Transcriber's Notes:
In this version, the oe ligature has been replaced by the two
letters, e.g. dioececis.
Text enclosed by underscores is in italics (_italics_).
Text enclosed by equal signs is in bold face (=bold=).
The original text contained Greek letters which have been
transliterated in this version and enclosed in asterisks,
e.g. *paroikia*.
Minor punctuation errors in the original text have been corrected
in this version.
Handbooks for the Clergy
EDITED BY
ARTHUR W. ROBINSON, B.D.
VICAR OF ALLHALLOWS BARKING
BY THE TOWER
THE LEGAL POSITION OF
THE CLERGY
THE LEGAL POSITION OF
THE CLERGY
BY
P. V. SMITH, LL.D.
CHANCELLOR OF THE DIOCESE OF MANCHESTER
AUTHOR OF "THE LAW OF CHURCHWARDENS AND SIDESMEN
IN THE TWENTIETH CENTURY," ETC.
LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK AND BOMBAY
1905
_All rights reserved_
PREFACE
In the following pages an endeavour has been made to give a succinct
sketch of the legal position of the parish clergy of the Church of
England in respect both of spiritualities and of temporalities. The
book, being intended for their use, does not touch upon the subject of
ordination by which they acquired the status of deacons or priests. Nor
does it deal with the episcopate or the non-parochial clergy, except so
far as these subjects are connected with the parochial system.
Like all other human arrangements, our English Church law is, of course,
far from being ideally perfect. It may be safely affirmed that there has
never been either a Church or a State in which the law has actually been
what it ideally ought to have been. It is important to recognise the
difference between the two positions; for there has sometimes been a
disposition on the part of individuals to confuse them, and to treat
what they consider to be the ideal law, as if it were the actual law,
and as if, as such, it demanded their loyal obedience. Such an attitude,
whether in ecclesiastical or civil matters, is anarchical in its
tendency; for it sets up private judgment instead of the constituted
authority as the criterion of what ought or ought not to be done. It can
only be justified where the actual law is absolutely inconsistent with
the fundamental principles of morality or of Christian truth. The object
of the present treatise is to state succinctly what the law is,--not
what it ought to be; and no opinion is expressed or suggestion offered
as to points in which amendment would be proper or expedient.
Within the limited compass of the book it is obviously impossible to
enter into details; and the reader who desires information as to these
will find them in the authorities to which reference is made. It must
also be borne in mind that the general law on the subject of buildings,
property, and pecuniary rights is, in various places, modified by
special local enactments or customs. These can only be ascertained on
the spot, or by consulting the Acts of Parliament in which they are
embodied or recorded.
One other word of caution is desirable. In explaining the legal position
of the parochial clergy, it is, of course, necessary to indicate the
exact limits of their rights. If they venture beyond these limits, they
are manifestly in the wrong. But no community, either ecclesiastical or
civil, could maintain its well-being, or even its coherence, if every
individual were on all occasions to take advantage of the full tether
of his legal rights. It will frequently be wise and proper for the
clergy, in their relations with their ecclesiastical superiors or with
the lay officials and other laity of the parish, not to adopt the most
uncompromising attitude which the letter of the law permits to them. The
dictates of love and of Christian forbearance, and of consideration for
the claims of others, as well as of expediency, will not warrant the
infringement by an individual of the ordinances of either the Church or
the State. But they will more than justify him in refraining from taking
up a position of defiance which these ordinances may strictly entitle
him to assume.
P. V. SMITH.
_Easter, 1905_.
CONTENTS
LIST OF ABBREVIATIONS pages xxi-xxiv
CHAPTER I
GENERAL LEGAL POSITION
1. Spiritual, ecclesiastical, and civil status of the clergy. 2.
Sources of Church law. 3. Written and unwritten law--Foreign
Canon law--Pre-Reformation Canons--Acts of Parliament--Canons of
1603--Canons of 1640--Other canons. 4. Decisions of Church
courts--Distinction between judicial and legislative action. 5.
Legal status of the ancient Parish--Rector or Parson--Patronage
or Advowson--Vicar--Perpetual curate. 6. Dissolution of the
Monasteries--Impropriate rectories--New churches and
ecclesiastical parishes--Assistant parochial clergy--Titular
vicars--Incumbent--Curate. 7. Minister in charge--Lecturer. 8.
Status of clergy ordained elsewhere than in England or Ireland,
or ordained for service in the colonies or foreign
countries--Scottish clergy. 9. Benefices--Beneficed and
unbeneficed clergy. 10. Bishops, their relation to the
clergy--Suffragan bishops--Chancellors. 11. Archdeacons. 12.
Rural Deans. 13. Judicial procedure--Church Discipline Act,
1840--Public Worship Regulation Act, 1874--Clergy Discipline
Act, 1892. 14. Abstinence of Clergy from secular pursuits. 15.
Civil exemptions--Municipal and Parliamentary qualifications and
disqualifications. 16. Restrictions as to labour, business, and
trade--Lawful exceptions--Penalties for unlawful trading. 17.
Protection in performance of religious rites--Act against
brawling. 18. Indelibility of Orders--Relinquishment of clerical
status pages 1-24
CHAPTER II
BENEFICED CLERGY
1. Admission by bishop on presentation of patron--Lapse to
bishop, archbishop, or Crown. 2. Transfers of advowsons or
rights of presentation--Next presentations--Power of patron to
present himself--Restrictions under Benefices Act, 1898. 3.
Qualification for admission--Grounds for refusal by
bishop--Testimony as to fitness. 4. Procedure in case of refusal
by bishop. 5. Publication of notice of intended admission. 6.
Mode of admission--Institution--Licence--Collation--Declarations
of assent and against simony--Oaths of allegiance and canonical
obedience--Reading of Thirty-nine Articles. 7. Effect of
admission--Induction. 8. Fees on admission. 9. Cure of
Souls--Duties laid down in Ordination Service--Residence--Divine
service--Marriages--Burials--Private ministrations. 10.
Exclusive right of administration--Superior right of
bishop--Modern comity as between town parishes. 11. Private
ministrations--Service in unconsecrated buildings--Meetings for
worship. 12. Private chapels--Chapels of
institutions--Unconsecrated proprietary chapels. 13. Formation
of new parishes--Approval or otherwise of incumbent. 14. Holding
of two benefices. 15. Neglect of duty--Commission of
inquiry--Procedure on adverse report of Commission. 16.
Residence on benefice--Forfeitures for non-residence--Bishop's
licence of non-residence--Grounds for licence. 17. Monition,
sequestration, and avoidance of benefice for non-residence. 18.
Performance of duties where incumbent is non-resident. 19.
Restrictions on interfering with duties during period of
non-residence. 20. Reckoning of time as to residence. 21.
Vacation of benefice by death, resignation, admission to other
preferment, or deprivation. 22. Resignation; unconditional
except upon an exchange--Engagement to resign illegal except
under Clergy Resignation Bonds Act, 1828--Corrupt resignations
and exchanges--Pensions under Incumbents Resignation Acts. 23.
Vacation of benefice on admission to other preferment. 24.
Deprivation _ipso facto_--Declaration of vacancy by bishop on
conviction of incumbent in certain cases--Sentences of
deprivation under Acts of 1840 and 1892 pages 25-54
CHAPTER III
UNBENEFICED CLERGY
1. Classes of unbeneficed clergy--Bishop's licence--Declaration
of assent--Examination and admission by bishop--Discretion of
bishop--Revocation of licence. 2. Curates or ministers in
charge--(_a_) On vacancy of benefice--(_b_) On sequestration of
benefice for incumbent's bankruptcy or debt--(_c_) On
incumbent's non-residence--(_d_) On incumbent's neglect of
duties--(_e_) On formation of Peel district. 3. Assistant
curates--Stipend--Notice to quit or relinquish
curacy--Discretion of incumbent as to employment--Appointment
where duties are inadequately performed; or where circumstances
of parish require it. 4. Performance of duty by other
clergy--Discretion of incumbent--Licence of bishop--Production
of licence and entry of names of preachers in a book. 5.
Lecturers and preachers--Performance of other ministerial duties
pages 55-64
CHAPTER IV
LAITY OF THE PARISH
1. Relations between incumbent and lay officials. 2. The
vestry--Constitution, meetings, and voting in ancient parishes,
and in new parishes--Vestries Act, 1818--Present
functions--Select vestries. 3. Churchwardens--Election in
ancient and new parishes--Admission. 4. Parson's or vicar's and
people's wardens--Duties: (_a_) Care of fabric and ornaments of
the church and of the churchyard--(_b_) Seating of
parishioners--(_c_) Provision of requisites for service--(_d_)
Maintenance of order in church and churchyard--(_e_) Collection
and concurrence in disposal of offertory money--(_f_) Charge of
church and benefice during vacancy, if appointed
sequestrators--Restrictions on powers. 5. Sidesmen. 6. Church
trustees. 7. Parish clerk--Appointment and removal. 8. Sexton.
9. Beadle. 10. Organist and choristers. 11. Officiating of lay
readers and other laymen. 12. Other lay work--Visiting of poor
and sick--Sunday schools--Church elementary schools. 13.
Parochial church councils pages 65-79
CHAPTER V
DIVINE SERVICE
1. Duty of clergy as to uniformity of service--Divergence by
lawful authority--Liberty under Act of 1872. 2. Morning and
Evening Prayer--Litany--Bishop may order two full services, and
a third service, with sermon. 3. Notices during Divine
service--Notices on church door--Banns. 4. Offertory--Other
collections in a church or chapel--Duty of incumbent as to money
entrusted to him. 5. Questions as to the legality of various
church ornaments, vestments, and ceremonies--Legal decisions as
to (_A_) Stone Holy Table--Crucifix--Cross--Candlesticks--
Flower-vases--Pictures--Sculptures--Credence table--Second Holy
Table-- Chancel gates--Baldacchino--Voice of parishioners in
vestry--(_B_) Attire of clergy at Holy
Communion--Surplice--Hood--Albe--Vestment or
chasuble--Tunicle--Stole--Chaplain's scarf--Biretta--Black
gown--(_C_) Incense--Processions with lighted candles--Lighted
candles at Holy Communion--Mixed chalice--Wafers--Agnus Dei and
other hymns--Position of minister--Genuflexions--Elevation--Sign
of the Cross--Ablutions--Reservation. 6. Baptism not to be
refused--Time for the ceremony--Private baptism in urgent
cases--Godparents--Reception in church after private
baptism--Conditional baptism--Immersion or affusion--Notice to
bishop in cases of adult baptism--Deacon may baptize--Lay
baptism. 7. Times for and notice of Holy Communion--Communion
not to be unlawfully refused--Who are to be repelled from
it--Procedure in such cases--Jenkins _v_. Cook--Persons coming
from other parishes--Persons attending dissenting places of
worship--Persons baptized in another communion and not
confirmed. 8. Sermons and homilies--Provisions of rubrics,
Canons, and Acts of Parliament. 9. Catechising. 10. Churching of
women pages 80-99
CHAPTER VI
MARRIAGE
1. Duty of minister to solemnise marriage between persons
legally competent--Unlawful solemnisation, when a
felony--Marriage, when void. 2. Original places for banns and
marriages--Churches of new parishes--Licences for banns and
marriages in chapels--Parishes having no regular services in
parish church--Where parish church is being rebuilt or
repaired--No reconsecration necessary where church is rebuilt or
enlarged and position of Holy Table altered. 3. Persons legally
competent to intermarry--Religion or absence of religion of the
parties no ground for refusal to solemnise marriage. 4.
_Minimum_ age--Consent of parents or guardians in case of
unions--Marriage without consent, in absence of notice--Marriage
below lawful age. 5. Marriage of lunatic or _non compos_, void.
6. Absence, unheard of, for seven years--Relief from punishment
for bigamy--Invalidity of remarriage. 7 Divorce abroad--Divorce
in England under Act of 1857--Remarriage of divorced persons. 8.
Marriage of foreigners--Requirements of laws of foreign
States--Precautions to be observed. 9. Prohibited degrees of
kindred and affinity. 10. Publication of banns--Time and
form--Seven days' notice--Publication and marriage without
notice and due inquiry--Publication where parties dwell in
different parishes or districts--Where one dwells in Scotland,
or in Ireland--What constitutes dwelling--Correct names to be
published--Status need not be published--Publication to be from
book and signed--Forbidding of banns. 11. Marriage, with consent
of minister, on registrar's certificate--Not permitted on
registrar's licence. 12. Marriage on licence of bishop or
Archbishop of Canterbury--Grant of bishop's licence--Previous
affidavit before surrogate--Duty of minister on production of
licence--Names in licence--Grant of licence a favour and not a
right. 13. Marriage, where and when to be solemnised--Priest or
deacon may marry--Penalty for solemnising marriage at improper
place or time. 14. Reading of service after marriage at a
registry office--Second solemnisation of marriage. 15. Fees for
banns, certificate of banns, and marriage. 16. Marriage register
books--Certificate of marriage. 17. Presumption of marriage of
persons coming to Holy Communion--Proof of no marriage--Validity
of marriage governed by law of place of solemnisation--Capacity
to contract marriage governed by law of domicile---Marriage
between British subjects in a foreign country or on board ship
pages 100-120
CHAPTER VII
BURIAL
1. Right of burial by clergyman of the parish where death
occurs--Bells to be rung--Burial in case of death in another
parish--Relief in case interment is refused--No right to
particular hour or spot of burial--Incumbent or churchwardens
cannot sell or grant grave-spaces in perpetuity or brick
graves--Reservation of exclusive right of burial on grant of
addition to churchyard--Faculty for exclusive grave space in
other cases--Burial of non-parishioners not dying within the
parish. 2. Burial of bodies cast up by the sea or tidal or
navigable water. 3. Burial of person dying unbaptized or
excommunicate and of _felo de se_--Burial of child of dissenter
or person who has received lay baptism--Interment cannot be
required without convenient warning. 4. Bringing of corpse into
church and burial under church. 5. Fees--Prepayment not
enforceable--Customary amount--On burial of
non-parishioners--Tables of fees--Special fees for brick graves,
iron coffins, and other extras--Fees and rights of burial where
new ecclesiastical parish has its own burial ground. 6. Use of
Burial Service in unconsecrated ground--Use of special
form--Permission of burial without Church rites and with or
without some other service on notice under Act of 1880--Day and
time for burial--Fee. 7. Delivery of registrar's certificate of
death or order of coroner at funeral. 8. Fees on interments in
cemeteries under Cemeteries Clauses Act, 1847. 9. Burial
Acts--Consecrated and unconsecrated parts of burial
grounds--Chapels--Fees of incumbents, clerks, and sextons--Sale
of rights to vaults and monuments--Burial Act, 1900--Tables of
fees--Restrictions on future fees to incumbents, churchwardens,
and sextons--Commutation of fees. 10. Cremation--Burial of
cremated remains. 11. Faculty for removal of body from one
unconsecrated place of interment to another--Licence of Home
Secretary for removal in other cases pages 121-134
CHAPTER VIII
PRIVATE MINISTRATIONS
1. Visitation and Communion of the Sick---Canon 67--Order for
the Visitation--Confession and absolution of the
sick--Regulations as to Communion. 2. Preparation for
Confirmation. 3. Spiritual advice and
comfort--Confession--Absolution. 4. Ordinary visitation and
intercourse pages 135-140
CHAPTER IX
TEMPORALITIES
1. Possessions and revenues of benefices of ancient parishes and
new ecclesiastical parishes. 2. Incumbent a corporation
sole--Restrictions on his acquisition and holding of landed
property--Licence in mortmain--Mortmain and Charitable Uses
Acts--School Sites Acts--Inability to hold as a corporation land
upon trusts. 3. Freehold of church and churchyard of ancient
parish in rector--Chancel repairable by rector--Enforcement of
repairs--Possession and custody of church in incumbent and
churchwardens--Right of incumbent to keys and control of organ
and bells--Canon 88--Right of rector to profits of soil of
churchyard--Felling of trees in churchyard--Freehold of church
and churchyard of new parish in incumbent--Exemption from rates
and contributions to making new streets--Removal of part of
church as a dangerous structure. 4. Rights of bishop and
parishioners in church and churchyard--Power of incumbent as to
ordinary tombstone sand inscriptions in churchyard--Glass shades
for wreaths--Appeal to consistory and higher courts--Faculties
for monuments in church and other alterations and additions in
church and churchyard--Application by incumbent and
churchwardens after resolution of vestry--Consent of rector to
alteration in chancel--Faculty for vault or space for exclusive
burial--Removal of earth or bones from churchyard, or other
desecration--Faculty for diversion of ancient footpath through
churchyard, and for throwing part of churchyard into
highway--Restoration of wall wilfully thrown down--Easement of
light and air over churchyard--Laying out of closed churchyard
as a garden and removal of gravestones--Restrictions as to
building on closed or disused burial-grounds. 5. Glebe,
rectorial and vicarial--Exemption from tithe--Waste--Cultivation
of glebe--Cutting down of trees--Opening and working of mines
and quarries and gravel pits. 6. Statutory facilities for
parsonage houses and other buildings and repair of
chancels--Gilbert Acts--Loans by, and mortgages to Queen Anne's
Bounty--Purchase of land--Building and improving of farm
buildings and labourers' dwellings--Gifts and bequests of
parsonage houses and glebe--Sale and exchange of parsonage
houses and glebe. 7. Letting of parsonage house where incumbent
has licence to reside elsewhere. 8. Farming or letting of
glebe--Agricultural, building, and mining leases. 9. Repair of
parsonage house and glebe buildings--Ecclesiastical
Dilapidations Act, 1871. 10. Diocesan surveyors--Proceedings
(_a_) on vacancies in benefices and (_b_) in other
cases--Exemption from liability for five years after certificate
of surveyor. 11. (_a_) Inspection and report by surveyor on a
vacancy--Objections to report--Order of bishop--Debt from late
incumbent, or his estate, to new incumbent--Payment of amount
recovered to Queen Anne's Bounty--Loan of amount not
recovered--Balance to be paid by new incumbent--Dilapidation
Account--Liability where a vacancy occurs between inspection of
buildings and certificate of completion of works. 12. (_b_)
Inspection of buildings on complaint of archdeacon, rural dean,
or patron, or on request of incumbent--Inspection after and
during sequestration of benefice--Report--Objections--Decision
of bishop--Loans--Dilapidation Account--Execution of
repairs---Charge of cost on income in case of benefice under
sequestration--Vacancy before execution of works--Liability of
sequestrator spending excessive amount on repairs. 13. Payment
of money out of dilapidation account on certificate of
surveyor--Liability and duty of incumbent--Rebuilding or
remodelling instead of repairing. 14. Insurance of parsonage
house, glebe buildings, and chancel against fire--Production of
receipts for premiums at visitations--Payment and application of
insurance money and reinstatement of buildings in the event of
fire--Sequestration of benefice to raise any requisite balance.
15. Exemption from Act of 1871 of buildings let on lease under
which tenant is liable--Inspection by surveyor. 16. Faculty or
consent of bishop and patron to alterations in
buildings--Liability of incumbent for alterations not so
sanctioned--Power of bishop to authorise removal of unnecessary
buildings--Movable sheds or garden frames. 17. Vacation of
benefice--Cesser of rights of former incumbent--Right of widow
to two months' residence in parsonage house--Inspection of
premises pending settlement of
dilapidations--Emblements--Apportionment of rents, tithe
rentcharge, and other income. 18. Tithe commutation rentcharge
under Act of 1836 and amending Acts--Assessment in lieu of great
or rectorial tithes and small or vicarial tithes--Extraordinary
tithe rentcharge in respect of hop and other gardens and
orchards--Act of 1886--Assessment of tithe rentcharge with
regard to prices of wheat, barley, and oats--Variation according
to septennial average prices. 19. Payment of tithe rentcharge
and recovery by distress on appointment of receiver--Recovery
from railway company. 20. Dues (i.) ordinary and (ii.)
special--Variety by law and custom--Payments on the customary
four offering days--Easter offerings--Rights of vicar of new
ecclesiastical parish. 21. Mortuaries. 22. Dues for special
services or concessions. 23. Pew rents under special or general
Acts of Parliament--Under Church Building and New Parishes
Acts--Recovery of pew rents. 24. First fruits and
tenths--Exemption of small benefices--Number of benefices
remaining liable. 25. Income or property tax--On parsonage
house, glebe lands, and tithe rentcharge--On landed property in
occupation of incumbent--On other stipend, fees, perquisites,
and profits--Legal deductions--Test as to whether receipts are
or are not liable to tax--Voluntary contributions to minister in
respect of his office--Grants from Curates' Augmentation
Fund--Grants from Queen Victoria Clergy Fund pages 141-168
INDEX pages 169-174
LIST OF ABBREVIATIONS
_A. C._ Law Reports (House of Lords and Privy
Council) 1891 onwards.
_A. & E._ Adolphus & Ellis's Reports (King's Bench)
1834-41.
_Add._ Addam's Reports (Ecclesiastical) 1822-6.
_Ambl._ Ambler's Reports (Chancery) 1737-83.
_App. Ca._ Law Reports (House of Lords and Privy
Council) 1875-90.
_Atk._ Atkyn's Reports (Chancery) 1735-54.
_Ayl. Par._ Ayliffe's _Parergon Juris Canonici
Anglicani_, 1726.
_B. & C._ Barnewall & Cresswell's Reports (King's
Bench) 1822-30.
_B. & Ad._ Barnewall & Adolphus' Reports (King's Bench)
1830-34.
_B. & Ald._ Barnewall & Alderson's Reports (King's
Bench) 1818-22.
_B. & Sm._ Best & Smith's Reports (Queen's Bench)
1861-70.
_Beav._ Beavan's Reports (Chancery) 1838-66.
_Bl. Comm._ Blackstone's Commentaries on the Laws of
England.
_Burn._ Burn's Ecclesiastical Law, 4 vols.
_Canon._ One of the Constitutions and Canons
Ecclesiastical agreed upon in the Canterbury
Convocation begun in 1603.
_C. B._ Common Bench Reports, 1845-56.
_C. B. N. S._ Common Bench Reports, New Series, 1856-65.
_C. & K._ Carrington & Kirwan's Reports (Nisi Prius)
1843-1853.
_C. P. D._ Law Reports (Common Pleas Division) 1875-80.
_Ch._ Law Reports, Chancery Division, 1891
onwards.
_Ch. D._ Law Reports, Chancery Division, 1875-90.
_Cl. & F._ Clark & Finnelly's Reports (House of Lords)
1831-46.
_Clarke, Proxis_ Francis Clarke's _Proxis in Curiis
Ecclesiasticis,_ 1666, 1684.
_Co. Inst._ Coke's Institutes of the Laws of England,
Second Part.
_Co. Litt._ Coke upon Littleton (with notes by Hargrave
and Butler).
_Co. Rep._ Coke's Reports, 1598-1616.
_Com. Dig._ Comyn's Digest.
_Cowp._ Cowper's Reports (King's Bench) 1774-78.
_Cripps._ Cripps's Law relating to the Church and
Clergy, 6th ed., 1886.
_Cro. Jac._ Croke's Reports (temp. James I.) 1603-1625.
_Curt._ Curteis's Ecclesiastical Reports, 1834-44.
_Degge._ Sir Simon Degge's Parson's Counsellor.
_Dr. & Sm._ Drewry & Smale's Reports (Chancery)
1859-65.
_E. & B._ Ellis & Blackburn's Reports (Queen's Bench)
1854-8.
_Eccl. & Adm._ Ecclesiastical & Admiralty Reports (Spinks)
1853-5.
_El. & El._ Ellis & Ellis' Reports (Queen's Bench)
1858-61.
_Ex._ Exchequer Reports, 1847-56.
_Ex. D._ Law Reports (Exchequer Division) 1875-1880.
_Geary_ Geary's Law of Marriage and Family
Relations (A. & C. Black, 1892).
_Gibs. Cod._ Gibson's _Codex Juris Ecclesiastici
Anglicani_.
_Hag. Cons._ Haggard's Consistory Reports, 1729-1821.
_Hag. Eccl._ Haggard's Ecclesiastical Reports, 1827-1832.
_H. & C._ Hurlstone & Coltman's Reports (Exchequer)
1862-66.
_H. L. C._ House of Lords Cases, 1847-66.
_Hob._ Hobart's Reports, 1611-20.
_Ir. Ch. Rep. App._ Irish Chancery Reports (Appendix).
_J. & H._ Johnson & Hemming's Reports (Chancery)
1859-62.
_J. P._ Justice of the Peace, 1837 onwards.
_Johns._ John Johnson's Clergyman's Vade Mecum,
6th ed., 1731.
_Jur._ Jurist (Reports) 1837-54.
_Jur. N. S._ Jurist, New Series (Reports) 1855-66.
_K. B._ Law Reports (King's Bench) 1901 onwards.
_L. J. (Ch., C.P.,_ Law Journal 1823-31; New Series 1832 onwards
_ Ex. Q.B.)_ (Chancery, Common Pleas, Exchequer, Queen's
Bench).
_L. J. Eccl._ Ditto (Ecclesiastical Cases).
_L. J. M. C._ Ditto (Magistrates' Cases).
_L. J. P. M. & A._ Ditto (Probate, Matrimonial, and Admiralty
Cases).
_L. R. A. & E._ Law Reports, 1865-75 (Admiralty and
Ecclesiastical).
_L. R. C. P. Ex. Q. B._ Ditto (Common Law).
_L. R. Ch._ Ditto (Chancery Appeals).
_L. R. Eq._ Ditto (Equity).
_L. R. H. L._ Ditto (House of Lords).
_L. R. H. L. Sc._ Ditto (Scotch and Divorce Appeals).
_L. R. P. C._ Ditto (Privy Council).
_L. T. N. S._ Law Times (New Series) Reports,
1859 onwards.
_M. & S._ Maule & Selwyn's Reports (King's Bench)
1813-17.
_M. & W._ Meeson & Welsby's Reports (Exchequer)
1836-47.
_Marsh._ Marshall's Reports (Common Pleas) 1813-1816.
_Mer._ Merivale's Reports (Chancery) 1815-17.
_Moo. P. C._ Moore's Privy Council Reports, 1836-62.
_Moo. P. C. N. S._ Ditto, New Series, 1862-73.
_N. R._ New Reports (Equity and Common Law) 1862-65.
_Not. of Ca._ Notes of Cases (Ecclesiastical and Maritime)
1841-50.
_P._ Law Reports, Probate Division, 1891 onwards.
_P. D._ Law Reports, Probate Division, 1875-90.
_Phill._ Phillimore's Reports (Ecclesiastical)
1809-1821.
_Phill. Eccl. Law_ Phillimore's Ecclesiastical Law of the
Church of England, 2 vols., 2nd ed., 1895.
_P. Wms._ Peere Williams' Reports (Chancery)
1695-1735.
_Q. B._ Queen's Bench Reports (Adolphus & Ellis)
1841-52.
_Q. B._ Law Reports (Queen's Bench) 1891-1900.
_Q. B. D._ Law Reports (Queen's Bench Division)
1875-1890.
_Rob. Eccl._ Robertson's Reports (Ecclesiastical)
1844-1853.
_Sc. L. R._ Scottish Law Reporter, 1865 onwards.
_Sm. Churchw._ Smith's Law of Churchwardens and Sidesmen
in the Twentieth Century (Wells, Gardner,
& Co., 2s.).
_Str._ Strange's Reports, 1715-47.
_Strype's Annals_ John Strype's Annals of the Reformation (ed.
1824) 4 vols.
_Sw. & Tr._ Swabey & Tristram's Reports (Probate and
Divorce) 1858-65.
_Taun._ Taunton's Reports (Common Pleas) 1807-1819.
_Times Law Rep._ Times Law Reports, 1884 onwards.
_T. R._ Durnford & East's Term Reports (King's
Bench) 1785-1800.
_Trist. Cons. Judgm._ Tristram's Consistory Judgments, 1872-90.
_Ventr._ Ventris' Reports (King's Bench) 1668-91.
_Ves._ Vesey Junior's Reports (Chancery) 1789-1816.
_Wats._ Watson's Clergyman's Law, 4th ed., 1747.
_Willes_ Willes Reports (Common Pleas) 1737-58.
_Wils._ Wilson's Reports (Common Law) 1743-74.
_W. R._ Weekly Reporter, 1853 onwards.
_Yo. & Jer._ Younge & Jervis's Reports (Exchequer)
1826-30.
CHAPTER I
GENERAL LEGAL POSITION
1. In every country where a Christian Church is permitted to exist, the
power and authority of her clergy to exercise their functions will rest
upon a triple basis and be subject to twofold restrictions and
limitations. In the first place, (i.) they derive their spiritual
authority from their ordination, and this authority is independent of
the particular Church to which they belong. But, in the next place, they
are bound on the one hand (ii.) to obey the regulations of the Church of
which they are the ministers, and must also, on the other hand, (iii.)
conform to the laws of the country in which they labour. For they can
only actively exercise their functions by the licence or permission of
the ruling power of that country, and subject to any conditions which it
may choose to impose. These principles apply equally whether the Church
is what we call established or not. The only difference is that if the
Church is established, her own regulations are part of the law of the
land; whereas, if she is not established, the law of the land sanctions
or suffers the existence of these regulations as a private contract or
arrangement between the ministers and other members of the Church. But
even in the case of an established Church, her ministers will obviously
be restricted in the exercise of their functions by civil regulations
which do not form part of the ecclesiastical law. Thus there may be
nothing in the law of his Church to prevent a clergyman from holding a
religious service or preaching in a crowded thoroughfare. But in England
and other civilised countries any attempt to do so would be checked by
the existing laws against the obstruction of highways. In the following
pages no attempt will be made to point out the non-ecclesiastical laws
and limitations to which a parish priest is subject. For though they
necessarily affect himself and his spiritual work, they do so only
indirectly. They touch him not as a minister or even as a Christian, but
as a citizen; and they touch his spiritual work only in so far as that
work has a material and civil element.
2. Confining then our attention to the ecclesiastical law under which
the parish priest holds his position and acts in this country, we note
in the first place, that the Church being here established, this
ecclesiastical law is equally the law of the Church and the law of the
State. This is true whatever be its origin, and however it came into
force; and it has always had this double aspect, since (with the
exception of the brief interval of the Commonwealth--a period which is
not recognised in our jurisprudence as having had any legal existence)
there never has been a time in our history when the Church of England
has not been the Established Church of the nation. Portions of our
Church system and Church law have had an exclusively ecclesiastical
origin, by canon or otherwise, and have been adopted or acquiesced in by
the State. Further portions have been created by the joint or concurrent
action of the Church and the State. Other portions again have been due
to the sole action of the civil legislature, which has received the
tacit assent of the Church but has never been confirmed by any formal
ecclesiastical ratification. From whichever of these three sources any
particular point of our Church law may have been derived, its validity
and obligation is the same. It binds the Church and her ministers and
members irrespectively of its origin, and is at present in force unless
it has either been formally repealed or become obsolete and fallen into
desuetude.
3. Again, like our civil law, our ecclesiastical law is in part written
and in part unwritten or customary. Foreign canon or conciliar law or
papal law is only binding in England so far as it has been received by
immemorial custom, and has thus become part of our unwritten law, or
has been incorporated into our written law by the ratification of an Act
of Parliament, or a canon or constitution of our own Church; and the
binding force of the English Pre-Reformation canons, ordinances, and
provincial constitutions stands on the same footing. For the Commission
authorised by the Act for the Submission of the Clergy of 1533 to
examine the English canons and constitutions, and, with the king's
assent, declare which of them should be in force and which should be
abrogated, was never appointed, although the time for its appointment
was extended by Acts of 1535 and 1543, and the scope of its inquiry was
extended by the latter Act so as to include foreign canons and
ordinances.[1] Consequently the only written Church law is to be found
in Acts of Parliament and the Prayer-Book,[2] and in Post-Reformation
canons, which, however, except so far as they are confirmed by Act of
Parliament, or declare the unwritten law of the Church, are only binding
on the clergy.[3] Of these the chief are those known as the Canons of
1603, which were agreed upon at the sitting of the Canterbury
Convocation begun in that year, and were separately passed two years
afterwards by the York Convocation. Many portions of them are, however,
now obsolete; and Canon 36 and the last words of Canon 102 have been
superseded by new canons made in 1865-66 and 1888. The Canons of 1640
were passed after the dissolution of Parliament, which, according to the
custom of the realm, put an end also to the existence of Convocation,
and they have no legal force.[4]
4. Much discussion has arisen upon a fourth source of Church law,
namely, the decisions of our ecclesiastical courts. It is important to
draw a clear distinction between legislative and judicial functions. A
court, whether ecclesiastical or civil, has nothing to do with enacting
laws. Its province is confined to interpreting them, when their meaning
is obscure or disputed. No doubt, in the course of this interpretation,
it will sometimes make law by deciding in a particular way a point on
which the legislature has left the matter in doubt, and has not itself
clearly laid down the law. Many questions affecting the clergy and the
Church have, in fact, been thus determined by our civil as well as by
our ecclesiastical tribunals. But if one of our civil courts, in
interpreting the civil law, delivers a decision which does not commend
itself to the common sense of the nation, it is recognised that the
remedy lies not in altering the constitution of the court and
endeavouring to obtain a fresh legal decision which shall upset the
other, but in obtaining an Act of Parliament expressly overruling the
unsatisfactory decision. If this is not done, the law may have been
technically judge-made, but it is acquiesced in and assented to by
Parliament and the nation. The same principle applies to the decisions
of ecclesiastical courts. The natural way of getting rid of an obnoxious
decision is not by fresh adjudication, but by legislation. Until it has
been reversed by one or other of these means, the decision of a court,
which _de facto_ possesses ecclesiastical jurisdiction, is binding upon
the Church as part of her law for the time being. We have somewhat lost
sight of this principle, owing to the extreme difficulty of obtaining
any definition or alteration of Church law by a legislative process.
But the true remedy lies in a healthy revival of the exercise of
ecclesiastical legislation, and not in an endeavour to make the
ecclesiastical judicature, whether as now existing or after a reform of
the courts, discharge legislative functions which are wholly outside its
proper province.
5. The legal position of the parochial clergy depends for its ultimate
origin upon the legal status of the ancient _Parish_. The word is the
English form of the Greek *paroikia* (habitation), and the Latin
_parochia_, an expression originally synonymous with diocese (Gr.
*dioikêsis*, _i.e._ administration; Lat. _dioecesis_, used of a
district or part of a province in the Roman Empire), and applied to the
territory assigned to the jurisdiction of a bishop, which was served by
him and a college of clergy under him. But under Archbishop Theodore
(668-690) or shortly after his time the process was begun of encouraging
the lords of manors and great landowners to build churches for
themselves and their dependants, and devote the tithes of their manors
or estates to the maintenance of divine worship in these churches, and
the performance of religious duties among the residents on the estates.
This process was gradually extended throughout the country, and,
wherever it was adopted, the tithes were assigned either to the priest
for the time being in charge of the church, who was in that case called
the _rector_ (governor of the church) or _parson_ (Lat. _persona_)[5] or
to a monastery, the members of which were then expected to serve the
church. The manor or estate, including any detached and outlying
portions, became the parish of the church, and developed into a
territorial unit not only for ecclesiastical but also for many civil
purposes. Where the church was served by a single rector, the landowner
who had endowed it and his successors after him were given in return the
right of nominating to the bishop a clerk in Holy Orders to become
rector of the church, or, in other words, they acquired the _patronage_
or _advowson_[6] of the benefice. The frequent cases of neglect in the
service of the parish, where a monastery was rector, led, in the
thirteenth century, to the requirement that in such cases a succession
of individual priests should be appointed to discharge the duty, with a
definite portion of the endowments of the benefice as their stipend for
so doing. As a rule the great tithes, being those of corn, grain, hay,
and wood, were reserved to the monastery, and were in consequence
styled rectorial tithes, while the officiating priest, who was styled a
_vicar_, was endowed with the remaining or small tithes, which
consequently were called vicarial. But in a few instances the
officiating priest, instead of becoming entitled to the small tithes,
only received a fixed monetary stipend. Where this occurred, he was
called a _perpetual curate_. It was the rule that rectories, whether in
the hands of a monastery or a succession of individual priests, should
be endowed not only with the tithes of the parish, but also with a house
and lands, which are called glebe; and sometimes these houses and lands,
or a part of the lands, were assigned towards the stipend of the vicar.
6. Towards the close of Henry VIII.'s reign the monasteries were
dissolved, and their rectories and the rectorial tithes of the parishes
and other endowments attached thereto, and the right of nominating
vicars or perpetual curates to the parishes passed, with the rest of the
monastic property, in some cases into the hands of the Crown or of
private individuals who received grants of them from the Crown, while in
other cases they went to the endowment of episcopal sees or of colleges,
hospitals, or other public institutions. Whichever happened, the rectory
and rectorial tithes became thenceforth _impropriate_, and the vicar or
perpetual curate was left with the vicarial tithes and other endowments,
or a stipend, as the case might be, to serve the parish as the beneficed
parish priest. Later on, and particularly during the nineteenth century,
the growth of the population and the rapid increase of our urban
centres, owing to the steady migration from the villages to the towns,
has rendered the building of new churches and the creation of new
ecclesiastical areas a matter of pressing importance; and the same
causes have necessitated the employment in the larger parishes of
additional clergy, whether stipendiary or voluntary. In some cases an
old parish has been divided into distinct and separate parishes, each of
which has received a portion of the old church endowments, and has
become a rectory, vicarage, or perpetual curacy, according to the
_status_ of the old parish;[7] or a vicarage has been converted into a
rectory upon a surrender of the rectorial tithes by the impropriator.[8]
But, as a rule, new ecclesiastical districts or parishes have been
formed and churches built without resorting to the old endowments; and
the Church Building and New Parishes Acts provided that the ministers
put in charge of these new districts or parishes and churches should be
perpetual curates, and should, like the old rectors, vicars, and
perpetual curates, be corporations, with perpetual succession.[9] But
in 1868 it was enacted that the incumbent of every parish and new
ecclesiastical parish, who was authorised to publish banns, and
solemnise marriages, churchings, and baptisms in his church, and was not
a rector, should, for the purpose of designation only, be styled a
vicar, and his benefice should for the same purpose be styled a
vicarage.[10] The modern generic title, which includes every beneficed
parish priest, is _incumbent_. The proper and ancient term for rectors,
vicars, and all other parochial clergy, whether beneficed or
unbeneficed, is _curate_, as having the cure of souls within the
parish.[11] But in modern practice this term, when used by itself, is
generally applied to the unbeneficed or assistant curates in a parish.
7. Two other classes of parochial clergy remain to be mentioned. Where,
for any reason, the incumbent is for a prolonged period disabled from
performing the duties of his office, a substitute will be appointed
under the designation of Minister in Charge. Again, in some parishes,
lectureships have been endowed, and are held by a lecturer, who, in
respect of his duties as such, is independent of the incumbent.
8. Under the Colonial Clergy Act, 1874, a priest or deacon (i.) not
ordained by an English or Irish or Scottish bishop, or a bishop acting
on the request and under the commission of an English bishop, or (ii.)
ordained for service out of the British dominions or for service in the
colonies by either of the two archbishops or the Bishop of London,[12]
(_a_) cannot, unless he holds or has held preferment or a curacy in
England, officiate in any church or chapel in England without the
written permission of the archbishop of the province, and without making
and subscribing a declaration similar to the Declaration of Assent
prescribed by the Clerical Subscription Act, 1865;[13] and (_b_) is not
entitled to be admitted to any preferment or to act as curate in England
without the previous consent in writing of the bishop of the diocese.
But a person who holds preferment or a curacy in an English diocese
under the Act of 1874, and who has held preferment or acted as curate
for a period or periods exceeding in the aggregate two years, may, with
the written consent of the bishop, request from the archbishop of the
province a licence to exercise his clerical office according to the
provisions of the Act; and this licence, if issued by the archbishop and
registered in the provincial registry, will place him in the same
position as if he had been ordained for service in England by an English
bishop.[14] Moreover, a clergyman ordained by a bishop of the Scottish
Episcopal Church, unless he holds or has previously held preferment in
England or Ireland, (_a_) is liable to a penalty if he officiates in
England more than once within three months without notification to the
bishop of the diocese, or if he officiates contrary to an injunction of
the bishop; and (_b_) is not entitled to be admitted to any preferment
in England without the bishop's consent, which he may withhold without
assigning any reason; and (_c_) before being admitted or licensed to any
preferment or curacy in England, must make and subscribe before the
bishop of the diocese, the Declaration of Assent prescribed by the
Clerical Subscription Act, 1865.[15]
9. All rectories, vicarages, and perpetual curacies, whether ancient or
established under the Church Building and New Parishes Acts, or under
any special Act of Parliament, fall within the term _benefice_, and are
of freehold tenure. The term is also applied to non-parochial
ecclesiastical offices of a like tenure, such as a deanery, canonry, and
archdeaconry. But in the present treatise, which deals only with the
parochial clergy, it will be used exclusively of the above-named
parochial benefices (which are in popular language called _livings_);
and the clergy who hold these benefices will be called beneficed clergy
or incumbents. The other parochial clergy will be referred to as
unbeneficed clergy or curates. The legal position of the unbeneficed
clergy as regards status and property is so different from that of
incumbents that it will be convenient to treat of them separately. But
the spiritual duties of the two classes, and the discipline to which
they are amenable, are similar and can be discussed together. They are
alike subject to the same superior ecclesiastical officials and to the
same judicial proceedings; and their civil privileges and disabilities
in respect of their clerical office are identical. By virtue of their
position as parochial clergy they are brought into certain relations
with the bishop of the diocese, the archdeacon of the archdeaconry, and
the rural dean of the deanery in which their parish is situate.
10. The bishop is not only the ruler and administrator, but also the
chief pastor of the whole of his diocese. As such, he, assisted by his
chaplain, has the right whenever he pleases, without the consent of the
incumbent, to conduct service or preach in the church of any parish in
such lawful manner as he thinks proper. This right extends to
consecrating a church within the parish[16] and, of course, to holding
ordinations and confirmations. Moreover, he can require from the clergy
all reasonable information respecting their parish and parishioners.
They owe to him canonical obedience,[17] and deference in matters which
do not fall within the limits of obedience. With the exception that his
withdrawal of a licence from a curate is subject to an appeal to the
archbishop, he possesses absolute control over the unbeneficed clergy in
his diocese, having the right to inhibit them from officiating within
it. But he has no such power over the beneficed clergy in respect of
their services in their own church and other matters involved in the
cure of souls attaching to their benefice. In respect of these matters,
their office being a freehold for life, they are independent of him
except in such particulars and to such extent as the law has expressly
prescribed, and they can only be constrained by him against their will
through the instrumentality of legal proceedings. But, equally with the
unbeneficed clergy of the diocese, it is their duty to attend the
bishop's triennial visitations; and their absence without sufficient
cause renders them liable to ecclesiastical censure and punishment.
Moreover, as will be noticed in the course of this treatise, the bishop
has been given, by express enactments, divers powers in relation to both
beneficed and unbeneficed clergy on matters of detail, subject in many
cases to an appeal to the archbishop of the province. By law and custom
part of the administrative functions of the bishop and almost the whole
of his judicial functions are discharged by his chancellor, who is at
once his vicar-general and the official principal of his consistory
court. Suffragan bishops, where they are appointed, have no independent
authority or jurisdiction, but simply so much as the diocesan bishop, in
his discretion, from time to time delegates to them.
11. The archdeacon is in his archdeaconry next in point of dignity after
the bishop and the suffragans (if any) and the chancellor of the
diocese.[18] He is sometimes called _oculus episcopi_, being the
bishop's vicar, charged with the duty of inspecting that portion of the
diocese which is under his charge and of reporting to the bishop
anything which is amiss. Besides this general supervision, he holds an
annual visitation of his archdeaconry, and admits the churchwardens and
sidesmen, except in years of episcopal visitation, when he is inhibited
from performing his functions, and these are exercised instead by the
bishop in person, or, as regards the admission of churchwardens and
sidesmen, by the chancellor.[19] At his annual visitation, and at other
times, as occasion arises, it is the business of the archdeacon to
satisfy himself that churches, and especially chancels, are in a proper
condition, and to require that any necessary repairs be executed; to
take note of the ornaments and utensils of churches, and to ascertain
that the services and offices of the Church are everywhere duly
performed and administered. The clergy are bound to assist the
archdeacon in his inspection and inquiries and to attend his
visitations.[20] Various duties assigned to him by statute are noticed
in subsequent chapters.
12. Rural deans have within their deaneries the same functions and
powers of inspection and report as an archdeacon in his archdeaconry. It
is their duty to hold from time to time chapters consisting of the
beneficed clergy of the deanery or their curates as proxies for them. In
the present day these chapters are usually attended not only by the
incumbents but also by all the licensed unbeneficed clergy of the
deanery.[21]
13. Judicial procedure in the case of clerical offences is regulated by
three statutes of the last century: (i.) The Church Discipline Act,
1840,[22] provides that on a complaint or the existence of evil report
against a clergyman the bishop may, with the consent of the parties, at
once pronounce sentence, and, in the absence of such consent, may, if he
thinks fit, issue a commission of inquiry. If the commission reports
that there is _primâ facie_ ground for proceedings, the bishop may
either try the case in person with assessors, or else send it by
letters of request direct to the provincial court. The latter course has
in practice been generally adopted, and an appeal may be carried to the
Judicial Committee of the Privy Council. (ii.) The Public Worship
Regulation Act, 1874,[23] introduced an alternative procedure in matters
of ornament and ritual. On the representation of the archdeacon or a
churchwarden or any three parishioners, the bishop, unless he is of
opinion that no proceedings should be taken upon it, is to require the
parties to state whether they are willing to submit to his directions in
the matter, and if they assent he is to hear the case and pronounce
judgment as he thinks proper, and no appeal is to lie from his judgment.
But if they decline to submit the case to the bishop, it is to be heard
by the judge appointed under the Act, who is in fact the same person as
the judge of the two provincial courts, and an appeal lies from his
decision to the Judicial Committee. (iii.) The Clergy Discipline Act,
1892,[24] prescribed a new mode of dealing with offences against
morality. In certain cases where the offence is proved by a conviction
and sentence or an order of a temporal court, the offending clergyman is
to be incapable of holding preferment, and the bishop is to declare
vacant any preferment which he holds without any further trial. But in
all other cases proceedings are to be taken in the consistory court
before the chancellor of the diocese, with the addition of four
assessors to try any question of fact, if either party demands them.
Either party may appeal against the judgment of the consistory court on
a question of law, and the accused clergyman may, with the leave of the
appellate court, appeal on a question of fact. The appeal may at the
option of the appellant be either to the provincial court or to the
Judicial Committee of the Privy Council, but if it is made to the
provincial court the decision of that court is final. The net result of
the three Acts is that (i.) offences of the clergy in respect of
morality can only be dealt with under the Act of 1892; (ii.) proceedings
for offences in respect of ritual and the ornaments of the church or the
minister may be taken either under the Act of 1840 or under that of
1874; and (iii.) offences in respect of doctrine, as well as all other
offences which do not come under (i.) or (ii.), must be dealt with under
the Act of 1840.
14. Priests, at their ordination, are reminded of their duty to forsake
and set aside, as much as possible, all worldly cares and studies, and
are exhorted to apply themselves wholly to their sacred office, and draw
all their cares and studies that way; and they promise, among other
things, to lay aside the study of the world and the flesh. No similar
expressions occur in the form for the making of deacons; but our law
recognises no distinction between the two orders of clergy in respect
of their civil privileges and disabilities.
15. A clergyman, whether priest or deacon, is not compellable to serve
on a jury, though it is not illegal for him to do so. He may be
appointed a justice of the peace or guardian of the poor, may be a
member of a parish or district council, and may act as chairman,
alderman, or councillor of a county council, and as mayor, alderman, or
councillor of any of the Metropolitan boroughs. But he is disqualified
from being mayor, alderman, or councillor of any other municipal
borough;[25] and he cannot be elected a member of the House of
Commons;[26] though, if he is a peer, he may sit in the House of Lords.
16. Canon 75 not only forbids ecclesiastical persons to resort, except
for their honest necessities, to taverns or alehouses, or to board or
lodge therein, or to spend their time in drinking or riot or playing at
dice, cards, or tables, or any other unlawful games, but also prohibits
them from engaging in any base or servile labour. And a clergyman who
holds any cathedral preferment, benefice, curacy, or lectureship, or is
licensed or is otherwise allowed to perform the duties of any
ecclesiastical office, is subject to certain specific legal restrictions
as to engaging in business or trade. (_a_) He may not acquire for
occupation, use, or cultivation more than eighty acres of land without
the written permission of the bishop, which must be restricted to a
specified number of years not exceeding seven. (_b_) He may not engage
in any trade or dealing for profit except where it is carried on by more
than six partners, or by a company, or where the concern, or a share in
it, has devolved on him under a will or settlement, or by inheritance or
marriage or bankruptcy; and in none of the excepted cases may he act as
a director or managing partner, or carry on the concern in person. These
restrictions, however, do not extend to keeping a school or seminary, or
being employed as a schoolmaster or tutor, or being concerned in
education for profit, or buying or selling or otherwise acting in
relation to such school, seminary, or employment. Nor of course do they
prevent an incumbent from farming, if he pleases, his own glebe lands.
Nor do they interfere with the sale, even at an enhanced price, of goods
which a clergyman actually buys for the use of his household, but
afterwards does not want to keep, nor with the sale of books to or
through a bookseller or publisher. He may also be a manager, director,
partner, or shareholder in any benefit society, or fire or life
assurance society, and may sell minerals from mines on his own lands,
and also (provided he do not do so in person at a market or other public
sale) may buy and resell for profit cattle, corn, and other things
required for the occupation, cultivation, and improvement of glebe or
other lands lawfully held by him. The penalties for unlawfully trading
are, for the first offence, suspension for not exceeding one year, for
the second offence suspension for a longer period, and for the third
offence deprivation _ab officio et beneficio_.[27]
17. Both clergymen and other ministers of religion are specially
protected in the performance of religious rites, including rites of
burial, in a church or other place of worship, or a churchyard or
burial-place. It is a misdemeanour punishable by imprisonment with or
without hard labour, to offer violence to them or arrest them upon any
civil process while engaged in or going to or returning from the
performance of these rites, or to obstruct or endeavour to obstruct them
in the performance.[28] The maintenance of order in a church or other
place of worship, whether Divine service is being performed or not, and
in a churchyard or burial-place, is also provided for by the Act
against brawling passed in 1860.[29]
18. A clergyman cannot divest himself of his orders;[30] and Canon 76
prohibited him from forsaking his calling or conducting himself as a
layman under pain of excommunication. But now, by statute, after
resigning all preferments held by him, he can surrender all clerical
rights and powers, and free himself from all clerical disabilities, if
he executes a deed of relinquishment in the prescribed form, and causes
it to be enrolled in the Central Office of the Supreme Court of
Judicature, and delivers an office copy of the enrolment to the bishop
of the diocese in which he last held preferment, or (if he has never
held preferment) in which he resides, and gives notice of having done so
to the archbishop of the province in which the diocese is situate. And a
clergyman who takes this course is relieved from all censures or other
proceedings for so doing, but is rendered incapable of afterwards
officiating or acting as a minister of the Church of England or taking
or holding any preferment therein.[31]
Footnotes
[1] 1 Bl. Comm. 14, 79-83, and n. (11) by J. T. Coleridge (afterwards
Judge) in 16th ed. (1825); (1533) 25 Hen. 8, c. 19, ss. 1-3; c. 21
(preamble); (1535) 27 Hen. 8, c. 15; (1543) 35 Hen. 8, c. 16.
[2] _i.e._ "The Book of Common Prayer and Administration of the
Sacraments and other Rites and Ceremonies of the Church, according to
the use of the Church of England, together with the Psalter or Psalms of
David, pointed as they are to be sung or said in Churches, and the Form
or Manner of making, ordaining, and consecrating of Bishops, Priests,
and Deacons," which is annexed to the Act of Uniformity of 1662 (14 Cha.
2, c. 4). Similarly the Thirty-Nine Articles of Religion are enjoined on
the clergy by (1571) 13 Eliz. c. 12, the Clerical Subscription Act, 1865
(28 & 29 Vict. c. 122), and the Canon made in 1865 and ratified by the
Crown in 1866.
[3] Middleton _v._ Crofts (1736) 2 Str. 1056; 2 Atk. 650; Bp. of Exeter
_v._ Marshall (1868) L. R. 3 H. L. 17.
[4] Gibs. Cod. 956. The Act of 1661 (13 Cha. 2, st. 1, c. 12), which
restored the ecclesiastical jurisdiction of archbishops, bishops, and
other spiritual judges and officers, contained a proviso that nothing
therein contained should extend to confirm "the canons made in the year
1640, nor any of them, nor any other ecclesiastical laws or canons not
formerly confirmed, allowed, or enacted by Parliament or by the
established laws of the land as they stood in the year of our Lord
1639."
[5] So called "because by his person the church, which is an invisible
body, is represented: and he is in himself a body corporate in order to
protect and defend the rights of the church (which he personates) by a
perpetual succession." 1 Bl. Comm. 384. The term _parson_ is often
popularly, but incorrectly, applied to vicars and other clergymen.
[6] The owner of this right was called the _patronus_ or _advocatus_ on
account of his duty to patronise, advocate, or defend the privileges of
the church and benefice. Hence his right to nominate the rector was
styled _advocatio_ or advowson.
[7] (1818) 58 Geo. 3, c. 45, ss. 16-19.
[8] (1822) 3 Geo. 4, c. 72, ss. 13, 14.
[9] (1818) 58 Geo. 3, c. 45, s. 25; (1831) 1 & 2 Will. 4, c. 38, s. 12;
(1839) 2 & 3 Vict. c. 49, ss. 2, 8; (1845) 8 & 9 Vict. c. 70, ss. 9, 17.
The churches provided under the Church Building Acts and New Parishes
Acts may be classified as follows: i. Church of a distinct and separate
parish formed under the Church Building Act, 1818 (58 Geo. 3, c. 45, s.
76); ii. Church of a district parish formed under 58 Geo. 3, c. 45, s.
21; iii. Church or chapel of a consolidated chapelry formed under the
Church Building Act, 1819 (59 Geo. 3, c. 134, s. 6); iv. Church or
chapel of a district chapelry formed under 59 Geo. 3, c. 134, s. 16; v.
Church or chapel built or appropriated under the Church Building Act,
1831 (1 & 2 Will. 4, c. 38, s. 2), with or without a particular district
formed under s. 10 of that Act; vi. Chapel of ease constituted the
church of a separate spiritual parish under 1 & 2 Will. 4, c. 38, s. 23;
vii. Church of a Peel parish formed under the New Parishes Act, 1843 (6
& 7 Vict. c. 37, s. 15); viii. Church of a new parish formed under the
New Parishes Act, 1856 (19 & 20 Vict. c. 104, ss. 1, 2); ix. Church of a
district parish, consolidated district chapelry, or particular district,
which under 19 & 20 Vict. c. 104, s. 14, has become a separate
ecclesiastical parish in consequence of the Ecclesiastical Commissioners
having authorised in such church the publication of banns and the
solemnisation of marriages, churchings, and baptisms; x. Church, without
a district, built on a site the conveyance of which has been accepted by
the Ecclesiastical Commissioners (8 & 9 Vict. c. 70, s. 7).
[10] 31 & 32 Vict. c. 117, s. 2. Under the Parish of Manchester Division
Act, 1850 (13 & 14 Vict. c. 41, s. 2), the benefice of every new parish
within the area of the ancient parish of Manchester is a rectory.
[11] See the Prayer for the Clergy and People in Morning and Evening
Prayer and the Prayer for the Church Militant.
[12] (1784) 24 Geo. 3, sess. 2, c. 35, s. 1; (1819) 59 Geo. 3, c. 60, s.
1.
[13] 28 & 29 Vict. c. 122, s. 4. See ch. ii. § 6 (i.) below.
[14] (1874) 37 & 38 Vict. c. 77.
[15] (1864) 27 & 28 Vict. c. 94. See (1865) 28 & 29 Vict. c. 122, s. 4;
ch. ii. § 6 (i.) below.
[16] Bp. of Winchester _v._ Rugg (1868) L. R. 2 P. C. 223, 230.
[17] As to this, see ch. ii. § 6 (iv.) and note.
[18] Ayl. Par. 95. The Dean of the Cathedral has an independent position
and dignity in respect of the Cathedral Church, which is outside the
general diocesan and archidiaconal jurisdiction; _Ib._
[19] Reg. _v._ Sowter (1901) 1 K. B. 66; rev., 396.
[20] Phill. Eccl. Law, Pt. i. ch. v. pp. 194-207; Pt. iv. ch. xi. §3,
pp. 1051-1054; 1 Burn, 93-97. According to a table of fees settled under
the authority of the Act 30 & 31 Vict. c. 135, and published in the
_London Gazette_ of March 19, 1869, the fees to be paid by each parish
at either an episcopal or an archidiaconal visitation are 18s.; viz. 2s.
to the chancellor or archdeacon (as the case may be), 12s. 6d. to the
registrar, and 3s. 6d. to the apparitor.
[21] Ayl. Par. 205; Gibs. Cod. 971-973; 2 Burn, 119-125; Dansey's _Horæ
Decanicæ Rurales_ (2nd ed., 1844), Pts. iv, v.
[22] 3 & 4 Vict. c. 86.
[23] 37 & 38 Vict. c. 85.
[24] 55 & 56 Vict. c. 32.
[25] Cripps, 67, 68; (1882) 45 & 46 Vict. c. 50, ss. 12 (1) (_b_), 14
(3); (1888) 51 & 52 Vict. c. 41, s. 2 (2) (_a_); (1899) 62 & 63 Vict. c.
14, s. 2 (4), (5).
[26] (1801) 41 Geo. 3 (U. K.), c. 63.
[27] (1838) 1 & 2 Vict. c. 106, ss. 28, 31; (1841) 4 & 5 Vict. c. 14.
[28] (1861) 24 & 25 Vict. c. 100 (Offences against the Person), s. 36.
[29] 23 & 24 Vict. c. 32.
[30] Barnes _v._ Shore (1846) 8 Q. B. 640; 1 Rob. Eccl. 382.
[31] 33 & 34 Vict. c. 91 (The Clerical Disabilities Act, 1870).