LIBRARY UNIVERSITY OF CALIFORNIA SAN OltGO ii A HANDBOOK OF CHURCH LAW THE * PARSON'S HANDBOOK' SERIES OF PRACTICAL BOOKS FOR CHURCH WORKERS General Editor REV. PERCY DEARMER I. THE PARSON'S HANDBOOK. (On the Management of the Parish Church and its Services.) By the Rev. PERCY DEARMER, M.A. Illustrated. Crown 8vo. Cloth gilt, 6s. net. $th ed. II. A HANDBOOK OF CHURCH LAW. By the Rev. T. A. LACEV, M. A., Vicar of Madingley, author of The Elements of Chris- tian Doctrine, etc. Fcap. 8vo. Cloth gilt, y. 6d. net. [Ready. III. THE CATECHIST'S HANDBOOK. By the Rev. J. N. NEW- LAND-SMITH, M.A., Assistant-Inspector of Schools for the Diocese of London. [In the Press. THE DISTRICT VISITOR'S HANDBOOK. By Miss GERTRUDE TUCKWELL, author of The State and Its Children, Indus- trial Work and Industrial Laws, Hon. Sec. of the C. S. U. Research Committee. [In Preparation. A HANDBOOK FOR MISSIONERS AND EVANGELISTS. By the Rev. PAUL BULL, M.A., of the Community of the Resur- rection, Mirfield. [In Preparation. THE TOWN PRIEST'S HANDBOOK. By the Rev. W. B. TREVELYAN, M.A., Vicar of S. Matthew's, Westminster, author of Sunday Observance, etc., and the Rev. G. P. TREVELYAN, M.A. , late Vicar of S. Alban's, Birmingham. [In Preparation. A HANDBOOK OF GHOSTLY COUNSEL AND ADVICE. By the Rev. ARNOLD PINCHARD, Vicar of S. Jude's, Birmingham. [In Preparation. Other Volumes proposed are : The Choirmaster's Handbook. A Sacristan's Handbook. The Village Priest's Hand- ! A Handbook of Guilds and book. A Handbook for Preachers. Clubs. A Churchwarden's Handbook. A Small Handbook for Ser- A Medical Handbook, vers. A HANDBOOK OF CHURCH LAW BY THE REV. T. A. LACEY, M.A. LONDON GRANT RICHARDS 48 LEICESTER SQUARE 1903 Edinburgh : Printed by T. and A. CONSTABLE EDITOR'S PREFACE WHATEVER differences of opinion there may be upon other matters among Churchmen (and those differences are less than is often imagined, and are lessening still), all are agreed that we suffer greatly from want of priestcraft. While the craft of a doctor, lawyer, or engineer is the subject of long training, assisted by handbooks of the most severely practical nature, the ministers of the Church are launched upon their most difficult and varied work with but the shadow of a preparation, and they spend a large part of their career in learning how to do this work. Many never learn, and few indeed can hope to become masters of a craft that requires so many forms of spiritual, intellectual, social, vi A HANDBOOK OF CHURCH LAW and artistic knowledge. The most successful priests learn through many experiments and failures to do certain things well by the time they are middle-aged, and a few deacons are fortunate enough to be trained under them. But for the most part we blunder along as best we can, and, too often, die amateurs. These handbooks cannot pretend to do for the parson what experience and a spiritual life alone can do. But their object will be to help him to start on the right lines, and to offer him the results which others have found to be the best as the result of their own experi- ments and failures. They are the work of writers who have specialised in certain direc- tions, and who venture to offer their own experience, enforced by that of other workers in the same fields, for the guidance of those whose duty it is to master the manifold activities of parish work. In the present poverty of tradition no writer can lay claim to any finality ; but at least all who take part PREFACE vii in this series will endeavour to be exceedingly practical. It is, however, by no means only for the clergy that these handbooks are intended. As we are emerging from the sloth, so we are emerging from the sacerdotalism of the Georgian era. Church work is no longer regarded as the sole concern of the priest. Readers and Deaconesses, Sisters and Evan- gelists, Clerks and Sacristans, Nurses and District Visitors, Churchwardens and Side- men, Catechists and Teachers, Choirmasters and Choristers, Secretaries and Organisers of all kinds, are each year labouring more ener- getically and more intelligently in the Lord's vineyard. Upon them how much of the future of England depends ! A skilled clergy, co- operating with an ever-growing band of trained workers such as these, may indeed look with- out misgiving upon the task that lies before us, thrilling and inspiring us by its very magnitude. viii A HANDBOOK OF CHURCH LAW In conclusion I would say that we cannot hope to succeed in our little contribution to the work without the help of many others, who can add their experience to our own. We therefore ask for suggestions and corrections, in order that we may make the series as complete as possible, and may improve those volumes which are already published should other editions be called for. PERCY DEARMER. S. MARY THE VIRGIN, PRIMROSE HILL, N.W. PREFACE This little book will not be likely to tempt any one to the perilous folly of acting as his own lawyer. It is too obviously inadequate, I hope that its true purpose may be equally recognisable. It is an attempt to state the principles underlying the practice of Church Law, and at the same time to give the kind of information about that practice which ought to be the familiar possession of all concerned in the administration of the Church. To set out the principles without practical illustration is to lose oneself in generalities. To set out the practice without showing its relation to the principles is to invite men into a maze without a clue. I will explain two points of nomenclature in regard to which I have tried to be consistent. The English language has no word answering Ix x A HANDBOOK OF CHURCH LAW exclusively to the Latin Jus, the French Droit, the German Recht. We have only the word Law, which does manifold duty. I have tried to avoid using this word Law in the sense of a particular enactment, reserving it for the sense 0f]us. The proper title for our subject is Jus Canonicum, Canon Law, but this term is in England so generally associated with a particu- lar and temporary development of the Christian system that, to avoid misunderstanding, I have reluctantly imitated the German Kirchenrecht and spoken generically of Church Law. / can only apologise for the verbal anomaly involved in making Ecclesiastical Law a division of Church Law. My other care has been to maintain a verbal distinction between what is allowed or required by Church Law and what is alloived or required by the Laws of England. For this purpose I have drawn upon the wealth of the English language in synonyms, using the word lawful in the former sense, the words legal and legally PREFACE xi exclusively in the latter sense. The distinction is so important, so obscure at times, and so frequently forgotten, that a difference of terms, however arbitrary, may be advantageous. I have tried to keep to my subject, not invading the province of the moralist or of the ritualist. The question for me is not what ought to be done or what may be done with an approving conscience, but what is required or allowed by law. The conscience may demand much more, or may forbid, in certain circum- stances, what in itself is lawful. For the treatment of these topics, as also for advice about the details of public worship and the administration of the Sacraments, the reader is referred to other books. T. A. L. MADINGLEY, February 12, 1903. CONTENTS CHAP. PAGE I. THE NATURE OF CHURCH LAW. ... I II. ECCLESIASTICAL CENSURES .... 14 III. THE DEVELOPMENT OF ECCLESIASTICAL LAW . 28 IV. THE MATERIALS OF ACTUAL CHURCH LAW IN ENGLAND 42 V. OF PERSONS IN THE CHURCH $O VI. THE ORGANISATION OF THE CHURCH . . 66 VII. PROMOTION OF BISHOPS AND CURATES . . 97 APPENDIX TO CHAPTERS V VII . . . 129 VIII. OF ECCLESIASTICAL JURISDICTION . . . 137 IX. OF PASTORAL CARE 169 X. OF PUBLIC WORSHIP 185 XI. ADMINISTRATION OF THE SACRAMENTS AND OTHER RITES OF THE CHURCH . . . 2O5 XII. OF ECCLESIASTICAL PROPERTY .... 243 APPENDIX TO CHAPTERS XI XII . . . 283 INDEX 287 A HANDBOOK OF CHURCH LAW CHAPTER I . If THE NATURE OF CHURCH LAW THE Christian Church is a society of men, united under the headship of Jesus Christ, reigning in Heaven. They are gathered into this society for the purpose of developing the perfect human life. This perfection is attain- able only by the grace of God, and grace is accordingly poured out on the Church, and thereby on all the members of the Church. But the grace of God does not act mechani- cally ; it is effective only when the will of the individual man responds to it and works with it to the forming of character. For this formation of character the social life of the Church is designed ; it proceeds by way of what St. Augustine calls correptio, the A 2 A HANDBOOK OF CHURCH LAW correction of manners by rule, by exhortation, and by discipline. No society can exist without laws regulating the social conduct of the members. Every well-devised law regards the chief end of the society in which it is enacted ; but some laws do this directly, others indirectly and by way of guarding the society itself. In the latter kind are laws of constitution or organisation. The Church accordingly has laws of either kind ; laws which directly regard the formation of the Christian character, and laws which are intended to promote the wellbeing and effectiveness of the Christian society. Law is either divine or human. It is either imposed by the Creator, or enacted in each several human society by a sufficient legis- lature. In ordinary civic communities the distinction may be otherwise drawn as between natural and positive law. Natural law will then be that which is imposed on man by the nature of his being; not indeed that which he most easily and most generally accepts as binding, but that which is found to be necessary THE NATURE OF CHURCH LAW 3 for the best development of his powers : it is recognised as divine when we believe that God intends this development of his creatures. Positive law will be that which is enacted by the legislature of each society in effort after the best development of human life. But if a particular society be established with the help of a divine revelation the distinction will not be quite the same. Divine law will now in- clude some positive enactments made by reve- lation : human law will consist of other posi- tive enactments, made, with whatever divine guidance, by the legislature of the society. The Jewish polity of the Old Testament had ordinances given by revelation, which were unalterable except by further revela- tion, and were therefore spoken of, while the dispensation lasted, as no less unchanging and eternal than the precepts of the natural law. When the Lord Jesus Christ established his Church of the New Testament, he gave to this society also certain positive laws, few and simple, which no human authority can abrogate. There is therefore in the Church a 4 A HANDBOOK OF CHURCH LAW Divine Law, consisting of those rules of nature which are common to all societies and of the positive precepts given by the Founder : there is also a Human Law, consisting of precepts given by those having authority in the Church. This human law of the Church is distinguished from the positive laws of civic communities by the name of Ecclesiastical Law. The distinction between Divine Law and Ecclesiastical Law is admirably illustrated by St. Paul's regulation of marriage in his first epistle to the Cor- inthians : in one case he says, ' I give charge, yea not I, but the Lord ': in a case immediately following he writes, ' To the rest say I, not the Lord.' The Divine Law was part of the sacred tradition committed to the Christian society from the first. Like the tradition of doctrine it was carefully guarded, and within a century was sufficiently, though undesignedly, enshrined in those occasional writings which we reverence as the books of the New Testament. Unlike the tradition of doctrine it could receive additions in the form of Ecclesiastical Law THE NATURE OF CHURCH LAW 5 additions which begin from the earliest years of the Church, and are varied according to the needs and possibilities of each succeeding age. By whom is this law made? What is the legislature of the Christian Church ? The question is agitated ; but apart from some obscure details the answer is not difficult. There are certain passages in the Gospels where the Lord seems to be giving the Apostles the legislative power of binding and loosing. It is objected that no definite restriction of the power to the twelve is indicated : the words may apply to the whole body of the Church in which the legislative power would naturally be inherent were there no such restriction. This objection has little weight when we find the Apostles, and those that are associated with them in their ministry, per- emptorily exercising the power in question. It is a graver objection that in these passages the Lord seems to be speaking rather of the interpretation of the Divine Law, than of the power to impose Human Law. But grant- ing that in the Gospel there is no express 6 A HANDBOOK OF CHURCH LAW appointment of the Apostles to legislative power, granting even that no Divine Law to this effect was contained in the Christian tradi- tion, we have still to observe that the power was exercised without question by the Apostles, singly or collectively according to circum- stances. They took others into their company, by what process we need not now consider, and their order thus became perpetual. If they were the legislature of the Church in the first instance, and if no constitutional change has been made since, their successors form the legislature now. It does not follow that their legislation is arbitrary. There are obscure indications that in the first age the multitude or the whole Christian people was consulted, and that laws would not lightly be imposed without general consent. Yet, on the other hand, no reader of St. Paul's epistles to the Corinthians can fail to see that in case of need the Apostle was prepared to impose his rule even upon the unwilling Church. A survey of succeeding ages shows the bishops, as successors of the Apostles, ruling the Church THE NATURE OF CHURCH LAW 7 with supreme authority, but not without regard to the wishes of the ruled. There has never been a representative system, by which the people of the Church may definitely speak in the matter of legislation, but means have never been wanting for expressing the popular will, and chief among these we find the power of passively rejecting a law. Customary law is familiar to all societies. It is in most the background of legisla- tion. But its value, as compared with that of written law formally enacted, is variable. The customary Common Law of England is at once superseded by the provisions of a statute. Yet even here there are statutes which have been a dead letter from the date of their enactment : they are not enforced in the face of a hostile public opinion. But in the legislation of the Church, Custom has a more solid value more definitely recognised. Canons and Constitutions may be made by the legis- lature, but to obtain the value of Law they must be published to the faithful and also put in practice. In technical language they must 8 A HANDBOOK OF CHURCH LAW be 'promulged and put in ure.' But the practical use of such an enactment may be impeded by the passive resistance of the faithful, and canonists will then speak of it as inoperative because not received. For example, some of the constitutions of the Council of Trent were not received in France, though the general authority of the Council was allowed without question, and these constitutions did not become law for the Church in France. The power of Custom is not exhausted in this passive rejection of change. It is a flexible organ of legislation. It is regarded as a continuous expression of the will of the community ; and therefore a growing custom which is not formally reprobated by those in authority, as soon as it is well settled and shown to be no mere fluctuating fashion, becomes established as Law. It will even supersede written law. A canon or constitu- tion so superseded is said to have fallen into desuetude. Canonists have laid down rules of varying stringency by which to decide when desuetude is accomplished, but all recognise THE NATURE OF CHURCH LAW 9 the principle. In other systems of law there may be an appearance of desuetude ; among the Laws of England there are statutes which are obsolete owing to the force of public opinion ; but even the most forgotten of these may be revived. In Ecclesiastical Law desuetude effects a real abrogation. Such abrogation may be either general, or local and particular. A canon may remain valid in one region and fall into desuetude elsewhere. When the canonists of the Middle Ages worked out their system of law for the whole Western Church, this last effect of custom became so important that the word consuetude meant for them, in ordinary parlance, nothing else but Local Custom overriding General Law. Two causes would seem to have contributed to this dominance of custom in Ecclesiastical Law. One springs from the character of the ecclesiastical legislature, the other from the fundamental nature of Church Law. Some flexibility of legislation is necessary to the wellbeing of any society. Custom is a io A HANDBOOK OF CHURCH LAW delicately flexible organ of legislation, but written law stands rigid unless there is a legislature always ready for action. The Statute Law of England is in continual flux with the continuous activity of Parliament. But the legislature of the Church is not of this kind. It is in the hands of the bishops, severally and collectively. A bishop can legislate severally for his own diocese, but only within very narrow limits ; he is re- strained both by the general law of the Church and by various external hindrances. The bishops of a province in Synod have a larger field, but are still under close limita- tions. A larger Council has vague powers, but is assembled with difficulty for a great need. There are parts of the Church where local legislation is fairly vigorous ; but for the most part the written law of the Church is extremely rigid. This having been from very early days the character of the ecclesiastical legislature, the necessary flexibility of Law has been secured only by a generous recognition of Custom. Those churches indeed which bow THE NATURE OF CHURCH LAW n to the modern Papacy acknowledge in the Roman Court a readily accessible legislature of almost unlimited powers, and for the canonists of these churches, Custom is losing importance. Elsewhere it remains dominant. The second cause of its dominance is to be found in the character of Church Law. Ec- clesiastical Canons and Constitutions are not enforced by penalties or constraint Canons are rules of conduct, Constitutions are detailed directions. They are imposed only on the moral sense of the faithful. The correction of manners by ecclesiastical discipline implies always the consent of the disciple. This fundamental principle was established by the Lord when he said : ' If he refuse to hear the Church, let him be unto thee as the gentile and the publican.' He who will not obey the law of the society may be treated as ex- cluded from membership in the society, may be excommunicated ; but there are no means of compelling obedience. There are some loose forms of civil society in which the legislature and judiciary are left thus without 12 A HANDBOOK OF CHURCH LAW material force : they can but declare the law and leave it to its effect on the individual con- science ; it is then sometimes enforced by a strong public opinion, or by superstitious terrors, sometimes by individual vengeance, which leads rapidly to anarchy. The rules of the Church have at times been enforced by such adventitious aids, with no small injury to religion : in themselves they have no element of coercion. It is therefore the easier for them to become a dead letter. Recog- nising this fact, and systematising its results, canonists have formulated those principles of reception and desuetude which make Custom dominant in Ecclesiastical Law. We are here considering the Law of the Church in its purity. In practice it is con- stantly found mixed with other law. Members of the Church are also members of other human societies, to the laws of which they are subject, and many provisions of Church Law cannot be observed, cannot even be under- stood, without reference to other laws. They affect rights of property, or personal privi- THE NATURE OF CHURCH LAW 13 leges, which are entirely subject to the law of civil society. But a clear understanding of the subject must begin from the definition of Church Law in itself. In sum, Church Law is the system of regu- lations by which the society of the Christian Church and the religious lives of its members are ordered and disciplined : it is partly divine, partly human or ecclesiastical : the Ecclesi- astical Law consists of Canons and Constitu- tions enacted by the bishops or pastors of the Church, and of Customs, local or general, which under certain conditions override the written law. CHAPTER II ECCLESIASTICAL CENSURES WE have said that Church Law contains in itself no element of coercion. Our Lord laid down this principle when he said to Pilate : ' My kingdom is not of this world ; if my kingdom were of this world, then would my officers fight, that I should not be delivered to the Jews ; but now is my kingdom not from hence.' Obedience is not to be enforced by compulsion. But a law which is not enforce- able is imperfect from the social point of view ; it is little more than a guide to the individual conscience. The Christian society has means of enforcing, though not of compelling, obedi- ence. In the last resort, as we have seen, the offender can be expelled from the society. While still within the fellowship of the society he may be required to submit himself to cor- 14 ECCLESIASTICAL CENSURES 15 rective discipline, for his own good and for the good of the community. In the Epistles to the Corinthians we find St. Paul imposing such correction upon the man guilty of incest, with obvious regard to these two ends, and the Apostle speaks more generally in other places of a like exercise of authority. These corrective measures are called Ecclesi- astical Censures. The Latin word censura stood for the office and function of the Censor, the magistrate by whose judgment every citizen was awarded his proper place in the complicated structure of Roman society, being promoted or degraded as occasion might re- quire. The discipline of the Church, more especially in the West, seems to have been formed on this model. The Christian society was ordered in various ranks ; the clergy in their several grades ; the faithful laity, the Xao? or plebs, that is to say the commons of the sacred kingdom ; below these the catechumens, who were preparing for admission to the privileges of the faithful. This being so, the normal form of ecclesiastical censure was permanent 1 6 A HANDBOOK OF CHURCH LAW or temporary degradation of an offender to the rank next below that which he occupied. Thus we hear of a bishop being condemned to rank with presbyters, a clergyman with the laity. A layman put under censure did not fall actually into the class of catechumens, for his baptism was not annulled, but he passed into a corresponding position of penance. Within this position again were several grades, as a penitent approximated to restoration or fell farther away from the privileges of the faithful. Common to all penitents was ex- clusion, more or less complete, from participa- tion in the divine worship of the Church. Such is the primitive and essential char- acter of ecclesiastical censures. They are imposed by an immediate superior ; on the faithful and the clergy by their own bishop or his deputy ; on a bishop by a council of other bishops, or if law and custom so allow, by a single bishop of superior dignity. In certain cases an appeal may lie to a higher authority. Excommunication, or entire severance from ECCLESIASTICAL CENSURES 17 the Christian community, is the ultimate censure. The meaning of this term is con- fused, however, by a secondary use. One bishop, holding another bishop grievously at fault, may refuse to hold any communication with him in sacred things : he has, perhaps, no immediate authority over him, and cannot put him to censure, but he holds aloof to express his disapproval. There are numerous instances of this procedure from the third to the sixth century. When the bishop of one of the greater sees took this course it usually led to the holding of a council, in which the offender was either condemned or cleared of the charges laid against him. Otherwise a com- plete schism between the parts of the Church holding by the opposed bishops would ensue ; the most striking example of which is the separation between the churches of Rome and Constantinople which has continued from the time when Leo ix. and Michael Cerularius denied each other communion, in the year 1054, down to our own days. Such unhappy separa- tion, though the parties concerned are commonly i8 A HANDBOOK OF CHURCH LAW said to excommunicate one another, is not in the nature of ecclesiastical censure, and should be carefully distinguished from true excom- munication. Ecclesiastical Courts^ or Courts of Spiritual Jurisdiction, were gradually evolved as the discipline of the Church became more formal and was digested into rules of law. They were formed after the model of Civil Tribunals, and have existed in great variety, with an elaborate system of appeals, of which there will be more to say below. It is enough to say here that their one essential function is to impose or relax ecclesiastical censures. Indulgences are a natural, though not an essential, part of such a disciplinary system as we are considering. They are remissions of censure, allowed for good cause by the same authority which imposes the censure. In particular an indulgence is a remission, partial or entire, of the disciplinary degradation to the rank of penitents required by the law of the Church for certain offences. It may thus be an indulgence for a given number of days, ECCLESIASTICAL CENSURES 19 diminishing the period of penance, or a plenary indulgence, remitting the whole. The abuse of indulgences, on the part both of those granting and of those receiving them, during the later Middle Ages, contributed more than anything else to destroy the disciplinary system of the Church. One of the worst abuses, the grant of indulgence for a money payment, continued to be the practice of the English Ecclesiastical Courts, under the name of commutation of penance, down to the middle of the nineteenth century. Criminal procedure against those under censure began as soon as the empire became Christian. Bishops and priests degraded on the charge of heresy were condemned to exile from the time of Constantine. In the year 385, Priscillian and his companions, being in the same case, were put to death by the Emperor Maximus. This became the settled policy of Christendom. It was represented in England by the writs de haeretico comburendo and de excommunicato capiendo. These were granted 20 A HANDBOOK OF CHURCH LAW from the King's Courts as of common right, the former for the execution by the sheriff of a person convicted in a spiritual court of heresy, the latter for the imprisonment of a person excommunicated on any other count. This procedure does not belong to Church Law, and need not detain us, except for the remark that it proved in the long-run most injurious to ecclesiastical discipline ; for since the censures of the Church carried with them pains and penalties inflicted by the civil arm, and since it is manifestly unjust to punish any man twice for the same offence, the King's Courts restrained the imposition of ecclesi- astical censure for offences which they them- selves were able and willing to punish. The writ de haeretico comburendo was abolished by statute (29 Car. ii. c. 9) in the year 1676; for the writ de excommunicato capiendo was substi- tuted in the year 1813 (53 Geo. iii. c. 127) a writ de contumace capiendo, which is in one respect more stringent, since the ecclesiastical judge, without proceeding to excommunication, may pronounce a person contumacious, signify the ECCLESIASTICAL CENSURES 21 same to the King in Chancery, and at once have a writ issued for the imprisonment of the delinquent. Several priests were imprisoned under this writ in the years 1876-81, but it has not been issued against a layman for many years past. Ecclesiastical offences are such acts as call for censure. They are (i), notorious immorality which scandalises the faithful ; (ii) heresy, or the reckless and insistent assertion of doubtful doctrine ; and (iii) contumacious disregard of lawful commands. Of late years, persistent neglect of his pastoral duties by a curate has taken a prominent place among such offences. If it be not treated apart by itself, it may be referred either to the first or to the third of the above categories. The spiritual courts are practically hindered from dealing with many offences within the first category by that jealousy of the King's Courts above referred to, which can hardly be removed so long as the writ de contumace capiendo remains a possible instrument of punishment. The censures actually in use, or available for 22 A HANDBOOK OF CHURCH LAW use, at the present day in England are as follows : Admonition is not in the stricter sense of the word a censure ; but it ranks among censures because it is ordinarily the termination of a formal disciplinary process. Every such pro- cess is begun pro salute animae, with a view to the soul's health of the person incriminated. Unless in very flagrant cases, it is thought sufficient in the first instance to admonish the offender, and with this admonition the process ends. If the offender fall again into the same fault after admonition, a fresh process will end in more severe censure. Deposition from holy orders, or degradation, is the definite removal of an offender from the rank of the clergy to that of the laity. The sentence is pronounced with great solemnity by the bishop, who is attended, according to the sacred canons (Code of 1603, can. 122), by several of his clergy. The deposed clerk does not lose the character and power of Order, which are indelible (p. 63), but he forfeits all right to exercise the ministry, ECCLESIASTICAL CENSURES 23 unless he be reinstated by the same authority which has degraded him. This censure, long disused, has lately been revived in practice. Deprivation is a minor degradation, remov- ing the delinquent not entirely from the exercise of the ministry but from its exercise in a particular place. A bishop is thus removed from his diocese, a curate from his parish, and is said to be deprived ab officio. There is usually a benefice annexed to the office, and he is deprived also a beneficio, but of this elsewhere. A curate holding a terminable licence may be summarily removed by the bishop, but this is only an administrative order and does not involve censure. Suspension is a temporary deprivation from office or benefice for a fixed time, at the end of which time the suspended clerk resumes his position. Irregularity is not in the strict sense of the word a censure, but it is similar in effect. It is an incapacity for the duties or offices of the priesthood, imposed by the law of the Church 24 A HANDBOOK OF CHURCH LAW on certain persons. It is thus either an im- pediment to ordination, or after ordination a restraint upon the exercise of the sacred ministry. Among the causes of irregularity commonly alleged are homicide, even if guilt- less, adultery, a second marriage, illegitimate birth, and extreme indebtedness. Disregard of a sentence of deprivation or suspension also induces irregularity ; and by a special English canon (Code of 1603, can. 113), any priest revealing facts made known to him in private confession becomes irregular. Since irregu- larity is a condition set up by positive law, it can be removed by dispensation (p. 146). Penance is a generic term covering all cen- sures, but it applies specifically to a mild form of discipline under which an offender is required to perform in public, usually at the church door, some act of humiliation, after which he is to be absolved and discharged of censure. Penance was imposed by the English ecclesi- astical courts down to the middle of the nineteenth century with little solemnity, and in a fashion that brought discipline into ECCLESIASTICAL CENSURES 25 discredit. It has since been disused, but may evidently be revived with more seemly circumstances. Minor excommunication is exclusion from reception of the Holy Communion. It is indicated in the rubric of the Book of Common Prayer, which directs the priest to warn certain persons not to present themselves for Com- munion : he must then, within fourteen days, present them to the Ordinary, who will pro- ceed against them by canonical process. It does not appear that a priest may actually exclude such persons, or on his own responsi- bility withhold from them the Sacrament if they present themselves. His authority ex- tends only to ' repelling ' or warning them not to approach. No Christian may be deprived of the Sacraments, save by sentence of excom- munication pronounced by a duly constituted judge on regular process. Interdict is a more severe censure, barring the offender ab ingressu ecclesiae, and so from all part in the public worship of the faithful. In the Middle Ages, by a gross abuse of this 26 A HANDBOOK OF CHURCH LAW censure, whole countries were laid under inter- dict for the fault of their princes. Major excommunication is the severest of all censures, cutting off the offender from all in- tercourse with the faithful, according to the words of St. Paul, ' with such an one, no not to eat' (i Cor. v. n). A person lying under the greater excommunication is denied even the rite of Christian burial. The above censures are imposed by adequate authority in foro externo, in a public tribunal, for offences open and notorious proved, that is to say, by confession of the delinquent or by sufficient evidence. This does not mean that they are enforced by external authority ; they are laid only on the conscience of the offender, and their social effect is produced only by their action upon the consciences of the faithful at large. But they are publicly imposed, and can be removed only with the same publicity. Judgment is said, however, more especially to be in foro conscientiae when a Christian submits himself by private confession to the ECCLESIASTICAL CENSURES 27 jurisdiction of a priest, who may impose and remove censures, enjoin penance, and give absolution, with complete privacy. Excommunication is in some cases said to be incurred ipso facto. This means that the censure must necessarily be imposed by the spiritual judge when the fact of delinquency is formally brought to his notice. It does not mean that the censure is actually incurred without the public action of a competent judge. There must be a declaratory sentence, openly advertising both the offender and the faithful at large of the censure imposed. Finally, it should be observed that all cen- sures are imposed pro salute animae, with a view to the repentance, and, if possible, the restoration of the delinquent. CHAPTER III THE DEVELOPMENT OF ECCLESIASTICAL LAW WE have distinguished Church Law into the two departments of Ecclesiastical Law and Divine Law. The latter is fixed and unalter- able, the former is of human institution, subject to growth and change. Like other systems of human law, it grew from small beginnings into a vast and complicated structure ; as in other systems, there has been some reaction towards simplicity. It is clear that from the first there were some canons and customs recognised throughout the whole Church ; there were also from very early times local canons in addition, and local cus- toms which sometimes over-rode the general law. A striking example is the custom in the province of Asia of fixing Easter on the fourteenth day of the moon, instead of observ- 28 ECCLESIASTICAL LAW 29 ing it, as in other parts of the Church, on the Sunday following. This custom eventually gave way to the general law ; so also did the peculiar law, whatever it may have been, by which the Bishop of Alexandria was appointed. The two cases illustrate the principle that a local custom must not be allowed to set aside the practice of the whole Church in a very grave matter. In matters of less importance it has constantly been allowed. The more important rules of the Church seem to have been digested in writing by various authors from the beginning of the second century. Fragments survive which were incorporated into later collections, some- times put forward as dating from the Apostles themselves. Such were the Canons of the Apostles, the Apostolic Constitutions, and kin- dred works. Earlier than these, a genuine document, as it seems, of the second or third century, are the Canons of Hippolytus. With the fourth century came a period of great Councils, in which many canons were adopted, seldom enacting anything new, but rather 30 recording the actual practice of the Church. The canons of seven such Councils, held at Ancyra, at Neocaesarea, at Nicaea, at Antioch, at Laodicea, at Gangra, and at Constantinople, dating between the years 314 and 381, were gathered into a collection which acquired the name of Codex Canonum Ecclesiae Universalis^ and which seems to have been expressly approved by the Council of Chalcedon in 451. The canons of Sardica, A.D. 347, of Ephesus, A.D. 431, and of Chalcedon, were afterwards added to this collection, as also were the supposed canons of the Apostles ; and from the Greek original a Latin translation was made, known as the Prisca, which was cur- rent throughout the greater part of the West, until the end of the eighth century. At Rome, however, about the year 530, Dionysius Exiguus made a new translation, to which he added certain canons of African Councils, and also a step which ultimately led to the gravest consequences the Decretals of the Roman popes from the time of Siricius (ob. 398). These Decretals were letters written ECCLESIASTICAL LAW 31 by the popes to bishops and others who consult- ed them, copies being preserved in the Roman archives. Their inclusion in this collection indicated that they were coming to be regarded as of equal authority with conciliar decrees. This volume, known as the Corpus Canonum, was held in the highest honour at Rome, and, after the year 787, chiefly through the influence of Charles the Great, its authority spread throughout the West, displacing the Prisca. At about the same period was completed the Codex Canonum Ecclesiae Orientalis, by the addition of the canons of the Council in Trullo, A.D. 692, and of the second Nicene Council, A.D. 787. This has always remained the standard authority of the Eastern Church. In the West, however, things went forward with rapid development. The law hitherto in force is usually known as Jus Ecclesiasticum antiquum. In addition to the written law we must suppose a vast mass of custom, varying to some extent locally, but not in grave matters. The differences of practice which caused such keen controversy between Scottish and Roman 32 A HANDBOOK OF CHURCH LAW missionaries in England turned on unimpor- tant details ; and the fact that so much was made of them shows what was the general uniformity of practice. The customs of the Church were affected by pressure of all kinds, and not least we must reckon with the legis- lation of Christian emperors. This was some- times directed expressly to ecclesiastical affairs: decrees of Gratian and Valentinian compelled other bishops to a deference towards the Bishop of Rome, which had great effect on the development of Church Law. If it be asked by what authority these hetero- geneous materials were imposed as law upon the Church, it can only be replied that they were in fact received as such. They expressed the general sense of the Church ; the expres- sion might be local, particular, accidental ; the sense was universal. At what date the False Decretals were written, who and of what country was their author, is uncertain. They were produced as authori- tative at the Synod of Quercy in the year 857. A collection of documents, attributed to an ECCLESIASTICAL LAW 33 unknown Isidore, contained, in addition to the genuine decretals published by Dionysius, thirty-five spurious letters purporting to be from popes of the second and third centuries, with many imaginary decrees of real or imagin- ary councils. An uncritical age received these with little demur, and the effect was revolu- tionary. The forgeries were, indeed, skilfully adjusted to what men were coming to regard as customary, and so they avoided patent innova- tion ; but they represented as dating from the first century that immediate jurisdiction of the Roman pontiff over all bishops which had been slowly making its way from the time of Valentinian, and that conception of the Pope as universal legislator for the Church which was hardly as yet on its way to general acceptance. In the former regard the forgery took effect at once ; in the latter regard it bore fruit for succeeding centuries. The Jus Canonicum Novum dates from the False Decretals. Other collections were made from time to time, which were finally superseded by the great work of Gratian, called Corpus c 34 A HANDBOOK OF CHURCH LAW Dtcrttontm, or simply Decretum^ which saw the light in or about the year 1150. This was not a mere collection of canons and decretals. Entitled by the author Concordia Canonum discordantium, it was a digest of all existing written laws under convenient headings. The False Decretals were freely used ; their autho- rity, indeed, was at that time unquestioned. The Decretum was an honest attempt to codify and systematise the existing law. Church Law throughout the West was in fact become an elaborate system, in connection with which two great principles are to be noted. A. The Papal Monarchy. No other word suffices ; for supreme authority, both legislative and judicial, was centralised in the Pope and his court. The origin of this conception is obscure. Some have sought it in the ancient Roman Pontificate, which exercised sovereign authority in religious matters over all Roman citizens. Annexed to the person of the emperor, the pontifical title and power was dropped by the Christian Caesars, and is supposed to have passed insensibly to the ECCLESIASTICAL LAW 35 Bishop of Rome. The title of Pontifex, how- ever, was borne by all bishops, and was de- rived rather from Jewish than from Roman sources. The authority of the Pope was not confined within the borders of the Roman Empire, as we should expect it to be if it were inherited from the old pontificate, but was accepted in kingdoms like those of Eng- land and Spain, which jealously guarded their independence of the Empire. We can only say that the papal sovereignty existed, because it was unquestioned. The papal legislation was nowhere treated as inoperative ; the papal tribunals drew all power to themselves by a great system of appeals. It is important to remember that the papal decrees, like the earlier conciliar legislation of the Church, spoke only to men's consciences. The popes, in their great period, never had force at their disposal. Force was continually being used against their persons, they were often helpless fugitives when using the loftiest language of universal dominion. They ruled because Christians at large acknowledged their 36 A HANDBOOK OF CHURCH LAW right to rule. This right was for a time undis- puted in the West, save by some insignificant heretics. But it was closely watched. The Pope could legislate in spiritual things ; he must not meddle with other matters. There were continual disputes about the line to be drawn between the two regions. Papal legis- lation crossing the line was ignored, or rejected with violence. It was not, however, withdrawn. The English ecclesiastical courts, whenever they were free from external constraint, stood by such papal laws as those of bastardy, which were rejected by the laws of the kingdom. Still, the distinction between the two regions of law was recognised on both sides. It was recognised even by Boniface VIII. in his bull, Unam sanctam, the supreme expression of papal sovereignty, though he so interpreted the religious duty of Christian men as to leave a mere shadow of freedom to the temporal authority. B. Privilege of Clergy. The great prop of the papal monarchy was the exemption of the clergy from all secular tribunals. The source ECCLESIASTICAL LAW 37 of this principle is sought with more proba- bility in the ancient Roman Pontificate. The Pontifex Maximus was the one magistrate allowed to exercise jurisdiction over all priests in the Roman republic. The emperors jeal- ously retained the pontificate in their own hands until they became Christian : when they dropped it, the old principle rapidly made itself felt in the Christian Empire. The clergy became subject to their bishops only and in all respects. It followed that spiritual censures the only weapon held by the bishops had to be used for the ordinary purposes of penal judicature, and degenerated in this use. The evil drew to a head in the Middle Ages, when the number of the clergy was enormously increased by the inclusion of every tonsured man or boy. These enjoyed practical immunity from serious punishment for crime : they fell into the hands of the magistrate only when their conduct had brought them to the pass of degradation from the ranks of the clergy. Kings and magistrates protested against the privilege of clergy, and often invaded it by 38 A HANDBOOK OF CHURCH LAW violence ; but they were slow in getting rid of it, and it was destined to leave its mark in ridiculous fashion upon English criminal juris- prudence until recent times. The Jus Pontificium, as the Canon Law was now not improperly termed, grew rapidly in the thirteenth and fourteenth centuries. It was now that the complete system of ecclesi- astical courts was formed, with a host of practising advocates and proctors. In 1234 Gregory IX. published, by the labour of Ray- mond de Pennafort, a collection in five books of Decretals issued since the time of Gratian. In 1298 Boniface VIII. put forth a sixth book, with rules of procedure, known as Regula Juris. In 1313 Clement V. found fresh material for five more books, known as the Clementines. John XXII. was industrious enough to compile a whole book of Decretals himself, the Extrava- gantes ; and in 1483 a succession of less active pontiffs had accumulated matter for the Extra- vagantes Communes. These several works, with the Decretum of Gratian, make up the Corpus Juris Canonici. ECCLESIASTICAL LAW 39 We are here far removed from the primitive and essential discipline of the Church. The pontifical Canon Law is largely occupied with the possessions of the clergy ; for the exclusive jurisdiction of spiritual tribunals over the persons of clerks had developed into a juris- diction over all their belongings. The papal legislation also dealt with all legal questions of marriage and testamentary dispositions. It is the fashion to say that the care of these things was tacitly conceded to the Church by the State ; but that is to set up an antithesis which was foreign to mediaeval thought. It is truer to say that the authorities of the Church took in hand the regulation of these things, and did the work unchallenged. All this multifarious business was adminis- tered in courts which could enforce their rulings only by ecclesiastical censures; and spiritual censures used for such a purpose lost almost all their significance. The latter days of the fourteenth century saw a new departure. The most distinguished theologians and canonists of France pro- 40 A HANDBOOK OF CHURCH LAW pounded a theory that the papal legislation had no force inherent in itself, but was valid only where it was received by the consent of the local church. The rapid propagation of this opinion struck a fatal blow at the papal monarchy. It was a short step further to say that pontifical laws, once received, could still be rejected afterwards. The English Church, acting indeed under the strong pressure of Henry VIII., but not altogether unwillingly, adopted this principle. The new departure was accompanied, however, by a strange con- dition. The Act for the Submission of the Clergy (25 Henry vin. c. 20) bound the clergy to a promise they had already given, not to enact any new canons or constitutions without royal licence, and at the same time enacted that all existing canons, which were not con- trarient to the laws of the realm or the king's prerogative, should be used and executed as before. This had the unlooked-for effect of giving statutory force to ecclesiastical laws which had formerly stood only on spiritual authority and common custom. It was in- ECCLESIASTICAL LAW 41 tended at the time to codify the ecclesiastical laws observed in England, and to give the new code the force of Statute Law. This not having been done, the greater part of the mediaeval Canon Law, with its cumbersome unspiritual details, remained fastened upon the Church of England, while other Churches were gradually freed from it by the continual action of the always flexible papal legislation. In England, apart from the Submission of the Clergy hindering new legislation by the re- quirement of the royal licence, it has been found practically impossible to initiate any reforms without running counter to some statutory provision, and as a rule no reform can be effectively carried through except by the aid of an Act of Parliament ; the effect of which limitation we shall now have to con- sider. CHAPTER IV THE MATERIALS OF ACTUAL CHURCH LAW IN ENGLAND CHURCH LAW is partly written, partly customary. The written law now current in the English Church consists of the general Canon Law of the Western Church, so far as it is applicable to these provinces, and of provincial or diocesan constitutions locally made. A period of considerable activity in provincial legislation was closed by the publi- cation, shortly before the middle of the fifteenth century, of Lyndwode's Provinciate, in which are codified the constitutions pro- mulgated under fourteen archbishops of Canterbury, from Stephen Langton to Chichele, with a vast commentary designed to bring them into relation with the general law of the Western Church. This work was 42 CHURCH LAW IN ENGLAND 43 formally approved by the Convocation of York, in the year 1462, and thenceforward became one of the main standards of ecclesiastical law for England. With the Provinciate is usually associated the work of John of Acton, a much earlier writer, who codified in similar fashion the constitutions enacted in the National or Pan- Anglican synods, presided over by the papal legates Otto and Ottobuoni in 1227 and 1268. The Submission of the Clergy and the statute founded upon it in the year 1533 did not at once paralyse the legislative action of the Church, for though nothing could be done without licence from the Crown, that licence was for a time freely accorded, and the aid of Parliament which the statutory enforcement of the older canons rendered necessary was usually available. The pro- posed general revision of Ecclesiastical Law was prepared, and the draft has been pre- served with the title Reformatio Legum, but it was never enacted. There was great activity of provincial and diocesan legislation, 44 A HANDBOOK OF CHURCH LAW always under the close supervision of the Crown, during the troubled years that followed. The reaction under Mary was marked by several constitutions enacted under the lega- tine authority of Reginald Pole, which would have had great importance had the reaction continued. In the year 1603 the provincial synod of Canterbury adopted a code of a hundred and forty-one canons and constitu- tions which summed up the results of ecclesi- astical legislation from the time of Lyndwode. This code was afterwards adopted by the province of York. Seventeen disciplinary canons were enacted simultaneously for the two provinces in 1640. Since that date little of the kind has been done. It has been far otherwise with the growth of Customary Law. We must here make a clear distinction between the Laws of the Church and the Laws of the Kingdom of England. The distinction is obvious when expressed ; it is obscure in practice. Since the Christian Society has to live and work in the midst of the wider world of human society CHURCH LAW IN ENGLAND 45 in general, the conventions and practices of that world inevitably affect, by their constant pressure, the conventions and practices of the Church. This was the case even while the empire was hostile, Roman law and organi- sation profoundly influencing ecclesiastical institutions. Still more was it so when the empire became Christian. When emperors legislated in benevolent, even if mistaken fashion, for the good of the Church, their laws passed insensibly into the body of ecclesiastical custom. Thus the written law of the empire became the unwritten law of the Church. In the later Middle Ages, when Church and State were become indistinguish- able, when Imperium and Sacerdotium were regarded as two functions of one body politic, 1 there was reciprocal action ; the laws of the Church becoming also laws of the empire or of the realm, and the laws of the realm becoming 1 See this expressed more especially in the preamble to the Statute of Appeals (24 Hen. viii. c. 12), where the one body politic of the realm or empire of England is described as divided into Spiritualty and Temporalty, the former 'now being usually called the English Church.' 46 A HANDBOOK OF CHURCH LAW also laws of the Church, unless in either case there were express repudiation. The judicial system of the Church, in particular, was moulded by the principles and practice of the imperial Civil Law. In England Statutes and the Common Law of the realm affected in the same way, though not without much resistance, the provincial Canon Law. This state of things, already perilous, was aggravated by the Act for the Submission of the Clergy. This had three effects. First, it made the existing Canon Law. by statute and not only by custom, part of the laws of the realm, so that none of it could be altered in this regard except by Act of Parliament. Secondly, it created an impression that no ecclesiastical canons or constitutions have any efficacy unless they are incorporated in the Laws of England. Thirdly, it gave rise in course of time to the still more objectionable opinion that an Act of Parliament touching the affairs of the Church becomes at once proprio vigore a part of the Ecclesiastical Law. The result has been that during the hundred CHURCH LAW IN ENGLAND 47 years next following many things were done in Parliament which ought rather to have been done in the synods of the Church, while during the last hundred years there has been immense activity of this objectionable kind. What is the effect of this upon the Ecclesi- astical Law? We must fall back on first principles, and say that secular legislation affects Church Law just so far as it is incor- porated by custom into the working system. We must therefore inquire, in the case of each several statute, whether it has in fact been so incorporated, or whether, on the other hand, there has been sufficient resistance, active or passive, on the part of the Christian Society to prevent the growth of a custom. A solid work on this subject is much needed. In this little volume we can but say, when occasion arises, whether a particular statute seems to be customarily accepted. It should be observed that some statutes touching the Church indirectly may stand by themselves as laws only of the realm. The claim once made for the administration of the 48 A HANDBOOK OF CHURCH LAW property of clerks exclusively by ecclesiastical authority has long since been abandoned. A clearer perception of the distinction of Church and State has made it possible to see that the law of property, like the criminal law, belongs entirely to the sphere of the State. Such statutes, therefore, as the Dilapidations Act (ch. xii.), affecting only the tenure and the liabilities of property, need not enter into a survey of Ecclesiastical Law at all, except so far as they practically affect the customs of the Church in other respects. But the English mode of legislation has so confused the limits of Church and State and their respective laws, that in such cases a clear demarcation can rarely be effected. The Church Law, therefore, of modern England consists of (a) the Canon Law, old and new, except so far as it has been abro- gated by later legislation or by contrary custom; and (b) the Customary Law of our own day, which has been much affected by the constant pressure of the Laws of the Realm. Let it be observed that English lawyers, CHURCH LAW IN ENGLAND 49 regarding the Ecclesiastical Law, from their own point of view correctly, as an integral part of the Laws of England, classify it in three grades of diminishing force Statute Law, Common Law, and Canon Law. They include in their Common Law whatever they have adopted of the Customary Law of the Church, and they say that the Statute Law overrides the Common Law, the Common Law overrides the Canon Law. An ecclesias- tic, on the other hand, regarding Church Law as a thing apart, is not concerned directly with Statute Law or Common Law. He distin- guishes only the written law of canons and constitutions and the unwritten law of custom. He agrees with the lawyers that canons are in force only so far as they are not abrogated by contrary custom. CHAPTER V OF PERSONS IN THE CHURCH THE Church is one body, of which the members are individual persons, distributed according to their several functions. Catechumens are not, in the stricter sense, members of the Church, since they are not yet baptized ; but they have certain rights in the Church. They are persons under instruc- tion with a view to baptism. They are allowed to be present during a part of the divine worship of the Church, but are ex- cluded from the higher mysteries. The general diffusion of the practice of infant baptism during many centuries did away with the regular catechumenate, and provision is now made only for scattered individuals. When such desire baptism timely notice must be given to the bishop, who will take order 60 OF PERSONS IN THE CHURCH 51 for their instruction as may be necessary. This is usually done by the curate of the parish where they dwell. They are required to prepare themselves for baptism by prayer and fasting. This seems to indicate that they should receive the sacrament fasting, as ancient usage requires. The increasing neglect of infant baptism seems to call for a more systematic catechumenate. The faithful are all persons baptized, and not lying under the graver ecclesiastical cen- sures. By baptism every one becomes a member of the Church, which is the society of the peculiar people of God, and from the number of the baptized are chosen those who administer the society. These are known as the clergy. From the Greek Xao?, people, the rest are known as the laity. The faithful are thus distinguished exhaustively as laity and clergy. The laity are not to be taken negatively as all who are not of the clergy, but positively as those who are baptized. Laymen are further distinguished by con- 52 A HANDBOOK OF CHURCH LAW formation. This rite is the complement of baptism, and confirms to the person receiving it all the privileges of membership in the Church. In particular a confirmed person alone is ordinarily admissible to Holy Communion, though a person ready and desirous to be confirmed, but reasonably hindered, is ad- mitted as a matter of grace, and more espe- cially in the hour of death (Peckham, Const. Confirmationis insuper, anno 1281). As a man cannot by any act of his own become a member of the Church, so neither can he of his own will renounce the rights and duties of membership. He is a layman by virtue of his baptism, which cannot be annulled. Baptism is said in this sense to impress an indelible character or mark upon the recipient. Discipline. A layman of whatever degree is subject to the discipline of the Church. It is contended by some English lawyers that the laity are not bound by canons and constitutions which, like those of the year 1603, have not been confirmed by Act of OF PERSONS IN THE CHURCH 53 Parliament. If they mean that laymen are not bound to observe such canons as laws of the realm, the contention, though not undis- puted, may pass unchallenged by us ; but if they mean that laymen are not bound to observe them as laws of the Church, it must be answered that all members of the Church alike are bound in conscience by the spiritual obligation to hear the Church, and to obey all rules made by the ruling authority in the Church. To deny this obligation on the part of the laity is to deny their membership in the Church. Regulars are those among the faithful, whether of the laity or of the clergy, who are banded together in a common life for the stricter observance of the Christian virtues. Men or women may be so gathered in families without coming under any special law, but the great development of monasticism after the sixth century and of the mendicant orders in the thirteenth century called for regulation by the authority of the Church. A vast amount of canonical legislation was concerned 54 A HANDBOOK OF CHURCH LAW with these regulars. All their establishments in England were swept away by Henry vni., and again by Elizabeth. The revival of the religious life in recent times has made it necessary to recall the principles of ecclesias- tical legislation on the subject, which are in process of adjustment to present conditions. Regulars are constituted by vows of poverty ', chastity, and obedience, to which is sometimes added the vow of stability, binding the devotee to abide in a particular society. These vows can be received only by a bishop, or one having the authority of a bishop. They bind either for a season or for life, as enjoined. Every house of regulars is subject to the jurisdiction of the bishop of the diocese, unless it has been lawfully exempted, and he may by visitation correct internal disorders against the rule of the society. Regulars having their own chapel allowed by the bishop are free of all obligation to worship in the parish church. Vows may be annulled by the bishop if they are shown to have been taken under pressure of force or fear, or in ignorance of their true OF PERSONS IN THE CHURCH 55 nature. For very grave cause shown the bishop may dispense with the observance of a vow otherwise binding. The clergy^ taken broadly, will include all men formally called to any office of ministra- tion in the Church. St. Paul in his epistles enumerates many such offices, which were pro- bably filled under the Apostles by those who were called, in respect of order, bishops or pres- byters, and deacons. The title of bishop seems afterwards to have been reserved for those who succeeded to the more exclusive powers of the Apostles. The order of presbyter or priest has never undergone any serious change of function or dignity. The deacons at one time acquired great prominence as the admini- strators of the goods of the Church, and as the personal ministers of the bishops, whom they constantly represented in the intercourse be- tween several Churches. Bishops were thus more commonly chosen from among them than from any other class. Under the deacons were gradually established various minor orders, which may be regarded as an 56 A HANDBOOK OF CHURCH LAW extension of the diaconate by the bestowal of some of its duties on inferior clerks. We find in history subdeacons, acolytes (or collets)^ exorcists, readers, ushers (ostiarii), and psalmists ; but not all these orders existed in all Churches, and some have never been known in the East. At Rome, towards the end of the eleventh century, the subdiaconate came to be reckoned with the diaconate and the presbyterate, which ranked as major orders ; acolytes, exorcists, readers, and ushers were enrolled in four minor orders. This arrange- ment prevailed throughout the Western Church. But in addition to those actually ordained there were many who received the tonsure, which from the end of the seventh century was recognised as a dedication of the person, sometimes a young child, to the service of the Church ; and all the tonsured were reckoned among the clergy. Before the twelfth century it had become customary to require candidates for the higher orders to pass in succession through all the inferior orders, first receiving the tonsure. OF PERSONS IN THE CHURCH 57 All ecclesiastical offices were filled by clerks, tonsured at least, the number of whom was inordinately increased by the admission of men seeking only the legal immunities of the clergy. In the sixteenth century the num- ber of tonsured clerks was still large, but few of them received minor orders except as a formal step towards the priesthood. The English Ordinal introduced in the year 1550 made no provision for any but the holy orders of bishop, priest, and deacon. Readers, however, were ordained later in the same century, with commission to say divine service in the absence of a priest, and to bury the dead. In the dearth of priests they seem to have been not infrequently given the charge of parishes. They did not long continue, and there is no mention of them in the canons of 1603. Ordinary clerks, however, are fre- quently mentioned in these canons, as also in the rubrics of the Book of Common Prayer, and these must be taken as answering to the tonsi of an earlier age. Readers are now ordained in many English dioceses. The 58 A HANDBOOK OF CHURCH LAW nature of their ministration is defined by episcopal ordinances, there being no general rule about their functions or the mode of their admission. None but a bishop can raise any one to holy orders. He may ordain only those who belong to his own diocese, by birth or habitual residence or by ecclesiastical appointment. The bishop may, however, delegate any other bishop to act in his stead within the diocese, or may send candidates to the bishop of another diocese for ordination by letters dimissory. He can commission a priest to ordain a reader; and by the pist canon of the Code of 1603 it seems that the curate in charge of a parish can himself make a simple clerk. A simple clerk is required to be a person of honest conversation and sufficient for his read- ing, writing, and also for his competent skill in singing if it may be. His functions, when appointed to a parish, are ' to read the First Lesson, the Epistle, and the Psalms, with answers to the suffrages' in Divine Service OF PERSONS IN THE CHURCH 59 (Grindal's Injunctions, 1571), to care for the fabric of the Church, the ringing of the bells, to attend upon the priest in the administration of the Sacraments, and generally to perform other such duties under the direction of the curate. A deacon must, unless specially dispensed, be at least twenty-three years of age, of which fact he must produce satisfactory evidence to the bishop of whom he seeks ordination. He must also produce evidence of his orthodoxy, of his good life and conversation, and of his proficiency in theological and other studies. For these purposes a candidate must ordi- narily provide himself with the following documents 1. A certificate of baptism, and also, if necessary, of the date of his birth. 2. Letters testimonial from the authorities of a college where he has been educated ; fail- ing these, or in addition to them if much time has elapsed, letters testimonial from three beneficed clergymen countersigned by their respective bishops, unless they be of the 60 A HANDBOOK OF CHURCH LAW diocese in which the candidate is to be ordained. These must witness of their per- sonal knowledge to his life and conversation for three years past, or for so much time as has elapsed since the period of his other letters. 3. The Si qiiis ; a certificate that notice of his intended ordination has been read during divine service in the parish church at his usual place of sojourn, and that no one has alleged any just impediment. 4. A certificate of sufficient proficiency in ordinary studies, and particularly in the Latin tongue : with which the bishop may dispense if he sufficiently examine the candidate himself. 5. A certificate of theological studies pursued in some university or other recognised school or college : with which the bishop may dispense on the same condition. The bishop is also bound, under pain of suspension for two years from the exercise of his office in conferring holy orders (can. 35, Code of 1603), to examine all candidates him- self, with the aid of clergymen selected from his chapter or diocese. OF PERSONS IN THE CHURCH 61 A candidate for holy orders must have a title t that is to say, ' some certain place where he may use his function' (can. 33, Code of 1603), together with the assurance of a suffi- cient maintenance according to his need. Usual titles are a nomination to an assistant- curacy, a fellowship or chaplaincy in a college, and, according to the practice of some dioceses, a mastership in a school of sufficient standing. Membership in a religious order was once, and may perhaps be now, accepted as a title. Specially exempt from this obligation are masters of arts of five years' standing, residing at their own charges within the university. Formerly any candidate was exempted who could prove that he had a patrimony sufficient for his needs. This exemption shows that one purpose of the rule is to hinder the creation of a proletarian clergy. On this ground the bishop is required to maintain any person whom he may ordain without a title, until such time as he can 'prefer him to some ecclesiastical living ' (can. ut supra). Immediately before his ordination a candi- 62 A HANDBOOK OF CHURCH LAW date is required to take an oath of canonical obedience to his bishop, and to subscribe a declaration, imposed by a canon of the year 1 865, that he assents to the Thirty-nine Articles, the Book of Common Prayer and the Ordinal, and that in public prayer and administration of the Sacraments he will use the form in the said book prescribed and none other, except so far as shall be ordered by lawful authority. He also takes the oath of allegiance, a statutory requirement which has nothing to do with Church Law, but which renders extremely difficult the ordination of an alien. The newly ordained deacon receives a docu- ment testifying to his ordination, called Letters of Orders. The ordination is also noted in the bishop's register, from which a certificate of the fact can afterwards be obtained. On account of the work done a fee is payable to the registrar for the maintenance of his office. Spriest must be at least twenty-four years of age, no dispensation being allowed. He must have been a deacon for some time, OF PERSONS IN THE CHURCH 63 usually not less than a year, at the bishop's discretion. A candidate for the priesthood must produce : 1. Letters of orders or certificate of his ordination to the diaconate. 2. Letters testimonial from three beneficed clergymen as before, witnessing to his conduct since ordination. 3. A Si quis, as before. He must retain his former title, or have a new one. He must be ordained either by his own bishop (or his deputy), or else on letters dimissory by another bishop. It is customary for bishops to require candidates to pass a further examination. The newly ordained priest receives letters of orders as before. The promotion of a bishop will be more conveniently treated in a separate chapter. An indelible character is impressed on the recipient of holy orders, which character he therefore retains, even if he be by ecclesiastical censure deprived or degraded from the sacred 64 A HANDBOOK OF CHURCH LAW ministry (p. 22). If he be restored, his ordi- nation is in no wise to be repeated. If the validity of any ordination be for any cause called in doubt, it may be repeated conditionally. The usual forms of ordination must be observed, and as there is no room for the open expression of the condition within the form as in the case of baptism (p. 209), the condition must be supplied in the intention of the bishop and the ordinand, and should be made as mani- fest as possible. It may also be noted in the Letters of Orders. The same rule should be observed in the case of a heretic or schismatic reconciled to the Church, if there be a doubt as to the validity of any orders he may have received. A clergyman is forbidden under pain of excommunication (can. 76, Code of 1603) to relinquish his calling and live as a layman. He is debarred, not by Ecclesiastical Law, but by Statute or Common Law, from several secular callings and public functions. The Clergy Disabilities Act of 1870 allows him to escape these disabilities, but only on condition OF PERSONS IN THE CHURCH b 5 of renouncing all the privileges of the clericate. By doing this he appears to become irregular (P- 23)- Since the twelfth century the clergy have been required by the sacred canons to wear at all times a distinctive dress, which is prescribed with some detail in the 74th canon of the Code of 1603. This was worn with great consistency by the English clergy until the early years of the nineteenth century, when it began gradually to go out of use. It is now worn on ceremonial occasions, and by some of the clergy more commonly. Custom would seem to have relaxed the canonical obligation unless it be enforced anew by episcopal or synodical authority. E CHAPTER VI THE ORGANISATION OF THE CHURCH FROM the first beginnings of Christianity the members of the Church were grouped together locally. The faithful of a certain town and its neighbourhood were known as the Church of that place, and formed an ordered com- munity administered by presbyters or bishops and deacons. This state of things we find in the books of the New Testament, where we also see that the Apostles who ruled the whole Church ruled also these particular local churches by letters and by visitations. When the second century is slightly advanced we find from the scanty records of the time that every such local church has a single chief, to whom the title of bishop is now reserved, but who exercises that supreme authority which had been in the hands of the Apostles. When 66 ORGANISATION OF THE CHURCH 67 the third century has run half its course we find councils or gatherings of these bishops being constantly held for the settlement of important questions, and St. Cyprian lays down the principle, apparently unchallenged, that the episcopate is one undivided body ruling the whole Church, which is thus held in unity. Here we have the fundamental principles of ecclesiastical organisation. For administrative purposes we must begin with the local Church presided over by a bishop. In some parts of the world and at some ages local churches have been numerous and small, every town having its own bishop. In England, as in some other countries, this custom is unknown. . A bishop governs the Church throughout a considerable district, called his diocese, the particular town in which his chair is placed, and from which he takes his title, being deter- mined by accidental considerations. Several dioceses are grouped together in a province, the chief bishop or archbishop bearing the title of metropolitan. The names are 68 A HANDBOOK OF CHURCH LAW derived from the political divisions of the Roman Empire, which in this as in other respects contributed much to the development of Church order. Provinces also have been grouped together under a common chief; but no such wider grouping is universal. A diocese was originally administered by the bishop and clergy as a whole, however many churches or oratories it might contain. From the fourth century the custom prevailed of appointing certain priests to the charge of the several churches and of the faithful living in their neighbourhood. A church so served was called titulus ; the priest in charge had various designations, one being parochus, a title borrowed from a petty local office of the Empire ; the district was called paroecia, which by an obvious confusion was corrupted into parochia, whence our word parish. The organisation of the Church proceeds on the lines of these three institutions, the Province, the Diocese, and the Parish. A Province is ruled by the Provincial Synod, consisting normally of the bishops of all ORGANISATION OF THE CHURCH 69 dioceses within the province, who are attended by such notables, cleric and lay, as they may bring in their company. The metropolitan presides, and he has acquired extensive personal powers, so that nothing can be effec- tively done without his consent. In England the beneficed clergy and other ecclesiastical corporations have acquired the right to appear personally or by their proctors in the provincial synod. This right seems to have arisen out of the essentially different assembly of the clergy as an estate of the realm, an integral part of the parliament. In accordance with the canonical legislation of the thirteenth century the clergy successfully denied the right of any lay authority to tax their possessions : their attendance in parlia- ment became purely formal, and their representatives met in the provincial synods to grant taxation of their goods concurrent with the taxation of lay possessions voted by parliament. This continued until the year 1661, when the clergy renounced their privilege. The confusion of the two assemblies 70 has had such effect that whenever a new parlia- ment is elected the proctors of the clergy are likewise re-elected, and lawyers maintain that the synods cannot meet when parliament is dissolved. This was done, in spite of the protests of lawyers, in 1640, but there was a consequent doubt about the legal effect of the synodical proceedings, and the precedent has never been followed. It is obvious that this doubt extends only to the legal, and not to the spiritual, authority of the synod. The English provincial synods are usually called Convocations of the Clergy. The priests attending them are present as counsellors of the bishops, with whom alone rests the legis- lative authority. It is, however, an established custom that nothing shall be enacted without their consent. They may present gravamina, or allegations of grievance, and frame a pro- posal, called articulus cleri, for the consideration of the bishops. In the province of Canterbury the bishops usually withdraw to hold their discussions apart, unless they prefer to sit in full synod, which is done on rare occasions. ORGANISATION OF THE CHURCH 71 In the Convocation of York, on the other hand, the inferior clergy ask permission to sit apart for discussion, which is usually granted. All definite acts and promulgations must be performed in full synod. No laymen are summoned to the provincial synods in England, but of late years a new assembly of notables, called the House of Laymen, has been created in each province, to sit concurrently with the synod for deliberation and advice. The rights and privileges of this assembly are not yet de- termined by constitution or custom. The synods are considered by lawyers to be bound by the Act for the Submission of the Clergy (p. 40) ; and this contention has never been practically opposed. Con- vocations are therefore never held except in pursuance of a writ from the Crown, and nothing is enacted or promulged without previous letters of business and royal licence. Provincial Courts and certain powers of the metropolitan will be more conveniently treated under the head of Jurisdiction ; but the Vicar- 72 A HANDBOOK OF CHURCH LAW general must here be mentioned, an officer who represents the metropolitan for purely formal business of an administrative kind, and for some that is more than purely formal. A diocese is the district within which a single bishop rules the Church. At one time there were in England, as elsewhere, extensive peculiars or exempt places where the authority of the bishop, or the greater part of it, was exercised independently by other persons. These have almost all disappeared, the most important survival being Westminster Abbey, and the English dioceses have a continuous and homogeneous territory. Under the bishop the clergy of the diocese would seem originally to have formed a united body, maintained from the general funds of the Church ; but it is probable that from very early days some priests and minor clerks were appointed to serve in particular places and to live of the offerings there accruing. Later, as it would seem, deacons were in like manner distributed in the diocese. The settlement of priests in parishes left a ORGANISATION OF THE CHURCH 73 certain number, with the deacons, still attached to the principal church or churches for there may be more than one where the bishop's chair is set, hence known as ecclesia cathedralis. In course of time these were organised as a college, and after the tenth century they were generally ordered in some measure after a monastic fashion, and were known as canonici or regular clergy. In England many cathedral churches were actually served by monks. In the rest the regular organisation of the clergy broke down, but the title of canonicus or canon survived. It was not peculiar to the cathedral clergy, for there were many establish- ments of priests, more or less regular, to whom it was applied. The canons or monks of the cathedral claimed to be in a peculiar sense, as against all others, the clergy of the diocesan church, and acquired in consequence certain important privileges. At the present day the clergy of a diocese may be classified in three categories, with an important subdivision : (i) The cathedral clergy ; (ii) the parochial clergy, including 74 A HANDBOOK OF CHURCH LAW (a) beneficed and (b) unbeneficed curates ; (iii) licensed clergymen. The cathedral clergy are of varying status, the distinction being due partly to function, partly to benefice (ch. xii.). We are here concerned only with function. There is in the first place a body of priests, usually known, from the style of their benefice, as prebendaries. In cathedrals of the Old Foundation, as they are called, there are certain canons residentiary, who may or may not be prebendaries. In cathedrals of the New Foundation, which were reconstituted in the sixteenth century after the dissolution of the convents of monks formerly serving them, the prebendaries, fewer in number, are identical with the canons re- sidentiary. In all cases where the cathedral church is fully organised they are presided over by a dean. The dean and canons or prebendaries form the chapter, a corporate body having extensive powers of self-govern- ment in accordance with its own statutes. In cathedrals of the Old Foundation the dean and prebendaries meet as the greater chapter, ORGANISATION OF THE CHURCH 75 the dean and residentiaries as the lesser chapter, with their several powers and functions under their statutes. In addition to the above, cathedrals of the New Foundation have a certain number of honorary canons, who have a place in the functions of divine worship, but not in chapter. There are also engaged in the service of the Church minor canons or vicars, who are in holy orders, and minor clerks^ whose place is now usually occupied by laymen. Some cathedrals, especially those of modern creation, are also parish churches, in which case the cure of souls may rest either with a member of the chapter or with some other priest specially appointed. The parochial clergy are all priests and deacons having cure of souls, as described below. They have their effective appointment from the bishop alone. Licensed clergymen are those to whom the bishop gives a licence to minister in their office either in some particular place, not being a parish church, or throughout the diocese at large. 76 A HANDBOOK OF CHURCH LAW The diocesan synod is the assembly of all the clergy of the diocese, together with such notables of the laity as the bishop may summon. In the synod so constituted the bishop pro- mulgates the decrees of the provincial synod, and makes his own diocesan constitutions. Certain details of administrative business are also properly carried through in synod. The bishop alone decides all questions and makes all decrees, but the general law of the Church requires him first to consult the clergy, and possibly the English custom forbidding the bishops in provincial synod to determine anything without the consent of the clergy may rule the diocesan synod as well. In that case the right of the clergy to present a gravamen and to propose an articulus cleri may also extend to the diocesan synod. It is impossible to speak positively on this head, for lack of precedents. The general law of the Church requires a bishop to convene his diocesan synod twice a year, but this rule is not observed in England, and synods are rarely held. The legal restraints upon synodical ORGANISATION OF THE CHURCH 77 action imposed by the Act for the Submission of the Clergy have not been called into play to hinder the convocation of a diocesan synod. Informal gatherings of representative clergymen and laymen, known as diocesan conferences, are now held in all dioceses, and they appear to be gathering to themselves certain rights which are not yet subject to canonical definition. A bishop administers ecclesiastical discip- line in a court known as his Consistory, of which more will be said in a subsequent chapter. In his absence the court is held by the Official principal. He has a Vicar-general, who takes his place in the transaction of formal administrative business, and who also sits in the Consistory to hear and determine certain causes. These two offices are com- monly held by the same person, with the title of Chancellor, who is for the most part not in holy orders. The chancellor is aided by a number of Surrogates, who see to the minor business of the court. 78 The archdeacon was originally, as the title implies, the senior of the deacons who were closely attached to the bishop's person. In the eleventh and twelfth centuries much of the judicial business of the diocese devolved on this officer, who acquired an independent position and held his own court, from which an appeal lay to the bishop. This feudalising of functions was accompanied in feudal fashion by territorial division, several archdeaconries being created according to the extent of the diocese. At the present day the archdeacon is concerned chiefly with the admission of churchwardens and with administrative func- tions relating to benefices, imposed upon him by recent legislation. Rural-deans are officers appointed by the bishop to supervise small areas within the diocese. Their functions are to inspect and report to the bishop any neglect of the fabrics of the Church, and to gather the clergy of their deaneries in chapter for the discussion of matters submitted by the bishop. It is customary also to assemble conferences in ORGANISATION OF THE CHURCH 79 which representative laymen take part. Rural-deans are appointed by the bishop, who allows the clergy, however, in some cases to elect. A parish is a part of a diocese committed to the pastoral care of a priest. It seems clear that the church and the parochus are prior to the district. The parish is paroecia, the neighbourhood of the church, or by cor- ruption parochia, the district in charge of the parochus. This should be noted, because in some modern practice the district is first set apart, a priest afterwards put in charge of it, and a church last of all provided. The more normal and more ancient procedure, however, is still followed in other cases, by which, a church or oratory being founded and a priest appointed to serve it, the cure of souls in the neighbourhood is afterwards given to this priest. To speak strictly, then, any priest appointed to serve a particular church or oratory might be called parochus ; but in practice this title is reserved for those who have actually received the charge of souls 8o A HANDBOOK OF CHURCH LAW within a certain district. In England, how- ever, the more definite title of curatus, a man charged with the cure of souls, has prevailed in use, and the title parochus, common to the general law of the church, is almost unknown, except by its derivatives parockia and parochiani. Another title proper to the curate is rector, the ruler of the church within his district. The use of this title, however, has become complicated by the law of benefices, and though it survives in the majority of English parishes it is rather a specific than a general title. Another title entirely proper to the law of benefices is that of vicar, the substitute for a non-resident rector, which is now, by an absurd convention, applied to the curate in full right of a new parish, where no rector, technically so called, has been constituted. The title of curate alone will here be used, with one distinction. Since the original curate of a parish may have many assistants, to all of whom the title indiscriminately be- longs, he will in case of need be distinguished, ORGANISATION OF THE CHURCH 81 according to a recognised convention, as the curate-incumbent, or simply incumbent, the rest as assistant-curates. Parish clerks. The curate is assisted by one or more clerks, who may or may not be in holy orders. Their duties are to attend the minister in divine worship, saying and singing as appointed, ' to read the First Lesson, the Epistle, and the Psalms' (Grindal's Injunctions, 1571), to assist at marriages and burials, and failing any other officer, to ring the bell for service. A parish clerk is appointed by the incum- bent, who must signify the appointment to the parishioners the next Sunday following in the time of divine service. He must be at least twenty years of age, of good character, able to read and write, and of ' competent skill in singing, if it may be' (can. 91, Code of 1603). He is entitled to customary fees and payment out of the church funds. He may be sus- pended or removed from office by the archdeacon upon complaint made and in- vestigated, showing him to be an unfit and F 82 A HANDBOOK OF CHURCH LAW improper person to hold it. Doubts regarding the legal power of the ecclesiastical authorities to remove a parish clerk were set at rest by the statute 7 and 8 Viet. c. 59. In some new parishes a clerk is removable by the incumbent, with the consent of the bishop, for any mis- conduct. Parochiani, parishioners, are the Christians living in the neighbourhood of a certain church, and committed to the charge of the priest serving that church. When it became the rule for all men to pay tithe to their own curate, the lands occupied by the parish- ioners became tithable to him, and there- fore a purely territorial parish was created. In some towns containing several parish churches \hzfield or outlying agricultural land was tithable to the curates of the individual occupiers, and was consequently divided in minute portions among the several parishes. In other similar cases the field was more con- veniently assigned to the several parishes irrespective of occupation : a parishioner might then be paying his personal tithe to one curate ORGANISATION OF THE CHURCH 83 by virtue of residence, his land-tithe to another. In other cases, again, all the field was tithable to one church, presumably the mother-church of the town. This law of tithing determined the terri- torial delimitation of parishes, which has survived its cause. This also accounts for most instances of detached portions of parishes sometimes lying at a considerable distance from the church. The parishioners, thus defined, became an organised community, to which in England, with the decay of the manorial system, fell most of the functions of local government in secular matters. Thus name and thing, purely ecclesiastical in origin, have acquired secular associations which must be carefully kept apart. The Local Government Act of 1894, creating a new and independent community for secular purposes, has dissevered the functions, but has unfortunately retained for secular use the ecclesiastical title. The householders, or heads of families, in a parish meet for the transaction of parochial 84 A HANDBOOK OF CHURCH LAW business under the presidency of the curate. From the place in which it is ordinarily held this assembly is called a Vestry Meeting. It may be convened, however, in any place to which the public has free access. Every parish, new or old, has its own vestry meeting ; but in ancient parishes the law concerning it is complicated by the mass of secular business with which it was once charged. Its proceedings were, in consequence of this, regulated by statute, and especially by the Act 58 Geo. III. c. 69. In large parishes a Select Vestry, more or less representative in character, came into existence and was sometimes constituted by a local Act of Parliament. The whole purpose of this legis- lation has been swept away by the Local Government Act of 1894, which transfers all secular business to the newly created Parish Meetings and Councils, and by the London Government Act of 1899, which has sub- stituted municipalities for the select vestries of former days ; but the legislation survives its usefulness and remains to hamper the ORGANISATION OF THE CHURCH 85 work of purely ecclesiastical assemblies. As difficulties may arise if the formalities re- quired by Statute Law are not observed, they are here summarily noted. A vestry meeting must be convened by a public written notice posted near the doors of the church and all chapels of ease in the parish before divine service on a Sunday three clear days before the day of meeting. It therefore cannot be held earlier than on the Thursday following. The notice must be signed by the incumbent, a churchwarden or an overseer, or any two or more of them. It follows that any one of these may convene a meet- ing. The notice must state the day, hour, and place of meeting, and also the business to be proposed. Nothing can legally be done of which such notice has not been given. The incumbent is ex officio chairman of the meet- ing, by whomsoever called. In his absence, or in the vacation of the cure, the parishioners present must elect a chairman, who need not himself be a parishioner. All ratepayers and they alone, whether paying in person or by 86 A HANDBOOK OF CHURCH LAW composition, may take part in the proceed- ings, and no person may vote who has neg- lected to pay any rate made three months before the day of meeting. In respect of a church-rate the disqualification is so far modified by the Act of 1868, making such a rate irrecoverable by law, that any one re- fusing payment is debarred only from inquir- ing and voting about the expenditure of the monies produced by that particular rate. A corporation or company paying rates may appoint a representative to attend the meeting. Every person assessed to the poor-rate on a rental of 50 or upwards has one vote for each 2$ of rental up to six votes, but no more. In case of equality of votes the chairman has a casting vote in addition to whatever votes he may have as a ratepayer. Votes are taken by show of hands, but any ratepayer may demand a poll. The chairman alone can appoint the time and place of polling, and he is respon- sible for receiving or rejecting the votes tendered. His discretion in all these matters is subject only to the control of the High ORGANISATION OF THE CHURCH 87 Court of Justice, which in case of error will order him by mandamus to renew the proceed- ings. The polling must be conducted accord- ing to the usual method of parochial elections. Previously to 1894 this was held to exclude the use of the secret ballot ; the question has not been raised afresh since the Local Govern- ment Act of that date made the ballot the usual method in parochial elections. It is in the power of the chairman to adjourn a meeting, but except in case of disorder this power must not be exercised against the consent of the meeting. He may also adjourn a poll if necessary. A further consequence of the secularisation of the vestry is that inhabitants of the whole area of an ancient parish claim the right of attending the vestry meetings of the mother- church, though the district has been divided for ecclesiastical purposes into several parishes. The vestry meetings of new parishes, having no secular functions, appear to be free from the above statutory complications, and are 88 A HANDBOOK OF CHURCH LAW regulated by Ecclesiastical Law. In some cases, however, there are special bodies, such as a meeting of pewholders, created by an Act of Parliament giving powers for the erection of the church, to which some functions of the vestry are legally transferred. The rights of these bodies must be respected, but it may be found convenient to hold an ordinary vestry meeting for the purpose of confirming their proceedings. Apart from Statute Law a vestry meeting is regulated by custom. Householders or heads of families alone, as has been said, take part in it. Minor excommunication appears to be no disqualification, but any graver ecclesiastical censure should exclude the offender from this as from all assemblies of the church, and an unbaptized person, being no parishioner, should have no place here. The meeting is convened by the incumbent or the churchwardens ; and as the church- wardens appear to have no power, unless it be expressly given them by law, of acting separ- ately, it would seem that they must jointly ORGANISATION OF THE CHURCH 89 sign the notice. By Ecclesiastical Law each person has one vote and no more, and the neglect to pay a rate is no disqualification. In other respects the Ecclesiastical coincides with the Statute Law. Churchwardens, sidemen, questmen, or selectmen are persons appointed to attend episcopal synods and visitations for the pur- pose of reporting to the bishop on the moral and religious condition of the parish. Origin- ally, perhaps, chosen by the bishop, they came to be elected by the parish, and this custom was confirmed by the 8gth canon of the Code of 1603. The 9Oth canon, however, still pro- vides that if the parishioners cannot agree the Ordinary is to appoint. They are to be chosen every year and to come before the proper diocesan court, usually that of the archdeacon, to be admitted to office, during the first week after Easter. If, however, for any cause no election take place, the churchwardens of the previous year are reputed to continue in their functions. They can be elected, in case of need, at any other time, and the Ordinary is 90 A HANDBOOK OF CHURCH LAW bound to admit them when required to do so. Fees amounting to eighteen shillings are pay- able on admission. Election. Churchwardens are elected by a vestry meeting. The chairman has the power of rejecting the nomination of any unqualified person, and if he fails to do so he may be required by mandamus to renew the proceed- ings. Persons qualified are such as are actually resident in the parish and are other- wise capable of taking part in the vestry meet- ing. The election is to be by the joint consent of the incumbent and the parishioners, if they agree ; if they cannot agree, the incumbent may elect one and the parishioners another, and apparently no more. By agreement it would seem that any number may be elected. Thus the normal procedure should be the nomination of candidates either by the incum- bent or any parishioner; all being declared elected if no objection be raised. If objection be made a vote must be taken for each candi- date, who will be elected if the incumbent and a majority of the meeting agree. Failing the ORGANISATION OF THE CHURCH 91 election of two by such agreement, there must be a divided choice as above described. It is a common practice, but probably one which should not stand, to proceed at once to a divided choice, without attempting agreement. There is no ground in law for the distinction sometimes made between ' parson's warden ' and ' people's warden.' In case of equality of votes the chairman has a casting vote, as with the other business of the meeting. The incumbent, after making his own separate election, may not vote as a member of the vestry in the other election, but he appears to be still entitled to the casting vote. The above rules of Ecclesiastical Law are varied by custom in certain places, as in the city of London, where the incumbent has no separate right of election, and in some large parishes, where several churchwardens are elected by the parishioners of various town- ships, the incumbent electing only one. Towards the end of the fifteenth century the sidemen came to be regarded as the legal possessors of the movable goods belonging to 92 A HANDBOOK OF CHURCH LAW the parish church, and hence arose the title of churchwarden. This function is of considerable importance, and as it cannot be performed in any respect without joint and unanimous action, it is found inconvenient to place it in numerous hands. For this reason it seems to have become customary, since the sixteenth century, to elect only two churchwardens, eo nomine^ others being added with the more ancient title of sidemen. The two church- wardens are then the legal guardians of Church goods ; the sidemen are associated with them in all other functions. Various secular duties imposed on church- wardens in connection with the poor-law and its consequences no longer exist. The Fabrick. The parishioners are required by the sacred canons to keep the nave of the church in proper repair, to maintain the necessary fencing of the churchyard, and to provide all things requisite for divine worship. The latter requirements were specified in the constitution Ut parochiani of Winchelsey, A.D. 1305, which is the basis of the existing law. ORGANISATION OF THE CHURCH 93 This whole department of administration is known to general Ecclesiastical Law as the Fabrick, a name not commonly used in Eng- land, for which there is no convenient substitute. By the 8$th canon of 1603 the 'church- wardens or (et) questmen ' that is to say, the whole number, and not the two legal guardians only are charged with the care of the fabrick. To fulfil this duty they must have access to the church at all reasonable times, and the incumbent, in whom alone is vested the freehold, and who alone is entitled to the custody of the keys, is bound to afford them facilities. If he refuse, recourse must be had to the bishop or archdeacon. The church- wardens can buy goods or accept gifts for the fabrick, can sell needless articles, with the consent of the parishioners and of the Ordin- ary, and can bring an action for trespass on account of damage. They must in all cases act jointly. The use of all things connected with the fabrick is subject to the discretion of the incumbent. Thus, for example, the bells 94 A HANDBOOK OF CHURCH LAW may not be rung nor the organ played without his consent. The sexton is an officer of the fabrick. As servant of the churchwardens he has the care of the church goods. In his administration he is subject to the commands of the incumbent. His appointment varies according to local custom ; it is most commonly in the hands of the incumbent, it sometimes rests with the churchwardens, sometimes with the parish- ioners in vestry. His wages are payable by the churchwardens out of the funds of the fabrick. He can probably be removed for just cause by the person or persons appointing him, but if he is unreasonably dismissed the High Court will order his restoration by mandamus. The beadle is an officer of the fabrick, appointed and dismissible by the parishioners in vestry, whose duty it is to maintain order in the church and churchyard, for which purpose he is endowed with some of the legal powers of a constable. The organist is appointed and dismissed, ORGANISATION OF THE CHURCH 95 according to local usage, either by the in- cumbent or by the churchwardens. In neither case can he use the organ without the in- cumbent's permission. Finance. Churchwardens are not personally liable for any expenditure except such as they individually incur. By ancient custom they can levy on the parishioners a Church-scot or Church-rate for their necessary expenses. This having been levied oppressively as a legal charge upon persons not members of the Church or dissenting from the Church, the power to recover it by law was abolished in 1868. The practice had previously fallen into disrepute, and has seldom been revived in the less objectionable form which alone is now lawful. A rate can be made with the consent of a vestry meeting ; any who refuse to pay it are debarred from inquiring or voting in vestry about the expenditure of the money raised. Apart from a rate the churchwardens are dependent, except in some parishes where there is an endowment for the fabrick, upon the freewill offerings of the faithful. They 96 A HANDBOOK OF CHURCH LAW may, with the consent of the incumbent or of the ordinary, appropriate part of the alms contributed at the offertory ; but as these seem to be directed primarily to the relief of the poor and the maintenance of the clergy, such appropriation ought to be limited. Collections of money made at other times in the church, either by alms-boxes, or otherwise, appear to be at the disposal of the incumbent. CHAPTER VII PROMOTION OF BISHOPS AND CURATES THE fundamental organisation of the Church is that of the diocese ; a subsidiary but practically a most important organisation is that of the parish. The diocese is that part of the Church which is subject to the care of a bishop ; the parish is that part of the Church which is subject to the care of a priest, as curate. The diocese is therefore constituted by the appointment, actual or potential, of a bishop, the parish by the appointment of a curate. In the promotion of a diocesan bishop two things are requisite, election and mission. Election is the designation of the person. There is no general law of the Church pre- scribing by whom a bishop shall be elected, and the procedure has varied greatly. The G 98 A HANDBOOK OF CHURCH LAW first precedent is the election of St. Matthias into the company of the Apostles, which is barely distinguishable from an episcopal election. Here are two elements : the choice of two fit persons by the votes of the eleven, and the determination between these two by lot. The former element survived for some ages in episcopal elections : a bishop was chosen, partly at least, by the votes of the neighbouring bishops, and in some cases a council, deposing a bishop, at once elected his successor. In the third century St. Cyprian, describing no doubt the general practice of the West, speaks of a bishop as chosen by the combined voices of the neighbouring bishops and of the clergy and faithful of the diocese. This grew into a system by which the clergy elected, obtained the assent of certain notables among the laity, and presented the elect to the bishops of the province for consecration. Many elections, however, took place tumultu- ously with no clearly defined order, and it seems to have been generally understood that any man actually obtaining possession of a BISHOPS AND CURATES 99 see, and receiving consecration from neigh- bouring bishops, should be accounted its rightful holder, unless he were removed by disciplinary process. This freedom solved many difficulties, but also led to many dis- puted elections and contests between rival claimants of a see. The Christian emperors successfully claimed and exercised the power of approving or annulling episcopal elections, and especially in the case of the Roman Church. This right was fitfully asserted by the Western emperors after the time of Charles the Great, until in the eleventh century several popes were elected by the sole voice of the emperor. Feudal sovereigns secured the same power within their dominions, the process being aided by the legal conversion of episcopal possessions into fiefs, which were conveyed to the elect by investiture with crozier and ring, his con- secration following at the convenience of the ecclesiastical authorities. In England the earliest elections recorded seem to have been made by the Witan, there being no attempt ioo A HANDBOOK OF CHURCH LAW made to distinguish, in modern parlance, between Church and State ; Knut introduced the practice of investiture by crozier and ring. The popes were strenuously opposed to this practice, which seemed to imply that the pastoral jurisdiction, symbolised by the crozier, was conferred by imperial or royal grant. It was definitely condemned at the Council of Clermont held under Urban II. in the year 1095. Anselm of Canterbury, Urban's unfailing supporter, induced Henry I. of England, after a sharp struggle, to abandon it, subject to a compact that every bishop- elect should do homage to the king. The king retained the power of election, but a new claim, stirred by St. Dunstan a century earlier, was now being pressed. The cathedral chapters were asserting that with them rested, by the general law of the Church, the sole right of election. A compromise was effected, the king allowing the chapters or their delegates to make a show of electing his nominee, but only on condition that they attended in his presence for the purpose. BISHOPS AND CURATES 101 This continued until John, at the height of his struggle with the baronage, granted a charter, afterwards approved by the Popes Innocent III. and Gregory IX., by which the elections were to be left wholly to the chapters, subject however to royal licence and approval. This brief sketch is necessary for any under- standing of the present law and practice of the English Church. The settlement made by the charter of John still holds good, but two complications have been brought in which look back to the older usage. These are letters missive and election by letters patent. Letters missive accompanying the congt have the same jurisdiction in foro conscientiae within the precincts of the mother- church which curates have within their respec- tive parishes. In colleges, hospitals, religious OF ECCLESIASTICAL JURISDICTION 151 houses, and similar institutions, a chaplain formally authorised by the bishop has a like authority. Diocesan jurisdiction is exercised by the bishop in person or by deputy. A deputy may have either ordinary or delegate juris- diction. The Official-principal and the Vicar- general have ordinary jurisdiction throughout the diocese; an Archdeacon and his Official have it within a certain district. Peculiars, now for the most part done away, are churches or districts within which the whole or the greater part of the diocesan jurisdiction is vested in a special Ordinary. The Ordinary for certain parishes in the city of London was at one time the Dean of Arches, ap- pointed by the Archbishop of Canterbury. The Dean of Westminster, subject to the visitatorial authority of the Crown, is the Ordinary of the Abbey and its precincts. A Commissary or a Surrogate has delegate jurisdiction. Visitation is a power, exercised at stated intervals by a bishop or an archdeacon, of 152 A HANDBOOK OF CHURCH LAW suspending the exercise of inferior jurisdic- tions during inquiry into the conduct of their possessors. The procedure is to issue Articles of Inquiry for answer, and while the visitation is in progress a temporary delegate jurisdiction is allowed to all persons affected. A bishop is required by law to appoint archdeacons according to settled custom. He is also required to appoint a vicar-general and an official-principal. These latter are appointed by letters patent, in which their functions are accurately set out. It is cus- tomary to appoint the same person to both offices, and he is usually called the bishop's Chancellor. It is even doubted whether the bishop could now sever the two offices. The chancellor is, with few exceptions, a layman, but this is by a comparatively recent innova- tion, and a priest has lately been appointed. For the purposes of the mixed jurisdiction created by the Clergy Discipline Act of 1892, the bishop is empowered to appoint as deputy- chancellor a barrister of seven years' standing or the 'holder of a judicial appointment.' OF ECCLESIASTICAL JURISDICTION 153 This is probably intended to be done in case the chancellor is not a person learned in the law. The ecclesiastical position of a deputy so appointed is not easily determined, and he seems to possess only the mixed jurisdiction set up by the statute. The legislative jurisdiction of a diocese is properly exercised by the bishop in synod, with the consent of the clergy ; but by cus- tom a bishop may make certain regulations, as in regard to details of divine worship (ius liturgicum), without synodical publicity. It is considered that an order so made lapses with the removal of the bishop making it, while a synodical order continues in force until abrogated. A bishop may not legislate con- trary to provincial or more general constitu- tion or custom. The dispensative jurisdiction of a bishop is exercised by himself in person or by his vicar-general; in case of need by a commis- sary. The vicar -general usually does his part through the machinery of the Consistory Court, the surrogates performing minor acts 154 A HANDBOOK OF CHURCH LAW of jurisdiction. Marriage licences are thus granted, which are nothing else but dispen- sations from the law requiring publication of banns. The bishop in person grants important dispensations by virtue of his mixed jurisdic- tion in the matter of dilapidations, regulated chiefly by Statute Law. He also grants in person dispensations from rules of fasting and abstinence, usually on the application of a curate. In dispensing a curate from resi- dence he is restrained by the Pluralities Act, now sufficiently incorporated, as it seems, in Ecclesiastical Law, from allowing more than six months' leave of absence, unless with the concurrence of the metropolitan. All this in foro externo. The bishop him- self, or a penitentiary appointed by him, has dispensative jurisdiction in foro conscientiae throughout the diocese, and the bishop, as above said, may reserve cases to his own cognizance. The voluntary jurisdiction of a diocese, other than that connected with dispensations, is divided by custom and convenience between OF ECCLESIASTICAL JURISDICTION 155 the bishop himself, the vicar - general, and the archdeacons, with the regular help of surrogates and the occasional delegation of a commissary. The archdeacon usually inducts a clerk to a rectory or vicarage, and admits churchwardens. The bishop or the vicar- general takes charge of all vacant parishes, sequestrating the benefice and appointing, if need be, a curate in temporary charge, in- stitutes or licenses curates, licenses clerks at large, admits or directs the admission of clerks to places in the cathedral church, grants or withholds faculties for alterations in parish churches, or for the alienation of church lands or goods. The bishop alone, or his commis- sary, makes orders with regard to dilapida- tions, determines, if desired, the appropriation of alms collected in parish churches, allows religious houses and receives vows of religion, grants the right of a chapel to extra-parochial institutions. The contentious jurisdiction of a diocese in foro externo is exercised through the machinery of a court known as the Consistory, in which i 5 6 A HANDBOOK OF CHURCH LAW the bishop, the official - principal, and the vicar - general are alike judges. The bishop is supreme, and presides when present ; in some dioceses, though not in all, he reserves the recognition of certain causes to himself. But with the others he forms, as it is said, unum consistorium, and no appeal is possible from them to him. Within their own districts the archdeacons may hold a court of conten- tious jurisdiction, in which the official is a subordinate judge. Surrogates are appointed as subordinate judges, whether of the archdeacon's or of the bishop's court, for expediting minor business. The consistory court and the archdeacon's court are alike concerned with disciplinary pro- cess and with civil process. The latter is so called from its resemblance to the procedure inter partes of the Civil Law. At one time it was vast in amount and of the greatest im- portance. It was originally founded on the injunction of St. Paul against going to law before unbelievers. The faithful were coun- selled, and the clergy were by many Councils OF ECCLESIASTICAL JURISDICTION 157 required, to bring their differences before their bishop for arbitration. When the empire became Christian this arbitrage acquired, where the parties were clergymen, the force of judicial decrees. Later, as we have seen, the spiritual courts drew to themselves whole fields of judicial business, which the civil courts have gradually resumed into their own hands. There seems to be nothing to prevent the arbitration of bishops in the ancient fashion, but the character of the civil courts in our day affords no excuse for refusing to plead before them. This kind of jurisdiction in the episcopal court is therefore narrowed down in practice to suits respecting the ornaments of a parish church, and to questions of costs arising out of these or other proceedings. The disciplinary process remains. The archdeacon's court has an inferior jurisdic- tion, which has rarely been exercised for many years past, but there is no reason for supposing it obsolete. The bishop's con- sistory may either hear appeals from the archdeacon's court or may act as a court 158 A HANDBOOK OF CHURCH LAW of first instance. The bishop in person or the official - principal presides. The court cites a delinquent either proprio motu or at the instance of a complainant known as the promoter, and is competent to impose any ecclesiastical censure. The spiritual courts were organised on their present basis in the course of the twelfth and thirteenth centuries ; their procedure being borrowed for the most part from the system of the Roman Civil Law, the study of which had lately been revived. Long before this, how- ever, the disciplinary procedure of the Church had been regulated by imperial laws, notably those of the Theodosian family and of Justinian. The spiritual and the temporal functions were then and for long after so ill-defined that it is hard to say whether this imperial interference was due to the temporal incidents already attaching to ecclesiastical censures, or to a general intention of controlling ecclesiastical procedure as such. The results were in any case accepted and incorporated into the ecclesiastical code, and the precedent cannot OF ECCLESIASTICAL JURISDICTION 159 be forgotten. From the thirteenth century onward the constitution and procedure of the spiritual courts were regulated exclusively by ecclesiastical authority, except to some extent in France and in the duchy of Venice. In England they were left unaffected, save in the matter of appeals, by the disturbances of the sixteenth century, but their practice became lax and even corrupt. In 1603 they were reformed in certain particulars by provincial constitutions, continuing to be governed in the main by traditionary customs. After this date the king's courts began a course of active interference by means of prohibition, against which there was much angry protest- ing. The spiritual courts had few friends ; their penitential discipline was exercised harshly, vexatiously, and irrationally, and being supported by temporal penalties aroused the most vehement opposition, which played no small part in bringing about the catas- trophe of the mid-century in Church and State. Like the rest of the ecclesiastical order the courts emerged from the time of disorder intact in form but robbed of much power. In particular severe restraints were put upon procedure ex officio or without in- dependent complaint. Throughout the eigh- teenth century and part of the nineteenth the spiritual courts continued to live on their tradi- tions, maintained by the important corporation of advocates known as Doctors' Commons ; but their proper work was restricted, and to a great extent rendered nugatory, by statutory legislation forbidding them to proceed against legally tolerated dissenters, a further con- sequence and a necessary consequence of the temporal penalties touching contumacy. Since the middle of the nineteenth century these influences have reduced the courts of spiritual discipline to impotence. Their posi- tion has been worsened by statutory legisla- tion intended for their reform, which has had some good effect in particular, notably in regard to the manner of taking evidence, but has been designed with so little regard to ecclesiastical principles that doubt has been thrown upon the spiritual competency of the OF ECCLESIASTICAL JURISDICTION 161 courts affected. History bars the contention sometimes put forward that a court reformed by Statute Law loses its spiritual character at once ; such legislation might be accepted now, as in the past, and even become an integral part of Church Law, but only if it conforms to true principles of church government. The greatest offence has been given by the Church Discipline Act of 1840 and the Public Wor- ship Regulation Act of 1874; the latter has met with such determined resistance as to become a dead letter. A slight improvement is observable in the Clergy Discipline Act of 1892, which sets the bishop free in some cases to proceed summarily to the imposition of censures, and sets up in other cases a mode of inquisition which, though eminently unspiritual, is merely preliminary to a spiritual censure imposed, under perilous restrictions, by the bishop in person. These statutes may be regarded as touching the mixed jurisdiction of the spiritual courts. They are more conclusively regarded as an external influence brought to bear upon the L 162 A HANDBOOK OF CHURCH LAW Church, importing some good things which will certainly be incorporated into Church Law, but causing for the present a lack of confidence and a doubt of the competency of the tribunals which paralyse ecclesiastical dis- cipline. We are concerned only with genuine Ecclesiastical Law, and it seems sufficient for the present time to say that the only essen- tials of a competent diocesan court of dis- cipline are these : It must be presided over by the bishop or by an official freely commissioned by him, and must freely administer genuine Ecclesiastical Law. The appointment of a layman as official is a serious abuse, but it does not appear that he is incompetent to act as judge. The sacred canons only require that sentence of deprivation or deposition of a clergyman shall be given by the bishop himself. Conciliar Jurisdiction is that which is exer- cised by several bishops in common. It is either general or provincial. The universal jurisdiction, independent of councils, claimed by the Roman pontiff is not now allowed by OF ECCLESIASTICAL JURISDICTION 163 the English Church, though it was once freely acknowledged, and many consequences of it survive in Ecclesiastical Law. General. A Council or Synod may assemble in various degrees of generality, from an Ecumenical Council of the whole Church to a National Council such as those held in England during the thirteenth cen- tury. The episcopal meetings occasionally gathered of late years from various parts of the world under the presidency of the Arch- bishop of Canterbury, if properly organised as synods, would come into the category of General Councils. A General Council has legislative power extending to all its con- stituent parts, and disciplinary jurisdiction to hear appeals, in cases of extreme need, from the provinces which it includes. Provincial jurisdiction is partly retained by the provincial synod, partly deputed to the metropolitan. Legislative jurisdiction is in the assembled bishops, who may not promulgate anything, where custom so rules, without the consent 164 A HANDBOOK OF CHURCH LAW of the clergy. By parity of reason it would seem that the Synod may bind itself to promulgate nothing without the consent of representative laymen, but this may be doubted. Dispensative jurisdiction is vested in the metropolitan, whose dispensations run through- out the province. The special marriage licences of the Archbishop of Canterbury which run throughout England appear to be not provincial, but a relic of legatine juris- diction granted by the Roman pontiff. Voluntary jurisdiction is in the hands of the metropolitan. It is concerned chiefly with giving mission to the diocesan bishops by confirmation or consecration. The metro- politan can confirm alone ; he is required to take at least two bishops with him for a con- secration. The other bishops of the province are competent to confirm, and when the metropolitical see is vacant this function is usually committed to four of them. Less properly, but not irregularly, it is entrusted to a neighbouring metropolitan. In addition OF ECCLESIASTICAL JURISDICTION 165 to this the metropolitan takes over the volun- tary jurisdiction of a diocese during the vacancy of the see. He has a vicar-general, with ordinary jurisdiction for these functions. The contentious jurisdiction of a province is concerned at first instance with disciplinary process against a bishop, and with appeals from diocesan courts. It is held by good authorities that a charge of heresy must be investigated and judged, whether at first instance or on appeal, by the provincial synod, but in two or three cases during the last century this rule was not followed. For all other purposes there are provincial courts presided over by the metropolitan or his official, except that the king claims by Statute Law (i Eliz. cap. i) to have all causes in which he is concerned determined by the synod. The Audience is a court of the province of Canterbury in which the metropolitan sits, with several bishops as assessors, to hear and determine complaints against a bishop. The Court of Archest the ordinary provincial 1 66 A HANDBOOK OF CHURCH LAW court of Canterbury, so called because in former days the official was invariably dean of the peculiar of St. Mary at Arches in the city of London, and for the convenience of suitors sat within its precincts. The corresponding court at York is known as the Chancery. The provincial court can at first instance hear a duplex querela (p. 188) against a bishop, and also entertain any case sent from a diocesan court by letters of request. It can receive appeals from the diocesan courts in all causes, unless heresy, as above noted, be excluded. Appeals to the Roman court being dis- allowed, Ecclesiastical Law knows nothing of any appeal in ordinary cases from the pro- vincial jurisdiction, the English Church adhering in this respect to the ancient Canon Law. In the year 1164 Henry II. attempted by the Constitutions of Clarendon to restrain appeals to Rome, forbidding any appeal beyond the provincial court without the king's consent. At the same time he provided for recourse to the Crown in case of any failure of OF ECCLESIASTICAL JURISDICTION 167 justice in the archbishop's court. In that case the king would order a rehearing in the pro- vincial court, apparently with a peremptory order to do justice in the matter alleged. This law remained practically inoperative until the passing of the Statutes of Appeals in 1533 and 1534(24 H. viii. c. 12, and 25 H. viii. c. 19), which peremptorily forbade all recourse to the Roman court. At the same time the recourse to the king allowed by the older law was converted into a sort of appeal, the king being authorised, on complaint of lack of justice in the archbishop's court, to issue through his chancery a commission appointing certain delegates to hear and determine the cause and to give judgment and definitive sentence. Intended, no doubt, chiefly to supervise the mixed jurisdiction of the spiritual courts, and seldom called into action for any other purpose, this court of delegates continued in existence until the year 1832, when its powers were transferred to the King in Council, and were ordered by a statute of the following year (3 and 4 Will. iv. c. 41) to be 1 68 A HANDBOOK OF CHURCH LAW exercised by a judicial committee of the Privy Council. Great confusion has been caused by the action of this committee in regard to spiritual causes ; but its jurisdiction, though exercised in control of the ecclesiastical courts, is purely temporal, and lies outside our limits. CHAPTER IX OF PASTORAL CARE THE pastoral care of souls (cura animarum} is exercised in the ministry of the Word and of the Sacraments, by which the people of God are nourished and led on to perfection. The bishop is the pastor of all the faithful in his diocese. His functions are to teach, to exhort, and to rule them by the ministry of the Word, and to bring them under the operation of grace by the ministry of the Sacraments. He does this either by himself, or by the aid of others. Some functions are reserved to him. He alone administers confirmation and ordina- tion. He may reserve other things, as the power of absolution in certain cases. At one time he alone was the ordinary minister of public baptism, others administering it privately in case of necessity ; he must still be 169 170 A HANDBOOK OF CHURCH LAW consulted before any adult is baptized. His powers may be limited by the privileges of certain places, but to speak generally he can minister throughout his diocese, can preach any- where, can receive the confessions of any of the faithful, and absolve them. In principle he is also bound to do all this according to his ability; but since the multiplicity of his cares prevents him from doing more than a very small part of the work himself, he appoints others to do it in partnership with him. The persons so appointed are either licentiates or curates. Licentiates receive from the bishop a com- mission to preach or to administer the sacra- ments either generally throughout the diocese, or in some particular district. Priests residing in a diocese without being assigned any special functions usually receive a general licence. Deacons and readers may also receive such a licence ; but in some cases the latter are restrained to a particular parish. Readers are usually restrained from preaching in conse- crated buildings, but in some dioceses they are allowed to do this if the permission is OF PASTORAL CARE 171 expressed in the licence. A special licence may be granted allowing a priest to preach and administer the sacraments in a private or proprietary chapel. All such licences are granted at the discre- tion of the bishop, and may be withdrawn by him at his pleasure. Application for a licence must be addressed to the bishop himself or to his secretary. There are also privileged licentiates who are held by presumption of law to be entitled to preach and to administer the sacraments with- out express permission from the bishop. These were at one time very numerous, including all members of the various orders of friars. At present they are found in the members of certain colleges, as at the universities, and by ancient custom (Lyndwode, p. 289) graduates in theology, admitted by a competent university, enjoy this privilege everywhere. A privilege doubtfully conceded to the private chaplains of noblemen was more closely restrained in con- sequence of the power claimed in the eighteenth century by Selina, Countess of Huntingdon, to 172 A HANDBOOK OF CHURCH LAW authorise her chaplains to conduct divine worship anywhere in the country. It is now permitted only in domestic chapels. A limited authority is in practice extended to curates, enabling them to admit a priest to the occasional exercise of his office without episcopal licence. The bishop retains, and not unfrequently uses, the power to inhibit such exercise. The limits of the curate's dis- cretion are fixed by the custom of each several diocese. Curates are appointed in the manner above described (ch. vii.). We are not here con- cerned with the distinction between the several kinds of curates, except so far as to observe that where a curate having the status of incumbent (p. 81) is in charge of a parish, any other curates of the parish are required to minister under his direction. This is not indeed expressed in the instrument of their appointment, but it is established by custom. It is the general practice for the bishop to with- draw the licence of any such curate who refuses the common measure of subordination. OF PASTORAL CARE 173 This measure, however, is not precisely fixed, and difficulties concerning it are not unfrequent. It is commonly understood that the conduct of divine worship, the order of preaching in church, and at least the public administration of the sacraments, are under the immediate control of the curate-incumbent, to whose directions, unless they be unlawful, other curates must conform. But it is not generally ascertained how far the incumbent may control his colleagues in respect of the frequency of their ministrations, or of the manner in which they are performed in private. In exceptional circumstances the bishop may direct or allow a subordinate curate to use great freedom in these matters, and to exercise his ministry in practical independence. These things premised, the distinction need no longer be observed. Where a curate is spoken of in this chapter we are to understand a curate-incumbent, or one acting under his direction, commonly known as an assistant- curate. Teaching. It is the duty of the curate to 174 A HANDBOOK OF CHURCH LAW instruct the people of his parish in Christian doctrine ; and first, the unbaptized. As we have seen (p. 50), there is now no organised catechumenate in the Church of England, our laws and customs being chiefly formed in times when the whole population was Christian. A rubric of the baptismal office directs that when adults are to be baptized, notice shall be given to the bishop, or some person ap- pointed by him, in order that the candidates may be examined whether they be sufficiently instructed in the principles of the Christian religion. The decision whether a person shall be baptized or no seems therefore to be re- served to the bishop ; but no provision is made for the instruction of the candidates. This duty therefore lies on the curate, as repre- senting those to whom the Lord gave his commission to make disciples of all nations. The children of the Church, being baptized in infancy, need instruction afterwards. The duty of providing this lies naturally on their parents, and by the rule of the Church on their god - parents also ; but these are warned to OF PASTORAL CARE 175 fulfil this duty by bringing their charges to the teaching of the curate. A rubric directs the curate to instruct the children sent to him after the second lesson at Evening Prayer on all Sundays and holidays. This rubric, how- ever, seems to be merely directive, showing how this is to be done, if done during divine service. The express rule on the subject is contained in a canon (Code of 1603, No. 59), which requires the curate to give to this work half an hour or more, before Evening Prayer ; and to this rule the common practice conforms. The obligation, as regards other holy-days than Sundays, may be considered obsolete, in consequence of accepted changes in the manner of observing those days ; but though not obligatory, a catechism publicly held on such days may be of the greatest practical value, and is highly to be com- mended as in accordance with the mind of the Church. Catechism. The curate is bound to use the Catechism of the Church as, at least, the model and standard of his instruction. 1 76 A HANDBOOK OF CHURCH LAW Schools. In the seventeenth century and later the law of the Church required all schoolmasters to be licensed by the bishop, and to use the Catechism in their teaching. This rule is not now observed. In some parishes there are schools where the power of giving religious instruction is expressly reserved to the curate by a trust-deed. The Education Act of 1902 has made this power very pre- carious, subjecting it in most cases to the control of a secular committee, and so de- stroying its ecclesiastical character. Where it survives it may still be exercised, but how- ever great the moral obligation laid upon the curate to make the best possible use of oppor- tunities thus afforded him, he does not seem to be canonically bound to teach in such schools. He is free to adopt in his discretion any methods of teaching whatever, apart from the obligatory instruction to be given in the church on Sundays. Confirmands. When the bishop announces a confirmation, the curate is required to send him a list of the persons in the parish whom OF PASTORAL CARE 177 he thinks fit to be presented. As a certain measure of instruction is required in those to be confirmed, it follows that the curate must at least ascertain the degree in which these persons are instructed in Christian doctrine. He is further required by the sacred canons (Code of 1603, No. 61) to ' use his best endea- vour to prepare and make able, and likewise to procure as many as he can ' to be confirmed. The law leaves the curate to act on his own discretion with regard to the further instruction of the faithful. Preaching, as distinct from teaching, is the proclamation of the Gospel to unbelievers, or the exhortation of the faithful to live according to the rules of the Christian religion. Preach- ing is a function which the bishop may reserve to himself, or to persons specially licensed. At certain periods there has been such re- servation. 1 At the present day all curates, except deacons in some dioceses, have an 1 We are not concerned with the restraint of preaching by the civil authorities, which was common in the sixteenth and seventeenth centuries. M 178 A HANDBOOK OF CHURCH LAW unrestrained right of preaching in their parishes. The custom of the Church, attested by a rubric and enforced by various canons, re- quires the curate to preach during divine wor- ship on Sundays. There appears to be no obligation as regards other holidays. This obligatory sermon is to be preached, according to the direction of the rubric, after the Nicene Creed. This rubric, being merely directive, does not call for a sermon to be preached on every occasion to which it may apply, but refers only to those times when the law of the Church requires it. The curate may preach at other times, whether in the church or elsewhere in his parish, at his discretion. He may not preach beyond his own parish without the consent, at least tacit, of the bishop and curate of the place. A preacher, if not vested for officiat- ing in divine worship, should wear his full canonical habit (p. 65, Const. Concionatores of 15/1). It is customary to preach a sermon after OF PASTORAL CARE 179 evensong on Sundays, the practice having begun in the seventeenth century with the establishment of special lectureships for this purpose, and gradually become general. Statute Law (Pluralities Act, I and 2 Viet, c. 106, 80), following on this custom, em- powers the bishop to order, at his discretion, two sermons in the parish church, and in some cases also in chapels of ease, on all or any Sundays. It is doubtful whether this practice has been so far adopted by the bishops as to become an established ecclesiastical custom. Strange Preachers. By Arundel's constitu- tion, Reverendissimae, A.D. 1408, no person other than the curate of a place may preach without showing his authority for doing so. The canons of 1603 further require church- wardens to demand the exhibition of this authority by all strange preachers, and to enter their names and qualification in a book to be reserved for the inspection of the bishop. These provisions of law are very seldom re- called, but they are probably not abrogated by desuetude. It is understood that all curates i8o A HANDBOOK OF CHURCH LAW and other beneficed priests are allowed to preach, unless inhibited by the bishop, wher- ever they may be invited by the curate of the place. Orthodoxy. A preacher, since he is acting ministerially, is bound to deliver the doctrine of the Church and not his own opinions. This means, in practice, that when he goes beyond the formulated teaching of the Church he ought to guard his words by intimating that he is uttering only matter of opinion. Preachers are forbidden by the sacred canons (Code of 1603, No. 53) to contradict one another, in regard to open questions or lawful opinions, in the same church or neighbourhood, unless by direction of the bishop such controversy be allowed ; the reason being that the faithful are not to be disturbed by such public oppositions. Visitation is a regular exercise of ecclesiasti- cal authority over communities or individuals (p. 151). The curate is required to visit the several members of his flock at his discretion. According to his promise made at ordination, he must ' use both public and private monitions OF PASTORAL CARE 181 and exhortations, as well to the sick as to the whole.' The purpose of such visitation is private teaching and preaching, and in the case of the sick, the ministration of the Sacraments. Visitation of the Sick is a duty more especially imposed by law upon the curate. The constitu- tion of Stephen Langton, Presbyterorum, A.D. 1222, expressly required him to go only when summoned, but, as Lyndwode comments, the general law of the Church extends the obliga- tion. So the 6/th canon of 1603 requires the curate to resort to any whom he knows to be dangerously sick, to instruct and comfort them. An exception was then made in the case of a disease known or probably suspected to be infectious. This was perhaps intended to relieve the curate from any obligation to contravene a recent statute (i Jas. I. c. 31), strictly enjoining the separation of the infected from all company. As a dispensation from the general duty of visiting the sick it is pro- bably still valid, but to be used only in the interest of the public health, not for the 1 82 A HANDBOOK OF CHURCH LAW curate's own ease, and with due regard to the spiritual needs of the sufferer. The rubric for the Communion of the Sick clearly contem- plates ministration to the infected. A curate allowed to preach, as all are now except some deacons, is not bound to use the exhortation included in the Order for the Visitation of the Sick. He is bound to use the opening office of the order when required by notice to do so. Ministration of the Sacraments. The curate is bound to administer the sacraments to his people according to their needs. He has a certain discretion in this matter, being a steward of the mysteries of God, but his dis- cretion is strictly limited. He may not arbi- trarily withhold a sacrament from any one entitled to receive it. Sacraments are here spoken of in the wider sense of the word, including those seven commonly accepted in the Church. Fees. A curate is strictly forbidden to make any charge, directly or indirectly, for the ad- ministration of a sacrament. Fees may law- OF PASTORAL CARE 183 fully be charged for other services rendered in connection with the administration, as for registration or certification ; but the sacra- ment must not be withheld in default of payment, actual or promised. The breach of this rule is an act of simony, for which the offender is liable to the severest censures of the Church. Residence. Every curate, beneficed or licensed, is normally required to reside within the parish of which he has charge. The pre- sent custom of the Church of England allows a beneficed priest to absent himself for not more than three months in any one year, so only that he provides for the discharge of his office by a sufficient substitute. There appears to be no such exception of law in favour of an unbeneficed curate, who may not therefore be absent without the permission of his superiors, the incumbent or the bishop. The actual place of residence for an unbeneficed curate is defined in his licence to be within the parish, or within a certain distance from the church which he is to serve. A curate who holds cathedral pre- 184 A HANDBOOK OF CHURCH LAW ferment is further allowed to absent himself from his parish during such time as is required for the fulfilment of his duties in matre, pro- vided that his total absence does not exceed five months in the year. CHAPTER X OF PUBLIC WORSHIP ONE of the chief functions of the Church is the offering of public worship to Almighty God. The normal place for this worship is in the mother -church of the diocese, or in parish churches duly appointed. The ancient observ- ance of devotions at the tombs of martyrs led to the development of a system of more private chapels, which in the East are usually separate from the public church, but in the West are commonly contained within its walls. Other chapels are subsidiary to parish churches, being founded when the parishioners are numerous or remote ; and others, again, are licensed for religious houses, colleges, or other institutions, to some of which the faithful in general are admitted. In some cases a chapel is allowed within a private house. 185 i86 A HANDBOOK OF CHURCH LAW The faithful are required by law to worship ordinarily in their respective parish churches or chapels of ease. The cathedral or mother- church of the diocese is, however, open to all. Churchwardens are directed by the sacred canons to present those who are absent on Sundays and holidays (Code of 1603, can. 90), and especially such as resort to other churches ; and any curate receiving to the sacraments persons from another parish than his own is liable to suspension (ibid. can. 57). The ministry of public worship is committed to the bishop with the priests and other clerks in matre at the cathedral church, to curates and other clerks in parish churches, and to clerks licensed for the service of particular chapels. It is understood that these may invite any qualified clerk to help or replace them on occasion, if he be not inhibited by the bishop, but this occasional help is not to be extended into habitual service without the bishop's licence. Turns of ser- vice in a cathedral are regulated by the local statutes, or by decree of the chapter; OF PUBLIC WORSHIP 187 in a parish church and its chapels by the incumbent. The time of public worship is ordered to be on all days appointed to be kept holy and their eves, 'at convenient and usual times of those days' (Code of 1603, can. 14). The curate is understood to have a limited discre- tion in appointing the hour of worship in a parish church, so that he does not transgress this rule. The recitation of the Litany is also expressly ordered on all Wednesdays and Fridays ' at the accustomed hours of service ' (ibid. can. 15). In addition, the clergy are bound to recite the divine service daily, and a rubric in the ritual states that curates are required to do this, unless reasonably hindered, publicly in church. Additional devotions may be held in parish churches at times appointed by the curate. Orderliness in public worship is secured by the churchwardens and sidemen, who have power to place the parishioners in church, subject to the directions of the Ordinary. They do not appear to have any authority by i88 A HANDBOOK OF CHURCH LAW Church Law to appropriate seats or places permanently to favoured persons, though power is given them by Statute Law to do this^in some new parishes, and to enact pay- ment for the favour. For further security of order the Common Law of England is said to allow sidemen and beadles some of the legal powers of a constable within the church. Brawlers or disturbers of divine worship, once restrained by ecclesiastical censures, are now more summarily dealt with by the police and the civil magistrate. The ritual of public worship for the English Church is contained in the Book of Common Prayer t etc. All ministers in parish churches are required by the sacred canons to observe this ritual ' without either diminishing in regard of preaching, or in any other respect, or adding anything in the matter or form thereof ' ; and it is to be used also in all chapels ' without any omission or alteration ' (Code of 1603, can. 14 and 16). A necessary limit to this obligation is implied in the declaration of assent imposed on all candidates OF PUBLIC WORSHIP 189 for holy orders and all newly admitted curates by a canon of the year 1865, in which they promise, ' In all public prayer and administra- tion of the sacraments I will use the form in the said book prescribed, and none other, except so far as shall be ordered by lawful authority! This limitation points both to future pro- vincial or diocesan legislation and to the dispensing power of metropolitan or bishop. The effect of the latter is seen in the per- mission generally accorded to omit certain exhortations which are rather attached to the ritual than integrally . incorporated. Legis- lative changes have been effected only by the growth of custom, which requires, it must be remembered, the entire, even if only tacit, consent of the episcopate. They are seen in the adoption of a new lectionary, and in the introduction of popular hymns to be sung during the pauses of the ritual. Apart from changes in the established ritual the bishop's ius liturgicum has been actively exercised in the authorisation of additional devotions. Until recently it seemed that growing custom i9o A HANDBOOK OF CHURCH LAW might sanction the use of such devotions in a parish church on the sole authority of the curate ; but vigorous action by the bishops in the year 1898 arrested this development. The power of the bishop in this regard is strictly legislative : if it be exercised for the whole diocese the act should be promulgated in synod ; if for a particular parish, it should be pro- mulgated as publicly as possible in the parish church. It is doubtful (p. 153) whether any such act done otherwise than in synod retains effect after the death or cession of the bishop. By ritual we are to understand what the Church expressly commands to be said or done. What is to be said is contained ex- clusively in the Book of Common Prayer and in the additional rites authorised by the episcopate. What is to be done is not ex- clusively there set out, but has sometimes to be ascertained by reference to other sources. The manner of performing the ritual, which may be conveniently described as ceremonial, is in part prescribed, in part left to the discre- tion of the responsible minister, as the chapter OF PUBLIC WORSHIP 191 in a cathedral, the curate in a parish church, subject always to legislative action in diocese or province. The use of music, vocal or instrumental, is in the discretion of the responsible minister, the curate in a parish church, the proper officer in a cathedral. Rubrics are marginal notes in ritual books intended to help the memory of the minister in regard to the conduct of public worship. They do not make up a complete directory, which indeed, if interpolated in the text of the rite, would be most cumbersome and distract- ing. The value of rubrics in law is disputed. There are some who treat them as positive law. This extreme opinion seems to be refuted by the history of rubric, both name and thing. The name was first applied to the abstracts of chapters and marginal references in books of the Civil Law, which were written in red ink expressly that they might be dis- tinguished from the authentic text ; it was afterwards applied to similar notes in ritual books. The earlier books of the kind were 192 A HANDBOOK OF CHURCH LAW scantily or not at all supplied with such notes. The directions for the ministers, so far as they were reduced to writing at all, were contained in other books, and these were usually nothing else but descriptive records of what was customarily done. When some degree of ritual uniformity was attained by the general use throughout the West of the Roman ritual, descriptive records of the traditional cere- monies used in the Roman Church were much in demand, any such record being known as Ordo Romanus. Fragmentary notes from the Ordines gradually found their way into the ritual books as rubrics, and to this day the rubrics of the Roman missal are in language descriptive, and not imperative. It is obvious that these rubrics had no value in law, except as evidence of what was customary. Certain churches, however, had elaborate directories of worship definitely imposed by authority. Conspicuous among these in England was the cathedral church of Salis- bury, the Consuetudinary and Custumary of which were noted for their completeness, and OF PUBLIC WORSHIP 193 acknowledged as a standard of excellence. Considerable extracts from them, always imperative in form, were incorporated as rubrics in missals of the fourteenth and fifteenth centuries, and still more in the fifty editions of printed missals published for use in England before 1540. It is obvious that such rubrics, elsewhere than at Salisbury, were nothing more than suggestions, to be followed as convenience and local usage dictated. The common use of missals in this form would, no doubt, tend to produce greater uniformity, but they imposed no obligation. The first English Prayer Book, brought into use in 1549, adhered to the national type in regard to the imperative form of rubrics, but reverted to an earlier type in having few, and those not very precise. It cannot be doubted that this paucity of rubric was meant to prepare the way for changes in the customary ceremonial. This was scrupulously adapted to the new ritual by those who cared for it, but others were allowed to vary it freely. As soon as the book was established in use N i 9 4 A HANDBOOK OF CHURCH LAW both royal and episcopal injunctions began to encourage and even to command innova- tion. Subsequent revisions added little to the rubrics, which remain essentially what they were, either references to positive law or evidence of customary usage. The Ornaments rubric, for example, about which so much has been said, is merely a quotation from a statute, the Elizabethan Act of Uniformity, and as positive law it is worth exactly what it is worth in the statute, acquiring no further value by being printed in the margin of the ritual ; as a rubric it is evidence, to be taken with other evidence for what it is worth, of the intention of the Church to retain certain usages that prevailed in a given year. What those usages were must be ascertained from learned ritualists and antiquarians ; the rubric is not in itself a ceremonial law. The conception of rubric as law is probably derived from the great ritualists who in the seventeenth and eighteenth centuries studied the Roman Missal and Breviary. Though not entirely at one on this subject they OF PUBLIC WORSHIP 195 generally maintain the affirmative. But they proceed exclusively on the ground that the bulls of Pius V., Quo tempore and Quod a nobis, impose the obligation of observing the rubrics in detail ; and even the strictest of them still distinguish between rubrics which are pre- scriptive and those which are merely directive. The English canons do not go so far : they merely order the exclusive use of a prescribed ritual, without descending to minute details. In the middle of the nineteenth century a wholesome reaction from prevailing laxity brought with it an almost superstitious regard for rubrics, which was disavowed by the bishops of the time. Quite another matter, and outside our scope, is the con- tention of lawyers that the Prayer Book, with all its minutest rubrics, by being annexed to the Act of Uniformity acquired the force of Statute Law. But even on that ground it may be urged that the book was annexed as a whole, and must be interpreted simply as a ritual book with its usual limitations. In sum, the rubrics are first-rate evidence 196 A HANDBOOK OF CHURCH LAW of what is obligatory, though some are inconsistent with positive law, as that about catechising during Evensong (p. 175), some refer to an ideal that was never attained, and some to a state of things that is obsolete. They must be read with caution and with reference to other evidence, by means of which ministers of public worship should inform themselves of their duties. The form of public worship is twofold. There is in the first place that which is used at the chief assembly of the faithful. It is known to the Greeks as the Divine Liturgy ; to the Latin Church as Missa, a term of obscure origin which, starting from the sense of dismissal, took to itself the meaning of the assembly which is dismissed and the action which has been performed. The English derivative Mass fell into disfavour in the sixteenth century through association with mediaeval abuses. Similar derivatives are used throughout Western Europe, both by Catholics and by heretics, except among Calvinists who have abandoned both name and thing, and in OF PUBLIC WORSHIP 197 certain parts of Germany where the native term Hauptgottesdienst is in use. In this book it is called the Mass for the simple reason that no convenient substitute exists in the English language. The structure of the Mass, though varying in detail, is essentially the same throughout the Church. It consists of a collection of prayers, hymns, and lessons from Scripture, culminating in the consecration and con- sumption of the Sacrament of the Lord's Supper or Holy Eucharist. The form appointed for use in the English Church is the Order of the Administration of the Lord's Supper or Holy Communion appended to the Book of Common Prayer. No priest may vary this in the slightest degree, by addition or subtraction, without the permission of the Ordinary. The interpolation of popular hymns in the pauses of the rite, and the omission of certain exhortations, are com- monly tolerated. The bishop may authorise new forms for the variable parts of the pre- scribed order, and it seems that he can upon 198 A HANDBOOK OF CHURCH LAW occasion allow the substitution of a totally different rite. Mass has thus been celebrated according to the Armenian rite in a parish church within recent years, and a bishop is said to have authorised the use of the former English rite of 1549 in a private chapel, and the use of the Latin rite after the Benedictine form in a religious house. The omission of consecration and com- munion makes a Dry Mass (Missa siccd), a form now unknown to churches of the Roman rite, but commonly used in the middle ages, as now also throughout the Eastern Church when the priest is hindered from consecrating, and expressly provided for on occasion by a rubric in the English ritual. Another form without consecration, but with communion from the Eucharist previously consecrated, known as the Mass of the Presanctified, is used in Lent by the Easterns, on Good Friday only according to the Roman rite : there is no provision for it in the English ritual. The Litany is a form of prayer normally OF PUBLIC WORSHIP 199 said at the beginning of the Mass, but avail- able for use at other times. The second form of public worship is known as the Divine Service, or Common Prayer, also as the Divine Office. This consists essentially of the recitation of psalms and lessons drawn from holy scripture or the writings of the saints, with brief prayers annexed. Some- thing of the kind probably existed from the first years of Christianity, and in the second century it seems to have taken the form of a vigil or night watch, followed by the Mass at dawn. In the fourth century it appears to have had in the main a private character, per- formed by the more devout laity who were approximating to the life of regulars, the clergy intervening only for the concluding prayers. These devotees were, however, allowed the hospitality of the churches, and a more public character was eventually given to the service. It was developed on slightly different lines by the later monks. The Divine Service or Common Prayer of the English ritual consists of the two offices of 200 A HANDBOOK OF CHURCH LAW Mattins and Evensong. It retains a trace of its origin in the obligation to recite it privately, if not publicly, laid upon the clergy. It is to be publicly recited on all Sundays and holidays at least, and the curate of a parish church should read it publicly at accustomed hours on other days as well, unless he be reasonably hindered. It is doubtful, however, whether he is liable to censure for neglecting this. The custom of the English Church, never varied until within recent years, and probably still binding, requires the recitation of Mattins at the accustomed hour, to be followed, with or without a brief interval, by the celebration of Mass. When for any good cause there is to be no communion, the Dry Mass is celebrated. On Sundays, Wednesdays, and Fridays, and other days appointed by the Ordinary, the Litany is to be said between Mattins and Mass. Presumably this is to be done only when the service is of those days ; and the occurrence of a festival will therefore exclude the Litany, unless it be otherwise ordered. OF PUBLIC WORSHIP 201 There seems to be no excuse for any breach of this traditional order of service. The various offices may be used independently and additionally at other hours, but not to the neglect of their use at the normal hour of worship. The parishioners are required to provide most things needed in the celebration of divine worship, but candles for burning at the Mass are to be supplied by the curate (Win- chelsey, Ut parochiani, and Lyndwode's gloss). Bread and wine for the communion are to be furnished by the churchwardens, 'with the advice and direction of the Minister,' at the charge of the parish (Code of 1603, can. 20). A rubric says that ' it shall suffice that the bread be such as is usual to be eaten, but the best and purest wheat bread that conveniently may be gotten'; but in spite of this the use of wafer-bread was enforced both by royal and by episcopal injunctions, Parker also inquiring about it in his Visitation Articles of 1569. He explained that the rubric referred only to cases in which wafer-bread could not 202 A HANDBOOK OF CHURCH LAW be obtained, or was likely to provoke super- stition, ' a toleration in these two necessities ' (Strype, Parker \ p. 310). Any of the bread or wine not used in the celebration of the Mass becomes the property of the curate. The alms of the faithful contributed at the Offertory of the Mass are at the disposal of the curate and churchwardens for pious and charitable uses. In case they cannot agree, reference must be made to the Ordinary. Collections of alms at other times of public worship, now common, are not provided for by law; the alms then contributed appear to be at the disposal of the curate. The full Mass, with communion, is the normal form of worship for all Sundays and other holidays at the least ; the Dry Mass should never be substituted on these days, but from imperative necessity. A rubric points to the communion of all the higher clergy in matre every Sunday at least. This is a re- ference to the standing custom of the Church. The canons of the Code of 1603, however, required communion in cathedral and colle- OF PUBLIC WORSHIP 203 giate churches only 'upon principal feast- days,' in parish churches only ' so often and at such times as every parishioner may communi- cate at the least thrice in the year/ and in colleges on 'the first or second Sunday of every month' (can. 21, 23, 24). These consti- tutions must not be read to overthrow the ancient practice of the Church. They are re- lated to a practical infrequency of communion induced at the time by a rubric saying that ' there shall be no celebration of the Lord's Supper, except there be a good [afterwards altered to convenient] number to communicate with the priest, at his discretion.' His discre- tion was limited by a further suggestion that ' if there be not above twenty persons in the parish of discretion to receive the communion ; yet there shall be no communion, except four (or three at the least) communicate with the priest.' This implies that a convenient number means a certain proportion at least of all possible communicants, namely about one-sixth. In this sense two bishops of the sixteenth century, Parkhurst of Norwich and 204 A HANDBOOK OF CHURCH LAW Middleton of St. David's, endeavoured to en- force the observance of the rule by Injunctions and Visitation Articles {Ritual Commission, ii. pp. 402 and 426), and though not founded on positive law, it became a root of custom, pre- vailing until comparatively recent times. It was, however, inconsistent with the rule set out in a rubric requiring communion at marriage, the observance of which, on days when there was no general communion, was expressly enjoined by the bishop of Norwich in the year 1636. (Ibid. p. 565.) Uniformity of public worship in the legal sense is a matter purely of Statute Law. The Acts of Uniformity from Edward VI. to Charles II. were attempts, never successful, to compel all residents in the kingdom, except some few favoured persons, to worship according to the forms of the Church and not otherwise, and also to tie the authorities of the Church to one unvarying order. The former principle was abandoned by the Toleration Act of 1690, the latter by the Act of Uniformity Amendment Act of 1871. CHAPTER XI ADMINISTRATION OF THE SACRAMENTS AND OTHER RITES OF THE CHURCH Baptism was publicly and solemnly adminis- tered, according to the ancient rule of the Roman Church which spread throughout the West, by the bishop alone, on the eves of Easter and Pentecost and at no other time. In case of need it was administered privately at other times and by other persons. A dispute which agitated the Church in the third century, respecting persons capable of conferring baptism, was eventually settled by the general recognition of any baptism as valid if celebrated by any person whatever in the proper matter and form and with right intention. The difficulty of bringing children long dis- tances to be baptized by the bishop led to a 205 206 A HANDBOOK OF CHURCH LAW relaxation of the above rule, and the public administration of the sacrament devolved on curates. The possession of a baptismal font came to be regarded as the characteristic mark of a parish church. By a further relaxation the public baptism of infants was allowed, though with diminished solemnity, at all seasons. At the national councils held in England during the thirteenth century an attempt was made to revive the former dis- cipline, but without success, and in 1281 Peckham, in provincial synod, prescribed a merely nominal observance of it by the reser- vation of children born within eight days of Easter and Pentecost for baptism at the solemn times, requiring all children born at other seasons to be baptized, according to custom, as soon after birth as the parents desired. The rubric of the baptismal office in the Prayer Book of 1549, recalling the ancient rule and its long decay, strongly commended the celebration of baptism on Sundays and holidays in the presence of the people gathered together for divine service. The recommenda- ADMINISTRATION OF SACRAMENTS 207 tion remains in the present Prayer Book, and the rubric further directs the celebra- tion of Baptism immediately after the second lesson at Morning or Evening Prayer. Another rubric directs the curate to admonish the people not to defer the baptism of children longer than the first or second Sunday after birth. These rubrics seem to be merely directive, but they testify to the custom of the Church, which, though weakened by variety of practice in late years, is not destroyed. The time for the public administration of baptism is therefore during divine service on a Sunday or holiday soon after the birth of the child. For a good reason it may be administered more privately at other times, and in case of extreme need in private houses, with the least possible ceremony. In the latter case the person baptized must after- wards be brought to the Church, if possible, as directed by the ritual, for the addition of the omitted ceremonies. The curate must at once baptize any infant in his parish credibly reported to be in danger of death. Except 208 A HANDBOOK OF CHURCH LAW in this case he is not bound to baptize any but those who are ' brought to the church to him upon Sundays or holidays to be christened ' (Code of 1603, can. 68). The minister of baptism is ordinarily the bishop or the curate. A deacon is expressly allowed to baptize in the absence of a priest (Ordinal}. In strict privacy any man or woman may baptize, if the subject seem to be in immediate danger of death. The rubric for private baptism directs it to be done by the minister of the parish, or, in his absence, by any lawful minister that can be procured. There is no doubt that by a lawful minister is intended one in Holy Orders ; the words were introduced in 1604 a ^ the instance of those puritans who objected to baptism by a lay- man, or even questioned its validity. The rubric cannot, however, override the general law of the Church, which fully recognises lay baptism as lawful in case of necessity. Many canons and constitutions require the curate to instruct his people in the mode of baptizing, with a view to their acting in any emergency. ADMINISTRATION OF SACRAMENTS 209 They may do this ; but the rubric emphasises the duty of procuring a 'lawful minister' if possible. The matter and form of baptism, being prescribed by the Divine Law, must be strictly retained in all cases, and in public baptism the whole ritual must be observed. Conditional Baptism. Baptism impresses character, as theologians say, and may never be repeated. If there be a doubt whether a person has been baptized, or about the validity of his baptism, he should be conditionally baptized with the form prescribed in the ritual, ' If thou art not already baptized, I baptize thee,' etc. The subject of baptism is an infant not yet arrived at years of discretion, that is to say, incapable of discriminating sin, or an adult person who has received proper instruction. The curate must at once baptize any infant brought to him at the proper time with suitable sponsors. An adult should not be baptized without reference to the bishop (p. 174). Sponsors are required at the baptism of an o 210 A HANDBOOK OF CHURCH LAW infant to make in the child's name the pro- mises and professions required of him. At the baptism of an adult they present the subject and act as witnesses of his baptism. According to ancient custom they receive him into their hands after baptism, and are held to acquire in this way a formal relation to him. Their duties are explained to them in the ritual. The number was formerly limited to two, one man and one woman, but in 1236 a provincial constitution of Edmund Rich allowed three as now indicated in the rubric. The rubric seems to require three of necessity, and the practice for many years conformed to this, but there is no law to that effect, and custom has of late years recognised the suffi- ciency of one sponsor. The sacred canons forbid any person to be admitted as sponsor who has not received the Holy Communion. (Const., Quivis cancellarius of 1571. Can. 29 of 1603.) Verification of baptism is necessary when a person is brought to the Church after being privately baptized. The curate must ADMINISTRATION OF SACRAMENTS 211 ask the questions prescribed by the ritual, and obtain full and satisfactory answers. No evidence but that of an eye-witness can be received. Any person reported to have been baptized by a heretic or schismatic should be received in the same way with careful examination to ascertain the validity of the baptism ; but it may be allowable, and even desirable, to do all in private, the direction of the bishop being sought in case of doubt. If the evidence of baptism be defective the subject should be baptized conditionally. Registration of baptism is required by the sacred canons. The particulars of registra- tion prescribed by the seventieth constitution of 1603 are fallen into desuetude. A statute of the year 1812 (52 Geo. III. c. 146) required, for civil purposes, a certain mode of registra- tion, which had the effect of throwing the older method out of use, and the statutory method has become the established ecclesi- astical custom. A separate register-book for baptisms, of prescribed form, is kept in the 212 A HANDBOOK OF CHURCH LAW custody of the curate, who enters therein all baptisms, public or private, performed in the parish. He should do this with his own hand, no stranger occasionally administering baptism having any concern with the register. A person administering baptism in a place where there is no baptismal church is required to forward a memorandum of the act, within one month, to the curate of a neighbouring parish, who will enter it in the register of that parish. The constitution of 1603 and the statute of 1812 alike require a copy of all entries in the register to be sent annually, under the hand of the curate and at least one churchwarden, to the bishop's registrar; but this requirement seems to have passed com- pletely into desuetude. An error in registration may be corrected, within one month of its discovery, in the presence of the parent or parents of the child baptized ; in the case of an adult his own presence may probably suffice. The correction should be dated and attested by at least the initials of the curate. ADMINISTRATION OF SACRAMENTS 213 No fee may be charged for registration of baptism, even regarded as a civil function (6 and 7 Will. IV. c. 86). A certified copy of an entry in the register is evidence in a court of law, and a fee may be charged for it, but this is outside the scope of Church Law. On the general principle that no charge may be made for the administration of a sacrament, it would seem to be wrong to levy a fee when a baptism is attested only for the purpose of the confirmation of the subject, and in that case the attestation need not be made in legal form. Christian Name. A name is ordinarily given to the subject at his baptism, at the intimation of the sponsors, or, in private baptism, of any bystander. The sacred canons forbid the minister to accept and impose any wanton or unseemly name. (Peckham Const. Circa Sacr.) If the sponsors announce a name in a popular abbreviated form the minister should impose it in its proper recognised form, and so enter it in the register. 2i 4 A HANDBOOK OF CHURCH LAW Confirmation is the ritual complement of baptism, reserved to the bishop himself, throughout the Western Church, when the public administration of baptism passed out of his hands. Persons baptized are therefore to be brought to the bishop to be confirmed by him, and the sponsors of children are charged with this duty. According to present custom the bishop announces beforehand his attendance at certain places for this purpose, but he can administer the rite at any time and in any place at his discretion. The sacred canons actually require him to do this only in every third year at the time of his ordinary visitation : a much more frequent administration is customary. The mode of administration is fully prescribed in the ritual. Confirmation, like baptism, impresses character and may not be repeated. It was formerly the custom to confirm infants as soon as possible after baptism. Confirmation is now reserved for those who are come to years of discretion. This technical expression signifies such a power to distinguish ADMINISTRATION OF SACRAMENTS 215 right and wrong as renders the subject capable of actual sin, which children are usually held to attain soon after completing their seventh year. A further requirement is that the subject shall be able to say the Creed, the Lord's Prayer, and the Ten Commandments, and shall be generally acquainted with the Catechism. This points, in ordinary cases, to a still later age, but there is nothing in the law of the Church to justify the appoint- ment of a certain fixed age, below which children shall not be admitted to Confirmation. It is the duty of the curate to give the bishop a list of persons in his parish suitably pre- pared for Confirmation. The bishop reserves the right of approving those presented, and may examine them in person or by deputy. He does not appear to have any right to reject them, except upon examination. Penance is the solemn reconciliation of sinners who have fallen away after baptism. Its essential elements are an act of humiliation on the part of the penitent, called exomologesis or confession, having some degree of publicity, 216 A HANDBOOK OF CHURCH LAW and the absolution pronounced by a minister of the Church. During the second Christian century penance was made very arduous. It was ordinarily permitted for each person only once. It involved an open humiliation, during which the penitent was either excluded altogether from the assemblies of the faithful or admitted gradually and with conspicuous marks of inferiority. This was continued for varying periods, to terminate sometimes only at the near approach of death. Such penance was naturally imposed only for the graver sins, and there followed the distinction of venial sins, which were supposed to be re- mitted without formal reconciliation. This rigour was gradually broken down, and there supervened an administration of penance far less onerous and less public, confession being made in the presence of a single priest, as representing the Church, who could thereupon, with or without delay, give absolution. This kind of penance became general, and by the Lateran Council of 1215 (Const. Omnis utriusque sexus) was made ADMINISTRATION OF SACRAMENTS 217 obligatory on all Christians, whether actually in deadly sin or not, once a year before Easter. This rule, enforced in the Church of England for some centuries, has never been formally abrogated, but is slenderly observed. The more public administration of penance for open and notorious sins has been treated under the head of Ecclesiastical Censures. The details of the administration of penance by a priest belong to the domain of Pastoral and Moral Theology. The following points, however, concern us here : The minister of penance is any one to whom God 'hath given power and command- ment ... to declare and pronounce to his people, being penitent, the Absolution and Remission of their sins ' ; and this power is conferred, according to the terms of the ritual, on every priest at his ordination. The existing practice of the Church of England allows a penitent to resort to any qualified priest for this purpose; a freedom which is attested by the invitation in the ritual : ' Let 218 A HANDBOOK OF CHURCH LAW him come to me or to some other discreet and learned Minister of God's Word, and open his grief; that by the Ministry of God's Holy Word he may receive the benefit of absolution.' But this liberty is limited by the considera- tion that absolution is an act of spiritual juris- diction, which is reserved to those who have Mission. Consequently it would seem that except in cases of urgent necessity no priest can rightly administer penance or give abso- lution, unless he be a curate or otherwise licensed thereto. The principle of delegation, however, allows any priest, not inhibited by the bishop or otherwise under censure, to exercise this ministry in any place, by per- mission of the curate of the place. Confidence. A priest is forbidden by the sacred canons (Code of 1603, can. 113), under the severe censure of irregularity (p. 23), to reveal and make known to any person what- soever anything committed to his trust and secrecy by way of confession. An exception has been made of a crime such as high treason, for concealing which his own life might be ADMINISTRATION OF SACRAMENTS 219 called in question ; but as it is improbable that the post factum concealment of any crime would now be treated as a capital offence, this exception is no longer of any importance. The sick. In visiting the sick a curate must not merely be ready to hear confessions ; he is required by the ritual to move the sick person to make a special confession ; which done, he is directed to absolve him in the appointed form. The order of penance is determined by custom to consist of a confession by the penitent of all deadly sins committed since baptism or since the last act of penance, the performance of other acts of humiliation enjoined by the minister, and the absolution, the proper form of which is contained in the ritual for the visitation of the sick. In en- joining acts of humiliation, commonly called penances, the minister must not require any- thing that will make the penitent conspicuous, or suggest the nature of the sins confessed. He may delay or withhold absolution, for just cause, if the penitent seem to lack true repent- 220 A HANDBOOK OF CHURCH LAW ance; but this power must be exercised cautiously. A penitent to whom absolution has been arbitrarily or unreasonably denied may seek it from another priest, revealing the fact in confession. A curate has no right to impose any open penance even upon the most notorious sinners, his jurisdiction not extending so far (p. 148). He can only present them to the bishop for correction. The sacrament of the Lords Supper must be celebrated in exact accordance with the direc- tions of the ritual. So far as this pertains to the solemnities of public worship, it is treated elsewhere. Here the following points are to be noted : The minister is any bishop or priest not being excommunicate or irregular. The place of administration is a church or chapel duly consecrated or licensed by the bishop of the diocese. Regulations formerly in force regarding the specific consecration of the altar, its materials and construction, are now obsolete. General permission is given to ADMINISTRATION OF SACRAMENTS 221 curates to celebrate the Lord's Supper in a private house for the benefit of the sick, but only if there be 'a convenient place in the sick man's house, with all things necessary so prepared, that the curate may reverently minister ' (rubr.). Reservation of the sacrament for the com- munion of the sick and dying is one of the most ancient practices of the Church, fortified by many canons and constitutions. It has been asserted on the high authority of the Archbishops of Canterbury and York (A.D. 1901) that the practice is now unlawful in England, on the ground that no provision is made for it in the existing ritual, and that a rubric, requiring the reverent consumption of what remains of the consecrated elements immediately after the conclusion of the public service in church, makes it impossible. It is urged, on the contrary, that the law of the Church cannot be altered by a mere rubric, that this rubric was manifestly designed to prevent only an irreverent misuse of the sacrament, and that the absence of any direc- 222 A HANDBOOK OF CHURCH LAW tions for reservation in the ritual of the Church only throws upon the Ordinary the respon- sibility for regulation. The Archbishops' opinion has been widely but not universally accepted, and some bishops have regulated the practice. In England, down to the middle of the sixteenth century, the reserved sacrament was conspicuously hung over the high altar of parish churches in a vessel known as the pyx. This custom being obsolete, and no settled use having taken its place, the manner of reservation is subject to the direction of the bishop of the diocese, for this does not appear to be a matter which was ever within the dis- cretion of the curate. Frequency. For some centuries the law of the Church required the faithful, unless there were good cause to the contrary, to receive the Lord's Supper every Sunday at the least ; and neglect of this rule was visited by censures. At a later period the greatest laxity prevailed, and the Lateran Council of 1215 enjoined com- munion only once a year, at Easter. So ADMINISTRATION OF SACRAMENTS 223 narrowly was this rule interpreted that com- munion was popularly supposed to be actually forbidden the laity except on this one occasion. A provincial constitution, however, of Simon Sudbury, Archbishop of Canterbury, in 1378, ordered curates to exhort the people to com- municate thrice in the year, at Easter, Pente- cost, and Christmas ; and from this source comes the rubric in the present ritual, requiring every parishioner to communicate three times in the year at least, of which Easter is to be one. Communicants are all persons confirmed or ready and desirous to be confirmed. This latter qualification must refer to such as are fully prepared but have not yet found oppor- tunity to resort to the bishop for confirmation. As these are to be admitted to the Holy Com- munion (rubr.\ it follows that some one must have authority to admit them ; and this can hardly be any one else but the curate, whose duty it is to see that they are prepared. All persons once admitted continue admis- sible until they be deprived of communion by 224 A HANDBOOK OF CHURCH LAW regular process of discipline. Such is the general law of the Church. But two canons in the Code of 1603 afford some difficulty. The twenty-sixth declares that 'no minister shall in anywise admit to the receiving of the Holy Communion' any open and notorious evil liver, or any churchwarden who neglects to present offenders. The admission here spoken of is not clearly defined, and the curate might dis- charge his duty by warning such persons not to approach the Lord's Table. The twenty- seventh is more precise: ' No minister, when he celebrateth the Communion, shall wittingly ad- minister the same to any but to such as kneel, under pain of suspension.' Here is an express command to withhold the sacrament even from those presenting themselves, and the prohibi- tion is extended to all notorious depravers of the Prayer Book, and so forth, who are not to be admitted until they have acknowledged repentance and promised amendment before the curate and the churchwardens. The minister so repelling any 'shall, upon com- plaint, or being required by the Ordinary, ADMINISTRATION OF SACRAMENTS 225 signify the cause thereof unto him, and therein obey his order and direction.' This canon seems to confer on the curate, with church- wardens as assessors, a power in foro externo to impose the minor excommunication. This jurisdiction is, however, too doubtful, especially after this lapse of time, to be safely exercised unless perhaps in the first case alleged, where a person presents himself for communion with openly expressed contempt for the prescrip- tions of the ritual. In the same sense must be understood a much older canon forbidding the minister to give the Eucharist to any one not fasting. The ancient rule requiring the recipient to be fasting, which St. Augustine found to be so universally observed, with certain peculiar and express exceptions, that he could only attribute it to apostolic institution, caused little trouble and called for no disciplinary notice so long as there was no general custom of taking food before the normal hour of divine worship. This state of things continued until the eigh- teenth century was well advanced. The prac- P 226 A HANDBOOK OF CHURCH LAW tice of taking an early breakfast, which has since grown up, causes grave difficulties and complications ; but the observance of the rule is a matter for each man's conscience, and the minister may certainly not withhold com- munion from any one whom he supposes, with or without reason, to have broken his fast. The sacrament viHoly Order is administered by bishops alone, though priests may be asso- ciated with them in the act. A bishop is consecrated by at least three bishops, of whom the chief is either the metropolitan or one commissioned by him. A metropolitan is consecrated either by another metropolitan with at least two bishops, or by three bishops of his own province. A consecration by a single bishop, though unlawful except in case of necessity, is not invalid. The consecration of a bishop takes place on a Sunday or other holiday. The rite of consecration consists essentially in prayers of blessing said by one or all of the officiating bishops, while all lay their hands on the head of the elect. Priests and deacons are ordained by the ADMINISTRATION OF SACRAMENTS 227 bishop of the diocese, or another commissioned by him, ' only upon the Sundays immediately following ieiunia quattuor temporum, commonly called Ember Weeks' (Code of 1603, can. 31), and, as required by the ritual, in the course of the celebration of Mass. The rite consists essentially in prayers of blessing with imposi- tion of hands. The priests assisting join the bishop in laying their hands on the heads of those being ordained to the priesthood. For- merly the Saturday of the Ember Week was the appointed day, as still in churches of the Latin rite. The Eastern Church has no such limitation of the day, and in England this rule is dispensed with on occasion by the bishop. An opinion has been maintained that every priest has inherent in his office the power of ordaining, so that one ordained by him with adequate form and matter would be validly, though unlawfully and irregularly, raised to the diaconate or the priesthood. The question is an academic one, since the law of the Church would not allow any one so ordained to exe- cute his pretensed office. The fact would have 228 A HANDBOOK OF CHURCH LAW practical importance only on the following consideration. The sacrament of Holy Order impresses character, and may not be repeated in the same grade without sacrilege. If, therefore, there be a doubt on any grounds whether a subject has been validly ordained or no, he should be ordained conditionally. But since the condition cannot, as in the case of baptism, be verbally expressed in the form, it should be expressed in the intention both of subject and minister; and to avoid all danger of scandal it would be well to make this expres- sion public. There is precedent for recording the fact also in letters of orders (pp. 62-64). The unction of the sick has gone almost entirely out of use in the English Church, though, being established by the direct autho- rity of Holy Scripture, it cannot pass away into desuetude. No provision being made for it in the public ritual, it is left to any curate, in default of episcopal legislation, to minister it according to what is necessary. The rule of the Western Church, formerly adhered to ADMINISTRATION OF SACRAMENTS 229 by the English provinces, requires the oil for unction to be blessed by a bishop ; but this is not the case in the Eastern Church, and the benediction is therefore not essential. Marriage consists essentially in the agree- ment of a man and a woman to live together in wedlock. Public policy and public morality require the careful safeguarding of this agree- ment by law, and the contract of marriage is therefore regulated both by the State and by the Church. Fundamentally, however, it is instituted by neither, but by the Divine Law or Law of Nature. It must be considered first in this regard. Jure divino, marriage is a state of union, effected by a contract, into which one man may enter with one woman, provided they be not too near akin to each other. It is dissolved by the death of either party, when the survivor is free to marry again, but is indissoluble while both the parties live. The degree of kinship within which marriage is forbidden by the Divine Law is subject of debate. Some hold that it is forbidden only 2 3 o A HANDBOOK OF CHURCH LAW to those related directly in the ascending and descending line. Others hold that the pro- hibition extends to collaterals in the first degree, barring the marriage of brother and sister, whether of full blood or of half blood. Others extend it to the brothers and sisters of any one in the ascending or descending line, as uncle and niece. Others, again, hold that it applies to those related by affinity in the same degree as to those related by consanguinity. The last two opinions are expressed in the table of consanguinity and affinity put out with authority, though it is doubtful with what legislative authority, in the Church of England. For the validity of the marriage it is neces- sary that the contract be conceived in the terms of the Divine Law. It must be in full purpose a contract of one man with one woman. For this reason a marriage intended to be polygamous, as when a man takes a wife reserving to himself the right to take others also, is no marriage according to Divine Law, and the parties may separate. For the same reason a contract to live together during ADMINISTRATION OF SACRAMENTS 231 pleasure would make no marriage. Such con- tracts may be enforceable by Human Law, and may suffice to legitimise the issue ; but they are not to be regarded as making a marriage in the Christian sense. Human Law may impose conditions, neglect of which will invalidate the contract and so nullify the marriage. This is technically known as the creation of an impediment, and impediments are of two kinds. Impedimentum impediens is a prohibition of marriage in certain circumstances, which renders the parties dis- regarding it liable to punishment or censure, but does not nullify the marriage. Impedi- mentum dirimens is a prohibition, disregard of which nullifies the pretensed marriage. Since marriage is primarily a state of the natural human order, it seems clear that the civil government can impose limitations of the above kind. But since marriage is also a state of the supernatural Christian order, it follows that the government of the Church also can impose limitations : these are impediments iure ecclesiastico. Until comparatively recent 23 2 A HANDBOOK OF CHURCH LAW times, all Christian commonwealths recognised the effect of these ecclesiastical impediments, and indeed left the regulation of marriage entirely to the Church. This is no longer the case. Most governments, including that of England, make their own regulations, and ignore, for legal purposes, ecclesiastical rules. They profess, also, as in England, to dissolve marriages for certain causes. The ecclesiastical law of marriage, then, will recognise the effectiveness of impediments created by the civil government, and will also insist, for purely spiritual purposes, on those proper to Church Law, whether divine or human. Every contract of marriage made in suffi- cient form by capable parties, free of impedi- ment, in a sufficiently public manner, is recognised by the Church as a valid marriage. The form must be per verba de praesenti, by word of mouth or other equivalent sign, stating that the parties do now take each other to be man and wife. A contract of future intention does not suffice, though in some cases it sets up an impediment to any other marriage. Publicity must be secured by the presence of at least two competent witnesses. The mar- riages contracted before a superintendent- registrar in England conform to those rules, if there be no impediment, and are therefore good in Ecclesiastical Law. But the Ecclesiastical Law enjoins on Christians the duty of marrying in facie ecclesiae. This involves two requirements : (i) publication of banns, and (ii) solemnisa- tion before a priest in the church. The object is to prevent clandestinity. The pur- pose of many excellent canons and customary laws in this regard was defeated during the eighteenth century by the growing contempt for ecclesiastical censures, by which alone they could be enforced ; and a statute was enacted (26 Geo. II. c. 33) which codified the existing rules, gave them new legal force, and imposed severe penalties on persons infringing them. Other statutes have followed with increased strictness, which have not made any serious inroad on ecclesiastical rules, though in some 234 A HANDBOOK OF CHURCH LAW minor points the practice of the Church has been modified so as to conform to the Statute Law. The curate of a parish is mainly respon- sible for seeing that the requirements of the law, civil and ecclesiastical, are complied with; and if he fail, he is liable both to severe punishment and to ecclesiastical censure. He should therefore inform himself carefully in the matter. His duties may be summed up as follows. He will receive a notice of banns. He may, and should, insist on this being in writing, showing the names and residences of the parties, and the time during which they have . been resident. He may demand seven days' notice before the first publication, in order to make inquiries. The banns must be pub- lished in the church of the place where each party resides : if there be no church in use, then in the church of any adjoining parish. The residence must be real and not colour- able ; and the present law does not allow, as formerly, publication at the place where the parties' parents reside, a provision that some- ADMINISTRATION OF SACRAMENTS 235 times bears hardly on domestic servants. Some chapels, not strictly parish churches, have by licence the right of marriage ; and if a marriage is to be performed in one of these, the banns must be published in the same place. Publication must be in the appointed form on three several Sundays after the Nicene Creed, or if there be no service in the morning, then after the second lesson at Evensong. If the marriage does not take place within three months of the last publi- cation, a new publication will be necessary. A proper register-book of banns must be kept, from which the publication is to be read, and the entry afterwards signed by the officiant. A curate who has published banns, if the marriage is to take place elsewhere, must on demand give a certificate of publication, signed and dated to the following effect : / hereby certify tJiat banns of marriage between N. of the parish of A. in the county of B. and N. of the parish of C. in the county of D. were duly pub- lished in the parish church of A. on three several 236 A HANDBOOK OF CHURCH LAW Sundays, viz. . . . and that no impediment was alleged. Banns may be dispensed with by a licence from the bishop of the diocese or the arch- bishop of Canterbury ; and marriage in facie ecclesiae is permitted also to parties who produce a licence or certificate from the superintendent-registrar of the district, since this is regarded as an equivalent guarantee against clandestinity ; but the curate is not bound to act in such cases. A curate, receiving notice that parties intend to marry on a given day, may require reason- able warning, and may himself fix the hour, which must be between eight in the morning and three in the afternoon. The solemnisation of marriage, with the full ritual, is forbidden by Ecclesiastical Law between the first Sunday in Advent and the octave of the Epiphany, between Septuagesima and the octave of Easter, and between Rogation Sunday and Trinity Sunday, all inclusive ; and since there is no form now in use for the contract apart from the solemn ritual, the contract also in ADMINISTRATION OF SACRAMENTS 237 facie ecclesiae is barred during these seasons, unless by dispensation of the bishop. The curate may not proceed with the marriage of parties between whom he knows an impediment to exist, unless he have this knowledge exclusively by private penitential confession ; in which case he may not divulge the fact by refusing to officiate. He, further, should not allow any other priest to officiate in like case, though by Statute Law he may be forcibly compelled to allow this in the case of a party having a divorced consort still living. The marriage must be solemnised according to the ritual. The minister, before proceeding, should demand the certificate of banns pub- lished in another church. At the appointed place he asks if any impediment be alleged, and if it be alleged with reasonable evidence of the fact, he should cease from officiating. The chief impediments to be borne in mind are (i) existing marriage of either party ; (2) consanguinity or affinity ; (3) incompet- ency through madness, idiocy, unconscious- ness, or constraint of extreme fear, which 238 A HANDBOOK OF CHURCH LAW render a valid contract impossible ; (4) inade- quate age, where a boy is under fourteen, a girl under twelve; (5) minority, when the parents or guardians refuse consent ; (6) dis- parity of religion, where one party is a Christian, i.e. baptized, and the other is not. The rubric bids the minister defer solemnisa- tion only in case the objector will be bound by sureties to prove his allegation ; but this is inoperative, since there is no provision of law for taking such surety. The minister is liable both to censures and to criminal penalties if he proceed in spite of an objection alleged by any apparently trustworthy person. There must be at least two witnesses of the espousals. Registration of marriage, required for some centuries by Church Law, is now required under more stringent conditions by statute. The curate must keep a duplicate register, in which all particulars are to be entered according to directions given, and both he and the parties and two witnesses must sign the entry in each book. ADMINISTRATION OF SACRAMENTS 239 p ee . Custom sanctions the reception of a fee for solemnising marriage, but the curate may not exact this beforehand, or refuse to proceed if payment be withheld. For a copy of the register, which is a purely legal docu- ment, he may charge the appointed fee. The provisions of law for declaring a pre- tensed marriage null and void, and for discharging husband or wife from the obli- gation to cohabit (divorce a mensa et toro), being now made by statute and administered by the civil courts, are beyond our scope. This much ought to be said, that a marriage colourably good, even if a diriment impedi- ment be privately known to have existed, ought to be treated in public as an effective marriage, until it has been annulled by decree of a competent court. Burial of the dead is an ecclesiastical office to be performed with the appointed ritual in the case of all Christians or reputed Christians, with the exception of suicides and those who have died under the greater excommunication. By a reputed Christian is meant one who has 2 4 o A HANDBOOK OF CHURCH LAW lived as such, however unworthily, even though actual evidence of his baptism be wanting. A person dying excommunicate should receive Christian burial if any one be ' able to testify of his repentance' (Code of 1603, can. 68). A suicide means not only one who is legally felo de se, but any one who has wilfully (propria voluntate) done himself to death (voluntariae se morti tradiderit). So the Council of Auxerre in 590, in its seventeenth canon, which passed, with a similar canon of the first Council of Bracara, into the earliest English penitential codes. The exclusion will there- fore not apply to one who at the time of his deed was so far beside himself as to be incapable of voluntary action. The judgment of such a case is difficult, and is apparently left to the discretion of the curate, who should lean to the side of merciful interpretation, though not with the recklessness usually marking popular opinion. Interment in a churchyard was formerly reserved for those buried with the rites of the Church ; but all parishioners have acquired ADMINISTRATION OF SACRAMENTS 241 a right, now confirmed by statute, of interment there with or without the ritual (p. 266). The church bell should be tolled when the rites of the Church are performed ; not otherwise. The curate is bound without delay, that is after reasonable notice, to officiate at the burial of any parishioner brought to the churchyard or other burial-ground consecrated by the bishop for the use of the parish. His attendance at a burial elsewhere is voluntary. By Statute Law the officiant is required to see a certificate of registration of death, or a coroner's warrant, before proceeding to burial ; or if this be wanting, then to report the burial within seven days to the registrar. The Ordinary alone, by faculty, can reserve any part of a churchyard for the burial of particular persons. He alone, in like manner, can give permission for the erection of memorial stones, but this is customarily allowed by consent of the incumbent. No body laid in consecrated ground can lawfully be removed without a like faculty. A fee is levied by the incumbent, the clerk Q 242 A HANDBOOK OF CHURCH LAW and the sexton, where local custom so orders, for burial in the churchyard ; but burial may not be refused if the payment of this be delayed or withheld. A clergyman officiating in a public cemetery may lawfully receive the fee provided in that case by statute. CHAPTER XII OF ECCLESIASTICAL PROPERTY THE Church at large is not so organised as to be capable of holding property in any form. That which is called ecclesiastical property is held by various persons or corporations in trust, explicit or implied, for ecclesiastical uses. Near akin to the tenure of property, though distinguishable from it, is the right of certain officers of the Church to receive offerings from the faithful for their own maintenance, or fees for services rendered. So long as these are paid only as a matter of conscience they may be regulated by pure Church Law. The ecclesiastical judge will decide, in case of dis- pute, who is entitled to receive the dues, and will require payment, if necessary, under pain of ecclesiastical censures. But if dues of this 243 244 A HANDBOOK OF CHURCH LAW kind become a legal charge, recoverable by civil process, there is an obvious complication. The English parochial clergy collected tithe from their people ; when by evolution of law this became a legal charge on the land, the title to receive it became a legal hereditament, the ownership of which is naturally deter- minable by legal process. An ecclesiastical censure may deprive the tithe-owner of his office, but this ousts him from his title to the tithe only by virtue of that implied concordat on which now rests the mixed jurisdiction of the spiritual courts. In France a curate receives a fixed stipend from public funds ; if the bishop remove him from his cure, he loses his title to the stipend by virtue of the express concordat there existing between Church and State. More obvious is the position of funded pro- perty held by ecclesiastical persons ex officio or by trustees for their use. Pure Ecclesiastical Law may direct the holders how to use the property, and may determine what person ought to enjoy it ; but the actual ownership OF ECCLESIASTICAL PROPERTY 245 and the appointment of the profits will be determinable by legal process. Yet even here there is much confusion, due to the successful assertion by the Church in the middle ages of jurisdiction over all property held by ecclesi- astics. The claim has disappeared, but the spiritual courts still retain a certain amount of the mixed jurisdiction to which it gave rise. The same principle applies in a simpler form, because of the simpler tenure, to movable goods held for sacred uses. We thus arrive at three modes of ecclesi- astical property, which may be summarily designated (i) movables, (2) offerings, and (3) funded property. In the first Christian ages, especially in the more thoroughly Romanised provinces of the Empire, Church property, both funded and movable, seems to have been generally held in common by collegia temiiorum, voluntary associations which the law freely allowed to be formed for charitable purposes, and especially as burial societies. It was sometimes held and transmitted by individual persons under 246 A HANDBOOK OF CHURCH LAW a conscientious trust for sacred uses ; in which way several noble families at Rome held their ancestral houses precariously at the service of the Church. In all cases alike the ecclesiasti- cal authority could only determine what use ought in conscience to be made of the property so held ; its ownership and actual possession was determined by the law of the empire. The crucial instance is that of Paul of Samosata, who was deposed from the bishopric of Antioch by a council of eastern bishops, but refused to surrender the buildings and other property of the Church until compelled to do so by a decree of the Emperor Aurelian. The establishment of Christianity as a legal religion brought with it the possibility of other modes of holding property. From the fourth century we find the bishops holding ex officio considerable estates and transmitting them to their successors. VJhznparochi were appointed they also held property in this way. Colleges also of clergy and monks held lands and goods in common. Out of these arrangements grew the system, which proved of incalculable OF ECCLESIASTICAL PROPERTY 247 value in the face of feudalism, of vesting ecclesiastical property in corporations, sole or aggregate, with perpetual succession. A cor- poration is a legal personality ; in modern England it is regarded in legal theory as an express creation of the law. As in other cases, bad history makes good legal theory. English law took over corporations already established by ecclesiastical custom, gave them legal status, and restrained any further creation of them except by grace of the Crown. At the present day a new corporation is expressly created by the civil government, and any corporation may be dissolved in proper form of law. The pro- perty of a dissolved corporation, for lack of heirs, falls as a matter of course to the Crown. In this way vast numbers of ecclesiastical corporations were dissolved in the sixteenth century and their property seized. The solid principle to be disentangled out of historical complications is this : Church Law is concerned essentially with nothing else but the moral direction of persons holding ecclesi- astical property in regard to its use, and the 24 8 A HANDBOOK OF CHURCH LAW enforcement of such direction by spiritual censures. The actual control of the property belongs essentially, and in a growing degree practically also, to the civil government ; but vestiges of an older state of things leave much control to the ecclesiastical authorities. Our scope would require us to deal only with the ecclesiastical jurisdiction, pure or mixed ; but it will be convenient to pay some regard also to purely secular legislation. Movables are, in this connection, all things used directly or indirectly in connection with divine worship, technically called ornaments. Among these there was formerly a clear dis- tinction between those reserved for more sacred uses, which were hallowed by the bishop and might not without grave formalities be turned to other uses or even be re-fashioned to a like use, and those intended for more ordinary uses, which were not so hallowed. This convenient distinction has disappeared, but the foundation of it is perfectly sound, and things are hallowed by use, if by no ritual benediction. Such are the font of Baptism OF ECCLESIASTICAL PROPERTY 249 and the vessels, cloths, and vestments used in the celebration of the Lord's Supper. These are, with other ornaments, the legal property of some person or persons, but the care and the use of them is regulated by Church Law. The ornaments of a cathedral, or other church or chapel which is not parochial, are usually the property of the persons, incorpor- ate or not, to whom the use of the building belongs. The ornaments of parish churches and chapels are legally vested in the church- wardens, who have power jointly, but not severally, to assign them, to bring a suit for their recovery if lost, and to prosecute in case of theft. They may not, however, remove anything from the church, or alter it in any way, without the consent of the Ordinary first obtained by way of faculty. This rule applies in theory even to the most insignificant objects, but in practice the bestowal of minor objects, and especially of things that wear out with use, is left to the discretion of the church- wardens. The distinction of the more sacred ornaments should be borne in mind, and these, 250 A HANDBOOK OF CHURCH LAW when no longer fit for use, should be burnt and their ashes thrown on hallowed ground, or otherwise bestowed according to the direction of the Ordinary. A faculty is also sought for the introduction of any ornament of notable importance into a parish church. If any one introduce such an ornament without a faculty, he may be required by the bishops' consistory to remove it, or a faculty for its removal may be obtained by any parishioner. A certain jealous guarding of their jurisdiction by the ecclesiastical courts has led in some cases to a severe application of this rule. Memorials of the dead, placed in churches and churchyards, may suitably be mentioned here. They may not be erected without the permission of the Ordinary, which is given, as regards the interior of the church, by faculty ; but as regards the churchyard, without for- mality by the mediation of the curate. The curate's discretion may be overruled by faculty. When placed they remain the property of the donor and his heirs, who may not, however, OF ECCLESIASTICAL PROPERTY 251 remove them or alter them in any way, as by additional inscriptions, without the like consent as at the beginning. The faculty here repeatedly mentioned must be sought by a petition addressed to the vicar -general through the diocesan registry. If there is likely to be no opposition, the registrar will usually advise the petitioner how to proceed ; but in case of opposition no step can safely be taken without the aid of a competent legal adviser. On receipt of the petition the vicar-general causes a citation to be published at the church door calling on opponents to appear at the registry within seven days, and intimating that if no opponent appears he will either grant the faculty sum- marily or consider it further. In the latter case, as also if there be opposition, there is usually a hearing in the Consistory Court. The costs of an unopposed faculty summarily granted are small ; they mount up rapidly with opposition or a hearing in court. Offerings are normally at the free disposal of those to whom they are given, but some are 2 S 2 A HANDBOOK OF CHURCH LAW specially regulated by law. The alms and other offerings given at the offertory of the Mass in parish churches and chapels are at the disposal of the incumbent and churchwardens jointly. So a rubric, which appears to state accurately the custom of the Church. If they do not agree, the question in debate must not be determined by the majority of voices, but must be referred to the Ordinary for his decision. Offerings publicly made in the church at other times are generally held to be at the sole disposal of the incumbent. All offerings made in a cathedral church are at the disposal of the chapter, unless the church be also parochial. The sacred canons require the provision in every parish church of an alms-box to receive offerings for the poor (Code of 1603, can. 84). This is to have three locks, one key being held by the incumbent and the others by church- wardens, and they are jointly to dispense the offerings. With regard to other alms-boxes, it seems clear that they may not be placed in the church except by faculty, or by permission of OF ECCLESIASTICAL PROPERTY 253 the incumbent, and unless otherwise ordered the offerings appear to be at the disposal of the incumbent. Considerable offerings were in former times made to curates for their own sustenance, and some were so determined by custom that a refusal to pay them was visited with ecclesi- astical censure. Tithes were originally of this character, and the ecclesiastical duties pay- able at Easter, which are mentioned in a rubric of the ritual. Such customary offerings are now as a rule obsolete, and free-will offerings alone are received by the clergy, unless there be a local custom to the contrary. Offerings of another class survive in a modi- fied form, and constitute an important part of the revenues of the clergy in some parishes. These are payments made on account of special services rendered, usually known as surplice- fees. In some cases they are so firmly estab- lished by custom as to be recoverable at law. The curate and the clerk are entitled to fees for the publication of banns of marriage and for certifying the same, for the celebration of 2 5 4 A HANDBOOK OF CHURCH LAW marriage, for officiating at funerals, and at the churching of women after childbirth. In all cases but the last there is usually a customary fee fixed for each several parish, or a scale of fees may be appointed for any parish by the Ecclesiastical Commissioners, with the consent of the vestry and of the bishop. In new parishes, erected through the facilities afforded by the statute 6 and 7 Viet. cap. 37, the chancellor of the diocese has power to appoint a scale of fees. No fee of any kind may be demanded for the celebration of baptism, nor may any other rite of the Church be withheld or delayed on the ground of non-payment. This was for- bidden under pain of anathema, or the greater excommunication, by the constitution Firmiter inhibemus of Stephen Langton, where Lynd- wode's gloss declares that any bargain on the subject would be simoniacal. The constitu- tion, however, expressly provides that the Ordinary may require the payment of any offering customary on such occasions. The result is that a curate is bound to render his OF ECCLESIASTICAL PROPERTY 255 services without any sort of stipulation for payment ; but afterwards he may rightly de- mand the customary or appointed fee, and there seems to be no reason why he should not sue for it before the civil magistrate. The burial authority responsible for a public cemetery is required by statute (Burials Act, 1900) to tender a fixed fee to every person ministering at a funeral ; and this may be received without offence. By the same statute customary fees payable to incumbents on account of burials in such cemeteries, irrespec- tive of services rendered, were reserved to the present holders during tenure of office, and to their successors for fifteen years from the date of the Act ; afterwards they are to cease. Incumbents are entitled to charge a fee, fixed in the same way as surplice fees, for the erection of any memorial to the dead in church or churchyard. Stipends of assistant-curates, and of chaplains in religious houses or public institutions, are in the nature of offerings. For the stipend of a curate, however, the incumbent is made 256 A HANDBOOK OF CHURCH LAW responsible, and the appointed sum may be recovered by sequestration of his benefice. Other stipends are recoverable by ordinary legal process on the basis of contract. It may be doubted whether the holder of such an office, so long as he is licensed thereto by the bishop, may refuse to serve on the ground that his stipend is not paid. Such refusal would seem to have the taint of simony. For certain incidents of registration, statutory fees are chargeable which do not come under the category of Church Law. As they are not concerned with the administration of the rites of the Church, the rendering of the service may be made conditional on payment re- ceived. Funded property may be held either by trustees for ecclesiastical uses or by ecclesi- astical corporations, whether in trust or for their own use. Trustees, in all ordinary cases, hold property for uses determined by their trust-deed under the general control of the law, and are in no special way amenable to Church Law. OF ECCLESIASTICAL PROPERTY 257 In some places Diocesan Trusts have been established to hold property for various ecclesi- astical uses. By the School Sites Act of 1841 the in- cumbent and churchwardens of a parish are expressly made a body corporate for the purpose of holding property to be used as a parish school. Schools so held are now, by the Education Act of 1902, almost entirely secularised, but are usually available for catechetical purposes at certain times. Church Trustees are a body corporate created, under the powers given by the Compulsory Church Rate Abolition Act of 1868, for the purpose of holding any funds for ecclesiastical uses within the parish. They consist of the incumbent and two owners or occupiers of house or land within the parish, appointed, one by the bishop of the diocese, the other by the patron. These powers seem to have been exercised in very few instances. The Ecclesiastical Commissioners and the Governors of Queen Anne's Bounty are corpora- tions created by statute, which hold great R 258 A HANDBOOK OF CHURCH LAW possessions of land and other funds for the benefit of the clergy, which are apportioned according to their own rules. Congregations of regulars have no corporate existence in England, and their houses and other property must be held for their benefit by some person or persons, either absolutely or in trust. All trustees are subject to the control of the High Court of Justice, and where they hold for charitable uses, they come under the jurisdiction of the Charity Commissioners or of the Board of Education. They are amen- able to ecclesiastical jurisdiction only in their personal capacity as answerable in conscience for the due execution of their trust. Ecclesiastical Corporations holding property for their own use are either aggregate or sole. Their property is held partly for sacred uses, partly for their personal enjoyment and sustenance. Corporations aggregate are chapters and colleges. They hold in common their churches and the ornaments thereof for sacred uses, and OF ECCLESIASTICAL PROPERTY 259 revenues which they employ, partly for the maintenance of the church and its service, partly for their own maintenance, either in common life or by distribution of dividends to individual members of the body. In their administration of the property they are bound by their own statutes and are subject to the control of the bishop or other visitor. Many of the English cathedral chapters have sur- rendered their estates to the Ecclesiastical Commissioners, receiving in exchange annual payments of money ; but these monies should be regarded as funded property, being in the nature of a rent-charge on the surrendered estates. Corporations sole are all holders of benefices. A benefice originally meant a grant of land or revenues to a certain person for life, usually made in consideration of services rendered. By a legal fiction, partly founded on historic fact, ecclesiastical possessions were supposed to have been granted in this way, but to a legally perpetual person, a bishop or a priest and his successors in office. This perpetual 260 A HANDBOOK OF CHURCH LAW personality, constituted by law, is a corpora- tion sole. A diocesan bishop holds by way of benefice property of various kinds, known as the temporalities of the see. The cathedral church is not, as in ancient times, vested in him, but in the chapter. The temporalities of a vacant see, according to English law, are in the custody of the Crown, and the king may enjoy the fruits. In past ages these were sometimes detained for long periods, but the general use is to grant the profits of the vacancy to the newly elected bishop, as a royal grace. When the new bishop has been confirmed he is entitled to sue for restitution of the temporalities from the Crown, and on receiving them he does homage. Spiritualities are those revenues of a bishop which arise from the exercise of his ecclesiastical jurisdiction, such as synodals and the like. Formerly extensive, these have now practically dis- appeared. On the ground that the co-active exercise of spiritual jurisdiction, by which alone such revenues can be secured, depends OF ECCLESIASTICAL PROPERTY 261 on the support of the secular arm and is derived according to prerogative lawyers exclusively from the Crown, the bishop does homage for his spiritualities as well as for his temporalities, declaring that he holds them of the king. At the present day most of the English bishops, having resigned their estates to the Ecclesiastical Commissioners, receive a fixed money payment, representing their temporalities. Below the rank of bishop benefices are distinguished as they are, or are not, attached to a cure of souls. Simple benefices (beneficia simplicia), not having cure of souls, are most deaneries (some of them involving a cure), all archdeaconries, prebends, and sinecures. Deaneries and arch- deaconries are variously endowed. Prebends are the several endowments of the clergy in matre, as distinct from what they hold in common, the holders being consequently known as prebendaries. By the legislation of the nineteenth century almost all prebendaries have been denuded of their estates, which 262 A HANDBOOK OF CHURCH LAW have been added to the common possessions of the Ecclesiastical Commissioners. Sinecures are parochial benefices, the holders of which, though regularly instituted and inducted, are discharged from all pastoral obligations. Curate benefices (beneficia curata) are of three kinds parsonages, vicarages, and perpetual curacies. They start from the parish church itself, which is regarded as legally the property of the parochus. There is usually provided also a house for his residence, with a small estate in land, called the glebe. The rector of the parish is the persona to whom belongs the estate consisting of the church and its appurtenances, which is therefore called his parsonage. In the rigour of speech this is the whole of the benefice, but so inseparable as to be practically indistinguishable is the right of the rector to receive tithes and other offerings from the parishioners. These are therefore usually considered to form part of the benefice, and the modern substitution of a rent-charge for the tithe has completed the amalgamation. OF ECCLESIASTICAL PROPERTY 263 A parsonage now consists of (i) the church and churchyard, (2) the rectory-house and its curtilage, (3) glebe, (4) tithe-rent-charge, if it has not been compounded, (5) offerings and dues, (6) funded benefactions. The rector, having been instituted, is admitted to the ' real and corporal possession ' of the benefice by induction. This is usually performed by the archdeacon, acting on a mandate from the bishop. The archdeacon issues a precept addressed to all clerks within his jurisdiction, one of whom attends at the parish church and reads the precept while the newly in- stituted rector, or his proctor, lays his hand upon the key of the door. The rector then enters the church alone, and tolls a bell for the public announcement of his induction. The precept is endorsed with a declaration of the completed act by the inductor and sundry witnesses, and is returned to the arch- deacon for preservation in his registry. The rector now has full possession of his parsonage, subject to certain conditions. He must pay first-fruits and tenths. These 264 A HANDBOOK OF CHURCH LAW are charges, originally representing one year's profits and one-tenth of the annual profits, which the mediaeval popes laid upon the English clergy. Henry VIII. seized for the Crown the revenue coming from this source ; and every benefice was taxed at a fixed value for the purpose. These values, entered in the King's Books, have remained unaltered, and are very small in comparison with the present values of the benefices. In the year 1704 this revenue was granted to the incorporated Governors of Queen Anne's Bounty, to be used for the augmentation of small benefices. Many benefices are discharged, by reason of their poverty or otherwise, from the payment of first-fruits and tenths, and newly founded benefices are not charged. The rector holds the church for the use of the parishioners, and must allow them, and especially the churchwardens, access at all reasonable times. He is personally liable for the repairs of the chancel This obligation, and others like it, will be treated more in detail under the head of dilapidations. The OF ECCLESIASTICAL PROPERTY 265 rector is not liable for the repairs of the nave, which the parishioners are required to maintain. In the absence of a church rate it has been found impossible to fasten re- sponsibility for these repairs on any one ; local authorities requiring work of the kind to be done for the safety of the public, and doing it themselves in default of compliance, have been unable to recover the cost. The rector holds the churchyard partly for public use for the burial of parishioners, but the herbage belongs entirely to him. He is not required to keep the fence in repair, that being among the duties of the parishioners. His consent is required, unless a faculty be obtained from the Ordinary, for the placing or alteration of any memorial to the dead ; but he apparently has no right to remove a memorial placed without such consent, though he may proceed against those placing it for a trespass, or may obtain a faculty for its removal. He is required to allow the burial of all persons dying within the parish, or thrown up within its borders by the sea, even 266 A HANDBOOK OF CHURCH LAW though they were not members of the Church, and he must allow the performance of any rite or ceremony authorised by the Burials Act of 1880; that is to say, any funeral service of an orderly and Christian character, whether orthodox or heretical. He may re- quire forty-eight hours' notice of such a burial, which he may forbid on Sunday, Christmas Day, and Good Friday. The notice must state the proposed day and hour of the funeral, and if the time so stated would be inconvenient on account of some other service already appointed to be held in the church or church- yard, the rector must within twenty-four hours either arrange with the notifying parties for another hour, or failing agreement, notify to them himself at what hour of the same day the burial is to take place. He may object to any burial between the hours of ten in the forenoon and six in the afternoon of any day from the first of April to the first of October, or between the hours of ten in the forenoon and three in the afternoon of any other day. The church and churchyard are constituted OF ECCLESIASTICAL PROPERTY 267 by the act of consecration, performed by the bishop, the legal effect of which is ipso facto to remove the freehold in the land from any person previously possessed of it, and to vest it potentially or actually in the parson. It is therefore obvious that no land may be con- secrated without the consent of the previous owner, nor any to which there is not a clear title. Nor is this the only difficulty ; for the jealousy with which the civil authority regards the transfer of land to be held by a corporation in mortmain has caused legislative obstacles to be raised. These can be over- come only by the aid of further legislation. The consecration of a church is therefore practically impossible without the aid of the legislature, which was formerly granted by special acts of parliament for several cases, but was given generally under stringent con- ditions by the Church Building Acts of the nineteenth century. In some rare cases con- secrated churches are vested by statute in trustees. The usual course is to convey the site to the Ecclesiastical Commissioners ; the 268 A HANDBOOK OF CHURCH LAW title being thus cleared, consecration follows, and the freehold passes to the incumbent. The rector is required to keep the parson- age-house and all buildings and fences on the glebe in good repair. He may cultivate the glebe as he pleases, but he may not fell timber in glebe or churchyard except for express use in repairs for which he is liable, or for the repairs of the nave. The Court of Chancery has held, however, that he may cut and sell timber if he buys an equivalent amount of other timber for such repairs. With the con- sent of the bishop and patron he may fell timber for sale. He may not, without the like consent, open mines or gravel-pits, though he may work those already existing, nor may he quarry stone except for repairs. He has power, strictly limited by the provisions of the statute 5 and 6 Viet. cap. 27, to grant a farm- ing lease for fourteen years, or with improving covenants for twenty years; but in this case ten acres at least must be retained in hand. Otherwise he can let the land from year to year in the ordinary way ; but on his vacat- OF ECCLESIASTICAL PROPERTY 269 ing the benefice, the tenancy will terminate without notice at the end of the current year. With the consent of the Ecclesiastical Com- missioners he may grant a building lease for ninety-nine years. With the consent of the bishop and patron, and of the Ecclesiastical Commissioners, he can sell parts of the glebe, the purchase-money being invested by the Commissioners on account of the benefice. Tithe-rent-charge, as now existing, was created by the Tithe Commutation Act of 1836. Tithe had legally become a tenth part of all produce of the ground, which the rector had to collect as best he could, the cultivator being required only to ' set it out ' for his gathering. Tithes were distinguished as praedial, the immediate fruit of the ground in corn, hay, wood, fruits, and herbs, and mixed, arising from secondary produce, as cattle, milk, and eggs. These were not unfrequently compounded for by a money payment called a modus decimandi, which might acquire legal force ; but new methods of cultivation brought with them serious disputes about extra- 270 A HANDBOOK OF CHURCH LAW ordinary tithes, as also in all places where the gathering in kind continued. For this reason the whole tithe of the country was in 1836 commuted for money payments, which were calculated on the amount actually received in each parish during the previous seven years. The amount to be raised in each parish and the apportionment of it to the lands of the parish, on which it was made a rent-charge, were determined by an award kept with the parish documents, a copy of which is in the custody of the Board of Agriculture. The sums actually payable vary from year to year, being determined by the average price of wheat, barley, and oats during the last seven years, the Board of Agriculture publishing in January a statement of the amount to be paid for each hundred pounds of the original award. By the Tithe Act of 1891 the rent-charge must be recovered, not as formerly from the occupier of land, but from the owner, and payment may be enforced when three months in arrears through the County Court ; but if the amount exceed two- OF ECCLESIASTICAL PROPERTY 271 thirds of the whole assessed value of the land, the excess is not recoverable. Tithe-rent-charge is ordinarily payable in half-yearly instalments on April ist and October ist or on January ist and July ist, but in some parishes the amount for the whole year is customarily payable on October ist. Tithe-rent-charge may be redeemed by a grant of land, with the consent of the Board of Agriculture, or by a capital payment of money, which is invested on account of the benefice by the Ecclesiastical Commissioners. When the amount payable is under twenty shil- lings the tithe-owner may insist on redemption. Special provision was made by statute in 1886 for the redemption of extraordinary tithe. Funded benefactions in augmentation of a benefice may be held by the parson himself, but are more usually held by the Ecclesiastical Commissioners or the Governors of Queen Anne's Bounty, both of which bodies will in suitable circumstances make grants from their common fund to increase benefactions privately given. The Ecclesiastical Commissioners also 272 A HANDBOOK OF CHURCH LAW create annuities chargeable to their common fund which they assign to certain benefices. Many new parishes are entirely endowed in this way. Vicarages sprang from the appropriation of parsonages to religious houses or to prebends. Such appropriations were freely made at the instance of patrons in the twelfth and thirteenth centuries. The appropriators at first received the whole revenue and undertook all the liabilities of the rector, providing a stipendiary priest to serve the cure of souls. The neglect of parishes consequent on this arrangement led to conciliar legislation in the course of the thirteenth century, by which bishops acquired the power to insist on the appointment of a perpetual vicar where the parsonage was thus appropriated. Such a vicar was to receive a congruous portion of the revenues, settled in each several case by an ordinance of the bishop, usually consisting of the whole or part of the glebe, all offerings, and the small tithes, or those on other produce than corn, hay, and wood. A vicarage, thus con- OF ECCLESIASTICAL PROPERTY 273 stituted, became a benefice, like a parsonage, and the freehold of church and glebe was transferred to the vicar, the appropriators being, however, still liable for the repair of the chancel. The bishop had power, in case of need, to increase the portion of the vicar by a sum of money to be paid by the appropriators out of the fruits of the parsonage, such increase being termed an augmentation. The dissolution of the monasteries threw most appropriations into the hands of the king, who granted them to laymen, and in some cases gave them to bishops in exchange for lands. These last have for the most part passed with the episcopal estates into the hands of the Ecclesiastical Commissioners, as have all those formerly annexed to prebends. Parsonages so held are said to be impropriate. An impropriator retains the revenues of the parsonage, and is liable for the repairs of the chancel and for the payment of any established augmentation to the vicar. It is doubtful whether the bishop has power to enforce any further augmentation. The impropriator also S 274 A HANDBOOK OF CHURCH LAW remains entitled to the chief seat in the chancel. Save as regards the above specific liabilities, the lands and tithe-rent-charge held by lay impropriators have passed entirely away from ecclesiastical uses. An impropriator may surrender his holding to the vicar, in which case the vicarage is merged and the parsonage revives in its fulness. A vicarage at the present day then consists of the appointed tithe-rent-charge and glebe, of augmentations, offerings, and funded bene- factions. A vicar is liable for dilapidations in the same way and to the same extent as a rector, save in regard to the chancel, and has the same proprietary rights in all respects. He is also instituted and inducted in the same fashion. In some parishes the rector, though in- stituted in the usual way, has no cure of souls, the parsonage then being a sinecure. A vicarage is usually instituted in such cases, and there is therefore a rector and a vicar in one church. Both benefices may be held by OF ECCLESIASTICAL PROPERTY 275 the same person. There are also sinecure vicarages, in which case a perpetual curate is ordinarily appointed. A perpetual curacy is a benefice created in a parish where there is neither rector nor vicar with cure of souls. A perpetual curate is nominated by the patron, and licensed by the bishop without institution or induction. It is doubtful whether the freehold of the church passes to him, but he has the same rights in regard to its use as a rector or vicar. He has the freehold of any glebe or house of residence assigned him, and all offerings other than tithe. He sometimes has a stipend payable out of the parsonage, an annuity from the common fund of the Ecclesiastical Commissioners, and various funded benefactions. Until the end of the eighteenth century a new parish was created with parsonage com- plete, but under the Church Building Acts of the nineteenth century the incumbents of new parishes are styled perpetual curates, unless they are endowed, as in the ancient parish of Manchester, out of the funds of the original 276 A HANDBOOK OF CHURCH LAW parsonage. Such incumbents have the free- hold of the church and are in all respects rectors, unless it be that they are not liable for the repairs of the chancel. By an unmeaning convention, supported by an Act of Parliament, they are usually styled vicar, though there is no appropriation. Residence. The tenure of a benefice binds a clerk to residence in addition to his obligation as curate. Thus he is obliged to reside actually in the glebe-house, unless he be dispensed therefrom by a bishop. The holder of a simple benefice is bound to residence just so far as the specific statutes of the foundation require. The holder of a benefice with cure of souls must reside for at least nine months in each year, unless he hold also a residentiary canonry in a cathedral or collegiate church. He must then reside for nine months on one or other of his benefices, but must not be absent for more than five months from his parochial cure. The bishop may grant licence of non- residence to an incumbent (i) if there be no fit house of residence within the parish ; OF ECCLESIASTICAL PROPERTY 277 (2) if he be incapable, through infirmity, of fulfilling the duties of the cure ; or (3) in case of the serious sickness of his wife or child. In the last case the licence is for six months only, renewable by permission of the metropolitan. With the approval of the metropolitan the bishop may grant a licence for any cause at his discretion. Mortgage. An incumbent has power, with the consent of the bishop and of the patron, to mortgage the fruits of his benefice as security for a loan to be expended on the building of a residence or on necessary repairs and sanitary improvements. The Governors of Queen Anne's Bounty are empowered to advance money for such purposes. Sequestration. On a signification from the Court of Bankruptcy the bishop may order the sequestration of a benefice. Certain persons are named to receive the fruits of the benefice. They must pay all legal outgoings, including the stipend of a priest appointed by the bishop to the charge of the parish, who may be the incumbent himself, and render an account of 278 A HANDBOOK OF CHURCH LAW the balance into the court for the benefit of the creditors. The incumbent retains the use of the glebe-house. A like method of seques- tration is used if the incumbent fail to pay the appointed stipend of a curate, and generally for the recovery of payments ordered by ecclesiastical authority. A vacant benefice is placed by the bishop in the hands of seques- trators, who account to the new incumbent for the balance remaining after payment of all legal outgoings. Resignation. A benefice cannot be volun- tarily resigned without permission of the Ordinary. This obtained, the resigning clerk executes a deed, usually before a notary public or the diocesan registrar, and presents it to the bishop, whose acceptance makes it effec- tive. The Incumbents Resignation Act of 1871 allows a pension to be charged on a benefice resigned by a clergyman permanently incapacitated by sickness for the performance of pastoral duties, provided he has been for seven years continuously in the benefice. He must apply to the bishop, who appoints a OF ECCLESIASTICAL PROPERTY 279 commission of inquiry. The commission reports on the expediency of the resignation, and the amount of the pension to be awarded. The patron may object, but his objection may be overruled by the archbishop of the province. A final order is made by the bishop, declaring the benefice void and chargeable with the appointed pension, which must not exceed one-third of the net annual value. The pension may cease or be altered if the holder undertake any fresh clerical duty, and it varies with the varying value of tithe-rent-charge, unless the profits be entirely drawn from other sources than tithe-rent-charge and glebe. Dilapidations. The holder of a benefice is required by Ecclesiastical Law to keep all the buildings and fences of the benefice in good condition for his successor. The bishop may inquire as to his care, and enforce by seques- tration the carrying-out of necessary repairs. This general principle is all with which Church Law, narrowly understood, is concerned. By the Common Law of England the obligation was so far recognised that a newly appointed 2 8o A HANDBOOK OF CHURCH LAW incumbent could recover from his predecessor's estate the cost of repairs necessary on his entry. There was much uncertainty on this head, and in the year 1871 an elaborate statute, the Ecclesiastical Dilapidations Act, placed the whole matter on a new legal basis, and it is now regulated by Statute Law and not by Ecclesiastical Law. The provisions are, in sum, as follows : At the request of the archdeacon, the rural dean, the patron, or the incumbent himself, the bishop may order inspection, which is made by the diocesan surveyor, an official appointed by the archdeacons and rural deans of the diocese. The surveyor reports on the repairs needed, their probable cost, and the time when they ought to be done. The incumbent or sequestrator may object, and the bishop may then order a fresh survey, and after full con- sideration will make his final order for the specified works to be executed. The incum- bent must execute the work at his own cost, under pain of sequestration. Sequestrators pay the available profits of the benefice to the OF ECCLESIASTICAL PROPERTY 281 Governors of Queen Anne's Bounty until the whole cost of the work is provided. The Governors have power to advance on loan, covered by mortgage of the benefice, the whole or any part of the cost. The bishop, when requested to intervene, if the incumbent informs him within twenty-one days that he is about to put his buildings in proper repair, must allow him a reasonable time to do this, and if he is satisfied that the work has been well done he will take no further action ; but he may at any time order inspection with its consequences. When the work has been done, and the surveyor reports it satisfactory, a certificate is issued, which relieves the incumbent of all further responsibility, except for wilful waste, until five years have elapsed. When a benefice falls vacant, unless there be an unexpired certificate of the kind just mentioned, the bishop directs inspection within three months. In this case both the new incumbent and the late incumbent or his representatives have the right to object. The 282 A HANDBOOK OF CHURCH LAW bishop makes his final order as usual, speci- fying the estimated cost of the work to be done. This amount becomes a debt, due from the late incumbent or his estate to the new incumbent, which he can recover at law. The new incumbent himself must pay the whole amount, whether he recovers it or no, to the Governors of Queen Anne's Bounty, who hold it until the work is complete. APPENDIX TO CHAPTERS XI XII THE following table has been issued by the Ecclesi- astical Commissioners as a precedent, showing what fees they are disposed to authorise if called upon to act (p. 254). Matter or thing in respect of which a fee is payable. Fee payable to the Minister. Fee payable to Clerk. Fee payable to Sexton or Grave- digger. Baptism Fees are forbidden by law. Certificate of Banns (no stamp required), .... s.d. O I O s.d. s. d. Marriage by Banns (including publication of Banns), For Publication of Banns in a Church other than that in which the Marriage is celebrated and for Certifi- cate of such publication, . Marriage by Licence, Churching of Women, a volun- tary offering. Tolling Bell, at time of Death, 040 020 O IO O 026 006 050 O I O Burial of Stillborn Infant, O 2O Burial of Infant under three years of age, O I O O I O 026 283 284 A HANDBOOK OF CHURCH LAW Matter or thing in respect of which a fee is payable. Fee payable to the Minister. Fee payable to Clerk. Fee payable to Sexton or Grave- digger. Burial of Parishioner in or- dinary grave five feet in depth, .... Burial in New Brick Grave, single width, six feet in depth, .... Burial in New Brick Grave, if more than six feet in depth, for every foot be- yond six feet, J. d. I O I O O s. d. I 2 O >s.d. From 030 to 6 o O IO O o 26 Burial in New Brick Grave, double width, six feet in depth, .... Burial in New Brick Grave, double width, if more than six feet and for every foot beyond six feet, . 2 O 020 I O O o so For every Interment in a Brick Grave, not new, whether of single or double width, Vatilt in Churchyard, not ex- ceeding the length and breadth of a double brick grave and eight feet deep, and first interment therein, For every subsequent inter- ment therein, Headstone and Footstone over single grave in church- yard. . I O O 500 I O I I O O 2 O O IO O 050 10 I 10 026 Small Wooden or Iron Cross, From, O IO O To, O I O APPENDIX TO CHAPTERS XI XII 285 Matter or thing in respect of which a fee is payable. Fee payable to the Minister. Fee payable to Clerk. Fee payable to Sexton or Grave- digger. Iron or Stone or Brick Borders, not exceeding one foot in height and enclosing space not exceeding twenty-six superficial feet, . s- d. I I O s. d. *.& Iron or Stone or Brick Borders exceeding that height or enclosing larger space, 5 "5 o Horizontal Gravestone not over eighteen inches high, c :o Horizontal Gravestone, double width, not over eighteen inches high, . . . 10 10 o Tomb of any kind other than as above, and of any material, in churchyard, not exceeding thirty-six inches high and five feet wide, 10 10 o Chains or Railings round single crave. 2 2O Chains or Railings round double grave, 3 30 Monumental Brass or Tablet in Church not exceeding ten superficial feet, $ "J O For every additional super- ficial foot, .... I I O Brass Plate attached to a Memorial Window, not exceeding one superficial foot, ..... I I O Monument, other than as above, in church, 20 o o 286 A HANDBOOK OF CHURCH LAW Matter or thing in respect of which a fee is payable. Fee payable to the Minister. Fee payable to Clerk. Fee payable to Sexton or Grave- digger. Hatchment^ to be retained for limited period, . . . s.d. I I O s. d. s. d. Additional Inscription on head or foot stone in churchyard, 026 Additional Inscription on tomb, other than a head- stone or foot stone in churchyard or on tablet or other monument in church, I I O N.B. Fees for non-parish- ioners, except for burial in private vaults or graves, are to be settled by special agreement. Note. That in addition to the foregoing Table of Fees, which is fixed by the Eccle- siastical Commissioners for England, fees fixed by Act of Parliament are payable as under : Stamped Certificate of Bap- tism, Marriage, or Burial, . 027 Searching Register (for the first year), .... O I O Searching Register (for every year after the first), o 06 Inspection of Tithe Map and Instrument of Apportion- ment, ..... o 26 Extract from Tithe Appor- tionment (for every seventy- two words), 003 INDEX ABSOLUTION, 216. Admonition, 22. Adults, baptism of, 50, 174. Advowson, 112-114. sale of, 114, 115. Affinity, 230. Allegiance, oath of, 62, 122, 131. Alms, disposal of, 96, 202, 252. Apostles, Canons of the, 29. Apostles, powers of the, 5. Apostolic Constitutions, 29. Appeals, 166-168. Archdeacon, 78, 151. Arches, Dean of, 151, 166. Articulus cleri, 70, 76. Assent to the Book of Common Prayer, declaration of, 189. to XXXIX Articles, de- claration Of, 62, 120, 122. form of, 131. Assistant-Curate, 124. jurisdiction of, 150. Audience, Court of, 165. Augmentation of Vicarage, 273. Avoidance of Curacy, 126. BANNS of marriage, 234. Baptism, 205-213. conditional, 209. minister of, 169, 205, 208. no fee for, 254. registration of, 211. Baptism, verification of, 210. Beadle, 94. Benefice, 259, 261, 262. to be held only by a priest, 118. Benefices Act, 115, 121. Bishop, election of, 97-104. homage of, 100, 260. legislative power of, 6, 10, 153- mission of, 105-111. origin of title of, 55, 66. temporalities and spiritu- alities of, 260. Bread for the Holy Communion, 2OI. Burial, 239-242. Burials Act of 1880, 266. of 1900, 255. CANONICAL Obedience, oath of, 62, 122, 131. Canons of Cathedrals, 73-75. Canons, legislative value of, 7. Canons of Hippolytus, 29. of the Apostles, 29. Capitular election, 100-104. Catechism, 175. Catechumens, 15, 50, 174. Cathedral, 73. Ceremonial, 190. Chancel, repairs of, 264. 287 288 A HANDBOOK OF CHURCH LAW Chancellor, 77, 152. Chaplains, private, 171. Chapters, 74, 100. Character, indelible, 22, 52, 63, 214, 228. Church Building Acts, 267, 275. consecration of, 267. Discipline Act, 161. rate, 86, 95. trustees, 257. Churchwardens, duties of, 92, 187. election of, 89-91. Churchyard, control of, 265. right of burial in, 241. Clandestinity, 233. Clergy, 15, 51, 55, 72. Discipline Act, 152. dress of the, 65. privilege of, 36. Clerical Disabilities Relief Act, 64. Clerk, ordination of a minor, 58. Parish, 81. Codex Canonum, 30, 31. Coercion, 14. Collation, 123. Commissary, 144, 151. Common Law, 7. Prayer, 199. Book of, 188. Communicants, 223. number of, 203. Communion, fast before, 225. frequency of, 222. repelling from, 224. Conciliar jurisdiction, 162. legislation, 10, 30. Conditional baptism, 209. ordination, 64, 228. Conference, Diocesan, 77. Confession, 215. Confidence, 218. Confirmation, 52, 176, 214. of a bishop, 106. Congd (fdlire, 101, 104. Congruous portion, 272, Consanguinity, 229. Consecration of a bishop, 98, 105, no. church, etc. , 267. Consistory, 77, 153, 155. Constitutions of Clarendon, 166. Contentious jurisdiction, 145. Contract of marriage, form of, 232. Contumace cafiendo, writ de, 20, 141. Convocation, 70. Corporations, 258. origin of Ecclesiastical, 247. Corpus Canonum, 31. Corpus Juris Canonici, 38. Correptio, i. Council of Trent, 8, 109. Councils, 163. Courts, Ecclesiastical, 18, 39, 158- essentials of, 162. Crown control of, 143. Crown, derivation of jurisdic- tion from the, 140. Curacy, avoidance of, 126. Curate, appointment of, 112-125. beneficed and unbeneficed, in. meaning of the term, 80. DEACON, 55. ordination of a, 59. INDEX 289 Deacon to a benefice, presenta- tion of a, n8. Dean, 74. Rural, 78. Decretals, 30. of Gregory ix., 38. the False, 32, 105. Decretum of Gratian, the, 34. Degradation, 22. Delegate jurisdiction, 144. Deposition, 22. Deprivation, 23, 126. Desuetude, 8-12. Dilapidations, 264, 279-282. Act, the, 48, 280. Diocese, 67, 72. Disciplinary process, 157. Dispensation, 146, 150, 153, 164. Divine Law, the, 2-5, 28. Service, 199. daily recitation of the, 187, 200. Divorce, 232, 237, 239. Doctors' Commons, 160. Donatives, 117. Dry Mass, 198. Duplex qtierela, 118, 121, 166. ECCLESIASTICAL Commission- ers, 257, 271. Courts, 18, 39, 158. Law, 4. offences, 21. Education Act of 1902, 176. Election of bishop, 97-104. Ember-weeks, 227. Episcopate, the united, 67. Examination of ordinands, 60. Excommunication, u, 16. ipso facto, 27. Excommunication, major, 26. minor, 25, 88, 225. Excommunicate capiendo, writ de, 19. FABRICK, the, 92. j Faculties, 251. Fast before communion, the, 225. Fee for certificate of baptism, 213. marriage, 239. Fees for services rendered, 182, 239, 241, 243, 253-255. on appointments, 136. scale of, 254, 283. Finance, parochial, 95. First-fruits, 263. Foroconscientiae, jurisdiction in, 150, 154- Forum, the ecclesiastical, 26, 148. GLEBE, 262, 268. Gratian, 33. Gravamen, 70, 76. Haeretico comburendo, writ de, 19. Heresy, judgment of, 165. Hippolytus, Canons of, 29. Homage of bishops, 100, 260. Human Law, 3-5, 28. IDONEITY of presented clerk, 118-121. Impediments to marriage, 231, 237- Imperial legislation, 32, 45. Impropriations, 273. Incumbent, 81, in. Incumbent, jurisdiction of the, 148. 29 o A HANDBOOK OF CHURCH LAW Incumbent, powers of the, 172. Incumbents' Resignation Act, 278. Induction, 123, 263. Indulgences, 18. Injunction, 143. Institution, 117, 123. Interdict, 25. Intruded bishops, 108. Investiture, 99, 105. Irregularity, 23, 218. /us liturgicum, 153, 189. JURISDICTION regarded as de- rived from the Crown, 140. KINGDOM of England, laws of the, 44. LAITY, the, 15, 51. bound by Canon Law, 52. in legislation, rights of the, 6. Lapse, 1 1 6. Law, purpose of, 2. Legislation, conciliar, 10, 30. diocesan, 153. imperial, 32. papal, 33. provincial, 43, 163. Legislature, the Christian, 5, 10. Letters, dimissory, 58. missive, 101. of business, 71. of orders, 62. patent for election of bishop , 103, 107. testimonial, 59, 119. form of, 129. Licence of assistant-curate, 125. revocation of, 127. perpetual curate, 123. Licensed clergyman, 75, 170. Litany, the, 198. Lord's Supper, sacrament of the, 220-226. Lyndwode, 42. Afandamus, 143. Marriage, ecclesiastical control of, 39, 142. licences, 147, 154, 164, 236. sacrament of, 229-238. Mass, the, 196-198. frequency of, 202. Memorials of the dead, 241, 250, 265. Metropolitan, 67. Mission, 105-107, 109, 116, 117, 125- Mortgage on benefice, 277. Mortmain, 267. Movables, 248. Music in worship, 191. NAME, the Christian, 213. National synods, 43, 163. Natural Law, 2. Nomination to curacy, 124. form of, 132. OATH of allegiance, 62, 122. canonical obedience, 62, 122. forms of, 131. Offences, ecclesiastical, 21. Offerings, 243, 251-256. Offertory, alms given at the, 96, 202, 252. Official, principal, 77, 144, 151, 152- Ordain, whom a bishop may, 58, Orders, administration of Holy, 226. INDEX 291 Orders, major and minor, 56. Ordinary, the, 145. jurisdiction, 144. Organist, 94. Ornaments, 248. rubric, 194. PAPACY, legislative power of the, ii, 33-36, 41. Parish clerk, 81. formation of a, 79. origin of the, 68. Parishioners, 82. Parliament, Acts of, and Church Law, 46. clergy in, 69. Parochus, 68, 79. Parsonage, 262. Patronage, origin of, 112. Crown rights of, 116. Peculiars, 72. Penance, 16, 24, 215-220. commutation of, 19. jurisdiction in, 149, 220. minister of, 217. Pension to resigning incumbent, 278. Perpetual curacies, 275. Pewholders, 88, 188. Pluralities, 125. Act, 154, 179. Polygamy, 230. Poors' -box, 252. Positive Law, 2, 3. Preacher, habit of, 178. Preachers, strange, 179. Preaching, 177. Prebends, 261. Presentation to a cure, 115. form of, 131. Priest, ordination of, 62, 226. Privilege of clergy, 36. Privy Council, judicial com- mittee of the, 168. Procedure, criminal, 19. Prohibition, 142. Promulgation, 8, 71. Property in the primitive church, tenure of, 245. present control of ecclesi- astical, 248. Pro salute animae, process, 22, 27. Province, 67-72. Provisors, Statute of, 102. Public Worship Regulation Act, 161. Quareimpedit, 115, 118, 121. Queen Anne's Bounty, 257, 264, 271, 277. Questmen, 89. READERS, 57, 170. Reading in, 125, 131. Reception, Gallican theory of, 40. Rector, 80. Reformatio Legum, 43. Registration fees, 256. of baptism, 211. of marriage, 238. Regulars, 53, 258. Reservation of the Sacrament, 221. Residence, 183, 276. Resignation of cure, 127, 278. Revocation of licence, 127. Ritual, 188-190. Roman pontiff, jurisdiction of the, 33-38. title of the, 34. Rubrics, 191-196. 292 A HANDBOOK OF CHURCH LAW Rural-deans, 78. SCHISM, 17. Schools, 176, 257. Selectmen, 89. Sequestration, 277. Sexton, 94. Sick, communion of the, 182. unction of the, 228. Sidemen, 89. Simony, 120, 183, 254, 256. form of declaration regard- ing. 135- Sinecure, 262. Si quis, 60, 63. form of, 130. Spiritualities of bishops, 260. Sponsors, 209. State, antithesis of Church and, 39, 45, 48. Statute Law, 7, 10, 41. absorbed into Church Law, 47- Statutory force of Canon Law, 40, 46. Stipends of curates, 255. Submission of the Clergy, Act of, 40, 43, 46. Suffragans, 109. Suicide, 240. Sunday, obligatory worship on, 186. order of worship on, 200, 202. Surplice fees, 253. Surrogates, 77, 144, 151, 156. Suspension, 23. Synods, diocesan, 76. national, 43, 163. Synods, provincial, 68. TEACHING, 173-177. Temporalities of bishops, 260. Tenths, 263. Testaments, ecclesiastical con- trol of, 39. Timber on glebe, 268. Tithe, 82, 244, 269. rent-charge, 269-271. Title for orders, 61. Titulvs, 68. Tonsure, 56. Tradition, the Christian, 4, 6. Trent, Council of, 8, 109. Trustees, 256-258. Unam sanctam, the bull, 36. Unction, 228. Uniformity, Act of, 195, 204. Universities, privilege of, 171. Ut parochiani, 92, 201. VACANCIES, 155. Vestry-meeting, 84-89. Vicar-general of diocese, 77, 144, 151. IS 2 - of province, 72. of parish, 80, 272. Vicarages, 272-275. origin of, 113. Visitation, 151. of the sick, 181, 219. Voluntary jurisdiction, 145, 154, 164. Vows, religious, 54. WAFERS, 201. Worship, appointedplaceof,i86. time of, 187, 200. Edinburgh : Printed by T. and A. CONSTABLE ' Mr. Dearmer has done a true seruict to the Church by the publication of this work.' The Church Timet. THE PARSON'S HANDBOOK Containing Practical Directions both for Parsons and others as to the Management of the Parish Church and its Services according to THE ENGLISH USE AS SET FORTH IN THE BOOK OF COMMON PRAYER BY THE REV. PERCY DEARMER, M.A. Fifth Edition. Rewritten with much Additional Matter, and Sixteen Illustrations. Crown 8vo, cloth, gilt. 6s. net. SOME PRESS OPINIONS ' The large sale of Mr. Dearmer's book notes a distinct improvement in the general state of affairs in the Church of England.' Guardian. ' So great is the demand for this admirable book, that the author, in response, has rewritten the third edition, adding much fresh matter. . . . The Handbook should appeal to a wide variety of readers.' Church Times. ' It is a hopeful sign for the dignity and sobriety of our services that The Parson '* Handbook should have reached a fourth edition. . . . We advise every clergyman who cares about the right ordering of his services to get The Parson's Handbook. 1 Pilot. 'We praised this book when it first appeared, and we praise it again. If it was good then, it is better now.' Church Review. ' It gives full directions for the management of a parish church and its services, in accordance with the Prayer Book.' Rock. 1 It is an attempt to popularise the conclusions of liturgical experts on every detail of the parish church and its services, and to counteract the lawlessness alike of the anti-ceremonialists and of the ritualists.' Times. ' It is an interesting and useful book.' The Record. ' It is indeed a comfort to meet with a book like Mr. Dearmer's. It is sadly needed, when ritual is too often left to fussy women or imaginative curates, that there should be a plain book to give all necessary directions for the conduct of services in accordance with the orders of the Prayer Book. ... It would go a good way to settling the present "confusion, lawlessness, and vulgarity" if the bishops would only sanction this book of Mr. Dearmer's as offering a reason- able standard of ritual, English and dignified.' Pall Mall Gazette. ' Mr. Dearmer may be congratulated on having written a really useful book which few architects could study without profit. ' Builder. ' There are some 25,000 clergy in this country. We hope at least 25,000 copies of this book will be sold. . . . Given the Ornaments Rubric, in its obvious and historical sense, the suggestions of the best recent scholarship offer a type of service, simple, stately, and thoroughly English, which all might unite in accepting. What the average layman dislikes is ritual fussiness. The elaborately detailed suggestions of Mr. Dearmer's book are the best cure for fidgetiness and clumsiness.' Saturday Review. ' There can be no doubt that if the authoritative principles he so clearly expounds were generally respected, we should have a speedy end of the unseemly disputes on this subject.' World. ' The Parson's Handbook abounds in curious information, interesting alike to the clergy and laity.' Birmingham Post. ' If it was valuable before and its popularity is sufficient evidence of this it is certainly more valuable in its new and rewritten form. ' Liverpool Mercury. 'The value of Mr. Dearmer's book is both in expounding the English use, which is wisely made the pattern for our American use, and also in the many sensible remarks which he intersperses through- out his considerations.' Living Church (U.S.A.). ' Perhaps it is not too much to hope that the professors in our theological seminaries whose province is to treat of matters liturgical, would make The Parson's Handbook the basis of some practical advice to the graduating class. ... At any rate, let every parson beg, buy, or borrow a copy of Mr. Dearmer's book, and studiously assimilate the principles which it so pre-eminently embodies.' Church Eclectic (U.S.A.). ' Laity as well as clergy ought to study The Parson's Handbook, and they will understand what a debt of gratitude the Church owes to Mr. Dearmer.' Church Commonwealth (Melbourne). LONDON: GRANT RICHARDS, 48 LEICESTER SQUARE ..E.??. U .. E ..RN REGIONAL LIBRARY FACILITY A 000 679 776 5