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 Abbreviationspages xxi-xiv

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 0.5em;">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 womenpages 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 shippages 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

tombstones and

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

Indexpages 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., Ex. Q.B.)

Law Journal 1823-31; New Series 1832 onwards (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 over-ruling 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 παροικία (habitation), and the Latin parochia, an expression originally synonymous with diocese (Gr. διοίκησις, i.e. administration; Lat. diœcesis, 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.