LAITY OF THE PARISH
1. There is no general law as to the relations between an incumbent and
the lay officers of a parish. They vary in ancient and in new
ecclesiastical parishes, and in particular places are modified by
custom.
2. The vestry in an ancient parish consists of the ratepayers who are
inhabitants of the parish or who, though not residents therein, are
rated for the relief of the poor in respect of the parish, and of
occupiers of hereditaments so rated. A meeting of the vestry is called
by the incumbent and churchwardens by a notice in print or writing, and
signed by the incumbent or a churchwarden or overseer, and affixed on or
near the doors of all the churches and chapels in the parish in which
the service of the Church is performed, on some Sunday at least three
clear days before the meeting is to be held.[133] The incumbent is _ex
officio_ chairman of every vestry meeting. In case of his absence, or of
there being no incumbent, the members of the vestry present elect one
of themselves as chairman. In case of an equality of votes the chairman,
as such, has a casting vote in addition to his previous right to vote as
a member of the vestry.[134] In the event of a poll being demanded, it
is taken by open voting, and the members of the vestry have from one to
six votes, according to the amount of their assessment, those assessed
at an annual value of under £50 having one vote, and those assessed at
£50 and upwards having one vote for every complete £25 of their
assessment up to £150; all at or above that figure having six votes and
no more. In a new ecclesiastical parish or district a meeting in the
nature of a vestry is composed of the same persons as would, if the
parish or district were an ancient parish, be entitled to vote in the
vestry thereof. But the Vestries Act, 1818,[135] only applies to ancient
parishes. Consequently there is no plural voting in the quasi-vestry of
a new parish, nor need the notice summoning a vestry meeting be given on
a Sunday three clear days before the meeting.[136] But in other respects
a vestry or a meeting in the nature of a vestry in a new parish is
regulated by the same procedure as in an ancient parish. Since the
abolition of compulsory church rates in 1868, and the transfer of their
secular duties to other bodies, the functions of these vestries or
meetings, whether in old or in new parishes, have been for the most part
confined to the election of churchwardens and the approval, or the
contrary, of applications for faculties.[137] In some places under a
local Act or by the adoption of the Vestries Act, 1831,[138] the
functions of the vestry are exercised by a select vestry consisting of a
limited number of householders elected by the parishioners.
3. With regard to churchwardens, the general law as to their appointment
in ancient parishes is declared by the 89th and 90th Canons. They are to
be chosen, if possible, by the joint consent of the minister and
parishioners. But if these cannot agree upon the choice, the minister is
to choose one and the parishioners another. A stipendiary curate being
at the time in charge of the cure stands in the place of the incumbent
in the choice of churchwardens.[139] The election is to be annual, in
Easter week; but the same persons are re-eligible for any number of
years. By custom, however, there may be only one churchwarden or more
than two; and, as is the case in the City of London, both may by custom
be elected by the parishioners, or by the lord of the manor, or one by
the incumbent and the other by the outgoing churchwardens. The election
ordinarily takes place at the Easter vestry, but an election at another
time is valid.[140] The election of both churchwardens is the act of the
whole vestry, whether the minister and parishioners agree in their
choice, or the minister chooses one and the parishioners the other. In
the latter alternative, therefore, the vote of the minister is exhausted
in choosing his own warden, and he cannot also vote as a parishioner in
the election of the other warden; though if there is an equality of
votes in this election, he apparently can, as chairman of the vestry,
decide it by a casting vote.[141] In the case of all churches built
under the Church Building or New Parishes Acts, except those which have
no district attached to them, two churchwardens are to be annually
chosen at Eastertide, one by the minister and the other by the persons
entitled to attend and vote at a meeting in the nature of a vestry for
the parish or district attached to the church.[142] If the church has no
district attached to it, the choice of the second warden is vested in
the pewrenters, or, if there are no rented pews, the minister selects
both wardens.[143] Churchwardens, after their appointment, have no legal
right to exercise their office until they have been admitted by the
archdeacon at his visitation, or by the bishop or his chancellor during
the years of episcopal visitation, when the archdeacon is inhibited and
cannot act. Till then, their predecessors remain in office,
notwithstanding that their year has expired, and their successors have
been appointed.[144]
4. The two churchwardens are sometimes distinguished as the parson's or
vicar's warden and the people's warden. But there is no legal precedence
or seniority between the two, and though chosen differently their duties
are identical.[145] These may be enumerated as follows: (_a_) The care
of the fabric of the church, with its ornaments and furniture, and of
the churchyard; and the duty of keeping them in proper repair and
condition and of adequately insuring against fire so far as funds are in
hand for the purpose, except, as regards the chancel, where the rector
is liable for its repair.[146] They have no proprietary rights in the
church or its fixtures or in the churchyard, but the movable articles in
the church, including the bells and bell-ropes, and sums of money given
to the church, belong to them as a corporation for that purpose.[147]
(_b_) The seating of the parishioners and other churchgoers in the
church, including the chancel, subject, however, as regards the chancel
of an old parish church, to the right of the rector, whether spiritual
or lay, and his family, to the chief seat, and to his disposal of the
other chancel seats if the bishop or churchwardens take no action
respecting them. In this duty the churchwardens act as the officers of
the bishop, and are subject to his control if any complaint is made
against them. Neither the vestry nor the incumbent, nor any individual
parishioner, can interfere with their discretion in the matter, except
by appealing to the bishop. (_c_) The provision at the expense of the
parish of sacramental bread and wine and a surplice for the minister, as
required by Canons 20 and 58. (_d_) The maintenance of order in the
church and churchyard during Divine service. (_e_) The collection of the
money at the offertory, and concurrence with the minister in its
disposal to pious and charitable uses. (_f_) The charge of the church
and benefice and of providing for the cure of souls during a vacancy in
the living, if, as is usually the case, they are appointed
sequestrators, but not otherwise.[148] Churchwardens can neither add to,
alter, or remove any part of the church or its fittings without a
faculty, nor can they interfere with the clergyman in his ministrations
unless his conduct is such as to be riotous, violent, or indecent within
the meaning of the Act of 1860 against brawling.[149] The rights and
duties of the incumbent on the one hand, and of the churchwardens on the
other, in respect of the church and churchyard and the money and
property of the Church, are so interlaced, that on many points friction
cannot be avoided without that harmonious co-operation which should
always exist between them, or, if this is unfortunately impossible, at
any rate without mutual forbearance and concession.
5. The 90th Canon directs that the minister and parishioners in every
parish, if they can agree, shall yearly in Easter week choose two or
three or more discreet persons as sidemen (or, as they are now called,
sidesmen) to assist the churchwardens in performing the duties of their
office. If no agreement is come to, they are to be appointed by the
bishop. This Canon only applies to ancient parishes, and therefore
sidesmen appointed, as is frequently the case, in new ecclesiastical
parishes have, strictly speaking, no legal status. They are, however,
frequently treated as if they possessed it, and in these, as well as in
ancient parishes, assist the churchwardens in seating the people and
taking the collections in church. No practical harm is likely to result
from this unless they undertook such a duty as, for instance, the
forcible ejection of a person misbehaving in church, in which case their
right to do so might be called in question.
6. In addition to the churchwardens a body of Church trustees may now be
appointed in any parish to accept contributions and hold funds for
certain defined ecclesiastical purposes.[150] They are to consist of the
incumbent and two householders or owners or occupiers of land in the
parish, chosen in the first instance and on the happening of a vacancy,
one by the patron and the other by the bishop, the incumbent being
chairman. They are a body corporate under the name of the Church
Trustees of the parish in which they are appointed, with perpetual
succession and a common seal, and power to sue and be sued in their
corporate name. As circumstances from time to time require, they may
pay over funds in their hands to the churchwardens to be applied to the
defined ecclesiastical purposes of the parish generally or to one or
more of them specifically, due regard being had to any particular
directions of the donors. Funds not so paid over may be invested in
government or real securities and accumulated, with a view to the
capital or income being applied at a subsequent time. At least once a
year the trustees must lay before the vestry all accounts and
particulars of their receipts and expenditure during the preceding year,
and of the balance of funds in their hands.[151]
7. The appointment and duties of the parish clerk vary in old and new
parishes, and depend in some cases on custom. In old parishes the office
is a freehold, and the right of appointment usually rests with the
incumbent, who can exercise it even when the living is sequestrated
owing to his bankruptcy; but in case of his being under suspension, it
devolves on the curate in charge. The right, however, may by custom
belong to the parishioners in vestry. An old writer compared the parish
clerk to a bat, as being half-bird, half-beast, or half-clerical and
half-lay, though he considered that his clerical wings outbalanced his
lay body. But it is now held that the office is temporal, and not
spiritual.[152] A person in holy orders may, however, with the consent
of the bishop, be appointed parish clerk under the Lecturers and Parish
Clerks Act, 1844, and, if so appointed, he is removable in the same way
as a stipendiary curate. The same Act provides for the suspension or
removal by the archdeacon, of a parish clerk not in holy orders, who has
been guilty of neglect or misbehaviour in his office, or of misconduct
which renders him unfit to hold it.[153] In all new ecclesiastical
parishes, on the other hand, the appointment of the clerk rests with the
incumbent, and, in the case of churches and chapels provided under the
Church Building Acts of 1818 and 1819, is made annually; while in the
case of those provided under the New Parishes Acts of 1843, 1844, and
1856, the clerk does not vacate his office at the end of each year, but
may at any time be removed by the incumbent, with the consent of the
bishop, for misconduct.[154]
8. There is no universal rule as to the appointment, duties, and tenures
of office of the sexton or sacristan. Where, in accordance with the
etymology of his name, his duties are confined to the custody of the
sacred vessels and vestments, the care and cleaning of the church, the
opening and closing of the doors, and the ringing of the bells, his
appointment, in the absence of a contrary practice, will naturally rest
with the churchwardens. Where, on the contrary, he has only to do with
the churchyard and grave-digging, his appointment will be presumed to be
in the hands of the incumbent. If, however, he is charged with both sets
of functions, the incumbent and the churchwardens jointly will be
presumed to have the right of appointing him. On the other hand, in some
few ancient parishes he is elected by the vestry. The office may be held
by a woman, and in some places is a freehold for life; but usually it is
held during pleasure, and the power of removal rests in the same hands
as that of the appointment.[155] In new ecclesiastical parishes the
sexton is to be appointed by the incumbent, and, with the consent of the
bishop, is removable by him for misconduct.[156]
9. Another old parochial office was that of beadle--the bidder, crier,
or messenger of the parish--whose duty was to attend in that capacity on
the incumbent, churchwardens, and vestry. His position and duties were
rather civil than ecclesiastical, but the vestry could sanction his
salary being paid out of the church rate. He was also frequently
employed to keep order in the church and churchyard during Divine
service; and the Church Building Act, 1831, enumerates the payment of
the salaries of beadles and pew-openers as well as of the clerk, as one
of the expenses incidental to the performance of Divine service, to be
paid out of the rents of pews in churches built under that Act.[157]
10. The organist and choristers, and any other lay officials beyond
those already mentioned, who may be employed in or about the church or
churchyard, are under the exclusive control and direction of the
incumbent, and, as a rule, are appointed by him. But in some parishes
the organist is, or was, when paid out of the church rate, selected by
the vestry. Whether he is appointed by them or by the incumbent, his
office is not a freehold; but he as well as the other officials now
under consideration may be dismissed from office on proper notice, the
length of which should be laid down at the time of appointment. If no
time is then fixed, the proper length of notice may, in case of dispute,
be a very difficult question to decide. It will depend in part on the
terms of the engagement, and of the salary. If the salary be so much per
month, probably one month's notice of dismissal would suffice. Not less
than three months' notice would be requisite if the salary is so much
per quarter; while if the salary is an annual sum, even this notice
might perhaps be insufficient. Whatever be the mode of appointment and
terms of the engagement of the organist, the incumbent has, within the
bounds of legality, and so far as he does not voluntarily surrender it,
the absolute right to control the use of the organ and the performance
of music in the church, both during Divine service and at other
times.[158] But, unless he is prepared to defray the cost out of his own
pocket, this right must, of course, in practice, be limited by the
extent to which the parishioners or congregation are willing to give the
necessary financial support to his arrangements.
11. The old rank of reader, which was formerly one of the minor orders,
was temporarily revived after the Reformation to supplement the lack of
clergy, and seems to have been continued in some remote districts till
the close of the eighteenth century.[159] It has in recent times been
resuscitated as a lay office.[160] Moreover, the practice has of late
years increased of the lessons being read in church by laymen at the
request of the incumbent, without the express sanction of the bishop.
But an incumbent ought not, without that sanction, to permit a layman to
take any other part in any service in a consecrated building. The
officiating of a layman in an unconsecrated building does not stand
quite on the same footing; but, as a matter of Church order and
regularity, the approval of it by the bishop should be procured, through
the layman being expressly authorised as a lay reader, or in some other
manner, especially if the building is licensed for Divine worship. All
such laymen must, of course, act with the consent, and under the
direction, of the incumbent of the parish.
12. Laymen and women engaged in less formal kinds of parochial work
(among which is the visiting of the poor and sick contemplated by Canon
13 as one of their occupations on Sundays and other holy days) are
responsible to the incumbent alone, and should act with his permission
and under his directions. The Sunday schools, with their superintendents
and teachers, are under his sole control. His powers with regard to the
religious instruction given in any Church elementary school in the
parish depend upon the terms of the trust-deed or scheme (if any)
regulating the school, and upon the subsection in the Education Act,
1902, that religious instruction given in a public elementary school not
provided by the local authority shall, as regards its character, be in
accordance with the provisions (if any) of the trust-deed relating
thereto, and shall be under the control of the managers; provided that
nothing in the subsection is to affect any provision in a trust-deed for
reference to the bishop or superior ecclesiastical or other
denominational authority, so far as such provision gives to the bishop
or authority the power of deciding whether the character of the
religious instruction is or is not in accordance with the provisions of
the trust deed.[161]
13. Parochial church councils, where they exist, like ruridecanal and
diocesan conferences, rest at present on a purely voluntary basis.
Whatever, therefore, may be their advantages, and however desirable may
be their incorporation into our regular Church system, the parish clergy
stand as yet in no legal relation to them.
Footnotes
[133] (1818) 58 Geo. 3, c. 69; (1837) 7 Will. 4 & 1 Vict. c. 45; (1869)
32 & 33 Vict. c. 41, ss. 7, 19; Dawe _v._ Williams (1824) 2 Add. 130,
139; Ormerod _v._ Chadwick (1847) 16 M. & W. 367; 16 L. J. M. C. 143;
Burnley _v._ Methley Overseers (1859) 1 El. & El. 789; Rand _v._ Green
(1860), 6 Jur. N. S. 303; 9 C. B. N. S. 470; 30 L. J. C. P. 80.
[134] (1818) 58 Geo. 3, c. 69, s. 2; Wilson _v._ M'Math (1819) 3 Phill.
67; 2 B. & Ald. 241; Reg. _v._ D'Oyly (1840) 12 A. & E. 139; 4 Jur.
1056; R. _v._ Bp. of Salisbury (1901) 1 K. B. 573, 579, aff. 2 K. B.
225.
[135] 58 Geo. 3, c. 69 (commonly called Sturges Bourne's Act).
[136] Reg. _v._ Barrow (1869) L. R. 4 Q. B. 577.
[137] See § 3, and ch. v. § 5 (A), ix. § 4.
[138] 1 & 2 Will. 4, c. 60.
[139] Hubbard _v._ Penrice (1746) 2 Str. 1245.
[140] Butt _v._ Fellowes (1843) 3 Curt. 680.
[141] Stoughton _v._ Reynolds (1736) 2 Str. 1045; R. _v._ Bp. of
Salisbury (1901) 1 K. B. 573; aff. 2 K. B. 225.
[142] (1818) 58 Geo. 3, c. 45, s. 75; (1838) 1 & 2 Will. 4, c. 38, s.
25; (1843) 6 & 7 Vict. c. 37, s. 17; (1845) 8 & 9 Vict. c. 70, ss. 6, 7;
(1856) 19 & 20 Vict. c. 104, ss. 14, 15.
[143] (1838) 1 & 2 Will. c. 38, s. 16; (1845) 8 & 9 Vict. c. 70, s. 7.
[144] Canon 118; Bray _v._ Somer (1862) 2 B. & Sm. 374: 8 Jur. N. S.
716; Bremner _v._ Hull (1866) L. R. 1 C. P. 748; Reg. _v._ Sowter (1901)
1 K. B. 66; rev. _Ib._ 396. For further particulars as to the
qualifications and election of churchwardens of ancient parish churches
and the churches enumerated in the note to ch. i. § 6 above, see Sm.
Churchw. 22-43.
[145] Sm. Churchw. 34, 59-64.
[146] Stat. 13 Edw. 1 (_Circumspecte agatis_); Canon 85; ch. ix. § 3
below.
[147] Att.-Gen. _v._ Ruper (1722) 2 P. Wms. 125.
[148] Sm. Churchw. pt. iii. ch. i.-iii.; pp. 50-84.
[149] 23 & 24 Vict. c. 32. A clergyman can be proceeded against for
brawling either under that Act or in the Church courts as an
ecclesiastical offender.
[150] Viz. "the building, rebuilding, enlargement, and repair of any
church or chapel, and any purpose to which by common or ecclesiastical
law a church rate is applicable." (1868) 31 & 32 Vict. c. 109, s. 9.
Besides necessary church repairs, sacramental bread and wine, and other
articles needed for Divine service, a church rate could, with the
consent of a majority of the vestry, be applied to provide an organ and
other church furniture, and to pay the salaries of organist,
pew-openers, and other lay officials, but not the stipend of the
incumbent or a curate. 1 Burn, 388 _a_, _b_.
[151] (1868) 31 & 32 Vict. c. 109, s. 9.
[152] Canon 91; The Parish Clerk's Case (1610) 13 Co. Rep. 70; Pinder
_v._ Barr (1854) 4 E. & B. 105; Lawrence _v._ Edwards (1891) 1 Ch. 144;
2 Ch. 72.
[153] 7 & 8 Vict. c. 59.
[154] (1819) 59 Geo. 3, c. 134, s. 29; (1856) 19 & 20 Vict. c. 104, s.
9; Reg. _v._ Ossett (1851) 16 Q. B. 975; Jackson _v._ Courtenay (1857) 8
E. & B. 8.
[155] Ile's Case (1671) 1 Ventr. 153; R. _v._ Thame (Churchwardens)
(1719) 1 Str. 115; Olive _v._ Ingram (1739) 2 Str. 1114; R. _v._ Taunton
St. James (Churchwardens) (1776) 1 Cowp. 413; R. _v._ Minister, &c., of
Stoke Damerel (1836) 5 A. & E. 584, 590, sq.; Cansfield _v._ Blenkinsop
(1849) 4 Ex. 234.
[156] (1856) 19 & 20 Vict. c. 104, s. 9.
[157] 1 & 2 Will. 4, c. 38, s. 16.
[158] Wyndham _v._ Cole (1875) 1 P. D. 130.
[159] 3 Burn, 452; Strype's Annals, vol. i. ch. xiii., XXX. pp. 178-81,
345, sq.; (ed. 1824, pp. 265-69, 514-16); Martyn _v._ Hind (1776) 2
Cowp. 437, 438-39, 444.
[160] Particulars as to readers and their powers and functions in
consecrated buildings and elsewhere will be found in another Handbook of
the present Series: _Lay Work and the Office of Reader_, by Dr.
Yeatman-Biggs, afterwards made Bishop of Worcester.
[161] 2 Edw. 7, c. 42, s. 7 (6).