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.