in the said act, 4 & 5 Vict. c. 38, and the said subsequent acts, and the same or the like powers had been thereby given for or in relation to the conveyance and endowments of sites for such schools or colleges, and for the residences of schoolmasters, or otherwise in connection therewith, as are by the said acts given for or in reference to the conveyance and endowment of sites for schools falling within the provisions of those acts : provided always, that no ecclesiastical corporation, sole or aggregate, shall be authorized to grant any site under this act, except for schools or colleges which shall be conducted upon the principles of and be in union with the Church of England and Ireland as by law established ; and that no ecclesias- tical corporation, aggregate or sole, shall grant by Avay of gift, and without a valuable consideration, for any of the purposes of this act, any greater quantity of land in the whole than two acres ; and that no other person or persons or corporation not coming within the class or description of persons empowered by the second section of the said act of the fourth and fifth years of the reign of her present Majesty to convey land for sites as therein mentioned, shall grant, by way of sale for a valuable consideration for any of the purposes of this act, any greater quantity of land in the whole than two acres, or shall grant any land whatever for any of the pui-poses of this act by Avay of gift and A\ithout a valuable consideration, anything in the said recited acts or hereinbefore contained to the contrary notwithstanding." By the old law a grammar school was holden to be so I^fiw as to strictly intended for the purpose of teaching the learned f^'"'";)'^'"" languages, that it would be an alteration of the olyect of the schools. charity to divert part of the funds to teaching modern languages or sciences. This rule was afterwards some- what relaxed. But the great change was effected by 3 & 4 Vict. c. 77, Avhich enabled courts to make schemes extending or altering the course of education, altering the terms of admission, and the appointment of the masters. 2010 Tin: CIIIIH II IN IIKU KKLATION TO ( II AKITIKS, ETC. Excnijitions from tliis act. By poct. 24, liowovcr, cert a in foi nidations arc exempted from tlic o))erali()ii of" tliis act, viz., "the T'^nivorsities of Oxi'ord or C'anilnidije, or any college or hall Avithin the same, or the Fiiivci'sity of London, or any colleges con- nected therewith, or the University of Durham, or the college of Saint David's or Saint lice's, or the grammar schools of AVestminster, Eton, Winchester, Harrow, Charter House, Kngby, Merchant Taylors, Saint Paul's, Christ's Hosj)ital, liirmiugham, Manchester, or iSIacclcs- ficld, or Louth, or such schools as form })art of any cathedi'al or collcffijite church." Licence, by Canon of lfi03. 77 Cor;/ V. Ihppcr. Cox's case. Sect. 2. — Ecclesiastical Jurisdiction over (Jranuiiar Schools. (^neen Elizabeth, in an injnnction set forth in the first year of her reign, ordains that " no man shall take npon him to teach, hut snch as shall be allowed by the ordi- norj/, and found meet as well for learning and dexterity in teaching, as for sober and honest conversation, and also for right understanding of God's true religion (.r). By Canon 77 of 1603, no man shall teach either in jniblic school or private house, but such as shall be allowed by the bishop of the diocese, or ordinary of the place, imder his hand and seal ; being found meet, as well for his learning and dexterity in teaching, as for sober and honest conversation, and also for right understanding of God's true religion : and also, except he first subscribe simply to the first .and third articles in the thirty-sixth canon, con- cerning the king's supremacy and the Thirty-Nine Articles of religion, and to the two first cLauses of the second article concerning the Book of Common Prayer, viz. that it con- tains nothing contrary to the word of God, and may law- fully be used. And in Corij v. Pejiper, in 30 Car. 2, a consultation Avas granted in the Court of King's Bench, against one who taught without licence in contempt of the canons ; and (the reporter says) the reason given by the court was, that the canons of 1603 are good by the statute 2.3 Hen. 8, c. 19, so long as they do not ini})ugn the common law, or the ])rerogative royal (//). The argiunent in Cox\s case seems to contain the sub- stance of Avhat has been alleged on botli sides in this matter, and concludes in favour of the ecclesiastical juris- (x) Spar. Col. p. 78: Inj. 40; Gibson's Cod. vol. ii. p. 10[ty, note, (y) 2 Lev. 222; Gibs. 9%. SCHOOLS. 2041 diction. The case occurred in the year 1700, in the Court of Chancery. Cox was Ubelled against in the spiritual court at Exeter, for teach ino- school without licence from the bishop ; and on motion before the lord chancellor, an order was made that cause should be shoAvn why a prohibi- tion shoidd not go, and that in the meantime all things should stay. On showing cause, it was moved to discharge the said order, alleging, that before the Reformation this was certainly of ecclesiastical jurisdiction (2-) ; and in proof thereof, was cited the 1 1th canon of the council of Lateran, By Council of holden in the year 1215, which canon has been received by l^ateran and custom in this kingdom, and so made part of our eccle- ia,y_ siastical laws; that the statute 1 Eliz. c. 1, having restored * the spiritual jurisdiction to the crown, which had been usurped by the pope, immediately thereupon the queen set forth eccle?;iastical injunctions, one of which was, that no man should teach school without being allowed thereto by the ordinary ; that it must be admitted, these injunc- tions were not confirmed by any act of parliament, but their being referred to and mentioned in 5 Eliz. c. 1 , was an argument that the legislature did approve them ; that in the 12th year of that queen, the said injunctions (and amongst them, this of teaching school Avithout licence from the ordinary) were, by the convocation then sitting, turned into canons; that afterwards the statute of the 23 Eliz. c. 1, was the first statute that prohibited it ; since which, two others had followed, but none of them tended to destroy the ecclesiastical jurisdiction, — only, by making the offence punishable in both courts, gave a remedy Avhere there Avas none before ; that in the first year of King James, the convocation met, Avhich reduced all the canons into one body, and then particularly made this canon, that none should teach school Avithout licence from the ordinary ; and though it might be difficult to prove that these canons Avere directly confirmed by act of jiarliament, yet there Avas a sort of confirmation of them in the statute 4 Jac. 1, c. 7, for the founding and incorporating a fi'ee grammar school at North-Leech, in the county of Gloucester, Avhereby the provost and scholars of Queen's College in Oxford Avere to nominate the schoolmaster and usher of the said school, and to make such ordinances for the government thereof as they should see meet, so that the same Ave re not repugnant to the king's prerogative, to the (s) I.e. the 4th Council of La- p. 1518, \. x. fol. ed. of Councils, tcran. See s. xviii. of iJnl printed at Paris, and remarks iix Council of Lateran, a.u. 117'J, preface to this chapter. P. VOL. ir. . 6 p 2042 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Cox's case. Over what schools the ecclesiastical court has juris- diction. laws and statutes of the realm, or to any ecclesiastical canons or constitutions of the Church of England. But on the other side, it was answered, that there could not be one canon or ])rccedent before the Keformation cited to prove the keejiinc; of school to be of ecclesiastical cogni- zance ; for that supposing the council of Lateran to have been in every part thereof received in England, yet the canon cited did not prove the point for which it had been ])roduced, that canon only appointing schoolmasters in every cathedral church, and such schoolmasters to be licensed by the bishop ; which was but reasonable, namely, that he who taught in the bishop's chiu'ch should be approved of by the bishop ; that the teaching of school was not in the nature thereof spiritual; and it would be hard to affirm that it was of ecclesiastical juris- diction, or cognizable by the old ecclesiastical laws of the kingdom received by common use, at the same time that not one single precedent of any such law or usage before the Reformation Avas to be found; and that as to the canons made since, they did not bind a layman (as Cox Avas suggested to be), because the laity were hot repre- sented in convocation ; neither could a reference to the canons in a private act of parliament add any greater weight to them than they had before: that this was a case Avhich deserved great consideration, having before been in the other coiu'ts of ^^'estminster-hall, Avhere several prohi- bitions had been granted on this very same point, in order that it might receive a judicial determination, but the other side would never venture to go on ; as in OlclfieJd^s case, M., 9 Will. 3; the case of Belcham v. Barnardis- ton, E., 10 Will. 3 ; Chedicidis case, M., 10 Will. 3 ; Scoriers case, T., 11 Will. 3; and Davison s case, T., 12 Will. 3(i); that supposing it to have originally been a spiritual crime, yet being now made temporal by several acts of parliament, it Avas thereby draAvn from the spiritual to the temporal, jurisdiction. By Wright, Lord Keeper : " Both courts may have a concurrent jurisdiction ; and a crime maybe ])unishal^lc both in the one and in the other: the canons of a convocation do not bind the laity Avithout an act of parliament ; Imt I always Avas, and still am of opinion, that keeping of school is by the old laAvs of Eng- land of ecclesiastical cognizance : and therefore let the order for a prohibition be discharged." Whereupon it w^as moA'cd, that this libel Avas for teaching school gene- rally, Avithout sho\\'ing Avhat kind of school ; and the (//) 1 Salk. 105. SCHOOLS. 2043 Court Christian could not have jurisdiction of writing- schools, reading- schools, dancing- schools, or such like (c). To which the lord keeper assented, and thereupon granted a prohibition as to the teaching of all schools, except grammar schools, which he thought to be of ecclesiastical cognizance {d). This power of the ordinary was confirmed and strength- ened by the following sections of the 3 & 4 Vict. c. 77 : — Sect. 7. " Although under the provisions hereinbefore Schools to be contained the teaching of Greek or Latin in any grammar gi'a'nmar school may be dispensed with, every such school, and the oreck'^and " masters thereof, shall be still considered as grammar Latin dis- schools and grammar schoolmasters, and shall continue P^n^ed with, subject to the jurisdiction of the ordinary as heretofore; subicc't to the and that no person shall be authorized to exercise the ordinary. office of schoolmaster or under-master therein without having such licence, or Avithout having made such oath, declaration, or subscription as may be required by law of the schoolmasters or under-masters respectively of other grammar schools." Sect. 15. "In all cases in which no authority to be Where no exercised by Avay of visitation in resi^ect of the discipline rowers of visi- n 11* ii* 1 tation, court 01 any grammar school is now vested in any known per- ^ create son or persons, it shall be lawful for the bishop of the them. diocese wherein the same is locally situated to apply to the Court of Chancery, stating the same ; and the said court shall have power, if it so think fit, to order that the said bishop shall be at liberty to visit and regulate the said school in respect of the discipline thereof, but not further or otherwise." Sect. 24. " Provided always, that neither this act nor Saving of any thing therein contained shall be any way preiudicial ''^oV^^s of ' . orclinnrv or hurtful to the jurisdiction or power of the ordinary, but that he may lawfully execute and perform the same as heretofore he might according to the statutes, common law, and canons of this realm, and also as far as he may be further empowered by this act." Among the articles preserved in Strype's Memorials of Visitation Archbishops' Visitations, the following is of constant articles. occurrence : — " Item. AYhether your grammar school be Avell ordered; whether the numl)er of children thereof be furnished; how many wanted, and by whose default ? Whether they be (c) It was said, in Rector^ &c. clesiastical cognizance. Vide of St. Gcorge'><, Hanover Square su/>ra, p. 1783. V. Siiiart, Stra. 1120, that a (d) 1 P. Will. 29. charity- scliool is not within oc- G I> 2 2044 THE CHURCH IN HER RELATION TO CHARITIES, ETC. Articles for teac'liiiifr with- out liccuce. 32 & 33 Vict. c. 5(3. The on! i nary may refuse to grant licence; and may examine a schoolmaster ap])lyin<^ for a licence as to his morality, re- ligion, and learaincf. (lillo-ently and godly brought iij) in the fear of God and Avholesonic doctrine ; -wliether any of them have been received for money or reward.s, and by whom ? Whether the statute foundations, and other ordinances touching the said grammar school, the schoolmaster, or the scholars thereof, or any other having or doing therein, be kept ? By whom it is not observed, oi* b}' whose fault ? And the like in all })olnts you shall require and present such your chorists and their master." In the last edition of Dr. Burn's Ecclesiastical Law a form of certificate for obtaining a licence to teach, and one of articles against a person for teaching a grammar school, were inserted. Xow, however, by 32 & 33 Vict. c. 5G, s. 20, the endowed schools commissioners are to provide in every scheme for a school coming under that act for the aboli- tion of the power of the ordinary as to licensing () 31 & .32 Vict. c. 118, ss. G, (?) See also 33 & 34 Vict. 7, 12. SCHOOLS. 2051 parents or guai'diaiis wish to -withdraw them from the rehgious instruction given in the schooL Certain special commissioners are appointed with certain powers of legislation on the same subjects ; and all statutes made by the governing bodies are to be approved by them and by the queen in council (sects. 9, 10, 15 — 19). By sect. 20, provision is made for the transfer by the dean and chapter of AVestminster and the ecclesiastical com- missioners of lands and money to Westminster School. Sect. 22 provides for the sale of livings belonging to Shrewsbury School ; sect. 23, for separating the spiritual cure of the parish of Eton from the provostship of the college. By sect. 31, "The chapel of every school to which Provision as to this act applies shall be deemed to be a cliapel dedicated ^"^^^0^ chapels. and allowed by the ecclesiastical laAv of this realm for the performance of public Avorship and the administration of the sacraments according to the liturgy of the Church of England, and to be free from the jurisdiction or control of the incumbent of the parish in Avhich such chapel is situate. " Any scheme which may be made in pursuance of this act constituting the parish of Eton a separate A-icarage shall contain provisions making the existing chapel of ease at Eton the pai-ish church of Eton, and exempting the college chapel from being dealt -^dth as a parish church." Nothing is said in the acts as to the members of the governing bodies being members of the Church of England or otherwise. In the two governing bodies which were first created, those of Eton and Westminster, provision has been made in the constituting statutes for all members of the governing bodies being members of the Church of England. In the cases of some of the other schools a similar provision was proposed to be inserted, but objections were raised in parliament and elsewhere, and it is under- stood that this provision Avas omitted. Bearing in mind the fact that the religious education in these schools is to be still, as it has been, that of the church, it would seem to follow that the governors should be — as it was decided in Re llminstcr School (c), that the trustees of other grammar schools must be — members of the church. The EndoAved Schools Act (32 8c 33 Vict. c. 66) seems Endowed to apply to all schools in England, except those specially schools. excepted by sect. 8. These are : — "(1.) Any school mentioned in sect. 3 of the PuLiic Nothing in Schools Act, 1 868 ( d). this act, ex- (c) Vide supra, p. 2050. {cT) 31 & 32 Vict. c. 118. 20 J 2 Till-: LllUKClI IN IIEU KKLATION TO CIIAUITIES, ETC. copt as cx- j)rcssly providcil, to apply to cer- tain schools lioreiu named. Not to autho- rize schemes for interfering with modern endowments, cathedral schools, etc. As to religious education in day schools. "(2.) Any school mIhcIi, on Jannaiy 1st, 18G9, was maintained wliolly or partly out of animal A-olnntary sub- scriptions, and had no endowment exce])t school l)iiildinj?s or teachers' residences, or j)lay-ground or gardens attached to such buildings or residences. " (3.) Any school which, at the commencement of this act, is in receipt of an annual grant out of any sum of money appropriated by parliament to the civil service, intituled ' For l*ublic I'^ducation of Great IJritain,' unless such school is a grammar school, as defined by 3 & 4 Vict. c. 77, or a school, a department of whicli only is in receipt of such grant. " (4.) Any school (unless it is otherwise subject to this act) which is maintained out of any endowment, the in- come of which may, in the discretion of the governing body thereof, be wholly applied to other than educational purposes. " (5.) Any school (unless it is otherwise subject to this act) which receives assistance out of any endowment, the income of which may, in the discretion of the governing body of such endowment, be applied to some other school. " (6.) Any endowment ap])licable and applied solely for promoting the education of the ministers of any church or religious denomination, or for teaching any particular profession, or any school (unless it is otherwise subject to this act) which receives assistance out of such endowment. " (7.) Any school which, during the six months before January 1st, 1869, was used solely for the education of choristers, or the endowment of any such school, if appli- ca1)le solely for such education." As to these schools it is provided as follows : — Sect. 14. " Nothing in this act shall authorize the making of any scheme interfering — " (1.) With any endowment or part of an endowment (as the case may be) originally given to charitable u.ses, or to such uses as are referred to in this act, less than fifty years before the commencement of this act, unless the governing body of such endowment assent to the scheme. " (2.) With the constitution of the governing body of any school wholly or partly maintained out of the endow- ment of any cathedral or collegiate church, or forming part of the foundation of any cathedral or collegiate . church, unless the dean and chapter of such church assent to the scheme." Sect. 15. " In every scheme (except as hereinafter mentioned) relating to any endowed school or educational endowment, the commissioners shall provide that the parent SCHOOLS. 2053 or guardian of, or person liable to maintain or having tlie actual custody of, any scholar attending such school as a day scholar, may claim, by notice in writing ad(h-essed to the principal teacher of such school, the exera]:)tion of such scholar from attending prayer or religious worship, or from any lesson or series of lessons on a religious subject, and that such scholar shall be exempted accordingly ; and that a scholar shall not by reason of any exemption from attending prayer or religious worship, or from any lesson or series of lessons on a religious subject, be deprived of any advantage or emolument in such endowed school, or out of any such endowment to which he would otherwise have been entitled, except such as may by the scheme be expressly made de- pendent on the scholar learning such lessons. " They shall further provide, that if any teacher, in the course of other lessons at which any such scholar is in accordance Avith the ordinary rules of such school present, teaches systematically and persistently any particidar re- ligious doctrine, from the teaching of which any exemption has been claimed by such a notice as is in this section before provided, the governing body shall, on complaint made in writing to them by the parent, guardian or person having the actual custody of such scholar, hear the complainant and inquire into the circumstances, and, if the complaint is judged to be reasonable, make all proper provisions for remedying the matter complained of." Sect. 16. "In every scheme (except as hereinafter As to relig;ious mentioned) relating to an endowed school, the commis- ^^ucation m sioners shall provide, that if the j^arent or guardian of, or schools." person liable to maintain or having the actual custody of, any scholar Avho is about to attend such school, and who, but for this section could only be admitted as a boarder, desires the exemption of such scholar from attending prajer or religious Avorship, or from any lesson or series of lessons on a religious subject, but the persons in charge of the boarding houses of such school are not Avilling to alloAv such exemption, then it shall be the duty of the governing body of such school to make proper ]n-ovisions for enabling the scholar to attend the school and have such exemption as a day scholar, Avithout being deprived of any advantage or emolument to Avhich he Avould otherwise have been entitled, except such as may by the scheme be expressly made dependent on the scholar learning such lessons ; and a like provision shall be made for a complaint by such parent, guardian, or person as in the case of a day school." Sect. 17. "In every scheme (except as hereinafter Governing mentioned) relating to any educational endowment the body not to be 2054 THE CIIUKCII IN IIEU RELATION TO CHARITIES, ETC. disqualified on ground of religious ojjiuiuus. blasters not to be required to be in holy orders. Schools ex- cepted from jirovisions as to religion. Abolition of jurisdiction of ordinary as to licensing masters. commissioners shall provide that the religious opinions of any pei*son, or his attendance or non-attendance at any particular form of religious worship, shall not in any way affect his qualification for being one of the governing body of such endowment." Sect. 18. " In eveiy scheme (except as hereinafter mentioned) relating to an endowed school, the commis- sioners shall provide that a person shall not be disqualified for being a master in such school by reason of his not being or not intending to be in holy orders." Sect. 19. "A scheme relating to — " (1.) Any school which is maintained out of the en dowment of any cathedral or collegiate church, or foniis part of the foundation of any cathedral or collegiate church ; or "(2.) Any educational endowment, the scholars edu- cated by which are, in the opinion of the commissioners (subject to appeal to her majesty in council as mentioned in this act), required by the express terms of the original instrument of foundation or of the statutes or regulations made by the founder or under his authority in his lifetime or Avithin fifty years after his death (which terms have been observed down to the commencement of this act) to learn or to be instructed according to the doctrines or formularies of any particular church, sect, or denomina- tion, is excepted from the foregoing provisions respecting religious instruction and attendance at religious worship (other than the pi'ovisions for the exemption of day scholars from attending prayer or religious worship, or lessons on a religious subject, Avhen such exemption has been claimed on their behalf), and respecting the qualifi- cation of the governing body and masters (unless the governing body, constituted as it Avould have been if no scheme under this act had been made, assents to such scheme). " And a scheme relating to an}- such school or endow- ment shall not, without the consent of the governing body thereof, make any provision respecting the religious in- struction or attendance at religious worship of the scholars (except for securing sucli exemption as aforesaid), or respecting the religious opinions of the governing body or masters." Sect. 21. " In every scheme the commissioners shall provide for the abolition of all jurisdiction of the ordinary relating to the licensing of masters in any endowed school or of any jurisdiction arising from such licensing." SCHOOLS. 2055 Sect. 20 empowers the commissioners to provide by scheme for the transference of the visitatorial power from special visitors to the charity commissioners ; and sect. 22 makes all teachers in the schools dismissible at pleasure. Sect. 27. " AVhere an educational endowment at the Claims of commencement of this act forms or has formed part of the cathedral endowment of any cathedral or collegiate church, the ecclesiastical commissioners shall inquire into the adequacy of such commissioners. educational endowment, and may submit to the ecclesias- tical commissioners for England pro])osals for meeting, out of the common fund of the ecclesiastical commis- sioners, the claim of any school receiving assistance out of the endowment of any such church, to have an increased provision made for it in respect of any estates of such church which may have been transferred to the ecclesi- astical commissioners. And the ecclesiastical commis- sioners, on assenting to any such proposal or any modifi- cation of it, may make such provision out of their common fund by such means and in such manner as they think best, and a scheme under this act may, with their consent, be made for carrying such proposal into effect." Sect. 53. " The chapel of an endowed school subject to School chapels this act, which either has been before or after the com- appropriated mencement of this act consecrated according to law, or is -^vorshiiffiee atithorized for the time being by the bishop of the diocese from parochial in which the chapel is situate, by writing imder his hand jurisdiction. to be used as a chapel for such school, shall be deemed to be allowed by law for the performance of public worship and the administration of the sacraments according to the liturgy of the Chiu'ch of- England, and shall be free from the jurisdiction and control of the incumbent of the ])arish in which such chapel is situate." By the Elementary Education Act, 1870 (33 & 34 Elementarj Vict. c. 75), the following provisions are made as to the schools. religious nature of primary schools. Sect. 7. " Every elementary school which is conducted Regulations for in accordance with the following regulations shall be a conduct of public elementary school within the meaning of this act; fary 'school.^"' and every public elementary school shall be conducted in accordance with the following regulations (a copy of which regulations shall be conspicuously put up in every such school); namely, — "(1.) It shall not be required, as a condition of any child being admitted into or continuing in the school, that he shall attend or abstain from attending anv Sunday- school, or any place of religious worship, or that he shall 20J6 THE CHUECn IN HER KELATION TO CHAUITIES, ETC. Management of school by school board. Transfer to school board. Inspection of voluntary schools by inspector not one of Ilcr Majesty's in- spectors. attend any religious observance or any instruction on religious subjects in the school or elsewhere, from which observance or instruction he may be withdrawn by his ])arent, or that he sliall, if withdrawn by his parent, attend the school on any day exclusively set apart for religious observance by the religious body to which his parent belongs. "(2.) The time or times during Avhich any religious observance is practised or instruction in religious subjects is given at any meeting of the school, shall be either at the beginning or at the end, or at the beginning and the end of such meeting, and shall be inserted in a time table to be approved by the education department, and to be kept permanently and conspicuously affixed in every schoolroom ; and any scholar may be withdrawn by his parent from such observance or instruction without forfeit- ing any of the other benefits of the school. " (3.) The school shall be open at all times to the in- spection of any of her majesty's insj^ectors, so, however, that it shall be no part of the duties of such inspector to inquire into any instruction in religious subjects given at such school, or to examine any scholar therein in religious knowledge, or in any religious subject or book. " (4.) The school shall be conducted in accordance Avith the conditions required to be fulfilled by an elementary school in order to obtain an annual parliamentary grant." Sect. 1-i. " Every school provided by a school board shall be conducted under the control and management of such board in accordance with the following regula- tions: — " ( 1 .^ The school shall be a public elementary school within the meaning of this act. "(2.) No religious catechism or religious formulary which is distinctive of any particular denomination shall be taught in the school." By sect. 23, the managers of any elementary school may transfer their school to the school board, Avherever there is one estaljlished. Sect. 75 makes provision for schools with small endowments, which are excepted from the Endowed Schools Act. Sect. 76. " Where the managers of any public elemen- tary school not provided by a school board desire to have their school inspected or the scholars therein examined, as well in respect of religious as of other subjects, by an in- spector other than one of her m.ajesty's inspectors, such managers may fix a day or days not exceeding two in any one year for such inspection or examination. SCHOOLS. 2057 " The managers shall, not less than fourteen days before any day so fixed, cause public notice of the day to be given in the school, and notice in writing of such day to be conspicuously affixed in the school. " On any such day any religious observance may be prac- tised, and any instruction in religious subjects given, at any time during the meeting of the school ; but any scholar who has been withdrawn by his parent from any religious observance or instruction in religious subjects shall not be required to attend the school on any such day." Sect. 96. " After the 31st of March, 1871, no parha- Parliamentmy mentary grant shall be made to any elementary school S'^i"' to jhiIjIic Avhicli is not a public elementary school "svithin the mean- school only. ing of this act." Sect. 97. " The conditions required to be fulfilled by an Conditions of elementary school in order to obtain an annvial parliamen- -'i"^"'" parha- *^ 1 n 1 1 • 1 • 1 • i /■ ji mentary grant. tary grant shall be those contained m the mniutes oi the education department in force for the time being, and shall, amongst other matters, provide that after March 31, 1871— " Such grant shall not be made in respect of any in- struction in religious subjects : " But such conditions shall not require that the school shall be in connection with a religious denomination, or that religious instruction shall be given in the school, and shall not give any preference or advantage to any school on the ground that it is or is not provided by a school board." VOL. n. 6 Q 2058 THE ciiiT.cir ix in:i; kklatiox to ciiaiiities, etc. CHAPTER VI. MISCELLANEOUS. The cliurcli 1ms still snmo remains of jiirifdiction over and legal connection with tlic learned and scientific professions and learning generally, Avliich require to be noticed. Notaries The jurisdiction of the master of the faculties, the public. officer of the Archbishop of Canterbury, in the creation and government of notaries public, has already been men- tioned (ff). As to physicians, the following constitution and statutes are of ecclesiastical interest: — riiysitians. " Forasmuch as the soul is far more precioiis than the " body, Ave do prohibit under the pain of anathema, that no " physician for the health of the body shall jn-escribe to a " sick person anything which may prove perilous to the " soul. But when it hap})ens that he is called to a sick " person, he shall first of all effectually persuade him to " send for the ]ihysicians of the soul ; that after the sick " person hath taken care for his spiritual mendicament, he " may with better effect proceed to the cure of his body. " And the transgressors of this constitution shall not escape " the punishment ap])ointed by the coimcil" (i). That is, by the council of Lateran, under Innocent III., from the canons of which council this constitution was taken ; Avhich punishment is a prohibition from the entrance of the church until they shall have made competent satis- faction (c). 3 Ilcn. 8, c. 11. By 3 lien. 8, c. 11: "Forasmuch as the science and " cunning of physic and surgery (to the perfect knowledge " Avhereof be rerpiisite ])otli great learning and ripe experi- " ence) is daily within this realm exercised by a great mid- " titude of ignorant ])ersons, of whom the greater part have " no manner of insight in the same nor in any other kind " of learning, some also can no letters on the book ; so far " forth, that common artificers, as smiths, weavers, and " Avomcn, boldly and accustomably take u])on them great " cures, and things of great difficulty, in the which they " pai-tly use sorcery and witchcraft, partly apply such (a) Vide supra, Part R'.. (/^ ^Vethershed, Lind. 330. Cliap. v., Sect 5. (cj Wethershed, Johns. MISCELLANEOUS. 2059 medicines unto the disease as be very noious, and no- thing meet thereof; to the high displeasure of God, great infamy to the facuhy, and the grievous hurt and destruc- tion of many of the king's hege people, most esjiecially of them that cannot discern the uncunning from the cunning: Be it therefore (to the surety and comfort of all manner of people) enacted, that no person within the city of London, nor within seven miles of the same, shall take upon him to exercise and occupy as a physician or surgeon, except he be first examined, approved, and ad- mitted by the Bisho]:) of London, or by the Dean of St. Paul's for the time 1)eing, calling to him or them foiu' doctors of physic, and tor surgery other expert persons in that faculty, and for the first examination such as they shall think convenient, and afterwards always four of them that have been so aj^proved ; upon pain of forfeiture, for every month that they do occupy as physicians or surgeons, not admitted nor examined after the tenor of tliis act, of 51., half to the king, and half to him that shall sue. And that no person out of the said city, and pre- cinct of seven miles of the same, except he have been, as is aforesaid, approved in the same, take upon him to exer- cise and occupy as a physician or surgeon, in any diocese within this realm, unless he be first examined and approved by the bishop of the same diocese, or (he being- out of the diocese) by his vicar general, either of them calling to them such expert persons in the said faculties as their discretion shall think convenient, and giving their letters testimonial under their seal to him that they shall so approve, u]5on like pain to them that occupy contrary to this act (as is aforesaid), to be levied and employed after the form before expressed (r/): " Provided that tliis act shall not be prejudicial to the Universities of Oxford or Cambridge, or either of them, or to any privileges granted to them." The Act 14 & 15 Hen. 8, c. 5, confirmed by 1 Mar. l4&_ioilen. sess. 2, c. 9, incorporated the College of Physicians, and ^' ^- ^■ contained divers provisions for the licensing of physicians by the president and elects of the college. These acts, however, have been practically re])ealed, and new ])ro visions wholly of a secular character have been made by The :Medical Act, 1858 (21 & 22 Vict. c. 90), and the Act to amend the ]Mcdical Act (23 & 24 Vict. c. 66). As to surgeons, tlie old law was, that they shall be Surgeons. licensed by the bishop of the diocese, or his vicar general respectively. (d) See 34 & 35 IT -mi. 8, c. 8. 6 Q 2 2060 THE CHUKCII IN IIEK KELATIOX TO CIIAlilTIES, ETC. Surgeons. By 32 Hen. 8, c. 40, tlie Ixirhers and surgeons of London Avere united and incorporated, and exempted from Learing arms, or serving on in(juests or offices. But they Avere not to use each other's trade. By 1 8 Geo. 2, c. 15, the union was dissolved ; and tlic siu-geons of London were made a separate corj^oration, with ])ower to enjoy the same privi- leges as by former acts or grants (^e). Knowledge of Latin is a ])revious qualification necessary even to be apprenticed to a London surgeon {/)• In the case of the Collcrje of Plnjsicians v. Levett, the plaintiffs brought an action of debt against the defendant for 25/. for having practised physic within London five months Avithout licence. Upon nil debet pleaded, it was tried before Holt, Chief Justice, at Guildhall ; and the de- fence was, that he Avas a graduate doctor of Oxford. But it Avas ruled by Holt, upon consideration of all the statutes concerning this matter, that he could not practise Avithin London, or seA-en miles round, Avithout licence of the CoUege of Physicians. And by his direction a verdict Avas giA^en for the plaintiffs (y). And the like Avas adjudged on a special verdict, in 1717, in the case of Dr. West, avIio Avas a graduate of Ox- ford (A). Apothecaries. By 55 Geo. 3, c. 194, many impoi'tant regulations Avere made as to the education, examination, admission and jH'actice of apothecaries. See also 6 Geo. 4, c. 133 ; 2 & 3 Will. 4, c. 75 ; 15 & 16 Vict. c. !JQ. But the most im- portant acts are the Medical Act, 1858 (21 & 22 Vict. c. 90), and its amending acts, 22 Vict. c. 21 ; 23 Vict. c. 7; 23 & 24 Vict. c. QQ ; 25 & 26 Vict. c. 91 ; 31 & 32 Vict, cc. 29, 121; 32 & 33 Vict. c. 117. Midwives. Heretofore, in cases of necessity, the office of bap- tizing Avas frequently performed by the midwife ; and it is very probable that this gave occasion first to midwives being licensed by the bishop or his delegate's officer ( /). And by several constitutions the minister Avas required frequently to instruct the people, in the foi*m of Avords to be used in such cases of necessity. In order for the midwife's obtaining a licence, she must be recommended under the hand of matrons, Avho have experienced her skill, and also of the parish minister. (e) See Sharpe, q. t. v. Law, 4 Burr. 2133. ( f) Rex\. Surgeons' Compumj, 2 Burr. 892. (^) Lord Raymond. 472. See al. It seems, hoAvever, that if there be a suit in the spiritual court against a Avoman for exercising the trade of a mid- Avife A\ithout licence of the ordinary, against the canons, a prohibition lies; for this is not any spiritual function of Avhich they have cognizance (m). (Z) Book of Oaths. is alkulcd to in vol. G of Burnet's Im) 2 Rollc's Aln-. 286. The History of liis Own Times (8vo. practice of baptii-m by midwives ed.). The practice Avas, hoAV- MISCELLANEOUS. 2063 By 7 Ann. c. 14, s. 1 : " Whereas iu many places in Purochial England the provision for the clergy is so mean that the lil'iarics. necessary expense of books for the better prosecution of Establishment their studies cannot be defrayed by them ; and Avhereas libraries con- several persons of late years have by charitable contri- firmed. butions erected libraries within several parishes and dis- tricts; but some provision is wanting to preserve the same, and such others as shall be provided in the same manner, from embezzlement :" it is enacted, " that in every parish or place where such a library is or shall be erected, the same shall be preserved for such uses as the same is and shall be given ; and the orders and rules of the founders thereof shall be observed and kept." Sect. 3. " And it shall be lawful for the proper ordinary, Ordinary to or his commissary or official, or the archdeacon, or by his '^'^^^^ ^^^^ same, direction his official or surrogate, if the said archdeacon be not the incumbent of the place where such library is, in their visitation to inqidre into the state and condition of the said libraries, and to amend and redress the grievances and defects of and concerning the same, as to him or them shall seem meet ; and it shall be lawful for the proper ordi- nary from time to time, as often as shall be thought fit, to appoint such persons as he shall think fit, to view the state and condition of such libraries ; and the said ordinaries, archdeacons, or officials respectively, shall have free access to the Same, at such times as they shall respectively ap- point." Sect. 6. " And to prevent any embezzlement of books To be locked upon the death or removal of any incumbent, immediately "P dnring the after such death or removal, the library belonging to such church^ " parish or place shall be forthwith shiTt up and locked, or otherwise secured by the churchwardens, or by such per- sons as shall be authorized by the proper ordinary or arch- deacon respectively, so that the same shall not be opened again till a new incumbent, rector, vicar, minister, or curate shall be inducted or admitted." Sect. 7. "Provided, that if the place where such library shall be ke]')t shall be used for any public occasion, for meeting of the vestry, or otherwise for the dispatch of any business of the said parish, or for any other public occa- sion for Avhich the said place hath been ordinarily used, the said place shall, nevertheless, be made use of as for- merly for such purposes, and after such business dispatched, ever, among those which -were tions, tit. " Quod non oportct first condomned by the Cliurch. mulieresbaptizare, esse enim ini- Soe the 9th section of tlie third ])ium et a doct.rina Christi book of the Apostolical Institu- alienum." 2064 Tin: ( in K( II in iiku kklation to ( iiaiiitiks, etc. Xew incnni- hent to give security. And to make new catalogues. Books not to be alienated. Remedy in case of books lost or detained. s^hall be aoain loiiliwilli .^liiil and locked up, or otherwise secured as is l)ol"ore directed." Sect. 2. " And for the encouragement of such founders and benefactors, and to the intent they may be satisfied that their pious and charitable intent may not be frustrated, every incumbent, rector, vicar, minister, or curate of a parish, before he shall be permitted to use or enjoy such library, shall enter into such security l)y bond or otherwise for preservation of such librni-y and due observance of the rules and orders belonging to the same, as the proper ordinaries Avithin their respective jurisdictions in their dis- cretion shall think fit." Sect. 4. " And where any library is appropinated to the use of the minister of any parish or place, every rector, vicar, minister or curate of the same, within six months after his institution, induction or admission, shall make a new catalogue of all books remaining in or belonging to such library, and shall sign the said catalogue, thereby acknowledging the custody and possession of the said books ; which said catalogue so signed shall be delivered to the proper ordinary Avithin the time aforesaid, to be kept or registered in his court, without any fee or reward for the same." Sect. 5. "And where any library shall at anytime here- after be given and appropriated to the use of any parish or place Avhere there shall be an incumbent, rector' vicar, minister or curate in possession, he shall make a catalogue thereof, and deliver the same as aforesaid, Avithin six months after he shall receive such library." Sect. 10. "And none of the said books shall in any case be alienable or be alienated, Avithout the consent of the proper ordinary, and then only AA^hen there is a duplicate of such book. " And in case any book or books be taken or othei'- Avise lost oiTt of the said library, it shall be laAvful for a justice of the peace to grant his Avarrant to search for the same ; and in case the same be found, such book or books so found shall, immediately, by order of such justice, be restored to the said library." Sect. 2. " And in case any book or books belonging to the said library shall be taken aAvay and detained, it shall be laAvful for the incumbent, rector, vicar, minister or curate for the time being, or any other person or persons, to bring an action of trover and conversion in the name of the proper ordinaries Avithin their respective jurisdic- tions, AA'hereupon treble damages shall be giA^en, Avith full costs of suit, as if the same Avere his or their proper book MISCELLANEOUS. 2065 or books, Avhich damages shall be applied to the use and benefit of the said library." Sect. 8. " And for the better preservation of such books, Account to be and that the benefactions given towards the same may ap- '^^P*^ ^^ ^^^^ pear, a book shall be kept Avithin the said library for the entenng and registering of all such benefactions and such books as shall be given towards the same, and therein the minister shall enter such benefaction, and an account of all such books as shall from time to time be given, and by whom given." Sect. 9. " And for the better governing the said libraries, New regula- and preserving of the same, it shall be lawful for the proper '-'""^ ^^°^ ordinary, together Avith the donor of such benefaction (if how to be ' living) and after the death of such donor, for the proper made. ordinary alone, to make such other rules and orders con- cerning the same, over and above, and besides, but not contrary to such as the donor of such benefaction shall, in his discretion, judge fit and necessary, which said orders and rules so to be made shall from time to time be entered in the said book, or some other book to be prepared for the purpose, and kept in the said library." By sect. 11, it is provided that this act shall not extend Exception. to a public library at Ryegate (Reigate) in Surrey: "the " said library being constituted in another manner than " the libraries provided for by this act." Provision for public libraries in towns is made by 18 & Town libraries. 19 Vict. c. 70 (amended by 29 & 30 Vict. c. 114, and 34 & 35 Vict. c. 71); but these libraries have no ecclesias- tical character. ( 20GG ) PAET IX. CHURCH EXTENSION. CHAPTEK I. Early eccle- siastical ar- rangement. Its unalterable ness. INTllODUCTORY. ■ From a very early period of English history, at the very latest computation many years -before Magna Charta, England was, as it has been said, for ecclesiastical purposes, divided into provinces, bishoprics and parishes (a) ; and as every portion of the soil of England, except certain " pecu- liar" places, was situated within some bishopric and pro- vince, so, Avith the exception of certain " extra-parochial " places, is every portion of such soil within some ]iarish. A parish is the place in which the people belonging to one church dwell (i), and, properly, every ])arisli had a church situate therein ; and with this church there was one parson having the cure of souls of the Avhole ijarish. The church and the parson had certain lands and endowments vested in them from time immemorial, the freehold whereof is in the parson for the time being, and Avhich are said by Blackstone to be holden in frankalmoign (c). Besides the parish church there was also a cathedral church for the whole diocese ; and there were certain auxiliaiy chapels (d). The ecclesiastical airangement of England being thus constituted, remained unalterable, even by the highest authorities of the church, Avitliout the consent of parlia- ment. For the parish wiis a division of civil as well as ecclesiastical importance, and, dating from time immemo- rial, could only be altered by or under the provisions of an act of parliament. (a) 1 Steph. Blackstone (eel. 1858), p. 115. Vide supra, pp. 27, 263, 329. {h) Jeffrey's case, 5 Co. G7a. (c) 1 Stcph. Blackstone (ccl. 1858), p. 227. {(l) Vide supra, Part YI., Chap. Ill, INTRODUCTORY. 20G7 Moreover, as every parish cliurcli had to be consecrated and set apart from all profane uses and vested in the great corporation of the cliurch, and as all endowments in land for the benefit of the parson were also vested in a corporate body, no land could be, after the passing of the Statutes of JNIortmain (e), conveyed to these uses or consecrated with- out the consent of the crown, and at one time also of the immediate lords of the fee. Ecclesiastical purposes, being also charities, came under the restrictions of 9 Geo. 2, c. 36(/). In this Avay it had become practically impossible to Local acts of extend or increase the provisions of church accommoda- parliament. tion by the ordinary powers and authorities of the church ; and to meet the grave and increasing deficiencies in the ministration of the ofliices of religion in all large towns, the population of the country ever growing and, moreover, shifting its centres, it became necessary to procure local or private acts of jmrliament ; such acts were obtained for the metropolis, Liverpool, Brighton, and many other places. The statutes 17 Car. 2, c. 3, and 29 Car. 2, c. 8, had Acts for enabled certain augmentations to be made of poor livings ; augmenting? and the great gift of Queen Anne's Bounty (earned into ^'^"^^'^^^' ^^• effect by 2 & 3 Ann. c. 2, and 1 Geo. 1, stat. 2, c. 10) had also contributed to the same purpose. Still later, by 43 Geo. 3, cc. 107, 108 ; 51 Geo. 3, c. 115, and 52 Geo. 3, c. 161, further facilities were given for the building and endowment of churches, and the augmentation of benefices Avith lands and hereditaments ; but none of the statutes provided for any division or alteration of the old parishes, and of the cure of souls belonging to the parson thereof. The first act providing for the division of parishes Avas For division of 58 Geo. 3, c. 45. This act has since been followed by parishes. 59 Geo. 3, c. 134 ; 3 Geo. 4, c. 72 ; 5 Geo. 4, c. 103 ; 7 & 8 Geo. 4, c. 72 ; 1 & 2 AYill. 4, c. 38 ; 1 & 2 Vict. c. 107 ; 2 & 3 Vict. c. 49 ; 3 & 4 Vict. c. 60 ; 6 & 7 Vict, c. 37; 7 & 8 Vict. c. 94 ; 8 & 9 Vict. c. 70; 11 & 12 Vict. c. 37 ; 14 & 15 Vict. c. 97 ; 19 & 20 Vict. c. 104 ; 32 & 33 Vict. c. 94. These, Avith some other ancillary acts, contain the complicated and contradictory provisions out of Avhich the laAv as to the building of churches and the division of parishes is to be gathered. The source, hoAvever, from Avhich the largest funds As to the have been and still are provided for the division of parishes ecclesiastical commissioners. (e) Vide supra, Part VIII., (/) Ibid. Chap. II., Sect. 2. 2068 CIlURCn EXTENSION. and the formation of now l)onofices is that supplied l)y the ecclesiastical coiniiiissioners, from the sm-plus income of the property of the bishops, deans and chapters, and other "wealthy spiritual persons. ISIoreover, to the ecclesiastical commissioners large administrative powers have been given, Avhich take effect in the alteration of dioceses and parishes, the abolition of pecnliar jin-isdictioiis, and many other changes in the territorial arrangement of the church. Subjects of It will be best, therefore, to treat first of Queen Anne's P^i^t, Bounty, then of the Ecclesiastical Commissioners, and then of the augmentation of benefices by ])rivate persons, of the 1)uilding of churches, of the division of pai'ishes, and, lastly, of the voluntary church societies, some of ■which have been incorporated and endowed Avith certain privileges by the state for carrying on the work of ex- tending the influence of the church both in England and abroad. ( 2069 ) CHAPTER 11. QUEEN ANNE's BOUNTY. It has been already stated, that by the law of England, Sources of. previous to the reign of Henry VIIL, certain duties called first fruits and tenths were paid by the incumbents of ecclesiastical benefices to the pope, and that these first fruits and tenths were taken from the pope, and Avere annexed to the crown of England by 26 Hen. 8, c. 3 (a). These first fruits and tenths continued to form part of Queen Anne's the revenues of the crown, till Queen Anne determined to grant. apply them to the augmentation of the livings of the poorer clergy. This she Avas enabled to do by 2 & 3 Ann. c. 20, which provided as follows: — Sect. 1. "It shall be laAA-ful for the queen, by her letters Power to in- patent under the great seal, to incorporate such persons as corporate go- she shall therein nominate or appoint, to be one body „y^^^ gj.g" politic and corporate, to have a common seal and perpetual fruits and succession, and also at her majesty's Avill and pleasure, by tenths to them. the same or any other letters patent, to grant, limit or settle to or upon the said corporation and their successors for ever, all the revenue of first fruits and yearly perjDCtual tenths of all dignities, offices, benefices, and promotions spiritual, to be applied and disposed of for the augmentation of the maintenance of such parsons, vicars, curates and ministers officiating in any church or chapel where the liturgy and rites of the Church of England as now by law established shall be used and observed ; Avith such lawful poAvers, authorities, directions, limitations and appoint- ments, and under such rules and restrictions, and in such manner and form, as shall be therein expressed." Sect. 3. " But this sliall not affect any grant, exchange. Saving of alienation or incumbrance heretofore made of or upon the f"''"<^i" grants. said rcA'enues of first fruits and tenths, but the same, during the continuance of such grant, exchange, alienation or incumbrance, shall remain in such force as if this act had not been made." The first fi'uits and tenths so granted are called (^ueen Anne's Bounty. ((/) Sui-ra, Part V., Cliap. YIIL, Sect. 1. tiou 2070 CHURCH EXTKXSIOX. Letters patent In pursuance of this act, the queen, by letters patent, ot incoipoia- l)carin<2; date Xovcmher 3, in tlie tliird year of her reign, incorporated the archl)isliopp, bishops, deans, speaker of the liouse of commons, 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, for the time being, according to the purport of the said statute (unto whom, by a supplemental charter bearing date March 5, in the twelfth year of her majesty's reign, were added, the ofllicers of the Board of Green Cloth, the queen's counsel learned in the law, and the four clerks of the privy council), to be a body corporate, by the name of The Governors of the Bounty of Queen Anne, for the Augmentation of the JMaintenance of the Poor Clergy : and thereby granted to them the said revenue of the first fruits and tenths ibr the purposes aforesaid, under the rules and directions to be established ])ursuant to the said letters patent, together with these following directions : that is to say, that they shall keep four general courts at least in every year, at some convenient ])lace 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 jSlarch, June, September, and December ; that the said governors, or so many of them as shall as- semble, not less than seven in number at any one meeting (whereof, by the aforesaid su])plemental charter, a privy councillor, bishop, judge, or one of the queen's counsel to be one) shall be a general court, and dispatch business by majority of Azotes, with power to appoint committees for the easier dispatch of business. And to drav/ up rules and orders for the better nde and government of the said corporation and members thereof, and receiving, accounting for, and managing the said reve- nues, and for disposing of the same, and of such other gifts and benevolences as shall be given to them for the pui*- poses aforesaid ; Avhich being approved, altered or amended b}' the crown, and so signified under the great seal, to be the rules wherel)y the governors shall manage the said revenue, and sucli other gifts and benevolences whereof the donors shall not jiartieularly direct the application. And that they shall inform themselves of the true yearly value of the maintenance of every such parson, vicar, curate and minister officiating in any such church or chapel as aforesaid, for whom a maintenance of the yeai'ly value QUEEN AXNES BOUXTY. 2071 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 Avhich not, and how thej are supplied with preaching ministers, and where the incumbents have more than one living. And that they shall have a secretary and treasurer, and such inferior officers, substitutes, and servants as they shall think fit, to be chosen by a majority of votes at a general court, and to continue during the pleasure of the said governors ; the secretary and treasurer to be first sworn at a general court, for the due and faithhd execution of their offices ; and the treasurer to give security for his faithfiil accounting for the monies he shall receive by virtue of the said office. And Avith the power to admit into their said corporation all such persons who shall be piously disposed to contri- bute towards such augmentation as the said governors in a general court shall think fit. And that they shall cause to be entered in a book to be kept for that purpose, the iiames of all the contributors, with their several contributions, to the end a perpetual memoi-ial may be had thereof, and whereby the treasurer may be charged with the more certainty in his account. And by 1 Geo. 1, st. 2, c. 10, s. 19, the courts and committees of the said governors shall have power to ad- minister an oatli to such persons as shall give them infor- mation or be examined concerning any thing relating to the execution of their trust. And in pursuance of the said letters patent, the follow- Eules and ing rules and orders have been established : viz. — orders made^m (1) That the augmeHtations to be made by the said the said kttcrs corporation shall be by the way of purchase, and not by patent. the Avay of pension. (2) 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. (3) That as soon as all the cures not exceeding 10/. per annum, which are fitly qualified, shall have received our l)ounty of 200/., the governors shall then proceed to aug- ment those cui'es that do not exceed 20/. per annum, and shall augment no other till those have all received our botmty of 200/., except in the cases and according to the limitations hereafter named. And that fi-om and after such time as all the cures not exceeding 10/. a year, which are fitly qualified, shall have received our Ijounty of 200/., the like rules, orders' and directions shall be from thence- forth by the governors observed and kept in relation to 2072 ciirucii kxtknsiox. Rules and ciu'cs iiot excccdlno' 20/. a voar, as are now in force and orders made m i i. i. i i xi i ' i i i ^ • i ^ • pursuance of ouglit to be by tlieni observed antl kept m relation to cures the said letters not exceeding 10/. a year. V'^i^'^t- (4) That in order to encourage benefactions from others, and therein' tlie sooner to complete tlie good intended by our bounty, the governors may give the sum of 200/. to cures not exceeding 4.3/. a year, where any persons will give the same or a greater sum, or the value thereof in lands, tithes or rent charges. (5) That the governors shall every year, between Christ- mas and Easter, cause the account of wliat monev 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 Avay as shall be judged proper, that they have such a sum to distribute 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 corporation qualified to receive them, where any persons will add the like or greater sum to it, or the value in land or tithes, for any such particidar cure. (6) That if several l^enefactors offer themselves, the go- vernors shall first comi)ly with those that offer most. (7) Where the sums offered by other benefactors are equal, the governors shall always prefer the poorer living. (8) AVhere the cures to be augmented are of equal value, and the benefactions offered by others are equal, there they shall be prefen-ed that first offer. ( 9 ) Provided, nevertheless, that the preference shall be so far given to cures not exceeding 20/. a year, that the go- vernors shall not apply above one-third part of the money they have to distribute that year to cures exceeding that value. (10) AVhere the governors have expected till Michael- mas what benefactors will offer themselves, then no more projjosals shall be received for that year; but if any money remain after that to bedisj)Osed of, in the first place two or more of the cures in the gift of the crown, not exceeding 10/. a year, shall be chosen by lot, to be augmented pre- ferably to all others ; the ]n*ecise number of these to be settled by a general coiut, when an exact list of them shall be brought in to the governors. (11) As for Avhat 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 augmentatir)ii. QUEEN anne's bounty. 2073 (12) Provided that when all the cures not cxceedmg 20Z. a year, wliich 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 hereafl;er be proposed by them, and approved by us, our heirs or successors, under our or their sign manual. (13) 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. (14) That a book shall be kept AA'herein shall be entered all the subscriptions, contributions, gifts, dcAnses or ap- pointments 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 par- ticulars of the matters so given ; the same book to be kept by the secretary of the corporation. (15) That a memorial of the benefactions and augmen- tations made to each cure shall, at the charge of the cor- poration, be set up in writing on a stone to be fixed in the church of the ciu'e so to be increased, there to remain in perpetual memory thereof. (16) When the treasurer shall have received any sum of money for the use of the corporation, he shall, at the next general coiu't to be holden after such receipt, lay an accoiint thereof before the governors, who may order and direct the same to be placed out for the improvement thereof, upon some public fund or other security, till they have an opportunity of laying it out in proper jiurchases for the augmentation of cures. (17) 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. (18) The persons whose cures shall be augmented shall pay no manner of fee or gratification to any of the officers or servants of this corpoi-ation. By 1 Geo. 1, St. 2, c. 10, s. 3, all such rules and orders Kulcs con- as shall from time to time be by the governors agreed "•'"'cil. upon, prepared, and proposed to the king, according to the p. AOL. II. 6 R 2074 ClILIiCII i;XTEXSIOX. Quoniin. Ascertaining the valuation of livinj:s to be aujrmented. Ajrrecment ■with benefac- tors for the nomination. true intent of the said letters patent, and by him approved inider liis si(/n manual, shall be as good as if they Avere established inider the (jreat seal. By 28 & 29 Vict. c. 09, s. 5, any five of the governors, of wliom three at least shall be archbishops and bishops, shall be a quorum, and sufficient at any court for the dis- patch by majority of votes of all business (Z»). By 6 Ann. c. 24, all benefices with cure of souls, not exceeding the clear improved yearly value of 50/. (jis has been said), are discharged from fii'st fruits and tenths ; and the bishops and guardians of the s])iritualties sede vacante were to inform themselves of the values of all such benefices. And by 1 Geo. 1, st. 2, c. 10, s. 1, the l)ishops of every diocese, and the guardians of the spiritualties .s^r/e tv/crt/zfe, are empowered and required, from time to time as they shall see occasion, as well by the oath of two or more wit- nesses (which they or others commissioned by them under their hands and seals are empowered to administer) as by all other lawful ways and means, to inform themselves of the clear im])roved yearly value of ever}- 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 or contiguous thereunto, although the same be exempt from the jurisdiction of any bishop in other cases, and how such yearly values arise, with the other circumstances thereof; and the same or such of them whereof they shall have fully informed themselves fj-om time to time, with all convenient speed, to certify under their hands and seals, or seals of their respective offices, to the governors of the bounty. Sect. 2. Provided that where by certificates returned into the exchequer by 6 Ann. c. 24, the yearly values of any livings not exceeding the clear yearly value of 501. are particularly and duly expressed and specified, such certifi- cates shall ascertain the yearly value of such livings, in order to their being augmented ; and no new or different valuation thereof shall be returned to the said governors by this act(c). By 1 Geo. 1, st. 2, c. 10, s. 8, all agreements with bene- factors, with the consent and a])pi'obation of the governors, touching the patronage or right of presentation, or noinina- V') llv & ?A Vict. 80, the governors may grant super- annuation allowances to their clerks anfl servants. (r) Vide infra, 45 Geo. 3, c. 84, s. 1. QUEEX anxe's bounty. 2075 tion to such augmented cure, made for the benefit of such benefactor, his heirs or successors, by the king under his sign manual, or by any bodies pohtic or corporate, or by any person of the age of twenty-one years, having an estate of inhentance in fee simple or fee tail in his own right, or in the right of his church, or of his wife, or jointly with his wife made before coverture or after, or having an estate for life or for years determinable upon his own life, with remainder in fee simple or fee tail to any issue of his own body, in such patronage or right of presentation, or nomi- nation in possession, reversion or remainder, shall be good and effectual in the law ; and the advowson, patronage, and right of presentation and nomination to such augmented churches and chapels, shall be vested in such benefactors, their heirs and successors, or the said bodies politic and corporate, and their successors, or the said respective per- sons as aforesaid, as fully as if the same had been granted bv the kino; under his g^reat seal, and as if such bodies politic or corporate had been free from any restraint, and as if such otlier person so agreeing had been sole seised in their own right of such advowson, patronage, right of pre- sentation, and nomination in fee simple, and had granted the same to such benefactors, their heirs and successors respectively, according to such agreements. By sect. 9, the agreements of guardians on behalf of infants or idiots Avere to be as effectual as if the said infants or idiots had been of fall age and sound mind, and had themselves entered into such agreements. But this was repealed by 11 Geo. 4 & 1 Will. 4, c. Q5, s. 25. By 16 & 17 Vict. c. 70, s. 128, this power as to lunatics is vested in the committee of their estate. Sect. 10. But in case of such agreement by any parson or vicar, the same shall be with the consent and approba- tion of his patron and ordinary. Sect. 11. And in case of such agreement made by any person seised in right of his wife, the wife shall be a party to the agreement, and seal and execute the same. Sect. 12. And such agreements with benefactors so made as aforesaid, shall be as effectual for the supplying cures vacant at the time of such augmentation made or proposed, as for the advowson or nomination to future vacancies. Sect. 16. Where it shall fall to the lot of any donative, Aarccmmt curacy, or chapelrv to receive an augmentation, according "'j'' l^l'*"*"^ to the rules established or to be established, it shall be !j stipcml, in lawful for the governors, before they make the augmonta- case of ang- tion, to treat and agree with the patron of any donative, J"ptation by 6 K 2 '2076 CHURCH EXTENSIOX. Capacity of ministers for receiving the augmentation. Augmentation of benefices vacant. impi'opriator of auy rectory, impropriated witliout oikIow- ment of any vicarage, or parson, or vicar of any motlier church, for a perpetual, yearly, or other ]iayment or allow- ance to the minister or curate of such augmented donative curacy, or cha])clry, and hi.s successors, and for chargmg Avith and subjecting the impropriate rectory or the mother church or vicarage thereunto, in such manner and with such remedies as sliall be thought fit ; and such agreements made with the king under his sign manual, or with any bodies politic or corporate, or any other person having any estate or interest in possession, reversion or remainder in any such impropriate i-ectory in his own riglit or in tlie right of his church or his wife, or with the guardian of any person having such estate, or interest, or with any parson or vicar of any mother church, shall be as effectual with respect to such charges, as agreements made with the king, or with the same persons or bodies politic or corpo- rate touching the patronage or right of pi'esentation or nomination. And if such impropriator other than the king, and such parson or vicar, will not or shall not make such agreement with the said governors, the said governors may refuse such augmentation, and apply the money arising from the bounty which ought to have been em- ployed therein, for augmenting some other cure, according to the rules then in force. And by 6 Ann. c. 24, s. 5, whereas the augmentation is intended for the maintenance, not only of parsons and vicars, but also of curates and other ministers officiating in churches or chapels ; therefore, for the ])reventing of all doubts touching the capacity of such ministers who are to receive the benefit of such augmentation, it is enacted, that 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 chajiel as aforesaid, such ^^art or portion shall firom 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 mini.ster, whether parson, vicar, curate, or other minister for the time being, so officiating in such church or chapel, shall enjoy the same for ever. And by 1 Geo. 1, st. 2, c. 10, s. 21, to the end that churches and chapels may at all times be capable of re- ceiving augmentations ; if the governors shall, by any deed or instrument in writing under their common seal, allot or apply to any church or chapel any lands, tithes, or here- ditaments arising from the said bounty, or from private contribution or benefaction, and shall declare that the QUEEX axxe's bounty. 2077 same shall be for ever annexed to such church or chapel ; then such lands, tithes and hereditaments shall from thence- forth be holden and enjoyed, and go in succession with such church and chapel for ever : and such augmentation so made shall be good and effectual to all intents and pur- poses, whether such church or chapel for which such aug- mentation is intended, be then full or vacant of an incum- bent or minister ; provided, such deed or instrument be inrolled in the chancery within six months after the day of the date thereof. And by 1 Geo. 1, st. 2, c. 10, s. 4, all churches, cura- Benefices cies, or chapels which shall be augmented by the governors aujrmented of the bounty, shall be from the time of such augmentation , , ^^^' ,*'' ,, „ ,, .V ,, petual cures. perpetual cvu*es and benences ; and the mmisters duly nominated and licensed thereunto, and their successors resjDectively, shall be in law bodies politic and corporate, and shall have perpetual succession by such name and names as in the grant of such augmentation shall be men- tioned, and shall have a legal capacity, and be enabled to take in perpetuity to them and their successors, all such lands, tenements, tithes and hereditaments, as shall be granted unto or purchased for them respectively by the said governors, or other persons contributing with the said governors as benefactors. And the impropriators or patrons of any augmented churches or donatives for the time being, and their heirs, and the rectors and vicars of the mother churches whereto any such augmented curacy or chapel does appertain, and their successors, shall be utterly excluded from ha\'ing or receiving directly or in- directly any profit or benefit by such augmentation, and shall pay and allow to the ministers officiating in any such augmented church and chapel respectively, such annual and other pensions, salaries and allowances, which by an- cient custom or othermse of right, and not of bounty, ought to be by them respectively paid and allowed, and Avhich the}^ might by due course of law, before the making of this act, have been compelled to pay or allow, and such other yearly sum or allowance as shall be agreed upon (if any shall be) between the said governors and such patron or impropriator upon making the augmentation, and the same shall be perfectly vested in the ministers offi- ciating in such augmented church or chapel respectively and their successors. Sect. 5. Provided, that no such rector or vicar of such -^^ *" <^°i"c o^ mother church, or any other ecclesiastical person having cure of souls within the parish or place where such aug- mented church or chapel shall be situate, shall hereby be 2078 f II rUCH EXTENSION', And lapse thereof may incur. Donatives, how affected by the aug- mentation. Exchanging of lands settled V)y the aug- mentation. Power to build or purchase devested or discharged from tlie game ; but tlie cure of souls, Avith all other })aroehial rites and duties (such aug- mentation and allowances to the augmented church or chapel as aforesaid only excepted), shall remain in the same state, plight, and manner, as before the making of this act. Now, hoAvevcr, by 2 & 3 Vict. c. 49, ss. 2, 3, 4, 5, any chapel having a district assigned to it shall be a perpetual curacy, with cure of soids, though it has been augmented by Queen Anne's Bounty, and the governors of the bounty may augment before or after the assignment of a district. By 1 Geo. 1, St. 2, c. 10, s. 6, if such augmented cures be suffered to remain void for six months, without a nomination within that time of a fit person to serve the same (by the person having right of nomination) to be licensed for that purpose ; the same shall lapse to the bishop or other ordinary, and from him to the metropolitan, and from the metropolitan to the crown, according to the course of law used in cases of presentative livings : and the right of nomination to such augmented cure may be granted or recovered, and the incumbency thereof shall cease and be determined, in like maimer as in a vicarage presenta- tive. Sect. 7. Provided, that if the person entitled to nomi- nate in such augmented cure shall suffer lapse to incur, but shall nominate before advantage taken thereof; such nomination shall be as effectual as if made within six months, although so much time be elapsed as that the title of lapse be vested in the crown. Sect. 14. All donatives exempt from ecclesiastical juris- diction, and augmented by virtue of the powers given by this act, shall be subject to the ^^sitation and jurisdiction of the bishop of the diocese. Sect. 15. But no donative shall be augmented without the consent of the patron in writing under his hand and seal. Sect. 13. It shall be lawful, Avith the concun-ence of the governors, and the incumbent, jjatron and ordinary of any augmented living or cure, to exchange all or any part of the estate 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. By 43 Geo. 3, c. 107, s. 2, this power shall be extended to all the messuages, buildings and lands belonging to every such aitgmented living or cure. Sect. 3. " AVhere a living shall have been or shall be augmented by the said governors, either by way of lot or QUEEN ANNE's BOUNTY. 2079 benefaction, and tliere is no parsonage house suitable for liouse out of the residence of the minister, it shall and may be lawful '''"g^entatioii monies, for the said governors, and they are hereby empowered, fi'om time to time, in order to promote the residence of the clergy on their benefices, to apply and dispose of the money appropriated for such augmentation, and remaining in their hands, or any part thereof, in such manner as they shall deem most ad\dsable, in or towards the building, rebuilding or purchasing a house, and other proper erec- tions A\dthin the parish, convenient and suitable for the residence of the minister thereof, which house shall for ever thereafter be deemed the parsonage house appertain- ing to such living, to all intents and purposes whatsoever ; anything in any act or acts or the rules of the said go- vernors contained to the contrary notwithstanding." By 45 Geo. 3, c. 84, " The respective bishops of every Bishops and diocese, and the guardians of spiritualties sede vacante, guardians to shall be and are hereby empowered from time to time as y.^i„g gf ^ene- they shall see occasion, and as may best serve the purposes fiees returned of the said bounty to the poor clergy, by such ways and ii^to the means as in 1 Geo. 1, st. 2, c. 10, are mentioned in that certify the ' behalf, to inform themselves of the clear improved yearly same to the value of such benefices with ciu'e of souls, livings and governors of T ■ , ,1 1 . ^ Queen Anne s curacies as were returned into the exchequer m pursuance ilynntv who of 6 Ann. cc. 24, 54, within their several dioceses, or shall be em- Avithin any peculiars or places of exempt jurisdiction powered to act Avithin the bounds and limits of their respective dioceses, certificate as or adjoining or contiguous thereto, although the same be they are now- exempt from the jurisdiction of any bishop in other cases, enabled to do and how such yearly values arise, with the other circum- livino-s not re- stances thereof; and the same or such of them, whereof turned into the they shall have fully informed themselves, from time to exchequer. time with all convenient speed to certify to the said go- vernors of the bounty of Queen Anne, for the augmenta- tion of the maintenance of the poor clergy, for their better information in the premises ; and the said governors are hereby authorized and empowered, with respect to the augmentation of such livings, so formerly certified into the exchequer as aforesaid, to act upon and be guided by such new certificates of the value and other circumstances thereof, made in pursuance of this act, as fully and effec- tually to all intents and purposes as they are in and by the said first hereinbefore mentioned and in part recited act enabled to do with regard to such livings as were not so certified into the exchequer, and as if the restraint of the said proviso therein had not been made, the same 2080 Cl I U lie 1 1 EXTKNSIOX. Not to affect livin<;s with respect to their discharfrc from first fruits and tenths. Registrj to be kept of all matters rela- ting to the angmentation. Abolition of office of first fniits, &c. Bishop of Ripon and bishops of any future sees to be governors. General meet- ing of gover- nors to be hoklcn vcarlv. proviso or anything in tlie said recited act to the contrary thereof in anywise notwithstanding." Sect. 2. " Provided always, that such certificates as were returned into the exchequer for the purpose of ascertaining what livings were to be discharged from first fruits and tenths, shall not, so far as the same relate to the first fruits and tenths, be affected or altered in any manner whatso- ever by anything in this act contained." By 1 Geo. 1, St. 2, c. 10, s. 20, all the augmentations, certificates, agreements, and exchanges, to be made by virtue of this act, shall be carefully examined and entered in a book to be provided and kept by the governors for that purpose ; which said entries being approved at a court of the said governors, and attested by the governors then present, shall be taken to be as records; and the true copies thereof, or of the said entries, being proved by one witness, shall be sufficient evidence in law touching the matters contained therein or relating thereto. By 1 Yict. c. 20, ss. 1, 2, the offices of first fruits and tenths were abolished, and the books, vouchers, etc., be- longing to them were delivered up to the treasurer of Queen Anne's Bounty ; Avho by sects. 3, 5, is to be sole collector of first fii-uits and tenths. By sect. 4, the govei'nors are to have the same remedies as the old collectors and remembrancer had for collect- ing the first fruits and tenths. Provision is made for searches of documents in the office by sects. 6, 7- Sects. 8, 9, provide for sending notices to incumbents of their liability to pay either first fiiiits or tenths. Sect. 16. " The Bishop of "Ripon for the time being shall be a governor of the bounty of Queen Anne for the augmentation of the maintenance of the poor clergy ; and in the event of the foundation of any new see or sees in England or AVales the bishop or bishops thereof for the time being shall be a governor or governors of the said bounty." Sect. 17. " Between the first day of February and the first day of July in every year, on some convenient day and at some convenient place in the city of London or AVestminster, to be respectively appointed for that purpose by the said governors of the bounty of Queen Anne, they the said governors shall hold an extraordinary general court or meeting for the despatch of the business of the said governors, and that at least fourteen days previous notice of the time and ])lace of such general court or meeting shall be vearlv given in the London Gazette." QUEEN AXNE S BOUNTY. 2081 Sect. 18. " The said governors of the bounty of Queen Account to be Anne shall, in the month of Xovember in every year, annually laid make out in writing a return of all their receipts and Majesty^in disbursements during the preceding year ending on the council and thirty-first day of December then last past, and of all sums ^°^\ bouses of of money which at the time of making such account or ^^^^ i'*"^*^^ • return shall appear to be due or in arrear from any person or persons whomsoever for or in respect of first fruits and tenths respectively, and shall present such account or return to her Majesty in council ; and that the same or copies thereof shall, at the commencement of the ensuing session, be laid before both houses of parliament ; and shall cause a duplicate of each such account or return to be deposited, on or before the first day of December in every year, at the office of the secretary of the said governors for the time being, Avho shall keep and preserve the same respectively at his said office ; and all persons whatsoever may at all seasonable times have access thereto, and be furnished by the said secretary with copies or extracts thereof, or of such part or parts thereof as they shall require, stamped with the common seal of the said go- vernors, on gi^^ng reasonable notice to the said secretary, and on payment of two shillings and sixpence for such inspection, and after the rate of threepence for everv seventy-two words contained in such copy or extract ; and all copies of or extracts from any of the said duplicates of the said accounts or returns, ]3urporting to be stamped with the common seal of the said governors, shall be received in evidence in all courts and before all judges whatsoever Avithout any further proof thereof." Sect. 19. " It shall be lawful for her Majesty and her Governors cm- successors, under her or their royal sign manual, from time P"^^crcd to to time as there shall be occasion, and at the recommenda- and'onlei^^ tion of the said governors of the bounty of Queen Anne, to make rules, orders, regulations, and arrangements for the better collecting, receiving, and enforcing the payment of the said first fruits and tenths, and accounting for the same, and for prescribing or regulating the duties of the said treasurer for the time being with respect to the said first fruits and tenths, and his receipt, disposition, and accounting for the same, and the number, duties, and employment of the clerks or other persons to be employed therein under the direction of such treasurer or otherwise, and for the remuneration of the said treasurer, clei-ks, and other persons respectively, for the duties performed by him and them respectively in the matters aforesaid, cither bv a 2082 CHURCH EXTENSION. Deeds for pnr- chases, &c. to be made in the followirifj funn. Deed for granthif^ sti- pends. &c. to he in the following form. fixed salary or salaries, or by tlie a])propriation to him or them respectively, for his or their own benefit, of all or any of the fees hereinl)efore directed to be paid to such treasurer for the time being, and for enforcing and carry- ing into more complete operation the objects and purposes of this act." Sect. 20. " All conveyances and gi-ants, either by way of piu'chase or by way of gift or of benefaction, of lands, tenements, and hereditaments hereafter to be made to or by the direction of the said governors and their successors, according to the rules and orders established for the regu- lation of the said bounty by letters patent under the great seal of Great Britain, and pursuant to the charter of incorporation of the said governors, and the several acts of parliament in that case made and provided for the perpetual augmentation of small livings and cures, may be made according to the foUoAving form, or as near thereto as the number of the parties and the circumstances of the case will admit, namely : — ' /, of , in consideration of [state the con- sideration], do hereby grant and convey to the said go- vernors, their successors and assigns, [or to the rector, vicar, curate, or iiicumhent of the rectory, vicarage, curacy, or chapelry of (as the case may be), and his suc- cessors, by the direction of the said governors, (^testified by their affixing their common seal to this deedy], all [de- scribing the premises to be conveyed], together with all icays, rights, and appurtenances thereunto belonging, and all such estate, right, title, and interest in and to the same and every part thereof as I am or shall become seised or possessed of, to hold the said premises to the said governors, their successors and assigns, for ever, to be by them applied and disposed of [or to hold the said premises to the said rector, §"c., as the case maybe, and his successors, for ever ^ for the augmentation of the maintenance of the said rector, vicar, curate, or incumbent [as the case may be], of the rectory, vicarage, curacy, or chapelry of . In witness whereof, 8fc.^ And all such conveyances and grants shall be valid and effectual in the law to convey all the right, title, and interest of the grantors or grantor in the premises thereby conveyed or granted." Sect. 21." xVll deeds for the purpose of granting stipends, rent-charges, or annuities, to or by the direction of the said governors for the augmentation of small livings and cures, may be made according to the form following, or as near QUEEN ANNE's BOUNTY. 2083 thereto as the number of the parties and the circumstances of the case will admit, viz. — ' L of , in consideration of [state the con- sideration], do lierehjj give and grant nnto the governors of the bounty of Queen Anne for the augmentation of the maintenance of the -poor clergy, and their successors [or to the rector, vicar, curate, or incumbent of the rectory, vicarage, curacy, ^'c. of , and his successors, by the direction of the said governors, testified by their affixing their common seal to this grant^, the clear rent-charge or annual sum of to be issuing out of and charged upon all [describe the premises charged], to hold the said clear rent-charge or annual sum of , free from all charges and deductions note payable or hereafter to be made payable, unto the said governors, their successors and assigns, to be by them applied to the perpetual augmenta- . tion of the maintenance of the rector, vicar, curate, or incumbent (as the case maybe), of, ^'c. [or unto the rector, vicar, curate, or incumbent of ^'c. (as the case may be), for the perpetual augmentation of the said rectory, vicarage, curacy, or benefice^, such clear rent-charge or annual sum to be j^aid yearly for ever, by four equal quarterly pay- ments, on the days and times following , [specify the days and times and the place at which the payments are to be made], the first payment to be made on such of the said days as shall first happen next after the date hereof In witness whereof, §'c.' And every such gift and grant shall be valid and effectual in the law for the purpose of securing the payment of such clear rent-charge or annual sum as shall be therein ex- pressed to be granted, as far as the estate or interest of the grantors or grantor in the tenements and hereditaments thereby charged shall extend, and shall be construed and adjudged in all courts of judicature to authorize and em- power the grantees or grantee therein named, and their respective successors and assigns, if such clear rent-charge or annual sum, or any part thereof, shall be in arrear for the space of twenty-eight days, to levy the same by dis- training any goods upon the premises charged, and selling the distress, as in the case of rent reserved on common leases for years, and to repeat such distress and sale from time to time, whenever necessary, until such clear rent- charge or annual sum, and all arrears thereof, and any costs attending the nonpayment thereof, shall be fully discharged." 2084 CllUnCll EXTENSION. By sect. 22, tlic word " firant" in all conveyances, etc. made for valuable considenition to the governors, shall im])ly the usual covenants for title. By sect. 23, the governors may cause deeds to he enrolled. By sect. 24, the forms of deeds authorized by former statutes may still be used. Iloldinfr en- By 2 & 3 Vict. c. 49, s. 12, the governors of Queen fiowmcnts Anne's Bounty may take and hold any endowments which Biiihlimr' \cts i^'if^^^t be taken and holden by private trustees for the use and benefit of any church or chapel built or acquired under the powers of the previous Church Building Acts, or the incumbent of or spiritual person serving such church or chapel ; and private trustees may assign these endowments to the governors, but the governors are first to signify their consent to accept the same by an instrument under their common seal. By sect. 13, the money so given is to be paid to the treasurer of the bounty. By 3 & 4 Vict. c. 20, s. 5, money so accepted by the governors is to be holden by them (except in special cases) upon the same trusts as money appropriated by themselves to any benefice. Sale of lands By 2 & 3 Vict. c. 49, ss. 15, 16, 18, 19, where lands purchased for have been purchased by the governors for the endowment of a benefice, which are not situate in the parish of the benefice or some adjoining parishes, the incumbent thereof may, with the consent of the governors, sell the same; and, where the lands so purchased are situate in the parish or adjoining parishes, but for special reasons it would be desirable to sell the same, the incumbent may, with the consent of the governors and the archbishop, sell the same ; the purchase-money is to be ]iaid to the treasurer and to be appropriated and invested for the benefit of the benefice as before (r/). 3 & 4 Viit. By 3 & 4 Vict. c. 20, reciting the letters patent incor- porating (^ueen Anne's Bounty, certain of the rules made by the governors and 1 Geo. 1, stat. 2, c. 10, and further reciting that, " vinder the provisions of the hereinbefore recited letters patent and act of parliament, or some or one of them, divers rules, orders, and constitutions have been from time to time made, whereby the power of the said governors to augment cures to the augmentation of which any benefactor or benefactors should also contribute as aforesaid has from time to time been enlarged and ex- (dj Vide supra, pp. 1688—1690. endowment. 20. QUEEN axne's bounty. 2085 teiKleJ, both Avitli respect to tlie amount of the yearly vakie of the cures which the said governors were empowered to augment, and with respect to the amount which the said governors were empowered to appropriate out of the funds at their disposal towards such augmentation, and such power so enlarged and extended has in many cases been exercised by the said governors, and in some of such cases agreements have been made with the benefactor or bene- factors contributing to such augmentations touching the patronage or right of presentation or nomination to such augmented cures, according to the provision of the said recited act:" and that "doubts have arisen whether ap- propriations made by the said governors for the augmenta- tion of any cure Avere strictly authorized by the rules, orders, and constitutions for the time being in force, in those cases in Avhich the amoiuit so appropriated to any cure by the said governors has exceeded in any one year the sum of two hundred pounds; and doubts have also arisen "whether the agreements made with such benefactor or benefactors as aforesaid are strictly valid and effectual in those cases in which the yearly value of the augmented cure has previously to such augmentation exceeded the sum of thirty-five pounds, or the amount so appropriated by the said governors as aforesaid has exceeded in any one year the sum of two hundred pounds:" and that " it is ex- pedient to remove and obviate all such doubts as aforesaid, both with respect to appropriations made by the said gover- nors, and with respect to agreement made and to be made Avith any such benefactor or benefactors as aforesaid:" it is enacted as follows: — Sect. 1. " All appropriations heretofore made by the said Certain approy governors of any sum or sums of money out of the monies P"=^^'o"s '""^''^ at their disposal to the augmentation of any cure shall be nors conlirmcd. good, valid, and effectual, to all intents and purposes what- soever, in all cases in which any benefactor or benefactors has or have, in order to obtain any such appropriation for the augmentation of the same ciu-e, contriJbuted not less than the amount of benefaction which was at the time of any such augmentation required in that behalf by the rules, orders, and constitutions then in force, notwithstanding that the sum or sums so appropriated by the said governors to the augmentation of such cure shall have exceeded in any one year the sum of two hundred pounds." Sect. 2. " All agreements already made and hereafter Cert lin airrce- to be made, Avith such consent and approbation of the "j"-'"'^^ ""'''^ '^^ patron and ordinary as required by the said recited act, and con^rme™and with the consent and approbation of the said governors, provisions' of 2086 t HLKCII EXTENSION. rctitcil act ex- tended. Amount of appropriations hereafter to be made shall be Avitliin the limit pre- scribed by rules in force at the time. Provisions of 1 Geo l,st. 2, c. 10, extended to this act in cases where no appropriation shall be made by the gover- nors. with any benefactor or benelactor.s eontributinf>; to tlie aug- mentation of any cure, toucliing tlie patronage or right of ]ircsentation or nomination to such augmented cure, for the benefit of such l)enefactor or benefactors, his, lier, or their lieirs or successors, according to tlie provisions of the said recited act, and all grants and as.surances made and to be made for carrying such agreements into effect, shall be good, vahd, and effectual in the law, to all intents and purposes whatsoever, in all cases in which the yearly value of the augmented cure shall have been or shall be within the limits ])rescribed for the .same by the rules, orders, and constitutions which shall have been or shall be in force at the time of making such agreements I'e.spectively as afore- said, notwithstanding that such yearly value shall have exceeded or shall exceed the sum of thirty -five pounds, or that the amount appropriated by the said governors out of the monies at their disposal to the augmentation of such cure shall have exceeded oi* shall exceed in any one year the sum of two hundred ])ounds, or that such yearly value and also the amount so a])pro})riated shall both have ex- ceeded or shall both exceed the same several sums respec- tively : Provided nevertheless, that so far as relates to such agreements as aforesaid the amount of all appropriations hereafter to be made by the said governors to the augmen- tation of any ciu-e shall be within the limits prescribed for the same by the rules, orders, and constitutions which shall be in force at the time of making such agreements respec- tively as aforesaid." Sect. 3. " All agreements hcreafler to be made, Avitli such consent and approbation of the patron and ordinary, as required by the said recited act, and with the consent and aj^probation of the said governors, Avith any benefactor or benefactors contributing to or providing for the augmen- tation of any ciu'c, touching the patronage or right of pre- sentation or nomination to such cure, for the benefit of such benefactor or benefactors, his, her, or their heirs or suc- cessors, according to the provisions of the said recited act, and all gi-ants and assurances to be made for carrying such agreements into effect, shall be good, valid, and effectual in the law, to all intents and ])urposes whatsoever, in all cases in Avhich the yearly value of such cure shall be within the limits ]irescribed for the same by the rules, orders, and constitutions which at the time of making such agreements respectively as aforesaid shall be in force with respect to cures for the augmentation of whicli a])propriationsto meet benefactions may l)e made by the said governors out of the funds at their disposal, notwith.standing that in any of such no QUEEX anne's bounty. 2087 cases no appropriation whatsoever shall be made bj the said governors out of the funds at their disposal to the aug- mentation of the cure to Avhich such agreements as afore- said shall respectively relate." Sect. 4. " Every cure touching the patronage or right On completion of nomination to AA'hich any such agreement as aforesaid ^^ ^^ agree- with any benefactor or benefactors shall be made for the fej. of patron- benefit of such benefactor or benefactors, his, her, or their age of a cure heirs or successors, though no appi'opriation whatsoever to ['* ,^ ]?°"*^f f ^' the said cure for the augmentation thereof shall be made by appropriation the said governors out of the funds at their disposal, shall, be made by from and immediately after the completion of such agree- I^, g^^'*^™"'*'. tli6 cure to 1)6 ment, be deemed and considered in law, in all respects, and considered as to all intents and purposes whatsoever, as a cure augmented one augmented by the said governors, and the same, and the minister or ^^ them. incumbent thereof, and his successors, shall be subject and liable to all the laws, rides, and regulations relating to or concerning cures augmented by them and the ministers or incumbents thereof." By 6 & 7 Vict. c. 37, the governors of the bounty and Loans to eccle- the Archbishop of Canterbiuy are empowered to lend a ^iastical com- sum of 600,000/. stock, standing in their names, to the ecclesiastical commissioners, in order that the commis- sioners may thereout make better and more immediate provision for the spiritual cure of populous parishes. The governors are also empowered to lend a further sum of stock. Pro\asion is made for the payment of interest and giving seciu'ity ; and the governors may require at the end of thirty years the replacing of the stock, which is to be done by the commissioners in twelve yearly instal- ments (e). The govei'nors of Queen Anne's Bounty have had also General powers conferred on them by statute certain administrative powers ^^ governors. Avith respect to the dealings by the clergy Avith their houses and glebes. By 17 Geo. 3, c. 53, s. 12, the governors may lend money to incumbents to repair and rebuild their residence houses under that act, to the amount of 100/., on Avhich no interest is to be paid, where the annual value of the living is under 50/., and to the amount of two years' value of the living in other cases, on which interest at four per cent, is to be paid (/). By 1 & 2 Vict. c. 23, s. 4, a similar provision is made. l^y 1 & 2 Vict. c. 106, s. 72, the governors may lend for the purposes of the act any sum not exceeding the (f«) Sects. 1- 8; see also 29 & ( f) V!er, for office expenses (s. Qo) (h). Alteration of Bv 35 & 36 Vict. c. 96, s. 1, " As to loans made under the length of fhe provisions of the acts, 17 Geo. 3, c. 53; 21 Geo. 3, amr^The*'""' ^- ^^ ' ^ ^^^o. 4, c. 66 ; 1 & 2 Vict. c. 23, and 28 & 29 conditions of Vict. c. 69, it shall be lawful for the governors, with the repayment of stipulated consent of the bishop and i)atron, if they think fit, to vary the length of the mortgage term for all new mort- gages by making the term for the repayment of the loan shorter than is directed by the said acts ; and the governors, (7) Vide supra, Part V.. (A) Vide supra, Part V., Chap. VI., Sect. 2. Chap. V., Sect. 2. (/() Vide supra, p. 1710. advances. QUEEN anne's bounty. 2089 Avltli the stipulated consent of tlie bishop and patron, are also authorized, if they think fit, to lend any sum that may be required for the purposes of, and they may also from time to time vary the form of the deed of security pre- scribed by, the acts specified in the said recited schedule." " Provided always, that it shall not be lawful for the gover- nors to allow a benefice to be mortgaged to them for any or all of the purposes of any of these acts to an amount exceeding in the whole three yeai's' net income of such benefice" (h). By 28 & 29 Vict. c. 69, s. 2, the governors may sell all Sale of general lands, tithes, and other hereditaments vested in them, for ^^"^'^• the purpose generally of augmenting the maintenance of the poor clergy. (/;) For provisions in sect. 2, the interest, vide supra, Part V., as to altering the day of paying Chap. V., Sect. 2. P. VOL. ir. '6s 2090 CIlCRCir EXTKX-^K^N. CHAPTER III. THE ECCLESIASTICAL COMMISSIONERS. To execute reports of com missioners. Orif^in of eom- missiun. A corporation. TiiE Ecclesiastical Conimissioners for Eiiglaiul arc a cor- poration, Avitli perpetual succession and a common seal, and with power to take, purchase, and hold real estate, notwithstanding the statutes of mortmain. The corpora- tion is established by 6 & 7 Will. 4, c. 77, and 3 & 4 Vict. c. 113. These acts, however, have been amended by several subsequent statutes. The professed object of the original acts was to carry into effect the reports of certain commissioners, previously appointed by the crown. The later acts have, however, diverged into many matters not comprehended in the original intentions of the commissions. It may, however, still be well to explain the general nature of the recom- mendations of these preliminary commissions. On the 4th February, 1835, King AVilliam the Fourth issued a commission of inquiry into the state of the Esta- blished Church in England and Wales, directed to the heads of the church and of the government, and certain other commissioners, containing the following instructions : — " To consider the state of the several dioceses in Eng- land and Wales, Avith reference to the amount of their revenues and the more equal distribution of ejjiscojial duties, and the pi'cvention of the necessity of attaching by commendam to bishoprics benefices with cure of souls ; to consider also the state of the several cathedral and collegiate churches in England and Wales, Avith a A-iew to the sugges- tion of such measures as may render them more conducive to the efficiency of the Established Church ; and to devise the best mode of providing for the cure of souls, Avith special reference to the residence of the clergy on their rcspectiA'c benefices." The first report under this commission Avas made on tlic 17th jNIarch, 1835. A ncAv commission Avas issued on the 6th June folloAving, Avitli a change only in those commis- sioners Avho Avere members of the government ; and three further reports were made, dated 4th jNIarch, 20th May, and 24th June, 1836. The draft of a fifth report Avas also prepared, but not having been signed before the commission Reports. THE ECCLESIASTICAL COMMISSIONERS. 2091 expired hj reason of the demise of the crowii, that draft was made a parhamentarj paper by the secretary of state in the following session. The first and tliird of these reports related chiefly to the Episcopnl rc- first or episcopal branch of the inquiry ; and the general commcuda- ])urpose of their recommendations Avas to make such a new ^^^^' distribution of the duties and revenues of the bishops, as should diminish the motive for translations, and entirely prevent the necessity for commendams. The second and fourth reports, and the draft of the fifth Catlicdral and report, comprehended the two other, viz., the cathedral and ^^,'j°p'"'^| ^^' parochial branches of the inquiry ; and the general object tions. of the recommendations contained in these reports was, by means of an ap]iropriation of part of the corporate revenues of the cathedral and collegiate churches, and of the whole endowments of the non-residentiary prebends, dignities, and offices, to establish a Fund, out of which better pro- vision might be made for the Cure of Souls in parishes where such assistance was most required. The first act, Avhereby the corporation Avas established, Constitniinn nf passed in August, 1836. Under this act the number of corporation. the commissioners was thirteen ; namely, the tAvo arch- bishops, the Bishop of London, and five of the chief officers of state for the time being, all ex officio ; and tAvo other bishops and three other lay commissioners by name («), remoA^able at the pleasure of the croAvn, and their vacancies to be supplied from time to time under the royal sign manual, by bishops or laymen, as the case might be (i). I>y the second act the constitution of the corjDoratlon Avas materially changed : all the members of the episcopal bench, the deans of Canterbury, St. Paul's, and West- minster, the tAA'o chief justices, the master of the rolls, the chief baron, and the judges of the Prerogative and Admi- ralty Courts, for the time being, Avei'e appointed commis- sioners ex officio: pOAver Avas given to the crown to appoint four, and to the Archbisho]i of Canterbury to ajipoint two lay commissioners, in addition to the three already ap- pointed (c), and from time to time to fill up vacancies (r/), and the poAver of removal by the croAvn Avas repealed (e). Jjy 13 & 14 Vict. c. 94, the folloAving forther provisions were made : — The croAA-n AA-as cmpoAvered to appoint tAvo laymen by Church o?tatcs commissioners. (a) G & 7 Will. 4, c. 77, s. 1. {d) Ibid. s. 79. (6) Ibid. s. 2. (p) Ibid. s. 8L (c) 3& 4 Vict. c. 11."^, s. 78. 6 s2 2092 CHURCH EXTENSION. Church estates the title ot" first aiul .second eliinch estates cominis- commissioncrs. gioners, and the Aichbisho]) of Canterbury was also em]iowcred to a])point a cliurch estates commissioner. These commissioners are to hokl office during the pleasure of their respective ap})ointors, and are to be as such ecclesiastical commissioners. Any ecclesiastical commissioner, not being such by virtue of some office, may be appointed a church estates commissioner ; and again may cease to be a church estates commissioner "without thereby ceasing to be an ecclesias- tical commissioner {/). The first church estates commissioner is to have a salary not exceeding 1,200/. a year, and the commissioner a]i- ])ointed by the Archbishop of Canterbury one not exceed- ing 1,000/. a year (_(/). There is a special provision that the first commissioner may sit in the House of Commons (A). Upon the other commissioners there is no restriction as to this matter. Every lay commissioner and every church estates com- missioner is required to be (/), and to subscribe a declara- tion that he is(/i), a member of the united Church of England and Ireland. greetings. Five commissioners are to be a quorum for the trans- action of business, provided that two of them are church estates conmiissioners (/) ; but no proceeding can be ratified under the common seal, without the ])resence of two episco])al commissioners; and it must be ])Osti3oned, if they, being the only episcopal commissioners present, Chairman. object {in). The Archbisliop of Canterbury is to be chairman when present ; when he is not present a chair- man is to be chosen by the commissioners assembled (n). The chairman is to have a second or casting vote, in case A'o^'1"^1 . rn • • f • ' r . 1 1 arrangements. report ot the commissioners oi inquiry, m fact comprelienas, with alterations and modifications, the propositions of the second and fourth reports, and of the draft fifth report, and deals with the two remaining branches of the subject, viz., the cathedral and parochial; except so far as the latter had been already disposed of by 1 & 2 Vict. c. 106. This act has been largely extended and amended by 4 & 5 Vict. c. 39, and 31 & 32 Vict. c. 1 14. A special act, 7 &-8 Vict. c. 77, was passed for Wales. The provisions of these acts relating to deans and canons have already been set forth in the chapter on deans and chapters ((/). It is only necessary to add, that the provi- sions in sect. 29 of 3 & 4 Vict. c. 113 (r), for the annexa- tion of certain parishes to canonrics at Westminster, have been extended to afford endowments out of the surplus revenues of these canonrics for several parishes in the city of Westminster, with a special proviso securing free seats in the churches of these parishes, by 4 & 5 Vict. c. 39, s. 8, and 29 & 30 Vict. c. Ill, s. 17 ; and that by 24 & 25 Vict. c. 116, the emoluments of the seventh and eighth canonrics at Windsor are to be retained by the dean and chapter, and to be appropriated, one for the benefit of the military knights, and one in augmentation of the livings of certain Windsor clergy (s). By a series of acts commencing soon after the issuing of Temporary the first commission of hiquiry in 1835 (t), the appoint- Suspension ment to all sinecure rectories in public patronage, to non- ^^^' (7) Vide supra, Tart II., (t) 5 & G Will. 4, c. 30; G & 7 Chap. IV., Sect. 3. Will. 4, c. 67; 1 Vict. c. 71; 1 & (r) Ibid. p. 223. 2 Vict. c. 108; 2 & 3 Vict. c. 55. (s) Ibid. p. 225. 2100 CHURCH KXTEXSIOX. Main ohjcct of fund, the cu}-e of souls. Loans of stock from Queen Anne's Bounty. Mode of distri- bution. Angmentation of livings. residentiary cathedral ]ircferments, and to all canonrie.s above a specified number, had jjcen suspended from session to session, the proceeds beinp; received and holden in tru.st by the treasurer of Queen Anne's liounty : all monies so received are also directed to be paid over to the connnis- sioners(M). The main ol)ject, for which the commissioners are en- trusted Avith all these revenues, is defined to be that of making better provision for the cure of so?ils in parishes where such assistance is most required. All monies are, in the first instance, directed to be carried over to a common fund ; discretion is given as to the mode of making the provision, either by means of money payments out of this fund, or by actual conveyance of lands, tithes, or other hereditaments ; provided that due consideration shall be had of the wants and circumstances of the places in which the lands and hereditaments or tithes vested in the commissioners are situate or arise, and in which the lands, hereditaments and tithes belonging to any ecclesi- astical corporation which has to pay a portion of its income over to the commissioners are situate or arise (v). By 6 & 7 Vict. c. 37, the governors of Queen Anne's Bounty Board were empowered to lend to the commis- sioners for these purposes a sum of 600,000/. three per cent, stock, which is to be paid oft' by the commissioners in twelve instalments, the first to be paid at the end of thirty years from the granting of the loan. The bounty board were also empowered to lend further sums of stock on the same terms {x). With reference to this part of the subject, certain reso- lutions Avere early made by the commissioners regulating the distribution of the funds coming to their hands, Avhich will be found in a later page (y). By 23 & 24 Vict. c. 124, the commissioners were em- powered to give preference to places where contributions from other sources will be made in aid of the grant {z), and to mining districts (a). Numerous orders in council have been is.sued, ratify- ing schemes of the commissioners, by which clnu'ches have been endowed or augmented. B}- 29 & 30 Vict, c. Ill, no order in council is any longer necessaiy for these purposes, publication in the Gazette being sufficient; the (w) 3 &4 Vict. c. ll.O, .s. GO; 7 & 8 Vict. c. 77. (v) Ibid. s. G7; 23 & 24 Vict. c. 124; ss. 12, 13. (a;) 6& 7 Vict. C.37, .=s. 1— 8; see 29 & 30 Vict. c. 111,8. 11. (y) Vide infra, p. 210G. {z) Sect. 14. (fl) Sect. 15. THE ECCLESIASTICAL COMMISSIONERS. 2101. commissioners have power to take lands for annexation to benefices -without hcence in mortmain, and the instrument conveying such lands may, if it be declared that it shall so operate, vest the lands in the incumbent of the benefice at once: such instruments are to be free from stamp duty (i). By 3 & 4 Vict. c. 113, s. 50, the estate which the holder Separate of any deanry or canonry had in any hereditaments an- estates of nually holden Avith such deanry or canonry (except any yH^^^ in'^com- right of patronage), or in any hereditaments, the rents and missioneis. profits whereof have been usually taken by such holder separately, and in addition to the corporate revenues of the chapter, are vested in the ecclesiastical commissioners. It has been holden, that the separate estate of a dean in a chapter does not include a rectory previously by statute annexed to the deanry, and such a rectory is not, by force- of this enactment, severed fi-om the deanry and vested in the commissioners (c). By sect. 5 1 of this same act, the estates of non-residentiary The like as to prebends, with certain exceptions (and the estates of these certain pre- excepted prebends, Avith consent of their ])atron, on an "'^'^"^• annual income being paid to the prebendary (^) ), and the estates of certain deanries therein mentioned, are to be A'ested in the commissioners. By 27 & 28 Vict. c. 70, any corporation of vicars choral. Estates of priest vicars, senior vicars, custos and vicars, warden and "linoi" cathe- vicars or minor canons, may, Avith the consent of their tio^ns^*^'^^^°^^' visitor, transfer their lands and hereditaments to the com- missioners under a scheme sanctioned by an order in council, in consideration of an annual or other money payment. By 29 & 30 Vict. c. Ill, s. 18, "When the ecclesi- Tower to astical commissioners are or may be in receipt of any comnnssioners income arising from estates that belong, or have belonged, anccs to minor to any dean or chapter, or any major or minor corporation canons, or- of any cathedral or collegiate church, they shall be at g'lmsts. school- liberty (Avhether an order of her jNIajesty in council has ' ' or has not been passed in relation to such income, and not- Avithstanding any limitation contained in any act of par- liament as to the stipends and alloAvances of any of the persons hereinafter mentioned), out of such income, to make such provision as to them may seem needful for securing adequate stipends and alloAvances to the minor canons, schoolmasters, organists, vicars choral, lay clerks, (b) Sects. 5, 9. sujyra, p. 227. (c) Beg. V. Champney.% L. R., (d) 13 & 14 Vict. c. 94, s. 20; G C. P. 384; 19 W. R. 386; vide vide mtpra, p. 227. 2102 CliniClI EXTENSION. Power to make cxchniifrcs be- twooii ecclesi- astical corpora- tions. As to transfer of estates of deans and chapters. 31 & 32 Vict. c. 114. Objects of scheme. ofTiccrs, chorister.*, bedesmen, servants and oilier members of the cathedral or collegiate church, and lor .securing ade- quate sums of money lor the maintenance of any existing college or school (c) in connection with the cathedral or collegiate church." liy sect. 4, " If, after the commissioners have effected the endowment of any arch1)islioprick or bishoj)riek, or of any chajiter, with lands or hereditaments, it shall ap])ear to them that it would be beneficial to such archbishoprick or bi.slio]n-ick, or to such chapter, that any part or ])arts of such lands or hereditaments should be exchanged for any lands or hereditaments belonging to any other arch- l)ishop or bishop, or chapter, or to the commissioners, it shall be lawful to effect such exchange, with the consent in writing of every archbishop or bishop, or chapter thereby affected, and by the authority of a scheme passed by the commissioners, and an order of her jNIajesty ratifying the same : provided always, that no such exchange shall be made unless the commissioners shall be satisfied of the reasonable equality in value of the lands and hereditaments so to be exchanged, and shall, in such last-mentioned scheme, make a statement to that effect." None of these acts appear to authorize the transference by a dean and chapter, or other ecclesiastical corporation, except those specially mentioned in 27 & 28 Vict. c. 70, of their lands and hereditaments to the commi.s.sioners, in return for an annual or other money payment, as had been authorized in the case of the sj)ecial corpoi'ations by 27 & 28 Vict. c. 70, thereby, in fact, bringing about a similar arrangement to that provided for bishops by 23 & 24 Vict. c. 124. Nevertheless, several schemes were made, sanc- tioned by orders in council, and acted upon, at various times from the year 1852, dealing with eighteen cathedral cor|)orations on this footing. The irregularity having been discovered, the arrangements in these cases were, in 1868, validated retrospectively by 31 Vict. c. 19. And now, by 31 & 32 Vict. c. 114, s. 3, " The eccle- siastical commissioners for England (in this act referred to as the commissioners) may, with the consent in writing of any dean and chapter in England under their common seal, and of the visitor of such dean and cha})ter, from time to time lay before her Majesty in council schemes for effecting (c) Vide .S2 & ?,3 Virt. c. Chap, v., p. 2055. 50, R. 27 ; rt mtpra, Part VIIT., THE ECCLESIASTICAL COMMISSIONERS. 2103 •with respect to the consenting dean and chapter all or any of the following things, namely, (1.) For transferring to the commissioners the whole or some specified part of the property of the dean and chapter (except the cathedral or collegiate church and the buildings belonging thereto, and any ecclesiastical, educational or other like pa- tronage), for such consideration, whether consist- ing of a money payment or other property, or partly one and partly the other, and generally on such terms, as the commissioners think fair and reasonal)le, including the extinguishment of any right of the commissioners to receive any pai't of the income or property of the dean and chapter, or of any member thereof: (2.) For transferring lands to the dean and chapter in lieu of any annual sum payable to them by the commissioners either under this act or other- wise : (3.) For making such incidental provisions as may be necessary for carrying into effect any of the above-mentioned objects." Sect. 4, '^ The commissioners on a transfer under this act may set apart as part of the consideration a capital sum to be expended to the satisfaction of the commissioners in substantial repairs, restoration, and im])rovements of the cathedral or colle2:iate church and the buildings belono-ino; thereto." By sect. 5, sections 84 to 89 (both inclusive) of 3 & 4 Vict. c. 113, " which relate to the making, publishing and registering of an order in council for ratifying a scheme, and to the laying the same before parliament, shall a])ply to any scheme made under this act." Sect. G. " After the date of the jjublication of an order in council ratifying any scheme made in pursuance of this act, and without any further conveyance or act in the law, the property expressed to be thereby transferred shall (so far as the same can be vested by this act) vest in the trans- ferees and their successors, and (so far as the same cannot be so vested) shall be deemed to be held in trust for the transferees and their successors ; and the transferees and their successors shall, as far as may be, take the same for the same estate and interest and subject to the same lia- l)ilities for and subject to which it was held at the said date by the dean and cha])ter or the commissioners, as the case mav be.'' Cnpital sum tor fabric. Order in coun- cil confirming scheme to be made, &c. under 8 & 4 Vict. c. 113, ss. 84— 8'J. Order to effect transfer with- out convey- ance. 2 104 t liri;< II KXTKNSIOX. Application of tniusfcrrcd jiropcrty. Settlement of treaty and its terms may be reft'iTC'il tj arbitration. Application of act to cauon- rics, &c. Sect. 8. '' All pro])erty (raiisl(,'n-ecl to the commissioners by an order in council under this act shall be held by them ill the same manner, and for the same pur|)oses, and subject to the same ])rovisions as the property of Avhich the rents and ])rofits are to be carried over to their common fund, and the income thereof shall be ai)plied accordingly; and all property transferred to a dean and cha[)ter by an order in council under this act shall be held upon the trusts and for the purposes directed by the order, and subject thereto shall form ])art of the endowment of such dean and chapter; and any amiual sum paid to a dean and chajiter in jnirsu- ancc of an order in council inider this act shall be applied in the manner in Avhicli it woidd be applicable if it were the income of property transferred to the dean and chapter." By sect. 9, similar provisions are made as to the letting of lands assigned by way of endowments to deans and ehajiters as had been made with respect to lands assigned to bishops (e). Sect. 10. " In all cases where an agreement has been or shall be entered into, or a treaty has been or shall be com- menced, or is or shall be pending, between a dean and chapter and any of their lessees, for any sale and purchase under 14 & 15 Vict. c. 104, 17 & 18 Vict. c. 116, or 23 & 24 Vict. c. 124(/'), and the capitular estate is trans- feiTcd to the commissioners under the pro\'isions of this act, it shall be competent to the church estates commis- sioners to approve and confirm as heretofore such agree- ment, and to continue and bring to a conclusion and ajiprove such treaty : provided always, that in the event of the church estates commissioners declining to approve such agreement or treaty, the ecclesiastical commissioners shall be bound to jnirchase the lessee's interest, if required by the lessee, with all the benefits, as to arbitration and otherwise, to wliicli lessees are entitled under the above- mentioned acts or any of them ; and in every case tlie costs of such arbitration and award shall be in the dis- cretion of the said arbitrators or imipire, as the case may be." Sect. 13. " The ])rovisions of this act Avith respect to the property of deans and chapters shall apply in the case of the property of any deanery, canonry, prebend, arch- deaconry, or office in any cathedral or collegiate church in (e) Vide supra, p. 2008. (/) Vide supra, Part Y., Cliap. YI., Sect. 5, pp. 1702-1713. THE ECCLESIASTICAL COMMISSIOXERS. 2105 England, in the like manner, mutatis mutandis, as they apply to the property of a dean and chapter." By sect. 7, a special provision is made for saving all Trusts. trusts imposed on the property in the hands of the deans and chapters when the property is transferred. It had been already holden by the master of the rolls, in the case of Attorney- General v. Dean, &^'c. of Windsor, that the commissioners claiming as successors to a dean and chapter under 3 & 4 Vict. c. 113, took their property subject to all trusts (^). As to archdeacons (A), the act 6 & 7 AYill. 4, c. 77, Archdeacons. besides providing that all archdeacons are to have full and equal jurisdiction, authorizes the creation of new archdea- conries, and the re-arrangement of the limits of the existing archdeaconries and rural deaneries. These provisions are extended by 3 & 4 Vict. c. 113, s. 32. Not only may arch- deaconries be endowed Avith canonries in certain specified cases, but in all cases with the bishop's consent they may be so endowed, either Avith an entire canonry or with a • canonry charged with a portion of the income as an endow- ment for another archdeaconry, or with a benefice, or with such a sum out of the common fund as will raise their income to 200/. a year {i). If any archdeaconry be so endowed, all the estates of the archdeaconry pre\aously belonging to it and any benefice annexed to it may be vested in the com- missioners for their general purposes. In all cases benefices may be disannexed from archdeaconries, whether so en- dowed or not, in which event the patronage reverts to the original patron of the benefice (A). Special enactments have been made to vest the estates of the archdeaconries of liochester (/) and Colchester (?/?) in the commissioners. By The Parish of Manchester Division Act, 1850 (?i). Parochial certain special powers are given to the commissioners with airaugements. reference to the cathedral arrangements, and to the pro- viding for spiritual destitution within the parish and city of Manchester; and by 28 & 29 Vict. c. 117, and 29 & 30 Vict. c. 86, the endowments of the vicarage of llochdale are vested in the commissioners, and many jirovisions are made for the spiritual benefit of the population of Roch- dale. A special act also, 21 & 22 Vict. c. 58, has been passed for the rectories of Stanhope and Wolsingham, and {O) 24Beav. G79;4Jur.,X. S. 818. (/() Vide supra, Part 11., Chap, v., Sect. 2, pp. 247—250. (/) 3&4 Viet. c. 113, s. 34; 4 & 5 Vict. c. 39, ss. 9, 12. P. VOL. II. (/c) 3& 4 Vict. c. 113, s. 5G; 13 & 14 Vict. c. 94, s. 25. (0 24 & 25 Vict. c. 131. (m) 29 & 30 Vict. c. Ill, ss. 15, 16. («) 13 & 14 Vict. c. 41. 6 T 2106 CHURCH EXTENSIOX. Lambeth. Sundry }io\vcrs. Commissioners to be tithe owners. ono, 13 &: 14 Vict. c. 7G, for abolisliliif^ the royal ])ecuHar of St. Ijiirlan ; both tlicsc acts Avcrc promoted by the coni- niissioners. By 29 & 30 Vict. c. Ill, ss. 7, 8, tl»e Hbrary and tlie Lollards and jNIorton Towers of Lambeth Palace are to be vested in and maintained by the commissioners. Tlie powers of tlie commissioners to annex sinecures to l)enefices(o), to sup]iress other sinecure rectories (/O, and to enable the sale of advowsons annexed to the headshijis of colleges ((/), have been already mentioned. They may, also, Avith consent of the patron, apportion differently the incomes of two benefices in the same ])atronage (r). With respect to the estates vested in the commissioners, they are to have all the same rights and powers as the original holders possessed, or a successor would have had {s); and they are to be deemed to be owners or joint- owners, as the case may be, for the purposes of the Tithe Commutation Acts, of all tithes vested or liable to be vested in them [t). Resolutions rcspeciing Grouts in Augmentation of Livings (^u). The ecclesiastical commissioners for England, liaving carefully considered how provision may best be made for the cure of souls out of the limited amount of monies at their disposal, in conformity with the intent and meaning of the acts 3 & 4 Vict. c. 113, and 4 & 5 Vict. c. 39, have i-esolved to recommend to her jNIajesty in council : That grants should be luade, either in augmentation of the incomes of, or toAvards providing fit houses of residence lor, the incumbents of certain benefices and churches, with cure of souls, that is to say, being either parish churches or churches or chapels with districts legally belonging or assigned thereto; in certain classes; subject to such limi- tations, as are hereinafter mentioned, or as may from time to time be determined on ; and subject also to their right to decline recommending a grant, in any case in whicli fi-om special circumstances they shall be of opinion that such grant is not expedient. That the first class should consist of grants, made im- conditionally, to benefices or churches with cure of .souls as aforesaid, being in puljlic patronage, namely, in the patron- age of her majesty, either in right of the crown or of the (o) Vide supra, p. 551. ( p) Vide supra, p. 506. (q) Vide supra, p. 2027. (r) 3 & 4 Vict. c. 113, s. 74. (.s) Ibid. s. 57; 4 & 5 Vict. c. 39, s. G. (0 4 & 5 Vict. c. 39, s. 29. (m) Vide supra, p. 2100. THE ECCLESIASTICAL COMMISSIONERS. 2107 duchv of Lancaster, of the Duke of Cornwall, of any archbishop or bishop, of any dean and chapter, dean, ai'cli- deacon, prebendary, or other dignitary or officer in any cathedral or collegiate church, or of any rector, vicar, or perpetual curate, as such ; and that this class should at present be Hmited to benefices and churches, having a population of 2,000 at the least, and an average annual net income below 150/. ; and to the raising of such income, as neai'ly as may be, to that amount. That the second class should consist of grants made to benefices or churches with cure of souls as aforesaid, whe- ther in public patronage as aforesaid ; or in private patron- age, namely, any patronage whatsoever other than as afore- said ; upon condition of such grants being met by benefac- tions from other sources, either paid to the commissioners, on account of the same benefices or churches, or secured in perpetuity to the incumbents thereof; and that this class should at present be limited to benefices and churches having a like amount of population, and an average annual net in- come below 200/. That the third class should consist of grants made to benefices or churches with cure of souls as aforesaid, in consideration of their being situate within the places in Avhich any of the tithes vested in the commissioners now arise, or the tithes, in lieu of which any of the lands or other hereditaments vested in them Avere allotted or as- signed, have heretofore arisen ; such grants not exceeding the actual value of the tithes or of the lands or other here- ditaments in respect of which the same shall be made. The ecclesiastical commissioners have some other powers Specical powers. given them by various statutes which are not so easily to be classified. By 6 & 7 AYill. 4, c. 77, s. 26, tliey have transferred to Advowsons in them all the powers respectino; the sale of livino-s in the ^^!^^^]^ of mnm- ^^ . . / '=' . , . , ° . cipal corpora- ])atronage ot municipal corporations Avhich were given Hqhs. to the commissioners of inquiry by the Municipal Reform Act, 5 8c 6 Will. 4, c. 76. By 5 & 6 Vict. c. 26, s. 13, their consent is necessary Houses of resi- to enable any incumbent, whose living has been augmented •^ence. by them, to raise money for improving the parsonage-house of his benefice (x). They, submitting a scheme to the C^uecn in council, are to be " the authority" under the same act for carrying into execution the provisions as to epis- copal and canonical houses therein contained (_y). (x) Vide supra^ Part Y., Cliap. (y) Vide aupra, Part V., Chap. II., Sect. 2, p. 1460. II., Sect. 2, pp. 1-179—1482. G T 2 2108 CHURCH EXTENSION. Leases. Copyholds. Exchange of advowsons. Aufrmcnta- tions. Unions. New parishes. Church build- ing coniniis- sioners. Their duties and powers as to making and sanctioning leases by ecclesiastical corporations {s), and in the extin- giiishment of old leasehold interests under such corpora- tions (/), have Iteen mentioned. Under 21 & 22 Vict. c. 94, s. 19, they are to have notice of all proceedings to enfranchise cojiyholds holden under ecclesiastical persons, and certain powers of dissenting to such proceedings {u). They have also powers in respect of the exchange of advowsons and rights of jiatronage (v), and certain duties under 2G & 27 Vict. c. 120, as to the sale of livings in the gift of the lord chancellor (x). They must consent to the augmentation of any benefice which is to be made by any ecclesiastical corporation affected by the acts 3 & 4 Vict. c. 113, and 4 & 5 Vict. c. 39 (y). By 23 & 24 Vict. c. 142, they have power to frame schemes for the union of benefices within the metro- polis {z). It has been already stated that under 6 & 7 V^ict. c. 3G, certain sums of stock were to be lent by the governors of Queen Anne's Bounty to the commissioners, for the purpose of better providing for spiritual destitution. Their powers under this and subsequent acts as to the fonnation of new panshes, the acceptance of sites for cliurches, and generally as to the revision of the ecclesiastical arrangements conse- quent thereon, will be dealt with in later chapters (a). It should, however, be here stated, that by 19 & 20 Vict. • c. 55, the ecclesiastical commissioners have become the church building commissioners, with all the rights, privi- leges and estates of such commissioners, compensation being made to the officers of the church building commis- sioners out of the common fund of the ecclesiastical com- missioners (b). The church building commissioners were originally established for ten years by 58 Geo. 3, c. 45. They were made a body corporate with a common seal by 59 G^o. 3, c. 134. The commission was continued by divers acts of j)arliament for periods of years till it was finally incorpo- rated with the ecclesiastical commission. The primary object («) Vide supra, Part V.. Chap. VI., Sect. 3, pp. 1G'J2— 1702. (t) Ibid. Sect. 5, pp. 1702— 1713. (w) Vide supra, p. 1715. {v) Vide supra, Part IT., Chap. XI., Sect. 2, pp. 344—348. (x) Ibid. Sect. 3, pp. 386—393. Oj) 3&4 Vict. c. 113, s. 7G; 4 & 5 Vict. c. 39, s. 2G. (z) Vide supra, Part II., Chap. XIV., pp. 540—551. (rt) Vide infra, Part IX., Chaps, v., VI. (b) 19 & 20 Vict. c. 55, s. 2; 29 & 30 Vict. c. Ill, s. 19. THE ECCLESIASTICAL COMIVOSSIONEES. 2109 of the commission was to disti-ibute a sum of 1,000,000/. granted in exchequer bills to assist the building of new churches, and increased by 500,000/. by 5 Geo. 4, c. 103. For this purpose, and under the three acts already cited and 3 Geo. 4, c. 72, they had power to build or assist in building churches, to grant sites, to make loans, and espe- cially to make grants or loans to meet contributions or church-rates. They have also numerous powers to exer- Icise as to the division and re-arrangement of parishes, which will be more properly treated of in later chapters (c). They may accept sites for churches, and they may in 'certain cases put in force compulsory powers, under pro- visions similar to those contained in the Lands Clauses Consolidation Act(rf), for the purpose of acquiring sites for churches. It has been holden that where these powers are exercised for the ]5urpose of procuring a title from persons under a disability to convey and the money is paid into the Court of Chancery, the church building commissioners, or now the ecclesiastical commissioners as representing them, will have to pay the costs of a petition for payment of the money out of court to the person entitled So receive it, thereby following the ordinary rule under the -/ands Clauses Act and other analogous acts (e). (c) Vide infra, Part IX., {<') Ex parte Vicar of Maraate, Chaps, v., VI. 12 L. T., N. S. 7U2. {d) 8 Vict. c. 18. 2110 CHURCH EXTENSIOX. CHAPTER IV. THE AUGMENTATION OF BENEFICES BY PRIVATE PERSONS. 17 Car. 2, c. 3. Impnijiriators may annex tithes. 29 Car. 2, c. 8. Ecclesiastical corporations may reserve benefits for vicars upon leases. By 17 Car. 2, c. 3, ss. 7, 8, the o-nncrs or impropriators of tithes may annex the same to the parsonage or vicarage of the parish church or chapel where they anse, without licence ui mortmain ; and where the settled maintenance of any parsonage or vicarage is imder 100/. per anninn the jiarson or vicar may take and liold lands and other hereditaments conveyed to him without licence in mort- main («). By 29 Car. 2, c. 8, s. 1, reciting that divers archbishops, bishops and other ecclesiastical persons have, upon rencAv- ing their leases of tithes, made reservations beyond the ancient rent for the augmentation of the endowment of the vicars or curates, it is ena-cted, that " every augmentation granted or intended to be granted since the said 1st day of June {b) or which shall at any time hereafter be granted, reserved, or made payable to any vicar or curate, or reserved by way of increase of rent to the lessors, but intended to be for the benefit of such vicar or curate, by any archl^ishop, bishop, dean, provost, dean and chapter, archdeacon, prebendary, or other ecclesiastical corpora- tion, person or ]:)ersons whatever, so making the said reservation out of any rectory impropriate or portion of tithes belonging to them or any of them respectively, shall continue and remain as well during the continuance of the estate or term upon which the said augmentations were granted, reserved, or agreed to be made ])ayable, as afterwards, in whose hands soever the said rectories or portions of tithes shall be chargeable therewith, whether the same be reserved again or not ; and the said vicars and curates respectively are hereby adjudged to be in the actual possession thereof for the use of themselves and their successors, and the same shall for ever hereafter be taken, received, and enjoyed by the said vicars and curates and their successors, as well during tlie continuance of the term or estate uj)on which the said augmentations were (rt) Vide supra, Tart VIII., Chap. II., Sect. 2. (b) That is, June 1, 1660. AUGMENTATION OF BENEFICES BY PRIVATE PERSONS. 2111 granted, as afterwards, and the said vicars and curates shall have remedy for the same, either by distress upon the rectories impropriate, or portions of tithes charged therewith, or by action of debt against the person who ought to have ]3aid the same, his executors or adminis- trators ; any disability in the person or persons, bodies .politic or corporate so granting, or any disability or incapacity in the vicars or curates, to Avhom or for whose use or benefit the same are granted or intended to be granted, the statute of mortmain, or any other law, custom, or other matter or thing whatsoever, to the contrary notwithstanding." Sects. 3, 4 and 5 provide for the registration of these augmentations. This act was repealed by 1 & 2 Vict. c. 106, s. 15, but restored again by 6 & 7 Vict. c. 37, s. 25. By 2 & 3 Anne, c. 20, s. 1, it was provided, as has 2 & 3 Anne, been already said (c), that the Queen might by letters ^- 2^- patent erect a corjjoration and grant thereto the first fi'uits and tenths, to be ap])lied by the corporation for the aug- mentation of the maintenance of poor parsons. And by sects. 4, 5, and 6, " For the encouragement of Lands and such well disiDosed persons as shall, by her Maiestv's roval Spot's may be 11 1 i J. •! J. J. • 1 1 •- 1 1 given to Queen example, be moved to contribute to so pious and charitable Anne's Bounty a purpose, and that such their charity may be rightly by deed en- applied ; all and every person and persons, having in his ^ol^^d or will. or their own right any estate or interest in possession, reversion, or contingency of or in any lands, tenements or hereditaments or any property of or in any goods or chattels, shall have full power, licence and authority, at his, her and their will and pleasure, by deed enrolled in such manner, and Avithin such time, as is directed by the statute 27 Hen. 8, c. 16, for enrolment of bargains and sales, or by his, her or their last will, or testament in writing, duly executed according to laAv, to give and grant to, and vest in the said corporation, and their suc- cessors, all such his, her, or their estate, interest, or pro- perty in such lands, tenements and hereditaments, goods and chattels, or any part or parts thereof, for and towards the augmentation of the maintenance of such ministers as aforesaid, officiating in such church or chapel, where the liturgy and rites of the said church arc or shall be so used or observed as aforesaid and having no settled com- petent provision belonging to the same, and to be for that purpose applied according to the will of the said benefactor, (c) Vide su2)ra, Part IX., Chap. II. 2112 CHURCH EXTENSION. ill and by such deed enrolled, or by such Avill or testament executed as aforesaid, expressed : and in default of such direction, limitation or appointment, in such manner as by her Majesty's letters patent shall be directed and ai)])ointed as aforesaid. And such corporation and their successors shall have full cajiacity and ability to purchase, receive, take, hold and enjoy, for the purposes aforesaid, as ^vell from such persons as shall be so chaiitably disposed to give the same, as fi*om all other persons as shall be -willing to sell or alien to the said corporation any manors, lands, tenements, goods or chattels, without any licence or writ of ad quod damnum; the statute of mortmain, or any other statute or laAv, to the contrary notwithstanding. Except by per- " This act or anything therein contained shall not extend sons under ^^ enable any person or persons, being within age, or of ability. non-sane memory, or women covert, without their hus- bands, to make any such gift, grant or alienation ; any thing in this act to the contrary in anywise notwith- standing." By 43 Geo. 3, c. 107, s. 1, the benefactions made under 2 & 3 Anne, c. 20, are exemjDted from the provisions of 9 Geo. 2, c. 36(c). Land tax. By 42 Geo. 3, c. 116, s. 50, money may be left to redeem the land tax on charities, notwithstanding the mortmain laws. 43 Geo. 3, By 43 Geo. 3, c. 108, s. 1, it is enacted, " That all and ^•^^^- every person and persons, having in his or their own right ot more than ^"7 estate or interest in possession, reversion, or contin- fivc acres, and gcucy, of or in any lands or tenements, or of any property good? not more of or in any goods or chattels, shall have full power, bt m^?c for"*' licence, and authority, at his and their \\\\\ and ]ileasure, building by deed enrolled, in such manner, and within such time, churches, and as is directed in England by the statute 27 Hen. 8, c. 16, inanses"^d ^^ ^^J ^^i^' ^^^^ ^^' their last will or testament in writing, glebes. duly executed according to law, such deed, or such will or testament, being duly executed three calendar months at least before the death of such gi'antor or testator, including the days of the execution and death, to give and grant to and vest in any person or persons, or body politic or corporate, and their heirs and successors respectively, all such his, her, or their estate, interest, or property in such lands or tenements, not exceeding five acres, or goods and chattels, or any part or parts thereof, not exceeding in value five hundred pounds, for or towards the erecting, rebuilding, repairing, purchasing, or providing any church (c) Vide su^tra, Part VIII., Chap. II., Sect. 2. AUGMENTATION OF BENEFICES BY PRIVATE PERSONS. 2113 or chapel whei-e the liturgy and rites of the said united church are or shall be used or observed, or any mansion house for the residence of any minister of the said united church officiating, or to officiate in any such church or chapel, or of any outbuildings, offices, churchyard (d), or glebe, for the same respectively, and to be for those pur- poses applied, according to the will of the said benefactor, in and by such deed enrolled, or by such will or testament executed as aforesaid expressed, the consent and approba- tion of the ordinary been first obtained, and in default of such direction, limitation, or appointment in such m.anner as shall be directed and appointed by the patron and ordi- nary, with the consent and approbation of the parson, vicar, or other incumbent." By sect. 2, only one such gift shall be made by one Excessive jrift person, and where it exceeds five acres or five hundred ^° ^^ reduced. pounds the chancellor may reduce it. By sect. 3, no glebe upwards of fifty acres shall be Restriction. augmented with more than one acre. Sect. 4. " And whereas it often happens that small plots Small plots of of land held in mortmain lie convenient to be annexed to '^'^'"^ may be some such church or chapel, or house of residence, as hoUlen in aforesaid, or to some churchyard, or curtilage thereto mortmain, belonging, or convenient to be employed as the site of some such church or chapel, or house to be hereafter erected, and for the necessary and commodious use and enjoyment thereof, it is therefore further enacted, that it 'shall be lawful for every body politic or corporate, sole or aggregate, by deed enrolled as aforesaid, with or without confirmation, as the law may require, to give and grant, either by way of exchange or benefaction, any such small plot of land not exceeding one acre, to any person or persons, body politic or corporate, his and their heirs and successors respectively, to be held, used and applied for the purposes afoi'esaid ; and such last-mentioned person and persons, bodies politic and corporate, and their heirs and successors respectively, shall have full capacity and ability, with consent of the incumbent, patron and ordi- nary, to take, hold and enjoy such small plot of land for the purposes aforesaid." By 51 Geo. 3, c. 115, s. 2, any person having the fee Grants of simple of a manor may grant five acres of land for a church or "'^ste. churchyard, or parsonage or glebe, if the church for which ((I) This docs not autliorize a (Re Ritjlcy's Trusts, 36 L. J., gift for the repair of a vault and Cha. 137). other objects in a churchyard 2114 CIIUUCII EXTENSION. 6 8r 7 Vict. c. 37. Ministers of churches huilt under tlie act may take and hold Kitts. Powers of bounly board as to endow- ment under 2 & 3 Anne, c. 20, and 45 Geo. ;j, c. 84, conferred u])on commissioners for the pur- poses of this act. or the minister Avliereof the same is gjiven be a parochial chm'ch or chapel. In Forbes v. Tlie Ecclesiastical Commissioners (c), Vice-Chanccllor Wickens lield, that this provision did not enable a lord of the manor to grant part of the village green, holdcn under special circum- stances, for the site of a churcli. liy 5S Geo. 3, c. 45, ss. 33, 36, 52, lands not in mortmain, to an extent not exceeding ten acres, may Ixj conveyed by gift or sale to and holdcn by th<3 church building commi.ssioners for sites for houses of residence and for glebes for the ministers of nc\v churches built under that act (./'). By G & 7 Vict. c. 37, which provides ibr the establi.sh- ment in certain cases of districts for spiritual purposes and for the appointment of a minister or perpetual curate to such district, it is further pi'ovided as follows: — Sect. 12. " Such minister and perpetual curate respec- tively may, in such name and character respectively, not- withstanding the statutes of mortmain, receive and take, to him and his successors, as well every grant of endow- ment or augmentation made or granted by the authority aforesaid, as also any real or personal estate or eflfects whatsoever which any person or persons or body corpo- rate may give or grant to him according to law." Sect. 22. " For the encouragement of such persons as shall be disposed to contribute towards the pur])oses of this act, and that their charity may be rightly applied, all and every person or persons, or body corporate, having in his or their own right any estate or interest in possession, reversion or contingency of or in any lands, tithes, tene- ments or other hereditaments, or any property of or in any goods or chattels, sliall have full power, licence, and authority at his and their will and pleasure, by deed enrolled in such manner and within such time as is directed by 27 Hen. 8, c. 16, in the case of any lands, tithes, tenements, or other hereditaments (but.Avithout any deed in the case of any goods or chattels), or by his or their testament in writing duly executed accoi'ding to law, to give and grant to and vest in the ecclesiastical com- missioners for J'^ngland and their successors, all such his or their estate, interest, or property in such lands, tithes, tenements or other hereditaments, goods, and chattels, or any part or parts thereof, for and towards the endowment or augmentation of the income of such ministers or per- petual curates as aforesaid, or for or towards providing (e) L.J.,Notes of Cases (1872), 160; L. R., Weekly Xotes, 204. (f) Vide infra, Tart IX., Chap. V. AUGMENTATIOX OF BENEFICES BY PRIVATE PERSONS. 2115 any church or chapel for the purposes and subject to the provisions of this act, and to be for such purposes respec- tively applied, according to the will of such benefactors respectively, as in and by such deed enrolled, or such testament executed as aforesaid, may be expressed, or, in the case of no deed or testament, as may in some other manner be directed, and in default of such expression or direction then in such manner as shall be directed by the authority hereinbefore mentioned j and such commissioners and their successors shall have full capacity and ability to purchase, receive, take, hold, and enjoy for the purposes aforesaid, as well from such persons as shall be so charit- ably disjiosed to give the same, as from all other persons who shall be Avilling to sell or aliene to the said commis- sioners any lands, tithes, tenements or other hereditaments, goods, or chattels, without any licence or writ of ad quod damnum, the statute of mortmain, or any other statute or laAv, to the contrary notwithstanding." By 13 & 14 Vict. c. 94, s. 23, " The owner or proprietor i;5 & U Vict. of any impropriation tithes, portion of tithes or rent- ^- ^•^^• charge in lieu of tithes, shall and may have power to annex fawners of im- the same or any part thereof unto the parsonage, vicarage tithes maT or curacy of the parish church or chapel where the same annex the lie or arise or to settle the same in trust for the benefit of ^^™^ *° ^''° 1 . i J J 1 narsonacre or such parsonage, vicarage or curacy, any statute or law vicarao-e. whatsoever to the contrary thereof in anywise notwith- standing," In Burr \. Miller (rj), Vice-Chancellor Wickens ap- pears to have holden that this provision did not jiro tanto repeal 9 Geo. 2, c. 36, and that a devise of tithes for those purposes by will was, therefore, still void. By 29 & 30 Vict. c. Ill, "The commissioners may 29 & 30 Vict. take and hold, Avithout licence in mortmain, lands Avhicli c. ill. they consider convenient to be annexed to any benefice Commissioners .< ^1 1,1 • . "^ • • may take lands. With cure oi souls, and tlicy may ap])ropriate monies m their hands belonging to such benefice towards buying such lands." By 3 Geo. 4, c. 72, ss. 13, 14, the church building Conversion commissioners are empowered to convert vicarages or "^'"^ rectories, divisions of vicarages into rectories, on receiving from the owners entitled in fee simple to the tithes, if it be an impropriate rectory, or the patron and incumbent of any sinecure rectory, the whole or such part as they may think proper of the tithes, glebe and rectorial rights, to be an- nexed to the vicarage or vicarages; and the commissioners {jj) L. J., Notes of Cases (1872), 55, 2116 CHURCH EXTENSION. 1 & 2 Will. c. 43. Kxplaining tl()ul>ts as to portion of tithes, &c. ai'C to execute an instrument declaring sucli annexation, which is to be enrolled in chancery and rcg^istered in the registry of the diocese. And if the arrangement cannot be fully carried out at once, the connnissioners are cm- powered to accept and record the oilers of the improjiriators, patrons and incumbents, which are to be binding upon their successors in title (A). The principal act on the augmentation of benefices is 1 & 2 Will. 4, c. 45. It recites 29 Car. 2, c. 8, and provides as follows : — Sect. 2. " The provisions of the said recited act shall extend to any augmentation to be made out of tithes, although the same may not be a portion of tithes ; and further, that it shall be lawful, under the power given by the said recited act, to grant, reserve, or make payable any such augmentation as aforesaid to the incumbent of any church or chapel within the parish or place in which the rectory iinproin-iate shall lie, or in which the tithes or portion of tithes shall arise (as the case may be), whether such incumbent shall be a vicar or curate, or otherwise : provided also, that no such augmentation shall be made payable to any other person whomsoever." Extension of 2d Car, 2, c. 8, for the future. Recited act to Sect. 3. " In every case in which any augmentation extend to auf,-- shall at any time hereafter be granted, reserved, or made jiieiitations Ijv p^yj^ij]Q ^q thc incuinbcnt of any church or chapel, or colleges and hospitals. reserved by way of increase of rent to the lessors, but intended to be to or for the use or benefit of any incum- bent, by the master and fellows of any college, or the master or guardian of any hospital so making the said grant or reservation out of any rectory impropriate, or tithes or jjortion of tithes, belonging to the master and fellows of such college, or the master or guardian of such hospital, all the provisions hereinbefore recited and set forth, except the provision hereinbefore repealed (z), shall apply to such case in the same manner as if the same provisions, except as aforesaid (with such alterations therein as the difference between the cases woidd require), were herein expressly set forth and enacted with reference thereto: Provided always, that every such augmentation shall be made to the incumbent of some church or chapel within the parish or i)lace in which the rectory impropriate shall lie, or in which the tithes or portion of tithes shall arise (as the case may be)." (Ji) Vide supra, p. 295. (/) A rcbtriction contained in sect. 2. AUGMENTATION OF BENEFICES BY PRIVATE PERSONS. 2117 Sect. 4. " In every case in wliicli any augmentation The same sta- sliall at any time hereafter be granted, reserved, or made ^^^^ ^° extend payable to the incumbent of any churcli or chapel being ti'ons made by in the patronage of the grantor or grantors, or lessor or spiritual per- lessors, or be reserved by way of increase of rent to the ^'^"^' colleges lessor or lessors, but intended to be to or for the use or ^^^ of°any'^ ^' benefit of any such incumbent, by any archbishop, bishop, hereditaments, dean, dean and chapter, archdeacon, prebendary, or other ^^ ^^y church i-.-i '- .• ^ '' 1 . or chapel being ecclesiastical corporation, person or persons whatsoever, j^ ti^gj^ patron" or the master and fellows of any college, or the master age. or guardian of any hos])ital so making the said grant or reservation out of any lands, tenements, or other heredita- ments belonging to such archbishop, bishop, dean, dean and chapter, archdeacon, prebendary, or other ecclesias- tical corporation, person or persons whatsoever, or the master and fellows of such college, or the master or guardian of such hospital, all the provisions hereinbefore recited and set forth (except the provision hereinbefore repealed) shall apply to such case in the same manner as if the same provisions, except as aforesaid (with such alterations therein as the difference between the cases would require), were herein expressly set forth and enacted with reference thereto." Sect. 5. " Every augmentation Avhich at any time All such ang- hereafter shall be granted, reserved, or made payable, mentations to either under the power given by the said recited act, or ^f annual ^ under either of the powers hereinbefore contained, shall be rents. in the form of an annual rent, and that the provisions of the said recited act, and the provisions hereinbefore con- tained, shall not apply to any other kind of augmentation whatsoever to be made after the passing of this act." As to Leases on augmented Benefices. Sect. 6. " Where any such rectory impropriate, or tithes Where hcrcdi- or portion of tithes, or any such lands, tenements, or other taments arc in hereditaments as aforesaid, shall respectively be subject to oTdiV^c^erved any lease on which an annual rent shall be reserved or be rent may be payable to the person or persons or body politic making giantedasan the augmentation, it shall be lawful, diu'ing the con- ' ° tinuance of such lease, to exercise the power given by the said recited act, or either of the powers hereinbefore contained (so far as the same shall apply), by granting to the incumbent of the benefice iK) intended to be augmented (/.:) By sect. 28 "benefice" chapelries, district parishes and comprehends " rectories, vicar- district cliajielries, and churclics ages, donatives, perpetual cura- and chapels having a district cies parochial and consolidated assigned thereto." 2118 CIIURCII KXTKXSION'. Where here- ditaments are subject to a lease uot re- serving a rack rent, an aug- mentation may be granted, to take effect on the determina- tion of such lease. Power in snch cases to defer the commence- a part of the rent \vlilcli sliall be so reserved or made payable as aforesaid, and then and in every such case the same jircmises shall for ever, as ■well after the determina- tion of such lease as durinof the continuance thereof, be charo;cable to such incumbent, and his successors, with the augmentation Avhich sliall have been so granted to him as aforesaid ; and from and after such time as notice of the said grant shall be given to the person or persons entitled in possession under the said lease, and thenceforth during the continuance of the same, such incumbent, and his successors, shall have all the same powers for enforcing ])aymcnt of such augmentation as the person or ])ersons or body politic by Avhom the augiuentation shall have been granted might have had in that behalf in case no grant of the same had been made ; and after the determination of the said lease, the said incumbent and his successors shall have such remedy for enforcing ]5ayment of such augmen- tation as aforesaid as is provided by the said recited act Avith respect to augmentations granted, reserved, or made payable under the authority thereof." Sect. 7. " Where any such rectory impropriate, or tithes or portion of tithes, lands, tenements, or other heredita- ments as aforesaid, shall be subject to any lease for any term not exceeding twenty-one years or three lives, or (in the case of such houses as under the provisions of 14 Eliz. c. 11, may lawfully be leased for forty years (/)) not exceeding forty years, on Avhich lease the most improved rent at the time of making the same shall not have been reserved, it shall be lawful at any time during the con- tinuance of such lease to exercise the power given by th', said recited act, or either of the ]iowers hereinbefore con- tained, by granting out of the said premises an augmenta- tion, to take effect in possession after the ex])iration. surrender, or other determination of such lease, and ther^ and in every such case the said premises shall, from and after the expiration, surrender, or other determination of the said lease, and for ever thereafter, be chargeable with the said augmentation ; and the provisions of the said recited act and of this act respectively shall in all respects apply to every augmcjitation Avhich shall be so granted in the same manner as in other cases of augmentations to be granted under the powers of the said recited act or of this act." Sect. 8. " ' And Avhereas it is apprehended that it may be desirable in many cases to make grants of augmenta- (/) Vide supra^ p. 1665. AUGMENTATION OP BENEFICES CY TRIVATE TERSONS. 2119 tions in the manner last hereinbefore mentioned, and that mcnt of thf such grants Avould be much discouraged if the augmeuta- a"^'mentation tion to be granted should necessarily take effect in posses- oHhe leLe.^ sion upon a sui'render of the lease during which the same had been granted as aforesaid for the purpose of such lease being renewed ;' be it therefore further enacted, that in any case in which an augmentation shall have been granted to take effect in possession after the expiration, surrender, or other determination of any lease in the man- ner authorized by the clause last hereinbefore contained, and a renewal of such lease shall take jilace before the expiration thereof, it shall be lawful in and by the renewed lease to defer the time from which such augmentation is to take effect in possession as aforesaid until any time to be therein specified in that behalf: Provided always, that the time to Avhich the augmentation shall be so deferred shall be some time not exceeding twenty-one years, or (in the case of such houses as by the said act 14 Eliz. c. 11, may lawfully be leased for forty years) not exceeding forty years, to be respectively computed from the commencement of the lease during which the augmentation shall have been granted." Sect. 9. " Where any such augmentation as aforesaid Power to ap- sliall have become chargeable, inider or by virtue of the po''tio". a^"S- • -t • . 1 . r f^ • i , • mentations on said recited act or ot this act, upon any rectory imj^ro- future leases. priate, tithes, portion of tithes, lands, tenements, or other hereditaments, if any lease shall afterwards be granted of any part of the same premises separately from the rest thereof, then and in every such case, and from time to time so often as the same shall happen, it shall be lawful for the person or persons granting such lease to provide and agree that any part of such augmentation shall diu-ing such lease be paid out of such part of the hereditaments previously charged therewith as shall be comprised in the said lease, and then and in such case, and thenceforth Restriction on during the lease so to be made as aforesaid, no further or ^''° exercise of other part of the said augmentation shall be charged on apnoi-tiomneut. the premises comprised in tlie said lease than such part of the said augmentation as shall be so agreed to be paid out of the same : Provided always, that in every such case the hereditaments which shall be leased in severalty as afore- said shall be a competent security for such part of the said augmentation as shall be agreed to be paid out of the same, and the remainder of the hereditaments originally charged with the said augmentation shall be a competent security for the residue thereof." 2120 CHURCH EXTENSION, Ecclesiastical corporations, colleges, &c. holding impro- priate rectories or tithes, may annex the same to any church or chapel within the parish in which the rectory lies or the tithes arise. Kepcal of so Scct. 10. " ' And wlicrcas by the said recited act it was ^"S!j.°^ enacted, that if upon tlic surrender, expiration, or other quires an ex- determination of any lease Avherein such augmentation press con- had bccu or should be granted, any new lease of the tinuauce of the pi-pniises, or any part thereof, should thereafter be made nugnientatiun '., ' •> ^ . r ^ -i . j- in new leases. 'Without express contniuance oi tlie said augmentation, every such new lease should be utterly void ;' be it further enacted, that the said last-mentioned provision, so far as relates to any augmentation which may be granted after the passing of this act, shall be and the same is hereby repealed." As to Ecclesiastical Corporations. Sect. 11. "It shall be lawful for any archbishop, bi.shop, dean, dean and chapter, archdeacon, prebendary, or other ecclesiastical corporation or person or persons, or the mas- ter and fellows of any college, or the master or guardian of any hospital, being, in his or their corporate capacity, the owner or OA\Tiers of any rectory impropriate, or of any tithes or portion of tithes arising in any particular parish or place, by a deed duly executed, to annex such rectory impropriate, or tithes or portion of tithes as aforesaid, or any lands or tithes, being part or parcel thereof, with the appurtenances, unto any church or chapel within the parish or j^lace in which the rectory impropriate shall lie, or in wliich the tithes or portion of tithes shall arise, to the intent and in order tliat the same maybe held and enjoyed by the incumbent for the time being of such church or chapel ; and every such deed shall be effectual to all intents and ]iui-poses whatsoever, any law or statute to the contrary notwithstanding." Sect. 12. "It shall be lawful for any archbishop, bishop, dean, dean and cha])tcr, archdeacon, prebendary, or other ecclesiastical corporation or person or persons, or the master and fellows of any college, or the master or guardian of any hospital, being, in his or their corporate capacity, the owner or owners of any lands, tenements, or other hereditaments Avhatsoever, and also being in his or their corporate ca])acity tlie patron or patrons of any church or cha])el, by a deed duly executed, to annex such lands, tene- ments, or other hereditaments, with the appurtenances, unto such church or chapel, to the intent and in order that the same premises may be held and enjoyed by the incumbent for the time being thereof; and every such deed shall be effectiial to all intents and pui*]ioses whatsoever, any law or statute to the contrary notwithstanding." Such annexa- Sect. 13. " In any case in Avhich any rectory impro- tions to be Power to annex lands, &c. held by them to any church or chapel under their patron- age. AUGMENTATION OF BENEFICES BY BRIVATE PERSONS. 2121 priate, tithes or portion of tithes, lands, tenements, or other hereditaments, shall be annexed to any cliurch or chapel, pursuant to either of the powers hereinbefore in that behalf contained, the annexation thereof shall be subject and without prejudice to any lease or leases which previously to such annexation may have been made or granted of the same premises or any part thereof; pro- vided also, that in every such case any rent or rents which may have been reserved in respect of the said pre- mises in and by such lease or leases, or (in case any other hereditaments shall have been also comprised in such lease or leases) some proportional part of such rent or rents, such proportional part to be fixed and determined in and by the instrument by which the annexation shall be made, shall during the continuance of the said lease or leases be payable to the incumbent for the time being of the church or chapel to which the premises shall be annexed as afore- said ; and accordingly such incumbent for the time being shall, during the continuance of such lease or leases, have all the same powers for enforcing payment of the same rent or rents, or of such projiortional part thei'eof as aforesaid, as the person or persons or body politic by whom the annexation shall have been made might have had in that behalf in case the said premises had not been annexed." Sect. 14. " Where any rectory impropriate, tithes or portion of tithes, lands, tenements, or other hereditaments, which shall be annexed to any church or chapel under either of the powers hereinbefore in that behalf contained, or any part thereof, shall have been anciently or accustom- ably demised Avith other hereditaments in one lease, under one rent, or divers rents issuing out of the whole, and after such annexation such other hereditaments as afore- said, or any part thereof, shall be demised by a separate lease or leases, all the provisions of 39 & 40 Geo. 3, c. 41, shall apply and take effect in the same manner as if the premises which shall be so annexed as aforesaid had been retained in the possession or occupation of the ])erson or persons by whom such lease or leases as aforesaid shall be made." Sect. 15. " Such of the powers hereinbefore contained as are restricted to cases in which the corporation or per- sons by whom the same may be exercised shall be the patron of the benefice which it shall be intended or desired to augment, shall apply to and may be exercised in cases in which such corporation or person shall be entitled only to the alternate right of presentation to such benefice." P. VOL. II. 6 u subject to prior leases and the rents reserved upon the same or some por- tion thereof to be determined by the deed of annexation. Provisions of 39 & 40 Geo. 3, c. 41, to extend to such annex- ations, in cer- tain cases. Certain powers to apply to jicrsons en- titled to alter- nate presenta- tions. 2122 CHURCH extension. This is to Sect. 29. " That the powers by tliis act given to the api)lv to all master and fellows of any college shall apply to cases in colk""^cs under "^vhich the head of the college shall be called the warden, whiitcvcr (le- dean, jirovost, president, rector, or principal thereof, or nomination. shall be called by any other denomination, and that such powers shall extend to every college and hall in the universities of Oxford and Cambridge, and to the colleges of Eton and Winchester." flliat Benefices are to he raised. Benefices ex- Sect. IG. "Provided always, that the power given by venrlv'rahic ^^^^ ^^^^ recited act shall not at any time hereafter, nor 3(Mtz.'exclu- shall any of the powers hereinbefore contained, in any sive of surplice case, be exercised so as to augment in value any benefice raised and all 'vvhatsoever, whicli at the time of the exercise of the ])ower others to be shall exceed in clear annual value the sum of three hundred limited. ])Ounds, or SO as to raise the clear annual value of any benefice to any greater amount than such sum of three hundred and fifty pounds, or three hundred pounds, not taking account of surplice fees." Power to de- Sect, 17. "In every case in which it shall be desired, terniine the npon the exercisc of any of the said powers, to ascertain, yearly value of ^'^ ,, c .^ • , .y i '■ i i n any hcredita- lor the puq^oses ot this act, the clear yearly value ot any ments for the benefice, or of any rectory impropriate, tithes or portion purposes of the ^f tithes, lands, tenements, or other hereditaments, it shall be lawful for the archbishop or bishop of the diocese within which the benefice to be augmented shall be situate, or where the same shall be situate within a peculiar jurisdiction belonging to any archbishop or bishop, then for the archbishop or bishop to whom such peculiar jurisdiction shall belong, to cause such clear yearly value to be determined and ascertained by any two persons whom he shall appoint for that pui'jio.'se, by writing imder liis hand (which writing is hereby directed to be after- wards annexed to the instrument by whicli the power shall be exercised), and a certificate of such clear yearly value, written or endorsed on the instrument by which the power shall be exercised, and signed by such persons as aforesaid, shall for all the puqjoses of tliis act be conclusive evidence of such clear yearly value as afore- said." IIoic and hy whom the Poicers in the Act are to he exercised. By whom the Sect. 18. "Provided also, that in ever}' case in which tk)ned'powers *^^^ powcr given by the said recited act, or any of the may be exer- powers hereinbefore contained (other than and except the AUGMENTATION OF BENEFICES BY PRIVATE PERSONS. 2123 aforesaid power of deferring the time at wdiicli an augmen- cised, and with tation is to take effect in possession), shall be exercised by ^^^^^^ consent, any bishop, dean, archdeacon, or prebendary, or by the master or guardian of any hospital, the same shall be so exercised, in the case of a bishop, with the consent of the archbishop of the province, or in the case of a dean, with the consent of the dean and chapter, or in the case of an archdeacon or prebendaiy, with the consent of the arch- bishop or bishop to Avhose jurisdiction or control they shall be respectively subject, or in the case of the master or guardian of a hospital, with tlie consent of the patron or patrons, visitor or visitors (if any) of such hospital, such consent as aforesaid to be testified by the said archbishop, dean and chapter, bishop, or patron or patrons, visitor or visitors (as the case may require), executing the instrument by which the power shall be exercised." Sect. 19. " Provided always, that the incumbent of Incumbents any benefice or living shall not be authorized to exercise °ot to exercise any of the powers aforesaid with respect to any heredita- ^^' ments to which he may be entitled in right of his bene- fice." Sect. 20. " Provided also, that where the incumbent of Incumbent any benefice shall in right of the same be entitled to any ^V^y annex tithes or portion of tithes arising in any parish or place wbich he is not being within the limits of such benefice, it shall be entitled, lawful for the incumbent for the time being of such bene- arising out of fice, by a deed duly executed by him, to annex such tithes \^\^ benefice to or portion of tithes as aforesaid, or any part thereof, to the church or any clunx'h or chapel within the parish or place in which chapel of the such tithes or portion of tithes shall arise, to the intent [^ev arise. that the same may be enjoyed by the incumbent for the time being of such church or cha])el ; and every such deed shall be effectual to all intents and purposes whatsoever, any law or statute to the contrary notwithstanding : l^ro- vided always, that every such annexation as aforesaid shall be made with the consent of the archbisho}) or bishop of the diocese Avithin which the said benefice shall be situate (or if the said benefice shall be situate within a ])cculiar jurisdiction belonging to any archbishop or bishop, then Avith the consent of the arclil)ishop or bishop to whom such peculiar jurisdiction shall belong), and also Avith the consent of tlie patron or patrons of the said benefice, such consent to be testified by the said archbishop or bishop and the said patron or patrons respectively executing the instrument by which the annexation shall be made." Sect. 21. "And whereas it is expedient that rectors Power to and vicars shoidd be enabled, under proper restrictions, rectors or 6 u 2 ''^'■''"^ 2124 CIIURCn EXTENSION. charge their rectories and vicarages for the benefit of chapels of ease, &c. to charge their rectories and vicarages for the benefit and su]i])ort ofchajiels of ease situate within such rectories and vicarages, as also in certain otlier cases ; be it therefore further enacted, that it sliall be lawful for any rector or vicar for the time being of any rectory or vicarage, by a deed dulv executed by him, to annex to any chapel of ease or parochial chapel, or to any district church or chapel, or any chajiel having a district assigned thereto, whether already built or hereafler to be built (such chapel of ease or other chapel or chiu'ch, with the district or place to which the same l)elongs, being situate within the limits, or within the original limits, of the said rectory or vicarage), any part or parts of the tithes or other annual revenues belonging to such rectory or vicarage, or to grant to the incumbent for the time being of any such chapel of ease or other chapel or church, and his successors, any annual sum of money, to be payable by equal quarterly or equal half-yearly payments, and to charge the same on all or any part of such tithes or other revenues as aforesaid, or on any lands or other hereditaments belonging to the said rectory or "s^icarage ; and in every case in which any such tithes or other revenues shall be annexed to any such church or cha])el as aforesaid, the incumbent for the time being thereof shall thenceforth have all the same remedies for recovering and enforcing payment of the premises which shall be so annexed as the rector or vicar for the time being of the rectory or vicarage might have had if such annexation had not been made ; and in every case in Avhich any annual sum of money shall be so granted as aforesaid, the incumbent for the time being entitled thereto shall have all such remedies for recovering and enforcing payment thereof by action of debt against the incumbent for the time being of the said rectory or vicarage, or by distress upon the hereditaments to be charged therewith, or otherwise, as shall in that behalf be specified and given by the deed by which the grant shall be made : Provided always, that every such grant and annexation shall he made with the consent of the archbishop or bishoj) of the diocese within Avhich the rectory or vicarage shall be situate (or if the rectory or vicarage shall be situate within a ])cculiar jurisdiction belonging to any archbishop or bishop, then with the consent of the archbishop or bishop to whom such peculiar jurisdiction shall belong), and also with the consent of the patron or patrons of the said rectory or vicarage, such consent to be testified by the said archbishop or bishop, and the said patron or patrons respectively executing the instrument by which the an- nexation or grant shall be made." AUGMENTATION OF BENEFICES BY PRIVATE PERSONS. 2125 In the case of Hughes v. Denton (m), the church of Hvghes v. St. Bartholomew, Moorfields, was built and endowed ^^"-t""'- within the limits of the parish of St. Giles, Cripplegate. By an order in council in 1850, a particular district was assigned to the chm-ch, and authority given to publish banns and solemnize marriages and pay the fees to its in- cumbent. Then it became a separate and distinct parish for ecclesiastical purposes (tz). ^y a local act, 7 Geo. 4, c. liv, tithes were abolished in the parish of St. Giles, and an annuity of 1 ,800/. was secured to the vicar instead. In 1857 the vicar, by a deed under this last section, purported to annex one-sixth of this sum to the incumbency of St. Bartholomew. It was liolden (1) that it was possible under the last act to annex a portion of an annuity granted in lieu of tithes ; (2) that though St. Bartholomew had become a separate parish, it still remained a church to which a district had been assigned, locally situate Avithin the limits of St. Giles, and therefore capable of augmen- tation out of the funds thereof. Sect. 22. " And whereas by 58 Geo. 3, c. 45, ]-)rovision Exception to was made, under certain restrictions, for enabling any ^^^ pieceding parish to be divided into two or more distinct parishes, ^^\, and for apportioning in such cases the glebe lands, tithes, c 45. ' moduses, or other endowments between the respective divisions ; and it was thereby provided with respect to every such case, that during the incumbency of the exist- ing incumbent of the parish every new church intended as the parish church of any division intended to become a distinct parish should remain a chapel of ease : be it further enacted, that the power last hereinbefore contained shall not be exercised for the purpose of making an an- nexation or grant to any chapel of ease situate within any division which under the provisions of the said last recited act shall be intended to become a distinct parish." As to Patrons (o). Sect. 23. " In any case in which the consent of the ^ranner in patron of any benefice shall be required to the exercise of J^ ^^^ exercise any power given by this act, and the patronage of such of powers in benefice shall be in the crown, the consent of the crown to ^^'^ act shall the exei'cisc of such power shall be testified in the manner ^-hcre patron- hereinafter mentioned; (that is to say) if such benefice ago of benefice is in the crown. (m) 5 C. B., N. S. 765 ; 28 Chap. VI. L. J., C. P. 140. (o) Vide 17 & 18 Vict. c. 84, (?!) Vide infra, Part IX., s. 0, infra, p. 2130. 2126 CnURCn EXTENSION. Where patron is an incapa- citated person. sliall 1)0 aT)Ove the yearly value of" twenty poinids in tlic kin. 2-_> I'.cav. 419; 20 L. J., Clia. VIX. V. VOL. II. N 2138 CHUKCII EXTENSIOX. Section 22 of G & 7 Vict. c. 37, to apply to ccclesi:isticiil and collo" writing, district church on the other, shall be in writing under their respective hands." Sect. 6. " Any assents required by this act may be How assents to testified by the assenting party executing the agreement be testified. (u) Vide infra, Tart IX., Cliap. VI. 6x2 2140 CHURCH EXTENSION. Ecclesiastical commissioners to carry n<^rcc- inciit into execution. Auf^mentation on exchauKe. By mtinicipal corporations. By parish- ioners. By lord chan- cellor. between tlie rector or vicar and flic iiiciiml)ciil ol" tlie district clmrcli, and tlic j»i-o\ isioiis oi'tlic above-mentioned act, and ol' tlie act 17 cV IS Vict. c. 84 («?), as to ])atrons of benefices, sliall apply to the assent of patrons nndcr this act." And by sect. 8, modified by 29 & 30 Vict. c. Ill, s. 22, it is ]>rovided. that " Any agreement made in ])nrsuance of this act shall be carried into effect liy the Ecclesiastical Commi.ssioners for England, and any instrnment under the corporate seal of the said commissioners made in pursuance of such agreement, and transferring on the one side the titlies proposed to be transferred to tlie incumbent of the district church, and on the other securing to the rector or vicar the compensation agreed upon, shall be valid to vest in the said incumbent and liis successors such tithes, and to secure to tlie said rector or vicar such com- pensation ; and wlien the ajiproval of tlie governors of the bounty of Queen Anne is required, such aj^proval may be certified by any instrument under their corporate seal, and when the ajjproval of the said ecclesiastical commis- sioners is required, it shall be implied by such order in council as aforesaid being passed." Former owners of advo\vsons, who have exchanged them for others under the provisions of 16 & 17 Vict, c. 50, may nevertheless, by sect. 4, have the same powers of augmenting them as if they had not pas.sed from them (.r). By 1 & 2 Vict. c. 31, s. 3, munici])al corporations may continue to augment priestships, prcachcrships, &c. in their gift as before (//). AVhere advowsons arc sold by parishioners and others under 19 & 20 Vict. c. 50 (r), or by the lord chancellor under 26 & 27 Vict. c. 120 (a), the proceeds of the sale may be a])]ilicd in augmenting the benefice, or in some cases other benefices in the gift of the lord chancellor. (w) Vide sujyra, p. 2130. (x) Vide siipra^ j). 345. (?/) Vide supra, p. 371. (:;) Vide supra, p. 304. (a) Vide supra, pj.. 38G— 393. ( 2141 ) CHAPTER V. THE BUILDIXG OF CHURCHES. The various acts with reference to this purpose have had Object of acts. for their immediate object the best method of disposing^ of certain suras of 1,000,000/. and 500,000/. voted by pai^Ha- ment, and of the benefactions Avhich private individuals have been authorized to make, in order to increase the num- ber of chm'ches in the kingdom. The sum of 1,000,000/. in exchequer bills was granted by 58 Geo. 3, c. 45 ; and the further sum of 500,000/. by 5 Geo. 4, c. 103. Previously, however, to these acts had been passed 43 ^43 Geo. 3, Geo. 3, c. 108, which is set out in the previous chapter («), ^- ^^l^^J^^, . by sect. 1 whereof it is provided that any person, not being favour of under age, insane, or a feme covert, may by deed or will churches, give lands not exceeding five acres, or goods and chattels not exceeding 500/., for building churches or chapels and for supplying mansion-houses Avith glebes, under certain restrictions and provisions. By sect. 4, small plots of land already holden in mortmain and lying convenient to be annexed to some church may be granted, either by Avay of exchange or benefaction, for that purpose. It appears that where a bequest of pure and impure personalty, that is, personalty savouring of realty, is made for the endowment of a future church, in such a manner as not to viohite the provisions of Geo. 2, c. 36, the trustees of the bequest are entitled to claim 500/. out of the impure, in addition to the whole of the pure personalty (/»). By 51 Geo. 3, c. 115, s. 1, the crown is empowered to 51 Geo. 3, grant lands to an amount not exceeding five acres in any ^- ^ ^"'• one grant for the same purpose. By sect. 2, any lord of the manor may grant five acres of the waste of the manor for similar purposes. The case of Forbes v. The Ecclesiastical Commis- sioners (c), decided on the construction of this section, has been already mentioned (<■/). {i(tx. f)2 fico. 3, 58 Geo. 3, c. 4 J. Apjiointmcut of churcli building com- inissioucrs. Provisions as to church rates. Distribution of parliamentary ''rant. Acceptance of And bv 02 Geo. 3, c. IGl, ?. 27, the hn\U oitlic trca.«:iirv may by warrant ap])roprIate small portions of crown lands for ciirtila'^o.'^ or accesses to churches. By the afore.stid act, 58 (leo. 3, c. 45, certain commis- sioners, commonly called " The Cluu-ch Building Com- missioners," were ajipointcd for ten years, who were to examine and inquire into the spiritual condition of parishes in order to ascertain where new churches were most re- quired, and to em])loy the sum of 1,000,000/. above men- tioned in building the churches requisite, and otherwise to carry into execution the provisions of the act. The com- missioners were afterwards made a Ijody corporate, and the term of their commission was continued by divers acts, till at last by 19 & 20 Vict. c. 55, their powers were, . from January 1, 1857, transferred to the ecclesiastical com- missioners {('). One of the means by which the church l^uilding com- missioners were authorized to assist the building of new churches was by making loans to parishes on security of the church rates, or meeting funds raised by church rates by contnbutions to an equal amount out of their own fund. Since The Compidsory Church Ivate Abolition Act, 1860, 31 & 32 Vict. c. 109, these provisions have become obsolete, except in so far as they relate to past transactions in which the loans on the .security of the church rates have not yet been ]iaid off. The provisions which aj)pear to have no ap- plication, except to this purpose, are contained in 58 Geo. 3, c. 45, ss. 35, 54—61 ; 59 Geo. 3, c. 134, ss. 14, 23—25, 36, 40; 3 Geo. 4, c. 72, ss. 5—7, 11 ; 5 Geo. 4, c. 103, s. 13. On the construction of some of these now oKsolcte sections were decided the cases of JVdrncr v.Gatcr {/) and Pi(/f/olt V. Bcarhloch {(/). Certain rules were laid down for the guidance of the church building commissioners in the distribution of the sums voted by parliament, as to the amount of population and the existing church accommodation, the })rosj)ect of subscriptions in aid, &c., in the pari.^hes to be benefited ; but as the sums voted by parliament have been long since practically expended, these provisions are not now of much practical importance. They were contained in 58 Geo. 3, c. 45, ss. 13, 14, 15 ; 59 Geo. 3, c. 134, ss, 4, 5, 6, 7, 22; 3 Geo. 4, c. 72, s. 32 ; 8 & 9 Vict. c. 70, s. 12. By 58 Geo. 3, c. 45, s. 33, the commissioners are em- (e) Vide iupra, Part. Chap. III. p. 2108. IX., (/) 2 Curteis, 315. \(j) 3 Notes of Cases, 85. THE BUILDING OF CIIUHCIIES. 214.2 powered to accept sites for cliurclies and chapels with sites for churchyards ; and every such site when It Is conveyed to the ^liLirches. commissioners and the church Is erected thereupon, and notice thereof is given to the bishop of the diocese, shall become for ever thereafter devoted to ecclesiastical purposes only, in order that the same may be consecrated by tlie bishop. By various sections (A) in this and the following acts, Grants by pcr- powers, similar to those given to so many public under- *i""'^ ""^''^^" takings by virtue of the Lands Clauses Consolidation Act [i), are given to the crown, to public bodies, corpora- tions, and generally to persons under disability, of convey- ing sites for churches and chapels to the commissioners. Provision was made for apportioning quit or other rents in cases where the lands so conveyed were, with other lands, subject to quit rents or comprised in a lease, by 3 Geo. 4, c. 72, s. 9, for cases mider that act; and gene- rally by 14 & 15 Vict. c. 97, s. 27, and 17 & 18 Vict, c. 22. The commissioners may also, under certain restric- Compulsory tions (/<), put in force compulsory powers for taking sites puifliase. which they may require ; and where a parish does not re- quire their aid in other respects, they may be invoked for the pui'posc alone of prociu'ing a safe conveyance of a site through their instrumentality (/). Provision is made for the ascertainment and payment of the purchase-money, and for the re-sale of lands not required. The title to a site is not to be questioned after five years (m). This pro- vision, it has been decided, must be construed most strictly, so as to extend only to sites traiisferred to the commis- sioners for building cluirches or chapels thereon, and not to chapels actually built wliich are transferred to them in violation of some trust (?<). In the same case it was holden that the words in 3 Geo. 4, c. 72, s. 1, which are the largest in any of the church building acts, empowering the master general of the ordnance, the principal officers of any public department, and " any and every body politic, corporate (h) 58 Geo. 3, c. 45, ss. 34, (/.•) 58 Geo. ?>, c. 45, s. 53. 3G— 54; 3 Geo. 4, c. 72, ss. 1-4, (0 Ibid. s. 52. 8, 29, 32; 5 Geo. 4, c. 103, s. 10; ' (m) 3 Geo. 4, c. 72, s. 20. A 1 & 2 Vict. c. 107, s. G; 8 & similar jirovision is containcfl in Vict. c. 70, ss. 10, 20, 21, 24; 10 1 & 2 Will. 4, c. 38, s. 17, as to & 20 Vict. c. 104, s. 28. By sites conveyed to private pendens 59 Geo. 3, c. 134, s. 20. corpora- building and endowing under tions and persons under dis- tbat act, jjrovided they pay the ability may grant stone, timber, original value of the lands (s. 18). &c. for building churches. (h) Att.-Gcii. v. Bp. of Maii- (/) 8 Vict. c. 18. cheater, L. R., 3 Eq. 43G. 2144 cm K( II i:\i KNsio.v. Where land not rc(iuired for church. Kcmission oi duties. Cases nndcr 8|)ecial acts or tl"UStS. In whom sites to be vested. " and colU'tiiatc and cnrpoialldii al belonging to a charitv in vi(jlation of the rights of the charity l)y the trnstees thereof, not for a alualjle consi- deration, but in Older that the chapel might be consecrated and made a parish church. In this case tlie chapel had l)een actually consecrated, and an order in council assign- ing a district to it had been obtained ; but on an information and bill filed, the Court of Chancery held the conveyance to the commissioners to be a breach of trust and ordered them to re-convey the chapel to the trustees of the charity. ProAasion was made in the acts for the case of lands being in the possession of the commissioners and not yet consecrated at the expiration of the term of years to which the commission was limited by 59 Geo. 3, c. 1.34, s. 34 ; and by 3 & 4 Vict. c. 60, s. 19, in cases wliere land has been conveyed to the commissioners under 1 & 2 Will. 4, c. 38, to be hereafter referred to, or 1 & 2 Vict. c. 107, and a part only of the land is required for the purposes for which it was originally conveyed to them, the commis- sioners may, with the consent of the grantor or donor, api)ro])riate the rest to other ecclesiastical purposes or to any charitaljle or ])ublic ])in'pose relating to the parish or place in which the land is situate. It should be here noted that for the purposes of these acts, and for facilitating the erection of churches imder them, various duties on brick, .stone and timber (then liable), and stamj) duties on instruments, were I'cmitted (u). By 3 (jieo. 4, c. 72, all ])owers and ])rovisions in local acts are to remain good, and may be put in force for the objects of this act (7;). And, by sect. 33, the commis- sioners may make grants to churches or chajiels already subject to special trusts, and may at the same time, by special resolution, confirm the trusts already existing. liy the earlier acts, 58 Geo. 3, c. 45, 59 Geo. 3, c. 134, and 3 Geo. 4, c. 72, the sites Avcre to be conveyed to the connnissioners for the ]iurpose of consecration ; but by 5 Geo. 4, c. 103, s. 14, hinds conveyed under the provi- (0) 60 Geo. P>, C.-134, ss. 21, 35; 3 Geo. 4, c. 72, ss. 27, 28. (p) Sects. 7, 35. THE BUILDING OF CIIUKCIIES. 2145 sions of that act arc to be vested in the persons specified in the sentence of consecration, and some similar vesting seems to be contemplated by 1 & 2 Will. 4, c. 38, in cases imder that act ; but now by the joint effect of 8 & 9 Vict, c. 70, s. 13, and 19 & 20 Vict. c. 104, s. 10, it would appear that, in all cases arising under the church building- acts, the freehold of the church, churchyard and all lands, tithes and hereditaments belonging to the church, and the house of residence, are to vest in the incumbent, except that, where by local act of parliament the same are vested in any vestry, they shall not be vested in the incumbent without the consent of the vestry. In the case of Chamj)neijs v. Arroicsmith ((7), the facts were these: — In 1816, under a local act, a new church was built in St. Pancras, Avliich was to be " the j^arish church," the old church being thereby converted into a " parish chapel." In 1853, by an order in council, the original burial place for the parish, which suiTOunded the old church, and also an additional ground provided under an earlier local act, Avere closed, and a cemetery was pro- vided for the whole parish. In 18G3, that ]iart of the jmrish in which the old church stood was turned into a new district, and the " parish chapel" was declared to be the church of that district. It was holden by the Exchequer Chamber, affirming the judgment of the Court of Common rieas(r), that the 10th section of 19 & 20 Vict. c. 104, did not operate to vest the old churchyard in the incum- bent of the new district church, but that the freehold thereof still remained in the vicar of the ])arish. As to the patronage of the churches built or endowed ratronugc. under the provisions of these acts, it was provided, in the in incumbent case of chapels built by church rates, that the patronage or patron of should be in the incunVbent of the ])arish (5). With this ^"'■""''' I'^"''''" exception the patronage of all churches to which districts or district parishes are attached is vested in tlie patron of the parish out of which the district or district parish is taken (t). But where such a district or district parish is again subdivided, the patronage is in tlie incumbent of such district or district ])arish (?/). AVhere a consolidated In nominee of cha])elry is formed out of several parishes or extra-i)aro- P-'^'""^ ^^ I • 1 1 u^i . • • 1 ^1 lormer dual places, the patronage is ni such persons as the parishes. several patrons of such parishes and extra-parochial places (7) L. R., 3 C. P. 107. (0 Ibid. s. G7; 59 Geo. 3, (/•) L. R., 2 C. V. 602. c. 134, s. 13. (s) 58 Geo. 3, c. 45, s. 08. («) 1 & 2 Vict. c. 107, s. 12. 21 K) ClirKCII EXTKNSIOX. or the niajorily of tliein, suliject to the approval of tlic coniniissioners, a«^ree to nominate (.r). Ill biihip. By 3 Geo. 4, c. 72, s. 'M, in any case -where the com- missioners bnild or assist in buiUling a chnreh or chapel " in any ]iarish or place in Avhich the patronage of or " nomination or appointment of the ecclesiastical person " to sene such cluirch or chapel " shall not belong to anyone, the commissioners may declare the patronage to be in the bishop of the diocese, or if the place be exempt from the jurisdiction of a bishop, then in the bishop within whose diocese the place is locally situate. And by 14 & 15 Vict. c. 97, s. 26 (except whei'e the com- missioners -with the consent of the bishop otherwise deter- mine), the patronage of all new churches built in extra- parochial places is to be in the bishop of the diocese. Siirrcnflor of It sliould here be mentioned that, by virtue of 59 Geo. 3, patronage. p. 134, s. 15, 3 Gco. 4, c. 72, s. 15, and 1 & 2 Vict. c. 107, s. 15, any corporation, trustees, persons with only a limited interest or under disability are empowered to surrender or agree to surrender to the commissioners, or the bishop, or any other persons, with the sanction of the commis- sioners and bishop, all rights of patronage that they may possess for facilitating any of the purposes of any of those A-rcen.cnts as acts. " By 1 & 2 Will. 4', c. 38, ss. 24, 2G, 8 & 9 Vict. to patronage, p, 70, g. 23, and 11 & 12 Vict. c. 37, s. 4, the patron and incumbent of the parish in which a new church is being built may, before its consecration, enter into any agi'ce- ment in writing as to the future patronage thereof, and such agreement is to be binding upon them. Building by By a series of acts beginning Avith 5 Geo. 4, c. 103, a private per- power of building and cndowino; churches and chapels was sons /» ... ^ . ^ conferred in certam cu'cumstances upon i)rivate persons, Avithout the intervention of the commissioners in any way. UnfleroGco. 4, By 5 Geo. 4, c. 103, s. 5, where there is not spiritual c, 103. accommodation for more than one-fourth of the inhabitants of any parish, town.ship or place, and twelve householders shall certily to the bishop that they are willing to raise by sub. Will. J, tioii is necossarv, and wlicrc sm-li persons arc ready to '^•''^^- provide a sum of 1, ()(>()/. or an annuity of 40/. cliar cS: 4 Vict. c. GO, s. 12, the endowment required by and repair j ^'2 Will. 4, c. 38, s. 2, may be in lands or houses worth 1,000/., or ])artly in them and partly in the funds; and by sect. 15, for the purposes of the repair fund re- quired a perpetual rent-charge equal in value to it on lands or heix'ditaments may be given, and the incumbent {b) Willinmsv. Brown, 1 Curt. ('/) "Wlicro there is no incnm- 54. l»ont on the patron alone, 1 & 2 (r) Sect. 27. 8ee Fitzfjernldv. Vict. c. 107, s. 2, and in cxtra- Champiuyis, 2 .Jolin. & 11. 31, parochial places on the bishop, decided on the act 2 & 3 Vict. 3 & 4 Vict. c. 60, s. 16. c. 49. (0 1 & 2 Will. 4, c. 38, ss. 7, 8. fund. THE BUILDING OF CHURCHES. 2149 instead of the trustees provided by the orio-lnnl act may hold such rent-charge, and in cases where the rent-charge comes into the hands of trustees they may assign it to the incumbent. By 23 & 24 Vict. c. 124, s. 30, tlie commis- sioners may release a rent-charge granted to them by way of endowment only, in consideration of a sum of Con- solidated Bank Annuities to be transferred into their names (y). The trustees just mentioned were first established by 5 Life trustees. Geo. 4, c. 103, s. 6. This section provides for the ap- pointment of three life trustees by the subscribers of 50/. and upwards from among themselves " for the manage- ment and general regulation of the temporal affairs of the church." They are to continue trustees as long as the church shall be served by any presentee of theirs as here- inafter mentioned. By sect. 7, if any trustee dies or resigns, a meeting is to be called, and the majority of the subscribers of 50/. and upwards, being owners or renters of pews, may ap- point a new trustee from among themselves. It appears from the case of Foicler v. Allen {g) that this meeting must be called by one of the surviving trustees. By sect. 8, if the number of persons subscribing does not exceed three, the subscribers are the life trustees, and any one of them dying or resigning may by his will or any instrument signed by him ap]ioint a trustee in his place. This last provision, it was holden in the same case of Folder v. Allen, applies only where the original sub- scribers did not exceed three, not where they have been reduced to that number in course of time. By sect. 12, if all the subscribers die, so that no election of trustees can be made, the incumbent of the parish becomes a trustee. By the same section the trustees have the patronage of the living for the first two turns, or any number of turns occurring Avithin forty years ; but if they all die, the incumbent of the parish has the nomination for the residue of this period. At the expiration of this period the patronage vests in the incumbent of the parish, unless the chapel is made into a district church, in which case it vests in the patron of the original parish. By sect. 13, in cases Avhere chapels were built by rates, the in- cumbent of the parish had the patronage, unless the chapel Avere made into a district church. By sect. 15 of the same act, the trustees may sell the vaidts under the church or in the churchyard, and after (/) Vide infra, p. 2154. (rj) L. R., 4 C. 1\ GG8. 2150 CIirKCir EXTKNSIOX. payiug a portion of the purchase-money to the incumbent of the parish in lieu of fees, shall invest the residue and employ the income in payinp; the stij)end of the minister, the salary of the clerk, and other exjicnses. By sect. 18, the powers and provisions of the previous acts as to the recovery and payment of stipends and sala- ries, and the recovery of pew rents, are to apply to chapels built under this act. Patronage of The provisions of 1 & 2 Will. 4, c. 38, s. 2 (amended unde'rTi*'"''' by 1 & 2 Vict. c. 107, s. 1, and 3 & 4 Vict. c. 60, s. 13), mentioned ^^ ^^ ^^^^ patronao^e of cliurchcs or chapels built under acts. it, "were these : — The bishop may, by writing under his hand and seal, declare that the patronage of such church or chapel, when all the conditions have been complied "with (h), shall be in the persons building, or purchasing and endowing, their heirs and assigns, or in such trustees, Ijcing members of the church, as they shall appoint, and in such future trustees as may be appointed, or in some ecclesiastical person or body corporate ; provided that the number of trustees, except in some particular specified cases, shall not exceed five. By 14 & 15 Vict. c. 97, s. 14, however, this power is taken aw'ay from the bishop, and it ■^^'ould now^ appear to be vested, if at all, in the commissioners. By sect. 5 of 1 & 2 Will. 4, c. 38, in all cases not thereinbefore pro\'ided for, where any persons declare their intention of endowing any chapel already built or in- tended to be built by them with some permanent endow- ment to the satisfaction of the commissioners, they may, by instrument under their seal (sect. 19), declare the patron- age to be in such persons, their heirs and assigns, or such jjersons, ecclesiastical person or body corporate as they shall appoint ; or if the chapel is built by subscription, then in such persons, &c. as the major part in value of such subscribers (being subscribers of 50/. at least (z)) shall at any time appoint (/«): provided that, except in certain particular cases, the number of patrons does not exceed five. But before the commissioners can so declare, an application in writing must be made to them setting forth certain particulars, copies of which are to be sent to the patron and incumbent of the parish. By sect. 9, the patronage shall, upon consecration, immediately vest in the patron already mentioned by the name and style specified in the sentence of consecration. By sect. 15, provision is (A) Vide svjyra, p. 2148 ; Wil- (ij 3 & 4 Vict. c. 60, s. 11. Hams V. Brown, 1 Curt. 54. (k) Ibid. s. 9. THE BUILDIXG OF CHURCHES. 2151 made for cases where the crown is the patron of the ori- ginal parish. By 14 & 15 Vict. c. 97, s. 7, all restrictions as to popu- Extension by lation contained in 1 & 2 Will. 4, c. 38, are removed, and ^^^^ ^^ ^ i^*^- the commissioners (not the bishop) may in all cases where a church or chapel is built and endowed to their satisfac- tion and a competent repair fund is provided, declare the patronage to be in the persons so building and endowing or their nominees. Provision is made for the ajDpointment of trustees by sects. 10, 11. Previous, however, to any such declaration being made by the commissioners, an application in Avriting must be made to them setting out certain particulars, and cojDies of such application must be sent to the patron and incumbent of the parish and of any other parish aifected (/). This act makes the following provision for the establish- ment of an endowment or repair fund. Sect. 8. " The exemption from the provisions of the Commissioners INIortmain Acts, aiad the restrictions applicable to such ex- "^^7 accept, for emption contained in the said act of the third and fourth an^ndowment years of her Majesty, shall be applicable to any endowment and a repair or grant or conveyance for the purpose of a repair fund of fund, lands, S:c. any such church or building; and, subject as aforesaid, ^" mone}. the said commissioners may accept, by way of endowment and for the purpose of a repair fund for such church or building, such permanent provision as they may consider satisfactory, consisting of all or any of the following descriptions of property, namely, land, tithes, rent-charges and other tenements or hereditaments, money charged on land or invested in the funds ; and such endowment and repair fund shall be exclusive of and in addition to the pew rents (if any) of such church or building ; and as regards any endowments to be made for the purpose of obtaining the patronage as aforesaid, the same may be vested in such trustees, not exceeding five, as the said commissioners direct ; and such trusts thereof, and for the sale or conversion thereof, and reinvestment of the produce either in land or in government securities, with powers of granting building or other leases, and all other powers for the due administration of such endowments and repair fund, and appointment of new trustees, may be declared as the said commissioners think fit" (m). The act 6 & 7 Vict. c. 37, is directed rather to the c &_7 Vict. formation of new parishes, and to the endowment of the '^•^'• (l) See also sects. 12—15. (m) Vide supra, Part IX., Chap. IV., pp. 2135, 213G. ]«» & 20 Vict. c. 101 '2\'>2 CIH"i:( II KXTKNSIOX, ministers tliorcof, tliaii lo (lie Itiiildiiiii; of cliurchcs; but l)v sect. 24 it is expressly ])i-o\ ide-d lliiit the church bnihllii^- comniissioners may make grants in aid of the erection of the churcli of any district formed under the act, and by sect. 22, ])ower is «:;ivcn to ])ri\ate ])ersoiis to give l)ene- factions " for or towards ])ro\ iding any church or cha))el for the purposes and sul)Ject to the ])rovisions of this act"(«). ratronajrc By sect. 20, the ]\atronage of any new parisli or district Vi'r '' 3"^ formed under the act may be assigned to any ecclesiastical corporation, the universities or any college therein, or any persons or their nominees, on the condition of contributing to an endowment for the minister or a church. Uidess oi- until such an assignment of ])atronage is made, the j)atron- age is to vest in the crown and the bishop alternately, the bishop first (o). Extcmlcd by By 19 & 20 Vict. c. 104, s. 16, the provisions of the foregoing act shall be extended so as to apply " to the case of the patronage of any church or chajiel to which a dis- trict shall belong," and the patronage of which is ex officio A'ested in the incumbent of the original parish, and to any new parisli made under this act, or any parish having neither incumbent nor patron, or to any benefice in the ])atronage of the crown or any corporation ; provided that the permanent endowment does not exceed 100/. a year, or the income from all sources 250/. a year. This patron- age may not, however, be assigned for any less considera- tion than the building of a chiu'ch and endowing it with 451. a year, or an endowment alone of 150/. ; and the assignments may only be made with the consent of the ])atron, where the crown or any corporation is such patron, of the Ijishop in parishes where there is neither incinnbent or ]iatron, and, where the ])atronage is in the incumbent of a benefice itself in private patronage, Avith the consent of the bishop and after one month's notice to such patron, wlio may if he pleases require compensation for the di- minished value of his advowson ( p) Until any such ])ro- vision is made the patronage may, if the commissioners think fit, be vested in the incumbent of the old jiarish during his incumbency (y). AVhere the commissioners under this last act, or G & 7 Yict. c. 37, vest the patronage in) Vide stipni, Part IX, (y) !•> & 20 Vict. c. 104, Cliap. IV., p. 2137, and JMdwin ss. 17, 18; 32 & 33 Vict. c. •»4, V. Baldwin, 22 Beav. 411», tiierc s. 10; see also 10 & 20 Vict. cited. c. 104, ss. 19, 20. (o) Sect. 21; see 7 & 8 Vict. (q) Ibid. s. 22. c. 1*4, ss. 1 — 3. THE BUILDING OF CIIUIiCIIES. 2153 in the nominees of any body or person, such nominees shall not exceed five, and shall be named in the deed, and shall sign declarations that they are members of the church ; and provision is made for the appointment of new trustees (r). Inasmuch as the sale or assignment of ecclesiastical Assignment of patronage holden by any spiritual person in virtue of his pafron^ge for dignity or spiritual office was made illegal by 3 & 4 Vict, acts not illco-al. c. 113, s. 42, it is specially j^rovided by 9 & 10 Vict. c. 88, that this provision shall not extend to make assignments or agreements to assign patronage under 1 Geo. 1, st. 2, c. 10, or 8 & 9 Vict. c. 70, or any act recited therein, illegal. By 19 & 20 Vict. c. 104, s. 21, " AYhenever the right Patronac:c not of patronage of any such before-mentioned benefice with *° "^ ^'^''^* cure of sovds shall, pursuant to the foregoing provisions of this act, have become vested in perpetuity in any body or person by reason of such body or person having augmented the endowment of such benefice in such adequate manner as is hereinbefore mentioned, and whenever such benefice shall, at the time of such transfer of patronage, be already permanently endowed with an annual sum of not less than one hundred pounds, or Avhenever the annual income of such benefice from all sources shall, when calculated upon an average of the three years immediately preceding such augmentation, amount to one hundred and fifty pounds, no subsequent sale or assignment or other disposition of such patronage by any body or persons whatsoever, for any valuable consideration Avhatever, shall be made until thirty years next after such transfer, unless the entire pro- ceeds be legally secured to the further permanent augmen- tation of such benefice, but every such sale, assignment, or other disposition of such patronage shall be illegal, and every presentation, collation, admission, institution or in- duction thereupon shall be void, and the right of patronage of such benefice shall thereupon for that turn lapse to the Penalty of bishop ; provided also, that when the patronage of any ^^^^^'^ ^^^ ^^ church or chapel to which a district shall have been as- signed is vested in the incumbent of the original parish, district, or place out of which such district has been taken, the jierson holding the incumbency of such original parisli, district or place at the time of the passing this act shall not be deprived of the patronage of such church or chapel by any assignment of the same during his incumbency Avithout his consent." (/•) ^9 & 20 Yiof. f. 104, 8.24. P. VOL. II. G Y 21j4 CIIUKCII EXTENSION. Contract for the assignment of patronage under the Church BniM- ing and New Parishes Acts not to be sinio- niaeal. Certain assign- ments of pa- tronage under Church Build- ing and New Parishes Acts to be valid, and none of the penalties against simony to attach. Declarations not to be questioned. Substitution of new f(jr old church. By 32 & 33 \kL c. 94, s. 12, "No contract, agree- ment, or arra?ip;cment under any of the provisions of the Church Buildinor Acts or New I'arishes Acts relative to the exercise by, or the vesting in, or the assignment to any body or person of tlie right of patronage of or presenta- tion to any church or chapel, in consideration of such body or person erecting or enlarging or contributing towards or procuring or agreeing to ])r()cure the erecting or the en- larffinof of such church, or i)ernianentlv endowinjj or con- tributing towards, or procuring or agreeing to procure the permanent endowment of such church, or of its incumbent or minister, shall be deemed corru]it or simoniacal." Sect. 13. " Kvery instrument whereby any declaration or assignment, or other disposition of any right of patron- age or of presentation to any church or chajiel has already been made, or shall hei'eafter be made under any of the provisions of the said acts, or in pursuance of any such con- tract or agreement as aforesaid, shall be deemed to have been and shall be good ; and every presentation, institution, or induction which has already taken place, or shall hereafter take place in pursuance thereof, or of any such contract, agreement, or arrangement as aforesaid, shall be deemed to have been and shall be good, and no jienalty or disa- bility under either the canon law or the conmion or statute law, shall be deemed to have been or shall be thereby incurred." By 1 & 2 Vict. c. 107, s. 11, instruments declaring patronage under that act, or under 1 & 2 Will. 4, c. 3S, are not to be questioned after they have been registered in the registry of the diocese for three years. With respect to the churches built under any of the acts which have been mentioned, provision is made by 3 Geo. 4, c. 72, s. 30, for the substitution of the new chui*ch thus built as the parish church in the place of the old parish church, in certain cases and under certain con- ditions. By 1 & 2 Vict. c. 107, ss. 16, 17, the commis- sioners, with the con.sent of the bishop, the patron of the parish chxu'ch, and the vestry, may direct that any church or chapel in the parish shall become the parish church, and the old parish church a chapel of ease, so that the new church shall have all the rights and privileges of the old one, and be the church of the incumbent of the parish, and in the gift of the patrons of the old parish church. By 2 & 3 Vict. c. 49, s. 9, however, these powers shall not extend to enable the commissioners to make any chapel, built under 1 & 2 Will. 4, c. 38, or any church or chapel, the patronage of wliich is in other hands than that of the THE BUILDING OF ClIUKCIIES. 2155 old parish cliurch, into the parish church without the consent of the patron and incumbent of such church or chapel. Bj 8 & 9 Vict. c. 70, it is enacted, as follows : — Sect. 1. " Notwithstanding any limitation or restriction Explanation or other thing contained in 3 Geo. 4, c. 72, where a new oJ'Jifg'provi-'^ church has beeii already built or shall hereafter be built sions of 3 Geo. in any parish or district parish, or ancient or parochial 4, c. 72, s. '60. chapeliy, and Avhere the bishop of the diocese and the patron and incumbent of such parish, district parish, or ancient or parochial chapelry shall at any time certify to her majesty's commissioners for building new churches that it Avill be for the convenience of such parish, district parish, or ancient or parochial chapelry that such new church, being duly consecrated, should be substituted for the old or existing church situate therein, it shall be lawful for the said commissioners, by an instrument under their common seal, Avith the consent of such bishop, patron, and incumbent, under their hands and seals, to declare that such new church, being duly consecrated, shall be substi- tuted for such old or existing church, and to transfer the endowments, emoluments, or riglits belonging to such old or existing church, or to the incumbent or minister thereof, to such new church, and to the incumbent or minister thereof, and his successors; and it shall be lawful in every such case for the trustees (if any) of such old or existing church, or of any rights, emoluments, or endowments belonging thei'eto, or to the incumbent or minister thereof, and they are hereby required, and indemnified for so doing, to transfer the same according to the direction of the said commissioners ; and immediately from and after such transfer all glebe lands, tithes, and other endowments, emoluments, fees, and profits, and every matter or thing, whether real or personal, and all rights and privileges Avherewith any such old or existing church is or Avas, at the time of such substitution, endowed, or to which the incumbent or minister thereof was or is entitled, shall be vested in and belong to the incumbent or minister for the time being of such new church, and his successors, in as ample a manner as the incumbent or minister of the old or existing church might have enjoved the same if such transfer had not taken place, and the incumbent or minister of such old or existing cluu-ch shall thereupon be, to all intents and purposes, the rector, vicar, perpetual curate, or minister, as the case may be, of such new church, instead of rector, vicar, perpetual curate, or minister of such old or existing church, without anv jiresentation, 6 Y 2 2156 ciirKcn kxtension. institution, induction, collation, or oilier form of law bein^ had, observed, or recjulred ; and .such new church shall thereupon have the same rits, &c. rights, emoluments, titlies, and other endowments (it any) s„eb parochial as hereinbefore particularly specified, belonging to the chnreh may, incumbent of such church, to any ncAV church Avhich has "'"" ^•^'"^'^''^ »/ consents be been or hereafter may be built, and Avhich is situate in the ^adc by the pai'ish Avherc such part of such cathedral is, or is deemed clmrdi build- to be, the parish church ; and in case of such transfer the "•'" '^^""""^" ' 1 ' sioners to a 21o8 ( iirncii i.xiExsio.v. new churcli; mill the it!\- r H-liiiil church sliall tliciuc- forth he under the same con- trol and suh- ject to the t^aine laws as to repairs as exist with re- fpect to the cathedral church. Preservation of site. Chnrchvards. Purchase of. puine ))r()visi()iis liereinl)eforc containtMl, touchlnj; the rio;lits and prlvilofros, succession and a|)))()intincnt of the incuiiil)<,'iit or minister of such new cliurcli, and the per- formance of the offices tlierein, and tlic examination into the cUiims of parties claiming^ to hokl pews or seats by fiiculty or prescription in tlie old parisli church, and the assigmiicnt of ]icws or seats to tliose who have sul)stan- tiated such claims as liereinhefore mentioned, shall ap))ly to such new church, which after such transfer shall hecome the parish church in liou of the former parish church so hcloiifjino^ to such cathedral ; and such new church, and the incumbent or minister thereof, shall, from and imme- diately after such transfer, be and remain subject in all respects to tlie same ordinary and other ecclesiastical jurisdiction and superintendence as the old parochial church and the incumbent or minister thereof respectively were or otherwise Avould have been subject to ; and the I)art of the cathedral church so vacated shall thenceforth remain and be deemed to be part of the cathedral church itself, in the same manner and as fully as if it had never been used as a parochial church, and shall thenceforth be subject to the same control and superintendence, and to the same laws as to repairs, as exist and are in force with respect to the cathedral church itself; and the ]iarish shall thenceforth be exempt from all further liability (if any) to keep the same in repair: Provided always, that the party or parties liable to the repair of the said part of the said cathedral church, Avhilst it Avas so used as a paro- chial church, shall continue to be liable to the repairs of such ncAv church." liy 32 & 33 Vict. c. 94, s. 8, the bishop in grantinfr a faculty for pulling down a church under sect. 1 of this last act may make provision for the use or preservation of the site of the church. Attached to the churches and chapels for buildino; which so much provision has been made by the legislature are churchyards and cha})elyards. Provision for purchasing land for these latter pin-poses was made by 58 Geo. 3, c. 45, s. 33, 59 Geo. 3, c. 134, s. 22, and 3 Geo. 4, c. 72, ss. 1—4, already cited ; also by sects. 37, 38 of 59 Geo. 3, c. 134, and sect. 26 of 3 Geo. 4, c. 72. Under the act of 59 Geo. 3, c. 134, the commissioners might grant money for ]Mu-chasing cemeteries outside the bounds of the parisli; and by 8 & 9 Vict. c. 70, s. 14, the commissioners Averc empowered to declare that any such cemeteries, whether purchased under grants from them or not, if conveyed to them, were part of the parish for the use of which they THE BUILDING OF CHURCHES. 2159 ■were bought. This act was extended by 9 & 10 Vict. c. 68, s. 1, to all parishes and districts ; and it was further provided that, where a cemetery was bought for more than one parish, the commissioners might order any chapel built thereon to be used for each of the parishes to which the cemeteiy belonged (s). The freehold of a chapel so built is by 14 & 15 Vict. c. 97, s. 28, to be in the bishop. The pro-sdsions in 20 & 21 Vict. c. 81, s. 7, enabling cemeteries made under the Church Building Acts to be transfen-ed to burial boards in certain cases, have been already mentioned (t). It appears that burial grounds purchased and conse- Eelation tn ci'ated under the Church Building Acts are not " ceme- ^^"'^^^ ^^'^• teries established under the authority of any act of parlia- ment" Avithin the meaning of sect. 5 of 16 & 17 Vict. c. 134, which exempts such cemeteries from the usual provisions for closing burial grounds in towns by order in council (i/). It may be here mentioned that by 58 Geo. 3, c. 45, Vaults, s. 80, no grave is alloAved under or within twenty feet of any church built under that act ; but this provision does not extend to vaults. By 5 Geo. 4, c. 103, s. 15, the trustees or church- Avardens may sell the A^aults under chapels built in virtue of the proAdsions of this act. As to the officers of ncAv churches, 58 Geo. 3, c. 45, Parish clerks, s. 64, provides that the commissioners may, out of the sextons. pcAV rents, assign a salary to the clerk; 59 Geo. 3, c. 134, s. 10, that where parishes are divided under this or the preceding act the clerk or sexton of each division may have and recover the fees in his diA-ision AA'hich would before have belonged to and been recoA^erable by the clerk or sexton of the parish, and that the commissioners may make compeiisation to the clerk or sextons of the parish. But a district chapelry, created under sect. 16 of this act, is not Avithin the proA'isions of sect. 10; and the clerk or sexton of the parish is entitled to all fees arising within the district chapelry (x). By the same act, sect. 29, the clerk in CA^ery church built or acquired under 58 Geo. 3, c. 45, or this act, shall be annually appointed by the minister of the church. In the case of Jackson \. Courtenay {y) a consecrated (.s) Sec also sects. 2—4. 2 Jur., N. S. 182; 5 El. & Bla. (0 Vide supra, Fart III., 702. Cliap. X., Sect. 2, p. 851. (r) Roberts v. Aulton, 2 II. & (M) Ibid. p. 849 ; Beg. v. 2Iau(Ie N. 432. t"'^'^,!her parishes which may have been for thirty years next before g^ail i)c dis- the passing of this act united, or reputed to have been united on new united for ecclesiastical punioses, and where a new church f^",'"'^H '^^^^ 1 1 1 11 1 p 1 1 -1 1 11 • J i l)uilt tuerein. has been or shall hereaiter be built wholly or m part out of any funds at the disposal of the commissioners in the said parish in which there is not any such church as afore- said, the whole of such parish may after the consecration of such new church be disunited for ecclesiastical purposes from the other jiarish, and may be formed into a separate and distinct parish, for such i)urposes, with the same con- sents, in the same manner, and under and subject to the same provisions and consequences as are mentioned and contained in the hereinbefore recited acts or any of r. VOL. II. 6 z 2170 CIILi:CII EXTEXSIOX. District parishes. Church of a district parish may be re- signed by the incumbent of original ])arish; such resi;,'na- tion to operate in the same manner as avoidance of church of the original parish. Burial. tlicin or 111 tliis .act, relative to the formation of a distinct and separate ])arisli, Avlien the same is ibnncd out of one j)arish not imited with another jiarish." (2.) As to " district parishes." By 58 Geo. 3, c. 4.5, s. 21, the commissioners may, where they think it more expedient to divide a parish into ecclesiastical districts, with consent of the hishop, rejiresent the matter to the (^ueen in council, and the (^neen in council may order such division. The provisions in 58 Geo. 3, c. 45, ss. 22, 23, and 3 Sc 4 Vict. c. 60, s. G, as to boundaries of distinct jiarishcs, apply equally to these districts. l)y 58 Geo. 3, c. 45, s. 24, on the boundaries being marked f)ut such districts become " district ]iarishes," and the churches thereof " district parish churches," " for all purposes of ecclesiastical worship and performance of ecclesiastical duties." By sect. 25, these churches are per])etual curacies. By 59 Geo. 3, c. 134, s. 19, no chapel situate in a district parish which shall not be made the church of such district parish shall be a perpetual curacy. By 58 Geo. 3, c. 45, s. 30, the division of a parish into district parishes shall not affect any glebe, tithes or other endowments, which shall continue to belong to the incum- bent of the old parish, and for all these ])urposes the old ])ari.^h shall remain as if undivided. The provisions of 58 Geo. 3, c. 45, s. 26, and 59 Geo. 3, c. 134, s. 12, as to the se])aration of the l)cnefices, apply as well to district parish as to distinct parish churches. By 8 & 9 Vict. c. 70, s. 15, " When any district parish has been or shall hereafter be formed, under the provisions of 58 Geo. 3, c. 45, it shall be lawful for the incumbent of the ])arish out of Avhich such district parish shall have been lormed to resign voluntarily, with the consent of the l)ishop of the diocese, the church of such district parish, and such resignation shall have the same effect as the avoidance or resignation of the parish church, with respect to tlie perfoi-mance of the offices of the church in the church of such district parish; and thereupon such district ])arish, and the church thereof, shall be a perpetual curacy and benefice, and shall l)e subject to the same laws as are in force with resj)ect to district ])arishes where an avoidance or resignation of the cliurch of the original parish shall have taken place." ]5y 7 & 8 Geo. 4, c. 72, s. 2, till a burial ground is ])rovided for the district parish, per.sons dying within it mav be interred in the l)urial ground of the old parish. i THE DIVISIOX OF PARISHES. 2171 By 1 & 2 Vict. c. 107, s. 10, wlienever an endowed Queen Anne's cliurcli or chapel has been augmented under Queen Anne's ^^""^3'- Bounty and the patronage thereof acquired in accordance with tlie acts relating thereto, the commissioners may, with consent of bishop, patron and incumbent, make it a district parish. (3.) As to "district chapeh'ics." These were originally District created under 59 Geo. 3, c. 134, s. 10; but the provisions diapelries. contained in this section have been much altered by 2 & 3 Vict. c. 49, ss. 1—4, 3 & 4 Vict. c. 60, s. 1, and 8 & 9 Vict. c. 70, s. 17. The joint effect of these acts is that the commissioners may, in like manner and with the same consents as in the case of" district parishes," assign a dis- trict to any chapel built or to be built ; and such district is to be under the care of the curate appointed to serve such chapel, who is to be nominated by the incumbent, except in cases where the patronage is otherwise vested (d). Such chapels may be augmented by the governors of Queen Anne's Bounty; district chapelries may be formed out of former district chapelries, or out of such district chapelries and other parts of the original parish or any extra-parochial place. The curate is now to be a perpetual curate, with perpetual succession and capacity to hold lands and tithes, with exclusive cure of souls, and not subject to the incumbent of the old parish ; but the com- missioners may, with consent of the bishop, determine Avhat proportion of the fees for marriages, baptisms, churchings and burials shall be assigned to the curate ; and it seems that the incumbent of the old parish receives the Easter offerings. By 11 & 12 Vict. c. 37, s. 3, the commissioners, with Boundaries. consent of the bishop, the patron and incumbent of the chapelry, and the patron and incumbent of anv parish to be affected, may recommend the Queen in council to alter, and the Queen in council may alter, the bounds of such chapelry by adding to it jioi'tions of any adjacent parishes. District chapelries are not " districts or divisions" of Fees, parishes within the 10th section of 59 Geo. 3, c. 134, which gives the fees in such districts or divisions to the clerk and sexton thereof; and, on the contrary, the clerk of the old parish is entitled to the fees in a district cha- pelry (e). In the case of Tuckness v. Alexander {/) it was liolden Parochial chapels. (d) By 14 & 15 Vict. c. 97, (c) Roberts \. AuUon, 2 II. & s. 26, in extra-parochial places N. 432. the patronage is in the bishop. (/) 9 Jur., N. S. 1026 ; 2 Dr. , s. 11, and 8 & 9 Vict. c. 70, s. 18, to all stipendiary curates of district chapclrics, district parish churches, and new churches built or assisted out of funds belonging to the commis- sioners. (C.) As to the acts for making new parishes through the agency of the ecclesiastical commissioners. By 6 & 7 Vict. c. 37, s. 9, amended by 19 & 20 Vict. c. 104, s. 1, these commissioners may frame a scheme, and the (^ueen in council upon such scheme may, Avith consent of the bisho]), set apart any part or parts of any parishes, chapel- ries, districts or extra -parochial places, properly marked out, and constitute them a sei)arate district. Before, however, the scheme is laid before the Queen in council a draft of it must be sent to the incumbents and patrons affected, in order that they may have an oppor- THE DIVISION OF PARISHES. 2175 tunity of makins^ objections to it. Provision is made by 7 &*8 Vict. c. 94, ss. 4, 5, 6, and 32 & 33 Vict. c. 94, s. 11, for the service of the scheme on the incumbents and patrons in peculiar cases. Such district need not contain "within it any church or chapel at the time ; or if it does contain one, it may, by 19 & 20 Vict. c. 104, s. 2, be con- stituted in the scheme the church of such district. The commissioners must provide an endowment for the minister, or, by 19 & 20 Vict. c. 104, s. 3, there must be reason to exjject one from other sources, to the amount of 150/. a year. By 6 & 7 Vict. c. 37, s. 10, and 7 & 8 Vict. c. 94, s. 8, there must be a map of the district annexed to the scheme and registered. By 6 & 7 Vict. c. 37, ss. 11, 12, upon such district Ministers. being constituted, a minister is to be licensed (m) for the district, who shall have power to perform " all such pastoral " duties appertaining to the office of a minister, according to " the rites and usages of the Church of England, as shall be " specified and set forth in his licence," and where a build- ing has been licensed for divine worship, " such ser\'ices " and offices as shall be specified and set forth in the same " or any further licence ;" and he shall so flir have the cure of souls (ji). The minister is to be styled " The minister of the district of ," and shall have a perpetual suc- cession (o). By sects. 13, 14, the bishop may license a temporary place of Avorship ( p) : but otherwise the old parish shall not be affected, until a church is consecrated for the district. Upon consecration of a church, howevei*, by sects. 15, 16, the district becomes a new parish, and all the offices of the church may be celebrated in the church thereof, and the minister becomes a perpetual curate, with a right to all fees, dues and Easter offerings Avithin his district. By sect. 1 9, the ecclesiastical commissioners may, out Compensation. of their funds, not only provide the endowments for these ministers, but also make compensation to the incumbents of the old parishes for the loss of fees and dues sustained by them. * By the joint effect of 7 & 8 Vict. c. 94, s. 9, 13 & 14 Boundaries. Vict. c. 94, s. 27, and 32 & 33 Vict. c. 94, s. 1, the boundaries of these new parishes may be altered from time to time. (ni) The patronage of such (o) See 8 & 9 Yict. c. 70, s. 18. ministcr.s lias been treated of in (p) By 33 & 34 Yict. c. 'JT, the previous chapter ; r/f/e .s2/p?'(7, scliechile, tit. Licence, a stamp p. 2152. duty of ten shillings is imposed (») See 7 & 8 Vict. c. 94, s. 10. on such licence. 2170 rninriT kxtf-nsiox. Subdivision. New en res to form part of one diocese only. Districts may become separate and distinct parishes. Incumbents of new parishes to have exclusive By 14 & 1.3 ^ ict. c. [)?, s. 10, a new ])arlsh created under the foregoing provisions may be treated as an original jxirisli for tlie ])ur|K)scof any of tlie C'hureli Building Acts or of the act itself. By sect. 21 of the same act, Avhere parishes cannot be brought under the ])rovisions of any of the acts for dividing jiarishes by reason of local acts afiect- ing the j)arish, the coinniissioners may override the local act, xipon an aj)plication l)y the patron, incumbent and vestry. By 35 & 30 Vict. c. 14, s. 3, " It shall be lawful for the ecclesiastical commissioners for England in recommending to her Majesty in council the formation of any new cure to be taken partly out of one diocese and partly out of another or others, to recommend also that such new ctu-e shall form part of some one (to be specified by the said commissioners) of such dioceses ; and such new cure shall, upon its forma- tion, become and be a part of the diocese so specified, and of no other diocese." (E.) An attempt has been made to bring the various divisions of parishes into one system by the following sec- tions of 19 & 20 Vict. c. 104. Sect. 14. " Wheresoever or as soon as banns of matri- mony and the solemnization of marriages, churchings, and baptisms according to the laws and canons in force in this realm are authorized to be published and performed in any consecrated church or chapel to which a district shall belong (y), such district not being at the time of the passing of tliis act a separate and distinct parish for eccle- siastical purposes, and the incumbent of which is by such authority entitled for his own benefit to the entire fees arising from the performance of such offices without any reservation thereout, such district or place shall become and be a separate and distinct parish for ecclesiastical purposes, such as is contemplated in the fifteenth section of the first-recited act, and the chm-ch or chapel of such district shall be the church of such parish, and all and singular the provisions of the said firstly and secondly recited acts (as amended by this act) relative to new parishes, upon their becoming such, and to the matters and things consequent thereon, shall extend and apply to the said ])arish and church as fully and effectually as if the same had become a new parish luider the provisions of the said last-mentioned acts." Sect. 15. " The incumbent of every new parish created or hereafter to be created pursuant to the provisions of (q) Vide infra, pp. 2184, 2185. THE DIVISION OF PARISHES. 2177 6 & 7 Vict. c. 37, and 7 & 8 Vict. c. 94, or of this act, cure of souls shall, saving the rights of the bishop of the diocese, have t^'crem. sole and exclusive cure of souls and the exclusive right of performing all ecclesiastical offices within the limits of the same, for the resident inhabitants therein, who shall for all ecclesiastical purposes be parishioners thereof, and of no other parish, and such new parish shall, for the like pur- poses, have and possess all and the same rights and privi- leges, and be affected with such and the same liabilities, as are incident or belong to a distinct and separate parish, and to no other liabilities : Provided always, that nothing herein contained shall be taken to affect the legal liabilities of any parish regulated by a local act of parliament, or the security for any loan of money legally borrowed under any act of parliament or otherwise." By 31 & 32 Vict. c. 117, s. 2, the incumbent of any such parish is a vicar. •The words "who shall for all ecclesiastical purposes be Election of " parishioners thereof and of no other parish," do not take fburch- away from the parishioners of the new parish the right of voting for the election of churchwardens in the old parish (?'). In the case of JReg. v. Perry (s), a new church Avas built and endowed and had a district assigned to it and a fund provided for its repairs under 1 & 2 Will. 4, c. 38, and the bishop under 6 & 7 Will. 4, c. 85 (t), gave his licence for banns and marriages and for the fees beiner taken by the incumbent. It was liolden that the district did not become a separate and distinct parish under 19 & 20 Vict. c. 104, s. 14, because the "authority" contemplated by that statute is not a licence by the bishop, which (by 6 & 7 Will. 4, c. 32) is revocable ; but an authority under an order of the commissioners under 19 & 20 Vict. c. 104, s. 11, and that therefore the election of a churchwarden was in the renters of pews and not in the parishioners. By 19 & 20 Vict. c. 104, s. 25, "it shall be lawful for Parishes may the commissioners, by the authority aforesaid (that is, by ^^ diviikd an order in council), and subject to such consents as are hereinafter mentioned, to divide any parish into two or more distinct and separate parishes for all ecclesiastical purposes whatsoever, and to fix and settle the respective proportion of tithes, glebe lands, and other endowments which shall arise, accrue, remain, and be Avithin each of (r) Frg. v. Stejihen.'f, 3 B. &. S. r.";) 7 Jur., N. S. 655 ; 3 E. & E. 383; 32 L. J., Q. B. 90, 640. (t) Vide supra, p. 763. with certain consents. 2178 CIirHCII EXTENSION. such respective tllvi^ioiis,acc'onlinp; as by the like authority shall be deemed advisable; and the order made by her Majesty in council, ratiiyiuf; the sclieme for such division, shall be good and valid in law for the jiiu'pose of effectinjj^ the same ; and such sclicme shall set forth the particular expediency of such division, and how far it may be neces- sary in consequence tlicreof to make any alteration in eccle- siastical jinisdiction, and how the chanf>;es consccjuent upon such division in respect of pat rona}j;o, rights of ])ew holders, and other rights and privileges, glebe lands, tithes, rent- charges, and other ecclesiastical dues, oblations, offerings, rates, and payments, may be made with justice to all ])arties interested ; and such scheme shall also contain such direc- tions and regulations relative to the duties and character of the incumbents of the respective divisions of such parish, and to the performance of the oflices and services of the church in the respective churches thereof, and to the fees to be taken for the same respectively, and to any other matter or thing which may be necessary or expedient by reason or in consequence of such change : Provided always, that such division shall be made in the following cases with the following consents only ; that is to say, in the case of a benefice in the patronage of the crown, or in the chan- cellor of the duchy of Lancaster for the time being, or of the Duke of Cornwall, or of any archbishop or bishop, or of any lay or ecclesiastical corporation aggregate, or of a benefice in private patronage, with the consent of the patrons thereof res])ectively, with the consent of the bishop of the diocese, such consents to be testified as aforesaid: and provided also, that no such provision shall take effect until after the first avoidance then next ensuing of the church of the parish to be so divided, unless with the consent in writing of the actual incumbent thereof" Inncwpnrishcs Sect. 26. " In cases where any parish shall have been T^ 'r"r '■! d 'ii^'i'^cd into two or more distinct and separate })arishes, or a div'ision^aiKi ' where any district or new parish shall have been constituted resettlement of or formed out of any parish, district, or place, it shall be cn.lowments lawful, by the autliority aforesaid, and with the consent of each of the respective patrons and mcumbents of such dis- tinct and separate parishes, or of such ])arish, district, or place, as the case may be, to make a separation and divi- sion of the glebe lands, tithes, rentcharges, and other en- dowments belonging to such distinct and separate parishes, or to such parish, district, or place, and to annex and re-settle the same to and for the benefit of such distinct and separate parishes, or of such ]iarish, district, or place, and the district or new parish constituted or taken thereout. inav be made. THE DIVISION OF PARISHES. 2179 as the case may be, in such manner and proportions a? hy the authority aforesaid may be deemed expedient, and to make such regulations and arrangements as may be requi- site for effectually completing such division and settlement as aforesaid ; and upon every such re-settlement of endow- ments, whenever the whole of the ecclesiastical dues arising within the limits of any parish, district, or place, consisting of any prandial or rectorial tithe shall become and be made payable to the incumbent of such parish, district, or place, such parish, district, or place, shall thereupon become and be a rectory, and such incumbent the rector thereof, anything hereinbefore contained to the contrary notwith- standing." By 32 & 33 Vict. c. 94, s. 11, " In the case of any parish As to parish or place wherein there is no parish church nor any person ^^^^'"^ ''^f'*^ '^ known to be or claiming to be patron of the ancient church no patron. or advowson, if any, of such parish or place, then for all ])ur- poses of forming an ecclesiastical district or ecclesiastical districts, either wholly or partly out of such parish or place under the powers of the Church Building Acts or New Parishes Acts, or any other act or acts of parliament now or hereafter in force, such parish or place shall be deemed to be and shall be treated for such piu'poses as an extra-parochial place, and in any case in which notice shall be required to be sent or given to a patron under the provisions of such acts or any of them it shall be sufficient with respect to such parish or place so to be treated as an extra- parochial place as aforesaid to send or give such notice to the bishop of the diocese alone, and such notice, when so sent or given, shall be held to be a full compliance with the requirements of the said acts or act in respect of such notice : Provided always, that nothing herein contained shall affect the rights of the crown, if any, with regard to any such parish or place." The division of parishes affects several of the ecclcsi-. Ijffp'.t "f astical duties and privileges of the parishioners, more <^ivision. especially as to (1) church rates ; (2) the appointment and ])Owers of churchwardens ; (3) the offices of the church ; (4) the apportionment of the ecclesiastical and charitable endowments arising therein. (1.) The power of recovering church rates having been On church now abolished, it is enough here to say that under 58 Geo. 3, ''''^*^®- c. 45, ss. 31, 70, 71, district and distinct parishes were to bear their own church rates, but were also for twenty years to contribute to the repair of the original parish church; and that by 3 Geo. 4, c. 72, ss. 20, 21, chapels, not being churches of distinct or district parishes, were. wardens. 2180 cmi:riT extension. unless specially cxcej)te(l, to be re])alred by the parish at lartje. The following cases have been decided upon the con- struction of these sections : — Varty and Mopsei/ v. Nunni^u), Reg. v. Official Principal of Consistory Court of London {.r), Goityk and Carfirriqht v. Jones (y). Chnicli- ^2.) As to the a])])ointnuMit aiul power of churchwardens. By 58 Geo. 3, c. 45, s. 73, two fit and proi)er persons are to be appointed churchwardens for every church or chapel built under that act, one to be chosen by the incumbent, and the other by the inhabitant householders residing in the district who would usually be entitled to vote in the election of churchwardens. Several powers are given to the churchwardens, which also (by sect. 74) are given to the churchwardens of the old parish in cases under this act where there has been no division of the parish, for the recovery of pew rents and the payment of stipends. For these stipends they are liable to be sued at law when they have money in their hands from pew rents applicable to the payment. But succeeding churchwardens cannot be sued for money which came to the hands of their prede- cessors, and was not paid over to them (z). It has been holden in the case of Bey. v. Barroic (a), that the vestry meeting for choosing a churchwarden under this act need not be convened ^vith the formalities required by 58 Geo. 3, c. 69, s. 1, as the duties and powers of such a churchwarden are merely ecclesiastical. By 1 & 2 Will. 4, c. 38, s. 25, two churchwardens are to be chosen for parishes separated by the annexing of districts to chapel§ of ease under sect. 23. One of these churchwardens is to be chosen by the incumbent, the other by "the persons exercising the powers of vestry." By sect. 16, two churchwardens are to be chosen for " evei-y church or chapel built or ap])ropriated under tlie provisions of this act," one by the incumbent, and the other by the renters of pews (i). By 6 & 7 Vict. c. 37, s. 17, two churchwardens are to be chosen for every " new parish " under that act, one by the ])erpetual curate, and the other by the inhabitants usually entitled to vote in the election of churchwardens. (u) 5Jur. 1138. (z) Lloyd v. Burrup, L. R., {x) 2 B. & S. 3.39; 31 L. J., 4 Ex. 03; r/rfe supra, p. 2161. Q. li. lOG; 12 C. B., X. S. 220, («) L. R., 4 Q. B. 577. 31 L. J., C. P. 237. {h) See Reg. v. Perry, 3 El. & iy) 2 Moo. P. C, N. S. 1 ; El. 640 ; 30 L. J., Q. B. 141 ; 9 Jur., N. S. 82; 11 Jur., X. S. supra, p. 2177. 251. THE DIVISIOX OF PARISHES. 2181 By 8 & 9 Vict. c. 70, s. 6, in all cases not otherwise expressly provided for, two churchwardens are to be chosen for every district chapelry or consolidated chapelry, one by the minister, and the other by the householders. By the same act, sect. 7, in all cases not otherwise ex- pressly provided for, two churchwardens are to be chosen for every new church without a district built or to be built upon a site of which the church building commissioners have accepted a conveyance under any of the previous acts, one to be chosen by the minister, and the other by the renters of pew^s, or, where there are no renters of pews, both to be chosen by the minister. The churchwardens appointed under this and the pre- ceding act are not to be overseers of the poor in \drtue of their office (c). It has been decided in the case oi Reg. v. Stephens {d^, inhabitants of that though a district of an old parish appro]^riated to a district have a. new church under 58 Geo. 3, c. 45, 6 & 7 Vict. c. 37, fof^'j/^l'Jjf*' and 19 & 20 Vict. c. 104, becomes a separate parish for all wardens of ecclesiastical j^urposes, yet, as it remains part of the old old parish, parish as to poor and other parochial rates, the inhabitants of the district have a right to vote in vestry in the election of churchwardens for the old parish. The contrary seems to have been previously holden in the case of Vartij and Mopsey v. Nunn {e). It is provided by 1 & 2 Will. 4, c. 38, 6 & 7 Vict. Must be c. 37, and 19 & 20 Vict. c. 104, that clmrchwardens ap- niembers of pointed for parishes constituted under these acts must be ^^ ^ "'*^^" members of the Church of England. (3.) As to offices of the church. By 58 Geo. 3, c. 45, Oflices of the ss. 27, 28, 29 (y), marriages, christenings, churchings and •'^"'"'^^b. burials are to be performed in the churches of distinct and When to be district parishes, upon the first avoidance of the old parish pert'onned in by the incumbent thereof, as if they had been old parish earlier acts" churches, but not beibre. At the same time provision is made in sect. 32 for com- pensating the incumbent of the old parish church for any loss of fees, oblations and offerings which he may sustain by the division of his parish. The fees for performing the offices of the church enumerated above after the avoidance of the old parish, go to the incumbents of the distinct or district parishes (r/). (c) 6 t^ 7 Vict. c. 37, s. 17 ; {c) b Jnr. 1138. 8 & 9 Viot. c. 70, s. 8. ( /') Vide ntpra, pp. 7G7, 7G8. (rf) 32 L. J., Q. B. 90; 3 B. & (tj) See Edgell v. Bumahy, 8 S. 333. Ex. 788. 21 82 ciirncii kxtknsiox. "When to lio J]y 59 Geo. 3, c. 134, s. 6, consolidated cliapelricsare to ).cifi.niic(l 111 i^g treated as old parishes for these purposes from the time ill arches uiulcr o ^ • • / 1 v earlier acts. ot their Creation (A). By the same act, sect. 10, the commissioners, with the bishop, may determine whetlior the oflices enumerated above shall be solemnized in tlie churches of district chapelries or not ; if they determine that they or any of them shall be celebrated, they are to determine what por- tion of fees shall be paid to the curate of the chapel, and what to the incumbent of the old parish. In the case of Kinr/ v. Alston [i), under this act, and by an order in council, a district, with a district church, Avas parted off from the parish of St. Matthew, l>ethnal Green, and the order in council directed that during the incumbency of the then rector of St. INIatthew, two-thirds of the fees to be received for marriages, baptisms, church- ings and burials at the district church " should belong and be paid to the rector, and one-third to the district minister." It was holden that, where the minister had actually re- ceived the entire fees for marriages, &c., the rector might recover from him the two-thirds in an action for money had and received. But that the act and order in council did not oblige the minister to receive the fees or any part of them : and that the rector could not maintain assumpsit against him on a supposed duty to take the fees and pay the rector his two-thirds. By 7 & 8 Vict. c. 56, s. 4, and 14 & 15 Vict. c. 97, s. 17, when the commissioners do not originally order the performance of all or any of these offices, they may do so afterwards by a supplemental order in council. By 3 Geo. 4, c. 72, s. 12, in all cases of divisions of parishes the commissioners may reserve the Avhole of the fees, or any jiortion of them, to the incumbent of the old parish church, and may alter or rescind this reservation within five years from the first making thereof. By sect. 18, the provisions of the above-mentioned acts apply to cases of the division of extra-parochial ])laces. By sect. \9{k), the bishop is to certify when the office of matrimony may l)e performed in any church under the provisions already set foi*th, and his certificate is to be con- clusive evidence that marriages celebrated after the date thereof were lawfully celebrated therein. By 8 & 9 Vict. c. 70, s. 10, the fees in consolidated (h) See 8 & 9 Vict. c. 70, s. 10. !i .Iiir. lu-JG, 2 Dr. & Sm. 614 ; (i) 12 Ad. & El., N. S. 971. sujjra, p. 2171. See also Tuckniss v. Alexander, (^•) Vide supra, p. 769. THE DIVISION OF PAEISHES. 2183 chapelries are to belong to the incumbents of the old parishes respectively till after the first avoidance of each parish. By 1 & 2 Will. 4, c. 38, s. 10, the commissioners, with Under i & 2 consent of the bishop, or the bishop alone in certain cases, ^^ ''^- ' ^' ^*^' may determine whether baptisms, churchings and burials may be celebrated in churches or chapels built or appro- priated under that act. By sect. 14, all the fees and dues for these offices, except such as may, with the consent of patron and in- cumbent, be assigned to the minister of the church or chapel, shall belong to the incumbent or clerk of the " parish, chapelry or place in which such church or chapel " shall have been or shall be erected." In the case of C&?'r V. Mostijn (/), it Avas holden that the word *' cha- pelry" here meant an ancient parochial chapelry only. By 7 & 8 Vict. c. 5Q, provision was made for cele- Marriages brating marriages, which had been omitted from the list ""^ler 7 & 8 of offices, authorized by the last act, in churches or chapels ^^ • c. ^ • built under it (???\ By sects. 1, 2, the commissioners and bishop are given the same powers of authorizing marriages and of allotting the fees thereon, as they had in regard to the other offices {n). By sect. 2, the bishop's certificate that mar- riages are authorized is conclusive. By sect. 3, certain marriages already celebrated in such chapels are rendered valid. By 3 & 4 Vict. c. 60, s. 18, the necessity of the Consents not consent of the incumbent and patron of the old parish to necessary as to the assignment of any portion of the fees under 1 & 2 ^^^' Will. 4, c. 38, s. 14, to the minister of the chapel, is abrogated, and the commissioners and bishop, or the bishop alone in certain cases, may assign the Avhole or any portion of such fees to the minister. It should be mentioned that 7 & 8 Vict. c. 5Q, s. 6, Boundaries. takes away the necessity of enrolling the boundaries in chancery, and requires the registration of a map in the diocesan registry, in all cases where the offices of the church are to be performed in any church or chapel built under the previous acts; and that 14 & 15 Vict. c. 97, s. 25, validates all marriages performed by eiTor in the chiu-ch of any parish or district in which they could not legally be performed. (/) 5 Ex. G9; 19 L. J., Ex. 249. s. 18, the necessity of the con- (m) Vide supra, pp. 771 — 773. sent of patron and incumbent is (h) By 14 & 16 Vict. c. 97, taken away. 2184 ClU'nCII KXTKXSK )X. ruder G & 7 Vict. c. 37. Compensation for fees. Vaiighan v. The South Mrtropolitau Cfiuvtfrii Com])anij. In metropolis. Offices of the churcli to be performed in all churches or By 6 & 7 yict. c. 37, s. lo, all the offices of the church may be performed in new ])arishes created under that act {o). Bv the ]M-ovlsions oi"a8 Geo. 3, c. 45, s. 32, 59 Geo. 3, c. 134, s. G, G & 7 Vict. c. 37, s. 19 (extended by 19 & 20 Vict. c. 104, s. 13, to that act), 14 & 15 Vict, c. 97, ss. 2, 3, 4, compensation may be made to the incumbent of the original ])ari.sh for the loss of fees which accrues to him on account of" the division of his parish. By 14 & 15 Vict. c. 97, s. 5, where such compensation is made, all the fees and dues, in the cases of con.«iolidated chapelries, district chapelries, or particular di.stricts {i. e., districts assigned imder 1 & 2 Will. 4, c. 38), shall belong to the incnmbent of such chapelry or district, even though ori- ginally reserved to the incumbent of the original parish by order in council. By sect. 6, where no express reservation has been made, the fees and dues in the same cases belong to the incumbent of the chapelry or district, even though no compensation has been made to the incumbent of the old parish. In the case of Vaufjhan v. Tlte South Metropolitan Cemetery Company {p), a Cemetery Act provided that certain fees shoxdd be paid by the company to the incum- bent of the parish or other ecclesiastical district or division from which any Ijody shoidd be removed for interment in the cemeteiy, and also directed that a portion of such fees should be paid over to the churchwardens or chapel- wardens, to be by them applied among the persons entitled by law or custom to share in the burial fees receivable in such parishes or districts by the churchwardens or chapel- wardens. It Avas holden that the fees in respect of inter- ments from a district which had been created since the passing of the Cemetery Act, vmder an order in council, conferring powers of marrying, churching and ba))tizing, but silent as to burials, were payable to the incumbent of such distnct, and not to the incumbent of the mother parish. 15 & 16 Vict. c. 85, s. 35, contains special provisions as to the division of btu'ial fees between the incumbents of old and new pari.«ihes in the metropolis (z^). Now by 19 & 20 Vict. c. 104, it is provided as follows: — Sect. 11, " The commissioners may, if they shall think fit, upon application of the incumbent of any church or chapel to which a di.^trict shall belong, with the consent (j>) Vide supra, p. 773. (;^) 1 John. & Ilemm. 2i'6; 7 Jur., N. S. 159. {q) Vide supra, p. 847. THE DIVISION OF TARISUES. 2185 in writing of the bishop of the diocese, make an order under chapels on their common seal, authorizino; the pubKcation of banns of application of T ,1 1 • ^* xi • ^ • the incumbent. matrimony and the solemnization therein oi marriages, baptisms, churchings and burials, according to the laws and canons now in force in this realm ; and all the fees payable for the jDerformance of such offices, as well as all the mortuary and other ecclesiastical fees, dues, oblations or offerings arising within the limits of such district, shall be payable and be paid to the incumbent of such district." Sect. 12. " In every case in which all or any part of Reserved fees the fees or other ecclesiastical dues arising within the to belong to limits of any district, or payable in respect of marriages, bent'uiitil'*ti"sr baptisms, churchings and burials in the church or chapel avoidance, then thereof, or of such tees as are hereby made payable to the ^ the incum- incumbent of any district, shall have been reserved, or if pa^i^h such last-mentioned order had not been made, would of right belong to the incumbent of the original parish, dis- trict or place out of which the district of such church or chapel shall have been taken or to the clerk thereof, an account of such fees shall be kept by the incumbent of such church or chapel, avIio is hereby required to receive and every three months pay over the same to the incum- bent and clerk respectively who would have been entitled to them in case such districts had not been formed, and from and after the next avoidance of such incumbency, or the relinquishment of such fees by such incumbent, and after the situation of such clerk shall have become vacant, or after a compensation in lieu of fees has been awarded to such clerk by the bishop of the diocese, which he is hereby empowered to do, such reservation shall altogether cease and determine, and all such fees and dues shall be- long to the incuml)ent of the district within which the same shall arise or to the clerk of the church thereof." (4.) As to the apportionment of endowments between Apportion- divisions of old parishes. It has been already pointed out '"^"'^ °^ endow- that the tithes, glebe and other ecclesiastical endowments may be, in many and iioav in all cases (?•), apportioned by the commissioners among the divisions of the parishes. The ecclesiastical burdens on parishes may also be appor- tioned in many cases (.s). As to other charitable endowments, by 3 Geo. 4, c. 72, Paiwhial s. 11, the commissioners might, on a division of a parish hilarities, or place made by them under the provisions of that and (r) By 58 Geo. 3, c. 45, s. 16; Vict. c. 104, s. 26. 59 Geo. 3, c. 134, ss. 8, 9, 18; (s) See the same sections and 3 Geo. 4, c. 72, s. 22 ; 19 & 20 3 Geo. 4, c. 72, s. 11. P. VOL. II. 7 A 2186 CllUItCII EXTENSION'. the ]ircvlous acts, apportion " any charitable bcqnests or " g-iits Avhich shall have been made or frivon to any such " parish or place, or the ])ro(liice tliereof, between the " divisions of the parish or jilace." Provision was to be made for the distribution of such ap])ortioned part, and every apportionment was to be registered in the registry of the diocese. 8 & 9 Vict. Now, liowever, a new provision is made by 8 & 9 Vict. *^' c. 70, which enacts, by sect. 22, tliat where the commis- Apportionmont ^[^j^^^.^ <. s]^^\[ ]^avc already formed or shall lioreafter form of beniicsts, &c'. t • i • i t • • i t • ami also of finy distmct and separate ])arisli, distinct parish, or district diarjies to lie ch t f Ch - ^^^* ^^ ^"-^ ®^ them, or this act, out of any jjarish or cxtra- tcry. parochial ]ilace, it shall be lawful for' the Court of Chan- cery, anything in the hereinbefore recited acts to the con- trary notwithstanding, on a petition being presented to the said court by any two persons resident in any such parish or extra-parochial place (such petition to be presented, heard and determined according to the provisions of 52 Geo. 3, c. 101), to apportion between the remaining part of such parish or ])lacc and the distinct and separate ])arish, or district parish, or district chapolry, any charit- able devises, bequests or gifts which sliall have been made or given to or for the use of any such parish or extra- jjarochial place, or the produce thereof, and in any such case to direct that the distribution of the proportions of such devises, bequests or gifts, or the produce thereof, as shall be so apportioned, shall be made and distributed by tiie incumbent or spiritual person serving the church, or by the churchwardens of any such distinct and separate parish, district parish, or district chajielry, either jointly or severally, as the said Court of Chancery may think expedient ; and it shall also be lawful for the said Court of Chancery to ajiportion between the remaining j^art of such ])arish or place as aforesaid, and such separate divisions or districts, any debts or charges whicli may have been before the period of such apportionment contracted or cliargcd upon the credit of any church rates in such parish or ]ilace ; and all such apjiortionments shall be registered in the registry of the diocese in which such parish or ])lace shall be locally situate, and duj)licates thereof sliall be deposited with the cliurch wardens of such parish or place, and of each such division or district as aforesaid, and in all such cases the costs shall be at the discretion of the said court ; and such apportioned debts or charges- shall be raised and paid by the ]:)avish or place in which they may be apportioned in such and the like manner as the THE DIVISION OF PARISHES. 2187 entirety was to be raised and paid, or in such manner and Tuider such provisions and conditions as the said court shall direct, and when any securities may have been given for the same the court may order new securities to be given for the apportioned debts by such persons and bodies, and in all respects as the said court may direct, and all securities shall be valid and binding ; and the powers and authorities gi^-en to the said commissioners by 3 Geo. 4, c. 72, s. 11, with respect to the apportionment by them of such devises, bequests, gifts, and charges, shall, after the passing of this act, Avith respect to the future exercise of such powers and authorities, cease and determine." It has been decided that this provision does not apply to " new parishes " formed by the ecclesiastical commis- sioners under 6 & 7 Vict. c. 37 (t). In JRe West Ham Charities {u), it was holden that under this section the court is bound to act if called upon, although no complaint is made of the mode in which the distribution of the gifts has been made since the division of the districts ; and that the court has jurisdiction to apportion gifts made specifically to a particular di\"ision of a parish, part of which has been formed into a chapelry district. The principles on which the court wiU act in applying * this pro\^sion are best laid down in Re Church Estate Cliarity, Wandstoorth. In that case the churchwardens and overseers of the j^c Clmrch poor of a parish had from time immemorial been seised of I'^-'lished that the estate was devoted to the repair of the particular church, and must be decided, in the absence of evidence to the contrary, to have been sj)ecitically given for that jnirpose ; and, consequently, that the district church was not entitled to particii)ate. And this decision was affu'mcd on appeal (x). {x) 6 L. R., Ch. App. 29G; 18 ^Y. R. 1101. ( 2189 ) CHAPTER VII. CHURCH SOCIETIES. The societies wliicli have been formed from time to time Some volun- for the purpose of evangelizing, on the principles of the ^"■^y- church, the people at home and abroad, must be distin- Some formally .iTr-ii •, •,• n 11 1 constituted. guisned tor legal purposes into societies connrmed l)y royal charter or recognized by statute, and those which are without the recognition of the state. It is almost exclusively Avith the former category that this chapter is concerned. The Church Building Society is incorporated by a public Cliurch Build- act, 9 Geo. 4, c. 42. i"S Society. The constitution and government of the society are thus settled by it : — " I. After reciting ' that it is expedient to provide for the better collection and application of voluntary contri- butions for enlarging, building, rebuilding, and repairing churches and chapels in England and Wales,' it is enacted by the second section, that ' The Society for Pro- moting the Enlargement and Building of Churches and Chapels' (which is therein mentioned to have been in- stituted in the year 1818), is, both as to its then and future members, declared to be a body corporate by the name of ' The Incorporated Society for Promoting the Enlargement, Building, and Repairing of Churches and Cliapels' (a). " 11. The Archbishop of Cantcrl)uiy, for the time being, The com- is declared to bo the president of the society, and the "'-i'^'^'^- Archbishop of York, for the time being, and the bishops of the two provinces, for the time being, together with twenty-five lay peers and commoners, the vice-presidents thereof. All vacancies wliich may from time to time occur in the number of the lay vice-presidents arc to be filled up from the lay members of the society by the committee. " HI. The society is to be governed by a committee, consisting of the president, vice-presidents and treasurer, (a) Tliis account is taken from tlio publications of the society. 2190 CHURCH EXTENSION. Qualification of mt'uibci-s. General court. Orders, acts, ])()\vcrs, and duties of the coiuinittee. and of tliirty-eix members clectccl from the society, one-half at least of whom are to be laymen. The treasurer, and one-fourth of the thirty-six elected members of the com- mittee (in rotation) are to vacate their offices at the annual general court, but are to be capable of immediate re-elec- tion. " IV. All persons who contribute ten jTuineas in one donation, or one guinea annually, are declared to be members of the society, and to have a right to vote at general courts, and to be eligible to the committee, pro- vided their annual subscriptions be not in arrear. " V. A general court is to be holden annually in May, and oftencr if the committee shall think it expedient. At the annual general court three auditors are to be appointed for the year ensuing, a treasurer elected, and the vacancies in the committee filled up. All such elections are to be by ballot, from a double list prepared by the president and vice-presidents. " VI. Eveiy order made and act done by the committee, for the time being, of the society, is to be made and done ^Yitl^ the consent of the majority of the members present at any meeting of the committee, such meeting to consist of not less than five ; and the committee, or the major part of them at any such meeting, are to have full power and authority to make all such laws and regulations, not being repugnant to the laws of the kingdom or the express pro- visions of the act (9 Geo. 4, c. 42), as to them shall from time to time seem expedient, for the management and government of the society, and for carrying its designs into effect. The committee are to have the sole manage- ment, control and disposal of the estates, funds, revenues and other pro])crty belonging to the society ; and also the power of affixing the common seal of the society, or directing it to be affixed, to such instruments as the com- mittee, or such major part of them, shall think fit. The committee are to have also the sole control over, and appointment of, all officers, agents, or servants whom it may be thought exjicdient to employ in the service of the society, or in any of the concerns relating thereto. But it is ])rovided that no laws or regulations made by the committee shall be of any force or effect, unless the same shall be confirmed Ijy the members of the committee, or the major part of them, who shall be present at the next meeting of the said committee after the same shall have been first made, such next meeting to consist of not less than five. cnup.cii SOCIETIES. 2191 " VII. In the selection of parishes, or exti'a-parochial The enlarjre- places to wliich the committee shall grant any part of the ment or build- society's fnnds towards the enlargincj or buildinr/ of any g,j"j chapels. churches or chapels, they are to have regard to the amount jjulcs to be of the population, and also to the disproportion between observed in the number of inhabitants and accommodation for atten- selecting dance upon divine ser^ace according to the rites of the United Church of England and Ireland ; and, in giving » preference among such parishes and extra-parochial places, are also to have regard to the pro})ortion of the expense which shall be offered to be contributed or raised by such resjiective pai'ishes or places towards the enlargement or building of churches or chapels therein, and to the pecu- niary ability of the inhabitants thereof. "VIII. The committee are at liberty to gi'ant aid The repairs of towards the repairs of churches and chapels which have c|i"rdics and fallen into a state of great dilapidation icitJiout ncfjlect or i^jiigg (..^ j^q fault of the existing parisJtioners, and the entire expeyise observed in of repairing tvhich the parisJuoners shall be proved, to the selecting satisfaction of the committee, to be unable to defray ; but ^^^^^ ^^' in all such cases reference is to be had to the amount of money raised by the parishioners by rates or subscription, and to the improvement which it may be proposed to effect in the accommodation for the poor. " IX. The committee are annually to present to her Annual report INIajesty an account of the progress made by the society *° ^^"^ ^lajesty. in the execution of its designs, stating the number of churches or chapels enlarged, built, rebuilt, or repaired, or in the course of being so ; the money expended, and for what purposes ; and such other particulars as shall be necessary for explaining the progress made by the society, together with a list of all officers, agents and servants employed by the society, and a statement of their re- spective salaries." By sect. 1 of 9 Geo. 4, c. 42, the act " for the better Ajwlition of collecting charity money on biiefs by letters patent," &c. l^^iefs, &c. (4 Ann. c. 14), is repealed. But by sect. 10, if the crown is at any time pleased to issue royal letters authorizing contributions, the same when received shall be paid to the treasurer of this society. By sect. 12, the society may send and receive letters free of postage. \n Incorporated CliurclL Building Socictgv. Barrotc(b), it Avas holden, that the society having no power to pur- (b) 3 De G., M. & G. 120. Socief;/ v. Coles, \ K. & J. 145; Ste Incorj^oralcd Chunk Building 5 De G., M. & G. 331. 2192 CirnRCn EXTENSION. chase land, but only to build chm'ches or chapels on land already purchased, could take a bequest of pure ]iersonaltv bv will, Avitliout beiup^ obnoxious to 9 Geo. 2, c. .30. Society for the Tlio Soricti/ for the Projxif/nfion of the Gospel in tliTu'ifspci" ° Forcujn Parts a\ as incorporated h\ royal charter on the 10th ot" .Tune, 1704, " for the receivinp;, managing and disposing of funds contributed for the religious instruction of the Queen's subjects beyond the seas ; for the mainte- nance of clergymen in the plantations, colonies and factories of Great Britain, and for the Propagation of the Gospel in those jiarts." The following is the constitution of the society as contained in the material extracts from the charter, published in the annual report: — Election of " That the said Society for the Propagation of the officers. Gospell in Forreigne Parts, and their successors for ever, shall, uj)on the third Friday in February, ycarely, meet at some convenient place to ])e appointed by the said society, or the major jiait of them, who shall be ]iresent at any gencrall meeting, bctweene the houres of eight and twelve in the morning ; and that they, or the major part of such of them that shall then be ]iresent shall choose one pi'csi- dent, one or more vice-president or vice-presidents, one or more treasurer or treasurers, two or more audittors, one secretary, and such other officers, ministers and servants, as shall l)e thought convenient to serve in the said offices for the yeare ensueing. That the said president and vice- presidents, and all officers then elected, shall, before they act in their respective offices, take an oath, to be to them administered by the president, or in his absence by one of the vice-presidents, of the yeare preceeding, avIio are hereby authorized to administer the same, for the flxithfuU and due execucon of their respective offices and places dureing the said yeare. " That if it shall happen, that any of the persons at any time chosen into any of the said offices shall dye, or on any account be removed from such office at any time between the said yearly dayes of election, that in such case it shall be lawful! for tlic surviving and continueing president, or any one of the vice-presidents, to issue sum- mons to the severall members of the body corporate, to meet at the usuall place of the annuall meeting of the said society, at such time as shall be specified in the said summons; and that such members of the said body corporate, Avho shall meet upon such summons, or the major part of them, shall and may choose an officer or officers into the roome CHURCH SOCIETIES. 2193 or place of such person or persons, soe dead or removed, as to tliera shall seem meet. " That the said Society for the Propagation of the Meetings. Gospell in Forreigne Parts, and their successors, shall and may, on the third Friday in everj month, yearelj, for ever hereafter, and oftener if occasion require, meet at some convenient place to be appointed for that piu'pose, to transact the businesse of the said society. " That they, and their successors, or the major part of them Avho shall be present at any meeting on the third Friday in the months of November, February, INIay, and August, yearely for ever, and at noe other meetings of the said society, shall and may consult, determine, constitute, ordain, and make any constitutions, lawes, ordinances and statutes whatsoever ; as alsoe to execute leases for yeares, as aforesaid, Avhich to them, or the major part of them then present, shall seem reasonable, profitable, or requisite, for, touching or concerning the good estate, rule, order and government of the said cor]3oration,and the more effectiaall promoteiiig the said charitable designes : all which lawes, ordinances, and constitucons, soe to be made, ordained and established, as aforesaid, wee will, command, and ordaine, by these presents, for us, our heires, and successors, to be from time to time, and at all times hereafter, kept and performed in all things as the same ought to be, or the penalties and amercements in the same to be imposed and limited, soe as the same lawes, constitucons, ordinances, penalties, and amercements, be reasonable, and not repug- nant or contrary to the laws and statutes of this our realme of England. " That noe act done in any assembly of the said society shall be effectuall and valid, unlesse the president or some one of the vice-presidcTits, and seaven other members of the said company at the least, be present, and the major part of them consenting thereunto. " The Lords Archbishops of Canterbury and York ; Jrcmhcrs ex the Bishops of London and Ely ; the Lord Almoner and "ffi'^^'^- Dean of Westminster; the Dean of St. Paxd's, and Archdeacon of London ; and the two Ivcgius and two Margaret Professors of Divinity of both our Universities for the time being. " That the said society and their succesors shall and Election of may at any meeting on such third Friday in the month, °icmbers. elect such persons to be members of the said corporation, as they, or the major part of them then present, shall think l)eneficlall to the charitable designes of the said corporation. 2194 CHURCH EXTENSION. Subscriptions. Accoants. Bye-laws. Ptanrling com- mittee. General niana;rement. " Tliat the said Society for Propaf];ation of the Gospell in FoiToigne Parts, and tlieir successors, or the major ]iart of such of them as shall be present at any meeting of the said society, shall have ])o\ver from time to time, and all times hereafter, to depute such persons as they shall think fitt to take subscriptions, and to gather and collect such moneys as shall be by any person or persons con- tributed for the purposes aforesaid. And shall and may remove and displace such dcputyes as often as they shall see cause soe to doe. " That the said society shall yearely, and every yeare, give an account in Avriting to our Ijord Chancellor, or Lord Keeper of the Great Scale of England for the time being, the Lord Clieife Justice of the King's Bench, and the Lord Clieife Justice of the Common Pleas, or any two of them, of the sevcrall summe or summes of money by them received and laid out by veiiue of these presents, or any authority hereby given, and of the management and disposicon of the revenues and charltyes aforesaid." The society is further governed by the following bye- laws : — " L That before the society or standing committee enter upon business one or more of the following prayers, or of the prayers sanctioned by the president in 1806, always concluding with the Lord's l*rayer, be said." , [Then follow certain collects and prayers.] " 2. That there shall be a standing committee (three of whom shall be a quorum) to prepare matters for the con- sideration of the society at its monthly meetings. " 3. That the president, vice-presidents, treasurers, and secretary, shall be ex officio members of the standing committee. " 4. That the assistant secretaries be entitled to seats at the standing committee, but without votes. " 5. That the other members of the standing committee, not exceeding twenty-four In number, shall be elected by the society out of its incorporated members. It shall be the duty of the standing committee, Avhen recommending the names of persons for election as non-ofiicial members, to frame their recommendations, so fir as they shall find practicable, with a view to one-third of the non-official members being qualified, by actual or recent residence out of the metropolis and sci-vices on behalf of the society, to promote the interests of the society in the countr}'; and also, Avith a view to one other third of the non-official members being qualified, by personal acquaintance with CHURCH SOCIETIES. 2195 some colony or dcpencleiicy, to aid the society witli counsel and advice concerning its foreign work. " 6. That of the non-official members of the standing committee, the three who have served longest upon the committee, and of the remainder the three who, having been members of the committee for one complete year jTrevious to the monthly meeting in November, have, during that period, attended the fewest meetings of the l)oard, and of the standing committee and sub-committees thereof, or of any special committee, shah, retire at the annual meeting in February. If any doubt shall arise under this rule which member of those who have served longest shall retire, it shall be the one who has attended the fewest meetings ; and if any doubt shall arise which of those who have attended the fewest meetings shall retire, it shall be the one who, during the year previous to the November meeting, has served the shortest time on the committee. Of the six retiring members three only shall be eligible to supply the vacancies caused by their retirement. " 7. That the names of the retiring members, together with the names of the candidates intended to be proposed by the standing committee to fill the vacancies caused by their retirement, be declared at the monthly meeting in December in each year ; and that all candidates, whether proposed by the standing committee or by individual members, be proposed at the January meeting for election at the February meeting, provided that any individual member proposing any candidate or candidates be required to give a notice thereof, signed by himself and one other member, to the secretary, at or before the proposal of such candidate or candidates. " 8. That at the annual meeting in Februaiy the new members l)c elected by open voting. " 9. That any vacancy which may occur in the com- mittee otherwise than by retirement under bye-law 6 shall be notified at the meeting next ensuing, and shall be filled up at the meeting, not being the February meeting, two months after such notification, the like notice being given as is required l)y bye-law 7. " 10. That any persons, being members of the Church of England, may be elected into the corporation at any of the monthly meetings ; notice of the intention to propose them for election having been given at the monthly meeting next but one before that at which they are to be balloted foi", and the names of all persons so notified shall be 2196 CnURCn EXTENSION. Standing com- mittee. General luauaKement. Officers. publlsliod in some pul)licatlon of tlic society to be approved by tlic staiidingr committeo. "The followinfT sliall l)c eligible for election: — First, any person ^^•llo sliall be reconi mended by the standing committee. Secondly, any ])erson ■who shall be recom- mended l)y a member, provided that(r) lie shall have subscribed to tlie general I'lind of tlie society not less tlian one guinea ])er annum for a period of two years last past ; or (2) shall have contributed ten guineas in a single payment; or (3) shall have acted for the year preceding as secretary or treasurer of any district or parochial asso- ciation; or (4) being a clei'gyman, shall have in his parish an association in aid of the society, or an annual sermon, •with a collection, in its behalf. Provided also, that the individual recommending any person shall certify that he is desirous of being incorporated. "11. That it be the duty of every organizing, district, or parochial secretary, to transmit to the secretary of the society, -within the month of January in each year, a list of all ])ersons -within his district, deanery, or parish, qualified imder the preceding bye-la-w to be elected. " 12. That at the ballot for the election of incoi-porated members no discussion shall be allowed, and it shall suffice that any persons proposed shall be balloted for together, provided that on the requirement of any tivo members any particular name or names sliall be put up separately. " 13. That the society may nominate and elect to be associates of the society any persons who may have pro- moted or -whose co-operation and support may be deemed to promote the designs of the society, whether they be IJritish subjects or not. The associates will not be mem- bers of the corporation, but will hold an honorary position, with liberty to attend the board meetings, but Avithout the right of voting. Associates of the society avUI liold their position until the general meeting in the February follow- ing their election, and are in every February to be pro- posed for re-election. " 14. That the president, or tlie standing committee, have power to call a special meeting of tlie society. " lo. That the treasurers manage the financial concerns of the society, imder tlie direction of the standing com- mittee. " 16. That the secretary conduct the foreign corre- spondence, and superintend the general business of the society. " 1 7. That the assistant secretaries conduct the home coiTcspondence of the society, under the direction of the CHURCH SOCIETIES. 2197 secretary, take minutes of the proceedings of the general meetings and committees, and assist the secretary generally in the duties of his office. " 18. That all officers of the society, engaged in the management of the society's funds, give such security as shall be required by the standing committee, before ad- mission to then' respective offices. " 19. That a board of examiners, consisting of five Missionaries, clergymen, be appointed annually by the Archbisliops of Canterbury and York and the Bishop of London for the time being, to inquire into the fitness and sufficiency of all candidates who may present themselves in this country for missionary appointments ; and that no candidate, so ap- pearing, be accepted by the society without a recommenda- tion in writing fi'om the said boai-d. " 20. That no missionary be placed on the society's list, Avithout an express A-ote of the society sanctioning his appointment, and specifying the terms on which he is engaged. "21. That every missionary selected in England pro- ceed without delay to the country in which he is to be • employed ; and be subject, when there, to the bishop or other ecclesiastical authority. "22. That all pensions chargeable on the general fund of the society be annually brought under review at the general audit. "23. That no part of the society's general fund be ap- plied to the erection of buildings, except at the commence- ment of new missions to the heathen. " 24. That all regulations of the society concerning missionaries, or grants, or applications for grants, or in- cidental matters, be collected and printed, and that a re- vised copy of these be annually laid before the board at the meeting in Februaiy. "25. That the accounts of the society be closed on the Accounts, thirty-first day of December in each year, and audited within one month from that time. " 26. That an annual sermon be preached before the Sermon, re- society, and that the preacher, time, and place, be ap- po''^ ^*-'- pointed by the president. " 27. That the annual report and other publications of the society be circulated among the members and sub- scribers, under the direction of the standing committee. "' 28. That no new bye-law be added, or existing bye- Byc-huvs. law altered, Avithout notice having been given at least one month previous to the quarterly meeting at which the pro- 2198 CIIUIICH EXTENSION. posed adclition or alteration shall be submitted for the aj^jn'oval of the board." In Chester v. Chester it Avas holden, that the purposes of the society were " charitable" within the meaning of 9 Geo. 2, c. 36 (c). National « The National Societij for Promotiiif/ the Education ocie}. of the Poor in the Principles of the Kstahlished ChurcW Avas originally founded in 1811, and was incorporated by Charter. royal charter in May 23, 1817. The following is a sum- mary of its constitution as fixed by the charter, taken from the society's publications. " That there shall and may be a society to be called * The National Society for Promoting the Education of the Poor in the Principles of the Established Church throughout England and Wales,' and that the presidents and vice-presidents of the said society, and their successors for ever, and every person paying one guinea annually to the funds of the society, or ten guineas in one donation, shall be a corporation with perpetual succession, common seal, power to hold property to the value of 10,000/. per annum, and any other property and effects. " That the Archbishop of Canterbury be president ; that the Archbishop of York and all the bishops and ten other ]iersons, being either temporal peers or pri\'y councillors, be vice-]u'csidents. " That any vacancies in the number of such last-men- tioned vice-presidents be filled up by the nomination of the president and the remaining vice-presidents, or the major part of them, at a meeting to be holden for that purpose as soon as conveniently may be after the occurrence of such vacancy, or by the nomination of the major part of such of them as shall be present at the said luceting. " That for the managing and conducting the affairs of the said incorporated society there shall be a standing com- mittee, and that such committee shall consist of the ]>re- sident and of the vice-presidents, and of sixteen other members of the society, together with such one other mem])er of the society as shall, for the time being, be ap- pointed to fill the office of treasurer of the said society. " That one-fourth part in number of the said sixteen com- mittee-men shall annually vacate their offices in regular rotation, imless by death, or A'oluntary resignations, any other vacancies shall have been occasioned since the last general annual meeting ; in Avhich case so many only of {>•-) L. R., Weekly Notes (1871), 158; v/(7e mpra, p. 19G8. CHURCH SOCIETIES. 2199 the four persons next in rotation shall be required to re- sign, or vacate their said offices, as shall be sufficient, with the vacancies occasioned by death or voluntary resignation, to create or make four vacancies in the whole in the said committee of sixteen ; and that any of the said committee- men so vacating their offices by I'otation shall be capable of being immediately re-elected as committee-men by the society at large, in manner hereinafter mentioned ; and accordingly, for the purpose of such election, that lists shall be formed by the president and vice-presidents for the time being, or the major part of them, of persons in their opinions fit to be elected members of such committee : which last-mentioned lists shall contain twice as many names as shall be then vacancies to be filled, whether such vacancies shall be occasioned by members of the committee vacating their offices in the manner hereinbefore men- tioned, or by deaths, or voluntary resignations, since the last election ; and that out of such lists so many persons as shall be necessary to supply the vacancies then existing in the said committee shall be elected and chosen by the members of the said society, present at their annual general meeting, or the major part of them, by such mode of voting or ballot as the said committee for the time being, or the major part of them, shall prescribe. " That for the purpose of such election, and for the elec- tion of auditors of the accounts, and for receiving the rej^orts, and for other the affiiirs of the said society, a general meeting of the said society shall be holden at such pjace as the committee, or the major part of them, shall appoint in the month of May or June in every year, and that due notice shall be given of the time and place of such meeting, at least fourteen days previous to the day of meeting, by advertising in some or one of the public newspapers pubhshed daily in the cities of London and Westminster. " That the treasurer of the said society shall be chosen and appointed by such of the members of the committee for the time being as shall be present at a meeting to be holden for that purj^ose, or the major part of them ; and that such treasurer for the time being shall, by virtue of his office, be a member of the said committee. " That the said committee for the time being, or the major part of them, shall have full power and autliority to frame, appoint, order, and make all such laws, rules, regulations, constitutions and ordinances, not being re- pugnant to the laws of this kingdom, or to the express provisioQS of this charter, as to the said committee, or tlie 2200 CIIUUCII EXTKXSIOX. major part of them, sliall from time to time seem expedient for the manaf2;emeiit and government of the said soeiety, and for carrying into eftect the designs thereof; and shall have the sole management, control, and disposition of the estates, funds, revenues, and other property belonging to the said society ; and sliall have the power of affixing the common seal of the said society, or directing it to be affixed, to such instruments as the said committee, or the major part of them, shall think fit ; and sliall have the sole control over and appointment of all officers, agents, or servants whom it may be thought expedient to employ in the service of the said society, or in any of the concerns relating thereto : provided, that such laws, rules, regula- tions, coustitntions, and ordinances so to be made by the said committee, or the major part of them, shall not be of any force or efiect unless the same shall be approved, ratified, and confirmed by the members of the said com- mittee, or the major part of them, who shall be present at the next meeting of the said committee after the same shall have first been made." The following laws and regulations have been framed under the charter. Standing " 1. The standing committee shall be summoned to meet committee. ^^^ ^.|^g f^^.^^ Wednesday in February, March, April, May, June, July, August, November, and December, except when such Wednesday shall fall in the AVeek before Easter, or in Whitsun week, and then it sliall be summoned to meet in the ]jrevious week : or in Easter week, Avhen it shall be summoned to meet in the subsequent week; and at such other times as occasion may require — five shall be a quorum. " 2. A special meeting of the standing committee may be summoned at seven days' notice, upon direction of the president, or two vice-presidents, or any three members of the standing committee. " 3. At each meeting of the standing committee the cliair shall be taken by the president, or in his absence by a vice-president, or, in the absence of the president and vice-presidents, by any other member elected by the mem- bers present. " 4. Each meeting shall be opened with prayer. " 5. The first business of each meeting not being a special meeting shall be to read the fair minutes of the preceding meeting, and compare them with the rough minutes, and the correctness of the same shall be verified by the signature of the chairman. " 6. After reading the minutes, any business arising CHURCH SOCIETIES. 2201 thereout shall be first taken into consideration, unless upon motion and for special cause priority be granted to any other business. " 7. The business on the agenda paper shall be next taken into consideration in order. " 8. If objection be taken by any member present to the discussion of matter not named in the agenda paper, the consideration thereof shall not be proceeded with unless by consent of two-thirds of the members present. " 9. Every motion shall be presented to the chairman in writing, in order that on being seconded it may be put from the chair. " 10. The standing committee, at their first meeting after the annual general meeting, shall appoint from their own number a sub-committee, to be called a ' committee ' of finance and correspondence,' and to consist of the president, vice-presidents, treasurer, and seven others — two shall be a quorum. In the event of a vacancy the standing committee shall, at their meeting next following, fill up the same. "11. The sub-committee shall meet in the course of the Sub-com- week preceding the monthly meeting of the standing com- uiittee. mittee, and at such other times as may be necessary, to consider applications for grants and other business ; and their recommendations as entered in their minutes shall be laid before the standing committee for adoption. " 12. All questions brought forward at general meetings of the society and at meetings of the committees shall be determined by the vote of the members j^resent ; and in case of equality of votes the chairman shall have a second or casting vote. " 13. The treasurer shall act under the instructions of Treasurer. the committee as their representative in money matters ; his receipt shall be a sufficient discharge, and his signature, countersigned by the secretary, shall be a sufficient autho- rity for payment of cheques and drafts. At each meeting of the standing committee he shall present an account of the financial condition of the society, an abstract of which shall be entered on the minutes. " 14. The accounts shall be audited by the auditors quarterly, or more frequently if specially ordered. " 15. The secretary shall attend all meetings of com- Secretary, mittees and sub-committees, shall enter in a book a rough minute of their proceedings, to be authenticated by the signature of the chairman, and shall enter them before the next meeting in the minute book, Avhich shall be kept in P. VOL. II. 7 B 2002 CHURCH EXTENSION. Sccrctarv. Organizing secretarj. Common seal. Trust deed. tlie manner ])rc?cril)C(l by tlio committee. lie !er in duplicate for each meet- ing, an abstract of which shall be sent with each notice of such meeting. " 17. He shall enter on the agenda paper first the treasurer's financial statement and his motions relating thereto, and then all notices of motion in the order in ^vhich they are received. " 18. He .shall keep all letters received by him, and all documents of importance, and also copies of all his letters and of all advertisements. " 19. He shall examine all claims and accounts, and satisfy himself as to their con'ectness, to which end he shall require the initials of the person more immediately respon- sible in each case to be previously affixed to each. " 20. He shall see that copies of the charter of the society, of the laws and regulations, and of the last annual report, be laid upon the table at each meeting. "21. He shall not permit any books or papers belonging to the society to be removed from his custody or to be lent to any person without the express permission of the com- mittee ; nor permit any person not being a member of the committee to inspect the same Avithout similar per- mission. " 22. A second secretary, to be called the ' organizing secretary,' shall be appointed by the standing committee. His duty shall be to organize and conduct, under the general direction of the secretary, all matters relating to the collec- tion and extension of the ordinary and special funds of the society, including arrangements for church sei'vices and collections .and for public meetings. He shall, in the absence of the secretary, represent him at the office. " 23. The common seal .shall be kept in the custody of the treasurer and secretary, and shall not be affixed to any instrument without the order of the standing com- mittee." In all schools united to the society the following clause is required to be inserted in the trust deed thereof. " And it is hereby declared that the said school shall always be in union with and conducted accordingly to the principles and in furtherance of the ends and designs of the incorporated national society for promoting the educa- CHURCH SOCIETIES. 2203 tion of the poor in tlie principles of the established church throughout England and Wales" (d). The Socicti/ for Promoting Christian Knoicledfje has Society _for never been incorporated. It is, however, one of the oldest Pjomotmg church societies, having been founded in a.d. 1698 ; and Knowled"^e. the members thereof contributed largely to the foundation and incorporation of the Society for the Propagation of the Gospel and of the National Society. The original preamble to which all members subscribed their names was as follows : — " Whereas the growth of vice " and immorality is greatly owing to gross ignorance of the " principles of the Christian religion, we, Avhose names " are under written, do agree to meet together as often as " we can conveniently, to consult (under the conduct of " divine providence and assistance) how we may be able, " by due and laAvful methods, to promote Christian know- " ledge." (fZ) Vide supra, p. 2049. 7 B 2 ( 2204 ) PART X. CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. CHAPTER I. CHURCH IN IRELAND. The churches The fifth article of the Act for the Union of Irel.and witli aLuiThml to ^^*^^* Britain (a) enacts, " That it be tlie fifth article of be united into union, that the churches of Em/land and Irelund, as now one church. by law established, be united into one protestant episcopal church, to be called, The United Church of Encjland and Ireland; and that the doctrine, worshij), discipline, and government of the said united church shall be, and shall remain in full force for ever, as the same are noAv by law established for the church of Encjland ; and that the continuance and preservation of the said united church, as the established church of Enr/land and Ireland, shall be deemed and taken to be an essential and fundamental ])art of the union : and that in like manner the doctrine, Avorship, discipline, and government of the church of Scotland shall remain and be preserved as the same are now established by law, and by the acts for the union of the tAvo kingdoms oi' Enffland and Scotland." Acts of parlia- 3 & 4 Vict. c. 52, appointing His Royal Highness ment affecting prince Albert regent of these realms, in the event of the church. crown descending to any issue of her ]\Jajesty, whilst such issue should be under the age of eighteen years, enacted, among other provisions, that his royal highness should swear that he will maintain inviolably the Established Churches of England, Ireland and Scotland ; and also (a) 39 & 40 Geo. 3, c. 67. CHURCH IN IRELAND. 2205 that, in the event of his being reconciled to the Chnrch of Rome, or professing, or marrying a person professing, the Roman Cathohc rehgion, his royal highness should cease to be regent of these realms. In the first year of George II., an act was passed to enable archbishops, bishops, and other ecclesiastical per- sons, to grant their patronage or right of presentation to small liAangs to such persons as shall augment the same. In 1836, an act was passed to amend the foregoing statute and to encourage the building of chapels of ease in Ire- land (b). In 1812, an act was passed to enable coadjutors to arch- bishops and bishops in Ireland to execute the powers of archbishops and bishops respectively, for all purposes but that of presenting and collating to benefices, and in all cases except such as concerned royal privileges or pre- rogatives (c). On the 21st June, 1824, an act was passed to consolidate and amend the laAvs for enforcing the residence of spiritual persons on their benefices; to restrain spiritual persons from carrying on trade or merchandise; and for the support and maintenance of stipendiary curates in Ire- land (r/). On the 14th August, 1833, an act was passed, effecting a very extensive alteration in the temporalities of the Irish Church (e). This act was subsequently amended by one which passed on the 15th August in the ensuing year(/).^ The Church of Ireland was, until the passing of the Irish Church Irish Church Temporalities Bill, under the control of four Tcmporahtics' archbishops, one for each of the four provinces, and named . . j , • , from the cities of iVrmagh, Dublin, Cashel, and Tuam, in ^nd bishops. which the archiepiscopal sees are situated. The Arch- bishop of Armagh, now universally recognized as first in rank, though his right to that station was long disputed by the Archbishop of Duljlin, is styled Primate and Metro- politan of all Ireland; the Archbishop of Cashel, Primate and Metropolitan of Munster; and the Archbishop of Tuam, Primate and Metropolitan of Connaught. The four archiepiscopal provinces were subdivided into thirty-two dioceses, which were consolidated and united under eighteen (Z») G & 7 Will. 4, c. 31. answers to the English act 1 & 2 (c) 52 Geo. 3, c. 62. Vict. c. lOG. (d) See 5 Geo. 4, c. 91: this (c) 3 & 4 Will. 4, c. 37. (/) 4 & 5 Will. 4, c. 90. 220G CHURCH OF KXGLAM) IX KELATION TO OTIIKR CIIL'RCIIEf. Irisli Church Temporalities' liill. Archlnshops nud bishops. Eotaiion of bishops. The dioceses in Armaoli jirovince were those of Armagh (holden by the archbishop), Clop;her, Meath, Down and Connor united, Derry, l{a])hoe, Kihnore, Dro- morc, and Ardagh united to Tuam. There were, therefore, seven bishops in this province, suffragan to the Archbishop of Armagh. The province of DubHn was subdivided into the dioceses of Dublin and Cihandelagh united, Kildare, Ossory, ajid Lcighlln and Ferns iniited. The Archbishop of DubHn had, therefore, tliree suffragan bishops under him. The province of Cashel contained the dioceses of Cashel and Emly united, Limerick miited with Ardfert and Aghadoe, Waterford united Avith Lismore, Cork united with Ross, Cloyne, and Killaloe united with Kil- fenora. The number of suffragan bishops in this -^^rovince was five. The province of Tuam comprehended the dioceses of Tuam, Elphln, Clonfert united with Kilmacduagh, and Killala united witli Achonry. There were, therefore, three bishops in this province suffragan to the Archbishop of Tuam. This arrangement Avas considerably altered by the 3 & 4 Will. 4, c. 37, and 4 & 5 AYlll. 4, c. 90, cited above ; according to the provisions of Avhlcli, the hierarchy was to consist of two archbishops only, those of Armagh and Dublin ; the two others being reduced to the rank of bishojis. The eighteen suffragan bishops were to be re- duced by the consolidation of the dioceses to ten, five under each archbishop. The new arrangement was to be effected gradually on the demise of the several bishops Avhose sees were to be united to others. AVhen completed, the eccle- siastical division of Ireland Avas to be as follows : — The province of Armagh, containing the bishoprics of Meath, Derry united Avith liaphoe, Down united Avith Connor and Dromore, Kilmore united Avith Ardagh and Elphln, and Tuam united Avith Killala and Achonry : the province of Dublin, containing the bishoprics of Ossory united Avith Leighlln and Ferns ; Cashel united Avith Endy, A\'aterford and Lismore ; Cloyne united Avitli Cork and Koss ; Kil- laloe united Avlth Kilfenora, Clonfert, and Kilmacduagh ; and Limerick united Avith Ardfert and Aghadoe. The Income of the archbishojis and bishops Avas derived chiefly from lands let upon lease of tAventy-one years, and renewed from time to time, at the original rent, on pay- ment of a fine on renewal, fluctuating according to the altered value of land, and the period to Avliich the renewal Avas to extend. According to 3 & 4 "Will. 4, c. 37, s. 51, the archlepis- CnUKCII IX lllELAND. 2207 copal seas of Cash';! and Tuam having become void, the Irish represen- Archbishops of Armagh and Dubhn Avere to succeed each ^^^^^'^ bishops. other, in future, in parHament, from session to session ; and arrangements were made for episcopal rotation as to seats in parliament. The ecclesiastical dignitaries subordinate to the bishops Drans and Avere the deans, thirty-three in number ; all were presenta- chapters. tive by the crown, except those of St. Patrick's, Dublin, and of Kildare, — Avho were elective by their respective chapters, — and of Clonmacnois, collative by the Bishop of Meath. Twenty-six deans had cure of soids, and seven had not. The deans of St. Patrick's, Dublin, Christ Church, Dublin, St. Canice, Killcenny, and Lismore, exercised peculiar jurisdictions, varying in each, Avithiu their respective deanries. Three dioceses — Meath, Kil- more, and Ardagh — were Avithout chapters ; in lieu of Avhich there Avas a synod, consisting of all the beneficed clergymen, in Avhich the archdeacon presided. The chap- ters and synods Avere corporate bodies, and used a common seal. The chapters Avere thirty in number ; and though all had a general similarity of constitution, each Avas marked by some special peculiarity. Their component members Avere as follows — the precentors or chanters, originally intended to haA'e charge over the singing men : their number Avas twenty-six — seventeen Avith cure of souls, and nine without cure ; they Avere all appointed by their respective bishops, except the precentor of Christ Churcli, Dublin, AA'ho AA'as nominated by the crown. The next members Avere the chancellors, Avho had no special duty ; they Avere tAventy-two — fifteen having cure of souls, and seven being AA^thout cure ; all appointed by the bishops, except that of Christ Church, Dublin, Avho Avas nominated by the croAvn. The treasurers Avere also tAA-enty-tAvo — sixteen Avith cure of souls, and six Avithout cure ; the right of appointment Avas the same as that of the precentors and chancellors. The archdeacons Avere thirty-four in number — all appointed by the bishops. There Avere two provosts belonging to cathedral churches ; but they had no official duties, cure of souls, or spiritual jurisdiction. Besides the subordinate dignitaries noAv recited, the chapters had pre- bendaries, 180 in number. There AA-ere also in twelve of the cathedral churches certain subordinate bodies, consist- ing of five canons, fifty-nine vicars choral, and fifteen choristers. There was but one instance of a territorial exemption One pccaliar. from episcopal jurisdiction, — the lordship of XcAvry ; the proprietor of Avhich held his spiritual court, and granted 2208 CHURCH of exgt.ano in nr.F.Ariox to other churches. niarriafjo licences and |)n)l)ates of wills, under the seal of the rellij^lons house to which the lordship belonged before the Keforniation. rarodiiul The dloceses were divided into parishes, which were in *^'^^''^^- the spiritual charge of clergymen in full orders, called rectors and vicars, and pcrjietual curates. They derived their incomes chiefly iVom tithe, of which there were two kinds, — great and small ; the former derived from corn of every kind, hay and wool ; the latter from flax, hemp, garden produce, and in some cases potatoes; but by another and more general explanation of these terms, two- thirds of the tithe of corn, hay and wool constituted the great tithe, and the remaining third the small tithe of a parish : the former was considered the property of the rector, the latter of the vicar. Latterly, a new order of parochial clergy had been introduced into the church, under the name of pei-petual curates, who had charge of a portion of a paiish specially allotted to them, the tithe of which they received, and were not subject to the incumbent of the remaining portion of the parish, but held their situations for life. The parochial clergy derived jiart of their income from glebe land attached to their respective benefices. The total quantity of glebe land amounted to, 91,137 acres, from which, if a twentieth part be deducted as unprofitable, there remained 86,581 acres of profitable land; it is said that if equally ap]iortioned among the benefices, it would have given an average of 62 acres to each incumbent. It was, however, very luieqiuilly distributed, by much the greater quantity of it lying in the northern province of Armagh. Most of the glebes were furnished with manses or glel^e houses, built partly by a donation of money from the board of first fniits, partly by loan from the same source, and jiartly at the cost of the incumbent, repayable by instalments from his successors. In cities and towns the parochial clergy were paid, in lieu of tithe, l)y minister's money, which was an assessment on every house of a certain value, estimated according to the amount of rent paid. The incomes of the parochial clergy were subject to certain deductions. These were, first fniits, payments towards diocesan and parochial schools, repairs of certain parts of the churches, and repairs of glebe houses. The first fruits were designed to be the amount of the first year's income of every benefice, payable by the new incumbent in four annual instalments, and intended to be applied to ecclesiastical purposes, especially the building CHURCH IN IRELAXD. 2209 and repairing of churches and glebe houses, and the pur- chase of glebe land. But as the amount on each parish was rated according to assessments made in the time of Henry VIII., Elizabeth, and James I., Avhich had never since been altered, notwithstanding the extraordinary- increase in the value of agricultural produce, the impost was little more than nominal, and was suppressed by the last acts for regulating church property. The diocesan schools were to be maintained by annual contributions from the bishop and the beneficed clergy ; but the levy drawn fi*om this source was little more than nominal. The parochial schools were supposed to be maintained by an annual stipend from the incumbent, estimated by cus- tom at two pounds per annum. In many cases this was not paid. Every incumbent was bound to keep his glebe house in tenan table order; to enforce which regulation, the bishop appointed a certain number of rural deans, whose duty it was to visit the several parishes within their respective districts, and to report to him upon the state of the churches and of the glebe houses. The churches were at one time kept in repair at the expense of the inhabitants of the parish. But modern ecclesiastical regu- lations transferred this duty to the ecclesiastical commis- sioners, who were authorized to appropriate to this pur- pose a sufficient portion of the incomes of the extinguished sees, and other revenues in their hands. In 1869, the Irish Church Act, 1869, 32 & 33 Vict. Disestablish- c. 42, was passed ; it was entitled " An Act to put an end p,^"* "^ ^"^'^ to the Establishment of the Church of Ireland, and to make provision in respect of the Temporalities thereof, and in respect of the Royal College of Maynooth." It re- cited : " Whereas it is expedient that the union created by act of parliament between the Churches of England and Ire- land, as by law established, should be dissolved, and that the Church of Ireland, as so separated, should cease to be established by law, and that after satisfying, so far as pos- sible, upon principles of equality as between the several religious denominations in Ireland, all just and equitable claims, the property of the said Church of Ireland, or the proceeds thereof, should be applied in such manner as parliament shall hereafter direct : " And whereas her Majesty has been graciously pleased to signify that she has placed at the disposal of parliament her interest in the several archbislio])rics, bishoprics, bene- fices, cathedral preferments, and other ecclesiastical dig- nities and offices in Ireland:" 2210 CIILKCII UV ENGLAND IN RELATION TO OTHEU CIlUllCIIES. Dissolution of lofrislativc union l)i't\vocn Churches of Kn<;hni(l and Irehind. Prohihition of future ajipoint- inents. Property of ecclesiastical commissioners vested in com- missioners under this act. Church pro- perty vested in commissioucrs under this act. And it enacted as follows: — Sect. 2. " On and alter the first day of January, 1871, the said union created In' act of ])arlininent Ix'tween the Churches of England and Ireland shall be dissolved, and the said Churcli of Ireland, hereinafter referred to as *the said churcli,' shall cease to be established by law." It proceeded to apjioint commissioners to execute the provisions of the act; they were styled " The Commis- sioners of Church Temporalities in Ireland." It dealt with the ti-ansier oi" ])roperty and dissolution of ecclesiastical corporations as follows : — Sect. 10. " Save as hereinafter mentioned, no person shall, after the passing of this act, be appointed by her Majesty or any other person or corporation by virtue of any right of jiatronage or power of appointment now existing to any archbisho2:)ric, bishopric, benefice, or ca- thedral ])referment in or connected with the said church." Sect. 11. "From and after the passing of this act all property, real and personal, at the date of such passing vested in or belonging to the Ecclesiastical Commissioners for Ireland, is transferred to and vested in the commis- sioners appointed xmder this act, subject to all tenancies, charges, incumbrances, rights (including tenants' rights of renewal), or liabilities afiecting the same, and the cor- poration of the Ecclesiastical Commissionei's for Ireland IS hereby dissolved." Sect. 12. "On the first of January, 1871, save as here- inafter provided, all property, real and personal, belong- ing or in anywise appertaining to or appropriated to the use of any archbishopric, bishopric, benefice, or cathedral preferment in or connected with the said church, or belonging or in anywise appertaining to or appropriated to the use of any person as holding any such archbishopric, bishopric, benefice, or cathedral preferment, or belonging or in anywise appertaining to or appropriated to the use of any cathedral corporation in Ireland, as defined by this act, shall vest in the commissioners, subject as hereinafter mentioned." The section then provides, that(l) and (3) the property so to be vested shall i-emain subject to the same rents, charges, leases, and rights of renewal of leases as before ; and also (2) " In the case of any houses, buildings, farms, lands, churclies, burial grounds, or other corporeal hereditaments to -which, or to the rent and profits of •which, any archbishop, bishop, or person holding any such benefice or cathedral preferment as aforesaid may be entitled, subject to the life interests of such archbishop. CHURCH IX IRELAND. 2211 bishop, or person respectively ; and such last-mentioned corporeal hereditaments shall, subject to the provision for commutation hereinafter contained, continue in such arch- bishop, bishop, or person respectively for their respective lives, with the same powers, rights, and authorities and in the same manner as if this act had not passed." Sect. 13. "On the said first of January, 1871, every Dissolution of ecclesiastical corporation in Ireland, whether sole or ecclesiastical aggregate, and every cathedral corporation in Ireland, as a^ccssatiou defined by this act, shall be dissolved, and on and after of right of that day no archbishop or bishop of the said church shall bishops to sit be summoned to or be qualified to sit in the House of Lords"*^ ° Lords as such ; provided that every present archbishop, bishop, dean, and archdeacon of the said church shall during his life enjoy the same title and precedence as if this act had not passed." It provided compensation to persons deprived of income and to lay patrons. And it enacted, with respect to the powers of the church afler passing of the act, as follows: — Sect. 19. " From and after the passing of this act there Ptcpeal of laws shall be repealed and determined any act of parliament, prohibiting law, or custom whereby the archbishops, bishops, clergy, synods' ^c or laity of the said church are prohibited from holding assemblies, synods, or conventions, or electing representa- tives thereto, for the purpose of making rules for the Avell- being and ordering of the said church ; and nothing in any act, law, or custom shall prevent the bishops, the clergy, and laity of the said church, by such re2:)resenta- tives, lay and clerical, and to be elected as they the said bishops, clergy, and laity shall appoint, from meeting in general synod or convention, and in such synod or con- vention framing constitutions and regulations for the general management and good government of the said church, and property and affairs thereof, and the future representation of the members thereof in diocesan synods, general convention, or otherwise." Sect. 20. " The present ecclesiastical law of Ireland, and Existing law the present articles, doctrines, rites, rules, discipline, and *» subsist by ordinances of the said church, with and subject to such (if ^■°"*'"'^'^- any) modification or alteration as afler the first day of Januaiy, 1871, may be duly made therein according to the constitution of the said church lor the time being, shall be deemed to be binding on the members for the time being thereof in the same manner as if such members had mutually contracted and agreed to abide by and observe the same, and shall be capable of being enforced 2212 ClirnCII OF EXOLAND IX UELATIOX TO OTIIF.U CHURCHES. Abolition of ecclesiastical courts and ecclesiastical law. Incorporation of church body. ill the temporal courts in relation to any property which xinder and by virtue of this act is reserved or given to or taken and enjoyed by the said church or any members thereof, in the same manner and to the same extent as if such property had been expressly given, granted, or con- veyed upon trust to be held, occupied, and enjoyed by persons who should observe and keep and be in all respects l)ound by the said ecclesiastical law, and the said articles, doctrines, rites, ndes, discii)line, and ordinances of the said church, subject as aforesaid ; but nothing herein contained shall be construed to confer on any archbishop, bishop, or other ecclesiastical person any coercive jurisdic- tion whatsoever : Provided always, that no alteration in the articles, doctrines, rites, or, save in so far as may be rendered necessary by the passing of this act, in the formularies of the said church, shall be binding on any ecclesiastical person now licensed as a curate or holding any archbishopric, bishopric, benefice, or cathedral prefer- ment in Ireland, being an annuitant or person entitled to compensation under this act, who shall within one month after the making of such alteration signify in writing to the church body hereafter mentioned his dis- sent therefrom, so as to de[)rive such person of any annuity or other compensation to which tuider this act he may be entitled." Sect. 21. "On and after the first day of January, 1871, all jurisdiction, whether contentious or otherwise, of all the ecclesiastical, peculiar, exempt, and other courts and persons in Ireland at the time of the passing of this act liaving any jurisdiction Avhatsoever exerciseable in any cause, suit, or matter, matrimonial, spiritual, or ecclesias- tical, or in any way connected with or arising out of the ecclesiastical law of Ireland, shall cease ; and on and after the said first day of January, 1871, the act 27 & 28 Vict. c. 54, shall be repealed, and on and after the last-men- tioned day the ecclesiastical law of Ireland, except in so far as relates to matrimonial causes and matters, shall cease to exist as law." Sect. 22. "If at any time it be shown to the satisfaction of her jNIajesty that the bishops, clergy, and laity of the said church in Ireland, or the persons who, for the time beino-, mav succeed to the exercise and discharge of the c])iscopal functions of such bishops, and the clergy and laity in communion with such persons, have appointed any persons or body to rejiresent the said church, and to hold property for any of the uses or purposes thereof, it shall be lawful for her Majesty by charter to incorporate CHURCH IN IRELAND. 2213 sucli body, -with power, notwithstanding the statutes of mortmain, to hold lands to such extent as is in this act provided, but not further or otherwise." It provided for dealings between the commissioners Commutation. and the representative church body, with respect to re- demption of annuities and life interest of ecclesiastical persons, by a process of commutation where the parties interested desired it. By sect. 25, provisions are made for the churches as Provisions follows :— "^^'th respect to (1.) Churches not used for divine worship, but deserv- ing preservation as national monuments, are to be vested in and preserved by the commissioners of public works. (2.) Churches in actual use, for which the representative body apply, stating that they mean to use the same or to build another in lieu of the present fabric, are, subject to the life interest of the incumbent, to be vested in the representative body. (3.) Churches in actual use, for which no ap])lication is made, may, Avhen erected by a private founder, be vested in him or his representatives if he have died since the year 1800. (4.) Any other churches may be disposed of as the commissioners think fit. Rights to vaults and of sepultm-e are to remain as before. Where churches are vested in the representative body, schoolhouses belonging to such churches may be so vested also. Sect. 26 contains provisions as to burial grounds to the Provisions with following effect : — rcspett to (1.) Where a church vested in the representative body '^"'^'^l t^'ou'iJs- has a burial ground that is annexed to it and not separated by any carriage highway, or " that has been granted by a " private donor to or exclusively used by the parishioners " attending the said church," the commissioners, at the option of the representative body, shall (a) either vest it in the body, subject to any life interest and without prejudice to any such right of burial " as may be subsisting tlierein " or may be thcreafler declared to subsist therein by act " of parliament," or (b) vest it in the guardians of the poor, subject to a right of way to the church, in whicli case the guardians are to take care that funerals do not take place during the time of ordinaiy church service and generally for the freedom of the clergy and congregation of the church from interfei-ence by those attending funerals, and shall preserve the burial ground in good order. (2.) In other cases the burial ground is simply to be 2214 CIILRCir OF ENGLAND IX KELATIOX TO OTFIKU CHURCHES. Resilience houses aud glebes. Payment of £500,000. Moveable chattels be- longing to sec or chnrth. vested In tlic guardians of tlie poor, to be by them liolden as a ground purchased Ijy a burial board, with an excep- tion for burial grounds situate in private parks or grounds. Sects. 27, 28, contain provisions as to residence houses and glebes as follows : — Any residence house used by a clergyman ]ierforming or aiding in the services of any church vested in the repre- sentative body or in any building temimrarily used for a chiu'ch or any see house used by an archbishop or bishop shall, on application of the representative body, be, with the garden and curtilage thereto, vested in the body, subject to any life interest, upon payment by the body " of " a sum equal to ten times the amoimt of the annual value " of the site of such ecclesiastical residence estimated as " land and of the said garden and ciu'tilage ;" or, where there is a building charge on the residence, of the smaller of these two sums, the amount of the ten years' annual value or the amount of such building charge. The pay- ments are to be made either upon tlie vesting order, or, where there is a life interest, on the determination of the life interest. Where these residences are so vested, tlie commissioners may further on the application of the rcjn'esf ntative body vest in the body, on payment of the price thereof to be fixed by arbitration, land not exceeding thirty acres with eveiy see house, and not exceeding ten acres with any other residence, or more if the commissioners shall think it necessary for the convenient enjoyment of the see house or residence. By sect. 29, a lump sum of 500,000/. is to be paid to the representative body in lieu of all claims in respect of ])rivate benefactions or the produce thereof: and any par- ticular ]irivate endowment may within twelve months substantiate its claim to a share in this lump simi. By sect. .30. " All plate, furniture, and other moveable chattels belonging to any church or chapel, or used in con- nextion wuth the celebration of divine worship therein, shall vest in the representative cluirch body when incorpo- rated ; and, subject to the life enjoyment of same by the existing incumbents, all movcal)le chattels held and enjoyed by the incumbent for the time l)t"ing of any see, cathedral preferment, and benefice in his corporate right, together with or as incident to the occupation of any ecclesiastical residence, shall also vest in the same body when incorpo- rated ; and where any property is vested in any ecclesi- astical or cathedral corporation in Ireland in trust for the poor or any other charitable purpose, the dissolution of CHURCH IX IRELAXD. 2215 such corporation shall not affect the continuance of the trust, but such property shall immediately upon such dis- solution vest in the representative body of the said church, or, in default of and until the same shall be constituted, in the commissioners for the execution of this act, but subject always to the trusts affecting the same, and under the same supervision, local or otherwise, as theretofore, or as near thereto as the circumstances of the case will admit ; and in all cases where ecclesiastical persons are at present in rio[ht of their dio-nities or offices entitled to be members of any lay corporations constituted for the management of any private endowment, or are trustees for the manage- ment of property belonging to institutions of private foun- dation for purposes not ecclesiastical, then the persons (if any) who shall hereafter at any time discharge duties similar or analogous to those now discharged by such ecclesiastical persons shall be entitled to succeed in their room, and be members of such lay corporations, and to act as such trustees." The act made various provisions with respect to the management of property by the commissioners, and Avith respect to the Regium Z)o;2Mm of dissenters and the college of Maynooth. It enacted the following among other temporary pro- visions : — Sect. QQ. " If any vacancy occur in any archbishopric. Regulation as bishopric, benefice, or cathedral preferment in or connected ^^ vacancies. Avith the said church between the date of the passing of this act and the first day of January, 1871, the follow- ing enactments shall be made Avitli respect to such vacancy : (1.) All property, real and personal, belonging or in anywise appertaining to or ai)]5ropriated to the use of any such vacant archbishopric, bishopric, benefice, or cathedral preferment, or belonging or in anywise appertaining to or appropriated to the use of any person as holding any such arch- bishopric, bishopric, benefice, or cathedral pre- ferment, shall vest in the commissioners, subject to any quitrents, head rents, leases, and other tenancies, charges, and incumbrances affecting the same : (2.) Her Majesty may in the case of a vacant arch- bishopric, on the requisition of any three bishops of the province, and in the case of a bishop on the requisition of the archbishop of the province in which such bishopric is situate, or of any three 2216 ciiriicii OF e\(;laxi) in kklatiox to otiiki; cirniciiES. bishops of the same ])n)\ iiice, fill u]) tlie varancv ; but no arc'libislioj) or Ijisliop so apjjointecl shall be suiiimomHl to or be (jiialifiod to sit in the House of Jiords, and lie shall be subject to the provisions herein-after mentioned : (3.) In the case of any vacant benefice or catliedral preferment, such vacancy may be filled up by the same ])erson or persons who would have been qualified to fill up the same if this act had not ])assed, but the jierson so apjjointcd shall be subject to the provisions herein-after mentioned." These provisions deprive him of all claim to compensa- tion except in respect of any benefice or preferment pre- A'iously holden by him, but give him the ordinary income of his new preferment till Jamiary 1st, 1871. The act disjDOsed of the sur])lus of church property as follows: — Ultimate trust Sect. 68. " And whereas it is further expedient that of surplus. j^Q proceeds of the said property shoidd be approi)riated mainly to the relief of unavoidable calamity and suH'ering, yet not so as to cancel or impair the oblio;ations now at- tached to ]iroperty under the acts for the relief of the ))oor : be it further enacted, that the said proceeds shall be so ap])lied accordingly in the manner parliament shall here- after direct." And contains these saving clauses. Provision as to Sect. 69. " In all enactments, deeds, and other docu- acts rcl;itin<; to ^nents in Avhich mention is made of the United Church of United Church t-'ii iTiiii j. i i oi Fu'^laml i'jnoland ana Ireland, tiie enactments ami provisions re- auil Ii-eland. latiiig thereto shall be read distributively in respect of the Church of England and the Church of Ireland, but, as to the last-mentioned church, subject to the provisions of this act." Saving rights Scct. 70. "Nothing in this act contained shall affect as to proprie- ^}jg patronage or right of ])resentation to any proprietary or and chapels of district parochial church or endowed chapel of ease which ease, has been endowed out of })rivate funds, or affect the ]>ro- pei'ty in any such church or chapel, or the property held for the purposes of or appropriated to the use of the same, or affect the continuance of the trust relating thereto as originally constituted." Saving of act Scct, 71. "Nothing herein conlalned shall affect the of39&40_ act 39 & 40 Geo. 3, c. 67, intituled ' An Act for the Geo. 3, c. G/, Union of Great Britain and Ireland,' or an act of the Irish Parliament passed in the fortieth year of the reign of King George the Third, and also intituled ' An Act for the Union of Great Britain and Ireland,' or anything CHURCH IN IRELAND. 2217 done thereby, except in so far as relates to the union of the churches of England and Ireland, and except as ex- pressly hereinbefore provided." Sect. 72 contains a series of definitions of words used in the act, amongst which the following is to be noted : — " Jurisdiction shall mean legal and coercive power and shall not extend to or include any power or authority which may be exercised in a voluntary religious associa- tion upon the footing of mutual contract or agree- ment" (^). (g) See " Tlie Constitution of the Church of Irehmd, &e., 1870." Dublin : Hodges, Foster & Co. P. VOT- II. 7 2218 c iirucii of kxoland in hklai ion to otiieu ciiuuciies. CHAPTER II. CHURCH IN SCOTLAND. In 170G the act 6 Anne, e. 11, passed for the union of 10n<2,land and Scotland (a). liy sect. 2, it " ratifies, approves, and for ever confirms the fifth act of tlie first })arlianient of King William and Queen Mary, intituled ' Act ratifyinjr the confession of faith, and settlings presbyterian chui-ch government,' -with all other acts of parliament relating thereto, in prose- cution of the declaration of the estates of this kingdom, containing the claim of right, bearing date the eleventh of April, one thousand six hundred and eighty-nine ; and ex- pressly pro\ides and declares, that the foresaid true pro- testaut religion, contained in the above-mentioned confes- sion of faith, with the form and ])urity of worship presently in use within tliis church, and its presbyterian church government and discipline, (that is to say), the government of the church by kirk sessions, presbyteries, provincial synods, and general assemblies, all established by tiie fore- said acts of i)arliament, pursuant to the claim of right, shall remain and continue unalterable, and that the said presbyterian government shall be the only government of the church withui the kingdom of Scotland." The same statute enacted as follows : C Ann. c. 8. Sect. 3. "And whereas an act hath passed in this present session of ]iarliament, intituled, ' An Act for securing the Church of England as by Law established ;' the tenor Act for sc- wlicreof follo\vs ; Whereas by an act made in the session curintj the of i)arliament held in the third and fourtli year of her Cnnrch of • i. ' • i i i • i. i i England re- majesty s reign, wlicrcby lier majesty was empowered to cited. appoint commissioners, vmder the great seal of England, to treat Avith commissioners to be authorized l^y the parlia- ment of Scotland, concerning an union of the kingdoms of England and Scotland, it is jirovided and enacted, that the commissioners to be named in pursuance of the said act should not treat of or concerning any alteration of the liturgy, i-ites, ceremonies, discipline, or government of the church as by law established within this realm : and whereas (a) See Grub's Ecclesiastical History of Scotland, 1861 ; Keith's Historical Catalogue of the Scottish Bishops, &c., 1824. I CHUECn IN SCOTLAND. 2219 certain commissioners appointed by licr majesty in pursu- ance of the said act, and also other commissioners nomi- nated by her majesty by tlie authoi'ity of the parliament of Scotland, have met and agreed upon a treaty of union of the said kingdoms ; Avhich treaty is now under the consi- deration of this present parliament : and whereas the said treaty (with some alterations therein made) is ratified and approved by act of parliament in Scotland ; and the said act of ratification is, by her majesty's royal command, laid before the parliament of this kingdom : and Avhereas it is reasonable and necessary, that the true protestant religion professed and established by law in the church of England, and the doctrine, worship, discipline, and government thereof should be effectually and unalterably secured ; l)e it enacted, that an act made in the thirteenth year of the 13 Eliz. c. 12. reign of Queen Elizabeth, of famous memory, intituled, ' An Act for the ministers of the church to be of sound religion;' and also another act made in the thirteenth year of the reign of the late King Charles the Second, intituled, 14 Car. 2, c 4, ' An Act for the uniformity of the public prayers and ad- ministration of sacraments, and other rites and ceremonies, and for establishing the form of making, ordaining and consecrating bishops, priests, and deacons in the chu.rch of England,' (other than such clauses in the said acts, or either of them, as have been repealed or altered by any subsequent act or acts of parliament) and all and singular other acts of parliament now in force for the establishment and preservation of the church of England, and the doc- trine, Avorship, discipline, and government thereof, shall remain and be in fidl force for ever." " After the demise of her majesty (whom God long pre- Queen's snc- ' serve) the sovereign next succeeding to her majesty in the lessors to take royal government of the kingdom of Great Britain, and so n"i[i'^tahi'tlic for ever hereafter, every king or queen succeeding and Chnich nt coming to the royal government of the kingdom of Great Enj^laml. Britain, at his or her coronation, shall, in the presence of all persons who shall be attendhig, assisting, or otherwise then and there pi'esent, take, and subscribe an oath to maintain and preserve inviolably the said settlement of the church of England, and the doctrine, worshi]), disci- pline, and government thereof, as by law established within the kingdoms of England and Ireland, the dominion of "Wales, and town of Berwick-upon-Tweed, and the terri- tories thereunto belonging." " This act, and all and every the matters and things Act to be an tlierein contained, be and shall for ever be holden and ad- essential part judged to be a fundamental and essential part of any treaty ^<,*"^ '*"" ' ' 7 C 2 2220 cmiu II or i:N(iLANi) in i;i:lati<»\ to otiii:r ciiurciies. Articles of Union and the Act for Ci-ta- blisliiii*; I'res- liytcrirtii Church Go- vernment, Sec. ratified and confirmed. 5 Ann. c. 5. Acts for set- tling the Church Go- vernments in England and Scotland, &c., declared essen- tial parts of the Union. 5 Ann. c. 5. Episcopal Church. Statutes af- fecting the Episcopal Church in Scotland. (trimi(in to be concluded between the said two klnodonis ; and also that this act sliall be inserted in express terms in any act ot" parhanient which sliall be made for settlinj^ and r.itiiyino; any snch treaty of miion, and shall be therein declared to be an essential and fundamental part thereof." Sect, 10. " All and every the said articles of union as ratified and a])proved by the said act of parliament of Scot- land, as aforesaid, and hereinbefore ])articular]y mentioned and inserted ; and also the said act of parliament of Scotland for establishino^ the protestant relio;ion and presbyterian church government within that kingdom, intituled, ' .\n Act for securing the Protestant Keligion and Presbyterian Church Government,' and every clause, matter and thing in the said articles and act contained, shall be, and the said articles and act are hereby for ever ratified, approved and confirmed." Sect. 11. " The said act passed in this present session of parliament, intituled, ' An Act for securing the Church of England as by Law established,' and all and every the matters and things therein contained, and also the said act of parliament of Scotland, intituled, ' An Act for securing the Protestant Religion, and Presbyterian -Church Govern- ment,' with the establishment in the said act contained, be and shall for ever be held and adjudged to be and observed as fundamental and essential conditions of the said union, and shall in all times coming be taken to be, and are hereby declared to be essential and fundamental parts of the said articles of union ; and the said articles of union so as aforesaid ratified, approved and confirmed by act of par- liament of Scotland, and by this present act, and the said act passed in this present session of parliament, intituled, ' An Act for .securing the Church of England as by Law established,' and also the said act passed in the ])arliament of Scotland, intituled, ' An Act for securing the Protestant Religion, and Presbyterian Church Government,' are hereby enacted and ordained to be and continue in all times coming the complete and entire union of the two kingdoms of England and Scotland." In 1711 an act was passed (i) " To prevent the dis- turbing those of the episcopal communion in Scotland in the exercise of their religious worship, and in the use of the liturgy of the chiu'ch of England, and for repealing an act passed in the parliament of Scotland, intituled, ' An Act against irregular ba])tisms and marriages.' " This statute of the Scotch parliament was made in 1695, and framed in a spirit of persecution, similar to that which inflamed {h) 10 Ann. c. 10. CHURCH IX SCOTLAND. 2221 the most bigoted period of the Roman church. For it inflicted perpetual imprisonment or exile on all members of the Episcopalian Church, who, being expelled from their churches, should presume to baptise a child or solemnize a marriage. The next act affecting the Episcopal Churcli Avas passed in 1718 (c) ; its object was to secure the House of Brunswick against the Pretender ; it therefore pre- scribed an oath of allegiance to King George and of abju- ration to the Pretender, to be taken by all ministers of the Episcopal Church, and it required every episcopal con- gregation " to pray in express Avords" for the king and the royal family. This act was followed by 19 Geo. 2, c. 38, and 21 Geo. 2, c. 34, passed in 1748. These statutes had the same purpose as that of George the First, namely, of securing the reigning family against political disaffection. But 21 Geo. 2 contained a clause (s. 13), which, in order to remove any doubt as to the qualification required by the former act for episcopal ministers, expressly enacted that any other letters of orders than those granted by some bishop of the Church of Enciland or Ireland should be an insufficient qualification. The next act (32 Geo. 3, c. 63), relieved the members of the episcopal communion from many of the penalties and restrictions imposed upon them by former statutes, but it rendered ministers of that communion in Scotland incapable of taking any benefice in England unless ordained by an English or Irish bishop. In 1840 an act, 3 & 4 Vict. c. 33, very important in 3 & 4 Vkt. its bearing upon the civil status of the Episcopal Church c. 33. of Scotland, Avas passed. This act, as regards Scotland, has since been repealed by the following statute, Avhich contains the existing law : — In 1864, 27 & 28 Vict. c. 94 was passed, entitled " An 27 & 28 Vkt. Act to remove disabilities affecting the bishops and clergy ^- ^'*- of the Protestant Episcopal Chiu-ch in Scotland." It recited 32 Geo. 3, c. 63 ; 3 & 4 Vict. c. 33, and 59 Geo. 3, c. 60(^/), and proceeded to state as follows : — *' And whereas doubts may arise after the passing of this act whether the pro- visions of the said last-recited act Avould apply to per- sons admitted into holy orders by bishops of the Protestant Episcopal Church in Scotland, and it is expedient that such doubts should be removed ;" and then enacted as folloAvs: — Sect. 1 . " The said ninth section of the said first-recited Sect. 9 of 32 act is hereby repealed." ^^"- ^ ^- ^^' Sect. 2. " The Avords ' Protestant Episcopal Church ^f'\. ' r . 1 ^, ,,,,,,, , n \ • 1 Definition ot in hcotland shall, tor the purposes oi this act, mean the " notcstant (c) 1 Geo. 1, c. 29. (r/) Vide infra. Tait X., Chap. VI., pp. 2276, 2282. CHI lit 11 ov i:.\(;lam) in uklation to other churches. Episcopal Clnirch in yt-otlaiul."' 3 cSi 4 Vict, c. :i;{, in part repealed. As to api>liea- tion of pro- visions of 59 Geo. 3, c. CO. Persons ad- mitted into lioly onlers liy Msiiops in Scotland not to 1)0 admitted to benefices, \-c. in Kn^y thcreot", is hereby repealed." Sect. 4. " The jirovisions and enactments of the said last-recited act shall not be or be held to be a])plicable to any person admitted into holy orders by a bishop of the Protestant Episeo])al Church in Scotland." Sect. 5. " jS'o ])er.son admitted into holy orders by any bishop of the Protestant JCpiscopal Church in Scotland shall be entitled to be admitted or instituted to any benefice or other ecclesiastical preferment in Kno;land or Ireland, Avithout the consent and approbation of the bishop of the diocese in which such benefice or other ecclesiastical pre- ferment may be situated ; and any such bishop shall be entitled to refuse such consent and approbation without assigning reason for such refusal, any law or pi'actice to the contrary notwithstanding ; and every such person seeking to be admitted or instituted to such benefice or other ecclesiastical preferment, or to Jbc licensed to any curacy, shall, before being admitted, instituted, or licensed, make and subscribe before such bishop every such decla- ration and subsci'iption as he would by law have been re- quired to make and subscribe at his ordination if he had been ordained by a lji.shop of the united Church of Englatid and Ireland : Provided always, that the provisions of this section shall not ai)ply to any such person who shall hold or shall have held any benefice or ecclesiastical preferment in England or Ireland." Sect. 6. " Any person admitted into holy orders by any bishop of the Protestant Ejiiscopal Church in Scotland, and Avho does not hold or who has not held any benefice or ecclesiastical preferment in England or Ireland, Avho shall knowingl}' officiate on more than one day within three months in any church or chapel in any diocese in England or Ireland, Avithout notifying the same to the l)ishoj) of the diocese in which such cluu'cli or chapel is situate, or who shall officiate contrary to any injunction of the bi.shop of the dioce.sc imder his hand and seal, shall for every such offence forfeit and j)ay the simi of ten pounds to the governor (sic) of C^ueen Anne's Bounty, to be re- covered by action of debt, brought in the name of the treasurer of the said boimty, in any of her Majesty's courts of record at Vrestminster, or in the coiu*t of session in Scotland, at the suit of the public prosecutor, or in Ire- land in any court of connnon law in the name of the ecclesiastical commissioners." CHURCH IX SCOTLAND. - 2223 The history of the external discipline and government Discipline of of the Church in Scotland is very concisely and i^er- ?*" Episcopa- spicuously stated m the preiace to the revision oi their canons in 1839 (d). After a brief exposition of the doctrine of apostolical succession, it proceeds as follows : — " Such is the form, in which has been regularly handed down the ecclesiastical authority of the Episcopal Church in Scotland ; a Church in itself completely constituted and organized, in respect of spiritual power and sacred minis- trations, by its own bishops, priests, and deacons. In this character, being in full communion with the United Church of England and Ireland, and adopting as the standard of her faith the thirty-nine articles of religion, as received in that Church, she claims the authority which, according to the thirty-fourth of those articles, belongs to ' every particular or national church, to ordain, change, or abolish ceremonies or rites of the Church ordained only by man's authority, so that all things be done to edifying.' " The doctrine of the Church, as founded on the autho- rity of the Scripture, being fixed and immutable, ought to be uniformly received and adhered to, at all times and in all places. The same is to be said of its government, in all those essential parts of its constitution, which were ])re- scribed by its adorable Head. But in the discipline, which may be adopted for furthering the purposes of ecclesiastical government, regulating the solemnities of public Avorshij:*, as to time, place, and form, and restraining and rectifying the evils, occasioned by human depravity, this character of immutability is not to be looked for. The discipline of the Church is to be determined by Christian wisdom, pru- dence, and charity ; and when any particular Church has drawn up a body of canons for its own use, regard has always been had to its peculiar situation at the time when its discipline was thus regulated. In one country, a pure Apostolic Church is found to be legally established, amjily endowed, and closely incorporated with the State ; while in another, forming a part of the same empire, it is only tolerated by the State, and as to all matters of spiritual concern, derives no support from the civil government. " Such is precisely the difference of situation between the Established Church of England and Ireland (^), and the unestablishcd, the merely tolerated Episcopal Church in Scotland. In things of a purely ecclesiastical nature, (<-/) Sec the Code of Cannns of (r) Tliis -n-as before the Irish tlie Episcopal Churcli in 8cot- Church was disestablished by land, printed at Edinburgh, 32 & 33 Viet, c. 42, in 1801). 1838. 2224 CIIUUCII OF KXGLAM> IN UKLATION TO UTni:U CTIUUCIIES. Disiiplinc of einbraciiii;: the doctrino and <;oveninicnt of" tlie Church, the K|.iM(.i.a- ^|^ iiiiili ijcciiUar to C'hristiaiiitv, and the mode of trans- mittni}^ an apostolic ei)isc()])acy — in these respects the Jvclornu'd Episcopal C'lnnrh is the same in every part of the British em])ire. That system of relio;ious faith and ccck\siastical orck'r, by \vhich it is distinguished in every district of England and Ireland, is also its mark of distinc- tion to the remotest corner of Scotland ; and although in this country it is wholly uncoimecteil with the Slate in the exercise of its sj)ii"itual authority, yet does it still de|)end, under God, on the civil power for peace and protection, in the enjoyment of all its rights and ])rivileges, as a society purely spiritual, and constituted for the purpose of afford- ing the means of grace and salvation to the members of Christ's mystical body. " Mewing it in this light, the clergy of the Episcopal Church in Scotland declare, m the most sincere and un- ecpiivocal manner, that the ecclesiastical commission handed down to them has no relation to such secular powers and ])rivileges as are peculiar to a national establishment ; nor does it in the least interfere Avith the rights of the temporal estate, or the jiu'isdiction of the supreme civil magistrate. On the contrary, the clergy of this Church, of every rank and order, feel no hesitation in asserting and maintaining that the king's majesty, to whom they sincerely promise to l)ear true allegiance, is the only ' supreme governor within liis dominions, whose prerogative it is to rule all estates and degrees committed to his charge by God ; and to restrain, with the civil sword, the stubborn and evil doers of every denomination, clergymen as well as laymen. They further ' declare, that no foreign prince, person, ])re- late, state, or potentate, hath, or ought to have, any jin-is- diction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm ;' and they do, from their hearts, ' abhor, detest, and abjure, as impious and heretical, tliat damnable doctrine and position, that ]irinces excommunicated or dej)rived by the l*ope, or any authoi'ity of the see of Kome, may be deposed or murdered by their subjects, or any other whatsoever.' " Such are the solemn acknowledo^ments of the king's sovereignty required from candidates for holy orders in the United Church of England and Ireland. A similar obli- gation, as extended to all ecclesiastical persons, was en- forced in a code of canons intended for the Established Church of Scotland in the reign of Charles the First. IJut the attempt to introduce a proper .system of discipline, conjoined to the uniform use of a Liturgy, was completely frustrated by the events of that disastrous period ; and the CHURCH IN SCOTLAND. 2225 troublesome state of affairs in the two succeeding reigns was equally unfavourable to the establishment of order and unity in the Church. Tlie Revolution in 1688 set aside the legally established episcopacy of Scotland ; and for several years after the shock which our Church received b}^ the termination of that national struggle, the bishops had enough to do in keeping up a pure episcopal succes- sion, till it should be seen what, in the course of Provi- dence, might be further effected towards the preservation, though not of an Established, yet of a purely primitive Episcopal Church, in this part of the kingdom. For this purpose a few canons were drawn up, and sanctioned by the bishops, in the year 1743, Avhich, though very Avell calculated to answer the purposes intended by them, while the Church was under legal restraint and threatened with persecution, have yet left room for considerable enlarge- ment, and require to have embodied with them, or addcline of discussion (luriiic; several successive days, llic synod so the K])isco- assembled and constituted did, and licrehy do, adopt and j.a lan u ic . j.j^j^j^j.|qj^ I]^^ following revised and amended code of canons, and declare them to be in future the stated rules and regulations for preserving order and discipline in the said Church in Scotland. In testimony whereof, "we, the members of the said synod, have hereunto annexed our names and designations in the registei*-book of the Epis- copal College, and we have, moreover, entrusted to a com- mittee in Edinburgh the duty of causing the revised and amended canons now approved and sanctioned to be faith- fullv inserted in the foresaid register, and together Avith this introduction, to be carefully printed for the general use of the Church. For these purposes, an authentic copv, verified by the primus, the clerk of the E])isco])al College, and by the prolocutor of the second chamber, in the presence of the synod, has been given to the com- mittee, which they are required to preserve "when these purposes are attained, along with the register-book afore- said; committing the custody thereof to ilie clerk of the Episcopal College, whose duty it is to preserve the said register, and the general records of the Church." Primvs of the Before the distinction of archbishop was introduced into Episcopalian Scotland, one of the bishops had a precedency under the title of Primus Scotoriim Episcopus ; and the Synod of 1838, in compliance with the practice of the E])iscopal College for the last century, decreed that the bishops should choose a pj-imus Avithout res})ect to seniority of consecration or pi*ecedency of diocese, Avho should enjoy no other privilege among the bisho])s but the right, imder particular restrictions, "of convocating" and pre- siding. J5ut he is empoAvered, Avith the advice and consent of his colleagues, to determine any case relating to disci- pline in a vacant diocese, and to provide for the perform- ance of any episcopal office that may be necessary. To the primus also the decease of CA'ery bishop must be noti- fied by the dean of the diocese. This dean is chosen from the presbyters, and his a])]iointment is imjieratiA-e on every bishop. The spiod consists of two chambers: the first, of the bishops only; the second, of -the deans and a repre- sentatiA'e of the clergy elected by each diocese. There are six sees. — 1. Edinbm*gh. 2. St. AndrcAvs, Dunkeld and Dunblane. 3. Al)erdcen. 4. Argyle and The Isles. 5. Brechin. 6. Glasgow and GalloAvay. 7. Moray and Iloss (/). (/) The case of Forbes v. Edcii, L. R., 1 Sc. & Div. 6G8, will be mentioned hereafter. CHURCn IN SCOTLAND. 2227 In the year 18G3, Dr. Trower, a priest by ordination Bishopric of of an English bishop, a bishop by consecration of the Gibraltar- Scotch bishops, was appointed by the crown to the epis- ^^'^^^^ Bishop. copal see of Gibraltar. In this case the Archbishop of Canterbury, to whose metropolitan see the bishopric of Gibi'altar is subject, gave "due and canonical mission" to the Bishop of Gibraltar so appointed by letters patent. The letters patent were as follows: — " Victoria by the grace of God of the United Kingdom Letters patent. of Great Britain and Ireland queen, defender of the faith, To all to whom these presents shall come greeting : Whereas, by our letters patent under the great seal of our United Kingdom of Great Britain and Ireland, bear- ing date the 2 1 st day of August in the year of our Lord 1842, we did found and create a bishop's see within our town and territory of Gibraltar, and did constitute the church of the ' Holy Trinity ' within our said town of Gibraltar to be the cathedral church of the said see, and did ordain that the whole town of Gibraltar should hence- forth be a city and be called the ' city of Gibraltar,' and did ordain, make, constitute and declare the said city and all the territory comprised in our said possession of Gibraltar and its dependencies to be the diocese of the Bishop of Gibraltar and of his successors, and did like- wise place under the spiritual and ecclesiastical jurisdiction of the said bishop and his successors and of his officers named in the said letters patent all chvu'ches, chapels and other places within our island of JNIalta and its depen- dencies which then were or might thereafter be founded, set apart or used for the service of Almighty God accord- ing to the ritual of the united Church of England and Ireland, and more especially the church founded by the pious munificence of our deai'ly-beloved aunt Adelaide, the queen dowager, in the city of Valetta, and did name and aj^point our well-beloved George Tomlinson, doctor in divinity, to be ordained and consecrated bishop of the said see : and whereas the said George Tomlinson was duly ordained and consecrated bishop of the said see : and whereas the said George Tomlinson is now dead and the said see of Gibraltar has thereby become and now is vacant ; now Ave, having great confidence in the learn- ing, morals and probity of our well-beloved The Ilight Ileverend Walter John Trower, doctor in divinity and bishop, do name and ajipoint him to be bishop of the said see of (Jibraltar for the term of his natural life, suly'ect nevertheless to the right of resignation in the aforesaid letters patent expressed : and do hereby signify to The 2228 ( in IICII OF KN(iLANI) I\ IIKI.ATIOX TO OTIIKR CHURCIIKS. I-cttcrs imtcnt Most Ucvcrciul Father in (iod Charles Thomas by Divine Providence Archbisliop of Canterbury, Primate of all Enghmd and jSIctropolitan, our nomination of the said AValter John TroAver to be the bishop of the said see and diocese : and whereas the said Ki^ht Keverend Walter John Trower has been already duly eanonically ordained and consecrated a bishop, and cannot therefore be ordained and consecrated by the Archbishop of Canterbury, we do hereby expressly declare that so much of our said letters patent as require the Bishop of Gibraltar to be consecrated and ordained by the said Archbishop of Canterbury shall be and are hei'eby revoked, abi-ogated and of none effect so fiir as they would or might otherwise in any way affect the appointment of the said Right lieverend Walter John Trower to the bishopric of Gibraltar : and we do require and by the faith and love whereby he is bound to us com- mand the said Most lleverend Father in God the Lord Archbishop of Canterbury to administer to the said Right Reverend ^Valter John Trower the usual oaths of allegi- ance and supremacy and the oath of due and canonical obedience to the Archbishop of Canterbury for the time being as his metropolitan : and we do direct that after the said oaths shall have been so administered and taken the same shall be recorded in the Registry of the Court of the Vicar General together with the due and canonical mission from the said archbishop to the said Right Reverend A\'alter .John Trower to be the bishop of the said see and diocese, and diligently to do and perform all other things appertaining to his office in this behalf w'lih effect : and we do ordain and declare that the said Right Reverend Walter John Trower, so by us nominated and appointed, may by virtue of such nomination, appointment and mis- sion enter into and possess the said bishop's see as bishop thereof without let or impediment from us, our heirs or successors, and in as full and ample a manner in every respect, and with the same rights, titles, poAvers, privileges and obligations as his predecessor enjoyed and was subject to, as upon reference to our said letters patent founding the see of Gibraltar (dated the 21st day of August, 1842) will more particularly appear : and we do by these presents give and grant to the said Right Reverend Walter John Trower, aforesaid, full power and authority to perfoi-m all the functions peculiar and appropriate to the office of bishop within the said diocese of Gibraltar. Now we do declare our pleasure to be, that all provisions whatever contained in the before-recited letters patent, so far as they relate to the said George Tonilinson and his successors, CHURCH IN SCOTLAND. 2229 bishops of Gibraltar, shall (except so far as they are as aforesaid revoked) apply to the said Walter John TroAver so long as he shall be and remain bishop of the said diocese : And to the end that all things aforesaid may be firmly holden and done, we will and grant to the aforesaid Walter John Trower that he shall have onr letters patent under our great seal of our united kingdom duly made and sealed. In witness whereof we have caused these our letters to be made patent. Witness ourself, at West- minster, the 12th day of September in the 27th year of our reign. " By warrant under the queen's sign manxxal. " C. ROMILLY." The form of giving due and canonical mission by the archbishop was as follows : — " We, Charles Thomas, by divine providence Arch- Mission, bishop of Canterbury, primate of all England and metro- politan, in obedience to the command contained in certain letters-patent of her most gracious INIajesty Victoria by the grace of God of the United Kingdom of Great Britain and Ireland queen, defender of the faith, bearing date the 12th day of September in the 27th year of her reign, appointing you the Right Reverend Walter John Trower, doctor in divinity and bishop, to be bishop of the see and diocese of Gibraltar, having duly administered to you the usual oaths of allegiance and supremacy, and also the oath of due and canonical obedience to the Archbishop of Canterbury, for the time being, as your metropolitan, and you the said right reverend the bishop having taken the oaths so as aforesaid prescinbed: Now we, the archbisho}) aforesaid, as your metro])olitan, do give you the Right Reverend Walter John Trower the bishop aforesaid due and canonical mission to be bishop of the said see and diocese of Gibraltar ; and do direct the said oatlis, together with the due and canonical mission from us as aforesaid, to be recorded in the registry of the court of our vicar- general. " C. T. Cantuak." The notarial act which recorded the proceedings is to Notarial act. be found in the registry of the vicar-general. CIIURCn OF ENGLAND IN RELATION TO OTHER CHURCHES. CHAPTER III. CnURCII IN THE COLONIES. Sect. 1. — History of the Est ahlishment and Organization of the Church in the Colonics. 2. — General Status of the Church in the Colonies. 3. — Cliurch in the West Indies. 4. — Church in Canada and other Colonies. Sect. 1. — History of the Establishment and Organization of the Church in the Colonies {g).^ The extension of the Chnrcli of England beyond the seas began in the early age of English colonization. Virginia was the first land which it reached ; and Thomas Hariot, a graduate of Oxford, who, as a mathematician and astro- nomer, accompanied Sir W. Raleigh, in 1584, has been called the first English missionary to the New World. The charters granted by James the Eirst to the Virginia Company were accompanied by orders for preaching the word of God according to the rites and doctrines of the Church of England, both " in the colonics and among the savages bordering ii])on them." At Jamestown, in Vir- ginia, the first English church was built by the Rev. R. Hunt about 1607. Tithes, glebes and other provision for the clergy were made in Virginia by the local legis- lature. There it was that King William and (^ueen Mary erected the college which was called after them, and thither an ecclesiastical commissary, the Rev. J. Jilair, was sent in their reign. In Maryland, in 1692, the local assembly provided a legal maintenance for ])arochial clergymen, and the Rev. T. Bray was sent thither as Bishop Compton's commis- sary at that time. (r/) For this skctcli I am, with Church of Enghmd in the North very sligiit alterations, indebted American Colonies previous to to the Rev. W. T. Bulloock, the Independence of the United the present secretary of the States." Rev. E. Hawkins, Lon- S. P. G. See also "Historical don, 1845. Notices of the Missions of the CHURCH IN THE COLONIES. 2231 These two colonies were not, liowever, tlie only places Early in which clergymen of the Church of England went to organization, minister to congregations of their fellow-countrymen in foreign parts : but there only and in some of the West Indian Islands they were found in sufficient numbers to lead to any local attempt at organization. All British subjects in foreign parts were declared by an order in council in the time of Charles I. to be under the juris- diction of the Bishop of London as their diocesan. When the office for the ministry of baptism to adults was inserted in the Prayer Book in 1662, one of the reasons assigned in the preface for it was that it may be always useful for the baptising of natives in our plantations (h). The credit of the first attempt to organize effectually the Church abroad is due to Archbishop Laud, who proposed, in 1638, to send a bishop to New England ; and the next to Lord Clarendon, who obtained the sanction of Charles II. to a proposal for a bishop of Virginia. These and many sub- sequent efforts to supply the first necessity for church organization Avere frustrated by the opposition of parties acting upon mixed political and religious grounds. The multiplication of ministers went on in the colonies. The merely casital supply fi'om home was unequal to the demand. The " New England Company," as it is now called, was founded by an Act of the Long Parliament in 1649 for the propagation of the gospel in New England: an endowment was provided for it by parochial collections in England and Wales. After the Kestoration it was incorporated by charter 14 Charles II. 1662-3, when Clarendon and R. Boyle Avere appointed among its go- vernors. Its endoAvments, which are very considerable, are regulated by three decrees in Chancery (1792, 1808, 1836), and are noAv applicable to tAvo objects : to promoting and propagating the Gospel of Christ among the heathen nations in Avhat Avas formerly called Ncav England (betAveen 40^ and 48° N. L.) and parts adjacent in America, and to advancing the Christian religion among Indians, Blacks and Pagans in some or one of the British plantations and colonies. The ministers supported by this Company have (//) "Together Avith an office times crept in amongst us, is now for the baptism of such as are of become necessary, and may be riper years ; Avhich, although not always useful fortlic baptizing of so necessary when the former natives in our plantations and book was compiled, yet by the others converted to the faith." — growth of anabaptism, through Preface to the Book of Common the licentiousness of the late Prayer. 2232 rnrnrii of r.xnLAXi) i\ Kr.r.ATioN to otiiku ciirRCiiES. always been cliicllv tli()u. ii i • i ^i r-i i Af ration. j\Iackcn/,ic Kiver, could be assigned ;■ t lie tliurcli Alis- sionary Society is willing to liavc two of its missionaries consecrated, and to allow them, for the present, suitable stipends. " The Bishop of Cohmibia long ago proposed a division of his diocese, which now includes a ])art of the continent as well as Vancouver's and (^ueen Charlotte's Islands ; and a small fund has been collected towards an endowment for a diocese of (4) JVcw IVcstminster. " West Indies. — The disendowmcnt of the West Indian Church renders it desii'able in the lifetime of the ])reseiit bishops to collect an endowment fund for each diocese, exce])ting any which may perhaps be endowed by the local legislatures. Thc old dioceses are (5) Jamaica, (G) Bar- bados, (7) Antifjna, (8) Nassau, and (9) Guiana, and to these must be added the new diocese of (10) Trinidad, and possibly (11) Honduras. Some grants in aid, in pro- portion to the need of each case, should be given to en- courage these dioceses to provide endowments for their bishops. The case of the diocese of Jamaica is distin- guished by the fact that the Bishop of Kingston, by whom it is now administered, has lost his episco])al income of 1,200/. since the death of the Bishop of .lamaica. " Africa. — The missionary bishopric of the (12) Niger Territory has no endowment. The Church Missionary Society has hitherto supjiorted Bishop CroAvther, whose ministrations are carried on in the region adjoining the colony of Lagos, including the Niger and its tributary the Bonny. *' A bishopric in connection with the West Indian Mis- sion to West Africa was long ago projected. If this is to be effected, the (13) Isle dc Los, now a station of the Society for the Pro])agation of the Gospel, would form a healthy and convenient site for a bishopric. *' A small endowment has already l)een provided for the ai'clulcaconry of (14) Georf/e, in the hope that it Avill be separated at no distant time from the diocese of Capetown and constituted a separate bishojn-ic. This is indeed an ni'gent claim. The liishop of Capetown has expressed, to those to whom he has spoken in confidence, his convic- tion that, unless some such effectual aid is afforded him, he must ere long sink under his labours (?(!). (/() lie has so sunk and is dead. CHUECn IN THE COLONIES. 2237 " Tlic extensive missionary diocese of ( 15 ) Bloewfontcin, Avliicli is now burdened with the additional care of the African Diamond Fields, requires help to complete its endowment. The bishop is at present entu'ely supported by an annual grant from the Society for the Propagation of the Gospel, and the people of the Orange River Terri- tory are trying to collect part of an endowment. " In the (16) Transvaal Republic, there are not only multitudes of unconverted Baralongs and Matabele, but also a large number of English residents in the towns and settlements for whom a bishop is required. " The large district of (17) Kaffraria and (18) Al- fredia, between the dioceses of Grahamstown and Natal, Avill at no distant time afford a field for two bishops : the support of one would be undertaken by the Scottish Epis- copal Church. " An endowment for at least one missionary bishop in (19) Mada(jascar should be at once pro^dded. " Asia.~T\\Q diocese of Calcutta (72,000,000 popu- lation) still remains under one bishop. (20) Lahore or Agra, (21) Burmali, British or Independent, and (22) Singapore in the Straits, now a separate colony, have been suggested by local authorities as the sees of future bishops. (23) Tinnevellg, with its 40,000 native christians, 18,000 catechumens, and 80 native clergy, distant 330 miles from Madras, was long ago pointed out as needing a resident bishop. These, and other cases in India which are most urgent, might be the object of a general collection for Indian bishoprics, to be applied by the Colonial Bishoprics' Council as opportunities are afforded in that vast heathen dependency and the missionary districts near it. " The Church Missionary Society has expressed its readiness to pay, for the present, the salary of an additional bishop in (24) China, and steps have been taken Avith a view to an appointment. Ultimately his salary should be provided for by a permanent endowment. " Australasia. — The endowment of a new bishopric in (25) North Australia, has already been commenced. A division of the large diocese of IVIelbourne by making (26) Ballarat the site of a new bishopric has been proposed, and it seems to be called for both for the relief of the over- burdened bishop and by the increasing population of the colony. The diocese of (27) Honolulu is without endow- ment, and it is desirable that some assistance towards it shoidd be given from this country, which has supplied Hawaii with its first two bishops. 2238 CHURCH OF 1:N(;LAXD IX R"LATIOX TO OTHER CnURCHKS. Colonial IJislioprics' Council. Second dcda- nition. Organization and sjuods. In America. " Of the above twenty- seven liislioprics, eight arc ah'eady in existence and nineteen are new. It is not proposed by the council tliat the entire endowment of these sees should be raised in ICngland, but that the chris- tians in each cotnitry (specially those which are already under a colonial bishop), and the merchants who derive wealtli from thence, sliould unite accordino; to their ability with the Colonial l>isho])rics' Council, with the Church Societies, and others in England, in providing the neces- sary funds. " Such is but a jiortion of the work now before us. Will the Church of iMigland, in the sight of these needs, and in gratitude to God for the unequalled mercies it has itself received, enable us to inidertake the discharge of so urgent and so blessed a duty as to ]">lant the church in its integrity in those wide districts? Vie appeal to it earnestly to grant us the funds we require. Never was it more true, never perhaps Avas it more needful to repeat the truth: ' The Harvest truly is jdenteous, hut the labourers etc. (Here follow the signatures of most of the English and Irish prelates). The establishment of bishops in the colonies was not the only step required for the organization of a Church whose members, scattered over forty colonies, are ministered to by more than 2,000 clergymen. Diocesan and provincial synods became a matter of necessity to insure harmonious action, and these were constituted in the course of a few years by independent and almost simultaneous efforts in America, Australia, New Zealand and Africa. Only the most important of these efforts can be recorded here. The clergy and laity present at the triennial visitation of the diocese of Toronto in 1851, determined that it was exjiedient and desirable to ap])ly to the croAvn for the establishment of a diocesan synod or convocation, consist- ing of the laity as well as the clergy. And at the next triennial visitation, in 1853, it was resolved that this meeting, compo'^ed of the bishop, clergy and lay repre- sentatives, are the diocesan synod of this diocese. On their petition an act ( 19 & 20 A^ict. c. 21, Canadian) Avas passed in Canada in June, 1856, and assented to by her Majesty in ]May, 1857, to enable members of the united Church of Englar.d and Ireland in Canada to meet in synod, both in their several dioceses, and in general assembly. This act was afterwards explained by 22 Vict. c. 139, Canadian. CHURCH IN THE COLOXIES. 2239 The act which incorporates the Diocesan Church Society is 7 Vict. c. 28, Canadian. The synod of the united Church of England and Ireland in the diocese of Toronto consists of the bishop, the priests and deacons licensed by the bishop, or holding office in any college or school under his jurisdiction, and not under ecclesiastical censure ; and lay representatives, not more than three from each parish. The representatives must be male communicants of at least one year's standing, elected annually by the laymen of twenty-one years of age and upwards within the parish, who have declared themselves in writing in a book to be members of the united Chvu'ch of England and Ireland, and to belong to no other religious denomination. The synod meets annually. No act is valid without the concurrence of the bishop and of the majority both of the clergy and the laity present; and when a division takes place, the lay representatives vote by parishes, the majority being considered as the vote of the parish. The provincial synod of the imited Church of England and Ireland in Canada held its first meeting on 10th September, 1861. It consists of the bishops having sees or assisting within the province, and of delegates chosen fi*om the clergy and laity, twelve of each order from each diocese. The bishops deliberate in one house, tlie dele- gates in another. The second Wednesday of September in every third year is the ordinary time of meeting ; and a majority of the bishops, with one-fourth of the clerical and one-fourth of the lay delegates, constitutes a quorum. The meti'opolitan presides in the upper house, and an elected prolocutor in the lower. No proposition is valid until it has received the separate sanction of both houses, which must be declared by the president in waiting. Among its canons are some on the nomination and election of a metropolitan, on his powers, on the constitution of his court of appeal, on the trial of a bishop, on the submission of clergy to the canons of the provincial and diocesan synods, &c. On October 1st, 1850, Bishop Broughton of Sydney, with In Australia. his suffi-agan bishops of New Zealand, Tasmania, Adelaide, Melbourne, and Newcastle, held a memorable conference at Sydney, and published their decisions and opinions on various doctrinal and ecclesiastical matters in a report. They stated the necessity for duly constituted provincial and diocesan synods composed of bishops and clergy, and meeting simultaneously with provincial and diocesan con- 2240 CllUIiCll OF ENGLAND IN IlKLATION TO OTIIKU CHURCHES. ()rj,'iiiiiznt:on vcntioiis conii)o.sftl of (.'lectod Invmcn ; and tlicy orcranizcd ami s\ nods. .1 \iTi) i i- \i- • ' tlie Australian JJuard 01 ^Missions. n 2 u^tr;l la. j^^ A])ril, 1860, at a coni'civncc liolden in Sydney, certain constitutions ■were a^jrcod to for the nianaffcmeut of the united Church of England and Ireland in the colony of New South AVales. Synods are to he holden annually in each diocese under the presidency of its bishop, Avho does not vote. The number of lay rejirescntatives must not exceed in Sydney and CJoulburn thrice, and in Newcastle twice, the numl)er of clergy summoned. One-foiu'th of the members of each order constitute a quorum. Votes are not taken by orders unless desired in Sydney and Goulburn by five members, or in Newcastle by the bishop or five members. If the bishop withholds his assent to any ordi- nance, it may be referred for determination to a provincial spiod. In Sydney and Goulburn all clergymen licensed to a separate cure of souls, and in NcAvcastle all licensed clergymen, are summoned to the diocesan synod. Hepre- sentatives are elected in each separate cure of souls by the male occupiers of seats who are twenty-one years old or more, and declare themselves in Avriting to be members of the united Clun-ch of England and Ireland. The repre- sentatives in Sydney and Goulburn must be male commu- nicants of full age ; two from each cure, imless more than fifty qualified electors meet, when there may be three ; and in Sydney a clcrg}Tnan not licensed to a separate cure may be chosen a representative ; in Newcastle, the repre- sentatives must be lay communicants of full age, one from each cure, mdess more than thirty qualified electors meet, ■when they may choose two. A colonial or ]:)rovincial synod of the united Church of England and Ireland within the colony shall be holden once in eveiy three years under the presidency of the metropolitan bishop of Sydney; there shall be two houses, viz. of bishops and diocesan repre- sentatives ; in the latter house the voting is by dioceses, three clerical and three lay rejiresentatives being a quorum for each diocese. The colonial synod by its decisions binds all members of the Church Avitliin the colony. No synod shall make any alteration in the articles, liturgy, or for- mularies of the Church, except in conformity mth any alteration made by competent authority of the Church in the United Kingdom. All ordinances passed by any synod arc to be sent to the Archbishop of Canterbury. An act nfterwards passed the colonial legislature giving ]))nding force to the synodal constitutions in connexion Avith the holding of property. CHURCH IX THE COLONIES. 2241 The first diocesan conference in Melbourne was liolden in 1851 ; and some unsuccessful attempts Avere made to carry a bill through the local legislature. After a second diocesan conference in 1854, the legislature passed an act to enable the bishops, clergy and laity of the united Church of England and Ireland in Victoria to provide for the regulation of the affairs of the said Church. The royal assent was given to this act in 1856. It enacts that it shall be lawfld for any bishop of the united Church of England and Ireland in Victoria to convene an assembly of the licensed clergy and the laity of the Church in his diocese. Their regulations bind oiily the bishop, clergy and laity of the Church, and are not valid without the concurrence of the three orders voting separately. The assembly may establish a com- mission for the trial of ecclesiastical offences. The right of appeal to the Queen in council, to the Archbishop of Canterbury, and to the metropolitan, is preserved. One or more (not exceeding four)- lay representatives are elected in each cure of souls by the laymen therein, who are of the age of twenty-one years, and have declared in writing that they are members of the united Church of England and Ireland, and belong to no other religious denomination. The representatives (one for every fifty electors) must be communicants of at least a year's standing. Regulations passed by the assembly must be sent to the Archbishop of Canterbmy, to the metropolitan, and to the Queen, and may be disallowed by her JMajesty. So soon as a province shall have been constituted in Victoria, it may convene the bishops thereof, and require them to convene representatives of their diocesan assemblies to meet in jjrovincial assembly. On October 9th, 1855, the bishop, clergy and lay repre- sentatives of the diocese of Adelaide in synod assembled, signed and sealed certain fundamental provisions and regu- lations for the government of that diocesan church, which were declared to be a consensual compact between the sub- scribing parties. The diocese is declared to be a part of the united Church of England and Ireland, and to main- tain the doctrine and sacraments of Christ as that Church receives them, together with the Book of Common Prayer. The synod consists of the bishop, licensed clergy (deacons ha\ang no vote), and synodsmen (four for each city church, and two for each country church) being in full communion, and elected annually, in the rcs]iective congregations, by the stated attendants at the church who have signed a declaration that they are members of the united Church of England and Ireland, and belone: to no other religious 2242 CHURCH of England in relation to other churches. Orilwp of Nalal v. Gladstone, L. K , 3 Y.<[. 1 (18GG). CHURCH IN THE COLONIES. 2249 and respondent respectively Bishops of Cape To-\vn and Natal, and that the respondent's patent Avas subsequent to the appellant's resignation, but prior to his second j^atent as metropolitan, the appellant had ceased on such resigna- tion to be a trustee of the land and the cathedral church, or to have any estate or right to interfere with the respon- dent's free access to and iise of such church ; and. Second, that it was competent to the crown at the date of the letters patent to the respondent, to " ordain and declare that the church in the city of Pietermaritzburg shall thenceforth be the cathedral church and see of the respondent and his successors, Bishops of Natal." And the decree of the court below was varied by its being declared, that the respondent, as Bishop of Natal, should have free and uninterrupted access to the land and premises in the grant of 1850, for the purpose of enjoying and exercis- ing all rights, privileges and immunities Avhicli had hitherto been enjoyed and exercised, or ovight to be enjoyed and exer- cised, by the Bishop of Natal, as such bishop or otherwise, in reference to or within the cathedral thereon, and its ap- purtenances ; and that the appellant, the Bishop of Cape ToAvn, and his agents, be restrained from in any manner interfering with such access, enjoyment, or exercise ; saving, however, to any, except the appellant, any rights in refer- ence to the cathedral church which they also enjoyed (;•). Since the decisions in Long v. Bishop of Capetoicn and Letters patent. Re Bishop of Natal, the government has discontinued the issue of letters patent to bishops in colonies possessing an independent legislation. In 1867, the court of chancery of the Bermuda Islands Ex parte made certain orders, the effect of Avhich was to refuse an '^^'*''''"«' application b}^ a clerk in holy orders for a writ de vi laicd removendd, to remove an opposition to his being inducted into a parish church in the island imder a mandate from the commissary of the Bisho]) of Newfoundland. In ex- plaining the reasons for refusing the writ, de vi laicd removendd, the chief justice, after stating that it was not competent to the crown to alter the constitution of the church in the colony by conferring by patent upon a bishop any coercive or judicial powers not granted by the imperial parliament or the local legislature, added, *' Although the institution of a clergyman to a benefice is not an act of coercive or contentious jurisdiction, yet it is not a mere ministerial act, but is of a judicial nature." (r) Bhliop of Cape Toimi v. Bhhnp of Natal, G Moo. P. C, N. S. 203 (18G9). P. VOL. II. 7 E 2250 cnuRcn of England in relation to other churches. Ex parte Thcre Avas an appeal from this sentence to the privy Jenkins. council in 1868. The ju(lension may be gi*anted to the bishop of Calcutta under 53 Geo. 3, c. 155, be granted to such bishop. By sects. 2 and 3 a second furlough allowance may be granted after five years ; but not more than one bishop is to have a furlougli allowance at any one time. By sect. 4, if the crown enable the bishop of jNIadras or Bombay to perform the duties of the bishop of Calcutta during his absence on furlough, such bishojj so performing the duties shall have an additional allowance of 10,000 company's rupees. By 34 & 35 Vict. c. 62, s. 1, " It shall be lawful for her jSIajesty to make such rules as to the leave of absence of Indian bishops on furlough or medical certificate as may seem to her expedient : Provided that no farther expendi- ture of the revenues of India be incurred thereby than is already authorized under existing acts of parliament ; and provided also, that the provisions of existing acts of parlia- ment are not interfered Avith by such rules so far as regards the present bishop of Calcutta." These tlu-ee bishoprics only are, as has been seen, the subject of parliamentary enactment, — an episcopate lamen- tably inadequate to the wants of India. The stipends and status of these bishops are indeed secured by statute ; but if the peculiar legal status of these bishoprics had been holden to prevent (whether by the appointment of suffra- gans or coadjutors or otherwise) the extension in India of the episcopate on the voluntary princi])le, now generally prevalent in the foreign dependencies of the croAvn, the advantage Avould have been very dearly bought. But, as has been stated, according to the second declaration of the colonial bishoprics' council, bishoprics at Tinnevelly, Lahore or Agra, Burmali and Singapore, are in con- templation. It has been observed that a bishopric of Colombo has been founded in Ceylon. A special act (32 & 33 Vict. c. 88) was passed to separate the Straits Settlements from the diocese of Calcutta, ( 2265 ) CHAPTER V. CHURCHES ATTACHED TO CONSULSHIPS. 6 Geo. 4, c. 87, wliicli regulates the payments of salaries c Geo. 4, c. 87 and allowances to British consuls at foreign ports, and the disbursements at such ports for certain public purjDOses, contains various provisions relating to churches and chap- lains attached to consulships. For by this act the Avhole management of the funds and the regulation of the expen- diture is under the control of the consul, and not of the ambassador ; and, by a strange anomaly, in those foreign courts where there is an ambassador and not a consul, there is no legislative provision for any chaplain at all. After reciting in sect. 10 as follows : " ' And whereas churches and chapels for the performance of divine ser- vice, according to the rites and ceremonies of the united church of England and Ireland, or of the church of Scot- land, have been erected, and proper grounds have been appropriated and set apart for the interment of the dead, in divers foreign ports and places, and chaplains have been appointed for the performance of divine service in the said churches and chapels, and are now resident in such foreign ports and places;' " and then declaring the expe- diency of encouraging this practice, it enacts " That at Provision for any foreign port or place in Avhich a chaplain is now, or suiipoit of shall at any future time be, resident and regularly em- ^^ foreio^'n ployed in the celebration of divine service, according to places where the rites and ceremonies of the united church of England chaplain ap- and Ireland, or of the church of Scotland, and maintained gui'^niav ad- by any voluntary subscription or rate, leaded among or vanceasum upon his majesty's subjects resortinor to or residino; at such ^l"*^^ ^° , r* » *J J %} O CD IlllOlint SLID" foreign port or place, or by any rate or duty levied under gdibed. the authority of any of the acts hereinafter repealed, it shall and may be lawful for any consul-general or consul, in obedience to any order for that pux'pose issued by his majesty through one of his principal secretaries of state, to advance and pay from time to time, for and towards the maintenance and support of any such chaplain as aforesaid, or for and toAvards defraying the expenses inci- dent to the due celebration of divine service in any such P. VOL. II. 7 P 2266 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Consuls to transmit to secretary of state annual accounts of money raised. Where volun- tary contri- butions to- wards erecting churches, hos- pitals, or pro- viding burial grounds, in any plaice where consuls are resident, such consuls may advance a sum e(jual to amount of such contii- butions. churches and chapels, or for and towards the maintaining any such burial grounds as aforesaid, or for and towards the interment of any of his majesty's subjects in any such burial grounds, any sum or sums of money, not exceeding in any one year the amount of the sum or sums of money, which during that year may have been raised at such port or place for the said several purposes or any of them, by any such voluntary subscription or rate as aforesaid ; and every such consul-general or consul shall, once in each year, transmit to one of his majesty's ))rincipal secretaries of state an account, made up to the thirty- first day of De- cember in the year next preceding, of all the sums of money actually raised at any such port or place as afore- said, for the several purposes aforesaid, or any of them, by any such voluntary subscription or rate as aforesaid, and of all sums of money by him actually paid and ex- pended for such purposes, or any of them, in obedience to any such orders as aforesaid, and which accounts shall by such principal secretary of state be transmitted to the lord high treasurer, or the commissioners of his majesty's treasury of the united kingdom of Great Britain and Ireland, for the time being, who shall give to any such consul-general or consul as aforesaid credit for all sums of money not exceeding the amount aforesaid, by them disbursed and expended in pursuance of any such order as aforesaid, for the purposes before mentioned, or any of them." Sect. 11. "In case any of his majesty's subjects shall by voluntary subscriptions among themselves raise and contribute such a sum of money as shall be requisite for defraying one-half part of the expense of erecting, pur- chasing or hiring any chureh or chapel or building, to be appropriated for the celebration of divine service accord- ing to the rites and ceremonies of the united church of England and Ireland, or of the church of Scotland, or for defraying one-half part of the expense of erecting, pur- chasing or hiring any building to be used as a hospital for the reception of his majesty's subjects, or for defraying one-half of the ex])ense of purchasing or hiring any ground to be used as a place of interment for his majesty's sub- jects at any foreign port or place wherein any consul- general or consul appointed by his majesty shall be resi- dent, then and in any such case it shall and may be lawful for such consul-general or consul, in obedience to any order to be for that purpose issued by his majesty through one of his principal secretaries of state, to advance and pay, for and towards the purposes aforesaid, or any of CHURCHES ATTACHED TO CONSULSHIPS. 2267 them, any sum or sums of money not exceeding in the whole in any one year the amount of the money raised in that year by any such voluntary contribution as aforesaid ; and every such consul-general or consul as aforesaid shall in like manner once in every year transmit to one of his majesty's principal secretaries of state an account, made up to the thirty-first day of December in the year next preceding, of all the sums of money actually raised at any such port or place as aforesaid, for the several purposes aforesaid, or any of them, by any such voluntary subscrip- tion as aforesaid, and of all sums of money by him actually paid and expended for such purposes or any of them, in obedience to any such orders as aforesaid, and which ac- counts shall by such principal secretary of state be trans- mitted to the lord high treasurer, or to the lords commis- sioners of his majesty's treasury, for the time being, who shall give to such consuls-general or consuls credit for all sums of money not exceeding the amount aforesaid, by him disbursed and expended in pursuance of any such order as aforesaid, for the purposes before mentioned or any of them." Sect. 12. " No such order shall be issued as aforesaid through any of his majesty's principal secretaries of state, authorizing the expenditure of money for the erection, purchase or hiring of any such new church or chapel or hospital as aforesaid, or for the purchase or hiring of any such new burial ground as aforesaid, unless and until such consul-general or consul shall first have transmitted to his majesty, tlu'ough one of his majesty's principal secretaries of state, the plan of such intended church or chajiel, hos- pital or burial ground, with an estimate, upon the oath of some one or more competent person or persons, stating the probable expense of and incident to the erection, ]3ur- chase or hiring of any such church, chapel, hospital or burying ground as aforesaid, and unless and until his majesty shall have signified, through one of his said prin- cipal secretaries of state, his approbation of the said plan and estimate : Provided also, that no money shall actually be disbursed by any such consul-general or consul as aforesaid, for any of the pui'poses aforesaid, unless and until the money to be raised by any such voluntary sub- scription as aforesaid be actually paid up and invested in some public or other sufiicient security, in the joint names of such consul-general or consuls and two trustees ap- pointed for that purpose by the persons subscribing the same, or unless and until two or more of such subscribers 7 F 2 Annual ac- counts trans- mitted to secretary of state. His majesty's approbation to be first ob- tained. Proviso as to an actual dis- bursement of money by consul. 2268 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Salaries to chaplains not to exceed sums herein men- tioned. Regulations for meetings of subscribers to churches, chajjcls, &c. shall enter into good and sufficient security to his majesty, by bond or otherwise, that the amount of such subscnp- tions shall actually be paid for the puq^oses aforesaid, by a certain day to be specified in every such bond or secu- rity, and which bond or security shall be preserved in the office of such consul-general or consul, and shall by him be cancelled and delivered back to the parties entering into the same, their heirs, executors or administrators, when and so soon as the condition thereof shall be fully performed and satisfied." Sect. 13. " The whole salary of any chaplain heretofore appointed or to be appointed to officiate in any chm-ch or chapel in any foreign port or place in Europe, shall not exceed in the whole five hundred pounds by the year ; or in any foreign port or place not in Europe, eight hundred pounds by the year : Provided also, that all such chaplains shall be appointed to officiate as aforesaid, by his majesty, through one of his principal secretaries of state, and shall hold such their offices for and during his majesty's plea- sure, and no longer." Sect. 14. " All consuls-general and consuls appointed by his majesty to reside and being resident at any foreign port or place wherein any such church or chapel, or other place appropriated for the celebration of divine worship, or hospital, or any such burial ground as aforesaid, hath heretofore been or shall hereafter be erected, purchased or hired, by the aid of any voluntary subscription or rates collected by or imposed upon his majesty's subjects, or some person or persons for that ])urpose duly authorized by any writing under the hand and seal of any such con- sul-general or consul, shall, once at the least in every year, and more frequently if occasion shall require, by public advertisement, or in such other manner as may be best adapted for insuring publicity, convene and summon a meeting of all his majesty's subjects residing at such foreign port or place as aforesaid, to be holden at the public office of such consul-general or consul, at some time, not more than fourteen days nor less than seven days next after the publication of any such summons ; and it shall and may be lawful for all his majesty's subjects residing or being at any such foreign port or place as aforesaid, at the time of any such meeting, and who shall have subscribed any sum or sums of money not less than twenty pounds in the W'hole, nor less than three pounds by the year, for or towards the piu'poses before mentioned or any of them, and have paid up the amount of such their subscriptions. CHURCHES ATTACHED TO CONSULSHIPS. 2269 to be present and vote at any such meetings ; and such consuls-general or consuls shall preside at all such meet- ings ; and in the event of the absence of any such consuls- general or consuls, the subscribers present at any such meeting shall, before proceeding to the despatch of busi- ness, nominate one of theu' number to preside at such meeting ; and all questions proposed by the consul- general, consul or person so nominated as aforesaid to preside in his absence, to any such meeting, shall be de- cided by the votes of the majority in number of the per- sons attending and being present thereat : and in the event of the number of such votes being equally divided, the consul-general, consul or person so presiding in his absence, shall give a casting vote." Sect. 15. " It shall and may be lawflil for any such General meet- general meeting as aforesaid to make and establish, and ^"P, '"'y , • • GstS-olisli rules from time to time, as occasion may require, to revoke, for mana"-e- alter and render such general rvdes, orders and regula- ment of tions, as may appear to them to be necessary for the due (^'^'^i.i'clies, &c. T •'iJ- .r-iii subiect to and proper use and management ol such churches, sanction o£ chapels, hospitals and burial grounds as aforesaid, or for consul, who the proper control over and exi)enditure of the money ^^^^' transmit • • • • Stinie tor iiis raised by any such subscription as aforesaid, or otherAvise majesty's in relation to the matters aforesaid, as may be necessary approbation. for carrying into execution the objects of this act, so far as relates to those matters, or any of them : Provided always, that no such rule, order or regulation as aforesaid shall be of any force or effect, unless or until the same shall be sanctioned and approved by the consid-general or consul for the time being, appointed by his majesty to reside and actually resident at such foreign port or place ; and provided also, that the same shall, by such consul- general or consul, be transmitted by the first convenient opportunity for his majesty's approbation ; and that it shall and may be laAvful for his majesty, by any order to be by him issued through one of his principal secretaries of state, either to confirm or disallow any such rules, orders and regulations, either in the Avhole or in part, and to make such amendments and alterations in or additions to the same, or any of them, as to his majesty shall seem meet, or to suspend for any period of time the execution thereof, or any of them, or otherwise to direct or prevent the execution thereof, or any of them, in such manner as to his majesty shall seem meet ; and all orders so to be His majesty's issued by his majesty, in relation to the matters afore- ^nkr thereon said, through one of his principal secretaries of state. 2270 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. in consul's shall be recorded in the office of the said consul-general office. Qj. consul at the foreign port or place to which the same maj refer, and shall be of full force, effect and autho- rity upon and over all his majesty's subjects there resi- dent" («). (rt) As to consular marriages, vide siqyra^ p. 810. ( 2271 ) CHAPTER YL COLONIAL AND FOREIGN ORDERS. The statute law respecting the effect of the ordination of ministers bj Scotch and Irish bishops has been akeadj inquired into (a). In this chapter are considered — 1. The statutable restrictions on the exercise within Divisions of these dominions of the power of consecration by English subject, bishops and ordination by them of foreign subjects. 2. The statutable restrictions on persons so consecrated and ordained to officiate in the Church of England in this country. This portion of ecclesiastical legislation is of a most confused and entangled character. The crude- ness and illiberality of the provisions in statutes heaped one upon another, in consequence apparently of a jealousy of the spiritual acts of the colonial and foreign episcopate, is, independently of theoretical objection, productive of great practical difficulty and embarrassment. First, with regard to the consecration of bishops. Two propositions of law were enunciated in the pre- Consecration amble of 26 Geo. 3, c. 84. "^ ^^^^op^- 1 . That the consecration of a bishop required the licence and mandate of the crown. 2. That every person consecrated must take the oath of allegiance. Whether in reality this statute recited propositions of constitutional laAv, or whether the law relating to bishops of the church established in England was not erroneously applied, on a new and sudden emei'gency, to bishops des- tined to exercise their functions beyond seas, it is perhaps not worth while now to inquire. The statute which originally contained the recital has been since repealed. But the English bishop is still supposed to be subject to civil penalties if he exercise his purely spiritual function of consecration without licence from the crown. It always was and is quite clear, Avithout the recital in the recent statute (34 & 35 Vict. c. 53), that no "ecclesiastical title (a) Vide supra, Part X., Chaps. T., II. 2272 CHURCH OF ENGLAND IN llELATION TO OTHER CHURCHES. American sub- jects seek. Anglican ordi- nation. 2-t Geo. 3, c. 35, enabling thena to obtain it. The Bishop of London, or any other bishop by him appointed, may admit aliens to the order of deacon or priest. Persons so ordained not to exercise their office in his majesty's dominions. The name and country, &c. of " of honour or dignity" taken from any place within this realm, and no " pre-eminence or coercive power, can be " validly conferred otherwise than under the authority and " by the favour of her Majesty ;" but these propositions do not concern the exercise of purely spiritual functions. In the year 1784, not long after the establishment of the independence of the North American Republics, the citizens of this newly-erected, state, who had been, while it was subject to this country, members of the Church of England, were anxious to obtain ordination for their clergymen at the hands of the English bishops ; but whereas (to borrow the words of the preamble of 24 Geo. 3, c. 35) " by the laws of this realm, every person who shall be admitted to holy orders is to take the oath of allegiance in manner thereby provided," an application was made to the legislature of Great Brit^iin to remove this obstacle, which produced the statute of 24 Geo. 3, c. 35 (^), reciting as follows : " Whereas there are divers persons, subjects or citizens of countries out of his majesty's dominions, in- habiting and residing within the said countries, who pro- fess the public Avorship of Almighty God according to the liturgy of the Church of England, and are desirous that the word of God and the sacraments should continue to be administered unto them according to the said liturgy, by subjects or citizens of the said countries, ordained ac- cording to the form of ordination in the Church of Eng- land ;" and enacting as follows : — Sect. 1. "It shall and may be lawful to and for the Bishop of London for the time being, or any other bishop by him to be appointed, to admit to the order of deacon or priest, for the purposes aforesaid, persons being subjects or citizens of countries out of his majesty's dominions, without requiring them to take the oath of allegiance." Sect. 2. " No person, ordained in the manner hereinbe- fore provided only, shall be thereby enabled to exercise the office of deacon or priest within his majesty's dominions." Sect. 3. " In the letters testimonial of such orders there shaU be inserted the name of the person so ordained, Avith the addition of the country whereof he is a subject or citizen, and the further description of his not having (h) This act was intituled "An Act to empower the Bishop of London for the time being, or any other Bishop to be by liim appointed, to admit to the Order of Deacon or Priest Persons being- Subjects or Citizens of Countries out of his Majesty's Dominions, without requiring them to take the Oath of Allegiance as ap- pointed by Law." COLONIAL AND FOREIGN ORDERS. 2273 taken the said oath of allegiance, being exempted from the person the obligation of so doing bj virtue of this act." ordained to be Those subjects of the North American Republics who letters testi- adhered to the doctrine and discipline of the Anglican monial. Church were further desirous of procuring the due conse- cration of their bishops, and for some time resorted to the Scotch bishops for this purpose. But in ] 786 (c) they had again recourse to the parliament of Great Britian, and obtained the 26 Geo. 3, c. 84 (d), which has been since superseded, and is now repealed. The folloAving account is taken from " A Statement of Jerusalem Proceedings relating to the Establishment of a Bishopric bishopric, of the United Church of England and Ireland in Jerusa- lem ; published by authority :" — In the year 1841, the appointment of a bishop for Jeru- King of salem was proposed by his majesty the King of Prussia, Prussia's mis- by a special mission to the Queen of England, and a par- land on the ticular communication to the Archbishop of Canterbury, subject of a His maiesty had in view the conversion of the Jews, and '''shop at • •I GrLis3,lGin also the spmtual care of such of his own subjects in Pales- tine, who might Avish to join themselves to the church so formed in Jeinisalem. His majesty undertook to give Funds for fifteen thousand pounds towards that object, the annual l^ishopric. interest of which, amounting to six hundred pounds, is to (c) In October, 1789, at Phila- tute of a bishop, situated without delphia, nine articles were drawn the jurisdiction of these United up at a general convention of the States, until the usual testimony bishops, clergy, and laity of the from the Standing Committee, church, which are termed the founded upon sufficient evidence " Constitution of the Protestant of his soundness in the faith, and Episcopal Church in the United of his pious and moral character, States of America." In October, has been obtained; nor until the 1832, fifty-six canons were passed candidate has been examined in general convention at New on the studies prescribed by the York for the government of the canons of this church. And church; six canons in general should any such clergymen so convention at Philadelphia, in ordained wish to settle in any August, 1835; eleven canons at congregation of this church, he the same place, September, 1838. must obtain a special licence See "Journal of the Proceedings therefor from the bishop, and of the Bishops, Clergy and Laity officiate as a probationer for at of the Protestant Episcopal least one year." Church in the United States of (d) This act was intituled "An America, &c. &c." Published by Act to empower the Archbishop Swords, Stanford & Co., 152, of Canterbury or the Arclibishop Broadway, New York, 1838. of York for the time being, to The 22nd Canon is as follows : consecrate to the Office of a " No bishop of this church shall Bishop Persons being Subjects ordain any person to officiate in or Citizens of Countries oiit of any congregation or church desti- his Majesty's Dominions." 2274 cnuRCn of England in relation to other churches. be paid yearly in advance, till the capital sum (together •with that -which is to be raised by subscription for the puiijose of completing the bishop's annual income of twelve hundred pounds) can be advantageously invested in land situate in Palestine {e). Komination, The bishop of the United Church of England and Ire- title and autho- land at Jerusalem is to be nominated alternately by the at' Je°msileni! crowns of England and Prussia, the archbishop having the absolute right of veto with respect to those nominated by the Prussian crOAvn. The bishop will be subject to the Archbishop of Canter- bury as his metropolitan, xmtil the local circumstances of his bishopric shall be such as to make it expedient, in the opinion of the bishops of that United Church, to establish some other relation. His spiritual jurisdiction will extend over the English clergy and congregations, and over those who may join his church and place themselves under his episcopal autho- rity in Palestine, and for the present in the rest of Syria, in Chaldea, Egypt, and Abyssinia ; such jurisdiction being exercised, as nearly as may be, according to the laws, canons, and customs of the Church of England; the bishop having power to frame, with the consent of the metropolitan, particular rules and orders for the peculiar wants of his people. College at A college was to be established at Jerusalem, under the Jerusalem to bisliop, whose chaplain will be its first principal. Its receive Druses, pj-jj^j^^.y obiect will bc the education of Jewish converts ; &c. and mem- j , -^i . , .n i ,i • n , • • ^ -^^ ta bers of ortho- but the bishop Will be authorized to receive into it Druses dox Greek and other Gentile converts ; and if the fimds of the college cerTafrl con-'' s^^ould be sufficient, Oriental Christians may be admitted ; ditions. but clerical members of the orthodox Greek Church will be received into the college, only with the express consent of their spiritual superiors, and for a subsidiary purpose. The religious instruction given in the college will be in strict conformity with the doctrines of the United Church of England and Ireland, and under the superintendence and direction of the bishop. German con- Congregations, consisting of Protestants of the German gregations and tonguc, residing within the limits of the bishop's jurisdic- clergymen, i'lQjx^ and willing to submit to it, will be under the care of German clergymen ordained by him for that purpose, (e) In chap, 29 (pt. i. lib. 1, tants speaking two cliffei'ent lan- Vetus ct Nov. Eccles. Discip., guages. But on examination they Thomassinus) will be found some will be chiefly found to be en- examples of two bishops in one croachments by the pope on the diocese, which contained inhabi- (Jreek church. COLONIAL AIST) FOREIGN ORDERS. 2275 who will officiate in the German langnage, according to the forms of their national liturgy, compiled from the ancient liturgies, agreeing in all points of doctrine with the liturgy of the English Church, and sanctioned by the bishop Avith consent of the metropolitan, for the special use of those congregations ; such liturgy to be used in the German language only. Germans intended for the charge of such congregations are to be ordained according to the ritual of the English Church, and to sign the articles of that church : and in order that they may not be dis- qualified by the laws of Germany fi"om officiating to Ger- man congregations, they are, before ordination, to exhibit to the bishop a certificate of their having subscribed, before some competent authority, the Confession of Augs- Confession o£ burg(/). Augsburg. The rite of confirmation will be administered by the Rite of con- bishop to the catechumens of the German congregations firmation. according to the form used in the English Church. The statute passed to forward the object of this state- ment is 5 Vict. c. 6, entitled " An Act to amend an Act 5 Vict. c. 6. made in the Twenty-sixth year of the Eeign of his Ma- jesty King George the Third, intituled An Act to em- power the Archbishop of Canterbury or the Archbishop of York for the time being to consecrate to the Office of a Bishop Persons being Subjects or Citizens of Countries out of his Majesty's Dominions." It recited part of the provisions of 26 Geo. 3, c. 84, and enacted as follows : — Sect. 1. "It shall and may be lawful to and for the Archbishops Archbishop of Canterbury or the Archbishop of York for may consecrate the time being, together with such other bishops as they Sects' or shall call to their assistance, to consecrate British subjects, foreigners to or the subjects or citizens of any foreign kingdom or state, ^^ bishops in to be bishops in any foreign country, whether such foreign tde^sfwithout subjects or citizens be or be not subjects or citizens of the the royal li- country in which they are to act. and without the queens cence for elec- 7* /»7'7** 7^ 7 7 i^r\^^ Rr.o licence jor their election, or the royal mandate under the tiou, &c. (/) See note to the Life of learned and able letter by ]\Ir. Grabe, Biographia Britannica, James Hope Scott, then Clian- 1766, vol. vii., for a plan for cellor of Salisbury. The Arch- uniting all the Protestant bishop of Canterbury wrote a churches of the Continent under letter commendatory, which was an Episcopalian government. translated into Greek, to the Vide supra^ p. 693. The reader Bishops of the Ancient and should further consult, on the sub- Apostolic Churches in Syria; and ject of the bishopric at Jerusalem, the King of Prussia published a " A Statement by Authority, &c. statement to his subjects in Ger- &c.," a pamphlet by Dr. Hook, many. Kector of Leeds ; and a very 227G CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Spiritual juris- dii'tion of such bishops. Civil limits. Archbishops to obtain her Majesty's li- cence for con- secration, and to ascertain the fitness of persons to be consecrated. Such bishops, and the persons consecrated or ordained by them, not to act within Enfrland or Ireland, other- wise than ac- cording to 3 & 4 Vict, €.33. Archbishop to give a certifi- cate of conse- cration. 59 Geo. 3, c. CO, great seal for their con^firmation and consecration, and without requiring such of them as may be subjects or citizens of any foreign kingdom or state to take the oaths of allegiance and supremacy, and the oath of due obedience to the archbishop for the time being." Sect. 2. " Such bishop or bishops so consecrated may exercise, Avithin such limits as may from time to time be assigned for that purpose in such foreign countries by her majesty, spiritual jurisdiction over the ministers of Bi'itish congregations of the United Church of England and Ireland, and over such other Protestant congregations as may be desirous of placing themselves vmder his or their authority." Sect. 3. " Xo person shall be consecrated a bishop in the manner herein provided until the Archbishop of Can- terbuiy or the Archbishop of York for the time being shall have first applied for and shall have obtained her majestifs licence, by umrrant under her royal signet and sign manual, authorizing and empowering him to perform such consecration, and expressing the name of the person so to be consecrated, nor until the said archbishop has been fully ascertained of the sufficiency of such person in good learning, of the soundness of his faith, and of the purity of his manners." Sect. 4. " No person consecrated to the office of a bishop in the manner aforesaid, nor any person deriving his consecration fi'om or under any bishop so consecrated, nor any person admitted to the order of deacon or priest by any bishop or bishops so consecrated, or by the suc- cessor or successors of any bishop or bishops so conse- crated, shall be thereby enabled to exercise his office, within her majesty's dominions in England or Ireland, otherwise than according to the provisions of 3 & 4 Vict, c. 33 {gy Sect. 5. " The archbishop who so consecrates shall give to the person consecrated a certificate under his hand and seal, containing the name of the country whereof he is a subject or citizen, and the name of the church in which he is appointed bishop ; and in case of such person being the sid)ject or citizen of any foreign kingdom or state, then such certificate shall further mention that he has not taken the said oaths, he being exempted by viilue of this act from taking them." Secondly, wath regard to ordination. In July, 1819, was passed 59 Geo. 3, c. 60, entitled " An Act to permit the Archbishops of Canterbury and {y) Vide infra, p. 2279. COLONIAL AND FOREIGN ORDERS. 2277 York, and the Bishop of London, for the Time being, to admit Persons into Holy Orders specially for the Colo- nies." It recited, " Whereas it is expedient that the arch- bishops and bishops of this realm should from time to time admit into holy orders persons specially destined for the cure of souls in his majesty's foreign possessions, although such persons may not be provided with the title requu-ed by the canon of the Church of England, of such as are to be made ministers : And whereas it will greatly tend to the advancement of religion within the same, that due provision shall be regularly made for a supply of persons properly qualified to serve as parsons, vicars, curates, or chaplains ;" and enacted as follows : — Sect. 1. "It shall be lawful for the Archbishop of Can- Archbishop of terbury, the Archbishop of York, or the Bishop of Lon- Canterbury or don, for the time being, or any bishop specially authorized Bishop^of and empowered by any or either of them, to admit into London, or the holy orders of deacon or priest any person whom he ^°J' bishop shall upon examination deem duly qualified specially for authorized by the purpose of taking upon himself the cure of souls, or any of them, officiating in any spiritual ca]3acity in his majesty's colonies may ordain or foreign possessions and residing therein, and that a thrcolonieT. declaration of such purpose and a wi'itten engagement to perform the same under the hand of such person, being deposited in the hands of such archbishop or bishop, shall be held to be a sufficient title Avith a view to such ordina- tion ; and that in every such case it shall be distinctly The fact to be stated in the letters of ordination of every person so ad- stated in the mitted to holy orders, that he has been ordained for the ^^^^f^^ °^ °^''-^^' cure of souls in his majesty's foreign possessions." Sect. 2. " No person so admitted into the holy orders No person so of deacon or priest, for the piu-pose of taking upon himself ordained ca- tlie cure of souls, or officiating in any spiritual capacity P^'^„ ^ livin*^'- in in his majesty's foreign possessions, shall be capable of Great Britain having, holding, or enjoying, or of being admitted to any °\ Ireland parsonage, vicarage, benefice, or other ecclesiastical pro- Consent of ^the motion or dignity whatsoever, within the United Kingdom bishop of the of Great Britain and Ireland, or of acting as curate therein, diocese, &c. without the previous consent and approbation in writing of the bishop of the diocese under his hand and seal in which any such parsonage, vicarage, benefice, or other ecclesiastical promotion or dignity shall be locally situated, nor without the like consent and approbation of such one of the said archbishops, or Bishop of London, by whom, or by whose authority such person shall have been originally ordained, or in case of the demise or translation of such archbishop or bishop, of his successor in the same see : 2278 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Certificate of good behaviour to be pro- duced. Persons or- dained bj the bishops of Quebec, Nova Scotia or Cal- cutta equally restrained. Persons or- dained by a colonial bishop not possessing or residing in a diocese, &c. not to be ca- pable of hold- ing prefer- ment, or act- ing as a minis- ter of the Established Church. Admissions to benefices, and appointments to curacies, contrary hereto, void. Provided always, that no such consent and approbation shall be given by any such archbishop or Bishop of Lon- don, unless the party applying for the same shall first pro- duce a testimony of his good behaviour during the time of liis residence abroad, from the bishop in whose diocese he may have officiated, or in case there be no bishop, from the governor in council of the colony in which he may have been resident, or from his majesty's principal secretary of state for the colonial department.'' Sect. 3. " No person who shall have been admitted into holy orders by the bishops of Quebec, Nova Scotia, or Calcutta, or by any other bishop or archbishop than those of England or Ireland, shall be capable of officiating in any church or chapel of England or Ireland Avithout special permission from the archbishop of the province in Avhich he proposes to officiate, or of having, holding, or enjoying, or of being admitted to any parsonage or other ecclesias- tical preferment in England or Ireland, or of acting as curate therein, without the consent and approbation of the archbishop of the province, and also of the bishop of the diocese in Avhicli any such parsonage or ecclesiastical pre- ferment or curacy may be situated." Sect. 4. " No person Avho after the passing of this act shall have been ordained a deacon or priest by a colonial bishop, Avho at the time of such ordination did not actually possess an episcopal jurisdiction over some diocese, dis- trict, or place, or (A) Avas not actually residing Avithin such division, district, or place, shall be capable in any A\"ay, or on any pretence Avhatever, of at any time holding any parsonage or other ecclesiastical preferment AA'ithin his majesty's dominions, or of being a stipendiary curate or chaplain, or of officiating at any place, or in any manner, as a minister of the Established Church of England and Ireland." Sect. 5. " All admissions, institutions, and inductions to benefices in the Church of England, or Church of Ire- land, and all appointments to act as curates therein, AA'hich shall be made contrary to the proAnsions of this act, shall be to all intents and purposes null and void : Provided ahvays, that nothing herein shall be construed to make void any admission, institution, or induction to any bene- fice, or any appointment as curate, Avhich shall have been made previous to the passing of this act." (7() " Or" must be read as "and." Vide partial repeal of this statute by 15 & IG Vict. c. 52, and 16 & 17 Yict. c. 49; infra, pp. 2282, 2283, COLONIAL AND FOREIGN ORDERS. 2279 In July, 1840, was passed 3 & 4 Vict. c. 33, entitled 3 & 4 Vict. " An Act to make certain Provisions and Regulations in ^- ^^• respect to the Exercise, within England and Ireland, of their Office, by the Bishops and Clergy of the Protestant Episcopal Church in Scotland ; and also to extend such Provisions and Regulations to the Bishops and Clergy of the Protestant Episcopal Church in the United States of America ; and also to make further Regulations in respect to Bishops and Clergy other than those of the United Church of England and Ireland." It recited 32 Geo. 3, c. 63, and declared it expedient to alter and amend the same, and enacted as follows : — Sect. 1. "It shall be lawful for the bishop of any diocese Bishops of in England or Ireland, if he shall think fit, on the appli- England or cation of any bishop of the protestant episcopal church permit clergy in Scotland, or of any priest of such church canonically of the pro-" ordained by any bishop thereof residing and exercising at testant epis- the time of such ordination episcopal functions within i^n^Scodand to some district or place in Scotland, to grant permission officiate in under his hand, and from time to time also under his *^^^ dioceses 1 J , 1 • • , 1 1 • 1 under certain nana to renew such permission, to any such bishop or restrictions. priest to perform divine ser\4ce, and to preach and ad- minister the sacrament, according to the rites and cere- monies of the United Church of England and Ireland, for any one day or any two days, and no more, in any church or chapel within the diocese of the said bishop Avliere the liturgy of the said united church is used, such day or days and church or chapel to be specified in such perrriission or renewed permission ; and thereupon it shall be lawful for the party mentioned in such permission or renewed per- mission, with the consent of the incumbent or officiating minister of such church or chapel, to perform divine ser- vice, and to preach, and administer the sacraments therein, according to the rites and ceremonies of the United Church of England and Ireland, on the day or days specified in such AATitten permission or renewed permission, and on no other" (z). Sect. 2. " Xo such written permission or renewed per- Certain letters mission shall be granted unless the party ap]:)lying for the commendatory same shall first produce to the bishop of the diocese letters ^^ the' Mshop commendatory given Avithin six months before the produc- before permis- tion thereof, in the case of a bishop under the hand and seal si"° granted. 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 (i) So far as relates to tlie repealed by 27 & 28 Vict. c. 94. Scotch church this act has been Vide supra, pp. 2221, 2222. 2280 CHURCH OF ENGLAND IN RELATION TO OTHER CHURCHES. Provisions of this act as to the clergy of the episcopal church in Scot- land extended to the clergy of the epis- copal church in the United btates. Penalty on allowing clergy of the pro- testant epis- copal church in Scotland or in the United States of America to otHciate with- out such per- mission, or on allowing other clergy to ofK- ciate. exercising episcopal functions "witliin the district or place in -wliicli such priest usually officiates, and also a testi- monial giA-en AAathin six months before the production thereof, under the hand and seal of such last-mentioned bishops or bishop, that the party apjjlpng is a person of honest life and godly conversation, and professeth the doc- trines of the United Chtu-ch of England and Ireland." Sect. 3 recited 26 Geo. 3, c. 84, and proceeded: " Whereas it is ex]iedient to alter and amend the said act, and to enable the bishops and priests of the protestant episcopal church in the United States of America to offi- ciate in England and Ireland, under restrictions and limi- tations similar to those hereinbefore enacted and provided with respect to the bishops and priests of the protestant episcopal church in Scotland ; be it therefore enacted, that all the several provisions hereinbefore contained with respect to the bishops and priests canonically ordained of the protestant episcopal church in Scotland shall respec- tively extend to the bishops of the protestant episcopal church in the United States of America, and to the priests canonically ordained by a bishop of such church residing and exercising at the time of such ordination episcopal functions within some district or place in the United States of America." Sect. 4. " Any incumbent or stipendiary cm-ate who, without the production of such Avritten permission or renewed permission as aforesaid, shall allow any bishop or priest of the protestant episcopal church in Scotland or in the United States of America, or who shall allow any deacon of either of such churches, or any other bishop (A), priest, or deacon, not being a bishop, priest, or deacon of the United Church of England and Ireland, or of any of her majesty's foreign possessions, to officiate in any church or chapel of which he is incumbent or curate, shall for the first offence be liable to be called to appear before the bishop of the diocese in person, and, if he shoAv no sufficient cause to the contrary, to be publicly or privately monished, at the discretion of the said bishop ; and for the second and every subsequent offence, if a curate, he shall, after having been in like manner called (A-) "Any other bisliop, &c." This most arbitrary and illiberal clause was passed before the Clergy Discipline Act, 3 & 4 Vict. c. 8G; and these words may probably be construed as refer- ring to a bishop, priest or deacon actually recognized as such by the civil power of the foreign country of which he is a subject; but it is very difficult to predict what the judicial construction of tliis language may be. COLOXIAL AND FOREIGX ORDERS. 2281 to apjDear, and shoAving no sufficient cause to tlie contrary, be liable to be removed, or to be temporarily suspended from his curacy, at the discretion of the said bishop ; and if an incumbent, he shall, on proof of the offence in due course of law, be suspended from his office and benefice for any time not exceeding three months, or be subject to other ecclesiastical censures ; and the said bishop shall, during any such suspension, provide for the perfonnance of the spiritual duties of such benefice, by sequestration or otherwise, as in the case of non-residence." Sect. 5. "If any bishop or priest of the protestant Penalty on episcopal church in Scotland or in the United States of officiating con- America shall, save as hereinbefore mentioned, or if any acts or this deacon of either of such chvirches shall, officiate, contrary act, save as to the provisions of the said recited acts, in any church or IJ.erem men- chapel in England or Ireland where the liturgy of the said imited church is used, or if any bishop (/), priest, or deacon, not being a bishop, priest, or deacon of the United Church of England or Ireland, or of any of her Majesty's foreign possessions, or of the protestant episcopal church in Scot- land or in the United States of America, shall officiate in any such church or chapel, he shall for every such offence forfeit and pay the sum of fifty pounds to the governors of Queen Anne's Bounty, to be recovered, by action of debt brought in the name of the treasurer of the said bounty in any of her Majesty's courts of record at West- minster, or in the courts of session in Scotland at the suit of the public prosecutor." Sect. 6. " No person who has been or shall be ordained Deacons or- a deacon by any protestant bishop other than an arch- i^^"f "^^ *^^^\"^ bishop or bishop of the United Church of England and i,-efantl, and Ireland, and who shall after the passing of this act be afterwards ordained a priest by any archbishop or bishop of the o'clai"^!! United Church of England and Ireland, shall be thereby {a^^i q^ ly^. "^ enabled, save as in this act is provided, to exercise his land. office within England or Ireland." Sect. 7. " All admissions, institutions, and inductions Admissions, to benefices in the church of England or church of Ire- f'^" *° !^"^" o _ ^ nc'cs iiiiQ cum- land, and all appointments to act as curates therein, which pjes contrary shall be made contrary to the provisions of this act, shall hereto void. be to all intents and purposes null and void : Provided Proviso, always, that nothing herein contained shall be constrvicd to affect any admission, institution, or induction to any benefice or any appointment as curate which shall have been made previous to the passing of this act." (/) Ct". preceding note. P. VOL. II. 7 G 2282 CIIUUCIT OF ENGLAND IN IIELATION TO OTHER CHURCHES. Not to affect tlie act 59 Geo. 3, c. GO. 15 & 16 Vict. East Indian bishops, under commission from bishops in England and Irehmd, to perform all episcopal functions. Sect. 8. " Nothing in this act contained shall be con- strued to affect or to repeal any of the provisions of 59 Geo. 3, c. 60." In Jvine, 1852, Avas passed 15 & 16 V^ict. c. 52, en- titled " An Act to enable Colonial and other Bishops to perform certain E])iscopal Finictions, under Commission from Bishops of England and Ireland." It recited 53 Geo. 3, c. 155 (/), and 3 & 4 Will. 4, c. 85 (m), and en- acted as follows: — Sect. 1. " Notwithstanding anj'thing in the said acts or in any letters patent as aforesaid contained, it shall be lawful for any bishop avIio by virtue of such royal letters patent under the great seal of the said united kingdom shall exercise or have exercised in the British territories afore- said the office of bishop of Calcutta, or Madras, or Bombay respectively, upon the request and by the commission in writing under the hand and seal of the bishop of any dio- cese in England or Ireland, and with the consent and licence in writing of the archbishop of the province Avithin which such diocese shall be situated, to ordain any per- sons, provided such persons shall be presented to him under the direction and authoi-ity of" the bishop of such diocese, and to perform all other functions peculiar and appropriate to the order of bishops Avithin the limits of such diocese." The statute proceeded to repeal certain provisions in 59 Geo. 3, c. 60, and 3 & 4 Vict. c. 33, so far as they relate to persons admitted into holy orders specially for the colonies, or ordained by colonial bishops, as follows : — " Nothing in the said recited acts contained shall extend or be held to extend to any person Avho, in pursuance of such request and commission as aforesaid from the bishop of any diocese in England or Ireland, shall have been or may hereafter be ordained a deacon or priest within the limits of such diocese b7/ any bishop who hy virtue of her Majesty's royal letters patent (n) raider the great seal of the united kingdom of Great Britain and Ireland, shall exercise or have exercised the office of bishop Avithin the British territories in India, or in any of her jNIajesty's colonies or foreign possessions, and that all admissions, institutions, and inductions to benefices in the United Church of Eng- land and Ireland, and all appointments to act as curates and chaplains therein, of persons so admitted into holy orders by any such bishop, shall, notwithstanding any- (0 Vide supra, p. 2257. (m) Vide supra, p. 2260. (n) At this time the crown liad not ceased to grant letters ])atent to colonial bishops. Vide siqira, p. 2249. COLOXIAL AXD FOREIGX ORDERS. 228: tiling in the said recited acts contained, ])e to all intents and purposes good and valid in law." Sect. 3. " All and every of such bishops, -who, in accordance with the provisions of tliis act, shall officiate in behalf of the bishop of any diocese in England or Ire- land, in conferring holy orders, shall be subject to the several provisions and Hmitations established by the laws of this realm, or canons ecclesiastical, as to the titles of the persons to be ordained, and as to the oaths and sub- scriptions to be by such persons taken and made." Sect. 4. " All letters of orders of persons ordained by any such bishop, in accordance with the provisions of this act, shall be issued in the name and be subscribed with the signature of such bishop, as commissary of the bishop of the diocese at whose request and by whose commission he shall officiate in conferring such orders, and shall be sealed with the seal of the bishop of such diocese ; and all such acts of ordination by any such bishop shall be re- corded and registered in like manner as if they had been performed by the bishop of such diocese." Sect. 5. " Nothing in this act contained shall be con- strued to authorize any such bishop to use or exercise any jurisdiction whatsoever within the united kingdom of Great Britain and Ireland." This statute was followed in August, 1853, by 16 & 17 Vict. c. 49, entitled " An Act to extend the Provisions of an Act of the Fifteenth and Sixteenth Years of her present Majesty, intituled ' An Act to enable Colonial and other Bishops to perform certain Eyjiscopal Functions, under Commission from Bishops of England and Ire- land.' " Tliis statute recited 15 & 16 Vict. c. 52 ; and having declared it expedient to extend the pro^dsions of the said act to dioceses in her jSIajesty's foreign and colo- nial possessions, enacted as follows : " Notwithstanding anything in the said recited acts or either of them con- tained to the contrary, all persons who have been or here- after shall be ordained deacon or priest by any of the said bishops in or for the diocese of the bishop of any other of her Majesty's foreign or colonial possessions, upon his request in writing, shall be entitled to all the same rights, privileges, and advantages, as if he had been or- dained by such bishop .within the limits of a diocese over which he was at the time himself actually exercising juris- diction, and residing therein" (o). Proviso sub- jecting co- lonial bishops to the laws of the realm and canons eccle- siastical as to the titles, &c. of persons ordained. Letters of orders to be signed by the colonial bishop as commissary of the bishop for \Yboni he officiates. Colonial bishop not to have jurisdiction in united king- dom. 16 & 17 Vict. c. 49. Ordination of persons by colonial bishop other than the bishop of the diocese valid. (o) Vide supra, 59 Geo. 3, c. GO, s. 4, at p. 2278. 26 & 27 Vict. 7 c. 121, referred to at p. 146, re- lated only to the repealed act G 2 2284 CIIUIICII OF ENGLAND IN RELATION TO OTHER CHURCHES Greek church. The relations ( ;.») of the clmrcli of England Avith the orthodox Greek ehuroh, formerly injiu'ed by the rash con- duct of the non-jurors (y), have of late years been much strengthened. It has been seen, that when the bishopric of Jerusalem was founded it was carefully expressed by the authorities of the church that thei'e Avas no intention of encroaching upon the rights, or injuring the position of the Greek church. A letter from the Archbisho]) of Canterbmy was sent to the patriarch explanatory of the limited powers conferred on the English bishop. In 1868, the Archbishop of Canterbury furnished the Bishop of Gibraltar Avith a letter commendatory or sys- tatical, written in Greek, to the Greek patriarch, Avho received it and the bishop with courtesy. The letter is rightly translated as folloAvs: — " In the name of the Father, and the Son, and the Holy Ghost. Amen. Letter com- " To the most holy and blessed patriarch of Constanti- niendatory. nople, new Rome, and to the most holy metropolitans, archbishops and bishops of the Orthodox Eastern Chui*cli, and to the holy synod of Greece, Charles Thomas, by divine providence Archbishop of Canterbury, primate of all England and metropolitan, sendeth greeting in the Lord : " We make known unto you, brethren beloved in Christ, by these letters, that we have elected, confirmed and consecrated as bishop of the holy catholic and apos- tolic church, planted in England, Charles Amyand Harris, our honoured and Avell-beloved brother, ap- proved in orthodoxy of faith and gravity of life ; Avhom also we have sent to the East, that he being established in the episcopal seat of the ancient Cali)e, noAV Gibraltar, an English colony in the Mediterranean Sea, may be over- seer and shepherd of the subjects of the British sceptre who are scattered throughout the regions of the East ; and that he may pay to your Blessedness due respect and courtesy. " Most Avillingly therefore Ave commend unto you, re- vered and beloved in the Lord, this our brother ; and earnestly do Ave entreat you to i-eceive him with kindness and to assist him Avhensoever he shall haA'e need of you, 26 Geo. 3, c. 84, and lias ceased {p) Vide sujyra, Part I., to be of any importance since Chap. IL, p. 3. the repeal of that statute. " (7) See account by Rev. G. A^'iliiams (Rivington's), 18G8. COLONIAL AND FOREIGN ORDERS. 2285 for such are his deserts. We sahite you in the Lord. Amen. " Given in our palace at Lambeth, and sealed Avith an archiepiscopal seal, the 21st day of the month of July, in the year of our redemption 1868." In 1870, the Archbishop of Syra and Tenos, avIio came Archiiishop of to England for the purpose of consecrating a Greek ^^yra and church, was very cordially received by the authorities of the English church, and attended the consecration of some English bishops (r). Some difficulties, however, still prevent a perfect union of the English with the Greek church. The position of the church of Rome, on the other hand, Chmch of towards the English church has become of late years ex- I^ome. tremely hostile. The revived extravagances of the Ultra- montanist and Jesuit party, their present influence over the councils of the papacy, and the novel doctrines which they have promulgated, have naturally widened the dis- tance which separates the Roman from the Greek and Anglican churches {s). The curia of Rome in fact still continues the disunion of Christendom which it first created. In connection A^dtli this subject should be mentioned the 34 & 35 Vict. statute 34 & 35 Vict. c. 52, passed in 1871, and entitled c. 52. " An Act to repeal an Act for preventing the Assumption of certain Ecclesiastical Titles in respect of Places in the United Kingdom." The preamble, enunciating as it does a principle of con- stitutional law, and at the same time tempering the prac- tical application of it by a wise and liberal policy, is very important. It recites as follows : " Whereas by an act passed in the session of parliament held in the fourteenth and fifteenth year of the reign of her Majesty, chapter sixty, iutitided ' An Act to prevent the Assumption of certain Ecclesiastical Titles in respect of Places in the United Kingdom,' certain enactments were made prohi- biting under penalties the assumption of the title of arch- bishop or bishop of a pretended province or diocese, or archbishop or bishop of a city, place, or territory, or dean ()•) Report of the Archbishop Bishops to the Greek Patriarch, of Syra and Tenos of his Journey &c., 1867; Papers of the (Amcri- to England, in Greek and Eng- can) Russo - Greek Committee, lish, London (Cartwriglit), 1871; Trons & Co., New York; Phijli- Colonial Church Chronicle, March more's International Law, Vol. 1 and April 1, 1871; Account of II., App. XI. the Pan-Anglican Synod in an (s) Vide supra, p. 2. Encyclic from the English 2286 CllUnCII OF ENGLAND IN RELATION TOOTHER CHURCHES. 34 & 35 Viet. c. 52. 14 & 15 Vict. c. GO, repealed. Documents prepared hy convocation. Form of ad- mitting con- verts from church of Eome, &c. of any pretended deanery in England or Ireland, not being the see, province, or diocese of an archbishop or bishop or deanery of any dean recognized by law : " And Avhereas no ecclesiastical title of hononr or dig- nity derived from any see, province, diocese or deanery recognized by hnv, or from any city, town, ])lace, or terri- tory within this realm, can be validly created, nor can any such see, pi'ovince, diocese, or deanery be validly created, nor can any pre-eminence or coercive power be conferred otherwise than inider the authority and by the favour of her ]Majesty, her heirs and successors, aud according to the laws of this realm ; but it is not expedient to impose penalties upon those ministers of religion who may, as among the members of the several religious bodies to which they respectively belong, be designated by distinc- tions regarded as titles of office, although such designation may be connected with the name of some town or place within the realm." After this preamble, the statute proceeds to enact that, Sect. 1. " The said act of the session of ])arliament held in the fourteenth and fifteenth years of the reign of her Majesty, chapter sixty, shall be and the same is hereby repealed : Provided that such repeal shall not nor shall anything in this act contained be deemed in any way to autiiorize or sanction the conferring or attempting to confer any rank, title, or precedence, authority, or juris- diction on or over any sulyect of this realm by any person or persons in or out of this realm, other than the sovereign thereof." Among the docimients prepared by convocation, but never formally promulgated, was a form for admitting converts from the Roman to the English cluu-ch. It is a document of weight and interest. It appears to have been drawn up by Archbishop Wake in 1714 (u). It is as folloAvs : — A Form fur admitting Converts from the Church of Rome, and such as shall renounce their Errors {June 18) (.r). The bishop, or some priest appointed by him for that purpose, being at the communion table, and the ]3erson to be reconciled standing Avithout the rails, the bishop, or (e() Lathbury, History of Con- vocation, 426. (.') Concilia (Wilkins') Magnse Britann. et Hiberniae, torn, iv, pp. G60-662. COLONIAL AND FOREIGN OEDEKS. 2287 such priest as is appointed, shall speak to the congrega- tion as folio weth : — " Dearly beloved, " We are here met together for the reconciling of a penitent (lately of the church of Rome, or lately of the separation) to the established church of England, as to a true and soimd part of Christ's holy Catholic Church. Now that this weighty affair may have its due effect, let us in the first place humbly and devoutly pray to Almighty God for his blessing upon us in that pious and charitable office we are going about. " Prevent us, O Lord, in all our doings with thy most gi'acious favour, and further us with thy continual help, that in this, and all other our works begun, continued, and ended in thee, ^ve may glorify thy holy name, and finally by thy mercy obtain everlasting life, through Jesus Christ our Lord. Amen. " Almighty God, who showeth to them, that be in error, the light of thy truth, to the intent that they may return into the way of righteousness ; grant unto all them, that are or shall be admitted into the fellowship of Christ's religion, that they may eschew those things that are con- trary to their profession, and follow all such things, as are agreeable to the same, through our Lord Jesus Christ. Amen." (Then followed Psalm cxix. v. 161.) " Let my complaint come before thee, O Lord, &c. " Glory be to the Father, &c. " As it Avas in the beginning, &c." The Lesson. Luke xv. to v. 8. " Then drew near unto him the publicans and sinners, for to hear him. And the pharisees and scribes murmured, saying : This man receiveth sinners, and eateth with them. And he spake this parable unto them, sapng : What man of you having an hundred sheep, if he lose one of them, doth not leave the ninety and nine in the Avilderness, and go after that which is lost, mitil he find it ? and when he hath found it, he layeth it on his shoulders, rejoicing ; and when he cometh home, he calleth together his fi-iends and his neighbours, saying unto them, Kejoice Avith me, for I have found my sheep which was lost. I say luito you, that likewise joy shall be in heaven over one sinner, that re- penteth, more than over ninety and nine just persons, which need no repentance." The hymn to be used, when the penitent comes from the church of Rome. 22S8 CHUKCJl OF ENGLAND IN RELATION TOOTHER CHURCHES. Porin of ad- mitting con- verts from church of Home, &c. Psalm ex v. to v. 10. " Not unto us, O Lord, &c. " Glory be to the Father, &c. " As it was in the beginning, &c." If the penitent comes from the separation, then this is to be used. Psalm cxxii. " I was glad Avhen they said unto me, &c. " Glory be to the Father, &c. " As it was in the l)eginning, &c." Then the bishop sitting in a chair, or the priest stand- ing, shall speak to the penitent, Avho is to be kneeling, as follows : — " Dear brother (or sister), • " I have good hope, that you have well Aveighed and considered Avith yourself the great Avork, you are come about, before this time ; but in as much as Avith the heart man believeth unto righteousness, and Avith the mouth confession is made unto salvation ; that you may give the more honour to God, and that this present congregation of Christ here assembled may also understand your mind and AAdll in these things, and that this your declaration may the more confirm you in your good resolutions, you shall answer plainly to these questions, Avhich Ave in the name of God and of his church shall propose to you touching the same. " Art thou thoroughly persuaded, that those books of the Old and Xcav Testament, Avhich are received as canonical scriptures by this church, contain sufficiently all doctrine requisite and necessary to eternal salvation through faith in Jesus Christ ? " Ansicer. — I am so persuaded. " Dost thou believe in God the Father almighty, maker of heaA'en and earth, and in Jesus Christ his only begotten Son our Lord, and that he AA^as conceived of the Holy Ghost, born of the Virgin Mary, that he suffered imder Pontius Pilate, AA-as crucified, dead and buried, that he went doAvn into hell, and also did rise again the third day ; that he ascended into heaven, and sitteth at the right hand of God the Father almighty, and from thence shall come again at the end of the AA'orld to judge the quick and the dead ? " And dost thou believe in the Holy Ghost, the holy Catholic Church, the communion of saints, the remission of sins, the resurrection of the flesh, and everlasting hfe after death ? COLOXIAL AND FOREIGN ORDERS. 2289 " Ansiver. — All this I steadfastly believe. " Art thou truly sorroAvful, that thou hast not followed the way prescribed in these scriptures for the direct- ing of the faith and practice of a true disciple of Christ Jesus ? " Answer. — I am heartily sorry, and I hope for mercy through Jesus Christ. " Dost thou embrace the truth of the Gospel in the love of it, and steadfastly resolve to live godly, righteously, and soberly in this present Avorld all the days of thy life ? " Answer. — I do embrace it, and do so resolve, God being my helper. " Dost thou earnestly desire to be received into the communion of this church, as into a true and sound part of Christ's holy catholic church ? " Ansiver. — This I earnestly desire." If the penitent come from the church of Rome, this question is to follow : " Dost thou renounce all the errors and superstitions of the present Romish church, so far as they are come to thy knowledge ? " Ansiver. — I do from my heart renounce them all." If the penitent from the church of Rome be in holy orders, let these further questions be asked : " Dost thou in particular renounce the twelve last articles added in the confession, commonly called ' The Creed of Pope Pius IV.,' after having read them, and duly considered them ? " Answer. — I do upon mature deliberation reject them all, as grounded upon no warrant of scripture, but rather repugnant to the word of God ? " Dost thou acknowledge the supremacy of the kings and queens of this realm, as by law established and de- clared in the thirty-seventh article of religion ? " Answer. — I do sincerely acknowledge it. " Wilt thou then give thy faithful diligence always so to minister the doctrine and sacraments, and the discipline of Christ, as the Lord hath commanded, and as this church and realm hath received the same, according to the com- mandments of God, so that thou mayst teach the people Avith all diligence to keep and observe the same ? '''Ansiver. — I will do so by the help of the Lord. " Wilt thou conform thyself to the liturgy of the Church of England as by law established ? " Answer. I Avill." If the penitent comes from the separation, these ques- tions are to be asked : 2290 Clinic H OF ENGLAND IN RELATION TO OTHER CHURCHES. Form of ad- mittinjr con- verts I'rcnn church of Home, &c. " Dost tlioii allow and approve of the orders of bishops, priests, and deacons [as -what have been in the Churcli of Christ from the time of the apostles (?/)], and wilt thou, as much as in thee lietli, promote all due regard to the same good order and government in the Church of Christ? " Answer. — I do approve it, and ■will endeavour, that it may be so regarded, as much as in me lieth. " Wilt thou conform thyself to the liturgy of the Church of England, as by law established, and be diUgent in attend- ing the prayers and other offices of the church ? " Ansiver. — I will do so by the help of God." If the penitent be one who has relapsed, the following question is to be asked : " Art thou heartily sorry, that when thou wast in the way of truth, thou didst so little watch over thy o^vn heart, as to suffer thyself to be led away with the shows of vain doctrine ? and dost thou steadfastly pui'pose to be more careful for the future, and to persevere in that holy profes- sion, which thou hast now made ? " Ansiver. — I am truly grieved for my former unstead- fastness, and am fully determined by God's grace to walk more circums]3ectly for the time to come, and to continue in this my profession to my life's end." . Then the bishop or priest standing up shall say : " Almighty God, Avho hath given you a sense of your eiTors, and a will to do all these things, grant also unto you strength and power to perform the same, that he may accomplish his work, which he hath begun in you, through Jesus Clu'ist. Amen." The Absolution. " Almighty God, our heavenly Father, who of his great mercy hath promised forgiveness of sins to all them that with hearty repentance and true faith turn unto him, have mercy upon you, pardon and deliver you from all yoiu- sins, confirm and strengthen you in all goodness, and ])ring you to everlasting life, through Jesus Christ our Lord. Amen," Then the bishop or priest, taking the penitent by the right hand, shall say unto him : " I, X., bishop of (or I, A. B.), do upon this thy solemn profession and earnest request receive thee into the holy communion of the Church of England, in the name of the Father, and of the Son, and of the Holy Ghost. {y) That within the crotchets is to be used only when the peni- tent hath been a teacher in some separate congregation. COLONIAL AND FOREIGN ORDERS. 2291 People. " Amen." Then the bishop or priest shall say the Lord's prayer, with that which follows, all kneeling. " Let us pray. " Onr Father which art in heaven, &c. " O God of truth and love, we bless and magnify thy holy name for thy great mercy and goodness in bringing this thy servant into the communion of this church ; give him (or her), we beseech thee, stability and perseverance in that faith, of which he (or she) hath in the presence of God and of this congregation witnessed a good confession. Suffer him (or her) not to be moved from it by any temp- tations of Satan, enticements of the world, the scoffs of irreligious men, or the revilings of those who are still in error ; but guard him (or her) by thy gi^ace against all these snares, and make him (or her) instrumental in turn- ing others from the errors of their ways, to the saving of their souls from death, and the covering a multitude of sins. And in thy good time, O Lord, bring, we pray thee, into tlie way of truth all such as have erred and are deceived ; and so fetch them home, blessed Lord, to thy flock, that there may be one fold under one Shepherd, fhe Lord Jesus Christ ; to whom with the Father and the Holy Spirit be all honour and glory, world without end. Amen." Then the bishop or priest, standing up (if there be no communion at that time), shall turn himself to the person newly admitted, and say : " Dear brother (or sister), " Seeing that you have by the goodness of God proceeded thus far, I must put you in mind that you take care to go on in that good way into which you are entered ; and for your establishment, and furtherance therein, that, if you have not been confirmed, you endeavour to be so the next opportunity, and receive the holy sacrament of the Lord's Supper. And may God's holy Spirit ever be with you. Amen. " The peace of God, which passeth all understanding, keep your heart and mind by Christ Jesus. Amen" (z). (z) Similarly a form of penance church to " Turcism" (Reg. Laud, and reconciliation of a renegade fol. 240 a) will be found in Wil- or apostate from the Christian kins, torn. iv. at pp. 522 — 524. APPENDIX I. CANONS OF THE FIKST FOUR GENERAL COUNCILS. Canones Concilii Niceni (^ci). Canon I. " Si quis a medicis in morbo excisus, vel a Bai-baris exectus est, is in Clero maneat. Si quis autem ciim esset sanus, seipsum execuit, eiim etiam in Clero recensitum cessare convenit, et deinceps nullum talem oportet promoveri. Quemadmodum autem hoc manifestum est, quod de lis qui de industria hoc agunt, et seipsos audent excindere, dictum est : ita si aliqui a Barbaris vel dominis castrati sint, inveniantur autem et ii alioqui digni, tales in Clerum admittit Canon." Canon II. " Quoniani multa, vel necessitate vel urgentibus alioqui hominibus, prEeter Canonem ecclesiasticum facta sunt, ut homines qui e vita gentili ad fidem nuper accessei'unt, et exiguo tempore cate- chumeni (id est initiati) fuere statim ad lavacrum spirituale deducant, et simul ac baptizati fuerint, ad Episcopatum vel I'resbyteratum provehant, recte habere visum est, ut nihil deinceps tale fiat. Nam et catechumeno tempore opus est, et post baptismum, probatione majore. Apertum enim est scriptum Apostolicum quod dicit, Non neophytum, ne intlatus in judicium incidat et diaboli laqueum. Si autem procedente tempore, animale aliquod peccatum circa personam inventum fuerit, et a duobus vel tribus testibus convincatur, cesset qui talis est a Clero. Qui autem prater hrec facit, nt qui magna; Synodo adversus esse audeat, ipse de clericatu in periculum veniet." Canon III. " Vetuit magna Synodus omnino, ne liceat Episcopo, nee Presbytero, nee Diacono, nee ulli penitus eorum qui sunt in Clero, introductam habere mulierem, prajterquam utique matrem vel sororem, vel amitam, vel eas solas personas quaj suspicionem effu- giunt." Canon IV. '' Episcopum oportet, maxime quidem ab omnibus qui sunt in provincia, constitui. Si autem sit lioc difficile, vel propter urgentem necessitatem, vel propter via3 longitudinem, tres omnino eundem in locum congregatos, absentibus quoque suffi-agium feren- tibus, scriptisque assentientibus, tunc ordinationem facere : eorum autem qure fiunt confirmationem, in unaquaque provincia ii j\Ietro- politano lieri." {a) See Synodicon sive PandcetK torum. GulielmusBeveregius,Oxon. Canonum S.S. Apostolorum et Con- 1(572. tiliorum ab Ecclesia Graeca recep- 2294 APPENDIX I. Canon V. " De iis qtii a communioiie scgrcgatl sunt, sive cleri- corum, sive laicorum sint onlinis, ab Episcopis qui sunt in unaquaquc provincia, valcat scntentia set'iindum canonem qui ])ronuntiat, eos qui alj aliis cjecti sunt non ab aliis ailmittendos. Examinctur autem, nunquid vel simultatc, vol contcntionc, vel aliqua ejusmodi Episcopi accibitate, congregatione pulsi sint. Ut lioc ergo convenicntem examinationcm accipiat. recte habere visum est. ut singulis annis, in nnaquaque provincia bis in anno Synodi tiant: ut cum omncs provincia) Episcopi in eundeni locum comniunitor convcniant, ejusmodi qu»s- tioncs examinentur: et sic, quos Episcopum oflendisse, constiterit, Juste esse a congregatione separati apud omnes vidcantur, donee Episcoporum congregationi videatur pro iis humaniorem ))roferre sententiam. Synodi autem fiant, una quidem ante quadragesimam, ut omnibus animi sordibus sublatis, purum munus Deo ofFeratur. Secunda autem circiter autumni tempus." Canon YI. " Antiqui mores serventur qui sunt in yEgypto, Lybia et Pentapoli, ut Alcxandrinus Episcopus liorum omnium potestatem habeat, quandoquidem et Episcopo Romano hoc est consuetum. Similiter et in Antiochia, et in aliis provinciis, suaprivilegia Ecclesiis serventur. lllud autem est omnino manifestum, quod si quis absque IMetropolitani sententia factus sit Episcopus, eum magna Synodus delinivit non esse Episcopum. Quod si quidem communi omnium electioni, qua; et rationi consentanea, et ex regula Ecclesiastica facta est, duo vel tres propter suam qua delectantur coutentionem con- tradicant, vincant plurium suftragia." Canon VII. "Quoniam obtinuit consuetude et antiqua traditio, ut qui est in iElia (/^) Episcopus, honoretur, habeat honoris conse- quentiam, Metropoli projjria dignitate servata." Canon A^III. " De iis, qui seipsos xaSuj-a;, id est, puros, quan- doque neminant, ad Catholicam autem et Apostolicam Ecclesiam accedunt, sanct?c Synodo visum est, ut impositis eis manibus sic in Clero maneant : ante omnia autem hoc in scriptis ipsos profeteri convenit, quod adhaMX'bunt et sequentur Catholica; Ecclesiam decreta: id est, quod et cum digamis communicabunt, et cum iis qui in per- secutione lapsi sunt, in quibus et tempus constitutum est, et oppor- tunitas pra?finita, ut ipsi sequantur in omnibus Catholicaj Ecclesiaj decreta. Ubi ergo omnes, sive in vicis, sive in urbibus, ipsi soli inveniuntur ordinati, qui invcniuntnr in Clero, erunt in eodem ordine. Si autem Catholicaj Ecclesia; Episcojjo vel Prcsbytero existente, accedunt aliqui, clarum est quod Ecclesiae quidem Ejjiscopus, Epis- copi dignitatem habebit : qui autem apud eos qui Cathari dicuntur, nominatur Episcopus, Presbyteri honoi-em habebit, nisi utique P^piscopo placeat ipsum nominis honorem impertire. Si autem hoc illi non placeat, vel Chorepiscopi vel Presbyteri locum excogitabit, ut esse omnino in Clero videatur, ne in civitate duo sint Episcopi." Canon IX. "Quicunque citra examinationcm promoti sunt Pres- byteri, vel examinati sua pcccata confessi sunt, eisque confessis, prreter Canonem moti homines manus imposuerunt, eos Canon non admittit. Quod est enim a rci)rehensione alienum, defendit Ecclesia." Canon X. " Quicunque ex iis qui lapsi sunt, vel per ignorantiam, (J/) Jerusalem— ci. Justin. Novella;, cxxiii. CANOXS OF THE FIRST FOUR GENERAL COUNCILS. 2295 vel scientibus iid qui promovcrunt, ordinati sunt, hoc Ecclesiastico Cauoni non praejudicat. li enim cogniti deponuntur." Canon XL " De iis qui sine necessitate, vol sine facultatum suarum ablatione, vel sine ullo periculo, vel aliquo ejusmodi, trans- gress! sunt, quod sub Licinii tyrannide factum est, Synodo visum est, et si humanitate indigni sunt, dementia tamen in eos uti. Quicunque ergo germane poenitentia ducuntur, tres annos inter auditores exigent, ut fideles, et septem annis prosternentur : duobus autem annis, absque oblatione, erunt orationum cum populo participes." Canon XII. "Qui autem a gratia quidem evocati, et primum suum ardorem ostenderunt, et cingula deposuerunt, postea autem ut canes ad suum vomitum revcrsi sunt, ut nonnulli etiam pecuniam profunderent, et beneticiis militiam assequerentur, lii decern annis prosternantur supplices, etiam post triennii auditionis tempus. In his autem omnibus examinare convenit consilium et speciem poeni- tentiaj. Quicunque enim, et metu, et lacrymis, et tolerantia, et bonis operibus, conversionem opere et non tantum habitu ostendunt, lii impleto auditionis tempore quod prtefinitum est, merito orationum communionem habebunt, cum eo quod etiam liceat Episcopo humanius aliquid de eis statuere. Quicunque autem non adeo graviter tulerunt, satisque sibi esse putarunt in Ecclesias ingredi ad conversionem, tempus omnino impleant." Canon XIII. " De iis autem qui excedunt, anticjua et canonica lex nunc quoque servabitur, ut si quis vita excedat, ultimo et maxime necessario viatico ne privetur. Si autem deploratus et communionem assecutus, rursus in vivos relatus sit, cum iis sit qui orationum sunt tantiim communionis participes. In summa autem, de quolibet ex- cedente, et Eucharistiae participationem petente, Episcopus cum ex- aminatione cum oblatione impertiat." Canon XIV. " De catechumenis, et qui lapsi sunt, visum est sancttfi et magnai Synodo, ut ii tribus annis tantimi audientes, postea orent, cum catechumeuis." Canon XV. " Propter multum tumultnm, et seditiones qua? fiunt, omnino visum est ut consuetudo qua3 prater Canonem in nonnullis partibus invenitur, tollatur, ut ii civitate in civitatem nee Episcopus, nee Presbyter, nee Diaconus transeat. Si quis autem post sancta; et magna) Synodi definitionem tale quippiam adgressus fuerit, vel si rei ejusmodi dederit, quod factum erit omnino infirmabitur, et Ecclesise restituetur cui Episcopus vel Presbyter ordinatus fuerit." Canon XVI. "Quicunque temcre et inconsiderate, nee Dei timorem pra; oculis habcntes, nee Ecclesiasticum Canonem scientes, Presbyteri vel Diaconi, vel quicunque omnino in Canone recensentur, ab Ecclesiis secesserint, ii in aliena Ecclesia nullo modo recipi de- bent, sed omnino cogendi sunt in suas ipsorum parochias redire. Vel si perseverent, eos a communione separates esse oportet. Sin autem etiam ausus fuerit quispiam eum qui ad alium pertinct, surripere, et in Ecclesia sua ordinare, non consentiente proprio Episcopo, a quo recessit qui in Canone censetur, irrita sit ordinatio." Canon XVIT. " Quoniam multi qui in Canone recensentur, plura habendi studium etturpe lucrum persequentes, divin^e scripturpe obliti 2296 AI'l'KNDIX I. sunt: (jui (licit, Argeiitum siimn iiou lUdit ad usuram : ot f'trncrantes, ccntcsinias exigunt: a-quiim censiiit sancta ot magna Synodus, ut si quis inventus fuerit post statutiim iisuras ex nintuo sumoro, vol earn rem alitor porscqui, sosquialteras exigens, vol aliqiiid aliiul cxcogitaro tiirpis quaestus gratia, e Clero deponatur, et sit alienus a Canone." Canon XVIII. " Pervcnit ad sanctam Synodum, quod in nonniUlis locis et civitatibus Diaconi dant I'resbytoris Kncliaristiani. quod neque Canon, nequo consuetudo tradidit, ut (jui oflerendi potostatem iion liabent, iis qui oilerunt, dent Corpus Ciiristi. Jam vero ilhid ctiam cognitum est, quod (piidam ex Diaconis etiam ante Ejiiscopos Euciiaristiam attingunt. II;oc ergo omnia auferantur, et Diaconi intra suas mensuras permaneant, scieiites quod sunt quidem Episcopi ministri, Presbyteris vero minores. Accipiant autem suo ordine Euciiaristiam i)ostFresbyteros, eis prajbente Episcopo vel Presbytero. .Sod nee in medio quidem Presbyterorum liceat Diaconis sedere. Id tit enim prteter Canonem et ordinem. Si quis autem non vult obedire, etiam post lias constitutiones, a diaconatu dcsistat." Canon XIX. " De Paulianistis, qui deinde ad Catholicam Eccle- siam confugerunt, statutum est, ut ii omnino rebaptizentur. Si qui vero tempore pr«?terito in Clericorum numero erant, siquidem a culpa et reprehensione alieni visi fuerint, rebaptizati ordinentur a Catholic£B Ecclesiaj Episcopo. Si vero examinatio eos non esse aptos dcprehendit, deponi eos oportet. Similiter autem et Dia- conissis, et omnino de omnibus qui inter Clericos anninnerantur, eadem forma servabitur. Diaconissarum autem meminimus, quae in habitu quidem censentur, quoniam nee ullam habent manuum imposi- tionem, ut omnino inter laicos ipsaj connumercntur." Canon XX. "Quoniam sunt quidam, qui in die dominico genu- flectunt, et ipsis diebus Pentecostes: ut omnia similiter in omni parochia serventur, visum est sanctte Synodo, instantes, Deo orationes effundant." Cunones ConciUl Constant'niopolitani. Synod. CONSTANXINOPOLlTAN.ii Ol^CUMENIC^ SECUNDJE. Canon I. " Statuorunt, qui Constantinopoli convenerunt sancti Patres, cccxviii. Patrum qui Nicsese convenerunt, fidem non abro- gari, sod firmam manere, et omnem lia-resin anatlicniatizari : et specialiter Eunomianorum sou Eudoxianorum; et Semiarriaiiorum, sive Spiritus sancti adversariorura, et Sabellianorum, et Marccllia- norum, et Pbotianorum, et Apollinaristarum." Canon II. "Episcopi ultra dicecesin in Eccleslas extra sues terminos ne accedant, nee Ecclesias confundant, sod secundum Canones, Alexandria- quidem Episcopus yEgyptum solam regat, orientis autem Episco])i, orientem solum administrent, servatis ])rivilegiis et pra;eminentiis, qua3 sunt in Nicajni concilii Canonibus Antioclienai Ecclesias. Et Asianai dioecesis Episcopi, quae sunt in sola Asiana administrent, et Ponticse Episcopi Poiiticam tant&m reo'ant, et Thraciaj Tbraciam. Non vocati autem Episcopi ultra dicecesin ne transeant, ad ordinationes, vel aliquas alias administra- tiones Ecclesiasticas. Scrvato autem priescripto de dia'cesibus CANONS OF THE FIRST FOUR GENERAL COUNCILS. 2297 Canone, clarum est quod unamquamque provinciam provincife Syno- dus administrabit, secundum ea qua; fuerunt Nicseffi definita. Qufe autem in barharis sunt gentibus, Dei Ecclesias, administrare oportct, secundiim patrum, quae servata est, consuetudinem." Canon III. " Constantinopolitanus Episcopus habeat prioris ho- noris partes post Romanum Episcopum, eo quod sit ipsa nova Eoma." Canon IV. " Statuerunt etiam de Maximo Cynico, et ejus petu- lantia et insolentia, qua; fuit Constantinopoli ; ut nee Maximus Epis- copus factus fuerit, vel sit, nee qui ab eo ordinati fuerunt, in ullo, qui- cunque sit, gradu Cleri : omnibus, et quaj circa ipsum fuerunt, et quae ab illo facta sunt, infirmatis." Canon V. " Quod ad volnmen attinet Occidentalium, etiam eos suscipimus qui Antiochiae unam Patris et Filii et sancti Spiritus Deitatem confitentur." Canon VI. " Quoniam multi Ecclesiasticum ordinem confundere et subvertere volentes, inimice et sycophantic^ adversus ortliodoxos Episcopos, qui Ecclesias admin istrant, accusationes quasdam con- fingunt, nihil aliud quam sacerdotum bonam famara lajdere, et in pace degentium populorum tumultus concitare conantes : ea de causa decrevit sancta Synodus Episcoporum, qui Constantinopoli convenerunt, non sine examine accusatores admittei'e, nee omnibus, eorum qui Ecclesias administrant accusationes permittere, nee omnes excludere. Sed si quis propriam quidem querelam, id est, privatam, intendat Episcopo, ut oppressus, vel alias injuria ab ipso affectus, in ejusmodi accusationibus, nee accusatoris personam, nee religionem examinari. Omnino enim oportet, et Episcopi conscien- tiam esse liberam, et eum, qui injuriam sibi factani esse conqueritur, cujuscunque tandem sit religionis, jus obtinere. Si autem sit crimen Ecclesiasticum, quod Episcopo intenditur, tunc examinare oportet personas accusatorum. Ut primiun quidem hsereticis non liceat orthodoxos Episcopos de rebus ecclesiasticis accusare. Ha^reticos autem dieimus. et qui olim ab Ecclesia ejecti sunt, et qui sunt postea a nobis anathematizati. Ad h;vc autem, et eos qui sanam quidem fidem confiteri prte se ferunt, in Schisma autem abeunt, et adversus Canonicos nostros Episcopos congrogationem faciunt. Prasterea autem, ct si aliqui eorum ab ecclesia ob aliquas causas priiis con- demnati et ejecti, vel excommunicati fuerint, sive ex Clero, sive ex laicorum ordine sint ; nee iis liccre Episcopum accusare priusquam proprium crimen absterserint. Similiter autem et eos, qui sub prioro accusatione laborant, non priiis ad Episcopi vel aliorum clericorum accusationera admitti, quilm se objectorum sibi criminum insontes ostenderint. Sed si nonnulli, nee lia-retici, nee excommunicati fue- rint, nee prius damnati, vel aliquorum criminum aecusati, dicant autem se habere Ecclesiasticas aliquas adversus Episcopum crimina- tiones, eos jubet sancta Synodus primiim quidem apud provinciiu Episcopos accusationem intendere, et coram eis probare crimina Episcopo objecta. Quod si evenerit, ut provinciales Episcopi cri- mina, qutc Episcopo intentata sunt, corrigere non possint, tunc ipsos accedere ad majorem Synodum dictcesis illius Episcoporum pro hac causa convocatorum, et accusationem non prius intendere, quam aequale sibi periculum scriptis statuant, siquidem in rebus exami- nandis, accusatum Episcopum calumniuri convicti fuerint. Si quis P. VOL. II. 7 H 2298 APPENDIX I. aiitcm lis, quse (ut prius declaratum est) decreta fuerunt, contemptis, aiisus fueiit vel lmj)eiatoris auics niolestia afficere, vel secularium principum judicia, vel universalem Synodum perturbare, neglectis omnibus diujcesis Episcopis, cum nuUo modo esse ad accusationem admittendum, ut qui Canonibus injuriam fecerit, et Ecclesiasticum oidinem everterit." Canon YII. " Eos qui rectae fidei se adjungunt, et parti eorum, qui ex Hsereticis servantur, recipimus, secundum suhjectam hie consequentiam et consuetudinem. Arrianos quidem et Macedonianos, et Sabbatianos, et Xovatianos, qui seipsos vocant Catharos et Sinis- tros; et Quartadecimanos sive Tetraditas, etApollinaristas, recipimus, dantes quidem libellos, et omnem ha^rcsin anathematizantcs, qua; non sentit ut sancta Dei Catholica et Apostolica Ecclesia : et signatos sive unctos primiira sancto clirismate, et frontem, et oculos, et nares, et OS, et aures ; et cos signantes dicimus, Signaculum doni Spiritus sancti. Atqui Eunomianos, qui una demersione baptizantur, et Mon- tanistas, qui hie dicuntur Phrvges, et Sabellianos, qui idem esse patrem et tilium decent, et alia quajdam perniciosa faciunt. Et alias omnes haereses (quoniam hie multi sunt, et maxime qui ex Galatarum regione prodierunt) (juicunque ex his rectse tidei adscribi volunt, ut Grascos admittimus, et priino quidem die ipsos Christianos facimus ; secundo, catechumenos; delude tertio, exorcizamus ipsos, ter in faciera eorum et aures insufflando. Et sic eos in Religionis fundamentis instituimus, et curamus ut diu in Ecclesia A'crsentur, et audiant scripturas, et tunc ipsos baptizamus." Canon VIII. " Eunomiani, una mersione baptizati, Sabelliani, et Phryges, tanquam Gentiles accipiantur." Canones Concilii Ephesini. Canoxes Sanct.^ et (Ecumenic^ tertio Synodi. Canon I. " Quoniam oportet etiam eos qui sancta3 Synodo non interfuerunt, propter aliquam causam, vel ecclesiasticam, vel cor- poralem, non ignorare ea quse in ipsa statuta sunt, vestrse sanctitati et dilectioni notum facimus, quod si quis provinciae Metropolitanus d sancta et universali Synodo deficiens, apostasise seu defectionis con- sessui ac conventiculo adhaisit, vel post hac adiipeserit, vel cum Celestio sensit aut senserit, is adversus suae provinciae Episcopos nihil penitus agere potest, omni Ecclesiastica Communione abhinc jam a Synodo ejectus, et ad nullum exercendum munus officiumquc idoneus existens. Sed et ij)sis provinciie Episcopis, et, qui sunt circumcirca, Metro- politanis orthodoxe sentientibus, oranino subjicietur, et de episcopatus gradu dijicietur." Canon II. " Si autem nonnulli provinciales Episcopi sanctae Synodo non interfuerunt et apostasiae accesserunt, vel accedere conati fuerunt, vel ciim etiara Nestorii depositioni subscripsissent, ad apostasiae confessum recurrerunt, ii omnlno, ut sanctae Synodo visum est, sint £i sacerdotio alieni, et gradu excidant." Canon III. " Si qui autem in unaquaque urbe, vel regione Clerici Bub Nestorio et iis qui cum ipso, sacerdotio sunt interdicti, eo quod recte sentiant, ut ii quoque proprium gradum recipiant, justum cen- CANONS OF THE FIRST FOUR GENERAL COUNCILS. 2299 suimus. Communiter autem omnibus, qui cum orthodoxa et universali Synodo consentiunt, Clericis jubemus, lis, qui desciverunt vel de- sciscunt, Episcopis nuUo penitus modo subjici." Canon IV. " Si qui autem Clerici defecerint, et ausi sint, vel pri- vatim vel publice, cum Nestorio aut Celestio sentire, eos quoque depositos esse sanctse Synodo justum visum est." Canon V. " Quicunque autem propter indigna sua facta a sancta Synodo, vel a propriis Episcopis condemnati sunt, et iis non Canonice, prout omnia tacit indiscriminatim, Nestorius, vel qui idem cum eo sentiunt, restituere tentaverint communionem, vel gradum, id nihil eis prodesse, et depositos niliilo secius manere justum putarunt." Canon VI. " Similiter autem, si qui voluerint, quje in sancta Ephesina Synodo de singulis acta sunt, quovis modo labefactare : decrevit sancta Synodus, si sint quidem Episcopi vel Clerici, a proprio gradu omnino excidei'e, si autem laici, excommunicates manere." Canon VII. "His lectis, decrevit sancta Synodus, non licere cuiquam aliam fidem aflerre, vel scribere, vel componere. quiim qute a Sanctis patribus, qui Nieete congregati sunt in sancto Spiritu, definita est. Qui autem aliam audent fidem componere, vel adducere, vel offerre iis qui se ad veritatis agnitionem volunt convertere, vel ex gentilitate, vel ex Judaismo, vel ex quacunque secta ; eos, si sint quidem Episcopi, vel Clerici, ab episcopatu esse alienos Episcopos, et a Clero clericos ; si autem sint laici, anatliematizari. Eodem autem modo si deprebensi fuerint aliqui, sive Episcopi, sive Clerici, sive laici, vel sentire, vel docere ea quae sunt in allata a Charisio Pres- bytero expositione de humanse naturae susceptione unigeniti tilii Dei, sive scelerata et perversa Nestorii dogmata, qute etiam subjecta sunt; subjiciantur sententipe hujus sancta? et universalis Synodi, ut scilicet Episcopus quidem sit ab Episcopatu alienus et depositus : clericus autem Clero similiter excidat. Si sit verd quis laicus, anatliematizetur et ipse, ut priiis dictum est." Canon VIII. " Rem prseter leges ecclesiasticas et sanctorum patrum Canones innovatam, et omnium libertatem attingentem, re- nunciavit nobis in primis plus Episcopus Riginus, et qui cum eo sunt Cypriorum provincise religiosissimi Episcopi, Zeno et Euagrius. Quamobrem quoniam communes morbi majori medicina opus habent, ut qui majus etiam damnum afterant, et maxime si neque antiqua consuetudo consecutaest, ut Antiochen?e civitatis Episcopus in Cypro ordinationes faciat, quemadmodum et libellis et propriis vocibus nos (locuerunt viri religiosissimi, qui ad sanctam Synodum aceesserunt; iis, qui sacrosanctis Cypri exclesiis prsesunt, fraudi ac probro non erit, nee ulla vis aut impedimentum eis afferetur, si secundum sanc- torum patrum Canones et antiquam consuetudinem, per se religiosis- simorum Episcoporum electiones faciant. Idem autem et in aliis dioecesibus, et, qu?e sunt ubique, provinciis servabitur: ut nullus religiosissimorum Episcoporum, provinciam aliam, quie non nuiltis retro annis et ab initio sub sua, vel eorum, qui ilium priecesscrunt, manu fuerit, invadat. Sed et si quis invaserit, et sibi per vim sub- miserit, eam reddat, ne patrum Canones transiliantur, nee sub sacer- dotalis muneris pra^textu secularis potestatis fastus subeat, neo libertatem paulatira imprudentes amittamus, quam nobis proprio sanguine dedit dominus Jesus Cliristus, omnium liominum liberator. 7 II 2 2300 APPENDIX I. Sancta? et iinivorsali Syiiodo visum est, iit iiiiicuique provinci;e pura et iiiviolata serveiitiir jura, quixi ab initio et multis retro annis liabet, secundum consuetudinem qua' Jam olini servata, potestatem habente unoquoque Metropolitano, aetornm excmplaria ad suam securitatcm accipere. Si quis autem constitutionem aiiquam iis, quae nunc definita sunt, repugnantem attulcrit, earn quoque esse irritam visum est toti sanctac et universali Synodo." Canones Concilii Chalcedonensis. Canon Es XXX. SaNCTvE et (EcUiMENIC^E QUARTyE SyNODI CiIALCEDONENSIS. Canon I. " Qui a. Sanctis patribus in unaquaque Synodo hucusque expositi sunt, observari Canones sequum censuimus." Canon II. " Si quis E])iscopus propter pecunias ordinationem fecerit,. et non venalem gratiam in venditioncm dcduxerit, et propter pecunias ordinaverit Episcopum, vel Chorepiscopum, vel Presby- terum, vel alicjuem eorum qui in Clcro annumerantur, vel propter pecunias promoverit oeconomum vel Defensorem, vel Paramonarium (sen Monasterii Administrum), vel omnino aliquem ex Canone, turpis quicstus gratia ; qui hoc tentasse convictus fuerit, de pro- prio gradu in periculum veniat; et qui est ordinatus, ex ordinatione vel promotione qune instar mercatorum venundatur, nihil juvetur : sed sit a dignitate vel curatione, (juam pecuniis adeptus est, alienns. Si quis autem adeo tuqiibus et nefariis lucris intercessor appa- ruerit, liic quoque, si sit quidem Clericus, proprio gradu excidat ; sin vcro Laicus sit vel Monachus, anathematizetur." Canon III. " Pervenit ad sanctam Synodum, quod eorum qui in Clerum cooptati sunt, quidam propter turpe lucrum alienas posses- siones conducunt, et secularia ncgotia exercent, divinum ministerium negligentes, secularium vero domos subeuntes, et eorum facultatum administrationes propter avaritiam suscipientes. Definiit ergo sancta et magna Synodus neminom deinceps, nee Episcopum, nee CIcricum, nee Monachum, vel possessiones vel res conducere, vel secularibus possessionum administrationibus seipsum ingerere : nisi utiquc ex lege ad inexcusabilem impuberum tutelam vocetur, vol civitatis Episcopus eum rerum Ecclesiasticarum curam gerere per- mittat, vel orplianorum, vel viduarum, quibus non providetur, et personarum, qua; Ecclesiastico auxilio maxime indigent, propter timorem Dei. Si quis autem quae statuta sunt deinceps transgredi aggressus fuerit, is pccnis Ecclesiasticis subjiciatur." Canon IV. " Qui vere et sincere monasticam vitam aggrediuntur, digni convenienti honore habeantur. Quoniam autem nonnulli monachio prajtextu utentes, et Ecclestiastica et civilia perturbant negotia, temere et citra ullam discriminis rationem in urbibus cir- cumcursantes, quinetiam monasteria sibi constituere studentes ; visum est nullum usquam a^dificare nee construere posse monasterium, vel oratoriam domum, pra^ter sententiam ipsius civitatis Episcopi ; Monachos autem, qui sunt in unaquaque regione etcivitate, Episcopo subjectos esse, et quietem amplecti, et soli jejunio et orationi vacare, in quibus nrdinati sunt locis fortitcr perseverantes, nee Ecclesiasticis CANONS OF THE FIRST FOUR GENERAL COUNCILS. 2301 nee secularibus negotiis se ingerere vel communicare, propria relin- quentes monasteria, nisi quandoqiie a civitatis Episdopo propter usum necessarium eis permissum fuerit, nullum autera in monastcriis servum recipi, ad hoc ut sit Monachus, propter voluntatem sui domini. Eum autem, qui banc nostram definitionem transgreditur, detinivimus esse excommunicatum, ne nomen Dei blasphemetur : civitatis autem Episcopum oportet earn quam par est monasteriorura curam gerere." Canon V. " De Episcopis, vel Clericis, qui a civitate in civitatem transeunt, placuit eos qui editi simt a Sanctis patribus Canones, vires obtinere." Canon YI. " Nullum absolute ordinari, nee Presbyterum, nee Diaconum, nee omnino aliquem eorum qui sunt in ordine Ecclesi- astico, nisi specialiter in Ecclesia civitatis vel pagi, vel martyrio, vel monasterio, is qui ordinatur, designetur. Eos autem qui absolute ordinantur, decrevit sancta Synodus irritam ac invalidam habere ejusmodi manuum impositionem, et nusquam exercere ac operari posse ad ejus, qui ordinavit, contumeliam." Canon VII. " Eos qui in Clero semel ordinati sunt, et itidem Monachos, statuimus nee ad militarem expeditiouem, nee ad secu- larem dignitatem posse venire. Qui autem hoc audent, et uon poenitentia ducti ad id revertuntur, quod proptef Deum priris elegerant, anathematizari." Canon VIII. " Clerici ptochotrophiorum, monasteriorum, et tem- plorum martyrum, sub potestate Episcoporum, qui siuit in unaquaque civitate, ex sanctorum patrum traditione permaneaut, et non per arrogantiam se a proprio Episcopo subducant. Qui banc autem constitutionem evertere ausi fuerint ; si sint quidem Clerici, Canonum poenis subjiciantur ; si autem Monaclii vel laici, sint excommuni- cati." Canon TX. " Si quis Clericus habeat cum Clerico litem, proprium Episcopum ne relinquat, et ad secularia judicia ne excurrat ; sed causam prius apud proprium Episcopum agat; vel Episcopi voluntate apud eos, quos utraque pars elegerit, judicium agitetur. Si quis autem prjeter hsoc feccrit, Canonicis poenis subjiciatnr. Si Clericus autem cum proprio vel etiam alio Episcopo litem habeat, a pro- vincipe Synodo judicetur. Si autem cum ipsius provincise metro- politano Episcopus vel Clericus controversiam habeat, dioecesis exarchum adeat, vel Imperialis urbis Constantinopolis thronum, et apud eum litiget." Canon X. " Non licere Clerico in duarum civitatum Ecclcsiis eodem tempore in catalogum referri, et in ea, in qua a principio ordinatus est, et in ea, in quam tanquam ad majorem confugit, propter inanis gloria? cupiditatem: eos autem, qui hoc faciunt, pro- priae Ecclesipc restitui, in qua ab initio ordinati sunt, ut illie solum ministrent. Sed si jam quispiam ex alia in aliam Ecclesiam trans- latus est, nihil prioris Ecclesia; vel corum qua; sub ea sunt mar- tyriorum, vel ptocbotropliiorum, vel xenodochiorum rebus commu- nicare. Eos autem qui ausi fuerint, post magna; hujus et universalis Synodi definitionem, aliquid eorum, quaj nunc sunt prohibita, facere, statuit sancta Synodus eos proprio grada excidere." 2302 APPENDIX I. Canon XT. " Omncs paiipercs, ot qui aiixilio indip^ent, cum ex- aminatione, cum epistolis .seu pacifici.s Kcclesiasticis solis viam ingredi statuimus, et non cum commondatitiis; quoniam literas com- mendatitias iis solis per.sonis, qua? sunt suspcctse, prseberi oi)ortet." Canon XII. " Pervcnit ad nos, quod quidam, cum prsetcr ritus Ecclesiasticos ad ]ii>tentatus accessissent, per pragmaticas unam pro- vinciam in duas diviseiunt; ut ex eo duo essent Metropolitani in eadcm provincia. t?tatuit ergo sancta Synodus, ne Episcopus deince])s tale quid audeat; quoniam is, qui hoc aggreditur, a suo gradu excidit. Quaccunque autem civitates per literas Imp. Metropolis nomine honorata; sunt, solo honore fruantur, et qui ejus Ecclesiam ad- ministrat Episcopus, servatis scilicet veraj Metropoli suis juriljus." Canon XIII. " Externos Clericos et ignotos in alia civitate sine proprii Episcopi commendatitiis literis nusquam ullo modo minis- trare." Canon XIV. " Quoniam in nonnullis provinciis concessum est Lectoribus et Cantoribus uxores ducere, decrevit sancta Synodus nulli eorum licere diversaj a recta opinionis uxorem ducere ; eos autem qui ox ejusmodi matrimonio liberos susceperunt, si eos quidem baptizare apud hajreticos prjcvenerint, ad catholicae Ecclesise communionem adducere. Si autem non baptizaverint, non posse eos apud hsereticos baptizare, sed neque ha?retico, vel Judaeo, vel Gentili matrimonio conjungere, nisi utique persona, quje orthodoxse con- jungitur, se ad orthodoxam fidem couvertendam spondeat. Si quis autem hoc sanctfe Synodi decretuni transgressus fucrit, Canonicis poenis subjiciatur." Canon XV. " Diaconis.sam non esse mulierem ordinandam ante annum quadragesimum, et eam cum accurata examinatione. Si autem post quam onlinatione suscepta ministerio aliquo tempore permansit, seipsam matrimonio tradiderit, Dei gratia^ injuriara faciens, ea, una cum illo qui ei conjunctus est, anatheraatizetur." Canon XVI. " Virginem, qua; se domino Deo dedicavit, similiter et monaclias non licere matrimonio conjungi. Sin autem hoc fecisse invent! fuerint, sint excommunicati. Ostendendfe autem in eos humanitatis auctoritatem habere statuimus Episcopum ejus loci." Canon XVII. " Qua? sunt in unaquaque provincia, rurales vica- nasque parochias, firmas et inconcussas manere apud eos qui illas tenent Episcopos : et maximfe si xxx annorum tempore eas sine vi detinentes administraverint. Si autem intra xxx annos fuit aliqua vel fuerit de iis controvcrsia, licere iis ([ui injuriam sibi fieri dicunt, deiis litem movere apud Synodum provincife. Si quis autem injuria afficiatur a proprio Metropolitano, apud exarchum dioecesis, vel Constantinopolitanam sedem litiget, sicut prius dictum est. Sin autem etiam civitas aliqua ab imperatoria auctoritate innovata est vel etiam deinceps innovata fuerit, civiles et publicas formas Eccle- siasticarum quoque parochiarum ordo consequatur." Canon XVIII. " Conjurationis vel sodalitatis crimen ab externis etiam legibus est omnino prohibitum ; multo autem magis hoc in Dei Ecclesia fieri prohibere oportet. Si qui ergo Clerici vel Mo- nachi invcnti fuerint, vel conjurati, vel sodalitates comparantcs, vel CANONS OF THE FIRST FOUR GENERAL COUNCILS. 2303 aliquid struentes adversus Episcopos aut Conclerlcos proprio gradu omiiino excident." Canon XIX. " Pervenit ad aures nostras, quod in provinciis Canonibus constitutse Episcoporum Synodi non fiant, et ex eo multa Ecclesiastica negligiintur, qiue correctione indigent. Statuit ergo sancta Synodus secundum sanctorum patrum Canones, ut bis in anno eundem in locum conveniant uniuscujusque provincias Episcopi, ubi Metropolis Episcopo melius esse videbitur, et singula emergentia corrigant ; Episcopi autem, qui non conveniant, sed in propriis urbibus domi manent, si quidem sani sunt, et ab omni inexcusabili et necessario negotio liberi, fraterne reprehendantur." Canon XX. " Clericos in Ecclesiis ministerio fungentes, quemad- modum jam statuimus, non licere in alius civitatis Ecclesia ordinari, sed ilia esse contentos, in qua ab initio ut ministrarent digni habiti sunt ; prseter illos, qui amissa sua patria in aliam Ecclesiam neces- sario transierunt. Si quis auten* Episcopus post hoc decretnm Clerum, qui ad alium Episcopum pertinet, susceperit, placuit esse excommunicatos, eumque qui susceptus est, et eum qui suscepit, donee Clericus qui migravit in suam Ecclesiam redeat." Canon XXI. " Clericos vel Laicos, Episcopos aut Clericos accu- santes, non indiscriminatim, ac citra inquisitionem admittere ad accusationem, nisi eorum existimatio prius examinata fuerit." Canon XXII. "Non licere Clericis post mortem proprii Episcopi res, quae ad ipsum pertinent, rapere, quemadmodum et adsumentibus, proliibitiim est : aut qui hoc fecerint, de proprio gradu in periculum venire." Canon XXIII. " Pervenit ad aures sanctae Synodi, quod Clerici quidam et Monachi, quibus nihil a proprio Episcopo mandatum est, et sunt etiam nonnunquam ab ipso communione segregati, ad Imp. Constantinopolis urbem se conferunt, et in ea diu morantur, turbas excitantes, statumque Ecclesiasticum perturbantes, et aliquarum domos subvertunt. Statuit ergo sancta Synodus, ut ii prius a sanc- tissimge Constantinopolitan?e Ecclesia? defensore admoneantur, ut Imp. urbe excedant. Si autem in iisdem negotiis impudenter perse- verent, ut per ipsum defensorem vel inviti ejiciantur, et in propria loca revertantur." Canon XXIV. " Qua; semel voluntate Episcopi consecrata sunt monasteria, perpetuo mancre monasteria, et res qua; ad ea pertinent servari, eaque non amplius fieri secularia habitacula. Eos autem, qui hoc fieri permittunt, Canonum pocnis subjici." Canon XXV. " Quoniam nonnulli Metropolitan!, ut spcpe a nobis auditum est, et greges sibi commissos nogligunt, et Episcoporum ordinationes differunt: sanct» Synodo ])lacuit, ut intra tres menses ordinationes fiant, nisi inexorabilis utique neccessitas effecerit ut dilationis tempus prorogetur. Si autem hoc non fecerint, eos Eccle- siasticai poena; subjici. Vidua; vero Ecclesitv rcditum apud Ecclesite ceconomum salvum custodiri." Canon XXVI. " Quoniam in nonnullis Ecclesiis, ut ssepe a nobis auditum est, Episcopi absque oeconomis tractant res Ecclesiasticas, 2304 APrEXDix i. placuit omnem Ecclesiam Episcopiini lisibentcm, ex proprio Clero cccoiioiniim quoquc Iialjere, qui ex Kpiscopi sui senteiiti;1 res Ecclesi- asticas dispenset: ut nee sine tcstihiis sit Ecclesifc administratio, atque ideo res ejus dissipentur, ct i)robrum ac dedecus sacerdotio inuratur. Si autem Iiuc nou fecerit, eura Diviuis etiam Canonibu^ subjici." Canon XXVII. "Eos qui nomine conjugii mulieres rapiunt, vel opem ferunt, vel consentiunt iis qui rapiunt, statuit Synodus, si sint quidem Clerici, proprio gradu excidere ; siii autem Laici, anatliema- tizari." Canon XXVIII. " Sanctorum patrum dccreta ubiquc se(iuentes, ct Canonem, qui nuper lectus est, centum et quin(iuaginta Dei amantis- simorum Episcoporum agnoscentes, eadem quoque et nos dccernimu.s ac statuimus de privilegiis sanctissima; Ecclesiaj Constantinopolis novae Rorase. Etenim antiqua^ Romac throno, quod urbs ilia impe- raret, jure patros privilegia tribuere. Et eadem consideratione moti centum quinquaginta Dei amantissimi Episcopi, sanctissimo novje llonuc throno oetpialia privilegia addixerunt, recte judicantes, nrbem, qu?c et imperio et senatu honorata sit, et resent Recusants, Every Parson, Vicar, or Curate, sliall carefully inform themselves every year hereafter, hoAvmany Popish Recusants, Men, Women and Children above the age of tliirteen years ; and how many being Popishly given (who though tliey come to the Church, yet do refuse to receive the Commiuiion) are Inliabitants, or make their abode either as Sojourners or common Guests in any of their several Parishes, and shall set down their true Names in Writing (if they can learn them) or otherwise such Names as for the time they carry, distinguishing the absolute Recusants from half Recusants: and the same, so far as they know or believe, so distinguished and set down under their hands, shall truly present to their Ordinaries before the Feast of the Nativity next ensuing, under pain of Suspension to be inflicted ujion them by their said Ordinaries, and so every year here- after upon the like pain, before the Feast of St. John Baptist. Also we Ordain, 'J'hat all such Ordinaries, Chancellors, Commissaries, Archdeacons, Officials, and all other Ecclesiastical Officers, to whom the said Presentments shall be exiiibited, shall likewise within one Month after the receipt of the same, under pain of Suspension by the Bishop from the execution of their Offices for the space of half a year (as often as they shall oflend therein) deliver them, or cause to be delivered to the Bisliop respectively ; who shall also exhibit them to the Archbishop within six Weeks, and tlie Archbishop to his Majesty within other six Weeks after lie hath received the said pre- sentments. CONSTITUTIONS, ETC. OF THE CHURCH OF ENGLAND. 2319 115. Ministers and Churchioardens not to he sued for Presenting. At pp. 1353, 1354. 116. Churchwardens not hound to present oftener than twice a year. Part at p. 1354, part at p. 1355, and the rest at p. 1352. 117. Churchwardens not to he troubled for not presenting oftener than twice a year. 118. The old Churchwardens to make their presentments before the new he sworn. These canons are to be found at pp. 1354, 1355. 119. Convenient time to he assigned for framing Presentments. At pp. 1352, 1353. 120. None to be cited into Ecclesiastical Courts by Process of quorum nomina. At p. 1280. 121. None to he cited into several Courts for one Crime. At pp. 1357, 1358. 122. No Sentence of Deprivation or Deposition to he pronounced against a Afinister but by the Bishop. At pp. 1398, 1399. 123. No Act to be sped hut in open Court. At p. 1225. 124. No Court to have more than one Seal. At p. 1201. 125. Convenient places to be chosen for the keejnng of Courts. At p. 1200. Canon 126 relates to the now abrogated jurisdiction of the Ecclesi- astical Courts in testamentary causes. Its title is as follows: — Peculiar and Inferior Courts to exhibit the original Copies of Wills into the Bishops' Pegistry. JUDGES ECCLESIASTICAL AND THEIR SURROGATES. 127. The Quality and Oath of Judges. In part at pp. 1190, 1191. The rest of the Canon is as follows: — And likewise all Chancellors, Commissaries, Officials, Registers, and all other that do now Possess or Execute any Places of Ecclesiastical Jurisdiction, or Service, shall before Christmas next, in the presence of the Archbishop or Bishop, or in open Court, under whom or where they exercise their Offices, take the same Oaths, and Subscribe as before is said ; or upon refusal so to do, shall be Suspended from the execution of their Offices, until they shall take the said Oaths, and Subscribe, as aforesaid. 128. The Quality of Surrogates. At p. 1191. 2320 APPENDIX 11. rilOCTORS. 129. Proctors not to retain Causes without the lawful Assignment of the Parties. At p. 1221. 130. Proctors not to retain Causes without the Counsel of an Advocate. For Lessening and Abridging tlic multitude of fruits, and Conten- tions, as also for Preventing the Complaints of Suitors in Courts Ecclesiastical, who many times are overthrown by tlie oversight and negligence, or by the ignorance and insufficiency of Troctors ; and likewise for the furtlierance and . . . The rest of the canon is to be found at p. 1217. 131. Proctors not to conclude in any Cause without the Knowledge of an Advocate. At p. 1217. Canon 132 relates to the now abrogated jurisdiction of the Ecclesi- astical Courts in testamentary causes. Its title is as follows : — • Proctors prohibited the Oath in animam domini sui. 133. Proctors not to he clamorous in Court. Forasmuch as it is found by experience that the loud and confused cries and clamours of Proctors in the Courts of the Archbishop are not only troublesome and offensive to the Judges and Advocates, but also give occasion to the standers-by of contempt and calumny toward the Court itself, that more respect may be had to the dignity of the Judge than heretofore, and that causes may more easily and commodiously be handled and despatched : we charge and enjoin, that all Proctors in the said Courts do especially intend, that the acts be faithfully entered and set down by the Registrar, according to the advice and direction of the Advocate ; that the said Proctors refrain loud speech and baltbling, and behave themselves quietly and modestly; and that, wiien either the Judges or Advocates, or any of them, shall hai)pen to speak, they presently be silent, upon pain of silencing for two whole terms then immediately following every such offence of theirs. And if any of them shall the second time offend Jierein, and after due monition, shall not reform himself, let him be for ever removed from his practice. REGISTKARS. 134. Abuses to be reformed in Registrars, At pp. 1225, 1226. 135. A certain Rate of Fees due to all Eccksiaslical Officers. No Bishop, Suffragan, Chancellor, Commissary, Archdeacon, Offi- cial, nor any other exercising Ecclesiastical Jurisdiction whatsoever, nor any Register of any Ecclesiastical Courts, nor any Minister belonging to any of the said Officers or Courts, shall hereafter, for any Cause incident to their several Offices, take or receive any other or greater Fees, than such as were certified to the most Reverend Father in God, John, late Archbishop of Canterbury, in the Year of CONSTITUTIONS, ETC. OF THE CHURCH OF ENGLAND. 2321 oiu" Lord God One thousand five hundred ninety and seven, and were by him Ratified and Approved, under pain tliat every such Judge, Officer or Minister off"ending herein shall be Suspended fi-om the Exercise of their several Offices, for the space of six Months for every such Oftence. Always provided, that if any Question shall arise concerning the certainty of the said Fees or any of them, then those Fees shall be held for lawful, which the Archbishop of Canter- bury for the time being shall under his Hand appi'ove, except the Statutes of this Realm before made, do in any rarti(;ular Case express some other Fees to be due.- Provided furthermore, that no Fee or Money shall be received either by the Archbishop, or any Bishop or Suffragan, either directly or indirectly, for admitting of any into Sacred Orders, nor that any other person or persons under the said Archbishop, Bishop or Suffi'agan, shall for Parchment, Writing, Wax, Sealing, or any other respect thereunto appertaining, take above Ten shillings, under such pains as are already by law pre- scribed. 136. A Table of the Rates and Fees to he set up in Courts and Registries. We do likewise constitute and appoint, Tliat the Registers belong- ing to ever}' such P]cclesiastical Judge, shall place two Tables, con- taining tlie several Rates and Sums of all the said Fees; one in the usual Place or Consistory where the Court is kept, and the other in his Registry, and both of them in such sort, as every man, whom it concerneth, may without difficulty come to the View and Perusal thereof, and take a Copy of them ; the same Tables to be so set up before the Fea^st of the Nativity next ensuing. And if any Register shall fail to place the said Tables according to the Tenor hereof, he shall be Suspended from the execution of his Office, until he cause the same to be accordingly done ; And the said Tables being once set up, if he shall at any time remove or suffer the same to be removed, hidden or any way hindred from sight, contrary to the true mean- ing of this Constitution, he shall for every such Offence be Suspended from the Exercise of his Office for the space of Six Months. 137. The whole Fees for shewing Letters of Orders and other Licences due hut once in every Bishop's Time. At p. 1349. APPARITORS. 138. The Ninnber of Apparitors resU-ained. At pp. 1240, 1247. AUTHORITY OF SYNODS. 139. A National Synod the Church Representative. 140. Synods conclude as well the Ahsent as the Present. 141. Depravers of the Synod censured. These canons are to be found at p. 1958. 2322 APPENDIX ir. We (<^') of Our Princely Inclination, and Royal Care for the Main- tenance of the present Estate and (iovornmcnt of the Cliurch of England, by the Laws of this Our liealm now Settled and Esta- blished, having diligently, with great Contentment and Comfort, read and considered of all these their said Canons, Orders, Ordinances, and Constitutions, agreed upon, as is before expressed ; and finding the same such, as we are perswaded will be very profitable, not only to our Clergy, hut to the whole Church of this Our Kingdom, and to all the true Members of it (if they be well observed). Have therefore for Us, Our lloirs and Lawful Successors, of Our Especial Grace, certain Knowledge, and mccr Motion, given, and by these Presents do give ( )ur Royal Assent, according to the Form of the said Statute or Act of Parliament aforesaid, to all and every of the said Canons, Orders, Ordinances and Constitutions, and to all and every thing in them contained, as they are before written. And furthermore. We do not only by Our said Prerogative Royal, and Supreme Authority in Causes Ecclesiastical, Ratifie, Confirm, and Establish, by these Our Letters Patents, the said Canons, Orders, Ordinances and Constitutions, and all and eA'cry thing in them contained, as is aforesaid ; but do likewise Propound, Publish, and straightway Enjoyn and Command by Our said Authority, and by these our Letters Patents, the same to be diligently observed, executed, and equally kept by all Our Loving Subjects of this Our Kingdom, l)oth within the Province of Canterbury and York, in all Points wherein they do or may concern every or any of them, according to this (3ur Will and Pleasure hereby signified and ex- pressed : And that likewise for the better Observation of them, every Minister, by what Name or Title soever he be called, shall in the Parish Church or Chapel where he hath Charge, read all the said Canons, Orders, Ordinances and Constitutions once every year, upon some Sundays or Holydays in the afternoon before Divine Service, dividing the same to such sort, as that the one half may be Read one Day, and the other another Day: The Book of the said Canons to be provided at the Charge of the Parish betwixt this and the Feast of the Nativity of Our l^ord God next ensuing: Straightly charging and commanding all Archbishops, Bishops, and all other that exer- cise any pjcclcsiastical Jurisdiction within this Realm, every man in his place, to sec, and procure (so much as in them lieth) all and every of the same Canons, Orders, Ordinances and Constitutions to be in all Points duly observed, not sparing to execute the Penalties in them severally mentioned, upon any that shall wittingly or wil- fully break, or neglect to observe the same, as they tender the Honour of God, the Peace of the Church, the Tranquillity of the Kingdom, and their Duties and Service to Us their King and Sove- reign. In Witness, &c. (a) James I. APPENDIX III. AS TO THE EARLY HISTORY OF THE BRITISH CHURCH. "The groundlessness of the so often alleged 'Orientalism' of the " early British Church, — Oriental in no other sense than that its " Christianity originated like all Christianity in Asia, and found its " way to Britain through (most probably) Lyons, and not through " the then equally Greek Church of Kome, but without imprinting " one single trace upon the British Church itself of any one thing in " a peculiar sense Greek or Oriental,— the sweeping away of ficti- " tious personages like King Lucius, or of gratuitous assumptions " like that of S. Paul's personal preaching in these islands, — the " placing the British Easter controversy upon its right footing, once " more of a mere confusion of cycles, — these and the like results, " whatever ingenious partizans on either side may make of them, " are certainly interesting to our patriotism, and may perhaps be " made remotely practical for present polemics. Much again among " the specially Welsh documents is chiefly interesting, except to the " inhabitants of the Principality itself, in the way of illustrating " national character as impressed vividly upon a national Church " rather than in any larger sense. But other points emerge in the " volume of still living interest. " The futility, injustice, and utter mischief to discipline, of Papal ap- " peals, considered solely in their practical aspect, and as exhibited in " the cases of Bishop Urban and ofGiraldus in the beginnings resjiec- " tively of the 12th and 13tli centuries, — tlie contest between Chap- " tcr. Crown, and Pope, for the riglit of nomination to Bishoprics, a " contest complicated in Wales by questions of race, and of Englisli " domination,— the well-known Archiepiscopal summons to a synod " in 1125, mentioning ' permission' given to the Papal legate to hold " it, — the repeated mention of diocesan synods, — the freedom and " self-government accorded to the native Welsli Church of almost " all dates, and diminished gradually as Henry IIL and Edward L " brought Englisli law to bear upon tlie subject, pori^^assji with tlieir " gradual and attempted Anglicizing of Wales, — the fearful abuse of " spiritual powers and the exceeding worldliness of the Church, " exhibited in all the relations of England to Wales during tlie same " }ieriod, and especially in the monstrous wickedness with which " excommunications and interdicts were scattered about at random, " while the darker shades of the picture are relieved by the unselfish " charity and piety, however oddly expressed, of such as Archbishop 2324 AITENDIX III. " Pi'ckliaiii, and by the obviously sincere religion of Edward him- " self, — the commencement of that l)ane of tlie Welsli Cliiireli, the '' imposing upon it of a clergy that could not speak Welsh, and the " treating its sees as mere pieces of j)referment, — all these are surely " subjects which have a living interest, and belong to questions " of wliich tlie moving forces are active in the present day" (a). (rt) Councils and Kcclesiastical Documents relating to Great Britain and Ireland. Ed. A. W. Haddan, 15.1).. and W. Stutjhs, M.A. Vol. I. Preface, p. xviii. See an accoinit of the formal scliism between the British and the JSaxon (and Ron)an) Churches on the two points of Easter and Baptism, lb. App. D. APPENDIX IV. RULES AND REGULATIONS To he observed hi all Causes, Suits or Proceedings instituted in the Arches Court of Canterbury. The official principal of the Court of Arches having considered it expedient that some of the existing orders and regulations now observed in tlic proceedings of tlie said court should be amended, and that additional orders should be made for further expediting Order, and regulating the said proceedings, does hereby order and direct tliat the following rules and regulations (in lieu of the existing rules and regulations) shall be observed from and after the 1st January, 1867. 1. All decrees, citations, monitions, inhibitions, compulsories, and Decrees, &c. other instruments under seal, shall be prepared in and issued from to he prepixred in the registry of this court, in forms to be approved of by the judge, ^' on written application (from the j)roctor of the party or parties requiring the same, and signed by him), and no act of court sliall be Xo act necessary necessary to lead such decrees, citations, monitions, inhibitions, to lead same. compulsories, or other instruments, and the same shall bear date on the day on which they are respectively issued. 2. All decrees, citations, monitions, inhibitions, compulsories, and Decrees, &c. re- other instruments lieretofore returnable or brought into court or in tunuibie in chambers, shall be returnal)]c or brought into the registry of the '^*^''''* '^^* Arches Court, and the said decrees, citations, monitions, inhibitions, compulsories, and all other instruments so returned or brought into the said registry shall have the same full force and effect in law as the like instruments have lieretofore had when returned into court. 3. All such instruments shall be so returnable, if served within Decrees. &c. wheu fifty miles of London, on the third day after service, and if beyond uifde returnable, that distance on the sixth day after service, and if not returned into the registry witliin three days of the day on Avhicli they are so returnable, they shall be void and of none effect, save and except if not returned, that this rule sliall not apply to compulsories, and that monitions for ■*"'''■• transmission of process shall be returnable in ten days, and not be void if not returned within that period. The jjroctor shall file his proxy in the registry on the day on which he returns his decree. 4. The return of all instruments into the registry shall be entered Book for entering by the registrar on the day on which they are so returned in a book '■eturns. to be kept for tiiat jjurpose. 5. An appearance shall be entered in the registry by the jn-octor Appennmce to be for the party cited, within six days after the return of the decree or ^|j"-^""'-J '" s'x citation, and he shall file his proxy at the same time, and if no such n "no" appearance, 2326 APPENDIX IV iiiny proceed in default. Articles, kc. to be flle)^'^" ^y ^^'^- examinations and cross-examinations may be conducted either by counsel or proctors, or by the examiner or commissioner, as the attend! '"''^ proctors may determine, and where counsel are employed the fees of one counsel may be allowed on taxation. 18. If the judge, on application, directs the evidence of the wit- shorthand iiesses in any cause to be taken down by a shorthand writer, a trans- ^'"ter's notes to cript of the notes so taken by liim sliall be admitted as proof of such evidence if he has been previously sworn to report faithfully. 19. In any compulsory requiring the attendance of witnesses, it in compuisories sliall be competent to insert a clause (where applied for) requiring " '^"ire^d^ ["''^ro ^^ any witness or witnesses to produce any paper, book, or document uuce papers, that may be considered material to the interest of the cause. 20. In all cases where documents or papers in possession of either Notice as to party are required to be produced at the hearing of the cause, a <''^fi""ent.s to be notice shall be left in the registry, signed ])y tlie proctor of tlie l»arty, hearing! requiring their production three days, at least, before the hearing of the cause. 21. Articles, libels, petitions, or pleas shall be headed in the form Articles to bo annexed hereto (a), and shall shortly set forth or plead the several shortencii. facts necessary to substantiate the charge or defence. (a) The form is thus given: Form of Heading of Articles, Libels, Petitions, or Pleas. In the Arches Court of Canterbury. The Office of the Judge promoted by A. v. B. The Proctor for the (Tromoter or Respondent) alleges and propounds as follows. 2328 APriCNDIX IV In proooolliips aKiiiiisl cliTks not nei-i'ssury to plond onlcnn, institution, &e. Appeal to be prosfcuteil within one inunth. Otliorwlsc pro- citHllnKs to continue. Tiill of costs to be ltism, ib, font for, 641. time of, ib. minister not to delay, ib. previous notice of, ih. godfathers and godmothers, ib. their office, 612. naming the child, ib. dipping, ib. sign of the cross, ib. private baptism, 643. lay baptism, 644. doctrine oflloman Church respecting, 647. ofciiildren of dissenters, ib. of those of riper years, 648. Gorliam case, ib. registration of, 649. B\ri'\SM-co„liniietl. no fee to be demanded for, 664, 160G. A,id. Ixx. BARREN LAND, when to pay tithes, 14S9, 1490. BASTARDS, marriage of, 7 I i. BATTLE, dean of, 259. BAYLEY, BARON, judgment of, 351 — 355. BEADLi:, duties of, 1887. BEDE, 25, 26, 350, 892, 2035. BEES, tithe of, 1488. BELLS, when to be tolled, 83S. to be provided by parishioners, 925. canons as to ringing of, 1756. opinion of Lord Stowell as to, 1757. BENEDICT XIV., 1917. BENEFICE, entry on, 328. ■ admission to, 467. institution, difference between, and col- lation, ib. oath against simony, ih. of canonical obedience, 468. of allegiance, ib. assent to Articles and Prayer Book, 468, 482. who siiould institute, 470. place of institution, ib. form of, 471. entry in register, 472. evidence of, ib. fee for, 473. effect of, 475. trial of, 476. superinstitution, ih. compounding for lirst fruits, ib. induction, 477. fee for, 479. effect of, ib. of temporal cognizance, 480. bishop to apportion duties where two spiritual persons are instituted, 480—482. requisites after induction, 482 — 481'. perpetual curate put in possession by licence. 486. vacation of, 495. may be divided or consolidated, 552. none but priests to hold, 954. simoniacal presentation to, 1110. INDEX. 2335 BENEFICE— conlinued. corrupt institution, 1110. resignation, 1111. charges on, 1717. special restraint of, ih, cases on act, ib. what charges may be made, 1722. benefices without cure may be charged, 1723. augmentation of, principal statute as to, 1 & 2 Will. 4, c. 45..211G. by private persons, 2110. by impropriators, 2110, 2115. gifts of lands and goods, 2112. for building churches and manses, and for glebes, ih. restrictions on, 2113. grants of waste, ib. as to gifts taken by ministers, 2114. by colleges and hospitals, 2116. leases on augmented benefices, 2117 — 2120. recent law as to, ib. by ecclesiastical corporations, 2120, 2121, 2137. as to what benefices are to be raised in value, 2122. how and by whom powers of 1 & 2 Will. 4, c. 45, are to be exercised, 2122—2125. as to patrons, 2125, 2126. as to custody of instruments, 2126. extension of provisions of, by 17 & IS Vict. c. 84.. 2128. by annexation of sinecures, 2131. under 3 & 4 Vict. c. 113, ih. by 4 & 5 Vict. c. 39.. 2132. by corporations sole, ib. effect of 2 & 3 Vict. c. 49, on aug- mented church or chapel with dis- trict, ib. order in council for, 2133, 2135. effect of 6 & 7 Vict, c.37, as extended, 2136. 19 & 20 Vict. c. 104.. 2138. on exchange, 2140. by municipal corporations, ih. by parishioners, ib. by lord chancellor, ih. See Advowson; CoMMENDAjr; Ex- change; Lapse; IIesiunation; Sequestration; Union; Vaca- tion. BENEFIT OF CLERGY, 625. BERKELY. BP., teaching of, as to confession, 606. BEVERIDGE, BP., 1918. BIBLE, HOLY, to be provided by parish, 926. BIDDING PRAYER, THE, 1025, 1026. BIER, to be provided by parish, 926. BIRETTA, 919, 920. BISHOPS, holy orders to be conferred by, 5. right of, to refuse ordination, ib. early history of, 21, election of, 24, 38. Hooker's description of, 26. age of persons to be made, 27. bishoprics founded by Henry VIII. enactments of 6 & 7 Will. 4, c. 77, respecting, 28. recommendations as to, ib. income of, 32. consecration of archbishops and bishops, 38. form of, 38, 56, 59. crown's patronage over, 40. conflict of the investitures, ih. Irish bisliops, ih. conge d'eslire, ib. nomination of person to be elected, 41. confirmation of, 42 — 55. translation of, GO. installation of, ih. residence of, at their cathedrals, 61. their attendance in parliament, 62. lords of parliament, ib. in wiiat capacity they sit, 65. on trnnshition ])ay no fees, 68. privileges of residence of, 70, 71. order of sitting in parliament, 71. whether may vote in cases of blood, ib. trial of, 75. spiritualities in time of vacation, 77. guardian of, ib. power of, 78. temporalities in time of vacation, ih. custody thereof, 81. archbishop's jurisdiction over, 82. how may deprive, 84. proceedings against, 86. option, 93. without sees, 9 I. chorepiscopi, origin of, ih. cpiscopi regionarii, 95. in partibus, ib. suffragans, 96. power of, 98. residence of, 99. may hold two livings, ib. consecration of, in 1870, ib. coadjutors, ih. Bisho])s Resignation Act, 102. jurisdiction of, 323, 324, 579, 1189, 1303. donativis subject to, 326. right of examination, 412. power to refuse presentee, 416 — 13 1. nature of cure, 505. 2330 INDEX. BlSUOrS-conthued. jurisdiction of — continued. consent to exchange of o-Iibcs, 53C, 1681. power as to exempt or peculiar bene- fices, 578, 1317. authority as to ritual, 892. statutory power to ordir service, 962 — 964. power to grant licence to non-residents, 1153. cannot create new office, 1198. officers, 1202. to appoint chancellor, 1211. secretary of, 1231. 1232, 1235. appeals from, 1268. power under 1 & 2 Vict. c. 106.. 1303. under 3 & 4 Vict. c. 86.. 1314. trial by, 1318. when privy councillors to be members of judicial committee, 1325. visitations of, 1344. residence, houses of, 1479, 1631. estates of, 1632, 1700, 1702, 1703. dilapidations, 1632—1641. leases by, 1657. when to pay first fruits, 1729. redemption of land tax by, 1742. right of. over church and cathedral seats, 1799. power of, to convene synod in diocese, 1923. consecrated for foreign countries whether IJritish subjects or fortigncrs, 2273—2278." foreign, of United States, 2279, 2280, 2281. BLASPHEMY, 1084, 1092. BODinS, protection of, 878. not to be removed without faculty, 879. BONA, CARDINAL, 968. BONIFACE, ABP., uonstitutionsof. 465,508,510. 1352, 1369, 1405, 1849, 1900, 1903, 1924. BOOK OF COMMON PR.WER. See Prayer Book. BOOKS, belonging to church, 926. parish, 651. BOUCIIIER, ABP., 1941. BOUNDARIES OF PARISHES, 1867. BOUNTY OF QUEEN ANNE. See Queen Anne's Bounty. BRAG A, council of (563), 858. BR.XWLING, in churcii or churchyard, 940, 1083, 1084. BREVIARY, 893. BRISTOL CATHEDRAL, arbitration as to, 190. BUILDING LE.ASES, 1691. BULLS OF POPE, procuriniT of, liable to praemunire, 14, 1233. BURIAL, order for, 636. places of, 839. in ancient times, ib. early Christian practice, ih. fees for, 8 10. in church, ib. in chancel, 841. in churchyard, 842. wliether strangers may be buried, 8 13. faculty for, 844. of parisliioner dying out of parish, 845. bodies when buried not to be moved, 846. in consecrated portion of cemetery to be registered by chaplain, ib. not to take j)lace in burial places closed by order in council, 847. in St. Paul's and Westminster Abbey, 848. Burial Board, powers of, 849—851, 871. provision for Nonconformists, 850. ordinary to consecrate land for burial of poor, 851. division of cemetery, 852. power to bury before consecration, 853. need not be performed on unconsecrated ground, 855. not hindered by debt. ih. of attainted traitors, 856. of ecclesiastical cognizance, 857. minister not to refuse, 857, 858. of suicides, 858, 860. office of, 860. registration of, 861. fees for, 862—871. provisions of the Cemeteries Clauses Act, 867. ill ecclesiastical districts, ib. clcrksand sextons in burial grounds, 872. chapels of closed burial grounds, 1836. CAIRNS, SIR HUGH, o|)inion of, 1961. CALENDAR. 5ee Kalendar. CALVES, tithe of, 1488. C A. M BRIDGE, UNIVERSITY OF, 1 177, 1990—1992, 1997. INDEX. 2337 CAMPBELL, LORD, opinions and judgments of, 1139, 1140, 1244', 1343. CANADA RESERVES, THE, 2246. 2254—2256. iiee Colonial Church. CANDLESTICKS, upon the Holy Table, 905, 906, 932. CANON, .sub-dean appointed from, 150. lias no cure of souls, 170, 505. residence of, 170, 216. rule as to preaching, 171. in cathedrals of new foundation, 216. appointed by bishop in old cathedrals,222. in cathedrals of Ripon and Manchester, 223. . residence house of, 1479. See Deans and Chapters. CANON LAW, THE, 18, 19. CANONRY, what, 167. charge upon, 170. list of canonries, 216. suspended canonries, 216, 218—220. canonries at Christ Church, 207. CANONS OF (1571), 2036. CANONS OF (1603), altered by convocation (1866), 18. summary of, 1 179. temporality not bound by, 1958. not to be against the law of the land, 1952. CANONS OF (1640), 909, 910. CANTERBURY, diocese of, 29. CANTERBURY, ABP. OF, income of, 32. first Archhisliop of, 36. style of, ib. formerly had primacy over Ireland, iV;. privilege to crown kings, 37. jjrecedence of, 38. special licence granted by, 792, 821. official j)rincipal of, 1204. former jjrivilegts from pope, 1433. power to grant dispensations, 1233. medical degrees, 1963. visitation of universities by, 2018. CANUTUS, KING, 1431. CAPETOWN, BP. OF, 2236, 2247. CAPIAS, writ of, 1406-1410. CARDIGAN, endowment for archdeacon of, 212. CARDINALS, college of, 24, 25. CARLISLE, diocese of, 31. CARTHAGE, Councils of, 1921. CATECHISM, 636. origin of word, {}C)Cy. youth to be instructed in, 669. CATECHISTS, 666. in colonies, 668. CATECHUMENS, 666. in colonies, 668. CATHEDRALS, residence of bishops at, 61, 163. cliapters of, 148. origin and kinds of, 148, 149. in England, 149, 150. to be in cities, 151. forfeitures for repairs of, 152, elections in, 154, 194—200. parish church of diocese, 162. exempt from archdeacon's jurisdiction, ih. dean and chapter's residence in, ih. administration of Holy Communion there, 164. preaching in, ib. visitation of, 165. habits to be worn in, ih. of foundation of Henry 8, ib. of Will. 4.. 166. statutes of, 192, 194. elections in, 194. visitable by ordinary, 204, 208. articles of inquiry exliibited by ordi- nary, 208—211. honorary canons founded in, 232. members of, how to pay first fruits, 1734. seats in, when allotted by bisiiop, 1799. CAVEAT, effect of, 446. 788, 794. nature of, 1279. CELESTIN, POPE, 1917. CEMETERIES, chaplains to, 019. acts respecting, 845, 847, 867. ))3rish clerks in, 1910. under Church Building Acts, 2159. CENSURES, ECCLESIASTICAL, nature of, 1088, 1366-1128. CEREMONIES, mutable and immutable, 890, 801. distinction between rites and, 894. 2338 INDEX. CERTIFICATE, of publication of banns, 774. of registrar for marriages, 716, 793. CHALCEDON, COUNCIL OF (451), 1103, 1918. CHALICE, for Holy Communion, 925. mixed, 977, 978. CHANCEL, right of vicar in, 298. burials in, 8H. monuments in, 885. repaired by rector, 1615, 1616. origin of name, 1776. rubric as to, ib. other names for, 1777. right of vicar in, it>. repair of, 1785. disposition of seats in, 1807. impro])riator's seat in, ih. vicar's seat in, 1807, 1808. difference between chancels and aisles, 1808. CHANCELLOR, LORD, right of, as to king's benefices, 348, 386. power of, to sell aJvowsong, 387. to require return of incumbent's in- come, ib. as to payment of purchase-money, ib. as to application of purchase-money, 389. to augment benefices, 386—393, 2140. formerly civilian or ecclesiastic, 623. appeal from master of faculties to, 1244. member of Judiciiil Committee, 1271. to sequester estates of parties contuma- cious, 1423. CHANCELLORS, to subscribe Thirty-nine Articles, 1191. office of, 1194, 1207. official principal and vicar-general, 1208. jurisdiction of, 1209, 1210. bishop may be compelled to appoint, 1211. distinction between, and commissary, 1212. when action lies against, 1214. fee of, on consecration of churches, &c., 1772. CHANCERY, control of charities by, 1968. marriages of wards in, 718, 719. CHAPELS, ornaments of bishop's chapel, 1G5. of ease, 307, 182K statute of 1 Geo. 1, st. 2, c. 10, re- specting, 307, 308. CHAPELS— con/i"««erf. curates in, origin of, 309. appointment of, 310. foim of nomination of, ih. repairs of, 1788, 1831, 1832. nature of, 1824. parochial chapels, 1825. evidence of being, 1826. provisions in Church Building .\cts as to, ib. church or chapel, how to be tried, 1827. government of, ib. endowment of, 1828. consents requisite for erection, ib. dependence of, 1829. submission of curate of, 1830. who may erect, and who may nominate, to, 183.3. as to division of, 2171. proprietary chapels, 1183, 1834. bishop may revoke licence to officiate in, ib. churchwarden no power in, 1839. private chapels, 1821. licence to perform service in, 1822. free chapels, 1823, 1824. to schools, 1835. bishop may license clergyman to officiate in, ib. may revoke licence, ih. status of minister in, ib. oflTertory in, 1836. under Burial Acts, ib. in colleges, 1835, 1970. CHAPLAIN GENERAL, office of, 602, CHAPLAINS, of privileged persons and the Queen, 59i. 21 Hen. 8, c. 13, respecting, ih appointment and discharge of, .095, 596. 57 Geo. 3, c. 99, and 1 & 2 Vict. c. 106, respecting, 598. royal chaplains, ih. priests ill ordinary, 599. to House of Commons, ib. office of, in House of Lords, how per- formed, 600. in army and navy, no si)ecial service for army, ib. to forts and garrisons, ib. principal chaplain, 601. office of chaplain general revived, 602. might he suffragan bishop, ib. Army Chaplains Act, ib. forms of prayer to be used at sea, 605. government of chaplains in navy, 606. orders in council as to, 607. form of appointment, ib. to gaols, appointment of, 60S. provisions of Prison Act as to, ib. INDEX. 2339 CH APLXiyiS—contimied. to gaols — conf.hiued. assistant chaplains, (509, 612. room for use as chapel, 610. performance of divine service by, ih. to visit prisoners, 611. to have access to prisoners under sen- tence of death, 612. Prison Ministers Act, ib. to workhouses, 4 iSc 5 Will. 4, c. 76, as to. ih. judgment as to appointment of, 61-5. removal of, ib. may officiate against will of incumbent, 617. creed register, ib. to lunatic asyla. Lunatic Asylums Act, ih. appointed by committee of visitors, ib. visitors may grant annuities, 618. to cemeteries, Cemeteries Clauses Act, 619. appointed with consent of bishop, ib. stipend of, 620. under Metropolitan Burial Acts, ib. CHAPTERS, CATHEDRAL, origin of, 24. See Deans and Chapters. CHARGES ON Benefices. BENEFICES. See CHARITABLE TRUSTS, origin of relation of church to, 196-'5. connection between church and, 1965. what are charities, ib. commissions to inquire into, under 43 Eliz. c. 4.. 1966. churcli a charity, 1967- privileges of, ]9()8, 1970, 1971. control of, 1968, 1969. subject to Mortmain Statutes, 1969. jurisdiction over, ib. recognition by, of status in charitable corporation, 1970. privileges of the church with respect to, 1970, 1971. superstitious uses, 1971. restraints of mortmain, ib. And see Mortmain. CHARLES THE FIRST, 120, 1912. CHARLES THE SECOND, declaration of, 99. letter of, 291. CHARTER-HOUSE, 2038. CHASUBLE, 919,920. CHEESE, tithe of, 1488. CHESIBLE, what, 930. CHESTER, diocese of, 31. archdeaconry of, 876. CIIICHELEY, ABP., register of, 1037. constitution of, 1189. appealed to a general council, 1922. convocation holden by, 1913. CHOREPISCOPI, origin of, 94. rural deans made, 256. CHORISTER, 154. CHRISME, 671. CHRIST CHURCH, OXFORD, has a dean for its head, 215, 1177. 23 & 24 Vict. c. 124, as to, 1713. is a spiritual body, 2002. CHRISTENING. See Baptism. CHULMLEIGH, prebeiids of, 228. CHURCH of England. See England. of Scotland. 6'ee Scotland. of Ireland, ^ee Ireland. in the Colonies. See Colonial Church goods and ornaments of, 907. See Orna- ments. origin of word, 1755. ancient founding of, ib. freehold of, 1756. power of incumbent in, ib. robbing of, 1758. sanctuary, ib. consecration of, 1759. no church till consecration, ib. no consecration before endowment, ib. time of, 1761. form of, 1761—1769. of cliurchyard with church, 1769. of churchyard singly, 1770. other churches, ell'ect on, 1771. procuration upon, ib. new table of fees on, 1771, 1772. re consecration, 1773. modern cases as to, 1773, 1774. where communion table has been moved, ib. removal of chapel, 1775. power to ]iull down old cliurch, ib. transfer of endowments, ib. dedication to saint, 1775, 1776. repairs, anciently by bishops, 1785. next by rectors, ib. finally by inhabitants, ib. 2340 INDEX. CUV nCll— continued. repairs — continued. of chancel by rector, \7So, 1786. sometimes by vicar, ib. of chancel discharge from repairs of churcl), 17S7. duty of sequestrator as to, 1788. of parishioners as to, ih. of chapel of ease, 1788, 1789. of united churches, 17!)0. ecclesiastical judge may order, ib. old law as to penalty, ib. no prohibition in case of, 1791. churclnvardens' duty, '''. faculties for alterations, 1792. stamp duty on, 1796. church goods, property in, \b. alienation of, 1797. building of, 2141. object of acts respecting, ih. benefactions in favour of. ih. appointment of church building com- missioners, 2142. grants by persons under disability, 2 1 43. compulsory purchase of sites, ib. cases under special acts or trusts, 2144. in whom sites to be vested, ib. patronage under Church Building Acts, 2145, 2146, 2150—2154. building by private persons, 2146. provisions of 1 & 2 Will. 4, c. 38, as ex- tended, 2147. endowment and repair fund, 2148, 2151. life trustees, 2149. extension of 3 Geo. 4, c. 72. .2155. where parochial church turned into cathedral, 2157. CHURCH BUILDING COMMIS- SIONEllS, appointment of, 2142. power of, transferred to ecclesiastical com- missioners, 2115, 2108. church-estates commissioners. See Eccle- SIASTICAL COM.MISSIONERS. CHURCHES, united after fire of London, 1578 — 1580. fifty new, 1586. CHURCHING OF WOMEN, G3C. history of the service, S32. women to be veiled, 832, 902. offerings, 833. who are entitled to, 834. CHURCH MUSIC, 9G6. CHURCH RATES, 1816. old law as to, ib. compulsory church rates abolished, 1817, IS'31. CHURCH n.\TKS— continued. when a])j)licable to particular purposes, 1S17. money due on security of, 1817. not to afi'ect local acts, \c., 1818. trustees, &.C., may subscribe to voluntary, ib. persons refusing to piy, 181!l. loans under 5 Geo. 4, c. 36, ib. See Aisle; Chancel; Seat; Way. CHURCH SOCIETIES. 5ee Societies. CHURCH TRUSTEES, 1898. CHURCHWARDENS. See Addenda. curate has power to nominate during va- cancy of living, 583, 1853. duty of, as to copies of registers, 654. as to burial of strangers, 843. care of things in church, 922. duties of, during service, 936. presentments by, 1350, 1354, 1858. to support ))resentments, 1358. to have custody of copy of agreement as to tithes, 1514. rights over church bells, 1757. to- have care of churchyard fence, 1780, 1781. to dispose of church seats, 1800. office of, 1837, 1838. how far, have custody of church, 1839. to prevent interruption of service, ib. no power in private chapel, ib. for what purposes a corporation, 1839, 1856. who exempt from serving, 1810. choice of, 1842. time of, ib. by whom, ib. how to be determined, 1843. Dr. Harris's opinion as to, 181^4. not to serve twice, ib. in London, 1844, 1816. customs out of London, 1846 — 1848. where nonc-are appointed, 1848. mode of election, ib, ceasing to reside in parish, ib. holding office prima facie evidence of, ih. refusal of, to act, 1849. to take oath, ib. in case of donative, ib. old law as to, ib. oa h of, 1850. declaration substituted for, ib. refusing to admit, ib. opinion of Lord Stowell as to, 1853. return to mandamus, 1854. where improper election, 1855. contracts by, 1856. rights of, to enclose crown lands, ib. leases by, 1857. cannot appoint attorney, ib. INDEX. 2341 CHURCHWARDENS— coH//»!/«/. one cannot release, 1857, 1858. taking possession ofliinds, 1858. how long in office, 1859, 18(J0. accounts of, ISfiO. time of rendering, i6. when settled final, 1861, power of spiritual courts as to, ib. insjiection of, ib. actions by, 1862. not after office expired, ib. successors of, must bring, ib. churchwardens de facto, ib. relief of, in equity, 1863. one cannot sue in ecclesiastical court, 186K proceedings against, ib. protection of, ib. criminal proceedings against, ib. removal of, 1865. opinions as to, 1866. liability of, for fees of visitation, ib. to parochial assessments, 1867. under Church Building Acts, 2180. See Add. Ixxvii. CHURCHYARD, burials in, 8i2. consecration of, 853, 1769, 1770. right of donor in land added to, 854. closing of, 855. body cannot be buried in, without service, 860. rector's rights in, 1779. mortmain, 1779, 1780. fences of, 1780. trees of, 1781. 1782. way through, 1783. private door into, ih, building upon, ih. cannot be converted to secular use, ib. boundary of, 1783, 1781-. compensation of rector for loss of, 17S1-. erection ef schools in, 2038. under Church Building Acts, 2158. CISTERTIANS, H93. CITATION, nature and form of, 1253, 1257, 1280. contents of, 1280. to company, ib. opinions respecting, 1281. effect of misnomer in, 1282. service of, on minor, 1283. viis et modis, ib. citing out of diocese, ih. statute of citations, 1283 — 1288. return of citation under old law, 1288. in modern practice, ib. CLANDESTINE MARRIAGE, 775, 776. CLARENDON, constitutiDus of, 6, 13, 71, 2t0, 1265. CLEAVER, BP., 676. CLEMENT v., 1725. CLERGY, privileges of, 621. as to temporal offices, ib. as to clerks in exchequer, 623. not bound to serve in war, 62'1-. not to appear at tourn or leet, ib. as to arrest, 625. not to be obstructed in their office, ih. benefit of clergy, ib. exempt from serving on juries, ib. sheriff cannot levy of ecclesiastical goods, 626. distresses not to be taken in church fees, ib. not to be taken on statute merchant or staple, t>29. freedom from tolls, ib. not freed from general statutory charges, 630. as to sermons, 631. may not sit in House of Commons, 632, 633. penalty for sitting or voting, 633. may not be aldermen or town council- lors, 634. relation between clerk and ordinary, ib. See Discipline. CLERK OF PARISH. See Parish Clerk. CLERK OF VESTRY. See Vestry. COADJUTORS, 99. COFFINS, 857. COLERIDGE, JUSTICE, 48, 301, 303, 619. COLLATION, to benefice, 348. etftct of wrongful, 406. difl'erence between institution and, 467. COLLEGES AND UNIVERSITIES, fellows of, not beneficed clerks, 627. special ])rayers in chapels of, 888. not to hold cathedral preferment, 1177. loans by, for buildings on benefices under their patronage, 1476. leases by, 1673. how to jiay first fruits, 1734. redemjition of land-tax on glebes belong- ing to, 1740. chapels to, 1835, 1970. changes respecting, in relation to church, 1990. university commissions, ib. Universities Tests Act (1871 ).. 1991. religious instruction in, 1993. Morning and Evening Prayer to be used daily in, ib. 2342 INDEX. COLLEGES, Sic.—continittd. ecclesiastical elements in, 199-t. clerical education, 1998. Walter de Merton's College, 1999. colleges before and since the Keformation, 2000. distinctions between, and universities, 2000, 2001. before the Reformation, S))iritual corpo- rations, 2001. since, lay corporations, 2002. Christ Church, Oxford, ih. internal government of, 2004'. power of governors of, ib, consent of fellows, ib. laws of, 200h 200.5. a fellow may not belong to two colleges, 2006. visitors in, ib. appointment of visitor, 2008. mandamus to visitor, 201 1, where tlie courts interfere, 2012. return of a visitor, 2014. court of equity will interfere to see a trust of a college executed, 2015. exemption from 9 Geo. 2, c. 36, 2022. elections in, 2023. preference given to founder's kinsmen, 2025. assignment of fellowship, 2026. title for orders, ib. residence, 2027. power to augment vicarages, ib. to dissever benefices from headships of colleges, ib. may divert to other uses money holden for purchase of advowsons, 2029. first fruits and tenths, 2030. estates of, 2031. power to sell or exchange, 2032. as to leases, ib. augmentations of benefices by, 2120. COLLEGIATE CHURCHES, 151. preferments, 231. COLONIAL CHURCH, THE, oath of obedience of bishops in, 57. benefice vacant by promotion to a bi- shopric in, 61, 382. bishops of, enabled to perform functions in England, 146, 2272, 2283. catechists and catechumens in, 66S. bishops in, whether admitted to convoca- tion, 1938. in North America, 2230. early organization of, 2231. colonial bibho|)rics' council, 2233. declarations of, 2234-2238. organization and synods of, 2238. in America, ib. in Australia, 2239. in New Zealand, 2242. COLON I AL CHURCH, THE— con//«ij«J. organization and synods oi— continued. in Africa, 2243. provinces and dioceses of, 2244. general status of, ib. classification of colonies, ib. recent decisions on subject, ib. letters- patent discontinued, 2249. law as to voluntary associations, 2251. church ill the West Indies, 2252. provisions of 6 Geo. 4, c. 88, ib. disestablishment of, ib. in Canada, 2253. Roman Church in, 2254. chiim of Presbyterians, ib. oj)inion of judges as to clergy reserves, ib. acts of colonial legislatures, 2256. Norfolk Island, ib. consecration of colonial bishops by Eng- lish bishops, 2271, 2282, 2283. in the East Indies. 5ee East Indies. COLTS, tithe of, 1488. COMMEMORATIONS, what, 949. COM MEN DAM, what, 503. old restraints of, ib. to whom granted, 504. COMMISSARY, to subscribe the Thirty-nine Articles, 1191. court of, 1201. distinction between, and chancellor, 1212. appeal from, ib. who, 1215. COMMISSIONS, on resignation of benefices. See Resignation. of inquiry, expenses of, 528. bishop may issue, 1319. nicnibcrs thereof, ib. power of commissioners, 1320. notice of commision, ib. proceedings of commissioners, ib. after letters of reijuest no defect in commission material, 1321. rejjort of commissioners, ih. And see Procedure. in cases of exchange, 1682. for union of benefices within the metro- polis, 540. how to be nominated, 541. what number constitutes a quorum, ib. power of commissioners, ib. to execute office of reader, 592. of review, 1269. INDEX. 2343 COMMON LANDS, exempt from tithes, 1505, 150G. COMMON PRAYER. See Prayer Book. COMMONS IN GROSS, rent-charge on, 1522. COMMUNICANTS, posture of, fj82. COMMUNION. See Holy Communion. COMMUNION TABLE, THE, 680, 923, 932, 1774. COMMUTATION. See Penance. COMPETENTES, 667. COMPTON, BP., 207. CONFESSION, vvliat, 694. history of, ih. teaching of Hooker, ib. of archbishop Wake, 695. of bishop Berkeley, 696. power of minister to absolve, 695. letter of bishop Philpotts, 696. authoritative statements of church as to, 697. law as to evidence, 700, 704. CONFESSOR, of royal household, G97. CONFIRMATION, what, 671. founded on apostolical practice, il). use of Roman and Greek churches, ib. age of persons to be confirmed, ib. cannot be repeated, 672. time of, ib. minister's duty as to, 673. godfather or godmother to be witness of, ib. change of name at, ib. requisite before admission to Holy Com- munion, 674. CONFIRMATION OF BISHOPS, 42, 56. court of, 48. CONFORMITY, declaration of, 307. CONGE D'ESLIRE, 41, 151. CONIES, tithe of, 1488. CONSECRATION OF BISHOPS, 38. of part of cemetery, 845, 846, 819, 852. of churchyards. See Churciiyauds. of churches. See Churches. CONSENSUS FRATRUM, in convocation, 1939. CONSISTORY COURT, 1202. jurisdiction of, ib. appeal from, ib. CONSTANTINE POGONATUS, 1920. CONSTANTINE THE GREAT,23, 1456, 1918. dedication of church at Jerusalem by, 1 761 . CONSTANTINOPLE, l.st council of, 22, 1918. 2nd council of, 1918. 3rd council of, 1920. 4th council of, ib. CONSTITUTIONS, of archbishop Arundel, 314, 1567, 1568. of archbishop Boniface, 465, 508, 510, 1352, 1369, 1405, 1849, 1900, 1903, 1924. of archbishop Chicheley, 1189. of archbishop Edmund, 115, 1350, 1616. of archbishop Egbert, 935, 1829. Gregory's constitution, 504, 1164. of archbisho)) Langton, 255, 413, 463, 473, 683, 861, 1346, 1645. of archbishop Mepham, 1283, 1618. of bishop Niger, 1567. of Otho, 115, 2.55, 507, 508, 1163, 1200, 1209, 1332, 1347, 1760. of Othobon, 72, 510, 519, 622, 1617, 1761, 1825, 1829. of archbishop Peccham, 504, 677, 8C6, 969, 1026, 1283, 1368. of archbishop Reynolds. 115, 123, 125, 314, 779, 1347, 1790. of archbishop Stratford, 129, 473, 512, 780, 1091, 1348, 1359, 1361, 1401, 1781, 1821, 1823. of arclibi^hop VVetherstead, 123. of aichbishop Winchelsea, 316, 873, 929, 932, 1502, 1776, 1780, 1785, 1808, 1868. CONSULSHIPS, churches attached to, 2265. provision for supj)ort of, ib. consul to transmit annual accounts, 2266, 2267. where voluntary contributions, ib. salaries of chaplains, 2268. meetings of subscribers, ib. CONSULTATION, writ of, 1439. CONVOCATION, licence to, to alter canons of (1603) . . 18. committee of, appointed by Edw. VI. to prepare Prayer Book, 893. 2344 INDEX. CONVOCATION — CO. /i««frf. appeal to, 1270, 19 '>9. regulations of, as to ))enancc, 1371. nieanin<^ of term, 1923. before the Coiiquest, ih. epochs in. History of, 1924'. Attcrbury's attc'nii)ts, 1926. subsidies voted in, 192G, 1930. accounts of Kennett and Hody, 1927i 1928. act of submission, 1928. how summoned by Philip and Mary, 1929. conference between, and House of Lords, 1931. members of, ineligible to House of Com- mons, ib. messages from, to House of Commons, 1931, 1932. effect of abandonment of taxation in, 1933. under Charles II., James II. and Will. III., ib. under Anne and George I., 1931^. j)rorogation of, 1935, 1939. re-assembling of, 1935, 1936. reform of, 1936. letters of business in (1872), ib. form of opening, 1937. colonial bisliops in, 1938. special prayer for, ih. archbishops Tenison and Marsh as to consensus fratrum, 1939, 1910. dissolved by death of sovereign, 1911. not by dissolution of parliament, ib. election of proctors, 19I-2, 1943, 1950. of j)rolocutor, 1913, 1914, 1957. business in lower house, 194-t. business in upper house, 1945. proxies, 1946, 1950. what a synodical act is, ib. continuatio et prorogatio, 1947, 1918. right of petition, 1948. standing orders, 1919. privileges, ib. report of committee of, in (1854), ib. general powers of, under canons of (1603) ..1958. continuance of, 1960. privilege of free coming to, ib. trial of heresy by, ih. power of, to condemn heretical books, 1961. COPARCENERS, presentations by, 348, 372. who are, 374. leases by, 1657. COPE, rubric of 2 Edw. VI. as to, 681. decision as to, in case of .Mr. Purchas, 911,913,917, 920. COPYHOLDS, grants of, 1658. COPYHOLDS— con//»iW. enfranchisement of, 1713. acts respecting, 1714. limitation of, ib. a])plic-ation of consideration moneys, ib. of enfranchisement moneys, ib. notice to be given to ecclesiastical com- missioners in certain cases, 1715. leases by copy of court roll prohibited, ih. not to interfere with present interests, 1716. belonging to colleges, 2032. CORN, tithe of. 1485, 1488. average price of, 1513. rent-charges valued according to average price of, 1514. corn rents under local acts, 1586. CORNWALL, DUCHY OF, patronage of, 1477. CORONATION SERVICE, form and order of, 1054 — 1071. oath, 1059. CORPORATIONS, municipal, presentations by, 348, 368, 370, 2140. power of alienating advowsons, 369. nominations vested in, 370. cannot be excommunicated, 1401. loans by, 1475, 1476. aggregate and sole, 1645. power of, to contract for redemption of land-tax, 1736. how far churchwardens are, 1839, 1856. clerk or agent of, may vote in vestry, 1876. charitable, 1969. of two kinds, 1982. CORSE PRESENT, 873. COSIN, BP., 670, 676, 835, 905, 997, 1358, 1361, 1405. COSTS, of commissions as to resignations, 528. discretionary in judge, 1297. jiroctor's bill referred to registrar, ib, l)ayment of, 1298. general principles as to, ib. taxation of, ih. security for, 1299. ap])eals in respect of, ib. in appeal cases, ib. in criminal suits, 1300. jiroctor may be condemned in, ib. monition for, ib. of suits in prohibition, 1453. INDEX. 2345 COUNCILS, of the church, 1915. different kinds of, 1916. cecumenic or general councils, 1917 — 1922. of Trent, 1922. Vatican, council of (1870), ib. Lambeth, synod of ( lS(i7), ib. See Four First General Councils IN EXTENSO IN APFENDIX. COUNTER-ALLEGATION, 1257. COURTS ECCLESIASTICAL, authority of, 1075. civil jurisdiction of, ib. criminal jurisdiction of, 1076. jurisdiction of, to try simony, 1133. administration of ecclesiastical law, 1189. jurisdiction of liishops, ib. qualifications of judges in, 1189, 1 190. surrogates, 1191, 1 192. bargain and sale of offices, 1192, 1193. grant of new offices, 1 194'. offices, hereditaments, ib. no grant of new office with new fee, 1 198. courts, where to be kept, 1200. seal of court, ib. existing courts, 1201. provincial, ib. diocesan, 1202. of archdeacons, ib. power of Court of Arches, ib. in Jersey and Guernsey, ib. peculiars, 1203. officials of deans and chapters, ib. officers of archbishops and bishops, 1203, 1204'. dean of the Arches, 1205, 1207. judge of York courts, 1207. chancellor, 1207, 1208. A>id see Chan- cellor. official princi])ul and vicar- general, 1208. advocates in, 1216. /ind see Advocates. proctors in, 1219. And see 1'roctors. power of, over proctors, 1223, r22k registers in, 1225. And see Registrar. notary public, 1232. And see Notary Public. master of the faculties, ib. And see Faculties. apparitor, 1246. And see Apparitor. early and late jurisdiction of, 1429. origin of, in this realm, 1429, 1430. separation of, from temporal courts, 1431. papal encroachments after Conquest, ib. statutes of provisors, 1434- — 14:J6. canon and civil law, 1437, 1 138. where jurisdiction created by statute, 1445. tithes recoverable in, 1502. pensions may be sued for in, 1593. power of, to punish illegal acts as to pews, 1810. right to church way subject to, 1 81 1. P. VOL. II. COURTS ECCLESIASTICAL— cow^rf. jurisdiction of, over vestry meetings holden in churches, 1873. bee Procedure. CRANMER, ABP., 83, 1921. . CREDE Mini, THE, 1363. CREDENCE TABLE, 904, 916, 931. CREED REGISTER, 617. CREEDS, THE, 3. CROSS, sign of, in baptism, 642. upon or over the altar, 905, 906. for the dead, 931. CROWN, the privileges of. See King. CRUCIFIX, ceremonial use of, 989, 990. CUMBERLAND, DUKE OF, marriage with Mrs. Horton, 743. CURATES. See Addenda. meaning of term, 299. different kinds of, tb. perpetual, 300. origin of, ib. land annexed to, law respecting, 300 — 302. not within old law of pluralities, 304. subject to dilapidations, 304, 1618. right of nomination to, 306. augmented, ib. oaths and declarations required of, 307. statuteof 1 Geo. 1, st. 1, c. 10, respect- ing, 308. curates of district chapels, ib. in chapels of ease, 309. appointment of, to prevent lapse, 310. whether mandamus will lie for, 310, 313. case of chapelry at Calton, 311, 312. authority of this case shaken, 313. licence of curate, ih. requisites to obtain licence, 314 — 316. oaths of allegiance and supremacy, 315. stipendiary j)riests, 317. how put in possession of his benefice, 486. stiiiendiary, 560. canons as to, ib. declarations of, 561. old law relating to, 562. existing law, 563. bishop to appoint for non-rcsid^^nt incumbent, 564. residence of, 5()5. provision for, in Welsh dioceses, it66. in case of lunatic incumbent, 567. licence of, ib. 7 L 2340 ixm:x. CVRATFS—coyilhiiirJ. stipendiary — continued. Jec for lici'iice, hdl . bislioi) to a]i])oint stipend of, 518. stipends to be accordinff to scale, //). two may be reipiired by bi>l)np, .OGf). sti])end wliero curate serves in two ])arislies, .570. curate residinjj in parsonage Iiouse, 572. notice to ^ive up his cure, 573. ajipeal, ib. must give three months' notice, 57K power of bisl)ops to license and revoke licence, subject to appeal to arch- bishop, 575, Add. Ixix. where benefices sequestered, 578, 1393. licence and revocation to be entered in registry, 577. jurisdiction of i)ishop, 570. mode of appeal to archbishop, lb. recovery of fees, 5S1. exempt from tolls, 582. power to nominate churchwarden in place of parson, 5S3, 1853. licence of, exempt from duly, 583. when may appoint parish clerk, 1902. of district chapelrics, 217-i. CURIA REGIS, THE, 12G5. DAILY SERVICE, law as to, 90 1. DALMATIC, 919, 929. what, 930. DARREIN PRESENTMENT, assize of, 452, 457, 4G0. statutes as to, 454. DEACONS, ordination of, 127. office and duties of, 131, 132. not capable of benefices or donatives, 133, 134, 402. ineligible to convocation, 1912. DEAD, BURIAL OF. See Burial. prayers for, 888. DEANS AND CHAPTERS. See Ad- DF.NDA. ri;^hts of, in election of bishops, 41 — 1 !•. general law as to, 118. cathedral chapters, ib. catbcdrals in England, 149 — 152. original institution of deaneric^s, 152. dean, how ap))ointed, 154. his office a sinecure, \b, a dignity, ib. possessions of, 155. residence of, ICO. ecclesiastical duty, ib. profits of deanery during vacation, lol. D E A N S AND C 1 1 A PT VM?^—cn„rn,u,-d. habits to be worn in cathedral by dean and cha))ter, 1(J5. sub dean, rights of, 159. chapter, what, l(i(}. without a dean, ib. in some places two chapters, ICti, HJoii. capacity to i)Urchase, ib. cannot alter usages of churcli, 172. making of statutes by, ib. giants made to, ib. iiow far are guardians of spiritu.ilities, 173. deans and chapters of the new foun- dation, ib. their local statutes, ib. power of foundation given to kin.r, 171. acts resjiecting new foundation, 174, 1S7. subject to visitation of bisliuj) and arch- bishop, 204 — 208'. statutes of \Villiain 4 and Victoria re- sjjecting, 211 — 235. members of chapters to be deans and canons, 21 2. m;ijority of members constitutes a chap- ter, ib. patronage of chapters, ib. chapters may alter statutes, 213, 1343. non-residentiary deaneries suppressed, 214. crown to appoint deans of old cathedrals, and three canons of St. Paul's, ib. qualification of deans and canons, ib. deans not to bold pluralities, 215, 1177, Add. Ixxvi. profits of suspended canonrics vested iu commissioners, 225. except se|)arate estates, 228. proceeds of prebends, how to be ap])licJ, 229. augmeiuation of smaller dignities, ib. ^Veish chapters, 231. honorary canonrics, 232. estates of, transferred to ecclesiastical commissioners, 235. resignation of deans and canons, ib, yldd. Ixvii. Ixviii. deans rural. St>e Rukal Deans. deans of ))eculiars, 259. deans without jurisdiction, ib. without ;i ch,ij)ter, ih. dean u( I'attle, ib. dean of the Arches, ib. (lean of St. Martin's, 260. profits during vacation, ih. modern laws respecting, ib. deans, nature of their cure, 505. may not hold ofiice of heads of col- leges, ivc, 1 17H. residence houses of, 1479. bisho)) may take as assessor, 1323. leases by, lC(i3, 1092, 1701. how to pay first fruits, 1730. INDEX. 2347 DE CONTUMACE CAriENDO, writ of, 12f)l, 12(i3, 1420. DECORATIONS, distinction between, and ornaments, 920. what are lawful, 932. DECIIETUM.THE, 1919. DEDICATION OF CHURCHES, 1775, 1776. And see CiiuucHEs, Con- secration OF. DEER, tithe of, 1188, 1535. DE EXCOMMUNICATO CAPIENDO, writ of, 1103, Ii04. DEFAMATION, 1083, lOSl. DEGRADATION, what, 83, 1399. form and maimer of, 1399. DEGREES, what, 1998. DEGREES, Levitical ai\d prohibited, 723. table of, 72(j. DE H^RETICO COMBURENDO, writ of, 1084, 1094, 1095. DELEGATES, COURT OF, 1268, 1269, 1271. DELIVERANCE, writ of, 1263, 1420. DE MERTON, WALTER, founder of collegiate system, 623, 1999. DENMAN, LORD, judgments of, 48, 301, 615, 1335, 1390, 1719, 1869, 1878. DEPRIVATION, what, 83. of bishops, 84. an ecclesiastical censure, 1395. causes of, by common law and statute, ih. by canon law, 1397. by whom to be pronounced, 1398. may be by Dean of Arches, 1399. DILAPIDATIONS. And see Addenda. act respecting, 250, 1 178. of vicars choral, 161, 1618. of prebendaries, 172. perpetual curate subject to, 301', 305, 1618. money recovered for, 1478. general law as to, 1610. report of commissioners respecting, 1611. definition of, 1612. remedies for, ib. action for damages, 1613. DILAPIDATIONS— ro»^HMCf/. oi)cning mines, 1614. cutting timber, ib. cliancejs, houses and fences, 1615. old law as to, 1616. priority of debts, 1617. constitutions respecting, 1616 — 1618. how to proceed for, 1621. where lands are in trustees, 1622. on exchange of livings, 1623. what repairs can be required, 1624. Acts of 1871 and 1872 res})ecting, 1625. what buildings to be kept in repair, 1626. buildings out of diocese, ih. who to have bisbo))'s powers, ih. surveyors for each diocese, 1626, 1627. who may order insjiection, 1627. benefice under sequestration, ih. form of report and service on incumbent, 1628. incumbent to object in writing, ib. to execute rejiairs, ih. may borrow from the go- vernors, ih., Add. lxx\ii. limit of amount borrowed, ib. loan repaid in instalments, 1629. governors to keej) account, ib. sequestrators to pay moneys to governors, ib. where complaint made by archdeacon or patron of want of repairs, 1630. power of bishop \yhere incumbent refuses to repair, ih. as to residence houses of archbishops, bisliops, deans and canons, 1631, 1632. on episcopal estates, 1632, 1633. on vacant benefices, 1633 — 1635. benefice becoming vacant during repairs, 1636 other works than those specified, ih. ))ostpoiiement of works, 1637. no sum recoverable for, except on sur- veyor's report, ih. insurance of buildings, 1638. buildings when let on lease, 1639. moneys paid to bishops by succeeding incumbent, 1610. form and effect of security, ih. interim investment of moneys, ih. death of surveyor, ib. limitation of actions against surveyor, 1641. form of bishop's order, ih. where buildings of equal value substi- tuted, ib. removal ofunnecessarv part of glebe house, 1642. form of mortgage, ib. of houses let on lease, 1696. DI.MISSORY LETTERS, 123, 125. DIOCESAN COUNCILS, 1917, 102t. 7 I. 2 2348 IXDKX. DIOCESAN COURTS, THE, 1202. See Consistory, Court of. DIOCESE, origin of tlie wonl, 23. how divided, 'Sii. remodelled by 6 & 7 Will, i, c. 77.. 28, 3.5. jurisdiction of bishop in, 570, 57'J, 1180. surveyors of dilapidations in, Xii'Hi, l(j27. DIOCLETIAN, E.MrEIlOIl, M50. DISCIPLINE, over the laity, 1075. authority of ecclesiastical courts to ad- minister, ib. extent of former jurisdiction, ib. criminal jurisdiction, 1070. iniptiijners of law of church, 1076 — 1078. schismatics, 1078—1081. oftenders atrainst morality, Sec, 1081. sins punishable by ordinary, ih. defamation and brawling, 1083. b]asi)hemy, 108K 1092. perjury, 1084, 1085. over tile clerjjy, offences, list of, 1086. tribunals, 1087. mode of procedure, ib. censures, 1088, 13(J(i. offences against morality, 1090. recreations of clergy, 1091. offences against religion, 1092. heresy, ib. how punishable, 109-1-. writ "de hx'retico comburcndo," 1095. contravention of Thirty-nine Articles, 1095-1102. depraving Prayer Book, 1102. simony, ib. by canon law, 1102—1110. oath against simony, 1108. by 31 Eliz. c. (J.. 11 10. simoniacal presentations void, 1110, 1129. corrupt institution, 1110. resitjMation, 1111. ordination, ib. sale of advowsons, 1113, 1117. purchase for son, 1117, 1118. construction of statute as to resigna- tion bonds, 1118—1133. resignation bonds, 1123 — 1127. no presentation to be void by reason of agreement to resign, 1127. when such resignation to be void, 1129. simony punishable in ecclesiastical court, 1 133. statutes of Will. 3 and Anne as to, 1140. farming and trafficking, 1142, 1144. non-residence, 1144. DISC! PL I N E—coniiiiueJ. over the clergy — cuntiuuej. pluralities, 1 IU2. orticiating in private houses, 1180. without leave, 1181. relinquishing jirofession, 1185. disobedience to ordinary, 1188. penalty lor allowing clergy, not of the Church of England, to oMiciate with- out permission, iU. Clergy Discipline Act, 1314. ecclesiastical censures, 13f>i>. ^i?e Burial; Marriage. DISPENSATION, for holding two or more benefices, 11C5, ll(i(>. manner of obtaining, 11C6. certificate for, ib. form of, ll(i8, 1177. by statute since August (1838). . 1 170. shall not be sued for from Rome, 1233. DISSENTERS, baptism of cliiUlren of, G47. exempt from being churchwardens. 1841. position of, in grammar schools, 2048. DISTRICT CHAPELS, 308, 603, 60t, 2171. annexation of, to benefices, 553. marriages in, 764, 773, 806 - 808, 81 5, 81 6. DISTRICT PARISH. Hce Parishes. DISTRICTS ECCLESIASTICAL. See Parisuls. DISUNION, of benefices, 556. provisions of 1 & 2 Vict, rcspeciing, ib. glebe may be divided between dissevered benefices, 557. more than one house may be provided, 558. DIVINE SERVICE. See Public Worship. DIVORCE, 827—830. DOCTORS' COMMONS, 1218. DONATIVE, deacon not capable of, 134. what, 31 8 origin of, ib. what benefices or dignities may be, 319. form of, 319, 320. within statutes of simony and plurality, 322. no lapse of, ib. how far exempt from ordinary jurisdiction, 3J3. augmented by Queen Anne's Bounty, 32 h 2078. INDEX. 2349 DO NAT I V E— continued. goes to heir, not executor, 325. how far of temporal cognizance, 326. how extinguished, ib. included under term benefice, ib. made subject to bishops, 326, 327. how given, 478. DONEE, 318. how far must qualify, 320. DOUBLE QUARREL, 440. DOWER, tenant in, 371. DUBLIN, university of, 2003. DUCK, ARTHUR, 927. DULWICH COLLEGE, 2003. DUMB PERSONS, marriages by, 723. DUPLEX QUERELA, what, 440. DURHAM, diocese of, 3L university of, 33. 1994, 2096. precedence of bishop of, 38, 71. statutes of cathedral of, 179. EASTER, to be regulated according to new style, 1002. offerings, 1534, 1507. due of common right, ib. to what amount, ib. exempt from tithes, 1598. churchwardens chosen at, 1812. EAST INDIA COLLEGE, 2003. EAST INDIES, first bishopric created, 2003. ))rovision for salaries of bishops and archdeacons, 2257, 2258. jurisdiction of bishop, 2'25S, 2262. pensions of bishop, &c., 2259, 2262. residence of, ib. bishop of Calcutta can admit to holy orders without canonical qualifica- tions, 2260. other bishoprics, ib. bishop of Calcutta metropolitan of India, ib. visitation expenses, 2263. furlough allowances, ib. development of Indian episcopate, 2264. bishops of, acting under commission from bishops in England, 2282. ECCLESIASTICAL COMMISSION- ERS, main object of fund intrusted to them, 2100. recommendations as to bishoprics, 28, 2091. power of Church Building Commis- sioners transferred to. 295. as to exchanges of patronage, 344, 345. as to sale of advowsons, 368. endowments of suppressed sinecure rec- tories vested in, 506. report of, in 1832. .1218, 1611. transfer of property to, 1702. are a corporation, '2090. origin of commission, ib. cathedral and parochial recommendations, 2091. constitution of corporation, ib. church estates commissioners, ib. five to be a quorum, 2092. who to be chairman, ib. power to summon witnesses, ib. officers and treasurers, 2093. estates committee to manage property of, 2094, 2098. schemes of, 2095. to make annual report, ib. episcopal arrangements, ib. as to peculiars, 2096. incomes of bishops, ib. powers of, under 23 & 24 Vict. c. 142, ib. provision for improvement of lands by, 2098. cathedral and parochial arrangements of, 2099. separate estates of deans, S:c. vested in, 2101. separate estates of prebends and minor cathedra] corporations, ib. power of, to make allowances to minor canons, &:c., ib. power of, to make exchanges, 2102. estates of deans and chapters vested in, ib. application of property, 2104. agreements may be referred to arbitra- tion, ib. property to be holden on same trusts, 2105. arrangements as to archdeacons, ib. parishes, /''. library and towers of Lambeth palace maintained by, 2106. to he tithe owners, ib. resolutions resjiectiiig grants in augmen- tation of livings, ib. special powers of, 2107 — 2109. ECCLESIASTICAL COURTS. See Courts Ecclesiastical. ECCLESIASTICAL I.\\S. sources of, 12, 13. 2350 INDEX. KDGAR, KING, laws of, lS2y. EDMUND. A 15 P., constitutions of, 115, lo'jO, lUIti. KDWARD I., 192U. EDWARD II., 1926. EDWARD IV., 1941. EDWARD VI., jirayt-r books of. See Piiayf.r Books. Older of tlie Holy ('onmuuiion published by (1518), 970. injunctions of (1517), 979, 1010. EGBERT, ABP. OF YORK, constitutions of, 935, 1829. ELDON, LORD, observations of, on marriage, 777. ELEVATION, of the sacrament, 9G7 — 972. ELIZABETH, excommunication of, 15. injunctions of, 909, 1021), 1 040, 1 049, 1 107. proclamation of, as to liiinfry, 913. articles as to holidays, 10 Hi. ELLENIOnOUGH, LORD, judgments of, 419, 4-34, 5b'j, 80G, 1444. ELVIRA, council of, 1921. ELY, diocese of, 30. canonries of, 2030. ELY HOUSE, OS, 60, 70. EMBER DAYS, 1018. E.MBLExMENTS, 500. ENCLOSURES, 1659. ENDOWMENT, of viciirages, 276. of churches, law as to, 1759, ENGLAND, CHURCH OF, character and status of, 3, 11. catholic, 3, 4. reformation of, 3, 6, 15,610,694,966,909, 971, 1808. established by law, 6. law by which governed, 12, l.'j. theory of, as to pope, 21. is divided into two archbishoprics, 27. dioceses in, 27 — 35. o; ders and offices of, 621. doctrineof, resi)ec ting the sacraments, 637. law of, as to confirmation, 672, 674, as to ritual, 893. retained the choral service at Rcfoinia- tion, 966. ENGLAND, CHURCH OV—conlhmd. canons of. «Si't' Canons. convocation of, 1924. ^ml see Convo- cation. in her n latioii to charities and education, 1963. church extension, 2066. EPHESUS, council of (431), 1918. ERLE, JUSTICE, 48, 49. ESSAYS AND REVIEWS, 50, 51, 1099, 1962. ETH ELBERT, 36. ETHELRED, 1829. ETHELSTAN, 1035. ETON, COLLEGE OF, 955, 1189, 2022, 2027, 2038. EUCHARIST, THE, 676. See Lord's Supper, The. EUTYCHES, heresy of, 1918, EVES OR VIGILS, 1018. EVIDENCE, generally, 1297. See Procedure. EWELME, RECTORY OF, 2002. EX a:M I NATION, of clerks before institution by ordinary, 41 1, See Benefice, EXARCH, 24. EXCEPTIVE ALLEGATION, what, 1297. EXCHANGE, of advowsoiis, 344—348, 2108, augmentation of advowsons on, 345, 2140. of benefices, 502. cf gkbe. 503. of charity estates, //;. dilapidations on, 1623. generally, 1673, 1674. of parsonage houses and glebes, 1675. tithes of exchanged lands, 1677. where title is disputed, ih. for cojiyhold lands or tenements, 1680. consent of patron and bishop necessary to, 1681. provision as to peculiars, ib. notice of, to be given, ib. map and valuation to be made of premises given in, 1682. bishop to issue connnission of inquiry, ih. consent for patrons in cases of minority, &c., 1683. INDEX. 2351 E XC II \NGE—co!ifinned. deeds to be depositfil in rcf^istry, ib. incunibciU may exchaii. appeal from, 1415. writ cannot be quashed before day of return, 1416. may be superseded, ib. several excommunications, 1417. modern statutes res])ectiMg, (7). discontinued except in certain cases, ib. proceedings in case of, 1419. where parties out of jurisdiction, 1191. provisions ajjplying to writs de excommu- nicato ajjplicd to writs de contu- mace, 1422. on appenianec, S:c., parly may be ab- solved, 1423. sequestration where party contumacious, ib. pardon, 1427. EXCIIEQUl'.K, clerks in, 624. EXECUTOR, presentations by, 318, 350. EXEMPT JURISDICTION, 959, 1317. EXETER, diocese of, 30. EXORCIST, 108, 111. FACULTIES, THE, 1997, 2035. FACULTIES, Ma*ter of, 1201. who, 1232. power of as to notaries, 1232, 1237, 1 242. appeal from, 1237. FACULTY, for persons to be ordained under twenty- three, 117. for a vault, 844, 884. for removal of bodies, 879, 880. to erect monuments, 882. to a])j)oint a notary public, 1244. for alterations in parsonage house, 1624. for vestry room in chin-chyard, 17S3. for alterations in churclus, 1792. stamj) duty on, 1796. for selling goods belonging to a church, 1797. for seats, 1805, 1806. form of grant of, 1806. how far revocable, ib. for alteration of church way, 1815. for school in churchyard, 2038. FACULTY COURT, THE, 1201, 1202. FAIRS AND MARKETS, on Sunday, 1037. FARMING AND TRAFFICKING, of the clergy, 1142. restraints of, under 1 & 2 Vict. c. 106. . 1142, 1144, 1302. FASTING DAYS, 1047, 1018. See Holy- days. FEAST DAYS, 1044. See Hoi.ydays. FEES. Jnrl see Addenda. for ordination, 129, Jdd. Ixvii. table ol, 47 I, 475. for induction, 473, 479. for curate's licence, 567. for entry of, in register book, 577, 581. cannot be demanded for baptism, 664, 16i:6, Jdd. Ixx. for marriages, 814, 815, 1006. for burials, 840, 861, 871, 1607. on depositing deed of resignation. 112S. for licince of non-residence, 1155. of register, 1226, 1231. of bishop's secretary, 521, 1232. of notaries public, 1239, 1210. recovery of, 1312. on exhibits, 1350. on visitations, 1356, 1S66. 2352 IXDF.X. FEES — contimted. surplice fees, 1606. for clerk ami sexton, 1C07. depend on custom, ib. division of, ib. chaplains accountable for, ib. commutation of, ib. altarage, what, 160S. legal decisions as to, ib. altarage at St. Paul's, ib, other fees, 1609. for searches of registers and copies from, ib. for erection of gravestones and monu- ments, ib. who has power to fix scale of, 1627. on consecrations, 1772. in district chapels, 2171, 2183, 2185. FELIX III., POPE, 1917. FELLOWSHIPS OF COLLEGES. See Colleges. FELO DE SE, 860. FENCE, of churchyard, 1780. FER/E NATURit:, things, how tithabJe, 1489. FIRST FRUITS .AND TENTHS, apportionment of, in case of bishop co- adjutor, 105. application of revenue of, in case of aug- mentations, 290. to be compounded for after institution, 476. when paid, 477. nature of, 1724. history of, ib. tenths, 1726. taken from the pope, ib. given to the king, ib. manner of payment of, 1727. penalty on not paying, 1728. value of, how ascertained, ib. where to be rated, ib. year, when to commence, 1729. where incumbent dies after induction, ib. within what time archbishops and bishops to pay, ib. deans, archdeacons and prebendaries, how to pay, 1730. tenths to be deducted out of, ib. grants of exemptions from, to continue, ib. what livings exempt from, 1730, 1731. Sl George's Chapel, Windsor, exempt from, 1731. hospitals and schools exempt from, 1731,1732. lessor and not lessee to pay, 1732. account of, sent to clerks on institu- tion, ib. FIRST FRUITS AND TENTHS— r-^n/rf. manner of payment of — cuntinued. notice of arrears, 1732. times of jinyment of tenths, 1733. forfeiture on non-payinent of, ib. tentiis a charge upon executors, &c., 1733. 1734. case wiierc no incumbent, USV. members of cathedrals and colleges to pay separately, ib. collector to give acquittance and pay tenths into exchequer, ib. his estate liable, ih. apportionment of, to new incomes of bishops, 17. 55. where estates vested in commissioners, ib. present application of, ib. of colleges, 2030. abolition of office of, ih. FISH, tithe of, 1488. in ponds, 1535. in rivers and in sea, 1535 — 1537. FIXTURES, 1482. FLAX, tithe of, 1488. FLEET REGISTERS, 662. FONT, of disused church, 539. to be in churches, 6H. of stone, 924. FOREIGN MARRIAGE, 810. FOREIGN ORDINATION, 115,2271. FOREST LAND, how far liable to tithes, 1491. FORGERY, of marriage licence, 793. FORM, of title for orders, 141. of testimonial for orders, 142, 143, of endowment of a vicarage, 294. of nomination to a perpetual curacy, 309. of nomination to chapel of ease, 310. of a donation, 319, 320. of preseritation, 409. of institution, 47 1- of evidence of induction, 486. of stipendiary curate's declaration, 561. of admission and dismissal of domestic chaplain, 595. of appointment of a naval chaplain, 607. of registers of baptisms, 651, 653. of notice of marriage to registrar, 798. of registrar's certificate of marriage, 800. of registrar's licence for marriage, 801. INDEX. 2353 FORM — continued. of marriage register, 817. of register of burials, 861. of oath against simony, 1 108. of certificate ) . . . i » i c f ^ .• . , ( to nold two benefices, of testimonials > ^ ,rr ^ j-i c A- .- 1166, 11/7. or dispensation ) ' of deed of relinquisliment, 1186. of faculty appointing a notary, 1244. of warrant of discharge, 1262. of significavit, 1263. of writ de contumace capiendo, ib. of writ of deliverance, ib. of monition for costs, 1300. of mortgage of parsonage house and glebe, 1466. of deed of purchase of lands, &c. to be annexed to benefice, 1468. of report of surveyor of dilapidations, 1628. of bishop's order and delivery of notices, 1641. of mortgage to governors of Queen Anne's Bounty, 16+2. of consecrating a church, 1763. of consecrating a churchyard, 1769. of grant of a faculty for a seat in church, 1806. of oath of church warden, 1850. of removal of churchwarden, 1866. of opening convocation, 1937. o^ electing a prolocutor ( 1864), 1944. of subscription to Prayer Book, 2047. of deed for purchase, &c. by governors of Queen Anne's Botuily, 20S2. of deed for granting stipends, &c., 2083. for admitting converts from Church of Rome, 2286. FOWL, tithe of, 1488. FRAUDULENT MARRIAGES, 720. FRONTAL, what, 930. FRUITS, tithe of, 1488, 1527, 1531. FUNERALS, ringing at, 861 . expenses of, to be paid before debts, 878. See Burials. FUST, SIR H. JENNER, judgments of, 17, 737 — 742, 1861', 1880. GALLICAN CHURCH, custom of, as to election of bisliops, 25. objections to iiolding benefices "p!eno et utroque jure," 275. doctrine of, respecting the councils, 1920. GANG DAYS, 10t9, 1868. GANGRA, council of, 1921. GAOLS, chaplains in, 608. GARDENS, how titliable, 1527. extraordinary charges in respect of, 1532. exemption of small gardens, 1533. GENERAL COUNCIL. See Council. GENUFLECTENTES, 667. GEORGE I., 1934. GIBBS, SIR v., opinion of, 1281. GIBRALTAR, bishopric of, 2227, 2284. GILBERT, LORD CHIEF BARON, judgment of, 76. GIRDLE, 919. GLEBE LANDS, in case of united benefices, 53 k eveiy church to have, 1459. exempt from tithes, 1492. cliarges on, by parson, 1662. exchange of, 503, 1674. power to purchase 1 uid for, 1679. power to define boundary of, 1691. may be exchanged, tliougii no commuta- tion pending, ib. copyliolds may be exchanged for, 1692. land tax on, when belonging to college living, 1740. redemption of land tax on, wlicre rector is patron, 1741. GLOUCESTER AND BRISTOL, diocese of, 29, 30. bishops of, 32. GLOUCESTER, DUKE OF, marriage with Countess Dowager of Wal- degrave, 743. GODFATHER AND GOD.MOTIIER, number of, for every child, (ill. to be witnesses at confirmation, 673. GRAIL, what, 930. GRAVAMINA, what, 1944, 1945, 19J2. GREAT TITHES, 1185. 23o4 INDKX. Gnr,F-K CHURCH, TIIK. relations v(, will) An;;lican bishopric at Jerusalem, 3, '227+. orders of, recognized by tnglisli Churdi, 5, 115. theory of, as to pope, 21. number of sacraments in, 637. the use of, at confirmations, ()71. general relations with Engliih Church, 2284, 2285. GREGORY THE GREAT, rOTE, 2'1', 842. GREGORY VII., POPE, letter of, 24. GREGORY X., POPE, 1773. GREGORY, constitution of, 50 1-, 11 OK GRESHAM COLLEGE, 2003. GRETNA GREEN MARRIAGES, 810. GRINDAL,' ABP., 83, 205, 207, 834. GUARDIANS, may not })resent to benefice, 613. consent of, to marriage, 71 !•. GUERNSEY, ecclesiastical court in, 1201. HABERE FACIAS POSSESSIONEM, writ of, 15ul. IIADFIELD, council of, 1920. HADRIAN IV., POPE, 149-3. HALE, LORD CHIEF JUSTICE, judgments of, 6. 18, 66, 76, 1189, 1198, 1658, 1960. HAMPTON COURT CONFERENCE, 670, 897, 947. IIARDWICKE, LORD, 586, 1385, 1881. HARRIS, DR., opinions of, 844, 845, 1226, 1798, 1814. HASELY RECTORY, 214. HASSOCKS, 916. HAY, tithe of, 1488. HEARING, 1305, 1323. See Procedu KE. HEIR, presentations by, 3 18, 350. HENRY I., lin. HENRY II., 1265. HENRY III., 1922. HENRY IV., 1911. HENRY VI., 1911, 1960. HENRY VIII., excommunication of, 15. bishoprics founded by, 27. appeals to Rome abolished by, 1 136. act of submission and legislation of, 1925. HEREFORD, diocese of, 30. HERESY. 1092. how ])unishable, 1094. evidence in cases of, 1326, 1328. trial of, by convocation, 1960. See Councils. HERMAN, ARP. OF COLOGNE, 893. HERTFORD, council of (673), 1917. HOADLEY, BP. OF BANGOR, 1931, 1935. HOLT, CHIEF JUSTICE, opinions anil judgments of, 85, 86, 87, 584, GC)3, 1043, 1138, 1339, H45, 1418, 1449,1655,1789,1832,1845, 1853, 1904, 1986. HOLY COMMUNION, THE. ^eLoun's Suri'LK. HOLYDAYS. ^/irf s^e Addenda. common prayer to be used on, 962, Add. Ixxi. statute respecting feast days, 1044, 1016. fasting days, 1017. KHS. observance of, 10 H), 1050. days of special service, 1050. feast of dedication of churches, 1776. See PuuLic M'ousiiip. HOLY ORDERS, validityof, 4, 5. whether a sacrament, 110. indelible. 118. See Ordination. HOMILIES, THE, 639, 699, 926, 1027. HONORARY CANONRIES, 1179. HONORIUS I., POPE, 1920. HONORIUS III., POPE, 968. HOPS AND HOP-GROUNDS, tithes of, how to be valued, 1527. ])rovisi()n lor change of culture, 1528. mixed plantations of hops and fruit, 1 530. INDEX. 2355 HOPS AND HOP-GROUNDS— con^t/. rent-charge for, 1.531. extraordinary charge payable in respect of, 1532. no extraordinary charge for first year, ib. HORNE TOOKE, 633. HOSPITALERS, 1493. HOSPITALS, presentations by bretliren of, 318, SG^'. exempted from first fruit-;, 1731. difference between colleo^es ami, 19S2. ecclesiastical hospitals, 19S3. divers kinds of, ib. power of founding, ib. visitation and government of, 198k elections in, 1985, 198(J. how far exempt from rates and taxes, 1 980, 1987. endowed since 9 Geo. 2, c. 3G. . 1988. estates of, ib. Ciirist's, 2038. Cliarter House, ib. Emmanuel's, ih. augmentations of benefices by, 2116. HOST, THE, elevation of, 969 — 972. HOSTIARIES, 129. HOUSE OF COMMONS, chaplains of, 599. HOUSES, whether tithable, 1538. HUSBANDS, presentations by, 348, 371. ICONOCLASTS, schism of, 1917. IDIOTS AND LUNATICS, marriage by, 720. ILLEGITIMATE ALLIANCES, 734. children, marriage of, 714, 753, 754. IMPROPRIATION, dift'erence between, and appropriation, 273. IMPROPRIATOR, seat of, in chaiicel, 1807. lay rights of, 282, 288. in chancel, 885, 886, 1777. duties of, as to repairs, 1786. INAUGURATION DAY, 1050. INCENSE, use of, 92 i, 975, 976, 977. INCEST, suit for, 742. penance for, 1372. INCUMBENT. See Benefice. INDICAVIT, writ of, 4!j0. INDUCTION TO A BENEFICE, mandate of, 477. manner of, ib. fee for, 479. effect of, ib. of temporal cognizance, 480. INERT ORNAMENTS, 921. INFANTS, jiresentation to benefice by, 318, 319. jjublic baptism of, 640. private baptism of, 6i^3. IN FORMA PAUPERIS, suits in ecclesiastical courts, 1251. INHIBITION, what, 1274. when must precede an appeal, 1275. eff'ect of, 1276. ;)endente lite, 1329. during visitation, 1345. to schoolmaster, 2045. INJUNCTIONS, THE, of (1517), 979, 1040. of (1559), 909, 1026, 1010, 1019, 1107, 2036. INNOCENT II., POPE, 1761, 1763. INNOCENT III., POPE, 100,676,1162, 1486. INNOCENT IV., POPE, 172K INSTALLATION, of bishops, 60. INSTITUTION, form and manner of, 471. entry of, in register, 472. Iiishop's book of, ib. letters testimonial of, 473. efiect of, 475. trial of, 176. super-institution, ib. corrupt institution, 1110. INSURANCE, of residence houses, 1473, 1182, 1638. INTHRONIZATION, of archbishops, 37. of the queen, 1068. INTERVENERS, who, 1251. INTITUI.ATION, what, 505, 23.J6 INDEX. INTRUSION, constitutions against, .567. INVESTITURES, conflict of the, 40. INVITATORIES, wiiat, 950. IRELAND, CHURCH IN, desig;nation of, 2. formerly under primacy of Arclibishop of Canterbury, 3U. first archbishop in, ib. bishoprics in, 40, GI. Bisliop of Clopher's case, 91. marriages in, 711. visitations in, 136.3, 136.5. union of, with Church of England, 2204. acts respecting, ib. Irish Church Temporalities Bill, 2205. archbishops and bishops in, ih. deans and chapters, 2207. one jjeculiar, ih. parochial clergy, 2208. disestablishment of, 2209. dissolution of union, 221 0. prohibition of future appointments, ib. property vested in commissioners, ib. dissolution of corporations, 21 1 1. bishops not to sit in House of Lords, ib. abolition of courts, and law, 2212. incorporation of church body, ih. as to churches and burial grounds, 2213. residence houses and glebes, 2214. moveable chattels, ib. vacancies, 221-5. saving as to chapels proprietary and of ease, 2216. IRREGULAR MARRIAGES, 710. JAMES I., additions of, to the Book of Common Prayer, 947, 965. Book of Sports of, J040, lOH. offering of, 1596. JAMES II., 1933. JENKINS, SIR L., 258. JENNER, SIR H. See Fust. JEROME, ST., 890. JERUSALEM, Anglican bishopric at, 3, 693,2273, 2275. JERSEY, ecclesiastical court in, 1201. JEWEL, RP., 6, 731. JEWS. marriages by, 723. exempt from penalties for working on Sundays, 1044. JOHN XXII., POPE, 1724. JUDGES. .Jpe Courts; Practice. JUDICIAL COMMITTEE OF PRIVY COUNCIL, origin of, 1271. appeals to, ib. evidence taken by, 1272. discretion of, as to costs, 1273. decrees of, to be enrolled, ib. time of appeal to, 1274. JULIAN KALENDAR, THE, 1000. JULIUS III., POPE, 1922. JURAL PERSONS, what, 1455. JURIES, clergy exempt from serving on, 625. JURISDICTION. See Courts; Prac- tice. JUS ECCLESIASTICUM, 12. JUS PATRONATUS, what, 329. form and manner of trial of, 445. JUSTINIAN, EMPEROR, 1456, 1761, 1918. KALENDAR, enactments respecting, 999, 1003. year to begin on 1st of January, 999. eleven days thrown out, 1000. deeds, &c. to bear date according to new style, 1001. courts and meetings, ih. regulations perpetuated, ib. enactments respecting Table of Lessons and Psalter, 1003. old tables may be used till 1st January, (1879).. 1004. KEBLE COLLEGE, 1995. KENYON. LORD, judgments of, 585, 1036, 1802. KEYS, of church, 502. KIDS, tithe of, 1488. KING'S BOOKS, 1725. KING'S COLLEGE, LONDON, 2003. KING, THE, oath of allegiance and supremacy to, 10, II, 43,46,468. INDEX. 2357 KING, THE— continueil. consent of, to election of bishops, 25. riglit of patronage of, 39, 41. letters ))atent granted by, 44, 57, 58, 59, 15k right of presentation of, 61, 3S0. has temporalities of bishopric during va- cation, 79, 361. assent of, to election of deans and chapter, 154. has profits of peculiar during vacation, 260. privileges of, as to advowsons, 336, 339. writ of, to bishop to admit a clerk, 465. no lapse from, 492. chaplains of, 594, 598. priests in ordinary to, 599. confessor of the royal household, 697. marriage of, 751. inauguration day of, 10.30. Coronation Service, 105 !■. oath at, 1057. Archbishop of Canterbury may grant dis- pensations to, 1233. right of visitation of, 1361, 1824, 2009, 2019. ecclesiastical jurisdiction of, 1362. tithes belonging to, 1487. offerings of, 1596. first fruits given to, 1726. free chapels of, 1824. powers of, as to convocation, 1929, 1948. KNIGHTS OF THE GARTER, 1045, 1046. LAITY, THE, 20. discipline over, 1075. LAMBETH CONFERENCE, 3, 1922. resolutions of, ib. LAMBS, tithe of, 1488. LAMMAS LANDS, tithes of, 1522. LANCASTER, DUCHY OF, provision for livings in, 16S3. LAND-TAX, 1775, 2030. on charities, 2112. And see Tax. LANFRANC, ABP., 71, 93, 840. LANGTON, ABP., constitutions of, 255, 413, 463, 473, 683, 861, 1346, 1645. LAODIC/EA, councils of, 94, 1921. LAPSE, notie of a donative, 322, 491'. nature of, 487. incurred in six months, 310, 488. LAPSE— conllnued. case of insufficient clerk presented, 489. shall not incur per saltuni, 491. bishop, patron and ordinary shall not have twice six montlis, ib. incurred during metropolitical visitation, 492. bishop dying after lapse incurred, ib. none Irom king, ib. patron's right where lapse not taken, 493. LATE RAN, councils of, 17, 120, 275, 1103, 1162, 1165, I486, 1493, 1921, 2036, 2041. LAUD, ABP., 120, 205, 1761, 1762, 2019. LAWRENCE, DR., opinions of, 647, 1281. LAY BAPTISM, 644, 902, 903. LEASES AND ALIENATION, under Tithe Commutation Acts, 1506. before the statutes of \'ictoria, 1644. by ecclesiastical persons de facto, ih. by common law, 1615. under disabling statutes of Elizabetli, 1646. old law respecting, nearly obsolete, 1647. bv enabling statute of 32 Hen. 8, c. 28, ' ib. statute why so called, 1648. freehoUl leases of tithes formerly void against successor, 1649. action of debt lies for rent on, 1651, 1652. how construed, 1652. must be by deed, ib. who are within statute, 1653. expiry of former leas;e, ib. grant of reversion, 1654. lands usually lettcn, ih. lengtli and date of lease, 1655, 1656. of bi^hops by disabling statute of 1 Eliz. c. 19.. 1657. power of governors of Queen Anne's bounty, 1659. enclosures, ib. when confirmed by successor, 1659, 1660. leases of other corporations, 1661. acting as charges on glebe lands, 1662. requisites of confirmation of, 1663. who included under statutes. 1664. of houses under 14 Eliz. c. 11 . . 1665. confirmation of, where two chapters, 1666. concurient leases by bishops, ih. portions of lands usually letten together 1667. further regulations as to, 1667, 1668. 2358 IN'DKX. LEASKS AND ALIENATION -r«n/,/. leases under eiiclosiirc acts, 1 ()(»!). rectors, when may denusj allotments, 1()70. may charj^e ini])rovcincnts, ih. restrictions on <;raiitin;^- leases, ih. recitals to he eviilence, l(i71. leases may be granted conforniablc to ancient practice, ih. leases contrary to G & 7 Will. 1, c. 20, void, 1(J72. college leases, ](j7.3. of lionses of residence, ih. apportionments of rent, ih. leasing: statutes of Victoria, 1()02. aijrienltnral leases, ih. restrictions on powers of letting, 1G03. surrender of, ih. lands holden in trust, lfi!)+. way and water leases, ](i[)5. inininij leases, ih. confirmation ot void leases, ih. dilapidation of houses letten, 1(J9G. who are to consent to, ih. in consideration of ))reiniums, lGn7. land aciiuired uiider this act to be letten at rack rent, l(iiued. mode of procedure in privy council, 132,'). witnesses to be examined on oatli, 1326. accused admitted as witness, ib. evidence in case of heresy, 1326 — 1 328. use of authorities, 1326 — 1329. inhibition of accused clerk, 1329. where bishop is patron, archbishop to act, 1330. pensioned clerk amenable to ecclesias- tical discipline, ib. PROCESSIONS, 985, 986. PROCTOR, who may be, 1219, 1220. how appointed, 1220. not obliged to answer foreign seals, ib. stamp duty on admission of, 1221. canons respecting, 1221, 1222. 53 Geo. 3, c. 127, respecting, 1222, 1223. power of ecclesiastical court over, 1223, 1224. pauper proctor, 1224. admission of, ib. 33 & 34 Vict. c. 28, respecting, 1225. PROCTORS, in convocation, election of, 1942, 1950. PROCURATION, 1359. by provisions in kind, ib. converted into money, ib. part of revenue of see, ib. whether due when no visitation, ib. to be sued for in spiritual court, 1360. when to be paid by rectories impropriate, 1361. places exempt, ib. due to bishops on consecration of churches, 1771. PROHIBITED DEGREES, 723. table of, 726. PROHIBITION, first use of, 1438. not grantable in cases merely spiritual, ib. general jjrinciples on which grantable, ib. considtation, 1439. for wliat causes, 1440. not granted where jurisdictions concur- rent, ib. nor for trying temporal incidents by rules of temporal law, 1441. nor for temporal consequential loss, 1441, 1 442. on trial of custom, modus or prescription, 1442, 1444. whether statute takes away jurisdiction, 1444. 2370 INDEX. PROHIBITION — roM/Zm/f J. when grantablc, H-'l-K for misconstruction of statute, ih. wliere statutes create jurisdiction, 1445. on refusal of copy of libel, ib. on collateral surmise, 144.5, 1446. question must be first raised in spiritual court, ib. affidavit to be made of suggestion, 1447. strict proof of suggestion not necessary, ib. suggestion traversable, 1448. may be after sentence, ib. general rule as to granting after sentence, M49. when spiritual courj determines matter of common law, ib. plaintiff may have, 1451, 1452. declaration in, 1453, party dying, ib, costs, ib. PROLOCUTOR, in convocation, election of, 1943. office of, (7;. form of election of, 1944. PROPRIETARY CHAPELS, 1183, l'834. PROTESTANT, meaning of term, 5. PROTOCOL, what, 1243. PROVINCIAL COUNCILS, 1917,1924. PROVINCIAL COURTS, 1201, 1202. PROXIES, in convocation, 1916, 1951. PROXY, nature of, 1220. PSALTER, what, 930. PUBLIC BAPTISM. See Baptism. PUBLIC WORSHIP. And see Addenda. in prisons, CIO. due attendance on, enforced, fi34. all persons shall resort to church, ib. orderly behaviour during, 935. canons respecting, ib. duty of churchwardens to enforce, 936. Lord Stowell's observations respecting, ib. 1 Mar. sess. 2, c. 3.. 936, 939. Act ot Toleration, 939. Riot Act, ib. 23 & 24 Vict. c. 32.. 940. liturgy before Acts of Uniformity, ib. Acts"of Uniformity, 941, 946, 951. canons of 1603 respecting Book of Com- mon Prayer, 946. additions of King James, 947. preface to Prayer Book, 947, 948. prayers to be in the English tongue, 950. PUBLIC \y OnSUir— continued. books of common prayer to be provided, 953. provisions of 14 Car. 2, c. 4.. 953, 956. derogation or depraving Praver Book, 956, 957. use of any other rite, 959, 960. law as to daily service, 961. common prayer to be used on holydays, 962. litany on Wednesdays and Fridays, ib. bishops may enforce performance, ib. prayers and thanksgivings after litanv, 965. proviso for psalms and prayers taken out of Bible, ib. the ancient uses, ib. church music, 965, 966. modern cases on ornaments and ritual, 967, 999. public preaching, 1023. restraints on, ib. homilies, 1027. publication of notices in church, 1028. 7 Will. 4 & 1 Vict. c. 45, as to notices, 1030, 1031, 1032. shortened services, Add. Ixxiii— Ixxvi. PULPIT, 923. PUR AUTRE VIE, tenant in. 351. QUAKERS, tithes owed by, 1562, 1602. manner of recovery of, 1605. QUALIFICATIONS, for ordination by general law, 114. under later English law, 117. of deans, archdeacons, and canons, 214. of incumbents of district chapels, 309. of judges in ecclesiastical courts, 1190. of parish clerks, 1900. QUARE IMPEDIT, form of plea by bishop in, 41 6. case of bishop's refusal of clerk presented, 451. form and manner of trial of, 452. evidence in, 453. statutes as to, 454. QUARE INCUMBRAVIT, writ of, 452. QUARE NON ADMISIT, writ of, 466. QUEEN, THE. See King. QUEEN ANNE'S BOUNTY FOR AUGMENTATION OF SMALL LIVINGS, augmentation of vicarages bv, 290. INDEX. 2371 QUERN ANNE'S BO\JT;UBSTANTIATION, doctrine of, 676. TRAVELLERS, parishioners of every parish, 677. TREES, in churchyard, 1781, 1782. TRENT, council of (1545), 109, 118, 204, 237, 713, 893, 899,970, 1921, 1922. TRINITY COLLEGE, DUBLIN, 2004. TROPER, what, 930. TRULLO, in, what, 1020. TRUSTEES, presentations by, 348, 361. of advowsons, 361. church trustees, 1898. TUNICLE, 907, 917,920. TWISS, SIR TRAVERS, 50, 55, 60. UNBAPTIZED, burial of the, 858. UNIFORMITY. .S^e Addenda. acts of, 58, 908, 940, 946, 951, 1212, 1932, 1993, ^dd. Ixxii, Ixxiii UNION, of churches and benefices, 529. causes of, ih. may be in future, 530. presentation to united benefices, ib. reparations of, 531. other payments and duties, ib, effect of, as to pluralities, ib. UNION— ro«/»iif/t(f. church united to prebend, 531. how tried, re-enacted, 532. provisions of old nets and extended, ih. rights of parishioners in united benefice, 540. of benefices within the metropolis, Vi. annexation of districts to benefices, 553. UNITED STATES. See Bishops. UNIVERSITIES, origin of O.xford and Cambridge, 1997. faculties and degrees, 1997, 1998. charters granted to, 2003. Dublin, i6. Scotch, 2004. Queen's, ib. visitation by archbishop, 2018. advowsons of papists, 2026. licences to preacli, ib. degrees requisite for plurality, ib. power to augment vicarages, 2027. first fruits and tenths, 2030. estates of, 2031. See Colleges. UNIVERSITY COLLEGE, LONDON, 2003. UNIVERSITY COMMISSIONS, 1960. URBAN, POPE, 1433. USES, various in England, 893, 965. USURPATION, what, 513. VACATION, of benefice by promotion to bishopric, 61. sjjiritualities of bishoprics in time of, 77. temporalities, 78. profits of deaneries during, 161, 260. of prebends, 171, 350. of benefice, 495. who shall have profits during, ib. sequestration issued on, 497. management of profits, 498. supply of cure, ib. stipend of curate, how paid, ib. where profits insutficient, 499. successor when to enter, ib. sequestrators to account, ih. rights on change of incumbents, ib. who entitled to profits of land, 500. widow may continue in bouse two months, 501. separate parishes may be formed during, 554. sequestration during, 1379. inspectiot) of buildings on, 1633. INDEX. 2383 VALENTINIAN THE ELDER, 1975. VATICAN, council of (1870).. 1922. VAULTS, in church or churchyard, 848, 884.. 1609. under Church Building Acts, 2159. VEIL, worn by women when churched, 832 — 834. VESTMENTS, of bishops, 57, 907, 917. of ministers, 681, 907 — 920. VESTRY, duties of, where union of benefices, 542. act for regulation of, 1030, 1031. not affected by Compulsory Church Rate Abolition Act, 1818. definition of, 1871. place of, ib. jurisdiction of ecclesiastical court over, ib. place of meeting, 1871, 1872. purchase of lands for vestry rooms, 1872. acts regulating, 1873. three days' notice of to be given, ib. publication of notice, ib. appointment of chairman, ib. to have casting vote, ib. manner of voting in, 1873, 1874. inhabitants refusing to pay poor rate, excluded from, 1874, 1877. parish bonks to be j)reserved, 1874. penalty for injuring, 1874, 1875. notice of special meeting, how given, 1875, 1876. London and Southwark not included in act, ib. non-inhabitants rated to poor may vote, 1876. clerk or agent of corporation may vote, ib. who have votes, 1877. who shall preside, 1877, 1878. hindering persons from meeting, 1878. majority conclusive, ib. how votes are taken, ib. mode of procedure in, 1879. general power of president, 1885. elections of churchwardens in, 1886. officers of, ih. beadle, 1887- vestry clerk, ib. churchwardens to convene meeting for election of, ib. select vestries, 1890. origin of, ib. cases on constitution of, 1892. proceedings in, 1894. under special acts, ib. liability of vestrymen, 1895. VESTRY—conlinued. select vestries — continued. in metropolis, 1896. church-rates made in open vestry, ib. power of vestries and like meetings transferred to vestries under sta- tute, ih. VESTRY CLERK, election of, 1887, 1888. duties of, ib. salary of, 1889. VICAR-GENERAL, power of, 1212. court of, 49, 50, 1201. See Chancellor. VICARS AND VICARAGES, history of appropriation of churches, 263—272. what appropriation is, 272 — 275. endowment of vicarages upon appro- priation, 276. vicarages distinct benefices, 279. patronage of, 279, 280. endowments, 281. vicar entitled by endowment or pre- scription, ib. prescription where endowment lost, ih. trial of endowments, where, 281, 282. endowment to be construed favourably, 285. evidence of endowment, 287. augmentation of, 288. letter of Charles II. respecting, 289. dissolution of, 292. presentation of vicar to parsonage, 293. form of endowment of, 294. conversion of, into rectories, 295—298. vicar may reside in rectory house, 298. right of, in church and chancel, 298, S8S, 1777. repair of vicarages, 1616, 1624. power of vicar to lease allotments, 1670. redemption of land tax by, 1741'. sometimes to repair chancel, 1783. seat of, in chancel, 1807, 1808. VICARS CHORAL, their office, 161. their emoluments, ib. liable for dilapidations, 161, 1618. VICTORIA, QUEEN, coronation of, 1056 — 1074. VIENNA, council of, 1725, 1921. VIGILS, what, 1048. VIIS ET MODIS, form of citation, 1283. 2384 INDEX. VI LAICA REMOVENDA, writ of, .") I 3. VISITATION, of arclibishops, 82. of metropolitans, 205. special, of St. Paul's by Archbislioj) Laud, 201). ordinary, of St. Paul's, 206, 207. deans and chapters subject to, 204, 211. York visitation, 208, 1138, ISS*. origin of. 1332. who shall visit, ib. how often, in wiiat order, ifi. general power of visitor, 1333. Dean of York's case, 133!', 1339. triennial visitation by bishop, 13H'. inhibition durinsr time of, 1345. where holden, ib. court of, 134(j. archidiaconal visitation, ib. how often to take place, ib. in any part of diocese, ib. general power of visiting, ib. visitation sermon, 1348. e.\hibits at, 13i!>. jjresentments, by whom made, 1350. whether made on oath, 1352. articles of inquiry, ib. presentments oti common fame, 1353. presentments, how made, 1354. time of making, ib. fee for taking, 1355, 135C, 18(j6. penalty for not presenting,135(). none to be presented twice for same ofifence, 1357. churchwardens to support their pre- sentments, 1358. procurations, 1359. anciently by provisions in kind, ib. converted into money, ib. whether due when no visitation is made, ib. to be sued for in spiritual court, 1360. to be paid by rectories where no vicar endowed, ib. cha])ei of ease under a parochial church, 1361. churches newly erected, ib. places exempt, ib. royal visitation, ib. king may visit, ib. ecclesiastical jurisdiction annexed to crown, 1362. may assign commissioners to execute it, ib. in Ireland, 1363. of colleges, 2006. of schools, 2043. VISITATION OF THE SICK, 836. VISITOR OF COLLEGES, 200G. appointment of. 2008. mandamus to, 2011. return of, 2014. VOLUNTARY JURISDICTION, what, 1210, WAFER BREAD, use of, 994—999. WAGER OF BATTLE, 625, 626. WAKE, ABP., directions of, to bishops, 135, 316. teaching of, on confession, 695. on the authority of Christian princes, 1923. WAKES, 1776. WALES, bishoprics in, founded by prince of, 30. mortuaries in, 875. English services in, 1184, 1185. •chapters in, 215, 281. provisions for benefices in, 435, 436,437. curates in, 566. marriages in, 717, 719. prayer books in, 9(i0. bJsliops of, summoned to English synod, 1916. WARBURTON, DR., BISHOP OF GLOUCESTER, 66. WARD IN CHANCERY, marriage of, 718. WARHAM, ABP., 1037. WASTE, voluntary and permissive, 1610. general law as to, ib. WAY, through church or churchyard, 1783. subject to ecclesiastical court, 1814. when not a highway, ib. alteration of, requires faculty, 1815. power of ecclesiastical commissioners as to, 1816. WEST INDIES. 5ee Colonial Cjiurch. WESTMINSTER ABBEY, burials in, 848, 864. WESTMINSTER, COLLEGE OF ST. PETER'S, 955, 2022, 2038. WESTMINSTER, COUNCIL OF (1178), 713. WETIIERSTEAD, ABP., constitutions of, 123. WHITGIFT, ABP., 83, 101, 205, 811, 1951. WHITSUN-FARTHINGS, 1598. • The Act as to the Welsh chapters is 6 & 7 Vict. c. 77 : it is by eiTor cited in the text as 7 & 8 Vict. c. 77. 1 INDEX. 2385 WHITSUNTIDE, offerings at, 1598. WILLIAM THE CONQUEROR, 66, 1431. WILLIAM RUFUS, 44, 70, 1432. WILLIAM TESTA, 1725. WILLIAM III., 1933, 1942. WILLIAMS, DR., Bishop of Lincoln, Archbishop of York, Chancellor of England, 623. WILLIAMS, SIR E. V., 300. WIMBORNE MINSTER, endowments of, 229. WINCHELSEA, ABP., constitutions of, 316, 873, 929, 982, 1502, 1776, 1780, 1785, 1808. WINCHESTER, diocese of, 29. college of, 955, 1177, 2022, 2027, 2038. WINCHESTER, I3P. OF, income of, 33. chancellor of the Archbishop of Canter- bury, 37. precedence of, 38, 71. power of, as to union of benefices within the metropolis, 540. bill of, respecting baptismal fees, 1606. WINDSOR, deanery of, 214. canonries of, 225, 2099. WINE, to be provided for the holy communion, 680. remaining after service, 683. WITNESS, designation of, 1256. examination of, ib. attendance of, at Privy Council, 1325. accused admitted as, 1326. WOMEN, baptisms by, 644. may be sextons, 1911. WOOD, tithe of, 1488. WOOD, SIR W. PAGE, 1939. WOOL, tithe of, 1488. P. VOL. II. WORCESTER, diocese of, 30, WORKHOUSES, chaplains to, 612 — 617. statutory provisions respecting, 612. WREN, BP., 835. WRITS, de primo beneficio ecclesiastico habendo, 386. of quare impedit, 451 — 454, 463. of quare incumbravit, 452. of right, 454, 466. of darrein presentment, 454, 455. of indicavit, 460. of quare non admisit, 466. of summons, ib. de vi laica removendii, 513. de haeretico comburendo, 1084, 1094, 1095. de conlumace capiendo, 1261, 1263, 1420. of deliverance, 1263, 1420. de excommunicato capiendo, 1403, 1404. of sequestration, 1305, 1377, 1378, 1380. of levari facias, 1386, 1387, 1388. of capias, 1406, 1407, 1410. of scire facias, 1416. of supersedeas, ib. of consultation, 1439. of prohibition, 1453. of mandamus, 1454. of habere facias possessionem, 1561. of ad quod damnum, 1680. of fi. fa. de bonis ecclesiasticis, 1719. of quo warranto, 1912. WULFRED, ABP. OF CANTERBURY, 1775. WULSTAN, ABP., 1829. WYNNE, SIR WILLIAM, 750, 1226, 1283. XENICUS, schism of, 191 ( YORK, ABP. OF, income of, 33. formerly had jurisdiction over Scotch bishops, 37. right of, to crown Queen Consort, and bo her chaplain, ib. ecclesiastical courts of, 1207. appeal lies to, from Isle of Man, ib. ZOUCH, 1204, 1366, 1367, 1368. 7 O LONDON : PRINTED BY C. ROWORTH AND SONS, NEWTON STREET, W.O. SUPPLEMENT ECCLESIASTICAL LAW d{Iuntlt 4 ^w^I^w^' BY SIR KOBERT PHILLIMORE, D.C.L, MEMBER OF IIER MAJESTY'S MOST HONORABLE PRIVY COUNCIL. LONDON : HENRY SWEET, 3, CHANCERY LANE ; STEVENS & SONS, 119, CHANCERY LANE; 1876. LONDON: PRINTED BY C. R O W O R T H A X D S X S, XEWTOX STREET, liIGH HOLBOEK. ADYERTISEMENT. This Supplement has been prepared for the purpose of bringing the original work down to the present time. The First Part contains, in addition to other new matter, the decisions and the legislation subsequent to the early part of the year 1873, when the work was published. It gives also a Table of Corrigenda to the original work. The Second Part consists of the Public Worship Regu- lation Act, 1874, and the Rules and Orders made under the provisions of that Act, edited with Notes. December, 1875. TABLE OF CONTENTS. Part I. Corrigenda . . Addenda The principal Subjects of the Addenda are: — Bishopric of St. Albans Act . . Letters of Orders Alterations in Cathedrals Visitation of Cathedrals . . Cathedral Acts Amendment Act, 1873 .. Ecclesiastical Commissioners Act, 1873 Alteration of Archdeaconries and Rural Deaneries Admission of Clerk upon his own Presentation .. Suit by Sequestrator . . Tenant of Glebe holding on upon Vacancy of Incumbency Minister of Proprietary Chapel . . liegistration of Baptismal Name Refusal of Holy Communion .. Celebration ^vith insuflBcient Communicants . . Burial of Corpses cast Ashore . . Registration of Death before Burial Fee for Burial in Vault Fees on Burials in District Parishes Epitaphs in Churchyards Sculptured Rcredos Cross on Ledge u])on Holy Table Unnecessary Lights at Morning Prayer iMinister making Sign of Cross Opening of Brighton Aquarium on Sunday . . Extension of Bank Holydays Act Construction of Statute 13 Anne, c. 11 Officiating in Parish against will of Incumbent . . Officials Principal of Provincial Courts Privileges of Proctors •• .. .. Duties of Registrars .. .. Faculty to Confirm Additions to Church Election between Ecclesiastical and Common Law Proceedings Admission of Libel of Appeal Allegation of Interest in Civil Suit Final Court of Appeal Civil Suit in Criminal Form Issue of Commissions under Church Discipline Act Tithe Commutation Acts Amendment Act, 1873 .. Redemption of Annuities to Ecclesiastical Corporations Agricultural Holdings (England) Act, 1875 Loans on Church Rates Places of Worship Sites Act, 1873 Endowed Schools Act, 1873 Colonial Clergy Act, 1874 .... Part II. The Public Worship Regulation Act, 1874 . . Order in Council.. Rules and Orders Forms . . . . . . . . . . Fees PAGE. 5 7 9 9 9 9 10 11 12 12 13 13 14 15 15 16 17 17 17 17 18 18 18 18 19 19 19 19 20 21 21 22 22 23 23 23 24 24 25 25 26 27 28 32 34 38 51 52 63 79 ( 5 ) Part I. CORRIGENDA. Table of Cases. p. xxxiii. .Horwer v. Jones — read, Womzr. p. xli. .Regina v. Champneys, p. 212— read, 227. p. xliv. .Roberts v. Aulton — add, p. 2171. p. xlvi...Smallbones v. Edney and 'Lw.wn—add, p. 1752. Smallbones v. Edney and Queen — dele. Table of Statutes. p. Ivii. .24 Geo. 3, c. 35, p. 22-2— dele. 24 Geo. 3, sess. 2, c. 4cO—read, 35, add, p. 2272. p. Iviii. .53 Geo. 3, c. 146, p. QZQ—dele. p. lix. .3 & 4 Will. 4, c. 21— add, p. 407. c. 29, p. iOl—dele. 4 & 5 Will. 4, c. 45, p. 615— dele. 6 & 7 Will. 4, c. 7\—add, p. 1607. c. 74, pp. 1606, 1601— dele. c. 75, p. S30— dele. c. 83— add, p. 830. 1 Vict. c. 23, pp. 558, Uo'd—dele. p. Ix . .1 & 2 Vict. c. 23— add, pp. 558, 1459. add, c. 108, p. 2099. 2 & 3 Vict. c. 32, p. 1504— ^Ze^t'. c. 62— add, p. 1504. 3 & 4 Vict. c. 70, p. 2\60—dele. c. 92, p. 661— read, 691. 5 Vict. c. 4 — read, 5 Vict. sess. 2, c. 4. p. Ixi. .5 & 6 Vict. c. 10^— read, c. 119. 6 & 7 Vict. c. 22, p. 101— dele. c. 31 — read, c. 35, c. 62— add, p. 107. 12 & 13 Vict. c. 49, p. 20:>'S>—rcad, 2038. add, c. 79, p. 831. 13 & 14 Vict. c. n—add, p. 1713. c. 51, p. 1713 — dele. c. 79, p. 83\—dele. c. 98, p. m^-read, 604. 15 & 10 \\Qi.—add, c. 36, Add. Ixx. c. 56. 260 Add. X-ax—dele. COIMilGENDA. Table of Statutes— Pfl«#/«?/«Z. p. Ixii. . 17 & 18 Yict— add, c. 47, p. 1253. 18 & 19 Vict. c. 41, p. Ua.i—read, 1083. c. 120— dele p. 554. 19 & 20 Vict. c. G4, p. lOol—dele. c. 76— read, c. 70. c. SS- dele p. 831. 20 & 21 Vict. c. 85, p. 1070— read, 1076. 22 Vict. c. 22\— read, c. 21. 23 & 24 Vict. c. 23, pp. 1517, 1518— ^7('ZQ), sect. 21, it is provided as follows : — " It shall be laAvful for her Majesty, if she shall think " fit, at any time hereafter, by Order in Council, to direct " that all appeals and petitions whatsoever to her INIajesty " in Council wdiich according to the laws noAV in force " ought to be heard by or before the Judicial Committee " of her Majesty's Privy Council, shall, from and after a " time to be fixed by such order, be referred for hearing " to and be heard by her Majesty's Court of Appeal ; and "from and after the time fixed by such order all such " appeals and petitions shall be referred for hearing to and " be heard by the said Court of Appeal accordingly, and " shall not be heard by the said Judicial Committee ; and " for all the ])urposes of and incidental to the hearing of " such appeals or petitions, and the reports to be made to *' her jNIajesty thereon, and all orders thereon to be after- *•' Avards made by her Majesty in Council, and also for all " purposes of and incidental to the enforcement of any " such orders as may be made by the said Court of A])peal " or by her ^Majesty, pursuant to this section (but not for " any other purpose), all the power, authority and juris- " diction now by law vested in the said Judicial Com- " mittee shall be transferred to and vested in the said " Court of Appeal. " The Court of Appeal, when hearing any appeals in " ecclesiastical causes which may be referred to it in " manner aforesaid, shall be constituted of such and so " many of the judges thereof^ and shall be assisted by such 24 ADDENDA. " assessors being archljisliops or bishops of the Clmrcli of " England as her Majesty, Ijv any general rnles nuidc " with the adviee of tlic judges of the said court, or any " five of them (of Avhoni the Lord Chancellor shall be " one), and of the archbishops and bishops who are mem- " bers of her Majesty's Privy Council, or any two of them " (and which general rules shall be made by Order in " Coimcil), may think fit to direct: Provided that such " rules shall be laid l^cforc each House of Parliament " Avithin forty days of the making of the same, if Parlia- " ment be then sitting, or if not, then within forty days ot" " the commencement of the then next ensuing session ; " and if an address is presented to her Majesty by cither " House of Parliament Avithin the next subsequent forty " days on AAhich the said House shall have sat, praying " that any such rides may be annulled, her INIajesty may " thereupon by Order in Council annul the same ; and the " rules so annulled shall thencelbrth become void and of " no effect, but Avithout prejudice to the validity of any " proceedings Avliich may in the meantime have been taken '• under the same." But by the Judicature Act, 1875 (38 & 39 Viet. c. 77), sect. 2, the section just set forth " shall not commence or " come into operation luitil the first day of November, " 1876." Page 1318. Sect. 19 of 3 & 4 Vict. c. 86, does not except a suit brought in criminal form, promoted by an incumbent of a ])arish against another clerk in holy orders for officiating in the parish Avithout his leave, from the general operation of the act. Such a suit must therefore be brought in ac- cordance Avith the general provisions of the act. {Bichard.^ X. Fincher, L. P., 4 Adm. & Eccl. 107.) Page 1319. The provision in sect. 3 of 3 & 4 Vict. c. 86, directing that the notice of intention to issue a commission shall contain the name, addition and residence of the party on Avhose application it is to issue, does not enable the party accused to claim a preliminary hearing of objections to the locus standi of the jjarty on Avhose application it is to issue. {Ex parte Edimrds, L. P., 9 Ch. App. 138.) Page 1346. Sect. 28 of 4 & 5 Vict. c. 39, has been repealed as obso- lete by 37 & 38 Vict. c. 96. ADDENDA. 25 Page 1378. 3 & 4 Vict. c. 33, s. 4, lias been repealed by 37 & 38 Vict. c. 77. Pa(je 1388. As to the power given to a sequestrator to sue in his own name by 12 & 13 Vict. c. 67, vide supra, addendum to page 498. Facje 1472. Sect. 3 of 1 & 2 Vict. c. 23, is repealed as obsolete by 37 & 38 Vict. c. 96. Pa(jc 1533. Since the decision in Russell v. The Tithe Commis- sioners given in the text, the Tithe Commutation Acts Amendment Act, 1873 (36 & 37 Vict. c. 42), has been passed. By this act so much of sections 40 and 42 of 6 & 7 Will. 4, c. 71, sections 26 to 33, inclusive, of 2 & 3 Vict, c. 62, sections 18 & 19 of 3 & 4 Vict. c. 15, and section 42 of 23 & 24 Vict. c. 93, " and of the powers therein con- tained confeiTcd on the Tithe Commissioners as i)rovidc lor the charging of an additional rent-charge by way of extraordinary charge on market gardens ucAvly cultivated as such, shall extend and apply only to a parish in which an extraordinary charge for market gardens was distin- guished at the time of commutation." (Sect. 1.) Sect. 2 has a saving for pending proceedings. Pa(jc 1590. The case of Vi(jar v. Dudman referred to in the text hns since been affirmed on appeal to the House of Lords. (L. K, 6 II. L. 212.) PcKje 1595. By the Consolidated Fund (Permanent Charges Re* demption) Act, 1873 (36 & 37 Vict. c. 57), the Treasury may contract for the redemption of certain annuities ])nyablc out of the Consolidated Fund, including, among others, annuities payable to ecclesiastical corporations. In the case of any such annuity the Ecclesiastical Com- missioners are to assent to the contract for redemption, and the redemption money is to be paid to them. 26 ADDENDA. Fof/e 1680. Sects. 7, 8 and 9 of 5o Geo. 3, c. 147, and so much of sect. 10 as relates to any mortgage, arc repealed as obsolete ])y 36 & 37 Vict. c. 91. Page 1702. The Agricultural Holdings (England) Act, 1875 (38 c*\: 39 Vict. c. 92), which allows tenants to execute certain improvements, called improvements of the first class, only with consent of the landlord, and provides for the tenant receiving compensation for these improvements executed after such consent, and for improvements of the second class (except where under notice to quit), and of the third class, executed Avithout such consent, and which further allows the landlord and tenant to agree as to the amount and mode and time of payment of compensation, and gives the landlord power to obtain a chai-ge on the land for the compensation which he has paid to the tenant, contains the following pro^dsions as to ecclesiastical landlords : — Sect. 48. " Where lands are assigned or secured as an " endowment of a see, the powers by this act conferred "on a landlord shall not be exercised by the archbishoj) " or bishop in res])ect of those lands, except with the " previous ajiproval in writing of the Estates Committee " of the Ecclesiastical Commissioners for England." Sect. 49. " Where a landlord is incumbent of an eccle- " siastical benefice the powers by this act conferred on a '* landlord shall not be exercised by him in respect of the " glebe land, or other land belonging to the benefice, " except with the previous approval, in writing, of the " Governors of Queen Anne's Bounty (that is, the " Governors of the Bounty of Queen Anne for the aug- " mentation of the maintenance of the poor clergy). *' In every such case the Governors of Queen Anne's " Bounty may, if they think fit, on behalf of the incum- " bent, out of any money in their hands, pay to the tenant *' the amount of compensation due to him under this act ; " and thereupon they may, instead of tlie incumbent, *' obtain from the county court a charge on the holding in •' respect thereof in favour of themselves. Every such " charge shall be effectual, notwithstanding any change of •' the incumbent. •' The Governors of Queen's Anne's Bounty, before '•' granting their api)roval in any case under this section, '•' shall give notice of the application for their approval to " the patron of the benefice (that is, the person, officer, ADDENDA. 27 " or authority ^vlio, in case the benefice were then vacant, " would be entitled to present thereto)." Sect. 50. " The powers by this act confen'ed on a " landlord shall not be exercised by trustees for ecclesi- " astical or charitable purposes, except with the previous " approval in writing of the Charity Commissioners for " England and AVales." Page 1707. To the cases of Hayward v. Pile and In re Wood^s Estate cited in the text shoidd be added the lately decided case of Hollier v. Burne (L. E., 16 Eq. 163). Page 17ol. The statute 11 & 12 Vict. c. 112, cited in note (/) to the text, has been repealed as obsolete by 38 & 39 Vict. c. QQ. Page 1775. Sect. 30 of 3 Geo. 4, c. 72, has been repealed as obso- lete by 36 & 37 Vict. c. 91. Page 1783. To the authority given in the text for granting a faculty for the erection of a school-house upon consecrated ground sliould be added that of Be Bettison (L. R., 4 Adm. & I'^ccl. 294), where such a faculty had been refused by the Consistory Court of Rochester, but was granted on appeal by the Court of Arches. Page 1820. In the case of llegina v. Churchwardens of JJ'igau (L. R., 9 Q. B. 317), it was holden by the Court of Ex- chequer Chamber, reversing the decision of the Court of (Queen's Bench, that no rates to repay a loan made under 5 Geo. 4, c. 36, could be levied more than twenty years after the advance of tlic loan by the Public Works Loan Commissioners. Page 1874. Sect. 5 of 58 Geo. 3, c. 69, is repealed as obsolete bv 36 & 37 Vict. c. 91. Page 1971. The act 53 Geo. 3, c. 160, referred to in note (a) to the text, has been repealed as obsolete by 36 & 37 Vict. c. 91. 28 ADDENDA. Page 1978. Sect. 16 of 4 & 5 Vict. c. 38, rcfciTcd to in the text, lias been repealed as obsolete by 37 & 38 Vict. c. 96. Page 1979. New powers of granting land for religious purposes have been given by the Places of A^'orship Sites Act, 1873 (36 & 37 Vict. c. 50), which provides as follows: — Sect. 1. " Any person or persons being seised or entitled in fee simple, fee tail, or for life or lives of or to any manor or lands of freehold tenure, and having the beneficial inte- rest therein, and being in possession for the time being, may grant, convey, or enfranchise by way of gift, sale, or exchange in fee simple, or for any term of years, any quantity not exceeding one acre of such land, not being part of a demesne or pleasure gi'ound attached to any mansion house, as a site for a church, chapel, meeting house, or other place of divine Avorship, or for the residence of a minister officiating in such place of Avorship or in any place of worship within one mile of such site, or for a burial place, or any number of such sites, provided that each such site does not exceed the extent of one acre : provided also, that no such grant, conveyance or enfran- chisement made by any person seised or entitled only for life or lives of or to any such manor or lands shall be valid unless the person next entitled to the same for a Ijeneficial interest in remainder in fee simple or fee tail (if legally competent) shall be a party to and join in the same, or if such person be a minor, or married Avoman, or lunatic, unless the guardian (a), husband, or committee of such person res]iectively shall in like manner concur : provided also, that in case the said land so granted, conveyed or enfranchised as aforesaid, or any part thereof, shall at any time be used for any purpose other than as a site for such place of worship or residence, or burial place, or, in the case of a place of Avorship or residence, shall cease for a year at one time to be used as such place of Avorship or residence, the same shall thereupon rcAcrt to and become a portion of the lands from wliich the same Avas se\-ered, as fully to all intents and purposes as if this act had not been passed, anything herein contained to the contrary notAA'itli- stauding. The provisions hereinbefore contained Avith («) Wliert' tlie natural guar- can be made under this act. diau is the tenant for life, his {Re Marquis of Salisbwy, L. R. concurrence t\m11 not be suffi- Weekly Notes, 1875, p. 156.) cicnt, and scmhle no conveyance ADDENDA. 29 respect to any manor or lands of freehold tenure shall apply to lands of copyhold or customary tenure, but so, nevertheless, that the provisions of the Lands Clauses Consolidation Act, 1845 (i), with respect to copyhold lands (being sections 95, 96, 97, and 98 of such act), shall for the purposes of this enactment be incorporated with this act." Sect. 2. " The purchase money or enfi-anchisement money or money to be received for equality of exchange on any such sale, enfranchisement, or exchange shall, if such sale, enfi'ancliisement, or exchange be made by any person or persons seised or entitled in fee simple or fee tail, be paid to the person or persons making such sale, enfr'anchisement, or exchange, but if such sale, enfi'an- cliisement, or exchange be made by any person or persons seised or entitled for life or lives only, then such purchase money, or enfi-anchisement money, or money to be received for equality of exchange, shall be paid to the existing trus- tees or trustee (if any) of the instrument under which such person or persons is or are so seised or entitled, to be held by them upon the trusts upon wdiicli the land conveyed for such site was held, or if there be no such existing trustees or trustee to two or more trustees to be nominated in "writing by the person or persons making such sale, enfran- chisement, or exchange ; and the receipt of any person or persons to whom such money is hereby directed to be paid shall effectually discharge the person or persons paying such purchase or enfi'ancliisement money or money for equality of exchange therefi'om, and fi-om all liability in respect of the application thereof; and the trustees so to be nominated as aforesaid shall invest such purchase or enfranchisement money or money to be received for equa- lity of exchange in the purchase of other lands or heredi- taments, to be settled to the same uses and trusts as the land conveyed for such site should have stood limited to ; and until such investment, such purchase or enfranchise- ment money or money to be received for equality of exchange shall be invested upon such securities or inxest- ments as would for the time being be authorized by statute or by the Court of Chancery, and for the purposes of devolution and enjoyment shall be treated as land subject to the same uses and trusts as the land conveyed for such site should have stood limited to." Sect. 3. " Where any person or persons is or are equitably entitled to any manor or lands, but the legal (h) 8 Vict. c. 18. 30 ADDENDA. estate tliercin sliall Lc in some trustee or trustees, it shall be sufficient for such person or persons to convey or othcr- Avise assure the same for the purposes of this act without the trustee or trustees being party or parties to the con- veyance or other assurance thereof, and whore any married woman shall be seised or possessed of or entitled to any estate or interest, manorial or otherwise, in land proposed to be conveyed or otherwise assured for the purposes of this act, she and her husband may convey, or otherwise assure the same, for such purposes by deed without any acknowledgment thereof; and where it is deemed expe- dient to purchase any land for the purposes aforesaid belonging to or vested in any infant or lunatic, such land may be conveyed or otherwise assured by the guardian of such infant or the committee of such lunatic respectively, who may receive the purchase money for the same, and give valid and suflicicnt discharges to the party paying such purchase money, who shall not be required to see to the application thereof; and in every such case re- spectively the legal estate shall, by such conveyance or other assurance, vest in the trustees of such place of worship or residence; and if any land taken under this act be subject to any rent, and part only of the land subject to any such rent be required to be taken for the purposes of this act, the apportionment of such rent may be settled by agreement between the owner of such rent and the person or persons to whom the land is conveyed ; and if such apportionment be not so settled by agreement, then the same shall be settled by two justices as j^rovidcd in the Lands Clauses Consolidation Act, 1845 (c), sect. 119 : provided nevertheless, that nothing herein contained ghall prejudice or affect the right of any person or persons entitled to any charge or incumbrance on such land." Sect. 4. " All gifts, grants, conveyances, assiu-ances and leases of any site for a place of Avorship, or the residence of a minister, under the provisions of this act, in respect of any land, messuages, or buildings, may be made according to the form following, or as near thereto as the circumstances of the case will admit ; (that is to say), "'I [^or Ave] under the authority of an act passed in the thirty-sixth and thirty-seventh years of her jNIajesty Queen Victoria, intituled. An Act to afford further Facilities for the CouA-eyance of Land for Sites for Places of Keligious Worshi]i and for Burial Places, do hereby freely and voluntarily, and Avithout ('■) 8 Vict. c. 18. ADDENDA. 31 any valuable consideration [or, do, in tlie considera- tion of the sum of pounds to me or the saic. paid], grant [alienate] and convey \_or lease to A. B. all [descriptio7i of the premises~\, and al.. [my or our or the right, title, and interest of the] to and in the same and every part thereof, to hold unto and to the use of the said and his or their heirs, or executors, or administrators, or successors, for the ])urposes of the said act, and to be applied as a site for a place of worship, or for a residence for a minister or ministers, officiating in , or for a burial place, and for no other purposes whatever. \_In case the site he convexjed to trustees, a clause providing for the removal of the trustees, and in cases lohere the land is purchased, exchanged, or demised, usual covenants or obligations for title may he added.~\ " * In "witness whereof, the conveying and other parties liavc hereimto set their hands and seals, the day of " ' Signed, sealed, and delivered by the said " ' in the presence of of .' " One witness to the execution of the document by each party shall be sufficient, and any assurance under this act shall be and continue valid if otherwise lawful, although the donor or grantor shall die within twelve calendar months from the execution thereof." Sect. 5. " The persons hereinbefore specified may con- vey, by way of gift, sale, or exchange, any site or sites, not exceeding in the case of any one site the quantity aforesaid, for any of the purposes of the Church Building- Acts, to the Ecclesiastical Commissioners for England, or as such commissioners may direct, and such commissioners may also act as trustees for the purpose of taking and holding any sites granted mider this act; and all con- veyances made imder this present enactment shall be deemed to be made mider the Church Building Acts, and the land conveyed shall vest in conformity with such con- veyances and the Cluu*ch Building Acts." Sect. 6. " The ]u-ovisions of this act shall not extend to Scotland or Ireland." Pages 1990, 1991, 1994. The statutes 19 & 20 Vict. c. 31 ; 22 & 23 Vict. c. S4, and 23 Vict. c. 23 ; sect. 44 of 17 & 18 Vict. c. 81, and sect. 28 of 19 & 20 A'ict. c. 88, referred to in the text, have been repealed as obsolete by 38 & 39 Vict. c. 66. 32 ADDENDA. Page 2 05 a. The Endowed Schools Act, 1869 (32 & 33 Vict. c. 56), has been amended by the Endowed Schools Act, 1873 (36 & 37 Vict. c. 87). The following sections seem to be material to this work : — Sect. 6. "Where nnder the express terms of the original " instrument of foundation of any endowed school or edu- " cational endowment the holder of any particular office " is a member of the governing body of the school or " endowment, nothing in section seventeen of the principal " act shall be deemed to prevent the holder for the time " being of such office from being retained as a member of " the governing body of such school or endowment." Sect. 7. " A scheme relating to any educational endow- " ment, originally given to charitable uses since the passing " of the act of the first year of the reign of William and " Mary, chapter eighteen (commonly called the Toleration " Act), if by the express terms of the original instrument " of foundation, or of the statutes or regulations made by " the founder, or under his authority in his lifetime, or " within fifty years after his death (Avhich terms have been " observed down to the commencement of the principal " act), it is required that the majority of the members of " the governing body, or that the majority of the persons " electing the governing body of such endowment, or that " the principal teacher employed in the school, or that *' the scholars educated by the endowment, shall be " members of a particular clmrch, sect or denomination, '' shall be excepted from the provisions of the principal " act mentioned in section nineteen of the principal act, " in like manner as a scheme mentioned in that section, '' and that section shall be construed as if a scheme relating " to such an educational endowment, as is above in this " section mentioned, Avere a scheme relating to an educa- " tional endowment mentioned in sub-section tAvo of the " said section." Sect. 11. "Where a scheme under the principal act " gives the governing body of any endoAved school power " to make regulations respecting the religious instruction " given at such school, the scheme shall also provide for " any alteration in such regulations not taking effect until " the expiration of not less than one year afler notice of " the making of the alteration is given." Page 2060. The statute 6 Geo. 4, c. 133, has been repealed as obsolete by 36 & 37 Vict. c. 91. ADDENDA. 33 Pcujes 2087, 2100. By sect. 11 of 29 & 30 Vict. c. Ill, the Ecclesiastical Commissioners were enabled to cany over the sum of one million, the produce of sales, to their common fund. By 38 & 39 Vict. c. 71, they are enabled to carry over the sum of one million more. Pages 2142, 2143, 2144. Sects. 5, 1 1, 27 of 3 Geo. 4, c. 72, and sect. 1 9 of 5 Geo. 4, c. 103, are repealed as obsolete by 36 & 37 Vict. c. 91, or 37 & 38 Vict. c. 35. Pages 2147, 2150. Sects. 1 and 3 of 1 & 2 Vict. c. 107, and sects. 13, 14 of 3 & 4 Vict. c. 60, are repealed as obsolete by 37 & 38 Vict. c. 96. Page 2149. The case of Fowler v. Allen, referred to in the text, has been affirmed on appeal by the House of Lords (L. R., G H. L. 219). Page 2154. Sect. 11 of 1 & 2 Vict. c. 107, has been repealed as obsolete by 37 & 38 Vict. c. 96 ; and sect. 30 of 3 Geo. 4, c. 72, has been similarly repealed by 36 & 37 Vict. c. 91« Page 2168. Sect. 20 of 58 Geo. 3, c. 45, has been repealed as obsolete by 36 & 37 Vict. c. 91. Page 2191. Sect. 12 of 9 Geo. 4, c. 42, is repealed as obsolete by 36 & 37 Vict. c. 91. Page 2232. The statutes 6 Geo. 4, c. 88, and 7 Geo. 4, c. 4, and all but sect. 1 of 5 Vict. sess. 2, c. 4, are repealed as obsolete by 37 & 38 Vict. c. 35 or c. 96. Page 2264. The provisions of 34 & 35 Vict. c. 62, s. 1, are extended to the Bishop of Calcutta by 37 & 38 Vict. c. 13. C 34 ADDENDA. Pages 2272, 2276—2282. Sect. 2 of 24 Geo. .3, sess. 2, c. 3a, sect. 4 of .3 Vict. c. 6, sects. 2, 3, 4, 5 of 59 Geo. 3, c. GO, and the wliole statute 3 & 4 Vict. c. 33, are repealed by the Colonial Clergy Act, 1874 (37 & 38 Vict. c. 77), and the following pro- visions are made in lieu thereof: — Sect. 2. " The enactments enumerated in Schedule A. annexed to this act {d) arc repealed, but not so as to render invalid anything laAvfully done in conformity with any of them." Sect. 3. " Except as hereinafter mentioned, no person who has been or shall be ordained priest or deacon, as the case may be, by any bishop other than a bishop of a diocese in one of the churches aforesaid shall, unless he shall hold or have pre^aously held preferment or a curacy in England, officiate as such priest or deacon in any church or chapel in England, Avithout written ]^er- mission from the archbishop of the province in Avhich he proposes to officiate, and Avithout also making and sub- scribing so much of the declaration contained in the Clerical Subscription Act, 1865, as follows ; (that is to say,) * I assent to the Thirty-nine Articles of Religion, and * to the Book of Common Prayer, and of the ordering of ' bishops, priests, and deacons. I believe the doctrine of ' the Church of Ens^land as therein set forth to be a^ree- ' able to the Word of God ; and in public prayer and ' administration of the sacraments, I, AA'hilst ministering ' in England, Avill use the form in the said Book pre- ' scribed and none other, except so far as shall be ordered * by laAvfiil authority.' " Sect. 4. " Except as hereinafter mentioned, no person Avho has been or shall be ordained priest or deacon, as the case may be, by any bishop other than a bishop of a diocese in one of the chiu'ches aforesaid, shall be entitled as such priest or deacon to be admitted or instituted to any benefice or other ecclesiastical preferment in England, or to act as curate therein, Avithout the previous consent in writing of the bishop of the diocese in Avhich such pre- ferment or curacy may be situate." Sect. 5. " Any person holding ecclesiastical preferment, or acting as curate in any diocese in England imder the (fZ) That is. 24 Geo. 3, sess. 2, out of the United Kingdom); 69 c. 35, s. 2 ; 26 Geo. 3, c. 84 (so Geo. 3, c. GO, ss. 2, 3, 4, 5; 3 & 4 far as the same is in force in any Vict. c. 33; 5 Vict. c. G, s. 4. part of lier Majesty's dominions ADDENDA. 35 provisions of tills act, may, with the written consent of the bishop of such diocese, request the archbishop of the province to give him a Hcence in writing under his hand and seal in the following form ; that is to say, ' To the Eev. A. B., ' We, C, by Divine Pro\'idcnce archbishop of D., do ' hereby give you the said A. B. authority to exercise ' your office of priest {or deacon) according to the pro- ' visions of an act of the thirty-seventh and thirty-eighth ' years of her present Majesty, intituled An Act respect- ^ ing Colonial and certain other Clergy. * Given under our hand and seal on the day ^of . ^ ^C. (l.s.)D.' And if the archbishop shall think fit to issue such licence, the same shall be registered in the registry of the province, and the person receiving the licence shall thenceforth possess all such rights and advantages, and be subject to all such duties and liabilities as he would have possessed and been subject to if he had been ordained by the bishop of a diocese in England : provided that no such licence shall be issued to any person Avho has not held ecclesiastical preferment or acted as curate for a period or periods ex- ceeding in the aggregate two years." Sect. 6. " All appointments, admissions, institutions, or inductions to ecclesiastical preferment in England, and all appointments to act as curate therein, which shall here- after be made contrary to the provisions of this act, shall be null and void." Sect. 7. " If any person shall officiate as priest or deacon in any church or chapel in England contrary to the provisions of this act, or if any bishop not being bishop of a diocese in England shall perform episcopal functions in any such church or chapel without the consent in writing of the bishop of the diocese in which such church or chapel is situate, he shall for every such offence forfeit and pay the sum of ten pounds to the governors of Queen Anne's Bounty, to be recovered by action brought within six months after the commission of such offence by the treasurer of the said bounty in one of her Majesty's superior courts of common law; and the incimibent or curate of any church or chapel who shall knowingly allow such offence to be committed therein shall be subject to a like penalty, to be recovered in the same manner." Sect. 8. " Any person ordained a priest or deacon in pursuance of such request and commission as are men- tioned in an act of the fifteenth and sixteenth years of her c 2 3G AonKXiu. present ]\Iajesty, chapter fifty-two, shall, for the ])nrposeR of this act, bo deemed to have been so ordained by the bisliop of a diocese in England, and it shall not be neces- sary that the bisho]) to whom such commission shall have been given should have exercised his office within her Majesty's dominions, or by virtue of her Majesty's royal letters patent, ]irovi(led that such bishop be a bishop in communion with the Chnrch of England; and such com- mission shall not become void by the death of the grantor nntil after seven days : provided always, that any such act of ordination by any such bishop as aforesaid shall be sub- ject to the same laws and provisions as to the titles and as to the oaths and subscriptions of the persons to be or- dained, and as to the registration of such act, as if it had been performed by the bishop of the diocese ; and that the letters of orders of any persons so ordained by any such bishop shall be issued in the name of, and be subscribed with the signature of such bishop as commissary of the bishop of the diocese, and shall be sealed with the seal of the bishop of such diocese." Sect. 9. " Any person ordained a deacon or priest imder the provisions of an act of the second session of the twenty-fourth year of King George the Third, chapter thirty-five, or luider the first section of an act of the fifty- ninth year of King George the Third, chapter sixty, shall be subject to the provisions contained in this act." Sect. 10. " No admission, institution, induction or ap- pointment to any benefice or other ecclesiastical prefer- ment within her Majesty's dominions, nor any appointment to act as curate therein, nor any ministerial act performed by any person as priest or deacon of any of the churches aforesaid, shall bo or be deemed to have been invalid at law by reason of its contrariety to any of the enactments set forth in Schedide B. to this act annexed (e), imless its validity shall be inconsistent Anth the validity of some act, matter or thing lawfully done before the passing of this act." . [ . Sect. 11. " Nothing in this act contained shall alter or affect any of the ]n-ovisions of an act of the tAventy-seventh and twenty-eighth }'ears of her present Majesty, chapter ninety-four, intituled ' An Act to remove disabilities affecting the bishops and clergy of the Protestant Epis-. copal Church in Scotland.' " (e) 24 Geo. 3, sess. 2, c. 35, Vict. c. 33, ss. G, 7: 5 Vict. c. C, s. 2; 2G Geo. 3, c. 84, s. 3; 59 s. 4. Geo. 3. c. GO, s.s. 2, 3, 4, 5; 3 & 4 ADDENDA. 37 Sect. 12. " It shall be lawful for the Archbishop of Canterbury or the Archbishop of York for the time being, in consecrating any person to the office of bishop for the purpose of exercising episcopal functions elsewhere than in England, to dispense, if he think fit, with the oath of due obedience to the archbishop." Sect. 13. " Nothing contained in an act of the fifty- third year of King George the Third, chapter one hundred and fifty-five, or in an act of the thk'd and fourth years of King William the Fourth, chapter eighty-five, or in any letters patent issued as mentioned in the said acts, or either of them, shall prevent any person who shall be or shall have been bishop of any diocese in India from per- forming episcopal functions, not extending to the exercise of jurisdiction, in any diocese or reputed diocese at the request of the bishop thereof." Sect. 14. "In this act the word 'bishop' shall, when not inconsistent mth the context, include archbishop ; the Avords ' bishop ' and ' archbishop,' in the matters of * per- mission ' and ' consent,' and of ' consent and licence,' shall include the lawful commissary of a bishop or an arch- bishop ; the word ' England ' shall include the Isle of Man and the Channel Islands ; and the term ' church or chapel ' shaU mean church or chapel subject to the ecclesiastical law of the Church of England. ( 38 ) Part II. Short title. Commence- ment of act. Extent of act. Proceedings under this act not to be deemed pro- ceedings under 3 & 4 Vict. c. 86, s. 23. Saving of j urisdiction. Interpretation of terms. " Bishop." " Eook of THE PUBLIC WORSHIP REGULATION ACT, 1874. 37 & 38 Vict. c. 85. An Act for the letter Administration of the Laws respecting the liecjulation of Public Worship. [7tli August, 1874.] Whereas it is expedient that in certain cases furtlier regulations should be made ibr the administration of the laws relating to the performance of divine service according to the use of the Church of England : Be it enacted l)y the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and tcm]ioral, and commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. This act may be cited as The Public AVorship Regulation Act, 1874. 2. This act shall come into operation on the first day of July one thousand eight hundred and seventy-five, except Avhcrc exj^ressly hereinafter provided. 3. This act shall extend to that part of the United Kingdom called England, to the Channel Islands, and the Isle of ]\Ian. 4. Proceedings taken under this act shall not be deemed to be such proceedings as are mentioned in the act of the third and fourth year of the reign of her Majesty, chapter eighty-six, section twenty- three (a). 6. Nothing in this act contained, save as herein ex- pressly provided, shall be construed to affect or repeal any jurisdiction which may noAv be in force for the due ad- ministration of ecclesiastical law. 6. In this act the following terms shall, if not incon- sistent with the context, be thus interpreted — The term "bishoji" means the archbishop or bishop of the diocese in which the church or burial ground is situate to which a representation relates : The term '"'Book of Common Prayer" means the book (") See The Ecclesiastical La^r. p. 1314, 37 & 38 Vict. c. 85. 39 annexed to tlie act of the fourteenth year of the reign Common of King Charles the Second, chapter four, intituled I'layer." " The Book of Common Prayer, and Administration " of the Sacraments and other Rites and Ceremonies " of the Church, according to the use of the Church " of England ; together with the Psalter or Psalms " of David, pointed as they are to be sung or said in " churches ; and the form or manner of making, or- " daining, and consecrating of Bishops, Priests, and " Deacons ; " together with such alterations as have from time to time been or may hereafter be made in the said book by lawful authorit}- (c) : The term "burial ground" means any churchyard, "Burial cemetery or burial ground, or the part of any cemc- S^und- tery or burial ground, in which, at the burial of any corpse therein, the order for the burial of the dead contained in the Book of Common Prayer is directed by law to be used : The term " chm-ch" means any church, chapel, or place " Church." of public worship in which the incumbent is by law or by the terms of licence from the bishop required to conduct divine ser^nce according to the Book of Com- mon Prayer : The term "diocese" means the diocese in which the "Diocese." church or burial ground is situate to which a repre- sentation relates, and comprehends all places which are situate within the limits of such diocese : The term "incumbent" means the person or persons in "Incumbent." holy orders legally responsible for the due perform- ance of divine service in any church, or of the order for the burial of tlic dead in any burial ground : The term "parish" means any parish, ecclesiastical "Parish." district, chapelry, or place, over which any incumbent has the exclusive cure of soids {d) : The term " parishioner" means a male person of full age " Parishioner." Avho before making any representation under this act has transmitted to the bishop under his hand the declaration contained in Schedule (A) to this act, and who has, and for one year next before taking any proceeding under this act has had, his usual place of abode in the parish within which the church or burial (<') E.g. the new Lectionan- established by 34 & 35 Vict. C.37. (fZ) There arc many places over which the incumbenthas not exclusive cure of souls, — where. for instance, baptism?, marriages and burials are solemnized by tlic incumbent of tlic mother church. These would seem not to be "pai"islies" within this definition. 40 Tin: ruKLic ^V()RSIII^ regulation act. " Bnvristcr-at- law." " Rules and orders." Appointment and duties of judge. ground is situate, or for the use of wliich the burial ground is legally provided, to -which the representa- tion relates : The term " barrister-at-law " shall in the Isle of Man include advocate : The term " rules and orders" means the rules and orders framed under the provisions of this Act (e). 7. The Archbisho]) of Canterbuiy and the Archbishop of York may, but subject to the approval of her ^Majesty to be signified under her sign mamial, ap})oint from time to time a barrister-at-law Avho has been in actual ])ractice for ten years, or a person who has been a judge of one of the superior courts of law or equity, or of any cotirt to which the jurisdiction of any such court has been or may hereafter be transferred by authority of parliament, to be, during good behaviour, a judge of the provincial courts of Canterbury and York, hereinafter called the judge (/). If the said archbishops shall not, within six months after the passing of tliis act, or within six months after the occurrence of any vacancy in the office, appoint the said judge, her INIajesty may by letters-patent appoint some person, qualified as aforesaid, to be such judge. Whensoever a vacancy shall occur in the office of official principal of the Arches Court of Canterbury, the judge shall become ex officio such official principal, and all pro- ceedings thereafter taken before the judge in relation to matters arising Avithin the province of Canterbury shall be deemed to be taken in the Arches Court of Canterbury (^); and whensoever a vacancy shall occur in the office of official princijial or auditor of the Chancery Court of York, the judge shall become ex officio such official prin- cipal or auditor, and all proceedings thereafter taken before the judge in relation to matters arising within the province of York shall be deemed to be taken in the Chancery Court of York (h) ; and Avhensoevcr a vacancy shall occur (e) Vule infra. If) The Right Hon. James Plaisted Baron Penzance has been appointed the first judge under this act. By 38 & 39 Vict. c. 70, .s. 5, a sum of 1,112/. 18s. k/. in the liands of Queen Anne's Bounty may be a{)pro])riated for the payment of tlie judge and his clerk. (fj) Under the provisions of 38 & 39 Vict. c. 77, s. 8, the official principal of the Arches Court and Master of the Facul- ties has resigned these offices, to ■which Lord Penzance has succeeded. (Jt) P.y sect. 6 of 38 & 39 Vict, c. 7G, the Worshipful Granville Vernon was enaldcd to resign the office of official jirirtcipal or auditor of the Chancery Court of York, witliout resigning his other offices. It is believed that he has done so, and tliat Lord I'en- zance lias succeeded him. 37 & 38 Vict. c. 85. 41 in the office of master of tlie faculties to tlie Arclil^isliop of Canterbury, such judge shall become ex officio such master of the faculties. Every person appointed to be a judge under this act shall be a member of the Church of England, and shall, before entering on his office, sign the declaration in Sche- dule (A.) to this act ; and if at any time any such judge shall cease to be a member of the church, his office shall thereupon be vacant. This section shall come into operation immediately after the passing of this act. 8. If the archdeacon of the archdeaconry, or a church- Eepresenta- warden of the parish (z), or any three parishioners of the ^^°^ ^>' ^J^^'^ parish {i), within Avhich archdeaconry or parish any church ^varden or burial ground is situate, or for the use of any part of parishioners, ■which any burial ground is legally provided, or in case °^ inhabitants of cathedral or collegiate churches, any three inhabitants of the diocese, being male persons of full age, "who have signed and transmitted to the bishop under their hands the declaration contained in Schedule (A.) under this act, and who have, and for one year next before taking any proceeding under this act have had, their usual place of abode in the diocese within which the cathedral or colle- giate church is situated, shall be of opinion, — (1.) That in such church any alteration in or addition to the fabric, ornaments, or furniture thereof has been made without lawful authority, or that any decoration forbidden by law has been intro- duced into such church (h) ; or, (2.) That the incumbent has Avithin the ]5receding twelve months used or permitted to be used in such church or burial ground any unlawful ornament of the minister of the church, or neglected to use any prescribed ornament or vesture ; or, (3.) That the incumbent has within the preceding twelve months failed to ol)servc, or to cause to be ob- served, the directions contained in the Book of Common Prayer relating to the performance, in («') See definition of ■' parish'' minister (sub-sect. 2), if illegal, in sect. 6, supra. conic within the purview of this (/c) This chiu.sc seems to follow act, ornaments of the church ap- thc distinction drawn in Wci^tcr- parently only do so, when the Urn v. Liddcll between " orna- complaint is that they were put ments" (ornamcnta) and decora- up without lawfid authority, i.e. lions. See The Ecclesiastical without a faculty; See The Ec* Law, pp. 021, 931. But while clesiastical Law, p. 17'J2. decorations and ornaments of the 42 THE PUBLIC WOKSHir REGULATION ACT, such cliurcli or burial g-roimcl, of tlic services, rites, and ceremonies ordered by the said book, or has made or permitted to be made any unlaAv- ful addition to, alteration of, or omission from such services, rites, and ceremonies, — such archdeacon, church-warden, ]5arishioners, or such in- habitants of the diocese, may, if he or they think fit, represent the same to the bishop, by sending to the bishop a form (/), as contained in Schedule (B.) to this act, duly filled up and signed, and accompanied by a declaration made by him or them under the ac't of the fifth and sixth year of the reign of King AVilliam the Fourth, chapter sixty-two, affirming the truth of the statements contained in the representation (/n) : provided, that no proceedings shall be taken under this act as regards any alteration in or addition to the fabric of a chiu'ch if such alteration or addition has been completed five years before the com- mencement of such proceedings {ii). rroceediugs on 9. Unless the bishop shall be of opinion, after consider- representation. j^g the whole circumstances of the case, that proceedings should not be taken on the representation, (in which case he shall state in Avriting the reason for his opinion (o), and such statement shall be deposited in the registry of the diocese, and a copy thereof shall fortliAvith be transmitted to the person or some one of the persons Avho shall have made the representation, and to the person complained of,) he shall within twenty-one days after receiving the repre- sentation transmit a copy thereof to the person complained of(p), and shall require such person, and also the person making the representation, to state in writing within twenty-one days whether they are willing to submit to the directions of the bishop touching the matter of the said representation, without appeal (y) ; and if they shall state their willingness to submit to the directions of the bishop without appeal, the bishop shall forthwith proceed (/) By delivery or by a regis- diocesan registrar. Rule 6. The tered packet to the diocesan re- person complained of must ac- gistry. Rule.H and Orders, 1. knowledge the receipt of the (7?i) See Kulcs and Orders, representation and other docu- Appendix, No. 3. nients; otherwise personal orsub- (n) This proviso does not ap- stituted service may he effected parently extend to ornaments or on him, of whicli he has to bear furniture. the costs, unless the bishop other- (o) A form of such statement wise order. Ibid, is suggested in the Appendix to (q) Forms of requisition and the Rules and Orders, No. 6. consent are given in the Rules (p) The Rules and Orders and Orders. Rule 7; Appendix, order this to be done by the Nos. 8, ?. 37 & 38 Vict. c. 85. 43 to hear the matter of the representation in such manner as he shall think fit, and shall pronounce such judgment and issue such monition (if any) as he may think proper, and no appeal shall lie from such judgment or monition. Provided, that no judgment so pronounced by the bishop shall be considered as finally deciding any question of law so that it may not be again raised by other parties. The parties may, at any time after the making of a representation to the bishop, join in stating any questions arising in such proceedings in a special case signed by a barrister-at-law for the opinion of the judge, and the parties after signing and ti-ansmitting the same to the bishop may require it to be transmitted to the judge for hearing, and the judge shall hear and determine the question or questions arising thereon, and any judgment pronounced by the bishop shall be in conformity -with such determination (r). If the person making the representation and the person complained of shall not, within the time aforesaid, state their Avillingness to submit to the directions of the bishop, the bishop shall forthwith transmit the representation in the mode prescribed by the rules and orders to the arch- bishop of the province (s), and the archbishop shall forthwith require the judge to hear the matter of the representation at any place within the diocese or province, or in London or Westminster (^). The judge shall give not less than twenty-eight days' notice to the parties of the time and place at which he will proceed to hear the matter of the said represen- tation (ic). The judge before proceeding to give such notice shall require fi-om the person making the repre- sentation such security for costs as the judge may think proper, such security to be given in the manner prescribed by the rules and orders (y). The person complained of shall within twenty-one days (r) Rules 8, 9, 10 and Forms (v) Tluit i.«, by deposit of a Nos. 10, 11 in the Appendix sum of money, or by bond with relate to " special cases." two f^uretics for a like sum, to (s) The Kules and Orders re- tlie amount which the provincial quire the representation to be registrar may think proper. In transmitted to the re.iristrv of the first case under tlic act the Arches Court or of the Clian- (Clifton v. Rldsdahi) this has eery Court, as the case may l)c. been fixed at 300/. The judge Rule 2. For Ibrm of transmis- niay, at tlic application of the sion, see Rule 11 and Ajipendix party complained of, increase No. 12. this security after answer and {t) See Appendix to Rules and reply. See Rules 12, 13, 14; Orders, No. 13. Appendix, Nos. 14, 15. (h) See Rule 15. 44 THE PUBLIC WORSHIP REGULATION ACT, after sucli notice transmit to tlic judge, and to tlie person making the representation, a succinct answer to the repre- sentation (j^;), and in default of such answer he shall be deemed to have denied the truth or relevancy of the repre- sentation. In all proceedings before the judge under this act the evidence shall be given viva voce, in open court, and upon oath ; and the judge shall have the jjowers of a court of record (a-), and may require and enforce the attendance of Aptnesses, and the production of evidences, books, or writings, in the like manner as a judge of one of the supe- rior courts of law or equity, or of any court to which the jurisdiction of any such court has been or may hereafter be transferred by authority of parliament. Unless the parties shall both agree that the evidence shall be taken down by a shorthand Avi'iter, and that a special case shall not be stated (?/), the judge shall state the facts proved before him in the form of a special case, similar to a special case stated under the Common Law Procedure Acts, 1852-1854 (z). The judge shall pronounce judgment on the matter of the representation, and shall deliver to the parties, on apphcation, and to the bishop (a), a copy of the special case, if any, and judgment. The jiidge shall issue such monition (if any)(Z») and make such order as to costs as the judgment shall require. Upon every judgment of the judge, or monition issued in accordance therewith, an appeal shall lie, in the fomi prescriljed by rules and orders (c), to her Majesty in council (r^). The judge may, on application in any case, suspend the execution of such monition pending an appeal, if he shall think fit (c). (to) The Rules and Orders (h) See Rule 22 ; Appendix, further provide tliat, -vvitli the Nos. 10, 20. leave of the judge, the peryou (c) See Rule 23 ; Appendix, complaining may rcjily to the No. 21. answer, and that either party (cT) The appeal will then be may obtain leave to amend their heard by the Judicial Committee representation, answer or reply. of the Privy Council, as it ia See Rules 16, 17, 18; Appendix, constituted by statute for the Isos. 16, 17. hearing of cases within its ge- («) These are powers not en- neral jurisdiction, not as it i.s joyed by the ecclesiastical cly for a summons against the complain- ant, to shoAV cause why a relaxation slioidd not issue, and, (/() Soct. 13 of the act. 58 OliDEll IN COUNCIL IIELATING TO THE if ordered by the judge, the rehixation shall be issued from the provincial registry, upon the apjilication of the respond- ent, and the delivery of a ])ra?cipe for the same. ■ Forms of relaxation and praecipe arc given in the Ap- jDCndix, Xos. 28 and 29. 2d. A monition, inhibition and relaxation, when signed by the jn'ovincial or diocesan registrar (as the case may be), shall be effectual Avithout further attestation. 30. Every monition and inhibition shall be personally served, except in cases Avhere personal service cannot be effected, "when such other mode of service shall be substi- tuted as the judge or registrar may direct. Such instru- ments shall be retin-nablc into the provincial or diocesan registry (as the case maybe) within a Avcek of such service respectively. 'A\. A copy of every inhibition to enforce obedience to a bishop's monition shall be transmitted to the bishop by the provincial registrar. Enforcing Obedience of Dean and Chapter (i). 32. In the event of obedience not being rendered to any monition relating to the fabric, ornaments, furniture or decoi'ations of a cathedral or collegiate church, a precept, if ordered by the judge, shall be issued from the ])rovincial registry, upon the application of the complainant, and the delivery of a praecipe for the same, authorizing the regis- trar, or other person or persons named by the judge, to caiTy into effect the directions contained in the said moni- tion. — Forms of such precept and precipe, and of seques- tration of the ]irofits of the preferments held in such cathedral or collegiate church by the dean and chapter thereof, are given in the Appendix, Nos. 30, 31 and 32. Stihpanas. 33. A subpaMia may include the names of any number of witnesses. The party shall take it, together with a praacipe, to the provincial registry, where it shall be signed, and the praecipe deposited. — Forms are given in the Appendix, Nos. 33, 34, 35 and 3G. Admission of J)ocu)nenis. ^4. Either party may call ujion the other, by notice in Avriting, to admit any document, saving just exceptions, (<) Sect. 17 uftlic act. I'UBLIC WOllSlilP REGULATION ACT, 1874. 50 and in case of refusal or neglect to admit the same, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the hearing the judge shall certify that the refusal was reasonable ; and no costs of proving any document shall be allowed as costs in the cause, except in cases where the omission to give the notice was in the opinion of the registrar a saving of expense. — A form of notice to admit is given in the Appendix, No. 37. Notices. 35 be in wr I'^otices. All notices required by these rules and orders shall vriting, and signed by the party. Service of Notices, S^'c. (Ji). 36. It shall be sufficient to transmit all notices and other documents intended for the complainant to the address furnished by him as aforesaid, and to address all notices and other documents intended for the respondent to the parish to Avhich the representation relates, unless and until the respondent shall furnish to the diocesan registry or the provincial registry (as flie case may be) another address to which documents may be sent, from which time all such notices and otlicr documents shall be sent to such other address. Appearance hy Proctor or Solicitor (/). 37. AVhenever an appearance is entered by a proctor or solicitor for a complainant or respondent, all notices and other documents required by these rules and orders to be transmitted to or by the parties, shall, in lieu thereof, be transmitted or delivered to or by their proctor or solicitor at the address furnished by him, and all acts to be done by the parties may be done by their proctors or solicitors. — X form of appearance is given in the AppcndLx, Xo. 38. CkaiKjc of Proctor or Solicitor. 38. A party may obtain an order to change his proctor or solicitor upon application by summons to the judge, or, {k) Sect. 15 of the act. Ridsdalc, that a party appearing (Z) Sect. 11 of the act, and by a proctor must file a proxy as see note thereupon. It lias been in ordinary suits in the Arches ruled by the judge, in Clifton v. Court. CO OlJUEll IN COU^X'IL RELATING TO THE in Ills absence, to the provincial registrar. In case tlic former proctor or solicitor neglects to file his bill of costs for taxation at the time required by the order served upon him, the party may, -with the sanction of the judge or provincial registrar, proceed by the new proctor or solici- tor without jirevious payment of such costs. Time Jixcd hy these Rides. 39. The judge shall in every case in which a time is fixed by these rules and orders for the performance of any act have power to extend the same Avith such qualifications and restrictions, and on such terms as to him may seem lit. 40. To prevent the time limited for the performance of any act, or for any proceeding in default, from expiring before application can be made to the judge for an exten- sion thereof, the provincial registrar may, upon reasonable cause being shown, extend the time. 41. The time fixed by these rules and orders for the performance of any act shall in all cases be exclusive of Sundays, Christmas Day and Good Friday. Affidavits, 42. Every affidavit is to be drawn in the first person, and the addition and true place of abode of every deponent is to be inserted therein. Affidavits may be sworn before the judge, or any provincial or diocesan registrar, or a commissioner to administer oaths in chancery. 43. In every affidavit made by two or more persons the names of the several persons making it are to be written in the jurat. 44. No affidavit will be admitted in which any material part is written on an erasure, or in the jurat of which there is any interlineation or erasure, or in which there is any interlineation the extent of which at the time when the affidavit was sworn is not clearly shown by the initials of the authority before whom it Avas SAvorn. / 45. Where an affidaAit is made by any person Avho is blind, or Avho, from his or her signature or otherAvise, appears to be illiterate, the authority before Avhom such affidavit is made is to state in the jurat that the affidavit Avas read in the presence of the party making the same, and that such party seemed perfectly to understand the same, and also made his or her mark, or Avrote his or her signature thereto, in the presence of the authority. PUBLIC WORSHIP REGULATION ACT, 1874. 61 46. No affidavit is to be deemed sufficient Avliich has been SAvorn before tlie party on whose behalf the same is offered, or before his proctor or solicitor, or before a partner or clerk of his proctor or solicitor. 47. Proctors and solicitors, and their clerks respectively, if acting for any other proctor or solicitor, shall be subject to the rules and orders in respect of taking affidavits which are applicable to those in Avhose stead they are acting. 48. Where a special time is fixed for filing affidavits, no affidavit filed after that time shall be used unless by leave of the judge. 49. The above rules and orders in respect to affidavits shall, so far as the same are applicable, be observed in respect to affirmations and declarations. Taxing Bills of Costs. 50. All bills of costs are referred to the registrar of the respective registry for taxation, and may be taxed by him without any special order for that purpose. Such bills are to be filed in the registry. 51. Notice of the time appointed for taxation will be forwarded to the party filing the bill at the address fur- nished by such party. 52. The party who has obtained an appointment to tax a bill of costs shall give the other party to be heard on the taxation thereof at least one clear day's notice of such ap- pointment, and shall at or before the same time deliver to him or them a copy of the bill to be taxed. 53. AVhen an appointment has been made by the re- gistrar for taxing any bill of costs, and any parties to be heard on the taxation do not attend at the time ap]5ointcd, the registrar may nevertheless proceed to tax the bill after the ex])iration of a quarter of an hour, upon being satisfied by affidavit that the party not in attendance had duo notice of the time appointed. 54. The bill of costs of any proctor or solicitor Avill be taxed on his application as against his client after sufficient notice given to the person or jicrsons liable for the pay- ment thereof, or on the application of such ]ierson or persons after sufficient notice given to the practitioner. i>i>. The fees payable on the taxation of any bill of costs shall be paid by the party on whose ap]-)lication tlie bill is taxed, and shall be allowed as part of such bill ; but if more than one-sixth of the amount of any bill of costs taxed as between practitioner and client is disallowed on the taxation thereof, no costs incurred in such taxation shall be allowed as part of such bill. 62 ORDER IN COUNCIL RELATING TO THE 5G. If an order for pavmciit of costs is required (m), the same may be obtained l)y summons on the amount of such costs beings certified l)y the registrar. A form of iiionition for costs is given in the Appendix, No. 39. SH77imo7ises. .'7. Where tlie decision of the judge is required, a sum- mons may be taken out by either party in reference to any incidental matter arising out of or connected Avitli any proceedings under the act. A Ibrm is giyen in the Appendix, No. 40. 58. A true copy of the summons is to be served on the party summoned three clear days at least before the sum- mons is retiu'nable, and before five o'clock p.m. On Satur- days the copy of tlic summons is to be served before two o'clock p.m. 59. On the day and at the hour named in the summons the party taking out the same is to present himself, with the original summons, before the judge at the place appointed for hearing the same. 60. Both parties Anil be heard by the judge, who will make such order as he may think fit, and a minute of such order will be made by the pro\incial registrar. 61. If the party summoned do not ap])ear after the lapse of half an liour from the time named in th(;^ sum- mons, the party taking out tlic summons shall oe at liberty to go before the judge, who will thereupon make such order as he may think fit. 62. An attendance on behalf of -the party summoned for the space of half an hour, if the party taking out the summons do not diu-ing such time appear, will be deemed sufficient, and 1)ar the ]iarty taking out the summons from the right to go before tlie judge on that occasion. 63. If a formal order is desired, the same may be obtained from the provincial registrar on the application of either party, and for that piu'pose the original summons, or the copy, served on the party summoned must be filed on the provincial registry. An order will thereupon be di-awn up and delivered to the person filing such summons or copy. 64. If a summons is brought to the provincial registry with consent to an order endorsed thereon signed by the party summoned, or by his ]U'Octor or solicitor, an order Avill be drawn up without the necessity of going before (m) Sect. of tlic act. PUBLIC WORSHIP REGULATION ACT, 1874. 63 tlie judge, provided that the order sought is in the opinion of the provincial registrar one Avhich under the circuni- stances would be made by the judge. Cases not iprovided for. %5. In any case not provided for by these rules the directions of the judge shall ]3e obtained upon a summons to be taken out by the party requiring such directions. Note. — In the event of the judge becoming official prin- cipal of the Arches Court of Canterbury, or of" the Chancery Court of York (?i), these rules and orders and the forms and fees prescribed shall be applicable mutatis mutandis to all cases thereafter arising, such necessary 'alterations in the style of the forms being made as tlie judge may direct. {ii) liOtli these events have happened. See sect. 7 of tlie act, and notes {(j) and (Ji) thereto. APPENDIX. FORMS, Which are to be followed as nearly as the circumstances of each case will allow. No. 1. — Declaration (a). Public AVorship liegulation Act, 1874. T [\Yc], C. D., of , do hereby solemnly declare that I am a member of the Cluu-ch of England as by law established. Witness my hand this day of 187 . (Signed) C. D. Address to ■which documents and notices for the complainant may be sent. \nere insert address.'] (Signed) C. D. No. 2. — Ileprcscntaiion ( h). Public Worship Regulation Act, 1874. To the Right Reverend Father in God, A., by Divine Permission, Lord Bisho]! of B. I [We], C. D., archdeacon of the archdeaconry of \or a churchwarden or three parishioners of the parish of E.] in yourlord- (rt) This is the same as the form in Schedule (B.) to the form in Schedule (A.) to the act; but the note at the end is act, with tlie address added. not in the act, and is material. (/>) This i< the same as the 64 ORDER IX COUNCIL RKLATIXG TO THE ship's diocese, do licrcby represent that \l!ie 2^crso>i complained of] has [stale the matter to he represented ; if more than one, then under separate heads']. Dated this dav of 187 . (Signed) C. D. Note.~Thc nature of the coniphiint is to be stated generally. A detailed statement of facts is not to be given. No. 3. — Statutory/ Declaration affirming the Truth of the Representation. rublic Worship Regulation Act, 1874. T, C. C, of , do hereby solemnly and sincerely declare as follows : that the several statements contained in the representation hereunto annexed made by me in pursuance of the provisions of the Public Worship Regulation Act, 1874, in which the Reverend E. F., clerk, rector [_or vicar, &c.] of I. K., in the diocese of B., is "the person complained of, are true according to the best of my know- ledge and belief And I make tliis solemn declaration conscientiously believing the same to be true, and by virtue of an act of parliament, &c., &c. {Statutory Form). Declared bv, &c. &c. (Signed) C. D. Note. — This declaration must also show that the complainant is duly qualified under the act to make the representation. No. 4. — Registrar's Receipt for Documents. The Diocesan Registry of B. Public Worship Regulation Act, 1874. I hereby acknowledge to have received this day of 187 , the under-mentioned documents : — Declaration of C. D. that he is a member of the Church of England, dated day of 187 . [0.] 1. Representation bearing date day of 187 , made by C. D. in pursuance of the provisions of tlic Public Worship Regula- tion Act, 1H74, in which the Reverend E. F., clerk, rector [or vicar, - the Reverend E. F., the respondent], do hereby state in writing that I am willing to submit, without appeal, to the directions of the Right Reverend A., Lord Bishop of B., touching the matter of the said representation. Dated this day of 187 . (Signed) C. D. To the Right Reverend Father in God, or A., Lord Bishop of B. E. F. No. 10. — Special Case for the Opinion of the Judge. The Diocesan Registry of B. Public Worship Regulation Act, 1874. In the matter of the representation of C. D., made in pursuance of the provisions of the Public Worship Regulation Act, 1874, in which the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person complained of. Special case stated for the opinion of the judge. [Here follow statements of facts in paragraphs.^ i. . . . .' . 3 and The questions for the opinion of the judge are, — 3 (Signed) C. D. E. F. Barrister-at-Law. PUBLIC AVORSHIP REGULATION ACT, 1874. 67 We, the paid C. D. and E. F., liereby require this special case to be transmitted to the judge for hearing. Dated this day of 187 . (Signed) C. D. E. F. To the Diocesan Registrar of B. No. 11. — Transmission of Special Case hy the Bishoj) to the Judge. A., by Divine permission, Bishop of B., to the Right Honour- able James Plaisted, Baron Penzance, a Judge of the Pro- vincial Court of Canterbury [or York] : (?•) greeting : Whereas in the matter of the representation of C. D., made in pursuance of the provisions of the Public Worsliip Regulation Act, 1874, in which the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in our diocese of B., is the person complained of, the parties have stated their willingness to submit to our directions, without appeal, touching the matter of the said representation, and have joined in stating certain questions arising in the said matter in a special case for the opinion of the judge, and have required us to ti'ansmit the same to the judge for liearing : Now, therefore, we, the bishop aforesaid, do hereby transmit the said special case to you, the judge aforesaid, requesting that you will proceed to hear and determine the questions arising thereon in accordance with the provisions of the said act. Given under our hand this day of 187 . (Signed) X. Y., Diocesan Registrar. No. 12. — Transmission of Representation to Archbishop in case of Non-sub missio)i to Bishop. A., by Divine permission, Bishop of B., to the Right Honourable and Most Reverend Archibald Campbell, Lord Archbishop of Canterbury [or AVilliam, Lord Arclibisliop of York]: greeting: Whereas a representation has been made to us by C. D., in pur- suance of the provisions of the Pul)lic AVorsliip Regulation Act, 1874, in wliich the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in our diocese of B., is tlie person complained of: And whereas tlie said C. D. and E. F. have failed within the time prescribed by the said act to state their willingness to submit to our directions touching the matters of the said representation : Now we, the bisliop aforesaid, do hereby transmit the said repre- sentation to your grace in accordance witli the provisions of the said act. Dated this day of 187 . (Signed) X. Y., Diocesan Registrar. (/•) As to style of judge, sec note at end of Rules. E 2 68 ORDER IN COUNCIL RELATING TO THE No. 13. — Requisition from Archhisltop to Judfje to hear Represcntatioji. Archibald Campbell, by Divine Providence, Archbishop of Canterbury [or William, Arclibisliop of York], to tiic Right IIonoural)lo James I'laisted, Baron I'enzance, a Judge of tlie Provincial Court of Canterbury [or York] : greeting: Whereas the Kight Heverend Father in God, A., Lord Bishop of B., lias transmitted to us a representation made by C. D., in pursuance of the provisions of the Public Worship Regulation Act, 1874, in ■which the Reverend E. F., clerk, rector [or vicar, &c.] of L K., in the diocese of B., is the person complained of: And whereas the said bishop has signified to us that the said jiarties have not within the time prescribed by the said act for that j)urp(ise stated their willingness to submit to "his directions touching the matter of the said representation : Now we, the archbishop aforesaid, do hereby require you, tlie judge aforesaid, to hear and determine the matter of the said representation at any place in London or Westminster, or within the said diocese of B., as you may deem tit. Given under our hand this day of 187 . (tiigned) A. C, Cantuar. or W., Ebor. No. 14. — Bond for securing Respondents Costs. In the Provincial Court of Canterbury [or York]. Public Worship Regulation Act, 1874. Know all men by these presents, that we, C. D., of, &c., L. INL, of, &C., and N. O., of, &c., are held and firmly bound unto X. Y., the Registrar of the Provincial Court of Canterbury [or York], in tlie penal sum of pounds of good and lawful money of Great Britain, to be paid to the said X. Y., for which payment to be well and truly made we bind ourselves, and every of us, for the whole, our heirs, executors or administrators, firmly by these presents, sealed witli our seals. Dated the day of 187 . Whereas a representation has been made by C. D. to the Right Reverend A., Bishoj) of B., in pursuance of the provisions of the Public Worship Regulation Act, 1874, in wiiich the Reverend E. F., clerk, rector [or vicar, &c.] of L K., in the diocese of B., is the person complained of: Now tlic condition of this obligation is such, that if the above- bounden C. D., bis heirs, executors or administrators, shall, if so ordered by the Right Honourable James Plaisted Baron Penzance, a judge of the said court, well and truly pay, or cause to be paid, to the above-named E. F.,his lieirs, executors, administrators or assigns, the full sum of pounds of good and lawful money of Great Britain, or the lawful costs of the said E. F., of and incidental to the said representation to tlie extent of pounds, then this obli- gation is to be void and of none effect, otherwise to remain in full force and virtue. Signed, sealed and delivered by the said C. D., ( C. D. (l.s.) L. M. and N. O., in the presence of | ■I L. M. (L.s.) A Commissioner to administer Oaths in I Chancery in England. I N. 0. (l.s.) I PUBLIC WORSHIP REGULATION ACT, 1874. 69 No. 15, — Affidavit of Justification. In the Provincial Court of Canterbury [or York]. Public Worship Regulation Act, 1874. We, L. M., of , and N. O., of , the proposed sureties for C. D., in the annexed bond, severally make oath and say that we are respectively worth the sum of pounds sterling, after ])ay- ment of all our just debts, and we further severally make oath that ■we are not sureties in any other matter [or that we are respectively sureties in the sum of pounds for (Jiere specify 2Kirtlculars of any other suretyship)^ but not in any other matter, and that we are respectively worth the said sum of pounds, after payment of the amount of the said suretyships, if the same shall become payable, as well as of our just debts.] (Signed) L. M. Sworn l)y, &c. N. 0. No. 16. — Answer of Respondent to Representation. In the Provincial Court of Canterbury [or York]. Public Worship Regulation Act, 1874. In the matter of the representation of C. D., made in pursuance of the provisions of tlie Public Worship Regulation Act, 1874, in which the RcA'crend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person complained of. I, the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., in answer to the said representation, say : — 1. That [liere state tvhich of the facts alleged in the representation he denies, and succinctly the general grounds of defence ; and, if more than one, under separate heads^. Note.— A detailed statement of facts is not to he given. Whereupon I Innnbly pray tliat I may be dismissed from all further observance of justice in the matter of the said representation. Dated this day of 187 . (Signed) E. F. No. 17. — Reply, or any further Statement {s). These are to follow, in point of form, the directions given above as to the answer. No. 18, — Agreement as Notes of Evidence by S/iorf/ia/id Writer. Public Worshij) Regulation Act, 1874. In the Provincial Court of Canterbury [or York]. In tlic matter of the representation of C. D., made in pursuance of the provisions of tlie Public Worship Regulation Act, 1874, in which the lieverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person complained of. We, C. D , r E. F.], and on the aforesaid day to be heard before us. And tiiis you or any of you sliall by no means orait. Given at the dav of 187 . (Signed) X. Y., Provincial Registrar. No. 34. — PrcEcipe for Suhpcvna ad testificmidum. In the Provincial Court of Canterbury [or York]. Public Worship Regulation Act, 1874. Prpecipe for subpoena for [insert witnesses' names']^ to testify on the part of the complainant [or respondent] in the matter of a repre- ficntation made by C. D. in pursuance of the provisions of the Public AVorship Regulation Act, 1874, in -which the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person complained of. Dated this day of 187 . (Signed) C. D. or E. F. No. 35. — Snhjmna duces tecum. .lames Plaisted, Baron Penzance, a judge of the Provincial Court of Canterbury [o?- York], to [names of all witnesses included in the suhpcena to he viserted], greeting: We command you and every of you to be and appear in your proper persons before us at in the county of on the day of 187 , by of the clock in the noon of tlie same day, and so from day to day until you shall be discharged, and also tliat you bring with you and i)roduce at the time and place aforesaid [here describe short!)/ the deed, letter, paper, Ac, required to be produced^, then and tliere to testifv and show all and singular those things which you or either of you know, or the said deed or document doth import, of and con- corning tlie matter of a representation made by C. D. in pursuance of the provisions of tlie Public Worsliip Regulation Act, 1874, in which the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B.,is the person complained of, on the part of the said C. D. [or E. F.], and on the aforesaid day to be heard before us. And this you or any of you shall by no means orait. Given at the day of 187 . (Signed) X. Y. Provincial Registrar. /♦ ^1^. ) No. 36. — Praecipe or* Suhpcena duces tecum. In the Provincial Court of Canterbury [or York]. Public Worship Regulation Act, 1874. Praecipe for subpoena for [insert witnesses' names'], to testify and produce, &c., on the part of the comjilainant [or respondent] in the matter of a representation made by C. D, in pursuance of the pro- visions of the Public Worship Regulation Act, 1874, in which the PUBLIC WORSHIP REGULATION ACT, 1874. 77 Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person comjjiained of. Dated this day of 187 . (Signed) C. D. or E. F. No. 37. — Notice to admit Documents. In the Provincial Court of Canterbury \or York]. Public Worship Regulation Act, 1874. Take notice that in the matter of a representation made by C. D. in pursuance of the provisions of the Public Worship Regulation Act, 1874, in which the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person complained of, the said C. D. [o?" E. F.] proposes to adduce in evidence the several docu- ments hereunder specified, and that the same may be inspected by the said E. F. [or C. D.], his proctor, solicitor, or agent, at , on , between the hours of ; and the said E. F. \or C. D.] is hereby required within forty-eight hours from the last-mentioned hour to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed, as they purport resjiectively to have been, that such as are specified as copies are true copies, and such documents as are stated to have been sent or delivered were so served, sent, or delivered respectively, saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated this day of 187 . (Signed) C. D. or To E. F. E. F. or CD. {Here describe, the documents.l No. 38. — Entry of appearance by a Proctor or Solicitor. The Diocesan Registry of B. Public Worship Regulation Act, 1874. In the matter of a representation made by C. D. in pursuance of the provisions of the Public Worship Regulation Act, 1874, wherein the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person complained of. I, G. H., the proctor or solicitor of the said C. D. or E. F., a2)pear on his behalf. Dated this day of 187 . [Here insert address required for communications.'] (Signed) G. H. No. 39. — Monition for Costs. James Plaisted, Baron Penzance, a judge of the Provincial Court of Canterbury [or York], to C. D. or E. F., rector \_or vicar, &c.] of I. K., in tlie diocese of B., greeting : Whereas at the hearing of 78 ORDER IN COUNCIL RELATING TO THE the matter of a i-epresentation made I>y C. D. in pursuance of tlie provisions of the Public AVorship Keguhition Act, 1874, in wliich the Reverend E. F., clerk, rector [ur vicar, &c.] of I. K., in the diocese of B. [description to be omitted if mentioned before'], is the j)erson complained of, the sum of has been found to be due from you, the said C. D. [or E. F.], to the said E. F. [or C. D.], and his proctors or solicitors. Messieurs , for the costs incurred by him in the said matter, and on which you were condemned at the liearing of the said representation : "We, therefore, hereby command you, the said C. D. [or E. F.], to pay within six days from the service hereof (inclusive of the day of service) the said sum of to the said E. F. [or C. D., or to the said iMessieiu's ], and herein fail not. Given at this day of 187 . (Signed) _ X. Y., _ Provincial Registrar. No. 40. — Summons. In the Provincial Court of Canterbury [or York]. Public Worship Regulation Act, 1874. In the matter of a representation now pending before us, made by C. D. in pursuance of the provisions of the Public Wor- ship Regulation Act, 1874, in which the Reverend E. F., clerk, rector [or vicar, &c.] of I. K., in the diocese of B., is the person complained of. Let the said C. D. or E. F. attend before the Right Honourable James Plaisted, Baron Penzance, a judge of the Provincial Court of Canterbury [or York], on next, the day of 187 , at of the clock in the noon, to show cause why [Here date object of sumraons.] Dated this day of 187 . (Signed) X. Y., _ I'rovincial Registrar. No. 41. — Postponement by Bishop of Avoidance (t). A., by Divine permission, Bishop of B., to E. F., rector [or vicar, &c.] of I. K., in our said diocese of B., and all others whom it may concern, greeting : Whereas in the matter of a representation made by C. D., in pur- suance of the provisions of the Public Worship Regulation Act, 1874, in which the said E. F. is the person complained of, an inlii- bition was issued by the Right Honourable James Plaisted, Baron Penzance, ajudge of the Provincial Court of Canterbury [or York], bearmg date the day of 187 , by reason of the dis- obedience of the said E. F., to a certain monition issued by the said judge [or by us] bearing date the day of 187 , by which inhibition the said E. F. was inhibited for the term of months from the time of publication thereof, and thereafter until the same should have been duly relaxed, from d-c. : And whereas the said E. F. has not undertaken to pay due obedience to the said monition, and the said mhibition has tlierefore not been relaxed, but has since (0 See sect. 13 of the act. PUBLIC WORSHIP REGULATION ACT, 1874. 79 the date thei'eof remained and is still in force : And whereas by- reason of the premises tlie said rectory [or vicarage, c&c] of I. K. might shortly become void, unless the avoidance thereof be post- poned by us in accordance with the provisions of the said act : Now we, the bishop aforesaid, do hereby, for the reason that l_here state reason]^ order that, notwithstanding the said inhibition may remain in force for more than three years from the date of the said monition, the avoidance of the said rectory \_or vicarage, cfic] shall be postponed for [liere state time, not exceeding three months the date at lohich the same would have become void^. Dated this day of 187 . (Signed) X. Y., Diocesan Registrar. ■ Fees to be taken by the Diocesan or Provincial Registries (as the case may be). It is ordered that the fees in the subjoined table be paid and re- ceived in the diocesan and provincial registries respectively, and that the proceeds be applied in discharge of the expenses of carrying the act into execution, and in remunerating the officers and persons em- ployed therein, other than the judge, in such manner, at such times and in such proportions as the judge shall from time to time direct, until further order be made herein ; provided always, that the fees received in the diocesan registries shall be applied exclusively to the expenses incurred and officers employed in the diocesan registries and courts, and the fees received in the provincial registries to the expenses incurred and persons employed in the provincial courts. Preparation of Instruments. Registrar's receipt for documents . Bishop's notice to amend representations Respondent's receipt for documents Requisition by bishop as to submission . Consent to submit Transmission of special case for opinion of judge Transmission of representation to archbishop Requisition to judge to hear representation . Security for costs Monition ....... Report from bishop to judge of respondent's disobed Inhibition Relaxation of ditto Pra;cept as to cathedral church, &c. Sequestration of profits of dean and chapter . Subpoena (for every Avitness) .... Monition for costs Appearance. On entry of an appearance by proctor or solicitor . On amending an ap])earance ..... Search for appearance £ s. d. 5 10 5 5 5 5 5 5 10 1 10 10 10 10 10 2 6 10 5 5 1 £ s. (1. 5 5 5 5 80 ORDER IN COUNCIL RELATING TO THE Filing Fees. Filing representation ....... Filing special case tor the opinion of the judge Filing answer to representation Filing reply, &c Filing every aflidavit or other document not otherwise specified ....02G Reference to Registrar for his Report. On each reference as to the amount of further security to be given (including registrar's report) . . . G 8 Setting Down. Setting down a special case for hearing . . . .O Setting down a representation for hearing . . . 5 Summons. Summons to attend in chambers 2 G For entering judge's order and summons . . . 2 G If a final order in the matter 10 Notices. Preparing every notice required to be given by tlie registrar 050 Hearing. On every hearing before the judge of a representation or special case, to be paid by the party setting down the same If the liearing continues more than one day, for every subsequent day or part of day, from the same party . 10 Entering Judgment or Order. Entering judgment, to be i)aid by the complainant . 10 If the special matter thereof shall exceed five folios, for every additional folio . . . . . 10 Entering any order or decree of judge not otherwise .specified to be ]>aid by the party obtaining the same (in case of doubt the judge to direct) . . . 5 Office Copies and Extracts. For even,- office copy or extract of a minute, judgment, order, or other document, if five folios or under . 2 G If exceeding five folios, per folio 6 Searches. Every search in the registry in reference to representation 10 A (tendances. Attendance to transmit any document required to be transmitted from the registry, in addition to postage and registration fee 3 4 Attendance on the judge on any occasion other than a hearing 0G8 For attendance to serve respondent with representation under Rule No. G, such a sum is to be allowed as the bishop may consider reasonable under the circum- stances. 10 PUBLIC WORSHIP REGULATION ACT, 1874. 81 £ s. d. 1 1 G 1 Oath. For every oath administered by a registrar to each deponent For marking every exhibit Taxing Costs. Taxing eveiy bill of costs : When taxed as between complainant and respon- dent, per folio T\1ien taxed as between practitioner and client, per folio For postponement of appointment for taxation of costs, to be paid by tlie party at whose instance the appoint- ment is postponed : If the bill of costs is five folios or under If exceeding five folios and under fifteen folios If exceeding fifteen folios ..... Faculty. For every faculty granted in pursuance of the 14th sec- tion of the act, unless otherwise ordered by the judge 2 2 Note. — All folios to consist of seventy-two words. 1 2 6 5 Costs to be allowed Proctors or Solicitors. Instructio7is. Instructions for representation, answer, reply, &c., and for declarations, special affidavits, &c. . . . 13 4 Ditto to defend 13 4 Ditto for brief, or case for hearing . . . . 10 If there are several witnesses and the brief is necessarily long an additional fee will be allowed. Rcprcsejitatlon, tC-c, and Copies. Drawing and engrossing representation, if ten folios or under ....100 If exceeding ten folios, for every additional folio . 14 Drawing and engrossing answer, reply, and other state- ments, if ten folios or under 10 If exceeding ten folios, for every additional folio . 14 Copies of representation or other statements to file, at per folio 004 Spfcial Case. Instructions . . . . . . . 13 4 Drawing special case for the judge's opinion, including copy 100 If exceeding ten folios, for every additional folio, including copy .... ... 1 4 Case on Eindence. For case to advise on evidence, including copy for counsel ...100 82 ORDER IN COUNX'IL RELATING TO THE DrmoiiKj Inxtru menls. Drawing any instrument to bo filed in or issued by tlie £ s. d. registry lor Avliicii no otiier fee is lierein allowed, and for copy to be filed or issued : If five folios or under 8 If above five folios, per folio . . . . 14 Perusing and abstracting. For perusing and abstracting representation, answer, &c., and all other papers, and exhibits of all kinds, per folio : If five folios or under . . . . . . 5 If above five folios, per folio 4 Briefs and Coses for Hearing. For drawing same, per folio . . . . . . 10 For each copy, per folio 4 Maps and Plans. r 1 1 For maps or plans each from I to (330 f 10 Copies of same if required .... each from \ to ( 1 Affidavits. * Drawing affidavit : If five folios or under, including copy . . . G 8 If above five folios, per folio, including copy . . 14 Copies. For every plain copy of any instrument, per folio : If five folios or under 2 6 If above five folios, per folio . . . . . 4 If the same or any part thereof are required to be \ns.diA/^ of Submissions and Awards ; with an Appendix of Form.s, and of the Statutes relating to Arbitration. By FJIANCIS RUSSELL, Esq., Recorder of Tenterden. Fourth Edition. Royal 8vo. 1870. ll. 16s. ARTICLED CLERKS.— Wharton's Articled Clerk's Man- ual.- — A ZSIanual for Articled Clerks : being a comprehensive Guide to their successful Examination, Admission, and practice as Attorney.? and Solicitors of the Superior Courts. By J. J. S. WHARTON, E-sq., M.A., Oxon, Barrister-at-Law, Author of " The Law Lexicon," &c., &c. Ninth Edition. Greatly enlarged, and with the addition of Book-keeping by single and double Entry, By CHARLES HENRY ANDERSON, Senior Prizeman of the Incor- porated Law Society, &c. Royal 12mo. 1864. 18s. ATTORNEYS.— Pulling's Law of Attorneys.— A Summary of the Law and Practice relating to Attorneys, General and Special, Attorn eys-at- Law, Solicitors, Notaries, Proctors, Conveyancers, Scriveners, Land Agents, House Agents, &c. , and the Offices and Appointments usually held by them. Their several (Qualifications and legitimate Province, Rights, Duties, Privileges, Isxemptions, Disabilities, and Liabilities in the General Practice of the Law, in liCgal Proceedings, in Legal Negotiations, and Legal Foi-malities. And the Law of Costs as between Party and Party and Attorney and Client. Bv ALEXANDER PLTLLING, Serjeant-at-Law. Third Edition. 8vo. 1862. 18s. " It is a laborious work, a careful work, the work of a lawyer, and, beyoud coiupaiisou, the beat that has ever bcsn produced upou this Rubject."— Law Timks. Smith.— The Lawyer and his Profession.— A Series of Letters to a Solicitor commencing Business. By J. ORTON SMITH. 12mo. 1860. 4s. AVERAGE.— Hopkins' Hand-Book on Average.— Third Edition. 8vo. 186S. 18s. Lowndes' Law of General Avei'age. — English and J?oreign. Second Edition. By lilCHARD LOWNDES, Author of " The Admiralty Law of Collisions at Sea." 8vo. 1874. ISs. " Mr Lowndes grapples in such a masterly way with each one of the points of difficulty and argues with such a coiupreliensiye f;rasp of the general principlen of liis subject, .is well as an accurate ami <;xteiisivc knowledge both of mercantile ])ractice and lepil authority, that he c;iuuot fail to be ii tnianvorthy t,'uide. As a legal text book his '• Law of General Average " deserves the hisbest praise fA^ of Bailments.— Fourth Edition. By W. THEOBALD. 8vo. 1834. Nett, 5s. BALLOT.— Fitzgerald's Ballot Act, 1872.— With an Intro- duction. Forming a Guide to the Procedure at Parliamentary and * * All standard Law Wvr:^iave keptin Stock, in law calf andothtr bindlinjs. 119, CHANCERY LANE, LONDON, W.C. BALLOT-' Continued. Municipal Elections. By GEEALD A. E. EITZGEEALD, M.A. I of Lincoln's Inn, Esq., Barrister-at-Law. Foolscap 8vo. 1872. 3s. 6d. ; BANKRUPTCY.— Anderson.— Vide " Criminal Law."' Bedford's Final Examination Guide to Bank- ruptcy. — Second Edition. 12mo. 1873. 4.s. Lynch's Tabular Analysis of Proceedings in Bankruptcy, for the use of Students for the Incorporated Law * Society's Examinations. Second Edition. 8vo. 1874. Nett, Is. Parker's Analysis of the Principal Steps m a Bankruptcy Proceeding, taken from the Bankruptcy Act and Eules ; with an Index to the Bankruptcy, Debtors, Bank- ruptcy Eepeal, and Insolvent Court 'Acts, 1869, and the various Eules made under those Acts ; to which is added an Alphabetical List of the Forms published with the Eules. By FEANK E. PAEKEH, one, &c. Folio. 1870. 5s. Scott's Costs in Bankruptcy. — FwZe" Costs." Smith's Manual on Bankruptcy. — A Manual relating to Bankruptcy, Iiisolvency, and Imprisonment for Debt ; comprising the New Statute Law verbatim, in a consolidated and readable form. With the Eules, a Copious Index, and a Supplement of Decisions. By JOSIAH W. SMITH, Esq., B.C.L., (^.C, Judge of County Courts. 12mo. 1873. 10s. *^* The Supplement may be had separately, Jiett, 2s. 6d. "Willianis' New Law and Practice in Bank- ruptcy, comprising the Bankniptcy Act, the Debtors Act, and the Bankruptcy Eepeal and Insolvent Court Act of 1869, and the Eules and Forms made under those Acts, with a comparative Sum- mary of the Cases Decided under the foniier Laws, liy 110 LAND VAUGHAN WILLIAMS, Es(i., of Lincohi's Inn, and WALTEE VAUGHAN WILLIAMS, Escj., of the Inner Temple, Barristers-at- Law. Sectmd Edition. [In the press.) BILLS OF EXCHANGE.— Chitty on Bills of Exchange and Promissory Notes.— A Treatise on Bills of Exchange, Promissory Notes, Cheques on Bankers, Bankers' Cash Notes, and Bank Notes ; with Eeferences to the Law of Scotland, France, and America. The Tenth Edition. By JOHN A. EUSSELL, LL.B., and DAVID MACLACHLAN, M.A., Barri.sters-at-Law. Eoyal 8vo. 1859. i;. Ss. f ■ BILLS OF SALE — Millar and Collier's Bills of Sale.— A Treatise on Bills of Sale, with an Appendix containing the Acts for the Registration of Bills of Sale, 17 & IS Vict. c. 36, and 29 & 30 Vict. c. 96, and Precedents, &c. Third Edition. By F. C. J. MILLAE, Barrister-at-Law. ]2mo. 1871. 10s. 6(/. BOOK-KEEPING.— Bedford's Intermediate Examina- tion Guide to Book-keeping.— Second Edition. 12mo. 1875. Mtt, 2s. <. *^* All standard Laic Woi'ls arc Irpt in Stod-, in laio calf and other hindinys. 119, CHANOEEY LANE, LONDON, W.C. CHMCERY. -Conlinued. Morgan and Davey's Chancery Costs.— FicZc"Costs." Orders and Rules of the High Court of Justice, Chancery Division. — Published by authority as issued. Smith's Chancery. — The Practice of the Court of Chancery, including the Joint Stock Companies' Acts, with an Appen^x of Forms and Precedents of Costs, adapted to the last New Orders. By JOHN SIDNEY SMITH, Esq., M.A., Barrister-at-Law. The Seventh Edition, revised and enlarged by the Author and ALFRED SMITH, Esq., M. A., Barrister-at-Law. 2 vols. 8vo. 1862. M. 3s. CHURCH AND CLERGY.— Phillimore.—Ficic"EcclesiasticalLaw." Stephen's Lav/s relating to the Clergy.— 2 vols. Eoyal 8vo. 1848. 21. 18». CIVIL LAW — Bowyer's Commentaries on the Modern Civii Law.— By Sir GEORGE BOWYER, D.C.L., Royal 8vo. 1848. 18s. Bo-wyer's Introduction to the Study and Use of the Civil Law.— By Sir GEORGE BOWYER, D.C.L. Royal 8vo. 1874. 5s. Cumin's Manual of Civil Law.— A Manual of Civil Law, containing a Translation of, and Commentary on, the Fragments of the XII. Tables, and the Institutes of Justuiian ; the Text of the Institutes of Gains and Justinian arranged in parallel coltunns ; and the Text of the Fragments of Ulpian, and of Selec- tions from Paul's Receptas Sententia?. By P. CUMIN, M.A., Barrister-at-Law. Second Edition, enlarged. Mediimi, 8vo. 1865. 18s. Greene. — Fide "Roman Law." Phillimore. — Vide " Roman Law." COLLISIONS.— Lowndes' Admiralty Law of Collisions at Sea.— 8vo. 1867. 7s. 6d. COLONIAL LAW. —Clark's Colonial Law.— A Summary of Colonial Law and Practice of Appeals from the Plantations. 8vo. 1834. 1^- 4s. Vanderlinden. — Vide " Dutch Law." COMMENTARIES ON THE LAWS OF ENGLAND.- Bowyer.— Vide "Constitutional Law." Broom and Hadley's Commentaries on the Laws of England.— By HERBERT BROOM, LL.D., of the Inner Temple, Barrister-at-Law; Reader in Common Law to the Inns of Court : Author of " A Selection of Legal Maxims," &c. ; and EDWARD A. HADLEY, M.A., of Lincoln's Inn, Barrister-at-Law ; late Fellow of Trinity Coll., Cambridge. 4 vols. 8vo. 1869. 3;. 3s. "Messrs. Broom and Hadley have been unsparing in their editorial labeurs. There are abundant reference notes, so that the diligent student can consult the authorities if he is so disposed. Besides the table of contents, there are an appendix and a copious index tc each volume. Nothing that could be done to make the work usefu. and handy has been left undone." — Law Journal, Nov. 19, 1869. ** All standard Lavi Worls are Jcepi in Stocl; in Imo calf and other bindings. STEVENS AND SONS* LAW PUBLICATIONS. COMMERCIAL LAW. —Levi's International Commercial Law. — Being the Principles of Mercantile Law of the following and others Countnes — viz. : England, Scotlautl, Ireland, British India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Deu- maik, France, Germany, Greece, Hans Towns, Italy, Netherlands, Norwaj', Portugal, Prussia, Russia, Spain, Sweden, Switzerland, United States, Wiirtemburg. By LKONE LEVI, Esq., P.S.A., F.3.S., of Lincoln's Inn, Barrister-at-Law, Professor of the Principles and Practice of Commerce at King's College, London, &c. Second Edition. 2 vols. Royal 8vo. 1863. l^. 15s. Smith. — Vide "Mercantile Law." COMMON LAW. Archbold's Practice of the Court of Queen's Bench in Personal Actions and Eject- ment.— By THOMAS CHITTY, Esq. New Edition. By PiiENTICE. Including the Practice of the Courts of Common Plea.s and Exchequer. A New and Improved Edition (the Twelfth), embracing the New Rules and Common Law Procedure Acts, 1852, 1854, and 1860. By SAMUEL PRENTICE, Esq., Barrister-at- Law. 2 vols. Royal 12mo. 1866. And see " Fonns,"— CHITTY. Cole.— Ftdc "Oaths." Fisher. — Vide " Digests." Orders and Rules of the High Court of Justice, Common Law Divisions. — Publishes' Journal, Xov. 14, 18C3. " Mr. Phillips" work is at once an able law-book and a lucid treatise, in a popular form, on the rights of authors aud artists. The wants and interests of the legal practitioners are consujled by a careful collection aud discussior of all the authorities, while the non- professional reader will find in the book a well-written aud perfectly intelligible statement of the law upon the matter of which it treats.'' — Jurist, Jau. 9, 1864. CORONERS.— J ervis on the Office and Duties of Coroners. — With Forms and Precedents. Third Edition. Bv C. W. LOVES Y, Esq., of the Middle Temple, Barrister-at-Law . 12mo. 1866. 12«. COSTS.— Carew's Precedents of Bills of Costs, for obtaining Grants of Proljate and Ijetters of Adnmiistration in the Principal Registry of the Court of Probate. 1869, 5«. *„,* All standard Law Works are kept in Stock, in law calf and other hindinys 119, CHANCERY LANE, LONDON, W.C. Morgan ancf Davey's Treatise on Costs in Chancery,— By GEOIIGE OSBGllXE MORGAN, M.A., Barrister-at-La^v, late Stowell Fellow of University College, Oxford, and Eldon Scholar ; and HORACE DAVEY, M.A., Barrister-at- Law, late Fellow of University College, Oxford, and Eldon Scholar. With an Appendix, containing Forms and Precedents of Bills of Costs. 8vo. 1S65. 1?. Is. Scott's Costs in the Superior Courts of Com- mon Law, and Proliate and Divorce, and in Conveyancing ; also in Bankruptcy (Act of 1869). Proceedings in the Crown Office, on Circuit and at Sessions, and in the County Coiu't , together with Costs of Interlocutory Rules and Orders under the Common Law Procedure Acts 1852 and lSo4, Bills of Exchange Act 1855, &c., &c., and the Raihvay and Canal Traffic Act, 1854. AVith an Appendix, containing Costs imder Parliamentary Elections Act, 186S. By JOHN SCOTT, Esq., of the Inner Temple, Barrlster-at- Law. Third Edition. Royal 12mo. 1868-73. 24s. \* The Supplement, containing "Bankruptcy Costs (Act of 1869)," may be had separately. A'ett, os. " Mr. Scott's work is well kuown to the profession. It is an extensive collection of taxed bills of costs in all branches of practice, supplied to him probably by the taxing masters. Such a work speaks for itself. Its obvious utility is its best recommenda- tion."— Zaw Times. " ' Taxation of Costs '—la re Foster— Vice-Chancellor Wood said that Mr. Scott's book was a competent authority upon the subject."— 2'iwiM. "Webster's Parliamentary Costs. — Private Bills, Election Petitions, Appeals, House of Lords. By EDWARD WEBSTER, Esq., of the Taxing Office, House of Commons, and of the Examiners' Office, House of Lords and House of Comm.ons. Third Edition. Pest Svo. 1867. 20s. " The object of this work is to give the scale of costs allowed to Solicitors in relation to private bills before Parliament, the conduct of Election Petitions and Appeal Causes, and the Allowance to Witnesses. The counoctiou of the author with the Taxing Office of the House of Commons gives authority to the work, which has been compiled with some skill, and contains a verj' useful ludcx, by which thecosts allowed for attendances, time, drawing, copying, and perusing, in the several parliamentary proceedings may bo easily ascertained." — Solicitor^ Journal. COUNTY COURTS.— The Consolidated County Court Orders and Rules, v/ith Fornas and Scales of Costs and Fees, as issued by the Lord Chancellor and Com- mittee of County Court Judges. Authorized Edition. Super-royal Svo. 1875. 3s. "Will's County Courts Act, 1867.— With Notes, New Rules, and Forms ; Practice in Discovery, Interrogatories, Attach- ment of Debts, Equitable Defences, &c. By J. SHIRESS WILL, Esq., Bari'ister-at-Law. Svo. 1868. 15s. CRIMINAL LAW.— Archbold's Pleading and Evidence in Criminal Cases. — With the Statutes, Precedents of Indictments, &c., and the Evidence necessary to support them. By JOHN JERVIS, Esq. (late Lord Chief Justice of Her IMajesty's Court of Common Pleas). Eighteenth Edition, including the Practice in Criminal Proceedings by Indictment. By WILLIAM BRUCE, of the Middle Temple, Esq., Barristcr-at-Law, and Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 1875. 1^ 11.'!. 6c^. *^* AU standard Law WorJiS arc Icpt in Stod; in laic calj and other hindinrjs. A 3 10 STEVENS AND SONS' LAW PUBLICATIONS. CRIMINAL L^V^. -Continued. Anderson's Digest of Bankruptcy and Criminal Law.-^Bv C. H. ANDERSON, Esii-, Barrister-at-Law, of tho Imier Templo. 8vo. 1867. 7s. 6d. Cole on Crinninal Informations and Quo War- ranto.— By W. R. COLE, Esq., Barrister-at-Law. 12mo. 1843. ' 12s. Greaves' Criminal Law Consolidation and • Amendment Acts of the 24 & 23 Vict.— With Notes, Observations, aiul Forms for Summary Proceedings. By CHARLES SPRENGEL GREAVES, Es jiublisbed the day .after each Examination.) The Preliminary. — Containing the Que.stions of tlie Prelimi- nary Examinations, with the Answers. J'^tlited by E. H. BEDFORD, Solicitor. Sewed. Adt, Is. The Intermediate nnd the Fi rial. —Containing the (Questions and Answers at the Intermediate and Final Examina- tions. Edited by E. H. BEDEOllD, Solicitor. Sewed. Bach, nctt, 6d. EXECUTORS.— "Williams' Law of Executors and Ad- ministrators. — A Treatise on the Law of Executors and Administrators. Seventh Edition. By the Ptt. Hon. Sir EDWARD VAUGHxVX WILLIAMS, late one of the Judgea of Her INIajesty's Court of Common Pleas, and WALTER VAUGHAN WILLIAMS, Esq., B.an-ister at-Law. 2 vols. Royal 8vo. 1873. Zl. IGs. FACTORY ACTS. — Notcutt's Factory and "Workshop Acts. — Comi^risiug all the Laws now in force (including the Act of 1S74) for the regulation of Labour in Factories and W(jrkshops, with Introduction, Explanatory Notes, and Notes of decided cases, by GEORGE JARVIS NOTCUTT, Esq., of the Middle Temple, Barrister-at-Law. 12mo. 1874. Os. "Tlie book is a very creditable and useful work, aud the cases cited are all of coii- Bi.lcrable autliority and well-recognised standing. We can recommend the book to all who require a handy compilation of a few special stalutcfl."— iaw Times. FARM, LAW OF.— Cooke.— T7(/e " Agricultural L.aw." Dixon's Law of the Farm — A Treatise on the Law of the F.arm ; including the Agricultural Customs of Engl.and and Wales. Third Edition. With .an Appendix of Ca-ses to tlie end of Hilary Term, 1863. By HENRY HALL DIXON, Esq., Barrister- at-Law. 12mo. 18C3. 21s. FIXTURES. -Amos and Ferard on Fixtures.— Second Edition. Roy.al 8vo. 18-17. ICs. Woodfall. — See " Landlord and Tenant." FORMS.— Chitty's Forms of Practical Proceedings in the Courts of Queen's Bench, Common Pleas, and Exchequer of Pleas. — Tenth Edition. By THOMAS CHITTY, Esq. Royal 12mo. 18G6. Corner's Forms of "Writs and other Proceed- ings on the Crown side of the Court of Queen's Bench.— 8vo. 1844. 7s. 6(/. Daniell's Chancery Forms. — Forms and Precedents of Pleadings and Proceedings in the High Court of Chancery, mth Practical Notes and Observations, and References to the Fourth Edition of Daniell's Chancery Practice ; and incorporating the Forms in Braithwaite'a Record and Writ Practice. By LEONARD FIELD and EDWARD CLENNELL DUNN, Barrister-s-at-Law, and JOHN BIDDLE, of the Master of the Roll.s' Ch.ambers. Second Edition. By JOHN BIDDLE. 8vo. 1871. IZ. 12s. Moore's Solicitor's Book of Practical Forms. — 12mo. 1852. 7s. (Jd. HIGHWAYS— Bateman's General Highway Acts.— Second Edition. By W. N. WELSBY, Esq. With a Supplement containing the Highway Act of 1SG4, &o. With Notes and a Revised Index by C. MANLEY SMITH, Esq., of the Inner Temple, Barridter-at-Law. 12mo. 180.5. 10s. Qd. *,* All standard Lav: Worls are kc^jt in Slock, in laic calf and other hindinrjs. 119, CHANCERY LANE, LONDON, W.C. 15 H\OHVf AYS -Continued. Shelford's Law of High\AAays.— The Law of Highways ; including the General Highway Acts for England and Wales, and other Statutes, with copious Notes of the Decision.^ thereon ; with Forms. The Third Edition, corrected and enlarged. By LEONARD SHELFORD, Esq., Barrister-at-Law. With a Supplement containing the Highway Act, 1864, &c. ; ^vith Notes and a revised Lidex by C. MANLE Y SMITH, Esq., Barrister-at- Law. 12mo. I860. 15a. *^* The Supplement may be had separately, price 3s. sewed. INCLOSURES.— FiWe " Commons." INDIAN LAW.— Montr iou ; the Hindu Will of Bengal. With an Introductory Essa-y, &c. Royal 8vo. 1870. Ndt, 11. 10s. Norton's Law of Evidence applicable to India. By JOHN BRUCE NORTON, late Advocate-General of Madras. Eighth Edition. Royal 8vo. 1873. Nctt, 20.9. Norton's Leading Cases on the Hindu Law of Inheritance.— 2 vols. Royal 8 vo. 1870-71. Ac«, 2Z. 10s. INFANTS.— Ebsworth's Law of Infants.— A Handy Book of the Law of Infants. By JOHN EBS WORTH, Esq., SoUcitor. 12mo. 1861. 3s. Forsyth's Law relating to the Custody of Infants in Cases of difference between Parents or Guardians,— Svo. 1850. 8s. INSURANCE.— Arnould on the Lav/ of Marine Insu- rance-Fourth Edition. By DAVID MACLACHLAN, Esq., Barrister-at-Law. 2 vols. Royal Svo. 1872. 21. 12s. Gd. Hopkins' Manual of Marine Insurance.— Svo. 1867. !-''«• Lowndes.-- Fide "Average." INTERNATIONAL LAW-- Amos' Lectures on Inter- national Law. — Delivered in the Middle Temple Hall to the Students of the Inns of Court, by SHELDON AiiOS, M.A., of the Inner Temple, Barrister-at-Law ; Professor of Jurieprudence (including International Law) to the Inns of Court ; Professor of Jurisprudence in Univer.sity College, London. Royal Svo. 1874. 10s. C(/. Kent's International Law. — Kent's Commentary on International Law, Revised, with Notes and Cases brouglit down to the present time. Edited by J. T. ABDY, LL.D., Barrister-at- Law. Svo. 1866. 16s. "Dr. Alidy has (lone all Law Students a gicat service in presentin;; that portion of Kfent'sCommentarics which relates to public International Law in a single volume, neither large, diffuse, nor expensive." " Altogether Dr. Abdy has performed his task in a manner worthy of his reputation. Tlis boolTwill be useful not only to Lawyers and Law Students, for whom it was primarily intended, but also for laymen. It is well worththc study ot every member of an enlightened and civilized community." — SoUcilors' Jvurnal, ifarcli 15th, 1807. Levi's International Conimercial Law.— Being the Principles of Jlercantile Law of the follov/ing and other Countries — viz. : England, Ireland, Scotland, British India, Biitish Colonics, Austria, Belgium, Brazil, Buenos Ayrcs, Denmark, Franco, Germany, Greece, Hans Towns, Italy, Netherl.ands, Norway, Porttig.al, Prussia, Russia, Spain, Sweden, Switzerland, United St.itea, Wiirtembcrg. By LEONE LEVI, Esq., F.S.A., F.S.S., of Lincoln's Inn, B.arristcr. *,* All standard Laic Worlcs are JccjH in Stod; in Ian- calf and other bindinr/s. 16 STEVENS AND SONS' LAW PUBLICATIONS. INTERNATIONAL LM^ -Coniimied. at-Law, Professor of the Principles and Practice of Commerce at King's College, London, &c. Second Edition. 2 vols, lioyal Svo. 1863. 1/. ITjs. Vattel's Law of Nations.— A New Edition. By JOSEPH CHITTY, Esn. Eoyal Svo. 1834. £1 1». "Wildman's International Law. — Institutes of Inter- national Law, in Time of Peace and Time of War. By RICHARD ^^'ILDMAN, Barrister-at-Law. 2 vols. Svo. 1849-50. \l. 2s. 6i/. JOINT STOCKS.— Jordan's Joint Stock Companies.— A Handy Book of Practical Instructions for the Formation and Management of Joint Stock Companies. Fifth Edition. 12mo. 1875. Ndt, 28. 6c/. Thring's (H.) Joint Stock Companies' Law.— The Law and Practice of Joint Stock and other Public Companies, in- cluding the Statutes, with Notes, and the Forms required in Making, Administering, and Winding-up a Company, with a Supplement containing the Companies' Act, 1867, and Notes of Recent Decisions. By SiK H]:XRY THRING, K.C.B., The Parliamentary Coimsel. Third Edition. By GERALD A. R. FITZGERALD, Esq., of Lincoln's Inn, Barrister-at-Law, and Fellow of St. John's College, Oxford. 12mo. 1875. 20s. "The index has been fio framed .is to constitute a sort of diaest of nnany of the heads of law therein referred to. Mr. FitzGeialri lias done his work with great precisiun and thoroughness." — FaV Mall Gazette, August 17tli, 1875. JUDGMENTS. — Pask's Judgments, Executions, and Crown Debts. — The Judgments Law Amendment Acts relating to Real Property, 22 & 23 Vict., c. 35, and 23 & 24 Vict., c. 38, 23 & 24 Vict. c. 115, and 27 & 28 Vict. c. 112. With Notes, References to Cases, and Index : forming an Appendix to " The Practice of Registering," &c. By JA]\ILS PASK, Chief Clerk to the Registrar to the Court of Common Pleas, Westminster. Third Edition. 12mo. 1866. Sewed, Nett, Is. JUDICATURE ACTS.— Clow^es' Compendious Index to the Supreme Court of Judicature Acts, and to the Orders and Rules issued thereunder. By W. CLOWES, Esq., one of the Regi.strars of the Court of Chancery. Second Edition, revised and enlarged. (Uniform in size v:i(h the Queen's Printer's Edition of the Acts and Jinks.) 1875. Balf bound. 10s. 6d. * ,* The abovi:, with the Acts and Rules (Authorized Edition), Orders in Council, and additional rules, court fees, &c., complete in ONE VoLu.^n:, hovnd in limp leather. 25s, The sAiiE, Interleaved, in one Vol., lounel in limp leather. 30s. Lely and Foulkes' Judicature Acts, 1873 and 1878 : containing the Statutes, Rules of Court, and Orders in Council, with Notes, fomiing a Pkactice of the Slpkeme Coukt. By J. M. LELY and W. D. L FOULKES, Esqrs., Barristers-at- Law. Royal 12mo. 1875. 14fi. {Bounel in limp leather, 18s. Cc/., or the same, interleaved, 21s.) "We think that in every way the work deserves hijrh commendation. The typography and general get-up of the book is excellent— a book v.liich is highly creditable to all concivned." — Tmw Times. Oct. 9, 18T5. '' We have here the firsf of the more nmhitifais worlds en the rew svfcteni, and wc arc plad thftt there is much in its design and execution of which we can a-ppvove."—i>olicilvis' Journal, Oct. 2, 1875. *^* All standard Lenv Works urelept in Stocl; in lo.v: coif and other lindinejs. 119, CHANCERY LANE, LONDON, W.C. 17 liiniCATURE ACTS.— Co«<"^M^f'- ''^^ Ley's Complete Time-Talole to the Rules under the SupremeCourtof Judicature Act,187S. Show- ini'- all the periods fixed by the Eules within or afterwhich any proceed- ings may be taken. By JOHN KIRKWOOD LEYS, M.A., of the Middle Temple, Barrister-at-Law. Royal 8vo. 1875. Nctt, Is. Qd. Lynch and SiTiith's Introduction to the Final Exaniination.— Being a collection of the questions set by the Incorporated Law Society, with the answers adapted to meet the recent extensive alterations made by the JUDICATURE AC-T, 1873. By H. EOULKS LYNCH, Solicitor, and ERNEST AUGUSTUS SMITH, Solicitor, Clifford's Inn, Prizeman ; Senior Prizeman of the Incorporated Law Society, and Brodrip Gold Medalist, 1872. Vol. I. The Principles of the Law. Post 8vo. 1874. 12s. Vol. II. The Practice of the Supreme Court of Judicature. {In m-eparation.) Lynch's Tabular Analysis of the Supreme Court of JudicatLU-e Acts, 1873 and 1875, for the Use of Students. Royal 8vo. 1875. ^ ^ ^ _^^ _^ ^ „,_,^^^V«'- ready.) „_, 'Wilson's JudicatureActs,Rules and Forms. With Notes and a copious Index, and additional Rules to Oct. 28, forming a Complete Guide to the New Pkactice. By ARTHUR WJLSON, oftheInnerTemple,Esq., Barrister-at-Law. Royall2mo. 1875. I85. Bound in limp leather for the 'pocket, 22s. Gd., or the same, Interleaved, 25s.) *j,* A LARGE paper EDITION OF THE ABOVE (for marginal notes), in royal 8vo, cloth, 25s. {Bound in limp leather, 30s.). " Mr. Wilson appears to us to have made his choice with great skill and success . _. . the references are ample, and the description of tire matter referred to is clear The result of a very careful examination of Mr. Wilson's book is that it is executed with great care and thoroughness, and that it will be of the utmost value to all those on whom the task falls, whether as practitioners or as administrators of the law, ot applying ami adapting the new practice and procedure."— /SortCitoV Journal, Oct. 1.3, JS75. " We have nothing but praise to bestow upon the annotating of the rules. VVe navo no doubt it will maintain a position in the front rank of the works upon the all-eugrossing subject with which it deals."— Za«' 2'Mnt'6-, Oel. IG, lS7o. , , ^^ , ,, i i •' Mr. Wilson has appended to the Acts and Rules, especially the latter, a valuable body of notes, which we are sure will be found useful The adcBtional rules are ot course given, and there is a copious index.'' — Law Journal, Oci. 'id, \S,li>. " .-Mr. Arthur Wilson, as might have been expected, is particularly successful in deal- ing with the Rules of Court, to which, iudeed, his notes are an almost mdispeusablo accompaniment." — Law Magazine, 'Sov. 1875. , , , , , "As Mr. Arthur Wilson was one of the gentlemen employed to draft the rules he may be supposed to speak with some authority on that part of the subject, and "« "as cer- tainly devoted much care and time to their clucidatiou. "—/i'.rainHicr, Oct. 23, 18/5. JURISPRUDENCE. — Amos, Law^ as a Science and as an Art.— An introductory lectiire delivered at University College at the commencement of the session 1874-5. By SHELDON AINIOS, Esq., M.A., Barrister-at-Law. 8vo. 1874. Is. Gd. Pliillimore's (J. G.) Jurisprudence.— An Inaugural Lecture on Jurisprudence, and a Lecture on Canon Law, delivered at the Hall of the Inner Temple, Hilary Term, 1851. By J. G. PHILLIMORE, I'^sii., Q.C. 8vo. 1851. Sewed. 35. Qd. JUSTICE OF THE PEACE.— Arnold's Summary of the Duties of a Justice of the Peace out of Sessions.— Summary Convictions. By THOMAS JAMES ARNOLD, Esq., one of the Metropolitan Police Magistrates. 8vo. 18G0. II. 6s. *J* All standard Law Worh arc lept In Stoeh, inlaw calf and other bindin'js. 13 STEVENS AND SONS' LAW PUBLICATIONS. JUGTICZ OF THE PEACE -Continued. Burn's Justice of the Peace and Parish Officer. — Edited bv the followinir Barristers, under the G-eneral Superinten- dence of JOHN BL08SETT MAULE, Esq., Q.C., llecorder of Leeds. The Thirtieth Edition. Vol. I. containing titles "Abatement" to " IJwellings for Artizans ;" byTHOS. SIEllELL PllITCHAllD, Esq., of the Inner Temple. Vol. II. containin(» titles " Easter Offering " to "Hnndrcd ;" by SAME. BOTELEll BEvISTOWE, Esq., of the Inner Temple. Vol. IIL contaming titles " Indictment ' to " Promissory Notes ;" by LEWIS W. CAVE, Esq., of the Inner Temple. Vol. IV. containing the whole title "Poor;" by .TAMES EDYv^D. DAVIS, Esq., Stipendiary Magistrate for Stoke-upon-Trent. {Sold separatclii, i^r ice ^\ ILs. Gd.) Vol. V. containing titles "Quo Warranto" to "Wreck;" by .JOHN BLOSSETT MAULE, Esq., Q.C., llecorder of Leeds. Five vols. 8vo. 1SG9. 11. Is. Since the publication in 184.') of the former Edition of Burn's Justice of the Peace and Parisli Officer the whole range of the Law which Magistrates had to admiuistor has uudt-rgone mure or less alteration, and, iudewl, the time which has ela])scd since that publication appeared has doubtless worked as great a change in the Sragistrates them- selves : so that to very many of the Gentlemen now composing the body of Justices tho Encyclopedic Work of Burn must be, if not entirely unknown, at least mifaiuiliar as a book of retercuce. Paley. — Vide "Convictions." Stone. — Vide " Petty Sessions." LAND DRAINAGE.— Thring's Land Drainage Act.— With au Introduction, Practical Notes, an Appendi.K of Statutes relating to Drainage, and Forms. By THEODORE THllING, Esq., Barrister-at-Law. 12mo. 1861. 7«. LAND TAX.— Bourdin's Land Tax.— An Exposition of the Land Ta.x ; its Assessment and Collection, with a statement of the rights conferred by the Redemption Acts. By MARK A. BOUR- DIN, of the Inland Revenue Office, Somerset House (late Registrar (if Land Tax). Second Edition. Crown 8vo. 1870. 4«. LANDLORD AND TENANT.— Woodfall's La^A/ of Landlord and Tenant. — A Practical Treatise on the Law of Landlord and Tenant, with a full Collection of Precedents and Forms of Procedure. Tenth ]'>dition. By W. R. COLE, Esq., Barrister-at- Law. Royal 8vo. 1871. 1/. ISs. LAW, GUIDE TO.— A Guide to the Law for Geiieral Use. By a Barrister. Twentieth Edition. Crown 8vo. 1875. < Nctt 3s. 6d "There may be many students of both branches of the profession who will find the following pages an assistance to them in the course of their reading, not in substitution of but together with, or preliminary to, the voluminous and highly technical works which they have necessarily to examine." LAW LIST La^?v List (The).— Comprising the Judges and Officers of the different Courts of Justice, Counsel, Special Pleaders, Draftsmen, Conveyancers, Attorneys, Notaries, &c., in England and Wales ; to which are added the Circuits, Judges, Treasurers, Refistrars, and High Bailiffs of the County Courts, District Registries and Registrars under the Probate Act, Lords Lieu- tenant of Counties, Recorders, Clerks of the Peace, To^v^l Clerks, Coroners, Colonial Judges, and Colonial Lawyers having English Agents, Metropolitan Police IMagistrates, Law Agents, Law and Public Officers, Circuits of the .Judges and Counsel .attending Circuit and Sessions, List of Sheriff.s and Agents, London Commis- * * All sU'.ndo.rd Laio Works arc Jcept m Stock, in law calf and other biiidinr/s. 119, CHANCERY LANE, LONDON, W.C. ' 19 LAW i.\ST. -Continued. sioners for t;ikiag Oaths in Chaucery, Queen's Bench, Common Pleas and Exchequer, &c., &c., and a variety of other iiseful matters BO far as relates to Special Pleaders, Draftsmen, Conveyancers, Attorneyft, Solicitors, Proctors and Notaries. Compiled by AVILLIAM HENRY COUSINS, of the Inland Revemie Office, Somerset House, Registrar of Certificates. Published annually. By authority. • Nett 10s. 6d, LAW REPORTS.— F(cZe pages 26-7. LAWYER'S COMPANION.— IWc "Diary." LEGACIES.— Roper's Treatise on the Law of Lega- cies.— Fourth Edition. By H. H. WHITE. 2 vols. Royal 8vo. 1847. 3/. .3s. Trevor. — Vide "Succession." LEXICON. — Vide " Dictionary." LICENSING.— Lely and Foulkes' Licensing Acts, 1828, 1869, 1872, and 1874; Containing the Law of the Sale of Liquors by Retail and the Management of Licensed Houses ; with Notes to the Acts, a Summary of the Law, and an Appendix of Forms. Second Edition. By .1. M. LELY and W. D. L FOULKES, Esqrs., EaiTisters-at-Law. Royal 12mo. 1874. 8s. " Messrs. Lely and Foulkes's plan is to print in full the principal Acts, and to inter- polate between the sections of each of these statutes all subsidiary enactments, distin- guishing them by brackets and marginal notes .... to most of the sections of the Act of last Session notes are addcil. These notes are usually sensible and to the point, and (five evidence both of caro and knowledge of the anbjuc^t."— Solicitors' Journal, Oct. 10, 1S7I. LIEN. — Cross' Treatise on the LaNA/" of Lien and Stoppage in Transitu. — Svo. ISIO. 15s. LIGHTS — Woolrych's Practical Treatise on the Law of Window Lights. — Second Edition. 12mo. 1804. 6s. LUNACY.— Elmer's Lunacy Practice.— Fifth Edition. By .JOSEPH ELMER, of the Office of the Masters in Lunacy. Svo. 1872. 21s. MAGISTERIAL LAW.— Burn.— Fid-e « Justice of Peace." Pa ley. — Vide " Convictions." Pritchard. — Vide " Quarter Sessions." Stone. — Vide " Petty Sessions." MAINTENANCE AND CHAMPERTY. — Tapp on Main- tenance and Chainperty. — An Inquiry into the present state of the Law of Maintenance and Champerty, principally as affecting Contracts. By WM. .JOHN TAPP, Esq. , of Lincoln's Inn, Barristcr-at-Law. 12rao. 1861. 4s. 6d. MANDAMUS. — Tapping on Mandamus. — The Law and I*ractice of the High Prerogative Writ of ]\Iandamus as it obtains both in England and Ireland. Royal Svo. 1848. 11. Is. MARINE INSURANCE — Vide " Insurance." MARTIAL LAW — Finlason's Treatise on Martial Law, as allowed by the Law of England in time of Rebellion ; with Practical Illustrations drawn from the Official Documents in the Jamaica Case, and the Evidence taken by the Royal Commission of Enquiry, with Comments Constitutional and Legal. By W. ¥. FINLASON, Esq., l',arrister-at-Law. Svo. 1866. 12s. MERCANTILE LAW Brooke.— FiVe "Notary." Russell. — Vide "Agency." Smith's Mercantile La^Ar. — A Compendium of Mercantile Law. By the late JOHN WILLIAM SMITH, Esq. Eighth *^* All standard Law Works arc Iqd in Stock, in laic calf and other hindimjs. 20 STEVENS AND SONS' LAW PUBLICATIONS. MERCANTILE LAW. -'<""«'""•''. Kaition. ]•.>•<;. M. DOWDESWELL, of the Inner Temple, Esq., one of ITlt ^lajesty'a Counsel. Koyal Svo. 1871. II. 168. Tudor's Selection of Leading Cases on Mer- cantile and Maritime Law.— With Notes. By 0. D. TUDOR, E!-<(., Banister-at-Law. Second Edition. Royal Svo. 1868. 1^ 18«. MINES.— Rogers' Law relating to Mines, Minerals, and Quarries in Gi'-eat Britain and Ireland; •with a Summary of the Laws of I'^oreiepi States and Practical Directions for obtaining Oovenimeut (irants to Avork foreign Mines. By ARUNDEL ROGERS, Esq., Bareister-at-Law. Svo. 1864. 11. lOs. MORTGAGE.— Coote's Treatise on the Lav/ of Mort- gage.— Third Edition. Royal Svo. 1850. Adt, 11. MUNICIPAL ELECTIONS.- I'iWc "Ballot." NAVAL LAW.— Th ring.— rWc "Criniin.al Law." NISI PRIUS.— Roscoe's Digest of the Law of Evidence on the Trial of Actions at Nisi Pri us.— Thirteenth Edition. By .TOHN DAY, one of Her JMajesty's Counsel, and MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1S75. 2/. [Bound in one thick rolvme calf w clrruit, 5s. 6d., or in tiro convenient vols, calf or circuit, 10s. nett extra.) " Any one who glances nt ' Roscoe's Digest ' in all the amplitude and immensity of a Thirteenth Edition, ninst admit that there can be only one thing on earth more marvel Ions than thin vast volume ; and that is, the banister's brain that constructively contains all that is iu tliis book. The work itself has long ago won a position altogether unique, and in the hands of its prebcnt editors there is no fear that the position will be lost."— law Journal, Jnly 10, 1875. " Koscoe's Digest has alw.iys been a work of reference absolutely necessary to the comnuin law practitioner; it retains this jiosition now under vei7 greatly improved condition!!, and we are sure that the profe.-sion will thoroughly apprtciato the iiitelligeiU labour, which has been bestowed upon the work."— Xat« Times, July 21th, 1875. Sel-wyn's Abridgment of the Law of Nisi Prius.— Thirteenth Edition. By DAVID KEANE, Q.C., Recorder of Bedford, .and CHARLES T. SMITH, M.A., one of the Judges of the Supreme Court of the Cape of Good Hope. 2 vols. Royal Svo. 1869. 21. 16«. NOTARY.— Brooke's Treatise on the Office and Prac- tice of a Notary of England.— With a full collection of Precedents. Third Edition. By LEONE LEVI, Esq., F.S.A., of Lincoln's Inn, Barrister-at-Law, Professor of the Principles and I'ractice of Commerce in King's College, London, &c., &c. Svo. 1867. 21s. NUISANCES-— F"i^zgerald.— l'«/c "Public Health." OATHS.— Braithwaite's Oaths in Chancery.— A Manual for the use of Commissioners to Administer Oaths in Chancery ; being a collection of officially recognised Forms of Jurats and Oaths' w^ith Explanatory Notes and Observations. Second Edition. By THOMAS W. BRAITHWAITE, of the Record and Writ Clerks Office. EoolscapSvo. 1864. ' 3s. 6c/. Cole's (R.) Oaths in Common Law.— By ROBERT COLE, Solicitor. Foolscap 8vo. 1859. Nett 2s. PATENTS.— Hindniarch's Treatise on the Law rela- ting to Patents.— Svo. 1846. 21s. *^* All standard Law Works arc kept in Stock, in law calf andother lindings. 119, CHANCERY LANE, LONDON, W.C. 21 PAWNBROKERS.— Turner's Pawnbrokers' Act, 1872.— With Explanatory Notes. By FRANCIS TURNER, Esq., Bar- rister-at-Law, Author of the "Contraict of Pawn." 12mo, 1873. Nat, 2s. PERSONAL PROPERTY. — Smith's Real and Personal Property. — A Compendium of the Law of Real and Personal Property Primarily Connected with Conveyancing ; Designed as a Second Book for Students, and as a Digest of the most useful Learning for Practitioners. By JOSIAH W. SMITH, B.C.L., Q.C., Judge of County Courts. Fourth Edition. 2 vols. 8vo 1870. II. 18s. PETTY SESSIONS.— Stone's Petty Sessions Practice.— With the Statutes, a list of Summary Convictions, and an Appendix of Forms. Seventh Edition. By THOMAS BELL, and LEWIS W. CAVE, of the Inner Temple, Esqrs., Barristersat-Law. 12mo. 1803. 18s. PLEADING,— Archbold.— Fit/c " Criminal." Bullen and Leake's Precedents of Pleadings.— Precedents of Pleadings in Actions in the Superior Courts of Com- mon Law, with Notes. By EDWARD BULLEN, Esq., and STEPHEN MARTIN liEAKE, Esq., Barristersat-Law. Third Edition. 8vo. 1868. \l. lis. M. Stephen on Pleading. — A Treatise on the Principles of Pleading in Civil Actions ; comprising a Summary Account of the whole proceedings in a Suit at Law ; being the Seventh Edition of Mr. Serjeant Stephen's work under that title, with Alterations adapting it to the Present System. Seventh Edition. By FRANCIS F. PINDER, BaiTister-at-Law. 8vo. 186G. 16s. POOR LAW.— Davis' Treatise on the Poor Laws.— Being Vol. IV. of Burn's Justice of the Peace. 8vo. 1869. 1/. lis. 6c/. POWERS. — Farwell on Po>Arers. — A Concise Treatise on Powers. By GEORGE FARWELL, B.A., of Lincoln's Inn, Bar- rister-at-Law. 8vo. 1874. 1/. Is. " We recommend Mr. Farwell's book as containing within a small compass what would otherwise have to be sought out iu the pages of hunurcds of confusing reports," — The Laic, November, 1874. PRINCIPAL AND AGENT.— Petgrave's Principal and Agent. — A Manual of the Law of Principal and Agent. By E. C. PETGRAVE. 12mo. 1857. 7s. M. PRIVY COUNCII Lattey's Handy Book on the Prac- tice and Procedure before the Judicial Com- inittee of Her Majesty's Most Honourable Privy Council.— By ROBERT THOMAS LATTEY, Attor- ney of the Court of Queen's Bench, and of the High Court of Bengal ; and Advocate of the Courts of British Burmah. 12mo. 1869. 6». PROBATE.— Browne's Probate Practice : a Treatise on the Principles and Practice of the Court of Probate, in Contentious and Non-Contentious Business, with the Statutes, Rules, Fees, and Forms relating thereto. By GEORGE BROWNE, Esq., B.arrister- at-Law. (Author of " Practice for Divorce and Matrimonial Causes.") Svo. 1873. 1/. l.s. "A cursory glance through Mr. Browne's work shows that it has been compiled with more than ordinary ceire and iutelligeiice. We should consult it with every contidence, and consequently recommend it to those who require au instructor iu Probate Court prac- tice." — Late Timex, June 21, 187;j. *,* All itaml-anl Law Works are Iqit in Siod; in law calf and other bindings. 22 STEVENS AND SONS' LAW PUBLICATIONS. PROBATE— Contiinieil. Dodd and Brooks' Probate Court Practice.— The I^aw and Pnictico of the Court of Probate, Contentious and Common Form: u-ith the Pvules, Statutes and Forms. By PHILIP WILLIAM DODD, SoUcitor, and GEORGE HENRY BROOKS, Proctor in Doctors' Commons. 8vo. 18G5. II. lis. Gd. PUBLIC HEALTH.— Chambers' Sanitary Acts Amend- ment Act, 1874. Bv GEORGEF. CHAMBERS, Barrister- at-Law. Imperial Svo. 1874. Kett, 2s. 6d. Chambers' Digest of the Law relating to Public Health and Local Governinent.— With notes of 1073 leading Cases. Various official documents ; precedents of By-laws and Regulations. The Statutes in full. A Table of Offences and Punishments, and a Copious Index. Seventh Edition, enlarged and revised Imperial Svo. 18». FitzGerald's Public Health Act, 1875.— The Law relating to Public Health and Local Government, a.s contained in the Public Health Act, 187;"), with Introduction and Notes, showing all the alterations in the Existing Law, with reference to the Cases, &c. By GERALD A. R. FITZGERALD, Esq., of Lincoln's Inn. Ban-ister-at-Law. {Nearly ready). PUBLIC LAW*— Bo^^^yer's Comnientaries on Uni- versal Public Law.— By Sir GEORGE BOWYER, D.C.L. Royal Svo. 1854. \l. Is. QUARTER SESSIONS.— Pritchard's Quarter Sessions. The Jurisdiction, Pi-actice, and Procedure of the Quarter Session.s in Criminal, Civil, and Appellate Matters. By THOS. SIRRELL PRITCHARD, of the Inner Temple, Barrister-at-Law, Recorder of Wenlock. Svo. 1875. 21. 2s. "We congratulate Mr. Prltchard on the Btate of order he has produced out of the chaotic mass he has dealt with, and we think much credit is due to him for his evident painstaking."'— iaic ycMrnai, Ai)ril24, 187.5. " We can coufidentally 8.ny that it iswritten throughout with clearness and iutelligeocc, and that both in legislation and in case law it is carefully brought down to the most recent (XnKt.'—Solicitars Journal, ilay 1, I87;>. RAILWAYS.— Bro-wne.— Fic/e " Carriers." Lely's Rail^A/ay and Canal Traffic Act, 1873.- And (jther Railway and Canal Statutes ; with the General Orders, Forms, and Table of Fees. By J. M. LELY,Esq., Barrister-at-Law. Post Svo. 1873. 8s. "This book contains all that Kuch a book should contain. The arrangement is clear and convenient, and from it at a glance can be seen the subject matter of complaint, the deciBiou of the Court, and the ground of each decision.— Zaw Magazine, April, 1874. Simon's Law relating to Railway Accidents, including an Outline of the Liabilities of Railway Companies aa Carriers generally, concisely Discussed and Explained. 12ino. 1862. 3s. REAL PROPERTY.— Dart.— Vide " Vendors and Purchasers. Leake's Elementary Digest of the La^w of Pro- perty in Land. — Containing — Introduction. Part I. The Sources of the Law. Part II. Estates in Land. By STEPHEN MARTIN LEAKE, Barrister-at-Law. Svo. 1874. 22s. *,* The above forms a complete lntrod\iction to the Study of the Law of Real Projierty. Shelford's Real Property Statutes. — Eighth Edition. By THOMAS H. CARSON, ICsq., of Lincoln's Inn, Barrister- at-Law. Svo. 1874. 11. 10s. *^* All stamlard Lav Worls arc Iqjt in Stocl; in knv calf and other bindings. 119, CHANCERY L\NE, LONDON, W.C. 23 REAL PROPERTY -Continued. Smith's Real and Personal Property.— A Com- pendium of the Law of Real and Personal Property, primarily connected with Convej'ancing. Designed as a second book for Students, and as a digest of the most useful learning for Practi- tioners. By JOSIAH W. SMITH, B.C.L., Q.C. Fourth Edition. In two convenient volumes. 8vo. 1870. 11. IBs. "As a refresher to the memoiy, and a repository of informatioa that is wanted in daily practice, it will be found of great vaXne." —Jurist. "It will be seen .''rom this outline that the work is extremely well planned; the topics are arranged in the natural order as they iiow out of one another, and thus immensely aid the reader's memory. He writes like a man who is master of his theme, clearly and con- cisely." — Laio Times. " A portly, admirable volume. ... He has given to the student a book which he may read over and over again with profit and pleasure." —iaeo Times. "The work before us will, we think, be found of very great service to the practitioner. — Solicitor^ Journal. " By far the most valuable of the advanced text books on Conveyancing is the thick volume of Mr. J. W. Smith. ... I know of no volume which so entirely fulfils the requirements of a student's text book.' — From Dr. IIollit"s Lecture. [The first three editions were in one vol.] RECORD AND WRIT,— Braithwaite's Record and Writ Practice. — With Practical Directions and Observations. By T. W. BRAITHWAITE, of the Record and Writ Clerks' Office. 8vo. 1858. 18s. REFEREES' COURT.— V/ill's Practice of the Referees' Courts in Parliament, in regard to Engineering Details, Efficiency of Works, and Estimates, and Water, and Gas Bills ; with a Chapter on Claims to Compensation. By JOHN SHIRESS WILL, Esq., Barrister-at-Law. Svo. 1866. 1/. Is. REPORTS.— Vide pages 26-7. ROMAN LAW.— Cumin.— F/c/e "CivU." Greene's Outlines of Roman La^A^.— Consisting chiefly of an Analysis and Summary of the Institutes. For the use of Students. By T. WHITCOMBE GREENE, B.C.L., of Lincoln's Inn, Barrister-at-Law. Third Edition. Foolscap Svo. 1875. 7s. 6d. Phillimore's Introduction to the Study aiid History of the Roman Law.— 8vo. 1848. 15s. SAUNDERS' REPORTS.— Williams' (Sir E. V.) Notes to .Saunders' Reports.— Notes to Saunders' Reports. By the late Serjeant WILLIAMS. Continued to the present time by the Right Hon. Sir EDWARD VAUGHAN WILLIAMS. 2 vols. Royal Svo. 1871. 21. 10«. " Instead of the old text of ' Saunders' Eeports,' which contains so large an extent of what is now uselesB matter, we have here an abridgment of the several cases, to which the old note* are applied. The Pleadings alio are omitted, aa entirely without valne in the existing statfl of the law. The present work is in fact an adaptation of ' Williams Sanuders' to the law as it now exists ; and this is effect«d In a manner advantageotis for praotical pnrpoeee, but without rendering less solid the learning which b here so amply displayed."— iaw JfasroniK!, Angust, 1871. SETTLED ESTATES.— Brickdale's Leases and Sales of Settled Estates Act.— 19 & 20 Vict., c. 120, and the General Orders and Regulations relating thereto. With an Intro- duction and Notes, and a Supplement, containing the Amending Act. 21 and 22 Vict., c. 77, and the Cases and Decisions down to the end of Easter Term, 1861. By M. I. FORTESCUE BRICKDALE, of the Middle Temple and Lincoln's Inn, Barrister-at-Law. r2mo. 1861. 5,, *,* All standard Law Works arekcpt in Stod; in lav: calf and other hindings.. 24 STEVENS AND SONS' LAW PUBLICATIONS. SHIPPING, and ride " Admindty." Greenhow's Shipping Law Manual. — A concise Treatise on the Law governing the Interests of Ship Owners, Merchants, Masters, Seamen, and other persons connected with British ships, together with the Acts of Parliament, Forms, and Precedents relative to the subject, being specially intended for popular use in Seaport Towns. By WILLIAM THOMAS GREENHOW, of the Middle Temple, Esq., Barrister-at-Law. 8vo. 1862. 20s. STAMP LAWS.— Tilsley's Stamp Laws.— A Treatise on the Stamp Laws, being an Analytical Digest of all the Statutes and Cases i-elating to Stamp Duties, mth practical remarks thereon. By the late HUGH TILSLEY, Assistant Solicitor of Inland Revenue. Third Edition. With Tables of all the Stamp Duties payable in the United Kingdom after the 1st January, 1871, and of Former Duties, &c., &c. By EDWARD HUGH TILSLEY, of the Inland Revenue Office. Svo. 1871. 18«. STATUTES, and vide "Acts of Parliament." Biddle's Table of Statutes. — A Table of References to imrepealed Public General Acts, arranged in the Alphabetical Order of their Short or Popular Titles. By JOHN BIDDLE, of the Master of the Rolls' Chambers. Second Edition, much Enlarged, and Corrected (by a Supplement) to the end of the Session, 1870 ; including References to all the Acts in Chitty's Collection of Statutes. Royal Svo. 1870. (Published at 9s. 6d.) A'ett,2s. 6d. 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