CHAPTER XIX

THE CLERK AND THE LAW

The parish clerk is so important a person that divers laws have been

framed relating to his office. His appointment, his rights, his

dismissal are so closely regulated by law that incumbents and

churchwardens have to be very careful lest they in any way transgress

the legal enactments and judgments of the courts. It is not an easy

matter to dismiss an undesirable clerk: it is almost as difficult as to

disturb the parson's freehold; and unless the clerk be found guilty of

grievous faults, he may laugh to scorn the malice of his enemies and

retain his office while life lasts.

It may be useful, therefore, to devote a chapter to the laws relating to

parish clerks--a chapter which some of my readers who have no liking for

legal technicalities can well afford to skip.

As regards his qualifications the clerk must be at least twenty years of

age, and known to the parson as a man of honest conversation, and

sufficient for his reading, writing, and for his competent skill in

singing, "if it may be[85]." The visitation articles of the seventeenth

century frequently inquire whether the clerk be of the age of twenty

years at least.

[Footnote 85: Canon 91 (1603).]

The method of his appointment has caused much disputing. With whom does

the appointment rest? In former times the parish clerk was always

nominated by the incumbent both by common law and the custom of the

realm. This is borne out by the constitution of Archbishop Boniface and

the 91st Canon, which states that "No parish clerk upon any vacation

shall be chosen within the city of London or elsewhere, but by the

parson or vicar: or where there is no parson or vicar, by the minister

of that place for the time being; which choice shall be signified by the

said minister, vicar or parson, to the parishioners the next Sunday

following, in the time of Divine Service."

But this arrangement has often been the subject of dispute between the

parson and his flock as to the right of the former to appoint the clerk.

In pre-Reformation times there was a diversity of practice, some

parishioners claiming the right to elect the clerk, as they provided the

offerings by which he lived. A terrible scene occurred in the fourteenth

century at one church. The parishioners appointed a clerk, and the

rector selected another. The rector was celebrating Mass, assisted by

his clerk, when the people's candidate approached the altar and nearly

murdered his rival, so that blood was shed in the sanctuary.

Custom in many churches sanctioned the right of the parishioners, who

sometimes neglected to exercise it, and the choice of clerk was left to

the vicar. The visitations in the time of Elizabeth show that the people

were expected to appoint to the office, but the episcopal inquiries also

demonstrate that the parson or vicar could exercise a veto, and that no

one could be chosen without his goodwill and consent.

The canon of 1603 was an attempt to change this variety of usage, but

such is the force of custom that many decisions of the spiritual courts

have been against the canon and in favour of accustomed usage when such

could be proved. It was so in the case of _Cundict_ v. _Plomer_ (8 Jac.

I)[86], and in _Jermyn's Case_ (21 Jac. I).

[Footnote 86: _Ecclesiastical Law_, Sir R. Phillimore, p. 1901.]

At the present time such disputes with regard to the appointment of

clerks are unlikely to arise. They are usually elected to their office

by the vestry, and the person recommended by the vicar is generally

appointed. Indeed, by the Act 7 & 8 Victoria, c. 49, "for better

regulating the office of Lecturers and Parish Clerks," it is provided

that when the appointment is by others than the parson, it is to be

subject to the approval of the parson. Owing to the difficulty of

dismissing a clerk, to which I shall presently refer, it is not unusual

to appoint a gentleman or farmer to the office, and to nominate a deputy

to discharge the actual duties. If we may look forward to a revival of

the office and to a restoration of its ancient dignity and importance,

it might be possible for the more highly educated man to perform the

chief functions, the reading the lessons and epistle, serving at the

altar, and other like duties, while his deputy could perform the more

menial functions, opening the church, ringing the bell, digging graves,

if there be no sexton, and the like.

It is not absolutely necessary that the clerk, after having been chosen

and appointed, should be licensed by the ordinary, but this is not

unusual; and when licensed he is sworn to obey the incumbent of the

parish[87].

[Footnote 87: _Ibid._, 1902.]

We have recorded some of the perquisites, fees and wages, which the

clerk of ancient times was accustomed to receive when he had been duly

appointed. No longer does he receive accustomed alms by reason of his

office of _aquæbajalus_. No longer does he derive profit from bearing

the holy loaf; and the cakes and eggs at Easter, and certain sheaves at

harvest-tide, are perquisites of the past.

The following were the accustomed wages of the clerk at Rempstone in the

year 1629[88]:

[Footnote 88: _The Clerks' Book_, Dr. Wickham Legg, lv.]

"22nd November, 1629.

"The wages of the Clarke of the Parish Church of Rempstone.

At Easter yearely he is to have of every Husbandman one

pennie for every yard land he hath in occupation. And of

every Cottager two pence.

"Furthermore he is to have for every yard land one peche of

Barley of the Husbandman yearely.

"Egges at Easter by Courtesie.

"For every marriage two pence. And at the churching of a

woman his dinner.

"The said Barley is to be payed between Christmasse and the

Feast of the Annunciation of the Blessed Virgin Mary."

Clerk's Ales have vanished, too, together with the cakes and eggs, but

his fees remain, and marriage bells and funeral knells, christenings and

churchings bring to him the accustomed dues and offerings. Tables of

Fees hang in most churches. It is important to have them in order that

no dispute may arise. The following table appears in the parish books of

Salehurst, Sussex, and is curious and interesting:

"April 18, 1597.

"Memorandum that the duties for Churchinge of women in the

parishe of Salehurst is unto the minister ix d. b. and unto

the Clarke ij d.

"Item the due unto the minister for a marriadge is xxj d.

And unto the Clarke ij d. the Banes, and iiij d. the

marriadge.

"Item due for burialls as followeth

To the Minister in the Chancell . . xiii s. iiij d.

To the Clarke in the Chancell . . vi s. viiij d.

To the Parish in the Church . . . vi s. viii d.

To the Clarke in the Church . . . v s. o d.

To the Clarke in the churchyard for great

coffins . . . . . . . ii s. vi d.

For great Corses uncoffined . . . ii s. o d.

For Chrisomers and such like coffined . i s. iiii d.

And uncoffined . . . . . xij d.

For tolling the passing bell and houre . i s.

For ringing the sermon bell an houre . i s. 0 d.

To the Clarke for carrying the beere . iiij d.

If it be fetched . . . . . ij d.

"Item for funerals the Minister is to have the mourning

pullpit Cloth and the Clarke the herst Cloth.

"Item the Minister hathe ever chosen the parishe Clarke and

one of the Churchwardens and bothe the Sydemen.

"Item if they bring a beere or poles with the corps the

Clarke is to have them.

"If any Corps goe out of the parish they are to pay double

dutyes and to have leave.

"If any Corps come out of another parish to be buryed here,

they are to pay double dutyes besides breakinge the ground;

which is xiij s. 4 d. in the church, and vi s. viii d. in the

churchyard.

"For marryage by licence double fees both to the Minister and

Clarke[89]."

[Footnote 89: _Sussex Archæological Collections_, 1873, vol. xxv. p.

154.]

In addition to the fees to which the clerk is entitled by

long-established custom, he receives wages, which he can recover by law

if he be unjustly deprived of them. Churchwardens who in the old days

neglected to levy a church rate in order to pay the expenses of the

parish and the salary of the clerk, have been compelled by law to do so,

in order to satisfy the clerk's claims.

The wages which he received varied considerably. The churchwardens'

accounts reveal the amounts paid the holders of the office at different

periods. At St. Mary's, Reading, there are the items in 1557:

"Imprimis the Rent of the Clerke's

howse . . . . . . vi s. viii d."

"Paid to Marshall (the clerk) for parcell of

his wages that he was unpaide . . v s."

In 1561 the clerk's wages were 40 s., in 1586 only 20 s. At St. Giles's,

Reading, in 1520, he received 26 s. 8 d., as the following entry shows:

"Paid to Harry Water Clerk for his

wage for a yere ended at thannacon

(the Annunciation) of Our Lady. xxvi s. viii."

The clerk at St. Lawrence, Reading, received 20 s. for his services in

1547. Owing to the decrease in the value of money the wages gradually

rose in town churches, but in the eighteenth century in many country

places 10 s. was deemed sufficient. The sum of £10 is not an unusual

wage at the present time for a village clerk.

The dismissal of a parish clerk was a somewhat difficult and dangerous

task. In the eyes of the law he is no menial servant--no labourer who

can be discharged if he fail to please his master. The law regards him

as an officer for life, and one who has a freehold in his place. Sixty

years ago no ecclesiastical court could deprive him of his office, but

he could be censured for his faults and misdemeanours, though not

discharged. Several cases have appeared in the law courts which have

decided that as long as a clerk behaves himself well, he has a good

right and title to continue in his office. Thus in _Rex_ v. _Erasmus

Warren_ (16 Geo. III) it was shown that the clerk became bankrupt, had

been guilty of many omissions in his office, was actually in prison at

the time of his amoval, and had appointed a deputy who was totally unfit

for the office. Against which it was insisted that the office of parish

clerk was a temporal office during life, that the parson could not

remove him, and that he had a right to appoint a deputy. One of the

judges stated that though the minister might have power of removing the

clerk on a good and sufficient cause, he could never be the sole judge

and remove him at pleasure, without being subject to the control of the

court. No misbehaviour of consequence was proved against him, and the

clerk was restored to his office.

In a more recent case the clerk had conducted himself on several

occasions by designedly irreverent and ridiculous behaviour in his

performance of his duty. He had appeared in church drunk, and had

indecently disturbed the congregation during the administration of Holy

Communion. He had been repeatedly reproved by the vicar, and finally

removed from his office. But the court decided that because the clerk

had not been summoned to answer for his conduct before his removal, a

mandamus should be issued for his restoration to his office[90].

[Footnote 90: _Ecclesiastical Law_, Sir R. Phillimore, p. 1907.]

No deputy clerk when removed can claim to be restored. It will be

gathered, therefore, that an incumbent is compelled by law to restore a

clerk removed by him without just cause, that the justice of the cause

is not determined in the law courts by an _ex-parte_ statement of the

incumbent, and that an accused clerk must have an opportunity of

answering the charges made against him. If a man performs the duties of

the office for one year he gains a settlement, and cannot afterwards be

removed without just cause.

An important Act was passed in 1844, to which I have already referred,

for the better regulating the office of lecturers and parish clerks.

Sections 5 and 6 of this Act bear directly on the method of removal of a

clerk who may be guilty of neglect or misbehaviour. I will endeavour to

divest the wording of the Act from legal technicalities, and write it in

"plain English."

If a complaint is made to the archdeacon, or other ordinary, with regard

to the misconduct of a clerk, stating that he is an unfit and improper

person to hold that office, the archdeacon may summon the clerk and call

witnesses who shall be able to give evidence or information with regard

to the charges made. He can examine these witnesses upon oath, and hear

and determine the truth of the accusations which have been made against

the clerk. If he should find these charges proved he may suspend or

remove the offender from his office, and give a certificate under his

hand and seal to the incumbent, declaring the office vacant, which

certificate should be affixed to the door of the church. Then another

person may be elected or appointed to the vacant office: "Provided

always, that the exercise of such office by a sufficient deputy who

shall duly and faithfully perform the duties thereof, and in all

respects well and properly demean himself, shall not be deemed a wilful

neglect of his office on the part of such church clerk, chapel clerk, or

parish clerk, so as to render him liable, for such cause alone, to be

suspended or removed therefrom."

A special section of the Act deals with such possessions as clerks'

houses, buildings, lands or premises, held by a clerk by virtue of his

office. If, when deprived of his office, he should refuse to give up

such buildings or possessions, the matter must be brought before the

bishop of the diocese, who shall summon the clerk to appear before him.

If he fail to appear, or if the bishop should decide against him, the

bishop shall grant a certificate of the facts to the person or persons

entitled to the possession of the land or premises, who may thereupon go

before a justice of the peace. The magistrate shall then issue his

warrant to the constables to expel the clerk from the premises, and to

hand them over to the rightful owners, the cost of executing the warrant

being levied upon the goods and chattels of the expelled clerk. If this

cost should be disputed, it shall be determined by the magistrate.

Happily few cases arise, but perhaps it is well to know the procedure

which the law lays down for the carrying out of such troublesome

matters.

The law also takes cognizance of the humbler office of sexton, the

duties of which are usually combined in country places with those of the

parish clerk. The sexton is, of course, the sacristan, the keeper of the

holy things relating to divine worship, and seems to correspond with the

_ostarius_ in the Roman Church. His duties consist in the care of the

church, the vestments and vessels, in keeping the church clean, in

ringing the bells, in opening and closing the doors for divine service,

and to these the task of digging graves and the care of the churchyard

are also added. He is appointed by the churchwardens if his duties be

confined to the church, but if he is employed in the churchyard the

appointment is vested in the rector. If his duties embrace the care of

both church and churchyard, he should be appointed by the churchwardens

and incumbent jointly[91].

[Footnote 91: _Ecclesiastical Law_, p. 1914.]

Many cases have come before the law courts relating to sextons and their

election and appointment. He does not usually hold the same fixity of

tenure as the parish clerk, he being a servant of the parish rather than

an officer or one that has a freehold in his place; but in some cases a

sexton has determined his right to hold the office for life, and gained

a mandamus from the court to be restored to his position after having

been removed by the churchwardens.

The law has also decided that women may be appointed sextons.

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