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 <F/lire, 
 or royal licence to elect, name a person suit- 
 able for election. They were issued, perhaps, 
 from the first: during the troubled times of 
 Henry in. the royal nomination was often 
 disregarded; Edward I. was stronger, but a 
 new source of confusion was introduced. By 
 drawing to themselves appeals on disputed 
 elections, by the practice of reservation and 
 provision, and by ingenious use of dispensa- 
 tions from the ancient rule against the trans-
 
 102 A HANDBOOK OF CHURCH LAW 
 
 lation of a bishop from one church to another, 
 the popes secured for themselves the effective 
 appointment to all sees. The kings for a 
 time fell in with this policy, trusting to get 
 their own way by diplomacy. The Statute 
 of Provisors in 1351 checked these proceed- 
 ings, but its force was soon evaded. Capitular 
 elections were held, but the king named in 
 his letters missive the person whom he had 
 selected by agreement with the Roman court. 
 The pope, for his part, kept his claims alive 
 by providing the same person, and this was in 
 practice regarded as the definite appointment. 
 The Great Schism of the Papacy enfeebled the 
 Roman court. In 1416 no pope was recog- 
 nised in England, and three bishoprics were 
 filled by capitular election alone, the pro- 
 cedure being carefully settled by agreement 
 between Henry V. and Chichele, the Arch- 
 bishop of Canterbury, and confirmed by 
 parliament. The recovery of the Papacy under 
 Martin V. speedily brought back the former 
 diplomatic methods, until they were broken 
 off by Henry the Eighth's definite rupture
 
 BISHOPS AND CURATES 103 
 
 with the papal court. The precedent set by 
 Henry V. was now closely followed, and 
 practice at last coincided with the written law 
 contained in the charter of John. 
 
 Henry, however, made a new claim, or 
 rather revived an old one. He claimed the 
 right of actual election for himself. This was 
 to be exercised in case a chapter refused to 
 elect his nominee : he was then to signify by 
 letters patent to the archbishop the election of 
 the person nominated. In the first year of 
 Edward vi. this claim was further advanced : 
 capitular elections were forbidden by statute, 
 and all bishoprics were to be filled by letters 
 patent. Capitular elections were restored by 
 Mary and respected by Elizabeth, in whose 
 first year the statute of Henry vni. on the 
 subject was renewed. In recent times elec- 
 tion by letters patent has been revived in the 
 case of new bishoprics founded in churches 
 having no recognised chapter. 
 
 Our retrospect shows that the Church has 
 unquestionably accepted this procedure, which 
 therefore stands as lawful ecclesiastical custom.
 
 io 4 A HANDBOOK OF CHURCH LAW 
 
 The dean and chapter of a vacant church 
 pray for a conge d'ttire, which they receive 
 together with letters missive. They then 
 assemble and proceed to election by one of 
 three canonical modes : per inspirationem, a 
 simultaneous designation of the same person 
 by all present ; per scrutinium, or voting, by 
 ballot or otherwise; per modum compromissi, 
 which is the delegation of one or more of the 
 chapter to name the elect. The election is 
 signified to the king, with a petition for the 
 royal assent. Should the chapter elect any 
 other than the person named in the letters 
 missive, the royal assent would be refused, 
 and the king would then proceed himself to 
 elect, signifying the result by letters patent to 
 the archbishop. In the case of churches having 
 no recognised chapter this latter mode of 
 election is adopted from the first. Such is 
 the ecclesiastical procedure: there is now a 
 practice, not very seemly, of publishing in the 
 London Gazette the name of the person to be 
 nominated in the letters missive, even before 
 the issue of the congt d'etre.
 
 BISHOPS AND CURATES 105 
 
 Mission. The election completed, by what- 
 ever method, the person designated is known 
 as bishop-elect. He has not yet, however, 
 received any of the powers of a bishop. He 
 must receive these by conveyance from those 
 already possessing them, namely those who 
 are themselves bishops. In one way or an- 
 other, bishops must send him to his church, 
 and they are said to give him Mission. 
 
 In early times, as we have seen, the neigh- 
 bouring bishops took part in the election to 
 a vacant see and consecrated the elect : the 
 joint process conferred mission without any 
 exact discrimination of its parts. A bishop-elect 
 invested by a feudal sovereign with crozier and 
 ring was also consecrated by neighbouring 
 bishops,and so received mission ; but a tendency 
 to claim some jurisdiction immediately on in- 
 vestiture threatened much confusion of func- 
 tions, which led to protest against the practice 
 and its abolition. Meanwhile the teaching of 
 the False Decretals had brought in a conception 
 of mission as proceeding in all cases from the 
 pope through the metropolitans, who for this
 
 106 A HANDBOOK OF CHURCH LAW 
 
 purpose represented him, to the diocesan 
 bishops. Consequently there grew up with 
 capitular election the practice of confirmation 
 by the metropolitan, which is a formal act of 
 ecclesiastical administration giving mission to 
 the elect. He is now called bishop elect and 
 confirmed, and can perform most offices of 
 episcopal jurisdiction. It remains for him to 
 be consecrated. Cases have been known of a 
 bishop elect and confirmed deferring his con- 
 secration, obtaining the services of a con- 
 secrated coadjutor for those offices which he 
 is himself unable to fulfil. 
 
 At the present day in England the king 
 signifies his assent to the election of a bishop 
 by letters patent to the metropolitan com- 
 manding him, in accordance with the pre- 
 cedents of 1416, to confirm and consecrate the 
 elect. These letters are therefore commonly 
 known as the Royal Mandate. The metro- 
 politan, usually acting by his vicar-general, then 
 holds a court, at which all opposers of the elec- 
 tion are cited to make known their objections. 
 Various attempts have been made during the
 
 BISHOPS AND CURATES 107 
 
 last sixty years to induce the court to hear 
 objections laid against the person elected, 
 but the vicars-general have decided that their 
 function is purely administrative ; they have 
 only to ascertain that the election has been 
 duly carried out, and thereupon to confirm the 
 elect. The Courts of Justice, appealed to in 
 the matter, have refused to interfere. Con- 
 secration usually follows within a few days of 
 confirmation. 
 
 When the metropolitical see is vacant the 
 king addresses his letters patent to four or 
 more bishops of the province, who act 
 accordingly. 
 
 When the king himself elects he signifies 
 the election by letters patent to the metro- 
 politan. There is no confirmation, the arch- 
 bishop proceeding directly to consecration. 
 Mission is thus given, according to the most 
 ancient precedents, by the bishops at least 
 tacitly approving the election and consecrating 
 the elect. 
 
 It has frequently happened in the history of 
 the Church that a bishop has been intruded
 
 io8 A HANDBOOK OF CHURCH LAW 
 
 into a diocese contrary to all canonical rules. 
 Where that has occurred the intruder should, 
 in the rigour of the law, be removed and put 
 under ecclesiastical censure. This has not 
 always been done, and the question arises 
 whether such a bishop has received mission ; 
 whether, therefore, he can be recognised as 
 their pastor by the faithful. The answer is 
 found in the elasticity of Ecclesiastical Law, an 
 elasticity the more necessary, as we have seen, 
 in a system which does not use force for com- 
 pelling obedience. Such a bishop is said to 
 have a colourable title (titulus coloratus\ and 
 is to be recognised by the faithful unless his 
 promotion has been formally and publicly 
 objected to by those having authority to 
 receive or to reject him. But a mere verbal 
 protest is not enough ; they must take steps to 
 secure the more regular promotion of a bishop 
 in his place. Failing this action they are held 
 to acquiesce ; their acquiescence confirms his 
 colourable title ; and if the impediment to his 
 lawful promotion be of a removable kind, their 
 acquiescence continued after its removal will
 
 BISHOPS AND CURATES 109 
 
 confer on him a full title. If, for example, a 
 bishop be intruded into a see which is not 
 canonically vacant, his title will become good, 
 if not resisted, after the death of the lawful 
 holder. If, again, a bishop be uncanonically 
 elected and consecrated to a vacant see, the 
 unprotesting acquiescence of the provincial 
 bishops may be taken to remedy the defect 
 from the first, though the intruder is still liable 
 to disciplinary process. For mission, as 
 distinct from consecration, is conferred, not by 
 any specified action of the bishops, but by 
 their acceptance of the newly promoted into 
 their company, which is picturesquely described 
 by St. Paul as 'giving the right hand of fellow- 
 ship.' On this ground it has been held that 
 mission is given directly by God, the ecclesi- 
 astical act of confirmation or its equivalent 
 being only a public recognition and notification 
 of the fact. Such was the opinion maintained 
 by the Spanish bishops at the Council of Trent. 
 Suffragan bishops, so called, are merely 
 assistants of a diocesan bishop, sharing no part 
 of his responsibility and power of government,
 
 no A HANDBOOK OF CHURCH LAW 
 
 but aiding him in his pastoral work and the 
 administration of the Sacraments. They 
 appear to have no proper mission, but act 
 only as delegates or commissaries. They are 
 elected by the diocesan bishop in agreement 
 with the Crown, and the king signifies the 
 election to the metropolitan with a mandate 
 for consecration. The election of such a 
 bishop to a diocese by letters patent would 
 create a grave irregularity, since there would 
 be no recognised mode of conferring mission ; 
 but the irregularity would be healed in the way 
 above described. Diocesan bishops are called 
 in another, and a more proper sense, suffragans 
 to the metropolitan. 
 
 The royal mandate for consecration is 
 applied for even when a bishop is to be conse- 
 crated, by an English archbishop, to a church 
 in which the king has no right of election, as in 
 most of the colonies or in places beyond his 
 dominions. This is done to avoid any possible 
 clashing with the laws of the realm, forbidding 
 promotion of bishops without royal licence ; 
 though it is tolerably certain that such laws
 
 BISHOPS AND CURATES in 
 
 regard only bishops domiciled in England. It 
 may be added that a bishop consecrated with- 
 out royal mandate, if he afterwards returned 
 to England, might lie under some legal dis- 
 abilities, which are thus avoided. 
 
 The promotion of a citrate involves two acts 
 similar to those required in the case of a bishop. 
 The term election is not, however, in ordinary 
 use for the designation of the person. The 
 manner of conferring mission is less open to 
 variation. 
 
 Curates have become distinguished by law 
 as beneficed and unbeneficed. So far as the 
 title goes, this distinction has reference only to 
 the character of their emolument, which will 
 be dealt with elsewhere ; but the distinction 
 corresponds exactly with one of more purely 
 spiritual character. A beneficed curate is what 
 we have elsewhere called an incumbent. He 
 receives perpetual mission, of which he can 
 be deprived only by disciplinary censure. An 
 unbeneficed curate receives a mission which 
 can be withdrawn by the giver, subject to
 
 ii2 A HANDBOOK OF CHURCH LAW 
 
 certain safeguards. The two classes will there- 
 fore be treated separately under the heads of 
 election for it will be convenient to retain the 
 word and mission. 
 
 A beneficed curate is elected by a person or 
 persons having the right of advowson. The 
 advocatus or patronus of a parish church pro- 
 bably came into being with the parochial 
 system itself. He was the distinguished or 
 powerful layman who cared for the temporal 
 interests of the institution, and who was there- 
 fore allowed the privilege of nominating the 
 parochus. In the legislation of Justinian this 
 right was expressly reserved to those who 
 founded oratories on their own lands and pro- 
 vided by endowment a maintenance for the 
 clergy serving them. It seems to be an error 
 to consider this rule the sole foundation for 
 advocatio, or patronage. That institution 
 already existed, and as now existing it has 
 wider foundations. The enactment of 
 Justinian was clearly imperial and not 
 ecclesiastical; but it passed into the customary 
 law of the Church. The civil courts in all
 
 BISHOPS AND CURATES 113 
 
 countries, when strong enough to enforce 
 their claim, have held the right of advowson to 
 be at least partly within their sphere of opera- 
 tions, and the ecclesiastical law on the subject 
 has grown up through a constant clash of 
 interests and authorities. 
 
 Whatever the original form of patronage 
 may have been in England, the right of ad- 
 vowson became, with the development of 
 feudalism, normally appendant to the manor 
 within which a church was situate, and was 
 exercised by the lord. This simple rule was 
 broken up by the practice of conveying churches 
 to monastic houses. The convent receiving 
 such a gift undertook at first all responsibility 
 for the pastoral care of the parish ; this being 
 neglected, the bishops afterwards insisted on 
 the appointment of a vicar as curate in charge 
 of the parish ; the vicarage became a benefice 
 no less than the original rectory, and the con- 
 vent exercised the right of advowson. Before 
 the conclusion of the fifteenth century it had 
 become a common thing to treat the advowson 
 of a church as a personal inheritance separable 
 H
 
 ii 4 A HANDBOOK OF CHURCH LAW 
 
 from the manor. When actually separated it 
 was called an advowson in gross, and could be 
 conveyed by deed. When the religious houses 
 were suppressed, their patronage of vicarages 
 fell into the hands of individual holders and 
 took this same form of advowson in gross. 
 
 The Canon Law, regarding advowson as 
 a spiritual trust, strictly forbade the sale of 
 any right of patronage. When, however, this 
 became appendant to a manor, it inevitably 
 passed by purchase if the manor were sold. 
 This made it unreasonable to forbid the sale 
 of an advowson in gross, and the lawfulness 
 of such sale was speedily established. It was 
 recognised even while the claim of the Church 
 to exclusive jurisdiction over ecclesiastical pro- 
 perty was still upheld. The power of sale was 
 however restricted. The right of nomination 
 for a single occasion, or next presentation, might 
 not be sold. The advowson itself was not 
 transferable, except by the death of the holder, 
 while the church affected was actually vacant. 
 The principle in both cases was the same. 
 The exercise of the right might not be offered
 
 BISHOPS AND CURATES 115 
 
 in sale. Eventually the right of advowson, 
 as a mere incident of property, passed in Eng- 
 land entirely into the cognizance of the tem- 
 poral courts, which determine, by writ of quare 
 impedit or otherwise, the person in whom the 
 right is vested. 
 
 Grave abuses and scandals connected with 
 the sale of advowsons led to the enactment of 
 the Benefices Act in 1898, by which the matter 
 is now regulated. With the mode of transfer 
 we are not concerned, but two effects of the 
 Act may be noticed. It makes void, after the 
 lapse of existing interests, any grant of a next 
 presentation, and it allows a purchaser only a 
 limited right of nomination for the twelve 
 months next following any transfer by sale. 
 
 An advowson may now be held by a public 
 officer in right of his office, by an individual 
 person, by a corporation sole or aggregate, or 
 by trustees. The patron, however constituted, 
 has the right of 'presenting a. clerk to be admitted 
 to the cure of souls. If the bishop hold the 
 right of patronage, there is another procedure 
 to be noted below. In some few parishes there
 
 n6 A HANDBOOK OF CHURCH LAW 
 
 is no advowson, and the parishioners elect a 
 presentee. 
 
 Lapse. If a patron fail to present within 
 six months of a church becoming vacant, his 
 right lapses to the bishop. If a bishop fail to 
 present within six months, his right lapses to 
 the metropolitan. The metropolitan's right 
 lapses similarly to the Crown. There appears 
 to be no remedy if the Crown fail to present. 
 If a patron's nominee be rejected on the ground 
 of some disqualification within his own cogniz- 
 ance, lapse dates from the vacancy ; if on some 
 ground, such as insufficient learning or hetero- 
 doxy, of which he is not supposed to be a judge, 
 then the period of lapse begins from the date 
 of refusal. 
 
 Crown Rights. During the vacancy of a see 
 the king presents to all churches the advowson 
 of which belongs to the bishop. He also pre- 
 sents to any church vacated by the promotion 
 of its incumbent to a bishopric in England. 
 
 Mission. The presentation is made in writ- 
 ing to the bishop, to whose office it belongs to 
 give mission to the person presented. Peculiar
 
 BISHOPS AND CURATES 117 
 
 jurisdictions, within which others than the 
 bishop performed this function by ancient 
 privilege, have disappeared ; and the anomalous 
 donatives, which were benefices granted by the 
 patron without the intervention of any ecclesi- 
 astical authority, were abolished by the Act 
 of 1898. 
 
 The bishop gives mission by institution or 
 by licence. The particular instrument is deter- 
 mined by the character of the benefice ; its 
 spiritual effect is the same in both cases. To 
 a rectory or properly constituted vicarage the 
 nominee is instituted ; to a perpetual curacy 
 he is licensed. In order to employ a common 
 term we may speak of the bishop admitting 
 him to the cure of souls. 
 
 Since the sixth century the bishop has been 
 held bound to admit any suitable person pre- 
 sented by a lawful patron. He has to judge 
 the suitability or idoneity of the presentee ; 
 but his discretion is regulated by law and is 
 not arbitrary. He is controlled partly by 
 Ecclesiastical Law, and partly also by the Tem- 
 poral Law which guards the rights of the patron.
 
 n8 A HANDBOOK OF CHURCH LAW 
 
 Thus a presentee refused admission may apply 
 to the metropolitan by duplex querela for an 
 order requiring the bishop to admit him ; or 
 the patron may apply to the king's courts for 
 a writ of quare impedit directed to the same 
 end. These measures are, however, to a great 
 extent superseded by the legislation of 1898, 
 which appears to be definitely accepted by the 
 bishops as modifying the law of the Church 
 as well as of the State. 
 
 Idoneity. (i) The presentee must be in 
 holy orders. Formerly any clerk might be 
 presented, and was admitted on his promise 
 to proceed to holy orders. The 39th canon 
 of 1603 required the production of letters of 
 orders, thus excluding any one below the 
 degree of a deacon ; but further, as the law 
 now stands the bishop may refuse a presentee 
 who has been less than three years in the 
 diaconate. The Act of Uniformity, 1661, 
 made it legally impossible for any but a priest 
 to hold a benefice. A deacon may be pre- 
 sented, and admitted at once on his ordination 
 to the priesthood, but the bishop is free to
 
 BISHOPS AND CURATES 119 
 
 reject him. Until recent years this mode of 
 promotion was not uncommon : it is now 
 almost or quite unknown. 
 
 (2) The presentee must be of good character. 
 He is usually required to produce testimonials 
 similar to those demanded of candidates for 
 ordination, but the bishop cannot insist on 
 these if other satisfactory evidence is tendered. 
 The temporal courts have held that a bishop 
 may refuse admission to a presentee whom he 
 personally knows to have committed on some 
 previous occasion an offence punishable by 
 deprivation ; but it is doubtful whether this 
 decision is in accordance with ecclesiastical 
 law, which seems to exclude only those actually 
 under censure, or notoriously liable to it. The 
 bishop may reject a presentee whom physical 
 or mental infirmity renders unfit for the dis- 
 charge of his duties, one who is involved in 
 pecuniary embarrassment of a serious kind, or 
 one who has shown grave misconduct or negli- 
 gence in any ecclesiastical orifice. 
 
 (3) The presentee must have sufficient 
 learning. The bishop is entitled to examine
 
 120 A HANDBOOK OF CHURCH LAW 
 
 him on this head, and the temporal courts, at 
 least, have held that they cannot interfere with 
 his discretion in this respect. The new 
 tribunal erected by the Act of 1898, being of 
 a mixed character, might prove less modest. 
 
 (4) The presentee must be orthodox. His 
 orthodoxy is usually taken as sufficiently 
 guaranteed by the declaration of assent to the 
 Thirty-nine Articles which is required of him on 
 admission, but the bishop is not bound to 
 accept that as sufficient, and may reject him 
 on the ground of anything which he has 
 publicly uttered, or possibly if he refuse to 
 answer on examination, or answer unsatis- 
 factorily. 
 
 The most important ground for rejection 
 under the second of the above heads is a charge 
 of simony. If the presentee has to the knowledge 
 of the bishop been privy to any kind of bargain 
 involving the tender, payment, or promise of 
 any consideration whatsoever for his presenta- 
 tion, or if the vacancy has been procured by 
 such means for his advantage, he ought to be 
 rejected. Since the eleventh century three
 
 BISHOPS AND CURATES 121 
 
 modes of simony have been recognised. The 
 taint may be incurred per munus (i) linguae, 
 by currying favour or by importunate begging ; 
 (2) obsequii, by rendering or promising to 
 render any sort of subservience ; (3) pecuniae, 
 by a payment or promise to pay anything of 
 monetary value. 
 
 If the bishop reject a presentee on the 
 ground of heterodoxy or of some offence 
 committed in regard to the ritual of the 
 Church, his refusal to admit may be traversed 
 by the ancient methods of duplex querela or 
 quare impedit. If he refuse on any other 
 ground he may be cited before a mixed 
 tribunal, created by the Benefices Act of 1898, 
 in which the metropolitan sits, together with a 
 judge appointed by the Lord Chancellor, to 
 review his decision. In this strangely con- 
 stituted court, which does not appear to have 
 any ecclesiastical character, the judge decides, 
 without appeal, all questions of law and fact. 
 If he rules that the bishop's reasons for refusing 
 admission are unfounded or insufficient in law, 
 the metropolitan orders admission. If he finds
 
 122 A HANDBOOK OF CHURCH LAW 
 
 them proved and sufficient, the metropolitan 
 then reviews the bishop's discretion and 
 decides finally whether admission ought to 
 be granted or refused, and makes order 
 accordingly. 
 
 When the bishop has resolved, on his own 
 discretion or on the order of the metropolitan, 
 to accept a presentation, he signifies to the 
 churchwardens of the parish his intention to 
 admit the presentee, and this notification is 
 posted at the church-door. One month after 
 such notice he may proceed to the admission. 
 He may apparently withdraw his consent 
 during this period. 
 
 Before proceeding to admission the bishop 
 requires of the presentee the declaration of 
 assent to the Thirty-nine Articles of Religion 
 and to the Book of Common Prayer, the oath 
 of canonical obedience, and the oath of allegi- 
 ance as made and taken by candidates for holy 
 orders, and also a declaration that he knows 
 of no taint of simony in his presentation. 
 The bishop then proceeds to institute or to 
 license him.
 
 BISHOPS AND CURATES 123 
 
 Institution is performed by the bishop or 
 his commissary reading an instrument executed 
 under his seal, the presentee kneeling before 
 him and holding the seal. 
 
 The licence of a perpetual curate is granted 
 by simple letters under the bishop's seal. 
 
 By institution or by licence the curate 
 receives mission and the spiritual charge of 
 the parish. An instituted clerk, however, has 
 to be inducted (p. 263) before entering fully 
 upon office. 
 
 Collation is the term used when a bishop 
 himself exercises the right of patronage. In 
 this case he notifies to the churchwardens the 
 name of the person whom he intends to 
 promote, and then proceeds as by institution, 
 the wording of the instrument being slightly 
 varied. 
 
 Unbeneficed curates are appointed under 
 three separate conditions : (i) to take charge of 
 a parish while the incumbency is vacant, (2) 
 to take charge during the non-residence or 
 inhibition of the incumbent, or (3) to assist 
 the incumbent in his charge. The mode of
 
 124 A HANDBOOK OF CHURCH LAW 
 
 election varies with the conditions ; the mode 
 of giving mission is invariable. 
 
 Election. (i) When a church is vacant the 
 bishop himself may appoint a curate to the 
 charge ; but if the vacancy is expected to be 
 short the needs of the parish are usually 
 supplied with less formality by visiting 
 priests. 
 
 (2) A non-resident incumbent or an incum- 
 bent inhibited from the performance of his 
 duties may be required by the bishop to 
 nominate a curate, and if he refuse to do so, 
 the bishop may himself appoint. In some 
 cases of inhibition the bishop may at once 
 appoint. 
 
 (3) An incumbent performing the duties 
 of his cure may nominate an assistant-curate. 
 If a bishop have reason to believe that the 
 duties of any incumbent are inadequately 
 performed, he may issue a commission of 
 inquiry, and if the commission report adversely 
 he may require the incumbent to nominate a 
 curate ; failing such nomination, he may himself 
 appoint. The incumbent has an appeal to the
 
 BISHOPS AND CURATES 125 
 
 metropolitan. If the reported inadequacy is 
 found to be due to the negligence of the 
 incumbent, the bishop may at once appoint a 
 curate. 
 
 The nomination must be made according 
 to a prescribed form, signed both by the 
 incumbent and by the nominee. 
 
 Mission. The bishop, on receiving the 
 nomination, requires of the nominee his 
 letters of orders and testimonials of good 
 conduct, the declaration of assent, the oaths 
 of canonical obedience and of allegiance, all 
 as in the case of candidates for holy orders. 
 He then gives him licence under his seal, and 
 so admits him to the cure of souls. 
 
 Reading in. A curate, whether beneficed 
 or unbeneficed, is required, on the first Sunday 
 after his admission, to read the whole of the 
 Thirty-nine Articles of Religion, together with 
 a slightly modified form of the declara- 
 tion of assent, publicly in the time of divine 
 service. By this formality he is said to read 
 himself in. 
 
 Plurality is the tenure by one person of
 
 126 A HANDBOOK OF CHURCH LAW 
 
 several ecclesiastical offices at the same time. 
 Strictly forbidden by the rigour of Canon Law, 
 it has been allowed at various times by a lax 
 administration of discipline. The present 
 English practice allows it freely except in 
 regard to certain dignities and benefices with 
 cure of souls. No priest can hold two or 
 more benefices with cure of souls except 
 by a dispensation from the Archbishop of 
 Canterbury, which is granted only under 
 stringent conditions regarding the neighbour- 
 hood of the cures and the amount of their 
 emoluments. 
 
 Avoidance of Curacy. A priest charged with 
 the cure of souls cannot divest himself of his 
 responsibility at his own pleasure. He holds 
 it until death, unless it be avoided in one of 
 several ways recognised by law. 
 
 (l) Deprivation is the avoidance of a curacy 
 by ecclesiastical censure passed on the curate. 
 In certain cases when a curate has been con- 
 victed by a public tribunal of a disgraceful 
 offence, the bishop has power to declare his 
 cure void without any formal process. He
 
 BISHOPS AND CURATES 127 
 
 may take the same course in certain cases of 
 prolonged or repeated sequestration (p. 277). 
 
 (2) Resignation is the voluntary act of a 
 curate praying the bishop to relieve him of 
 his charge. A beneficed curate, having ob- 
 tained permission, resigns by a formal instru- 
 ment. An unbeneficed curate resigns by a 
 simple notice to the incumbent and to the 
 bishop, which must run for three months 
 unless the bishop consent in writing to a 
 shorter period. The resignation takes effect 
 without further formality, unless the bishop 
 refuse his consent. 
 
 (3) Promotion to a benefice with cure of 
 souls vacates any cure previously held, unless 
 the holder receive a licence for plurality. 
 
 (4) Revocation of Licence. The bishop has 
 power, subject to an appeal to the metropoli- 
 tan, to revoke the licence of any unbeneficed 
 curate after giving him sufficient opportunity 
 for showing cause to the contrary. The bishop 
 may also revoke such a licence without any 
 reason alleged, at the request of the incum- 
 bent giving six months' notice to the curate.
 
 128 A HANDBOOK OF CHURCH LAW 
 
 A newly admitted incumbent may within six 
 months give any previously licensed curate 
 six weeks' notice to vacate his curacy, which 
 will then become void without reference to 
 the bishop.
 
 APPENDIX TO CHAPTERS 
 V VII 
 
 FORM OF LETTERS TESTIMONIAL to be signed by three 
 beneficed Clergy men, and countersigned by their respec- 
 tive Diocesans if they are not beneficed in the Diocese 
 of the Bishop to whom the letters are addressed. 
 
 To the Right Reverend N., Lord Bishop of N. 
 Whereas our well-beloved in Christ, N. N., of 
 College, B.A. [or other degree], hath declared to 
 
 us his intention of offering himself a Candidate for the 
 sacred office of Deacon [or Priest], and for that end 
 hath required of us Letters Testimonial of his good life 
 and conversation : We therefore, whose names are 
 hereunto subscribed, do certify that the said N. N. hath 
 been personally known to us for the space of three years 
 last past [or such shorter period as may have elapsed 
 since he quitted college] : that we have had opportunities 
 of observing his conduct ; that during the whole of 
 that time we verily believe him to have lived, in all 
 respects, piously, soberly, and honestly ; nor have we 
 at any time heard anything to the contrary thereof ; 
 nor hath he at any time, as far as we know or have 
 heard, maintained, said, or written anything contrary to 
 the doctrine or discipline of the Church of England ; 
 and, moreover, we do believe him in our consciences
 
 1 3 o A HANDBOOK OF CHURCH LAW 
 
 to be, as to his moral conduct, a fit person to be admitted 
 into the sacred Ministry. 
 
 Witness our hands this day of in the year 
 of our Lord 19 . 
 
 When the Letters Testimonial are given for a Clerk 
 presented or nominated to a cure of souls, the first sentence 
 of the above is omitted, and the Letters begin : We, 
 whose names are hereunder written, testify and make 
 known that N. N., Clerk, B.A. \pr other degree], presented 
 [0r nominated] to serve the cure of , in the 
 
 county of , and in your lordship's diocese, hath 
 
 been personally known to us, etc., as above. 
 
 B 
 FORM OF 'Si Quis' 
 
 Notice is hereby given, that N. N. [of College, 
 
 , B.A.], now resident in this Parish, intends to 
 offer himself as a Candidate for the holy office of a 
 Deacon [or Priest] at the ensuing Ordination of the 
 Lord Bishop of ; and if any person knows any cause 
 or just impediment why the said N. N. ought not to be 
 admitted into Holy Orders [the Holy Order of Priest], 
 he is now to declare the same, or to signify the same 
 forthwith to the Lord Bishop of 
 
 We certify that, on Sunday, the day of instant, 
 the foregoing Notice was publicly and audibly read by 
 the undersigned C. D. in the Church [or Chapel] of , 
 in the time of divine service, and that no impediment 
 was alleged. 
 
 Witness our hands this day of 19 . 
 
 C. D., Officiating Minister. 
 E. F., Churchwarden.
 
 APPENDIX TO CHAPS. V VII 131 
 
 FORM OF DECLARATION OF ASSENT 
 
 I, N. N. [about to be admitted to the Holy Order of 
 ], do solemnly make the following declaration : 
 I assent to the Thirty-nine Articles of Religion, and 
 to the Book of Common Prayer and of the Ordering 
 of Bishops, Priests, and Deacons. I believe the Doctrine 
 of the Church of England, as therein set forth, to be 
 agreeable to the Word of God ; and in Public Prayer 
 and Administration of the Sacraments I will use the 
 Form in the said Book prescribed, and none other, except 
 so far as shall be ordered by lawful authority. 
 
 A newly admitted Curate, at his Reading in, adds 
 after Articles of Religion the words which I have now 
 read before you. 
 
 D 
 OATH OF CANONICAL OBEDIENCE 
 
 I, N. N., do swear that I will pay true and canonical 
 obedience to the Lord Bishop of and his successors, 
 in all things lawful and honest. So help me God. 
 
 OATH OF ALLEGIANCE 
 
 I, N. N. [about to be admitted to the Holy Order of 
 ], do swear that I will be faithful and bear true 
 Allegiance to His Majesty King N., his heirs and 
 successors according to law. So help me God. 
 
 E 
 
 FORM OF PRESENTATION (NOT OBLIGATORY) 
 
 To the Right Reverend Father in God, N., Lord 
 Bishop of , or in his absence to his Vicar-General
 
 132 A HANDBOOK OF CHURCH LAW 
 
 in Spirituals, or to any other person having sufficient 
 authority in this behalf : I, N. N., true and undoubted 
 patron of the [rectory] of the parish church of , in 
 
 the county of , and in your diocese of , now 
 
 vacant by the [death or resignation, or otherwise as the 
 case may be\ of N. N., the last incumbent there, do 
 present unto you, N. N., Clerk [Master of Arts], humbly 
 requesting that you will be pleased to admit the said 
 N. N. to the said church, and to institute and cause him 
 to be inducted into the same, with all its rights, 
 members, and appurtenances, and to do and execute all 
 other things in this behalf which shall belong to your 
 episcopal office. In witness -whereof, I have hereunto 
 set my hand and seal, the day of in the 
 
 year 19 . 
 
 F 
 FORM OF NOMINATION TO A CURACY 
 
 (i) If the Incumbent is Non-resident 
 To the Right Reverend N., Lord Bishop of 
 
 I, A. B M of , in the county of , and your 
 
 Lordship's diocese of , do hereby nominate E. F., 
 
 Bachelor of Arts [or other degree\ to perform the office 
 of curate in my church of aforesaid, in the place of 
 
 G. H., late licensed curate thereof [this to be omitted if 
 not in the place of another curate\ and do promise to 
 allow him the yearly stipend of , to be paid by 
 
 equal quarterly payments [as to amount of stipend see 
 below], with the surplice fees amounting to per 
 
 annum [if they are intended to be allowed], and the use 
 of the glebe-house, garden, and offices which he is to 
 occupy [if that be the fact; if not, state the reason, and 
 name where and at what distance from the church the
 
 APPENDIX TO CHAPS. V VII 133 
 
 curate purposes to reside] : and I do hereby state to your 
 Lordship that the said E. F. does not serve any other 
 parish as incumbent or curate ; and that he has not any 
 cathedral preferment nor any benefice, and does not 
 officiate in any other church or chapel [if, however, the 
 curate does serve another parish as incumbent or as 
 curate, or has any cathedral preferment, or benefice, or 
 officiates in any other church or chapel, the same respec- 
 tively must be correctly and particularly stated\ : that 
 the net annual value of my said benefice, estimated 
 according to the Act i and 2 Viet. c. 106, sees. 8 and 10, 
 is , and the population thereof, according to the 
 
 latest Returns of Population made under the authority 
 of Parliament, is : that there is only one church 
 
 belonging to my said benefice \if there be another church 
 or chapel, state the fact] : and that I was admitted to the 
 said benefice on the day of 19 . 
 
 Witness my hand this day of in the year 
 
 of our Lord 19 . 
 
 Declaration required to be added by 
 28 and 29 Viet. c. 122 
 
 I, A. B., Incumbent of , in the county of , 
 
 bona fide undertake to pay to E. F. of , in the 
 
 county of , the annual sum of pounds as a 
 
 stipend for his services as Curate, and I, E. F., bona fide 
 intend to receive the whole of the said stipend. 
 
 And each of us, the said A. B. and E. F., declares that 
 no abatement is to be made out of the said stipend in 
 respect of rent or consideration for the use of the glebe- 
 house ; and that I, A. B., undertake to pay the same, 
 and I, E. F., intend to receive the same, without any 
 deduction or abatement whatsoever. 
 
 Witness our hands this day of 19 .
 
 134 A HANDBOOK OF CHURCH LAW 
 
 (2) If the Incumbent is Resident 
 To the Right Reverend N., Lord Bishop of 
 
 I, A. B., of , in the county of , and 
 
 your Lordship's diocese of , do hereby nominate 
 
 E. F., Bachelor of Arts [or other degree], to perform the 
 office of assistant-curate in my church of aforesaid, 
 
 in the place of G. H., late licensed curate thereof [this 
 to be omitted if not in the place of another curate"] ; and 
 do promise to allow him the yearly stipend of paid 
 
 by equal quarterly payments ; And I do hereby state to 
 your Lordship that the said E. F. intends to reside in 
 the said parish \if ' E. F. does not intend to reside in the 
 parish, then state at what place he intends to reside, and 
 its distance from the said church\ ; and that the said 
 E. F. does not serve any other parish as incumbent or 
 curate ; and that he has not any cathedral preferment 
 or benefice, and does not officiate in any other church 
 or chapel [if, however, the curate does serve another 
 Parish, as incumbent, or as curate, or has any cathedral 
 preferment, or a benefice, or officiates in any other church 
 or chapel, the same respectively must be correctly and 
 particularly stated], 
 
 Witness my hand this day of , in the year 
 
 of our Lord 19 . 
 
 Declaration required to be added by 
 28 and 29 Viet. c. 122 
 
 I, A. B., Incumbent of , in the county of , bona 
 
 fide undertake to pay to E. F. of , in the county of 
 
 , the annual sum of pounds as a stipend for 
 
 his services as Curate, and I, E. F., bonaf.de intend to 
 
 receive the whole of the said stipend. 
 
 And each of us, the said A. B. and E. F., declares that 
 no abatement is to be made out of the said stipend in
 
 APPENDIX TO CHAPS. V VII 135 
 
 respect of rent or consideration for the use of the glebe- 
 house ; and that I, A. B., undertake to pay the same, 
 and I, E. F., intend to receive the same, without any 
 deduction or abatement whatsoever. 
 
 Witness our hands this day of 19. 
 
 FORM OF DECLARATION REGARDING SIMONY 
 
 I, N. N., hereby solemnly and sincerely declare in 
 reference to the presentation made of me to the rectory 
 [or vicarage, etc.] of as follows : 
 
 (1) I have not received the presentation of the said 
 rectory [or vicarage, etc.] in consideration of any sum 
 of money, reward, gift, profit, or benefit, directly or in- 
 directly given or promised by me, or by any person to 
 my knowledge or with my consent, to any person what- 
 soever, and I will not at any time hereafter perform or 
 satisfy any payment, contract, or promise made in respect 
 of that presentation by any person without my know- 
 ledge or consent. 
 
 (2) I have not entered, nor to the best of my know- 
 ledge and belief has any person entered, into any bond, 
 covenant, or other assurance or engagement, otherwise 
 than as allowed by sections one and two of the Clergy 
 Resignation Bonds Act, 1828, that I should at any time 
 resign the said rectory [or vicarage, etc.]. 
 
 (3) I have not by myself, nor to my knowledge has 
 any person on my behalf, for any sum of money, reward, 
 gift, profit, or advantage, or for or by means of any 
 promise, agreement, grant, bond, covenant, or other 
 assurance of or for any sum of money, reward, gift, 
 profit, or benefit whatsoever, directly or indirectly
 
 136 A HANDBOOK OF CHURCH LAW 
 
 procured the now existing avoidance of the said rectory 
 [or vicarage, etc.]. 
 
 (4) I have not, with respect to the said presentation, 
 been party or privy to any agreement which is invalid 
 under section one, subsection three of the Benefices Act, 
 1898. 
 
 Dated this day of 19 . 
 
 [Signed] N. N. 
 
 H 
 
 FEES PAYABLE ON PROMOTIONS 
 
 Vicar- 
 General. 
 
 Registrar. 
 
 Bishop's 
 Secretary. 
 
 s. d. 
 
 ' d. 
 050 
 
 *. d. 
 
 220 
 O IO O 
 
 
 
 O IO O 
 
 
 
 030 
 030 
 030 
 
 2 2 O 
 I I 
 
 
 
 030 
 
 220 
 
 
 
 030 
 
 I I O 
 
 
 
 030 
 030 
 
 O IO 6 
 
 o 10 6 
 
 I O O 
 
 o 16 8 
 094 
 
 224 
 I 15 8 
 
 440 
 
 2 2 O 
 
 Ordination .... 
 Copy of Letters of Orders 
 Licence to Curacy 
 
 Copy of Licence, to be paid 
 for by the Incumbent . 
 Licence of Lecturer 
 
 ,, Schoolmaster 
 
 , , Minister in private 
 
 Chapel . 
 
 , , Chaplain in a pub- 
 lic Institution . 
 ,, Workhouse Chap- 
 lain 
 
 General Licence to officiate . 
 
 Licence of Minister in a Peel 
 
 District .... 
 
 Institution or Collation to a 
 
 Benefice * ... 
 
 Licence to a Perpetual Curacy* 
 
 * With additional fees amounting to izs. 6d. in some cases payable to 
 minor officials. 
 
 For Induction a fee is payable to the archdeacon's officials, varying from 
 1, 35. to i, ?s. 6d. 
 
 For the admission of Churchwardens a fee of i8s. is payable to the 
 archdeacon's officials.
 
 CHAPTER VIII 
 
 OF ECCLESIASTICAL JURISDICTION 
 
 THE effect of Mission is to give Jurisdiction. 
 This term is derived from the Roman Civil 
 Law, in which it originally stood for the two- 
 fold function of the Praetor: to define the 
 law by an edictum and to apply it to a given 
 case by a decretum. This double conception 
 adhered to the term through all developments, 
 and passed with it into the language of the 
 Church. The word, however, has attained 
 a wider extension of meaning, and signifies 
 any lawful exercise of authority, legislative, 
 judicial, or executive. The sharp severance 
 of these three functions of government, charac- 
 teristic of the modern state, has no place in 
 the administration of the Church. Supreme 
 authority is committed by the Lord to the 
 chief pastors, the bishops, who exercise it 
 
 137
 
 138 A HANDBOOK OF CHURCH LAW 
 
 personally in all its functions, though they 
 may and do commit certain functions to 
 subordinates. The bishops therefore have 
 an original jurisdiction ; all others receiving 
 mission from them have a derived jurisdic- 
 tion. 
 
 We speak of that which is purely spiritual, 
 a jurisdiction conceived and exercised only 
 for the soul's health of the subject, and con- 
 cerned only with faith and morals and the 
 practice of .Christian virtues. But, as we 
 have seen, Ecclesiastical Law became con- 
 versant with matters of a totally different 
 kind. It secured in varying measure the 
 control of ecclesiastical property, of criminal 
 procedure against clerks, of testaments, of 
 trusts and contracts, and especially of that 
 most important matter, the contract of 
 marriage. When men began, during the 
 later middle ages, to scrutinise more closely 
 the relative functions of temporal and spiritual 
 powers, it was seen that these things belong 
 essentially to the business of the temporal. 
 But the force of custom was too strong, and
 
 OF ECCLESIASTICAL JURISDICTION 139 
 
 the practical confusion of powers was too 
 great, to allow an immediate transfer of 
 operations. The nascent political theory of 
 the time was satisfied by a legal fiction at- 
 tributing these functions of the ecclesiastical 
 order to an original grant made by the 
 temporal power. Such legal fiction was the 
 basis of much feudal law. In this case, 
 as in others, it was historically false. The 
 ecclesiastical courts took cognizance of these 
 matters of their own motion, partly as being 
 the natural guardians of morality, partly as 
 being the only tribunals capable of dealing with 
 such things ; and they exercised authority 
 because men bowed to their authority. But 
 this authority was continually reinforced by 
 the secular arm, without which it was power- 
 less against the recalcitrant ; and when prince 
 and magistrate throughout Europe became 
 conscious of wider duties and responsibilities, 
 more conscious also of their real power, a 
 change was inevitable. The system of Ecclesi- 
 astical Law was too intricate, and its practice 
 too homogeneous, to allow an easy sorting of
 
 140 A HANDBOOK OF CHURCH LAW 
 
 its parts, the purely spiritual and those of 
 mixed character. Add to this that the dis- 
 tinction of Church and State was but slowly 
 supervening on the distinction of spiritual 
 and temporal. Consequently there was on 
 the one hand an inevitable tendency to regard 
 all ecclesiastical jurisdiction as derived from 
 the prince or supreme magistrate, the use 
 of a term so proper to the Civil Law helping 
 the conception ; and on the other hand a 
 dogged resistance to the intrusions of the 
 temporal power. In England, as in other 
 countries, the royal courts slowly drew to 
 themselves their proper business, the develop- 
 ment of Chancery jurisdiction being a notable 
 step ; the spiritual courts reluctantly yielded 
 the ground. It would have been well for the 
 Church if the whole debatable ground had 
 been surrendered, and a complete severance of 
 functions effected. The spiritual courts re- 
 tained much that was not theirs on any sound 
 political theory, and so made almost necessary 
 the Tudor contention that ecclesiastical juris- 
 diction was wholly derived from the Crown.
 
 OF ECCLESIASTICAL JURISDICTION 141 
 
 Little now remains in England of the 
 mixed jurisdiction formerly exercised by the 
 ecclesiastical order. Criminal jurisdiction over 
 clerks is gone, though some of its terms linger 
 in disciplinary process. Testamentary and 
 matrimonial causes are transferred to the High 
 Court of Justice. Brawling in Church is dealt 
 with by the magistrate. The recovery of tithe, 
 or its modern equivalent, is sought from the 
 County Court. But enough remains to keep 
 alive the fiction of devolution from the Crown. 
 A judicial or administrative order may still 
 affect rights of property, as when a man is 
 deprived of a benefice, when a faculty is 
 granted for alienation of consecrated ground, 
 when a sequestration is put in force. So long as 
 such an order has immediate legal effect the 
 jurisdiction is mixed. Even more important, 
 though seldom used, is the power of enforcing 
 obedience by imprisonment under a writ de 
 contumace capiendo ; for though the attachment 
 is made by order of the High Court of Justice, 
 and not of the spiritual court, yet the writ 
 goes as a matter of right on the signification
 
 142 A HANDBOOK OF CHURCH LAW 
 
 of the spiritual court, and it appears from 
 the last notable case that the spiritual court 
 alone can legally terminate the imprisonment. 
 So long as this power is held in reserve, the 
 spiritual court has a mixed jurisdiction. 
 
 It might be well to put an end to this, 
 leaving obedience to be purely a matter of 
 conscience, and leaving the determination of 
 all property rights affected by ecclesiastical 
 procedure to the civil courts. On the other 
 hand there is great need of spiritual juris- 
 diction in matrimonial causes, to proceed 
 independently of that of the High Court of 
 Justice, for the determination not of legal 
 status but of moral duties. 
 
 As things are, ecclesiastical jurisdiction has 
 a legal as well as a spiritual basis, and is 
 regarded in two separate aspects. To the 
 lawyer an ecclesiastical court is a court of 
 inferior jurisdiction, subject on that account 
 to the control of the High Court, specifically 
 exercised by the writ of prohibition which 
 restrains an inferior court from any excess of 
 jurisdiction. But looking at the matter from
 
 OF ECCLESIASTICAL JURISDICTION 143 
 
 a purely ecclesiastical point of view, and 
 regarding the spiritual courts not as inferior 
 but as entirely separate and independent 
 courts, we must nevertheless recognise the 
 right of such intervention in a more general 
 form. The constituent members of the Church 
 or of a Church court are also subjects of the 
 Crown, answerable to the Crown for any act 
 of injustice. It is therefore inevitable, on 
 all sound political theory, that the civil 
 courts shall restrain the spiritual courts, 
 by mandamus, injunction, or other suitable 
 process, from the perpetration of injustice 
 whether positive or negative. On this head 
 the practice of the United States courts, 
 dealing with ecclesiastical courts which have 
 no mixed jurisdiction whatever, deserves a 
 careful study. 
 
 Having noted these complications we may 
 now consider ecclesiastical jurisdiction purely 
 in its spiritual aspect, disregarding its temporal 
 incidents. 
 
 Jurisdiction, as understood in the widest 
 sense, falls naturally under the three heads of
 
 144 A HANDBOOK OF CHURCH LAW 
 
 Legislative, Executive, and Judicial. Three 
 other cross distinctions must here be noticed. 
 
 Ordinary and Delegate. Ordinary jurisdic- 
 tion is that which is by law inseparably 
 annexed to a certain office, and so resides in 
 the person holding that office. Delegate juris- 
 diction is committed to a specified person for 
 a specified purpose by one who holds ordinary 
 jurisdiction ; it ceases when the purpose for 
 which it is given is accomplished ; it may be 
 withdrawn at will by the grantor; it lapses 
 with his removal, by death or otherwise, from 
 his office. A familiar example of such delegate 
 jurisdiction is that of a Commissary appointed 
 by a bishop on occasion to institute or license 
 a priest to a curacy ; standing examples are 
 seen in the Surrogates of ecclesiastical courts. 
 It is a rule of law that a delegate cannot sub- 
 delegate his functions, unless that power be 
 expressly granted. A jurisdiction, originally 
 delegate, becomes ordinary by custom, the 
 person appointed being secured in it by law. 
 In this way the Officials and Vicars- General of 
 bishops, originally delegates, acquired ordinary
 
 OF ECCLESIASTICAL JURISDICTION 145 
 
 jurisdiction. It seems probable that assistant 
 curates, originally the mere delegates of in- 
 cumbents, since they are now appointed by 
 regular process of law and may not be removed 
 at pleasure, have made the same acquisition. 
 The bishop or his vicar regularly administering 
 the diocese, when canonical procedure is in 
 question, is commonly called the Ordinary, 
 that is to say, Judex Ordinarius. 
 
 Voluntary and Contentious. This distinction 
 is almost equivalent to that between executive 
 and judicial functions; the correspondence fails 
 only because voluntary jurisdiction is some- 
 times exercised, as well as contentious, under 
 judicial forms. Voluntary jurisdiction is that 
 which is exercised in behalf of a single party 
 applying for its operation. Contentious juris- 
 diction is that which is exercised either inter 
 partes, between litigants, or against a resist- 
 ant party. Examples of voluntary jurisdiction 
 are institution or licence to a curacy, orders 
 respecting dilapidations, marriage licences, 
 faculties. A faculty granted for the removal 
 of an ornament from a church, even if opposed, 
 K
 
 146 A HANDBOOK OF CHURCH LAW 
 
 is an exercise of voluntary jurisdiction, though 
 the procedure may be highly contentious, for 
 the opponents appear only to inform the mind 
 of the bishop or his vicar making the order. 
 A parishioner, on the other hand, praying the 
 bishop to order the removal of an ornament 
 by the incumbent or churchwardens, applies 
 for an exercise of contentious jurisdiction, even 
 if the application be not actually opposed. 
 All disciplinary process falls under the head 
 of contentious jurisdiction, however complete 
 a submission the penitent may render. 
 
 Legislative and Dispensative jurisdiction is 
 the exercise of the power of binding and 
 loosing. It is obvious that the same power 
 which makes a law can relax the law, either 
 generally or by privilege in a particular 
 instance. Primarily, the same organ of power 
 must act in both cases. A diocesan custom 
 or constitution, allowed or made by the bishop, 
 can be relaxed by the bishop ; a provincial 
 custom or constitution by the provincial 
 synod, and so on. But by a convention of 
 law the relaxing power is entrusted in certain
 
 OF ECCLESIASTICAL JURISDICTION 147 
 
 cases to an inferior authority ; a bishop is 
 allowed to relax a provincial rule, or even one 
 of higher origin. Such relaxing is known as 
 dispensation. A dispensation is a privilegium, 
 a law affecting individuals without altering the 
 general law. It is not a permission to disobey 
 the law, it is a quasi-legislative act, making a 
 general rule inapplicable to a particular case. 
 Examples are the ordinary marriage licence, 
 dispensing with the publication of banns, the 
 licence permitting a curate to go out of 
 residence, the special marriage licence, granted 
 in England only by the Archbishop of Canter- 
 bury, dispensing with the law of domicile and 
 the obligation to be married in facie ecclesiae, 
 a dispensation from fasting, for eating flesh 
 meat on days of abstinence, and the like. 
 
 The distinction between the forum externuni 
 and the forum conscientiae, already mentioned 
 (p. 26), must also be borne in mind. 
 
 All ecclesiastical jurisdiction is radically in 
 the bishops ruling their several dioceses, or 
 acting in common with apostolic authority over 
 the whole Church. This gives two modes of
 
 148 A HANDBOOK OF CHURCH LAW 
 
 exercise, diocesan and conciliar. But further, 
 a bishop gives mission to curates, who thus 
 acquire a certain jurisdiction within their 
 parishes. There are thus three modes, 
 parochial, diocesan, and conciliar, nor is it 
 necessary for our purpose to analyse further. 
 
 Parochial jurisdiction, the authority of a 
 parochus or curate, is within narrow limits 
 legislative and executive inforo externo, judicial 
 also inforo conscientiae. The curate can make 
 certain rules about the conduct of divine 
 worship, fixing the hours and regulating small 
 matters not determined by the prescribed 
 ritual. He presides in the vestry meeting, 
 and exercises great control over its proceed- 
 ings. The incumbent has extensive and 
 ill-defined powers of commanding assistant- 
 curates; he can make and appoint a minor 
 clerk. He has, however, no court in which he 
 can sit judicially for any purpose, nor can he 
 impose censures inforo externo. The manor- 
 court held by some rectors is a purely temporal 
 tribunal. It is one of the distinctive doctrines 
 of Calvinist presbyterianism that a parochus,
 
 OF ECCLESIASTICAL JURISDICTION 149 
 
 with or without assistant-elders, can impose 
 penance, excommunicate, and otherwise act 
 judicially inforo externo. On the other hand, 
 in foro conscientiae the curate exercises peni- 
 tential jurisdiction. It is debated whether, 
 according to the present discipline of the 
 English Church, every priest, if licensed to 
 administer the Sacraments, has not this power 
 at large. The safer opinion seems to be that 
 a curate alone has it normally, but that he 
 can delegate his jurisdiction to any priest so 
 licensed. It will follow that a priest not 
 licensed to a parish may not give penance or 
 absolution within that parish save by the 
 express appointment of the curate. On the 
 other hand it seems clear, that according to 
 the present discipline of the English Church 
 a curate or his delegate is not restricted in 
 the exercise of this jurisdiction to actual 
 parishioners, but may minister penance and 
 absolution to any one resorting to him. 
 
 The incumbent certainly has ordinary juris- 
 diction within his parish, and can delegate, 
 subject to the rules of the diocese in that
 
 iSo A HANDBOOK OF CHURCH LAW 
 
 regard. It is not so clear what is the status 
 of an assistant-curate, or of one taking charge 
 of the parish in the incumbent's absence. 
 Originally a delegate, he may now have ac- 
 quired by law a subordinate ordinary juris- 
 diction. While the question remains doubtful, 
 he ought not to attempt delegation. Reference 
 should be made, if delegation be necessary, 
 to the incumbent, or in his absence to the 
 bishop. 
 
 A curate has certain powers of dispensation 
 in foro conscientiae ; in particular with regard 
 to rules of fasting and abstinence. When in 
 doubt of his own power he must refer to the 
 bishop, who also has the power, if he choose to 
 exercise it, of reserving certain cases to himself 
 or to an appointed Penitentiary. In cases so 
 reserved, a curate must not himself give 
 penance or absolution, 
 
 It appears that the cathedral clergy, clerici 
 in matre> 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 
 
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 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 
 
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