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 PRINCETON, N. J. 
 
 KDK 1890 .w37 1895 
 Warren, Robert R. 
 
 The law of the Church of 
 Ireland 
 
 
 

 

 
 
 
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1 1st 15 dbs Nay es 
 
 THE CHURCH OF IRELAND: 
 
 PV Nie BAY. 
 
 BY THE 
 
 RIGHT HON. ROBERT R. WARREN, LL.D., 
 
 Chancellor of Cashel and Waterford, Killaloe and Clonfert, 
 
 DUBLIN: 
 WILLIAM M°GEE, COLLEGE BOOKSELLER, 18, NASSAU-STREET. 
 LONDON: STEVENS & HAYNES, BELL YARD, TEMPLE BAR. 
 
 1896. 
 
DUBLIN: 
 PRINTED AT THE UNIVERSITY PRESS, 
 
 BY PONSONBY AND WELDRICK. 
 
eee eA aH) 
 
 A Treatise on the Law of the Church of Ireland 
 is much required; and it is to be regretted that, 
 during the quarter of a century that has elapsed 
 since its Disestablishment, some eminent Hcclesias- 
 tical lawyer, such as Dr. Batt or Dr. LONGFIELD, 
 did not undertake the task; but heretofore no 
 attempt has been made to supply the want; and 
 therefore, feeling that even an imperfect con- 
 sideration of the subject may be of use, and may 
 induce some person with higher qualifications as 
 an Ecclesiastical lawyer, and with more energy 
 and leisure than I can command, to produce a 
 comprehensive treatise on the subject, I venture 
 to submit to the Church of Ireland this Essay, 
 composed in the spirit of affection and loyalty, 
 and a simple desire to promote its welfare. 
 
 In a Paper, read before the Church Congress, 
 at Worcester, in 1894, I sketched the history of 
 
 the Church of Ireland since its Disestablishment 
 
iv PREFACE. 
 
 and Disendowment, and I venture to say that the 
 consideration of that Paper and this Essay is 
 calculated to satisfy all reasonable men that the 
 Church has come out from the ordeal of Dises- 
 tablishment and Disendowment with credit and 
 an established reputation for wisdom as regards 
 secular matters and for unfailing loyalty to the 
 principles of the Reformation. 
 
 Many legal subjects are not discussed in this 
 Essay, but I think I have selected those topics 
 most interesting, most important, and most diffi- 
 
 cult. 
 
GO ANM ie ANG ess, 
 
 TABLE OF CasEs CiTED, . , 3 : ; ; fa Vil 
 
 CHAPTER I. 
 
 PrincipLes oF THE Law oF Vo.uuntTary CHURCHES, AND 
 
 ESPECIALLY OF THE CHURCH OF IRELAND, s ; i 
 CHAPTER II. 
 ELEMENTS oF THE Laws or THE CHURCH OF IRELAND, Aas: 
 
 CHAPTER III. 
 
 CONSTITUTION OF THE CHURCH OF IRELAND, : : oe ek 
 
 CHAPTER IV. 
 
 Tue Cuurcu Statute, ENTITLED, ‘‘ EcciesiasticaL TRI- 
 
 BUNALS, OFFENCES, FacuLtrEs, AND REGISTRIES,”’ a PA 
 
 CHAPTER V. 
 
 CANONS OF THE CHURCH, . ; : : : ; : 37 
 
vi CONTENTS. 
 
 
 
 CHAPTER VI. 
 PAGE 
 ConsTITUTION OF THE REPRESENTATIVE Bopy,  . : Roamer at 
 CHAPTER VII. 
 BuriaL Grounps AND Buriat, . : ; : : Meg kine 
 CHAPTER VIII. 
 MarpiaGE, AND THE Duties or Ministers oF THE CHURCH 
 IN RELATION THERETO, ; ; : , : : 75 
 APPENDIX. 
 A.—ConstiItuTION oF THE CHURCH oF IRELAND, 1889 
 (Cuaprer VIII.), . : : $ : : ahh: 
 B.—Constirution oF THE CuHuRcH oF IRELAND, 1889 
 (CuapterR XII.), . P : : ; ; ae ibe! 
 
 C.—Tas_Le or CasES HEARD IN Court oF GENERAL Synop, 114 
 D.—Report or Stanpinc CommitrEE on MarriaGE, eA KS: 
 
 E.—Particunars oF THE REvIsION oF THE Book or Common 
 PRAYER, : . : - : : : 5 | aber 
 
 InDEX, . : ; ; : : : ? ; ee 15) 
 
TABLE OF CASES. 
 
 PAGE. 
 Avia Olk, 25 
 Adlam v. Colthurst, . 68 
 Argar v. Houldsworth, 86 
 Att.-Gen. v. Parker, . 59 
 Bardon v. Calcutt 68, 65 
 Blackmore’s Case, 68 
 Borough v. Collins, . 26 
 Breeks v. Woolfrey, . 72 
 Burder’s Case, 27 
 Capua, Prince of, Case 84 
 Campbell v. Hunt, 15, 115 
 Candlish’s Case, 34 
 Cawdrey’s Case, 34 
 Church Rep. B. »v. rare 60 
 Clovell v. Cardinal, 49 
 Davis v. Black, 85 
 Dean v. Exeter, 63 
 Dunbar v. Skinner, 1 
 Durst v. Masters, 44 
 Egerton v. Auld, 72, 
 Etherington v. Wilson, 59 
 
 
 
 PAGE. 
 Faulkner v. Litchfield, 43 
 Forbes v. Eden, 12 
 Gilbert v. Buzzard, . . 62 
 Grant v. Smith, 82, 45, 46 
 48, 115 
 Graves’s Case, 82 
 Halliday v. Phillips, 67 
 Harper v. Forbes, 73 
 Harris v. Butler, 25 
 Harris v. Drewe, 67 
 Heydon’s Case, 40 
 Hickey v. Sullivan, . 67 
 Jenkins v. Cooke, 49 
 Kent v. Smith, 72 
 Killinchy Case, 64 
 Kerr, In re, 68 
 Laughton v. Bishop of Man, 185 
 Liddell v. Westerton, 43 
 Long v. Bishop of Cape- 
 town, 5 
 
vill 
 
 ; PAGE. 
 Magnay v. St. Michael, 67 
 Mainwaring v. St. Giles, . 67 
 Maidman v. Malpas, 63 
 Martin v. Mackonchie, 44 
 Meath Case: Election, 114 
 Meath Precedence, . awe 
 Morgan v. Smith, 57, 61 
 Nash v. Nash, . 25 
 O’ Keeffe v. Cullen, 4,5 
 Plumstead Case, 73 
 Queen v. James, 85 
 Regina v. Benson, 81, 83 
 Regina v. Twiss, ae 3 
 Rep. Body v. Neil, . 59, 60, 71 
 
 Rep. Body v. M‘Clelland, 60, 68 
 
 
 
 
 
 TABLE OF CASES. 
 
 Rex v. Coleridge, 
 Read v. Lincoln, 
 Rochester v. Harris, 
 Ross v. M‘D., Clk., . 
 Rugg v. Kingsmill, . 
 
 Scott v. Avery, 
 Searle’s Case, . 
 
 St. Botolph’s Case, . 
 St. John’s Case, 
 
 St. Michael Bassinshaw, . 
 
 St. Nicholas’ Case, 
 Stone’s Case, . 
 Stewart v. Crommelin, 
 Sussex Peerage Case, 
 St. Mary-at-Hill Case, 
 
 Warnock’s Case, 
 Warren’s (Dr.) Case, 
 Williams v. Salisbury, 
 
 
 
 ERRATA. 
 
 . 40, 41, 44 
 
 PAGE, 
 
 69 
 29 
 
 28, 115 
 65 
 
 66, 
 
 Page 1, line 18 from foot, for constitutes and is read constitute and are. 
 
 ” 23, ) 
 »» 60, 5, 
 
 th) 65, > 
 69, 9? 8 9 
 
 15, last line, dele inverted commas. 
 
 21, line 17, for clergy read clergymen. 
 3, for nemo, &c., vead non potest esse judex et pars. 
 
 21, for proscription vead prescription. 
 
 », 14, for Killindrey read Killinchy. 
 
 3 from foot, insert C. between C. and 59. 
 
 insert P. after 1893. 
 
 », 78, lines 8, 9, 18, insert P. after 1892, 1893, 1895, respectively. 
 
 ,, 85, line 2, for 2 Sec. read 2 Lee. 
 
THE 
 
 LAW OF THE CHURCH OF IRELAND. 
 
 CHAPTER I. 
 
 PRINCIPLES OF THE LAW OF VOLUNTARY CHURCHES, 
 AND ESPECIALLY OF THE CHURCH OF IRELAND. 
 
 TuE Ecclesiastical Law of Ireland, and the articles, 
 doctrines, rites, rules, discipline, and ordinances of 
 the Church of Ireland, existing and in force on 
 1st January, 1871, subject to all modifications and 
 alterations since made therein by the General Synod 
 of the Church, constitutes and is the law of the 
 Church of Ireland (Irish Church Act, 1869). All 
 members of the Church are also subject to the civil 
 law, which is supreme. 
 
 It is proposed to consider in this Paper the prin- 
 ciples on which the law is founded, some of the 
 details of the law, the nature and extent of the 
 obligations of obedience to the law, and the sanc- 
 tions by which it is fortified. 
 
 This Paper will be conversant with the interpre- 
 tation of Acts of Parliament and Statutes of the 
 General Synod; and it is intended to adopt the 
 
 principle of construction enunciated by Tindal, C.J., 
 B ; f 
 
2 IRISH CHURCH ACT. 
 
 in The Sussex Peerage Case (11 C. & Fin. 143):— 
 “The only rule for the construction of Acts of 
 Parliament is that they should be construed accord- 
 ing to the intent of the Parliament which passed 
 the Act. If the words of the Statute are in them- 
 selves precise and unambiguous, then no more can 
 be necessary than to expound those words in their 
 natural and ordinary sense. The words themselves 
 alone do in such cases best declare the intentions of 
 the lawgiver. But if any doubt arises from the terms 
 employed by the Legislature, it has always been held 
 a safe means of collecting the intention to call in aid 
 the ground and cause of making the Statute.” 
 
 The Irish Church Act, 1869 (the Statute of 
 Disestablishment), enacted, § 21, that on the Ist 
 January, 1871, all jurisdiction of all Ecclesiastical 
 Courts and persons in Ireland existing at the time 
 of the passing of the Act, having any jurisdiction 
 exercisable in any cause or matter, matrimonial, 
 spiritual, or ecclesiastical, or in any way connected 
 with the ecclesiastical law of Ireland, should cease, 
 and ‘the Ecclesiastical Courts and Registries Act, 
 Ireland, 1864,” be repealed, and the Ecclesiastical 
 Law of Ireland, except so far as related to Matrimo- 
 nial causes and matters, cease to exist as law, 7.e. as 
 civil law, or as affecting persons who are not mem- 
 bers of the Church. Jurisdiction is defined in the 
 Act (section 74) to mean legal and coercive power, 
 and declared not to extend to or include any 
 authority which may be exercised in a volun- 
 tary religious association upon the footing of 
 mutual contract. This exception of Matrimonial 
 causes and matters applies to suits or proceed- 
 ings in the Ecclesiastical Courts concerning 
 marriage. The law relating to Divorce a mensa 
 
REPRESENTATIVE SYNODS. 3 
 
 et toro, to Nullity of marriage, and Validity 
 of marriage, to Alimony, Jactitation of marriage, 
 Restitution of conjugal rights, &¢., was within 
 the jurisdiction of, and was administered by, the 
 Ecclesiastical Courts, and all this law was pre- 
 served; but the obligations of the clergy of the 
 Established Church in relation to marriage do not 
 seem to come within this exception, or to be thereby 
 preserved in force against the clergy of the Dises- 
 tablished Church. As to the meaning of the words 
 ‘‘ causes and matters,” the 27 & 28 Vict. c. 54, sec- 
 tions 69, 70, and 71, may be referred to. 
 
 This 21st section of the Church Act, having 
 regard to a civil law which had made representative 
 synods and conventions uulawful, would in effect 
 have placed the Church of Ireland outside the pale 
 of law, and given it up to internal anarchy and 
 chaos, if the Legislature had not provided a remedy 
 for the evil. Such a remedy, however, is to be 
 found in the 19th section, by which the Church was 
 relieved from the disability, and was enabled to 
 hold representative conventions, and synods of 
 bishops, clergy, and laity, with power to frame 
 constitutions and regulations for the general man- 
 agement and good government of the Church of 
 Ireland, and the property and affairs thereof. This 
 provision was followed by the 20th section, which 
 enacted that the then present ecclesiastical law of 
 Ireland, and the articles, doctrines, rites, rules, 
 discipline, and ordinances of the Church of Ireland, 
 with and subject to such modifications or alterations 
 as, after the lst of January, 1871, might be duly 
 made therein according to the constitution of the 
 said Church for the time being, should be deemed to 
 be binding on the members of the Church for the 
 
 B 2 
 
4 ECCLESIASTICAL LAW—MUTUAL CONTRACT. 
 
 time being in the same manner as if such members 
 had mutually contracted to observe the same and 
 should be capable of being enforced in the Temporal 
 Courts in relation to any property which under or 
 by virtue of the Act is reserved or given to or taken 
 and enjoyed by the said Church or any member 
 thereof in the same manner and to the same extent 
 as if such property had been expressly given upon 
 trust for persons who should observe and be in all 
 respects bound by the said Ecclesiastical law and 
 the said articles, doctrines, rites, rules, discipline, 
 and ordinances, subject as aforesaid. 
 
 These sections empowered the establishment of 
 a General Synod, representing bishops, clergy, and 
 laity, and enabled that Synod to alter and add 
 to the former Ecclesiastical law of the Church, to 
 modify and change its articles, doctrines, rites, 
 rules, discipline, and ordinances, to ordain punish- 
 ments for the violation of the laws of the Church, 
 and to establish Church tribunals to declare the law 
 and try and pronounce judgment upon offenders 
 against its laws. Doubtless there are limitations 
 to the power of the Synod to make laws, and to the 
 jurisdiction of the Church tribunals to enforce their 
 observance. The Synod cannot make any law, 
 any valid law, inconsistent with the laws of the 
 State, ‘‘the law of the Land is Supreme” (O’ Keefe 
 y. Cullen, I. R. 7 C. L. 371); nor can the Synod 
 make any law ousting the proper jurisdiction of the 
 temporal Courts (Scott v. Avery, 5 H. L. C. 811); 
 nor can it make laws investing the tribunals with 
 any coercive jurisdiction. The coercive jurisdiction 
 of the Courts of the Established Church was taken 
 away at disestablishment, and none was given in 
 place of it (§ 20). The old process, for instance, 
 
CHURCH TRIBUNALS—LAYMEN. 5 
 
 of sequestration cannot be used by the Church 
 Courts. If possession is wrongfully withheld, as 
 of a church, or glebe-house, or land, possession 
 can only be obtained by an action of ejectment 
 in the temporal Courts, to be brought by 
 the Representative Body—the Church Corporation 
 in whom, generally speaking, all the property of the 
 Church is vested as a trustee; and a similar rule 
 obtains in cases of default by debtors to the Church. 
 
 The laws of the Church, subject to the limita- 
 tions to which attention has been called, are of 
 binding obligation upon all members of the Church 
 of Ireland, on bishops, clergymen, and laymen, 
 without exception; all alike are bound to submit 
 to the jurisdiction and the decisions of the Church 
 tribunals. 
 
 This subject was considered in the case of 
 O’Keefe v. Cullen (I. R. 7 C. L. 319), which may 
 be regarded as a repertory of the law of voluntary 
 churches. A leading case is Long v. the Bishop of 
 Capetown (6 M. P. C., New S., 461), in which 
 the judgment was pronounced by Lord Kingsdown, 
 a Judge of the highest character. The members of 
 any religious association, other than an established 
 Church, ‘‘ may,” he says, ‘‘ adopt rules for enforcing 
 discipline within their body, which will be binding 
 on those who expressly, or by implication, have 
 assented to them. It may be further laid down 
 that when any religious or other lawful association 
 has not only agreed on the terms of its union, but 
 has also constituted a tribunal to determine whether 
 the rules of the association have been violated by 
 any of its members or not, and what shall be the 
 consequence of such violation, the decision of such 
 tribunal will be binding when it has acted within 
 
6 ASSENT TO LAWS OF CHURCH. 
 
 the scope of its authority, and has observed such 
 forms as the rules require, if any forms be pre- 
 scribed, and if not, has proceeded in a manner 
 consonant with the principles of justice. In such 
 cases the tribunals so constituted are not in any 
 sense courts; they derive no authority from the 
 Crown; they have no process of their own to en- 
 force their sentences; they must apply for that 
 purpose to the Courts established by law, and such 
 Courts will give effect to their decisions as they 
 give effect to the decisions of arbitrators whose 
 jurisdiction rests entirely upon the agreement of 
 the parties. These,” says Lord Kingsdown, ‘are 
 the principles upon which the Courts have always 
 acted in the disputes which have arisen between 
 members of the same religious body, not being 
 members of the Church of England (the established 
 Church of the land). To these principles, which 
 are founded on good sense and justice, and estab- 
 lished by the highest authority, we desire strictly 
 to adhere.” Lord Kingsdown then proceeded to 
 discuss the question how far the plaintiff in the suit 
 was subject, in point of law, to the Bishop of Cape- 
 town, not dealing, as he said, with his obligations 
 in foro conscrentie. 
 
 The question of want of assent cannot be raised 
 by any member of the Church of Ireland as an 
 objection to the jurisdiction of its tribunals, for, 
 as has been seen, the Church Act has declared, with- 
 out reference to any assent except that conclusively 
 implied from the fact of membership, that the law 
 of the Church, its rules, discipline, and ordinances 
 (words which include the jurisdiction of its tribunals) 
 for the time being shall be deemed to be binding on the 
 members for the time being thereof, in the same 
 
DISOBEDIENCE--DISLOYALTY. 7 
 
 manner as if such members had mutually contracted 
 and agreed to observe the same. 
 
 It is much to be desired that all members of the 
 Church would seriously appreciate their obligation 
 of obedience. They cannot wilfully transgress 
 without disloyalty to their Church and ethical mis- 
 conduct. If this consideration ought to be recog- 
 nised universally by members of the Church, how 
 much more by ministers who have formally and 
 voluntarily subscribed an express promise of sub- 
 mission to the authority of the Church and its laws 
 and tribunals, and on the faith of that promise have 
 obtained and enjoy position and income. It needs 
 not to resort to Christian ethics to prove that from 
 such a promise results the very highest of obliga- 
 tions in foro conscientie to observe these laws, and 
 that, not in the letter only, but in the spirit according 
 to the intention of those by whom the promise was 
 required. If any minister shall say my duty to 
 God is supreme, be it so; but it is also a duty to 
 God to observe vows of which the minister is reap- 
 ing the fruit, and the reconcilement of these duties 
 supposed to conflict can be found in the resignation 
 of the advantages derived from the promise and 
 concurrent release from the obligation. 
 
 Reference must be made to a proviso in the Church 
 Act in these words (§. 20) :—‘‘ Provided always that 
 no alteration in the articles, doctrines, rites,” or ‘‘for- 
 mularies of the said Church shall be binding upon 
 any ecclesiastical person now licensed as a curate or 
 holding any archbishopric, bishopric, benefice, or 
 cathedral preferment, being an annuitant or person 
 entitled to compensation under this Act, who shall 
 within one month after the making of such alteration 
 signify in writing to the Church Body his dissent 
 
8 PROTEST AGAINST REVISION. 
 
 therefrom, so as to deprive such person of any 
 annuity or other compensation to which under this 
 Act he may be entitled.” This proviso has been 
 misunderstood. The whole clause is limited by the 
 words with which it concludes, ‘so as to deprive the 
 protesting person of his annuity’?—of his annuity under 
 the 14th, 15th, 16th, or 17th sect. of the Act. The 
 allegiance of the man is not touched, his obligation 
 and duty of obedience and submission are not 
 affected. If he shall schismatically dissent from the 
 laws of the Church and disobey he may still be cited 
 before its tribunals, the tribunals may try the case 
 and pronounce sentence—any sentence not involving 
 deprivation of his annuity under the Act-—-which the 
 Synod may have authorised the tribunal to pro- 
 nounce for the offence, whether monition, suspen- 
 sion, or deprivation of his benefice, as the case may 
 be. For instance, the law of the Church by an alte- 
 ration of a rubric, etc., is that a new lectionary 
 shall be used. Therefore, the use of the old 
 lectionary would be a violation of the law of the 
 Church, for which if a protesting presbyter he could 
 not be deprived of his annuity, but, nevertheless, 
 a schismatical offence for which the Courts might 
 visit him with other punishment, even with that of 
 deprivation of his benefice. 
 
 An opinion of Sir Roundell Palmer, afterwards 
 the Earl Selbourne, has thrown some doubt upon the 
 opinion that all the clergy of the Church were, and 
 are, under an obligation of obedience to all the laws 
 of the Church for the time being, and it may be well 
 to discuss the subject more particularly. The Irish 
 Church Act does not contain any exception of any 
 member of the Church from the mutual contract to 
 observe the whole law created by the 20th section ; 
 
GENERAL OBLIGATION TO OBEDIENCE. 9 
 
 therefore, the only question that can arise relates to 
 the consequences of a breach of this contract. Is 
 there a difference as regards one class of clergymen 
 and another class, or one class of offence and another 
 class in relation to their Church property ? I take 
 two classes of property, immovable property, such 
 as churches and glebes, and the annuities provided 
 by the Act. 
 
 The 12th section vests the churches and glebes in 
 the Church Commissioners, subject to the life 
 interests of the clergy. Thus, the churches and 
 glebes were reserved to the clergy for their lives. 
 This, without more, would be an absolute reserva- 
 tion; but the section concludes with the words, “ in 
 the same manner as if this Act had not passed ””— 
 words which apparently point to the fact that the 
 life estates were not absolute, but were defeasable 
 for various causes: but there is no mention of any 
 discharge of duties as a condition. Sections 14 
 and 15 provide for each clergyman an annuity 
 equal to his yearly ecclesiastical income, payable to 
 him so long as he lives and continues to discharge 
 such duties as he was accustomed, or would if this 
 Act had not passed have been liable, to discharge, or 
 any other spiritual duties substituted therefor with 
 his consent and that of the Representative Body, or 
 shall be disabled by any cause other than his own 
 wilful default. This proviso as to discharge of 
 duties is connected with annuities only, and cannot 
 be imported into the reservation of section 12 as to 
 churches and glebes. A question might arise with 
 regard to the meaning of the word “ duties.” 
 Possibly it relates to the minister’s general duties as 
 incumbent or curate of a parish from which he 
 cannot be moved without his own consent, and from 
 
10 UNIFORMITY ESSENTIAL. 
 
 which he cannot move without the consent of the 
 Representative Body, rather than to the details of 
 those duties, but it is not necessary to pursue this 
 inquiry. 
 
 Then follows section 19, which, as we have seen, 
 empowers the Synod to frame constitutions and re- 
 culations for general management and good govern- 
 ment of the Church, the property, and officers 
 thereof. Surely this section would enable the Synod 
 to pass a statute of uniformity, to ordain punishments 
 for variance of ritual, and establish tribunals to try 
 offenders against such a statute. But section 20, 
 after declaring of what the law of the Church shall 
 consist and the mutual contract to be enforced in the 
 temporal Courts, enacts that all property reserved, 
 given to, or taken and enjoyed by, the clergy as 
 e. g. churches, shall be taken as if such property had 
 been expressly granted upon trust for persons who 
 should observe and keep and be in all respects bound 
 by the said ecclesiastical law, subject as aforesaid 
 —i.e. subject to alterations by the General Synod. 
 Can any doubt be entertained but that this trust 
 governs sections 12,14,and 15? The proviso which 
 follows makes assurance doubly sure. If, by virtue 
 of sections 12, 14, and 15, all the property reserved 
 or given by the Act was indefeasably protected as 
 long as the minister thought fit to perform his old 
 duties, what occasion was there for protecting a part of 
 that property from forfeiture by reason of non-obser- 
 vance of particular laws by a special class—that of 
 protesting dissentients ? There was a good reason for 
 a distinction. The payment of an annuity without 
 due service might be a pecuniary loss to the Church, 
 but it did not involve moral or ecclesiastical evil. It 
 was essential to the welfare of the Church that 
 
UNIFORMITY ESSENTIAL. TY 
 
 service and ritual should be uniform. It would have 
 been an intolerable thing that divers services and a 
 discordant ritual should find place not only in 
 separate parish churches but in the same church, the 
 incumbent, it might be, following one and his 
 curates another ritual, without a remedy for some 
 40 or 50 years, when all the protestors might be dead. 
 The remedy is that which the Church possesses— 
 that of the removal of the malcontent from his 
 church and glebe by depriving him of the benefice. 
 
 The Act contains traces of an intention to safe- 
 guard the interests of the Church itself as paramount, 
 regarding as far as was consistent with that primary 
 object, the personal interests of the clergy. 
 
 An interesting letter from the Archbishop of 
 Canterbury to the Queen is to be found in Arch- 
 bishop Tait’s ‘ Memoirs,” vol. ii., p. 13, dated 29th 
 February, 1869 :— 
 
 ‘¢The Archbishop hears with the greatest satis- 
 faction from Mr. Gladstone that he is anxious to 
 arrange the calculation of the life-interests of the 
 present holders of benefices in Ireland in such a 
 manner as shall be most advantageous, not to the idi- 
 vidual concerned, but to the Church at large.” Of 
 course such a document has no weight in the legal 
 interpretation of the Act. 
 
 It may be found necessary in the consideration 
 of future cases arising in the Church to examine 
 further the principles of the laws of the Church of 
 Ireland, the authority of its tribunals, and the obli- 
 gation of its members to obedience. Illustrations 
 useful for such an investigation are to be found in 
 great variety in the books, and, amongst others, the 
 cases of Dunbar v. Skinner (11 Dunlop R., 945), 
 of Dr. Warren (a Wesleyan Methodist) in Grindrod’s 
 
12 EPISCOPAL CHURCH IN SCOTLAND. 
 
 ‘‘Compendium,” 371, and Forbes v. Eden (Law 
 Reports, Scotch Appeals, I., 571), in which the posi- 
 tion of the voluntary Episcopal Church in Scotland 
 was discussed, may be mentioned. In the latter 
 case Lord Cranworth said: ‘‘If funds are settled 
 to be disposed of amongst members according to 
 their rules, the Court must necessarily take cogni- 
 zance of these rules for the purpose of satisfying 
 itself as to who is entitled to the funds; so, like- 
 wise, if the rules of a religious association prescribe 
 who shall be entitled to occupy a house or to have 
 the use of a chapel or other building.” 
 
( 18 ) 
 
 CHAPTER II. 
 
 ELEMENTS OF THE LAWS OF THE CHURCH OF 
 IRELAND. 
 
 Sucu, then, being the principles of the law of the 
 Church of Ireland, and such the obligations of 
 obedience resting on its members, it is proper to 
 consider some of the details of this law. 
 
 The first part of the law, viz. the Ecclesiastical 
 Law as it was in force on the lst January, 1871, is 
 to be found—(1) in Imperial Statutes and Canons 
 not repealed by Parliament or altered by the 
 General Synod ; (2) in the reports of the judgments 
 and decisions of the Civil and Ecclesiastical Courts 
 of England and Ireland, and (3) in treatises of 
 recognised authority, such as Gibson’s ‘‘ Codex,” 
 Burns’s “‘ Ecclesiastical Law,” edited by Phillimore ; 
 Phillimore’s ‘‘ Ecclesiastical Law,” 1873, and in the 
 writings of Stephens, Cripps, and Archdeacon 
 Stopford. 
 
 The most important Imperial Statute bearing on 
 the subject is the Act of Union, passed on the 2nd 
 July, 1800. In the Fifth Article we find this:— 
 ‘That it be the Fifth Article of Union that the 
 Churches of England and Ireland, as now by law 
 established, be united into one Protestant Episcopal 
 Church, to be called the United Church of England 
 and Ireland, and that the doctrine, worship, discipline 
 
14 ACT OF UNION. 
 
 and government of the said United Church shall be 
 and shall remain in full force for ever as the same are 
 now by law established for the Church of England.” 
 
 The words ‘‘ doctrine, worship, discipline, and 
 government” are not identical with the words of 
 the Irish Church Act, 1869-—‘‘ The present Ecclesi- 
 astical Law of Ireland and the present articles, 
 doctrines, rules, discipline, and ordinances of the 
 said Church.” But they are substantially equiva- 
 lent, and the true construction appears to be that by 
 virtue of this Fifth Article of Union the Ecclesias- 
 tical Law of the Church of England in 1800 was 
 made Ecclesiastical Law of the United Church, in- 
 cluding the Church of Ireland; and the Ecclesias- 
 tical Law of the Church of Ireland as it existed in 
 1800 was repealed, so far as it was inconsistent with 
 the Law of the Church of England. Statutes on 
 matters of Ecclesiastical Law which, prior to the 
 Union, were only English Statutes, and did not apply 
 to Ireland, were extended, in their operation to 
 Ireland, and Canons of the Church of England 
 became Canons of the United Church. Possibly, it 
 may be held that the effect of the Fifth Article was 
 yet more extensive, and that not only were those 
 parts of the Ecclesiastical Law of Ireland which 
 were inconsistent with that of England repealed, but 
 that the whole Ecclesiastical Law of Ireland existing 
 prior to the Union was repealed by the general sub- 
 stitution of the English for the Irish code. Probably 
 it was the intention of the Legislature that the 
 Ecclesiastical Law of the United Church should be 
 the same in Ireland and England—one Church 
 one Law. But in the absence of decision it would 
 be rash to dogmatise on the point. <A case of 
 Campbell v. Hunt, Clk., was heard in February, 
 
CONSTRUCTION. 15 
 
 1895, in the Court of the General Synod. The 
 charge against Hunt was that he affirmed doctrines 
 contrary to the Articles of Religion, and the prose- 
 cution was founded upon the provisions of the 
 English Statute 13 Elizabeth, ch. 12, which, prior to 
 the Union, had not any application to Ireland. The 
 Court, constituted of the Lord Primate, the Bishop 
 of Meath, the Bishop of Kilmore, Lord Justice 
 Fitz Gibbon, Mr. Justice Holmes, Mr. Justice 
 Monroe, and Mr. Justice Madden, found the respon- 
 dent guilty, and did adjudge ‘that unless the 
 respondent expressly retracts the errors of which he 
 has been convicted the Court has no alternative but 
 to pronounce the sentence of deprivation under the 
 Statute of Elizabeth.” 
 
 In the judgment of the Court we read, “ the 
 charge of affirming doctrines contrary to the Articles 
 of Religion is preferred in the terms of the Statute 
 13 Elizabeth, ch. 12. This Statute is enforceable 
 as regards the Church of England by the authority 
 of the Ecclesiastical Courts, with an appeal to the 
 Judicial Committee of the Privy Council. It formed 
 part of the Law regulating the doctrine, worship, 
 discipline, and government of the Church of 
 England at the passing of the Act of Union.” 
 “By virtue of the Fifth Article of that Statute the 
 Ecclesiastical Law of the Church of England became the 
 Ecclesiastical Law of the United Church of England and 
 Ireland, and so continued until the 1st of January, 
 1871.” 
 
 The principle of this decision applies to extend 
 to Ireland the force of all other English Statutes 
 passed prior to the Union, so far as they affected 
 Ecclesiastical Law, albeit not applicable to Ive- 
 land until the Union.” Mr. Hunt did afterwards 
 
16 ACTS OF UNIFORMITY. 
 
 retract. He was not deprived. He was condemned 
 in costs. 
 
 The English and Irish Acts of Uniformity (14 
 Car. II., c. 4, and 17 & 18 Car, IL, c. 6) require the 
 use of the Book of Common Prayer and administra- 
 tion of the Sacraments and the form of Ordination 
 and Consecration. ‘This Law is now subject to the 
 power of the General Synod to modify or alter. It 
 makes Episcopal Ordination necessary for Ecclesias- 
 tical Office, and it enacts that no person whatsoever 
 shall presume to consecrate and administer the Lord’s 
 Supper before such time as he shall be ordained a 
 priest. This is the Positive Law of the Church of 
 Ireland ; it is universally observed, and albeit 
 opinions differ on the question whether this rule of 
 law rests upon the foundation of Scripture or the 
 custom of the Primitive Church, or the doctrines of 
 the Churches of Ireland and England as some 
 think, or upon principles of fitness and convenience 
 established after the times of the Apostles by 
 Ecclesiastical authority, as many concurring with 
 Tertullian and Lightfoot believe ratified by secular 
 law, it is manifest that the present repeal of this 
 enactment, and the abrogation of the rule by the 
 General Synod, would be an occasion of painful 
 schisms or dissensions within the Church of Ireland 
 and of dissatisfaction in kindred Churches. 
 
 Another important Act (5 Geo. IV., ¢. 91) 
 deals with the subjects of the residence of the 
 clergy and the compulsory appointment of curates 
 by bishops, both matters of interest and importance 
 to the welfare of the Church. 
 
eit) 
 
 CHAPTER III. 
 
 CONSTITUTION OF CHURCH OF IRELAND. 
 
 THE second part of the law of the Church consists 
 of the enactments of the General Synod, by which 
 the old laws and constitutions and ordinances of the 
 Church have been altered or modified, and deficiencies 
 in the old law, to meet the necessities of a Church 
 disestablished and disendowed, have been supplied. 
 
 These enactments are contained in ‘ the Consti- 
 tution of the Church, 1889,” and numerous other 
 statutes. 
 
 The Constitution, after formal enacting words, 
 and a preamble well deserving of perusal, contains 
 fourteen chapters, viz. :— 
 
 Chapter I., which provides for the establishment 
 of the General Synod, composed of the bishops and 
 representatives of the clergy and the laity, and 
 regulates the election of these representatives; it 
 arranges the mode of procedure ; a majority of clergy 
 or laymen upon a vote by orders has a right of veto; 
 special care is taken to guard against rash or hasty 
 changes in the Prayer Book, by section 27, which 
 declares that— 
 
 ‘No modification or alteration shall at any time 
 hereafter be made in the articles, doctrines, rites, 
 rubrics, or, save in so faras may have been rendered 
 necessary by the passing of the ‘Irish Church Act, 
 1869,’ in the formularies of the Church, unless by a 
 Bill duly passed, as hereinbefore provided. No Bill 
 
 Co 
 
” 
 
 18 CHAPTERS OF CONSTITUTION. 
 
 for such purpose shall be introduced except on a 
 Resolution passed in full Synod, at an Ordinary Meet- 
 ing thereof, stating the nature of the proposed modi- 
 fication or alteration; and no such Bill or Resolution 
 shall be deemed to have passed the House of Repre- 
 sentatives except by majorities of not less than two- 
 thirds of each Order of the said House present and 
 voting on such Bill or Resolution : Provided that no 
 Bill for such purpose shall be introduced until the 
 Ordinary Meeting of the General Synod next after 
 the passing of such Resolution, and copies of any 
 such Resolution shall be transmitted by the Secre- 
 taries of the General Synod to the Secretaries of 
 every Diocesan Synod within one month after the 
 last day of the Session of the General Synod in 
 which the same is passed.” 
 
 The subjects of the other chapters in the Consti- 
 tution are as follow, viz.— 
 
 Chapter II. Diocesan Synods. 
 
 ,, LI. Parish and Parochial Organisation. 
 
 ,  1V. Appointment to Cures, and Subscription Assent 
 to the Book of Common Prayer, Canonical 
 obedience and Submission to the authority of 
 the Church and to its laws and Tribunals. 
 
 4 V. Cure of Souls in Parishes having no Parish 
 Church, but in which there are Proprietary 
 or other Non-Parochial Churches. 
 
 ,, WI. Archbishops and Bishops. 
 
 » WII. Cathedrals. 
 
 ,, VIII. Ecclesiastical Tribunals, Offences, Faculties, 
 and Registries. 
 
 , LX. Constitution and Canons Ecclesiastical. 
 
 af X. Concerning the Representative Body of the 
 Church. 
 
 “a XI. The Boulter Fund. 
 
 ,, XII. Management of Burial Grounds. 
 
 , XIII. Management of Glebes, and Parochial Buildings 
 
 ,, XIV Provisions for Widows and Orphans. 
 
REVISION. 19 
 
 The Synod also passed numerous statutes dealing 
 with the revision of the Prayer Book and Formu- 
 laries of the Church, and others which may be classed 
 under the familiar title of the Local and Personal 
 Acts. 
 
 There are two chapters of the Constitution of an 
 especially legal and technical character, and these 
 seem to require fuller discussion and explanation 
 in detail, viz. Chapter VIII. and Chapter IX. 
 The subjects of the former are the Ecclesiastical 
 Tribunals of the Church, offences against its laws, 
 their proper punishments, and lay discipline. The 
 latter contains the Canons Ecclesiastical of the 
 Church. The former will be found in the Appendix ; 
 the latter is published, by order of the Synod, with 
 the Book of Common Prayer. 
 
 o 2 
 
( 20.) 
 
 CHAPTER IV. 
 
 THE CHURCH STATUTE, ENTITLED, ‘‘ ECCLESIASTICAL 
 TRIBUNALS, OFFICERS, FACULTIES, AND REGISTRIES.” 
 
 Cuapter VIII. of the Constitution provides Ecclesias- 
 tical Tribunals for the Church in Ireland, namely, a 
 Diocesan Court for each Diocese or united Diocese 
 of the Church, thirteen in all, and a superior Court 
 exercising original and appellate jurisdiction, named 
 in the Statute the Court of the General Synod. 
 The Diocesan Court is composed of the Bishop of 
 the Diocese who presides with his assessor, called 
 Chancellor, who must be a barrister of not less than 
 ten years standing, and a jury composed of a clergy- 
 man and a layman, summoned to attend in rotation 
 from a list of three of each order elected by the 
 Synod of the Diocese. In certain cases the Chan- 
 cellor, or a Commissary, may sit for the Bishop, and 
 a Deputy Chancellor may be appointed by the Bishop. 
 In this Court the Bishop is the sole judge, assisted 
 as to law by advice of the Chancellor and as to the 
 facts, by the jury of two. 
 
 This Diocesan Court has jurisdiction to hear all 
 cases of offences of members of the Church against 
 its laws, except cases touching doctrine or ritual, and 
 of pronouncing all proper sentences except depriva- 
 tion or deposition from Holy Orders—sentences 
 which are reserved for the superior Court. The 
 
DIOCESAN TRIBUNALS, 21 
 
 decisions of the Diocesan Court are subject to an 
 appeal to the Court of the General Synod. 
 
 The 7th and subsequent sections to 19 inclusive, 
 are conversant with rules of procedure and evidence. 
 
 The Bishop, or any member of the Church who 
 has signified in writing his submission to the autho- 
 rity of the General Synod, and who resides in the 
 Diocese, or has been personally injured by the act 
 complained of, may institute the proceedings which 
 are to be commenced by a petition in a prescribed 
 form. A provision is made to secure payment of 
 costs by all petitioners except bishops; and it would 
 seem that payment of costs, pursuant to an order 
 of the tribunal, could be enforced in the temporal 
 Courts by an action upon the mutual contract men- 
 tioned in the Church Act, s. 20, and, a fortiori, 
 upon the written submission of clergy and laymen. 
 Where a Bishop is the prosecutor, the Synod has 
 provided for payment of his costs in proper cases 
 out of a special trust fund (see page 35). Powers 
 are given to this Court to deal with costs, and, 
 in its discretion, to remit any case to the Court 
 of the General Synod. The 20th section of 
 Chapter VIII. contains a general provision that: 
 ‘In all cases where the parties submit, or 
 are bound by the laws of the Church, the 
 Diocesan Court may hear and determine any ques- 
 tions connected with the property of the Church, 
 or the administration thereof, or with ecclesiastical 
 rights generally, which may arise between members 
 of the Church of Ireland, if the party defendant be 
 resident within the Diocese.” Of course it is not 
 to be understood that by this section it was intended 
 to oust or interfere with the jurisdiction of the 
 temporal Courts, or to assume for the Church 
 
22 COURT OF GENERAL SYNOD. 
 
 tribunals any coercive jurisdiction. But in another 
 point of view a distinction may be taken. In the 
 celebrated case of Dr. Warren (see ante, p. 11), 
 a Wesleyan minister, who had been suspended by 
 a tribunal called a District Committee, and had 
 appealed to the Civil Court of Chancery, the Vice- 
 Chancellor, in deciding against the appeal, said:— 
 ‘¢ Although this Court has jurisdiction over trusts, 
 it cannot exercise any jurisdiction in the nature of 
 an appellate jurisdiction over a local Court of a 
 voluntary society who have agreed that certain 
 affairs shall be managed in a certain manner by 
 that local Court.” And on an appeal, Lord Lynd- 
 hurst, C., affirmed the decision of the Civil Court 
 that Dr. Warren should be suspended because 
 he refused to appear before the tribunal of the 
 Wesleyan Church. (The word ‘Church’ is used 
 here in the sense of Article xix.) 
 
 This statute, Chapter VIII., proceeds to arrange 
 and regulate the constitution and functions of the 
 Court of the General Synod. It is constituted of 
 three bishops—first in order of precedence (see 
 Meath Case, Appendix), able to attend, and of 
 four laymen—lawyers with special qualifications 
 standing first in order of a list of ten elected at the 
 first session of every General Synod. This Court 
 has cognizance of questions of doctrine and ritual. 
 In ordinary cases the decision of the majority is the 
 decision of the Court; but when a case involves a 
 question of doctrine, or the deposition of a clergy- 
 man, the concurrence of at least two bishops is 
 requisite in a judgment adverse to a clergyman. 
 This Court cannot determine any question which in 
 the opinion of the lay judges is more fit for a civil 
 tribunal. An amending Act, 1895, provides that, 
 
OFFENCES. 23 
 
 when the Representative Body is a party, the Court 
 shall be constituted of three lay judges, not being 
 members of the Body: nemo possit esse simul actor 
 et judex, Co. Lit., 141. 1. 
 
 The Statute then regulates the practice of the 
 Court, in sections 32 to 46 inclusive, section 42 
 declaring that it shall be the duty of members of 
 the Church to attend trials and give evidence when 
 summoned. A Rules Committee is constituted by 
 section 50, and power is given to the Court to 
 determine questions concerning the election of a 
 bishop: see the case of Meath Episcopal Election, 
 Journal of Synod, 1886, p. 169. The 48th section 
 declares that :—‘‘It shall be in the power of the 
 House of Bishops, or of the General Synod, to refer 
 to this Court any questions of a legal nature which 
 have arisen, or which may arise, in the course of 
 their proceedings; and the said Court shall there- 
 upon proceed to hear and determine the same in 
 the same manner as in the case of an appeal, or to 
 advise the House of Bishops, or the General Synod, 
 in respect of the same.” 
 
 As to offences, the 52nd section declares :— 
 ‘¢ Every act which would have been a breach or 
 violation of the Ecclesiastical Law of the United 
 Church of England and Iveland, and an offence 
 punishable by such law in Ireland, at the time of 
 the passing of the ‘Irish Church Act, 1869,’ and 
 which is a breach or violation of the Ecclesiastical 
 Law of the Church of Ireland for the time being ; 
 and also all crimes for the time being punishable 
 by law in Ireland, immorality, drunkenness, con- 
 duct unbecoming to the sacred calling of a clergy- 
 man, and all other acts which are breaches or viola- 
 tions of the Canons or other Laws of the Church of 
 
24 OFFENCES. 
 
 Ireland for the time being, and the teaching or 
 publishing of any doctrine contrary to the doctrines 
 of the Church of Ireland, shall be offences against 
 the Ecclesiastical Law of the Church of Ireland, 
 cognizable by the Ecclesiastical Tribunals of the 
 said Church.” ‘To this is added in section 59 :— 
 ‘‘ Disobedience to any sentence or order of any 
 Ecclesiastical Tribunal shall constitute a distinct 
 offence, on proof whereof such sentence may be 
 pronounced as the Court shall think proper, includ- 
 ing, in the case of the Court of the General Synod 
 only, a sentence of deprivation.” 
 
 A similar provision is contained in Canon 48. 
 
 It will therefore be always a primary considera- 
 tion for an intending prosecutor and for the Court, 
 whether the Act impeached is or is not an offence 
 against the laws, and cognizable by the Church 
 tribunals within the scope of these sections, which 
 it 1s presumed must be construed strictly. If the 
 act in question be such an offence, then as a general 
 rule the Court will proceed to try the case, hearing 
 the evidence, and adjudicating thereon. 
 
 It should be noticed that as regards evidence of 
 offence, section 52 provides that the said tribunal 
 shall be ‘at liberty to accept lawful proof of a con- 
 viction in any of the Queen’s Temporal Courts for 
 treason, felony, or misdemeanour, or of any finding, 
 judgment, or order of any such Temporal Court in 
 any criminal or civil proceeding establishing or 
 founded upon the fact of any immoral act, immoral 
 conduct, or immoral habit, as sufficient evidence of 
 such crime or fact, provided such conviction, find- 
 ing, judgment, or order shall not in the meantime 
 have been reversed or set aside, and that more than 
 two years shall not have elapsed.” 
 
CRIMES—PROHIBITION. 25 
 
 The expression ‘‘as a general rule” has been 
 used because it would seem that the comprehensive 
 words in section 52, ‘ all crimes for the time being 
 punishable by law,” 7. e. by the Criminal Law of 
 Ireland, require qualification. It could not have 
 been intended to give the Church Tribunals con- 
 current jurisdiction in all criminal cases. Burns 
 (vol. 2,50) says, ‘‘ there is not any maxim in the 
 law better established than that the Ecclesiastical 
 Court hath no cognisance and jurisdiction in cases of 
 treason or felony.” In Nash v. Nash (1 Cons., R. 
 141) Sir William Scott said, “certainly this Court 
 cannot inquire into a felony directly, even when the 
 clergyman is sued for the purpose of deprivation.” 
 
 An instructive judgment on this subject by Sir 
 W. Wynn is to be found in Harris v. Butler 
 (1 Cons., R. 663), from which it appears that where 
 an act is the subject of indictment at Common Law 
 direct proceedings in the Ecclesiastical Court will be 
 restrained by prohibition. There is a statute (4 
 James I., c. 5) against drunkenness, and in it is con- 
 tained an express saving of concurrent ecclesias- 
 tical jurisdiction, See also Searle’s Case (Hobart, 288). 
 And, accordingly, in the modern case of A v. B, 
 Clk. (11 Prob. D. 56), Lord Penzance refused to issue 
 letters of request and a citation against a clergyman 
 charged with sodomy. He said the issue of such a 
 citation must be subject to the condition that the 
 charge is one which is properly made in this (Kccle- 
 siastical) Court, and triable without previous convic- 
 tion in a Court of criminal jurisdiction. 
 
 All this is consistent with what is also settled 
 law, viz. that after conviction for felony, or any 
 other Common Law or statutory crime, proceedings 
 may be taken upon the conviction, and therefore 
 
26 SCANDAL. 
 
 indirectly for the crime itself in the Church Tribunals 
 (Hobart, 121). 
 
 The cases just referred to related to the jurisdic- 
 tion of the Ecclesiastical Courts of an Established 
 Church. It cannot, however, be doubted that the 
 principle of prohibition applies, @ fortior?, to the 
 tribunals of a voluntary institution; but the provi- 
 sion that the Court of the General Synod shall not 
 determine any question which in the opinion of the 
 lay judges is more fit for a civil tribunal is, 
 probably, an adequate safeguard against any con- 
 flict of jurisdictions. 
 
 When the offence charged against the clergyman 
 is of a purely ecclesiastical character, such as teach- 
 ing false doctrine, depraving the Prayer Book, viola- 
 tion of the law of the Church as to ritual, non- 
 residence or other neglect of duty, and matters not 
 within the scope of the Criminal Law of Ireland, 
 then, doubtless, the case is one for the direct and 
 exclusive cognisance of the Church Courts, and the 
 offence may be the subject of direct complaint and 
 punishment therefor. 
 
 But as we have seen, generally speaking in case 
 of crimes, the first investigation ought to be made in 
 the Criminal Court, and, then, after a conviction 
 there, proceedings should be taken in the Church 
 Tribunal not founded directly upon the crime, but 
 upon the conviction (which is conclusive), and for 
 the scandal and injury resulting to the Church from 
 the conviction. | 
 
 Borough v. Collins (15 Prob. Div. 81, Court of 
 Arches) was a suit against a clergyman, and the 
 articles alleged that he had been convicted before 
 justices of having been drunk and rioting ina public 
 place, and prayed that he might be punished for the 
 
CAUSE OF SUIT. 27 
 
 scandal caused thereby. The respondent pleaded as 
 a defence a denial that he had been drunk or riotous 
 or that scandal had been caused by his conviction. 
 The Court decided that the defence was bad and 
 could not be admitted. Lord Penzance gave a con- 
 sidered judgment :—‘‘ Has this Court the power, 
 and if the power, then, certainly, the duty, to 
 suspend or deprive a clergyman by reason of the 
 scandal resulting from his conviction for such an 
 offence as drunkenness in public? It is obvious 
 that such a conviction must degrade him in the eyes 
 of his parishioners and seriously impair the efficacy 
 of his spiritual advice,” ete. Ifa clergyman should 
 be convicted of an indictable offence by a Criminal 
 Court a power must exist somewhere of removing 
 him altogether from his spiritual functions, or of 
 withdrawing him from them for a time; and similar 
 reasoning applies, though in a less degree, perhaps, 
 to a conviction for drunkenness. If a power of this 
 kind resides anywhere it must reside, I think, in 
 this Court, and be exercised in the familiar forms of 
 suspensiou and deprivation. The case of Burder 
 (3 Curtis, 882) is a direct authority in point. 
 In Burder’s Case it was held that the Eccle- 
 siastical Tribunal had jurisdiction over Clerks in 
 Holy Orders for the purposes of suspension and de- 
 privation. Although, to a certain extent, that may 
 be punishment, still punishment is ‘‘not the object of 
 the proceeding. The object is to remove the party 
 from the office in which he has misconducted him- 
 self.” In such cases scandal is the evil to be ex- 
 tinguished by the prosecution—scandal arising from 
 evil report based on the immoral conduct of the 
 respondent, as in Burder’s Case; scandal arising 
 from a conviction of crime by a competent tribunal, 
 
28 SCANDAL. 
 
 as in Borough v. Collins ; for, as Lord Penzance says, 
 the principle is the same in both cases. 
 
 In Burder’s Case a previous conviction was not 
 alleged, nor was it averred in the case of Ross v. 
 M. D., Clk. (see Appendix C), in the Court of the 
 General Synod, January, 1894. The case was 
 heard on letters of request from the Diocesan Court 
 of Down, and the evidence and findings of fact 
 transmitted therewith. The Judges were the 
 Primate, the Archbishop of Dublin, the Bishop of 
 Clogher, Dr. Ball, Mr. Justice Harrison, Mr. Justice 
 Holmes, and Mr. Justice Gibson. The respondent 
 did not appear. The sentence was as follows :— 
 
 “The Court doth determine and adjudge upon the 
 evidence and findings aforesaid that the Rev. M. D. 
 committed the following offences :— 
 
 ‘1, That he was drunk on a Sunday in October, 
 1892, and also on divers other occasions within the 
 last two years within the parish of D. 
 
 ‘2. That he used indecent language in public in 
 October, 1892, and on divers other occasions within 
 the last two years, all at places within the said 
 parish. 
 
 ‘3, That he neglected the celebration in his 
 Church of Divine Service on two Sundays within 
 the last two years. 
 
 ‘And the Court doth further determine and 
 adjudge that the said offences are offences against 
 the Ecclesiastical Law of the Church of Ireland, 
 cognisable by the Ecclesiastical Tribunals of said 
 Church, and that the same are wilful violations of 
 the Canons of the said Church, and conduct unbe- 
 coming a clergyman of the said Church, and causing 
 scandal and of evil example to the people, and doth 
 pronounce and decree that, as a punishment for the 
 
PUNISHMENTS. 29 
 
 said offences numbered 1 and 2, the respondent be 
 and is hereby deprived of his office and benefice as 
 Incumbent of the said parish, and of all the emolu- 
 ments, benefit, and advantage appertaining thereto 
 or connected therewith.” The respondent  sub- 
 mitted to this order, and resigned his benefice, 
 and, therefore, it was not necessary to resort to any 
 Civil Court in aid of the order of the Court of the 
 Church of Ireland. 
 
 A similar sentence was pronounced in the case 
 of the Bishop of Rochester v. Harris (1893, Pro., 
 137-144) in England. 
 
 Section 55 provides that when an accused person 
 shall have been adjudged guilty of an offence cognis- 
 able by the Court, the Court shall proceed to pass 
 sentence. What sentence? What punishments can 
 the tribunal appoint? Section 52 enacts generally 
 that ‘‘it shall be lawful for the tribunals to award 
 the same or similar punishments for such offences as 
 under the laws in force at the passing of the Irish 
 Church Act the Ecclesiastical Courts were compe- 
 tent to decree in respect of the same or similar 
 offences, or such other punishments as are or shall 
 be provided or appointed by the Laws of the Church 
 of Ireland for the time being.” 
 
 Sections 56 and 57 provide that:—‘‘ The 
 Diocesan Court shall have power to pronounce 
 sentence of admonition or of suspension, a officio or 
 a beneficio, but not of deprivation or of deposition 
 from Holy Orders, and shall have power to inhibit 
 any person charged from the exercise of his office 
 pendente lite, or pending any appeal, and the Court 
 of the General Synod shall have power to pronounce 
 sentence of deprivation or of deposition from Holy 
 Orders.” 
 
80 PUNISHMENTS. 
 
 Sections 58 and 60 enact that all the tribunals 
 shall have power to order that a suspended 
 clergyman shall not reside in the glebe house, or 
 retain possession of the glebe lands during suspen- 
 sion, and that he shall deliver up all books, keys, 
 and other property held by him, in virtue of his 
 office, to the Churchwardens, or to such other person 
 or persons as the order may appoint to hold such 
 property for or on behalf of the Representative 
 Church Body, and that any moneys payable as 
 stipend to such clergyman shall be sequestered. 
 So far we have spoken of the clergy, but laymen 
 are also subject to the laws of the Church and the 
 jurisdiction of its tribunals; and section 64 provides 
 for the removal from office, such as membership of 
 the Representative Body, Church Committees, 
 Church Synods, the position of Churchwarden or 
 Vestryman, Chorister, Clerk or Sexton, etc., any 
 person who shall have been convicted and sentenced 
 for any crime, or fled from justice, or refused to 
 give evidence before the Courts. This matter is 
 also a subject of the 48th Canon, to be hereafter 
 considered. 
 
 This Chapter as to Ecclesiastical Tribunals con- 
 tains a provision for rehearing cases decided in the 
 Court of the General Synod (section 61). 
 
 A great variety of punishments fall within the 
 terms of the 52nd section. Some may be men- 
 tioned for illustration :—Sequestration, monition, 
 deprivation, degradation, removal from office, ex- 
 pulsion: from a glebe house, delivery up of keys, 
 books, and other property, held viriute offci ; 
 stoppage of payment of stipend out of Church 
 funds, inhibition from exercise of office, etc., ete. 
 Some of these punishments directly involve coercive 
 
WANT OF COERCIVE POWER. 31 
 
 powers, such as sequestration. The Act 27 & 28 
 Vict., c. 54, has been repealed, and no such writ can 
 be issued by the Church Tribunals. Others, such as 
 monition, degradation, removal from office, and 
 stoppage of stipend, do not necessarily involve coer- 
 cive powers; while others, such as deprivation, re- 
 moval from glebe, surrender of Church property, 
 can only be effected by the aid of the Civil Courts, 
 which will enforce the sentence of the Church 
 Tribunals on the same principles and in the same 
 manner in which the awards of arbitrators are en- 
 forced. After a sentence of deprivation an action 
 of ejectment might be brought for the glebe by the 
 Representative Body, and the sentence of the 
 Church Tribunal would be an answer to any equit- 
 able defence by the clergyman. So also a sentence 
 of deprivation would be a defence to any proceeding 
 by a clergyman for payment by the Representative 
 Body or any Church Trustee of the income of a 
 private endowment, or of a commuted annuity in 
 cases not within the proviso at the end of section 20 
 of the Irish Church Act, and an order for delivering 
 up of property might be enforced by a mandatory 
 injunction issued by a Civil Court. A matter which 
 occasionally arises may be taken as an illustration. 
 A clergyman holding an annuity under the Irish 
 Church Act does not perform his clerical duties 
 under such circumstances as protect him from for- 
 feiture: Is he liable, and can he be compelled, to 
 provide a stipend for a curate to supply his 
 deficiency ? The unrepealed Act, 5 Geo. IV., c. 91, 
 section 49, provides that whenever a clergyman 
 does not discharge his duty as incumbent of a 
 parish (whether from negligence, or bodily or mental 
 infirmity, or any other cause, is not material) the 
 
32 NEGLECT OF DUTY. 
 
 Bishop shall have power to appoint a curate and 
 fix a salary to be paid out of the incumbent’s 
 clerical income. The coercive proceeding to en- 
 force this, viz. sequestration, has been taken away 
 from the Church; but the Bishop is not helpless, 
 for proceedings may be taken against the Incum- 
 bent in the Civil Court to enforce the mutual 
 contract to observe this law of the Church. The 
 subject was considered in Graves’s Case, reported 
 in Bernard, 155, where Sir Edward Sullivan, 
 M.R., said :—‘“‘ If Graves was bound by the 
 Ecclesiastical Law to pay a curate, it is strange 
 to me if he cannot be compelled in the Temporal 
 Court to pay a curate.” Lawson, J., concurred in 
 this judgment. 
 
 The case of Grant v. Smith (Appendix C) and 
 others affords an occasion for further illustrations. 
 The petitioner complained of the erection of a cross 
 placed in a church behind the Communion table. 
 The respondents were the incumbent, curate, and 
 officers of the parish. The Court of the General 
 Synod declared that the cross in this position was a 
 violation of the constitutions and canons of the 
 Church. The Court did not order the removal of 
 the cross, probably upon the supposition that the 
 respondents would submit to the decision of the 
 supreme authority of their Church. 
 
 But suppose that the Court had directed the re- 
 moval of the cross. Well, the Court had no coer- 
 cive power to remove it. Would the decision of 
 the Court, therefore, be an unreal mockery? Not 
 so; under Chapter VIII., sec. 59, canon 48, dis- 
 obedience to the Order would have been an offence 
 punishable as regards the clergymen and laymen 
 respondents by deprivation, and Dr. Warren’s case 
 
DEPRIVATION—DEPOSITION. 33 
 
 is an authority that this sentence would be enforced 
 by the coercive jurisdiction of the Civil Courts. 
 The result of the judgment was that the respon- 
 dents did remove the cross from behind the table, 
 and placed it in another position which, however 
 unbecoming and uncatholic it may be, is not 
 obnoxious to any doctrine or law of the Church of 
 Ireland. 
 
 As to the punishment of deprivation, there are 
 two sorts, viz. @ beneficio and ab officio. The first 
 sort is when a minister is deprived of his living or 
 other profit of his ministry. The second is when 
 a minister is deprived of his Holy Orders, and 
 this sort is also called deposition and degradation. 
 A minister may be deprived of his living without 
 deposition, but deposition necessarily involves de- 
 privation of the living. 
 
 There is no doubt of the jurisdiction of the 
 Tribunals of the Church of Ireland to pronounce 
 a sentence of deprivation, whether of deprivation 
 simple or of deposition in cases in which the Tri- 
 bunal has jurisdiction to try the alleged offence : 
 and this punishment is authorised by the laws of 
 the Church for the offence. In every case, how- 
 ever, which involves the deposition of a clergyman 
 the concurrence of two of the bishops sitting as 
 Judges of the Court of the General Synod is 
 required. In the Statutes of the Church the words 
 ‘‘ deposition” and “ deprivation” are both used, the 
 latter, as it would seem, always in the sense a 
 beneficio. 
 
 What are the offences for which the Church 
 Tribunals can try clergymen and pronounce a sen- 
 tence of deprivation? In two cases the Church 
 
 Statutes expressly declare that the sentence of 
 D 
 
34 DEPRIVATION—DEPOSITION. 
 
 deprivation may be pronounced, and in both the 
 jurisdiction of the tribunals is clear ; one is disobe- 
 dience to any sentence or order of any Ecclesistical 
 Court (Chap. VIII. sect. 59); the second is the case 
 of any person holding any office in the Church who 
 shall wilfully contemn, neglect, or violate any of 
 the Canons, and shall have been more than once 
 duly convicted of such misconduct (Canon 48). As to 
 other offences in which these tribunals have jurisdic- 
 tion to try and pronounce deprivation, the inquiry 
 is, What were the cases under the laws in force at the 
 time of passing the Irish Church Act, in which the 
 Ecclesiastical Courts then existing, including the 
 Ecclesiastical Laws of England before the Union 
 (and not since repealed), were competent to decree 
 deprivation ? 
 
 Burns mentions numerous offences for which 
 the Ecclesiastical Courts could deprive a minister ; 
 amongst others are simony, conviction of treason, 
 murder, felony or perjury, infidelity, incontinence, 
 drunkenness, disobedience to the orders and consti- 
 tutions made for the government of the Church 
 (citing Cro. Jac. 87), non-residence, speaking or 
 preaching in derogation of the Book of Common 
 Prayer or any other rite or ceremony, and that 
 independently of statute (see Cawdrey’s Case, 5 Co. 
 59, and Candlish’s Case, Godbolt, 163), advisedly 
 and wilfully maintaining any doctrine contrary to 
 the Thirty-nine Articles, and when convicted before 
 the Bishop, ze. in the Diocesan Court, persisting 
 therein (see Stone’s Case, 1 Cons. R., 424). Further 
 information may be found in Phillimore’s ‘“‘ Kccle- 
 siastical Law,” vol. ii., 1895, in ‘‘ Stephens’ Laws of 
 the Clergy,” vol. i. 428, where the writer gives the 
 form of execution in olden time of a sentence of 
 
COSTS OF BISHOPS. 35 
 
 deposition. Cripp’s ‘Law of the Church and 
 Clergy,” 558, may be also consulted. 
 
 The Fifth Article of the Union must not be 
 forgotten, and its effect in extending to Ireland 
 the then existing ecclesiastical law of England, as 
 decided in the case of Campbell v. Hunt. 
 
 On the subject of costs in the Church Tribunals 
 the General Synod in 1894 resolved :-— 
 
 ‘“‘In cases of charges, not involving doctrine or 
 ritual, preferred under Chapter VIII. of the Consti- 
 tution, in which the petitioner shall be the Arch- 
 bishop or Bishop, the Standing Committee are 
 hereby authorized, if they shall so think fit, to make 
 provision by drawing on the Representative Church 
 Body, against the General Purposes Fund, for the 
 costs, in whole or in part, of the proceeding in the 
 Kcclesiastical Tribunals, or of any other legal pro- 
 ceedings consequent thereon. The Standing Com- 
 mittee to be at liberty to make Rules and Regulations 
 in reference hereto.” 
 
 In pursuance of this resolution the following 
 rules were made by the Standing Committee, and 
 adopted by the General Synod in 1895. viz. :— 
 
 ‘1. Applications under Resolution of 7th April, 
 1894, for payment of costs on account, may be made 
 either before proceedings commenced, or at any 
 time during the course of proceedings, or may be 
 made after definitive sentence for payment of the 
 costs, in whole or in part, of such proceedings. 
 
 ‘¢2. Such applications shall be made in writing, 
 signed by the Archbishop or Bishop, and accom- 
 panied by a statement, and a certificate of the 
 solicitor, if any be employed, of the charges, and of 
 
 the grounds on which they are made, and such 
 D2 
 
36 DEPRIVATION—DEPOSITION. 
 
 further documentary evidence as the Standing 
 Committee may require. 
 
 ‘© 3, Previous to payment of any Bill of Costs in 
 full the Standing Committee shall require such Bill 
 to be taxed, or to be moderated and certified by a 
 member or members of the Legal Committee. 
 
 ‘©4, All such applications shall be lodged with 
 the Secretary of the Standing Committee one clear 
 fortnight before any stated meeting of the Com- 
 mittee, and due notice thereof shall be given on the 
 Agenda Paper.” 
 
Crikes ~} 
 
 CHAPTER V. 
 CANONS OF THE CHURCH. 
 
 Te second Church Statute, which is specially conver- 
 sant with law, is Chapter IX., entitled ‘‘ Consti- 
 tutions and Canons Ecclesiastical.” (By order of 
 Synod, printed in the Book of Common Prayer.) 
 These Canons, with the exception of the disciplinary 
 Canons (Nos. 49 to 54 inclusive), were enacted by a 
 Statute of the General Synod in 1871, and again 
 enacted (with the special procedure required for 
 changes in Rubrics, &c., by Chap. L, sect. 27), and 
 including the disciplinary Canons, in 1877, and again 
 re-enacted in 1889. Sucha Statute may be regarded 
 as solemn and serious, and to treat or speak of these 
 Canons or any of them as “‘ obsolete, not to be taken 
 seriously,” is foolish, and does not become members 
 of the Church. 
 
 The general sanction of the Canons is to be found 
 in Canon 48, where we read :—‘‘ The General Synod 
 doth decree that if any person holding any office in 
 this Church shall wilfully contemn, neglect, or 
 violate any of the Canons thereof, and shall have 
 been duly convicted, he shall for the first offence be 
 admonished or suspended, and for a subsequent 
 offence admonished, suspended, or deprived of his 
 office according to the extent and nature of the 
 offence, with or without costs.” Note the universal 
 
38 CHURCH CATECHISM. 
 
 character of this clause; it applies to every member 
 of the Church, from a Lord Primate to a member of 
 a select vestry, and observe the grave character of 
 the punishments authorised up to deprivation. The 
 question whether the old Canons were binding upon 
 the clergy only, and not upon the laity, is only of 
 academic interest; for the new Canons, substituted for 
 the old, are expressly binding, as we have seen on all 
 members of the Church (1 Cons. Rep. 20). All 
 former canons are repealed, as Canons. It does not 
 follow that every practical rule or custom of the 
 Established Church, albeit founded upon an old 
 Canon, is now of no weight or obligation in cases 
 where the rule is not inconsistent with some new 
 Canon. 
 
 Canons 1 and 2, direct that the forms of Divine 
 Service prescribed in the Book of Common Prayer 
 and Administration of the Sacraments, and of consecrat- 
 ing and ordaining Bishops, Priests, and Deacons, and 
 no other shall be used. 
 
 It is notorious that in the Church of England 
 there are ministers who in the administration of the 
 Bread and Wine use to each communicant the first 
 clause only of the appointed words. ‘To this practice 
 Dr. Davidson, Bishop of Rochester, adverts in his 
 charge (October, 1894, page 76), and observes that 
 in so doing the Minister is ‘‘ not merely disobeying 
 the letter of the Prayer Book, but is disregarding 
 one of the most significant and important portions of 
 its history.” The Church Catechism, in which, as the 
 Bishop well says, we have the best compendium in 
 Christendom of our Divine Master’s teaching, declares 
 that this Sacrament was ordained ‘‘ by Christ in His 
 Church” ‘ for the continual remembrance of the sacri- 
 fice of the death of Christ and of the benefits which 
 
ORNAMENTS—COSTUME. 39 
 
 we receive thereby, and the same doctrine is reite- 
 rated in the Prayer of Consecration. Surely such 
 conduct is contumely of the Church and the Prayer 
 Book, and still more shocking is contempt of the words 
 of the High Priest used in his act of institution. 
 Against such misconduct these Canons afford all the 
 protection law could give. This is emphasised in 
 the fourth Canon: ‘All Ministers shall use and 
 observe the orders rites and ceremonies prescribed by 
 the Book of Common Prayer in administration of 
 the Sacraments, without either diminishing or adding 
 anything in the matter or form thereof, save as 
 hereinafter provided.” 
 
 Canon 4 may be termed the Ornaments Rubric 
 of the Church of Ireland. Its effect has been a 
 simplicity and uniformity of clerical costume, con- 
 trasting favourably with the schisms and litigation 
 on the subject of vestments which have distracted the 
 Church of England. Schism is used in this Paper, 
 as by St. Paul and the Church of Ireland, in the 
 sense of ‘‘ dissension” not ‘‘separation.” In Ireland 
 the white surplice is now worn by all ministers during 
 the whole of Divine Service, and the old-fashioned 
 ritualistic change of costume before and after the 
 sermon has been discontinued (on surplices cut short, 
 see Dean Stanley’s ‘ Institutes,” 166). 
 
 Canon 5 is, Of the ordering of Divine Service: 
 ‘Every Minister, at all times of his public minis- 
 tration of the Services of the Church, shall speak in 
 a distinct and audible voice, and so place himself 
 that the people may conveniently hearken unto what 
 is said, and in no case, when he is offering up Public 
 Prayer, shall his back be turned to the congrega- 
 tion. And every Minister when saying the Prayer 
 of Consecration in the Service prescribed for the 
 
40 POSITION OF MINISTER. 
 
 administration of the Lord’s Supper shall stand at 
 the north side of the table, &c.” 
 
 In the interpretation of Statutes it is an elemen- 
 tary principle (Heydon’s Case, 3 Rep. 7) that regard 
 is to be had to the evils intended to be removed. Now 
 the evils contemplated by this enactment were the 
 mumbling of prayers by the Minister in an indis- 
 tinct or inaudible voice, and the turning of the 
 Minister’s back to the people, especially at the 
 Lord’s Supper. One chief object of public worship 
 is, that the people and the Minister may unite in that 
 worship, which cannot be unless the people hear him 
 who speaks. Why is the use of the Latin language 
 in public worship prohibited ? Isnot the simple rule 
 of the Church of Ireland better than the modern 
 law of the Church of England which permits the 
 backward position, provided that the Minister takes 
 care, is intelligently careful, that the manual acts can 
 be seen by the communicants (Read v. Lincoln, Prob. 
 1891—9.) A Rubric of the Church of Ireland directs 
 the Minister to say the order in a distinct and audible 
 voice. 
 
 This Canon forbids the use of any hymn or 
 prayer in any public office unless prescribed in the 
 office or permitted by the ordinary or other lawful 
 authority of the Church. This excludes the use of 
 hymn books, with the exception of the Church 
 Hymnal sanctioned by the General Synod, unless 
 specially permitted by the ordinary upon whom the 
 responsibility is cast. The Canon proceeds :—‘‘ No 
 Minister. or other person during the time of Divine 
 Service shall make the sign of the Cross, save where 
 prescribed in the Rubric, nor shall he bow, or do any 
 other act of obeisance to the Lord’s Table, or anything 
 there or thereon; nor shall any bell be rung during 
 
UNLAWFUL PRACTICES—WOMEN. 41 
 
 the time of Divine Service. It shall be competent 
 for the ordinary to restrain and prohibit in the 
 conduct of Public Worship any practice not enjoined 
 in the Book of Common Prayer, or in any Rubric 
 or Canon enacted by lawful authority of the Church 
 of Ireland” (Read 2. Lincoln. 1891 Prob. 85). 
 
 The law applies to Ministers and laymen, to 
 men and women. For such forbidden crossings, 
 for such unlawful bows and courtesies, women as 
 well as lay members of the Church, are liable to be 
 summoned under Canon 48 before a Diocesan Court, 
 and, if convicted, censured with costs, and for a 
 second offence deprived of any office he or she may 
 hold in the Church. 
 
 Canon 9 enacts that no Minister shall refuse to 
 Christen any child either of whose parents is resi- 
 dent within his cure, or to bury any person who may 
 have died within his cure, or whose family may pos- 
 sess a burial place within the Church or Churchyard. 
 The law of burial will be considered in Chap. VII. 
 of this Essay. The 11th Canon relates to marriage, a 
 subject to be discussed in Chap. VUI. The 12th 
 Canon says that Sponsors in Baptism must be per- 
 sons of discreet age and members of the Church of 
 Ireland, or of a Church in communion therewith. 
 The 16th Canon, 1684 (1711) is repealed; therefore 
 parents according to the present law of the Church 
 may be admitted as Sponsors. 
 
 The subjects of Canons 26, 27, 28, and 29 are 
 the Residence of those to whom the cure of souls is 
 committed, and the compulsory appointment of 
 curates. Canon 26 states that according to the 
 order and practice of the best times it is ordained 
 that all to whom the cure of souls is committed 
 shall reside as near as may be to their cures—that 
 
42 RESIDENCE OF CLERGY. 
 
 is to say, in the house of residence, if there be one, 
 etc. The importance of residence is well put by 
 Dr. Davidson, Bishop of Rochester, when he says 
 (charge, 1894), a ‘‘ distinctive characteristic of our 
 National Church is the obligatory residence of her 
 clergy in the place, whatever it may be, where by night 
 and day they are most wanted.” This suggests the 
 propriety and duty of providing houses of residence 
 for all incumbents, whether in town or country, on 
 sites as near as possible to their churches, and the 
 central or most thickly populated districts of their 
 parishes. Parishes are not created for Ministers, 
 but Ministers for parishes. The coercive power 
 given to Bishops, by Canon 28, of appointing and 
 providing for the stipends of curates, when the 
 duties of a cure are not adequately performed, must 
 be read in connection with the elaborate provision 
 of the Imperial Statute 9 Geo. 4, ¢. 91, which, in 
 section 49, enacts that whenever it shall appear 
 to the satisfaction of any Bishop that by reason of 
 the distance of the residence of the spiritual person 
 serving the same from such Churches, or the negli- 
 gence, or mental or bodily infirmity, of the spiritual 
 persons holding the same, that the ecclesiastical 
 duties of such benefice are inadequately performed, 
 such Bishop may, by writing under his hand, re- 
 quire the spiritual person to nominate a fit person 
 with sufficient stipend to be licensed by him to per- 
 form or assist in performing such duties, and in 
 default of such nomination for three months, it shall 
 be lawful for such Bishop to appoint a curate with 
 such stipend as such Bishop shall think fit, not ex- 
 ceeding, &¢.; and an appeal is given from the 
 Bishop to the Archbishop. This is the Ecclesiastical 
 Law of the Church of Ireland, binding as by con- 
 
COMMUNION TABLE—NO ALTAR. 43 
 
 tract upon the clergy, and capable of being enforced, 
 if necessary, in Civil Courts. 
 
 The Canons 34, 35, and 36 contain regulations 
 as to the Communion Table. It must be a mov- 
 able table of wood—‘‘ an honest table.” There shall 
 not be lights on the table, except where necessary 
 for the purpose of giving light, and crosses upon 
 the table or wall, or other structure behind the 
 table are prohibited. The intention of these 
 Canons was of course to recognise the doctrine of 
 the Church of Ireland, and indeed of the Church 
 of England, and other reformed Churches, that 
 altars have no place in the visible Churches of 
 Christ. This doctrine of the Reformation is clearly 
 brought out by a comparison of the old Mass-books 
 and the first Prayer Book of Edward VI. with 
 his second Prayer Book and the present books of 
 the Churches of Ireland and England. ‘The inten- 
 tion of the law-makers was to prohibit everything 
 tending to change the character of the Supper 
 Table into a Sacrificial Altar; and the tribunals of 
 the Church will interpret these Canons according 
 to the words thereof, and if any case should arise 
 in which the sense of the words may seem ambi- 
 guous, then, according to the intention to be 
 gathered from the- historical comparison to which 
 I have alluded. There is nothing novel in the 
 principle, or indeed in the details, of these Canons. 
 The principle was established in Liddell ». Wester- 
 ton (Freemantle, R.117). The table must bea table 
 of wood and movable, and not stone or immov- 
 able, as decided in Faulkner v. Litchfield (1 Robert- 
 son, 1874), the celebrated stone altar case. A Canon 
 passed in Dublin in 1186, in opposition to an inno- 
 vating Anglo-Norman Archbishop, enacted that the 
 
44 LIGHTS—CROSSES. 
 
 Eucharist shall continue to be offered on wooden 
 tables in accordance with the usual custom of the 
 Church of Ireland. As to lights on the table, 
 Canon 35 follows the case of Martin v. Mackon- 
 chie (2 P. C. 365, and 4 Ad. and En. 279), one of 
 great authority, and other cases which declared 
 that such lights were unlawful; and this seems to 
 be still the law in England, for, although in Read 
 v. Bishop of Lincoln (1891, P. 9), the Archbishop 
 of Canterbury did not follow this decision, the 
 Court of Appeal (1892, App. 644), while affirming 
 the decision of the Archbishop, did so, not upon 
 the ground that they overruled Martin v. Mackon- 
 chie, or considered the lights in question were 
 lawful, but expressly upon the ground that the 
 Bishop was not personally responsible for their in- 
 troduction, and that the mere fact of his not having 
 objected to their introduction by another person 
 was not an ecclesiastical offence on his part. The 
 inference is that the Privy Council did not dis- 
 approve of the decision in Martin v. Mackonchie, 
 that it is unlawful for a Minister in England to 
 place lighted candles on the table when not required 
 for ight. Of course no question can be raised in 
 the Church of Ireland, having regard to the plain 
 words of the Canon passed by the General Synod, 
 but it is satisfactory to understand that the Canon 
 merely ratified the antecedent law of the Church. 
 Canon 86 relates to crosses upon or behind the 
 communion table. It would seem that in England 
 it is not lawful to place a cross on the table, or in 
 contact or connexion with it, when it is so placed 
 not as an ornament of the church, but with a ten- 
 dency to give the table the character of an altar: 
 compare Durst v. Masters (1 Prob. D. 123-173, 
 
CHANGES IN CHURCHES. 45 
 
 Moore, Special Report, 14 Moore, P. C. ©. 1) with 
 Liddell v. Westerton. In Durst v. Masters the 
 Court decided that a cross, not on the table, not in 
 contact with the table, not physically connected 
 with the table, but placed behind it on a structure, 
 viz. a wooden ledge, called a retable, was forbidden 
 by law. The construction of Canon 36 was fully 
 considered in the case of Grant v. Smith, heard in 
 the Court of the General Synod in 1892 (Appendix 
 C.), and explained in the judgment of Mr. Justice 
 Holmes. 
 
 Canons 38 and 39 prohibit the use of incense, 
 and regulate processions. 
 
 The 87th Canon gives directions upon the sub- 
 ject of the administration of the Lord’s Supper, 
 pointed against certain Ritualistic practices so called. 
 The observance of the directions as to the elevation 
 of the paten and cup may no doubt be evaded ; and 
 undoubtedly much must be left to the honesty, good 
 sense, and loyalty of Ministers. Precise definition 
 would seem to be impracticable. Many laws of the 
 Church depend for their profitable use on the honour 
 of her parochial Ministers, and the good sense and 
 firmness of ordinaries. 
 
 The 40th Canon treats of the Ornaments of the 
 Church :—‘‘ No change shall be made in the struc- 
 ture, ornaments, or monuments of any church 
 (whether by introduction, alteration, or removal) 
 unless with the consent of the Incumbent and Select 
 Vestry, and until an accurate description or design 
 of the proposed change shall have been approved of 
 by the Bishop or Ordinary: Provided always that 
 any person aggrieved by such proposed change, or 
 by the refusal of the Ordinary, Incumbent, or the 
 Select Vestry, shall have a right to appeal to the 
 
46 CHANGE IN A CHURCH. 
 
 Diocesan Court, which Court shall have full autho- 
 rity to hear and determine such appeal; and an 
 appeal from said Court shall in all cases lie to the 
 Court of the General Synod.” 
 
 It appears from the judgment of Mr. Justice 
 Holmes in Grant v. Smith, that there was a diffe- 
 rence of opinion between the members of the Court 
 on the question whether a faculty was necessary as 
 a condition precedent to making any change in the 
 structure, ornaments, or monuments of a church. 
 Mr. Justice Holmes says :——‘‘ There seems to be 
 abundant authority that before the passing of the 
 Irish Church Act, 1869, no such change could be 
 made except under a faculty.” Chapter VIII, s. 53, 
 of the Constitution enacts that bishops shall have 
 and use the same powers of granting faculties, &c., 
 which they had when the Church Act passed ; and 
 provision is made for appealing against the granting 
 or withholding a faculty, to the Church tribunals. 
 If this enactment stood alone it could hardly be 
 disputed that a faculty is still required in all cases 
 in which it was necessary before the Church was 
 disestablished. But this 40th Canon provides that 
 “no change shall be made in the structure, orna- 
 ments, or monuments of any church (whether by 
 introduction, alteration, or removal), unless with 
 the consent of the Incumbent and Select Vestry, 
 and until an accurate description or design of the 
 proposed change shall have been approved of by 
 the Bishop or Ordinary.” Then there follows a 
 right of appeal against either the proposed change, 
 or a refusal of any of the necessary consents, similar 
 to that given against the granting or withholding 
 of a faculty. Can it be said that the procedure 
 thus laid down is merely supplemental to a faculty ? 
 
FACULTY. 47 
 
 or is it substituted for a faculty in the cases to 
 which the Canon refers? A faculty is nothing more 
 than a licence given by the bishop, which does not 
 differ in substance, and hardly in form, from his 
 written approval. The conditions imposed by the 
 40th Canon are more stringent than those required 
 before granting a faculty, except as regards citation 
 or notice; and even in that respect it is probable 
 that the best mode of ensuring publicity is to require 
 the consent of the Select Vestry, as provided by the 
 Canon. On the other hand, the rules of procedure 
 which the General Synod has enacted in reference 
 to faculties appear to apply to cases where changes 
 are to be made in the structure or internal fittings 
 of a church; and the more the subject is considered, 
 the more difficult it is to reconcile the apparently 
 conflicting legislation. Under these circumstances, 
 it is not a matter of surprise that the members of 
 the Court differ in opinion; and while the majority, 
 consisting of the three ecclesiastical members, Mr. 
 Justice Murphy, and Mr. Justice Holmes, hold that 
 where the provisions of the 40th Canon have been 
 followed, no faculty is required, Mr. Justice Monroe 
 and Mr. Justice Gibson are of opinion that those 
 provisions are in addition to, and not in substitution 
 for, what the law of the Church had required before 
 the enactment. This matter does not seem to be 
 of great importance, inasmuch as a right of appeal 
 is given by the Canon to every person, including 
 every parishioner, aggrieved by the proposed 
 change. Figures are sometimes placed as orna- 
 ments in a church. In a recent English case 
 the Judge said:—‘‘ The test which governs the 
 legality, or otherwise, of figures in churches is, 
 whether they are free or not from the risk of being 
 
48 CANON 40—CONSTRUCTION. 
 
 abused by becoming the objects of adoration or 
 superstitious reverence.” (Case of Vicar of St. 
 John’s, 1895, P: 181.) 
 
 Unfortunately a further difference of opinion 
 upon the construction of Canon 40 appears from 
 the judgment in Grant v. Smith. Mr. Justice 
 Holmes says there is no doubt that in this case 
 the consent of the Incumbent and Select Vestry 
 was obtained; and that after a description had 
 been given in conversation to the Archbishop, fol- 
 lowed by an actual inspection by him, he gave 
 his oral approval to the cross being retained in the 
 position in which he saw it. The ecclesiastical 
 members of the Court consider this sufficient; the 
 lay members have come to a different conclusion. 
 They think the words ‘accurate description or 
 design of the proposed change,” must mean some 
 writing, drawing, delineation, or model, capable 
 of being preserved and subsequently referred to. 
 Suppose a mistake or failure of memory, or an 
 appeal without anything on record upon which, or 
 in reference to which, the appeal is taken. This is 
 amore serious matter, having regard to the grave 
 inconvenience likely to result from time to time 
 from the Canon, if the interpretation of the bishops 
 be correct, an inconvenience which could not arise 
 in the case of a faculty. It is possible that the 
 important subject of faculties may hereafter engage 
 the attention of the General Synod of the Church, 
 and if so, it may be proper that the expenses of 
 faculties should be considered and reduced. 
 
 The 48th Canon is entitled, ‘‘ The Authority of 
 the General Synod established,” and is quoted at 
 page 37. 
 
 Canons 49 to 54 regulate the admission and 
 
REFUSAL OF COMMUNION. 49 
 
 rejection of persons coming to the Lord’s Table. 
 The Rubrics prefixed to the order of administration 
 of the Lord’s Supper are not expressly repealed, and 
 the Rubrics and Canons must be read together ; 
 the latter will prevail when any inconsistency exists. 
 These Canons bind all members of the Church; and 
 when a minister in pursuance of the provisions 
 thereof shall not receive a member of the Church as 
 a communicant the member may appeal in the 
 manner provided by Canons 50 and 51, but he 
 cannot maintain an action against the minister in 
 the Civil Courts. The Civil Courts have no juris- 
 diction by way of appeal from the regular sentences 
 of the Church Tribunals pronounced in a contro- 
 versy between members of the Church (Dr. 
 Warren’s Case, ubi supra) As regards persons 
 not members of the Church of Ireland, it does not 
 appear that they can complain of refusal of the 
 Sacrament in a Church with which they are not con- 
 nected. ‘They cannot proceed in the Church Courts 
 because they are not members of the Church or sub- 
 ject to the authority of the General Synod, nor in 
 any Civil Court. Comyn says that an action on the 
 case will not le; and albeit the case of Clovell ». 
 Cardinal (1 Sid 34) was not an actual decision on 
 the point, still the authority of Comyn is sustained 
 by the fact that there is no reported case in the 
 Civil Courts in which such an action has been 
 successfully maintained. It is true that the English 
 Statute, 1 Edw. VI., c. 1, s. 8, was extended by the 
 Act of Union to Ireland, but it is subject to the 
 modification contained in the clauses and rubrics 
 enacted by the General Synod. An interesting 
 discussion on the general subject will be found in 
 
 Jenkins v. Cooke (1 P. D. 80), where a parson was 
 E 
 
50 DISCIPLINE. 
 
 condemned and admonished for his refusal to deliver 
 the elements to a parishioner who had denied the 
 personality of Satan, but was not “an open and 
 notorious evil liver.” The words of the Act 
 1 Edw. VI., are:—‘‘ The minister shall not without 
 lawful cawse denye the hollie Sacraments” (1 Stat. 
 Revised Ed., 530). 
 
 These Canons, called disciplinary, and the 
 Rubrics to the Order of the Lord’s Supper, constitute 
 the existing discipline of the Church. The forms 
 of absolution prescribed or recognised by the Church 
 of Ireland are not matters of disciplinary authority 
 exercised upon members of the Church, and the 
 Canons as the foundation of an existing discipline 
 of the Church are important, for it is not to be for- 
 gotten that in the second homily for Whit Sunday, 
 discipline with sound doctrine and the Sacraments 
 duly administered are given as the three marks of a 
 true Church; and to the same effect are the ‘ Cate- 
 chism ” of Edward VI., 1553; Noel’s ‘‘ Catechism,” 
 and Ridley’s ‘‘ Definition,” quoted in “ Browne on 
 the XX XIX. Articles,” p. 134. The First Rubric 
 directs intending communicants to give notice to 
 the curate. The neglect to give such notice does 
 not authorise the Minister to repel the communicant 
 (Stewart v. Crommelin, see report published by 
 Hodges and Smith, 1852; ‘‘ Stopford’s Handbook”). 
 
(eb 18%) 
 
 CHAPTER VI. 
 CONSTITUTION OF THE REPRESENTATIVE BODY. 
 
 THE title of the 10th Chapter of the Constitution 
 is:—‘‘ The Representative Body of the Church of 
 Ireland.” 
 
 This Body, in pursuance of the Irish Church 
 Act, 1869, sect. 22, was constituted and incorpo- 
 rated by Royal Charter, dated 19th October, 1870, 
 under the name of the Representative Church Body, 
 to represent the Church of Ireland, and to hold 
 property for any of the uses or purposes thereof, 
 and to hold lands to the extent provided in the 
 Act (see copy of Charter, ‘‘ Journal of Convention,” 
 page 69). 
 
 The constitution and powers of the Body are to 
 be found in the Charter and in this 10th Chapter of 
 the Constitution. The first ten sections of this 
 Statute relate to the constitution and election of the 
 Body; the 12th and 13th sections to its powers of in- 
 vestment; the 14th section to powers of leasing and 
 selling lands and houses; the 16th section declares 
 that the Representative Body shall possess and may 
 exercise such of the powers vested in the General 
 Synod as shall be by the General Synod from time 
 to time committed to it; and the 11th section pro- 
 vides that the Body shall hold all property which 
 
 E 2 
 
52 CONTROL OF SYNOD. 
 
 shall become vested in it in trust for such objects 
 and purposes, and in such manner, s0 far as law- 
 fully may be, as the General Convention may have 
 directed, or as the General Synod may have directed 
 or shall ordain and direct, and shall be subject to 
 the order and control of the General Synod in all 
 matters not provided for by the laws of the realm. 
 The effect of the qualifying words, ‘so far as law- 
 fully may be,” is a recognition of the superior obli- 
 gations of the Civil Law, and. specially the Law of 
 Trusts and Contracts, to any inconsistent directions 
 the Synod might give; and as trusts and contracts 
 are matters of civil right and jurisdiction, it follows 
 that any question of inconsistency should be referred 
 for solution and decision to the Civil Tribunals of 
 the land. This subject was considered by the Legal 
 Committee of the Representative Body in 1886. 
 The Right Hon. Dr. Ball, Mr. Pilkington, Q.C., 
 Sir Andrew Hart, and the writer were present, and 
 their opinion was as follows :— 
 
 “The Representative Body hold the property 
 vested in them upon the special trusts declared by 
 private donors and the general trusts of the Irish 
 Church Act. Subject to these trusts, it is the duty 
 of the Representative Body to administer their 
 property as the Synod shall direct. Their position 
 ss that of trustees, not bankers, and their first obli- 
 gation is to be satisfied that any particular adminis- 
 tration of the trust property is consistent with the 
 special or general trusts affecting the property, and 
 the second obligation is to carry out the orders of 
 the Synod when consistent with these trusts. It1is 
 their duty, as of other trustees, to act upon their 
 own responsibility and that of their legal advisers 
 whenever a question arises whether any proposed 
 
POWER TO HOLD LAND. 58 
 
 disposition is agreeable to, or inconsistent with, their 
 trusts. They cannot shift their responsibility upon 
 the Synod or any of its committees. If the Repre- 
 sentative Body violates its duty by doing what it 
 ought not to do, or by refusing to carry out lawful 
 directions, the remedy for their misconduct is to be 
 found in the Civil Courts.” 
 
 This subject, with special reference to the action 
 of the Body and the Tribunal competent to decide 
 such questions, was discusse1 at some length in a 
 pamphlet published by the present writer in 1892, 
 entitled :—‘‘ The Representative Body: its Property, 
 Power, Duties, and Conduct.” 
 
 The limited extent to which the Representative 
 Body were empowered to hold lands under the Irish 
 Church Act, 1869, and its Charter were extended 
 by the Imperial Statute 38 and 39 Vict. ch. 42. 
 Section 2 provides ‘‘ That it shall be lawful for the 
 Representative Body to invest all moneys vested in 
 them for that purpose in the absolute purchase or in 
 procuring leases or fee-farm grants, the lands so to 
 be purchased not to exceed thirty acres for each 
 glebe.” And section 8:—‘‘It shall be lawful for 
 the trustees of any real property held in trust for 
 the said Church or any congregation in connexion 
 therewith, or any person or persons in whom the 
 same may be vested, to grant to the said Represen- 
 tative Body, with their concurrence, such real 
 property, to be held upon such trusts and subject to 
 such rights as at the time of such grant affected the 
 same respectively, and the former trustees shall be 
 thereupon released from the trusts thereof respec 
 tively.” And section 4:—‘“‘ It shall be lawful for 
 any person entitled so to do to grant or devise 
 any hereditaments to the said Representative Body 
 
54 PROPERTY OF REPRESENTATIVE BODY. 
 
 for any church, glebe building, or schoolhouse in 
 connection with any congregation or church, pro- 
 vided always that not more than thirty acres shall 
 be held in trust for any congregation.” Under 
 the 3rd section; A benefactor may grant or devise 
 lands to trustees, diocesan trustees, or others, for 
 the use of the Church of Ireland, or any diocese or 
 parish, and then these trustees can divest them- 
 selves of the risks and trouble of management, and 
 vest the lands in the Representative Body with the 
 consent of that Body. Such consent is not with- 
 held without reasonable grounds. 
 
 The property held by the Representative Body 
 in trust for the Church consists of :— 
 
 1. The churches, burial grounds, and _school- 
 houses vested in the Body by the Church Commis- 
 sioners pursuant to the Irish Church Act. 
 
 2. See and glebe houses, and lands purchased 
 by the Body from the Church Commissioners. 
 
 3. Money received from the Commissioners on 
 account of the commutation of ecclesiastical life- 
 annuities, subject to payment of those annuities. 
 
 4. £500,000 received as compensation for private 
 endowments confiscated by the Act. 
 
 5. Gifts for the use of the disendowed Church of 
 property immovable and personal. 
 
 Particulars of all this property will be found in 
 the reports annually presented to the General 
 Synod. 
 
 The churches and schoolhouses were vested in 
 the Body, subject to life-interests, to hold for the 
 uses and purposes of the Church. It would appear 
 that they remain vested in that Body in trust 
 for the several parishes to be used. by the clergymen 
 
CHURCHES AND BURIAL GROUNDS. 55 
 
 who, from time to time, succeed to the incumbency 
 thereof by institution and induction—the clergy- 
 man occupying in law the position of caretaker as 
 regards the churches. 
 
 Burial grounds are discussed in the next Chapter 
 of this Essay. With reference to See and Glebe 
 houses and lands: they were purchased by the 
 Representative Body, and it was arranged that the 
 purchases should enure to the benefit of each par- 
 ticular diocese or parish. This arrangement is 
 carried out by the execution of leases from the Body 
 to the bishops and clergy on terms which give the 
 lessees the full benefit of the purchase. 
 
 “The management of glebes and parochial 
 buildings” is the subject of the Constitution 
 Chapter 13, with which is incorporated an elaborate 
 code of rules. The details of these rules are far too 
 voluminous to be discussed in this Essay, and the 
 clergy have the assistance, both as regards matters 
 of fact and law, of the Glebes Committee of the 
 Representative Body. At present there are some 
 thirty clergymen in occupation of glebes who have 
 refused or neglected to obey the statutes which 
 command such leases to be executed. 
 
( 56 ) 
 
 CHAPTER VII. 
 
 BURIAL GROUNDS AND BURIAL. 
 
 CuapTtrrR XII. of the Constitution is entitled, 
 ‘‘Management of Burial Grounds,” and is printed 
 in the Appendix. In considering this chapter 
 it is desirable to include some matters as to the 
 rights, powers, and duties of members of the Church 
 on the subject of burial, not strictly relating to the 
 management of burial grounds; but the discussion 
 will be limited to burial grounds vested in the Re- 
 presentative Body, excluding questions relating to 
 other burial grounds, such as private cemeteries, 
 and those vested in Boards of Guardians. 
 
 The Irish Church Act, 1869, section 12, vested 
 in the Church Commissioners all churches and 
 burial grounds appertaining to the Church of Ire- 
 land, subject to existing life interests therein; and 
 section 25 provided for the vesting by the Commis- 
 sioners in the Representative Body of all Churches 
 in use when the Act passed, sub-section 6 declaring 
 that no such vesting order shall affect the right of 
 any person or persons to any vault or other place 
 of burial within any Church or Ecclesiastical build- 
 ing, aud that every such Vesting Order shall be 
 deemed to be subject thereto, and to all such other 
 rights of sepulture therein as may be subsisting at 
 the date of such order. Section 26 enacted when 
 any Church vested in the Representative Body has 
 
BURIAL GROUNDS—SUBSISTING RIGHTS. 57 
 
 a burial ground annexed or adjacent thereto, but 
 not separated therefrom by any carriage highway, 
 or that has been granted by a private donor to, or 
 exclusively used by, the parishioners attending the 
 said Church, such burial ground shall be included 
 with the Church in the vesting order made by the 
 Commissioners, subject to any life estate or interest 
 therein, and shall pass to the said Representative 
 Body accordingly, but without prejudice to such 
 rights of, or in respect of, burial, as may be subsisting 
 therein, or may be thereafter declared to subsist 
 therein by Act of Parliament. Under vesting orders, 
 made by the Commissioners pursuant to these sec- 
 tions (25 and 26), all the churches and churchyards of 
 the Church of Ireland, with a few exceptions, are 
 now vested in the Representative Body, and as it 
 would appear for an estate in fee simple, subject to 
 the rights of burial subsisting therein when the 
 vesting orders were made. Subsisting rights mean 
 not merely the rights of individuals then in actual 
 possession of such rights, but includes also the 
 reversionary rights of the successors of those in 
 possession of such subsisting rights. In Morgan 2. 
 Smith (26 I.L.T. 135) Gibson, J., observed: ‘ At 
 Common Law the Churchyard is for the use, not 
 only of the present but of future generations” ; and 
 this observation applies both to section 26 and sub- 
 section 6 of section 25. These rights, preserved by 
 Act of Parliament, cannot be infringed or disturbed 
 by any ecclesiastical legislation. The rights of 
 persons to vaults, &c., in any church, and the rights 
 of parishioners and persons who die in any parish to 
 sepulture in the churchyard, whatever these rights 
 may have been when the vesting orders were made, 
 cannot be prejudiced except by an Act of Parliament. 
 
58 CARE OF BURIAL GROUNDS. 
 
 These rights are creatures of the Civil Law and not 
 part of the Ecclesiastical Law, which is made binding 
 as by contract upon all members of the Church, and 
 is subject to alteration at the will of the General 
 Synod. 
 
 From what has been said, it is obvious that 
 whenever a question shall arise touching vaults or 
 churchyards, the first question is whether the parti- 
 cular church or churchyard has been given to the 
 Representative Body by a vesting order. 
 
 The Church Statute, Chap. XII., sects. 1 and 2, 
 entrusts the care of burial grounds so vested in the 
 Representative Body, and also the care of any road 
 or avenue appropriated to any such burial ground, 
 to the Ministers (7.e. incumbents) and churchwardens 
 of the several churches to which the same are re- 
 spectively annexed, subject to the control of the 
 Representative Body. Section 1 providing further, 
 that the minister and church wardens may prevent 
 trespass or other unlawful use of, or interference 
 with, the same, and act on behalf of, and in the 
 name of, the Representative Body (the trustee and 
 owner of the legal estate in the burial grounds) in 
 any proceedings requisite for the purpose ; but the 
 minister and churchwardens are declared liable to 
 indemnify the Representative Body as regards all 
 costs and expenses, and the same are to be charged 
 to the account of the Parish, in case the Select 
 Vestry shall have approved of the proceedings. 
 Probably it will be held that under these provisions 
 the Represeutative Body may, in the former case, 
 set off a claim for indemnity against any money 
 payable by it to the ministers, and in the latter case 
 deduct the costs from any fund held by the Repre- 
 sentative Body in trust for the parish. 
 
RIGHTS OF SEPULTURE—PARISHIONER. 59 
 
 It is settled law that every parishioner and every 
 person dying in a parish has at Common Law a right 
 of decent sepulture in the churchyard or burial 
 ground of the parish. This was laid down in Rex 
 v. Coleridge (2 B. & Ald. 806), where the Court 
 suggested that a writ of mandamus might issue from 
 the Civil Court to compel the minister to bury a 
 body brought in the usual way. See also the Re- 
 presentative Body v. Neil and Marshall (26 I-Lals 
 419). Canon 9 declares that no Minister, due notice 
 having been given to him thereof, shall refuse or 
 decline to bury in such manner as is prescribed by 
 the Book of Common Prayer any person who may 
 have died within his cure. The Common Law gives 
 the right of decent burial, and the Canon the right 
 of a Church service; the former right is not limited 
 to members of the Church or to professors of Chris- 
 tianity, or affected by any special circumstances of 
 death ; the latter right, that of the service is a matter 
 of Ecclesiastical Law, and Civil Tribunals will not 
 interfere: Rex v. Coleridge, wb supra; Stephens’ Laws 
 of the Clergy, 188, 189. The Minister’s duty is to 
 obey the Rubric of the Revised Prayer Book of the 
 Church of Ireland as regards the service, both as 
 regards the persons to be buried, and the particular 
 form of service to be used. 
 
 The meaning of the word “parishioner” was con- 
 sidered in Etherington v. Wilson (1 Ch. Div., 160), 
 and was held to include an occupier of property 
 situated in the parish, and for which such occupier 
 was liable to be rated. Mellish, L.J., citing with 
 approval the definition of Lord Hardwicke in Att.- 
 Gen. v. Parker (3 Atk., 577), says: “‘‘ Parishioners’ is 
 a very large word and takes in not only inhabitants 
 of the parish, but persons who are occupiers of lands 
 
60 QUALIFICATIONS OF RIGHT. 
 
 that pay the several rates and duties, though they 
 are not resident nor do contribute to the ornaments 
 of the Church.” 
 
 There are numerous qualifications of this common 
 law right of burial :— 
 
 1. Notice must be given. Canon 9 says: ‘ Pro- 
 vided that twelve hours notice shall have been given 
 to the Minister beforehand, and the burial cannot 
 be required during the stated hours of divine service.” 
 Doubtless, the Civil Courts would recognise the 
 reasonableness of these regulations, andin C. R. B. v. 
 Lowry (27 I. L. T. 40) it was so decided. 
 
 2. Those who bring the body to be buried cannot 
 require its burial in any particular part of the church- 
 yard, even though that place had been marked out 
 by the deceased in his lifetime: R. C. B. v. Neil 
 (261. L. T. 419). The Minister and Churchwardens 
 may exercise their discretion upon that subject (see 
 section 5 of the Church Statute), nor is there any 
 legal right to the exclusive appropriation of a place 
 of sepulture without a faculty, or a proscription which 
 implies a faculty : per Gibson, J. 
 
 3. Burial in iron or other metal coffins is not of 
 common right. It is a matter to be arranged with 
 the Minister and Churchwardens. 
 
 In R. B. v. M‘Clelland & Auld (28 I. L. T. 40), 
 Johnson, J., decided that the Rector and Church- 
 wardens had a joint right to designate the place of 
 sepulture. The Incumbent alone has no such right. 
 In the case of non-parishioners not dying in the 
 parish, the joint sanction must be obtained. 
 
 4. It has not been decided that the common law 
 right of burial extends to cremated remains. 
 
 5. It is not only the right, but the duty of the 
 Minister and Churchwardens to insist on decency of 
 
MONUMENTS—RAILINGS. 61 
 
 interment; to forbid disturbance of the remains otf 
 the dead; not to permit graves which are known to 
 be full to be re-opened ; and to require new graves 
 to be dug a proper depth, or to be sufficiently covered 
 with earth. 
 
 6. This Common Law right to deposit the corpse 
 in the ground does not carry with it any right to 
 cover the ground with a monumental stone, or to 
 erect a headstone or enclose the ground by railings. 
 Such matters (I do not refer to cases in which facul- 
 ties have been given) are as much matters of 
 Ecclesiastical cognisance as the prayers used in the 
 service. 
 
 Morgan v. Smith (26 I. L. T. 185) decided that 
 a “right of or in respect of burial” (Irish Church 
 Act, 1869, sect. 26) does not include a right to place 
 a railing round a grave without procuring the proper 
 sanction, and paying the prescribed fee. 
 
 In giving judgment, Gibson, J., said: ‘“ The 
 process in this case was brought by the Rector and 
 Churchwardens of Larne against the defendants, to 
 recover certain fees alleged to be due in respect of a 
 railing erected by the defendants in Larne Church- 
 yard. By amendment, the Representative Church 
 Body were added plaintiffs, and an alternative 
 cause of action for trespass was joined. The 
 question in the case is, whether the Irish Church 
 Statute of 1889 (chap. 18, sect. 9) is valid. The 
 statute referred to enables the Minister and Church- 
 wardens to permit the erection of monuments and 
 railings about graves, and to charge such fees for 
 the erection of the same as the Select Vestry, with 
 the consent of the Diocesan Council, shall appoint. 
 Counsel, on behalf of the defendants, insisted that 
 
62 VAULTS. 
 
 the fee charged in pursuance of that statute could 
 not be enforced, contending: (1) that the statute 
 purporting to impose such a charge was wiltra vires 
 and illegal; (2) that the charge imposed, in pur- 
 suance of the statute, was unreasonable and exces- 
 sive. The charge seems to me reasonable in amount. 
 Much higher fees have been sanctioned in reported 
 cases. The substantial question is, whether the 
 Statute is authorised by section 26 of the Irish 
 Church Act, 1869, which declares that the church- 
 yard is to be vested in the Representative Body, 
 ‘without prejudice to such rights of, or in respect 
 of, burial as may be subsisting therein, or may be 
 thereafter declared to subsist therein by any Act of 
 Parliament.’ On behalf of defendants it was con- 
 tended that at Common Law, in the absence of 
 custom or prescription, no fee could be charged for 
 the erection of a monument or railing, just as no fee 
 could (in the absence of custom) be charged for 
 burial itself; and the decision of Lawson, J., in War- 
 nock’s Case (20 I. L. T. 28), in favour of the legality 
 of the charge, was challenged, as being contrary to 
 authority. I reserved my decision in order to look 
 carefully into the law and cases on the subject. 
 At Common Law the churchyard is for the use, not 
 only of the present, but of future generations, and 
 hence can only be temporarily appropriated for 
 the period of the dissolution of the body. In the 
 absence of a faculty a brick grave or vault is there- 
 fore a usurpation upon the interests and rights of 
 the community (Gilbert v. Buzzard, 2 Hag. 333; 
 S. C., 3 Phillimore, 335). So a special fee may be 
 imposed for interments where iron coffins are used. 
 It is for the parson ‘ (qr. now, and Churchwardens)’ 
 to decide in what part of the churchyard the burial 
 
FEES—VAULTS—RAILINGS. 63 
 
 is to take place (Ez parte Blackmore, 1 B. & Ad. 122). 
 A monument cannot be erected without the leave of 
 the Rector or a faculty. The Rector has an interest 
 in the churchyard; and the requirements of unifor- 
 mity and free access to different parts of the yard 
 (Bardin v. Calcott, 1 Hagg. Ap. 18), as well as the 
 danger of the churchyard being prematurely ex- 
 hausted by undue appropriations (R. v. Coleridge, 
 2B. & Ald. 806: Judgment of Best, J.), make it 
 essential that the erection of monument railings 
 should be under control. If the leave of the clergy- 
 man is necessary, asI think it is, it would seem that 
 he might require a reasonable fee for giving his 
 consent (Maidman v. Malpas, 1 Cons. R. 205; Dean v. 
 Exeter, 1 Salkeld, 334). The statement in Burns’ 
 ‘«‘ Keclesiastical Law,” followed by Stephens, is in 
 favour of the legality of a fee; and in Warnock’s 
 Case, the point was expressly decided by Lawson, J., 
 whose opinion in this branch of law is entitled to 
 peculiar respect. In my opinion, at Common Law 
 the defendants had no right to erect any monument 
 or railing without procuring the proper sanction, and 
 paying the prescribed fee (ifany). The Irish Church 
 Act gave them no such right. I may add _ that, 
 even if no fee could be charged, the defendants 
 committed trespass in putting up a railing without 
 lawful authority.” 
 
 It would seem that, under the Statute of the 
 Synod, the Incumbent and Churchwardens now repre- 
 sent the Rector (R. B. v. M‘Clelland, 28 I. L. T. 40). 
 
 Chapter XII., section 3, provides that where, by 
 faculty or prescriptions the members of a family 
 have acquired a right to be buried in a particular 
 place in any such burial-ground as aforesaid, such 
 right shall, in conformity with the provisions in that 
 
64 USER BY FAMILY. 
 
 behalf of the Irish Church Act, 1869, be acknow- 
 ledged, and effect shall be given to the same by the 
 Minister and Churchwardens charged with the care 
 of the churchyard; and section 4 declares that, 
 when members of a family have been buried in a 
 particular place, although it may have occurred not 
 in the exercise of a right, the Minister and Church- 
 wardens shall nevertheless guard against interfering 
 with the use of such place unless on the ground of 
 imperative public convenience or necessity ; and 
 section 5 declares that, except in a case in which 
 such right or user exists, the Minister and Church- 
 wardens shall determine the place of sepulture. 
 
 In a newspaper report of the case of Killindrey 
 Graveyard, recently heard before his Honour 
 Judge Roche, the learned judge is stated to have 
 said, speaking of the fourth section of this chapter, 
 ‘Tt seems merely to deal with the user by a family 
 of a particular burial place, and to refer to mem- 
 bers of a family as the class entitled to exercise 
 the quasi right, irrespective of the place of death, 
 or of the fact of those people being or not being 
 parishioners; the Statute is very cautiously worded, 
 but it seems to me to ereate in members of such 
 families a new right subject to the control of the 
 Minister and Churchwardens, to be exercised in 
 case, in their opinion, considerations of imperative 
 public convenience or necessity require it.” An 
 appeal was not taken from a decision founded on 
 this judgment; but the question admits of further 
 discussion in a Superior Court, and it seems doubt- 
 ful whether this Church Statute creates any legal 
 rights in favour of persons who are not members of 
 the Church, or gives to members of the Church who, 
 not being parishioners or dying in the parish, have 
 
PUBLIC HEALTH ACT. 65 
 
 no legal right of burial anywhere in the burial 
 ground or legal right of burial in a particular 
 place therein. 
 
 The Public Health (Ireland) Act, 1878, s. 170, 
 enacts :—‘‘ When, by usage or otherwise, any grave 
 
 .. or place of interment in any burial ground has 
 been the burying place of, and used as such by, any 
 family, no corpse of any person not having been a 
 member of such family shall be buried in such grave 
 or place of interment without the consent, in writing, 
 of some immediate relative of the member of such 
 family last interred therein.” This Statute does 
 not interpret the word family. 
 
 As regards faculties, Chapter VIII. of the Consti- 
 tution, sect. 53, provides:—‘‘ The Archbishops and 
 Bishops shall have and use all the same powers of 
 eranting faculties which they had and used at the 
 time of the passing of the ‘ Irish Church Act, 1869.’ 
 Provided that every person considering himself 
 agerieved by the granting or withholding of any 
 faculty (except in the case of the granting or 
 withholding of a faculty for ordination) may appeal 
 to the Court of the General Synod; and, provided 
 that previous to the bringing of any snch appeal, 
 the party considering himself aggrieved shall be 
 entitled to have his case heard and adjudicated 
 upon in the Diocesan Court, which Court shall have 
 power to hear and determine same.” 
 
 When a faculty has been granted to a man 
 and his family, the word ‘ family” seems equi- 
 valent to descendants, and applies to bodies of 
 a member of a family which had ceased to be 
 parishioners: Rugg v. Kings-Mill (2 Pri. C. 59), 
 A faculty may be granted to a person who is not 
 a parishioner: Bardon v. Calcutt (1 Cons. R. 17). 
 
 F 
 
66 FACULTIES—REPAIR OF VAULTS. 
 
 Vaults, &c., must be kept in repair by the family, 
 it is not the duty of the Vestry to keep private 
 vaults in repair. When a vault is in a dilapidated 
 condition, and the family will not repair, it should 
 be levelled to the ground and filled up, memorial 
 slabs being preserved : St. Botolph’s Case (H. 1892, 
 BaLTos43. 
 
 The nature of faculties in relation to burial is 
 much discussed in a second case of St. Botolph 
 (1892, p. 167). The Judge says (p. 167):—“* No 
 alteration can lawfully be made in any church or 
 churchyard unless sanctioned by a faculty.” (Com- 
 pare, however, as regards Ireland, Canon 40). “ It 
 ig sometimes erroneously supposed that the owner 
 of a family vault in a church or churchyard has a 
 frechold interest in it. But this can only happen 
 when a vault is in a private chapel or private aisle, 
 the fee of which is in the owner of the chapel or 
 aisle. For the fee of the church or churchyard is 
 by law in perpetual abeyance, whilst the freehold 
 of the chancel is vested in the rector, and of the 
 church and churchyard in the incumbent, but in 
 both cases for the use of the parishioners.” In 
 Ireland the fee and freehold of all the church and 
 of the churchyard is vested in the Representative 
 Body. “The joint control of the church and chancel 
 and of the churchyard” (speaking of England) ‘1s 
 vested in the Chancellor as ordinary for this purpose. 
 It is by virtue of this control that chancellozs 
 formerly granted faculties for vaults in churches or 
 churchyards, and latterly in churchyards only, but 
 in every such faculty there is a reservation of the 
 jurisdiction of the Court—what is really granted by 
 the faculty is the use of the ground for a vault so 
 long as it is not required for the general use of the 
 
DEVOLUTION OF FACULTY. 67 
 
 parishioners; and when it is so required, by the 
 practice of the ecclesiastical Courts, the owner of the 
 vault is entitled to have it removed to another site 
 in the churchyard at the cost of the applicant for the 
 faculty.” 
 
 In Hickey v. Sullivan (28 I. L. T. 156) the judg- 
 ment of Gibson, J., contains an important reading 
 on the law of faculties in connection with burial 
 grounds. The learned Judge said :—‘‘ A cemetery 
 such as this is, at Common Law, the common property 
 of all in the parish, and exclusive appropriation is 
 an encroachment on the rights of the parishioners 
 which can only be justified by a faculty or a pre- 
 scription which supposes a faculty, to establish 
 which very cogent evidence is required. Such 
 appropriation is to some extent analogous to that of 
 a pew, the law as to which has been recently laid 
 down by the House of Lords in Halliday v. Phillips 
 (1891, A. C. 228). Here prescription or faculty 
 annexing the right to an ancient messuage is out of 
 the question, as the plaintiff had no such messuage. 
 Whether a faculty creating a descendible title in 
 gross enforceable in a Court of Common Law can be 
 granted at common law in respect of a grave-space 
 in a churchyard is a matter of some doubt: Main- 
 waring v. Giles (5 B. and Ad., 361). In Magnay ». 
 St. Michael (1 Hag., 48), on an unopposed motion, 
 the Dean of Arches no doubt allowed a faculty 
 setting apart a vault near a chancel for the use of 
 M. and his family for ever, so long as they should 
 continue parishioners and inhabitants. How such a 
 faculty would be deemed to descend and enure at 
 law has not been the subject of decision. In Harris v. 
 Drewe (2 B. and Ad. 164) a somewhat similar 
 
 faculty was deemed to be attached to occupation. 
 F2 
 
68 POWER OF REPRESENTATIVE BODY. 
 
 But could a lost faculty be presumed at all? Such 
 a faculty, as in Magnay’s Case, could only be proved 
 by the clearest evidence, and could not be presumed 
 from mere user. A faculty is a judicial act after 
 due notice to all interested. One of the matters 
 always considered is the status of the applicant and 
 his property in the parish. In this case the plaintiff 
 is a labourer without property, and the evidence is 
 quite insufficient to establish any grant of any 
 faculty in derogation of the rights of other 
 parishioners.” 
 
 As the fee-simple of churchyards is now vested 
 in the Representative Body, this corporation might 
 make a grant good at law of a site for a vault, but 
 the Church Body is a trustee for the parishioners, and 
 would probably be guilty of a breach of trust if it 
 were to make such a grant, or in any way interfere 
 with the legal rights of the parishioners without the 
 sanction of a faculty, and it would seem safe and 
 proper to continue the old practice and to rest the 
 rights to vaults upon the right of user confirmed by 
 a faculty. The Representative Body are indeed 
 legal owners, but, as has been said, they hold in trust 
 for the parishioners whose rights and interests are 
 placed for safe keeping in the custody of the 
 Ecclesiastical Court: Adlam v. Colthurst (2 Ad. and 
 E. C., 30, 38). Numerous modern cases have been 
 decided in the English Courts upon the subject of 
 faculties for burial. In Re Kerr (1894, P., p. 287) it 
 was said that cremated remains cannot be lawfully 
 interred in or under a church without a faculty. 
 
 The 6th section of Chapter XII. directs that no 
 corpse shall be buried within twelve feet of the 
 church fabric except in a vault as mentioned, and 
 the 7th section enacts that no corpse shall be 
 
FACULTY TO REMOVE REMAINS. 69 
 
 disinterred or removed except on a warrant from 
 the coroner or other authorised officer, or by the 
 authority of a faculty from the Bishop’s Court. In 
 the case of St. Michael Bassinshaw (1893, P., p. 233) 
 an order in Council had been made for the removal 
 and reinterment of human remains, and it was held 
 that this was not inconsistent with the Court of the 
 Ordinary possessing exclusive jurisdiction to authorise 
 the removal and reinterment of remains buried in 
 consecrated burial places or vaults in consecrated 
 ground; and a faculty was decreed, on the applica- 
 tion of the Rector and Churchwardens, giving 
 authority for the removal and reinterment of the 
 remains, but confining the reinterments to a place of 
 burial to be specified in such faculty, and containing 
 provisoes as to the mode in which the same should 
 be carried out, and for safeguarding the interests of 
 the relatives of the persons whose remains were 
 proved to have been buried beneath the church. 
 “The Court being of opinion that the order in 
 Council cannot lawfully be carried out without the 
 authority of a faculty, inasmuch as it involves inter- 
 ference with the fabrics and fittings of the church, 
 interference with faculty vaults secured to families 
 by decrees of the Court, and the disturbal and 
 removal of remains deposited in consecrated ground.” 
 The whole of this judgment will repay perusal. 
 This case followed that of St. Mary at Hill (1893, 
 p. 895), where a faculty was decreed directing the 
 Churchwardens to do what was required to be done 
 by the Order in Council, with provisions inserted for 
 the safeguard of the fabric of the church, and for 
 authorising the families of any person buried in the 
 vaults to remove the remains of their relatives to 
 any consecrated burial ground they might select. 
 
70 GRAVEDIGGER’S FEE. 
 
 Sections 8, 9, 10, and 11 are conversant with 
 the subject of fees; section 8 providing that “ The 
 Select Vestry of the Church to which the burial 
 eround is annexed shall appoint a gravedigger, who 
 shall be entitled to such reasonable fee as the Select 
 Vestry may appoint for digging a grave, unless the 
 same be otherwise provided for, with the consent of 
 the Select Vestry ”; and section 9, declaring that 
 ‘‘The Minister and Churchwardens shall have 
 power to permit headstones, flatstones, railings, 
 and vaults to be erected and made; and shall be 
 entitled to charge such fees for the erection of 
 the same, and for burial in such vaults, and in 
 those already made, and in graves, respectively, as 
 the Select Vestry shall appoint, with the consent 
 of the Diocesan Council, the provision for pay- 
 ment of the official gravedigger seems legitimate.” 
 Formerly the Incumbent had a right to appoint a 
 eravedigger, and the so-called fee is not properly 
 speaking a fee: it 1s a quantum meruit for necessary 
 work and service. It would not be reasonable to 
 allow the work to be entrusted to strangers unskilled 
 in gravedigging, and careless of the preservation of 
 the churchyards and the sanctity of adjacent graves ; 
 the gravedigger is to retain the payment for his 
 own use. The fees mentioned in section 9 seem to 
 be legal, with one exception. Can the Minister and 
 Churchwardens charge fees as of right for mere 
 burial in a grave of persons haying that right at law ? 
 There may be a prescription, or immemorial custom, 
 which, if proved to exist, would authorise the charge, 
 but in the absence of such a qualification of the 
 Common Law right of burial, it is not legal to 
 demand a fee for simple burial in a grave. To this 
 effect is the careful judgment of Holmes, J., in 
 
FEES IN BURIAL GROUNDS. {i} 
 
 C. R. B. v. Neil and Marshall (26 I. L. T., 419); 
 and, therefore, so far as section 9 seems to authorise 
 a claim for such fees in the absence of prescription, 
 the legislation of the General Synod would appear 
 to be ultra vires and ought not to be acted upon by 
 Ministers or Churchwardens. 
 
 Fees may be claimed for the burial of bodies of 
 those who are not parishioners, and have not died 
 in the parish, in the absence of special rights of 
 faculty. When a particular place of sepulture 1s 
 desired, notice of the proposed place should be 
 given both to the Minister and the Churchwardens. 
 This notice is distinct from that mentioned in 
 Canon 9. 
 
 Section 9 further provides: ‘“‘ That no inscrip- 
 tions be allowed upon such erections, #.e. headstones, 
 flatstones, and vaults, unless previously approved 
 of by the Minister, with an appeal to the Ordinary.” 
 This section vests in the Minister, in the first in- 
 stance, the power to prohibit any inscription he 
 may think proper. An appeal lies against a refusal 
 to the Ordinary, who will decide the matter upon 
 the principles of judicial discretion, determining 
 whether the proposed inscription is or is not in 
 harmony with the doctrines and formularies of the 
 Church of Ireland. 
 
 There are cases in the books on the subject of 
 proper and improper inscriptions ; amongst others 
 Kent v. Smith (1 P. D., 73), Egerton v. Auld of Odd 
 Rode (1894, P., 15). These were cases on facul- 
 ties, but it seems doubtful whether the conclusion 
 of section 9, giving the primary right of objection 
 to the Minister, does not supersede the proceeding 
 by faculty in relation to inscriptions on headstones, 
 flatstones, and vaults outside the Church. In 
 
72 INSCRIPTIONS. 
 
 Egerton v. Auld, it was decided that the Ordinary 
 ought not in his discretion to sanction the intro- 
 duction into a Church of any inscription of which 
 the words ‘‘Of your charity, pray for the soul of 
 H. F., deceased, and for the soul of J. H. C, 
 deceased,” would form a part. 
 
 Stopford, citing Breeks v. Woolfrey (Curt. 880, 
 p- 254), says: ‘‘ Before giving leave for erecting a 
 tombstone, a clergyman should always ask for a 
 copy of the inscription, because if he should give 
 permission, and the inscription should afterwards 
 appear objectionable, he cannot then remove it 
 without great cost and trouble in procuring a 
 faculty.” 
 
 The appeal to the Diocesan Court, given by 
 sect. 13, is limited to the cases of persons aggrieved 
 by a refusal, e.g. a refusal by a Minister to permit 
 an inscription on a headstone. Suppose a case in 
 which the Minister consented to an inscription which 
 the Churchwardens, Parishioners, or Ordinary con- 
 sidered objectionable, isthere a remedy ? Probably 
 a faculty might be obtained for its removal, if it 
 was Improper. 
 
 On the subject of burials, the 54th Canon pro- 
 vides: ‘‘ Every Rector, Vicar, Incumbent, or Curate, 
 who shall have the keeping for the time being of 
 any Register Books of Baptism, of Marriages, or of 
 Burials, shall at all reasonable times, on demand, 
 make search in any Register Book in his keeping, 
 and shall give a copy certified under his hand, of 
 any entry or entries in the same, on payment of 
 the fee hereinafter mentioned: that is to say, for 
 every search extending over a period not more than 
 one year, the sum of One Shilling, and Sixpence 
 additional for every additional year.” 
 
SECULAR USE OF CONSECRATED GROUND. 173 
 
 An observation must be added upon the subject 
 of churchyards and faculties. 
 
 In two modern cases the Chancellor of London 
 granted faculties authorising the appropriation of 
 part of a consecrated churchyard to the widening 
 of a street, and the construction of underground 
 chambers with the removal of human remains: St. 
 Botolph’s Case (1892, p. 161); St. Nicholas’ Case 
 (1893, p. 58); but in a still more recent case the 
 Chancellor of Rochester decided that the Ecclesias- 
 tical Court had no jurisdiction to grant a faculty 
 for the appropriation of consecrated ground to any 
 secular use: Plumstead Case (1895, p. 225). The 
 Chancellor of Rochester’s judgment. was mainly 
 based upon the cases of Harper v. Forbes, before 
 Dr. Lushington (5 Jur. N. 8. 275); and Reg. v. Twiss 
 (L. R. 4 Q. B. 407), where Cockburn, C. J., said: 
 ‘“‘T do not hesitate to express a very decided opinion 
 that, when ground is once consecrated and dedicated 
 to sacred purposes, no judge has power to grant a 
 faculty to sanction the use of it for secular purposes, 
 and that nothing short of an Act of Parliament can 
 divest consecrated ground of its sacred character.” 
 Whether the Ivish Church Courts will adopt the 
 opinion of Cockburn, C. J., and if so, whether 
 the General Synod has a power corresponding 
 to that of Parliament, remains to be decided. 
 
(TAN) 
 
 CHAPTER VILE 
 MARRIAGE. 
 
 MarRIAGE requires a separate chapter. The discus- 
 sion will be limited to the rights and duties of 
 members of the Church of Ireland in relation to 
 marriage, and will not include the consideration of 
 the civil law as to the validity or nullity of 
 marriages, or the dissolution of marriage in certain 
 cases, the judicial separation of married persons 
 or the restitution of conjugal rights, all of which 
 are matters for the exclusive jurisdiction of 
 Parliament and the temporal Courts of the United 
 Kingdom, and in which the tribunals of the dis- 
 established Church or its Synods have no authority 
 to interfere. 
 
 The Eleventh Canon directs that no clergyman 
 shall solemnise marriage between parties who are 
 within the prohibited degrees of consanguinity or 
 affinity. This is simply negative and declaratory 
 of ancient Ecclesiastical Law, and there does not 
 appear to be any affirmative Canon or other law 
 passed by the General Synod commanding Ministers 
 of the Church to solemnise marriage in any case. 
 
 What, then, are the legal rights and legal duties 
 of members of the Church of Ireland, clerical and 
 lay, as regards the solemnization of marriage under 
 the civil law of the land and the Ecclesiastical Law 
 
MARRIAGE ACT, 1870. 75 
 
 of Ireland, as it existed on the 1st of January 1871, 
 so far as this old Ecclesiastical Law has not been 
 altered upon the subject by the General Synod or 
 subsequent Civil Law? This Ecclesiastical Law is 
 legally binding, as by contract, on all members of 
 the Church, but is of no force save as between 
 members of the Church. The Civil Law is, of 
 course, obligatory upon all subjects of the Crown, 
 including members of the Church of Ireland. 
 
 The Act of Disestablishment was passed on the 
 26th July, 1869; and on 10th August, 1870, the 
 Imperial Legislature passed an Act “to amend the 
 law relating to marriages in Ireland.” ‘This Act 
 applies to Ireland only. The Statute after provid- 
 ing for the solemnization of marriages between 
 Protestant Episcopalians, 7. e. members of the 
 Church of Ireland, in the Churches mentioned 
 in section 32 (é.e., 1, churches and chapels in which 
 theretofore such marriages might be solemnized, 
 and in which Divine Service should continue to be 
 performed; and, 2, churches and chapels which, 
 alter the passing of this Act, should be licensed as 
 provided in the Act), enacts, in section 33, that as 
 regards all such marriages the ceremony shall be 
 
 preceded by :— 
 
 ‘1, Publication of banns, to be made in the - 
 manner and according to the rules at the time of the 
 passing of this Act im force in Ireland, in parish 
 Churches of the United Church of England and 
 Ireland. 
 
 «©2. A License or Special License ; or, 
 
 «3. A Certificate from a Registrar granted as 
 at the time of the passing of the Act.” 
 
 It is manifest, that care should be taken by a 
 
76 BANNS—CANON 52, 16384-1711. 
 
 clergyman, that some one of these three requisites 
 should have been satisfied before he solemnizes a 
 marriage. The rules as to the publication of banns 
 in Ireland, existing on the 10th of August, 1870, 
 should be observed. We refer to the Rubrics of the 
 Order of Matrimony, and to Canon 52, 1634-1171. 
 
 The banns of all that are to be married, save in 
 cases of license or certificate, must be published in 
 the Church in the course of Divine Service, the 
 Curate saying after the accustomed manner as fol- 
 lows in the order. 
 
 If the persons that are to be married dwell in 
 divers parishes, the banns must be asked in both 
 parishes, andthe Curate (7.e. the officiating Minister) 
 of one parish shall not solemnize matrimony 
 between them without a certificate of the banns 
 having been therein asked from the Curate of 
 the other parish. | 
 
 Canon 52, 1634-1711, is as follows:—“ No 
 Minister of what place soever, nor under colour of 
 any peculiar liberty or privilege claimed to apper- 
 tain to any Church or Chapel, shall, upon pain of 
 deprivation if he be beneficed, or degradation if 
 he be not beneficed, celebrate matrimony between 
 any persons without a faculty or license granted, 
 except the banns of matrimony have been first 
 published three several Sundays or holidays in the 
 time of Divine Service, in the Parish Churches 
 and Chapels, wherein the said parties have dwelled, 
 by the space of three months before. Neither shall 
 any Minister, upon the like pain, under any pre- 
 tence whatsoever, join any persons in marriage at 
 any unseasonable times, but only between the hours 
 of eight and twelve in the forenoon, nor in any private 
 place, but either in the said Churches or Chapels, 
 
RESIDENCE OF PARTIES—MINORS. 17 
 
 where one of them dwelleth, and likewise in time 
 of Divine Service; nor when banns are thrice 
 asked, before the parents and governors of the 
 parties to be married, being under the age of 
 twenty-one years, shall either personally, or by 
 sufficient testimony, signify to him their consents 
 given to the said marriage.” 
 
 This Canon is no longer a Canon of the Church 
 of Ireland, but its provisions altered only as to the 
 lawful hours of marriage being extended from noon 
 to the hour of 2 p.m., and subject to a question as 
 to publication on holidays, have still foree by the 
 Civil Law, under the Clause quoted from the Act 
 of 1870, as a rule in force in Ireland as to the 
 publication of banns when the Act passed, and must 
 be observed by the Clergy. It is the duty of the 
 Clergy to observe these provisions. It is a law of 
 the Church of Ireland, and a breach thereof would 
 be an offence under the Church Statute Constitution, 
 chapter vili., section 52. The ‘three months” period 
 is a fixed and convenient test of bond fide residence. 
 «Three months before” means three months 
 immediately before the publication. Any person 
 may forbid the banns. Under this Canon, the 
 Minister must inquire into the age of the parties 
 before he marries them, and, if under age, must be 
 satisfied of the consent of the parents or guardians. 
 
 The law which now regulates consent to the 
 marriage of minors is the Act 49 & 50 Vict., which 
 modifies the 7 & 8 Vict., section 1, and is thus stated 
 in ‘‘ Matheson’s Digest,” as follows :— 
 
 “The following are the persons authorized to 
 give consent :— 
 
 ‘¢1, If both parents are living :—The Father alone. 
 
78 LAW OF CONSENT OF GUARDIANS. 
 
 ‘©2. Tf the Father is living and the Mother dead, 
 she having previously nominated a Guardian or 
 Guardians to act jointly with the Father, and such 
 appointment having been confirmed by the Court 
 wfter being satisfied as to the unfitness of the 
 Father to be sole Guardian :—The Father jointly 
 with the Guardian or Guardians so nominated by the 
 Mother and confirmed by the Court. 
 
 ‘¢3, If the Father is living and the Mother dead 
 without having made any appointment so confirmed 
 as aforesaid :—The Father alone. 
 
 ‘4. Tf the Father is dead and has appointed no 
 Guardian or no Guardian has been appointed by 
 the Court to act jointly with the mother:—The 
 Mother alone. 
 
 ‘¢5, If the Father is dead and has appointed a 
 Guardian, or if a Guardian or Guardians shall have 
 been appointed by the Court to act jointly with the 
 Mother :—The Mother jointly with such Guardian or 
 Guardians. 
 
 ‘¢6. If the parents are both dead and a Guardian 
 or Guardians shall have been appointed by one of 
 them only :—The Guardian or Guardians so appointed. 
 
 “7, If the parents are both dead and a Guardian 
 or Guardians shall have been appointed by each :— 
 The Guardian or Guardians appointed by the Father and 
 by the Mother, respectively, acting jointly. 
 
 ‘8. Ifa Guardian or Guardians shall have been 
 appointed by the High Court of Justice to act with- 
 out the intervention of any parent, or to act when 
 the parents are deceased :—The Guardian or Cuar- 
 dians so appointed by the High Court of Justice. 
 
 ‘‘In the event of Guardians being unable to 
 agree, any of them may apply to the Court for its 
 direction. 
 
PUBLICATION OF BANNS. 19 
 
 “The High Court of Justice may remove any 
 Guardian from office and appoint another. 
 
 ‘In cases of minority the consent should be 
 obtained on one of the forms supplied for the purpose 
 and verified to the satisfaction of the Registrar. 
 
 ‘Tf there is no person legally authorized to give 
 consent the clause of the oath, or declaration, must 
 be altered accordingly. 
 
 ‘‘ Tf the Father of a minor is non compos mentis, or 
 the Mother or Guardians of such minor whose con- 
 sent is necessary are non compos mentis, or in parts 
 beyond the seas, or unreasonably, or from undue 
 motives, refuse or withhold their consent to a proper 
 marriage, application may be made to the Court for 
 a Declaration that the proposed marriage is a proper 
 one. 
 
 ‘No person is authorized to give consent in the 
 case of an illegitimate minor, except a Guardian or 
 Guardians appointed by the Court. 
 
 ‘Tn the case of a ward in Chancery, the consent 
 of the Court must be obtained. Persons issuing 
 licence or other authority for such a marriage, or 
 solemnizing such a marriage without the required 
 consent, are liable to severe punishment. 
 
 ‘The minimum age at which marriage can 
 legally be contracted in Ireland is 14 years for males, 
 and 12 for females, and no marriage contract is 
 binding unless the parties have reached those ages.” 
 
 Two curious and difficult questions have been 
 raised in relation to the publication of banns— 
 1. Whether the publication should be made during 
 the time of morning service, or of evening service 
 (if there be no morning service), immediately after 
 the second lesson or immediately before the offertory 
 sentences; and 2, whether the publication may be 
 
80 LORD HARDWICKE’S ACT. 
 
 properly made on holidays as well as on Sundays. 
 The Rubrics in the present Revised Prayer Book 
 of the Church of Ireland authorise publication at 
 both periods ; the Books of the Church of England 
 and of the lately United Churches only after the 
 second lesson. The English Rubric was founded, 
 or supposed to be founded, upon Lord Hardwicke’s 
 Act, 26 George II., c. 33, and unquestionably the 
 practice was established in England under this Act 
 of making the publication after the second lesson at 
 morning prayer, and this practice has prevailed, 
 notwithstanding a doubt expressed (1856) by Alder- 
 son, B., in Regina v. Benson, reported in Phillimore’s 
 ‘¢ Eeclesiastical Law,” 761. The doubt of the learned 
 Judge seems to have been founded upon probability 
 of intention, but the construction of the words seems 
 too plain to permit of resort to probable intention, 
 and the Statute does not recognise any publication 
 at any other time than after the second lesson, while 
 it deals with all publications of banns. 
 
 If the Rubrics of the English Book put a true 
 interpretation on Lord Hardwicke’s Act, then under 
 the Act of Union, clause 5, the publication after the 
 Second Lesson at Morning Prayer became part of the 
 Ecclesiastical Law of Ireland existing in 1870, and 
 to be observed under that Act. All the Rubrics are 
 part of the Ecclesiastical Law, valid as such, unless 
 contrary to the Civil Law which is always supreme. 
 Lord Hardwicke’s Act was repealed by 4 Geo. IV., 
 76, but that Act had no operation out of England, 
 and did not repeal the Ecclesiastical Law of Ireland 
 established by Lord Hardwicke’s Act. There is a 
 difference of opinion and practice on the question 
 in Ireland; and while the publication is now more 
 commonly made before the offertory, in some 
 
PUBLICATION AFTER SECOND LESSON. 81 
 
 churches it is made after the Second Lesson. In the 
 opinion of the writer, without meaning to suggest 
 that an error on this point would affect the validity 
 of a marriage ceremony, it would be desirable that 
 banns should be published, as authorised by the 
 Rubric prefixed to the Form of the Solemnization 
 of Matrimony, after the Second Lesson. Uniformity 
 is to be desired; and this course seems legal and 
 best calculated to give the effective notice which 
 is the object of publication. The publication 
 after the Second Lesson is calculated to arrest 
 attention, whereas the publication before the offer- 
 tory, mixed up with notices of Charity Sermons 
 and details of parish work, is often not observed 
 or noticed. 
 
 An important letter on this subject by the Rey. 
 Dr. Stubbs, 8.F.T.C.D., is inserted with his per- 
 mission : 
 
 ‘“‘ Before the Reformation, according to the 
 Sarum Breviary, the Banns should be published at 
 the Mass. After the Reformation the English and 
 Irish Prayer Books contained Rubrics directing the 
 banns to be published after the Nicene Creed, and 
 the Rubric in the English Marriage Service was 
 precisely the same in the English Prayer Book as it 
 was in the Irish Prayer Book when the Church was 
 disestablished, and is as follows :— 
 
 ‘‘ First the Banns of all that are to be married 
 together must be published in the Church three 
 several Sundays or Holidays in the time of Divine 
 Service, immediately before the sentences of the 
 offertory.”” See Prayer Book of 1717. 
 
 Then came Lord Hardwicke’s Act, 26 Geo. ILI., 
 ch. 33, which enacted that all Banns of marriage 
 shall be published in the forms of words prefixed 
 
 G 
 
82 PUBLICATION AFTER NICENE CREED. 
 
 to the Office of Matrimony in the Book of Common 
 Prayer upon three Sundays preceding the solemni- 
 zation of marriage during the time of Morning 
 Service, or of Evening Service (if there be no 
 Morning Service in such Church or Chapel upon 
 any of those Sundays) immediately after the Second 
 Lesson.” No change was made by authority of Par- 
 liament and of Convocation in the English Prayer 
 Book. About the year 1809 the Curators of the 
 Press at Oxford (see the Bishop of Exeter’s speech 
 in Hansard III., VIII., 21) caused the Rubric to be 
 altered in all the Oxford Prayer Books, so as to 
 make it direct that the banns shall be published 
 ‘after the Second Lesson at Morning Prayer or 
 the Second Lesson at Evening Prayer.” But the 
 Statute of Geo. II. only enabled the banns to be 
 published at Evening Prayer, when there was no 
 Morning Service, and then after the Second Lesson, 
 and according to a decision of Lord Mansfield and 
 Baron Alderson the Statute left the Rubric un- 
 touched. In Reg. v. Benson (1856) (Phill. Eee. 
 Law) Sir Edward Alderson expressed a doubt 
 whether the publication of banns in England was 
 valid under this Act after the Second Lesson at 
 Morning Prayer instead of after the Nicene Creed. 
 Lord Hardwicke’s Act did not apply to Ireland, so 
 the old custom of publishing the banns was 
 continued here.” 
 
 Probably, per ineuriam, it was not observed that 
 Lord Hardwicke’s Act was extended in Ireland, so 
 far as it included Ecclesiastical Law of England, 
 by the Act of Union, and Rubrics are certainly 
 Ecclesiastical Law. 
 
 Whatever may be the true construction of Lord 
 Hardwicke’s Act on the first point just considered, it 
 
PUBLICATION ON HOLIDAYS. 83 
 
 clearly prescribes that the publication must be made 
 on Sundays, and on Sundays only, and therefore 
 publication on Holidays does not meet the require- 
 ments of the Act of 1870. 
 
 Section 33 of the Statute of 1870 preserves the 
 provisions of the Statutes 7 & 8 Vict. c. 81, and 26 
 Vict. c. 27, and therein the lawful time of celebration 
 was extended from noon to 2 o’clock, p.m. 
 
 Sections 34, 35, and 36 of the Statute authorise 
 Bishops to license Churches and Chapels for 
 marriage, and to nominate persons to issue licenses 
 for marriage, and to issue Special Licenses where 
 both parties to the intended marriage are Protestant 
 Episcopalians, and a Form of License is given in 
 the Schedule to the Statute. 
 
 In relation to Marriage Licenses, all the pro- 
 visions of the Act appear to be enabling, not 
 mandatory or directory; but if the nominee in his 
 discretion shall refuse a license, an appeal lies to 
 the discretion of the Bishop, who may ratify or over- 
 rule the act of the nominee. (The discretion of 
 the Bishop and his nominee are discussed by Dr. 
 Tresham, Chancellor of London, in the Z%mes, July 
 3, 1895, and by Sir Richard Webster, Attorney- 
 General, in the Zimes, May 29, 1895.) It does not 
 seem that there is any duty imposed on any person 
 to issue a Marriage License, or that any complaint 
 on the subject could be entertained by a Civil 
 Court or an Ecclesiastical Tribunal. It is a matter 
 of discretion: Case of Prince of Capua (30 L. J. 
 lean: ): 
 
 On the other hand it would seem that a Minister 
 is under a legal obligation to publish banns between 
 two persons, members of the Church of Ireland, 
 
 one of whom is resident in his cure, when there is 
 G2 
 
84 LICENSES DISCRETIONARY, 
 
 no lawful impediment and the necessary prelimi- 
 naries have been observed. The English Act, 
 4 Geo. IV., c. 76, does not extend to Ireland, and 
 there are not any reported decisions on the point ; 
 but the Rubrics of the Prayer Book are the law of 
 the Church, framed for the purpose of giving effect 
 to rights of marriage. The Rubrics of the Prayer 
 Book of the Church of Ireland declare that the 
 banns must be published in the Church, the 
 Curate saying, after the accustomed manner: ‘‘ I 
 publish, &c.” ; and then the Imperial Statute refers 
 to the rules then in force on the subject. The 
 remedy for a refusal to publish would be properly 
 sought in the Church Tribunal. Possibly a Civil 
 Action would also lie. Lord Grimthorpe writes: 
 ‘‘Nobody can lawfully refuse the banns even of 
 divorced persons.” 
 
 Assuming that banns have been duly published, 
 or a proper license from the Bishop or his nominee 
 granted, or a Registrar’s Certificate obtained, it 
 seems to be the law of the Church of Ireland that 
 it is the duty of a Minister to celebrate the marriage 
 at the request of a member of the Church. 
 
 There are two reported cases of proceedings in 
 the English Civil Courts on the subject: one, Davis 
 v. Black (1 Q. B. 900), was an action; the other, the 
 Queen v. James (19 L. J. M.179), was an indictment. 
 In both cases the proceedings failed on technical 
 points: in neither was there a decision, but the 
 Reports show that the Judges did not concur in their 
 opinions, and entertained doubt. But the doubt 
 related not to the question of duty, but to that of 
 the jurisdiction of the Civil Court, and it seems to 
 have been undoubted law that the Ecclesiastical 
 Court in England would punish a clergyman for 
 
JURISDICTION TO DISSOLVE MARRIAGE. 85 
 
 refusing to marry parties properly qualified; and, 
 accordingly, in Argar v. Houldsworth (2 Sec. 514), 
 when articles were exhibited in a Diocesan Court 
 against a Vicar for refusing to solemnise a marriage, 
 and it was argued that a Minister is not obliged by 
 law to marry by license, it was decided that a 
 license was a legal authority for marriage, and that 
 a Minister was guilty of a breach of duty who should 
 refuse to marry pursuant to a proper license from 
 his ordinary, and the obligation is recognised in rela- 
 tion to the case of banns and certificate by the 
 Irish Marriage Act (7 & 8 Vict. c. 1, sect. 1), which 
 enacts that any person in Holy Orders of the United 
 Church of England and Ireland shall be bound to 
 solemnize marriage on the production of the Regis- 
 trar’s certificate in like manner as he is required by 
 any law or canons now in force after publication 
 of banns, a provision which applies to the Church 
 of Ireland (33 & 84 Vict. chap. 110, sect. 33). The 
 refusal of the Minister is therefore a breach of the 
 law of the Church of Ireland, cognisable in her 
 tribunals, and may now be the subject of proceed- 
 ings in the Civil Court by virtue of the implied 
 contract, when the aggrieved person is a member 
 of the Church of Ireland. 
 
 The general obligation of a minister to marry 
 persons, when banns or license or Registrar’s certi- 
 ficate have been published or given, is subject, of 
 course, to the exceptions mentioned in Canon 11 of 
 persons within the prohibited degree. 
 
 The question as to the obligation of a minister to 
 marry a person whose marriage has been dissolved, 
 not being a widower or widow, requires more serious 
 consideration. In Ireland the Civil Court has no 
 jurisdiction to dissolve marriage. Its jurisdiction is 
 
86 JURISDICTION TO DISSOLVE MARRIAGE. 
 
 limited to a decree for judicial separation technically 
 known as a divorce a mensa et toro, as distinguished 
 from a divorce a vinculo matrimoni. As regards 
 Ireland a marriage can only be dissolved by an Act 
 of the Imperial Parliament. In two recent cases 
 (1886) decrees for divorce a mensa et toro were 
 pronounced by the Irish Court, and afterwards 
 private Acts of Parliament were passed dissolving 
 the marriage. In one case, B. v. B., the husband 
 was petitioner, and the marriage was dissolved on 
 account of the adultery of the wife. In the other 
 case, W.v. W., the wife was the petitioner, and the 
 marriage was dissolved on account of the adultery 
 and cruelty of the husband. In both cases it was 
 enacted that the bond of matrimony between the 
 parties being broken and violated by the respondent 
 was thereby and from thenceforth dissolved and 
 made void to all intents and purposes, and that it 
 should be lawful for the petitioner, 7.e. the innocent 
 party, to marry, as well in the lifetime of the respon- 
 dent as after her or his death, any woman or man 
 whom the petitioner might lawfully marry if the 
 respondent were actually dead, and that any such 
 future marriage should be good and so taken in all 
 countries and to all intents, &c. It will be observed 
 that this enactment gives power of marriage in ex- 
 press words to the innocent party only, but inasmuch 
 as the dissolved marriage was made void to all intents, 
 it necessarily follows that the guilty party might in 
 point of law marry again, albeit not a widow or 
 widower. 
 
 There is no pretext for the allegations that the 
 marriage of persons divorced @ vinculo is contrary to 
 the law, discipline, or doctrine of the Churches of 
 Ireland or England. 
 
ENGLISH DIVORCE ACT, 87 
 
 The only ecclesiastical prohibition to be found 
 was one against the marriage of persons divorced 
 a mensa et toro: a mere judicial separation, not a 
 dissolution of marriage. 
 
 In 1857 Parliament passed ‘‘ An Act to amend the 
 Law relating to Divorce and Matrimonial Causes in 
 England.” The Act established an English Court, 
 and power was given to this Court to pronounce a 
 decree declaring a marriage to be dissolved upon 
 various grounds mentioned in the Statute, including 
 those upon which the Acts in the cases of B. v. B. 
 and W. v. W. were founded, and thereupon, says 
 the Statute of 1857, section 57, it shall be lawful for 
 the respective parties to marry again as if the prior 
 marriage had been dissolved by death. And both 
 parties innocent and guilty may in point of law 
 marry again, albeit not a widow or widower. The 
 form of judgment in the English Divorce Court is 
 ‘“the Judge, on the application of the petitioner, by 
 his final decree, pronounced and declared said 
 marriage to be dissolved.” So far there is nothing 
 in the cases of persons whose marriage has been 
 dissolved either by an Act of Parliament or English 
 decree to entitle a Minister to refuse marriage when 
 parties are not within the prohibited degrees, and 
 the requisites of banns, license, or certificate exist. 
 
 But the 57th section concludes with a proviso in 
 these words: ‘‘ Provided always that no clergyman 
 in Holy Orders of the United Church of England and 
 Ireland shall be compelled to solemnize the marriage 
 of any person whose former marriage may have been 
 dissolved on the ground of his or her adultery, or 
 shall be liable to any suit, penalty, or censure for 
 solemnizing or refusing to solemnize the marriage of 
 any such person. 
 
88 RE-MARRIAGE OF GUILTY PARTY, 
 
 Note in the first place that this provision is limited 
 to the new marriage of the guilty person—the man 
 or woman who shall have been guilty of adultery. 
 It has no relation to the marriage of the cnnocent 
 husband or wife; and as regards such innocent per- 
 son, the proviso does not in any way affect the 
 obligations, civil or ecclesiastical, of ministers of the 
 Church of Ireland. 
 
 In the second place, the proviso seems to apply 
 for the protection of clergymen as regards the guilty 
 persons, whether the marriage shall have been 
 dissolved by decree or by Act of Parliament. The 
 reason of the prohibition is equally applicable to 
 both cases, and there is nothing in the words of the 
 proviso to restrict its application to dissolutions by 
 decree. 
 
 In the third place, the words “ United Church of 
 England and Ireland” must be taken to apply, since 
 the separation of the Churches, to each of these 
 Churches, so that the protection of the proviso now 
 extends to clergymen in Holy Orders of the Church 
 of England, and those in Holy Orders of the Church 
 of Ireland. Before the Church Act of 1869, the 
 section in terms applied alike to ministers of the 
 United Church in England and in Ireland, and if 
 separation of the Churches has withdrawn the pro- 
 tection of clergymen of the Church of Ireland offi- 
 ciating in Ireland, it must also have withdrawn the 
 protection from clergymen of the Church of England. 
 But this has not been suggested. 
 
 The statute is not merely an English Act: there 
 is no clause declaring it shall not apply to Ireland. 
 It is an English Act in its effect so far as it creates 
 an English tribunal and invests that tribunal with 
 various powers in matrimonial causes and matters; 
 
POWER OF GENERAL SYNOD. 89 
 
 but its enactments of a general character are general 
 in their operations, and apply when they are in 
 their own nature applicable to all persons subject to 
 the jurisdiction of the Legislature which passed the 
 Statute. A decree for divorce in cases within the 
 jurisdiction of the Court is of force generally, and 
 certainly as regards all citizens of the United King- 
 dom in relation to the clergy and laity of Ireland 
 and Great Britain alike. 
 
 At present while the law of the Church of Ire- 
 land prohibits, as we have seen, the marriage of 
 persons nearly related, there is no law of the Church 
 which forbids or discountenances the intermarriage 
 of divorced persons. 
 
 Whether the General Synod has power to change 
 the existing law as regards the marriage of divorced 
 persons, whether innocent or guilty, or the obliga- 
 tions of Ministers, may be doubted ; but it would 
 seem to be in the highest degree inexpedient to go 
 beyond the proviso and place ecclesiastical restric- 
 tions on the marriage of persons innocent of the 
 offence for which their former marriage was dissolved, 
 or absolutely to forbid the solemnization of the 
 marriage of the offending party. It is quite open 
 to bishops to refuse licenses, and to stop the issue of 
 licenses of divorced persons, as they in their discre- 
 tion may think fit. 
 
 The 58th section contains a further proviso. That 
 when any Minister of any church of the United 
 Church of England and Ireland shall refuse to 
 perform such marriage service between any persons 
 who, but for such refusal, would be entitled to have 
 the same service performed in such church, such 
 Minister shall permit any other Minister in Holy 
 Orders of the said United Church entitled to 
 
90 USE OF CHURCH FOR MARRIAGE. 
 
 officiate within the diocese to perform such service in 
 such church. This proviso also applies to the 
 ministers of the Church of Ireland, but a question 
 may be raised how far the Minister has power to 
 give such permission since 1869, and how far the 
 General Synod might restrict any such power. The 
 writer, however, concurs in the report of a Church 
 Committee lately presented to the General Synod 
 to the effect that as divorced persons are by statute 
 law competent to marry again, the Committee could 
 not advise the passing of a Church Statute pro- 
 hibiting them from being married in a Church. 
 
 It would not, to say the least, be expedient to 
 enact that no clergyman should be permitted to 
 solemnise a marriage sanctioned by the Imperial 
 Legislature, and the attempt would be attended 
 with great difficulty. Such a law could only be 
 founded upon the assumed absolute indissolubility 
 of marriage—a doctrine not held by the Churches of 
 Ireland or England, or, as it is believed, of any 
 Protestant Church. I may refer to a Paper on the 
 marriage of innocent divorcees, by Lord Grimthorpe, 
 a very learned ecclesiastical lawyer, published in 
 the Nineteenth Century Review for February, 1895. 
 He observes:—‘‘ But not a few of the English 
 clergy have already reached the point of repel- 
 ling from the communion or excommunicating 
 both parties to any marriage of whom either is an 
 innocent divorcee, and not a widower or widow, 
 besides refusing to perform any such marriage, 
 though that is in defiance of the Divorce Act, 1857, 
 which was carried by a great majority of bishops in 
 every important division. That Act does allow 
 them to refuse to marry guilty divorcees; and there- 
 fore I think the licensing authority of any diocese 
 
REFUSAL OF LICENSE. 91 
 
 may well refuse to license them, though nobody can 
 lawfully refuse their banns.” A precedent on this 
 subject is to be found in an order issued by Bishop 
 Woodford, of Ely, to the licensing authority of the 
 diocese in 1881, ‘‘that no marriage license be granted 
 for the marriage of a person divorced on the ground 
 of his or her adultery.” In 1888 this order was 
 confirmed by Bishop Woodford’s successor. 
 
 An interesting discussion on religious opinions 
 and practice as to divorce and the re-marriage of 
 divorced persons will be found in Geary on “‘ The 
 Law of Marriage and Family Relations, 1892.” 
 A copy of the Paper presented to the General 
 Synod is printed in Appendix D. That Paper 
 also treats of some of the requisites of a valid 
 marriage, a subject not discussed in this Essay. 
 
> se 
 Sap 
 
 “fe 
 
 
 
APPENDIX A. 
 
 CONSTITUTION OF THE CHURCH OF IRELAND, 1889. 
 
 CHAPTER VIII. 
 
 (AS AMENDED, 1893-4-5.) 
 
 ECCLESIASTICAL TRIBUNALS—OFFENCES, SENTENCES— FACUL- 
 TIES—REGISTRIES—AND LAY DISCIPLINE. 
 
 1. Tue Courts hereinafter defined shall be the Hcclesias- 
 tical Tribunals of the Church of Ireland ; they shall possess 
 the powers and proceed in the manner hereinafter prescribed, 
 and shall respectively be called the Diocesan Courts of the 
 several Dioceses and United Dioceses, and the Court of the 
 General Synod. 
 
 2. There shall be a Diocesan Court in each Diocese or 
 United Diocese, which shall have power and jurisdiction to 
 hear and determine all cases, not involving any question of 
 Doctrine or Ritual, in which any person subject to the 
 jurisdiction of the said Court shall be charged with any 
 offence against any Law or Canon of the Church which 
 shall be in force for the time being; but subject in every 
 case to an appeal to the Court of the General Synod. 
 
 8. The Archbishop or Bishop of each Diocese or United 
 Diocese, as the case may be, shall from time to time, as 
 occasion may require, appoint under his Episcopal Seal 
 (which appointment shall be filed of Record) a fit and proper 
 
94 APPENDIX A. 
 
 person as Chancellor, to sit with him in the Diocesan Court 
 as his Assessor, who shall be a barrister of ten years stand- 
 ing at the least at the Irish Bar, and shall hold office for 
 life, or until resignation, or order of removal by the Arch- 
 bishop or Bishop, as the case may be, founded upon a Reso- 
 lution of the Diocesan Synod: Provided always that nothing 
 herein contained shall prevent the same person from holding 
 office as Chancellor in two or more Dioceses or United 
 Dioceses: and provided also, that in case of the disability 
 of any Archbishop or Bishop to sit in his Court by reason of 
 illness or any other hindrance, such Archbishop or Bishop 
 shall have power to appoint a Bishop or Clergyman to sit as 
 Commissary for him and in his place. The Archbishop 
 or Bishop, or his Commissary, shall be the Judge in the 
 Diocesan Court, and shall in every case be assisted by his 
 Chancellor. The Clerical members of the Diocesan Synod 
 shall elect three Clergymen, and the Lay members shall 
 elect three Laymen, as members of the Diocesan Court, 
 who shall hold office for five years, and shall be capable-of 
 re-election. Any casual vacancy by death, resignation, or 
 continued absence from Ireland for twelve months, occurring 
 among the Clerical or Lay members of any Diocesan Court, 
 shall be filled as soon as conveniently may be by the Clerical 
 or Lay members, as the case may be, of the Diocesan Synod 
 of the Diocese or United Diocese in which such vacancy 
 shall have occurred. Any person elected to fill a casual 
 vacancy shall hold office only so long as the person in whose 
 place he shall have been elected would have held the office 
 if such vacancy had not occurred. The Archbishop or 
 Bishop shall, in every case, summon by rotation, to sit with 
 him in the Diocesan Court, a Clergyman and a Layman from 
 those so elected, to whom, along with the Archbishop or 
 Bishop, or his Commissary, all questions of fact shall be 
 referred: Provided, however, that if both parties shall 
 express their consent in writing, it shall be in the power of 
 the Archbishop or Bishop, or his Commissary, to hear and 
 determine the case alone. 
 
 4. The Archbishop or Bishop, as the case may be, shall 
 also from time to time, as occasion may require, appoint a 
 fit and proper person to be the Registrar of the Diocese or 
 
CONSTITUTION OF THE CHURCH. 95 
 
 United Diocese, who shall hold office for life, or until resig- 
 nation, or order of removal by the Archbishop or Bishop. 
 
 5. In case of the illness or temporary incapacity of any 
 Chancellor or Registrar, a statement of the circumstances 
 whereof shall be filed in the Registry of the Diocese or 
 United Diocese of which he is Chancellor or Registrar, the 
 Archbishop or Bishop of such Diocese or United Diocese 
 may appoint under his Episcopal seal (which appointment 
 shall be filed of Record) a fit and proper person to act as 
 Deputy Chancellor or Deputy Registrar, as the case may he, 
 of such Diocese or United Diocese during such illness or 
 incapacity ; and every person so appointed shall have all 
 the powers and perform all the duties of the Chancellor or 
 Registrar for whom he is appointed to act : Provided always, 
 that every Deputy Chancellor shall be qualified as herein- 
 before provided with respect to the Chancellor. 
 
 6. Every Chancellor, Deputy Chancellor, Registrar, 
 Deputy Registrar, and elected member of a Diocesan Court, 
 shall, before entering upon the duties of his office, make 
 and sign a declaration in the following form :— 
 
 I, , do solemnly and sincerely 
 declare that I am a ones of the Church of Ireland, 
 and that I will faithfully, and to the best of my 
 ability, execute the office of of the Diocese 
 (or United Diocese, as the case may be) of R 
 without fear, favour, affection, or malice. 
 
 7. The Archbishop, Bishop, or any member of the Church 
 who shall have signified in writing his submission to the 
 authority of the General Synod, having any charge cognisable 
 by the Diocesan Court against any person under the jurisdic- 
 tion of the said Court, shall present the charge, by petition 
 in writing, signed by him as petitioner, and shall lodge the 
 same with the Registrar of the Diocese or United Diocese in 
 ' which the person charged, who shall be named as respondent, 
 shall reside or hold office, or in which the offence may 
 be alleged to have been committed: Provided that the 
 petitioner, except in the case of an Archbishop or Bishop, 
 shall be resident within the Diocese or United Diocese, or shall 
 have been personally injured or aggrieved by the act com- 
 
96 APPENDIX A. 
 
 plained of. Such petition shall be in the form set forth in 
 Schedule A hereunto annexed, or as near thereto as the 
 nature of the case will admit. 
 
 8. The petitioner or petitioners, except in the case of an 
 Archbishop or Bishop, shall execute a bond to the Registrar 
 of the Diocese, with two sufficient sureties to be approved of 
 by the Registrar, for such reasonable sum, not exceeding £50, 
 as the Chancellor or Registrar shall deem sufficient, binding 
 him or them to pay all such costs and expenses, as he or 
 they may be ordered to pay by the Diocesan Court, or by 
 the Court of the General Synod; or shall lodge such sum 
 with the Registrar as security for the same purpose. 
 
 9. The Registrar, within seven days after such bond 
 shall have been executed, or money lodged, shall send a 
 copy of the petition to the respondent, in a registered letter 
 addressed to his residence or last known place of abode; and, 
 after receiving an answer from him, or, if no answer shall 
 in the meantime have been received, after the expiration of 
 fourteen days from the day on which such copy of the 
 petition shall have been so sent, shall lay before the Arch- 
 bishop or Bishop the petition, and the answer of the 
 respondent, if any, thereto. 
 
 10. In all cases where a charge, not involving any 
 question of Doctrine or Ritual, has been presented by 
 petition against any Clergyman, within the jurisdiction of 
 a Diocesan Court, the Archbishop or Bishop shall have 
 power to appoint under his hand and seal a Commission of 
 inquiry, consisting of not less than one Clergyman and one 
 Layman of the Diocese, to be nominated by the Archbishop 
 or Bishop, to take evidence and to report whether a prima 
 Jacte case has been established. Notice of the time and 
 place of each sitting of such Commission shall be given to 
 the parties, who shall be at liberty to attend and to be 
 heard before the same, by themselves, their agents, solicitors, 
 counsel, and witnesses. The witnesses may be examined, 
 cross-examined, and re-examined by the parties, or their 
 agents, solicitors, or counsel, before the Commission. A 
 note of.all evidence given at such Commission shall be taken 
 down in writing by one of the members, or under the 
 direction of the Commission, and when so taken down shall 
 
CONSTITUTION OF THE CHURCH. 97 
 
 be revised and certified by the members of the Commission 
 to be full and correct, and shall be transmitted, with the 
 report of the Commission, in writing, to the Archbishop or 
 Bishop, and shall be available and admissible as evidence in 
 all subsequent proceedings in the same case. No member of 
 the Commission shall afterwards act as a member of any 
 Court by which the case shall be heard. "When the Com- 
 mission shall have reported, the Archhishop or Bishop, if he 
 shall consider the charge to be vague or “frivolous, or that a 
 prima facie case has not been established, shall stay all 
 further proceedings upon the petition; in which case he 
 shall state in writing, signed by him, the reasons for his 
 opinion, and such statement shall be deposited in the 
 Registry of the Diocese, and a copy thereof shall forthwith 
 be transmitted to each of the parties. If the Archbishop or 
 Bishop shall not stay the proceedings as aforesaid, within 
 one month from the date of the said report, the case shall 
 proceed as hereinafter provided. 
 
 11. In all cases where a charge is to be heard in the 
 Diocesan Court, it shall be the duty of the Registrar to 
 apply to the Chancellor for a citation, who shall thereupon 
 issue a citation under his hand, requiring the attendance of 
 each of the parties before the Diocesan Court, to be held at 
 such time and place as the Chancellor shall in such citation 
 appoint. Provided that the first sitting of the Court shall 
 be held not less than one fortnight nor more than three 
 calendar months after the date of the citation. 
 
 12. The Chancellor shall, at the instance of either of the 
 parties, issue letters to persons whose evidence may be 
 needed at the trial, requesting them to attend at such time 
 and place as aforesaid; and, if necessary, requesting them 
 also to bring with them such documents relating to the 
 matters in issue as may be in their possession, power, or 
 procurement. 
 
 13. When any witness shall be unable or unwilling to 
 attend, the Chancellor, at any time after the issue of the 
 citation, may appoint, in such manner and on such terms as 
 he shall see fit, a Commissioner to take the testimony of such 
 witness ; and such witness may be examined, cross-examined, 
 and re-examined, by the parties, or their agents, solicitors, 
 
 H 
 
98 APPENDIX A. 
 
 or counsel, before such Commissioner. The examination 
 shall be reduced to writing, and signed by the witness and 
 by the Commissioner, and shall be forthwith transmitted 
 by him, under seal, to the Chancellor; and the same shall, 
 without further proof, be available and admissible as evidence 
 in all subsequent proceedings in the same case. 
 
 14. The petition, answer, and every other pleading may 
 at any time, by permission of the Court, be amended in such 
 manner and on such terms as the Court shall think fit and 
 necessary for the purposes of justice, provided that the 
 substance of the charge be not varied by any such amend- 
 ment. 
 
 15. If the respondent shall at any time before trial, by 
 writing under his hand, confess the truth of the charge, and 
 consent that the Archbishop or Bishop, as the case may be, 
 shall forthwith pronounce sentence upon him, the Archbishop 
 or Bishop may thereupon pronounce such sentence as he shall 
 think fit, not exceeding the sentence which he might have 
 pronounced if the proceedings had been prosecuted in the 
 ordinary course, or he may send the case by letters of request 
 to the Court of the General Synod, and may make such 
 order as to costs and expenses, including the Registrar’s fees 
 aud charges, and as to the disposal of the deposit, if any, as 
 he shall think fit. 
 
 16. The evidence of all witnesses examined before the 
 Court shall be given viva voce, and shall be taken down in 
 writing by the Chancellor, or as the Court shall direct. 
 
 17. The Court, after hearing the parties, or such of them 
 as shall appear, their agents, solicitors, or counsel, and 
 the witnesses, shall consider the evidence, and may deliver 
 judgment, which shall be reduced to writing, or shall 
 remit the case to the Court of the General Synod. If the 
 judgment be one declaring the respondent guilty of the 
 offence charged, he, or his agent, solicitor, or counsel, shall 
 have leave to speak in mitigation of punishment before 
 sentence is pronounced. Thereupon, or upon some day, 
 within one calendar month, to be named by the Court, the 
 Archbishop or Bishop, or his Commissary, or his Chancellor, 
 shall, in open Court, pronounce sentence according to law. 
 The Court shall make such order as to costs and expenses, 
 
CONSTITUTION OF THE CHURCH. 99 
 
 including the Registrar’s fees and charges, and as to the 
 disposal of the deposit, if any, as the Court shall think 
 fit. 
 
 18. In every case in which an Archbishop or Bishop 
 shall institute proceedings in his own Diocesan Court, he 
 shall, and in all other cases he may, direct his Chancellor to 
 act in his place; and such direction shall suffice to confer 
 all the jurisdiction of the Archbishop or Bishop on his 
 Chancellor, in such case. 
 
 19. It shall be lawful for the Diocesan Court, at its 
 discretion, at any stage of the proceedings before it, to 
 remit the case to the Court of the General Synod; and the 
 case, with the evidence and findings upon matters of fact, if 
 any, shall be sent by the letters of request to the Court of 
 the General Synod, which shail then proceed to hear and 
 determine the case, and shall deliver judgment and pass 
 sentence therein according to law. 
 
 20. In all cases where the parties submit, or are bound 
 by the laws of the Church, the Diocesan Court may hear 
 and determine any questions connected with the property of 
 the Church or the administration thereof, or with ecclesias- 
 tical rights generally, which may arise between members of 
 the Church of Ireland, if the party defendant be resident 
 within the Diocese or United Diocese in which the Court 
 has jurisdiction. 
 
 21. An appeal shall lie to the Court of the General 
 Synod from every judgment and sentence of a Diocesan 
 Court. 
 
 22. The Court of the General Synod shall be constituted 
 of three Ecclesiastical and four Lay Judges, except in cases 
 in which the Representative Body of the Church of Ireland 
 is a party, in which case the Court shall be constituted of 
 the three Lay Judges first in order upon the list of Lay 
 Judges elected by the General Synod, as hereinafter 
 provided, who may be able to attend, not being members 
 of the Representative Body. 
 
 23. The three Ecclesiastical Judges shall be the three 
 members of the House of Bishops, first in order of prece- 
 dence, who may be able to attend. 
 
 24. The four Lay Judges shall be the persons first in 
 
 H 2 
 
100 APPENDIX A. 
 
 order upon the list of Lay Judges elected by the General 
 Synod as hereinafter provided, who may be able to attend. 
 
 25. No Archbishop, Bishop, or Chancellor, shall sit in 
 the Court of the General Synod for the hearing of any 
 appeal from the Diocesan Court of his own Diocese or 
 United Diocese. 
 
 26. Every person, being a member of the Church of 
 Ireland, who holds or shall have held the office of a Judge 
 of the Supreme Court of Judicature, or of the Court of 
 Bankruptcy, or of a Recorder in Ireland, or who, being one 
 of Her Majesty’s Counsel, shall have held for five years the 
 office of Chancellor of a Diocesan Court in Ireland, shall 
 be qualified for election as a Lay Judge. 
 
 27. An election of ten Lay Judges shall be held in the 
 first ordinary Session of each General Synod: the election 
 shall be held in Synod by voting papers, both Orders voting 
 conjointly. Voting papers containing the names of all the 
 persons qualified as aforesaid, and willing to act, shall, 
 before each election, be prepared, printed, and issued to the 
 voters, each of whom may vote thereon for ten or any lesser 
 number of names, and shall return the same, signed with 
 his name, to the Secretaries in Synod. The names of the 
 ten persons who shall receive the greatest number of 
 votes shall be placed in the order of the number of votes 
 received by each, and shall constitute the list of Lay Judges 
 until the next election shall have been held. In every case 
 of equality of votes, the order of the names shall be deter- 
 mined by lot. The voting papers shall be issued on the 
 second and third days of the Session, and shall be returned 
 before the adjournment of the Synod on the third day of the 
 Session. 
 
 28. Every charge involving any question of Doctrine or 
 Ritual shall be cognisable by the Court of the General Synod. 
 Every such charge, unless promoted by an Archbishop or 
 Bishop, shall be preferred by at least four male communicants 
 of full age, who have signified in writing their submission 
 to the authority of the General Synod. Every such charge 
 shall be presented by petition in writing, signed by the 
 person or persons promoting or preferring the same, as 
 petitioner or petitioners, and shall be lodged with the 
 
CONSTITUTION OF THE CHURCH. 101 
 
 Registrar of the Court of the General Synod, and shall be in 
 such form, and shall be served upon every person charged 
 and named as respondent, and the petitioner or petitioners 
 therein shall give security for the costs and expenses of the 
 proceedings, in such manner, as shall be prescribed by the 
 Rules of the said Court. The decision of the said Court as 
 to whether the case is one involving any question of Doctrine 
 or Ritual shall be conclusive, and may be required and given 
 at any stage of the proceedings after the charge has been 
 preferred. 
 
 29. The Court of the General Synod shall not determine 
 any matter or question which, in the opinion of the Lay 
 Judges, is within the jurisdiction, and more proper to be 
 submitted to the consideration and decision, of. a civil 
 tribunal. 
 
 30. The decision of the majority of the members of the 
 Court of the General Synod shall be the decision of the 
 Court; but in every case which involves any question of 
 Doctrine, or the deposition from Holy Orders of any Clergy- 
 man, the concurrence of two at least of the Ecclesiastical 
 Judges shall be requisite for a judgment adverse to the 
 Clergyman charged, and, in every such case, the sentence 
 shall be pronounced by one of the Hcclesiastical Judges. 
 
 31. The Registrar of the Diocese of Dublin shall be also 
 the Registrar of the Court of the General Synod. 
 
 32. In all cases where a charge involving any question 
 of Doctrine or Ritual has been presented by petition against 
 any Clergyman within the jurisdiction of the Court of the 
 General Synod, the Archbishop of the Province in which the 
 said Clergyman is beneficed or licensed shall have power to 
 appoint under his hand and seal a Commission of enquiry, 
 consisting of not less than one Clergyman and one Layman, 
 to be nominated by the said Archbishop, to take evidence 
 and to report whether a prima facie case has been established. 
 Notice of the time and place of each sitting of such Com- 
 mission shall be given to the parties, who shall be at liberty 
 to attend and to be heard before the same by themselves, 
 their agents, solicitors, counsel, and witnesses. The witnesses 
 may be examined, cross-examined, and re-examined by the 
 parties, or their agents, solicitors, or counsel, before the 
 
102 APPENDIX A. 
 
 Commission. A note of all evidence given before such 
 Commission shall be taken down in writing by one of the 
 members or under the direction of the Commission, and 
 when so taken down shall be revised and certified by the 
 members of the Commission to be full and correct, and 
 shall be transmitted, with the report of the Commission, in 
 writing to the said Archbishop, and shall be available and 
 admissible as evidence in all subsequent proceedings in the 
 same case. No member of the Commission shall afterwards 
 act as a member of the Court by which the case shall be 
 heard. When the Commission shall have reported, if the 
 Archbishop, and the two persons first in order upon the list 
 of Lay Judges of the Court of the General Synod consenting 
 to act with him, shall consider the charge to be vague or 
 frivolous, or that a primd facie case has not been estab- 
 lished, they shall stay all further proceedings upon the 
 petition ; in which case they shall state in writing, signed 
 by them, the reasons for their opinion, and such statement 
 shall be deposited in the Registry of the Court of the 
 General Synod, and a copy thereof shall forthwith be trans- 
 mitted to each of the parties. If the Archbishop and persons 
 aforesaid shall not stay the proceedings as aforesaid within 
 one month from the .date of said report, the case shall 
 proceed. 
 
 33. Every party appealing from a judgment or sentence 
 of a Diocesan Court shall state the grounds of the appeal 
 in writing, in the form set forth in Schedule B hereunto 
 annexed, or as near thereto as the nature of the case will 
 admit, and shall lodge the same, within fourteen days after 
 the judgment or sentence, with the Register of the Court of 
 the General Synod. The person or persons so appealing 
 shall execute a bond to the Registrar of the said Court, 
 with two sufficient securities, to be approved of by the 
 Registrar, for such reasonable sum, not exceeding £50, as 
 the Registrar shall deem sufficient, binding the appellant or 
 appellants to pay all such costs and expenses of the appeal 
 as he or they may be ordered to pay by the Court of the 
 General Synod, or shall lodge such sum with the Registrar as 
 security for the same purpose. Thereupon it shall be the 
 duty of the Registrar to send a copy of the appeal to the 
 
CONSTITUTION OF THE CHURCH. 103 
 
 Archbishops of Armagh and Dublin, and to the member of 
 the House of Bishops next in order of precedence, and shall 
 obtain from the first in order of precedence of the three 
 Ecclesiastical Judges of whom the Court may be constituted 
 an order fixing a time and place for hearing the appeal, and 
 the Registrar shall summon each member of the Court, and 
 the several parties, to attend at such time and place. 
 
 34. The Registrar, within one week after the appeal 
 shall have been lodged, shall require the Registrar of the 
 Diocesan Court to return to the Court of the General Synod 
 the petition, the respondent’s answer, if any, and any other 
 pleadings, the notes of the evidence taken in the Diocesan 
 Court, and the written judgment and sentence of the said 
 Court, and the Diocesan Registrar shall forthwith return the 
 same accordingly, authenticated by his signature. 
 
 35. The Court of the General Synod, having before it 
 the evidence taken in the Diocesan Court, may allow either 
 party to the appeal to produce additional evidence, either 
 orally or taken by a Commission, or by the further examina- 
 tion or cross-examination of witnesses examined before the 
 Diocesan Court. When the parties, or such of them as shall 
 attend upon the appeal, shall have been heard by themselves, 
 their agents, solicitors, counsel, and witnesses, if any, the 
 Court shall deliver such judgment and sentence as the case 
 may require, which shall be reduced to writing, and shall be 
 final. 
 
 36. The Court of the General Synod shall have power 
 upon appeal to set aside, vary, or confirm the judgment or 
 sentence of the Diocesan Court, and to direct by whom the 
 costs and expenses of the proceedings, including the Regis- 
 trar’s fees and charges, shall be defrayed or borne, and to 
 dispose of the deposit or deposits, if any, as the Court shall 
 think fit. 
 
 37. Any Archbishop, or Bishop, or any member of the 
 Church who shall have signified in writing his submission 
 to the authority of the General Synod, having any charge 
 cognisable by an Ecclesiastical Court against an Archbishop 
 or Bishop, shall present and lodge the same by petition in 
 writing in the Court of the General Synod: Provided that 
 any charge involving any question of Doctrine or Ritual, 
 
104 APPENDIX A. 
 
 unless promoted by an Archbishop or Bishop, shall proceed 
 from at least six male communicants of full age. 
 
 38. The petitioner or petitioners, except in the case of 
 an Archbishop or Bishop or Diocesan Council, shall execute 
 a bond to the Registrar of the Court, with two sufficient 
 securities, to be approved of by the Registrar, for such reason- 
 able sum, not exceeding £50, as the Registrar shall deem 
 sufficient, - binding him or them to pay all such costs and 
 expenses of the proceedings as he or they may be ordered 
 to pay by the Court; or shall lodge such sum with the 
 Registrar as security for the same purpose. 
 
 39. The several Courts hereinbefore mentioned shall be 
 open to the public, unless the Judge or Judges shall deem it 
 expedient to sit in private, on account of the matter of the 
 enquiry, or misconduct of the audience, or any other urgent 
 reason, in which case each of the parties may require that 
 not more than six men chosen by himself shall be permitted 
 to be present. 
 
 40. No person who has been either petitioner or respon- 
 dent in any suit shall act as a member of the Court by 
 which the suit is heard. 
 
 41. The Judge or Judges of every Court may from time 
 to time adjourn the Court as they shall deem fit. 
 
 42. It shall be the duty of every member of the Church 
 of Ireland to attend and give evidence, when duly summoned 
 to do so, at any trial or investigation held under the autho- 
 rity of the Constitution of the Church. 
 
 43. Every person who shall be called as a witness at any 
 trial or investigation held as aforesaid, shall, before giving 
 evidence, make a solemn declaration that he will speak the 
 truth, the whole truth, and nothing but the truth. 
 
 44. When the Court shall have signed its judgment or 
 sentence, the same shall be filed of Record in the Registry 
 of the Diocese or of the Court of the General Synod, as the 
 case may be. 
 
 45. In any suit or other proceeding before a Diocesan 
 Court there shall be no appeal, without the special leave of 
 the Court, from any interlocutory order not having the effect 
 of a definite sentence, until a definite sentence shall have 
 been pronounced thereon; but when a definite sentence 
 
CONSTITUTION OF THE CHURCH. 105 
 
 shall have been pronounced, the party appealing therefrom 
 may also appeal from any interlocutory order or orders in 
 the same case. 
 
 46. No bond, given as security for the costs and expenses 
 of proceedings in any Court, shall be put in suit without the 
 leave of the Court. 
 
 47. The Court of the General Synod may hear and 
 determine all questions of a legal nature which have arisen, 
 or which may arise, in respect of the proceedings of a 
 Diocesan Synod at any election to fill a vacancy in the office 
 of an Archbishop or Bishop. 
 
 48. It shall be in the power of the House of Bishops, or 
 of the General Synod, to refer to the Court of the General 
 Synod, for hearing and determination, any questions of 
 a legal nature, which have arisen, or which may arise, 
 in the course of their proceedings: and the said Court 
 shall thereupon proceed to hear and determine the same in 
 the same manner as in the case of an appeal, or to advise 
 the House of Bishops or the General Synod in respect of the 
 same, as the case may require. 
 
 49. The several proceedings of or on behalf of each 
 Court shall be prepared and recorded by the Registrar of the 
 Court in which the case shall be pending, as the case may 
 require. 
 
 50. The members of the House of Bishops, with the ten 
 elected Lay Judges of the Court of the General Synod, 
 shall constitute the Rules Committee of Ecclesiastical Tri- 
 bunals. The Rules Committee or any three members 
 thereof, one being an Archbishop, and one other an elected 
 Lay Judge who holds or shall have held the office of a 
 Judge of the Supreme Court of Judicature, may make Rules 
 for carrying the provisions of this Chapter into effect, and in 
 particular for regulating all matters relating to procedure, 
 practice, costs, expenses, and fees, giving security for costs, the 
 pronouncement of judgments and sentences, the validity of 
 proceedings notwithstanding irregularity or defects of form, 
 proceedings in the case of persons who cannot be found or 
 served, the liability to and recovery of costs and expenses, 
 the forms to be used, and all matters incidental to or 
 connected with the administration of the Hcclesiastical Law 
 
106 APPENDIX A. 
 
 of the Church of Ireland. Every Rule made in pursuance 
 of this section shall be signed by three or more members of 
 the Rules Committee, and shall be presented to the General 
 Synod on the first day of its Session next after the making 
 of such Rule, and it shall be lawful for the General Synod, 
 by a Resolution, to annul such Rule without prejudice to the 
 validity of anything done in the meantime in pursuance 
 thereof ; and every such Rule, unless annulled as aforesaid, 
 shall, while unrevoked, be of the same validity as if enacted 
 in this Chapter. Until Rules shall have been made in 
 pursuance of this section, and subject to such Rules when 
 made, the Rules, Orders, Forms, and Fees annexed to 
 Chapter IV. of the Statutes of the General Synod, 1886, 
 shall be the Rules, Orders, Forms, and Fees of the Diocesan 
 Courts and Registries, and the Rules, Orders, Forms, and 
 Fees of the Court of the General Synod, which were laid 
 before the General Synod in the year 1888, shall be the 
 Rules, Orders, Forms, and Fees of the Court of the General 
 Synod and of the Registry thereof. 
 
 01. The General Synod may from time to time, by 
 Resolution, regulate and provide for the election and 
 summoning of the Court of the General Synod, and for 
 giving effect to the provisions of this Chapter, as occasion 
 may require. 
 
 52. Hvery act which would have been a breach or violation 
 of the Keclesiastical Law of the United Church of England 
 and Ireland, and an offence punishable by such law in 
 Ireland, at the time of the passing of the “Irish Church, 
 Act, 1869,” and which is a breach or violation of the 
 Ecclesiastical Law of the Church of Ireland for the time 
 being; and also all crimes for the time being punishable by 
 law in Ireland, immorality, drunkenness, conduct unbecoming 
 to the sacred calling of a Clergyman, and all other acts 
 which are breaches or violations of the Canons or other 
 Laws of the Church of Ireland, for the time being, and the 
 teaching or publishing of any doctrine contrary to the 
 doctrines of the Church of Ireland, shall be offences against 
 the Heclesiastical Law of the Church of Ireland, cognisable 
 by the Keclesiastical Tribunals of the said Church; and it 
 shall be lawful for such Tribunals to award the same or 
 
CONSTITUTION OF THE CHURCH. 107 
 
 similar panishments for such offences, as under the laws in 
 force at the passing of the said Act the Hecclesiastical 
 Courts were competent to decree in respect of the same 
 or similar offences, or such other punishments as are 
 or shall be provided or appointed by the Laws of the 
 Church of Ireland for the time being. 
 
 53. The said Weclesiastical Tribunals shall be at liberty 
 to accept lawful proof of a conviction in any of the Queen’s 
 Temporal Courts for treason, felony, or misdemeanour, or of 
 any finding, judgment, or order of any such Temporal 
 Court, in any criminal or civil proceeding, establishing or 
 founded upon the fact of any immoral act, immoral conduct, 
 or immoral habit, as sufficient evidence of such crime or 
 fact; provided such conviction, finding, judgment, or order, 
 shall not in the meantime have been reversed or set aside, 
 and that more than two years shall not have elapsed since 
 the date of the said conviction, finding, judgment, or order. 
 
 54, It shall be lawful for the Hcclesiastical Tribunals to 
 receive in evidence statutory declarations of witnesses, but 
 upon such terms, if any, as to requiring the cross-examina- 
 tion of the witnesses either before the Court itself or by 
 Commission or written interrogatories, or as to allowing such 
 declarations to be answered, as may be directed by the 
 _ Court or prescribed by Rules framed in pursuance of this 
 Chapter. 
 
 55. If any accused person shall be adjudged by the 
 Diocesan Court, or by the Court of the General Synod, to 
 be guilty of an offence cognisable by the Court, the Court 
 shall proceed to pass sentence in accordance with the provi- 
 sions of this Chapter. 
 
 56. The Diocesan Court shall have power to pronounce 
 sentence of admonition, or of suspension ab officio or a bene- 
 ficio, but not of deprivation or of deposition from Holy 
 Orders, subject, in all cases, to appeal to the Court of the 
 General Synod ; and shall have power to inhibit any person 
 charged from the exercise of his office pendente lite, or pending 
 any appeal. 
 
 57. The Court of the General Synod shall have power to 
 pronounce sentence of admonition, or of suspension ab officio 
 or a beneficio, or of deprivation, or of deposition from Holy 
 
108 APPENDIX A. 
 
 Orders, subject to the provisions of section 30; and shall 
 have power to inhibit any person charged from the exercise 
 of his office pendente lite. 
 
 58. Every Diocesan Court, and the Court of the General 
 Synod, shall have power to order that a suspended Clergy- 
 man shall not reside in the Glebe House, or retain possession 
 of the Glebe lands, during suspension, and that he shall 
 deliver up all books, keys, and other property held by him 
 in virtue of his office, to the Churchwardens, or to such 
 other person or persons as the order may appoint to hold 
 such property for or on behalf of the Representative 
 Church Body. 
 
 59. Disobedience to any sentence or order of any Eccle- 
 siastical ‘Tribunal shall constitute a distinct offence, on proof 
 whereof such sentence may be pronounced as the Court shall 
 think proper, including, in the case of the Court of the 
 General Synod only, a sentence of deprivation. 
 
 60. It shall be lawful for every Ecclesiastical Tribunal 
 to order that any moneys payable as stipend to a suspended 
 Clergyman shall be sequestered, for such period and subject 
 to such conditions as the Court may think fit; whereupon 
 all such moneys shall, subject to the order of the Court, 
 become payable and be paid to the Diocesan Council of the 
 Diocese of such Clergyman, which shall receive and admi- _ 
 nister the same as the Court shall direct, or, in the absence of 
 such direction, as the said Council shall think just. 
 
 61. It shall be lawful for any person convicted of any 
 crime by the Court of the General Synod, or aggrieved by 
 any Judgment, sentence, or order of the said Court, at any 
 time within one year next after the date of such judgment, 
 sentence, or order, to present a petition to the said Court 
 praying that the case may be reheard upon grounds to be 
 set forth in such petition, and praying that the judgment, 
 sentence, or order may be set aside or varied; and there- 
 upon it shall be lawful for the said Court, or any two mem- 
 bers thereof, one being a Judge of the Supreme Court of 
 Judicature in Ireland, upon just and reasonable grounds, 
 to order that the case shall be reheard by the said Court, 
 and such rehearing shall take place when and as the said 
 Court shall direct. Provided that the said Court or such 
 
CONSTITUTION OF THE CHURCH. 109 
 
 members thereof may impose such terms, by way of secu- 
 rity for costs and expenses, and by way of admissions or 
 otherwise, as shall be deemed just and proper. 
 
 62. The Archbishops and Bishops of the Church of 
 Ireland shall have, and may use, all the same powers of 
 granting licences, dispensations, faculties, and other writings 
 which they had and might have used at the time of the 
 passing of the “Irish Church Act, 1869.” Provided that 
 every person considering himself aggrieved by the granting 
 or withholding of any faculty, except in the case of the 
 granting or withholding of a faculty for ordination, shall be 
 entitled to have his case heard and determined by the 
 Diocesan Court, or may appeal to the Court of the General 
 Synod. 
 
 63. Every Rector, Vicar, Incumbent, or Curate, who 
 shall have the custody for the time being of any Register 
 Books of Baptisms, of Marriages, or of Burials, shall at all 
 reasonable times, on demand, make search in any such 
 Register Book, and shall give a copy certified under his 
 hand, of any entry or entries in the same, on payment of the 
 fee hereinafter mentioned; that is to say, for every search 
 extending over a period of not more than one year, the sum 
 of One Shilling, and Sixpence additional for every additional 
 year, and the sum of Two Shillings and Sixpence for every 
 single certificate: Provided that nothing herein contained 
 shall be taken to invalidate the established usage in any 
 Parish as to the amount properly payable for any such 
 search or certificate, during the tenure of office of any 
 person who was entitled on April 30, 1881, to receive the 
 same. 
 
 64. If any Layman shall have been convicted and sen- 
 tenced, by any of the Queen’s Temporal Courts, for any 
 criminal offence, or shall be a fugitive from justice in any 
 case in which a warrant has been issued for his apprehen- 
 sion, or shall have ceased to be a member of the Church of 
 Ireland, or shall have been found lunatic, or placed under 
 lawful restraint as a person of unsound mind, or shall wil- 
 fully and without sufficient cause have neglected or refused 
 to attend and give evidence when duly summoned to do so 
 at any trial or investigation held under the authority of the 
 
110 APPENDIX A. 
 
 Constitution of the Church, the Archbishop or Bishop of the 
 Diocese, with the advice of his Chancellor, may, by order 
 under his hand and seal, declare any office in the Church 
 of Ireland to which such Layman may have been elected 
 or appointed, to be vacant, and the same shall there- 
 upon be filled in due course, as if the Layman aforesaid 
 had died. 
 
 
 
AS Ea PebaNtD aXe Br 
 
 CONSTITUTION OF THE CHURCH OF IRELAND, 1889, 
 
 CHAPTER XII. 
 
 MANAGEMENT OF BURIAL GROUNDS. 
 
 1. The care of all Burial Grounds vested by the Commis- 
 sioners of Church Temporalities in the Representative Body 
 is hereby entrusted to the Ministers and Churchwardens of 
 the several Churches to which the same are respectively 
 annexed, but subject to the control of the Representative 
 Body ; and in order to the protection of same, the Minister 
 and Churchwardens may prevent trespass, or other unlawful 
 use of, or interference with the same, and act on behalf and 
 in the name of the said Representative Body in any proceed- 
 ings requisite for the purpose. But all costs and expenses 
 incurred by such proceedings shall be paid by the said 
 Minister and Churchwardens to the Representative Body, 
 and in case the Select Vestry shall have approved of such 
 proceedings shall be charged to the account of the Parish. 
 
 2. In every case where there is a road or avenue specially 
 appropriated by deed or otherwise to any such Burial Ground, 
 the care and protection of the same is hereby entrusted to the 
 same parties as by this Chapter are charged with the con- 
 servancy of the Burial Ground itself. 
 
 3. Where, by faculty or prescription, the members of a 
 family have acquired a right to be buried in a particular 
 place in any such Burial Ground as aforesaid, such right shall 
 
112 APPENDIX B. 
 
 in conformity with the provisions in that behalf of the “ Trish 
 Church Act, 1869,” be acknowledged, and effect shall be 
 given to the same by the Minister and the Churchwardens 
 charged with the care thereof. 
 
 4. When members of a family have been buried in a par- 
 ticular place, although it may not have occurred in the 
 exercise of a right, the Minister and Churchwardens shall 
 nevertheless guard against interfering with such use of such 
 place, unless on grounds of imperative public convenience or 
 necessity. 
 
 5. Except in cases where such right or user exists, the 
 Minister and Churchwardens shall determine the place of 
 sepulture. 
 
 6. No corpse shall be buried within 12 feet of the fabric 
 of the Church, except in a vault hitherto lawfully used for 
 sepulture, and having its sole entrance from outside the walls, 
 or in a vault or substantially built enclosure adjacent thereto, 
 which at present exists. 
 
 7. No corpse shall be disinterred or removed, except on a 
 warrant from the Coroner or other authorised officer, or by 
 the authority of a faculty from the Bishop’s Court. 
 
 8. The Select Vestry of the Church to which the Burial 
 Ground is annexed shall appoint a grave-digger, who shall 
 be entitled to such reasonable fee as the Select Vestry may 
 appoint for digging a grave, unless the same be otherwise 
 provided for, with the consent of the Select Vestry. 
 
 9. The Minister and Churchwardens shall have power to 
 permit headstones, flatstones, railings, and vaults to be erected 
 and made; and shall be entitled to charge such fees for the 
 erection of the same, and for burial in such vaults, and in 
 those already made, and in graves, respectively, as the Select 
 Vestry shall appoint, with the consent of the Diocesan Council; 
 and provided that no inscriptions be allowed upon such erec- 
 tions unless previously approved of by the Minister, with an 
 appeal to the Ordinary. 
 
 10. The Select Vestry of each Church shall fix a scale 
 of fees for mural tablets; but in case of leave to erect 
 monuments being applied for and given, pursuant to the 
 Canon in that behalf, the Select Vestry shall fix on each 
 occasion the fee to be charged for the permission. 
 
CONSTITUTION OF THE CHURCH. 113 
 
 11. All fees receivable under this Chapter, except the 
 grave-digger’s fees shall be received by the Minister and 
 Churchwardens, or such person as they shall authorise, and 
 shall be expended in keeping the Church and Burial Ground 
 in good order and repair, and any surplus shall be applied by 
 the Select Vestry to such use as they may think fit, subject 
 to the provisions of Chap. iii., sec. 20, preceding, and all such 
 receipts and expenditure shall be accounted for by them to 
 the Representative Body. 
 
 12. In case of Cathedrals, not having Churchwardens, but 
 having Cathedral Boards or Cathedral Select Vestries, such 
 Cathedral Select Vestries shall, as to such Cathedrals and the 
 Burial Grounds attached thereto, have and exercise all the 
 same duties, powers, and authorities as are hereby assigned 
 to Churchwardens; and for the purposes of this Chapter the 
 Deans, or, in their absence, the Sub-Deans, of such Cathedrals 
 shall be considered to be the Ministers thereof. 
 
 13. Provided always that any person aggrieved by the 
 refusal of the Ordinary, Minister, Churchwarden, or the Select 
 Vestry, or otherwise, in the premises, shall have the right to 
 appeal to the Diocesan Court, which Court shall have full 
 authority to hear and determine such appeal; and an appeal 
 from said Court shall in all cases lie to the Court of the 
 General Synod, which shall have full authority to hear and 
 determine the same. 
 
 14. Nothing in this Chapter contained shall be taken to 
 interfere with any right existing on the 17th of May, 1873. 
 
APPENDIX C. 
 
 TABLE OF CASES HEARD IN COURT OF GENERAL SYNOD. 
 
 Reported in Journal. 
 
 1.—1885. Re Meath Episcopal Election. 
 Right of Diocesan Synod to sub- 
 mit the names of three clergy- 
 men to the Bench of Bishops. 
 Case from Bishops on Consti- 
 tution, chap. vi., : . 1886, p. 169 
 
 2.—1886. Re Precedence of Bishop of Meath. 
 Case from Bishops. 
 Held, Bishop of Meath is entitled 
 to precedence next after Arch- 
 bishop of Dublin, . . - 1886, pii76 
 Of course this decision on the 
 Church Statutes related to Eccle- 
 siastical precedencein the Church 
 of Ireland. Civil and social pre- 
 cedence depends on rules made 
 by the Queen. The rule of 26th 
 March, 1885, which gives Bishops 
 of the Church of Ireland and of 
 the Roman Church precedence 
 before Barons also declares that 
 they shall take rank inter se 
 according to the dates of con- 
 secrations, see rule in Jowrnal, 1886, p. 176 
 
TABLE OF CASES HEARD IN COURT. 115 
 
 3.—1888. 
 
 4.—1888. 
 
 5.—1888, 
 
 6.—1890. 
 
 7.—1892. 
 
 8.—1892. 
 
 9,—-1893. 
 
 10.—1893. 
 
 11.—1894. 
 
 Reported in Journal. 
 
 Legality of Grant to a Divinity 
 School in connection with the 
 Church of Ireland. Case from 
 General Synod, 
 
 Diocesan Nominators. Court re- 
 fused to consider the question, 
 no parties appearing to argue 
 same. Case from General Synod, 
 
 Effect of resignation of his bene- 
 fice by Archdeacon on retainer 
 of Archdeaconry. Case from 
 Bishops, . 
 
 M‘Keown v. Irwin, Clk. Teter 
 of request from iMpreesese Synod, 
 
 Immorality of Clerk. Sentence, 
 suspension for three months. 
 
 Brown v. Creagh. LHlection of 
 Incumbent, : : 
 
 Grant v. Smith. Appeal from 
 Diocesan Court on Canon xxxvi, 
 
 Cross on structure behind Com- 
 munion Table declared illegal. 
 
 M‘Loghlin v. Diocesan Synod of 
 Cashel, : 
 
 Held, Sonal had oe to Percind 
 a resolution. 
 
 Ross v. Macdonagh, Clerk. Letters 
 of request from Diocesan Synod, 
 
 Drunkenness. Scandal. Sentence 
 of Deprivation. 
 
 Campbell v. Hunt, Clk. Doctrine 
 contrary to Articles. 
 
 me 
 
 1888, p. 158 
 
 1888, p. 160 
 
 1888, p. 161 
 
 1895, p. 202 
 
 1895, p. 203 
 
 1895, p. 204 
 
 1895, p. 215 
 
 1895, p. 216 
 
 1895, p. 217 
 
APPENDIX D. 
 
 REPORT OF THE STANDING COMMITTEE TO GENERAL 
 SYNOD ON MARRIAGE LAWS. 
 
 On 14th April, 1898, the following resolution was adopted 
 by the Synod :— 
 
 “That the Standing Committee be requested to 
 prepare and present a petition to the House of 
 Commons setting forth the anomalous position of the 
 Clergy of the Church of Ireland in the matter of the 
 Marriage Laws, and to take such other steps as they 
 may think expedient.” 
 
 It was not found possible to carry out the intention to 
 have a Petition presented to Parliament, as the Committee 
 of the House of Commons, which was sitting when this 
 resolution was passed, very shortly afterwards concluded its 
 labours; but the entire matter, together with important 
 questions with reference to the marriage of divorced persons, 
 was referred to the Legal Committee. 
 
 Mr. Justice Holmes, Mr. Justice Gibson, and Mr. Justice 
 Madden were requested to act with the Legal Committee in 
 the consideration of these matters. 
 
 The Standing Committee having referred to their Legal 
 Committee the resolution of the General Synod of 1893, 
 relating to alleged anomalies in the Marriage Laws, with 
 
MARRIAGE LAWS. Lie 
 
 certain queries addressed to the Standing Committee on the 
 subject, the Legal Committee report as follows :— 
 It has been suggested :— 
 
 1. “That the Clergy of the Church of Ireland are 
 required to make quarterly returns without fee or 
 reward, whilst in England the Clergy are paid for 
 this service.” 
 
 This complaint is well founded. By 7 & 8 Vict. ¢. 8, 
 s. 65, Clergymen of the Irish Church and Presbyterian 
 Ministers, and by 26 & 27 Vict. c. 27, s. 9, the Ministers of 
 the other denominations (save Roman Catholics) are required 
 four times in each year to send copies, certified under their 
 hands, of every entry made within the quarter in the 
 Marriage Register Books which they are bound to keep. 
 No fee for this duty is provided. Similar duties are cast on 
 the English Clergy by 6 & 7 Wm. IV. c. 80, ss. 31-33; 
 but by 7 Wm. IV. & 1 Vict. c. 22, s. 27, a fee of sixpence 
 for each entry is paid to the Clergyman by the Marriage 
 Registrar of the district, for which he is reimbursed by the 
 Poor Law Union. By 26 & 27 Vict. c. 90, s. 11, in case of 
 all marriages in Ireland not within the 7 & 8 Vict. ¢. 81, or 
 any Act amending the same, the parties are required to 
 procure a Form of Certificate from the Registrar, before the 
 marriage, and they and the Clergyman are bound to sign it, 
 but the husband only is bound under penalty to post it to the 
 District Registrar. This section applies to Roman Catholic 
 marriages. We understand that it is not generally complied 
 with, and that Roman Catholic Clergymen have very 
 generally taken on themselves to forward certified entries 
 to the Registrar without remuneration. 
 
 The Legal Committee suggest that a fee of one shilling 
 -per entry should be paid to all Clergymen or Ministers 
 making certified returns. This fee is provided for the 
 Registrar for each entry made by him in the Marriage 
 Notice Book, and for each Certificate of Notice given by 
 him under 7 & 8 Vict. c. 81, ss. 14 and 16. As the marriages 
 annually registered in Ireland do not exceed 21,000, the 
 total required to cover the proposed fee would be about 
 £1000 a year, which might be provided for either as part of 
 
118 APPENDIX D. 
 
 the expenses of the Registrar-Gencral’s Department, under 
 7 & 8 Vict. c. 81, s. 54, or defrayed out of local rates. 
 One shilling in Ireland would not be unreasonable, as 
 compared with sixpence in England, where the Church is 
 established. 
 
 2. “ That whilst Roman Catholic Bishops can issue 
 Episcopal licenses without paying duty, the Bishops 
 of the Church of Ireland and the authorities of the 
 other denominations are charged a £5 stamp duty.” 
 
 The stamp duty is imposed by 33 & 34 Vict. c. 97, 
 Schedule, upon special licenses only; it is charged in 
 England also. No duty is charged on ordinary licenses, nor 
 where marriages are solemnized under the other statutory 
 authorizations provided by 7 & 8 Vict. c. 81; 26 & 27 Vict. 
 c. 27; 33 & 34 Vict. c. 110. Marriage licenses by Roman 
 Catholic Bishops are not governed by statute, and are not 
 liable to any duty to the Crown; the dues payable upon 
 Roman Catholic marriages are regulated only, it is to be 
 remembered, by Roman Catholic ecclesiastical law and 
 custom. It appears anomalous that members of Protestant 
 denominations should be obliged to pay duties to the Crown 
 from which Roman Catholics are exempt. 
 
 3. “That whilst Church of Ireland Clergymen 
 authorized to issue licenses must give notice to the 
 clergy of the other denominations in cases of mixed 
 marriages, the latter, whether Presbyterian, Roman 
 Catholic, or Nonconformists, are not required to give 
 notice to them.” 
 
 This matter needs a somewhat full explanation. By 33 
 & 34 Vict. c. 110, s. 34, the Bishops of the Irish Church are 
 empowered to nominate persons (not necessarily Clergymen) 
 to issue licenses for marriages where both parties belong to 
 the Church ; and such licensing persons are required to send 
 a copy of the marriage notice given to them to the Clergymen 
 of the Churches the parties habitually attend. 
 
 By the 38th section a marriage may be solemnized by a 
 Church of Ireland Clergyman, where one party only belongs 
 to the Church; or by a Roman Catholic Clergyman, where 
 
MARRIAGE LAWS. 119 
 
 only one is a Roman Catholic. In either case a notice is to be 
 given to the Registrar, as under the Acts of 1844 and 1863, 
 whose duty is (26 & 27 Vict. c. 27, s. 3) to send a copy by 
 registered letter to the Minister of the Church or place of 
 worship which the parties to the marriage or either of them 
 usually attend; but as sending the notice to one place of 
 worship suffices, there is no obligation to send it to that of 
 the party not of the religion of the officiating Clergyman. 
 
 By 7 & 8 Vict. c. 81, each Presbytery can appoint a 
 Minister to grant marriage licenses within his Presbytery, 
 where both or one of the parties is a Presbyterian ; and there 
 is no obligation to send a copy of the Notice of Marriage to 
 the Church of the non-Presbyterian party. 
 
 By 26 & 27 Vict. c. 27, ss. 2 and 3, in case of all marriages 
 (other than Roman Catholic, or Church of Ireland, or Pres- 
 byterian) by banns or license, marriage notices must be given 
 to the Registrar, who, as above stated, must send a copy to 
 the Minister of the place of worship which the parties, or 
 either of them, usually attend, but with no obligation, as 
 already stated, to send to more than one. 
 
 In the opinion of the Legal Committee, the above 
 anomalies might be removed by a simple provision that in 
 all cases of mixed marriages within the above cited Acts of 
 1844, 1868, 1870, and 1871, the Marriage Notice should 
 necessarily be given to the Registrar, and that it should be 
 his duty to send a copy by registered letter to the Clergyman 
 of the place of worship which each of the parties usually 
 attends. 
 
 4. “That Presbyterian licensers may license to 
 marry in any Presbyterian meeting-house within his 
 Presbytery, whether the parties attend the meeting- 
 house in which the marriage takes place or not; 
 whilst Church of Ireland licensers can only license 
 for marriage in a church in the parish of which one 
 of the parties resides.” 
 
 This statement is not quite accurate. 
 
 ‘he Presbyterian licenser, by 7 & 8 Vict. c. 81, s. 8, 
 may grant licenses to marry in any Meeting-house within his 
 Presbytery, and it is sufficient under sect. 9, if either of the 
 
120 APPENDIX D. 
 
 parties have resided for fifteen days before the grant within 
 the Presbytery, which of course may contain many Meeting- 
 houses: but, by sect. 10, the person seeking the license 
 must personally appear before the licenser seven days before 
 the grant, and produce a certificate from the Minister of the 
 Congregation to which he or she has belonged for at least a 
 month previously, and which certificate must show the residences 
 of both parties and the congregation to which each belongs. 
 (Form D.) 
 
 By 33 & 34 Vict. c. 110, s. 35, the Bishops of the 
 Church of Ireland, when nominating marriage licensers, are 
 to define the districts within their respective Dioceses within 
 which the licensers are to act ; and licenses may be issued by 
 the licenser for marriage in any specified Church or authorized 
 Chapel within his defined district, provided that [in all such 
 cases, it is necessary — 
 
 First, that the party giving notice of the intended 
 marriage shall have dwelt for not less than seven days 
 next preceding in the district of the person issuing the license. 
 
 Secondly, that one of the parties shall, for not less than 
 fourteen days immediately before the day of the grant of 
 license, have had his or her usual place of abode within the 
 district attached, for the purpose of celebration of marriage, to 
 the Church or Chapel in which the marriage is to be solemnized. \* 
 
 The Legal Committee do not consider that this complaint 
 discloses any substantial grievance. 
 
 d. “A certificate of banns published in Ireland has 
 been refused in England. Is this refusal unlawful ? ” 
 
 “Are banns legal when one of the parties is in 
 England? ” 
 
 ‘Tf marriage can be by banns only in case both 
 parties reside in the country—England, Ireland, or 
 Scotland—where the marriage is to take place ? ” 
 
 The Legal Committee are of opinion that banns pub- 
 lished, according to the rubric in the Book of Common 
 Prayer, in the Irish and the English Parish Churches where 
 
 *The words between brackets were introduced by the Standing 
 Committee by way of amendment, June, 1895. (See Matheson’s 
 Digest, 58.) 
 
MARRIAGE LAWS. 121 
 
 the parties respectively reside are in all respects lawful, and 
 should be recognised by English and Irish Clergymen, 
 respectively. But, in case of refusal, it would be difficult, 
 if not impossible, to compel a Clergyman to recognise banns 
 published in another country. 
 
 The case of a marriage in an Irish Parish Church on 
 banns published therein, and in the English Parish Church 
 of the other party, is not, however, regulated by precisely 
 the same statutes which apply to a marriage in an English 
 Parish Church on banns published therein, and in the Irish 
 Parish Church of the other party. 
 
 By the old ecclesiastical, which was part of the common, 
 law, a binding marriage needed only to be solemnized by, 
 and in the presence of, a Clergyman. Banns were imposed 
 by canonical law to secure publicity of marriage “in the face 
 of the Church.” The Prayer Book, made by statute part of the 
 common law, adopted the system by its rubric, providing that 
 the banns are to be published in the Parish Church of each 
 of the parties, but without other local limitation. 
 
 Previous to Disestablishment, the Irish Marriage Act ex- 
 pressly recognised marriages by banns published according to 
 the rubric; and as the Churches were united by the Act of 
 Union, English Parishes were of course recognised in Ireland 
 as within the rubric. 
 
 The Irish Church Act of 1869, which dissolved the 
 statutory union, came into force in January, 1871; but in 
 August, 1870, the 33 & 34 Vict. c. 110, expressly passed to meet 
 the coming changes, enacts (sect. 32) that marriages between 
 Protestant Episcopalians (defined by sect. 4 to mean members 
 of the Churches of England or Ireland, or of the Scotch 
 Episcopal or any other Protestant Episcopal Church) may 
 continue to be solemnized in any Church in which marriages 
 according to the rites of the United Church of England 
 and Ireland could then (1870) be lawfully solemnized, and 
 in which Divine Service according to such rites should con- 
 tinue, or in any Church afterwards duly licensed under the 
 Act; and by sect. 8383 marriages in such Churches must be 
 preceded either by license or Registrar’s certificate, or by 
 banns, published in the manner, and according to the rules, then 
 (1870) in force in Ireland in relation to the publication of 
 
122 APPENDIX D. 
 
 banns in Parish Churches of the United Churches of England 
 and Ireland. These rules, as then existing, fully recog- 
 nised for a marriage in Ireland banns published in the 
 English Parish Church of the party resident in England. 
 The old mode of publication seems thus unquestionably to be 
 retained in Ireland. 
 
 In England, before Disestablishment, ‘‘banns’’? were 
 recognised and regulated by 4 Geo. LV., c. 76, which required, 
 by section 2, that they should be published in the form 
 prescribed by the rubric in the Parish Church or in some 
 public Chapel in which banns “ may now [1823] or may here- 
 after be lawfully published,” and wherein the parties dwell ; 
 and if the parties shall dwell in different Parishes or 
 Chapelries, the banns shall be published in the Church or 
 in any such Chapel as aforesaid belonging to such Parish or 
 Chapelry wherein each of the parties shall dwell; and the 
 marriage must be had in one of the Churches in which the 
 banns were published. This Act is still in force. It extends 
 to England only; but before the Irish Church Act, where 
 the marriage was had in the English Parish Church, an 
 Irish Parish Church seemed clearly within the above section, 
 and, as the Committee understand, was always in practice so 
 recognised. Since 1870 the Irish Parish Churches and 
 Chapels mentioned in the already cited sections of 33 & 34 
 Vict. c. 110, are expressly made Churches or Chapels wherein 
 banns, according to the rubric, may be lawfully published, 
 and, therefore, seems within the very words of the 2nd 
 section of Geo. IV., c. 76, as Churches, &e., in which banns 
 may hereafter [1823] be lawfully published, being so made by 
 an express enactment of the United Parliament. 
 
 6. “Can special licenses be granted when one only 
 of the parties is a member of the Church ? ” 
 
 The Legal Committee answer in the negative. By 33 & 34 
 Vict. c. 110, sec. 36, the Irish Bishops are empowered to 
 grant special licenses to marry at any convenient time in any 
 place within their episcopal superintendence “ where both the 
 parties are Protestant Episcopalians.” There is a similar 
 limitation in case of special licenses granted by the Modera- 
 
MARRIAGE LAWS. 123 
 
 tor of the General Assembly, and other heads of dissent- 
 ing bodies, under section 37. By the amending Act of the 
 following year, 84 & 35 Vict. c. 49, s. 26, the persons 
 empowered “to issue licenses” under 33 & 34 Vict. c. 110, 
 may issue licenses where one of the parties only is a Protes- 
 tant Episcopalian ; but the Legal Committee is of opinion 
 that this provision refers only to ordinary licenses under the 
 35th section of 33 & 34 Vict. c. 110. 
 
 7. “When notice of marriage is given to one 
 licenser under 83 & 34 Vict., c. 110, s. 35, can the 
 license be granted by another licenser in the same 
 district ?”’ 
 
 The words of this section show that the license is to be 
 granted by the person to whom the notice has been given. 
 
 8. “ What period of residence should be required 
 by the Clergy before the publication of banns? Isa 
 period of three months requisite, or, 1f not, what 
 period is necessary or desirable ? ” 
 
 The Common Law of the Church did not specify any 
 conditions of residence in case of banns, other than those 
 implied by the rubric to the Form of Solemnization of 
 Matrimony, in the Prayer Book. The rubric requires that 
 the banns must be asked in the Parish in which the parties 
 to be married dwell, or, if they dwell in divers Parishes, then 
 in each of such Parishes. The parties must, therefore, be 
 resident in such Parish or respective Parishes when the 
 banns are first asked, and during the whole period over 
 which the publication of banns extends. 
 
 Canon 52, which was in force in Ireland in 1870, for- 
 bade any minister to celebrate matrimony upon banns, ex- 
 cept published ‘in the parish churches and chapels wherein 
 the parties have dwelled by the space of three months 
 before.” This Canon was not re-enacted by the Constitu- 
 tion of the Church of Ireland, chap. ix., which provides 
 that the Canons therein enacted, “and none other,” shall 
 thenceforth have effect. But the Marriage Act of 1870, 
 sect. 38, provides that publication of banns shall be made 
 in the manner and according to the rules then in force in 
 
124 APPENDIX D. 
 
 Ireland. The result is doubtful, but it seems probable that 
 the Minister is no longer liable to censure for neglecting to 
 observe Canon 52.* The validity of the marriage would not 
 be affected where actual bona fide residence existed before 
 the publication of banns, but a period of three months, even 
 if not essential, is a convenient test of such residence. 
 
 9. “A question was also raised as to whether it 
 was desirable to bring in a Bill to amend the old 
 Canon Law restricting the hours for the solemniza- 
 tion of marriage, so as to bring it into conformity 
 with recent Statute Law, viz., from 8 a.m. to 2 p.m.” 
 
 Canon 52, above referred to, which formerly restricted 
 the hours, is no longer in force. They are now fixed by the 
 Marriage Act, 1870, sect. 38, and it is doubtful how far the 
 General Synod can alter the rules sanctioned by that Statute. 
 
 Minute of Standing Committee, 18th October, 1894. 
 
 “That the Committee on Marriage Laws be re- 
 quested to report as to the marriage of divorced per- 
 sons, and specially as to the following points :— 
 
 ‘“‘1, Power of Bishop as to issue of ordinary license 
 by his Registrar. 
 
 “2. Duty of Clergyman to perform the service on 
 the production of a license. 
 
 “3, Obligation of a Clergyman to allow the use of 
 his Church by another Clergyman.”’ 
 
 The three subjects referred to in this Minute are dealt with 
 in the following opinion :— 
 
 Before Disestablishment, the law made it obligatory on 
 Clergymen of the United Church to celebrate the marriage 
 service between persons not disqualified from marrying 
 each other, who presented themselves, having fulfilled the 
 necessary canonical or statutory conditions as to banns, license, 
 or notice to Marriage Registrar, and residence. This obliga- 
 tion is recognised by the Irish Marriage Act, 1844 (7 & 8 
 Vict. c. 81), section 1 enacting that every person in Holy 
 Orders of the United Church of England and Ireland shall be 
 bound to solemnize marriage on the production of the Regis- 
 
 
 
 * See ante, p. 77. 
 
MARRIAGE LAWS. 125 
 
 trar’s certificate provided by that Act, in like manner as he 
 is required by any law or canon now in force after publica- 
 tion of banns. The English Divorce Act, 1857 (20 & 21 
 Vict. c. 85, sect. 57), enacted that, after dissolution of a mar- 
 riage in pursuance of that statute, it shall be lawful for both 
 parties to marry again as if the prior marriage had been dis- 
 solved by death ; provided that no clergyman in Holy Orders 
 of the United Church of England and Ireland should be com- 
 pelled to solemnize the marriage of a person so divorced, 
 upon the ground that he or she has committed adultery ; 
 but section 58 enacted that any Minister of any Church or 
 Chapel of the United Church of England and Ireland refusing 
 to perform the marriage service in such case should permit 
 any other Minister in Holy Orders of the said United Church, 
 entitled to officiate within the Diocese, to perform such service 
 in such Church or Chapel. This enactment implies an obli- 
 gation to perform the service in every case except that of the 
 person guilty of adultery, and, even in that case, to permit 
 another Minister to perform it. 
 
 In Ireland, in cases of divorce by private Statute, no dis- 
 tinction is made between the guilty and innocent parties, 
 and both are enabled to marry again, unless the Statute 
 otherwise provides. 
 
 By the Irish Church Act, 1869, section 2, the statutory 
 union between the Churches of England and Ireland was 
 dissolved, and the Irish Church ceased to be established by 
 law after Ist January, 1871; but the Matrimonial Causes 
 (Ireland) Act, 1870 (83 & 34 Vict. c. 110), passed after the 
 Church Act but before it became operative, provides (sect. 
 32) that marriages between Protestant Episcopalians may 
 be solemnized in any Churches in which they then (1870) 
 might lawfully be solemnized according to the rites of the 
 United Church, and in which Divine Service according to 
 those rites should continue, or in any Church thereafter 
 licensed by the Bishop under this Act; and (sect. 33) that 
 marriages in such Churches shall be preceded either by (1) 
 banns according to the existing rules; (2) license or special 
 license; or (8) certificate of the Registrar under the Marriage 
 Act of 1844. It then enacts that the provisions of the Irish 
 Marriage Act, 1844, applicable to persons in Holy Orders of 
 
126 APPENDIX D. 
 
 the United Church, shall be in force with respect to the cele- 
 bration of marriage by any Clergyman having authority 
 to officiate, or who shall be permitted to officiate, in any of 
 the aforesaid Churches. 
 
 The Committee is of opinion that both the obligation 
 and the protection of the English Divorce Act, 1857, apply 
 to Clergymen of the Church of Ireland, at least until altered 
 by Statute of the General Synod, and, therefore, that there 
 is still an obligation on Irish Clergymen to solemnize the 
 marriage of a divorced person, who has fulfilled the condi- 
 tions as to banns, license, or Registrar’s certificate, or to 
 permit other Clergymen to do so in their Churches. 
 
 The Archbishops and Bishops have a discretion as to 
 granting special licenses, and, therefore, may refuse in the 
 case of divorced persons. In the case of an ordinary license, 
 if the person authorized by the Archbishop or Bishop, 
 under the 35th section of the Act of 1870, refuses to issue 
 it, there is an appeal to the Archbishop or Bishop. It 
 would appear undesirable to refuse to issue an ordinary 
 license, where the parties have the legal right to be married 
 by banns. 
 
 Other Churches in Ireland are free from any obligation 
 as to the marriage of divorced persons, the Roman Catholic 
 Church being absolutely free, whilst, in the case of Irish 
 Protestant Dissenters, the 26 Vict. c. 27, sect. 13, provides 
 that no marriage can be solemnized in any of their places 
 of worship without the consent of the Minister or of one 
 of the trustees or owners, deacons, or managers thereof. 
 The corresponding English Statute affecting English Non- 
 conformists (19 & 20 Vict. c. 119, sect, 11) has a similar 
 provision. 
 
 These Statutes may afford ground for asking from Par- 
 liament similar freedom in the case of the Irish Church, if 
 necessary. But it is at least questionable whether the 
 General Synod could now lawfully enact that no marriage 
 of a divorced person should be solemnized in any Church 
 vested in the Representative Church Body. As such persons 
 are, by Statute law, competent to marry again, the Com- 
 mittee could not advise the passing of a Church Statute 
 prohibiting the solemnization of their marriage in Church. 
 
APPENDIX E. 
 
 PARTICULARS OF THE REVISION OF THE BOOK OF 
 COMMON PRAYER. 
 
 Tur Church of Ireland, startled at the progress in the 
 Church of England of Ritualistic practices imitated from 
 the Church of Rome, and of doctrines inconsistent with the 
 principles of the Reformation, and alarmed at the schism 1n 
 which so many distinguished members of the United 
 Churches had gone over to Rome— 
 
 n pupt Ayavots ddyé €OnKe 
 
 moAXds 8 idOiuovs Woxas "Aid. rpotapev 
 
 Hpwowv— 
 and having settled the constitution of the Disestablished 
 Church, proceeded to consider the {Revision of its Prayer- 
 book and Formularies. Doubtless there were some few dis- 
 loyal men ranged on both sides of the controversy, but the 
 determination of the great majority of every order of the 
 Church was emphatically conservative. Their object was 
 not change, but security against change, dissension, and 
 schism. Speaking with intimate knowledge, the writer, as a 
 member of the Synod and of the Revision Committee, can 
 state with confidence that it was the mind and desire of the 
 Church generally not to make any alteration which could 
 lead any loyal and fairly intelligent member to lapse into 
 schism from the Church of Ireland. In 1887 when Revision 
 had been closed and all the canons made law, the Vicar of 
 
128 APPENDIX E. 
 
 St. Bartholomew, in the Diocese of Dublin, preached a 
 sermon in which he states: “I do not believe anything has 
 been done which would justify me in resigning; so I pro- 
 pose to obey,” and he has continued for 18 years Vicar of 
 the Parish. 
 
 The Revision Statutes were the result of the Reports 
 of two Committees—were twice carried by majorities of 
 two-thirds of clergymen and laymen in consecutive years, 
 without objections from any Diocesan Synods, and only on 
 two occasions did the Bishops exercise the power of voting in 
 a minority against an alteration. The subject seems settled 
 for a long time to come. Sometimes a few zealous men, 
 rart nantes in gurgate vasto, have proposed, or rather sug- 
 gested, further alteration; but the matter has been seldom 
 discussed, and was generally disposed of in an amicable spirit 
 by the previous question being carried without a division. 
 
 The Revision Acts are to be found in the Statutes of the 
 Synod and the Journals for the years 1871-1877. 
 
 The following are the particulars in which the Revised 
 Prayer-book of the Church of Ireland differs from that of 
 the Church of England as stated in Dr. Ball’s “ History of 
 the Reformed Church of Ireland ” :— 
 
 “JT. In the Prefaces, a new Preface is inserted, and 
 the dates are put to the former Prefaces. The entire 
 of the Addendum to the Preface which is entitled, ‘ con- 
 cerning the Services of the Church,’ and which is in fact 
 a Rubric, has been omitted. This takes away the direc- 
 tion that ‘all Priests and Deacons are to say daily the 
 Morning and Evening Prayer either privately or openly, not 
 being let by sickness or some other urgent cause.’ 
 
 ‘TI. The direction how the Psalter is to be read is placed 
 at the head of the Psalter ; the order how Holy Scripture is 
 appointed to be read is, in some respects, altered: and the 
 Lectionary which follows varies from the English, principally 
 by omitting all Lessons taken from the Apocrypha, and 
 by inserting additional Lessons from the Apocalypse. 
 
 “III. After the Table of Vigils, &c., there is inserted 
 power for the Archbishops and Bishops to appoint Days of 
 Humiliation, and Days of Thanksgiving, to be observed by 
 
REVISION OF THE BOOK OF COMMON PRAYER. 129 
 
 the Church of Ireland, and to prescribe special services for 
 the same. Here also there is introduced a Note on the 
 Golden Numbers. 
 
 “TV. In the Order for Morning and Evening Prayer, in 
 the title, the words ‘to be said and used,’ before ‘ daily,’ 
 are omitted; also the direction as to dress is omitted. 
 [This has been regulated by Canon 4, page 39, ante.] 
 Then are introduced powers, to enable selections from the 
 Services, with approval of the Ordinary, to be used; and 
 also for the use of the Morning and Evening Prayer, the 
 Litany, and the Order for the Administration of the Lord’s 
 Supper, as separate Services, or in any combination, subject 
 to the control of the Ordinary. And if the use of full 
 Services be found seriously inconvenient, the Ordinary may 
 dispense with one or more of them. With his permission a 
 sermon may, on special occasions, be preached without the 
 use of morning or evening prayer, some prayers from them 
 being used. ‘I'he Archbishops may vary the prayers relating 
 to the Royal family. It is explained that though all things 
 set forth are to be read or sung in the English tongue, this is 
 not to prevent the Irish language, or any other the people 
 may understand better, being substituted. 
 
 “*V. In the Order for Morning Prayer, the exlviii. Psalm 
 (Laudate Dominum) is introduced as an alternative to the Te 
 Deum or Benedicite. When the Litany is said, the Lord’s 
 Prayer and three versicles after the Creed may be omitted. 
 
 ‘‘VI. The Rublic directing the use of the Athanasian 
 Creed is omitted ; and the Creed remains without alteration, 
 but with no direction as to its use. 
 
 “VII. There is a new Rubric before the Litany directing 
 what is to be read with it, when it is read either as a separate 
 Service or in combination with the Communion Service. 
 
 “VIII. In the occasional prayers and thanksgivings there 
 is introduced from the Service for the 20th June a prayer for 
 Unity ; also the following new prayers—(1) for a sick person ; 
 (2) on the Rogation days ; (3) on New Year’s Day; (4) for 
 Christian Missions; (5) for the General Synod while it is 
 in Session ; (6) for use in Colleges and Schools ; (7) a thanks- 
 giving for recovery from sickness. The prayer for use in 
 time of plague, &c., is altered in some respects; so also is the 
 
 K 
 
130 APPENDIX E. 
 
 prayer for Parliament, in which for the words ‘ most religious 
 and gracious Queen’ are substituted the words ‘our Sove- 
 reign Lady the Queen.’ 
 
 “TX. In connexion with the Collects, Epistles, &c., there 
 are three Rubrics providing, among other things, for the case 
 of a holyday falling upon a Sunday. If on Christmas Day 
 or Easter Day there are two celebrations of the Holy Com- 
 munion, a new Collect, Epistle, and Gospel are provided, 
 which may be used at the first. For the Sunday after 
 Easter Day there is a new Epistle. 
 
 “‘X, In connexion with the Order for Administration of 
 the Lord’s Supper the preliminary Rubric is altered in some 
 respects; so also are the Rubrics before the Offertory. In 
 the Offertory sentences the two which were taken from Tobit 
 are omitted. The Rubric about the collection of the Offer- 
 tory is altered, in order to enable it to be before the sermon. 
 In the Nicene Creed, in the words, ‘I believe in the Holy 
 Ghost, the Lord and Giver of Life,’ 2 comma has been in- 
 serted after Lord, to bring the sense more to the Greek form, 
 viz. TO Ivevpa 75 aylov, TO Kbpiov, Kal TO Zworoov. The 
 Rubric before the exhortation to those who come to the 
 Communion contains an insertion of the words, ‘those who 
 do not intend to communicate, having had opportunity to 
 withdraw.’ The exhortation is slightly altered. It may be 
 omitted at the discretion of the minister (the consent of the 
 Ordinary having been first obtained), but provided that it 
 shall be read once a month at least, and at all great festivals. 
 In the Rubric before the prayer of consecration the words 
 ‘standing at the north side of the table’ have been introduced. 
 At the end of the office some additional Collects are intro- 
 duced; one of which may be used after the Offertory when ‘the 
 prayer for the Church Militant’ is not read. In the Rubrics 
 which follow these Collects provisions are added which enable 
 the minister to dispense with the ‘prayer for the Church 
 Militant,’ prohibit the administration of the Communion 
 unless two at the least are present, and permit on occasions 
 sanctioned by the Ordinary the service to begin with the 
 Collect, Epistle, and Gospel. ‘The direction as to the nature 
 of the bread is now imperative—‘ shall be,’ not as before, 
 ‘it shall suffice that it be.’ When by reason of numbers it 
 
REVISION OF THE BOOK OF COMMON PRAYER. 181 
 
 is inconvenient to address each communicant separately, the 
 words, on delivering the elements, may, with the consent of 
 the Ordinary, be said once to as many as shall together kneel 
 at the Holy Table; but they are to be said separately to any 
 communicant desiring it. 
 
 “XT. In the Service for Public Baptism of Infants 
 alterations are made in the Rubrics, the effect of which is 
 to permit parents to be sponsors for their own children ; and 
 when three sponsors cannot be found, to allow two; and if 
 two cannot be found, to allow one. Also some alterations 
 are made as to the times for administration of the rite. In 
 the exhortation at the beginning of the service, in place of 
 the words ‘except he be regenerate and born anew of water 
 and of the Holy Ghost,’ are substituted the words ‘except a 
 man be born of water and of the Spirit.’ Also the Rubric 
 before the words ‘I baptize thee’ has been altered, and now 
 reads ‘he shall dip it (the child) in the water discreetly and 
 warily, if they shall desire it, and he shall be certified that 
 the child may well endure it; otherwise it shall suffice to 
 pour water upon it.’ At the end of the service a new Rubric 
 is added, which explains the use of the sign of the cross: 
 ‘that it is not thereby intended to add any new rite to this 
 sacrament as a part ofit, or necessary to it; or that the using 
 of that sign is of any virtue or efficacy of itself, but only to 
 remind all Christians of the death and cross of Christ, which 
 is their hope and their glory; and to put them in mind of 
 their obligation to bear the cross in such manner as God 
 shall think fit to lay it upon them, and to become conform- 
 able to Christ in his sufferings.’ In the Public Baptism of 
 Adults the opening exhortation is modified, as in the Service 
 for Infants, and a new Rubric states that persons of riper 
 years may, upon great and urgent cause, be baptized in 
 private. 
 
 “XII. In the Catechism a question and answer having 
 relation to the Sacrament of the Lord’s Supper have been 
 introduced. In the Rubric directing the curate to catechise, 
 for the words ‘on Sundays and Holydays’ are substituted 
 ‘at such times as he shall think convenient.’ ‘The direction 
 in another Rubric that everyone shall have a godfather or 
 godmother as a witness of their confirmation has been omitted. 
 
 K 2 
 
132 APPENDIX KE. 
 
 ‘“‘XTII. In the Order for Confirmation is inserted a ques- 
 tion asking those baptized in riper years if they renew the 
 promise of their baptism. The Rubric as to admission to 
 the Holy Communion is now changed into ‘every person 
 ought to present himself for Confirmation (unless prevented 
 by some urgent reason) before he partakes of the Lord’s 
 Supper.’ 
 
 “XTYV. In the Form of Solemnization of Matrimony the 
 first Rubric recognises the use of Licenses, and gives direc- 
 tions as to Banns. In the opening exhortation there are 
 some verbal changes. Directions are given for procedure 
 when more than one couple are married. The prayer begin- 
 ning ‘O merciful Lord!’ is verbally altered. At the end 
 of the Service there are added the third of the Collects after 
 the Offertory, and the benedictory prayer for grace (2 Cor. 
 xili. 14), 
 
 “XV. Inthe Visitation of the Sick there is a new Rubric, 
 permitting the minister to edify and comfort the sick as he 
 shall think meet by instruction or prayer; but if the sick 
 person requires the office to be used, the minister shall use it. 
 A precatory form of absolution is substituted for the former ; 
 and in the Rubric before it the words ‘ the sick person shall 
 be moved to make confession’ are changed into ‘if the 
 sick person feel his conscience troubled with any weighty 
 matter,’ and the words ‘he shall absolve him’ into the words 
 ‘the minister shall say thus.’. There are added a new alter- 
 native Collect after the absolution, and a new prayer for a 
 sick person when his sickness is assuaged. In the Commu- 
 nion of the Sick the Rubric befere it is modified, to allow 
 the Collect, Epistle, and Gospel of the day to be used in 
 place of those prescribed. Power is given to shorten the 
 office if the person is sick; and the last Rubric is in some 
 respects varied. 
 
 “XVI. In the Order for Burial of the Dead the first 
 Rubric is enlarged, and allows in certain cases a portion of 
 the office to be used for unbaptized persons: an alternative 
 Lesson from 1 Thess. is added to the former one from 1 Cor. 
 xv. In the words said at the grave, beginning ‘ Foras- 
 much,’ &c., the words ‘of His great mercy’ are left out. 
 In the prayer beginning ‘ Almighty God, with whom do live 
 
REVISION OF THE BOOK OF COMMON PRAYER. 138 
 
 the spirits of them that depart this life,’ for the words ‘ we 
 give Thee hearty thanks for that it hath pleased Thee to 
 deliver,’ &c., are substituted the words ‘ we bless Thy holy 
 name for all thy servants departed this life in Thy faith 
 and fear.’ 
 
 “XVII. In the Commination Service the first exhorta- 
 tion has been modified ; and in the long exhortation ‘ fruits 
 of penance’ have been changed to ‘fruits of repentance.’ 
 
 “XVIII. Rubrics are placed before the Psalter taken out 
 of the old prefaces. 
 
 “XTX. In the Ordination and Consecration Services 
 Church is used instead of Realm, and also of Church and 
 Realm. 
 
 “XX. In the Form for the Anniversary of Her Majesty’s 
 accession, there are some unimportant variations of Rubrics, 
 and some Collects are omitted. 
 
 “ X XT. Some emendations are made in the former Irish 
 Service for Visitation of Prisoners; in the Absolution in this 
 Service the same change is made as in the Visitation of the 
 Sick. 
 
 ‘XXII. There are the following new Services :—(1) ‘To 
 be used on the first Sunday on which a minister officiates in 
 a church to which he has been instituted’; (2) ‘A form of 
 thanksgiving for the blessing of harvest’; (3) ‘A form for 
 the consecration of a church’; (4) ‘A form of consecration 
 of a churchyard or other burial-ground.’ 
 
coh 
 et ee 
 
 
 
TSN PDs Rex® 
 
 ADMINISTRATION OF THE LORD’S SUPPER: 
 
 Position of minister, 40. 
 
 Elevation of paten and cup, 45. 
 
 Incense illegal, 45. 
 
 Causes for which minister may refuse administration, 49. 
 Whether refusal can be the subject of an action, 49. 
 Consecration by priests only, 16. 
 
 Words of administration, 38. 
 
 ALTAR. (See Communton Taste.) 
 
 APPEAL: 
 
 From diocesan tribunals, 21, 29. 
 
 Appellate jurisdiction not exercised by civil courts, 22. 
 ARCHBISHOPS, (See Brsnors.) 
 BANNS. (See Marprace.) 
 
 BAPTISM : 
 
 Who may be sponsors—parents (Canon 12), 41. 
 Registry of baptism (see Canon 18). 
 
 BISHOPS: 
 Election of, Constitution, Chapter v1. 
 Election of Primate, Ibid. 
 
 Charge of, is privileged: see Laughton v. Bishop of Man 
 (4 P.C.C. 495). 
 
136 INDEX, 
 
 BURIAL-GROUNDS AND BURIAL, Chapter vu., 56. 
 
 See Constitution, Chapter xu., 111. 
 
 Vesting of burial-grounds in Representative Body, 56. 
 
 Common law right of sepulture for parishioners and 
 persons who die in a parish, 59. 
 
 Parishioners defined, 59. 
 
 Minister and churchwardens to select place of sepul- 
 ture, 60. 
 
 Minister may require notice, 60. 
 
 Burial fees, 61. 
 
 As to monuments and railings, 61, 63. 
 
 As to inscriptions, 71, 72. 
 
 Disinterment of bodies, 61. 
 
 Vaults, 62. 
 
 Public Health Act, 65. 
 
 CANONS, Chapter v.: 
 
 Former Canons of Church of Ireland repealed, 88. 
 
 Authority and sanction of Canons, 87. 
 
 Bind all members of the Church, 88. 
 
 All office-holders liable to deprivation for a second breach 
 of a Canon, 387. 
 
 As to observance of prescribed forms of Divine Service, 38. 
 
 As to changes in structure, ornaments, or monuments of 
 a church (Canon 40), 48. 
 
 CASES heard in Court of General Synod. Appendix C, 114. 
 
 CHURCHWARDENS : 
 
 Appointment of (see Constitution, Chapter u.). 
 
 Duties of, &c. (see § 21 and Canon 42). 
 
 Formerly obliged to keep a book and enter names of 
 preachers: obsolete. No legal obligation on minister 
 to keep such a book (see Cripps, 579). 
 
 CHURCHYARDS. (See Burtau-Grounps.) 
 
INDEX. 187 
 
 COMMUNION TABLE: 
 
 A movable table of wood—not immovable or made of 
 stone, 43. 
 
 To be covered (see Canon 84). 
 
 Illegal to place a cross upon table or on any structure be- 
 hind the table, 44. 
 
 Lights on table illegal, unless necessary for the purpose 
 of giving light, 44. 
 
 Corporations, Ecclesiastical, dissolved by Trish Church 
 Act, 1869, see sect. 18. 
 
 COSTS. Constitution, Chapter vim. : 
 
 Special rules when bishop is prosecutor, 35. 
 Provision for bishop’s costs, 85. 
 
 DEPRIVATION : 
 Sentence—its nature—two sorts, 33. 
 For what offences, 34. 
 Illustrations, 15, 28, 29. 
 
 DISCIPLINE, 50. 
 
 DISLOYALTY, 7. 
 DIVORCE. (See Marriace.) 
 
 DOCTRINE : 
 Legal tests—principle stated in Williams »v. Salisbury, 
 2 Moore, P. C. (N.8.), 875. 
 
 ECCLESIASTICAL TRIBUNALS, 93. 
 
 EJECTMENT : 
 Not by Church Tribunals, 5. 
 
 EVIDENCE, 24, 104. 
 
 FACULTIES: 
 General powers, 65, 66. 
 For changes in Church, 47, 66. 
 For vaults, 62. 
 To a man and his family, 65, 67. 
 To disinter human remains, 69. 
 To apply churchyard to secular uses, 73. 
 
138 INDEX. 
 
 FEES. (See Burtan-Grovnps.) 
 
 GLEBHES, 55. 
 
 HARDWICKE’S, LORD, ACT, 81. 
 
 INSCRIPTIONS ON MONUMENTS. (See Burtau-Grounns.) 
 
 JUDGES OF COURT OF GENERAL SYNOD: 
 Appointment of, 22, 28. 
 
 JURISDICTION : 
 Defined, 2. 
 Of ancient Ecclesiastical Courts abolished, 2. 
 Of General Synod to establish Church Tribunals, 4. 
 Limits of jurisdiction, 4. 
 No coercive jurisdiction, 4, 6. 
 Over lay members of the Church, 5. 
 
 LAW: 
 
 The Civil Law is supreme, and binds all members of the 
 Church, 4. 
 
 The Ecclesiastical Law of the Church binds her members, 
 clerical and lay, 4, 6. 
 
 Legal obligation of obedience, 7. 
 
 Resulting from implied mutual contract recognized in 
 Civil Courts, 4. 
 
 Moral obligations, 5. 
 
 LICENSE FOR MARRIAGE. (See Marrucz.) 
 
 LICENSE FOR MINISTER’S NON-RESIDENCE, CANONS, 
 41. 
 
 MARRIAGE—Chapter vut., 75. 
 
 New law for Ireland, Act of Parliament, 10th August, 
 1870, 76. 
 
 Three conditions precedent, one of which must be required 
 by minister, viz. Banns, License, Registrar’s Certificate, 
 76. 
 
 Banns—obligation of minister to publish banns, 84. 
 
 Minister to publish banns, 84. 
 
 Rules of publication, 77, 121. 
 
INDEX. 139 
 
 MARRIAGE—continued. 
 
 Where to be published, 77. 
 
 Only on Sundays (?), 80, 84. 
 
 At what period of Divine Service, 80. 
 
 As to residence of parties, 78, 123. 
 
 Power to publish banns, 128. 
 
 Consent in case of minor, 78. 
 
 Licenses, 84, 91. 
 
 Special or common, 84, 118. 
 
 Appeal to bishop, if officer refuses a common license, 84. 
 
 No obligation on bishop to grant common or special 
 license, 84. 
 
 Obligation of minister to marry when a license has been 
 duly granted, 85, 86. 
 
 Lawful houses for, 84. 
 
 Function of Civil Courts in relation to, 75. 
 
 May be dissolved in England by decree of Divorce Court ; 
 in Ireland only by Act of Parliament, 87, 88. 
 
 Ministers subject to a legal obligation to marry innocent 
 divorcees, 88, 124, 126. 
 
 Not under any obligation to marry a person divorced by 
 reason of his or her adultery, so long as the wife or 
 husband lives, 88, 89, 125. 
 
 No Givil or Ecclesiastical Law which prohibits the mar- 
 riage of divorced persons, 88, 90. 
 
 No obligation on bishops to grant licenses for the marriage 
 of any divorced persons, 90. 
 
 Precedent for refusal, 92. 
 
 As to the obligation of a minister to permit the marriage 
 in hig church, by another minister, of a guilty divorcee, 
 90. 
 
 Special licenses only where both parties are members of 
 the Church of Ireland, 122. 
 
 Report of Standing Committee on. Appendix D. 
 
 OFFENCES, 19. 
 
 Disobedience to orders of the tribunals an offence, 24. 
 Punishment for, 29. 
 
 ORNAMENTS OF CHURCH AND MINISTER, 39. 
 
140 INDEX. 
 
 PRESBYTER: 
 
 A presbyter ordained by a bishop only can consecrate and 
 administer the Lord’s Supper, 16. 
 
 REGISTRY : 
 Baptism, marriages, and burials, 73. 
 
 REPRESENTATIVE BODY, Chapter v1., 51. 
 Charter of incorporation, 51. 
 Duty as members, 52. 
 Power to hold lands, 58. 
 Property held by, 54. 
 
 RESIDENCE OF CLERGY: 
 Canons (26, 27, 28, 29), 41. 
 Act of Parliament, 5 Geo. IV. c. 91, 42. 
 Opinion of Bishop Davidson, 42. 
 
 REVISION OF PRAYER BOOK: Appendix HE, 127. 
 Trish Church Act, 4. 
 Form of proceedings in Synod, 7. 
 Right of minister to protest, 7. 
 Effect of protest, 8. 
 Particulars of changes in Prayer-Book, 128. 
 
 SCHISM, 39. 
 
 SEQUESTRATIONS : 
 Not by Church tribunals, 5, 81. 
 
 STATUTES: 
 Principles of interpretation, 2. 
 Acts of Uniformity, 16. 
 Act of Union extended to Ireland, the, 138. 
 Keclesiastical law of England, 18 Elizabeth, c. 12—False 
 doctrine, 14. 
 Trish Church Act, 1869, 1. 
 
 SYNODS: 
 Authorized by Irish Church Act, 3. 
 Procedure in General Synod, 17. 
 In the matter of revision, 17. 
 Details of Enactments of General Synod, Chapter m., 18. 
 
INDEX. 141 
 
 TRIBUNALS: Chapter rv., 20. 
 
 Diocesan Courts, 21. 
 
 Cannot hear cases touching doctrine or ritual, 20. 
 
 All decrees subject to appeal to Court of General Synod, 21. 
 
 Who may be petitioners, 21. 
 
 Court of General Synod and its constitution, 22. 
 
 Practice of the Court, 23. 
 
 Power of General Synod and bishops to refer cases to 
 Court, 23. 
 
 As to evidence, 24. 
 
 Generally speaking, Court will not try cases of alleged 
 crime, but will act upon convictions by the criminal 
 court, 25. 
 
 Decrees not subject to appeal in civil courts, 22. 
 
 Costs, 21. 
 
 Offences, 23. 
 
 VAULTS: 
 Repair of, 66. 
 
 VESTMENTS, 39. 
 
 THE END. 
 

 

 

 
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