Gpanars "s ve, i es ee Sete Feet Be tk tS zi Seigers tate eee ; a 53 oe cate soi) Pat eon Me # Sey TAreeiny Mos a Rates Banepa a pe sgt ia ne Gap COR “7 ot the Chenlagirg, & Uy, Y, PRINCETON, N. J. G 2 KD 8600 .B558 1899 Blunt, John Henry, 1823- 1884. - The book of church law WORKS BY THE REV. JOHN HENRY BLUNT, D.D. THE ANNOTATED BOOK OF COMMON PRAYER: Being an Historical, Ritual, and Theological Commentary on the Devotional System of the Church of England. Edited by the Rev. JOHN HENRY BLUNT, D.D. 40. 2Is. THE COMPENDIOUS EDITION: Forming a concise Commentary on the Devotional System of the Church of England. Crown 8vo. tos. 6d, DICTIONARY OF DOCTRINAL AND HISTORICAL THEOLOGY. By various Writers. Edited by the Rev. JOHN HENRY Biunt, D.D. Jmfperzal 8vo, 215. DICTIONARY OF SECTS, HERESIES, ECCLESIASTI- CAL PARTIES anp SCHOOLS or RELIGIOUS THOUGHT. By various Writers. Edited by the Rev. JoHN HENRY BLuNnNT, D.D. Imperial vo. 215. THE REFORMATION or THE CHURCH or ENGLAND: Its History, Principles, and Results. Zwo Vols. 8vo. Sold separately. Vol. L—aA.D. 1514-1547. 16s. Vol. II].—a.D. 1547-1662. 18s. DIRECTORIUM PASTORALE. The Principles and Practice of Pastoral Work in the Church of England. Cr. 8vo. 7s. 6d. A COMPANION TO THE BIBLE: Being a Plain Commentary on Scripture History, to the end of the Apostolic Age. Two Vols. Small 8vo, Sold separately. THE OLD TESTAMENT. 35. 6d. THE NEw TESTAMENT. 35. 6d. HOUSEHOLD THEOLOGY: A Handbook of Religious Information respecting the Holy Bible, the Prayer Book, the Church, the Ministry, Divine Worship, the Creeds, etc. etc. Paper cover, 16mo. 1s. Also the Larger Edition. 35. 6d. London, Mew Pork, and Bombay LONGMANS, GREEN & CO. BOOK OF CHURCH LAW . JAN 15 1916 } RY, GT, Deira sty ‘a THE ya IS OYOUK (0s MEI aAU Osea BEING AN EXPOSITION OF THE LEGAL RIGHTS AND DUTIES OF THE PAROCHIAL CLERGY AND THE LAITY OF Che Chureb of Bngland BY THE REV. LON EL BON RY a DU NYE s 2); L). EDITOR OF “THE ANNOTATED BOOK OF COMMON PRAYER,” ETC. REVISED BY THE HONBLE. SIR) WALTER G. F. PHILLIMORE, Barr, D.C.L. ONE OF THE JUDGES OF HER MAJESTY’S HIGH COURT OF JUSTICE SOMETIME CHANCELLOR OF THE DIOCESE OF LINCOLN AND OFFICIAL OF THE ARCHDEACONRY OF COLCHESTER AND G. EDWARDES JONES BARRISTER-AT-LAW, FORMERLY FELLOW OF PEMBROKE COLL. CAMBRIDGE EIGHTH EDITION Corrections after the Seventh Edition by G, Edwardes Jones LONGMANS, GREEN & CO. 39, PATERNOSTER ROW, LONDON NEW YORK AND BOMBAY 1899 All rights reserved CONTENTS Book I ae T HE CHURCH AND IESeCAWS CHAPTER 1. PAGE The Constitutional Status of the Church of England. , 1 CHAPTER I. The Law of the Church of England : : § : 10 CHAPTER. TT. The Administration of Church Law : : 7 2 2.26 Book 1 THESMINISTRATIONS OF THE CHURCH CHAPTER I. HOLY BAPTISM. (p. 34.) § 1. Persons qualified to be Baptized . Z : : ig DO. § 2. Persons qualified to administer Baptism . ‘ ee aL § 3. Manner of administering Baptism . . : ; ae 49 § 4, Public Baptism } : ; ; ; ; : De $5. Private Baptism . : ; 4 ; a OL § 6. Fees for Baptism raietn ; , : . 64 $7. Registration of Baptisms ‘ ¢ ; : 260 viii CONTENTS. CHAPTER II. CONFIRMATION. (p. 68.) § 1. Persons to be Confirmed . : : : : : § 2. Preparation for the Rite . § 3, Administration of the Rite CHAPTER IIL. THE HOLY COMMUNION. (p. 78.) § 1. Settlement of Law respecting the Holy Communion \ 2. Doctrine of the Holy Communion . § 8. Celebration of the Sacrament . § 4, Administration of the Sacrament CHAPTER IV. DIVINE SERVICE IN GENERAL. (p. 108.) § 1. Morning and Evening Prayer . § 2. The Litany § 3. Preaching CHAPTER V. HOLY MATRIMONY. (p. 121.) I. Preliminary Precautions against Clandestine Marriages § 1. Banns : § 2, Episcopal Marcave Taganes § 3. Registrar’s Certificates IT. Impediments of Marriage § 1. Minority . § 2, Forbidden Degrees III, The Marriage ; § 1. Place of Ceremony . § 2. Time of Marriage . : ° ° § 3, Obligation of Clergyman to Celebrate it . PAGE 69 72 74 102* 114 117 119 123 124 130 134 136 137 138 145 145 147 150 CONTENTS. § 4. Form of Solemnization . . ; § 5. Registration of pa : § 6. Marriage Fees . : : IV. Ecclesiastical Results of Marriage . . CHAPTER VI. The Churching of Women . - ‘ : ° CHAPTER Vit, The Visitation of the Sick f : : A CHAPHLEE AVALELs The Practice of Confession . A - : é CHAPTER IX. THE BURIAL OF THE DEAD. (p. 177.) . Unbaptized Persons : . Excommunicated Persons . Suicides Cr tO UM mM Hm Co bO et . Obligation of the Glace man in other Cases. Book II THES PAROCHIAL CLERGY CHAPTER I. HOLY ORDERS. (p. 188.) § 1. Preparation for Deacon’s Orders § 2. Ordination to the Diaconate . § 3. Preparation for Priest’s Orders § 4, Ordination to the Priesthood . CHARPTE Re lis Assistant Curates . ; . 5 F J ; 160 173 178 180 181 184 x CONTENTS. CHAPTER III. THE CURE OF SOULS. (p. 227.) § 1. Patronage. - : : § 2. Presentation . : : : : § 3. Admission . : . . . : : § 4. Institution § 5. Induetion ‘ . § 6. Reading In . : . : ‘ - : § 7. Perpetual Curates . : . § 8. Residence § 9. Pluralities’ : . . $10. Resignation . : : : . s : Book IV PAROCGCH TATRA, SORMIGHICS CHAPTER I. CHURCHWARDENS, (p, 254.) I. The Office of Churchwarden . 3 § 1. Persons Eligible, Disqualified, c or ereniet § 2. Manner of Appointment . II. The Duties of Churchwardens . < : § 1. Provision of Necessaries for Divine erie § 2. Duties during Divine Service . : . § 3. Care and Repair of the Church and its Accessories . § 4. Presentment of Offences against Ecclesiastical Law . § 5, Custody of Benefice during Vacaney : CHAPTER Ti: Church Trustees ; ‘ j i - é . CHAPTER III. Parish Clerks, Sextons, Beadles, Organists ° . CGHAPRTER-L/: Vestries . ‘ 5 = . 5 5 . a ° PAGE 227 232 234 237 240 243 246 . 246 250 251 254 256 258 263 264 265 270 275 282 285 287 298 CONTENTS. xi Book V CHURCHES AND CHURCHYARDS CHAPTER I. THE ACQUISITION OF CHURCHES AND CHURCHYARDS AS ECCLESIASTICAL PROPERTY. (p. 304.) TRS IN ler ene anne § 2. The Building . : : - : ‘ : . 307 § 3. Architectural Fittings ee Decorations . 2 : . 3807 § 4. Consecration . ; : : . 309 § 5. Status of Consecrated pad aad Buildings : : . 318 CHAPTER Ii. CHURCHES AND ECCLESIASTICAL PERSONS. (p. 32I.) § 1, The Bishop . Res eon ty ; oy Se se ay | § 2. The Incumbent 3 j 2 : : . : . 322 § 3. The Curate . - : : ; : : ? » 331 CHAPTER III, CHURCHES AND SECULAR PERSONS. (p. 332.) § 1. The State : : : . . : - : . 332 § 2. The Churchwardens . : : , ; ‘ ‘ . 333 § 3. The Parishioners. : ees i) pens Sieur | ary’ Boe Book VI THE ENDOWMENTS OF THE PAROCHIAL CLERGY CHAPTER I. INCOMES, (p. 336.) si. ‘Tithes . : 5 : : - : , : . 337 § 2. Glebe Lands . : : : : : ; : . 346* § 3. Perpetual Annuities ; : : : , : . 348 § 4, Fees, Dues, and Offerings ‘ aahcs 5 . . 349 xii CONTENTS. CHAPTER II. PARSONAGE HOUSES. (p. 353.) § 1. Their Acquisition . . : : : - § 2. Repairs during Incumbency § 3. Insurance i : : : d : § 4. Liabilities of Outgoing and Incoming Reeser ‘ CHAPTER II, The Sequestration of Benefices : : : : . APPENDIX i The Canons of 1608, 1865, and 1888 Ihe The Church Discipline Act of 1840 - : ITT. The Incumbents Resignation Acts of 1871 and 1887 Ve: The Ecclesiastical Dilapidations Act of 1871 The Sequestration Act of 1871 Vic The Act of Uniformity Amendment, 1872. - z VII. The Public Worship Regulation Act of 1874 ° : AAMT The Burial Laws Amendment Act of 1880 . : IX. The Sale of Glebe Lands Act, 1888, and the Sale of Glebe Land Rules, 1897 X. The Tithe Act of 1891 . 4 : 4 A 4 F MG The Clergy Discipline Act of 1892 : . XT The Benefices Act of 1898 . F é ; > WHE. Ecclesiastical Fees . : : ; z ; 2 f INDEX ; : : : ° ° . : 561 568 Book I. THEIGHURCH AND ITS-LAWS: Chapter I. THE CONSTITUTIONAL STATUS OF THE CHURCH ' OF ENGLAND. HE Cxurcn oF ENGLAND consists of the clergy and laity of the two provinces of Canterbury : ae . Definition and York; those provinces containing thirty- of the ; 1 : : : Church of five dioceses,’ and being conterminous with the erialaedt fifty-two counties of England and Wales, sup- plemented by the Channel Islands and the Isle of Man. The CLEerGy of the Church of England are “all per- sons in Holy Orders, and in ecclesiastical ae Gis rf Definition offices,”? within the boundaries of those two of the provinces, numbering two archbishops, thirty- eas three bishops, and about thirty thousand priests and deacons. The Laity of the Church of England are, theoretically, all “such of the people as are not comprehended under the denomination of clergy.”* But this comprehensive * It is now proposed to make a new Diocese of Birmingham, 2 Blackstone’s Com. I. xi. 3 Ibid. xii. B 2 THE CONSTITUTIONAL STATUS [BOOK-1. definition must be modified to meet the fact that a large number of the people altogether disconnect them- Definition S¢lves from the Church of. England, and of the cannot therefore be reckoned among its lay Teas people. In a stricter sense the laity of the Church of England are, consequently, those within the territorial boundaries of its two provinces who have not by any overt act declared their dissent from its communion. In a still more contracted sense the term is limited to those who comply with the canonical requirement respect- ing communion, by receiving the Holy Communion “at the least thrice in the year (whereof the feast of Easter to be one), according as they are appointed by the Book of Common Prayer.” [Canon xxi.] But in the absence of any legislative definition of the term “layman of the Church of England,” it must be ordinarily interpreted as meaning one not in Holy Orders, who signifies a general assent to the doctrines and practices of that Church by customarily using its ministrations.? The Church of England of the present day is legally, Legal as well as historically, continuous with that of continuity of the ipa and on a regular succession of bishops from the modern 4 . Churchof apostolic age, and’ not being broken by the England. ancient times; that continuity being founded Reformation. In medizval Acts of Parliament it is called by the same name as at present, “ Ecclesia Anglicana” [25 Edw. I, ch. 1, av. 1297], “L’Eglise d’Engleterre” [25 Edw. IIL, st. 4, ap. 1350]. It is so * For an historical and theological account of the terms “ Church,” “Clergy,” and “ Laity,” see Blunt’s Dictionary of Theology, s. v. cHAP.1.] OF THE CHURCH OF ENGLAND. 3 called also in canons passed by convocation, A.D. 1416, and in the Act of Supremacy [26 Hen. VIII, ch. 1].4 It is part of the “one catholic and apostolic Church” named in the Nicene Creed,? and is in free J : Its relation communion with the ancient Churches of Ire- to other land and Scotland, and with the modern et Churches in American or in English territories which * The “Church of Rome” was never recognised as having any locus standi in England in medieval times, all acts of papal juris- diction in England being referred to as those of the foreign Court of Rome [“la court de Rome,” 25 Edw. III., st. 4; 13 Ric. IL, st. 2, ch, 2], or of our holy father the Pope [“nostre seint piere le Pape,” 13 Rie. IL., st. 2, ch. 2], 2 “ Whosoever shall hereafter affirm, that the Church of England, by law established under the King’s Majesty, is not a true and Apostolical Church, teaching and maintaining the doctrine of the Apostles ; let him be excommunicated ipso facto, and not restored, bat only by the Archbishop, after his repentance, and public revo- cation of this his wicked error.” [Canon iii.] “ Provided always, that this Act, nor any thing or things therein contained, shall be hereafter interpreted or expounded that your grace, your nobles and subjects intend by the same to decline or vary from the Congregation of Christ’s Church in any things concerning the very articles of the Catholick faith of Christendom, or in any other things declared by Holy Scripture and the Word of God, necessary for your and their salvations, but only to make an ordinance by policies necessary and convenient to repress vice, and for good con- servation of this realm in peace, unity, and tranquillity, from rapine and spoil, ensuing much the old ancient customs of this realm in that behalf: not minding to seek for any relief, succours, or remedies for any worldly things and human laws, in any cause of necessity, but within this realm, at the hands of your highness, your heirs and successors, kings of this realm, which have, and ought to have, an imperial power and authority in the same, and not obliged in any worldly causes to any other superior.” [25 Hen, VIII, ch, 21, § 19, revived by 1 Eliz. ch. 1, and still in force. ] 4 |THE CONSTITUTIONAL STATUS [BOOK I. trace their episcopal succession to the Churches of England, Scotland, or Ireland. It has never broken off communion with the churches that recognise the juris- diction of the Pope, nor with the churches of the East ; but it maintains strongly its positioa as an independent ' branch of the Catholic Church, subject to no authority external to the realm of England, except that of a General ' Council. The Orders of the continental and Eastern Catholic clergy have always been recognised by our law; and such clergy can be admitted to minister in Churches and Chapels of the Church of England by licence from the Archbishop of the Province in the same manner as clergy of Colonial or American Ordination. [37 and 38 Vict. ch. (eee On the other hand, the episcopal system is so essentially a part of the constitution of the Church of England that no communion is recognised between it and Its relation alee : ° to non-epis- those religious bodies in England or elsewhere eee cee which are not dependent on the episcopate for their existence. The ministrations of Scotch Presbyterian, German Lutheran, Swiss Calvinist, or English Dissenting ministers have always been considered illegal, and the positive prohibition of them dates back to the last Act of Uniformity.2 It is affirmed by the 11th Canon * See page 191. 7 “Tt is evident unto all men diligently reading the holy Scripture and ancient Authors, that from the Apostles’ time there have been these Orders of Ministers in Christ’s Church ; Bishops, Priests, and Deacons. Which Offices were evermore had in such reverend Esti- CHAP. 1) “OFTHE CHURCH OF ENGLAND. 5 of 1603, that no “other meetings, assemblies, or congre- gations” of English-born subjects in England, than such as by the laws of the land are held or allowed, “may rightly challenge to themselves the name of true and lawful Churches.” [Canon xi, cf.x.] At that date no such congregations other than those of the Church were allowed. The.idea of the Church being one body and the State another body is one of modern introduction. In former days the Commonwealth of England and the Church of England were considered as conterminous ; ahead those who were members of the one being also to the members of the other. At the Reformation a °° practice began to be introduced of calling the clergy by the name of the Church, as in the Act of Appeals, which speaks of “the spirituality now being usually called the English Church” [24 Hen. VIII. ch. 12, ap. 1532]; their more exact designation being the “estate ecclesiastical.” [1 Eliz. ch. 1, Canon i] There were, therefore, strictly speaking, no relations of Church and State while the civil and the ecclesiastical body were thus conterminous, mation, that no man might presume to execute any of them except he were first called, tried, examined, and known to have such qualities as are requisite for the same; and also by publick Prayer, with Imposition of Hands, were approved and admitted thereunto by lawful Authority. And therefore, to the intent that these Orders may be continued, and reverently used and esteemed, in the Church of England, no man shall be accounted or taken to be a lawful Bishop, Priest, or Deacon in the Church of England, or suffered to execute any of the said Functions, except he be called, tried, examined, and admitted thereunto, according to the Form hereafter following, or hath had formerly Episcopal Consecration or Ordination,” [Pre- face to Ordinal, confirmed by 14 Car, II., ch. 4, $§ 10, 26.] 6 THE CONSTITUTIONAL STATUS {[B8G0K. and the only relation at all approaching to the modern idea was that between the “estate of the clergy” and the “estate of the laity.” But in modern phraseology the term “State” has come to represent not an “estate” of persons, but a concrete abstraction of the legislative and executive functions of the body politic. The term “Church,” at the same time, has continued to represent not the clergy only, but those members of the body politic (clerical or lay) who are also members of the Church of England. The relations between “Church and State” are therefore the relations between all members of the Church of England, on the one hand, and, on the other, the whole body politic of the kingdom, its legislative and executive authorities. It is now a nearly recognised principle of the English constitution that Parliament is supreme. But Parliament is an imperial body, composed of some persons who are, and some who are not, members of the Church of England, and it has to legislate for the good of the whole com- munity. Some difficulties consequently arise in recon- ciling the duty of Parliament to the people at large with its duty to the Church; and the constitutional relations of the two bodies are, and are likely for some time to be, in a very unsettled condition. It would be very desirable, therefore, that the convocations of the clergy of the two provinces of which the Church of England is composed, or some other synodical assembly fairly representing the Clergy and the Church at large, should have some recognised position assigned to them in ecclesiastical legislation ; Parliament still viewing such legislation as a CHAP.1.] OF THE CHURCH OF ENGLAND. 7 question in which the interests of the nation at large are also concerned. The relations between the Church and the Crown are better settled than those between the Church and other por- tions of the State. The general principle of those relations is, that the Crown possesses a visitatorial and corrective jurisdiction in the Church of England, by right of which the sovereign is supreme governor over all persons and in all causes ecclesiastical, as well as over all persons and in all causes temporal, within its dominions. Thus the laity of the Church of England stand in the same relation to the Crown that any others of its subjects do: the clergy ina slightly closer relation, owing to the visitatorial power residing in the Crown, partly as the founder of so many bishoprics and other ecclesiastical benefices, and partly as the possessor of some of the power formerly exercised by the Pope. Ecclesiastical Courts are practically held under the authority of the Crown; their decisions being further subject to revision by the Crown on appeal. The popular idea of an “ Established Church”? is, that out of several churches the supreme government of a country chooses one to be the official religion ; vanes that the State then grants to the so established as an esta- church certain exceptional privileges, and places ae aaa it under certain exceptional restraints. No such selection * The designation is derived from the phrase “as by law esta- ( blished in this realm,” which is often used respecting the Church of England in Acts of Parliament. But this phrase has no reference to that aspect of the Church in which it is called “an establishment,” | merely defining its character as that of any other curporate institution might be defined, 8 ' DHE CONSTITUTIONAL STATUS [Book 1. of a church was ever made by the English State, nor has any formal compact such as this supposes been made between it and the Church of England. The Church was founded in this country, when it was a Roman province, without any communication with the State; in later times the State became Christianized by it, legalized its opera- tions, and secured to it certain constitutional privileges. Thus a system of privilege and restraint grew up, which gives some ground for the idea mentioned ; but the “ esta- blishment” of the Church has been effected in reality by its gradual assimilation with our national life, and not by Act of Parliament. As for the endowments by which the clergy of the Church are maintained, and its divine service provided for, they have not been bestowed by the State out of the public exchequer, but have mostly been derived from money or land offered for the purpose by sovereigns, noble- men, and other persons, in their private capacity, and out of their private possessions.4 A very large amount of the property thus given was alienated from religious to secular uses in the time of the Tudors, and this alienation was confirmed by Act of Parliament; but no corresponding endowment of the clergy by Act of Parliament is to be found. An actual “establishment” has indeed been erected by express legislation in the case of the Presbyterian esta- blishment of Scotland; but a comparison of its creation * A certain number of churches were built in the last and early part of the present century which must be excepted from this general statement, their cost having been provided for by a vote of Parliament. CHAP.1.] OF THE CHURCH OF. ENGLAND. 9 by Acts of Parliament with the historical continuity of the Church of England will at once show that the latter is not “by law established” in the same sense. The latter is, indeed, part of our national life, and its constitutional position is inherited from the remotest times of English history. The statutory definition of its powers and privi- leges, and the statutory limitation of them, have no more established the Church of England than similar definitions and acts of limitation have established the Crown of England. The old common law of the Church and State made “heresy,” interpreted as dissent from the church, a penal offence. The various Acts of Uniformity, from Edward VI. to Charles II., imposed severe penalties upon persons dissenting from the doctrines they established. Now, how- ever, by the various Toleration Acts, the sanction of the law has been given to communities of Roman Catholic ‘and Protestant Dissenters; the trusts for the benefit of their religious tenets are upheld; and their worship is protected from interruption. [23 and 24 Vict. ch. 52.] Thus far all religious bodies may be considered as in some sense “established” in this country. [19 ] Chapter II. THE LAW OF THE CHURCH OF ENGLAND. ses Church of England is governed by a system of jurisprudence made up of three elements—[1] the Common Law, [2] the Canon Law, and [3] the Statute Law. This system is the growth of many centuries, and its more ancient portions are traceable in some degree (as well as the practice of Ecclesiastical Courts) to the Civil Law of the Roman Empire. THE COMMON LAW is the lex non scripta of England: the law, that is, which is founded upon custom, precedent, and the dicta of judges, and not upon Acts of Parliament. It has been collected and methodized from time to time by such writers as Glanvil, Bracton, Britton, Littleton, and Sir Edward Coke, the original sources of it being the re- cords of courts of justice, books of reports, and judicial decisions. “This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligations of contracts; the rules of cHaP.11.] LAW OF THE CHURCH OF ENGLAND. 11 expounding wills, deeds, and Acts of Parliament; the respective remedies for civil injuries; and an infinite number of minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that the eldest son alone is heir to his ancestor; that a deed is of no validity unless sealed and delivered; that wills shall be construed more favourably, and deeds more strictly. These and many others which might be instanced are doctrines that are not set down in any written statute or ordinance, but depend merely upon im- memorial usage—that is, upon common law—for their support.”! Of this common law the judges are the living oracles, acquiring their knowledge of it by experience and study and being bound to decide according to its tenor. In early English, or “Anglo-Saxon” times, there was a very intimate association between the common law of England and the Church of England; for the bishops sat side by side with the judges in its ad- ministration, and its principles were so deeply marked with religion that there was little distinction between it and the more direct law of the Church. The duty of the mixed court, or “Shiregemot” (which * Blackstone’s Commentaries, I, Introduction iii, Stephens’s Edition 1890, p. 52. I2 THE LAW OF THE [BOOK L represented our Assize Court, and was held twice a year), was “to expound as well the law of God as the secular law;” and thus, when the bishops no longer represented the Church in the ordinary court of justice, the law there administered still bore the impress which it had received from their presence, and that impress has ever since characterized the common law of our land. But there is also a common law peculiarly belonging to the Church of England, as well as the common law of the land. “Jus commune ecclesiasticum,”’ as well as “Jus com- mune laicum,” as it was defined by Mr. Justice Whitlock. [Gibson’s Codex, Introd.] This also consists of customs, precedents, and judicial records, and has the same force in the administration of ecclesiastical matters as the other has in that of secular matters. It is, in fact, the unwritten part of ecclesiastical law. THE CANON LAW. This is the distinctively ecclesiastical law, consisting of the canons which have been passed in national and pro- vincial synods, and of such foreign canons of the same description as have been adopted by custom and common law into our domestic system. [A.] English Canon Law. This consists of legatine constitutions or canons, and provincial constitutions or canons. I. Legatine constitutions are those which were passed in national synods of English bishops and clergy held under the presidency of a papal legate; and they bound the Church CHAP. II.] CHURCH OF ENGLAND. 13 of England in both its provinces. Two such national councils have left their mark upon the law of the Church of England. The first was held under Otho, legate a latere of Gregory IX., at St. Paul’s Cathedral, a.p. 1237. [Spelm. Cone. ii. 218; Wilk. Cone. i. 647.] It is entitled in these authors, “Concilium Pan-Anglicum,” and is de- scribed as being held “presidente domino Othone.. . assidentibus vero Archiepiscopis S. Edmundo Cant. et Waltero Eborac. necnon aliis Angliz Episcopis.” It promulgated thirty-one canons upon various subjects, the last eight being devoted to the regulation of the pro- cedure in the ecclesiastical courts. The second was also held in St. Paul’s [A.D. 1268], under the presidency of Othobon (afterwards Adrian V.), legate a Jlatere of Clement IV. [Spelm. Cone. ii. 263; Wilk. Cone. ii. 1.] It is entitled in Lyndwood, “Concilium Anglicanum .. . a domino Othobono ... celebratum przesentibus Bonifacio Cantuar. et Waltero Eborum Archiepiscopis, Episcopis, Abbatibus, Prioribus, Decanis, Archidiaconis, cum aliis Dignitatibus Kcclesiasticis.” Its constitutions are fifty- three in number, many of them confirmatory of those of Otho. They are extremely comprehensive, and deal with many points connected both with the spiritual and temporal rights of the clergy. “The presence of the papal legates on these two occa- sions was strongly resented by the English archbishops and bishops, and was not permitted on any other occasion ; but the constitutions passed by the councils were accepted without cavil. Both legates were invited, and forced on the Church, by Henry III.; national synods previously T4 THE LAW OF THE [BOOK I. and subsequently being summoned by, and held under the presidency of, the Archbishops of Canterbury.? II. Provincial constitutions are those passed in the episcopal synods, or the regular convocations of either of the provinces of Canterbury or York, held under the presidency of the archbishop of each province respectively; and such canons were only binding on the province which framed them. The decisions of legatine and provincial synods have, however, been accepted as of equal authority, and English canonists have recorded or digested them in a continuous chronological series. The great body of the medieval constitutions of Canterbury were also accepted and adopted by the convocation and province of York in the year 1463, and thus acquired a legislative authority throughout the whole Church of England. The following are the principal synods at which such constitutions were passed. [1.] A synod of bishops, held at Oxford A.D, 1222, under. Stephen Langton, Archbishop of Canterbury. Its delibera- tions resulted in fifty canons (arranged by Lyndwood on the principle adopted by Gratian in digesting the Decretwm). It contains some important provisions as to simony and the status of beneficed clerks. [Concilium Oxoniense. Spelm. Cone. ii. 181; Wilk. Cone. i. 585.] | [2.] A convocation of the clergy, held at Westininster A.D. 1229, under Richard Grant, or Wethershed, Arch- * With one exception, that summoned by Wolsey, “Ad tractandum de Reformatione tum Laicorum, tum Ecclesiasticorum,” in 1523. His summons was resisted by the Convocation of Canterbury, and the final result is not known. CHAP. II.] CHURCH OF ENGLAND. 15 bishop of Canterbury. Twelve constitutions are attributed to it by Lyndwood, but only five by others; and it is pro- bable that a portion of them were passed under an earlier Archbishop Richard, a.p. 1174. [Spelm. Cone. 1. 103; Wilk. Cone. 1. 477 and 622; Lynd. Prov. 10.] [3.] There are a set of constitutions, thirty-seven in number, which bear the name of Archbishop Edmund Rich, the successor of Archbishop Grant (A.D. 1234—45) ; but when or where they were framed and passed is uncertain, and the personal tone adopted in some of them seems to show that they were not the result of a synodal act. Very likely they are diocesan only, not provincial. They are of a highly reformatory character. [Spelm. Cone. 1,199; Wilk. Cone. i. 635.] [4.] A synod of bishops, held at Lambeth, under Boni- face, Archbishop of Canterbury, A.D, 1261. Twenty-one canons were passed by this council, some of which have a very important bearing on the amenability of the clergy to their own and the civil tribunals. [Spelm. Cone. ii. 305 ; Wilk. Cone. i. 746.] [5.] A synod of bishops, held at Reading, under John Peckham, Archbishop of Canterbury, A.D. 1279. In its proceedings, which are recorded under five titles, repeated allusion is made to the constitutions of Othobon. [Spelm. Cone. 11. 320; Wilk. Cone. ii. 33.] [6.] A synod of bishops, held at Lambeth, under the same John Peckham, a.p. 1280 (entitled in Spelman, “Constitutiones Dom. Joann. Peccham editz in concilio Lambethensi”). It promulgated twenty-seven canons (according to Wilkins’s division, thirty) on various ques- tions, bearing both on ritual and ceremonial duties and 16 THE LAW OF THE [BOOK I. on the general morality of the clergy. [Spelm. Cone. ii. 328; Wilk. Cone. ii. 51.] [7.] A convocation of the clergy, held at Merton, A.D. 1305, by Robert Winchelsey, Archbishop of Canterbury. Four important constitutions were passed, defining the rights and duties of parishioners in respect to the fabrics and ornaments of the churches, and respecting the payment of tithes. [Spelm. Cone. ii, 431; Wilk. Cone. ii. 278.] [8.] A synod of bishops, held at Oxford, 4.D. 1322, by Walter Reynolds, Archbishop of Canterbury. Ten con- stitutions were passed respecting the duties of parish priests in respect to the sacraments and other offices of the Church. [Spelm. Cone. ii. 497; Wilk. Cone. ii. 512.] [9.] A convocation of the clergy, held at St. Paul’s, A.D. 1329, by Simon Meopham, Archbishop of Canterbury. It promulgated nine constitutions, respecting the observ- ance of Good Friday, the Feast of the Conception, wills, oblations, and matrimony. [Wilk. Cone. ii. 552.] [10.] A synod of bishops, held at London by John Stratford, Archbishop of Canterbury, 4.D. 1342. It seems to have been postponed from October to March, 1342-3; and twenty-nine constitutions were framed on the two occasions, relating chiefly to reforms of the Ecclesiastical Courts. [Spelm. Cone. ii. 572; Wilk. Cone. 1. 696.] [11.] A synod of bishops, held by Simon Sudbury, Archbishop of Canterbury, at Lambeth, ap. 1378. It passed four important constitutions respecting confession and frequent communion. [Spelm. Cone. i. 626; Wilk. Cone. iii. 135; Lynd. Prov. 59.] | CHAP. II.] CHURCH OF ENGLAND. 17 [12.] A convocation of the clergy, held at Oxford, A.p. 1408, by Thomas Arundel, Archbishop of Canterbury, in which thirteen canons were passed against the Lollards. [ Wilk. Cone, ill. 314.] [13.] A convocation of the clergy, held at St. Paul’s, ap. 1416, under Henry Chicheley, Archbishop of Canterbury, in which two canons were again passed on the same subject. [14.] A convocation of the clergy, held on March 31st, 1534, under Thomas Cranmer, Archbishop of Canterbury, passed a canon, most important in English history, de- claring that “the Bishop of Rome has no greater jurisdic- tion conferred on him by God, in this kingdom of England, than any other foreign bishop.” [Wilk. Cone. ili. 769.] The same canon was passed by the convocation of York, under Archbishop Lee, on May 5th, 1534. [Jbid. 782.] [15.] A convocation of the clergy, held a.p. 1603, under the presidency of Richard Bancroft, Bishop of London, passed one hundred and forty-one canons, embodying the principles of many preceding canons, on subjects connected with the status of the church, divine worship, the Eccle- siastical Courts, and many other matters connected with the practice and discipline of the church.* * The canons passed up to the fifteenth century were collected by William Lyndwood (Archdeacon of Canterbury, and afterwards Bishop of St. David’s), in a work called Provinciale, of which the , best edition is that printed at Oxford in 1679. They were published in English in Johnson’s Collection of all the Ecclesiastical Laws, Canons, Answers, or Rescripts ... of the Church of England, the original edition of which was printed in 1720, and a revised one, edited by Baron, in 1850. Wilkins’s Concilia Magne Britannie contains all such documents down to 1717. Ayliffe’s Parergon Juris Canonict Anglicant; or, a Commentary by way of Supplement to the Canons and Constitutions of the Church of England, a valuable work, the character of which is indicated by its title, was published C 18 THE LAW OF THE [BOOK. I. [16.] A convocation of the clergy, held at Westminster on April 17th, 1640, under Archbishop Laud, at which seventeen canons were passed, concerning the regal power, for the suppression of sectarianism, for uniformity in rites and ceremonies, and for the discipline and reformation of Ecclesiastical Courts. These canons were accepted by the convocation of York on the 29th of the same month, and promulgated by the Crown on June 30th, 1640. [17.] A convocation of the clergy, held at Westminster on June 29th, 1865, under Thomas Longley, Archbishop of Canterbury, in which certain alterations were made in the canon law in relation to subscription and simony, and four new canons passed in place of the 36th, 37th, 38th, and 40th canons of 1603. These canons were also sub- scribed by the convocation of York on July Sth, 1865, and afterwards promulgated by the Crown. [18.] A convocation of the clergy, held at Westminster in 1888, under Edward Benson, Archbishop of Canterbury, in which new canons were made altering the 62nd and 102nd canons of 1603. These canons were also subscribed by the convocation of York, and were promulgated by the Crown in 1888. [B.] Foreign Canon Law.—It is a principle of the English common law and the English constitution that no foreign power has any authority in England, and that, therefore, no foreign laws have any authority either. But the common law has also permitted the adoption by English Church Courts of such foreign church laws (not inconsistent with our domestic laws) as might be a guide to them where in 1734, The early portions of an entirely new and most trustworthy editio.. of Wilkins’s Concilia have recently been issued from the Clarendon Press under the editorship of Professor Stubbs, now Bishop of Oxford, and the late Rev, A. W. Haddan. CHAP. I1.] CHURCH OF ENGLAND. 19 the latter failed to decide. Thus the canon law of Europe, although never imposed upon, or accepted by, the Church of England, has had a certain weight in its system of ecclesiastical jurisprudence. “All the strength,” says Sir Matthew Hale, “that either the papal or imperial laws have obtained in this kingdom, is only because they have been received and admitted either by the consent of Parliament, and so are part of the statute laws of the kingdom, or else by immemorial usage and custom in some particular cases and courts, and not otherwise; and therefore so far as such laws are received and allowed of here, so far they obtain, and no further; and the authority and force they have here is not founded on, or derived from, themselves; for so they bind no more with us than our laws bind in Rome or Italy. But their authority is founded merely on their being admitted and received by us, which alone gives them their authoritative essence, and qualifies their obligation.” * This foreign, or Roman, canon law, is composed prin- cipally of three classes of enactments: [1] The canons of councils ; [2] the decrees of the Popes and Fathers, or, in other words, the constitutions which were made proprio motu from time to time by the Roman Pontiffs, and the early Fathers of the Church, and which obtained the force of law; and [3] the decretals and the canonical replies made to questions put at various times to the Roman Pontiffs. The first authoritative compilation of the Decrees was made under Eugenius III. by Gratian, a Bolognese monk, A.D. 1151. The Decretals were digested and edited (and the work of Gratian revised and re-edited) by Raymond de Pennafort, under direction of Gregory IX., a.p. 1235; and finally the whole body of the canon law was edited by = Hale’s Hist. Common Law, p. 27; Vaugh., 21, 132, 327. 20 THE LAW OF THE [BOOK 1. papal authority under Gregory XIII. This work is entitled the Corpus Juris Canonict, and the bulk of it consists of the Decretwm of Gratian and the Decretals of Gregory IX., the remainder being made up by a book of Decretals of Boniface VIII. (known as the Sixth Decretals), the Clementine Constitutions (constitutions of Clement V.), and the two other books known as the Lutravagantes of John XXII. and the Lutravagantes Communes. To whatever extent this body of law may have been accepted in other countries, in England its adoption was by no means unrestricted or unreserved; and, on more than one occasion, attempts to introduce its provisions into England were successfully resisted, on the ground that those provisions were contrary to the common law of the land. Thus, for instance, it was the attempt of the English bishops to introduce into England the canon of Alexander III. for the legitimation of children born be- fore marriage, which elicited from the barons the famous answer, “Nolumus leges Anglie mutari;” and it was instantly rejected as being contrary to the common law. Subject, however, to these restrictions, many of the rules of the Roman canon law have been incorporated with ours, and the English Courts have in recent times decided cases on no other authority than that of a canon of the fourth Lateran Council, accepted and recognised by English ecclesiastical law.t 1 Alston (Clerk) v. Attlay, 7 Adol. and Ellis, 289; Burder v. Mavor, 6 Notes of Cases Ecclesiastical and Maritime, 1 ; and a more striking instance still, Stavely v. Ulathorne, 1 Hardres, 101, where the exemption of Cistercians from tithes by this council is recognised. The principle is clearly stated in 25 Hen, VIII. ch, 21, § 1. CHAP. II.] CHURCH OF ENGLAND. 21 Such being the body of the English and foreign canon law, it remains to be shown how far its force was modified by the “Act of Submission” [25 Hen. VIII, eine be |; The Act of Parliament so called was founded on an Act of Convocation passed on May 15th, 1532, in which the bishops and clergy gave their assent to the principle that convocation has no authority to pass laws except under a licence from the Crown. The assent so declared was recited in the Act of Parliament, and is as follows :— “We, your most humble subjects, daily orators and beadsmen of your clergy of England, having one special trust and confidence in your most excellent wisdom, your princely goodness, and fervent zeal to the promotion of God’s honour, and Christian religion, and also in your learning, far exceeding in our judgment the learning of all other kings and princes that we have read of, and doubting nothing but that the same shall continue and daily increase in your Majesty : First, Do offer and promise, in verbo sacerdotii, here unto your Highness, submitting ourselves most humbly to the same, that we will never from henceforth enact, put in ure, promulgate, or execute any new canons or con- stitutions provincial, or any new ordinance, provincial or synodal, in our convocation, or synod, in time coming (which convocation is, always hath been, and must be assembled only by your high commandment of writ), only your Highness, by your royal assent shall license us to assemble our convocation, and to make, promulge, and execute such constitutions and ordinaments as shall be 220 THE LAW OF THE [BOOK I. made in the same; and thereto give your royal assent and authority. “ Secondarily, That whereas divers of the constitutions ordinaments, and canons, provincial or synodal, which hath been heretofore enacted, be thought to be not only much prejudicial to your prerogative royal, but also over- much onerous to your Highness’s subjects, your clergy aforesaid is contented, if it may stand so with your High- ness’s pleasure, that it be committed to the examination and judgment of your Grace and of thirty-two persons, whereof sixteen to be of the upper and nether house of the temporalty, and other sixteen of the clergy; all to be chosen and appointed by your most noble Grace ; so that, finally, whichsoever of the said constitutions, ordinaments, or canons, provincial or synodal, shall be thought and determined by your Grace, and by the most part of the said thirty-two persons, not to stand with God’s laws and the laws of your realm, the same to be abrogated, and taken away by your Grace and the clergy. And such of them as shall be seen by your Grace, and by the most part of the said thirty-two persons, to stand with God’s laws and the laws of your realm, to stand in full strength and power, your Grace’s most royal assent and authority once impetrate, and fully given to the same.” } The seventh clause of the Act of Parliament which Pic defined the relation of Convocation to the Crown, and of its canons to the other laws of the realm, especially pro- vided for the continuance of the canon law where it was aot inconsistent with common and statute law: “ Provided * Wilk. Cone, ii. 754. CHAP. II.] CHURCH OF ENGLAND. 23 also that such Canons, Constitutions, Ordinances, and Synodals provincial, being already made, which be not contrariant or repugnant to the laws, statutes, and customs of this realm, nor to the damage or hurt of the king’s pre- rogative royal, shall now still be used and executed as they were afore the making of this Act, till such time as they be viewed, searched, or otherwise ordered and deter- mined by the said two-and-thirty persons, or the more part of them, according to the tenor, form, and effect of this present Act.’+ The commission was ultimately ap- > pointed by Edward VI. in 1551, and the result of their labours is said to be embodied in the MS. volume entitled Reformatio Lequm Lcclesiasticarum.’* There is much mystery, however, about the real author of this volume, and it certainly never received any confirmation from the Crown or Parliament, was not printed until 1571, and has no legal force whatever. Hence the seventh clause of the “Act of Submission” continues in its former force the whole of the canon law which is not “repugnant to the laws, statutes, and customs of the realm, nor to the damage or hurt” of the royal prerogative. It has been decided by Lord Hardwicke that the canons of 1603 do not proprio vigore bind the laity, but only the clergy.2 But Lord Hardwicke qualified this decision by adding, “I say proprio vigore, by their own force and authority ; for there are many provisions contained in * This Act [25 Hen. VIII., ch. 19] was repealed by 1 and 2 Ph. and M., ch. 8, but revived by 1 Eliz. ch. 1, § 2, and is still in force, 2 Brit. Mus., Harl. MSS. 426. 3 Middleton v, Croft, Str. Rep. 1056 ; 2 Atkyn’s Rep. 650, 24 DHEA SOL” Titi [BOOK I. these canons which are declaratory of the ancient usage and law of the Church of England, received and allowed here, which in that respect, and by virtue of such ancient allowance will bind the laity.” [See also Blackstone’s Comm. Introd., sect. 111. ] THE STATUTE LAW. Since the Act of Submission of 1534 most of the eccle- siastical legislation of the country has been embodied in Acts of Parliament, the canons of 1603 being a con- spicuous exception. Thus the Book of Common Prayer is embodied in the Statute 14 Car. II ch. 4, the Act of Uniformity of 1662; and the Thirty-nine Articles of religion are substantially, though not verbally, incorpo- rated into 13 Eliz. ch. 12, the Act which makes subscrip- tion to them necessary on the part of the clergy, as well as into the more recent Act 28 and 29 Victoria, ch. 122. There is also a continuous stream of parliamentary legisla- tion with reference to the temporalities and civil rights of the Church, and the bulk of the ecclesiastical statutes has grown to very large dimensions during the last century.1 To sum up, therefore, it may be said in conclusion that * The growth of Parliamentary legislation for the Church may be seen by the following table :-— Date. | Average of Ecclesiastical Statutes. 1216-1530 Less than 1 per annum 1530-1760 24 5 1760-1820 [G. IIL] 1 1820-1870 25 CHAP. IL] CHURCH OF ENGLAND. 25 the following are the several elements of church law as it is now in force in the Church of England :— 1. The common law of the realm. ~ 2. The English canon law, ancient and modern, so far as it is not opposed to the common and statute law, or to the royal prerogative." 3. Foreign canon law, so far as it has been accepted by custom or by Act of Parliament. 4. The statute law of the realm, including the Book of Common Prayer with its Rubrics, and the Thirty-nine Articles of Religion. It need only be added that these several elements are all binding on the clergy, but that modern canons are not proprio vigore binding on the laity, except in those cases in which they hold ecclesiastical offices. The Attorney-General, arguing on behalf of Lord Penzance in the recent cases of Mr. Dale and Mr. Enraght [L.R. 6 Q.B.D. 376], contended that the Canons of 1603 were not binding upon Lord Penzance as Judge of the Arches Court, because he was a layman and “a lay Judge of one of the Queen’s Courts ;” and he threw doubts upon the binding force of the Canons even as to the Clergy ; but these views were not accepted by the Court. [ 26 ] Chapter III. THE ADMINISTRATION OF CHURCH LAW. S the laws relating to the Church are of a mixed character, so the judicial administration of those laws is assigned to various tribunals, in which the eccle- siastical and the secular elements are combined. All questions of civil rights are of course within the juris- diction of the Secular Courts; and so it has long been ruled that questions of dilapidations, which were once decided only in the Ecclesiastical Courts, are the subject of an action at common law. But questions respecting the orthodoxy of the clergy, their conduct in their ministrations, and their morals, are subject to the jurisdiction of the bishops or their Courts, with the right of appeal from a lower to a higher court, and ultimately to the Sovereign in Council. The same authorities administer some classes of laws also in the case of the laity, such as those relating to their moral discipline in respect to incontinency, neglect or wrongdoing in the offices of churchwarden or parish clerk, the payment of some small tithes and dues, and illegal interference with the fabric and ornaments of churches.! The ordinary ecclesiastical tribunal of first instance in which the laws of the Church are administered in such cases is the Consistory Court of each diocese. Every bishop is, ex officio, the judex ordinarius for his diocese in respect to all matters which come within the range of * The jurisdiction of Ecclesiastical Courts in respect to the recovery of church rates ceased with the abolition of compulsory church rates in 1868. Matrimonial, divorce, and testamentary causes were, in 1857, transferred to secular Courts of Probate and Divorce. CHAP. I11.] ADMINISTRATION OF CHURCH LAW. 27 ecclesiastical law, and his “Consistory” is the ancient “Court Christian” in which his ordinary judicial authority is exercised. He does not in practice preside over this Court in person, but by the “official principal” of his Court, who is in modern times always also his vicar- general, and usually combines the two offices under the name of Chancellor of the Diocese. The Archdeacon’s Court also has jurisdiction in certain cases, especially with reference to parish clerks.1 Proceedings as to such questions are now in the main regulated, so far as they relate to clergymen, by the Clergy Discipline Acts, 1840 and 1892, and the Public Worship Regulation Act, 1874.7 Under these Acts the following consequences ensue. (A) Jf a clergyman is convicted of treason or felony, or on indictment of a misdemeanour, and is sentenced to imprisonment with hard labowr, or greater punishment ; or is made liable to a bastardy order; or in a matrimonial cause is found to have committed adultery or has an order for judicial separation made against him, or a separation order under the Matrimonial Causes Act, 1878 ;* then, unless he receives a free pardon, the preferment held by him shall become vacant, and he shall be in- capable of holding preferment; but his incapacity shall not extend to any preferment which the bishop and archbishop, after such public notice, if any, as they think desirable, allow him to hold. * A Court of a different nature has been constituted by the Benefices Act, 1898, to hear appeals from the decisions of a bishop under sec. 2 or sec. 9 of that Act. References will be found to it on pp. 236 and 225 infra. 2 App. IL, XI., and VII. 3 Clergy Discipline Act, 1892, sec. 1. See App. XI. 29 THE ADMINISTRATION [BOOK I. And where, under either (A) or (B) above, the prefer- ment of a clergyman becomes vacant, the bishop may by sentence and without further formality depose such clergyman from holy orders; but the clergyman may appeal against such sentence within one month to the archbishop, whose decision shall be final. Where, from the nature of the offence charged, it shall appear to the bishop that great scandal is likely to arise from the accused continuing to perform the services, or that his ministration will be useless while the charge is pending, the bishop may inhibit him from performing any services, and the accused may nominate a fit person to be licensed by the bishop to perform such services until sentence shall have been given, or in default of such nomination the bishop is to provide for the performance of such services, and may assign a portion of the stipend for the purpose not exceeding one-half, and not exceeding the amount required for the curacy of the church.? (C) If a clerk in holy orders is charged with any offence against the laws ecclesiastical committed within two years preceding the bringing of the sutt, or is a person concerning whom there exists scandal or evil report as having offended against the said laws,? and the charge against him is one for which he could not be prosecuted nor his benefice declared vacant under (A) or (B) above ;* * The Clergy Discipline Rules made pursuant to the Clergy Dis- cipline Act, 1892, relating to the proceedings above referred to, will be found in the Statutory Rules and Orders for 1892, pp. 258 to 300, and for 1893, pp. 73 and 74. ? Church Discipline Act, 1840, sect. 3 and 20. See App. IL 3 Clergy Discipline Act, 1892, sect. 14. CHAP. III.] Ore CHURCH LAW. 29* then the bishop (although in no way bound to proceed?) may on the application of any party complaining, or of his own motion, after fourteen days’ notice to the accused, issue a commission to five persons, of whom three at least are to enquire and report whether there is a primd facie case against him or not; and he may, if both the clerk complained of and the party complaining, if any, consent in writing, pronounce sentence without any further pro- ceedings; and he may, either in the first instance without issuing a Commission, or after the Commissioners have reported that there is a primd facie case, but before the filing of articles, send the case by letters of request to the Court of Appeal of the Province: which Court is then bound to try the case.” Where the bishop is patron of the benefice of the accused clerk, the archbishop acts in his stead, except that the bishop may send letters of request as in ordinary cases, If the Commissioners report that there is a primd facie case, and the bishop does not send the case to the Court of Appeal, or decide it by consent of the parties, and thinks fit to proceed, articles are to be drawn up and filed, and a copy served on the accused, and a notice to appear after not less than fourteen days is also to be served; and if the accused does not admit the articles, the bishop is to hear the cause with three assessors, and to determine it “and pronounce sentence thereon, subject to an appeal, as to any final judgment, to the Court of Appeal of the Province. Any judgment on such appeal, or any final judgment of first instance in such a matter, of the Court of Appeal of * Julius v. Bishop of Oxford, L.R. 5 App. C. 214, 2 Sheppard v. Bennett, L.R. 2 P.C, 450. 30 THE ADMINISTRATION [BOOK I. the Province is subject to an appeal to the Queen in Council. Such sentence may be enforced like a sentence pro- nounced by a competent ecclesiastical court; and the bishop may, where it shall appear to him, from the nature of the offence charged, that great scandal is likely to arise from the accused continuing to perform the services, or that his ministration will be useless while the charge is pending, inhibit him in the manner mentioned under (B) above. (D) Lf in any church any alteration in or addition to the fabric, ornaments, or furniture thereof has been made without lawful authority, or any deco- ration forbidden by law has been introduced, or the incumbent has within twelve months used or permitted to be used in his church, or in a burial ground, any unlawful ornament of the minister, of the church, or neglected to use any prescribed ornament or vesture, or fatled to observe or to cause to be observed the directions in the Prayer Book re- lating to the perfornance in such church or burial ground of the services, rites, and ceremonies ordered by the said book, or has made or permitted to be made any unlawful addition to, alteration of, or omission from such services, rites, and ceremonies ;+ then the archdeacon of the archdeaconry, or a church- warden or any three parishioners of the parish within which such church or burial ground is situate, or for the use of any part of which such burial ground is provided, or, in case of cathedral or collegiate churches, any three male inhabitants of the diocese of full age, who have had * Public Worship Regulation Act, 1874, sect. 8. See App. VI. CHAP. III.] OF CHURCH LAW, 31 their usual place of abode in the diocese for the year next preceding, and have sent to the bishop a declaration in the proper form, may represent the same to the bishop by sending to him the proper form duly filled up, and accompanied by a declaration affirming the truth of the statements contained. But no such proceedings are to be taken as regards any alteration in or addition to the fabric which has been com- pleted for five years before the proceedings commenced. _ If the bishop is of opinion, after considering the whole circumstances of the case, that proceedings should not be taken on the representation, he is to state in writing the reasons for his opinion, and they are filed in the Registry, and the proceedings will then cease, and his decision to that effect is conclusive. If the bishop is not of such opinion, then he must, within twenty-one days,” send a copy of the complaint to the person complained of. Both parties have twenty-one days to say if they will submit to the bishop’s decision. The bishop hears the matter as he thinks fit, and pro- nounces such judgment, and issues such monition, as he thinks proper, without appeal. If the case is not submitted to the bishop, he sends it to the archbishop, and the archbishop requires the judge to hear it. The judge is appointed by the two archbishops, * The bishop is by law the only person who has jurisdiction ta form an opinion whether proceedings should or should not be taken, and there is no power by law to interfere with the judgment which he may form on the subject. The circumstances of the case which he may consider are not confined to the mere question whether there has been an infraction of the law. [Reg. v. Bishop of London, L.R. 1891, A.C. 674. ] ? This limit of time is a rigorous one, and any further delay would make the proceedings void. [Howard v. Bodington, L.R. 2 P.D. 203.]. D 32 THE ADMINISTRATION [BOOK I. with the approval of the Crown, or if they fail to appoint, : by the Crown itself. Under the statute he was, as vacancies occurred, to take the place of the judges of the two Provincial Courts; and proceedings taken before him were then to be considered as taken in the proper Provincial Court. The present judge has accordingly become statutable judge of the Arches Court of Canterbury and the Chancery Court of. York ; and has, so far as the temporal law can give them, all the rights of the ancient judges of these courts. [Cases of Mr. Dale and Mr. Enraght, L.R. 6 Q.B.D. 376; Green: v. Lord Penzance, L.R. 6 App. Cases 657.] The judge is to give not less than twenty-eight days’ notice of the hearing. Before, however, he gives this notice, he is to have security for costs from the complainant. He must sit to hear at the place, or one of the places, or within the area or areas, mentioned in the archbishop’s requisition. [Hudson v. Tooth, L.R. 3 Q.B.D. 46.] The person complained of may, within twenty-one days: of the notice, put in an answer. If he does not he will be deemed to deny the truth or relevancy of the complaint. Evidence is to be given publicly on oath. The judge, if he condemns, issues a monition. From his judgment an appeal goes to the Privy Council. This monition has immediate operation, unless the judge think fit to suspend it; but the Privy Council may issue an. inhibition pending the appeal. [Ridsdale v. Clifton, TER tes) .333.4 If a monition, either of the judge or of the bishop, is disobeyed, the incumbent may be inhibited, and have his benefice sequestrated for not more than three months, and further until he promise obedience. If the inhibition remains in force for more than three years, or a second CHAP. II1.] OF CHURCEE LAI. 33 inhibition be issued upon the same monition within three years, the living is avoided ; but the bishop may extend the time for submission for a period not exceeding three months. The bishop or judge, as the case may be, determines whether his order has been disobeyed; but it is provided that “any proceedings to enforce obedience to such moni- tion or order shall be taken by direction of the judge.” If an inhibition is disobeyed, the judge may “signify the contempt,” which such disobedience is, to the Chancery Division of the High Court of Justice, and the disobedient person will be imprisoned. [Green v. Lord Penzance, L.R. 6 App. Ca. 657.] The Act has a proviso that faculties shall (if unopposed) be granted for any alteration in or addition to the fabric of any church, or in respect of any ornaments or furniture, not being contrary to law, made or existing in any church on the 7th August, 1874, on payment of fees not ex- ceeding two guineas. In cases of cathedral or collegiate churches the visitor takes the place of the bishop in parish churches, with apparently the same transference of his power (when both parties do not submit) to the judge. In all cases where the bishop is patron! of the benefice, or of any ecclesiastical preferment held by the person charged, or is unable to act through illness, the archbishop takes his place. Where this is the case with an archbishop, the Crown is to appoint some other archbishop or bishop to take his place. Rules and orders have been framed and published in an Order in Council of Feb. 22, 1879, for further carrying out the provisions of the Act.? * This includes a bishop having a right to present in turn. [Ser- jeant v. Dale, L.R. 2 Q.B.D. 558. ] 2 See Statutory Rules and Orders, vol. ii. pp. 735-768, [ 44] | Sook I. THE MINISTRATIONS OF THE CHURCH. Chapter I. HOLY BAPTISM. § 1. Persons qualified to “ “| § 4. Public Baptism . . .« 52 Baptized .. § 5. Private Baptism . . 61 § 2. Persons qualified to pie § 6. Law as to Fees for Bap- minister Baptism . 41 tism make ae § 3. Manner of administer- § 7. Registr iconey Er istics 65 ing Baptism . . . 48 | Diag rite of Baptism is regarded by the Church of England as a sacrament of which Christ ordained the outward sign, as a means for the bestowal of an in- ward grace. It “is not only a sign of profession, and mark of difference, whereby Christian men are discerned from others that be not christened, but it is also a sign of regeneration or new birth,” and it is “ generally necessary to salvation.” The principal subjects here to be dealt with respecting this initiatory sacrament of the Church are those connected with the persons qualified to receive and to administer it, the manner of administering it in public and in private, and the results of its administration. — CuAP. I.] HOLV BAPTISM. 35 § 1. Persons qualified to be baptized. The subjects of baptism are indicated by Our Lord’s commission to the Apostles, by apostolic practice, and by the universal consent of the Catholic Church from the earliest ages to the present time. There is a generally inclusive force in the. words of the first, “Go : ye, therefore, and teach all nations, baptizing SeneTeuy 5 speaking, them” [Matt. xxviii. 19]; the purport of which @! living is that those out of all nations who were tobe made disciples (ua@yrevoate) were to be enrolled among the number by the rite of baptism. The words are also illustrated by the beginning of Christ’s discourse with Nicodemus. “Except a man! be born again.... of water and of the spirit, he cannot enter into the king- dom of God” [John iii. 3, 5]: from which it is plain that the church or “kingdom of God” could only be entered through the gate of this rite. It may thus be concluded that all living persons? not already baptized are, generally speaking, qualified to be the subjects of holy baptism: the particular conditions required of them 1 “Ray uh tis” is the expression used: but the word “man” in the translation was taken by the canonists to include both male and female. “ Heec enim dictio est indefinita, unde omnes comprehendit, et non solum masculum, sed etiam feminam comprehendit ; nam et feminze tenentur scire articulos fidei, sicut et masculi; et sic sub dictione generis masculini continentur et femine.”—Lynd., Prov, i, 1. ? In the early ages of Christianity there existed a superstitious practice of baptizing the dead bodies of those who had not been baptized in their lifetime. It is forbidden by the sixth canon of the third Council of Carthage, and again by the eighteenth canon of the code of the African Church, 36 HOLY ABAP LIS M. [BOOK II. being belief in Christ [Mark xvi. 16; Acts vill. 37] and repentance of sins [Luke xxiv. 47; Acts il, 38; i. 19]. But though belief and repentance were required of all Including 2dult candidates for baptism, it has been the infants. continuous practice of the Church to baptize infants who are not capable of exercising faith through want of intelligence, and who have no need of repentance because they are not guilty of actual sin. This practice is founded on the belief that baptism is universally neces- sary for the remission of that inherited uncleanness of our nature which is called “original sin ;” and that it is there- fore necessary for infants as well as for adults. Our Lord’s words, “Suffer the little children to come unto Me, and forbid them not: for of such is the kingdom of God” [Mark x. 14], that is, the Church, point clearly in this direction; it is extremely probable that there were infants among the “households” baptized by the Apostles [Acts xvi. 15, 33; 1 Cor. i. 16]; and the practice of infant baptism by the early church is recorded by Justin Martyr [Apol. 1. 15], Tertullian [De Bapt. xviii.j, and Origen [Jn Inc., Hom. xiv.}; though it became common to defer baptism through exaggerated notions as to the guilt of sin committed by the baptized. In the English Church the use of infant baptism can be traced back to very early ages. One of the questions which St. Augustine asked of St. Gregory [4.D. 597] was as to the age at which a new-born infant should be bap- tized; the reply of St. Gregory being that it might be so, if there was necessity through danger of death, in the very hour of its birth. [Bede’s Heel. Hist. i. 27.] The laws of CHAP. I.] HOLY BAPTISM. 37 King Ina [A.p. 690] enjoined that children should be baptized within thirty days after they were born, under a penalty of thirty shillings payable by the father [Hadd. and Stubbs, Coune. ii. 215]; a canon to the same effect being passed in the reign of King Edgar [a.D. 960]. In Archbishop Peckham’s Constitutions [4.D. 1279] there is one which lays down a rule as to the baptism of children born in the week before Easter or Pentecost, and which adds: “but let children born at other times of the year be baptized according to the old custom, either directly they are born, or soon after at the discretion of the parents.” [Wilk. Cone. ii. 33]. In two Acts of Parliament of the Reformation period giving general pardon to all heretics, etc, those are excepted who teach “that infants ought not to be baptized; and if they be baptized, they ought to be re-baptized when they come to lawful age.” [32 Hen. VIII. ch. 49; 3 and 4 Edw. VI. ch. 24.] Lastly, in the Book of Common Prayer, the baptism of infants was provided for as it had been in the ancient service books; no form for baptizing others being inserted until A.D. 1662. The Rubric directs that “the curstes of every parish shall often admonish the people, that they defer not the baptism of their children longer than the first or second Sunday next after their birth, or other holiday falling between, unless upon a great and reasonable cause, to be approved by the curate.” The 27th Article of Religion says: “The baptism of young children is in any wise to be retained in the Church, as most agreeable with the institution of Christ:” the Catechism speaks of the baptism of “infants” of “tender age,” as the regular 380 | HOLY BAPTISM. [BOOK It. practice of the Church: and the 69th canon of 1603 orders the clergyman to be suspended for three months who refuses, or wilfully neglects, to baptize any infant in his parish who is in danger of death. [See also canon 68.] It being thus the rule of the Church that all persons, infant or adult, are ordinarily to be baptized, there are three particulars in which this general rule is subject to limitation. [1.] Infants are to be actually born before they are baptized. The question was much discussed among medizval divines, whether it was right, in danger of death, to baptize a child in utero, rather than let it die unchristened. The Council of Nismes [A.D. 1284] enjoined “Si vero, muliere in partu laborante, infans extra ventrem matris caput tantum emiserit, et in tanto periculo infans positus nasci nequiverit, infundat aliqua de obstetricibus aquam super caput infantis, dicens ; Hgo baptizo te, &c.” [Martene, Anecdot. iv.| Several other such canons exist, but none of English origin. Lyndwood, however, in his gloss upon the constitutions of Archbishop Peckham, lays down the same rule [Lyndw. Prov. iti. 25]; and it is found also in the ‘Rituale Romanum’ of modern use, with the addi- tion, in both, of the injunction that if the infant should survive it is not to be again baptized. It is obvious that, in a rite so performed, the child could not be named, and so the person baptizing was directed, in some of these rules, to say “Infans,” or “Creatura Dei, ego te baptizo.” But the Book of Common Prayer, which provides a ser- vice for the private baptism of dying infants, especially CHAP. I.] ‘HOLY BAPTISM. 39 provides for naming them, “The child being named by some one that is present, the minister shall pour water upon it, saying these words, ‘., I baptize thee, &c.’” Thus, doubtless, it is to be considered that the Church of England applies the words of St. Augustine in their fullest sense of being born to separate individual existence. “As that which has never lived cannot die, so that which has never been born at all cannot be born again.” [Aug. De Bapt. pueror., li. 2.] [2.] Children are not to be baptized in their infancy it their parents are themselves unchristianed. It has been the constant rule of the Church, although it 5 rants not has not been fixed by any synodal decision, not to ve : : baptized to baptize the children of Jews or heathens, «invitis unless circumstances had placed them underP@rentivus.” the tutelage of a Christian, who had thus become in loco parentis to them [Aug. De Grat. et Lib. Arb. xxii.]; and many charitable persons took charge of foundlings ex- posed by heathen parents, or bought the children taken captive in war, that they might have them baptized, and bring them up as Christians. [Ambros. De Vocat. Gent. ii. 8.] In such cases they were offered in the name of all the faithful. [Aug. Hp. xcviil. ad Bonifac.] But if one parent were a Christian it was decided that the infant might be baptized, though the other were a Jew or a heathen, the point being synodically determined by the sixty-third canon of the Fourth Council of Toledo,? The very young children of parents unwilling (although * = This question is one that is likely to arise very frequently among missionary clergy. Vee HOLY BAPTISM. [BooxK 11. themselves Christian) to allow them to be baptized, are practically on a similar footing, for to baptize them against the will of the parents would be to interfere with the authority which has been assigned to parents by nature and by revelation over children who are too young to judge and act for themselves. If, however, one parent should consent, there would be little room for hesitation ; and none at all if the consenting parent be the father. But although a baptism administered «vitis parentibus would be contrary to the practice of the Church, and par- taking in some deeree of the nature of a fraud upon the parent, it would yet be valid if administered with proper _ matter and form. A clergyman is bound, if required, to \ baptize the child of any Christian parishioner, and there- Vfore of a dissenter. [Burn, Heel. Law, vol. i. p. 115a.] [3.] Persons of unsound mind are not to be necessarily excluded from baptism. It was decreed by the 37th canon of the Council of Elvira [4.pD. 305] that the Energumens, or those supposed to be possessed with evil Idiots and aan spirits, were to be baptized when they were in exciudae : from danger of death; and this became the well- baptism. known rule of the early church. The 13t * The baptism of children who are neither infants nor adults is provided for by the rubric—“If any persons not baptized in their infancy shall be brought to be baptized before they come to years of discretion to answer for themselves, it may suffice to use the Office for Public Baptism of Infants, or (in case of extreme danger) the Office for Private Baptism, only changing the word [infant] for _ [child or person] as occasion requireth.” Lyndwood defines “ puer” as “qui est major septennio, sed minor quatuordecim annis ;” and adultus” as one who is “ major quatuordecim annis.” CHAP. I.] HOLY BAPTISM. 41 canon of the Council of Orange [a.p. 441] also decided that all the holy offices are to be administered to idiots [‘‘amentibus”], and this canon was incorporated into English canon law, as the 83rd of the Excerpts of Arch- bishop Egbert [a.p. 750]. The rule has been that they should be baptized in the faith of the Church as if they were infants. As regards lunatics the custom is to baptize them if they are in danger of death, on the principle laid down in the Elviran canon above named; or if they had, pre- viously to their insanity, requested that they might receive baptism. A similar rule is also laid down respecting dumb persons, or those incapacitated by sickness to answer for themselves, by the 12th canon of the Council of Orange, and the 34th canon of the Third Council of Carthage.? § 2. Persons qualified to administer Baptism. There can be no doubt that in the first instance our Blessed Lord gave to his apostles a commission to “ bap- ? tize all nations,” and that such a commission was to be handed on to those who were to take up their work after their deaths, those whom they ordained for that purpose according to the words of their Master, “As My Father hath sent Me, so send [ you.” Very early in the history of the Apostolic Church also, we find Philip, one of the seven whom the Church has commonly recognized as deacons, baptizing at Samaria, and the apostles, St. Peter and St. John, ratifying his act by confirming those whom * St. Cyprian deals with this subject at some length in one of his Epistles, [Cyp. Hp. Ixxvi. al. xix. ad Magnum.] 42 HOLY BAPTISM. [BOOK It. he had baptized. From this it may be concluded that as the bishops are the one principal channel through which ministerial authority is conveyed from our Lord—the Fountain of all such authority—to others, so they un- doubtedly commissioned inferior ministers to baptize in the very beginning of the Christian Church. But the question soon arose whether the nature of holy baptism was not such as to make a bishop, priest, or deacon absolutely essential to its right administration; and upon this subject three theories have been held. [1] The first ‘and strictest of these was that maintained by St. Cyprian, who esteemed that baptism only to be true and effective which is administered by those who have been ordained by orthodox bishops, and are in communion with the Church. [2] The second theory was much more generally held in the early church, viz., that even schismatics and heretics could give true baptism, provided they were in holy orders. [3] A third, and this was that held by St. Augus- tine, made the essence of the sacrament to consist in the application of the water with the proper words of invoca- tion by whomsoever this was done. The Council of Arles [A.D. 314] decided by their eighth canon against the first theory, and in favour of the second; a decision practically confirmed by the nineteenth canon of the Council of Niczea, which dirccted the re-baptism of those only who had been baptized by the followers of Paul of Samosata, and so not in the name of. the Blessed Trinity. No further decision on the subject was ever given by a general council, and thus the question still remained open whether those who were not in holy orders could, by the proper use of CHAP. I.] HOLY BAPTISM: 43 water and the proper invocation, administer a true baptism. In ancient times ‘this question was not one of very exten- sive bearing, as none but the clergy ever baptized, except in cases where there was danger of death, and no clergy man could be found. But in modern times it has become a matter of primary importance, as a portion of the people of England, and the majority of those born in Protestant countries, are baptized by persons who have never been ordained by bishops, and are not therefore either priests or deacons in the sense of the Church of England, of the Churches of the Roman Communion, or of the Eastern Church. | The validity of such Jay baptism was maintained by Tertullian [De Bapt. xvii.], who, however, adds that a woman is as much forbidden to baptize as to teach in yy the Church. It was allowed by the Patriarch of 3@ptism. Alexandria in the case of some boys baptized by Athanasius when he himself was a boy. [Rufin.1.14.] St. Augustine maintained it to be valid, not only in cases of necessity, but also under other circumstances. [Aug. De Bapt. vii. 102, cont. Parmen. ii. 13.] St. Jerome likewise allowed it in case of necessity ; and the Council of Elvira [4.D..305] decided in its thirty-eighth canon that no re-baptism was necessary for those who had been baptized in an emergency by lay- men, but only that the persons so baptized should be brought to the bishop for confirmation, if they should survive. Without citing any further authorities, it may be sufficient to give the emphatic words of Hooker—* Yea, ‘baptism by any man in case of necessity, was the voice of the whole world heretofore.” [Hooker’s Ecc. Polit, V. 1xi. 3.] 44 HOLY BAPTISM. [BOOK Il. He also affirms, in his subsequent argument, that even baptism by women, in case of extreme necessity, was valid, and not to be reiterated. The principle thus laid down has been definitely stated from time to time by English synods from a very early age ;! and the “ Pupilla Oculi,” which was a standard book of instructions for the clergy in the medizeval period, has some exhaustive statements on the subject [11. 2], which plainly show that it was the practice to recognize baptism as valid, by whomsoever administered, if given with the proper matter and form of words ; which practice undoubt- edly continued up to the time of the Reformation. This is at the same time shown most clearly and authoritatively by the rubric placed at the end of the Ritus Baptizandi in the Salisbury Manual, which is as follows :—“ Notan- dum est quod quilibet sacerdos parochialis debet parochianis suis formam baptizandi in aqua pura, naturali, et recenti, et non in alio liquore, frequenter in diebus dominicis exponere, ut si necessitas emergat sciant parvulos in forma ecclesize baptizare, proferendo formam verborum baptismi in lingua materna, distincte et aperte et solum unica voce, nullo modo iterando verba illa rite semel prolata, vel similia super eundem: sed sine aliqua additione, subtrac- tione, interruptione, verbi pro verbo positione, mutatione, corruptione, seu transpositione, sic dicendo: I christene thee N. in the name of the Fadir, and of the Sone, and of the Holy Gost. Amen. Vel in lingua latina, sic: Ego baptizo te, N. in nomine Patris, et Filii, et Spiritus Sancti. * Several will be found in Gibson’s Codex, xviii. 8 CHAP. I.] HOLY BAPTISM. 45 Amen. Aquam super parvulum spargendo, vel in aquam mergendo ter vel saltem semel.”? The substantial part of the above rubric was retained in the Book of Common Prayer in the following words :— “q The Pastors and Curates shall oft admonish the people that they defer not .... And also they shall warn them that without great cause and necessity they baptize not children at home in their houses. And when great need shall compel them so to do, that then they minister it on this fashion. { First, let them that be present call upon God for His grace, and say the Lord’s Prayer, if the time will suffer. And then one of them shall name the child, and dip him in the water, or pour water upon him, saying these words: “[ N. I baptize thee in the name of the Father, and of the Son, and of the * Another rubric added this caution: “| Non licet laico vel muliri aliquem baptizare, nisi in articulo necessitatis, Si vero vir et mulier adessent ubi immineret necessitatis articulus baptizandi puerum, et non esset alius minister ad hoc magis idoneus preesens, vir baptizet et non mulier, nisi forte mulier bene sciret verba sacra- mentalia et non vir, vel aliud impedimentum subesset.” But mid- wives used sometimes to baptize in case of necessity [ Burn’s Hecl. Law, art. Midwives, vol. ii. p. 513] down to quite recent times. It may also be added that surgeons frequently baptize children in danger of death at the present day. [Blunt’s Directoriwm Pastorale, p, 156.] In 1584 the Puritans presented a memorial to Archbishop Whitgift, praying, amongst other things, “that all baptizing by midwives and women may from henceforth be inhibited and declared void.” The archbishop replied that the baptism of even women is lawful and good, “so that the institution of Christ touching the word and element is duly used ;” and he adds that no learned man ever doubted that such was the case, though some of late by their singularity in some points of religion had given the adversary greater advantage than anything else could do, 46 HOLY BAPTISM. [BOOK II. Holy Ghost. Amen. And let them not doubt but that the child so baptized is lawfully and sufficiently baptized ..” After the Hampton Court Conference, in 1603, the above rubric was altered to meet the prejudices of the Puritans, the words “lawful minister” taking the place of “one of them.” In 1661, this was further altered to “the minister of the parish,” and at Bishop Cosin’s suggestion was added, “(or in his absence, any other lawful minister that can be procured)”:* and these successive alterations have been supposed to narrow the theory of the Church of England respecting baptism, and to restrict its valid administration to bishops, priests, and deacons. But, al- though these additions and alterations were probably made with the object of checking lay baptisms, it cannot be. said that they contain any decision against their validity ; nor indeed can it be supposed for-a moment that the prudent men who superintended the various re- visions of the Prayer Book would have reversed, merely . by a rubric, the long-established tenet of the Church of England, that lay baptisms are in some cases necessary, and not to be repeated. Moreover, in the questions to be asked by the clergyman of those who bring a privately-. baptized child to the church to be received, it is expressly stated that the “things essential to this sacrament” are 1 Tt must not be forgotten that “minister” in the Book of Common Prayer means “executor officit,” and that if it was used here in that sense, the addition of “lawful” does not by any means of necessity restrict it toaclergyman. The “ alius minister ad hoc magis idoneus” of the rubric given in the preceding note, shows that the word “minister” was used even’ of a lay person in the case of the minis- tration of baptism long before the Reformation, , CHAP. I.] POL Va ee Lao ais 47 the “matter” and the “ words,” no notice being given that the person who performed the ceremony was one of these “things essential” more than those who were present. Lastly, although there were supposed to be about three hundred thousand persons in England who had been baptized by laymen, at the time when the clergy were restored to their duties in 1661, no public provision was made by the Church for re-baptizing them, nor does it appear that any doubt whatever was thrown upon the validity of their baptism by those who revised our oflices. The question of lay baptism has been three times argued in the present century. The first time was in the case of Kemp v. Wickes [8 Phill. 264], in the year 1809, the second in that of Mastin v. Escott [2 Curt. 692], in the year 1841. Both these cases were decided by the Arches Court in favour of lay baptism, and the decision in the second was confirmed by the Queen in Council on appeal in the year 1842. [Escott v. Mastin, 4 Moore, P. C. p. 104.]?. In the case of Mastin v. Escott, Sir H. Jenner said, “It seems to me, upon the whole of the case, that the Jaw of the Church is beyond all doubt, that a child baptized by a layman is validly baptized.” The judgment of the Privy Council, delivered by Lord Brougham, was to the same effect. Lay baptism being thus allowed to be valid in case of necessity, it is yet clear that its validity depends upon the manner of its administration, not upon the reality of the necessity; and hence even if there is no such necessity, it must still be accounted valid, provided the proper matter * Bishop Fleetwood’s Works, p. 530, 2 The third case is Titchmarsh v, Chapman, 3 Curt, 840, in the year 1844, E 48 HOLYERAPTA SA, [BOOK II. and form are used. Hence baptisms by dissenting ministers who have not received priests’ or deacons’ orders at the hands of a bishop are valid lay baptisms, if administered with water and the proper form of words. There is room, however, for some doubt as to the fact of a particular dissenting baptism being thus valid; for many dissenters attaching little importance to the rite, it is reasonably to be supposed that they would be sometimes indifferent about exactness in administering it. For cases of doubt, therefore, the hypothetical form, “If thou art not already baptized,” &c., is provided; and by its use an unconscious iteration of baptism is avoided, while at the same time the certainty of its administration is secured. It is hardly necessary to add that lay baptism should be resorted to only in great extremity; and that when the sacrament is administered by one who is not ordained without such necessity, the person baptizing is guilty of no small sin, even though his act may bring a blessing to the person baptized. His act cannot be undone; but it ought not to have been done. § 3. Manner of administering Baptism. The original mode in which this sacrament was ad- ministered was undoubtedly by the descent of the person to be baptized into a stream or pool of water. It is pro- bable that the person baptizing also stood in the water [Acts viii. 38], and poured some of it with his hand upon the head of the other, as the latter bowed himself Baptism by three times (at the naming of each person of immersion. the Trinity by the baptizer) into the stream. CHAP. I.] HOLY BAPTISM. 49 St. Paul gave a beautiful symbolical meaning to this practice of immersion, when he said, “We are buried with Him by baptism into death; that like as Christ was raised up from the dead by the glory of the Father, even so we also should walk in newness of life.” [Rom. vi. 4.] When fonts were made in churches, they were made with a descent of seven steps, symbolizing the sevenfold gift bestowed by the Holy Ghost [Isidore, De Hee. Off: ii. 24}; and this implies a considerable depth of water, reaching to about the waist of an ordinary-sized man. pring The practice of ¢rine immersion also appears ™™ersion. to be of primitive origin. It is mentioned by Tertullian, and other early fathers, in passages already quoted; by St. Ambrose in his Treatise on the Sacraments; by St. Basil, in his work on the Holy Spirit; and by St. Leo, in his fourth Epistle; and all give substantially the same account of the practice with that given by St. Ambrose— “Thou wast asked, Dost thou believe in God the Father Almighty? Thou didst answer, I believe, and didst dip into the water; that is, thou wast buried. Again wast thou asked, Dost thou believe in Jesus Christ our Lord, and in His cross? Thou didst answer, I believe, and didst dip into the water, therefore also thou wast buried with Christ; for whosoever is buried with Christ, shall rise again with Christ. A third time wast thou asked, Dost thou believe in the Holy Ghost? Thou didst reply, I believe; and a third time didst thou dip into the water.” The apostolical constitutions of the fifth century even for- bade the practice of single immersion, decreeing in their fiftieth canon, “If any bishop or priest does not perform 50 HOLY BAPTISM. [BOOK II. the one initiation with three immersions, but with giving one immersion only into the death of our Lord, let him be deposed. For the Lord said not, Baptize into My death ; but, ‘Go—baptizing them in the name of the Father, and of the Son, and of the Holy Ghost.” There is also extant an Irish canon [Cashel, A.D. 1172] distinctly ordering trine immersion. [Wilk. Cone. 1. 472.] Yet there seems to have been an early necessity for guarding against error in the use of this trine immersion, and St. Gregory of Nyssa writes: “We immerse to the Father, that we may be sanctified; we immerse to the Son, also to this same end; we immerse also to the Holy Ghost, that we may be that which He is and is called. There is no differ- ence in the sanctification.” The practice of immersion, whether trine or single, was not, however, regarded as an essential feature of baptism. The Philippian gaoler “was baptized, he and all gaptism py his, straightway,” in prison, and in the middle @#4sion. of the night; and immersion in such a case seems ex- tremely improbable. It seems almost equally unlikely in the case of Cornelius and his household. In days of per- secution, when Christian rites could only be administered in secret, immersion could not have been universal: and there is abundant evidence that “clinic baptism”—that is, the baptism of those who were on their death-beds—was very common in those primitive days. Respecting the usage in the latter case, St. Cyprian wrote to Magnus [A.D. 255] in the following words: “You have inquired also, dearest son, what I think of those who in sickness and debility obtain the grace of God, whether they are CHAP. I.] HOLY BAPTISM. 51 to be accounted legitimate Christians, in that they are sprinkled, not washed, with the saving water. . . I, as far as my poor ability conceiveth, account that the Divine blessings can in no respect be mutilated and weakened, nor any less gift be imparted, where what is drawn from the Divine bounty is accepted with the full and entire faith both of the giver and the receiver. .... Nor should it disturb any one that the sick seem only to be sprinkled or affused with water, when they attain the grace of the Lord, since Holy Scripture speaks by the Prophet Ezekiel, and says, ‘Then will I sprinkle clean water upon you, and ye shall be cleansed from all your filthiness, and from all your idols will I cleanse you; a new heart will I give you, and a new spirit will I put within you.” He then goes on to refer also to Numbers xix. 7, 19, 20; viii. 5-7; xix. 9; and adds, “Whence it is apparent that the sprinkling also of water has like force with the saving washing, and that when this is done in the Church ”—not, @.e. by heretics—“ where the faith both of the giver and receiver is entire, all holds good, and is consummated and perfected by the power of the Lord and the truth of faith.” [Cyp., #p. lxix. 11,12.] The principle thus so plainly set forth by St. Cyprian has ever since been generally accepted by the Church; and ablution, or the actual touch of water during the invocation of the Blessed Trinity, has always been accounted the essential feature in the administration of holy baptism. Whether that ablution is effected by the more complete method of immersion, or by the less perfect one of affusion, the result is the same: care being always taken that the actual contact 52 HOLY BAPTISM. [BOOK II. of the water with the person is really effected. And thus the rubric of the English office leaves it discretionary whether the infants or adults to be baptized shall be dipped in the water, or have water poured upon them ; security being provided for the actual contact of the water by the exclusion of mere sprinkling, which is not recog- nised at all in the Church of England, and can never be considered a safe method of applying the water, or a reverent way of obeying the command of our Blessed Lord, however much it may, as a minimum of obedience, fulfil the required conditions. Baptism by immersion is still, there can be no doubt, the primary rule of the Church of England: and when it is demanded by parents for their children, or by adult candidates for themselves, it can scarcely be refused, though the practical difficulties in the way of complying with the demand are, in either case, considerable. In the case of infants the old rubric [A.D. 1548] was: “Then the priest shall take the child in his hands, and ask the name; and naming the child, shall dip it in the water thrice: first, dipping the right side; secondly, the left side; the third time dipping the face toward the font.” In the case of adults the rubric is of a later date [A.D. 1662], and directs: “Then shall the priest take each person to be baptized by the right hand... . and then shall dip him in the water, or pour water upon him.” § 4. Public Baptism. It is, and always has been, provided by the Church, that the ordinary administration of baptism shall take CHAP. I.] WOLY BAPTISM. 53 place in facie ecclesiw, the exceptions being children or grandchildren of a reigning sovereign, and those who from sickness or other danger cannot be brought to church.! Its ordinary place of administration is, therefore, at a font in the building set apart, by consecration at tne or licence, for Divine Service. Thus the 8lst Font canon of 1603 directs as follows: “ According to a former Constitution, too much neglected in many places, we appoint that there shall be a font of stone in every church and chapel where baptism is to be ministered; the same to be set in the ancient usual places; in which only font the minister shall baptize publicly.” The “former Constitution” referred to here is the tenth of those passed under Edmund Rich, Archbishop of Can- terbury, in the year 1236. “Let every baptismal church have a font of stone, or some other proper material, sufficient in size, decently covered, reverently kept, and used for no other purpose.” [Wilk. Cone. i. 636.] The ordinary time for the administration of bap- tism is that during which a congregation amie During is assembled for Divine Service. In the Divine early Church, Epiphany, Easter, and Whit- eee, suntide were the chief seasons for baptism; and the * In the revision of 1552 the word “public” was expunged from the title of the service, but it was carefully restored in the revision of 1661. One of the rubrics at the end of the ancient Office for Baptism in the Church of England is as follows: “J Non licet aliquem bap- tizare in aula, camera, vel aliquo loco privato, sed duntaxat in ecclesiis in quibus sunt fontes ad hoc specialiter ordinati, nisi fuerit filius regis vel principis, aut talis necessitas emerserit propter quam ad ecclesiam accessus absque periculo haberi non potest.” 54 / HOLY BAPTISM. [BOOK 1. two latter are called “the times appointed by the sacred canons” in the constitutions of Otho and Othobon, in the thirteenth century. But as those constitutions permitted baptism to be administered at other seasons, so one of Archbishop Peckham’s [A.p. 1281] still further relaxed the ancient rule, and directed that while the baptism of children born within eight days before Easter and Whit- suntide should be reserved for those festivals, others should be baptized as soon as convenient after birth. The ancient custom of the Church was noticed in a paragraph of the rubric, from 1549 to 1661, as follows: “Tt appeareth by ancient writers, that the sacrament of baptism in the old time was not commonly ministered but at two times in the year, at Easter and Whitsuntide; at which times it was openly ministered in the presence of all the congregation: which custom (now being grown out of use), although it cannot for many considerations be well restored again, yet it is thought good to follow the same as near as conveniently may be.” This paragraph was, however, dropped at the revision of the Prayer Book in 1661, and the rubric left thus: “The people are to be admonished, that it is most convenient that baptism should not be administered but upon Sundays, and other holy-days, when the most number of people come together ; as well for that the congregation there present may testify the receiving of them that be newly baptized into the number of Christ’s Church; as also because in the baptism of infants every man present may be put in remembrance of his own profession made to God in his baptism. For which cause also it is expedient that baptism be minis- CHAP. I.] HOLY BAPTISM. 5s tered in the vulgar tongue. Nevertheless (if necessity so require), children may be baptized upon any other day.” A further rubric enjoins that the baptism of infants shall take place within a fortnight of birth: “The goon after curates of every parish shall often admonish the Birth. people, that they defer not the baptism of their children longer than the first or second Sunday next after their birth, or other holy day falling between, unless upon a great and reasonable cause to be approved by the curate.” Modern custom has extended the limit to a month, and perhaps there is good reason for this in the diminished hardiness that accompanies advanced civilization ; yet the time is exactly that named in the second of King Ina’s Ecclesiastical Laws at the end of the seventh century.? The parents of any child that is to be baptized are * The parish register of Houghton-le-Spring, near Durham, con- tains entries of the date of birth, as well as that of baptism, for several years during the supremacy of the Puritans. The following list shows the ages at which 150 infants were baptized in that parish, between October 3rd, 1653, and March 13th, 1658-9 : ] ct ed Days old. ee Days old. Hal 1 13 8 30 2 1 9 20 3 2 11 24 4 1 12 13 5 1 15 15 6 1 16 18 7 It thus appears that 144 out of 150 were baptized within eight days of birth, and that only two of the remaining six were PO beyond the second week. 56 HIOLY BAPTISM. [BOOK It. required by the rubric to give notice to the responsible clergyman: “When there are children to be baptized, the Notice to Parents shall give knowledge thereof overnight, be given. or in the morning, before the beginning of morning prayer, to the curate ;” the preceding regulation as to the administration of baptism on Sundays or holy- days only being, of course, understood. Such notice having been given, a severe penalty is enacted by the 68th canon, on any clergyman who refuses to act upon it: “ No minister shall refuse or delay to christen any child according to the form of the Book of Common Prayer that is brought to the Church to him upon Sundays or holy days, to be christened .... convenient warning being given him thereof before, in such manner and form as is prescribed in the said Book of Common Prayer. And if he shall refuse to christen the” child.... “he shall be suspended by the bishop of the diocese from his ministry by the space of three months.” In interpreting this canon, due regard must be paid to the expression, “according to the form of the Book of since this “form” limits the time of > Common Prayer ;’ baptism to “after the last lesson” at morning or evening prayer, and the clergyman would not be bound to baptize a child brought to the church at a later time of. the service, or when there is neither matings nor evensong, or perhaps when no godfathers or godmothers appear. “Con- venient warning” has also been defined as being “ warning of the intention to bring,” and should if possible be given at least the evening before, as in the rubric. Before the public baptism of adults can take place, a CHAP. I.] HOLY BAPTISM. 57 longer notice is required ; the rubric ordering that “When any such persons as are of riper years are to be baptized, timely notice shall be given to the bishop, or whom he shall appoint for that purpose, a week before at the least, by the parents, or some other discreet persons ; that so due care may be taken for their examination, whether they be sufficiently instructed in the principles of the Christian religion ; and that they may be exhorted to prepare them- selves with prayers and fasting for the receiving of this holy sacrament.” This provision as to a week’s notice to the bishop being supplemented by the words “or whom he shall appoint for that purpose,” a general discretion has sometimes been given by a bishop to a clergyman in whose parish adult baptisms were likely to be frequent; and certainly no one seems more fit to be appointed “for that purpose” than the parish priest himself. But it is also ordered in the rubric that the baptism of adults shall be followed as soon as possible by their confirmation: “It is expedient that every person thus baptized should be confirmed by the bishop so soon after his baptism as conveniently may be; that so he may be admitted to the holy communion.” There may be an association between this and the pre- ceding rubric. Godfathers and godmothers are required, by the law of the Church of England, at the public baptism both of infants and adults. The rubric preceding the Office for gionsors the Public Baptism of Infants enjoins: “And Teaired. note, that there shall be for every male-child to be baptized, two godfathers and one godmother; and for every female, one 58 HOLY BAPTISM. [BOOK II. godfather and two godmothers.” They are also spoken of in the second rubric of the Office for the Baptism of Adults, are required to name the adult to be baptized, and are exhorted in the words: “ Ye must remember, that it is your part and duty to put them in mind what a solemn vow, promise, and profession they have now made before this congregation, and especially before you thew chosen witnesses. And ye are also to call upon them to use all diligence to be rightly instructed in God’s holy Word; that so they may grow in grace, and in the knowledge of our Lord Jesus Christ, and live godly, righteously, and soberly in this present world.” In the rubric of the ancient baptismal office of the Church of England the number of sponsors is left indefinite, though it is ordered not to exceed three. “Non plures quam unus vir et una mulier debent accedere ad suscipiendum parvulum de sacro fonte: unde plures ad hoc simul accedentes peccant faciendo contra prohibitionem canonis, nisi alia fuerit consuetudo approbata: tamen ultra tres amplius ad hoc nullatenus recipiantur.” In a national council, held at York by Hubert, Arch- bishop of Canterbury, in 1195, and in some constitutions of 1237, there is, however, a provision exactly similar to that in our present rubric: “Ad levandum vero puerum de fonte, tres ad plus recipiantur; videlicet in baptismo maris duo mares et una fcemina; in baptismo fcemine, duce foeminee, et unus masculus; quod enim amplius est a malo est.” [Wilk. Cone. i. 501, 657.] The primitive practice of the Church appears to have been identical with that of the Eastern and the Latin Church at present, in CHAP. I.] HIOLY BAPTISM. 59 which only one sponsor is required, although two. are permitted. [Duty of Parish Priests, iii. 10; Cone. Trident xxiv. 2.] In the ancient English exhortation, which was used at the end of the office, one godfather and one god- mother are named; and it may be doubted whether three sponsors were ever actually required until 1661, when the present rubric was inserted by Bishop Cosin. By the ancient canon law there were several restrictions as to the persons who should be allowed to offer them- selves as sponsors; but the only ones now retained are those of the 29th canon of 1603, which forbids parents to do so for their own children, and excludes non-communi- cants from the office: “No parent shall be urged to be present, nor be admitted to answer as godfather for his own child; nor any godfather or godmother shall be suffered to make any other answer or speech, than by the Book of Common Prayer is prescribed in that behalf: neither shall any person be admitted godfather or godmother to any child at christening,.... before the said person so undertaking hath received the holy communion.” All that it is necessary further to mention respecting the law of baptism is, that a constitution of A.D. 1281 places * In 1865 the Convocation of Canterbury (under Royal Licence) altered this canon to the following form :—“ No godfather or god- mother shall be suffered to make any other answer or speech than by the Book of Common Prayer is prescribed in that behalf; neither shall any person be admitted godfather or godmother to any child at christening or confirmation before the said person so undertaking hath received the holy communion.” But this alteration was not as- sented to by the Convocation of York, and was never promulgated by the Crown, 60 HOLY BAPTISM. [BOOK II. a rational and proper limitation upon the names that may Limitation be given at baptism. It runs, “Let priests also Beso e take care that they do not permit wanton names, Christian sr i names. which tend to lasciviousness, to be given to children, especially female children, in baptism! If this be done, let the name be changed by the bishops at confirma- tion.” [Wilk. Cone. ii. 33.] This was anciently done by the bishop naming the child he was confirming by the new and not the old name, in the usual words of the confirmation office, “Consigno te NV. signo crucis > et confirmo te chrismate salutis,’ &c. If a bishop were to act in an analogous manner at the present day it is presumed he would insert the name thus, in the invocation, “ Defend, O Lord, this Thy child WV. with Thy heavenly grace,” &c. Bishop Kennett has left on record in some MS. notes to the Prayer Book, which are now in the British Museum, an account of a case in which a bishop changed the name of achild. He states the fact as follows :—“On Sunday, Dec. 21, 1707, the Lord Bishop of Lincoln confirmed a young lad in Henry VII.’s Chapel: who upon that ceremony was to change his Christian name: and, accord- ingly, the sponsor who presented him delivered to the bishop a certificate, which his lordship signed, to notify that he had confirmed such a person by such a name, and * There is, in the British Museum Library, a letter of Bishop Scambler of Peterborough, written in 1567, which contains the following words on this subject :—“I may not change usuall or comen names at the contirmacion, but onlie strange and not comen ; and further, if the name be changed at confirmacion, it taketh effect but from the confirmacion.” [Lansd. MS. 50, fol. 127.] CHAP. I.] HOLY BAPTISM. 61 did order the parish minister then present to register the person in the parish book under that name. This was done by the opinion under hand of Sir Edward Northey, and the like opinion of Lord Chief Justice Holt, founded on the authority of Sir Edward Coke, who says it was the common law of England.” But a much later instance is on record as having taken place in Ireland, the register book of Cork Cathedral containing the following entry :— “1761, Sept. 21st. Robert St. George Caulfield, Lieutenant in His Majesties 93 regiment of foot, commanded by Col. Samuel Bagshaw, and eldest son of Robert Caulfield, minister of, and residing in the parish of Finglass, near Dublin, was by me presented to the Rt. Revd. Father in God, Jemmett, Lord Bishop of Corke and Ross, in the Cathedral and Parish Church of St. Finbarry, Corke, to be admitted to the holy rite of Confirmation, and to be admitted to change his name of Robert St. George to that of William, and by the name of William I did then present him; and the bishop, consenting to the changing of his name to William, did then confirm him William.” [Notes and Queries, 4th Ser. vi. p. 17.] This was also done by the Bishop of Liverpool in 1877. [Notes and Queries, 7th Ser. ii. p. 77.] The ancient canon law certainly only referred to such a change when the baptismal name was one of an improper kind, yet this may only represent a portion of the common law of the Church on the subject. § 5. Private Baptism. It seems to have been rare for the clergy to baptize out of church in medieval times, and the canons which deal 62 HOLY BAPTISM. [BOOK Il. with the subject of private baptism are, in reality, canons respecting lay baptism; merely enjoining that the clergy shall frequently teach their people the proper form of baptism, and that lay baptism properly administered is valid. For more than half a century after the publication of the Prayer Book, a similar practice seems to have con- tinued, the only provision made for private baptism being as follows: “First, let them that be present call upon God for His grace, and say the Lord’s Prayer, if the time will suffer. And then one of them shall name the child, and dip him in the water, or pour water upon him, saying these words: ‘N., I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost.’” The disputes about the efficacy of lay baptism led, however, to the passing of the 69th canon of 1603, enforcing the duty of private baptism on the clergy themselves, when there was any necessity for it at all. “If any minister, being duly, without any manner of collusion, informed of the weakness and danger of death of any infant unbap- tized in his parish, and thereupon desired to go or come to the place where the said infant remaineth, to baptize the same, shall either wilfully refuse so to do, or of pur- pose, or of gross negligence, shall so defer the time, as, when he might conveniently have resorted to the place, and have baptized the said infant, it dieth, through such his default, unbaptized; the said minister shall be sus- pended for three months; and before his restitution shall acknowledge his fault, and promise before his ordinary, that he will not wittingly incur the like again. Provided, that where there is a curate, or a substitute, this Constitu- CHAP. I.] HOLY BAPTISM. 63 tion shall not extend to the parson or vicar himself, but to the curate or substitute present.”* At the revision of the Prayer Book in 1661, the old second rubric, “They shall warn them, that without great cause and necessity they baptize not children at home in their houses,” was altered into “they procwre not their children to be baptized at home in their houses.” The third (given above) was also altered into this form: “ First, let the minister of the parish (or in his absence, any other lawful minister that can be procured) with them that are present call upon God, and say the Lord’s Prayer, and so many of the collects appointed to be said before in the form of public baptism, as the time and present exigence will suffer. And then, the child being named by some one that is present, the minister shall pour water upon it, ” saying these words ....” The connection between these changes and the question of lay baptism is dealt with in a preceding section [page 46]. It is only necessary here to add that while private baptism was in medieval times, and down to the changes made in the office in 1661, looked upon as primarily a day function, since those changes it is exhibited as primarily a clerical function. Under both systems it was provided that the child pri- vately baptized should, if convalescent, be brought to church, not to be baptized again, but for a solemn public recognition to be made of the child’s regenerated condi- * The laity so much objected to public baptism that this canon introduced a very general substitution of private baptism by the clergy for the public rite, a practice which came down even to the last generation, F 64 HOLY BAPTISM, [BOOK II. tion by the priest publicly receiving it, as one already a Christian child, into the public congregation of Christ’s flock; the rites previously omitted being also then sup- plied. A Constitution of A.D. 1236 decrees that “if, on account of necessity, a child has been baptized by a layman at home, the water used shall (for the sake of reverence towards baptism) be either poured upon the fire, or else carried to the church to be poured into the font; and the vessel used shall either be destroyed by fire” [wooden bowls being then common] “or applied to the use of the church.” § 6. Fees for Baptism unlawful. There has often been an inclination on the part of the laity to give, and of the clergy to receive, fees for the administration of baptism; but there are distinct laws of the Church forbidding the practice. In such early times as the year 305 the 48th canon of the Council of Elvira decreed that “those who are baptized shall not (as the custom has been) cast money into the font” [in concham] “lest the priest should seem to dispense for a fee what he has received gratis.” The Excerpts of Egbert [A.D. 750] order “that no priest shall presume to sell . . . the sacrament of baptism . . . for money.” [Wilk. Cone. i. 102.] The same was ordained in a national council held at London in the year 1126 [Zbzd. 1. 408]; as well as in provincial councils at Westminster, in the year 1173 [J bid. i. 474]. Doubts having been entertained in recent times whether ' CHAP. I,] HOLY BAPTISM, 65 fees might not, by custom or under local statutes, be demanded for Baptism or Registration in some Churches and Chapels, an Act [35 and 36 Vict. ch. 36] was passed in 1872 which enacts that “it shall not be lawful for the minister, clerk in orders, parish clerk, vestry clerk, warden, or any other person, to demand any fee or reward for the celebration of the sacrament of baptism, or for the registry thereof.” Vested rights conferred by Act of Par- liament (should any such be in existence) were, however, reserved to the existing holders. § 7, Registration of Baptisms, The registration of baptisms is a custom which is pro- bably not to be traced higher than the fifteenth century, though that of deaths, and perhaps of burials, is of a much more ancient date. The form in which the entries were formerly made varied much, according to the taste and the eccentricities of the clergyman or the parish-clerk; and it is probable that the registers were often irregularly kept, notwithstanding the strict regulations contained in the seventieth canon of 1603. In the year 1812 an Act of Parliament was passed “for the better regulating and preserving Parish and other Registers of Births, Baptisms, Marriages, and Burials in England” [52 Geo. III. ch. 146]; and this is the law by which the registration of baptisms is now ruled. It enacts that a separate register book for baptisms is to be provided, in the form directed by the Act, at the expense of the parish, to be kept in the custody of the officiating minister in an iron chest, which is also to be provided at the expense of the parish, 66 HOLY BAPTISM. [BOOK II. Entries of all public and private baptisms are to be made by the rector, vicar, curate, or officiating minister, in the form directed by the Act. Of these entries a copy written on parchment, certified in a particular form by the clergy- man, whose signature shall be attested by one of the churchwardens, is to be transmitted annually to the registrar of the diocese by the churchwardens, at some time between March 1st and June Ist. In extra-parochial places, where there is no chureh or chapel, a memorandum of any baptism signed by the parent of the child baptized is to be given by the officiating minister, within one month afterwards, to the rector, vicar, or curate of the next parish, to be entered into the register of that parish, and form part of it. Errors may be corrected by the clergyman, within one month after the discovery of such error, in the presence of the parent or parents of the child baptized [§ 15]; the corrections being certified in the certified copy of the entry. Destroying, defacing, injuring any register of baptisms, marriages, or burials, all forms of fraud with regard to these registers, or certificates or copies of entries, or causing or permitting such destruction, defacing, or injury, are made felony. [24 & 25 Vict. ch. 98, §§ 36, 37.] The “ Act for registering Births, Deaths, and Marriages in England” has a clause to the effect that “nothing herein contained shall affect the registration of baptisms . as now by law established” [6 & 7 Will. IV. ch. . 86, § 49], and baptismal registers are evidence in Courts of Law. CHAP. I. HOLY BAPTISM. 67 Fees for the registration of Baptisms are unlawful, being so declared by the Act named in the preceding page. When a child is registered by the Registrar of Births before baptism, without a name, or with a name other than that given to it in baptism, a certificate may be procured from the minister baptizing of the name given in baptism, and therefrom the baptismal name is entered in the Register of Births. This must be done within twelve months of the registration of the birth. The minister is entitled to a fee of one shilling for giving the certificate. [37 & 38 Vict. ch. 88, §8.] r [ 68 J Chapter IT. CONFIRMATION. § 1. Persons to be Con- § 2. Preparation for the TINE 3... 5 OO C119, eo ARN Ss - § 3. Administration of the Rite. . 74 ROM the days of the apostles, and in every orthodox branch of the Church, the sacrament of baptism has always been followed up (at an interval of time varying according to circumstances) by a complementary rite known under the various names of “the Laying on of’ Hands,” “the Seal,” “the Anointing,” and very generally in the Western Church, since the fourth century, under that of “Confirmation.” The outward sign of “Laying on of Hands” was insti- tuted by our Lord, but there is no record of His having appointed it to be used in the form of confirmation. As the rite does not, therefore, answer fully to the Anglican definition of a sacrament, as “an outward and visible sign of an inward and spiritual grace given unto us, ordained by Christ Himself, as a means whereby we receive the same, and a pledge to assure us thereof,” it is said “not to be counted for a sacrament of the Gospel,” nor having the CHAP, II.] CONFIRMATION. 69 like nature of a sacrament with baptism and the Lord’s Supper,” but as “commonly called” a sacrament [Art. of Rel. xxv.] in an inferior degree by the custom of the Church. There is no statute law respecting confirmation except the Book of Common Prayer; legislation respecting it does not, therefore, come down lower than the year 1661, but in the Prayer Book and in the canons there are regulations respecting the persons to be confirmed, the preparation for, and the administration of, the rite. § 1. Persons to be Confirmed. Since it is a confirmation of the baptism of the baptized, none but Christians are competent to receive the rite. The title of the office is, therefore, now, as it was in the old Latin office, “the Order of Confirmation, or laying on of hands upon those that are baptized . . .”4 The nature of the rite does not in itself make a rational mind essential to its due administration, any more than in the ease of baptism; but the English office is so framed that it can only be properly used in the case of those who can say the Creed, the Lord’s Prayer, and the Ten Com- mandments, with the other portions of the Catechism ; who can intelligently answer, “I do,” to a certain question asked of them by the bishop, and who have “come to years of discretion,” as stated in the title of the office. These conditions are also imposed by the 61st canon of 1603. There can be no doubt, then, that idiots and * “Confirmatio puerorum et aliorum baptizatorum,” 70 CONFIRMATION, [BOOK I. lunatics are excluded from the number of those who are to be brought to the bishop to be confirmed by him. The reason of this difference between the case of Baptism and that of Confirmation is, because the first is essential, and the second is not essential, to salvation; and because in the first the consentient mind of the sponsors or sureties is sufficient, while the second requires the active partici- pation of the recipient. Rational-minded Christians, who have “come to years of discretion,” are, therefore, the proper recipients of confirmation, but what is meant in this case by “years of discretion” requires some further interpretation. In the primitive Church confirmation was administered immediately after baptism, whether the newly-baptized person was an adult, a child, or an infant. But as baptism came to be administered at times when a bishop was not present, some delay necessarily followed in the reception of the other rite, at least in the Western Church, where it has always been conferred by bishops, and bishops only! But the confirmation of infants grew less and less common, and in medieval times an interval of three to seven years ensued between baptism and its administration. There is in existence a canon of 1220 which provided that if a child remained unconfirmed beyond seven years of age neither its father nor its mother should enter the church until the rite had been performed.” * In the Eastern Church the chrism is blessed by a bishop, and its use, with certain ceremonies by the priest, is taken as confirmation, * Passed by a synod of Durham. [ Wilk. Cone. i. 576.] CHAP. II.] CONFIRMATION. 71 In the year 1549 a long rubric was prefixed to the office (of which ‘the first half is still retained), which began by stating that “none hereafter shall be confirmed but such as can say in their mother tongue the Articles of the Faith, the Lord’s Prayer, and the Ten Commandments, and can also answer to such questions of this short cate- chism,” at that time prefixed to the office, “as the bishop (or such as he shall appoint) shall, by his discretion, appose them in.” A similar clause was inserted in the admonition to godfathers and godmothers which was placed at the end of the Office for Public Baptism, and also in a rubric at the end of the Catechism. The 61st canon of 1603 enforced the sarne point in an equally definite form. “Every minister that hath cure and charge of souls, for the better accomplishing of the orders prescribed in the Book of Common Prayer concerning confirmation, shall take especial care that none shall be presented to the bishop for him to lay his hands upon, but such as can render an account of their faith, accord- ing to the catechism in the said book contained.” It thus appears that a standard of intellectual qualifica- tion is required which is certainly not to be met with in many children at so early an age as that at which they were confirmed in the medizval Church of England. Some weight must also be attached to the expression “come to years of discretion,” which is used both in the title and in the prefatory admonition of the office, and which would clearly mean the “pubertas” or “age of dis- cretion” of the civil law, adopted by the canon law, i.e., fourteen years. On the other hand, this question of age 72 CONFIRMATION. [BOOK It. is illustrated, and, to a certain extent, interpreted by an authoritative document drawn up by the bishops in 1559 as an explanation of the queen’s injunctions, in which it is directed “that children be not admitted to the com- munion before the age of twelve or thirteen years, being of good discretion, and well instructed before.” It seems therefore, “that twelve or thirteen years of age, but not less, would make a candidate fit for confirmation in the eye of the Church; and that confirmation ought not to be postponed beyond the period of coming to pubertas, or yo years of discretion. § 2. Preparation for the Rite. The latter part of the 61st canon of 1603 enjoins: “ And when the bishop shall assign any time for the per- formance of that part of his duty, every such minister shall use his best endeavour to prepare and make able, and likewise to procure as many as he can to be then brought, and by the bishop to be confirmed.” The mode of such preparation is indicated by the rubrics and canon already quoted ; and it is further shown * Cardwell’s Documentary Annals, i. 206. About the same time, the Catechism of the Council of Trent marked out the age for con- firmation as between seven and twelve years. [Catech. Trident. iii. qu. 7.| ? It may be useful to append the following extract from an official circular issued by the Bishop of Rochester in the year 1869. After giving notice of the time of holding confirmations, he says :—“I leave the age at which young persons shall be confirmed wholly to your discretion. The age at which a child is fit to be confirmed varies according to different dispositions, circumstances, and the influences of home companions and condition of life,” CHAP. I1.] CONFIRMATION. 73 by the second title of the Catechism “An Instruction to be learned of every person before he be brought to be confirmed by the bishop.” The 59th canon, which is on the subject of catechizing, evidently points also towards preparation for confirmation: “Every parson, vicar, or curate, upon every Sunday and holy-day, before Evening Prayer, shall, for half an hour or more, examine and instruct the youth and ignorant persons in his parish, in the Ten Commandments, the Articles of the Belief, and in the Lord’s Prayer; and shall diligently hear, instruct, and teach them the Catechism set forth in the Book of Common Prayer. And all fathers, mothers, masters, and mistresses, shall cause their children, servants, and apprentices, which have not learned the Catechism, to come to the church at the time appointed, obediently to hear, and to be ordered by the minister, until they have learned the same. And if any minister neglect his duty herein, let him be sharply reproved upon the first complaint, and true notice thereof given to the bishop or ordinary of the place. If, after submitting himself, he shall willingly offend therein again, let him be suspended; if so the third time, there being little hope that he will be therein reformed, then excom- municated, and so remain until he will be reformed. And likewise if any of the said fathers, mothers, masters, or mistresses, children, servants, or apprentices, shall neglect their duties, as the one sort in not causing them to come, and the other in refusing to learn, as aforesaid, let them be suspended by their ordinaries (if they be not children) ; and if they so persist by the space of a month, then let them be excommunicated,” 74 CONFIRMATION. [BOOK It The present rubric so far supersedes this canon that it directs the clergyman to catechize after the Second Lesson at Evening Prayer. It is plain that both canon and rubric contemplate catechizing as an open and public ministration in the Church, and in the face of a congre- gation: and however diligently school or private catechizing may be carried on, it cannot be considered as adequately satisfying the law of the Church. But catechizing can scarcely be said to include the whole of what is contem- plated by the “best endeavour” of the clergyman to “prepare and make able” candidates for confirmation ; and these words must doubtless be interpreted as including something of that private intercourse and admonition which the clergy are accustomed to use. § 3. Administration of the Rite. The frequency with which bishops were accustomed to administer confirmation in the times preceding the seven- teenth century depended, no doubt, as in later times, upon the pastoral diligence or neglect with which they presided over their dioceses. Bishop Cosin speaks of an “offensive liberty that herein hath been commonly taken, to confirra children in the streets, in the highways, and in the common fields, without any sacred solemnity ” [Cosin’s Works, v. 522]; and this practice was certainly much older than the seventeenth century. Probably every opportunity was taken by the bishops of confirming children wherever they found them, and by parents of bringing their children to the bishop whenever and wherever he caine within reach. But the formal time is CHAP. Il] CONFIRMATION. 75 stated in the 60th canon of 1603 (which now regulates the practice of the Church) to have been every third year. The 60th canon is as follows :—“Forasmuch as it hath been a solemn, ancient, and laudable custom in the Church of God, continued from the Apostles’ times, that all bishops should lay their hands upon children baptized — and instructed in the Catechism of Christian religion, praying over them, and blessing them, which we commonly call confirmation; and that this holy action hath been accustomed in the Church in former ages, to be performed in the bishop’s visitation every third year; we will and ap- point, that every bishop or his suffragan, in his accustomed visitation, do in his own person carefully observe the said custom. And if in that year, by reason of some infirmity, he be not able personally to visit, then he shall not omit the execution of that duty of confirmation the next year after, as he may conveniently.” But some modern bishops go beyond the mere letter of the Church’s law, and hold confirmations every year, Lent being the most general time for so doing. The modern practice of certifying to. the bishop the competency of those presented to him is for each clergy- man to give to those whom he has instructed and catechized, and of whom he approves, a certificate in this form: “Confirmation, 1871. Parish of West Layton. John Smith, aged 13 years. Examined and approved by me, William Featherstone, Vicar.” This certificate is presented by the candidate to the bishop through the hands of his chaplain. The rubric at the end of the Catechism is also complied with, which directs: “And whensoever the 76 CONFIRMATION. [BOOK II. bishop shall give knowledge for children to be brought unto him for their confirmation, the curate of every parish shall either bring, or send in writing, with his hand sub- scribed thereunto, the names of all such persons within his parish, as he shall think fit to be presented to the bishop to be confirmed. And, if the bishop approve of them, he shall confirm them in manner following.” Cases have been known in which a bishop has refused to confirm candidates so presented to him, a considerable number having been on one occasion sent back from the altar unconfirmed by Bishop Baring of Durham, because they had not reached the standard of age required by him. But in a somewhat similar case elsewhere, such prompt and definite action was taken by the boy’s parent as to convince the Bishop concerned that if the candidate was otherwise “ fit,” according to the standard laid down in rubrics and canons, it was ilegal to refuse him con- firmation on account of age. The last rubric but one which follows the Catechism directs that “every one shall have a godfather or a god- mother as a witness of their confirmation.” The 29th canon refers to the same custom when it says, “ Neither shall any person be admitted godfather or godmother to any child at... confirmation before the said person so undertaking hath received the Holy Communion.” The practice, however, of having sponsors or sureties at con- firmation (whether the same or different persons from those who were sponsors at baptism) is almost obsolete, The essential act of confirmation is the imposition of hands by the bishop: the rubric therefore orders that CHAP. II.] CONFIRMATION. 77 when the preliminary prayers, &c., have been said, “Then all of them in order kneeling before the bishop, he shall lay his hand upon the head of every one severally, saying . .” There is not any legal necessity for the imposition of both hands on each child or person, but a loving minister of the rite would probably use both. Too often the essential part of the rite is hurried over, and much time spent on “addresses,” for which there is no provision in the office, and which are assuredly not an essential part of the rite. This custom has led to that of saying the words of invocation over three, or many more, at once, instead of over “every one severally;” and the best of “addresses” are as poor by way of substitute for such individual application of those solemn words, as they are by way of counterpoise to so important a deviation from the law of the Church. No legal provision is made for a register of persons confirmed, but a canon of A.D. 1322 reasserts the ancient tule that confirmation may not be repeated, and some such register seems to be very necessary. imped Chapter ITI. THE HOLY COMMUNION. § 1. Settlement of Law re- § 3. Celebration of the Sa- specting the Holy CPamenl £0 2) Ge Communion . . .78| § 4. Administration of the § 2. Doctrine of the Holy Sacrament \. \.. 162" Communion . . . 83 OME corrupt customs of late mediaeval times and the controversies which gathered round the Reformation led to an epoch of legislation respecting the Holy Eucha- rist, which extended over a quarter of a century, beginning with the 4th of the Ten Articles of Religion [A.p. 1536], and substantially ending with the 28th, 29th, and 30th of the Thirty-nine Articles of Religion. [4.D. 1562.] This legislation was sometimes of a reforming, at other times of a reactionary character, and has been so much mis- represented that a short account of it will be necessary as.an introduction to the existing law on the subject. § 1. Settlement of Law respecting the Holy Communion. On July 10th, 1536, the convocation of Canterbury and deputies from that of York subscribed to Ten Articles of Religion, which subsequently received the royal assent and were promulgated by the Crown. The 4th of these CHAP. III. THE HOLY COMMUNION. 79 canons was as follows :—“ As touching the sacrament of the altar, we will that all bishops and preachers shall instruct and teach our people committed by us unto their spiritual charge, that they ought and must constantly believé that under the form and figure of bread and wine, which we there presently do see and perceive by outward senses, is verily, substantially, and really contained and comprehended the very self-same body and blood of our Saviour Jesus Christ, which was born of the Virgin Mary, and suffered upon the cross for our redemption, and that under the same form:and figure of bread and wine, the very self-same body and blood of Christ is corporally, really, and in the very substance exhibited, distributed and received of all them which receive the said sacrament; and that therefore the said sacrament is to be used with all due reverence and honour, and that every man ought first to prove and examine himself, and religiously to try and search his own conscience, before he shall receive the same; according to the saying of St. Paul, Quisquis ederit panem hune aut biberit de poculo Domini indigne, reus erit corporis et sanguinis Domini; probet autem seipsum homo, et sic de pane allo edat et de poculo illo bibat; nam qui edit aut bibit indigne, judicium sibi ipsi manducat et bibit, non dijudicans corpus Domini: that is to say, who- soever eateth this body of Christ unworthily, or drinketh of this blood of Christ unworthily, shall be guilty of the very body and blood of Christ; wherefore let every man first prove himself, and so let him eat of this bread, and drink of this drink. For whosoever eateth it or drinketh it unworthily, he eateth and drinketh it my his own \ 80 THE HOLY COMMUNION. [BOOK II. damnation ; because he putteth no difference between the very body of Christ and other kinds of meat.” In the “Institution of a Christian Man” [a.p. 1537], this was reproduced without any addition; but in the revision of this book, the “ Necessary Doctrine and Eru- dition of any Christian Man” [A.p. 1543], there is a long exposition, in which the language approaches to the Roman dogma of Transubstantiation. This was in accordance with the “ Act for abolishing of Diversity of Opinions in certain Articles concerning Christian Religion,’ commonly called “The Act of Six Articles” [31 Henry VIII. ch. 14], which had been passed in the year 1539. The first, second, and fifth of these articles relate to the Holy Com- munion, and are as follows :— “1st. That in the most blessed Sacrament of the Altar by the strength and efficacy of Christ’s mighty word (it being spoken by the priest), is present really, under the form of bread and wine, the natural body and blood of Our Saviour Jesus Christ, conceived of the Virgin Mary; and that after the consecration there remaineth no substance of bread or wine, nor any other substance, but the sub- stance of Christ, God and Man. ‘ “2nd. That communion in both kinds is not necessary, _‘ad salutem,’ by the law of God, to all persons; and that it is to be believed, and not doubted of, but that in the flesh, under form of bread, is the very blood, and with the blood, under form of wine, is the very flesh, as well apart, as though they were both together. “Sthly. That it is meet and necessary, that private masses be continued and admitted in this the King’s English CHAP. III.] THE HOLY COMMUNION. 81 Church and congregation; as whereby good Christian people, ordering themselves accordingly, do receive both godly and goodly consolations and benefits; and it is agreeable also to God’s law.” The Six Articles are believed to have been drawn up by the king’s own hand, and they were passed both in Con- vocation and Parliament, under the influence of the ter- rorism exercised by his threats in the one, and his presence in the other. This Act was repealed by 1 Edw. VI. ch. 12, and was never revived; and it is the only instance in which the doctrine of the “annihilation of the natural substances” has been set forth in the Church of England by authority. Shortly after the accession of Edward VI., the “Order of Communion,” which was afterwards incorporated into the Prayer Book, and which had been prepared by direc- tion of Henry VIII. shortly before his death,’ was set forth by Convocation, ratified by Parliament, and issued under a proclamation of the Crown on March 8th, 1547-8. In the same session of Parliament an Act was passed “against such as shall unreverently speak against the Sacrament of the Altar, and of the receiving thereof under both kinds.” [1 Edw. VI. ch. 1.] The 7th clause of this Act is as follows: “ And forasmuch as it is more agreeable, both to the first institution of the said sacrament of the most precious body and blood of our Saviour Jesus Christ, and also more conformable to the common use and prac- tice both of the Apostles and of the primitive Church, by * Blunt’s Annotated Book of Common Prayer, 150, R2 THE HOLY COMMUNION. [BOOK II. the space of five hundred years and more after Christ’s ascension, that the said blessed sacrament should be ministered to all Christian people wnder both the kinds of pread and wine, than under the form of bread only: and also it is more agreeable to the first institution of Christ, and to the usage of the Apostles, and the primitive Church, that the people being present should receive the same with the priest, than that the priest should receive it alone: therefore be it enacted by our said sovereign lord the king, with the consent of the lords spiritual and temporal, and the commons, in this present Parliament assembled, and by the authority of the same, that the said most blessed sacrament be hereafter commonly delivered and ministered unto the people within the Church of England and Ireland, and other the king’s dominions, under both the kinds, that is to say, of bread and wine, except necessity otherwise require.” This Act was repealed by 1 Mary, sess. 1. ch. 2, but revived by 1 Eliz. ch. 1, § 5, and it still remains in force, A similar statute of the next reign also remains in force [1 Mar. sess. 11. ch. 3], portions of which are especially levelled against irreverence towards the blessed sacrament, the remaining sections relating to irreverence during other parts of Divine Service. Subsequent legislation respecting the Holy Communion at the time of the Reformation was that of the Prayer Book [2 & 3 Edw. VI. ch. 1, 5 & 6 Edw. VI. ch. 1, 1 Eliz. ch. 2] in the years 1549, 1552, and 1558 and of the Thirty-nine Articles, in the years 1553 and 1562. The revision of the Prayer Book in 1662 [14 CHAP, III.] THE HOLY COMMUNION. 83 Car. II. ch. 4] modified the previous law in a slight degree, and some additions (explanatory rather than legislative) were made in the canons of 1603. This epoch thus saw the legislative settlement of most of the controversies which had agitated the Church of England upon this sacred subject. Controversies have since arisen, but they are determinable by a judicial exposition of the Reformation settlement, as expressed in the Book of Common Prayer,' the Articles of Re- ligion, the Acts of Parliament, and the canons of the year 1603. § 2. The Doctrine of the Holy Communion. The subject of this section is of so strictly a theological nature, that there is some difficulty in looking at it merely in its aspect as a question of ecclesiastical law. It is necessary to premise, therefore, that the subject will be considered solely with reference to the question, What is the doctrine respecting the Holy Communion set forth in documents of legal obligation in the Church of England ? What those documents are, has been shown in the pre- ceding section. Four times in the exhortations, and once in the rubrics. of “The Order for the Administration of the The Holy Lord’s Supper or Holy Communion,” the communion rite itself is called a “Holy Sacrament,” and ***°7*™e"" * The force of the “Ornaments Rubric” must of course be under- stood to be included in what is here said. In ascertaining the practice of the Church and the Ritual, and other subjects to which these authoritative pronouncements relate, in order to arrive at the neaning when doubtful of the terms used, historical and theological works and pictures may be consulted. [Read v. Bishop of Lincoln, 1892, A.C. 654. ] 84 THE HOLY COMMUNION. [BOOK II. once in the former it is called “the most comfortable Sacrament of the Body and Blood of Christ.” In the rubrics of the same Order for the Communion of the Sick it is also called “the Sacrament,” “the Holy Sacra- ment,” and “the Sacrament of Christ’s Body and Blood.” In the 25th Article of Religion it is said, “There are two sacraments ordained of Christ our Lord in the gospel, that is to say, Baptism, and the Supper of the Lord:” and in the 28th Article it is said to be “a Sacrament of our Redemption by Christ’s Death,” and is called “the Sacrament of the Lord’s Supper.” In the 29th Article it is called “the Sacrament of the Body and Blood of Christ,’ and in the 30th Article “the Lord’s Sacrament.” An exact definition of the word thus used so often is ee given in the later part of the Catechism, sacrament together with its application to the Lord’s i Supper: “ Question. What meanest thou by this word sacrament? Answer. I mean an outward and visible sign of an inward and spiritual grace, given unto us, ordained by Christ Himself, as a means whereby we receive the same, and a pledge to assure us thereof. Question. How many parts are there in a Sacrament? Answer. Two; the outward visible Whatthe ~' ; i sacrament sign, and the inward spiritual grace. Question, shored What is the outward part or sign of the Lord’s Supperis. Supper? Answer. Bread and wine, which the Lord hath commanded to be received. Question. What is the inward part or thing signified? Answer. The Body and Blood of Christ, which are verily and CHAP. III. ] THE HOLY COMMUNION. 85 indeed taken and received by the faithful in the Lord’s Supper.” The force of this definition will be appreciated by remembering that when it was imposed upon Aan the Church of England there were many contrary divines, as there still are, in whose opinion °?™™°™ the Holy Communion consists substantially of only one part; that is, that it consists of bread and wine alone, which are received as a sign of communion with God and men. The words used in the “Order” for its cele- bration show that this is not the doctrine of the Church of England. In that Order the minister when “giving warning for the celebration of the Holy Communion,” is directed to say that it is “the most comfortable Sacrament The “ in- of the Body and Blood of Christ;” that Al-7ara Pa” mighty God our Heavenly Father “hath given ey alas His Son, our Saviour Jesus Christ, not only to to in the die for us, but also to be our spiritual food Sleep and sustenance in that holy sacrament:” that in receiving that holy sacrament “we spiritually eat the flesh of Christ, and drink His blood.” In the “ Prayer of humble Access,” the “Priest kneeling down at the Lord’s Table” is to pray “in the name of all them that shall receive the Communion,” “Grant us therefore, gracious Lord, so to eat the flesh of Thy dear Son Jesus Christ, and to drink His blood, that our smfual bodies may be made clean by His body, and our souls washed through His most precious blood.” In the Prayer of Consecration are the words “ grant that we receiving these Thy creatures of 86 THE HOLY COMMUNION. [BOOK Il. bread and wine according to Thy Son our Saviour Jesus Christ’s holy institution, in remembrance of His death and passion, may be partakers of His most blessed body and blood.” The words of administration, when the priest “delivereth the bread to any one,” administer it as “the body of our Lord Jesus Christ, which was given for thee;” and when he “delivereth the cup,” “the blood of our Lord Jesus Christ, which was shed for thee.” In the second Prayer of Thanksgiving, God is thanked “for that Thou dost vouchsafe to feed us, who have duly received these holy mysteries, with the spiritual food of the most precious body and blood of Thy Son our Saviour Jesus Christ.” This cumulative evidence of the Communion Office is also corroborated by the 28th Article of Religion, which In the zsth 18 directly aimed against the opinion referred Article. to, It asserts that “The Supper of the Lord is not only a sign of the love that Christians ought to have among themselves one to another, but rather is a sacrament of our redemption by Christ’s death: insomuch that to such as rightly, worthily, and with faith receive the same, the bread which we break is a partaking of the body of Christ; and likewise the cup of blessing is a partaking of the blood of Christ.” Again, by the 28th Article, which states that “the In the 28th body of Christ is given, taken, and eaten in Article. the Supper, only after an heavenly and spiritual manner,’ and received and eaten by faith. In the 29th Also by the 29th Article of Religion, which Article. —_ carefully distinguishes “the Sacrament of the CHAP. III.] THE HOLY COMMUNION. 87 Body and Blood of Christ” as received by all, from “Christ,” partaken of only by the faithful. Further corroboration is given by the Acts of Parlia- ment respecting “the Sacrament of the Altar.” The one of these speaks of “the most comfort- me Meee ? able Sacrament of the Body and Blood of ment still in force. our Saviour Jesus Christ, commonly called the Sacrament of the Altar, and in Scripture, the Supper [1 Cor. xi. 20], and Table of the Lord [1 Cor. x. 21], the Communion [1 Cor. x. 16], and partaking of the body and blood of Christ [1 Cor. x. 16, 17].” [1 Edw. VI. ch. 1. §1.] The other adopts precisely the same term, calling it “the most blessed, comfortable, and holy Sacrament of the Body and Blood of our Saviour Jesus Christ, commonly called the Sacrament of the Altar.” [1 Mar. sess. 2, ch. 3, § 1.] In the case of Sheppard v. Bennett, the judge of the Court of Arches made these remarks respecting the Church of England doctrine on this subject. “That there is a change in the holy elements after consecration, and that they then convey in a BY Gecision divine and ineffable way, the body and blood arrest of Christ, seem necessary inferences from the language of the Communion Service alone.”*..... “With respect, therefore, to the charges in the criminal articles against Mr. Bennett, for describing the Presence in the Holy Eucharist as ‘actual’ and ‘objective,’ I must * Phillimore’s Ed. p. 17; Sir R. Phillimore’s Eccl. Judg. p. 228 ; L. R. 3 Adm, and Eccl. 190. 83 THE HOLY COMMUNION. [BOOK II. hold that by the use of these expressions he has not contravened the formularies of our Church, or committed any ecclesiastical offence.” ..... “Tsay that the Objec- tive, Actual, and Real Presence, or the Spiritual, Real Presence, a Presence external to the act of the com- municant, appears to me to be the doctrine which the formularies of our Church, duly considered and construed so as to be harmonious, intended to maintain. But I do not lay down this as a position of law, nor do I say that what is called the Receptionist Doctrine is inad- missible; nor do I pronounce on any other teaching with respect to the mode of Presence. I mean to do no such thing by this judgment. I mean by it to pronounce only that to describe the mode of Presence as Objective, Real, Actual, and Spiritual, is certainly not contrary to the law.”? The same judge also declared “I am led, therefore, to the certain conclusion, that it is lawful for a Sacrificial aspectof clergyman to speak in some sense of the the Holy aT bic : : Com- Eucharistic sacrifice, and therefore, in some munion. sense, also of ‘the sacrifice offered by the priest,’ and ‘the sacrificial character’ of the Holy Table.’® The sense apparently in the mind of the judge was that of.a sacrifice in commemoration of the sacrifice of Christ, made by Christ Himself, and not of a sacrifice of pro- pitiation.‘ * Phillimore’s Ed. p. 96; Eccl. Judgments, p. 298. 2 Ibid. p. 1385 ; Heel. Judgments, p. 333. 3 Ibid. p. 102; Eceel. Judgments, p. 302. 4 Ibid. p. 122; Heel. Judgments, p. 322. CHAP. III.] THE HOLY COMMUNION. 88* The case of Sheppard v. Bennett was twice taken by way of appeal to the Privy Council. On the first occasion the Privy Council decided that the Doctrine of the Real Presence did not contravene the 29th Article. [Sheppard v. Bennett, L. R. 4 P.C. p. 564.] On the second occasion the Privy Council said: “The Church of England, in the passages just cited, holds and teaches affirmatively that in the Lord’s Supper the Body and Blood of Christ are given to, taken, and received by the faithful Communicant. She implies, therefore, to that extent a Presence of Christ in the Ordinance to the ‘soul of the worthy recipient. As to the mode of this Presence she affirms nothing, except that the Body of Christ is ‘given, taken, and eaten in the supper only after an heavenly and spiritual manner, and that ‘the mean whereby the Body of Christ is received and eaten is faith.’ Any other Presence than this—any Presence which is not a Presence to the soul of the faithful receiver —the Church does not by her Articles and Formularies affirm, or require her ministers to accept. This cannot be stated too plainly. The question is, however, not what the Articles and Formularies affirm, but what they exclude. The Respondent maintains a Presence which is (to use his own expression) ‘real, actual, objective,’ a Presence in the Sacrament, a Presence upon the Altar, under the form of Bread and Wine. ... And the question raised by the appeal is, whether his position is contradictory or repugnant to anything in the Articles or Formularies so as to be properly made the ground of a criminal charge.” After going through the Formularies, they decided that 89 THE HOLY COMMUNION. [BOOK Il. Mr. Bennett’s position was not “contradictory or repug- nant” to them. [Ldid. p. 406.] As to the Eucharistic sacrifice, they said: “It is not lawful for a clergyman to teach that the Sacrifice or Offering of Christ upon the cross, or the redemption, propitiation, or satisfaction, wrought by it, is or can be repeated in the Ordinance of the Lord’s Supper; nor that in that Ordi- nance there is or can be any Sacrifice or Offering of Christ which is efficacious, in the sense in which Christ’s death is efficacious, to procure the remission of the guilt or punish- ment of sins.” They then proceeded to hold, as the judge of the Court of Arches had done, that there is a sense in which the doctrine of the Eucharistic Sacrifice (apparently as a com- memorative sacrifice) can be rightly held, and that it did not appear that Mr. Bennett held the doctrine in any but a lawful sense. [Jbed. p. 411.] The language of many divines of the Church of England is indeed strong and clear in support of the sacrificial aspect of the Holy Communion. It is verbally recog- nized, however, in the office for its celebration only by the following expressions: In the second exhortation, “it is your duty to receive the Communion in remembrance of the sacrifice of His death, as He Himself hath com- manded.” In the Thanksgiving Prayer, “We Thy humble servants entirely desire Thy Fatherly goodness mercifully to accept this our sacrifice of praise and thanksgiving. ‘ee And although we be unworthy through our manifold sins to offer unto Thee any sacrifice, yet we beseech Thee to accept this our bounden duty and CHAP. III.] THE HOLY COMMUNION. So* service; not weighing our merits, but pardoning our OleOCesE. eet a. « But that the Eucharistic Sacrifice is not regarded by ” the Church of England as a satisfaction for sin, is shown by the 3lst Article of Religion: “The offering of Christ once made, is that perfect redemption, pro- nota pitiation, and satisfaction, for all the sins of 8¢rifice in Ps satisfaction the whole world, both original and actual; for sin. and there is none other satisfaction for sin but that alone. Wherefore the sacrifices of masses in the which it was commonly said that-the priest did offer Christ for the quick and the dead to have remission of pain or guilt, were blasphemous fables, and dangerous deceits.” In a similar manner, it is shown by the 28th Article of Religion, that the “ Real Presence” of the body to) ; Nor a and blood of Christ, under the form of bread Presence by ? b oA : transub- and wine, is not regarded as annihilating the stantiation substance of that bread and wine, the “outward *° te : exclusion part” and “inward part” of the sacrament, of the ere 5 natural both existing together in the sacrament. “Tran- substances substantiation (or the change of the substance "%°¢° of the bread and wine) in the Supper of the Lord cannot be proved by Holy Writ; but is repugnant to the plain words of Scripture, overthroweth the nature of a sacra- ment, and hath given occasion to many superstitions.” To sum up in a few words the doctrine of the Church of England on the subject of the Holy Communion, it may be said then that it is regarded (1) as a sacrament; (2) as a sacrament consisting of an outward and an inward part; (3) that the inward part consists of the body and go THE HOLY COMMUNION. [BOOK II. blood of Christ, present under the form of the outward part, consecrated bread and wine; (4) that the sacrament is a commemorative sacrifice; and (5) that the outward part, the consecrated bread and wine, conveys to the faithful communicant the inward part which co-exists with the outward, the body and blood of Christ. § 3. The Celebration of the Sacrament. The laws which regulate the celebration of the Holy Communion, as distinct from its administration or recep- tion, may be considered as regards their application to the elements, the accessories, and the mode in which the elements are to be made a sacrament. The natural substances, or ELEMENTS, to be used are ic (according to our Lord’s original institution) substances bread and wine. But, as various kinds of erie these have been, and are, used for the sacra- ment, it is necessary to ascertain what is the “use” or custom of the Church of England in respect to them. The ancient custom in England, and throughout Europe, was to use unleavened bread, made in the form of thin wafers, on the ground that unleavened bread was used by our Lord in the institution of the Eucharist (it being Passover time), and that substances used for leavening bread are of an impure nature, which it is not right to bring into contact with a substance used The bread. * Throughout the Eastern Church a leavened loaf, in the form of a flat cake or “bun,” is used, under the idea that fermented bread is more perfectly bread than that which is unleavened, CHAP. III.] THE HOLY COMMUNION. QI for so holy a purpose. The rubric of the Prayer Book in 1549 enjoined that the bread should be “unleavened and round, as it was afore, but without all manner of print,! and something more larger and thicker than it was, so that it may be aptly divided in divers pieces: and every one shall be divided in two pieces at the least, or more, by the discretion of the minister, and so distributed. And men must not think less to be received in part than in the whole, but in each of them the whole body of our Saviour Jesu Christ.” In 1552 this rubric was altered to its present form, which is, that “it shall suffice that the bread be such as is usual to be eaten, but the best and purest wheat bread that conveniently may be gotten.” In Queen Elizabeth’s Injunctions [A.p. 1569] there is this direction—“ Jtem, Where also it was in the time of K. Edward the Sixt used to have the sacramental bread of common fine bread, it is ordered for the more reverence to be given to these holy mysteries, being the sacraments of the body and blood of our Saviour Jesus Christ, that the same sacramental bread be made and formed plain, without any figure thereupon, of the same finenesse and fashion round, though somewhat bigger in compasse and thicknesse, as the usuall bread and wafer heretofore named singing cakes, which served for the use of the private masse.” Archbishop’ Parker, when appealed to as to the meaning of the rubric, wrote: “It shall suffice, I expound, where either there wanteth such fine usual bread, or superstition be feared in the wafer-bread, they * The Eucharistic wafers were before this commonly marked with an “ Agnus Dei.” 92 THE HOLY COMMUNION. [BOOK II. may have the Communion in fine usual bread; which is rather a toleration in these two necessities, than is in plain ordering, as it is in the injunction.” [Correspondence, p. 376.] He also wrote to Sir William Cecil, “As you desired, I send you here the form of the bread used, and was so appointed by order of my late Lord of London” [Grindal] “and myself, as we took it not disagreeable to. the injunction. And how so many churches have of late varied I cannot tell; except it be the practice of the common adversary, the devil, to make variance and dis- sension in the sacrament of unity.” [Zbid. 378.] Parker was also consulted by Parkhurst, Bishop of Norwich, on the subject. He first referred him to the rubric and injunction, and in a subsequent letter wrote, “I trust that you mean not universally in your diocese to command or wink at the loaf-bread, but, for peace and quietness, here and there to be contented therewith.” [Zbid. 460.] In his Visitation Articles, Parker also inquired, “And whether they do use to minister the Holy Communion in wafer- bread, according to the Queen’s Majesty’s Injunctions ?” » Thus the contemporary interpretation of the rubric was plainly that the sacramental bread was usually to be in the form of wafers, but that for peace and quietness’ sake, where wafers were objected to, “the best and purest wheat bread that may conveniently be gotten,’ might be permitted. The question as to the use of wafer-bread came before the Courts in the case of Mr. Purchas. The judge of the Arches Court held that it was not illegal to use “bread made in the special shape and fashion of circular wafers.” CHAP. III.] THE HOLY COMMUNION. 93 [Law Rep. 3 Adm. & Eccl. p. 108.] The Privy Council, however, reversed this decision, and held tliat such use was illegal [LR. 3 P.C. 605]; and expressed a similar view in the case of Mr. Ridsdale. [L.R. 2 P.D. 349.] There has never been any controversy in the Church of England respecting the kind of wine which is to be used for the Holy Communion. Red and Weaguan white wine are used indifferently, the great object being to secure a true fermented juice of the grape, no un- fermented juice of the grape, nor any other fluid than wine, being considered valid for the purpose by theolo- gians. There has, however, been much discussion as to the custom of mixing water with the wine before conse- eration. This ancient custom was directed by the Prayer Book of 1549, in the words which order that the minister taking so much wine as shall suffice, “and putting the wine into the chalice, or else in some fair and convenient cup prepared for that use (if the chalice will not serve), putting thereto a little pure and clean water, setting both the bread and wine upon the altar.” But this rubric was omitted in 1552. In Martin v. Mackonochie, and Flamank v. Simpson, the judge of the Court of Arches described the custom as one wholly unconnected with any papal superstition, or any doctrine which the Church of England has rejected, and as having the warrant of primitive antiquity, and of the undivided Church in its favour.’ But he gave the follow- ing reasons for considering that it is not permitted by our existing ecclesiastical law. "Sir R. Phillimore’s Eccl. J udgments, p. 92. H 94 LHE HOLY COMMUNION. [BOOK II. “Tn all subsequent Prayer Books the mention of water is omitted ; perhaps from the omission in the Second Prayer Book no argument unfavourable to the use of water could fairly be drawn, as no manual acts of consecration are pre- scribed in that book. But in the present Prayer Book the manual acts are advisedly specified with great distinctness and particularity; exact directions are given when the priest shall take into his hands the bread and the wine, when he shall place them on the table, and how he shall administer them; and I must bear in mind that the com- pilers of our present Prayer Book had before them the first Prayer Book of Edward VI., and carefully con- sidered the rubrics which it contained; and, in my opinion, the legal consequence of this omission, both of the water, and of the act of mixing it with the wine, must be considered as a prohibition of the ceremony or manual act of mixing the water with the wine during the celebration of the Eucharist. “T do not say that it is illegal to administer to the communicants wine in which a little water has been pre- viously mixed; my decision upon this point is, that the mixing may not take place during the service, because such mixing would be a ceremony designedly omitted in, and therefore prohibited by, the rubrics of the present Prayer Book.”! In this case the judge decided only that the mixing during, and as part of the service, was illegal. In the case of Mr. Purchas, the further point was raised whether * Sir R. Phillimore’s Eecl. Judgments, p. 93. CHAP. III.] THE HOLY COMMUNION. 95 it was illegal to administer wine with which water had been (previously, and not as part of the service) mixed; and the judge of the Court of Arches, in conformity with his former view, held that this administration was legal. [L.R. 8 Adm. & Eccl. p..102.] The Privy Council, however, reversed this decision, and held that it was illegal. Recently the question has been fully discussed, and the following are the conclusions of the archbishop in Read v. Bishop of Lincoln, L.R. 1891, P.D. 29: 1. “The Church of England has... authority to ordain, change, and abolish ceremonies or rites of the Church ordained only by man’s authority. By and within this authority the mixing of the cup was removed from the place it had before held in the public service of the Church. It was so removed in accordance with ancient primitive and very general use of most Churches. To practise it as if it had not been removed is to disregard those precedents and this authority.” 2. “No rule has been made to ‘change or abolish’ the all but universal use of a mixed cup from the beginning. When it was desirable to modify the direction as to the uniform use of unleavened wafers, a rubric was enacted declaring wheat bread sufficient. Without order it seems that no person had a right to change the matter in the chalice any more than to change the form of bread. Wine alone may have been adopted by general habit, but not by law. No rule having been made, it is not within the competency of this Court to make a new rule in fact, a rubric, which it would do if it ordered that a mixed cup should not be used.” 96 THE HOLY COMMUNION. [BOOK II. And this view was expressly affirmed by the Privy Council, who held that the mixing of the wine in and as part of the service is against the law of the Church, but that the use of a cup mixed beforehand does not constitute an ecclesiastical offence. [L.R. 1892, A.C. 658. ] It is enacted by the rubric that “the bread and wine By whom for the Communion shall be provided by the thetwo = curate and the churchwardens at the charges elements : : ° : . areto be Of the parish.” This direction is more clearly provided. siven in the 20th of the canons of 1603, which is as follows:—“The churchwardens of every parish, against the time of every communion, shall, at the charge of the parish, with the advice and direction of the minister, provide a sufficient quantity of fine white bread, and of good and wholesome wine, for the number of communicants that shall from time to time receive there; which wine we require to be brought to the com- munion-table in a clean and sweet standing pot or stoop of pewter, if not of purer metal.” The “ bringing to the communion-table” does not neces- sarily mean during the time of Divine service, but rather at the time when preparation is made for the celebration of the Holy Communion, the elements being placed ona side table before service for the purpose. | The AccEssorigs required for the celebration of the Holy Communion are not exactly catalogued sre? in the Book of Common Prayer, the canons, or penises any other extant authoritative exponent of the custom of the Church of England; but what they are may be ascertained from the Communion Office and other sources of information, CHAP. III.] THE HOLY COMMUNION. 97 In the Communion Office itself several such accessories are named, “the Lord’s Table,” a “fair white wane linen cloth” for covering it, a “decent basin” named in for gathering the alms, a “paten,” a “chalice,” eaok mearecs or “cup,” a “flagon,” and a “ fair linen cloth” for covering the remnant of the consecrated elements after communion. There is no reference to the dress of the celebrant and the other ministers, but at the beginning of the Prayer Book there is a general direction (applying to the Holy Com- munion as well as to other parts of Divine service) which enacts, “That such ornaments of the Church, and of the ministers thereof, at all times of their ministration, shall be retained and be in use as were in this Church of England by the authority of Parliament in the second year of the reign of King Edward VI.” In Liddell »v. Westerton the Privy Council decided that “the word ‘ornament’ applies, and, in this rubric, is confined to those articles the use of which in the services and minis- trations of the Church is prescribed by the Prayer Book of Edward VI.” in the year 1549.1 The additional accessories there mentioned are, for the bishop, pyoge a “rochette, a surplice or albe, and a cope or peers vestment, and a pastoral staff;” for the priest, Ornaments “a white alke plain, with a vestment or cope ;” PUP for the other ministers, “albes with tunacles:” and “the corporas,” for laying the bread upon. The “corporas,” being an “ornament of the Church,” is therefore clearly lawful and necessary under that rubric, The question of the “ornaments of the minister” was raised in the case of Mr. Purchas. The judge of the Arches Court, in conformity with the apparent meaning * Brodrick and Fremantle, p. 129, but see p. 116 infra. 98 THE HOLY COMMUNION. [BOOK II. of the rubric, and the principle of the decision in Liddell v. Westerton, held that the ornaments or vestments of the minister just mentioned, which were ordered by the First Prayer Book of Edward VL, were, at any rate, not unlaw- ful. [Law Rep. 3 Adm. & Eccl. p. 94; Sir R. Phillimore’s Eccl. Judgments, p. 178.) The Privy Council reversed this decision, and held that they were all unlawful. They held, however, at the same time, that under the 24th canon of 1603, the principal minister or celebrant in cathedral or collegiate churches should wear a cope upon principal feast days. By the 82nd canon a carpet of silk, or other decent stuff, is ordered for the Lord’s Table during Divine service The accessories thus enacted by the Prayer Book now in force [14th Carol. II. ch. 4]. by that to which it refers [2nd & 3rd Edw. VI. ch. 1], and by the canons of A.D. 1603, may be thus summed up: The Lord’s Table (called “altar” in the earlier Prayer Book?) is to be ordinarily covered “with a carpet of silk, or other decent stuff thought meet by the ordinary of the place, if any question be made of it;” and during the time of celebration a “ fair white linen cloth” is to be placed over this. The utensils for the Lord’s Table are to be a “decent basin” for gathering and offering the alms, a “ flagon” for holding the supply of wine, a “corporas” (or small Summary. * It should be noticed that on an application for a re-hearing the Court intimated that the judgment in the Purchas case might perhaps only affect Mr. Purchas. [Eecl. Gaz. vol. xxxiv. p. 13.] But in the case of Mr. Ridsdale the same tribunal adhered to its judgment. [L.R. 2 P.D. 276.] * It is also so called in several of the Church Building Acts. CHAP, III.] THE HOLY COMMUNION. 99 linen cloth) on which to place the sacred vessels during consecration, a,“paten” to contain the bread during consecration, a “chalice,” or “cup,” to contain the wine during consecration, and a “fair linen cloth” with which to cover the remains of the consecrated elements. According to the Prayer Book of Edward VL. the cele- brant, if a bishop, is to wear a “rochette,” a “surplice or albe,” a “cope or vestment,” and his pastoral staff is to be borne by his chaplain. If a priest, the celebrant is to wear a “white albe plain,” and “a vestment or cope.”? The other ministers (restricted to two, “the gospeller and epistoller,’ in the 24th canon) being dressed “agree- ably” to the principal minister, that is, in “albes and tunacles.” According to the ruling of the Privy Council in the cases of Mr. Purchas and Mr. Ridsdale (if it be correct) the celebrant is only to wear a surplice (and a cope in cathedral or collegiate churches), in which latter case only would the other ministers wear albes with tunacles. This list cannot be considered as altogether exhaustive, for the “credence,” or side table, which, it has 4).. been ruled [Liddell v. Westerton], is required accessories for the reception of the elements until the time Sacchi of the offertory, is not included in it. Any accessories required for the celebration of the Holy Communion according to the rubrics, are lawful, the use.of these being regulated and controlled by the ordinary.?. * There is some confusion as to the “cope” here named ; and it is not unlikely that it means the ancient “principal vestment,” a chasuble of special richness and size. 2 For a more detailed account the reader may refer to Blunt’s Annotated Book of Common Prayer, Ritual Introduction, Section IIL, on “The Accessories of Divine Service.” 100 . THE HOLY COMMUNION. [BOOK It. In Read v. Bishop of Lincoln the question whether the presence of two lighted candles on the Holy Table, when not required for the purpose of giving light, was lawful was much discussed. The archbishop came to the con- clusion [L.R. 1891, P.D. p. 87] that two candles so used were legal when and after the Prayer Book became law and so remained—a scheme to make them otherwise not having been completed, the Acts of Uniformity having no bearing upon them, and their very general disuse being due to causes other than legal enactments. The arch- bishop held that as a ceremony in worship is an action or act in which material objects may or may not be used, but is not in itself any material object, and as the candles were not connected with any erroneous or strange teaching as to the Sacrament, their mere presence throughout the service was not illegal. The Privy Council, without intimating any opinion as to their legality, held that the bishop was not by merely participating in the service rendered responsible for their presence. [LR. 1892, A.C. 668.] The Rubric before the Prayer of Consecration directs the priest to “stand before the table.” In churches where, as it is usually the case, the Holy Table or altar The position 18 placed against the east wall at the end of of the the church, the plain meaning of these words een = would seem to be that the priest stood in front of the Holy Table on its west side and, as he must turn to it, facing eastward. A fierce controversy, however, has arisen upon this matter, and it was one of the charges made against Mr. Purchas and Mr. Ridsdale, that they stood at the Prayer of Consecration before the table “with | their backs to the people.” Ultimately, in the latter case, CHAP. III] THE HOLY COMMUNION. IoI the Privy Council decided that the priest might stand, with regard to the Holy Table, where he pleased; but that “he must stand so that he may in good faith enable the communicants present, or the bulk of them, being properly placed, to see, if they wish it, the breaking of the bread, and the performance of the other manual acts mentioned.” [2 P.D. 345.] The words on which the Privy Council relied for this requirement are those in the same rubric directing the priest to “break the bread before the people.” But the truth is that the tribunal had in Mr. Purchas’ case, which was undefended, been misled by an extract from a treatise by a London clergy- man in the reign of Queen Elizabeth, written against high pews, into believing that there was some special doctrinal and anti-Roman significance in the congregation seeing the manual acts; and that it was impossible wholly to uproot this error in the later case. In Read v. Bishop of Lincoln [L.I. 1891, P.D. 61] the archbishop followed the above decision, and held that the minister, wherever he stands during the Prayer of Con- secration, is bound to take care that the manual acts should not by his position be rendered invisible to the bulk of the communicants; and that he must not be so indifferent as to what the result of what he does may be as to do even unintentionally that which is certain to make them invisible. A further question as to the position of the priest was also discussed at length in Read v. Bishop of Lincoln; viz., the meaning of the words in the rubric prefixed to the Communion service, “And the Priest standing at the North side of the Table,’ and the history of the various positions adopted by different authorities in obeying the rubric was discussed. Io1* THE HOLY COMMUNION. [BOOK II. The view as to this question adopted by the Court was as follows [L.R. 1891, p. 56]: The term “north side” was introduced into the Liturgy to meet doubts which had arisen owing to a general change in the position of the holy tables (viz., from being placed altarwise against the east end of the chancel, with the longer measure from north to south, to being placed lower in the chancel, or in the body of the church, with the longer measure from east to west). It was at the time of such change perfectly definite and distinct in its meaning and application. About eighty years after the first publication of the rubric a second general change was made in the position of the tables, which were now moved back again to the east end. This change made the north side position impossible of fulfilment in the sense originally intended ; and various positions were adopted by various authorities in accommodating the rubric to the changed position of the table; but none of these alternative positions convey any error or erroneous shade of doctrine; and although the liberty exercised in the application of the term grew less and less, yet it does not appear to be lost by that fact, or taken away. Accordingly the Court held that although it was prob- able that the words “ North side” were used in contem- plation that they would be applicable to one of the longer sides of the table, and it was also in contemplation that all the acts prescribed which were to be done at the table should be done at that side, yet the rubric cannot be regarded as enjoining that, no matter how the table is placed, the priest shall stand at that end which faces north, and that no other position may be assumed ; and it is not an ecclesiastical offence to stand at the north part of the side of the table which faces westward. CHAP. III.] IHEP HOLY COMMUNION, 102 MAKING THE ELEMENTS A SACRAMENT is, of course, the one object of all connected with the celebration of the Holy Communion, the “inward part” of “the Body and Blood of Christ” alone giving any spiritual value or efficacy to the “outward part” of “bread and wine.” A very few words on the mode of doing so prescribed by the Church of England will, however, be sufficient for the purpose of this work. The Lord’s Table having been prepared, and the elements provided and brought there, the rubric directs that when the alms have been humbly presented and placed upon it, “the: priest shall then place onlation upon the table so much bread and wine as he eee ee shall think sufficient:” the bread and wine Wine. being brought from the side table or “credence” where they have hitherto stood, for the purpose. But two rubrics at the end of the office enact that “there shall be no celebration of the Lord’s Supper except there be a convenient number to communicate with the priest, according to his discretion. And if there be not above twenty persons in the parish of discretion to receive the Communion; yet there shall be no Communion, except four (or three at the least) communicate with the priest.”? When, however, there is a celebration and Communion, this is the time at which to place the bread and wine upon the altar. Thus placed on the Lord’s cae: Ane Table, they are offered to His service by the Dread and words “We humbly beseech Thee most merci- fully to accept our ... oblations,” and remain there until the time of consecration. The oblations of bread and wine * This rubric came under notice in the judgment of Lord Penzance in Clifton v. Ridsdale, February, 1876. [L.R. 1 P.D, 316.] 102* THE HOLY COMMUNION. [BOOK II. are then taken into the celebrant’s hands, with the “ manual gestures ” ordered in the marginal rubric annexed to the Prayer of Consecration, and the “ Words of Institution” being at the same time used,! the bread and wine become (in a way which the Church of England does not profess to explain) associated with the Body and Blood of Christ ; the “ outward part” and the “inward part,” thus associated, constituting the sacramental Substance given in the Lord’s Supper, or Holy Communion. It is not necessary to repeat here what has been said in the previous section as to the doctrine which the Church of England holds respecting the “Sacrament” so consti- Results uted. But it may be recalled to mind that the of Con- judge of the Arches Court has declared his aba opinion that the formularies of the Church are intended to maintain a presence of Christ’s body and blood in the Sacrament, “external to the act of the com- municant;” and existing, therefore, as a consequence of consecration, before the consecrated elements are “given, taken, and eaten.” [28th Article of Religion.] § 4. The Administration of the Sacrament. The only points further to be noticed are in what manner, and to whom, the Sacrament of the Holy Communion is to be administered. THE MopE oF ADMINISTRATION is exactly prescribed, both with reference to the person or persons administer- ing, and to the person receiving, and no addition or alteration of any ceremony from those prescribed is * “No bread or wine newly brought shall be used; but first the words of institution shall be rehearsed.” [Canon 21.] CHAP. III.] THE HOLY COMMUNION. 103 lawful. Thus it was held in Read v. Bishop of Lincoln [L.R. 1891, P.D. p. 88] that the making of the sign of the cross at the absolution in the Communion service is a ceremony, and not in any sense a continuance of old prescription in the Church of England, and tnat it must be discontinued ; and further that the use of the same sign whilst pronouncing the Benediction in the same service was an additional ceremony, and unlawful. But in the same case it was held that a hymn might be commenced before the reception of the elements, provided that the celebrant did not wait until the end of the hymn before commencing the reception. A hymn so sung is not sung out of due time, and comes within the liberty originally granted by the Act of Edward VI. of singing “openly at any due time, not letting or omitting the service, or any part of it.” It was further held that the “Agnus Dei,” the hymn in question, was not otherwise than appropriate. [L.R., 1892, A.C. 660.] By the directions of the office the Holy Communion is to be administered in both kinds. This is also , at ee directed by 1 Edw. VI. ch. 1, § 8, and the 30th tered in Article of Religion. (Spe ao The celebrant himself first receiving “as oft as he administereth the Communion” [Canon 21], is directed to administer both elements to the bishops, priests, and deacons (those assisting him being probably intended), and afterwards “to the people also in order.” The assist- ance of other clergy in this administration has been used from primitive days, deacons even being permitted to give the Cup to the Laity, though not to administer the Bread, or to give either element to the clergy. [Nicene Canons, can. xviii] Such assistance is recognised in our present 103* THE HOLY COMMUNION. [BOOK II. rubric, by the words “the minister that delivereth the Cup to any one,” distinguishing such minister from the one who has celebrated, and delivered the Bread. The words of administration are also prescribed, and it is directed that the holy elements shall be delivered into the hands of the communicants; “to every communicant severally.” [Canon 21.] It cannot be doubted that the words are intended to be used to each communicant separately. They are no essential part of Communion, but some such words seem always to have been used in the Church. The rubric directs that those who receive the Holy Communion shall be “all meekly kneeling.” The Puritans Communi. Made great resistance to this rule of the cantsto Church, and it was therefore enforced by the ene 27th canon of 1603, which enacts that “no minister, when he celebrateth the Communion, shall wittingly administer the same 2 any but to such as kneel, under pain of suspension.” THE PERSONS COMPETENT to receive the Holy Com munion are defined by several rubrics and canons. The rubric after the Confirmation Office enacts that Communi- “there shall none be admitted to the Holy coe ae Communion until such time as he be confirmed, persons. or be ready and desirous to be confirmed.” Provision is also made to exclude from the reception of Immoral it all notoriously immoral persons. The rubric persons tat the beginning of the office directs, that per- communion. sons intending to receive it shall signify their names to the clergyman having the responsible cure of souls the day before, and then goes on to enact, “And if any of those be an open and notorious evil liver, or have ? CHAP. III.] THE HOLY COMMUNION. 104 done any wrong to his neighbours by word or deed, so that the Congregation be thereby offended; the Curate, having knowledge thereof, shall call him and advertise him, that in any wise he presume not to come to the Lord’s Table, until he hath openly declared himself to have truly repented and amended his former naughty life, that the Congregation may thereby be satisfied, which before were offended; and that he hath recompensed the parties, to whom he hath done wrong; or at least declare himself to be in full purpose so to do, as soon as he conveniently may.” Which enactment is similar to that in the 26th canon of 1603, the first part of which orders that “no minister shall in any wise admit to the receiving of the Holy Communion any of his cure or flock which be openly known to live in sin notorious, without repentance; nor any who have maliciously and openly contended with their neighbours, until they shall be reconciled.” And by the 109th canon of the same date: “If any offend their brethren, either by adultery, whoredom, incest, or drunkenness, or by swearing, ribaldry, usury, and other uncleanness and wickedness of life . . . Such notorious offenders shall not be admitted to the Holy Communion till they be reformed.” “The same order,” adds the rubric, “shall the Curate use with those betwixt whom he perceiveth malice and hatred to reign; not suffering them to be partakers of the Lord’s Table until he know them to be reconciled. And if one of the parties so at variance be pypoce content to forgive from the bottom of his heart wantonly at all that the other hath trespassed against him, pareraaeds and to make amends for that he himself hath °°™™Uion. offended; and the other party will not be persuaded to e 104* THE HOLY COMMUNION. [BOOK IL. a godly unity, but remain still in his frowardness and malice: the Minister in that case ought to admit the penitent person to the Holy Communion, and not him that is obstinate. Provided that every minister so repelling any, as is specified in this, or the next precedent Paragraph of this Rubrick, shall be obliged to give an account of the same to the Ordinary within fourteen days after, at the farthest. And the Ordinary shall proceed against the offending person according to the Canon.” A similar provision in the 27th canon forbids the ad- Schismatics Mission of schismatics to Communion, the word ropes “schismatics” being used in the title of the communion canon, and a sufficient definition given in the body of it: “No minister, when he celebrateth the Com- munion, shall wittingly administer the same to any but to such as kneel, under pain of suspension, nor under the like pain to any that refuse to be present at public prayers, according to the orders of the Church of England; nor to any that are common and notorious depravers of the Book of Common Prayer and Administration of the Sacraments,! and of the orders, rites, and ceremonies therein prescribed, or of anything that is contained in any of the articles agreed upon in the Convocation, one thousand five hundred sixty and two, or of anything contained in the book of ordering the priests and bishops; or to any that have t In the case of Jenkins v. Cook the Judge of the Arches Court held that a parish priest was justified in refusing to administer the Holy Communion to a layman who denied the existence of the devil and the doctrine of eternal punishment. (Phillim. Eecl. Judgments, p. 394; Law Rep. 4 Admiralty & Eccl. p. 463.) The Privy Council held that there was not sufficient evidence that the layman had these disbeliefs, and on this ground reversed the judgment, and directed the priest to administer the Hely Communion to him. [L.R. 1 P.D, 80.} CHAP. IIL] THE HOLY COMMUNION. 105 spoken against, and depraved His Majesty’s sovereign authority in causes ecclesiastical ; except every such person shall first acknowledge to the minister, before the church- wardens, his repentance for the same, and promise by word (if he cannot write) that he will do so no more; and except (if he can write) he shall first do the same under his handwriting, to be delivered to the minister, and by him sent to the bishop of the diocese, or ordinary of the place; provided that every minister so repelling any (as is specified in this or the next precedent constitu- tion) shall, upon complaint, or being required by the ordinary, signify the cause thereof unto him, and therein obey his order and direction.” With these exceptions it is the law of the Church of England that every person qualified for receiving the Communion shall receive it at least three times g..,muni- in the year. Thus the rubric at the end of cants to the office enacts, “that every parishioner shall Fike ig communicate at the least three times in the * ¥°* year, of which Easter to be one.” The 21st and 22nd canons of 1603 also enforce the same rule, the first or- daining that “In every parish church and chapel, where Sacraments are to be administered within this realm, the Holy Communion shall be ministered by the parson, vicar, or minister, so often, and at such times, as every parish- ioner may communicate at the least thrice in the year (whereof the feast of Easter to be one), according as they are appointed by the Book of Common Prayer;” and the second that “ whereas every lay-person is bound to receive the Holy Communion thrice every year, and many not- withstanding do not receive that Sacrament once in a year; we do require every minister to give warning to his I 106 THE HOLY COMMUNION. [BOOK II. parishioners publicly in the church at Morning Prayer, the Sunday before every time of his administering that Holy Sacrament, for their better preparation of themselves ; which said warning we enjoin the said parishioners to accept and obey, under the penalty and danger of the law.” The 23rd canon increases this minimum to four times, or once in every term, in the case of members of colleges, enjoining that “In all colleges and halls within both the universities, the masters and fellows, such especially as have any pupils, shall be careful that all their said pupils, and the rest that remain amongst them, be well brought up, and thoroughly instructed in points of religion, and that they do diligently frequent public service and sermons, and receive the Holy Communion; which we ordain to be administered in all such colleges and halls the first or second Sunday of every month, requiring all the said masters, fellows, and scholars, and all the rest of the students, officers, and all other the servants there, so to be ordered, that every one of them shall communicate four times in the year at the least, kneeling reverently and decently upon their knees, according to the order of the Communion Book prescribed in that behalf.” It is further provided by the 112th canon, that “The minister, churchwardens, questmen, and assistants of every parish church and chapel, shall yearly, within forty days after Easter, exhibit to the bishop or his chancellor the names and surnames of all the parishioners, as well men as women, which being of the age of sixteen years received not the Communion at Easter before.” Some of these provisions have obviously become obsolete, and ecclesiastical laws being rarely enforced against any CHAP. III.] THE HOLY COMMUNION. 107 members of the Church of England except the clergy, they are most of them to be regarded as injunctions to be voluntarily accepted rather than litigiously maintained. The rubric at the end of the Communion service directs that “if any of the Bread and Wine remain unconsecrated, the Curate shall have it to his own use; but if any remain of that which was consecrated, it shall not be carried out of the Church, but the Priest and such other of the Communicants as he shall then call unto him shall, immediately after the Blessing, reverently eat and drink the same.” As it contemplates that the consumption shall take place while some of the communicants are still present, it was held in Read v. Bishop of Lincoln [L.R. 1891, P. 32] that there was no impropriety in such consumption taking place immediately after the bene- diction was pronounced, and while most of the communi- cants were still present. In the same case the archbishop stated that the proper place for such consumption was at the credence, or in the place where the sacred elements had been prepared, but held that it was not illegal for the priest to cleanse the vessels of all remnants in a reverent way, without ceremony or prayers, before finally leaving the Holy Table. { 108 J Chapter IV. DIVINE SERVICE IN GENERAL. § 1. Morning and Even- Nelle) Ae LGV ones is we Prayer. «se tiAd §.3,. Preaching Pe OA Gas) qt se provisions for Divine Service, other than the Holy Communion and the occasional Offices, which are made in the Church of England, are restricted to Morning Prayer, Evening Prayer, and the Litany: the first two being condensed from the Matins, Lauds, Prime, Vespers and Compline of the seven “Hours,” as set forth in the ancient “Portiforium,” or Breviary, of the Church of England. The law and custom respecting these three services is substantially set forth in the Book of Common Prayer. But, as in the case of the Holy Communion, the existing . Prayer Book sends us back for some particulars to other Prayer Books, to Acts of Parliament, and to the canons of 1603; and it is generally subject to the rule that the Canon Law of earlier times is in force where it is not annulled by subsequent legislation. The Offices of Morning and Evening Prayer are intended CHAP. IvV.| DIVINE SERVICE IN GENERAL, 109 for daily recitation, the title of each being “The Order for Morning,” or for Evening “ Prayer, daily throughout the year,” and there being a clause in the preface “concerning the Service of the Church,” which orders that Dalle “all priests and deacons are to say daily the Morning Morning and Evening Prayer, either privately adits or openly, not being let by sickness, or some *7®9° other urgent cause.” Such also is the understanding of “The Order how the Psalter is appointed to be read,” and of “The Order how the rest of Holy Scripture is appointed to be read;” the Psalter being to be read through “once every month,” the “most part” of the Old Testament “every year once,” and the New Testament “orderly every year twice... . besides the epistles and gospels” of the Communion Office. Besides this rule for daily Divine Service at morning and evening, the rubric before the Litany im- Litany on plies its use upon Sundays, Wednesdays, and Sundays, Fridays ; this rule being more exactly and fully EAN aaa set forth in the 15th canon of 1603, as follows: *™#4#¥* “The Litany shall be said or sung when and as it is set down in the Book of Common Prayer, by the parsons, vicars, ministers, or curates, in all cathedral, collegiate, parish churches, and chapels, in some convenient place, according to the discretion of the bishop of the diocese, or ecclesiastical ordinary of the place. And that we may speak more particularly, upon Wednesdays and Fridays weekly, though they be not holy-days, the minister, at the accustomed hours of service, shall resort to the church or chapel, and, warning being given to the people by 110 DIVINE SERVICE IN GENERAL. [BOOK 11. tolling of a bell, shall say the Litany prescribed in the Book of Common Prayer: whereunto we wish every householder dwelling within half a mile of the church to come, or send one at the least of his household, fit to join with the minister in prayers.” A similar canon, the 14th, enjoins the performance of Divine Service on Sundays and holy-days, in Divine Serviceon these words:—“The Common Prayer shall be Sundays é ie and said or sung distinctly and reverently upon holy-days. such days as are appointed to be kept holy by the Book of Common Prayer, and their eves, and at convenient and usual times of those days, and in such place of every Church as the bishop of the diocese, or ecclesiastical ordinary of the place, shall think meet for the largeness or straitness of the same, so as the people may be most edified. All ministers likewise shall observe the orders, rites and ceremonies prescribed in the Book of Common Prayer, as well in reading the Holy Scriptures, and saying of Prayers, as in administration of the Sacraments, without either diminishing in regard of preaching, or in any other respect, or adding anything in the matter or form thereof.” Further also, the Act of Uniformity [14 Car. II. ch. 4, § 2] enacts “that the Morning and Evening Prayers therein contained shall, upon every Lord’s Day, and upon all other days and occasions, and at the times therein appointed, be openly and solemnly read by all and every minister or curate, in every church, chapel, or other place of public worship within this realm of England, and places aforesaid.” CHAP. IV.] .DIJV/NE SERVICE IN GENERAL. 1if The injunction of Divine Service upon Sundays seems to fall under these laws, and not to be sepa- py. in6 rately provided for. Perhaps this was what Service on Sir John Nicholl meant when he said: “ By the eeroregy general law the Church Service, according to the form prescribed in the Book of Common Prayer, is to be regu- larly performed every Sunday in the morning and evening.” [Bennett v. Bonaker, 3 Hagg. Eccl. 25.] In the Pluralities Act a special provision was inserted giving power to the bishop of the diocese, at his discretion “to order woening that there shall be two full services, each of such and — services, if the bishop shall so direct, to include rifierss. a sermon or lecture on every Sunday throughout the year, or any part thereof,’ in the church of every benefice, and sometimes in all the churches and chapels, if there be more than one, in a benefice. [1 & 2 Vict., ch. 106, § 80.] The same section also confirms a provision of a previous Church Building Act [58 Geo. IIL, ch. 45, § 65], em- powering the bishop to order a third Sunday ; Service, “being either the Morning or Evening porate Service of the United Church of England and Service, if Ireland,” if it appears that there is not other-" wise sufficient opportunity for all the parishioners to attend Divine Service when performed twice only. The Act of Uniformity [14 Car. IL, ch. 4, § 17], enacts that no other form or order of Divine Service shall be used in any church or chapel or other 4,)., Publick Place of or in any colledge or Hall services in either of the Universities the colleges of {24% to Westminster Winchester or Eaton or any of PrayerBook. them other than that which is contained in the Book of Common Prayer; except that in the Convoca- tions, the Universities, and in the colleges of West- Tz DIVINE SERVICE IN GENERAL. [BOOK Il. minster, Eton, and Winchester, the services may be said in Latin. It has sometimes been contended that this enactment only means that no services shall be substituted for the Prayer Book services, but there is no authority for this. Having regard to sec, 24 of the said Act, and to 2 & 3 Edw. VI., ch. 1, and 1 Eliz., ch. 2, it would seem that, in strictness of law, no other services, unless perhaps those ordered for special occasions by the Queen in Council by virtue of the royal prerogative, were legal within conse- crated buildings. An argument might be offered, however, and possibly with success, in favour of special services in cathedrals or special chapels on special occasions, such as visitation services, and services on the enthroning or in- stallation of bishops, deans, and other members of cathedral bodies, or the admission of fellows and scholars in colleges. Moreover, by the Act of Uniformity enforcing the first Prayer Book of Edw. VI. [2 & 3 Edw. VL., ch. 1, § 7], the clauses of which are so far incorporated into the last Act of Uniformity, it is provided “that it shall be lawful for all men, as well in churches, chapels, oratories, or other places, to use openly any psalm or prayer taken out of the Bible at any due time, not letting or omitting thereby the service or any part thereof mentioned in the said booke,” —that is, the Prayer Book. These provisions have been supplemented by the “ Act for the Amendment of the Act of Uniformity” [385 & 36 Vict. ch. 35], passed in 1872.1 By this Act a shortened order for Morning and Evening Prayer is permitted, the Form being given in the Schedule annexed to the Act. Special Forms approved by the Ordinary are also permitted. A Form for a third service on Sundays and Holy-days is likewise allowed, if approved by the Ordinary. But no * See Appendix VI. CHAP. Iv.) DIVINE SERVICE IN GENERAL. 113 Form may contain anything, except anthems or hymns, which does not form part of Holy Scripture or the Prayer Book. [§§ 2, 3, 4.] With respect to Divine Service in general there is a special canon on the subjects of uncovering the head, kneeling, standing at the Belief, bowing ee hacen the head at the Name of Jesus, repeating the Divine atte < 3 Service. responses, and remaining in Church during the whole of Divine Service. This is the 18th canon of 1603, and is as follows: “In the time of Divine Service, and of every part thereof, all due reverence is to be used; for it is according to-the Apostle’s rule, Let all things be done decently and according to order; answerably to which decency and order we judge these our directions following: No man shall cover his head in the church or chapel in the time of Divine Service, except he have some infirmity : in which case let him wear a night-cap or coif. All manner of persons then present shall reverently kneel upon their knees, when the general Confession, Litany, and other prayers are read; and shall stand up at the saying of the Belief, according to the rules in that behalf prescribed in the Book of Common Prayer, and likewise when in time of Divine Service the Lord Jesus shall be mentioned, due and lowly reverence shall be done by all persons present, as it hath been accustomed; testifying by these outward ceremonies and gestures their inward humility, Christian resolution, and due acknowledgment that the Lord Jesus Christ, the true eternal Son of God, is the only Saviour of the world, in Whom alone all the mercies, graces, and promises of God to mankind, for this life, and the life to come, are fully and wholly comprised. None, either man, woman, or child, of what calling soever, shall be otherwise at such times busied in the Church, than 114 DIVINE SERVICE IN GENERAL. [BOOK IL in quiet attendance to hear, mark, and understand that _ which is read, preached, or ministered ; saying in their due places audibly with the minister, the Confession, the Lord’s Prayer, and the Creed; and making such other answers to the public prayers, as are appointed in the Book of Common Prayer; neither shall they disturb the service or sermon, by walking or talking, or any other way ; nor depart out of the Church during the time of service or sermon, without some urgent or reasonable cause.” It is also provided by the 19th canon that the church- wardens shall not permit “idle persons to abide either in the churchyard or church porch, during the time of Divine Service or preaching ; but shall cause them either to come in or to depart.” § 1. Morning and Evening Prayer. Two directions appear as a preface to the Order for Morning Prayer, headed “The Order for Morning and Evening Prayer daily to be said and used throughout the year.” The first of these is an enactment respecting the place in which these services are to be said; and the second an enactment respecting the “Ornaments of the Church and of the ministers thereof.” The first of these rubrics orders that “the Morning and rene Evening Prayer shall be used in the accustomed orning and place of the church, chapel, or chancel; except Evening : : : : Prayerare it shall be otherwise determined by the ordinary tobesaid Gf the place. And the chancels shall remain as or sung in chancel. — they have done in times past.” The “accustomed place” is defined by the first rubric in the “ Order for CHAP. Iv.] DIVINE SERVICE IN GENERAL. 115 Matins” of Edw. VL, first Prayer Book: “The priest being in the quire, shall begin with a loud voice. . . .”! Reading- desks in the naves of churches were introduced subse- quently to this rubric, and a majority of those now in use are of comparatively modern introduction. But that part of the rubric giving discretion to the ordinary yyjess to appoint some other place was confirmed by ihe Rae the 14th canon of 1603, “The Common Prayer by the shall be said or sung distinctly and reverently *428r- . .. - in such place of every church as the bishop of the diocese or ecclesiastical ordinary of the place shall think meet for the largeness or straitness of the same, so as the people may be most edified;”* and reading-desks were doubtless introduced originally into some large churches under this provision. In the absence of any such determination by the ordi- nary, the ancient rule of saying Divine service in the chancel? still holds good. In Griffin v. Dighton, the Court, seeing that the chancel is the place usually appointed for the clergyman and for those who assist him in the performance of Divine service, held that for this reason he is always entitled to have access to it and to use it, t Bishop Gibson says, “ In the quire, namely in his own seat there, as the way was all Edward VI.’s time, and as is still done in some churches. But in the beginning of Queen Elizabeth, reading-desks began to be set up in the body of the church, and Divine service to be read there by appointment of the ordinaries, according to the power vested in them by the rubric 5 & 6 Edw. VI.” [Cod. xiii. 2.] ? These words are borrowed from an earlier document, the ‘ Advertisements’ of 1565. See Cardwell’s Docum. Ann. i. 291, 3 The right which the parishioners have in the chancel is to use it for the decent and convenient celebration of the Holy Communion and the solemnization of marriage. [Rich v. Bushnell, 4 Hagg. 164. } 116 DIVINE SERVICE IN GENERAL. [BOOK It even though he be not rector. [33 Law Journ. (N.S.) Q. B. 29, 181; 5 Best and Smith, 93.] The second introductory rubric to Morning and Evening Prayer is “And here is to be noted, that such Ornaments of the Church, and of the Ministers thereof, at all Times of their Ministration, shall be retained, and be in use, as were in this Church of England, by the Authority of Parliament, in the Second Year of the Reign of King Edward VI.” This is generaily held to mean, such orna- ments as were prescribed by or used under the first Prayer Book of Edward VI. With reference to Morning and Evening Prayer, there is in that Prayer Book a distinct direction in the first of “Certain Notes for the more plain explication and decent ministration of things contained in this Book,” which is, ! that “In the saying or singing of Matins and Bo hea Evensong . . . the minister, in parish churches to be and chapels annexed to the same, shall use a ei surplice.”’ This enactment is confirmed in the 58th canon of 1603, which also requires graduates to wear the hoods of their degrees: “Every minister saying the public Prayers, or ministering the Sacraments,or other rites of the Church, shall wear a decent and comely surplice with sleeves, to be provided at the charge of the parish. And if any question arise touching the matter, decency, or comeliness thereof, the same shall be decided by the discretion of the ordinary. Furthermore, such ministers as are graduates shall wear upon their surplices, at such times, such hoods as by the orders of the Univer- * It has been held by the Court of Appeal that it is not illegal for a clergyman of the Church of England to wear a black gown in the pulpit when preaching. [L.R. 1897, 1 Ch. 85.] cHAP. Iv.| DIVINE SERVICE IN GENERAL. 117 sities are agreeable to their degrees, which no minister shall wear (being no graduate) under pain of suspension. Notwithstanding, it shall be lawful for such ministers as are not graduates to wear upon their surplices, instead of hoods, some decent tippet of black, so it be not silk.” ? In addition to the surplice and hood the stole was com- monly worn at Morning and Evening Prayer, g,.4, and Litany, but seems not to be mentioned in worn by the first Prayer Book of Edward VI, or in any aaa of the laws on the subject of vestments since the Reforma- tion, and might possibly be considered to be unlawful. An ancient canon of the Church of England, passed in King Edgar’s reign [A.D. 960], decrees that “no priest shall ever come within the church door, or into his stall, without a stole; and that he do not minister at the altar without his vestment.” In commenting on a canon of 1279, which orders the use of a surplice and stole for taking the Holy Communion to the sick, Lyndwood says: “Orarium, 1. Stolam, qua sacerdos in omni obsequio Divini uti debet, et suo collo imponitur, ut significet se jugum Domini suscepisse.” § 2. The Litany. This service is chiefly a translation from the ancient processional Litany of the Church of England ; a portion of which was usually said or sung while the clergy, choir, and congregation were walking round the church or * The surplice is the representative of the Jewish ephod, and is worn by the clergy in some form or other, short, long, wide, or narrow—as the albe, the cotta, the rochet, or the stoicharion—in all parts of the Church ; nor is there any probability that it was not so worn in the primitive Church. The same may be said of the stole, orarium, or epitrachelion. Both are distinctly represented in the paintings of the Catacombs. See Marriott’s Vestiariwm Christianum. 118 DIVINE SERVICE IN GENERAL. [BOOK I. churchyard, and the remainder while they were all kneel- ing in the nave of the church. Its processional use was discontinued at the Reformation, and the custom arose of saying the whole of it as the latter part had previously been said, the priest and his assistants, if any, kneeling at the head of the congregation, in front of the chancel door, or, as the Injunctions of Edward VI. order, “in the midst of the church.” The only direct enactment in the Prayer Book respect- ing the use of the Litany is that of its prefatory rubric: “Here followeth the Litany or General Supplication to be sung or said after Morning Prayer upon Sundays, Wednesdays, and Fridays; and at other times when it shall be commanded by the ordinary.” There has, how- ever, been a continuous tradition of its use in the manner indicated in the preceding paragraph, and this habit is plainly referred to and taken for granted in the rubric before the 51st Psalm in the Commination Service: “Then shall they all kneel upon their knees, and the Priest and Clerks kneeling (in the place where they are accustomed to say the Litany) shall say this psalm, M¢serere mei, Deus.” The use of the Litany as a separate and self-contained service is directed with some minuteness of detail in the 15th canon of 1603, which is as follows: “The Litany shall be said or sung when and as it is set down in the Book of Common Prayer, by the parsons, vicars, ministers, or curates, in all cathedral, collegiate, parish churches and chapels, in some convenient place, according to the discretion of the bishop of the diocese, or ecclesiastical CHAP. Iv.} DIVINE SERVICE IN GENERAL. 11g ordinary of the place. And that we may speak more par- ticularly, upon Wednesdays and Fridays weekly, though they be not holy-days, the minister, at the accustomed hours of service, shall resort to the church or chapel, and, warning being given to the people by tolling of a bell, shall say the Litany prescribed in the Book of Common Prayer: whereunto we wish every householder dwelling within half a mile of the church to come, or send one at least of his household, fit to join with the minister in prayers.’”* § 3. Preaching. In the 23rd Article of Religion it is stated as a prin- ciple of the Church of England that “it is not lawful for any man to take upon him the office of public preaching .... before he be lawfully called, and sent to execute the same. And those we ought to judge lawfully called and sent, which be chosen and called to this None to aench work by men who have public authority given but those = anne Jawfally unto them in the congregation, to call and appointed send ministers into the Lord’s vineyard.” This to do so. Sa ee Saar : principle is illustrated by the words used in the ordination of deacons: “Take thou authority to read the Gospel in the Church of God, and to preach the same, if thou be thereto licensed by the bishop himself:” and also by those used in the ordination of priests: “Take * Any doubt there might have been as to using the Litany as a separate service is removed by “the Act for the amendment of the Act of Uniformity” [35 & 36 Vict., ch. 35, § 5], which also permits the use of the Litany after the Third Collect in the Order for Evening Prayer. 120 DIVINE SERVICE IN GENERAL. [BOOK I. thou authority to preach the Word of God ... in the congregation, where thou shalt be lawfully appointed thereto.” The 49th canon of 1603 also enjoins that “No person whatsoever not examined and approved by the bishop of the diocese, or not licensed, as is aforesaid, for a sufficient or convenient preacher, shall take upon him to expound in his own cure, or elsewhere, any Scripture or matter of doctrine:” and goes on to direct that those not so licensed are to read the homilies “without glossing or adding” instead of preaching sermons of their own. Much more freedom is now used, and permitted to be used, in the matter of preaching, than at the time when these canons were set forth: but it is clearly the law of the Church of England that none but duly ordained clergy are to preach publicly, and even they only under the authority of the bishop of the diocese. Some bishops use a “preaching licence,” but practically now such a licence if required is so either in the case of deacons, or in the case of those clerey who have no fixed duty or office in the diocese. For priests a licence to exercise the office of priesthood, given either as a licence to a curacy, or as institution to a benefice, is held to include the autho- rity to exercise the office of “ preaching the Word of God” conferred on him at ordination. The canons of 1603 have many provisions on the subject of preaching, there being at that time a close association between the pulpit and sedition ; but most of these provisions are now obsolete. By the Act 35 & 36 Vict., ch. 35, § 6 [see pages 112, 119] a sermon or lecture may be preached without being preceded by the Common Prayers or services appointed by the Prayer Book, so long as it is preceded by some service authorized by the Act or by the Bidding Prayer, or by a collect with or without the Lord’s Prayer. fo Fer: ] Chapter V. HOLY MATRIMONY. I. PRELIMINARY PRECAUTIONS AGAINST CLANDESTINE MARRIAGE, Wer Honnse is sus. ~el2d.| \ 2. Le prscopal Licences, We tao § 3. Registrar’s Certificates and Licences . « 134 II. IMPEDIMENTS OF MARRIAGE. § 1. Minority . . . . 137 | § 2. Forbidden Degrees . 138 III. THE MARRIAGE. § 1. Place of Ceremony . 145 | § 4. Form of Solemniza- § 2. Time of Marriage . 147 SIGHED a elacr oda § 3. Obligation of Clergy- § 5. Registration of Mar- man to celebrate . 150 Vigee ase hls) bea siG § 6. Marriage Fees . . . 156 IV. ECCLESIASTICAL RESULTS OF MARRIAGE, 157. fee” estate of matrimony is cognizable by the laws of the Church as a religious institution, and by those of the State as a condition of life involving civil rights and obligations. To some extent these laws overlap each other, and cannot be viewed altogether apart; but it is under its first-named aspect that marriage will be chiefly considered in the present chapter. From the first beginning of the Christian Church mar- riages were always inaugurated, among Christians, with ecclesiastical rites. The words of our Lord ee His 122 HOLY MATRIMONY. [BOOK II. apostles are of such a character as almost certainly to lead to such a mode of inauguration if it had not pre- i viously existed; and as a matter of historical Ecclesias- 3 ticalcere- fact there is evidence which shows that the monies of marriage indicated = vii, 39] was one that took a strong hold upon in early ae ; : Christian the Christian mind. Thus St. Ignatius, a con- writings. i idea of marrying “in the Lord” [1 Corinth. temporary of St. John, wrote to Polycarp: “Tt is fitting for those who purpose matrimony to accom- plish their union with the sanction of their bishop, that their marriage may be in the Lord, and not merely in the flesh. Let all things be done to the honour of God.” [Tgnat. Hp. ad Polycarp. v.| In the second century Tertullian writes: “How can we find words to describe the happiness of that marriage in which the Church joins together, which the Oblation confirms, the benediction seals, the angels proclaim when sealed, and the Father ratifies !” [Tertull. ad Uxor. ii. 9.) The 13th canon of the fourth Council of Carthage [A.D. 398] enjoins that when a bride and bridegroom are presented to a priest for benediction they shall be presented by their parents and friends; an injunction still perpetuated in the giving away of a bride by her father, or by a friend acting as such for the occasion. St. Basil in the same century, writing of the first institution of marriage, calls it a yoke which unites in one, by means of the benediction given, those who were two [Basil. Hexam. vii.]; and St. Ambrose, his contemporary for many years, asks respecting mixed marriages, in his nineteenth epistle, “Since marriage must be sanctified by the priest’s sanction and blessing, how CHAP. V.] HOLY MATRIMONY, 123 can that be called a marriage where there is no agreement of faith?” [Ambr. Zp. xix.] From the fifth century onward elaborate offices for the celebration of marriage are to be found, and the primitive customs of the Church: of England in particular are indicated by one of the laws of King Edmund [a.p. 946], “The mass priest shall be at the marriage, and, according to custom, shall celebrate their coming together with God’s blessing, with’ all solemnity.” [Spelman, 1 425.] Our modern English “Form of Solemnization of Matri- )? mony” is substantially a translation of the old English “Ordo ad faciendum Sponsalia,” and is probably a fair representative of the one which was used: when the law just quoted was penned. But in the ancient marriage service the espousals and the marriage were celebrated separately instead of at one. time, as is our modern custom; the espousals being a ceremonial ratification in Jacte ecclesice of the private engegement made between the parties when they contracted to marry at a future day. The points to which attention requires chiefly to be directed in considering our existing laws of marriage are (1) the preliminary precautions against clandestine matriages; (2) the impediments of marriage; (3) the circumstances of the marriage ceremony; and (4) the ecclesiastical results of marriage. I.—PRELIMINARY PRECAUTIONS AGAINST CLANDESTINE MARRIAGE. The ecclesiastical law of England is very strict in guarding against improper marriages, whether the im- 124 HOLY MATRIMONY. [BOOK II. propriety interferes with the validity of the marriage or not. The general means of thus protecting the rights of parents and others, as well as those of the persons wishing to marry, is the publication of Banns; the exceptional means is the Licence, ze. the dispensation from the necessity of such publication. § 1. Banas. It is reasonably supposed, from the manner in which marriage is referred to by the primitive fathers, that some public notice was given to the bishop, or to the assembled Church, equivalent to that now in use; and traces of such a practice have been observed in the French Church of the ninth century. The earliest extant canon of the Church of England on the subject is the eleventh of the Synod of Westminster, A.D. 1200, which enacts that “no marriage shall be contracted without banns thrice pub- lished in church” [Johnson’s Canons, ii. 91]; but this seems only like a canonical enactment of some previously well-known custom. The existing law of the Church of England is very strict on the subject, as may be seen from the rubric and the 62nd canon of 1603. The rubric is as follows: “The Banns of all that are to be married together must be published in the Church three several Sundays, or Holy-days, in the time of Divine Service, immediately before the sentences for the offertory—the curate saying after the accustomed manner, ‘I publish the Banns of Marriage between JZ. of and WV. of If any of you know cause, or just impediment, why these two persons should not be joined together in holy Matri- CHAP. V.] HOLY MATRIMONY. 125 mony, ye are to declare it. This is the first [second, or third] time of asking.’ {| And if the persons that are to be married dwell in divers parishes, the Banns must be asked in both Parishes; and the Curate of the one Parish shall not solemnize Matrimony betwixt them, without a certifi- cate of the Banns being thrice asked, from the Curate of the other Parish.”! The ancient rubric is confirmed by the 62nd canon of 1603, which is: “No minister, upon pain of suspension per triennium ipso facto, shall celebrate matrimony between any persons, without a faculty or licence granted by some of the persons in these our constitutions expressed, except the banns of matrimony have been first published three several Sundays, or holy-days, in the time of Divine Service, in the parish churches and chapels where the said parties dwell, according to the Book of Common Prayer ” This is substantially the same as two canons of the Province of Canterbury, passed in the years 1322 and 1328, the latter of which also enjoined that the law should often be declared to the people, so that clandestine marriages might be prevented. The canon law on this subject is confirmed by the statute law. This enacts [4 Geo. IV., ch. 76, § 2] that “all banns of matrimony shall be published in an audible manner in the parish church, or in some public chapel, in which chapel banns of matrimony may now or may hereafter be lawfully published, of or belonging to such * This rubric and form are those of the ancient Anglican Office, and the form of certificate then in use is printed in Maskell’s Monumenta Ritualia, iii. 376. 126 HOLY MATRIMONY. {BOOK It. parish or chapelry wherein the persons to be married shall dwell, according to the form of words prescribed by the rubric prefixed to the Office of Matrimony in the Book of Common Prayer, upon three Sundays preceding the solemnization of marriage, during the time of morning service, or of evening service (if there shall be no morning service in such church or chapel upon the Sunday upon which such banns shall be so published), immediately after the second lesson; and whensoever it shall happen that the persons to be married shall dwell in divers parishes or chapelries, the banns shall in like manner be published in the church, or in any such chapel as afore- said, belonging to such parish or chapelry wherein each of the said persons shall dwell; and that all other the rules prescribed by the said rubrick concerning the pub- lication of banus and the solemnization of matrimony, and not hereby altered, shall be duly observed.” As “Sun- days” only are named in this Act, it may be doubted whether the “holy-days ” named in the rubric would now suffice for a legal publication. But even if they did the ancient canon of 1322 distinctly ordered that the festivals should be “ distant from each other.” By the 7th clause of the same Act [4 Geo. IV., ch. 76] it is enacted that “no parson, vicar, minister, Notice of seven days before —_ of matrimony between any persons whatsoever publication. or curate shall be obliged to publish the banns unless the persons to be married shall, seven days at the least before the time required for the first publication of such banns respectively, deliver or cause to be delivered to such parson, vicar, minister, or curate, a CHAP. V.] HOLY MATRIMONY. 127 att | notice in writing, dated on the day on which the same shall be so delivered, of their true Christian names and surnames, and of the house or houses of their respective abodes within such parish or chapelry as aforesaid, and of the time during which they have dwelt, inhabited, or lodged in such house or houses respectively.” This clause does not lay the clergyman under any obligation to require seven days’ notice, nor is there any judicial decision to guide him as to the exact amount of responsibility which he incurs under it. But in one case Lord Eldon defined the due publication of banns as a publication “by persons having, to the best of their ‘power, informed themselves that they publish banns between persons resident in the parish” [Priestly v. Lamb, 6 Ves. 423], and expressed his opinion that clergymen not thus informing themselves incurred the penalty im- posed by the canon law. In another case the same Lord Chancellor made the following strong remarks on the subject: “ With regard to the clergyman, a notion seems to prevail, that everything is correct, if a paper describing the parties between whom banns are to be published, being handed up to the clergyman in the usual manner during the service, he publishes them without more. It is true that a marriage by banns is good, though neither of the parties was resident in the parish; but if a clergy- man, not using due diligence, marries persons neither of whom is resident in the parish, he is lable at least to ecclesiastical censure, perhaps to other consequences. It has been uniformly said, especially as to marriages in London, that the clergyman cannot possibly ascertain 128 "HOLY MATRIMONY. [BOOK II. where the parties are resident; but that is an objection which a Court, before whom the consideration of it may come, cannot hear. The Act of Parliament has given the means of making the inquiry, and if the means provided are not sufficient, it is not a valid excuse to the clergyman who has not used those means, that he could not find out where the parties, or either of them, were resident. If he has used the means given to him and was misled, he is excusable; but he can never excuse himself if no inquiry was made.” [Nicholson v. Squire, 16 Ves. 261.] It is also directed by the Act 4 Geo. IV., ch. 76, § 6, Binks that “the churchwardens and chapelwardens of Book. churches and chapels wherein marriages are solemnized shall provide a proper book of substantial paper, marked and ruled respectively in manner directed, for the register-book of marriages ; and the banns shall be published from the said register-book of banns by the officiating minister, and not from loose papers, and after publication shall be signed by the officiating minister, or by some person under his direction.” Some uncertainty exists as to the part of the service Timeog during which the banns of marriage should be publication. nyblished, the rubric and the Act of Parliament seeming to disagree. Bishop Phillpotts of Exeter once stated in the House of Lords that about the year 1809 the Delegates of the Press at Oxford 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 or the second lesson at Evening Prayer, their object being to bring the rubric into agreement with CHAP. V.] HOLY MATRIMONY. 129 26 Geo. II. ch. 33, § 1. [Hansard’s Reports, ILI. v. 78, p. 22.] But that statute only provided for the publication to take place after the second lesson at Evening Prayer, in the absence of a morning service; and, according to the decision of Baron Alderson, left the rubric untouched. In Reg. v. Benson, 1856, Sir Edward Alderson expressed a doubt whether the publication of banns is valid under the Act of Parliament in question, when it has taken place after the second lesson instead of after the Nicene Creed. The law, said the judge, had not altered the injunction of the rubric. As, through the neglect of bishops and clergy in past times, morning service was not always celebrated, “the statute enacted that in such cases the publication should be made in the evening service after the second lesson.” The Marriage Act of 1836 [6 & 7 Will. IV., ch. 85] expressly confirms “all the rules prescribed by the rubrick ” in its first clause. On the whole, it is decidedly the better opinion that the rubric and the statute must be so construed as to make the two agree if possible, and that therefore banns should be published after the second lesson only in the evening service, and where there is no morning service. Where the persons reside in separate parishes, and the banns of one of them are obliged to be published 4... ertificate in a church other than that in which the mar- of publica- riage is to take place, it will be necessary for on the minister of the former church to furnish the minister of the latter with a certificate of publication. No such certificate is set forth in the canon or statute law, but the following is a convenient and sufficient form? :— * This certificate does not require a stamp. 130 HOLY MATRIMONY. [BOOK II. “T hereby certify that the banns of marriage between John Smith, bachelor, of the parish of Weaubridge, in the county of Somerset, and Mary Jones, widow, in the parish of Ankerton, in the same cownty, were duly published in the parish church of Wexbridge on three several Sundays, viz., November 5th, 12th, and 19th, 1871, and no objection was declared. “ EDWARD JOHNSON, “ Rector of Weabridge.” “ November 21st, 1871.” Banns of marriage, however duly published, are of ‘Limitation force only for three months from the date oftimefor of the latest publication. [4 Geo. IV. ch. 76, banns to be in force. § ae § 2. Lpiscopal Marriage Licences. The so called marriage “licence” is a dispensation from the bishop, which supersedes the necessity of publication of banns. Such dispensations have been granted by English bishops at least since the fourteenth century, and the power of granting them was confirmed by 25 Hen. VIII. ch. 21. The mode of granting them is regulated by “the 101st, 102nd, 103rd, and 104th canons of 1603, and by the Marriage Act so often referred to, 4 Geo. IV., ch. 76. The 20th clause of that Act saves the right of the Archbishop of Canterbury to grant “special licences to marry at any convenient time or place,” as given in the Act of Henry VIII. But other licences must state where the marriage is to take place, and must limit the hours during which it is to be celebrated, They hold CHAP. V.] HOLY MATRIMONY. 131 good, like banns, for three months, and no longer. [4 Geo. IV. ch. 76, § 19.] The following is the form in which marriage licences are granted by a bishop, and it will show the nature of the privilege granted, as also its extent and limit. The episcopal seal is attached to them, and they are signed at the foot by the bishop’s registrar, or deputy registrar. Before a licence is granted, one of the persons to be married must take an oath before a surrogate of the diocese that one of them has had his or her “usual place of abode” for fifteen days then preceding in the parish of the Church where the marriage is to take place. Surrogates are generally beneficed clergymen, one clergyman usually acting as surrogate for several parishes. “The Right Honourable —— Master of Arts, and one of Her Majesty’s Counsel learned in the Law, Vicar General, and Official Principal, lawfully constituted of the Right Reverend Father in God, by Divine Providence, ——— Lord Bishop of Durham: To our well-beloved in Christ, Samuel Jones, of Darlington, in the county and diocese of Durham, and Mary Smith, of Barnard Castle, in the county and diocese aforesaid, “ GREETING.— WHEREAS Oath hath been made, that you the said Samuel Jones, being upwards of the age of twenty-one years, and a bachelor, and the said Mary Smith being upwards of the age of twenty-one years, and a spinster, by and with the consent of those whose consent is required by law in that behalf, do intend to proceed to the solemnization of true, pure, HOLY MATRIMONY. [BOOK Il. and lawful matrimony: and have prayed our licence to be married in the church of Barnard Castle aforesaid. We, therefore, willing that such your honest intentions may the more speedily attain their due effect, for certain just causes, us thereunto moving, do by these presents grant our Faculty and Licence, as well to you the parties contracting, as to the Minister of the church of Barnard Castle aforesaid, and to all others who shall be then and there present, that without publication or proclamation of Banns, you may warrantably and freely cause the said marriage to be solemnized by the Minister aforesaid, according to the Form of Solemnization of Matrimony prescribed by the Book of Common Prayer, and Administration of the Sacraments, and other rites and ceremonies of the Church, according to the use of the Church of England, established by Act of Parliament: ProvipEp, that there shall appear no impediment of kindred or of alliance, or any other lawful cause, nor any suit commenced in any Ecclesiastical Court, to bar or hinder the proceeding of the said matrimony, according to the tenor of this Licence; and that the said marriage be so solemnized in the face of the congregation in the church of Barnard Castle aforesaid, between the hours of eight and twelve in the forenoon. And PROVIDED ALWAYS, that if any fraud hereafter appear, either by reason of the truth suppressed, or falsehood suggested, at the time of obtaining this Licence, that the said Licence be void to all intents and purposes in law, as if the same had never been granted; and in that case we enjoin all ministers, if any of the premises shall become known unto them, CHAP. v.] HOLY MATRIMONY. 133 that they proceed not in anywise to solemnize the said marriage, without having first consulted us touching the same. Given under the Seal of the Consistory Court of Durham, which in this behalf we use, this eighteenth day of the month of November, and in the year of Our Lord One thousand eight hundred and seventy-two.” The taking of a false oath in order to get a licence is punishable by the temporal Courts as a misdemeanour. [Regina v. Chapman, 2 Car. & K. p. 846.] It is apparently not now punishable as an ecclesiastical offence. [Vhilli- more v. Machon, L. R. 1 P. D. p. 481.] Any clergyman who marries persons without banns or licence (unless by special licence) is liable to penal servi- tude for fourteen years, such celebration of marriage being a felony: and if both the persons so married have wilfully and knowingly acquiesced in the act, their marriage is “null and void to all intents and purposes whatsoever.” [4 Geo. IV. ch. 76, §§ 21, 22.] But it has been ruled by the Divorce Court that in a case where the woman had not “knowingly and wilfully” been married before the licence was granted her marriage was valid. [Greaves v. Greaves, L. R. 2 P. & M. 423.) It is also felony, punishable with a like term of penal servitude, for any person falsely pretending to be in Holy Orders to solemnize marriage according to the rites of the Church of England, and the pretended marriage is, in that case too, null and void, at any rate if the parties know- ingly acquiesce. [4 Geo. IV. ch. 76, § 21.] The prosecution for felony must be begun within three years from the date of the offence. It should be clearly understood that in all cases where there has been some defect in the formalities, 134 HOLY MATRIMONY. [BOOK Il. _ the marriage is not void unless the parties knew the defect and acted wilfully. So it was in the old law: banns or licence were required, and the clergyman who married without these, and the parties to be married, were alike liable to ecclesiastical censures, and in some cases to punishment by the Court of Chancery ; but the marriage was, nevertheless, a good one. § 3. Superintendent Registrars’ Certificates and Licences, By recent Acts of Parliament, “ certificates for marriage ” and licences for marriage may also be issued by Superin- tendent Registrars of Births, Deaths, and Marriages ; and under their authority marriages can take place, without any religious ceremony at the registrar's office, or with religious ceremonies in Dissenting chapels, and in churches or chapels of the Church of England. But it seems that marriages by certificate,and it isclear that marriages by this formof licence, cannot be celebrated in any church or chapel of the Church of England without the consent of the minister thereof, nor. in such latter case by any other than a duly-qualified clergy- | man of the said Church, or with any other forms or cere- monies than those of the said Church. [19 & 20 Vict.ch.119, § 11, apparently repealing 7 Will. IV. & 1 Vict. ch. 22, § 36.] Provision is also made, by the 12th clause of the same Act, for the solemnization of holy matrimony in the church, even after a civil marriage has been effected under the authority of the registrar. In such a case neither banns nor licence are required, but only the certificate of marriage before the registrar: “If the. parties to any marriage contracted at the registry office of any district conformably to the said-recited Acts or any of them, or to the provisions of this Act, shall desire cap. v.] HOLY MATRIMONY. i35 to add the religious ceremony ordained or used by the church or perstiasion of which such parties shall be members to the marriage so contracted, it shall be com- petent for them to present themselves for that purpose to a clergyman or minister of the church or persuasion of which such parties shall be members, having given notice to such clergyman or minister of their intention so to do; and such clergyman or minister, upon the production of their certificate of marriage before the superintendent- registrar, and upon the payment of the customary fees (if any), may, if he shall see fit, in the church or chapel whereof he is the regular minister, by himself, or by some minister nominated by him, read or celebrate the Marriage Service of the persuasion to which such minister shall belong: provided always, that no minister of religion who is not in Holy Orders of the United Church of England and Ireland shall under the provisions of this Act officiate in any church or chapel of the United Church of England and Ireland; but nothing in the reading or celebration of such service shall be held to supersede or invalidate any marriage so previously contracted, nor shall such reading or celebration be entered as a marriage among the marriages in.the parish register; provided also, that at no marriage solemnized at the registry office of any district shall any religious service be used at such registry office.” This provision for ecclesiastical marriages after civil marriages does, not seem to make any restric- tion as to place or time, the registrar’s certificate being supposed to be given only after proper precaution has been taken that the marriage is not of a clandestine 136 HIOLY MATRIMONY. [BOOK Il. character, and the certificate which preceded the civil marriage being also a “licence from a person having authority to grant the same.” There is no reason to think, however, that the ceremonial rules as to the place and hours of marriage are superseded by it, though the penal character of the rules may possibly be so. It is to be observed that marriages with religious cere- monies performed by Dissenting ministers are not legal on account of those religious ceremonies, as those of the Church of England are—but on account of the presence of the registrar and the registration of the marriages by him, or the certificate from the superintendent registrar to marry in the chapel. But it is provided by 61 and 62 Vict., ch. 58, that after the 1st April, 1899, marriages may be lawfully solemnized in a building which has been registered under the Act in the presence of a person authorized for the purpose by the trustees of the building without the attendance of a registrar. Il.—IMPEDIMENTS OF MARRIAGE, In the pre-Reformation days there were many hindrances to marriage—such as pre-contract (or formal espousals), the spiritual relationship of godparent and godchild, and the reception of Holy Orders, in addition to those which are at present accounted as such. Now, since 4 Geo. IV., ch. 76, an existing marriage, incompetency of mind through idiotcy or madness,? incompetency of age (as when. a boy candidate for marriage is under fourteen years of age, or a girl under twelve), the expressed dissent of * This lingered on till 26 Geo. IT., c. 33, § 13. 2 As to this see the remarkable cases of Durham v. Durham, Hunter v. Edney, Cannon v. Smalley, all reported together. [L, R, 10 P. D. 80.] CHAP. V.] HOLY MATRIMONY. 137 parents or guardians where either of the parties is under twenty-one years of age, together with certain “forbidden degrees” of consanguinity and affinity, are the only im- pediments of marriage in usual cases. The cases which require special notice are those of minors, and of the forbidden degrees. § 1. Minority. In the case of minors, it has been expressly enacted in the 100th canon, and by statute, that : f In the case where both or either of the parties between of minors, whom the banns are published are under the and those age of twenty-one years, and the parents or ‘im loco parentis”’ guardians of such parties openly and publicly may forbid declare, or cause to be declared, in the church pape: or chapel where the banns are published, at the time of such publication, his, her, or their dissent to such marriage, such publication of banns shall be void [4 Geo. IV. ch. 76, § 8]; but even if the banns qergyman were not forbidden, and the clergyman never- having notice of theless had notice of the dissent of such dissent of parents not to marry would be punishable, under the canon law, if minors. parents or guardians before the marriage, he he performed the ceremony. The law formerly (as expressed in the 62nd canon) ran, that no such minors could be married without the consent of their parents or guardians, expressed either by them- selves, or by sufficient testimony; but the statute just quoted declares, in effect, that this expressed consent is uo longer necessary, and consequently its absence does L 138 HOLY MATRIMONY. [BOOK I. not make the marriage of minors a punishable offence in the clergyman who marries them. It is, however, a very serious offence for any clergyman to solemnize a marriage between two persons of whom one is a ward in Chancery, without the leave of the court; and ignorance of the fact would not prevent him from being committed for contempt of court. [Herbert’s Case, 3 P. Wms. 116.] § 2. Forbidden Degrees. The restrictions which forbid the marriage of relatives within certain degrees of consanguinity (or blood-relation- ship), and of affinity (or relationship by marriage), are founded on those laid down in the Jewish law by the Divine and Supreme Lawgiver Himself. [Levit. xviii.] The extent to which these restrictions were carried out in the Church of England before the Reformation was regu- lated by the canon law: since that time it has been defined by statute law, and by the 99th canon of 1603. Up to the thirteenth century intermarriage was for- bidden between persons connected with each other by ties either of consanguinity or affinity to the seventh degree. This prohibition of the foreign canon law was adopted by the English Church, apparently, very shortly after the | Conquest. In the Council of London [a.p. 1075], held under the presidency of Lanfranc, we find a canon promul- gated to this effect, and a similar enactment in the Council of Westminster, held. A.D. 1102. But at the Fourth » Decret. pars ii, caus. 35, queest. 1.-v. Corp, Jur. Canon. Ed. 1687, a canon of Gregory the Great. CHAP. V.] HOLY MATRIMONY. 139 Lateran Council [4.p. 1215] the restriction was relaxed, and marriage was forbidden only in cases where the contracting parties were connected in or within the fourth degree. The prohibition, as thus modified, became, pro- bably shortly afterwards, the generally received law of the English Church. We find a canon to this effect in the Sarum Constitutions of 1217, held under Bishop Poore; in the Durham Constitutions of 1220; and in another set of Constitutions of the year 1237, distinguished in Spelman by the title of “Anonymous.” The general acceptance by the Church of England of this alteration in the law is also testified by the dispensations granted for English marriages in times subsequent to this date. We find none sought for or obtained by English subjects for any marriage between persons more distantly connected than in the fourth degree, though many were required for persons connected in this degree! This seems to point to the conclusion that beyond that limit marriages were legal. Again, an Act of Henry VIII. [25 Hen. VIII. ch. 22], placing all prohibitions of this nature on a statutory footing, recites the then existing restrictions of the canon law as extending only to the fourth degree— that is, the relationship of first-cousins. The law on this subject remained in this condition until the re-establishment of the Royal Supremacy under Henry VIII An Act [25 Hen. VIII. ch. 22] was then passed, prohibiting marriages between persons within certain degrees of relationship therein specified by name, and a subsequent Act [28 Hen. VIII. ch. 7], repealing the * Stephens’s Keel. Stat. i. 271. 140 HOLY MATRIMONY. [BOOK II. former act, contained similar prohibitions, with a like specification of the forbidden degrees. This Act passed through the same vicissitudes as did all others of a similar tendency during the succeeding reigns, being repealed under Philip and Mary, and revived as to part of its enactments under Elizabeth. There has been considerable difference of opinion as to whether either—and, if either, which—of these statutes of Henry, VIII. continued after- wards (on this point at least) in force :? but the question is only of importance so far as it affects the decision of a point which has since been frequently litigated—the legality of marriage with a deceased wife’s sister. By the 32 Hen. VIII. ch. 38 (the portion of which relating to this subject was confirmed by 2 & 3 Ed. VI. ch. 23, and, after its repeal under Philip & Mary, was revived by 1 Eliz. ch. 1, § 3), all marriages are treated as void if between persons not “without the Levitical degrees,” The peculiar form of this enactment is to be observed, indicating, as it does, the probable intention of the Legislature to give the statute a wider disabling operation than merely in restraint of marriages within the express Levitical prohibitions. To carry out this intention, lawyers have been guided by two rules in the interpretation of this Act. [1] The word “degrees” must not be con- sidered as referring to steps of vertical relationship ; and * Gibson considers 25 Hen, VIII. ch. 22 as repealed, but Hawkins inserts it in his Statutes as unrepealed. Gibson also thinks [ (od. Eccl. ad loc.] 28 Hen, VILL. ch. 7, § 9 repealed ; but Vaughan, C.J., ‘in Harrison v, Burwell, argues from it as unrepealed: Sir R, Philli- more, Eccl. Law, 723, 724, CHAP. V.] HOLY MATRIMONY. 14 thus the Levitical prohibition of marriage between parent and child, extends to all marriages between persons in the ascending and descending line ad infinitum (e.g. grand- parent and grandchild, &c.), as being persons within the same degree. [2] The express Levitical prohibition of marriage between persons connected by a certain degree of relationship is to be extended to all marriages which are in paritate rationis: eg., marriage being expressly forbidden between a woman and her husband’s brother, it is also forbidden, by implication, between a man and his wife’s sister, as being: within the same degree of relation- ship as a marriage between the former parties. Agreeably to this principle, a table of forbidden degrees was promul- gated in 1563 by Archbishop Parker, which contained several prohibitions not expressly insisted on in Lev. xviii. but capable of being deduced from the Levitical prohibi- tions by the application of the above-stated rules of in- terpretation. This table is adopted in the 99th canon of the year 1603, which is as follows: “No person shall marry within the degrees prohibited by the laws of God, and expressed in a table set forth by authority in the year of our Lord God 1563. And all marriages so made and contracted shall be adjudged incestuous and unlawful, and consequently shall be dissolved as void from the beginning, and the parties so married shall by course or law be separated. And the aforesaid table shall be in every church publicly set up and fixed at the charge of the parish.” The table itself is constructed in rather a cumbrous manner, but the following is a faithful interpre- tation of its enactments :— 142 HOLY MATRIMONY. [BOOK II. 1. Relatives whom a Man may not Marry. Mother, or stepmother of his own parents. Mother of his wife or of his wife’s parents. his father, », uncle. », brother, »» Son or grandson. Widow of », nephew, Aunt ist : : aes S00 of himself, or his wife. Daughter, or Niece Daughter of his own or his wife’s children. 2. Relatives whom a Woman may not Marry. Father, or stepfather of her own parents. Father of her husband or of her husband’s parents. her mother, » aunt. Widower of », sister, », daughter or grand-daughter, »» niece, Uncle Brother cf herself, or her husband, Son, or Nephew Son of her own, or of her husband’s children. These prohibitions are founded upon the two principles ——that (1) the relationships forbidden by God in the case of either sex are equally forbidden to the other sex; and that (2), the husband and wife being one flesh, relationships by marriage become, to either of them, blood-relationships.1 * It used to be held, moreover, that illicit alliances in the same degrees entail the same prohibitions ; so that, for example, a man CHAP. V.] ‘HOLY MATRIMONY. 143 The course of subsequent legal decision has constantly affirmed these principles of interpretation—not only positively, by annulling all marriages which are impliedly forbidden, paritate rationis, by the Levitical law, but ucgatively, by refusing to interfere with any marriage which could not be brought within the analogy of the Levitical prohibitions. Thus in Hill v. Good,* Vaughan, C.7., makes it the main ground of: his adjudging void a marriage with a deceased wife’s sister, that its unlawful- ness was implied in the prohibition against a woman marrying her husband’s brother. And in Wortley v. Wat- kinson, a marriage with a wife’s sister’s daughter was set aside, as being within the same degrees as a marriage with a father’s brother’s wife. But Harrison v. Burwell® is an instance of the opposite operation of this principle of interpretation. There a prohibition issued against the ‘mpcachment in the spiritual courts of the marriage of a man with the widow of his great-uncle, such a marriage being held not to be within the Levitical degrees. As regards the status of persons who have married is no more permitted to marry the paramour of his deceased brother, than he is permitted to marry his deceased brother’s lawful widow. But it was decided in the case of Taylor v. Wing [2 Swabey and Tristram’s Rep. 278; 30 Law Jour. Mat. Rep. 258], in the year 1861, that this rule is not part of the law of England. It is, how- ever, still a rule of the canonists, and it was decided in the same year 1861, that a marriage within the prohibited degrees is null and ‘void, although one of the parties is illegitimate. |R. v. Brighton, 1B. &8. 447.] * Vaughan, 314; Stephens’s Laws of the Clergy, i.714. See also Bishop Jewell’s Letter, Strype’s Parker, App. No.19. — ? 2 Levinz, 254. 3 Vaughan, 242; and see the elaborate judgment of Vaughan, C.J., in this ease, and Hill v. Good, for a complete exposition of the law on the subject. 144 HIOLY MATRIMONY. [BOOK Il. within the forbidden degrees, an important alteration has been effected by a statute passed within the present. century. Previously to this enactment, marriages of this kind were not void, but merely what is called voidable ; that is to say, they might by impeachment in the eccle~ siastical courts, and on proof of their illegality, be annulled aad rendered void ab initio, and the issue of such marriages bastardized. These proceedings might be taken at any time during the lifetime of the offending parties ; but after their death, or the death of one of them, the common law forbade such marriages being impeached in the spiritual courts for the purpose of bastardizing the issue ; and prohibitions to that effect were in such cases sought for and obtained from the common law courts. But by 5 & 6 Will. IV. ch. 54, all marriages within the forbidden degrees, whether of affinity or consanguinity, were rendered absolutely and ab initio void for the Suture. With regard to past marriages, however, a dis- tinction was made. Those which previously to the pass- ing of the Act had been entered into between persons within the forbidden degrees of consanguinity, and so were voidable, were suffered to remain in statu quo—i.e. in the position of marriages valid until set aside by impeach- ment in the ecclesiastical courts. But those which at tlie passing of the Act were voidable merely on the ground of affinity, were (provided no proceedings were pending for their impeachment) thereby rendered absolutely goad and valid in law, and unassailable in any court. This Act reculates the legal status of all marriages within the forbidden degrees at tho present day. CHAP. V.] HOLY MATRIMONY. 145 III.—THE MARRIAGE. It is only in the case of marriage by “special licence ” that a perfect freedom of choice is permitted as to the time and place of its celebration. In the case of marriage by banns, and by an ordinary licence, there are certain restrictions imposed by both the canon and statute law. § 1. Place of Ceremony. A restriction as to place is implied in the first two rubrics of the Marriage Service, where, in the first, “the church” in which the banns are published, and in the second rubric one of the two in which they have been severally published, is spoken of as that in which the marriage is to be celebrated. The 62nd canon is more express, for, after forbidding marriage without banns or licence, it adds: “No minister, upon pain of suspension per triennium wpso facto, shall celebrate matrimony be- tween any persons .. . . in any private place, but either in the said churches or chapels where one of them dwelleth.” This provision is confirmed by the Marriage Act [a.D. 1823], which enacts, “that in all cases where banns shall have been published, the marriage shall be solemnized in one of the parish churches or chapels where such banns shall have been published, and in no other place whatsoever.” [4 Geo. IV. ch. 76, § 2.] By the 21st clause of the same Act, celebration in any other place than that in which the banns have been published, or that which is named in the licence, entails, on the clergyman celebrating it, the guilt of felony, and the punishment of 146 HOLY MATRIMONY. [BOOK Il. fourteen years’ transportation—“ provided that all prose- ‘ cutions for such felony shall be commenced within the space of three years after the offence committed ;” while the marriage itself “shall be null and void to all intents and purposes whatsoever,” if the persons so marrying have knowingly and wilfully acquiesced in such a breach of the law. During the time that any Church is under repair, the publication of Banns and solemnization of Marriage may take place in the Church of an adjoining parish, or in any place in the parish licensed by the Bishop [4 Geo. LV. ch. 76, § 13]: orin any consecrated Chapel in the parish authorized by the Bishop [11 Geo. IV. & 1 Will. IV. ch. 18 § 2], In populous places remote from the parish church the Bishop may, with consent of patron and incumbent (or without such consent after two months’ notice, and subject to appeal), licence any public chapel or any chapel licensed for divine service, so as to make it as to banns and mar- riages in the same position as the parish church for any persons dwelling within the district specified by the licence [6 & 7 Will. 1V. ch. 85, 1 Vict. ch. 22]. As to the divisions of old parishes formed under the Church Building Acts much diversity exists. In some vases the power of celebrating marriage is given to the Incumbent of the newly-created division; and in this case banns must be published and marriages celebrated in the church of such division. Sometimes the Incumbent of the mother parish retains the power during his Incum- bency. Sometimes he has a right to the fees, or part of them. [Page 350.] It is best in all these cases to refer to the Oider in Council creating the division. In “new CHAP. V.] HOLY MATRIMONY. 147 parishes,” however, formed under the Acts 6 and 7 Vict. ch. 37, 7 & 8 Vict. ch. 94, and 19 & 20 Vict. ch. 104, the Peel district, when its church is built and consecrated, becomes “a separate and distinct parish for ecclesiastical purposes ;” and the rule is general that banns must be published and marriages celebrated in the church of the new parish, and not elsewhere. [Fuller v. Alford, L. R. 10 Q. B. D. 418.] § 2. Time of Marriage. The canon and statute law both strictly require that all marriages (except those solemnized by special licence) shall be celebrated between certain hours. Thus the 62nd canon of 1603 enacts: “Neither shall any minister, upon the like pain”—i., of three years’ suspension—“ under any pretence whatsoever, join any persons so licensed in marriage at any unseasonable times, but only between the hours ,of eight and twelve in the forenoon;” and the 102nd canon is to the same effect. This is confirmed by the Marriage Act of 1823, with the additional civil punishment of fourteen years’ penal servitude imposed upon the clergy- man transeressing. [4 Geo. IV. ch. 76, § 21.] Now, by the Marriage Act, 1886 [49 Vict. ch. 14], and the canons of 1888, the hours are extended, and marriage may be celebrated between eight in the forenoon and three in the afternoon. The 62nd canon of 1603 also required the marriage to be celebrated “in time of Divine Service ;” but this requisition has been abolished by the new canons.' * The limitation of the hours during which the celebration of marriages may take place is partly to ensure publicity. So, in 1502, a priest was presented to the archdeacon for marrying a man and woman “in hora secunda post mediam noctem, januis clausis;” and in 1578 another was presented for marrying in the afternoon, 5) foe ac 5 i$ [Hale’s Precedents, 247, 507.] But it is conjectured, with some reason, that the practice of morning marriages necéssarily arose 148 HOLY MATRIMONY. [BOOK II. In addition to this strict limitation in respect to the hours of the day, there are also, by the custom of the Church, limitations as to the time of the ecclesiastical year when marriages may be solemnized. This restriction as to “canonical seasons” arose from the most solemn periods of the Christian year having been ever considered as inappropriate for the celebration of the joys of marriage, and is of very early date. The most ancient instance is found in the 57th canon of the Council of Laodicea [A.D. 365], which forbids the celebration of marriage during Lent. A doubtful canon of the Council of Lerida [A.D. 524] is quoted, forbidding their solemniza- tion not only in Lent, but also from the beginning of Advent to Epiphany, and during the three weeks pre- ceding the Festival of St. John the Baptist. The 18th canon of the Council of Eanham [a.p. 1009], and the 3rd canon of the Council of Selingstadt [a.p. 1022], enacted that no marriage should take place from Advent to the sixth day after Epiphany, nor between Septuagesima and the Octave of Easter, nor in the fourteen days before the Festival of St. John the Baptist, nor upon fast-days, nor upon the vigils of solemn feasts. The 19th canon of the Council of Ravenna [a.D. 1511] is to the same effect; and. from the Office being followed by the Holy Communion. It is some confirmation of this, that the wedding-breakfast is always eaten after the marriage, as if in obedience to the rule of not breaking the night’s fast before Communion. It may also be noticed, that the canon enjoining solemnization of marriage “during Divine Service” seems to point to the Holy Communion (which is frequently dis- tinguished as the special “ Divine Service” of the Church) as part of the ceremony. CHAP. V.] HOLY MATRIMONY. 149 so also is the 49th canon of the Church of Ireland [a.p. 1632], which is the same with the 102nd canon of 1603, except that it has this addition at the end: “ Neither in tle time of Lent, nor of any public fast, nor of the solemn festivities of the Nativity, Resurrection, and Ascension of Our Lord, or of the Descension of the Holy Ghost.” The practice of the Church of England before the Reformation is shown by the rubric of the Sarum Manuals, which prohibits marriages from Advent Sunday until the Octave of Epiphany, from Septuagesima until the Octave of Easter, and from Rogation Sunday until six days after Pentecost. That this rule was observed equally as much after the Reformation as before, in many places, is shown by the fact that an entry of the prohibited times was often made in the parish register, and that inquiries on the subject are found in many visitation articles. A Latin notice of this kind appears in the register-book of Dym- church, in Kent, dated 1630; a rhyming English one, of the same tenour, in that of St. Mary, Beverley, dated November 25th, 1641. In that of Wimbish, in Essex, there is one dated 1666, of which the following is a copy :— “The times when Marriages are not usually solemnized ; Advent Sunday eight dayes after Epiphany. From Septuagesima Sunday until eight dayes after Easter. Rogation Sunday Trinity Sunday.” A similar entry appears in the register-books of South Tiemfleet, in Essex, and of Hornby, in Yorkshire; and Sharpe, Archbishop of York, in a Charge of 1750, names the prohibited times as then observed. They will some- times also be found mentioned in old almanacks, as if the 150 HOLY MATRIMONY. [BOOK II. practice still continued during the last century. Although there is no modern canon of the Church of England re- specting these prohibited times, the consentient testimony of these various centuries will have great weight with those who would supply, by a voluntary obedience, the absence of a compulsory law, when the mind of the Church appears to be plain and clear. § 3. Obligation of the Clergyman to Solemnize the Marriage. Tt has never been quite strictly determined whether or not the clergyman, whose duty it would ordinarily be to marry any two persons, is. liable to an action of damages for not doing so, Lord Denman, however, said, in a case of an action for such refusal which came before him, that he was not prepared to. say that an action for damages “might not be maintained on a declaration raising a proper complaint of a public officer neglecting his public duty, to the temporal and, it might be, the very great damage, of an individual. Such a neglect of the duty of a clergyman may be actionable, if it be malicious, and without probable cause.” [Davis v. Black, 1 Queen’s Bench, 900.] There is, however, little doubt that a clergy- man so refusing could be proceeded against and punished in the ecclesiastical courts. But almost the only case likely to arise is that where one or both of the parties requiring to be married have been divorced from a husband or wife who is still living at the time of the demand. The Divorce Act allows a clergyman in this case to refuse to marry anyone who was divorced for his or her adultery, CHAP. V.] HOLY MATRIMONY. 151 but provides that if he shall so refuse, he shall permit any | other clergyman, entitled to officiate in the same diocese, to perform the ceremony in his church. [20 & 21 Vict. ch. 85, §§ 57, 58.] Upon the whole, it may be considered as probable that a reasonable refusal on the part of a clergyman would be respected by a court of law, but that an ill-considered or contentious refusal would subject him to punishment— either by recovery of damages in a civil court, or by suspension, in an ecclesiastical court, under the Church Discipline Act. § 4. The Form of Solemnization. The details of the ceremony belong, in general, rather to the province of ritual than of ecclesiastical law, but some of them are not without importance as regards the latter. It is essential that the ceremony should be performed im facie ecclesiee, The old rule of the canons is || rs (as has been already mentioned) that this object face of shall be accomplished by marrying during the Np tpt time of Divine Service. The rubric speaks of the persons to be married coming to church for that purpose “with their friends and neighbours.” The Marriage Act [4 Geo. IV., ch. 76,§ 28] requires, as a minimum of publicity, that “all marriages shall be solemnized in the presence of two or more credible witnesses, besides the minister who shall celebrate the same.” Although the statute does not order that these shall be “friends and neighbours” of the persons to be married, it is plain that the attendance of 152 HOLY MATRIMONY. [BOOK IT. some of these as witnesses is much more in accordance with the law of the Church than the pro formd impress- ment of the clerk and sexton, for the mere purpose of satisfying the minimum requirement of the Act of Parliament. The “body of the Church” is defined by the rubric as the place in which the marriage ceremony is Place of celebration, (2 begin. This clearly means some portion of the nave, and is a modern rendering of the ancient ante ostium ecclesic, or (as in the case of baptism) ad valvas ecclesie, the porch being anciently used for several rites.) “She was a worthy woman all hire live. Housbondes at the chirche dore she had five.” Chaucer’s Wife of Bath, Prol. 461, The “change of place” was objected to by the Puritans at the Savoy Conference; but the practice was justified by the bishops, apparently on the ground that only that part of the marriage ceremony ought properly to be celebrated at the altar which is associated with the Holy Communion: “They go to the Lord’s Table because the Communion is to follow.” [Cardw. Conf. 360.] Modern custom interprets this rubric as referring to the door or entrance-step of the chancel, but any con- venient portion of the nave equally satisfies the direction given as to the first portion of the service. The rubric * Printed copies of the Prohibited Degrees are occasionally found, having at the head a woodcut of the espousals being celebrated in the nave. They are “sold by T, Wilkins, 23 Aldermanbury,” and appear to belong to the end of the last century. But the custom has been handed down in some churches with unbroken tradition, CHAP. V.] HOLY. MATRIMONY. 153 subsequently provides for an orderly procession thence to the altar: “Then the minister or clerks, going to the Lord's Table, shall say or sing this psalm following,” after which “the man and woman kneeling before the Lord’s Tale,” the rest of the service follows. ]sefore the espousals begin—that is, before the mutual consent of the persons to be married is declared : Allegation by them—words are to be used by the priest of impedi- which are equivalent to a fourth publication of sane - banns: “Therefore, if any man can show any just cause why they may not lawfully be joined together, let him now speak, or else hereafter for ever hold his peace,” —a similar exhortation being given to the persons to be married. The rubric then enacts that, “if any man do allege and declare any impediment, why they may not be coupled together in matrimony, by God’s law, or the laws of this realm; and will be bound, and suffi- cient sureties with him, to the parties; or else put in a caution (to the full value of such charges as the persons to be married do thereby sustain) to prove his allegation: then the solemnization must be deferred, until such time as the truth be tried.” This rubric, taken from the Latin Office, seems never to have received a judicial interpreta- tion. On the one hand, it appears to stop the marriage only in case the objector submits to “be bound, and suffi- cient sureties with him, to the parties; or else put in a caution,” &c. On the other, the mere fact of a real im- pediment alleged by any apparently trustworthy person seems to put it out of the power of the clergyman to proceed with the marriage (whether the objector offers M 154 HOLY MATRIMONY. [BOOK II. security or not) until a legal investigation has taken place. Impediments have been alleged at this part of the service, and the marriage has been stopped in consequence, without any other formality ; but such a proceeding does not seem to meet the requirement of the rubric, nor to be just to the persons desiring to be married. The openly expressed consent of each party to marry Mutual the other is a very essential part of the mar- consent. yiage ceremony. Forced marriages have not uifrequently taken place, and although the viva voce assent of the man and woman is not a perfect security against them, since the assent itself may be extorted, yet it is the best security that can be taken; and it should always be strictly required by the clergyman, that it be given by each of them in an audible voice! The words in the English Marriage Office have been used in the same ver- nacular form for many ages; and are also found of equally ancient date, in the vernacular, in Continental Offices. Then follow the words of betrothal, which are an ampli- 2 ee fication of the mutual assent, and are also the ancient form. These words complete the espousals, but there is now no division between the two services, and that of the espousals runs on to that of the. * The ceremony of the civil marriage established by 6 & 7 Will. LV. ch. 85, consists of this mutual assent, preceded by a declaration that no impediment exists. It is as follows: “ Each of the Parties shall declare, ‘I do solemnly declare, That I know not of any lawful impediment, why I A. B. may not be joined in matrimony to C. D/ And each of the Parties shall say to the other, ‘I call upon these Persons here present to witness that I, A. B., do take thee, OC. D., to be my lawful wedded Wife [or Husband ].” cHap. V.] HOLY MATRIMONY. 155 actual marriage. The marriage itself is legally completed by declaration of the priest: “Forasmuch as Mand NV... T pronounce that they be man and wife together . . which is followed by the first benediction. The remaining portion of the service is intended to he associated with the celebration of the Holy yy, viage ” = Communion, “the minister or clerks going to Communion. the Lord’s table,” followed by the man and woman (who are then to kneel before it), and saying or singing one of the Psalms as an “Introit.” Until the revision of A.D. 1661, a rubric followed the last rubric: “Then shall begin the Communion, and after the Gospel shall be said a sermon, wherein ordinarily (so oft as there is any marriage) the office of a man and wife shall be declared according to Holy Scripture. Or, if there be no sermon, the minister shall read this that followeth.” This rubric was replaced by two new ones—the first in similar terms as regards the exhortation, but the second making it optional for the new-married persons to receive the Holy Communion either at the time of their marriage, or at the first opportunity afterwards. § 5. Registration of Marriages. The existing law for the registration of marriages is contained in 6 & 7 Will. IV. ch. 86, and 1 Vict. ch. 22. Ky these Acts it is enacted, “that the Registrar-General. shall furnish, or cause to be furnished, to the rector, vicar, or curate of every church and chapel in England wherein marriages may lawfully be solemnized,” duplicate register-books according to the form given in the Act. 156 HOLY MATRIMONY. [BOOK It. [6 & 7 Will. IV. ch. 86, §$30.] By the 3%st clause of the-above Act, the clergyman is required, “immediately after every office of matrimony solemnized by him,” to register the marriage in duplicate, according to the form given. Copies of such registers are to be given to the registrar every January, April, July, and October, certified and signed by the clergyman, who is to receive the sum ‘of sixpence for each entry in such copy, and is liable ‘to a penalty of ten pounds for neglect. [1 Vict. ch. 22, §27.] As soon as the register-books are full, one of them is to be sent to the registrar, the other remaining in the custody of the rector or vicar, to be kept with the registers of baptisms and burials. [6 & 7 Will. IV. ch. 86, § 33.] As to the punishment of any injury to or fraud in respect of marriage registers see page 66. § 6. Kees for Marriages. By a Constitution of Canterbury of A.D, 1222, it was enjoined that matrimony should not be hindered through nonpayment of any accustomed fee—a rule which formed part of the law of the Church that no sacrament should be denied for such a cause. The rubric directs that when the man to be married delivers the wedding-ring to the priest, he shall lay upon the book, with it, “the accustomed duty to the priest and clerk.” The ancient Latin rubric is, “Deinde ponat vir aurum, argentum, et annulum super scutum vel librum,” saying the words, “ With this rynge J] the wed, and this gold and silver I the geue., . .” Thus =. CHAP. V.] HOLY MATRIMONY. 157 the “duty to the priest and clerk” takes the place of thie. “tokens of espousal,” and it is possible that the substitution represents a custom of appropriating the gold and silver as the marriage-fee after it had done its symbolical duty. A modern decision of the Courts of Queen’s Bench anil Exchequer Chamber recognised the validity of custom as regards .a moderate fee for marriage, but ruled that a fee of ten shillings for the priest, and three shillings for the clerk, is an exorbitant sum. [Bryant v. Foot, Law Rep., 2 Queen’s,_ Bench, 161; 3 Queen’s Bench, 497 ; 36 Law Journal Rep Queen’s Bench, 63.] Under the Church Building Act [59 Geo. IIT. ch. 134, § 11], the Ecclesiastical Commissioners may fix a table of fees for any parish with the consent of the vestry and of the bishop, such fees being recoverable. Under the New Parishes Act [6 & 7 Vict. ch. 37, § 15], a similar table may be made for such parishes by the chancellor of the diocese. The arrangements as to marriage fees in divisions of parishes under the Church Building and New Parishes Acts are treated of later on [page 350], IV.—THE ECCLESIASTICAL RESULTS OF MARRIAGE, It has been a constant theory of ecclesiastical law, as well as of theology, that marriage celebrated according te the forms of the Church is ordinarily indissoluble. This theory is founded on the words adopted by Our Lord, “For this cause shall a man leave his father and mother, and cleave to his wife; and they twain shall be one flesk”* —to which He adds: “So then they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder.” [Mark x. 7—-9.] These latter words 158 HIOLY MATRIMONY. [BOOK II. are used in the Marriage Office in the sense that “God hath joined together” those who are united by the legiti- mate use of that office; and thus leave open the possibility of a “putting asunder” by the same authority which effected the union. But the words of the marriage-vow exclude any idea of such putting asunder, being, “I J. take thee V. to my wedded wife [or husband]... till death us do part,’—the previous words of espousal being similar, “so long as ye both shall live.” The idea of divorce, therefore, in the sense of a dissolu- tion of marriage, is not recognised by the Office for Holy Matrimony: and the only way in which it was recognised by ecclesiastical law previous to the Reformation, was in the form of a separation a mensd et thoro; or in the form of what was then, in the days of pre-contracts, a more frequent occurrence—a declaration of the nullity of a mar- riage, on account of some circumstance which had made it invalid and null from the beginning. After the Reformation the tendency of the civil courts was to recognise marriage as a civil contract only, and therefore as dissoluble ; and new ideas on the subject were so far extending, that had the Reformatio Legum come into force, adultery, desertion, and cruelty would have been declared to be sufficient causes for the total dissolution of marriage. j But the only kind of divorcee actually recognised by ecclesiastical law was separation a mensd@ et thoro, or for annulling pretended matrimony; and in the former case, 6 special provision was made, by the 107th canon of 1603 against the remarriage of either of the divorced persons. CHAP. V.] HOLY MATRIMONY. 159 This canon is as follows: “In all sentences pronounced only for divorce and separation a thoro et mensd, there shall be a caution and restraint inserted in the act of the said sentence, That the parties so separated shall live chastely and continently; neither shall they, during each other’s life, contract matrimony with any other person. And, for the better observation of this last clause, the said sentence of divorce shall not be pronounced until the party or parties requiring the same have given good and sufticient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition.” Divorce a vineulo is still, therefore, unrecognised by the law of the Church ; and the marriage union, when validly effected, is still recognised as lasting throughout the joint life of the persons married. In the year 1857, Parliament took all questions con- nected with the validity of marriage and separation a mensd et thoro out of the hands of the Ecclesiastical Courts, erected a new Court for the trial of Matrimonial Causes, and established entire dissolution of marriage, or divorce a vinculo, as part of our English Marriage Law. The persons so divorced a vinculo are permitted to marry others during the lifetime of the divorced wife or husband. It may be questioned, however, whether this legislation took any other view of marriage than that which regards it as a civil contract; and it is certain that it did not in any way affect the terms of the marriage-vow in the Office for Holy Matrimony. [| 160 | Chapter VI. THE CHURCHING OF WOMEN. HE “Thanksgiving of Women after Childbirth, com- monly called the Churching of Women,” is translated from the ancient Latin Office of the English Church— the “Ordo ad purificandam mulerem post partum, ante ostium Ecclesie.’ The only law respecting it is that of the rubric, and this is very indefinite in its directions. There is much uncertainty, indeed, whether or not the wrat service is intended for all women who have womenare borne children, or only for those who have = ee borne them in lawful matrimony. Baron Service. = Alderson expressed a strong opinion, in the cease of Reg. v. Benson, in July, 1856, that every woman who has been delivered of a child has a right to be churched, and ought to give thanks to God for her safe | deliverance. This right has, however, its limitations, for it has never been the common custom of the Church of England since the Reformation, and probably not before, to admit unmarried women to this privilege without some act declaring their penitence. In Archbishop Grindal’s ‘Injunctions for the Province of York,’ issued in the year 1571, there is one directing CHAP. VL] «THE CHURCHING OF WOMEN. 161 the clergy: “That they should not church any unmarried woman, which had been gotten with child out of lawful matrimony, except it were upon some Sunday or holy- day; and except either she, before childbed, had done penance, or at her churching did acknowledge her fault before the congregation.” [Cardw. Doe. Ann. i. 335.] In the same archbishop’s ‘Articles of Visitation for the Province of Canterbury’ [A.D. 1576], there is also the following inquiry: “Whether your parson, vicar, curate, minister, or reader, do church any unmarried woman which hath been gotten with child out of lawful marri- age, and say for her the Form of Thanksgiving of Women after Childbirth, except such an unmarried woman have either before her childbirth done due penance for her fault to the satisfaction of the congregation, or at her coming to give thanks do openly acknowledge her fault before the congregation, at the appointment of the minister, according to order prescribed to the said minister by the ordinary or his deputy; the same churching to be had always on some Sunday or holy-day, and upon none other day ?” [Zbid. 404.] Similar inquiries are also to be found in the visitation articles of most of the dioceses of England down to the time of the Civil War. At the Savoy Conference, the Puritans gave in, as one of their exceptions to the Churching Service: “It may fall out that a woman may come to give thanks for a child born in adultery or fornication, and therefore we desire that something may be required of her, by way of profession of her humiliation, as well as of her thanks- giving.” [Cardw. Conf. 334.] To this the bishops replied; 162 THE CHURCHING OF WOMEN. [BOOK Il. “Tf the woman be such as is here mentioned, she is to do her penance before she is churched.” [Zbdid. 362.] The Puritans objected, that this involved a formal process in the Ecclesiastical Court, which was not often practicable, “not to one of a multitude; and what shall the minister do with all the rest?” [Grand Debate between Bishops and Presbyterians, p. 147.] Nothing, however, was formally enjoined, and since that time the reception or rejection of such women has been left to the judgment of the parish priest. In Archdeacon Hale’s Precedents there are several presentations of clergymen for refusing to Th i 1 © woman church women who did not wear veils or ker- to be “decently chiefs when they came to their thanksgivings, apparelled.” and of women for coming without them: “The said Tabitha did not come to be churched in a vaile” [p. 259]. “Presentatur, for that she, being admonished that when she came to church to give God thanks for her safe deliverance in childbirth, that she should come with such ornaments as other honest women usually have done, she did not, but coming in her hat, and a quarter about her neck, sat down in her seat, where she could not be descried, nor seen unto what the thanksgiving was read” [p. 237]. In an inventory of church-goods belong- ing to St. Benet’s, Gracechurch, in 1560, there is “a churching-cloth, fringed, white damask,” from which it would seem that the veil was in some cases provided by the Church. Elborow speaks of the veil being commonly used in the latter half of the seventeenth century; and Bishop Gibson [Cod. xviii. 12] records a case, in which the CHAP. VI.] THE CHURCHING OF WOMEN. 163 judges referred to the Archbishop of Canterbury on the subject, who called together several bishops, and taking their opinion the judges decided that the custom of the Church of England required the veil to be worn. [2 Rolle, Abridg. 221.] And even if the use of the veil be con- sidered obsolete, the rubric is still binding as to decency of apparel, and a modest covering for the head must undoubtedly be included under the term. As the title of the Latin office shows, the ancient place for the churching was the church-door, piace for “ante ostium ecclesie;” the church-porch being Churchine. then used for several ceremonies, as at the first part of Baptism and Marriage. In 1549 this was altered to the choir-door; and “nigh unto the table” was directed in 1552. The tenth of Bishop Wren’s ‘Orders and Injunc- tions for the Diocese of Norwich, in 1636, enjoins: “That women to be churched come and kneel at a side near the communion-table without the rail, being veiled according to the custom, and not covered with a hat; or otherwise not to be churched, but presented at the next generals by the minister, or churchwardens, or any of them.” In Bishop Brian Duppa’s Articles of Visitation of 1638, there is a similar one: “Doth he go into the chancel, the woman also repairing thither, kneeling as near the com- munion-table as may be; and if there be a Communion, doth she communicate, in acknowledgment of the great blessing received by her safe delivery? Doth the woman who is to be churched use the accustomed habit in such cases with a white veil or kerchief upon her head?” The present rubric gives no directions, further than that the 164 THE CHURCHING OF WOMEN. | [BOOK 11. woman “shall kneel down in some convenient place as hath been accustomed, or as the ordinary shall direct.” It is evident that the Churching of Women is intended Timeor to be a service in facve ecclesiw, and the con- churching. ¢]yding rubric directs that “if there be a Com- munion, it is convenient that she receive the Holy Com- munion.” But the celebration of these occasional and personal offices of the Church in the time of Divine Service, at least on Sundays, is probably a much more public form of celebration in facie ecclesie than was contemplated in ancient times; and a churching in the presence of the priest and a few attendants is quite within the spirit of the law, while it is much more . suitable to the circumstances of the woman than a very public ceremony would be. * It may be observed, in conclusion, that there is no legal By apriest justification for the performance of this office only. by a deacon, a priest being expressly named three times in the rubric, { 165 J Chapter VIL THE VISITATION OF THE SICK, geo Offices are provided in the Prayer Book for the use of the clergy in visiting the sick, and there is also a canon on the subject. These cannot be left un- noticed in a work like the present, but it must be observed beforehand, that the pastoral diligence of the clergy in modern days goes far in advance of their legal obligations. The 67th canon of 1603 directs, that “when any person is dangerously sick in any parish, the minister The clergy- or curate, having knowledge thereof, shall resort man to visit unto him or her (if the disease be not known, es eae or probably suspected to be infectious), to in- LS struct and comfort them in their distress, according to the order of the Communion Book, if he be no preacher; or if he be a preacher, then as he shall think most needful and convenient.” The first rubric of the Office for the Visitation of the Sick also directs that, “ when any person is sick, notice shall be given thereof to the minister of the parish ...” In what manner the “knowledge thereof” is to be obtained is in some degree illustrated by a passage in the Ordination Service for Deacons, where it is stated 166 THE VISITATION OF THE SICK. [BGK It. to be part of their duty to search out the sick and poor in the parish in which they are appointed to minister, and to give notice of such cases to the incumbent: “And furthermore it is his office, where provision is so made, to search for the sick, poor, and impotent people of the parish, to intimate their estates, names, and places where they dwell unto the curate, that by his exhortation they may be relieved with the alms of the parishioners or others. Will you do this gladly and willingly?” This question, and the first parenthesis in the canon (which speaks, in general terms, of the knowledge by the minister of a case of sickness, imply that he is expected to do something more than merely visit sick people who send for him. Whether he become acquainted with the case directly or indirectly, he is bound to visit, and even, if circumstances permit, he is to search for, or, at any rate, cause to be sought for, the sick and impotent, and to act up to the spirit of the ancient rules of the Church-——“ Ut quoties fuerint accersiti, celeriter accedant et hilariter ad eerotos” [Canon of A.D, 1222; Gibs. Cod. xxiii. 1]; and, as the Council of Milan directs, “ Etiamsi non vocati invisant.” Two rubrics at the end of the Office for the Communion Pt of the Sick, aud a part of the 67th canon, in- infectious dicate that the clergyman is supposed (though eee tanot absolutely required) to face the danger of infection, while, at the same time, he is required to minimize the danger as regards both himself and others. The canon directs the minister to resort to any sick person “(if the disease be not known, or probably CHAP. VII.] LAE VISITATION OF THE SICK. 167 suspected to be infectious),” and the parenthesis appears to have been inserted for the purpose of leaving the minister to his own conscience in the excepted cases. But the rubric takes a stricter line, stating that “in the time of the plague, sweat, or such other like contagious times of sickness or diseases, when none of the parish or neigh- bours can be gotten to communicate with the sick in their houses, for fear of the infection, upon special request of the diseased, the minister may only communicate with him ;” and this plainly supposes it to be the clergyman’s duty to go into danger on some occasions, when all other persons have fled from it. But a previous rubric also enjoins that “at the’ time of the distribution of the Holy Sacrament, the priest shall first receive the Communion himself, and after minister unto them that are appointed to communicate with the sick, and, last of all, to the sick ? person ;” and this appears to be a provision avainst contagion at least, in the case of the healthy communi- cants, there being no other reason why the sick person should not communicate immediately after the priest. Both the canon and the rubric contemplate the use of the Visitation Office, the clergyman being directed in the first “to instruct and comfort ane them in their distress, according to the order cletsyman’s visitation. of the Communion Book ;” and the first rubric directing that when notice of a person’s sickness has been given, the minister, ‘coming into the sick person’s house, shall say” the office then following in continuous order. But the canon has the express limitation following the above words, “if he be no preacher ;” and it is added, “if LHE VISITATION OF JHE SICK, 168 [BOOK Il. he be a preacher, then as he shall think most needful and convenient.” Preachers’ licences are not now in general use; but, if it be considered that the office of preaching is not practically limited, in the present day, to any part of the clergy, then the canon gives a discretion to all of them as to the manner in which they shall instruct and comfort sick persons in their distress—whether by the use of the office in its integrity, by an adaptation of it, or by other forms—extempore, written, or printed. There is one portion of the rubric which requires some detailed notice—namely, the direction respect- ing Confession. This rubric is (like the rest of the office) substantially taken from the pre-Reformation “Ordo ad visitandum infirmum.” In that office, after other words of exhortation, the priest was ordered to say: “Si ergo vis mundum cor et conscientiam sanam habere, .’—the words doubtless Confession. peccata tua universa confitere . . being said in English, as some other parts of the office were. In the Prayer Book of 1549 the exact words to be said by the priest were not introduced, but a rubric was printed, which has undergone the following transitions :— 1549. Here shall the sick person make a special con- fession if he feel his con- science troubled with any weighty matter, 1552, Here shall the sick person make a special con- fession if he feel his con- science troubled with any weighty matter. 1661. Here shall the sick person be moved to make a special con- fession of his sins, if he feel his con- science troubled with any weighty matter, CHAP. Vi.) THE VISITATION OF THE SICK. 169 After which contes- After which confes- After which confes- sion the Priest shall sion the Priest shall sion the Priest shall absolve him absolve him absolve him (Gf he humbly and heartily desire it) after this form : after this sort. after this sort, and the same form of absolution shall be used in all private confessions. It is plain that the kind of confession named in this rubric is that which is popularly known as “auricular” confession; for although privacy is not enjoined, it is quite certain that it would be sought both by priest and penitent. We may also be sure that without it the confession would most likely be of a very general instead of a “special” character. That it is also intended to be private or “auricular”—spoken to the ear of the priest alone—is shown by the original form of the rubric in 1549, which speaks of “all private confessions” with an evidently inclusive sense—this here enjoined being one of the kind included. It is also evident that the introduction of the words “be moved to” into the later form of the rubric imposes a distinct duty on the clergy, though a corresponding liberty is given by them to the sick man. The general law of the Church of England on the subject of Confession is set forth in the next chapter [pages 173-176]; it is not necessary here, therefore, to add more than that what is there said on secrecy applies with equal force to confessions received from sick or dying persons, N 170 THE VISITATION OF THE SICK. — [BOOK It. In the first English Prayer Book (that of 1549), the re rubric provided a peculiar custom of reserva- Communion tion of the Holy Communion for administra- Boe ution star sik persons: “If the same day there be a celebration of the Holy Communion in the church, then shall the priest reserve (at the open Communion) so much of the Sacrament of the Body and Blood as shall serve the sick person, and so many as shall communicate with him (@f there be any); and so soon as he con- veniently may, after the open Communion ended in the church, shall go and minister the same, first to those that are appointed to communicate with the sick (if there be any), and last of all to the sick person himself. But before the curate distribute the Holy Communion, the appointed general confession must be made in the name of the communicants, the curate adding the absolution with the comfortable words of Scripture following in the open Communion; and after the Communion ended, the Collect, ‘Almighty and ever living God, we most heartily thank thec, &c. But if the day be not appointed for the open Communion in the church, then (upon convenient warning given) the curate shall come and visit the sick person afore noon. And having a convenient place,” &e. . The same practice was also provided for in another way by the second rubric at the end of the same offices+—“And if there be more sick persons to be visited the same day that the curate doth celebrate in any sick man’s house, then shall the curate (there) reserve so much of the Sacrament of the Body and Blood as shall serve the other sick persons, and such as be appointed to communicate CHAPRVILN 2a VISITATION OFSTHE SICK. 171 with them (if there be any), and shall immediately carry it and minister it unto them.” It will thus be seen that the original form of our office provided for reservation in ordinary cases, and for private celebration in exceptional ones. In 1552 both the above rubrics were dropped, and private celebration alone pro- vided for—the present Collect, Epistle, and Gospel being then appointed. The rubric respecting reservation re- appears, however, eight years later, in the Latin Prayer Book of Queen Elizabeth’s reign—from which fact it may be reasonably concluded that the practice did not alto- gether cease when the rubric dropped out of the English Prayer Book in 1552. The same conclusion may be drawn from the continuance of the practice in the Scottish Church, and by the Non-jurors. It would thus appear that the words of the 28th Article of Religion, “The Sacrament of the Lord’s Supper was not by Christ’s ordinance reserved,” were not then under- stood as forbidding reservation. The practice of reserva- tion doubtless died out gradually; that of celebration in the sick person’s room has since taken its place almost universally in its stead, At the same time that the private celebration has been adopted more freely than in ancient days, restriction has been laid upon a too free use of it by Canon 71, which enjoins that, “No minister shall . . . administer the Holy Communion, in any private house, except it be in times of necessity, when any, being either so impotent as he cannot go to the church, or very dangerously sick, are desirous to be partakers of the Sacrament, upon 172 THE VISITATION OF THE SICK. | (BOOK I: pain of suspension for the first offence, and excommunica- tion for the second ;” while the rubric directs, “If the sick person be not able to come to the church, and yet is desirous to receive the Communion in his house, then he must give timely notice,” &c. Thus, considerable limita- tion is indicated with respect to private celebrations of the Holy Communion; and it is very desirable that this limitation should be practically acted upon in the spirit of the canon, as the celebration of the Holy Communion in a room used for ordinary living, and on a table used for meals or other domestic purposes, is a practice which it is difficult to guard from irreverence, and from dishonour towards so holy a sacrament. Yet it must be remembered that the Primitive Church would not refuse Communion to any dying person. [Nicene Canons, canon xiii.] The Unction of the Sick was provided for in the first Extreme Prayer Book, by the rubric: “If the sick person Unction. desire to be anointed, then shall the priest anoint him upon the forehead or breast only, making the sign of the cross, saying thus, As with this visible oil thy body is outwardly anointed,” &c., concluding with the 13th Psalm. This office was omitted in the revision of 1552, and has not been restored. No censure or con- demnation of the practice, however, accompanied the omission, nor has any such ever been made by the Church of England. But the 25th Article of Religion says that Extreme Unction is not to be accounted for a sacrament of the Gospel, not having the like nature of the sacraments of Baptism and the Lord’s Supper, because . it has not any visible sign or ceremony ordained of God. L 373 ] Chapter VIIT. THE PRACTICE OF CONFESSION. OR some generations the practice of Confession had fallen so generally into disuse in the Church of England, that it came to be considered by many persons as unrecognised in our post-Reformation system, and even as unlawful. There is, however, a distinct recognition of it in the Prayer Book, the Canons of 1603, and the Homilies ; it has been continuously in use by wise, ortho- dox, and holy Anglican clergy and laity, and there is no law whatever against it. There are, as may be supposed, in the old canon law of the Church of England, many references to ; Lye Injunctions the duties of the clergy as regards the receiving of the Church of England law on the subject to which these can be respecting Confession, of confessions: and there being little statute repugnant, they must be considered as still to a certain extent in force. Setting aside these, however, together with the statements contained in the“ Institution’ and the ‘Erudition of a Christian Man,’ there are still four specific references to the practice in more recent documents. One of these has been already dealt with in the preceding section—viz., the rubric which enjoins that 174 THE PRACTICE OF CONFESSION. [Book I. sick persons shall be moved to make special confessions [p. 168]. Another is found at the close of the familiar exhorta- tion directed to be used by the minister when giving warning of the celebration of the Holy Communion: «“ And because it is requisite, that no man should come to the Holy Communion, but with a full trust in God’s mercy, and with a quiet conscience; therefore if there be any of you, who by this means cannot quiet his own conscience herein, but requireth further comfort or counsel, let him come to me, or to some other discreet and learned Minister of God’s Word, and open his grief; that by the ministry of God’s Holy Word he may receive the benefit of absolution, together with ghostly counsel and advice, to the quieting of his conscience, and avoiding of all scruple and doubtfulness.” In the original form of this exhortation (1549), there was a further period, of about equal length with the above paragraph, which seems to indicate that an apologetic tone was deemed expedient at the earlier period of the Reformation, for which there was no necessity afterwards. This was as follows: “Requiring such as shall be satisfied with a general confession, not to be offended with them that do use, to their further satisfying, the auricular and secret confession to the priest; nor those also which think needful or convenient, for the quietness of their own consciences, particularly to open their sins to the priest, to be offended with them that are satisfied with their humble confession to God, and the general confession to the Church. But in all things to follow and keep the rule of charity, and CHAP. VIIL |§ 2 Hie PRACTICE OF CONFESSION. 175 every man to be satisfied with his own conscience, not judging other men’s minds or consciences; whereas he hath no warrant of God's Word to the same.” A third reference to the subject is to be found in the second part of the Homily of Repentance, where it is said: “Tf any do find themselves troubled in conscience, they may repair to their learned curate or pastor, or to some other godly learned man, and show the trouble and doubt of their conscience to them, that they may receive at their hand the comfortable salve of God’s Word.” The latter expression was not commonly used, at the time when the Homiles were written, for the Holy Bible, but was cus- tomarily applied to any authoritative form used in the name and by the authority of God, and especially for the Word of Absolution as ordained by Our Lord, and so re- ferred to in the Form of Absolution used in the Visitation of the Sick. There is also, fourthly, the 113th canon of 1603, which enjoins secrecy on the minister in respect to all confessions confided to him: “ Provided always, that if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him, we do not any way bind the said minister by this our Constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known, to any person whatsoever, any crime or offence so committed to his trust and secrecy (except they be such crimes as, by the laws of this realm, his own life may be called into question for concealing the same), under pain of irregularity.” This canon is, of 176 THE PRACTICE OF CONFESSION. [Book It. course, in the interest of the person making the confession, not in that of the priest who receives it: and the force of it may be better understood by remembering that “ irregu- larity” meant deprivation, accompanied by incapacity for taking any benefice whatever, while under its operation. From these authorities, it will be seen that the practice of private confession is clearly recognised as having a place in the system of the Church of England. The 113th canon of 1603 is binding upon the clergy, and could no doubt be enforced against them, though not forming part of the statute law. The rubric in the Office for the Visitation of the Sick, and the exhortation at Communion are, however, part of the statute law [14 Car. II. ch. 4], as well as of the Church formularies; and as such they have an additional force, against which there is no statutory counterpoise whatever. Nor is there any judicial decision which gives any other interpretation of the law—that given by the Privy Council in Poole’s case [Poole v. Bp. Lond. 14 Moore, P. C. 262] not bearing on the subject, although the use of Confession had given rise to the appeal. As to the frequency or habitual use of Confession, there is no distinct utterance of. modern English law; and no doubt the responsibility of determining it is left to the discretion of spiritual guides. But a constitution of Canterbury, passed A.D. 1378, directs “ Confessiones ter in anno audiantur;” and there are several such constitutions, which order that Confession shall never be denied to prisoners, or to those who are at the point of death. The “Form of Prayer for the Visita- tion of Prisoners” established by the Irish Church, under Royal licence, at the Synod of Dublin in 1711, directs the minister to exhort the criminal under sentence of death “to a particular confession of the sin for which he is condemned,” and after confession to absolve him. Letra | Chapter IX. THE BURIAL OF THE DEAD. Ril OMPARI LED PETSONS GEUZON SS 3. SUIEIAES? Ca ctl ee aT OL § 2. Eacommunicated Per- § 4. Obligation of the Clergy- SO70S: a cant er eee se OO man tn other Cases . 184 JNE a general rule, all persons are, by the common law, entitled to Christian burial} in the burial-place belonging to the church of the parish within whose boundaries they die, and not elsewhere? By General 48 Geo. III. ch. 75, this right is extended suieas to to the bodies of all persons “cast on shore Tight of from the sea,® in cases of wreck, or otherwise.” * Every person dying in this country, with certain exceptions, is entitled to Christian burial, and an executor ought not, in order to gratify his own fancy, without the deceased’s sanction, to cremate the body of his testator. [L.R. 1892, P. 393.] 2 But no claim to bury in a particular part of the churchyard can be maintained. The Court of Queen’s Bench has emphatically refused to recognise any such right. One Judge said—“ We cannot grant a mandamus to bury a corpse in a particular part of the churchyard. The incumbent has a right to exercise a discretion on this subject. If he had refused altogether to bury the corpse, we could have compelled him.” Another Judge said—“ The clergyman is bound by law to bury the corpses of parishioners in the churchyard, but he is not bound to bury in any particular part of the churchyard, and if he is asked to do that which by law he is not bound to do, he may refuse except upon conditions. We cannot therefore compel the burial of the corpse in the vault.” 3 And now [by 49 Vict. ch. 20] to bodies found in or cast on shore from any tidal or navigable waters. 178 LHE BURIAL VOL, THESDEAD; [BOOK II. It is also a reasonable inference that the same right extends, further, to the bodies of persons discovered in any parish, but the place of whose death is unknown. By 28 and 29 Vict. c. 79, § 10, also, “ For the purposes of the burial of any poor person dying in the workhouse of any union, such workhouse shall be considered as situated in the parish in the union where such poor person resided last, previously to his removal to the workhouse.” — This right includes that of being buried according to the customs of the Church of Eneland, as set According toChurch forth in “The Order for the Burial of the ert ero Dead,” contained in the Book of Common Prayer. The only limitations of this general rule which are known to the law are those stated in the first rubric of the Burial Office. ‘Here is to be noted, that the Office ensuing is not to be used for any that die unbaptized, or excommunicate, or have laid violent hands upon them- selves,” And a clergyman cannot safely base a refusal to bury on his own unsupported opinion ; eg. that the deceased met his death by walking into a ditch while intoxicated. [Cooper v. Dodd, 2 Roberts, Hecl. Rep. 270.] The three limitations above noticed are, however, of great importance, and require consideration in some detail. § 1. Unbaptized Persons. The exception of “any that die unbaptized” must be sat taken in its strictest sense: that is, for those strictly. of whom it is not only believed, but of whom it is certain, that they have died unbaptized. GHAPHIX.| ZA BURIAL OF. THE DEAD. 179 In the great majority of cases, when adult persons are brought to burial, no evidence on the subject is Becton ae attainable by the responsible clergyman, either baorenha? Aye one way or the other: and even if it were taken for attainable, there is no obligation on the part of iret any one connected with the deceased to give it. In rare cases it may be within the knowledge of the clergyman that the deceased person, from his own sectarian scruples, declined to be baptized; or that he belonged to a pro- fessedly Christian community which repudiates Christian baptism; or that he had been a Jew, Mahometan, Bud- dhist, or other heathen, from his birth to his death: and in such cases the law is clear, that the Burial Office is not to be used. But it is an ancient rule of the Church, that while conditional baptism should be administered to a living person of whom it is uncertain whether or not he has been baptized previously—in the case of deceased persons, in a Christian country, their baptism is to be taken for granted unless there is proof to the contrary. In the case of infants and young children, the clergy- man of the parish is much more likely to know ae whether or not baptism has been administered ; young and while he may ordinarily assume that an feats adult has been baptized, and need make no inquiry (ex- cept under special circumstances), he may also ordinarily assume that an infant under the usual age when infants are brought to baptism has not been baptized, and is fully justified in making careful inquiry on the subject. It need hardly be added, that lay-baptism (whether by professed laymen, or by Dissenting preachers) entitles a 180 THE BURIAL OF THE DEAD, [BOOK II. person to the use of the Burial Office as much as baptism by a clergyman. The question was very unnecessarily carried into court in two cases (Kemp v. Wickes and Mastin v. Escott) some years ago [3 Phill. 264, 2 Curt. 692, 4 Moore, P. C. 104]; but the validity of lay-baptism was then definitively ruled, as is shown at page 47. In respect to this limitation of the general right to Christian burial, it is plain, therefore, that the cases will be very few in which it needs to be enforced in a Christian country. At the same time it is also clear, in the words of Archbishop Longley, “that the Service of the Church of England for the Burial of the Dead is intended for those who have been made members of the Church of Christ by baptism, and that to use that service over the unbaptized would be an anomalous and irregular proceeding on the part of a minister of the Church of England.” § 2. Excommunicated Persons, In the 68th canon of 1603, this limitation appears in the words, “except the party deceased were denounced excommunicated majort excommunicatione, for some grievous and notorious crime, and no man able to testify of his repentance.” The rubric dates from a.b. 1661, but it does not in any way lessen the force of the canon; and consequently the latter must be taken as a recognised interpretation of the former already existing when the rubric was framed, and ruling the sense of the word | “excommunicate” as there used. It is clear that sentence * Letter to a Unitarian preacher at Tenderden, May 20th, 1865, CHAP, 1X%.] THE BURIAL OF THE. DEAD. 181 of excommunication must have been passed to render the party deceased “denounced excommunicated majort ea- communicatione.” It is also important to remark, that even in the case of the greater excommunication, a saving clause is still added, “and no man able to testify of his repentance.” A formal absolution before death, by the authority which has passed the sentence of ex- communication, is not, therefore, of absolute necessity to admit the use of the Office; an opening being left for the exercise of the charity of the Church towards even one excommunicated from its fold, if his repentance before death can be credibly shown to have taken place. While discipline is so little exercised as at present, there is seldom any occasion for taking this part of the rubric into consideration ; but it is possible that a revival of discipline may take place, to the extent, at least, of excommunicating open and notorious evil livers, when it might sometimes become necessary to decide whether this charity of the Church could be exercised or not. § 3. Sudcides. The part of the rubric which forbids the Burial Service to be used over any that “have laid violent hands upon themselves” is, unfortunately, that which comes most frequently before the clergy, and its interpretation is not unattended with difficulty. The rule itself is of high antiquity, and had its counterpart even in the customs of the Jews and the heathen [Joseph. De bello Judaic. III. vill. 5; Aristot. Ethic. Nichom. v.; Plinii Hist. Nat, xxxvi. 182 THE BURIAL OF. THE DEAD. [BOOK IL 15]; and it is not surprising to find it among the laws relating to the use of a Christian service of hope, when it is associated with a person who has done his best to place himself out of the reach of hope by an act of murder which has left him no time for repentance. But by the common law of the land suicides are divided . into two classes—those who have committed felony by a wilful murder of themselves, and those who have killed themselves while in a state of insanity. The first are held fully responsible for the consequences of their act; formerly their bodies were to be privately buried in a churchyard or other burial ground between the hours of nine and twelve at night. [4 Geo. IV. ch. 52.]!| Now by 45 & 46 Vict. ch. 19 they are to be interred in any of the ways authorised by the Burial Laws Amendment Act, 1880, but without any of the rites of Christian burial. The second are considered to be in no degree responsible for their act, and the law does not impose any penal con- sequences upon it. Christian charity requires that some distinction should be made, and such a distinction was implied, at least, by the ancient canon on the subject. Thus the Council of Bracara, or Braga, in Spain [4.D. 563], enjoins: “ Concern- ing those who by any faulé inflict death on themselves, let there be no commemoration of them in the Oblation. . . . Let it be enjoined that those who kill themselves by sword, poison, precipice, or halter, or by any other means bring violent death upon themselves, shall not have a * This Act was passed simply to abolish the custom of burying in cross-roads with a stake driven through the body. SHAP IX, le Mab Ona wOle 1 aE DEAT). 183 memorial made of them in the Oblation, nor shall their bodies be carried with psalms to burial.” This canon was adopted among the Excerpts of Egbert in a.p. 740, it is substantially repeated among some Penitential Canons of the Church of England in a.p. 963, and it expresses the general principle of the canon law on the subject. This principle certainly. indicates, that a distinction should be made between those who “by any fault” cause their own deaths, and those who do so when they are so far de- prived of reason as not to be responsible in the sense of doing it by “any fault,” wilfully and consciously. And the rubric being thus to be interpreted by a law of charity, the responsibility of deciding in what cases exceptions shall be made to its injunction is, by the nature of the case, thrown upon the clergyman who has cure of souls in the parish where the suicide is to be buried, In coming to this decision, the verdict of the coroner's jury should have respectful attention, though it is not to be considered as an invariable law for the clergyman. He will of course remember that, however unsatisfactory such a tribunal may be, it is the only tribunal before which the question is tried at all; and that any opinion which he personally may form must be formed, as a rule, upon loose conversation, often repeated through many * The “Coroner’s Warrant” for the burial of a body over which an inquest has been held, is simply a discharge of the body from the custody of the Crown. In ordinary cases it is unconditional, and imposes no obligation of any kind as to interment. 184 THE BURIAL .OF THE DEAD. [BOOK It mouths, and always given without the sanction or solemnity of an oath, with a very indifferent and careless sense of responsibility in the speaker, and without any sifting or cross-examination. If, however, after giving full weight to all these circumstances, the clergyman should feel convinced beyond doubt that there was no such insanity as to deprive the suicide of ordinary moral responsibility, then he is to remember—(1) that he is a “steward of the mysteries of God,” who has no right to misapply the blessings given him to dispense; and (2) that the scandal, and encouragement to suicide, which result from a too easy compliance, are in themselves great evils, which it is his duty, when it is within his power, to prevent. § 4. The obligation of the Clergyman in other Cases, With the above limitations, and subject to the qualification now given by section 13 of 43 & 44 Vict. c. 41 [page 185], the rector or vicar of a parish is bound to say the Burial Service in its integrity—either personally, or by a sufficient deputy—over every person dying, or found dead, in his parish. This obligation is expressed in the 68th canon of 1603, which is, so far as relates to burials, as follows: “No minister shall refuse or delay to bury any corpse that is brought to the church or churchyard, convenient warning being given him thereof before, in such manner and form as is prescribed in the said Book of Common Prayer. And if he shall refuse to bury the ‘corpse’ (except the party deceased were denounced excommunicated, majoré excommunicatione, for some grievous and notorious crime, CHAP. Ix.] THE BURIAL OF THE DEAD. 185 and no man able to testify of his repentance), he shall be suspended by the bishop of the diocese from his ministry by the space of three months.” This canon thus imposes the penalty of three months’ suspension for refusal to bury (though not for a Pade delay), but requires “convenient warning” to to use the be given, which may reasonably be interpreted set se to mean a notice given at least the day before. Till the passing of the recent Burial Laws Amendment Act, no person could be buried in the churchyard without the full Burial Service being performed. In the words of Sir John Nicholl in Kemp v. Wickes [3 Phill. Rep. 295], “Our Church knows no such indecency.” Now, however, by this Act [43 and 44 Vict. ch. 41], at the same time that provision has been made for allowing Dissenters to bury in the churchyards of the Church [see page 320] and for enabling clergy, if any such permission were required, to bury in an unconsecrated ground, it is also provided by section 13 as follows: “From and after the passing of this Act, it shall be lawful for any minister in holy orders of the Church of England authorised to perform the burial service, in any case where the Office for the burial of the dead according , to the rites of the Church of England may not be used, and in any other case at the request of the relative, friend, or legal representative having the charge of or being re- sponsible for the burial of the deceased, to use at the burial such service, consisting of prayers taken from the Book of ‘Common Prayer and portions of Holy Scripture, as may be prescribed or approved of by the Ordinary, without ©) 186 PALE GBORIALLOF OED iA 2. [BOOK Il. being subject to any ecclesiastical or other censure or penalty.” At the Savoy Conference of a.p. 1661, the Puritans objected to the words—“ that when we depart this life we may rest in Him, as our hope is this our brother doth.” Their objection was, that “these words cannot be used with respect to those persons who have not by their actual repentance given any ground for the hope of their blessed estate.” To this objection the Bishops answered: “ We see not why these words may not be said of any person we dare not say is damned, and it were a breach of charity to say so even of those whose repentance we do not see; for whether they do not inwardly and heartily repent, even at the last act, who knows? And that God will not even then pardon them upon such repentance, who dares say ? It is better to be charitable and hope the best, than rashly to condemn.” Before any burial takes place, the clergyman should erie have a certificate from the registrar, stating that Certificate the death of the deceased person has been duly lite registered ;' or else he should have the Coroner’s order or warrant. If this certificate or order is not de- livered at the time appointed for the funeral, the clergyman cannot refuse to bury the corpse, but must forthwith give notice thereof in writing to the registrar. Omission to give such notice within seven days involves a penalty not exceeding ten pounds. Children are not to be buried as * For this registration of death, the registrar needs (1) a medical certificate stating the cause of death, and (2) the personal testimony of some one who was actually present at the time of death, CHAPAIXN« LHL, BURIAL@OR LHE DEAD, 187 still-born, without a medical certificate, or a signed declar- ation from some one who could give personal testimony that the child was still-born and that no medical man was present at the birth, or a Coroner’s order. The penalty is one not exceeding ten pounds. [37 & 38 Vict. ch. 88 § 18.] Registration of the burial in the church register is ordered by the 70th canon of 1603. As to the punishment of any injury to or fraud in respect of burial registers see page 66. The registration of the burials of Nonconformists, performed under the new Act (43 and 44 Vict. ch. 41) in churchyards, is compulsory upon the incumbent. This point came up for argument in the case of Regina v. Hall [June 20, 1881], when the Queen’s Bench Division so decided. No body having been once placed in consecrated ground can be moved without a faculty, nor even with a faculty to unconsecrated ground [Rector v. Parishioners of St. Michaels, L.R. 1893, P. 244], and an Order in Council under the Burials Act, 1857, sec. 23, will not justify such removal. Where such an Order has been made directing the churchwardens to remove remains buried beneath a church to some other consecrated burial ground, the proper course is for the churchwardens to apply for a faculty authorizing such removal. [Zdzd.] [2318844 Book IT. THE PAROCHIAL CLERGY. Chapter I. HOLY ORDERS, § 1. Preparation for Dea- § 3. Preparation for Priest's COM S NITAELS we ee LOZ Orders Toei ened § 2, Ordination . to the | § 4.Ordination. to . the Diaconate Aerio e | PyieSih00d se. a 2h HE law of the Church of England respecting minis- ~~ terial capacity is very strict, none being accounted to possess it but those who have received it from a bishop. Tt is equally strict in respect to the exercise of ministerial capacity, none being considered as lawfully doing so except those who have a commission from a bishop to exercise it. The 23rd Article of Religion states that: “Tt is not law- ful for any man to take upon him the office of publick preaching, or ministering the Sacraments in the Congre- gation, before he be lawfully called, and sent to execute the same. And those we ought to judge lawfully called and sent, which be chosen and called to this work by men CHAP. I.] | HIOLY ORDERS. 189 who have publick authority given unto them in the Con- gregation, to call and send Ministers into the Lord’s vineyard.” Standing by itself, this statement might not seem to refer exclusively to episcopal ordination ; but the Preface before the Offices for Ordination has a very de- finite statement and enactment? on the subject, by which that of the Article of Religion must be interpreted: “It is evident unto all men diligently reading the Holy Scripture and ancient Authors, that from the Apostles’ time there have been these Orders of Ministers in Christ’s Church: Bishops, Priests, and Deacons. Which offices were evermore had in such’ reverend estimation, that no man might presume to execute any of them, except he were first called, tried, examined, and known to have such qualities as are requisite for the same; and also by publick Prayer, with Imposition of Hands, were approved and admitted thereunto by lawful Authority. And therefore, to the intent that these Orders may be continued, and reverently used and esteemed in the Church of England, no man shall be accounted or taken to be a lawful Bishop,‘ Priest, or Deacon in the Church of England, or suffered to execute any of the said functions, except he be called, tried, examined, and admitted thereunto, according to the Form hereafter -* Being part of 3 & 4 Edw. VI. ch. 12, 5 & 6 Edw. VI. ch. 1, and of 14 Car. IT. ch. 4, §§ 2, 20. An Act of 1804 confirms the statutory obligation of this preface in the words: “ Whereas by the Prefaces to the Forms of Ordination of Priests and Deacons, established and used by authority of several Acts of the Parliaments of England and Ireland respectively.” |44 Geo, III. ch. 43,] 190 HOLY ORDERS. [BOOK III. following, or hath had formerly Episcopal Consecration or Ordination.” That the “lawful authority” is “episcopal authority” is shown by the concluding clause, and also by the whole substance and tenour of “the Form hereafter following.” That Form is further shown to contain a true exposition of what is meant by such lawful authority in the 36th Article of Religion: “The Book of Consecration of Arch- bishops and Bishops, and Ordering of Priests and Deacons, lately set forth in the time of Edward the Sixth, and con- firmed at the same time by authority of Parliament, doth contain all things necessary to such consecration and ordering ; neither hath it anything, that of itself is super- stitious and ungodly. And therefore whosoever are con- secrated or ordered according to the rites of that book, since the second year of the forenamed King Edward unto this time, or hereafter shall be consecrated or ordered according to the same rites; we decree ail such to be rightly, orderly, and lawfully consecrated and ordered.” Which is confirmed by the 8th canon of 1603: “ Whoso- ever shall hereafter affirm or teach, That the Form and Manner of making and consecrating Bishops, Priests, and Deacons, containeth anything in it that is repugnant to the Word of God, or that they who are made bishops, priests, or deacons, in that form, are not lawfully made, nor ought to be accounted, either by themselves or others, to be truly either bishops, priests, or deacons, until they have some other calling to those divine offices ; let him be excommunicated ipso facto, not to be restored until he repent, and publicly revoke such his wicked errors.” CHAP. I.] HOLY ORDERS. 19I Thus it is clear that, by the law of the Church of England, no one is to execute the functions belonging to any office of the ministry, unless he has been ordained according to the Form set forth in the Prayer Book, or has received episcopal consecration or ordination else- where than in the Church of England. This law admits the orders of the Irish, Scottish, American, and also those of all Churches in British possessions.' It admits also * The following are the statutory provisions respecting any “ per- son who has been or shall be ordained priest or deacon, as the case may be, by any Bishop other than a Bishop of a Diocese in” the Church of England or the Church of Ireland. [37 & 38 Vict. ch. tel 1. He cannot, unless he has held or is holding preferment or a curacy in England, officiate in any Church or Chapel in England without the written permission of the Archbishop of the Province, given after he has subscribed the declaration at page 201 with the words “whilst ministering in England” added between “T” and “will use.” The penalty for officiating without these pre- liminary steps is ten pounds for every offence, the Incumbent being liable to a similar penalty. 2. He can act as Curate, or hold preferment, by obtaining the previous consent in writing of the Bishop of the Diocese, 3. After having been Curate or Incumbent for a period exceeding two years in the aggregate, he may be placed in the same position as Clergy ordained in England or Ireland by a Licence from the Archbishop of the Province. Clergy of the “ Protestant Episcopal Church in Scotland” are not entitled to be licensed as Curates or hold preferment without the consent of the Bishop of the Diocese, nor without taking the decla- ration and subscriptions required of English clergy. Any such clergyman officiating on more than one day in three months without giving notice to the Bishop of the Diocese, or officiating against the Bishop’s injunction under hand and seal, is to forfeit ten pounds. But these provisions do not apply to persons previously beneficed in England or Ireland. [27 & 28 Vict. ch. 94.] 192 FOLY (ORDERS. [BOOK Itt. the orders of the Roman Catholic and Eastern Churches. But the ordinations of Scottish Presbyterians, of Dis- senters in England, Ireland, or other British possessions, of American or European non-episcopal communities, are not ordinations within the meaning of the statute of which the first-quoted passage forms a part, and do not qualify the persons so ordained to take any part in the ministra- tions of the Church of England. The laws and customs of the Church which. particularly relate to ordination have for their object the provision of. a ministry which, in each several order, shall be properly. - qualified as to [1] age, [2] character, [3] sphere of duty, [4] education, [5] orthodoxy, and [6] spiritual capacity. The first five of these qualifications are independent of the act of ordination—the sixth depends entirely on that act itself. § 1. Preparation for and Admission to the Order of Deacons. [1.] The age at which deacon’s orders could be received was anciently fixed at twenty-five years, in analogy with that at which a Levite was admitted to serve in the Taber- nacle.? This minimum of age was retained during the * “Any person, falsely pretending to be in Holy Orders, who shall, solemnize matrimony according to the rites of the Church of Eng-. land,” commits a felony, and is punishable with transportation for, fourteen years. [4 Geo. IV. ch. 76, § 21.] 2 “Tn veteri lege ab anno vicesimo et quinto Levit tabernaculo servire mandantur, cujus auctoritatem in canonibus et sancti Patres secuti sunt.” [IV. Conc. Tolet. xx. a.p. 671.] The canon CHAP. I.] HOLY ORDERS. 193 Middle Ages (though the rule was often set aside by dispensation) ; but the Pontifical of the six- ‘ ompetent teenth century made the age sufficient if it was age ~ not under twenty. The existing law of the ee ear Church of England (which agrees with that of the Roman Churches as laid down by the Council of Trent, Sess. xxiii. ch. 12) has fixed twenty-three years as the ordinary age for admission to the diaconate. Thus the preface to the ordinal directs, “And none shall be admitted a deacon except he be twenty-three years of age, unless he have a faculty ;” and the same direction is given in the 34th canon of 1603. In the year 1804, a statute was passed, entitled “An Act to enforce the due Observance of the Canons and Rubrics respecting the Ages of Persons to be admitted into the Sacred Orders of Deacon and Priest” [44 Geo. III. ch. 43], in which it was enacted that any. person ordained deacon before twenty-three, or priest before twenty-four years of age, should be wholly incapable of holding any preferment, and that his admission to orders should be void in law as if it had never been made. A second clause of the same Act saved the rights of the Archbishops of Canterbury and Armagh to grant faculties, but made no other exceptions whatsoever. No bishop of the Church of England can, therefore, lawfully ordain any man deacon before he has attained the age of twenty- three years complete, except by a special faculty from the goes on to say, that men are ordained so early that they have no experience of life, and orders that twenty-five years shall be the minimum for deacons, thirty years for priests, See also the 97th of the Excerpts of Egbert, a.p. 740, 194 HOLY ORDERS. [BOOK III. Archbishop of Canterbury: and if any person should be so ordained, he is incapable ever after of holding “any parsonage, vicarage, benefice, or other ecclesiastical pro- motion or dignity whatsoever.” This being the case, every candidate for deacon’s orders is required to send among his papers a CER-— pA REL TIFICATE OF BAPTISM, or (if that cannot be ob- of com- tained) an affidavit, made by one of his parents petent age. F or some other competent person, setting forth the particulars of his age and the place of his baptism, with the reason why the ordinary certificate cannot be produced.'' This proceeding is not, however, enacted in any law of the Church, and each bishop is justified in determining what evidence of age he will require, subject to the responsibility entailed by the above Act. [2.] To the standard of a certain maturity of age is also Evidence of to be added that of an established character. character. For this, of course, only general evidence can be obtained ; and this is given by means of Letters Testi- monial, and the document called “Si Quis,’—the first tes- tifying, positively, to the personal knowledge of responsible clergymen; the second, negatively, to the knowledge of the laity of the parish in which the candidate for Orders has lived. LETTERS TESTIMONIAL are required? from the authorities * A certificate of birth would be sufficient evidence as to age, but it is evident that a person must be a Christian before he can be a deacon, and so evidence of baptism also is required, 2 By 13 Eliz. ch, 12, § 4, and Canon 34 of 1603. CHAP. I.] HOLY ORDERS. 195 of any college in which the candidate has been educated, with reference to the time during which the 5 : [PAPER 2.] candidate has been resident there. If the can- College didate has ceased to reside, a further testimonial hoping is required from three beneficed clergymen to whom he is personally known, with reference to the (Parrr3.] : Testimonial |) three years last passed, or to any shorter time o¢ three during which they may have known him. The Peneficed | ; : clergymen. | form of the latter is usually as follows: “To the Right Reverend William by Divine permission Lord Bishop of ——. “Whereas our beloved in Christ, John Smith, Bachelor of Arts, of Oriel College, in the University of Oxford, hath declared to us his intention of offering himself as a candidate for the sacred office of a Deacon, and for that end hath requested of us letters testimonial of his good life and conversation; we therefore, whose names are hereunto subscribed, do testify that the said John Snuth hath been personally known to us for the space of —— last past; that we have had opportunities of observing his conduct; that during the whole of that time we verily believe that he lived piously, soberly, and honestly; nor have we at any time heard anything to the contrary thereof; nor hath he at any time, as far as we know or believe, held, written, or taught anything contrary to the doctrine or discipline of the Church of England: and moreover we believe him, in our consciences, to be, 196 FIOLY CORDERS, [BOOK III. as to his moral conduct, a person worthy to be admitted to the sacred order of Deacons. “Tn witness whereof we have hereunto subscribed our, names, this third day of May, in the year of Our, Lord one thousand eight hundred and seventy-one. “GEORGE FETHERSTONE, Rector of Exton. “James Hamitton, Vicar of Sibsworth. “HENRY JONES, Vicar of Adley.” If the benefices of either of the three clergymen signing the testimonial are situated out of the diocese of the bishop to whom the candidate applies for ordination, each signature must, according to practice, be certified by the countersignature of the bishop in whose diocese the bene- fice of the signer is situated. A further testimonial to character is required in the ph ae form of a document which is still called “Si The Quis,’ from its first words when in Latin. “81 Quis.” This is to be read publicly during the time of Divine Service,.in the parish church of the candidate, by one of the officiating clergy; the reading of it, and the absence of any objection to the candidate’s character, being certified by the officiating minister and a church- warden :— “Notice is hereby given, that John Smith, Bachelor of Arts, of Oriel College, in the University of Oxford, and now resident in this parish, intends to offer him- self as candidate for the holy office of a Deacon at the ensuing ordination of the Lord Bishop of ——; and ‘CHAP. L] HOLY ORDERS. 197 if any person knows any just cause or impediment for which he ought not to be admitted into Holy Orders, he is now to declare the same, or to signify the same forthwith to the Lord Bishop of ——. “We do hereby certify, that the above notice was pub- licly read by the undersigned James Hamilton in the parish church of Sibsworth, in the county of Devon, during the time of Divine Service, on Sunday the third day of August, 1871, and no impediment alleged. “Witness our hands this third day of August, in the year of Our Lord one thousand eight hundred and seventy-one. . “ JAMES HAMILTON, Vicar. “ RICHARD TREVELYAN, Churchwarden.” The rights and duties of the laity, in preventing the introduction into the ministry of persons whose character is objectionable, are still further provided for by a “Si Quis” in the Ordination Service itself, where, after the testimony of the clergy has been given by the archdeacon, it is ordered as follows: “Then the bishop shall say wnto the people, ‘ Brethren, if there be any of you who knoweth any impediment, or notable crime, in any of these persons presented to be ordained deacons, for the which he ought not to be admitted to that office, let him come forth in the Name of God, and show what the crime or impediment is.’ “And if any great crime or impediment be objected, the bishop shall surcease from ordering that person, until such time as the party accused shall be found clear of that crime.” 198 “HOLY ORDERS. [BOOK III. The general analogy of the “Si Quis” to “Banns” is obvious. [3.] Every person who seeks to be ordained is required Titleto to provide himself with some sphere of duty in Se which to exercise his office, such a provision being called his “Title to Holy Orders.” The traditional rule of the Church on this subject! was embodied in the 33rd canon of 1603, which is the law at present regulating the practice of bishops. This canon is as follows: “It hath been long since provided, by many decrees of the ancient fathers, that none should be admitted either deacon or priest, who had not first some certain place where he might use his function. According to which examples we do ordain, that henceforth no person shall be admitted into sacred orders, except he shall at that time exhibit to the bishop of whom he desireth imposition of hands a presen- tation of himself to some ecclesiastical preferment then void in that diocese: or shall bring to the said bishop a true and undoubted certificate, that either he is provided of some church within the said diocese, where he may attend the cure of souls, or of some minister’s place vacant, either in the cathedral church of that diocese, or in some other collegiate church therein also situate, where he may execute his ministry ; or that he is a fellow, or in right as a fellow, or to be a conduct or chaplain, in some college in Cambridge or Oxford; or except he be a Master of Arts of * Bishop Gibson says that the ancient canons on this subject are “without number,” and instances the 6th canon of the Council of Chalcedon, A.D. 451 (adopted in the 51st of Archbishop Egbert’s Excerpts), as the earliest, CHAP. I.] HIOLVY ORDERS. 199 five years’ standing, that liveth of his own charge in either of the universities ; or except by the bishop himself, that doth ordain him minister, he be shortly after to be ad- mitted either to some benefice or curateship then void. And if any bishop shall admit any person into the ministry that hath none of these titles as is aforesaid, then he shall keep and maintain him with all things necessary, till he do prefer him to some ecclesiastical living. And if the said bishop shall refuse so to do, he shall be suspended by the archbishop, being assisted with another bishop, from giving of orders by the space of a year.” But the only titles in common use for deacon’s orders are fellowships and curacies: a fellowship providing the holder of it with the maintenance required by the canon. The most usual title to deacon’s orders is a curacy. The candidate has therefore to procure a “nomi- Ra hitele nation” to a curacy from the rector or vicar Nomination under whom he is going to serve, the form of pet which will be found at page 217. [4.] Another qualification required of those to be or- dained clergymen is that of sufficient learning for the proper discharge of their office. The amount of such learning is partly defined by the 54th canon of 1605, which requires that none shall be ordained except he “hath taken some degree of school in either of the said universities; or, at the least, except he be able to yield an account of his faith in Latin, according to the Articles of Religion approved in the synod of the bishops and clergy of this realm, one thousand five hundred sixty and two, and to confirm the same by sufficient testimonies out 200 FOLY ORDERS. [BOOK IIL. of the Holy Scriptures.” The same standard is laid down in 13 Eliz. ch. 12, § 4, with the exception, however, if he “have special gifts and abilities to be a preacher.” Modern bishops require that every university man shal] produce some evidence that he has studied divinity at the university in which he has taken his degree. This is given, either by a certificate of the Oxford ears | Divinity Professor that the candidate has at- sean! tended his lectures, by a certificate of his _ having passed the “Theological Examination” at Cambridge, by a similar testimonium to the last from Dublin, or by the “ Licence of Theology” from Durham.’ None of these, however, supersede examination by the oe a bishop and his deputies. This is ordered by tion by the the preface to the ordinals, and (under penalty) Beene by the 35th canon of 1603. The preface re- quires the bishop to. know, by himself or by sufficient testimony, that the candidate is a man of virtuous con- versation, and without crime, and then to ordain him only if, “after examination and trial,” he has found him to be “learned in the Latin tongue, and sufficiently instructed in Holy Scripture.” The 35th canon enacts as follows: “The bishop, before he admit any person to holy orders, shall diligently examine him in the presence of those ministers that shall assist him at the imposition of hands; and if the said bishop have any lawful impediment, he shall cause the said ministers carefully to examine every such person so to be ordered. Provided, that they who * Graduates are allowed to substitute for any of these residence at a theological college. CHAP. I.] HOLY ORVERS. 201 shall assist the bishop in examining and laying on of hands, shall be of his cathedral church, if they may con- veniently be had, or other sufficient preachers of the same diocese, to the number of three at the least: and if any bishop or suffragan shall admit any to sacred orders who is not so qualified and examined, as before we have ordained, the archbishop of his province having notice thereof, and being assisted therein by one bishop, shall suspend the said bishop or suffragan so offending, from making either deacons or priests for the space of two years.” The examination is generally conducted by one of the bishop’s chaplains specially appointed for the purpose, and the usual subjects are Holy Scripture, the various formularies of the Church, and ecclesiastical history ; but the details of it are entirely at the bishop’s discretion, and there is no strict uniformity in respect to them. [5 | The bishop’s examination is also a test of ortho- doxy ; but a further pledge is required before ordination, the candidate being called upon, under Canon 36 of 1865, and the Clerical Subscription Act [28 & 29 Vict. ch. 122] to declare his assent to the doctrine eubscrip- of the Church of England as set forth in the #0" Prayer Book of Common Prayer and the Thirty-nine ee and hirty-nine Articles of Religion, The nature of this re- Articles. quirement is shown in the words of the canon itself: “No person shall hereafter be received into the ministry . except he shall first make and subscribe the follow- ing declaration, which for the avoiding of all ambiguities he shall subscribe in this order and form of words, setting . down both his Christian and surname, viz.:—‘I, A. B:, P 202 HOLY ORDERS, [BOOK III. do solemnly make the following Declaration: I assent to the Thirty-nine Articles of Religion, and to the Book of Common Prayer, and of Ordering of Bishops, Priests, and Deacons: I believe the doctrine of the Church of England, as therein set forth, to be agreeable to the Word of God; and in public prayer and administration of the Sacraments I will use the Form in the said Book prescribed, and none other, except so far as shall be ordered by lawful authority.’ And if any bishop shall ordain, admit, or license any as is aforesaid, except he first have declared and subscribed in manner and form as here we have appointed, he shall be suspended from giving of orders and licences to preach for the space of twelve months.” At the same time also, an oath of allegiance to the Sovereign is to be taken, and an oath of canonical obe- dience to the bishop. The former, as appointed, by 31 & 32 Vict. ch. 72, is as follows :— “«T A, B., do swear that I will be faithful and bear Oath of true allegiance to Her Majesty Queen aoe Victoria, her heirs and successors accord- an Supremacy. ing to law. So help me God.” The oath of canonical obedience is :— «JT, A. B, do swear that I will pay true and canonical obedience to the Lord Bishop of———, Oath of ‘ : canonical and his successors, in all legal and honest obedience. commands. So help me God.”? These oaths are taken as the last preliminary to the * Tt has been said by the Privy Council, that “the oath of canonical obedience does not mean that the clergyman will obey all CHAP. 1.] HOLY ORDERS. 293 ordination itself, and in the presence of the bishop by whom the person taking them is to be ordained. § 2. Ordination to the Diaconate. [6.] Little need be said on the subject of the Ordination Service. The absolutely essential part of it is the impo- sition of hands, “the bishop laying his hands severally upon the head of every one of them, humbly kneeling before him,” as is ordered in the rubric. Without this imposition of hands no one becomes a deacon in the Church of England; but it is also to be accompanied by words which define and limit the nature of the order given, viz.: “Take thou authority to execute the office of a Deacon in the Church of God; committed unto thee in the Name of the Father, and of the Son, and of the Holy Ghost. Amen.” This is supplemented by the ceremony of delivering to each deacon the New Testament, with the words: “Take thou authority to read the Gospel in the Church of God, and to preach the same, if thou be thereto licensed by the bishop himself.” This licence is prac- tically comprehended in the licence to act as curate, which is given at page 222. The functions and spiritual capacities of a person thus ordained to the diaconate are concisely set forth in one of the commands of the bishop against which there is no law, but that he will obey all such commands as the bishop by law is authorized to impose.” [Long v. Bishop of Capetown, Moore’s Priv. Coune. Reports, N.S., vol. i. p. 465.] 204 HOLY ORDERS. [BOOK III. the questions of the Ordination Service, in which the bishop is required to say thus :— “Tt appertaineth to the office of a deacon, in the church where he shall be appointed to serve, to assist the priest in Divine Service, and specially when he ministereth the Holy Communion, and to help him in the distribution thereof, and to read Holy Scriptures and Homilies in the Church; and to instruct the youth in the Catechism; in the absence of the priest to baptize infants, and to preach, if he be admitted thereto by the bishop. And furthermore, it is his office, where provision is so made, to search for the sick, poor, and impotent people of the parish; to intimate their estates, names, and places where they dwell, unto the curate, that by his exhortation they may be relieved with the alms of the parishioners, or others.” This statement makes it clear that the deacon’s office is not, properly, one of independent responsibility. Ancient canons of the Church of England order that a deacon shall not baptize at all except in case of grave necessity. [ Wilkins’ Cone. 1. 501, 505, 636.) The assistance which a deacon can render to a priest in Divine Service is restrained by his incapacity for giving Absolution or Benediction: and in the ministration of the Holy Com- munion that assistance is expressly limited by the words quoted, which define it as—(1) assistance to the priest while he is celebrating the Sacrament, and (2) while he is distributing it. Thus the deacon is (as his name signifies) an attendant on the celebrant at the altar, to hand him what is necessary for use there, and to follow him with ciar. I.] HOLY ORDERS. 205 the chalice (as was expressly directed by the Prayer Book of 1549), that “as the priest ministereth the Sacrament of the Body, so shall he, for more expedition, minister the Sacrament of the Blood.” There is, however, no law of the Church forbidding the deacon to distribute the former to the laity as well as the latter, though they were forbidden to administer either to priests, by the 18th canon of the Council of Nicza. No authority is given to a deacon to solemnize mar- riages. The marriage ceremony is essentially an office of benediction, and therefore not within the capacity of the diaconate. It was also, anciently, associated directly with the celebration of the Holy Communion, and was doubt- less considered as still so associated when the Ordination Service was drawn up. There is no ancient canon of the Church on the subject, simply because marriage by deacons was never thought of until modern times; but wherever the clergyman is mentioned in canons relating to marriage, it is always as “sacerdos” or “presbyter.” So also in the rubrics of the “ Form of Solemnization of Matrimony,” the word “ priest” is used nine times, “minister”! being used * “Note, here it may be proper to observe, once for all, the equi- vocal signification of the word minister, both in our statutes, canons, and rubric in the Book of Common Prayer. Oftentimes it is made to express the person officiating in general, whether priest or deacon ; at other times it denoteth the priest alone, as contradistinguished from the deacon—as particularly here in this statute, and in Canon 31, aforegoing. And in such cases, the determination thereof can only be ascertained from the connection and circumstances,”— Burn’s Eccl. Law, Phillimore Ed, ii. 44: See Sir R. Phillimore, Eccl. Law, 116. 206 HOLY CORDERS, [BOOK III. in such a manner as to show that it means “executor officii,’ the “priest” joining together the hands of the couple, the “ minister” saying, “ Forasmuch as M. and J. have consented,” &c., and the “minister” giving the bless- ing: all three acts being evidently intended to be per- formed by the same person, who is expressly called, in the first instance, by a title which wholly excludes the idea of a deacon ministering on the occasion. It should at the same time be added, that marriage by a Deacon would be considered valid by the Courts, and that a Deacon so officiating would not be liable to ecclesi- astical or other penalties. A deacon, being thus incapable of celebrating the Holy Communion, of giving absolutions or benedictions, is incapable of receiving cure of souls: and accordingly, it is enacted, by 13 & 14 Car. II. ch. 4, § 14, that “no person whatsoever shall thenceforth be capable to be admitted to any parsonage, vicarage, benefice, or other ecclesiastical promotion or dignity whatsoever, nor shall presume to consecrate and administer the Holy Sacrament of the Lord’s Supper, before such time as he shall be ordained priest,” under a penalty of £100. The legal evidence of admission to the diaconate (which is frequently required) is the original “Letters of Orders” given. under the bishop’s hand and seal: or, if that has been lost, a certificated copy of the entry in the bishop’s register. The following is the form in which letters of deacon’s orders are issued :— “ By the tenor of these Presents, We William, by Divine CHAP. I.] HOLY ORDERS. 207 Permission” [or “ Providence,”'] Bishop of ——, do make it known unto all men that on Sunday, the 24th day of September, in the year of Our Lord one thousand eight hundred and seventy-one, We, the Bishop before mentioned, solemnly administering Holy Orders, under the protection of the Almighty, in our Cathedral Church of ——-———,, did admit our beloved in Christ John Smith of Oriel College, Oxford (of whose virtuous and pious life and con- versation, and competent learning and knowledge in the Holy Scriptures, we were well assured), into the Holy Order of Deacons, according to the manner and form prescribed and used by the Church of England ; and him, the said John Smith, did then and there, rightly and canonically ordain Deacon, he having first in our presence freely and voluntarily made and subscribed to the Declaration contained in the Thirty- sixth Canon, and he likewise having taken the Oaths appointed by law to be taken for and instead of the Oath of Supremacy. In testimony whereof We have caused our Episcopal Seal to be hereunto affixed, the day and year above written, and in the —— year of our Consecration [or “ Translation ” |. A GES) B § 3. Preparation for Priest’s Orders, {1.] No person can be made a priest who has not previously been made a deacon, nor without the lapse of * This style is used by archbishops and by the Bishop of Durham. 208 HOLY ORDERS. [BOOK III. some interval between the two ordinations. Thus the 32nd canon of 1603 enacts as follows:—“The office of deacon being a step or degree to the ministry, according to the judgment of the ancient fathers, and the practice of the Primitive Church; we do ordain and appoint, that hereafter no bishop shall make any person, of what qualities or gifts soever, a deacon and a minister both together upon one day; but that the order in that behalf prescribed in the book of making and _ consecrating bishops, priests, and deacons, be strictly observed. Not that always every deacon should be kept from the ministry for a whole year, when the bishop shall find good cause to the contrary; but that there being now four times appointed in every year for the ordination of deacons and ministers, there may ever be some time of trial of their behaviour in the oftice of deacon, before they be admitted to the order of priesthood.” The rubric at the end of the Ordination Office for deacons contains a similar injunction: “And here it must be declared unto the deacon, that he must continue in that office of a deacon the space of a whole year (except for reasonable causes it shall otherwise seem good unto the bishop), to the intent he may be perfect, and well expert in the things appertaining to the eccle- siastical administration. In executing whereof if he be found faithful and diligent, he may be admitted by his diocesan to the Order of Priesthood, at the times appointed in the canon ; or else, on urgent occasion, upon some other Sunday, or Holy-day, in the face of the Church, in such manner and form as hereafter followeth.” car. 1.] HOLY ORDERS. 209 Letters of deacon’s orders must therefore be produced by every candidate for priest’s orders. [Paper 1.) [2.] The minimum age for ordination to the Letters of Deacon's priesthood is twenty-four years.! In the Orders. ancient Church, thirty years was the minimum age gor fixed ;? but probably there was more liberty Priesthood. allowed to the bishop in dispensing with the rule than is allowed by the existing law of the Church of England. The preface to the ordinal enacts, “And every man which is to be admitted priest shall be full four-and-twenty years old.” And it is observable that no mention is made of a faculty or dispensation for inferior age, as is the case in speaking of the age necessary for deacons. The same rule is also laid down in the 34th canon of 1603; and by the Act of 1804, passed to enforce the due observance of the canons and rubrics respecting the ages of persons to be admitted into the sacred orders of deacon and priest. [44 Geo. III. ch. 43.] It is not lawful, therefore, for any person, under any circumstances whatever, to be ordained priest before the age of twenty-four: and a certificate of age having been given for deacon’s orders, the Letters of Orders furnish the evidence required in the case of priest’s orders. [3.] Similar evidence of good character to that required for deacons is also required for priests. Letters [paper 2) testimonial must therefore be obtained from 7¢stimonial three beneficed clergymen, to whom the can- clergymen. didate has been known for three years, or during the * The Council of Trent orders an interval of one year [Sess, xxiii. ch. 14], but requires twenty-five years as the minimum ef age, [ibid. ch. 12.] 2 See page 192. 210 HIOLY ORDERS. [BOOK III. time of his diaconate: the form used being the same, mutatis mutandis, as that used for obtaining deacon’s orders ; and the same necessity exists for counter-signature by bishops, if the circumstances are similar.’ It is the usual custom for every deacon to be ordained priest by the same bishop who gave him deacon’s orders; but if circumstances necessitate removal to another diocese, “Letters Dimissory” are necessary, giving consent to the change, and also a new title. The same opportunity as before is also given to the laity among whom the deacon is known to state objection as to character, the terms of the “Si Quis” being no further (Paren 3.) Changed than by the substitution of “priest” “siQuis.” for “deacon” in the statement of the Holy Order for which the candidate is about to apply.? Similar securities for orthodoxy and learning are also Examina- taken by means of an examination, the subjects BEES being so far changed from those placed before the candidate at his previous ordination, as to draw out the additional knowledge supposed to be acquired during Subscrip- 2 year or more of clerical life. The sub- eke scription and oaths are also of precisely similar character as those used at ordination to the diaconate.® § 4. Ordination to the Priesthood. [4.] The Office for the ordination of priests has a very different character from that for the ordination of deacons. The general tone of it is that of bestowing authority over * See page 195, ? See page 196. 3 See page 201, CHAP. 1.] HOLY ORDERS. 211 others, while the tone of that for deacons is rather that of putting the person ordained under the authority of others. The pastoral office of the priest is kept in view through- out, but it is not referred to in the case of the deacon. An invocation of the Holy Ghost is used in the form of the hymn ‘Veni Creator” “The priests present” for the purpose, “to the number of three at least” [Canon 35], join with the bishop in the imposition of hands, a deacon being ordained by the bishop alone. But the most strik- ing difference is in the words of ordination, which are as follows :—“ Receive the Holy Ghost for the office and work of a priest in the Church of God, now committed unto thee by the imposition of our hands. Whose sins thou dost forgive, they are forgiven; and whose sins thou dost retain, they are retained. And be thou a faithful dispenser of the Word of God, and of His Holy Sacra- ments; in the Name of the Father, and of the Son, and of the Holy Ghost. Amen.” After which solemn personal application to the indi- vidual person of Our Lord’s words in ordaining His apostles, the bishop is directed to deliver the Bible into the hands of every one of them as they kneel before him, and to say: “Take thou authority to preach the Word of God, and to minister the Holy Sacraments in the congregation, where thou shalt be lawfully appointed thereunto.”! [5.] The spiritual capacities and the functions of the priesthood are not so definitely stated in the admonition * Deacons are ordained between the reading of the Epistle and the Gospel—priests between the Gospel and the Nicene Creed, 212 HOLY ORDERS. [BOOK III. as those of a deacon are; but it is said, generally, that it is a “high dignity,” “a weighty office and charge,” to which priests are called: “that is to say, to be messengers, watchmen, and stewards of the Lord; to teach and to premonish, to feed and provide for the Lord’s family; to seek for Christ’s sheep that are dispersed abroad, and for His children who are in the midst of this naughty world, that they may be saved through Christ for ever.” The priesthood are, however, the great body of the Christian ministry, and their ministrations make up the ordinary work of the Church. It is their function to offer up Divine Worship as the representatives of the people, and to administer grace as the representatives of God. They have authority to consecrate the Holy Communion, to pronounce absolution, to bless in God’s Name, and to take the care of souls generally, if they are instituted to it by a bishop. By ordination to the priesthood (it has always been un- derstood), an indelible character is received, which makes it impossible for one so ordained to cease to be a priest. “Let them know,” says Hooker, “which put their hands unto this plough, that, once consecrated unto God, they are made His peculiar inheritance for ever. Suspensions may stop, and degradations utterly cut off the use or exercise of power before given; but, voluntarily, it is not in the power of man to separate and pull asunder what God by His authority coupleth.” [Hookers eel. Pol., V. Ixxvil. 3.] Such being the case, the 76th canon of 1603 enacts that, “No man being admitted a deacon or minister shall from thenceforth voluntarily relinquish the CHAP. I.] HOLY ORDERS. ais same, nor afterward use himself in the course of his life as a layman, upon pain of excommunication.” It is possible that this canon relates only to deacons, “minister” being a title often used as synonymous with “deacon ;” but if so, it shows that the framers of the canons did not even contemplate the possibility of relinquishing the priest- hood for a layman’s life. By the “Clerical Disabilities Act of 1870,” however, a priest or deacon may now set himself free from the yoke of Holy Orders, so far that he may become a layman again in the eye of the law, and thus be qualified for such offices and occupations as he could not have filled or undertaken while the law regarded him as a clergyman. This Act 33 & 34 Vict. ch. 91] provides that, after a clergyman has resigned any and every preferment held by him, he may execute a “deed of relinquishment,” which is to be enrolled in the Court of Chancery. A copy of this deed is to be sent to the bishop of the diocese in which the person resides or last held preferment, and notice that this has been done is to be sent to the archbishop. At the end of six months the clergyman so acting may call upon the bishop to record the deed in the registry of his diocese. If the bishop has notice that proceedings are pending against the clergyman in the Ecclesiastical Court, he shall suspend the registration of the deed till the termination of those proceedings. After registration of the deed, the priest or deacon so registered becomes incapable of t After enrolment, if he has done nothing more, he has a locus penitentiw, and may apply to have the enrolment vacated, [Anon, Law Rep. 15 Eq. 154. ] 214 HOLY ORDERS. [BOOK III. officiating as such, or of holding preferment, loses all his rights as a clergyman, and obtains all the rights of a layman ; being still, however, responsible for any liabilities in respect of dilapidations, or other pecuniary liability incurred or accrued before or after the deed was registered. This Act of Parhament applies, of course, only to the civil rights or disabilities associated with Holy Orders, and does not destroy the “character” before referred to, though it makes the use of it illegal. By the Incumbent’s Resignation Act, 1871 [84 and 35 Vict. ch. 44 § 15], any clerk pensioned under that act shall lose his pension if he enrolls a “deed of relinquish- ment” [page 464]. By the recent Burial Laws Amendment Act [43 and 44 Vict. ch. 41 § 14] it is provided as follows: “ Save as is in this Act expressly provided as to ministers of the Church of England, nothing herein contained shall authorise or enable any such minister who shall not have become a declared member of any other Church or denomination, or have executed a deed of relinquishment under the Clerical Disabilities Act, 1870, to do any act which he would not by law have been authorised or enabled to do if this Act had not passed, or to exempt him from any censure or penalty in respect thereof.” ee Chapter IL ASSISTANT CURATES. IE theory of the Church (enforced by its laws) is that no clergyman can lawfully undertake any sphere of duty without the sanction of the bishop of the diocese. The highest form of this sanction is given by the cere- mony of institution to a benefice; a lower form of it is that of a licence, which empowers a clergyman to undertake certain duties within the parish of another clergyman, the latter holding cure of souls. There are, however, certain benefices with cure of souls, called perpetual curacies, which are in almost all respects to be treated as other benefices, except that they are conferred by licence, not institution. For the purpose of this chapter, therefore, the word “curate” is not to be taken in the Prayer Book sense of a priest having cure of souls, but in the more modern sense of a priest or deacon! licensed by the bishop of the diocese to assist a rector or vicar. t The deacon’s duties have, properly, nothing to do with the actual cure of souls; but the modern idea of a deacon is different from that of the Prayer Book and of the ancient Church, and he is entrusted with duties of a much higher class than formerly. 216 ASSISTANT CURATES. [BOOK III. Such assistant clergy have always been recognised in the Church of England, under one name or another, as substitutes for non-resident incumbents; but they have increased in number largely during the last half-century, from the growth of population making parishes too large to be manageable by a single clergyman. ‘Thus, also, a new class of clergy has sprung up, almost unknown in the Church—that of assistants to the resident clergy. For the three centuries preceding the present, and pro- bably before the Reformation also, curates were often a very inferior class of men—frequently (it is to be feared) not even in holy orders, and seldom licensed by the bishop. It was attempted to provide for this and other abuses by the 48th canon of 1603, which is as follows :— “No curate or minister shall be permitted to serve in any place without examination and admission of the bishop of the diocese, or ordinary of the place, having episcopal jurisdiction, in writing under his hand and seal, having respect to the greatness of the cure and meetness of the party. And the said curates and ministers, if they remove from one diocese to another, shall not be by any means admitted to serve without testimony of the bishop of the diocese, or ordinary of the place, as aforesaid, whence they came, in writing, of their honesty, ability, and conformity to the ecclesiastical laws of the Church of England. Nor shall any serve more than one church or chapel upon one day, except that chapel be a member of the parish church or united thereunto, and unless the said church or chapel, where such a minister shall serve in two places, be not able, in the judgment of the bishop or ordinary, as afore- CHAP. II.] ASSISTANT CURATES. 217 said, to maintain a curate.” But this proved insufficient to remedy the evil, and Parliament was obliged to legis- late on the subject in 13 Ann. ch, 11. This Act declared that no substitute for a non-resident beneficed clergyman should serve in any place without the examination and admission of the bishop of the diocese; and assigned to the curate so licensed a stipend not exceeding fifty, and not less than twenty pounds a year. This was the first statute in which curates were in any way recognised, and its practical effect was to give statutory force to the canon. In the present day, it is the almost invariable practice for clergymen to serve for a year or more in some curacy, even when they become beneficed early in their clerical life; the only exceptions being fellows of colleges, who have the doubtful privilege of being ordained on the title of their fellowships, and then of taking college livings with- out necessarily having any experience of parochial work. _ Whether the curate is entering on his duties contem- poraneously with receiving orders, or is changing from one curacy to another, the same steps have to be taken for obtaining the bishop’s licence, and these will now be mentioned in order. A “nomination” will first be required from the beneficed clergyman whose curate he is to be. Where the eae incumbent is resident on his benefice, the fol- Nomination lowing is the form of this nomination :— ih el “To the Right Reverend Lord Bishop of : “1 GH. of , in the county of , and your _ lordship’s diocese of , do hereby Perec 218 ASSISTANT CURATES. [BOOK Itt. E. F, bachelor of arts (or other degree), to per- form the office of a curate in my church of aforesaid; and do promise to allow him the yearly stipend of , to be paid by equal quarterly payments. And I do hereby state to your lordship, that the said #. /. intends to reside in the said parish, in a house (describe its situation, so as clearly to identify it) distant from my church mile ; and that the said #. F. does not serve any other parish, as incumbent or curate; and that he has not any cathedral preferment or benefice, and does not officiate in any other church or chapel. “Witness my hand this day of , in the year of Our Lord one thousand eight hundred and at Crete hs “TI, G. Z,, Incumbent of , in the county of bond fide undertake to pay to H. F, of in the county of , the annual sum of pounds, as a stipend for his services as curate; and I, £. F., bond fide intend to receive the whole of the said stipend. «And each of us, the said G. H. and LH. F,, declare that no abatement is to be made out of the said ‘stipend in respect of rent or consideration for the use of the glebe-house; and that I, G. H., undertake to pay the same, and I, #. #, intend to receive the same, without any deduction or abatement whatso- ever, “io. Md,” CHAP. I1.] ASSISTANT CURATES, 219 If the incumbent is non-resident, the nomination form is as follows :— “To the Right Reverend , Lord Bishop of STG s Or , in the county of , and your lordship’s diocese of , do hereby nominate LZ. F., bachelor of arts (or other degree), to perform the office of a curate in my church of afore- said; and do promise to allow him the yearly stipend of , to be paid by equal quarterly payments, with the surplice fees, amounting to pounds per annum (if they are intended to be allowed), and the use of the glebe-house, garden, and offices which he is to occupy (#7 that be the fact; if not, state the reason, and name where, and at what distance from the church, the curate purposes to reside); and I do hereby state to your lordship, that the said #. F. does not serve in any other parish, as incumbent or curate; and that he has not any cathedral prefer- ment or benefice, and does not officiate in any other church or chapel; that the net annual value of my said benefice, estimated according to the Act 1 & 2 Victoria, ch. 106, §§ 8 & 10, is , and the population thereof, according to the latest returns of population made under the authority of Parliament, is ; that there is only one church belonging to my said benefice (if there be another church or chapel, state the fact); and that I was admitted to the said benefice on the day of a) “ Witness my hand, this day of in the year of Our Lord 18 . 6“ G. iB ie? 220 ASSISTANT CURATES. [BOOK It “TG. H., Incumbent of , in the county of ; bond fide undertake to pay to L. F., of , in the county of , the annual sum of pounds as a stipend for his services as curate; and I, #. F, bond fide intend to receive the whole of the said stipend. “And each of us, the said G. H. and #. F,, declare that no abatement is to be made out of the said stipend in respect of rent or consideration for the use of the glebe-house; and that I, G. H., undertake to pay the same, and I, #. #,, intend to receive the same, without any deduction or abatement whatsoever.”? The curate’s letters of orders, both deacon’s and priest’s, must be sent to the bishop with this nomina- {PareEr 2.] Lettersof tion; but these are, of course, in the bishop’s Orders. : : : hands already, if the ordination and the en- trance on the curacy are contemporaneous. ™ The amount of stipend payable by resident incumbents to their curates is entirely a matter of private arrangement. Those payable by non-resident incumbents are regulated by 1 & 2 Vict. ch. 106, § 85, as follows :— 1. In no case less than 80/. per annum, or than the whole value of the benefice, if the latter is less than 801. 2. If population numbers 300, not less than 1001. 3, i RET ey rabins 4. ” ”? 750, ” ” 1351, 5. ‘ 4 961000,. Ww, OH If the annual value in either of the four latter cases be less than the sums named, the stipend is to amount to not less than the whole value. But by §§ 91 & 92, certain deductions are allowed ; and some exceptional cases are likewise provided for by §§ 86, 87, and 89, . In the case of a sequestrated benefice, the stipends payable to one CHAP. II.] ASSISTANT CURATES. 221 There must also be sent letters testimonial from three beneficed clergy, similar to those used by can- : : y [Paper 3.] didates for orders, but varied in form, as fol- Letters Tes- timonial, lows :— “To the Right Reverend , Lord Bishop of “We, whose names are hereunder written, testify and make known that #. /, clerk, bachelor of arts (or other degree), of college, in the university of , nominated to serve the cure of 4 in the county of , hath been personally known to us for the space of three years last past; that we have had opportunities of observing his conduct ; that during the whole of that time we verily believe that he lived piously, soberly, and honestly, nor have we at any time heard anything to the contrary thereof; nor hath he at any time, as far as we know or believe, held, written, or taught anything contrary to the doctrine or discipline of the Church of Eng- land ; and, moreover, we believe him in our consciences to be, as to his moral conduct, a person worthy to be licensed to the said curacy. “Tn witness whereof we have hereunto set our or more curates are regulated by 34 & 35 Vict. ch. 45, § 1, which enacts that they shall not exceed, in the whole, the following sums : 1, If population does not exceed 500, stipend, 2001. » exceeds 500, but not 1000, Pe 3001, Pare Cee ae Pay! we eae SOG: » 6001. Provided that the stipend or stipends so payable shall not exceed, in the whole, two-thirds of the annual value of the benefice, 222 ASSISTANT CURATES., [BOOK Itt. hands this day of , in the year of Our Lord one thousand eight hundred and ° BAA. ‘ URE RTIBD tke a! The same rule as to countersignature by the bishop applies in this case as in the former. [See page 196.] Before the licence is granted, the curate has to make Pilea kee 5 and subscribe the Declaration of Assent, and to tionand take the oaths of allegiance to the sovereign, ey and of canonical obedience to the bishop, as in the case of ordination. [See page 202. ] The licence is then issued under the hand and seal of the bishop, in the following form :— Fs by Divine permission Bishop of , to our beloved in Christ , Clerk, master of arts, greeting. We do by these presents give and grant unto you, in whose fidelity, morals, learning, sound doctrine, and diligence we do fully confide, our licence and authority to perform the office of A. stipendiary assistant curate in the parish church (L.S.) of , in the county of , within our diocese B, and jurisdiction, in reading the common prayers, and performing other ecclesiastical duties belong- ing to the said office, according to the Form pre- scribed in the Book of Common Prayer, made and published by authority of Parliament, and the canons and constitutions in that behalf lawfully CHAP. II.] ASSISTANT CURATES. 223 established and promulgated, and not otherwise or in any other manner (you having first before us subscribed the articles, taken the oaths, and made and subscribed the declaration, which in this case are required by law to be subscribed, made, and taken. And we do by these presents assign unto you the yearly stipend of pounds, to be paid quarterly, for serving the said cure. -“ And you are to reside in the parish. “In witness whereof we have caused our seal which we use in this case to be hereto affixed. Dated the day of , in the year of Our Lord one thousand eight hundred and ninety- , and in the year of our consecration.” This licence is binding upon both the incumbent and the curate, the nomination and licence having mye jicence the force of a contract, which can only be dis- 2 contract. solved by either after due notice to the other, and similar notice must also be given by either party to the bishop. If the incumbent wishes to dissolve the contract, he is required to give six months’ notice to his curate and to obtain the leave of the bishop. The curate is required to _ give three months’ notice only. It is usually assumed that the notice by the curate to the bishop is also the asking of the bishop’s permission to dissolve the contract, though it is not at all clear that the bishop could, by | refusing his consent, compel the curate to continue in his curacy. The bishop may, if he please, dispense with all 224 ASSISTANT CURATES. [BOOK III. notice from the curate, the provision of 1 & 2 Vict. ch. 106, § 97, running: “And be it enacted, that no curate shall quit any curacy to which he shall be licensed until after three months’ notice of his intention given to the incumbent of the benefice, and to the bishop, unless with the consent of the bishop, to be signified under his hand.” The bishop also has authority to revoke or cancel a curate’s licence, subject to an appeal to the archbishop. The following is the provision of the Act just quoted on this point: “The bishop shall have power, after having given to the curate sufficient opportunity of showing reason to the contrary, to revoke summarily, and without further process, any licence granted to any curate,’ and to remove such curate, for any cause which shall appear to such bishop to be good and reasonable: provided always, that any such curate may, within one month after service upon him of such revocation, appeal to the archbishop of the province, who shall confirm or annul such revocation as to him shall appear just and proper.” [1 & 2 Vict. ch. 106, § 98.} There is no appeal from the archbishop’s * In Poole v. The Bishop of London, a doubt was suggested to the Privy Council whether this clause applied to curates of resident incumbents. Their lordships ruled that this was “a point not material to be considered; for if the appellant does not come within that clause, he certainly comes within the 6th section of 36 Geo, ITT. ch. 83, to which the same principles apply.” This section has now been repealed by the Statute Law Revision Act, 1871. It has since been held that the provisions of 1 & 2 Vict. ch. 106, § 98, apply to curates of non-resident incumbents, [Mr. Baddeley’s case, Sir R. Phillimore, Eccl. Law, p. lxx.] CHAP. 11] ASSISTANT CURATES, 22¢ decision: this point was ruled by the Privy Council, in Poole v. The Bishop of London, in the year 1861. [14 Moore, P. C., p. 262.] The hearing of such an appeal is, however, required to be of a real and formal character: and when Archbishop Sumner tried to settle the appeal in the Poole case by a letter, in which he said that he had read the petition of appeal and the proceedings, and agreed with the bishop, the Court of Queen’s Bench issued its mandamus to him, “to hear the said appeal and decide the merits thereof.” [Reg. v. Archbishop of Canterbury, 28 L. J. Q@. B. 154.] At the same time, it must be borne in mind that it was afterwards alleged by Lord Cranworth, in giving the reasons for the Privy Council’s final decision on the case, that the appeal to the archbishop “is not an appeal as between litigant parties,” but “a reasonable safe- guard provided by the Legislature to prevent hardship from a hasty or erroneous exercise of discretion.” Upon the vacation of a benefice, by death or otherwise, the deputy of the late incumbent does not cease to be curate of the benefice. If the new incumbent give him six weeks’ notice to quit, at any time within six months of his institution, the curate is dismissed; but otherwise, his licence still holds good as if there had been no change of incumbent. It is believed that a curacy determines by the institution of the clergyman holding it to a benefice ; but no decision has been given upon the point, and in a disputed case a bishop set the curate free by cancelling his licence. Section 77 of the Pluralities Act, 1838, as amended by the Pluralities Act Amendment Act, 1885, and by the 226 ASSISTANT CURATES. [BOOK III.) Benefices Act, 1898, provides that whenever the bishop shall see reason to believe that the ecclesiastical duties of any benefice are inadequately performed, he may issue a commission to four commissioners—one being the rural dean or archdeacon, one a canon or prebendary of the diocese, one a clergyman of the archdeaconry, and one a magistrate—to whom the incumbent may add a clergy- man of the diocese or a magistrate, and to whom are to be added two magistrates or barristers or solicitors of not less than ten years’ standing, nominated by the chairman of quarter sessions, or, failing him, by the lord-lieutenant ; and if the commissioners report that the duties are inade- quately performed, the bishop may require the incumbent to appoint a curate, and if the incumbent does not appoint may himself appoint a curate; but the incumbent may appeal from such decision to the archbishop. Section 9 of the Benefices Act, 1898, further provides that the commis- sion so appointed may report that the ecclesiastical duties of the benefice are inadequately performed, and that this is due to the negligence of the incumbent, and thereupon the bishop, if he thinks the appointment of a curate desir- able, shall himself appoint a curate or curates, as in the said section 77 is mentioned, without requiring the in- cumbent to do so; and may also, if he thinks it expedient in the interests of the benefice, inhibit the incumbent from performing all or any of those duties. The incumbent may appeal against any such appointment of a curate and against any such inhibition to the Court established by the Benefices Act, 1898. In the above sections the expres- sion “ecclesiastical duties” includes not only the regular CHAP. II.] . ASSISTANT (CURATES. 226* and due performance of service on Sundays and holidays, but also all such duties as a clergyman holding a benefice is bound by law to perform, or the performance of which is solemnly promised at the time of ordination, and the performance of which shall have been required of him by the bishop in writing, and in Wales may include minis- tration in the Welsh language, and also includes the ob- servance of all the promises which every clergyman of the Church of England solemnly makes at his ordination ; and the expression “negligence” includes wilful default in the performance of such duties. [The further details of the Pluralities Act, as they relate to non-resident incumbents, are so voluminous, and the necessity for reference to them is so comparatively rare, that they are here omitted. They (and, in fact, almost all the statute law now in force relating to curates) will be found in twenty-seven sections of the rather cumbrous statute in question—viz., 1 & 2 Vict. ch. 106, §§ 75-102, now amended in certain points by “The Pluralities Acts Amendment Act, 1885” [48 & 49 Vict. ch. 54]; §§ 8, 9, 10, 12, 13.] Chapter IIT. THE CURE OF SOULS. § 1. Patronage . . . 227 | § 6. Reading In... . 243 § 2. Presentation . . 232 | § 7. Perpetual Curates. . 246 8 3) Admission...» 1234 ESO a Kes deren aes ee ene 4, tinstthution, 3. 1. 72370 R Ours ees, ae ee § 5. Induction . . . 240 | § 10. Resignation ofa Benefice 251 |e bishop of each diocese being ultimately responsible for the cure of souls in every part of it, the ultimate right and duty of providing for that cure of souls in detail rests with him; and thus the right and Episconal duty of nominating the clergy of each parish responsi- is, theoretically, a right and duty that belongs asm tek? to the bishop of the diocese in which the 8°™ls- parish is situated. § 1. Patronage. But founders of churches claiming to have a voice in the appointments of the clergy who were to minister in them, a “jus patronatis” became recognised, : c ae and the which, belonging originally to founders, was jus A : patronatus. gradually extended to others, who in some way or another came to stand in the place of founders. Thus CHAP. III.] PHE CORE VORA SOULS, 227% the initial authority in the appointment of a clergyman to the cure of souls in any parish is, in a majority of cases, taken out of the hands of the bishop, and placed in those of the “patron,” that patron being the Crown, or in some cases a person holding a particular office under the Crown, ecclesiastical corporations other than the bishop of the diocese, and private persons, who may either have the . patronage of their own right and to appoint whom they please, or may be trustees appointed for some specific purposet In many cases the patron is the owner of most of the land which forms the parish, and represents the Wat person or persons who originally endowed it patrons. with tithes or other property for spiritual objects. Hence the patronage of livings in English dioceses is, to a large extent, lay patronage. This right of patronage is, however, not of an absolute but of a conditional character, the conditions being those Presenta- Which regard the fitness of the person nomi- Eton: nated ; and this fitness is to be decided (subject to the right of appeal) by the bishop. Hence patronage takes the form of “presentation,” the patron presenting to the bishop the person whom he has nominated to become rector or vicar of the parish to the benefice of which he claims the right of advowson. If the person so * The title of “patron” has arisen from some unexplained con- fusion respecting the old Roman law terms “ patronus” and “ad- vocatus ;” and thus, although the person appointing is called a “patron,” the right of appointment is called the right of “advowson,” jus advocationis, [Burn’s Eccl, Law, Phill. Ed. i. 5 d.; Sir R. Phillimore, Hecl. Law, 330, 331.] Perhaps the person appointing was regarded as “ patronus” of the parishioners in the old sense, ? 228 THE CURE OF SOULS. [Book m1. presented is approved of by the bishop, the latter even- tually institutes him to the spiritual cure of Institution : : to souls, and causes him to be inducted to the spiritual. temporal possession of the goods and income to annexed to the cure of souls. Perpetual curates temporals. : are presented in the same manner to the bishop, and are by him licensed to their curacy. When the bishop of the diocese is himself the patron of a living within his diocese, he institutes the clergyman whom he nominates to it, without any inter- mediate act of presentation between himself as patron and himself as bishop, the act of institution being then termed a collation.! The right of patronage may be inherited or purchased ; but it cannot be exercised by lunatics, or, : ; o may Roman Catholics; and, like all other real estate, not be it could not be held by aliens till the recent eal ch ae statute, 33 and 34 Vict. ch. 14, § 2 Further limitations on the right of transfer are provided by the Benefices Act, 1898, which enacts (section 1) that a transfer of a right of patronage shall not be valid unless it is registered in the diocesan registry within one month, or such extended time as the bishop may allow, and unless. it transfers the whole interest of the transferor, except in Collation. — * In the very anomalous case of “donatives” neither presenta- tion, institution, nor induction were required. They have now been abolished by the Benefices Act, 1898, which provides that benefices with cure of souls which were donatives, shall henceforth be pre- sentative. CHAP. III.] THE CURE OF SOULS. 229 the case of a family settlement or a mortgage, and unless it is made more than twelve months after the last insti- tution or admission to the benefice; and no right of patronage may be sold by public auction, except in con- junction with a manor or an estate of not less than 100 acres of land in the parish or in an adjoining parish. The same section also provides that any agreement for any exercise of a right of patronage of a benefice in favour of, or on the nomination of, any particular person, and any agreement on the transfer of such a right for the re- transfer of the right, or for postponing payment of any part of the consideration until a vacancy, or for more than three months; or for payment of interest until a vacancy, or for more than three months; of for any payment in respect of the date at which a vacancy occurs; or for the resignation of a benefice in favour of any person—shall be invalid. And any clergyman who is knowingly party or privy to any transfer, presentation, or agreement which is invalid under the section, is by the fifth sub-section declared to be guilty of an offence under section 2 of the Clergy Discipline Act, 1892. A bankrupt still retains the right of nomination as well as presentation, and it cannot be exercised by his trustee in bankruptcy. [46 & 47 Vict. ch. 52, § 44.] The patronage of lunatic patrons is exercised by the Lord Chancellor. The patronage of Roman Catholic patrons is exercised by the University of Oxford in the case of benefices in one half of England, and by the University of Cambridge in the case of benefices in the other half, 230 THE CURE OF SOULS, [BOOK III. [3 James I. ch. 5, § 13; 1 W. & M. sess. 1, ch. 26; 13 Ann. ch. 13; 11 Geo, II. ch. 17, §5.] If Roman Catholics are joint patrons with other persons who are not Roman Catholics, then the whole right of patronage rests with those who are not Roman Catholics, and does not pass to the universities! [Edwards v. Bishop of Exeter, 5 Bingh. N.C. 652]; but if a Roman Catholic nominates to another person who is not a Roman Catholic to present, the nomi- nation and presentment are void. [Boyer v. Bishop of Norwich, 1892, P.D.41.] * The right of patronage also passes from the ordinary « The division of the counties between the Universities of Oxford and Cambridge is as follows :+ OXFORD, Oxford. Worcestershire. Northamptonshire, Kent. Staffordshire. Pembrokeshire. Middlesex. Warwickshire. Carmarthenshire, Sussex. Wiltshire. Brecknockshire. Surrey. Somersetshire. Monmouthshire, Hampshire. Devonshire, Cardiganshire. Berkshire. Cornwall. Montgomeryshire. Buckinghamshire, Dorsetshire. The City of London, Gloucestershire. Herefordshire. CAMBRIDGE. Essex. Leicestershire. Cumberland. Herefordshire. Derbyshire. Westmoreland. | Bedfordshire. Nottinghamshire. Radnorshire, Cambridgeshire. Shropshire. - Denbighshire, Huntingdonshire. Cheshire. Flintshire, Suffolk, Lancashire, Carnarvonshire, Norfolk. Yorkshire, Anglesey. Lincolnshire, Durham. Merionethshire, Rutland. Northumberland, Glamorganshire, CHAP. III.] LEE CORE OF SOGLS, 231 patron to the Crown, when a benefice has been vacated by the promotion of its incumbent to a bishopric in England. The “next presentation” to a benefice might formerly be assigned by the patron to another person, for a consideration, in money or otherwise, provided the purchaser was not in holy orders, and pro- vided the benefice was not vacant at the time of assign- ment. But now the purchase of next presentations will be rendered invalid, except as regards existing rights, by the provision in the Benefices Act, 1898, that a transfer of less than the whole interest of the transferor in the right of patronage will not be valid except as therein provided. The purchase of advowsons and next presentations by clergy- men was forbidden by the canon law, and those who thus purchased them were deprived. This rule of the canon law is confirmed and enforced, as regards next presenta- tions, by the statute law, an Act of Queen Anne enacting as follows:—Whereas some of the clergy have procured preferments for themselves, by buying ecclesiastical livings, and others have been thereby discouraged ; it is enacted, that if any person shall, for any sum of money, reward, gift, profit, or advantage, directly or indirectly, or for or by reason of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly, in his own name, or in the name of any other person, take, procure, or accept the next avoidance of or presentation to any benefice with cure of souls, dignity, prebend, or living ecclesiastical, and shall be presented or collated thereupon: every such presentation or collation, and every admission, institution, investiture, and induction upon the same, shall Next pre- sentation. * Such a diversion of patronage to the Crown does not interfere with any agreement as to “next presentation,” leaving the agree- ment in full force for the turn next after the Crown presentation. R 232 THESCORE OF “SOULS: [BOOK III. be utterly void, frustrate, and of no effect in law, and such agreement shall be deemed a simoniacal contract; and it shall be lawful for the Queen, her heirs and successors, to present or collate unto, or give or bestow, every such benefice, dignity, prebend, and living ecclesiastical, for that one time or turn only; and the person so corruptly taking, procuring, or accepting any such benefice, dignity, prebend, or living, shall thereupon and from thenceforth be adjudged a disabled person in law to have and enjoy the same, and shall also be subject to any punishment, pain, or penalty, limited, prescribed, or inflicted by the laws ecclesiastical, in like manner as if such corrupt agreement had been made after such benefice, dignity, prebend, or living ecclesiastical, had become vacant—any law or statute to the contrary in anywise notwithstanding. [13 Ann. ch. 11, § 2.] By section 1 (7) of the Benefices Act, 1898, a life interest in an advowson may, however, still be reserved to the settlor in a family settlement, and the purchase of a life estate so reserved may therefore still be made, and will not, it seems, be within the statute of Ann. [Walsh v. Bishop of Lincoln, L. R. 10 C. P. p. 518.] § 2. Presentation. The nomination and act of presentation might formerly be effected by an individual patron vivd voce, by Presenta- fod By. his declaring, in the presence of the ordinary, word of ; 3 ; ‘ Laan that he presented such and such a* person to the ordinary for institution, It was always necessary, however, that a corporation composed of several CHAP. III.] THE CURE OF SOULS. 233 or many persons should make the presentation in the form of a written instrument under their common seal. The written form is now the usual form of presentation, and as presentations were for a very long period subject to stamp-duty! it is probably the only legal form. The instrument is worded in such By written instrument, terms as the following :— “To the Right Reverend Father in God, &. Lord Bishop of , or in his absence to his vicar-general in I | Peres spirituals, or to any other person having, or tion. who shall have, sufficient authority in this behalf: I, Sir W. P., Baronet, true and undoubted patron of the rectory of the parish church of [or, of the vicarage of] , In the county of , and in your diocese of , now vacant by the death [or resignation, or otherwise as the case shall be] of A. B., the last incumbent there, do present unto you C. D., clerk, Master of Arts, humbly requesting that you will be pleased to admit the said C. D. to the said church, and to institute and cause him to be inducted into the same, with all its rights, members, and appurtenances, and to do and execute all other things in this behalf which shall belong to your episcopal office. In witness whereof, I have hereunto set my hand and seal, the day of ,in the year Tome « The stamp-duties on instruments of presentation were abolished by 40 & 41 Vict. ch. 13. 234 THEVCORE WTOP eS OUiss: [BOOK Iti. A lay patron may revoke this instrument and present oy shee Sie another clerk, if he do it before the clerk first of thepre- presented is instituted: and the Crown can sentation. evoke even after institution, if before induc- tion. A lay patron may also present a second clerk without revoking his first presentation, in which case the bishop himself decides which of the persons presented he will institute to the benefice. This privilege does not belong to ecclesiastical patrons; nor, perhaps, to colleges as quasi-ecclesiastical patrons. But by section 6 (2) of the Benefices Act, 1898, if the presentee of a clerical patron is refused institution or admission, the patron is to have the same right of further presentation as though he were a lay patron. Section 6 (1) of the same Act provides that a patron may not present again a person who has been refused by the bishop in respect of the same vacancy, and that any such second presentation is to be void. : § 3. Admission. If the patron presents to the bishop a person who is not in priest’s orders, or who is of immoral character, or who is deficient in learning, or who is heretical in belief, the bishop may refuse to institute him.! This rule of the Church is enforced by the 39th canon of 1603, which enacts that: “No bishop shall institute any to a benefice, who hath been ordained by any other bishop, except he first show unto him his letters of orders, and * In the case of Heywood v. Bishop of Manchester [L. R. 12 QB. D. 404], an additional ground on which a bishop may refuse to insti- tute a clerk in Holy Orders was apparently introduced ; namely, the commission by the clerk, on some previous occasion, of an ecclesias- tical offence which might have been punished by deprivation. CHAP. IIL.] THE CURE OF SOULS. 234* bring him a sufficient testimony of his former good life and behaviour, if the bishop shall require it; and, lastly, shall appear, upon due examination, to be worthy of his ministry.” By the Benefices Act, 1898, section 2, the Bishop may also refuse to institute or admit a presentee if, at the date of the vacancy, not more than one year has elapsed since a transfer, as defined by the first section of that Act, of the right of patronage of the benefice, unless it be proved that the transfer was not effected in view of the proba- bility of a vacancy within such year; or on the ground that at the date of presentation not more than three years have elapsed since the presentee was ordained deacon, or that the presentee is unfit for the discharge of the duties of the benefice by reason of physical or mental infirmity or incapacity, pecuniary embarrassment of a serious cha- racter, grave misconduct or neglect of duty in an eccle- siastical office, evil life, having by his conduct caused grave scandal concerning his moral character since his ordination, or having, with reference to the presentation, been knowingly party or privy to any transaction or agreement which is invalid under this Act; and a bishop shall not collate, institute, or admit any person to a benefice until the expiration of one month after notice, in the prescribed manner, that he proposes to collate, institute, or admit such person has been served on the churchwardens of the parish, who shall publish the notice in the prescribed manner. “Duties,” in this section, means not only the regular and due performance of divine service on Sundays and holidays, but also all such duties as a clergyman holding 235 LHE CURE. OF -“SOCGES: [BOOK III. a benefice is bound by law to perform, or the performance of which is solemnly promised at the time of ordination ; and in Wales shall include such ministrations in Welsh as the bishop may direct, but so that not more than one service in Welsh shall be required on each Sunday. [1.] That the person presented is in priest’s orders is to [Parer 2.) be Shown by his letters of orders or by a certi- Letters of fied copy of the register of his ordinations, if Orders. owe the original documents are lost. [2.] Moral character is usually certified by the letters testimonial of three beneficed clerks of the 5.443; \ diocese, or by such letters testimonial counter- Letters signed by the bishop of the diocese in which test#momia | the certifying clerks are beneficed, if not in that of the bishop to whom the certificate is addressed. The form of these is the same as in the case of similar testimonials for orders. [See page 195.] In the case of Bishop of Exeter v. Marshall [L. R. 3, H. L. p. 17], it was decided that the bishop could not insist upon these testimonials. [3]. Learning is generally taken for granted, having been, in fact, certified by the possession of an university degree, and by the examinations for deacon’s and priest’s orders. But it is not always so taken for granted, the bishop sometimes examining the presentee, or causing him to be examined. [Willis v. Bishop of Oxford, L. R. 2 P. D. 192.] | The Bishops of St. Asaph, Bangor, Llandaff, and St. David’s may refuse institution to clergymen who cannot perform Divine Service and preach in the Welsh language. But the decision that a clergyman is not sufficient in Welsh is subject to an appeal to the arch- bishop. [1 & 2 Vict. ch. 106, § 104. Marquis of Aber- gavenny v. Bishop of Llandaff, L. R. 20 Q. B. D. 460.] [4.] Cases of proveable heterodoxy are rare, and the only 4 CHAP. III.] THE CURE OF SOULS. 235* modern case in which heterodoxy has been openly alleged as a bar to institution was that of Mr. Gorham, whom Bishop Phillpotts of Exeter refused to institute to Bramp- ford Speke, in 1847 (after examination), on that ground. From this refusal the presentee appealed; but, having submitted himself for examination, the Privy Council were “relieved from the necessity of considering whether he could or could not lawfully have declined to submit to such a course of examination.” And, although it is generally taken for granted that examination into the orthodoxy of the presentee is included in the terms of the 39th canon, the expression “worthy of his ministry” is sufficiently vague to leave the question open to further discussion. If, for any of the foregoing causes, the bishop refuses institution to the clerk presented to him by the, _ eae ; imits of patron, he should do so within twenty-eight bishop’s days after the presentation has been made, ™48*) under the 95th canon of 1603. Where a bishop, on any ground included in section 2 of the Benefices Act, 1898, or of unfitness or disqualifica- tion of the presentee otherwise sufficient in law, except a ground of doctrine or ritual, refuses to institute or admit a presentee to a benefice, section 3 of that Act provides that he shall signify the refusal in writing, together with the grounds thereof, to the person presenting and to the presentee in the prescribed manner, and within one month after the signification either of those persons may, in the prescribed manner, require that the matter be heard by a court consisting of the archbishop and a judge nominated by the Lord Chancellor, and the bishop shall be made a party to the proceedings. The court so constituted is to be a court of record and held in public, and at any hearing the legal rules of evidence are to prevail. 236 » THE. CURE OF SOULS. [BOOK III. The judge is to decide all questions of law, and find as to any fact alleged as reason of unfitness or disqualifi- cation, and such decision and finding are to be binding on the archbishop, who shall thersupon) if the judge finds that no such fact sufficient in law exists, direct institution or admission; or if the judge finds that any such fact sufficient in law exists, decide if necessary whether by reason thereof the presentee is unfit for the discharge of the duties of the benefice, and determine whether insti- tution or admission ought, under the circumstances, to be refused; and in either case the archbishop is to give judgment accordingly, and that judgment is to be final. The court is to have the same powers as to administering oaths, and the attendance of witnesses and the production by them of documents, and as to costs, as are exerciseabie by the High Court. Where the presentation is made to an archbishop, the court is to consist of the archbishop of the other province and such judge, Section 4 of the Act provides that the bishop may, on the hearing of any case under section 3 of the Act, rely on any ground included in his signification - of refusal, and by the leave of the judge (on such terms as to notice, costs, adjournment, or otherwise, as the judge thinks fit) any other ground sufficient in law (not being of doctrine or ritual). Section 3 of the Benefices Act, 1898, further provides that if in any case to which that section applies the bishop signifies his refusal pursuant to that section, no proceeding in the nature of qguare impedit or duplex querela shall be taken in any other court in respect of the refusal; but in cases to which this prohibition does not apply, the pre- sentee whose institution is refused may still appeal to the archbishop’s court, and from that court to the Queen in CHAP. III.] THE CURE OF SOULS. ‘ 237 Council; while a patron who considers himself aggrieved by such refusal may still apply by action of quare impedit to the temporal c¢urts. § 4. Institution. Institution is the act by which the bishop, who holds the cure of souls for the whole of his diocese, assigns a portion of that cure of souls to a rector or vicar of a , parish within it, as his deputy. So the words formerly used by the bishop in giving institu- tion were: “Instituto te rectorem talis ecclesiz cum cur animarum; et Accipe curam, tuam et meam.” [Gibson’s Cod. tit. xxxiv. ch. 5, note /.] Before this institution to the cure of souls is given by the bishop, he is to cause the presentee to make o,4,.6 4-4 the declaration of assent, to take the oaths of declara- allegiance and of canonical obedience, and to opie make the declaration against simony, as ordered by Canon 36 of 1865, and by the Benefices Act, 1898 [61 & 62 Vict. ch. 48, § 1 (4)]. The three former of these are the same as are required from persons about to be ordained deacon or priest, and will be found at pages 201 and 203, The declaration against simony is as follows :— Institution, what it is. “TI, 0. D., hereby solemnly and sincerely declare in re- ference to the presentation made of me to the rectory (or vicarage, &c.) of as follows: “(1.) I have not received the presentation of the said rectory (or vicarage, &c.) in consideration of any sum of money, reward, gift, profit, or benefit directly or indirectly given or promised by me, or by any person to my knowledge or with my consent, to any person whatsoever, and I will not at any time hereafter per- form or satisfy any payment, contract, or promise 238 THE CURE OF SOULS; [BOOK Ill. made in respect of that presentation by any person without my knowledge or consent. “(2.) I have not entered, nor, to the best of my know- ledge and belief, has any person entered, into any bond, covenant, or other assurance or engagement, otherwise than as allowed by sections 1 and 2 of the Clergy Resignation Bonds Act, 1828, that I should at any time resign the said rectory (or vicarage, &c.). “(3.) I have not by myself, nor, to my knowledge, has any person on my behalf, for any sum of money, reward, gift, profit, or advantage, or for or by means of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or in- directly procured the now existing avoidance of the said rectory (or vicarage, &c.). “(4.) I have not, with respect to the said presentation, been party or privy to any agreement which is invalid under section 1,subsection 3,of the Benefices Act, 1898.” A certificate under the bishop’s hand and seal is given, that these declarations have been made and oaths taken, which is to be kept, as a record of the fact, by the person instituted. Institution is given, according to modern custom, by the bishop, or his commissary, reading an instrument drawn up under his seal—the clergyman to be instituted kneeling down before the bishop, and holding the seal in his hand. The words of the document are as follows; the bishop, before reading them, making the solemn invoca- tion, “In the Name of the Father, and of the Son, and of the Holy Ghost ” :— “ A., by Divine permission Lord Bishop of &., to our well-beloved in Christ, C.D. clerk in Holy Orders, CHAP. III.] HES CURESOL, SOULS. 239 M.A. Greeting. We admit you to the Rectory of the Parish Church of , in the county of : within our diocese and jurisdiction, now vacant by the [death or resignation] of H. F#., clerk in Holy Orders, the last incumbent there, to which you are presented to Us by , the true and undoubted patron thereof, in full right (as it is asserted). And we do hereby duly and canonically institute you in and to the said Rectory, and invest you with all and singular the rights, members, and appurtenances thereto belonging, You having first, in Our presence, made and subscribed the Declarations, and taken the Oaths provided to be made, subscribed, and taken, and also having first taken the Oath of Canonical Obedience to Us and our Successors, Bishops of in all things lawful and honest. And we do by these Presents commit unto you the cure and government of the Souls of the Parishioners of the said Parish, and do authorize you to preach the Word of God in the Parish Church aforesaid, Saving always to Us and our Successors our Episcopal Rights, and the Dignity and Honour of our Cathedral Church of . In testimony whereof We have set our hand, and caused our Episcopal Seal to be affixed to these presents. Dated the day of , in the year of Our Lord one thousand eight hundred and , and in the year of our Consecra- tion.” A (LS.) B A similar form is used where the bishop is himself the patron of the benefice; but it then becomes a collation instead of an institution, and is worded accordingly. The bishop’s register contains an exact record of every 240 THE CURE OF “SOULS. [BOOK II. institution or collation, and can be referred to as a legal authority, if the instrument itself is lost or destroyed. By 1 & 2 Vict. ch. 106, § 11, institution to a benefice vacates any benefice previously held, unless the plurality be legalized. The vacation of a curacy is not so certain. See p. 225. Institution may take place anywhere, and not necessarily even in any place within the diocese of the bishop in- stituting; though the clerk must be instituted i propria persona. The fees on an institution amount to £7 13s. 6a.; on a collation to £8 15s. 6d. The bishop makes a return of every institution by him to the Treasurer of Queen Anne’s Bounty, who thereupon transmits to the clerk instituted an account of the pay- ments to be made by him in respect of the yearly fruits and tenths of such benefits. [1 Vict. ch. 20, § 8.] § 5. Induction. The legal rights of a clergyman who has been instituted to the cure of the souls of any parish are completed by his induction to the real and corporal possession of the benefice. Induction must take place in the church of the benefice, the clerk to be inducted. appearing either in propria persona, or by his lawful proctor. Induction takes place in obedience to a mandate of the bishop, issued to the archdeacon of the archdeaconry in which the benefice is situated. The arch- Archdeacon deacon either inducts in person, or he issues a ¢¢ inanct, precept to some deputy or deputies, not neces- sarily naming them, but permitting the incumbent to -* In some places, by prescription, the dean and ehapter induct, instead ot the archdeacon, CHAP. III.] _ILHE CURE OF SOULS. 241 select some neighbouring clergyman. The form of this precept for induction is as follows :— “The Venerable ° Archdeacon of the archdeaconry of , To all and singular Rectors, Vicars, Chap- lains, Curates, and Clerks, whomsoever and. where- soever, in and throughout our whole archdeaconry. Greeting. “WHEREAS the Right Reverend Father in God ; by Divine permission Lord Bishop of , hath admitted the Reverend , clerk, M.A., to the Rectory and Parish of , In the county , and within our said Archdeaconry (vacant by the of , clerk, the last Incumbent thereof), to which he was presented by , the true and undoubted Patron thereof (as is asserted), and hath duly and canonically instituted him in and to the said Rectory, and invested him with all and singular the rights, members, and appurtenances thereunto belonging, and hath charged and strictly enjoined us to induct or cause the said , or his lawful Proctor for him and in his name, to be inducted into the real, actual, and corporal possession of the said Rectory, and of all and singular the rights, members, and appurtenances thereto belonging; We do hereby authorize and empower you jointly and severally to induct, or cause the said , or his lawful Proctor for him and in his name, to be inducted into the real, actual, and corporal possession of the said and Parish Church of , and of all and singular the 242 THE CURE OF SOULS: [BOOK III. rights, members, and appurtenances thereto belong- ing: And what you shall do in and concerning the premises you or whosoever of you that shall execute this mandate are duly to certify us or our official when you shall be lawfully required so to do. ‘Given at , under our Archidiaconal Seal, this day of , in the year of Our Lord Deputy Registrar. [On the back.] “On the day of in the year of Our Lord one thousand eight hundred and , the within- named was duly inducted into the real, actual, and corporal possession of the within-mentioned Rectory, and of all and singular the rights, members, and appurtenances thereto belonging, in obedience to the within mandate, By me , vicar of ; in the presence of us ‘ The traditional custom of induction is for the person inducting to place the hand of the person to be inducted upon the key of the church-door, or on some part of seats the church itself, at the same time reading panying the above document. After which the inductor comme" opens the church-door, and causes the person inducted to enter the church alone, and to toll one of the bells as a public proclamation that he is in possession of the benefice. But any form of corporal or manual con- tact with any part of the church or churchyard, effected by the clerk inducted through the instrumentality of the CHAP. TII.] THE, CURE OF SOULS. 243 inductor, is sufficient. The above endorsement is then signed by the inductor and the witnesses. ; The effect of induction is to make the person already instituted to the cure of souls the actual and lawful possessor of the freehold of the church, eonL a churchyard, rectory-house, glebe, &c., and of all legal rights and profits belonging to the incumbent of the benefice. The fees on induction are set out in App, XILI. § 6. Reading In. It is provided by the law that every clergyman entering on the cure of souls, whether for the first time or not, shall make a public declaration of his faith, and give to the people among whom he is placed a pledge of his orthodox conformity to the rules and tenets of the Church of England. This is to be done, however, not in terms of his own choice, but in the terms set forth in the Book of Common Prayer and in the Thirty-nine Articles of Religion. This was enacted under the severe penalty of forfeiture of the benefice by the Act of Uniformity [14 Car. IL, ch. 4]. And now the Clerical Subscription precte? ©¥ Act [28 & 29 Vict. ch. 122 § 7] provides as U2iformity and Clerical follows: “Every person instituted or collated Subscrip- tion Act. to any benefice with cure of souls, or licensed * As the interest of the vacating incumbent terminates with his death, or with his avoidance of the benefice, the succeeding incum- bent is entitled to the income of the benefice from that day, although he may not be inducted for some months afterwards, But deduction has to be made for the expenses attending provision for the care of the parish, &c., during the interval. ‘244 ld POUR. HOP SOG tke [BOOK III. to a perpetual curacy, shall, on the first Lord’s-day on which he officiates in the church of such benefice or perpetual curacy, or on such other Lord’s-day as the ordinary may appoint and allow, publicly and openly, in the presence of the congregation there assembled, read the Thirty-nine Articles of Religion, and immediately after reading the ssme make the said Declaration of Assent, adding, after the words ‘Articles of Religion’ in the said declaration, the words, ‘which I have now read before you.’ “If any person instituted, collated, or licensed as aforesaid, wilfully fails to comply with the provisions of this section, he shall absolutely forfeit his benefice or perpetual curacy; but no title to present by lapse shall accrue by any such forfeiture, until the ordinary has given six months’ notice thereof to the patron.” This declaration of assent is like that made at his Declaration WStitution, but in the following slightly of assent. modified form :— val do solemnly make the following declaration : “T assent to the Thirty-nine Articles of Religion, which I have now read before you, and to the Book of Common Prayer; and of the ordering of Bishops, Priests, and Deacons. I believe the doctrine of the Church of England, as therein set forth, to be agreeable to the Word of God; and, in public prayer, and administration of the Sacraments, I[ will use the Form in the said book prescribed, and CHAP. III.] LHE CORE OF SOULS. 245 none other, except so far as shall be ordered by lawful authority.” A certificate that the new incumbent has so “read himself in” should be obtained by him in the |... 4 ertificate following form, and preserved as a record of of the fact :-— reading in, “MeEmoRANDUM. That on Sunday, the day of ; in the year of Our Lord one thousand eight hundred and (being the first Lord’s-day on which he offi- ciated as rector [ov vicar] [or, being a Lord’s-day appointed and allowed by the Ordinary for this purpose]), , rector [or vicar] of the rectory [or vicarage] of the parish church of ,in the county of , and diocese of , did in his parish church of aforesaid, publicly and openly, in the presence of the congregation there assembled, read the Articles of religion, commonly called the Thirty- nine Articles, agreed upon in Convocation in the year of Our Lord 1562, and did, immediately after reading the same, make the following declaration of assent, viz.:—[Here is to follow the declaration, as given above. | “ Witness our hands the day and year above written— \ Churchwardens. * I Parishioners. The profession of orthodoxy so made completes the series of formal steps by which a priest becomes settled in a parish as its rector or vicar having the cure of souls, and possessing all the rights, as to freehold and other s 246 THE CURE OF SOULS, [ROOK III. matters, belonging to the benefice. Being thus established, he can only cease to lie under the obligations incurred, or to hold the privileges acquired, by removal to some other cure, by a formal act of voluntary resignation accepted by the bishop, by compulsory deprivation, or by death. § 7. Perpetual Curates. These benefices are conferred, as already stated [page 229], by presentation by the private patron, if any; the proper title for the form of presentation being “nomination.” On this nomination the Bishop issues his licence. There is neither institution nor induction. The fees on the licence amount to £4 9s. § 8. Residence. As a general rule, every rector or vicar is required to reside within his parish; and, even although there should be no house of residence annexed to the benefice, he can, only lawfully reside elsewhere under the express licence of the bishop of the diocese. This rule of the Church is enforced under severe penalties by a statute of recent times [1 & 2 Vict. ch. 106], the 32nd section of which enacts as follows:— “And be it enacted, that every spiritual person holding any benefice shall keep residence on his benefice, and in the house of residence (if any) belonging thereto; and if any such person shall, without any such licence or exemp- tion, as is in this Act allowed for that purpose, or unless he shall be resident at some other benefice of which he may be possessed, absent himself from such benefice, or from such house of residence (if any) for any period exceeding the space of three months together, or to be accounted at several times in any one year, he shall, when such absence shall exceed three months and not exceed six months, forfeit one third part of the annual value of the benefice from which he shall so absent himself; and when such absence shall exceed six months and not exceed eight CHAR, III. } THESCURE (OF) SOULS. 247 months, one half part of such annual value; and when such absence shall exceed eight months, two third parts of such annual value; and when such absence shall have been for the whole of the year, three fourth parts of such annual . value.” The manner in which the penalties are to be recovered, and the application to be made of them for the improve- ment of the benefice, are exactly defined by the Act in question, but need not be here set forth. Another and more usual mode of enforcing residence is by monition to reside, followed’ in the event of dis- obedience by sequestration of the benefice. [1 & 2 Vict. ch. 106, § 54.] If a benefice remains under sequestration for a whole year, or is twice sequestrated in two years, it becomes void. [1 & 2 Vict. ch. 106, § 58.] But, under certain circumstances, the bishop of the diocese is empowered to grant a licence of non- Lawful residence. These may be generally stated as Ptaorieas follows [1 & 2 Vict. ch. 106, § 43] :— residence, [1.] When there is no house of residence within the parish. [2.] When the house of residence is unfit for the resi- dence of the incumbent, such unfitness not having been caused by his negligence, default, or other misconduct. [3.] When the incumbent is incapable, through infirmity of mind or body, of fulfilling the duties of his cure. [4.] The incumbent may also be licensed to reside in some other house within his parish, provided he keep the rectory or vicarage in proper repair. [5.] He may also have a licence of non-residence, for six months only (renewable by permission of the archbishop of the province), in case of the dangerous illness of his 248 THE CORE OF (SOULS: [BOOK IIT wife, or of his child, provided the latter resides with him as part of his family.’ An incumbent of a parochial cure who is also member of a cathedral or collegiate body is permitted to reckon his residence at the cathedral or collegiate church of which he is a member as equivalent to residence in the parish of which he is incumbent, provided the whole term of his non- residence in the latter does not exceed five months in any — one year, from the 1st of January to the 31st of December, including the residence at the cathedral.* In such a case no episcopal licence is necessary. [§ 39.] In any case where a rector or vicar is entitled to a licence for non-residence, he must send in a petition? to the bishop, containing the following particulars, or Petition such of them as may be applicable to his for non- . residence, CAS@ :— [1.] Whether he intends to perform the duties of his * Special licences may be granted by the bishop, subject to the approval or disapproval of the archbishop, without whose sanction they have no force. In such special licences the reason for granting non-residence need not be stated. : 2 If two yearly terms of cathedral residence are kept between the above two days, they may, however, be reckoned as residence on the | benefice, though exceeding five months in duration, 3 The preamble of the petition may be in the following form :— “To the Right Reverend , Lord Bishop of “The humble petition of the reverend , rector of in the county of ; “ SHEWETH,— “That your petitioner is desirous to obtain your Lordship’s licence for non-residence on his said benefice, on account of” [stating the reason, &c., as above], CHAP. III. ] THE CURE OF SOULS. 244 benefice in person; and if so, where, and at what distance from the church or chapel, he intends to reside, [2.] What salary he proposes to give his curate, if he intends to employ one. [3.] Whether such curate proposes to reside in the parish in which such benefice is situate. [4.] If the curate does intend to reside, then whether in the house of residence belonging to the benefice, or in any and what other house. [5.] If the curate does not intend to reside in the parish, then at what distance therefrom, and at what place, such curate intends to reside. [6.] Whether such curate serves any other and what parish, and if so, whether it is as incumbent or curate; whether he has any and what cathedral preferment, or any and what benefice; or whether he officiates in any and what other church or chapel. [7.] The annual value and the population of the benefice in respect of which any licence for non-residence is applied for. [8.] The number of churches or chapels, if more than one, upon such benefice. [9.] The date of his admission to his benefice. [§ 42.] If the bishop decline to grant the licence, the incumbent may appeal to the archbishop of the province ree: within one month: a similar appeal being also in case of allowed if the bishop revoke any licence for visa a non-residence which he or his predecessor may have granted. By the 50th section of the Act regulating non-residence, it is required that a copy of every licence for non- "250 THE CURE OF SOULS. [BOOK III. residence, and a statement in writing of the grounds of exemption, shall be transmitted by the spiritual person to whom such licence shall have been granted, or who may be exempted from residence, to the churchwardens or the chapel-wardens of the parish or place to which the same relates, within one month after the grant of such licence, or of his taking advantage of such exemption, as the case may be; and if he neglects so to transmit a copy of such licence or statement of exemption, he will lose all benefit of such licence; and until he shall have transmitted such statement, he will not be entitled to the benefit of such exemption. § 9. Pluralitees. The great abuse by which clergymen have been accus- tomed to hold several benefices with cure of souls has led to frequent legislation, which has reached its climax in the Pluralities Acts [1 & 2 Vict. ch. 106, 13 & 14 Vict. ch. 98, and 48 & 49 Vict. ch. 54.] By the 14th section of the latter Act, it is enacted that any clergy- man may “take and hold together any two benefices, the churches of which are within four miles of one another by the nearest road, and the annual value of one of which does not exceed two hundred pounds, or if on one of the said benefices there be no church, then the distance between the two benefices, for the purposes of this Act, shall be computed in such manner as shall be directed by the Bishop of the diocese ; but except as afore- said, it shall not be lawful for any clergyman to take and hold together any two benefices.” But even under this Act two benefices cannot be held without a dispensation from the Archbishop of Canterbury. It may be considered, therefore, that the holding of Modern restrictions. CHAP. III] LHE CURE OF SOULS. 251 benefices with cure of souls in plurality is practically abolished, at least as a matter of profit or f practically advantage to the clergy, and that these ex- abolish : oe : pluralities. ceptional provisions look entirely to the ad- vantage of the parishioners in certain possible exceptional cases. It is, however, still open to the clergy of cathedrals or collegiate churches, heads of colleges, and some other persons holding preferment which does not except entail parochial duty, to hold a parish with cure where there F ‘ p : is not of souls in conjunction with such preferment, gouble cure of souls. under certain restrictions specified in the two before-named Acts. § 10. Resignation of a Benefice. The cure of souls, being received at the hands of the bishop of the diocese or his representative, can only be voluntarily given up by surrender into, and acceptance by, the same hands which committed it to the rector or vicar wishing to resign it. The latter Hadedatte os must state to the bishop his reasons for wish- eee bade ing to resign, and it rests entirely with the ie bishop whether or not he will consent. to accept the resignation. He cannot be compelled to accept it, any more than he can be compelled to ordain.! Sup- posing that he approves of the reasons, and permits the resignation to be made, the deed of surrender is usually executed by the incumbent, or his proctor, in the presence * But institution to another benefice at once releases the incumbent from that which he has previously held, 252 THE CURE OF SOULS. [BOOK III. of a notary public. It is then presented to the bishop, who, if he accepts it, declares his acceptance, and sends notice to the patron of the benefice that it is vacant. In the case of Reichel v. Bishop of Oxford [L. R. 35 Ch. D. 48, 14 App. Ca. 259], it has been decided that the bishop can dispense with these formalities, and accept a resignation by a simple deed executed and sent to him by the clerk; and that no particular form of acceptance is necessary. It seems to have been thought also by the courts and by the House of Lords that the bishop could, when accepting, postpone the date of avoidance. But it did not become necessary to decide this point, which seems a doubtful one. When two clergymen exchange livings, a deed of resig- nation is executed by each, in which there is a proviso making the resignation canditional on presentation to the other’s benefice, and declaring it void if such presentation do not ensue.! Bonds of resignation are also permitted, whereby the clerk presented agrees to resign in favour of any one Engage. Person mentioned, or in favour of one of two ment to — persons, if such persons are in a certain speci- area. fied degree of relationship to the patron or to one of the patrons, The law relating to these will be found in 9 Geo. IV. ch. 94. It is only necessary here to say that they are not actual deeds of resignation, but only agreements to resign, and that to be valid Exchange of livings. * It is very necessary that this proviso should be made. Ina recent case a rector was persuaded by the bishop’s legal secretaries to omit it, on the ground that it showed “want of confidence” towards the other parties concerned. The result was that the patron took advan- tage of the omission to treat the benefice as if it had been altogether vacant, and the clergyman was thus summarily ejected from a living worth about 400/. a year. Where patrons present in turn an ex- change counts as an exercise of the right. [Keen v. Denny, L. R. 1894, 3 Ch. 169.] BOOK TIl1.] IHE CURE OF SOULS. 253 they must be executed before the presentation is sent to the bishop. An Act of Parliament was passed in 1871, “to enable clergymen permanently incapacitated by illness to resign their benefices with provision of pensions.” By this Act [84 & 35 Vict. ch. 44], it is provided that any clergyman who has been an incumbent of one benefice continuously for seven years, and is incapacitated by perma- nent mental or bodily infirmities from fulfilling his duties, may, if the bishop thinks fit, have a commission appointed to consider the fitness of his resigning; and if that com- mission report in favour of his resignation, he may, with the consent of the patron (or, if that is refused, with the con- sent of the archbishop), resign the cure of souls into the bishop’s hands, and have assigned to him, out of the benefice, a retiring-pension not exceeding one-third of its annual value, which is recoverable as a debt from his successor. By an amending Act [50 & 51 Vict. ch, 23], the retiring- pension shall vary with and be regulated by the corn averages governing the value of tithe-rentcharge, and shall at least leave a sufficient income, after payment of all outgoings, to secure to the incumbent a stipend upon the scale of curates’ stipends under 1 & 2 Vict. ch, 106: and if the pensioned clergyman has not paid his dilapida- tions, they may be set off against the pension. A clergyman so pensioned is still amenable to eccle- siastical discipline as if he had remained incumbent of his benefice: and if, being charged with offences that would involve suspension or forfeiture, he should be living abroad, he may be summoned to England by the bishop to answer the charge. [See APPENDIX III.] * Unless no part of the income of the benefice is derived from tithe-rentcharge or glebe-lands, Vez54"e Book IV. PAROCHIAL LAY OFFICERS. Chapter I. CHURCHWARDENS. I. THE OFFICE OF CHURCHWARDEN. § 1. Persons eligible, disqualified, or exempt . : “1 3256 § 2. The Manner of Appointment . ; ; : 15250 II. THE DUTIES OF CHURCHWARDENS. § 1. Provision of Necessaries for Divine Service . 2 4204 §2. Duties during Divine Service . . 265 § 3. Care and Repair of the Church and tts Vicciesot 125ce2 70 § 4. Presentment of Offences against Ecclesiastical Law 275 § 5. Custody of Benefice during Vacancy : : zoe S there is for every parish of the Church of England a clergyman, who is primarily responsible to the bishop and his subordinates for the due observance of ecclesiastical laws; so also, one or more laymen are appointed in every parish, to be primarily responsible, on behalf of the laity, to the bishop and his subordinates, as regards the rights and duties of parishioners in respect to ecclesiastical laws. These representative laymen are called “ Churchwardens” and “ Sidesmen ;” but the latter officers are of so little importance that they will only be occasionally mentioned. 1—THE OFFICE OF CHURCHWARDEN. The name of these parochial officers is derived from one of their duties, that which was originally the only duty CHAP. I.] CHURCHWARDENS. 255 belonging to the office—z.e. the custody or guardianship of the church property belonging to each parish. In later times other duties accumulated upon churchwardens, so that they have become ex officio synodsmen or “sidesmen”—the proper lay representatives of their parishes at synods or visitations, and ex officio overseers of the poor. [43 Eliz. ch. 2,§1.] Now by the Local Government Act, 1894, the powers, duties, and liabilities of the churchwardens of a rural parish, except so far as they relate to the affairs of the church or to charities, or are powers and duties of overseers, but inclusive of their obligations to maintain and repair closed churchyards under the Burial Act, 1855, are transferred to the parish council on its coming into office, and on the 1st November, 1894, all churchwardens, by sect. 5 of the Act, ceased to be overseers ; but churchwardens are still the true repre- sentatives of the laity of their parishes in all ecclesiastical matters, both as regards rights and responsibilities, and all property vested in them which is either connected with the affairs of the church or held for an ecclesiastical charity, by sect. 5 (2) c of the Act, remains vested in them. * SrpEsMen.—These are mentioned in several of the canons of 1603, and in statute 5 & 6 Will. IV. ch. 62, § 9, where they are, apparently, always regarded as “assistants” to the churchwardens in both their capacities. [Canon 90.] Such assistants are only appointed in a few large parishes, where they usually act as deputy churchwardens in outlying townships. The office of churchwarden, as guardian of the goods of the church, dates from the later part of the Middle Ages, when the duty of providing for the repairs of the nave, and of furnishing the utensils for Divine Service, finally settled on the parishioners. The synods- men are of much more ancient date, being derived from the custom observed at episcopal synods of calling upon certain grave laymen of the diocese to report on oath to the bishop respecting its moral condition. [Ayliffe’s Parergon. p. 516.] 256 CHURCHWARDENS. [BOOK IV. § 1. Persons eligible, disqualified, or exempt. The persons primarily eligible for the office of church- Resident Warden are the resident householders of the house- parish ; and according to ancient custom habi- holders. —~_ tual residence was necessary, as a person non- resident would not be present in church to carry out the duties of maintaining order in Divine Service, and of presenting absentees. [Gibs. Cod. ix.15.] But it has been Nomresi- ruled in modern times that householders who dent house- are not habitually resident are also eligible if emiahs they are habitually occupiers'—as in the case of men who occupy one house for business, but reside in another.? [Brook v. Owen, 3 Phill. 517, n.; Stephenson v. Langton, 1 Hagg. Consist. 379.] Partners in business are thus eligible for the parish in which the joint busi- ness is carried on. ‘This eligibility would, of course, not extend to shareholders in incorporated companies; and probably would be limited, in the case of such large non- registered companies as still exist, to those members who personally and habitually take part in such business, Persons occupying the houses of others, as agents or servants only, are not reckoned as householders: but poverty. does not make a person ineligible. | There are a few classes of persons, however, who are Persons absolutely disqualified from election. Such are disqualified. Jews, minors, aliens (even though naturalised), and persons who have been convicted of felony, fraud, or * Mere rating would seem to be not enough, [Reg. v. Harding, 6 Times Law Reports, 53. ] ? Women householders are liable to be called upon to serve the office of churchwarden ; but they are only burdened with it in rare and exceptional cases. The same may be said of infirm persons. CHAP. I] _ CHURCHWARDENS. 257 perjury—all of whom have been excluded by various decisions of the Courts. r Others are exempted from the obligation of serving, even if elected by the parishioners; and should not, therefore, be proposed for election without Peat P their consent. The following is a list of such exemptions :— Peers. Sheriffs. Members of the House of Commons. Justices of the Peace. Mayors, Aldermen, and (possibly) Town Councillors, Clergymen. Officers in the Navy or Army, when on full-pay. Barristers and Solicitors, Physicians and Surgeons. Officials of the Customs, Excise, or Post Office. Registrars of Births, Deaths, and Marriages. Persons already acting as Churchwardens. Roman Catholic Clergy. Protestant Dissenting Ministers. Non-commissioned officers and men in the Army Reserve. “Persons” in the Militia. Persons who do not belong to any of these exempted classes are compellable, by a suit in the ecclesiastical courts, to serve the office if duly elected! Those who are exempted are not so compellable, but may legally serve if they please to do so. Roman Catholic and Protestant Dissenters may have * The ecclesiastical courts will not, however, compel Quakers to act, [1 Curt. 447.] . 258 CHURCHWARDENS. [BOOK Iv. the privilege of serving, either in their own persons or by deputy, but the deputy must be approved of by the parishioners assembled in vestry. [LWill. &) Mo vch.18, $53 SLeGeosT “ch ozs ay But Dissenters are not qualified for election as church- Dissenters. wardens of new parishes which are constituted under 1 & 2 Will. IV. ch. 38, 6 & 7 Vict. ch. 37, or 19 & 20 Vict. ch. 104— it being expressly provided in these Acts that the church- wardens shall be members of the Church of England. § 2. The Manner of Appointment. Churchwardens are chosen by the persons or person upon whom law or custom has laid that duty, but their appointment is only complete when they have been admitted by the ordinary. The ordinary law by which their appointment is regu- lated is that of the 89th canon :—* All church- Canon Law. : ‘ wardens or questmen in every parish shall be chosen by the joint consent of the minister and the parish- ioners, if it may be: but if they cannot agree upon such a choice, then the minister shall choose one, and the parishioners another; and without such a joint or several . choice, none shall take upon them to be churchwardens: neither shall they continue any longer than one year in that office, except perhaps they be chosen again in like manner.” The most common custom is for the incumbent (or in his absence the licensed curate’) to choose * The substitution of the curate for the incumbent seems to be ruled by Hubbard v, Penrice [2 Strange, 1246]. A perpetual curate is an incumbent. [R. v. Allen, L. R. 8 Q. B., p. 69.] CHAP. 1.] CHURCHWARDENS. 259 one, and the parishioners the other; and this custom is statutably established, in the case of new parishes, _by the Church Building and New Parishes Church Building Acts. Acts. Special customs sometimes, however, take the place of the ordinary law, such customs being considered to have the force of law if they can be traced beyond the memory of man. The rule of law is that a custom, to be good, must date from the reign of Richard I. [A.p. 1189]; but proof that a custom has been observed for several cen- turies, or even less, is held to warrant the inference that the custom dates back to the required time, unless there is something in the custom itself which makes it morally impossible that it could have existed then. The following are the principal customs of the kind: [1.] In some large parishes in the North of England a churchwarden is chosen for each township of the parish. _[2.].In old London parishes both churchwardens are appointed by the parishioners. | [3.] They are sometimes appointed by the select vestry, instead of by the parishioners at large. [4.] They are sometimes appointed by the lord of the manor. [5.] In a few cases the incoming churchwardens are chosen by the outgoing ones. These special customs are well known and recognised in their respective localities; and as judicial decisions respecting them have no application to ordinary cases, and could not establish a custom where it did not 260 CHURCHWARDENS., [BOOK IV. previously exist, no further reference need be made to them. The appointment usually takes place on Easter Monday the or Easter Tuesday, but there is nothing to ime of F i ; z appoint- hinder its taking place on any other day in the ana same week, the 90th canon only directing that “the choice of . . . churchwardens or questmen, sidemen or assistants, shall be yearly made in Easter week.” The Church Building and New Parishes Acts require that in the case of new parishes churchwardens shall be ap- pointed within twenty-one days after the consecration of the church [6 & 7 Vict. ch. 37, § 17], or two calendar months after the formation of the parish [8 & 9 Vict. ch. 70, §§ 6 & 7], the next appointment taking place at the usual time for the appointment of parish officers. [See 58 Geo. IIL. ch. 45, § 73.] | An appointment at any other time of the year than Easter would be improper and irregular, but not invalid. Where the appointment is made by the minister and Appoint- parishioners, a vestry must be summoned in Se ih the ordinary manner, with due notice; and the Nomination P@rishioners are compellable, by mandamus, to of ministersmake an appointment if they neglect their aoe duty. [Stutter v. Freston, Strange, 52; R. wv. Election ot Vi8e, 2 Barn. & Adolph. 197; R. v. Rector parish- Of Birmingham, 7 Ad. & El. 254.] Appoint- joners’__ ment by the minister need only be by viva voce warden. nomination. That by the parishioners must be an election, made by vote in the ordinary manner, it being open to any elector present to demand a poll, in case of dissatisfaction with the show of hands. [Anthony v. Seger, 1 Hagg. Consist. 10.] As the churchwardens of old parishes are partly secular CHAP. I.] CHURCHWARDENS. 261 ofticers, it appears that all ratepayers in the old parish can vote at their election, though such ratepayers dwell in a district which has been separated “for all ecclesiastical purposes” from the mother parish. [R. v. Stevens, 3 Best & Smith, 333.] Each of the churchwardens so appointed must appear before the ordinary, to receive his commission as and authority by being admitted to office. The seine nand duty of the ordinary being only ministerial, except where there is a contest between rival candidates, he cannot refuse to admit (except in such cases), on account of any supposed flaw in the election, or for any other reason, except a plain ineligibility in the person—as, for instance, if he is.a person who has been convicted of felony. [Anthony 7. Seger, 1 Hagg. Consist. 11.] But it is clear that some evidence of the previous appointment must be given; and this should be done by the outgoing church- wardens themselves presenting the incoming ones as their successors. The ceremony of admission is now regulated by 5 & 6 Will. IV. ch. 62, § 9, which directs that “every person entering upon the office of churchwarden or sides- man, before beginning to discharge the duties thereof, shall... make and subscribe, in the presence of the ordinary, or other person” qualified to receive it, “a declaration that he will faithfully and diligently perform the duties of his office.’ The ordinary is bound to ad- minister this declaration at any time when required to do so [R. v. Archd. Middl. 5 N. & M. 494]; but churchwardens are usually admitted at the next visitation of the bishop or archdeacon after Easter. By an Order of Council made in 1895, pursuant to the provisions of 30 and 31 Vict. ch. 135, a fee of eighteen shillings is payable by each parish to the officials of the Visitation Court at every visitation ; T 262 CHURCHWARDENS. [BOOK Iv. and this fee includes that payable for the admission of the new churchwardens to their office, at whatever time they are admitted.? Churchwardens are not qualified to act until they are at admitted by the ordinary, the 118th canon of qualified by 1603 enacting that, “The office of all church- admission. \ardens and sidemen shall be reputed ever hereafter to continue until the new churchwardens that shall succeed them be sworn, which shall be the first week * The amount and apportionment of fees settled by the above Order in Council is as follows :— Vicar-General, Registrar Neoee ae by he eed aey g Apparitor. or Official. the duty. - Episcopal or ) ee d, Seah, po tall Archidiaconal Oc e0 Oni z.6c 03.6 Visitation ( The first fee named includes the attendance of the official, the examination of the presentments of the outgoing churchwardens, and the admission of the new churchwardens to office. The second fee—that of the registrar—includes the drawing and issuing of the mandate for the citation of the clergy, the preparation of the visitation books, and the preparation and printing of the Articles of Enquiry and the presentment papers, the attendance at. the visitation, and attesting the presentments and declarations of the churchwardens, and the registering the papers exhibited by the clergy. The third fee specified—that of the apparitor—includes the pre- paration and delivery of the citations to the clergy and church- wardens, and the attendance at the visitation. Under the old system of church-rates, these fees would be recover- able from the churchwardens: and so they still are in all cases where the churchwardens have any funds in their hands applicable to the expenses of the church; but not in other cases. [Veley v, Pertwee, Law Rep. 5 Q. B. 573.] CHAP, I.] CHURCHWARDENS, 263 after Easter, or some week following, according to the direction of the ordinary ;” and till they are so admitted their predecessors continue in office. [Bray v. Somers, 2 Best & Smith, 374.] When admitted, they cannot be displaced until their year of office has expired, except for gross mis- conduct, when they may be superseded by the Muration of parish by the direction or with the consent of the ordinary. Even removal from the parish of which he is churchwarden does not necessarily remove one from his office [Ganvill v. Utting, 9 Jurist, 1081]; though a suc- cessor to him may be appointed with his consent, and the admission of such a successor by the ordinary would cancel his responsibility. As the canon enacts that every churchwarden continues to be responsible for all the duties of the office until his successor is admitted by the ordinary, it is clear that he may hold office from year to year, without readmission, and possibly even without re-election; but the omission to re-elect might lead to litigation, and would in any case be an inconvenient precedent; and it is very undesirable not to have an annual admission as well as election. II.—THE DUTIES OF CHURCHWARDENS. It has already been mentioned that the office of church- warden comprehends two distinct classes of functions and responsibilities. The first of these relates to the material . fabric and goods of the church of which those appointed to the office are guardians; the second relates to the over- sight of the clergy and laity of the parish in respect to their observance of and obedience to the ecclesiastical 264 CHURCHWARDENS. [BOOK Iv. laws. It should be remembered, that only in certain specified cases have they authority to act, and that in all others they have only authority to present, ze. make a formal report to the ordinary, leaving to him the respon- sibility of acting or not acting upon their presentments. The distinction between these two classes of functions requires to be carefully kept in view, as the neglect of it has involved churchwardens in heavy pecuniary penalties in the shape of costs inflicted by the ecclesiastical courts. The active duties of the office are chiefly those of pro- viding necessaries for Divine Service, maintaining order during its performance, keeping the church and its acces- sories in proper condition, and taking charge of the bene- fice during vacancies. This last duty is not, however, thrown on them by the mere fact of their appointment, but by the act of the ordinary, who usually chooses them for this office, and commits it to them by a formal instru- ment of sequestration. The Benefices Act, 1898, provides that where a bishop proposes to collate, institute, or admit any person to a benefice he shall serve a notice of his in- tention on the churchwardens of the parish, who are to publish the notice in the manner which will be prescribed by rules to be made under that Act. § 1. Provision of Necessaries for Divine Service. Whatever is needed for use in the services of the Church was, by the old ecclesiastical law, to be provided, at the cost of the parishioners, by the churchwardens. When a church is once erected and properly furnished, these current necessaries are, indeed, very few. They may be stated as chiefly consisting of the vestments of the officiating clergy, the bread and wine required for use in the Holy Com- munion [see page 96], the lights necessary for Evening Service—together with the salary of the parish clerk, the organist (where there is one), and the attendant or attend- CHAP. 1] CHURCHWARDENS. 265 ants required for the orderly use of the church by the minister and the congregation. Though the most obvious means of obtaining funds for the supply of these neces- saries has been cut off by the Compulsory Church Rates Abolition Act, it is still the duty of the churchwardens to supply them, as far as the funds in their hands will go. [See page 274. ] The provision of holy table, pulpit, reading-desk, font, alms-chest, chalice, books, &c, ordered in the Canons of 1603, is connected with the original erection of the church rather than with its ordinary management, and need not here be noticed. § 2. Duties during Divine Service. The only act by which churchwardens officially take part in Divine Service is that of collecting the alms of the congregation, and bringing them to the fatgeoaan st priest for presentation upon the altar. Even this is not essentially their duty, as the rubric names “the deacons, churchwardens, or other fit persons ap- pointed for that purpose ;”' but where the deacons do not collect them, no fitter persons can be found than the representative men of the lay parishioners, especially as they have authority in their distribution: for by the rubric at the end of the Communion Service, “ After the Divine Service ended, the money given at the Offertory | shall be disposed of to such pious and charitable uses, as * It has been incidentally decided by the Court of Common Pleas | that a priest ought not to collect the alms, the rubric descending | from deacons. [Cope v. Barber, L. R. 7, C. P. 393; 41 L. J. M. C. 137.] It is the duty of the churchwarden to conform to the practice where | it exists of placing the offertory bag on an alms dish. [Howell w | Holdroyd, L. R, 1897, P. 198.] 266 CHURCHWARDENS. [BOOK Iv, the Minister and Churchwardens shall think fit. Wherein if they disagree, it shall be disposed of as the Ordinary shall appoint.” But it rests with the churchwardens, personally and by their deputies, to maintain order during Divine To keep order, Service; and this is a very important part of their duties, which is provided for both by the Canon Law and by Act of Parliament. In the 85th canon of 1603 it is enacted that the church- wardens “shall especially see that in every meeting of the congregation peace be well kept.” By the 19th canon it is enacted, that “the churchwardens, or questmen and their assistants, shall not suffer any idle persons to abide either in the churchyard or church-porch during the time of Divine Service, or preaching, but shall cause them either to come in or to depart.” The 111th canon enacts that: “In all visitations of bishops and archdeacons, the churchwardens, or questmen, and sidemen, shall truly and personally present the names of all those which behave themselves rudely and disorderly in the church, or which, by untimely ringing of bells, by walking, talking, or other noise, shall hinder the minister or preacher.” It has been repeatedly ruled that churchwardens are authorised, ex officio, to carry out the principles set forth in these canons, by doing what they can to prevent dis- — order or interruption of Divine Service; and that if no other means avail, they are empowered to turn the offen- der out of the church, provided they use no unnecessary violence in doing so. [Reynolds v. Monkton, 2 M. & R. 354; Williams v Glenister, 2 Barn. & Cressw. 699; CHAP. I.] CHURCHWARIENS. 267 Burton v. Henson, 10 Meeson & Welsby, 105.] “ Brawl- ing” in church, or interrupting the minister in Divine Service, was formerly met by several old statutes, which imposed a fine upon the offender; but an Act of Parlia- ment was passed in 1860, “to abolish the jurisdiction of the ecclesiastical courts .. . in England and Ireland in certain cases of brawling,” which has provided a more effective remedy." This Statute [23 & 24 Vict. ch. 32] enacts as follows :— “§ 2. Any person? who shall be guilty of riotous, violent, or indecent behaviour . . . in any cathedral church, parish or district church or chapel . .. whether i 5 masa 2 and give during the celebration of Divine Service or at offenders any other time, or in any churchyard or burial- ™t° custody. ground, or who shall molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any preacher duly authorised to preach therein, or any clergyman in Holy Orders ministering or celebrating any sacrament, or any Divine Service, rite, or office, in any cathedral, church, or chapel, or in any churchyard or burial-ground, shall, on conviction thereof before two justices of the peace, be liable to a penalty of not more than five pounds for every such offence; or may, if the justices before whom he shall be convicted think fit, instead of being subjected to any pecuniary penalty, be committed to prison for any time not exceeding two months. * By its 5th section, the Act of 1860 repeals 5 & 6 Edw. VI. ch. 4, so far as relates to persons not in Holy Orders. But by its 6th section, it expressly leaves 1 Mar. sess. 2, ch. 3, 1 Eliz. ch. 2, and 1 Will. and Mary, ch. 18, $18 [$ 15 in ‘The Statutes Revised’], in force ; and the penalties in those Acts are far more severe. * This includes persons in Holy Orders as well as laymen. [Val- lancey v. Fletcher, L. R. 1897, 1 Q. B. 265.] 268 CHURCHWARDENS. [BOOK Iv. “§ 3. Every such offender in the premises, after the said misdemeanour so committed, immediately and forthwith may be apprehended and taken by any constable or church- warden of the parish or place where the said offence shall be committed, and taken before a justice of the peace of the county or place where the said offence shall have been so committed, to be dealt with according to law.” A summary power is thus placed in the hands of church- wardens of apprehending any offender (either personally, or by the intervention of a constable) who shall be guilty of “riotous, violent, or indecent behaviour;” the latter term being doubtless intended to include such offences as keeping the head covered—except on account of infirmity, which is provided for by Canon 18—during the time of Divine Service, or even when service is not going on, in a con- secrated building. Associated with the duty of keeping order in church is that of seeing that the parishioners are provided with seats Assign- 1n an orderly manner. This duty devolves upon ment of the churchwardens as officers of the ordinary, seats to c : . parish- Whose authority in the matter is final. By the ioners. common law every parishioner is entitled to a seat in his parish church, and in 1841 Baron Rolfe expressed his opinion, “that the churchwardens have a right to exercise a reasonable discretion in dictating where the congregation shall sit,’—even to the extent of removing a person from one seat to another if thought more convenient, and done without unnecessary force. [Reynolds v. Monck- ton, 2 M.&R.384.] In 1887 Mr. Justice A. L. Smith held that in a church where all the seats were free, it was “well within the scope, power, and authority of churchwardens to.direct where a certain class shall go, and a certain class shall not go.” In that case the churchwardens were seek- ing to prevent all the young men from sitting together. CHAP. 1.] CHURCHWARDENS. 269 [Asher v. Calcraft, L. R. 18 Q. B. D. 607.] In Taylor 2», Timson [L. R. 20 Q. B. D. 671] Mr. Justice Stephen held that a churchwarden had no right to exclude any parishioner from church on the ground that there was not sitting room for him. Whether the assignment of seats is made as a yearly arrangement, whether it is made at the time when Divine Service is about to be or is being celebrated, or whether the power to make it is only used in disputed cases—the seats being ordinarily considered free, and open to the first comer—are matters entirely within the dis- cretion of the churchwardens, subject to the control of the ordinary. Their jurisdiction is, however, restricted to the body of the church, with the possible though doubtful ad- dition of that part of the chancel not required by Aree the seats of the rector or lay impropriator and of giction in the officiating minister. There may be also, and faculty are not unfrequently, private rights to particular ere seats, conferred by a faculty, 2.2. a licence from the ordinary, or held by ancient prescriptive right, which the church- wardens cannot interfere with. Special regulations for the disposition of seats are also laid down in the Church Build- ing Acts, which affect the churches built under those Acts. The only other duty laid upon churchwardens in con- nection with Divine Service is the registration of the names of strange preachers. The 52nd canon of 1603 provides: “That the bishop may understand (if occasion so require) what sermons are made in every church of his diocese, and who presume to preach without licence, the churchwardens and sidemen shall see that the names of all preachers, which come to their church from any other place, be noted in a book which they shall have ready for If a pew has been repaired time out of mind by the predecessors of the occupant, a faculty will be presumed. [Philipps v. Halliday, L. R. 1891, A. C. 228.] But mere possession is not by itself enough to establish a right by prescription. [Gibbard v, Wilkinson, L. R. 1897, 1 Q. B. 749.] 270 CHURCHWARDENS. [BOOK lv. that purpose; wherein every preacher shall subscribe his name, the day when he preached, and the name of the bishop of whom he had licence to preach.” § 3. The Care and Repair of the Church and tts Accessories. The freehold of the whole church fabric (except the chancel, should there be a lay rector) and churchyard is vested in the rector or vicar, by his institution and induc- _ tion; but the moveable goods of the church pedis pecaeicey are, by the common law, vested in the church- eG wardens, as a quasi corporation (for the benefit of the parishioners at large), whose continuity is preserved, notwithstanding the annual change in the persons constituting itt [Rex v. Martin Rice, Lord Raym. 138; Jackson v. Adams, 2 Bingh. N.C. 402.] Thus, the 89th canon of 1603 orders that the goods and money in the hands of outgoing churchwardens shall be handed over to their successors; and monitions may be issued to the churchwardens of a parish, without naming them individually [Liddell v. Beale, 14 Moore P.C. 1]; so that the continuous corporation, and not the individual Respon- Persons, may be bound by them. sibilityfor In the same capacity, they are responsible siete for the good preservation of the church fabric, repair. the churchyard, and the church goods; the * In this capacity churchwardens are competent to buy church goods for themselves and their successors, to accept gifts of such goods, and to sell them (with the consent of the parishioners and the ordinary), and to bring an action for trespass in case of their being stolen, damaged, or destroyed. They cannot, however, in any of these cases act separately. [1 Rol. Abr. Chev. 393; Starkey v, Barton, Cro. Jac, 234 | CHAP. I.] CHURCHWARDENS. 27% chancel being mostly excepted, as the responsibility for its preservation and repair rest upon the rector.? As regards the church and churchyard, these duties are laid down in the 85th canon of 1603, which Church enacts that: “The churchwardens or quest- ana men shall take care and provide that the pope churches be well and sufficiently repaired, and so from time to time kept and maintained, that the windows be well glazed, and that the floors be kept paved, plain, and even, and all things there in such an orderly and decent sort, without dust, or anything that may be either noisome or unseemly, as best becometh the house of God, and is prescribed in an homily to that effect. The like care they shall take, that the churchyards be well and sutticiently repaired, fenced, and maintained with walls, rails, or pales, as have been in each place accustomed, at their charges unto whom by law the same appertaineth; but especially they shall see that in every meeting of the con- gregation peace be well kept, and that all persons excom- municated, and so denounced, be kept out of the church.” This will include whatever is permanently atfiixed to the freehold—such as walls, fences, windows, gates and doors, roof, floor, drains, stoves and Me ised flues, &c.; and also the font, pulpit, and seats, together with everything that can be reasonably con- sidered as substantially part of the building and its appurtenances, * The obligation of repairing the chancel sometimes rests, by custom, on the parishioners, and they could then be (while Compulsory Church Rates existed) compelled to undertake it. [Stewart v. Francis, 3 Curt. 209 ; Bishop of Ely v, Gibbons and Goody, 4 Hagg. 156.] 272. CHURCHWARDENS. [BOOK IV. The churchwardens were formerly bound to maintain and repair closed churchyards, and might recover the expenses as soon as they had become liable for them [Reg. v. Islington Vestry, LR. 25 Q.B.D. 523], to be paid by the overseers out of the poor rate if there was no other fund [18 & 19 Vict. ch. 128, $18]; but now by the Local Government Act, 1894, § 6 (1) 0, these obligations are trans- ferred to the parish council of a rural parish on its coming into office, but are not to be deemed to attach unless and until the churchwardens shall give a certificate to obtain the repayment of such expenses out of the poor rate. The moveable goods of the church, which the church- Moveable Wardens are bound, on behalf of the parishioners, goods. to preserve and repair, consist of such things as are absolutely enjoined for use in Divine service, and of other things which have been in use from time im- memorial, or have been accepted by them for the use of the church. Of the first class are the vestments of the ministers, the sacred vessels and other furniture of the altar, with the books used in Divine service.! Of the second class are the organ, the bells, the bier, the clock, the vestry furniture, and such like—all of which are used for the advantage of the parishioners, and ought therefore to be kept in order by them. To fulfil their duties as regards the preservation and repair of the church and its goods, and in providing the necessaries for Divine service, two things are obviously required by the churchwardens :—first, that they should * In medizeval times all such things were required to be exhibited to the archdeacon at his annual visitation of the parish, he having an inventory in his hands by which they were examined. See 11th and 25th of Archbishop Langton’s Constitutions, A.D. 1222. A similar inspection, in person or by deputy, of the church, by the archdeacon or his official every three years, is required by the 86th canon of 1603, CHAP. I.] CHURCHWARDENS. 273 have access to the church; and, secondly, that they should be supplied with funds. The whole church! and churchyard being vested in the rector or vicar, as his freehold, access to either is entirely under his control. He alone has any legal right access to to the keys of the churchyard, belfry, nave, the church. vestry, and chancel; and no one can legally use them for entrance thereto, except by his permission. “The minister,” said Sir John Nicholl, “has, in the first instance, the right to the possession of the key, and the churchwardens have only the custody of the church under him. If the minister refuses access to the church on fitting occasions, he will be set right on application and complaint to higher authorities.” [Lee v. Matthews, 3 Hagg. Eccl. 173.] In cases where churchwardens have possessed themselves of duplicate keys, or in any way obtained access to the church, chancel, or belfry, without the permission of the incumbent, they have been severely censured by the judges, ordered to deliver up the keys, and condemned in costs. [Redhead v. Wait and others, 6 Law Times (N.S.) 580; Dewdney v. Good and Ford, 7 Jur. (N.S.) 637; Harward v. Arden, Eecl. Gaz. May and Sept., 1867; Ritchings ». Cordingley, Law Rep. 3 Adm. & Eccl. p. 113, Keel. Gaz. Aug., 1868; Sir Rk. Phillimore’s Hecl. Judgments, p. 133 ; Marshall v. Audrew, Eccl. Gaz., Aug., 1871.] In all that is done by churchwardens this plain prin- ciple of law should therefore be strictly recognised, and access to the church obtained, by themselves or their deputies, only by the expressed or implied permission of « From this, of course, must be excepted the chancel where there is a lay impropriator. In that case the chancel is the freehold of the lay impropriator or rector, but the vicar has the custody of it, though bound to give, at all reasonable times, access to the lay rector, 274 CHURCHWARDENS. [BOOK Iv. the incumbent. If he refuses it, so as to prevent them from doing their duty, they must complain to the ordinary. As regards the funds necessary for carrying on Divine Service, repairing the church and its goods, or Provision paying salaries, it is the duty of the church- of funds. wardens to use every reasonable means for obtaining them. The ancient mode of doing this is by a rate, agreed to by the parishioners assembled in vestry. By “The Compulsory Church Rates Abolition Act, 1868” [381 & 32 Vict. ch. 109], such a rate cannot now be recovered by legal process from those who refuse to pay it. There is nothing, however, to hinder the rate being made and collected, as formerly, from those who are willing Church-rate. to pay it; and those who do not are, by the 8th section of the Act, excluded from enquiring into, objecting to, or voting in respect of, its expenditure. A “church-rate” may still, therefore, be regarded as the ordinary means for meeting church expenses. A vestry, being assembled in the ordinary manner [see page 299], an estimate should be laid before the parishioners of the expenses which the churchwardens will have to incur in the discharge of their duties; and the assessment being agreed to, it is to be afterwards collected from all parishioners who are willing to pay it. Formerly, much care was required in deciding what should be paid out of the rate, as any payment not strictly recognised by law destroyed its validity. This is now of no legal consequence, since, the rate being volun- tary, the parishioners are at liberty to agree what they CHAP. I.] CHURCHWARDENS. 275 will pay out of it; and the question has become one of expediency instead of law. Of collections made in other ways than by rate nothing need be said, but that by the same Act of Parliament a body of church-trustees may be appointed, for the purpose of receiving and expending all such moneys, and that the expenses incurred by churchwardens may be paid out of them. [See page 286.] In many parishes there are small charities or church funds of old standing applicable to the payment of the expenses incurred in performing Divine Service, and in repairing the church. § 4. Presentment of Offences against Ecclesiastical Law. One part of the office of churchwarden is to report to the ordinary all offences, or supposed offences, against the laws of the Church, whether committed by the clergy or the laity of the parish. In this churchwardens $¥204#! witnesses. represent the ancient testes synodales, or Synods- men, who were originally persons called out by the bishop from the lay attendants at his diocesan synod, and required on oath to bear witness to the moral condition of their district! In later times similar lay officers were appointed by the bishop in every parish, for the purpose : ° . Questmen. of reporting to him, on oath, the names and offences of. those-who deserved spiritual correction by the ordinary, and these were called Questmen.2 By a consti- * The presentments of the testes synodales were obviously analogous to the modern presentments of the Grand Jury, the County Inquest, ? Ayliffe’s Parergon. p. 516; Kennet’s Paroch. Antig. p. 649. 276 CHURCHWARDENS. [BOOK Iv. tution of Archbishop Chicheley [4.D. 1416], three or four such men of good report were to be appointed in every deanery and parish, for the purpose of presenting those who held private conventicles, or in any other way main- tained heresies or errors [Spelman’s Canons, ii. 672]; and it was no doubt about that time that the duty of report- ing such offences against the ecclesiastical laws began to devolve upon the officers known to us as church- wardens. Such presentments are now usually made once a year, at the archdeacon’s or the bishop’s visitation ; eae but they are by no means limited to that time aie fe By the 116th canon of 1603, it is enacted that churchwardens shall not be “enforced to ex- hibit their presentments to any having ecclesiastical juris- diction above once in every year, where it hath been no oftener used, nor above twice in any diocese whatsoever, except it be at the bishop’s visitation ;” and by the 117th canon of the same date, that they shall not “be called or cited, but only at the said time or times before limited, to appear before any ecclesiastical judge whatsoever, for * The modern “ visitation,” which also takes the place of the ancient diocesan or archidiaconal synod, represents in a perfunctory and superficial form the medizval visitation, which used to be a personal visit officially made to each parish by the bishop or his proper deputy. Upon these visits the church was inspected both as to its temporal and spiritual welfare, the visitor being, in effect, an inspector of parishes analogous to the modern inspector of schools, Visitation-fees, or procurations, are sums of money paid as compositions for the entertaimment of man and horse on the occasion. CHAP, I.] CHURCHWARDENS. 277 refusing at other times to present any faults committed in their parishes, and punishable by ecclesiastical law.” It is nevertheless provided: “That as good occasion shall require, it shall be lawful for every minister, church- wardens, and sidemen to present offenders as often as they shall think meet; and lkewise for any godly-disposed person, or for any ecclesiastical judge, upon knowledge, or notice given unto him or them of any enormous crime within his jurisdiction, to move the minister, church- wardens, or sidemen, as they tender the glory of God and reformation of sin, to present the same, if they shall find sufficient cause to induce them thereunto, that it may be in due time punished and reformed. Provided, that for these voluntary presentments there be no fee required or taken of them, under the pain aforesaid.” From the preceding words, it will be seen that the sub- jects for report to the bishop by churchwardens Prac are “any offences committed in their parishes, for pre- and punishable by ecclesiastical laws.” It is roa customary to issue “ Articles of Enquiry,” according to the injunction of the 119th canon, which enacts that: “For the avoiding of such inconveniences as heretofore have happened, by the hasty making of bills of presentments, upon the days of the visitation and synods, it is ordered: That always hereafter every chancellor, archdeacon, com- missary, and official, and every other person having ecclesiastical jurisdiction, at the ordinary time when the churchwardens are sworn; and the archbishop and bishops, when he or they do summon their visitation, shall deliver, or cause to be delivered, to the church- U 278 CHURCHWARDENS. [BOOK Iv. wardens, questmen, and sidemen of every parish, or to some of them, such books of articles as they, or any of them, shall require, for the year following, the said church- wardens, questmen, and sidemen, to ground their present- ments upon, at such times as they are to exhibit them. In which book shall be contained the form of the oath, which must be taken immediately before every such pre- sentment; to the intent that, having beforehand time sufficient, not only to peruse and consider what their said oath shall be, but the articles also whereupon they are to ground their presentments, they may frame them at home both advisedly and truly, to the discharge of their own consciences, after they are sworn, as becometh honest and godly men.” These Articles of Enquiry have varied greatly in different times and places, there being no prescribed form for them ; and they are not to be considered as necessarily compre- hending all the subjects on which presentments may or ought to be madet In the Canons of 1603 Ordered , ? in the special directions are given for the presentment rari by the churchwardens of the names of notorious sinners [Canon 26], who “offend their brethren, either by adultery, whoredom, incest, or drunkenness, or by swearing, ribaldry, usury, and any other uncleanness and wickedness of life” [Canon 109]; of the names of schismatics [Canon 110]; parishioners non-attendant at * A large and most valuable collection of visitation articles, dating from 1561 to 1730, was made for the Ritual Commissioners by the Rev. W. D. Macray, of the Bodleian Library, and printed by them in their Second Report in 1868, CHAP. LJ CHURCHWARDENS. 279 the Holy Communion [Canons 22 & 112]; strangers attendant at the Holy Communion [Canon 28]; parish- ioners who have their children baptized out of the parish [Canon 57]; disturbers of Divine Service [Canon 111]; and preachers who designedly and openly “impugn or confute any doctrine delivered by any other preacher in the same church, or in any church near adjoining,” without the bishop’s consent or direction [Canon 53]. Many of these subjects for report to the bishop are now more or less provided for by later legislation, while schismatics are exempted from the purview of the ecclesiastical courts by the Toleration Acts. But unless presentments grounded on these canons are actually forbidden, they cannot be considered as entirely obsolete, and in cases of notorious scandal, whether in the laity or the clergy, have been, and might often be, made still, and acted on by the bishop, with advantage to religion. The 115th canon of 1603 admonishes and exhorts “all judges, both ecclesiastical and temporal, as they regard and reverence the fearful judgment-seat No stit te of the Highest Judge, that they admit not in i el any of their courts any complaint, plea, suit, or suits against any such churchwardens, questmen, sidemen, or other church officers, for making any such present- ments, nor against any minister for any presentment that he shall make, all the said presentments tending to the restraint of shameless impiety; and considering that the rues both of charity and government do presume that they did nothing therein of malice, but for the discharge of their consciences.” 280 ‘CHURCHWARDENS. [BOOK Ty. Another class of presentments by churchwardens is Present- always indicated in the Articles of Enquiry, mentof though not specially referred to in the canons— irreguiari- > va ; tiesin per- namely, presentments of the minister for irre- formance of Divine Service. of Divine Service. The canons and rubrics eularities in connection with the performance bearing upon these cover a very large field indeed, and it is impossible to give any summary of them that will be practically useful in this place. It has, however, been frequently ruled, that any such irregularities can only be met by the churchwardens by means of presentment to the ordinary, and that all other action respecting them must be taken by him. “If the minister,’ says Lord Stowell, “introduces any irregularity into the service, they have no authority to interfere, but they may complain to the ordinary of his conduct. I do not say there may not be cases where they may be bound to interpose: in such cases they may repress, and ought to repress, all in- decent interruptions of the service by others, and are the most proper persons to repress them, and they desert their duty if they do not. And if a case could be imagined in which even a preacher himself was guilty of any act grossly offensive, either from natural infirmity or from dis- orderly habits, I will not say that the churchwardens and even private persons might not interpose to preserve the decorum of public worship. But that is a case of instant and overbearing necessity that supersedes all ordinary rules. In cases which fall short of such a singular pres- sure, and can await the remedy of a proper legal com- plaint, that is the only proper mode to be pursued by a CHAP. I]. CHURCHWARDENS, ei: churchwarden, if private and decent application to the minister himself shall have failed in preventing what he deems the repetition of an irregularity. At the same time, it is at his own peril if he makes a public complaint, or even a private complaint, in an offensive manner of that which is no irregularity at all, and is in truth nothing more than a misinterpretation of his own.” . [Hutchins ». Denziloe and Loveland, 1 Hagg. Consist. 175.] Equally strict is the rule that the churchwardens have no authority to interfere with any of the ornaments of the church, or with any temporary. decorations set up there with the consent of the minister. If they consider any of these to be contrary to ecclesiastical law, they may report them to the bishop in the form of a presentment; but can in no other way interfere with them, without being liable to a suit in the ecclesiastical courts, in which proof of such interference (unless, perhaps, in the case of glaringly inde- cent and irreverent ornaments or decorations, which must be removed at once to avoid scandal) would bring con- demnation with costs. [Ritchings v. Cordingley, Zaw Rep. 3 Adm. & Ecel. 113; Zeel. Gaz, Aug. 1868; Marshall v. Andrew, Eccl. Gaz., Aug. 1871; Blake v, The Churchwardens of Wetheral, Eccl. Gaz., May, 1874; Evans v. Dodson, Eccl. Gaz. Dec. 1874. Phillimore’s Keel. Judgments, p. 133.] As regards presentments in general, it may be useful to add that they are a grave proceeding, since | they are made to the ordinary in his judicial Sia Af capacity, and that they are made under the present- declaration taken in lieu of oath by the church- aver wardens when admitted to office, 282 CHURCHWARDENS. [BOOK Iv, § 5. Custody of Benefice during Vacancy. When a benefice is vacant, by the resignation or the death of its incumbent, the churchwardens have generally to take charge of its goods, and to provide out of them _ for the maintenance of Divine Service, until To obtain te ; ‘ aseques- a new incumbent is instituted and inducted. tration. ‘This office is committed to them by an instru- ment of sequestration, issued by the registrar of the bishop’s court, in which they are appointed sequestrators. The proper way of obtaining this sequestration is for the churchwardens to signify the vacancy of the living to the registrar, who will then procure and issue to them the writ? in the following form :—“ William De Pledge, Esq., M.A., Vicar General in Spirituals of the Right Reverend Father in God, John, by Divine permission Lord Bishop of the diocese of Gloucester and Bristol, official principal lawfully constituted of his Consistorial Court of Gloucester. To our well-beloved in Christ, the churchwardens of the parish and parish church of Benstock, in the county of Gloucester, and diocese aforesaid, greeting—These are to empower you to collect and gather all and singular the tithes, rent-charges, profits, and emoluments, belonging to the said rectory of Benstock, now void by the death of Edward Gardiner, clerk, the last incumbent there, and out of the same to pay all taxes to the Queen, the bishop * Unless churchwardens are thus empowered, they have no legal authority to take charge of the benefice during a vacancy. [Prout v. Cresswell, 1 Lee, 36.] It is necessary, therefore, both for the good of the parish and for their own security, that they should apply for the sequestration, CHAP, 1.] CHURCHWARDENS. 283 and archdeacons’ procurations and synodals, and all other dues incumbent upon and belonging to the said benefice, hereby requiring you, or either of you, to give a just and faithful account of your doings herein, when by law you shall be required to do so. You are also to pay the curate or minister for supplying the cure during the vacancy such stipend as may be assigned to him by the bishop. “Given under the seal of our office this twelfth day of August, in the year of our Lord one thousand eight hundred and seventy-two. = « Tos, SMITH, NP, Regr.” Under authority of the bishop, so granted, the church- wardens are required “to manage all the profits yo taxe the and expenses of the benefice for the successor, profits and to plough and sow the glebe, gather in tithes, seat thresh out and sell corn, repair houses, make of the up his fences, pay his tenths, synodals, and Pe7eSee procurations, and what other things are necessary during the vacation.” They are, in fact, to receive all the income of the benefice, and to pay all its expenses, as the incum- bent himself would be entitled and obliged to do. It is also their duty to provide a clergyman or clergy- men for the performance of Divine Service, and a, provide for the other duties of the vacant benefice. clergy and Such substitutes for an incumbent must, of ?*” er course, be presented to the bishop for approval, if they are not already licensed by him; and when so approved of by him, they are to be paid such stipend as he may have appointed out of the profits of the benefice. Respect- ing the last point, it is provided, by 1 & 2 Vict. ch. 106, § 100: “That upon the avoidance of any benefice, by death, resignation, or otherwise, the sequestrator appointed by the bishop shall, out of the profits thereof which shall come - to his hands, pay to the curate or curates appointed by such 284 CHURCHWARDENS. [BOOK Iv. bishop to perform the ecclesiastical duties of such benefice during the vacancy thereof, such stipend or stipends as shall be ordered to be paid to him or them by such bishop, not exceeding the respective stipends allowed by this Act, and in proportion only to the time of such vacancy.” It is also provided by § 101: That if the profits of such benefice which shall have come to the hands of such sequestrator during the vacancy thereof, shall not be sufficient to pay such stipend, the same, or so much thereof as shall remain unpaid, shall be paid to such curate by the succeeding incumbent of such benefice out of the profits thereof.” By § 10 of The Pluralities Act Amendment Act, 1885 [48 & 49 Vict. ch. 54], “The bishop may assign to the curate or curates appointed to perform the duties of any benefice, during the vacancy thereof, such stipend or stipends as the bishop shall think fit not exceeding for each such curate £200 a year and in proportion only to the time of such vacancy, but so nevertheless that such stipend or stipends shall not exceed in the whole the net annual income of the benefice.” Upon the induction of the new incumbent, the church-: Accounting Wardens must account to him for the profits of to new the benefice during the vacancy, these belonging incumbent. to him from the day of his predecessor’s death or resignation. Any dispute between them and him is to be carried before the ordinary—that is, into the bishop’s court. Churchwardens are also occasionally appointed seques- Other cases trators under other circumstances than those of seques- arising from vacancies—as in case of a sus- tration, —~_ pended incumbent, or a sequestration for pay- ment of an incumbent's debts. Their responsibilities are then of a similar kind to those above stated, but are particularly defined, with reference to the particular case, in the instrument by which they are appointed. { 285 ] Chapter IT. CHURCH TRUSTEES. ie DER “The Compulsory Church Rate Abolition Act, 1868,” a power is given to appoint, under certain cir- cumstances, a body of church trustees. The manner of their appointment and their duties are thus set forth in that Act [31 & 32 Vict. ch. 109, § 9]:— “A body of trustees may be appointed in any parish, for the purpose of accepting, by bequest, donation. contract, or otherwise, and of holding, any contributions which may be given to them for ecclesiastical purposes in the parish. “The trustees shall consist of the incumbent and of two householders or owners or occupiers of land in the parish, to be chosen in the first instance, and also from time to time, on any vacancy in the office by death, incapacity, or resignation, one by the patron, and the other by the bishop of the diocese in which the parish is situate. “The trustees shall be a body-corporate by the name of the Church Trustees of the parish to which they belong, having a perpetual succession and a common seal, with power to sue and be sued in their corporate name. 286 CHURCH TRUSTEES. [BOOK Iv. “The trustees may from time to time, as circumstances may require, pay over to the churchwardens, to be applied by them either to the general ecclesiastical purposes of the parish, or to any specific ecclesiastical purposes of the parish, any funds in their hands, and the funds so paid over may be applied to such purposes, and shall not be applied to any other purpose: Provided always, that no power shall be thereby conferred on the churchwardens to take order with regard to the ecclesiastical purposes of the parish, further or otherwise than they are now by law entitled to do: Provided also, that due reyard shall be had to the directions of the donors of funds contributed for any special ecclesiastical purposes. and subject as aforesaid “The trustees may invest in government or real secu- rities any funds in their hands, and accumulate the income thereof, or otherwise deal with such funds as they think expedient, subject to the provisions of this Act. “The incumbent shall be the chairman of the trustees. “The trustees shall once, at the least, in every year lay before the vestry an account of their receipts and expenditure during the preceding year, and of the mode in which such receipts have been derived and expenditure incurred, together with a statement of the amount, if. any, of funds remaining in their hands at the date of such account.” This provision of church trustees would seem to give some legal recognition and assistance to the voluntary system so largely adopted in the Church of England. [ 287 ] Chapter ITT. PARISH CLERKS, SEXTONS, BEADLES, ORGANISTS. HE three first named officers of the Church have lost their importance in some parishes, through changes of customs in Divine Service, the substitution of cemeteries for churchyards, and the provision of a municipal police; but there are other parishes in which they are still of practical importance, and the exact legal footing on which they stand ought not to be overlooked. Organists on the other hand have become of great importance. I.—PARISH CLERKS. The parish clerk is the representative man of the lay clerks or choirmen of the parish. It is not improbable that when parish choirs were universal, or nearly so, throughout the Church of England, there was one of the lay clerks whose duty it was to be constantly present, even when the other lay clerks were absent, at every service which was celebrated by the parish minister, to say or sing the responses as the leader, or the representa- tive, of the laity, and that the parish clerk of modern days is thus a very ancient officer of the Church. This is con- firmed by the rubrics of the Prayer Book, which several 288 PARISH CLERKS, SEXTONS, [BOOK IV. times mention the “minister and clerks,” or “the priest and clerks ;” and which once, in the Marriage Service, besides speaking of them in the plural, as engaged in the saying or singing of the psalm, also directs that the bride- groom shall lay on the book “the accustomed duty to the priest and clerk,” using the word in the singular number. The existing law respecting the appointment of parish : clerks, except in a few cases where a custom Appoint- mentof in the parishioners to appoint can be proved, is baat based on the 91st canon of 1603: “No parish clerk upon any vacation shall be chosen, within the City of London, or elsewhere within the province of Canter- bury, but by the parson or vicar: or, where there is no parson or vicar, by the minister of that place for the time * The ancient Corporation of Parish Clerks, which is numbered among the “ companies” of the City of London, was originally known as “ The Fraternity of St. Nicholas,” having received its charter in the first instance from Henry III. in the year 1233. It was reincor- porated by James I. in the year 1611, and these charters were confirmed by Charles I. in the year 1636 ; the style of the fraternity being then set forth in the form, “The master, wardens, and fellow- ship of parish clerks of the cities of London, Westminster, borough of Southwark, and fifteen out-parishes.” They used formerly to attend the funerals of eminent persons, clad in surplices, walking in front of the corpse, and singing till they came to the church. Ecclesiastical - singing was much cultivated and encouraged by them, Some writers of authority have spoken of the office of parish clerk as identical with that of aque-bajulus, and others have even confused it with that of chantry-priest. The fact seems to be that minor and ill-paid offices were accumulated on one of the lay clerks, and that thus he became aque-bajulus and parish clerk, and perhaps sexton as’ well. See Hale’s Precedents [Nos. 140, 192, 254, 283, 348, & 350] for illustrations of this point. : CHAP. IIL] BEADLES, ORGANISTS. 289 being; which choice shall be signified by the said minister, vicar, or parson, to the parishioners the next Sunday fol- lowing, in the time of Divine Service. And the said clerk shall be of twenty years of age at the least, and known to the said parson, vicar, or minister, to be of honest conver- sation, and sufficient for his reading, writing, and also for his competent skill in singing, if it may be. And the said . clerks so chosen shall have and receive their ancient wages, without fraud or diminution, either at the hands of the churchwardens, at such times as hath been accustomed, or by their own collection, according to the most ancient custom of every parish.” It has been ruled that where the benefice is vacant, or the holder of it suspended,’ “the minister of that place for the time being” is the licensed locum tenens. [Pindar v. Barr, 4 E. & B. 105.] It has also been ruled that the appointment need not be made in writing, and that the omission of notice to the parishioners does not invalidate it. [R. v. Bobbing, 1 N. & P. 166.] The duties of the clerk are to assist the clergy in saying and singing Divine Service (either as one of a choir, or by himself, or as leader of the con- oe 1 gregation), by singing or saying the responses. He ought properly, also, to take the leading place in singing the psalms, anthems, and hymns, but is rarely qualified for such a duty.? In all the minor offices of * But sequestration alone does not deprive the minister of his right to appoint. | Lawrence v. Edwards, L.R. 1891, Ch. 144.] 2 An old complaint: for on the 6th of May, 1610, Thomas Milborne, clerk of the parish of East Ham, is presented, among other reasons, . 290 PARISH CLERKS, SEXTONS, [BOOK Iv, the Church not usually celebrated with a congregation, it is also his duty to perform the same part—as at marriages and burials. The clerk often takes the place of the sexton in. duties connected with the vesting of the clergy, the preparation of the altar for Holy Communion, &c.; and in small churches the two offices are frequently held by one and the same person. The 91st canon, already quoted, directs that the parish clerk shall receive his “ancient wages,” either pep la ea: by the hands of the churchwardens, or by his own collection, “according to the most ancient custom of every parish.” These wages are generally made up of three elements—a salary (usually payable out of the church-rate), fees, and Easter dues. It was formerly very difficult to displace a parish clerk, the only strict way of doing so being by a Dismissal formal suit in the ecclesiastical court;! but a ener speedier method of so doing has been provided by a modern Act of Parliament—7 & 8 Vict. ch. 59,§5. By that Act it is directed: “That if at any time it shall appear, upon complaint or otherwise, to any archdeacon or other ordinary, that any person not in Holy Orders, holding or exercising the office of church clerk, chapel clerk, or parish clerk, in any district, parish, or * For that he singeth the Psalms in the church with such a jesticulous tone and altitonant voyce, viz., squeakinge like a gelded pigg, which doth not only interrupt the other voyces, but is altogether dissonant and disagreeing unto any musical harmonie. And he hath been requested by the minister to leave it, but he doth obstinatelie persist and contynue therein.” [Hale’s Precedents, No. 742.] * It has been said, however, that for reasonable cause a parish clerk may be removed by the person who appointed him. CHAP. III.] BEADLES, ORGANISTS. 291 place within and subject to his jurisdiction, has been guilty of any wilful neglect of or misbehaviour in his said office, or that by reason of any misconduct he is an unfit and improper person to hold or exercise the same, it shall be lawful for such archdeacon or other ordinary forthwith to summon such church clerk, chapel clerk, or parish clerk to appear before him, and also by writing under his hand, or by such process as is commonly used in any of the courts ecclesiastical for procuring the attend- ance of witnesses, to call before him all such persons as may be competent to give evidence or information respect- ing any of the matters imputed to or charged against such clerk; and such archdeacon or other ordinary may, if he see fit, examine upon oath, to be by him administered in that behalf, any of the persons so attending before him, respecting any of such matters; and may thereupon summarily hear and determine the truth of the matters so imputed to or charged against such clerk; and if, upon such investigation, it shall appear, to the satisfaction of such archdeacon or other ordinary, that the matters so imputed to or charged against such clerk are true, it shall be lawful for the said archdeacon or other ordinary forth- with to suspend or remove him from his office; and, by certificate under his hand and seal, directed to the rector or other officiating minister of the parish, district, or place wherein such clerk held or exercised his office, to declare the office vacant; and a copy of such certificate shall thereupon, by such rector or other officiating minister, be affixed to the principal door of the church or chapel in which such clerk usually exercised his office; and the 292 PARISH CLERKS, SEXTONS, [BOOK Iv. person or persons who, upon the vacancy of such office, are entitled to elect or appoint, may forthwith proceed to elect or appoint some other person to fill the same.” By the 6th clause of the same Act, if he occupied any house or other premises by right of such office (and, in some cases, he has such a house, or the rent of a piece of land, as part of his wages), the clerk may be ejected from them on the ground of such dismissal. It is lawful for a parish clerk to appoint a deputy; and Deputy _ if the deputy competently fulfils his office, such clerk. performance of duty by deputy, instead of in person, does not constitute a legal ground of dismissal. The deputy clerk is removable by his principal at any time, and without formal process.! By 59 Geo. III. ch. 134, § 29 (the second of the Church Building Acts), it is provided that, “The clerk in every church and chapel erected, built, or acquired, or appro- priated under the provisions of 58 Geo. III. ch. 45, or this Act, shall be annually appointed by the minister of the church or chapel.” A clerk appointed under this section cannot be dismissed during the year of office without reason. [Jackson v. Courtenay,8 El. & Bla. 8; 27 L. J. (Q.B.) 37.] By 19 and 20 Vict. ch. 104, § 9, “The parish clerk and sexton of the church of any parish constituted under” 6 & 7 Vict. ch. 37, and 7 & 8 Vict. ch. 94, “or this Act, shall and. may be appointed by the incumbent for the time being of such church, and be by him removable, with the consent of the bishop of the diocese, for any misconduct.” * It was not uncommon, formerly, for a clergyman to appoint a friend to the office of parish clerk, who at once appointed a deputy to perform the duties of the office, and thus to ensure the power of immediate dismissal of the acting officer in case of misconduct. CHAP. III] BEADLES, ORGANISTS. 293 Where parishes are divided under the earlier Church Building Acts [58 Geo. IIL ch. 45 & 59 Geo. LIT. ch, 134] the newly-created parish has its own clerk and sexton, who take their own fees; but where a “district chapelry ” only is formed, the clerk and sexton of the old parish are entitled to perform their duties and receive the fees at the district chapel. [Roberts v. Aulton, 2 H. & N. 432.] The Act of Parliament already mentioned [7 & 8 Vict. ch. 59,§ 2] provides for the appointment of per- glerk in sons in holy orders to the office of parish clerk; Orders. but such “clerks in orders” are subject to the ordinary laws which regulate the appointment, duties, and dismissal of licensed curates. The following is the clause relating to them: “That when and so often after the passing of this Act as any vacancy shall occur in the office of church clerk, chapel’ clerk, or parish clerk, in any district, parish, or place, it shall be lawful for the rector or other incum- bent, or other the person or persons entitled for the time being to appoint or elect such church clerk, chapel clerk, or parish clerk as aforesaid, if he shall think fit, to appoint or elect a person in the holy orders of deacon or priest of the United Church of England and Ireland to fill the said office of church clerk, chapel clerk, or parish clerk; and such person so appointed or elected as aforesaid shall, when duly licensed as hereinafter provided, be entitled to have and receive all the profits and emoluments of and belonging to the said office, and shall also be liable in respect thereof, so long as he shall hold the same, to perform all such spiritual and ecclesiastical duties within such district, parish, or place as the said rector or other incum- bent, with the sanction of the bishop of the diocese, may from time to time require; but such person in holy orders 294 PARISH CLERKS, SEXTOWNS, [BOOK IV., so appointed or elected as aforesaid shall not by reason of such appointment or election have or acquire any freehold or absolute right to or interest in the said office of church clerk, chapel clerk, or parish clerk, or to or in any of the profits or emoluments thereof; but every such person in holy orders so appointed or elected as aforesaid shall at all times be liable to be suspended or removed from the said office, in the same manner and by the same authority, and © for such or the like causes, as those whereby any stipen- diary curate may be lawfully suspended or removed, such suspension or removal nevertheless being subject to the same power of appeal to the archbishop of the province to which any stipendiary curate is or may be entitled.” Two subsequent clauses provide that if any such parish clerk in holy orders be appointed by other persons than the incumbent, the appointment shall be subject to his approval; and that no appointment of assistant clergy under the Act shall exempt incumbents from the duty of providing curates in cases where they are otherwise liable. Il.— SEXTONS. The ancient and honourable office of Sacristan usually finds its modern equivalent in the labouring man who attends to the manual work necessary in the church or churchyard, under the contracted title of Sexton.! The appointment of a sexton depends very much upon Appoint- custom, there being no judicial decision on the mentof subject that can be reckoned of general ap- sexton. + plication. As an officer whose duties are * The ancient form of the office is still retained in its integrity in some cathedral churches, where the minor canon who holds it is charged with the care of the fabric of the church, of the instrwmenta used in Divine Service, with the preparation of and provision for the altar, and with the pural of the dead, CHAP. U.] | BEADLES, ORGANISTS. 295 associated with the performance of Divine Service, and with the freehold of the churchyard, or of any part of the church, he is the deputy of the rector or vicar: as charged with the care, &c., of the fabric of the nave, the bells, and instrumenta of Divine Service, he is the deputy of the churchwardens. Mr. Justice Patteson decided that, primd facie, the right and duty of appointing the sexton is in the rector or vicar of the parish. [Reg. v. Stoke Damerel, 5 Adolph. & Ellis, 584.] Some parishes have, however, a custom of electing the sexton, and this would be a good legal custom, to the exclusion of the rector or vicar. [Caus- field v. Blenkinsop, 4 Exch. 234.] But where the parish clerk is also sexton, the right of appointment is less doubtful, as the clerk is to be appointed by the rector or vicar, and the fact of his being sexton also does not alter the case. It is to be remembered that, however he is appointed, he can have access to the church only by permission of the incumbent. The duties of the sexton are determined chiefly by custom, but they are of a similar nature to those of the ancient sacristan. He is keeper of the church-keys, has general charge of the church, its cleansing and lighting, as also of the vestments and instrumenta of Divine Service. The sacristan was the proper officer to prepare the altar, and to provide the ele- ments, for the Holy Communion; and, so far as the sexton is the successor of the sacristan, this would seem to be his office; but it may be questioned whether this duty has not rather now devolved upon the parish clerk. [See Rex. v, Inhabitants of Liverpool, 3 T. R. 118.] He is also the superintendent of the bell-ringers, and has the care of the churchyard as well as of the church; and he prepares the - graves for the burial of the dead, either personally or by his deputies. Duties of sexton. 296 PARISH CLERKS, SEXTONS, [BOOK IV. The wages of the sexton are regulated by custom, con- sisting in general of a payment made by the pects. churchwardens out of the church-rate, or similar funds, and of fees paid for burial. The amount ‘of the latter is usually regulated by the vestry. The sexton is considered to have a freehold in his office, Dismissal 2d if he is removed from it without reasonable from cause may be restored by a mandamus. [Reg. ee v. Kingclere, 2 Lev. 18.] He is liable to censure by the ordinary, but, it is said, cannot be dismissed from his office by him. It is said, however, that a custom for the parishioners to remove him at pleasure is good; and perhaps he might in all cases, for reasonable cause, be dis- missed by the same person or persons by whom he was appointed. By 19 & 20 Vict. ch. 104, § 9, sextons in parishes formed under the New Parishes Act are to be appointed by the incumbent, and to be removable by him with consent of the bishop fer any misconduct. Under The position of sextons under the Church Church = Building Acts has been already mentioned. Building Acts. [Page 293. ] III.—BEADLES. The beadle, bedell, or bydel, is (as the name signifies) the bidder, crier, or messenger of the parish. His duty is to attend as such upon the officers of the parish, the rector or vicar, churchwardens, and vestry. The same kind of officer is maintained at the universities, where the . bedells attend upon the chancellor or vice-chancellor as mace-bearers, and also in the courts of the bishops, where they are known by the name of “apparitors.” The parish beadle is scarcely an ecclesiastical officer; he is rather a constable having authority to keep order within the parish, CHAP. III.] BEADLES, ORGANISTS. 297 But his powers are not so extensive as those of a constable, [Cliffe v. Littlemore, 5 Esp. 39.] He is appointed by the parishioners in vestry, and can be dismissed by them at any time for misconduct. Almost the only mark of his office having anything of an eccle- siastical nature about it is, that the wages of beadles are payable out of the church-rate. [Hecl. Law. Rep. 46.] As a peace officer of the parish, however, the bead!e often keeps order in the church and churchyard during Divine Service; and the beadles of the churches built about the Georgian period often act as the “vergers” within the walls of the church. Similar beadles are those provided for by one of the Church Building Acts. [1 & 2 Will. IV. ch. 38, § 16.] IV.—ORGANISTS. The great revival of ritual in our parish churches, and the part played in modern Church Services by instrumental music, has made the Organist a most important person in most parishes. He has, however, except in Cathedral and Collegiate Churches, no independent status, and no eccle- siastical position as such. The Incumbent, by virtue of his responsibility for and control over the services [page 330], has the right of saying whether the organ shall or shall not play, and who shall play on it. [Wyndham ». Cole, 1 P. D.130.] The Organist is, in fact, in the same position with regard to the Incum- bent as are the Choirmen and Choristers. If there was, as there probably sometimes is, a special endowment for an Organist, the electors, whoever they were, could confer upon — their nominee the right to the stipend ; but they could not, as against the will of the Incumbent, enable him to play - the organ. [ 298 ] Chapter IV. VESTRIES. Bai parishioners being accustomed to meet for the trans- action of parochial business in the room where the clergyman puts on his vestments, their representative body has acquired the name of the place in which it assembles, and is called a vestry. When the room has been too small, Placeof it has been a common custom for the meeting meeting. to take place in the church itself. It may, however, meet in any place to which there is free access; and by 13 & 14 Vict. ch. 57, a separate room may be hired, purchased, or built, for any parish the population of which exceeded two thousand at the preceding census.* Now by the Local Government. Act, 1894, sec. 6 (a) the powers, duties, and liabilities of the vestry of a rural parish, except (i) so far as relates to the affairs of the church or to ecclesiastical charities, and (ii) any power, duty, or liability transferred by the Act from the vestry to any other au- thority, and ¢ (ii) the powers, duties, and liabilities of the overseers, or of the churchwardens and overseers, of the parish with respect to the provision of parish books, and of a vestry room or parochial office, parish chest... or * This is done by an order of the Poor Law Commissioners ; and on the expiration of twelve months from the publication of their order in the London Gazette, it becomes unlawful to hold a vestry meeting, or any other parish meeting—unless for an ecclesiastical or charitable purpose, or some purpose approved by the bishop—in the church, or (except under very special circumstances) in the church vestry, CHAP. IV.] VES TRIES. 299 matters relating thereto, are transferred to the parish ‘council on its, coming into office. According to the Compulsory Church Rate Abolition Act of 1868, “ whenever any ecclesiastical district, having within its limits a consecrated church in use for the pur- poses of Divine worship, shall have been legally constituted out of any parish or parishes, and whether such district shall or shall not be a separate and distinct parish,” the inhabitants may assemble in vestry and make a church rate, “as if such church were the church of an ancient parish.” [31 & 32 Vict. ch. 109, § 6.]4 The vestry is to be convened by a public written notice of the day, hour, and place at which it is to. : . . . Notice of meet, which notice must be signed by the in- gay, nour, cumbent and churchwardens, or the overseers, enka > or any one of them, and affixed on or near to the doors of all churches and chapels-of-ease within the parish on a Sunday, “previously to the commencement ‘of Divine service,” three full days before the day fixed for its meeting: Thursday being thus the earliest day after the publication of the notice on which the meeting can take place. It is also necessary to state on the notice what is the business to be done at the meeting. [1 Vict. ch. 45, §§ 1, 2, & 3.] Those who convene the meeting may themselves fix the hour of meeting. [R. v. Tottenham, L.R. 4 Q.B D..367.] These enactments were passed at a time when church rates could be recovered compulsorily, and applied there- fore to all vestries held for the purpose of making church rates. It has, however, been ruled that in new parishes it is not necessary to give the notices required by * In London the vestries are regulated by the Local Management Acts in all parishes which come within their operation: such vestries are not here noticed, 300 VESTRIES. [LOOK Iv. these Acts for holding vestries for the election of church- wardens, such churchwardens having no secular functions [Reg. v. Barrow, Law Rep. 4 Q. B. 577]; and the principle of this decision would probably be held to apply to vestry meetings called for the purpose of levying voluntary church-rates, or for other such purposes. Indeed, the whole law of vestries, except for the appointment of churchwardens and other parish officers in old parishes, is, for ecclesiastical purposes, almost obsolete. The incumbent of the parish is, ew officio, chairman of the vestry. [Wilson v. McMath, 3 Phill. 67; R. v. D’Oyly, 12 Adolph. & Ellis, 139.] In his absence, there is no one who is ex officio entitled to pre- Chairman. side, but a chairman must be elected by the parishioners present. [58 Geo. III. ch. 69, § 2.] Any objection to the person elected must be made before he opens the proceedings, as it cannot take effect at any later time. Whether the person elected be a ratepayer or not is of no consequence to the validity of the proceedings, but the vote of one who is not a ratepayer cannot be counted. The vestry is a meeting of ratepayers, they alone being entitled to take part in its proceedings, although others may be present at them. By 16 & 17 Vict. ch. 65, § 1, and 59 Geo. III. ch. 85, § 3, no person can vote who has neglected or refused to pay any poor-rate Voters. made or due three months or more previous to the day of meeting; but nonpayment of a rate made within three months of the day does not stand in the way. This is further modified, as regards church-rate, by the Act of 1868, which enacts that, “No person who makes default CHAP. IV.] VESTRIES. 301 in paying the amount of a church-rate for which he is rated shall be entitled to inquire into, or object to, or vote in respect of, the expenditure of the moneys arising from such church-rate; and if the occupier of any premises shall make default for one month after demand, in pay- ment of any church-rate for which he is rated, the owner shall be entitled to pay the same, and shall thereupon be entitled, until the next succeeding church-rate is made, to stand for all purposes relating to church-rates (including the attending at vestries and voting thereat) in the place in which such occupier would have stood.” [31 & 32 Vict. ch. 109, § 8.] But if a person has become liable to be rated since the making of the last poor-rate, he will be entitled to vote as if he had been included in the assess- ment. [58 Geo. III. ch. 69, § 4.] The last-cited Statute also enacts, by its 5rd section, that every person assessed on a rental of 50/. or up- wards shall be entitled to a vote for every 25/. pes rental up to six votes, which is the largest num- ber that can be used; that where two or more are jointly rated, one of them may vote, according to the number of votes jointly possessed. By 59 Geo. IIT. ch. 85, § 2, it is also provided that corporations and companies may vote by their secretary,clerk,steward,or other duly authorised agent. By the joint effect of 32 & 33 Vict. ch. 41, and 41 & 42 Vict. ch. 26, § 14, where the owners of small tenements pay the rates for the occupiers, the occupiers are to be deemed ratepayers. All occupiers therefore now, whether directly rated or not, are members of the vestry. The vestry being open to all ratepayers, those who are Small tenements. 302 VESTRIES. [BOOK Iv. not present are bound by its acts as if they had been present (their absence being voluntary), however voting © Small the number of voters present may be. The votes are to be taken by show of hands, but any ratepayer has a right to demand a poll after the result of a show of hands has been declared. [Campbell v. Maund, 5, Adolph. & Ellis, 865.] It must be remembered that a show of hands may not indicate the number of votes that might be given even by those present, and that a poll is the only effective manner of obtaining a record of all the votes in a large parish. [White v. Steele, 12 C. B. (N. S.) 406.] It is enacted, by 58 Geo. III. ch. 69, § 2, that in all cases of equality of votes, the chairman, in addi- ede tion to his vote according to his assessment, shall have the casting-vote. The chairman also has the power of appointing the Behe 84 time and place at which, and the time during placeof which, a poll shall take place. Nor is this an right affected, although the churchwardens may have already fixed a time and place previously in the notice by which the vestry was summoned, The right of adjournment also belongs to the chairman, It is generally to be exercised in accordance A ionsee with the wishes of the majority; but it may be exercised, if necessary—as, for instance, when the proceedings are being disturbed—against their consent. [R. v. D’Oyly, 12 Adolph. & Ellis, 139.] To the chairman also belongs the duty and responsibility of receiving or rejecting the votes tendered. But during CHAP. IV.] VESTRIES. 303 the poll he may call in assessors to assist him in deciding on their validity. [R. v. Vicar of Wakefield, 7 Law Times, 227.] It is ordered by 58 Geo. III. ch. 69, § 2, that minutes of the proceedings and resolutions shall be fairly and distinctly written in a book to be provided by _. ‘ ! 5 Minutes the churchwardens ; these minutes being signed of pro- by the chairman, and by such other parish- hari loners present as choose to do so. It is usual to confirm them at the next vestry, but this is not necessary to their validity. [Mawley v. Barbet & Alt, 2 Esp. 687.] If they are confirmed by the next vestry, they are, however, adopted by it, and thus they become binding upon it if they were not so before. In some parishes there exists, by custom, or local Act of Parliament, a representative body called “a select vestry.” These vestries have sometimes been confirmed by faculty from the bishop; but it is settled that such a faculty cannot create a select vestry where there is none by custom. These select vestries, as a general rule, entirely supersede the ordinary vestry. But where they exist by statute, the particular Act of Parliament under which they are constituted must be consulted for information respecting them. Where they exist by custom, they are subject to the same principles of law by which ordinary vestries are regulated. In large towns select vestries may be appointed under the Act 1 & 2 Will. JV. ch. 60. [ 304 ] Book V. CHURCHES AND CHURCHYARDS. Chapter I. THE ACQUISITION OF CHURCHES AND CHURCHYARDS AS ECCLESIASTICAL PROPERTY. $1. (The Sites. J 305°] 18 4 Consecmizon ae ae 308 §2. The Building . . 307 | §5. Status of Conse- § 3. Architectural Fittings crated Land and and Decorations . 307 Builaings. Ve. e3t0 1e: is a principle of the canon law that no church can be erected without the permission of the bishop of the Churches ‘locese in which it is to be situated. This nottobe principle was declared to be one of English coe iee the canon law by the 12th of the canons passed at bishop's Westminster in the year 1138, which forbids pesmes** “any man to build a church or oratory upon his own estate without the bishop’s licence.” [Johnson’s Eccl. Laws.| When the papal power was strong in Eng- land, endeavours were made to override this rule in favour of churches which should be exempt from any episcopal authority but that of the Pope; and the local authority of the bishop was frequently opposed in favour of the Pope’s authority, by the Crown and the great landlords. The rule, however, eventually prevailed against the laity, after they lost the support of the papal power—since the law takes no notice of a church until it is consecrated, since there is no means by which a bishop can be compelled to CHAP.1.] CHURCHES AND CHURCHYARDS. 305 accept a building for sacred use and consecrate it, and since he can only so accept it for consecration on certain conditions, to which he is bound by law and custom. The erection of such exempt or “ free” churches is also further limited by the law which forbids the clergyman to officiate publicly in any building which is not either consecrated or licensed for Divine service by the bishop. Hence it is plainly necessary, as well as right, that the bishop’s sanction should be obtained before any steps are taken towards the actual erection of a church, although a scheme and plans may, of course, be previously prepared without any impropriety. By the law of England, after the Statutes of Mortmain, no land could be consecrated without the consent of the Crown and the lord of the fee ; and, practically, so many difficulties arose as to the power of conveying land to be consecrated, even with these con- sents, and the uncertainty in whom the freehold of such land would vest was so great, that it became impossible to build a new church without an Act of Parliament; and till the passing of the first Church Building Act [58 Geo. III. ch. 45], local or private Acts were procured whenever churches were built. Now, under the provisions of the various Church Building Acts, the Ecclesiastical Commis- sioners, without the consent of the bishop of the diocese, may take conveyances of land; and may, with his consent, © authorize the building of churches and the division of old parishes. §1. The Site. It is absolutely necessary that the site to be used for a consecrated church or churchyard should be greenoia freehold, so that the donation of it to the essential. Church may be of an irreclaimable kind. Should there be any flaw in the title of the land, all subsequent pro- 306 CHURCHES AND CHURCHYARDS. [BOOK V. ceedings will be useless, it being the duty of the bishop to decline to consecrate any building or land of which there is the slightest risk that it will not belong in perpetuity to the Church. Jn practice, most of these matters are settled by the Ecclesiastical Commissioners, and they will Examina. always require that the title of the donor to tion of title. the land to be consecrated be properly and sufficiently made out; although they are, by various statutes, empowered to take, and when taken to keep, land to which a strict title is not made out. Bequests of land, or of money for the purchase of it, for the site of a church or churchyard, were by an Act of 1803 permitted to be made, provided that they did not exceed five acres in land, or £500 in goods and chattels, and provided the will was executed at least three months before the death of the testator [43 Geo. III. ch. 108; 51 Geo. III. ch. 115.] Now, by 54 & 55 Vict. ch. 73, land, or personal estate directed to be laid out in the purchase of land, may be assured by will to or for the benefit of any charitable use, and so much of the land as is required for actual occupa- tion for the purposes of the charity may be retained or purchased out of such personal estate, provided the High Court or the Charity Commissioners are satisfied that such land is so required, and sanctions such retention or purchase; but the remainder of such land is to be sold within one year from the death of the testator, unless the High Court or the Charity Commissioners extend the time, and the remainder of the above-mentioned personal estate is to be held to or for the benefit of the charitable uses as * Married women, however, cannot make such bequests. [Re Smith’s Estate, Clements v. Ward, L.R. 35, Ch.D. 589.] CHAP. 1.] CHURCHES AND CHURCHYARDS. 307 though there had been no such direction to lay it ott in the purchase of land. The site of the church and churchyard, and the endow- ments of any new parish created under 6 & 7 Vict. ch. 37, or 7 & 8 Vict. ch. 94, or 19 & 20 Vict. ch. 104, and held in trust for such parish on the 29th July, 1856, are vested in the incumbent by sect. 10 of the last-named statute. Sites provided after that date under these three Acts are, by 19 & 20 Vict. ch. 104, § 23, to be settled and assured by the donors to the ene of the Commissioners to the use of the incumbent. The site of a church conveyed to the Commissioners under the other Church Building Acts vests in the incumbent on consecration by virtue of 8 & 9 Vict. ch. 70, $13, and even a portion of the site which is not consecrated vests as part of the site. [Plum- stead District v. Eccles. Comm., L.R. 1891, 2 Q.B. 361.] §2. The Building. There are no laws relating specially to the building of churches, as distinguished from other edifices; but as it rests with the bishop whether or not he will accept a building for consecration as a church, all plans should be submitted to him for his sanction. $3. Architectural Fittings and Decorations. There has been of late years a good deal of litigation as to the furniture, fittings, and decorations which may be lawfully used in churches. It has been settled that a chancel screen, surmounted by a cross, is a permissible and proper architectural feature [Westerton v, Liddell, Bradford v. Fry, LR. 4 P.D. 93), and that the lawfulness of a crucifix on the summit of the same will depend upon its liability to abuse, and the 308 CHURCHES AND CHURCHYARDS. [Book Vv. special circumstances of each case. [Ridsdale v. Clifton, LR. 2 P.D. 353.) Some judges have refused to grant faculties for gates to a chancel screen; but they are not unlawful [Westerton v. Liddell, re St. Agnes, Toxteth Park, LR. 11 P.D. 1), and other judges allow their erection. A reredos is lawful; and may contain sculptured repre- sentations from Holy Writ [Phillpotts v. Boyd, L.R. 6 P.C. 435], including a representation of the crucifixion. [ Hughes v. Edwards, L.R. 2 P.D. 361.] A credence table is a lawful, if not a necessary, article. [Liddell v. Westerton, 5 W.R. 477.] A faculty for a baldachin or a canopy over the Holy Table was refused by the judge of the Consistory Court of London, partly because it was considered unlawful, partly also on the stronger ground of the dislike of the great body of the parishioners ; but the question, so far as it was one of law, depended upon antiquarian considerations, and cannot be considered as in any way thoroughly discussed. There are several baldachins actually in existence in churches, A cross on the ledge of the east window, or elsewhere at the east end, is lawful [Liddell,v. Beal, 14 Moore, Privy Council Reports, 1]; but a eross actually upon the Holy Table, or so near it as to appear to be on it, was, through a survival of Puritanism, pronounced unlawful. [Durst v. Masters, L.R. 1 P.D. 373.] Vases of flowers [Elphinstone v. Purchas, L.R. 3 Adm: and Eecl. 106], and candlesticks [Westerton v. Liddell] upon the Holy Table have been pronounced lawful, and lighted candles if lighted beforehand. [Read v. Bishop of Lincoln, L.R. 1891, P.D. 80.] But these things, although they are legal in themselves, should not be introduced into a church, after it has once cHaP.1.] CHURCHES AND CHURCHYARDS. 309 been consecrated, without a faculty. Flower vases and candlesticks may perhaps be excepted; but even acuity for these it is often well to have a faculty; and reauired. where the alteration proposed is likely to add to the comfort or convenience of the congregation, or is other- wise an improvement and is unobjectionable, the ordinary need not consider the opinion of the parishioners in | exercising his discretion whether the faculty ought to be granted. [Nickalls v. Briscoe, L.R. 1892, P. 283.] § 4. Consecration. The separation of buildings from domestic or secular use, and their appropriation as places for Divine service, is a practice coeval with Christianity, and is said by St. Clement of Rome, who wrote in the time of the Apostles, to have been a practice ordained by Christ Himself. [Clem. Hp. to Corinth. i. 40.] The dedication of such separated buildings to sacred use by a specific act would naturally follow, and is shown by good evidence to have * In the very earliest years of Christianity there were, doubtless, “upper rooms” in dwelling-houses [Acts i, 13; ix. 37; xx. 8], such as the Zeuveia spoken of by Philo among the Egyptian Christians [Euseb. Eccl. Hist. ii. 17], or the room with a gilt ceiling described as the worshipping-place of Christians in Lucian’s ‘ Dialogues.’ [Lucian, Philopatris.| But early in the second century St. Ignatius bids the Magnesians go “into the temple of God” [Ign. Hp. to Magn. vii.]; while, later on in the same century, Clement of Alexandria distinctly speaks of churches in our modern sense, and gives in- structions as to behaviour when © going to church,” and when “ out of church.” [Clem, Alex. Strom. ii, 4.] Tertullian, Hippolytus, and other writers of the following century, often speak of the ‘“ temples of God,” and this is the term most frequently used by Eusebius also, Much information on the subject is given by the learned Mede in his ‘ Treatise concerning Churches and the Worship of God therein,’ [Mede’s Works, p. 319. Ed. 1677.] we 310 CHURCHES AND CHURCHYARDS. [BOOK V. done so. Eusebius records [Euseb. Eccl. Hist. x. 3] that when the Dioclesian persecution had ceased, the festivals of dedication were held in every city, and “the consecra- tions of the newly-built houses of prayer” [veoraywv TpocevkTypiov apiepwoes}]. He also gives us, in full, the discourse which he himself preached at the consecration of the great church of Tyre, which had been rebuilt by its bishop, Paulinus [Euseb. Zecl. Hist. x. 4]; and in his ‘Life of Constantine’ he minutely describes the building and the consecration of the splendid church called the ‘Martyrium, which that Emperor built at Jerusalem. [Euseb. Life of Constant. iv. 41-46.] In the year 376, St. Gregory of Nazianzum speaks of the consecration of churches as an “old law,” referring in the same terms also to the annual commemorative festival of dedication [Greg. Naz. Orat. xliii.]; and the evidence continues equally clear down to the time when the Office for Consecration appears in early Pontificals [Egbert’s Pontif,, Surtees Soc. Ed. pp. 26-40], and when ritual writers like Walafrid Strabo [A.D. 830] speak of the custom as of one long familiar to the Church. [ Walafr. Str. De rebus Eccl. ix.] The records of consecrations in early English times are by no means scarce. That of Ripon Minster by St. Wilfrid —when Eefrid, King of Northumbria, was present—in the middle of the seventh century, is given in the ancient Life of St. Wilfrid; that of the Church of Ramsey [A.D. 972] in the early History of Ramsey. That of Winchester Cathedral [A.D. 967] is in the History of the Benedictine Order; and others are to be found in the JMonasticon Anglicanum, and in Tanner’s Notitia. At Jarrow on the Tyne there is also preserved the stone on which the record of the consecration is engraved, and which is dated in the CHAP. 1.] CHURCHES AND CHURCHVARDS. BI fifteenth year of King Egfrid [a.p. 685]. A similar stone, of apparently even earlier date, was discovered some years ago at Ipswich; while others, of 1192, 1344, and 1533, remain at Clee, Rolvenden, and St. Sennen. English canon law on the subject begins with the ‘ Ex- cerpts’ attributed to Egbert, and compiled in the eighth century. The 139th of these reproduces a canon of Vigilius, Bishop of Rome, in A.D. 537: “If the altar be taken away, let the church be consecrated anew; if the walls are only altered, let it be reconciled with salt and water. If it be violated with murder or adultery, let it be most diligently cleansed and consecrated anew.”! [Johnson’s Heel. Laws.] The 2nd canon of the Council of Cealc-hythe, or Chelsea (held in A.D. 816), decrees: “When a church is built, let it be consecrated by the bishop of its own diocese; let the water be blessed and sprinkled by himself; and let all things be thus accomplished in order, according to the ministerial book. Afterwards let the Eucharist, conse- erated by the bishop in the same ministration, be built up with the other relics in the cavity of the altar, and pre- served in the same church; and if he can find no other relics, this shall be quite sufficient, for it is the Body and Blood of Our Lord Jesus Christ. And we charge every bishop, that he have it written on the wall of the church, or on a tablet, or even on the altars, to what saints they * Reconciliation, however, rather than reconsecration appears to have been the common English custom. [Sir R, Phillimore, Eccl. Law, p. 1773 ; Lincoln Cathedral Statutes, Novum Registrum, p. 71.] It is not now the practice to require a reconsecration when the altar is taken away [Parker v. Leach, Law Rep. 1 P.C. 312]; and by 30 & 31 Vict. ch. 133, § 12, it is provided that all ceremonies performed in a church shall be valid notwithstanding that the external walls have been enlarged, or the position of the Communion Table has been altered, 312 CHURCHES AND CHURCHYARDS. [Rook Y, are dedicated.” [Hadd. & Stubbs, Couwne. 111. 580.] After the Conquest, some canons were passed at a Council held at Winchester in A.D. 1071, the 8th of which ordained that Divine Service should not be celebrated in any churches until they had been consecrated by the bishop. In the thirteenth century it was ordered, in the first of the Lega- tine Canons of Otho [A.D, 1237], that all cathedral, conven- tual, and parochial churches should be consecrated within two years of their completion; and in those of Othobon [A.D. 1268, thirty years later], it was decreed that applica- tion for consecration should be made to the bishop of the diocese within one year. [Johnson’s Heel. Laws.]} And when neglect was shown by Spridlington, Bishop of St. Asaph, in performing this duty, a mandate was sent to him from the Archbishop of Canterbury [4.D. 1377], strictly enjoining him to make enquiry as to what churches were in use without being consecrated, and immediately to per- form the rite. [Wilkins’s Cone. iii. 122.] There is no doubt, therefore, that churches built in England before the Reformation were always consecrated. The practice was objected to by the Puritans, but it does not appear that it was ever discontinued. Hooker, in defending it, says that the solemn dedication of churches serves “to surrender up that right which otherwise their founders might have in them, and to make God Himself their owner. .... When we sanctify or hallow churches, that which we do is only to testify that we make them places of common resort, that we invest God Himself with * Some diocesan constitutions on the subject may be found in Wilkins’s Conctlia, i, 624, 666 ; ii. 138, 501. CHAP. 1.] CHURCHES AND CHURCHYARDS. 313. them, that we sever them from common uses.” [Hooker's Eccl. Polity, V. xii.]|—expressions which show that he was writing respecting an existing custom. But, as Hooker sarcastically remarks, it could not “be laid to many men’s charge” in that age, that they were either “so curious as to trouble bishops with placing the first stone in the churches they built, or so scrupulous, as, after the erection of them, to make any great ado for their dedication ;” and. few churches can be traced to the time between Elizabeth and Charles I! The principles of the law, however, remained unaltered, and Lord Coke says that it takes no notice of churches or chapels until they are consecrated by the bishop. [Coke's Just. iii, 203.] Stow gives an account of the consecration of Fulmer Church by Bishop Barlow in A.D. 1610 [Stow’s Annals, p. 997], and also a list of nine other churches which were built and consecrated between 1605 and 1619: while additional instances are on record elsewhere, of churches consecrated by Bishops King, Andrewes, Laud, and Montague; and of the rebuilt church of South Malling, in which Archbishop Abbott stopped the performance of Divine Service, by interdict, because it had not been reconsecrated. In 1634 the 43rd canon of the Irish Church ordered that, “As often as churches are newly built, where formerly they were not, or church- yards appointed for burial, they shall be dedicated and consecrated.” [Wilkins’s Cone. iv. 506.] * On the tower of Barholme Church, finished in 1648, is an odd inscription, illustrating this point in the later reign :— “Was ever such a thing since the Creation 1— A new steeple built in the time of vexation !” 314 CHURCHES AND CHURCHYARDS. [BOOK V. The revival of church-building thus drew the attention sce of the bishops to the necessity of an authorized Consecra- orm of Consecration. Each bishop had been er accustomed to use his own. That of Bishop Barlow is given in Stow’s ‘ Annals,’ that of Andrewes has been frequently printed, and that of Laud is to be found in Rushworth’s Collections. In the year 1640 a Form was drawn up and passed by the Convocation of Canter- bury, which was to have made part of an authorized Pontifical for the use of the bishops, but it was never published. [Cardw. Synod. pp. 576 n., 613.] Another was prepared by Bishop Cosin for insertion in the Book of Common Prayer in 1661, but this also fell through. [Cardw. Synod. pp. 668, 677.] In Queen Anne’s reign, in 1712, a third was prepared, but never received the royal assent. [Sir R. Phillimore, Heel. Law, p. 1762.] In the following reign the king gave his licence for (among other things) “preparing a Form for consecrating churches and chapels ;” and that prepared in 1712 was accordingly revised by the Convocation of Canterbury. [Cardw. Synod. pp. 819-825.] It never received full authority, but is sub- stantially the Form now used in the Church of England. The consecration of a church by this Form consists of three acts: jirst, the Oblation of the land and buildings — by the founder or founders; secondly, the Benediction of them by the Bishop with the service appointed ; thirdly, the solemn sentence of Dedication and Consecration. [1] Lhe Oolation by the founder or founders is made before the service begins. After assenting to the petition made to him, that he will consecrate the church, the CHAP.1.] CHURCHES AND CHURCHYARDS., 315 bishop walks in procession to the altar, the 24th Psalm being sung. As soon as he has seated himself in his chair before the altar, the instruments of conveyance, donation, or endowment are presented to him by the founder or his substitute. These deeds are then laid upon the altar by the bishop, as the representatives of the material land and fabric; a similar ceremony having been used, from the very first ages of the Church, in the oblation of yifts which could not themselves be laid there. [2.] The Benediction of the land and buildings so offered to God then takes place, the service consisting partly of special prayers relating to the occasion, and partly of the ordinary service of Morning Prayer and Holy Communion. [3] The Sentence of Consecration is pronounced after the Offertory, including the offering represented by the deeds upon the altar, has been made. This is read by the chancellor of the diocese, the bishop sitting in his chair during the reading. The following is a copy of this instrument, as used on the occasion indicated :— “In the Name of God, Amen. Whereas in and by an humble petition, bearing date the fifteenth day of October instant, presented unto us by Thomas Combe, Esquire, of the University Press, Oxford, M.A., it is set forth that by deed dated the eighth day of May last [made under the authority and for the purposes of the several Acts of Parliament known as the ‘Church Building Acts’], George Ward, of the City of Oxford, the owner of the land by the said deed conveyed, did freely and volun- 316 CHURCHES AND CHURCHYARDS. [BOOK V. tarily, and without any valuable consideration, give, appoint, grant, and convey unto the Ecclesiastical Com- missioners for England and their successors, all that piece of land, containing one thousand six hundred and ninety- two square yards, or thereabout, situate at Jericho, in the parish of Saint Thomas the Martyr, in the City of Oxford, and forming part of two closes of land, contain- ing, together one acre two roods and thirty-six perches, bounded on the north-west and south-west by other land belonging to the said George Ward, on the south-east by a street known as Cardigan Street, and on the north-east by a street known as Canal Street, as delineated on the plan in the said deed, to hold [free from land-tax and tithe-rentcharge] to the said Ecclesiastical Commissioners and their successors for the purpose of the Church Build- ing Acts, to be appropriated as and for the site of a new church, with surrounding yard and inclosure thereto, to be called ‘Saint Barnabas Church, Oxford, and to be devoted, when consecrated, to ecclesiastical purposes for ever, according to the said Acts; that a new church has, accordingly, been erected by the petitioner, the said Thomas Combe, at his own expense, upon the land conveyed by the said deed, and which, although therein described as in the parish of Saint Thomas the Martyr, is locally situate in the district of Saint Paul, in the said City of Oxford, having been separated from the said parish of Saint Thoinas by the Order in Council whereby the said district of Saint Paul was constituted; that the same church, having been properly adorned and appointed, is ready to be consecrated; and that the requisite measures CHAP. 1] CHURCHES AND CHURCHVARDS. 317 are about to be adopted for procuring the assignment of a local district to the said new church, and for it being constituted a separate benefice; and the said petitioner, therefore, humbly prayed as in his said petition is set forth. “Now we, Samuel, by Divine permission Lord Bishop of Oxford, being willing to comply with this reasonable and pious prayer, do, by these presents, by our Ordinary and Episcopal authority, separate for the future the said newly- erected church from all common and profane uses, and do consecrate the same as a new district church for the worship of Almighty God, the administration of the Sacraments, the reading of prayers, and preaching the Word of God purely, sincerely, and for performing all other religious ceremonies according to the Liturgy of the United Church of England and Ireland ; and we do hereby dedicate the said church to ‘Saint Barnabas,’ the site of which said new church and the boundaries thereof are more particularly delineated and set forth in the plan drawn in the margin of these presents: Saving, neverthe- less, unto ourself and our successors, our episcopal rights and privileges herein; and saving likewise to all bodies politic and corporate, and to all persons whomsoever, the respective claims to which they or any of them were entitled before passing of this our definite sentence and final decree which we make and promulgate by this present writing: Warning all men that they think not lightly of our solemn ordinance and decree, whereby these holy places are for ever set apart and consecrated unto Almighty God, 318 CHURCHES AND CHURCHYARDS, [BOOK V. “Signed and published in the Church of Saint Barnabas, Oxford, aforesaid, this nineteenth day of October, in the year of Our Lord one thousand eight hundred and sixty- nine, and in the twenty-fourth year of our consecration. “S. OXON “Quod Attestor, JOHN M. DAVENPORT, “ Notary Public.” When it has been read, the bishop signs the instrument before the notary public, and orders it to be enrolled by his registrar, and preserved amongst the muniments in his registry. This is what constitutes the legal act of con- secration. It is effected by the decree of a competent ecclesiastical court; 2z.¢. the act or sentence of consecration signed by the bishop setting aside the ground or building in sacros usus. [Wood v. ALS) Burial Board, L.R. 1892, 1 Q.B. 715.] The consecration of a churchyard is of a similar character. Special provisions for facilitating the conveyance of sites for churchyards, and diminishing the expense of con- secrating them, have been made by 30 & 31 Vict. ch. 133, amended by 31 & 32 Vict. ch. 47. § 5. The Status of Conseerated Land and Buildings. When a church or churchyard has been thus consecrated, it ceases absolutely and entirely to be the property of the woe donor, and he has no longer any legal interest pasar ds of in it whatever. That which would have been bemsebint Vi property has now become the house of God, belonging neither to htm nor to the parishioners for whose use it is intended, but to God. That which is so transferred to God cannot be alienated from Him without sacrilege. CHAP. 1.] CHURCHES AND CHURCHYARDS. 319 Subject to such a principle, the estate in a consecrated church and churchyard is one of freehold,’ of 5... which the fee-simple is in abeyance—the simple in immediate freehold passing from one holder to ace another by presentation, institution, and induction.2 The object for which possession of the freehold is given to the incumbent is that he may have the entire control of the use of the church and churchyard, according to the eccle- siastical laws under which they are to be used—that he may be free to use the one for Divine service, and restrict the other to the burial of the dead, guarding both from profane uses.? Subject to this, however, the rector or vicar has the right to the herbage growing in the churchyard, or the fruits of the trees therein. It has been so customary with pious people to lay their dead relatives in consecrated ground, that persons have gone so far as to express a doubt whether it be lawful to use the Burial Service of the Prayer Book over bodies * If part only of the land conveyed to the Ecclesiastical Com- missioners as the site of a church is consecrated, nevertheless upon such consecration the whole of the land so conveyed vests in the incumbent under 8 & 9 Vict. ch. 70. [Plumstead District v. Eccl. Comm., L.R. 1891, 2 Q.B. 361.] 2 The freehold of the chancel is in the rector, and the possession in the incumbent, whether rector or vicar. It seems that a perpetual curate has not usually more than the right to possession of the church and churchyard. [Greenslade v. Darby, L.R. 3 Q.B. 421.] There are a few cases—those of churches built under 5 Geo. IV. ch. 103, § 14, and 1 & 2 Will. IV. ch. 38, § 9—in which the freehold was vested in trustees ; but the old principle of the common law was confirmed by 8 & 9 Vict. ch. 70, § 13, by which all sites and churchyards conveyed to the Ecclesias'ical Commissioners before consecration are, after con- secration, vested in the incumbent. See also 19 & 20 Vict. ch. 104, § 10, 3 The Burial Laws Amendment Act, 43 & 44 Vict. ch, 41 [App. VII.], has made some inroad on this principle, 320. CHURCHES AND CHURCHYARDS: [Book Vv. buried in unconsecrated ground. There was, however, it is believed, no reasonable cause for this view, as there was nothing contrary to the law of the Church in a burial in unconsecrated ground. The provision on this subject in the Burial Laws Amendment Act [43 & 44 Vict. ch. 41, § 12] was probably unnecessary. [See App. VIL] No alteration of importance in the fabric of a church or in the churchyard can lawfully be made without the per- mission of the Consistory Court expressed in a faculty. The complete appropriation of any portion of a church- yard to secular use, even though such use may be greatly for the public benefit, cannot be effected without an Act of. Parliament. [Harper v. Forbes and Sisson, 5 Jurist, N.S. 275; Archd. of Norwich v. Churchwardens of St. Augus-' tine’s, Norwich; ecl. Gaz, Nov. 1874.] But where a churchyard has been closed for burials the ordinary has jurisdiction to authorize by faculty the user of a portion of the churchyard for purposes advantageous to persons attending the church, as well as to the public. [Vicar », Parishioners of St. Botolph, L.R. 1892, P. 161, and Jn re St. Nicholas Cole Abbey, L.R. 1893, P. 58.] By the Metropolitan Open Spaces Act, 1881, sec. 4 & 5, any churchyard in the Metropolis closed for burials, and by the Open Spaces Act, 1887, any churchyard elsewhere which is no longer used for interments may be transferred to the local authority, with the sanction, in the case of rural authorities, of the Local Government Board, and may be maintained by such authority as an open space for the enjoyment of the public. Another Act [47 & 48 Vict. ch. 72] has provided that it shall not be lawful to erect any building upon any disused burial ground except for the purpose of enlarging a place of worship. [ 321 J Chapter IT. CHURCHES AND ECCLESIASTICAL PERSONS. §1. The Bishop. . . 321 | § 2. The Incumbent. . 322 SPreL Ae CHT AT aa 591 HEN churches and churchyards are consecrated, they are placed in peculiar relations to the clergy, which it will be convenient to notice separately, as regards the bishop of the diocese, the incumbent of the church, and the licensed curate who is assistant to the latter. § 1. The Bishop. The jurisdiction of the bishop of the diocese extends over the whole of every consecrated church and church- yard. The ministrations which are carried on there are carried on by his authority, as having the primary cure of souls throughout his diocese, and he has an inherent right to take part in them at any time. He is also, in the highest degree, the guardian of every consecrated place ‘and building within his diocese; and having the right of visitation whenever he chooses to exercise it, he has thus the right of access. It may, in fact, be said, that as the incumbent is the deputy of the bishop, so the latter 322 CHURCHES AND [BOOK Vv. has, in a primary degree, all the rights which belong to the former, so far as they are associated with the performance of Divine Service. These rights are ordinarily, however, held in abeyance, and only exercised when the incumbent is set aside by suspension or sequestration. § 2. The Inewmbent. By his induction into the real and corporal possession of his benefice in general, a rector or vicar be- Incumbent’s : ° 3 : : freehold. comes invested, in particular, with freehold rights in church land and build- enclosed within the churchyard fence or wall. pes The site and fabric of the church, with all that is permanently attached to that fabric, are thus, in the eye rights in all the land and buildings which are of the law, the property of the incumbent for the time being; so that all actions brought against persons for damaging or carrying away anything belonging to the church or churchyard must run in his name as the legal owner.? The rights thus acquired carry with them the exclusive ae I right of access to the church, and also (saving 1s sole . . right of any established right of way) to the church- aarerge yard; so that none can lawfully exclude him from any part of them, nor any enter them of their own * Except the chancel (and possibly in some cases, though doubt- fully, the churchyard) where there is a lay rector ; and except some exceptional cases of private freehold chapels forming part of a parish church, For the law respecting these see Chapman v. Jones, Law Rep., 4 Exch., p. 273; Heales’ Law of Church Seats, § 429; Sir R. Phillimore, Eccl. Law, p. 1778. ? The repair of the chancel by the incumbent when he is a rector is a duty imposed upon him by custom—not as the possessor of the freehold. [Gibs. Cod. ix. 5; Griffin v. Dighton, 33 Law Journ. (N.S.), Q. B. 29, 181, 5 Best and Smith, 93, 108.] CHAP. II] ECCLESTASTICAL PERSONS. 323 right, but only by his permission, so long as he is in- cumbent. When he is inducted, the keys of the church are assigned to him, by the ceremony of laying his hand upon some of them [page 242], and all of them are hence- forth his property. Hence in the archdeacon’s annual | “Articles of Enquiry,” the churchwardens have to answer “upon their solemn and sincere declaration,” to the ques- tion, “Is the key of the church kept where the minister directs?” This right of the incumbent has been pre-' viously mentioned, in connection with the duties of churchwardens [page 273]; and many cases are there referred to in which the right has been supported by ecclesiastical judges. That a lay rector cannot exclude the incumbent from the chancel, though he has, perhaps, a right of : - Lay rector entry to it himself, was ruled by the Exchequer and key of Chamber in 1864, on appeal. Chief Justice rit ae Erle said that this was an action of trespass brought by the impropriator against the vicar, for taking off locks from a door leading into the body of the chancel, which locks were claimed by the rector to be his property ; and the substance of the plea was, that the defendant, as vicar, claimed the right of access to all parts of the church, and to pass in and out through all the doors of the church; and if the rector put a lovk upon the door to prevent his passing through, the vicar had a right to put an end to the obstacle, and had a right to enter at all times ; and the defence on the part of the vicar was held to be valid, and he was of opinion that the judgment of the court below ought to be affirmed. He did not go into 324 CHURCHES AND [BOOK V. any question of rights of property varying in different parishes, but to meet that only which was involved in the consideration now before the court, which was a claim of right on the part of the minister who had duties to per- form in the church; and he did not think he could express the rights of the vicar better than in the language used by Sir John Nicholl, quoted in the court. below :—* All persons ought to understand that the sacred edifice of the church was under the protection of the ecclesiastical laws as they are administered in the ecclesiastical courts; that the possession of the church is in the minister and the churchwardens, and that no person has a right to enter it when it is not open for Divine Service, except with their permission.” He was of opinion that that was the sound ex- position of the law, that the minister and churchwardens had possession of the church at all times. The chancel was the place to which the minister ought to have access at all times. The judgment should be affirmed. [Griffin v. Dighton, 33 Law Journal (N.S.) Q. B. 181, 5 Best and Smith, 108.] A dictum of Sir John Nicholl has sometimes led to the belief that the churchwardens have a right Churc®, of access, by keys of their own, as well as the cate to minister; but this claim, also, has been judi- cially refuted. In 1868 a churchwarden wished to enter a church for the purpose of altering some arrange- ments made by the incumbent, and demanded the keys from the latter. The incumbent refusing to give up the keys, but offering access, the churchwarden called a vestry, by whose authority he picked the lock of the church-door. A suit was instituted against him in the Court of Arches, CHAP. It.] ECCLESTASTICAL PERSONS. 325 when the judge decided; unhesitatingly, that “the vestry had no power to clothe a churchwarden with an authority not inherent in his office,” and that such an authority as he had exercised was not inherent in it. “It has been endeavoured,” said Sir It. Phillimore [Ritchings v. Cord- ingley, see pages 273, 281], “to extract from this language of Sir John Nicholl, in Jarratt v. Steele [3 Phill. 167], the position that the freehold of the church is in the churchwardens as well:as in the incumbent; or, at least, that the custody. of the church is equally vested in both parties, and therefore that the churchwardens must be entitled to the keys of the church equally with the incumbent. But this is a position which even the letter of the judgment does not warrant, and which is directly at variance with the common law and a series of decisions upon the subject—and most especially with the decision of the same learned judge in the later and very carefully considered case of Lee v. Matthews. Observe his language in this case. ‘On the other hand,’ he says, ‘the minister kept possession of the keys of the church, and, as it would seem, in order to prevent this painting at that particular time; and surely the minister of the parish is the fittest person to decide at what season the public worship may be suspended, with least inconvenience to the religious duties of the parishioners. This vestry was called for the purpose of ordering an additional key of the church to be made for the use of the parish churchwarden. This was very irregular, for the minister has, in the first instance, the right to the possession of the key, and the church- wardens have only the custody of the church under him; ; Z 326 CHURCHES AND [BOOK V. If the minister refuses access to the church on fitting occasions, he will be set right on application and complaint to higher authorities.” [Lee v. Matthews, 3 Hagg. 173.] “The same doctrine,” added Sir R. Phillimore, “is referred to by Dr. Lushington, in the recent case of Dewdney ». Good, as one of the best-established axioms of ecclesiastical law.” [7 Jur. (N.S.) 637; 19 Law Times (N.S.) 26.] The vestry is as entirely under the control of the in- cumbent, with regard to access, as any other part of the church. This was ruled by the Court of Queen’s Bench in 1867, when a churchwarden of Luton applied for a mandamus to the Access to the vestry. justices of Luton, ordering them to adjudicate on a charge of assault brought against the vicar for excluding him from the vestry. The application was refused by the court, Mr. Justice Blackburn remarking, that “it would be an error to imagine that a churchwarden had neces- sarily at all times a right to enter the vestry,” From ncnie and that “the vicar might not lawfully resist his entry,” if the churchwarden wished to force himself in at improper times, or for improper purposes. [Zecl. Gaz. Dec., 1867.] An opinion was also given by Sir R. Phillimore and Sir J. D. Coleridge, in 1860, with respect to the external vestry-door, that the freehold of the church being vested absolutely in the incumbent, he has “the right to the use of a private door, of which he alone may keep the key, through which door he has a right to prevent any From without. one he pleases from entering the church, so long as he allows to the parishioners means of access reasonably CHAP. II.] ECCLESTASTICAL PERSONS, 327 sufficient at times when they have a right to be in the church.” [House of Commons’ Papers relative to St. George’s-in-the-East. ] The belfry is not less under the control of the incum- bent than other parts of the church. Access cannot be had to it, nor can the bells be rung, overea without his consent: and if the bells are rung after he has forbidden the ringers to ring them, very serious consequences may result to the ringers. In 1862 the Vicar of Thurnby prosecuted the churchwardens, parish-clerk, and other parishioners, for breaking open the belfry-door and ringing the bells, to commemorate a meet of hounds in the village, when he had forbidden them to ring, and had locked the door of the belfry. It was laid down by Dr. Lushington, the judge, that the freehold ot the church being in the incumbent, and the custody of all the keys belonging to him, his consent was essential to any ringing of the bells. The ringers were therefore admonished, and condemned in costs; and, being unable to pay the latter, remained in prison for five weeks until other persons had paid them. [6 Law Times, 580; Lecl. Gaz., July, 1862 ] But to constitute an ecclesiastical offence the ringing must be against the incumbent’s express wish. [Daunt v. Crocker, 2 L.R. A. and E. 41.] The freehold rights of the incumbent in the church and churchyard are not, however, given to him for his sole use, as in the case of the freehold rights yon belonging to the glebe. On the contrary, they Seapets ie are confided to him as a trust for certain well- defined purposes; and for these purposes he is bound to 328 : CHURCHES AND [BOOK ¥. vive access. Thus he must permit access to the church lor Divine Service, and to the churchyard for burial. He must also permit access to it for proper cleansing and tepair; for such duties as devolve upon the churchwardens with respect to the goods of the church, and the parish books; for vestry meetings, and for such use of the bells as is consistent with the purpose for which they are placed ‘in the belfry. Monuments or tombstones cannot strictly be placed in il ha be churches or churchyards without the consent andtomb- of the ordinary. Lord Stowell said: “There Stoner: can be no question as to this, that no-monu- ment can be erected without the leave of the ordinary.” {Maidman v. Malpas, 1 Hagg. Cons. 207.] The reason given by the judge is that the fabric of the church has been committed to the ordinary, and is not to be defaced at the caprice of individuals. The incumbent, however, having the fabric of the church under his control, is, in practice, enabled to sanction the erection of ordinary monuments and menoorial inscriptions, and his consent will commonly represent that of the ordinary. Lord Stowell, in the case above cited, declared that the court would act improperly if it was to say that parties might erect a monument without leave of the rector; and he allows that faculties for monuments are rarely required, “ for the ordinary usually reposes confidence in the minister to do what is proper.” a The sanction of the ordinary overrides any objection of the incumbent [Bulwer v. Hase, 3 East, 117]; but with- out. the sanction of one or the other, no person has any CHAP. II.] ECCLESTASTICAL: PERSONS. 329 authority to erect a monument in any part of a church or churchyard. Such sanction of a monument or tombstone includes, of course, both the design and the inscription. If either of them are such as ought not to appear in a church or churchyard, they should be rejected by the incumbent, when, if the persons wishing to place them there are dissatisfied, they can appeal to the ordinary, and from him to the court of the archbishop. [Bulwer v. Hase, 3 East, 217.] And although the property of a monument in a church, or a tombstone in a churchyard, remains in those who erected them,! and in the heirs of the deceased, so that it is their duty to keep it in repair, and they may bring an action against any persons who injure or remove them, it may be removed by order of the ordinary, if it has not been erected under the authority of the incumbent, or that of a faculty. The herbage and underwood of the churchyard belong to the incumbent. The paths are a right of way for the parishioner, and can only be altered, as a rule, by the ordinary. The latter can grant a way for public con- - venience, or if no detriment is caused to the parishioners for private convenience, on payment of an annual sum [Jn re St. Benet Sherehog, L.R. 1893, P. 66]; but he will not act without the consent of the incumbent being at least asked. [Walker v. Mountague, 1 Curt. 260.] * Military colours placed in a church, and not affixed to the freehold, vest in the churchwardens. [Vincent v. Eyton, L. R. Toor by tel 330 CHURCHES AND [BOOK Vv. Also in special cases, provided for by 59 Geo. III. ch. 134, § 39, the Ecclesiastical Commissioners may alter a path under the authority of two justices of the peace. The arrangements for Divine service are under the absolute control of the incumbent, subject, of ee pect course, to the laws laid down in the Prayer Placa ah Book and elsewhere. It is for him to decide whether there shall be any services beyond the morning and evening, and whether the Holy Communion shall be celebrated at the same time when morning prayer is said, or whether they shall form separate services. The hours of Divine service are also to be fixed by the incumbent. But, above all, it rests with the incumbent to control all those parts of Divine service which are not actually performed by the clergy. Thus Lord Stowell decided—in a case where the churchwardens instituted a suit against resol their clergyman for obstructing the singing of and the school children by introducing the accom- cra oe paniment of an organ—that “the minister has the right of directing the service; eg. when the organ shall and shall not play, and when the children shall and shall: not chant, though the organist is paid and the children managed by the churchwardens.” [Hutchins ». Denziloe, 3 Phill. 90, 1 Hage. 175.] “They must com- plain to the ordinary if he introduces irregularities into the Service.” [Wilson v. Macmath, 3 B. & A. 250,] More recently Sir Robert Phillimore gave a similar de- cision, issuing a monition to an organist who resisted CHAP. II. ECCLESIASTICAL PERSONS. 331 the incumbent's right, and condemning him in costs, [Wyndham v. Cole, Eccles. Gaz. Nov., 1875, L. R. 1 P.D. 130.] In the case of St. George’s-in-the-East, the Bishop of London declared: “The law allows an incumbent to have a choral rather than a read service, if he pleases ; and though I may highly disapprove, as I do, of forcing a choral service on an unwilling Choral” parish, I can only remonstrate: I have by law no power of forbidding, or, if I forbid, of enforcing obedience to my. mandate.” [Hecl. Gaz, Sept., 1859.] Similar language was uttered at a later date by the Bishop of Lichfield in the case of St. George’s, Wolverhampton. [Ecel. Gaz., Jan. 1870.] It seems also to be allowed, that if the organ is locked up to hinder it from being used in Divine Service, the incumbent has authority to break it open, having entire control over it, whether for use or disuse in any service, at any time, and by whomsoever the organist may be paid. [Eyre v. Jones, Hecl. Gaz., Jan. 1870.] § 3. The Curate. A curate has no rights of his own over a church or churchyard, but he is the natural representative of the incumbent in his absence. He has, however, rights as minister of Divine Service; and it is presumed that he could legally claim to exercise as of his own right, in the absence of the incumbent, all those rights respecting it which are mentioned in the preceding section. [aes 32ea| Chapter ITI. CHURCHES AND SECULAR PERSONS. § 1. The State... . . 332 | § 2.-The Churchwardens 333 $93. Lhe Parishianers— «8 333 § 1. The Slate. -A LTHOUGH churches are public buildings, and churchyards public places, no. special rights or duties respecting them belong to the civil authorities, except in one particular—that of burial. In the cases of suicides against whom the jury return a verdict of Felo de se, the Act of Parliament [4 gk Geo. IV. ch. 52, § 1] required that they should inchurch- be buried “in the churchyard, or other burial- a aacues ground of the parish, or place in which the remains of such persons might, by the laws and customs of England, be interred, if the verdict of Felo de se had not been found against such person,—such interment to be made within twenty-four hours from the finding of the inquisition, and to take place between the hours of nine and twelve at night.” In such cases, therefore, the coroner’s order for burial is not merely a release of the dead body from the custody of the Crown; but it enforces burial in the churchyard. Now by 45 and 46 Vict. ch. 19 they are to be interred in any of the ways authorized by CHAP. L.] CHURCHES AND SECULAR PERSONS. 333 the Burial Laws Amendment Act, 1880, but without any of the rites of Christian burial. Hence these Acts do not in any way affect the rubric respecting suicides. [See page 183.] The Burial Laws Amendment Act, permitting burials without religious service, or with services other than those of the Church of England, has Saeae been already referred to, and will be found at Church length in Appendix VII. gers Churchyards, in common with any other burial-grounds, may be closed against burial by order of the apne Queen in Council, under the Acts 15 & 16 ofChurch- Vict. ch. 85, within the metropolis, and 16 & ser 17 Vict. ch. 134, elsewhere. Any person assisting at a burial in a churchyard so closed is liable to a penalty of 102. [18 & 19 Vict. ch. 128, § 2.] Where brick graves or other vaults exist, however, it is in the power of the Secretary of State for the Home Depart- beh ment to issue a licence, permitting the burial sare of persons in their family graves. [16 & 17” Vict. ch. 134, § 4.] [See page 187.] § 2. The Churehwardens. The rights and duties of churchwardens, as regards churches and churchyards, have been fully reviewed in the chapter respecting them, to which the reader is re- ferred. [See pages 263-275.] § 3. The Parishioners, Every person within the parish in which a church ‘is situate has a common-law right to the use of it in time of 334 CHURCHES AND SECULAR PERSONS. [BOOK Vv. Divine Service. This right has been defined in an opinion given by Sir Robert Phillimore and Lord Coleridge, as that of being “present within it at all times ee pe When the public worship of God, or religious presentat ceremonies which are by law public cere- Baresi! monies, are going forward.” [House of Com- mons’ Papers relating to St. George’s-in-the- East, 1860.] Much more have they a right to the use of the church when they are to be present for the per- formance of any of its offices as regards themselves. Hence the incumbent’s control over all access to the church is limited by the rights of the parishioners to its use at such times as he may appoint for the celebra- SR eee tion of any of the offices contained in the Book celebrated of Common Prayer: whether those of public obit worship—such as the Holy Communion or morning prayer ; or whether those of a personal kind, yet performed im facie ecclesiw—such as marriage and churching. To this general right must be added the particular right of suitable accommodation during Divine Service. This, however, has been noticed in some detail in the section on the duties of churchwardens in assigning seats to parishioners [see page 268], and nothing further need here be said. On the parishioners rest the moral and canonical obli- gation of repairing the whole of the fabric of the church —except the chancel; of providing and keeping fit for use all the instrwmenta or “ornaments” required for Divine Service; of keeping in order the churchyard, repairing its Right to seats. * And may not be excluded because there may not be sitting room for him. See Taylor v. Timson [page 269]. CHAP. I11.] CHURCHES AND SECULAR PERSONS. 335 wall or fence when necessary; of paying the servants of the church; and, generally, of bearing all the expenses incident to the use of the church, except the maintenance of the ministers and the repair of the chancel. mien The rights of parishioners to burial in the toburial churchyard of their parish church, and the monuments rule of law as to monuments and tombstones have been already mentioned. [pages 177, 328.] [ 336 ] Book VI. TIE ENDOWMENTS OF THE PAROCHIAL CLERGY, Chapter I. INCOMES. § 1. Vithes . « .« « 337 | § 3. Perpetual Annut- 052. 0Gicha 1 andse. ea etg40" Les! i eee AS § 4. Fees, Dues, and Offerings . . . 349 NDOWMENTS for the maintenance of the clergy are derived principally from voluntary gifts made for Payer the purpose in ancient and modern times; endow- the status of such gifts being that of offerings aaa made to God for the maintenance of Divine Service and of the cure of souls, by means of a ministry to be sustained out of them. They consist chiefly of tithes, glebe-lands, and funded property; a large portion of such endowments being administered by the Ecclesi- astical Commissioners, who pay the incomes of the clergy out of the funds which, by force of various statutes passed in order the better to provide for the maintenance of the parochial clergy, have come into their hands. cHap.1.] INCOMES OF PAROCHIAL CLERGY. 337 § 1. Tithes. The dedication of a tenth part of property or income to God is a practice which is traceable as far back as the Patriarchs [Gen. xiv. 20; xxviii. 22]; andthe payment of tithes by Rehan to “the priest of Caras os the Most High God,” seems to show that, from the first, such payments had reference to the maintenance of the ministry. By the laws given to the Jews, tithes became (if they were not so before) a Divine institution [Lev. xxvii. 30; Numb. xviii. 21]; and down to the last ages of the Jewish Dispensation, the tithes paid to the clergy are re- presented by God as offerings made to Himself [ Mal. ii. 8]. This sacred character of the tithe system doubtless led to its adoption in the Christian Church. In the Christian first fervour of Christianity, the Jewish converts adoption gave up all their property for the use of the a a rae Church, laity and clergy taking their maintenance out of the common fund so accumulated. But this was a system which could only be carried out under very peculiar cir- cumstances; and as the number of Christians increased, it became both unnecessary and impracticable. At the same time, the clergy were often taken from classes which had no fixed maintenance except what they earned, and were so occupied that they were unable to work at profit- able occupations ; and hence a necessity arose for con- triving some means by which they should be supported from the property and labours of those who benefited by their ministrations. An offertory system, administered by the bishop, appears to have been the earliest contrivance 338 INCOMES OF PAROCHIAL CLERGY. [Book V1. for this purpose; a common fund being thus formed, out of which was provided alms for the poor, funds for the. necessaries of Divine Service, and a maintenance for the clergy. When settled times drew on, in the fourth cen- tury, this common fund system began to be broken up, and the maintenance of the clergy began again to be placed upon the definite footing of the tithe system, a system familiar both to Jew and Gentile.! St. Boniface, writing, in the middle of the eighth century, to Cuthbert, Archbishop of Canterbury, speaks of tithes as being then paid in England. In the Excerpts which bear the name of Egbert, Archbishop of York [A.D. 740], the 4th and 5th canons relate to them; the latter one ordering that they should be divided into three parts—for the use of the Church, the use of the poor, and the use of the clergy.2 The 24th canon speaks of them as of ancient date, while the 99th and 100th give Scriptural and patristic authority for their payment. The 17th canon of the Council, or perhaps Witenagemote, of Chelsea [Cealchythe], held in A.D. 785, also relates to tithes; and from that time there is a continuous stream of legislation respecting them, in such mixed legislative assemblies of clergy and laity as the last-named probably was, and also in the separate councils and parliaments of later centuries. Heathen examples of the payment of tithes may be found in Herod. i. 89, ix. 81; Xenoph. Cyrop. v. 3,9; Diodor, Sicul. xx. 756; Livy, v. 21, 23. * This division was probably universal throughout Europe. St. Gregory mentions it—dividing the portion of the clergy into separate parts, for the bishop and for the inferior clergy—in his Epistle to St. Augustine, [Bede, Eccl. Hist. i, 27.] Since Mr. Blunt wrote this passage, the researches of the Earl of Selborne have made it doubtful whether this division ever was the law of England, [A Defence of the Church of England, Pt, II. ch. viii, sec. 5.] CHAP. 1.] JNCOMES OF PAROCHIAL CLERGY. 339 They appear to have been paid and received in the earlier times of the English Church on the strength of eccle- siastical custom ; but at the Council of Chelsea they began to be recognised by the civil power, and established by national law; and so they continued to be during the whole of the medieval period, the Reformation age, and down to modern times. But after the earlier ages of the Church, the simple prin- ciple of tithes, as a tenth part of every person’s income, passed away; and only such income Rabirks: became generally titheable as was derived from ° tithes modified. things which “yield a yearly increase by the act of God”—such as grain, fruit, cattle, and underwood. Tithes thus became a payment upon agricultural produce, and it is as such mainly that they have ever been the subject of legislation! As lands accrued to the clergy, tithes also formed only a portion of their maintenance. And thus the original principle—which had in view the dedication by all lay persons of a tenth of their annual profits or income to the service of God, and the acceptance of this as the one source from which the clergy were to be maintained—gave way to a law from the direct opera- tion of which large classes of persons are entirely exempt. Further modifications of a highly artificial character subsequently ensued. Under the monastic pyemp. system, large tracts of land became exempted tions. from the payment of tithes for their produce; while, at t Personal tithes or offerings out of the substance of artificers and others have, however, had a limited existence—that is, an existence by custom in certain places, or as offerings at the great feasts, and were recognised by statute. [2 & 3 Edward VI. ch, 3, sec. 6.] 340 INCOMES OF PAROCHIAL CLERGY. [Book Vi. the same time, monastic corporations received tithes, under the system of appropriations, from'a third of Fede alaes the parishes of England, of which only a small portion was devoted to the service of the parishes from which they were derived, and the rest to the general purposes of the monastery. When monastic property passed into other hands .at the Reformation, a still further abuse sprang up, in the system of impropria- tions, by which tithes became payable to lay- Ageia men, who provided clergy at very small stipends for the parishes, and used the bulk of the tithes as their own income—thus diverting them, to an enormous extent, from the use for which they were intended A eradually increasing discontent with the tithe system thus grew up, which was met at the Reformation by Acts of Parliament [27 Hen. VIII. ch. 20, and 32 Hen. VIII. ch. 7] of a very strict character, enforcing their payment. Another source of difficulty in the system arose out of Pietiat the intricate character which it assumed from kindsof the partial nature of its operations. Tithes ey were classified as preedial, mixed, and personal. Pradial tithes were defined as those which “arise merely and. immediately from the ground—as grain of all sorts, hay, wood, fruits, and herbs.” Mixed tithes are those which arise “from things immediately nourished by the ground —as ls cee lan each’: milk, cheese, * Appropriations are the assignment of tithes to clerical corpora- tions, whose members, or some of them, are qualified to do the proper work for which tithes are intended. igre. opriations are the assign- ment of tithes to laymen who are not so qualified, cHaP.1.] ZNCOMES OF PAROCHTAL CLERGY. 341 eggs.” Personal tithes are such profits as arise from labour and industry, “being the tenth part of the clear gain, after charges deducted.” Ordinarily the “great,” or rector’s tithes, are those of corn, hay, and wood; the “small,” or vicar’s tithes, being the remainder of the praedial, with the whole of the mixed and personal tithes ; the two being so denominated, not from the quantity of them in the par- ticular parish, but from their general quality.1 A very small proportion of the great tithes remained in the hands of the clergy after the Reformation, all that were at that time valuable being transferred to the lay landholders ; and the rectorial tithes now held by the clergy are the great tithes of lands that were then waste or worthless, but have since been improved. The inconveniences attending the assessment and collection of tithes often led to a voluntary Voluntary system of agreement between incumbents and commuta- tithe-payers, by which the former accepted, me under the name of “modus,” a fixed annual payment, in kind or money, instead of the actual tenth—a capital sum being also sometimes paid in lieu of the annual payment. These voluntary commutations were recognised by the law as soon as they were sanctioned by custom, and were adopted into many local Acts of Parliament as permanent arrangements for the redemption of tithes; but while '* The complications arising out of the development which the tithe system underwent, as crops became more varied and cultiva- tion more scientific, were endless. Towards the close of the last century hothouse fruits became titheable, 9 A 342 INCOMES OF PAROCHIAL CLERGY. [poox V1. they were of a voluntary nature, they could not bind successors, and the inconveniences which they temporarily remedied might revive at any moment. The voluntary system of commutation was, therefore, superseded, in 1836, by “ An Act for the Com- mutation of Tithes in England and Wales,” which substituted an equivalent for tithes in Commuta- tion Acts. the form of a rentcharge, varying in proportion every year, according to the price of corn. This commutation might be made voluntarily by the persons concerned ; but if not done in this manner, it was provided that it should be done compulsorily, by the Tithe Commissioners. It was also provided that clergy entitled to tithes might commute them for land, provided the land did not exceed twenty acres in quantity; but this provision did not extend to impropriators, or lay rectors.’ The system of tithes has thus become practically extinct, but the property represented by them is still provided for by an equivalent in the form of rentcharge. The amount of this, which is payable by every occupier of land in a parish, is set forth in the following form, in an “apportionment” which is binding on all the persons interested, and becomes the title-deed on which the rentcharge represented by it may be claimed :— Form of award. * The Tithe Commutation Acts are 6 & 7 Will. IV. ch. 71; 1 Vict. ch. 69; 2&3 Vict. ch. 62; 3 & 4 Vict. ch. 15; 5 & 6 Vict. ch. 54; 9 & 10 Vict. ch. 73; 10 & 11 Vict. ch. 104; 23 & 24 Vict. ch. 93; 36 & 37 Vict. ch. 42; 41 & 42 Vict. ch. 42; 49 & 50 Vict. ch. 54; 54 & 55 Vict. ch. 8. They are extremely voluminous CHAP. 1.] JWCOMES OF PAROCHIAL CLERGY. 343 APPORTIONMENT of ReENTCHARGE in lieu of TrrHss, in the Parish of ———, in the County of ———. 2s | 3 4 Rent- pve Occupiers. Be Description,| Quality. | Quantity. anes payable 8 e| to Vicar, |* 1™Pre- sel priator. AS j ; a ARS Peel Suen ae eon eal Atkinson, John.| Himself .| 14 | Old Field .| Pasture .} 12332] 015 5| 8 1410 Aubrey,Sir Edw.| Cooper,Geo.} 15 | Court Farm ae) 848 212/21 6 2| 621910] Bateson, Emily .| Smith, uate 16°} Home Close} Pasture. .| 4020] 0 4 6] 019 9 | Himsel 4 Adcroft «| { Arable& | Clark, Edward . & others 98 ) Farm 1 Pasture POO TE | LOS de? OF | eae S De Lolme, Lady| Walker,Hy.|106 | Moor Acres/ Pasture. .| 38115] 0 3 1] 015 0 Long, Moses’ .| Himself ./107 | Moor Field.) Pusture . MZelT | 0 ¢2510) | OSes Smith, John .| Himself ./108 | Oak Field .| Pasture . Geer ZENS 0 UT Ose 1 nae8 Ward, William.| Himself ./109 | Elm Field .| Pasture. POE QTE OS? 9: lO 1803 3310 4/1113 4 7 _—_—-———"—"" Total . 146 14 11 The rentcharge is originally fixed by the clear average value of the tithes for the seven years endings Ae at Christmas, 1835. Thus the original rentcharge fixing the is based upon a calculation which estimates the "!"* prices of grain as follows [1 Vict. ch. 69, § 7] :— =O: One bushel of Wheat. . . 7 Of a 5 Barley ap 2.4 tos lle 3 - Oster or. ee sea But its amount varies according to the current price of grain, and is estimated by the average prices of wheat, barley, and oats during seven preceding years, which are advertised in January every year in the London Gazette." The manner of doing this is previded for by 6 & 7 Will. LV. ch. 71, § 57, which enacts that every rentcharge shall * This is now regulated by the Corn Returns Act, 1882. [45 & 46 Vict, ch. 37.] | oo =a 344 INCOMES OF PAROCHIAL CLERGY. [poox vu be deemed to be of the value of such number of impenal bushels and decimal parts of an imperial bashel of wheat, barley, and oats, as the same would have purchased at the rates or prices above mentioned and fixed for this parpose, in case one-third thereof had been invested im the purchase of wheat, one-third in the purchase of harley, and the rémaining third in the purchase of oats. A rentcharge of 1001 would thus, according to the standard prices on which the award is based, purchase grain to the following amounts, namely: Bushes. # , = 1. $4.96 Wheat . 4 - s& 65 168-42 Barley 3 ~ —) S26 es 242-42 Oais = m . 2:16 °8 And the amount of the same rentcharze for any given year will be the sum of money which would purchase that quantity of grain according to the average prices published in the London Gazitiz, as above stated. The rentcharge is, therefore, so much hisher, or so much lower, than the sum fixed by the award, according as the authorized averages are hicher or lower than the standard prices given in the Commutation Act. There are special provisions as to tithes of hop-candens and market-gardens, which were subject to higher changes. But now, by 49 & 50 Vict. ch 54, these charges, called: “extraordinary changes.” are not to be imposed on any lands “newly cultivated” in this manner; and provision is made for commuting these charges, on lands already subject to them, into a constant additional rentcharze. By 6 &7 Will IV. ch 71, § 90, it is further provided that: “ Nothing im this Act contained, unless by special — provision to be inserted in some parochial acreement, and CHAP. 1.] INCOMES OF PAROCHIAL CLERGY. 345 specially approved by the commissioners, in which case the same shall be valid, shall extend... to the tithes of fish or of fishing, or to any personal tithes other than the tithes of mills, or any mineral tithes, or to any payment instead of tithes arising or growing due within the City of London, or to any permanent rentcharge or other rent or payment in lieu of tithes, calculated according to any rate or propor- tion in the pound on the rent or value of any houses or lands in any city or town, under any custom or private Act of Parliament, or to any lands or tenements the tithes whereof shall have been already perpetually commuted or extinguished under any Act of Parliament heretofore made.” Tithe rentcharge is payable half-yearly—on the lst of January and the 1st of July; or, in parishes where it has been so provided by agreement, pursuant to 1 Vict. ch. 69, § 11, on the 1st of April and the 1st of October. It is now payable under the Tithe Act, 1891,! by the owner of the lands out of which it issues, notwithstanding any contract between him and the occupier. If any sum due is in arrear for three months, the person entitled to such sum, whatever the amount, may apply to the County Court, and that Court may order that the sum or such part as appears to be due, together with costs, be recovered -as provided in the Act, and tithe rentcharge, as defined by the Act, is not to be recovered in any other manner. If the lands are occupied by the owner, the Court will appoint an officer, who, subject to the direction of the Court, may distrain for the sum ordered to be paid; and if there is no sufficient distress, the person entitled may proceed to obtain possession of the lands under sect. 82 of the Tithe Act, 1836. No contract can be made after the 26th March, 1891, for the payment of tithe rentcharge by the occupier; but * See Appendix X. 346 INCOMES OF PAROCHIAL CLERGY. [Book v1. where by the Act and any contract made before that date the occupier is liable to pay the amount of the tithe rent- charge to the owner, the owner of the lands is to serve notice, of such liability on the owner of the rentcharge, and thereupon, before an order for payment is made, the occupier is to be served with notice in the prescribed? manner, and may appear and be heard, if he desires. If the lands are not occupied by the owner, the Court will appoint a receiver of the rents and profits of the lands and of any other lands occupied by the same occupier, and owned by the same owner, in the same parish; and if such lands are held at one rent together with other lands in another parish, the Court will appor- tion the rent between the said lands and the lands in another parish in proportion to their rateable value. If the receiver satisfies the Court that the lands are let on such terms as not to reserve a rent sufficient to enable the receiver to recover from the owner the sum ordered to be recovered, the Court may, after hearing the owner and occupier if they desire, direct that the order shall be executed as if the occupier were the owner. The application to the Court for an order under the Act may be made by the titheowner’s agent, although not a solicitor, and no costs of a solicitor on the application shall be allowed if the amount claimed is paid without further proceedings, nor when notice of intention to apply for time to pay has been given (except in cases where costs could be allowed on a judgment summons). If the Court is satisfied that the sum claimed, together with any other sums paid on account of the tithe rent- * Rules have been made pursuant to the Act, and may be found in Statutory Rules and Orders for 1891, p. 1194. CHAP. 1.] JVNCOMES OF PAROCHIAL CLERGY. 346* charge in the twelve months next preceding the day on which it became payable will exceed two-thirds of the annual value of the lands, as ascertained in the assessment for Schedule B to the income tax (after apportionment by the surveyor of taxes, or ascertainment by the Com- missioners of Income Tax, if necessary), the Court shall order the remission of so much, whether the whole or part of the sum claimed, as is equal to the excess, and the amount so ordered to be remitted shall not be recoverable ; and the Court may remit such amount of any then current rate assessed on the owner of the rentcharge as appears to the Court to be proportionate to the amount of the remission of the rentcharge. But the above remission of tithe rentcharge is not to be made where by a special apportionment tithe rentcharge has been charged upon certain closes of land to the exclusion of others, unless the Court is satisfied that the applicant would have been entitled to the remission if no such special apportionment had been made; nor is it to be made in cases of lands other than those used solely for agricultural or pastoral purposes, or for the growth of timber or underwood. By sec. 10 of this Act no sum on account of tithe rent- charge is to be recoverable under the Act unless proceed- ings have been commenced before the expiration of two years from the date at which it became payable. § 2. Glebe Lands, The incumbent of a parish is a corporation sole, having a continuous succession, and as such can hold lands for himself and his successors after the manner of a freehold. “By which means,” says Blackstone, “all the original 347 INCOMES OF PAROCHIAL CLERGY. [BOOK VI. rights of the parsonage are preserved entire to the suc- cessor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person, and what was given to the one was given to the other also.” [Blackst. Comm., Book I. ch. 18.] The tenure of an incumbent is, however, regarded by the law as of the same kind as that of tenants for life; and he is prohibited from alienating or charging the estate, as well as from wasting it by the destruction of anything which is not included in the usufruct or temporary profit. No church could be built formerly without land for the Sitio support of the priest serving it, which is called, common law in the canon law, “unus mansus integer,” and rdnt which used to be held free from all temporal service. [Hztrav. ili. 39; Egbert’s Excerpts, 25.] This manse, or glebe, was anciently the endowment of the church, without which it could not be consecrated; and hence all ancient churches have some land attached to them, which is vested in its rector or vicar as a part of the provision for his maintenance. Glebes already existing may, in some cases and to some Acquisition eXtent, be enlarged by benefaction or purchase, of glebes. and glebes for new benefices may also be formed in a similar manner; but the laws relating to their “formation and enlargement, and also to the exchange of lands to form more convenient glebes, are so numerous and intricate that it is impossible to review them here. If glebe lands be cultivated by the incumbent himself, he is not restricted to any particular mode of cultivation ; » A very useful summary of them may be found in Hodgson’s Instructions for the Clergy, pp. 104-138 (Ed. 1870). cHaP. 1.]| JVCOMES OF PAROCHIAL CLERGY. 3477 nor is he liable to his successor for any neglect or mis- management. [Bird v. Relfe, 4 Barn. & Adolph. Quitivation 826.] He is, as regards cultivation, the owner, by the rather than the tenant. It is his duty, how- Se be ever, of course to see that reasonable care be taken to keep the land in profitable order for his successor. He may not, consequently, commit what is legally .. not termed “waste” of any kind. Thus he is fell timber expressly prohibited from cutting down trees tania: for sale, and is only allowed to fell them at all for the purpose of repairing the building or fences belonging to the benefice. He is prohibited also from open- 6 open ing mines [Knight v. Moseley, Amb. 176], or ™ines- gravel-pits [Huntley v. Russell, 13 Adolph. & Ell. Q.B. 572], on the glebe, though he may work those which are already open; nor may he quarry stone beyond what is necessary for repairs. Glebe lands and buildings may be let on lease! for farming purposes, under the provisions of 5 & 6 Vict. ch. 27, for fourteen years, or on an yas ae improving lease for twenty years. But the iaeeeate parsonage-house, and ten acres of land imme- diately adjoining it, are to be reserved, or, if there is not so much glebe land adjoining, then ten acres, or as much as there may be, if less than ten acres, within five miles - of the parsonage, or of the church where there is no parsonage. The covenants of such leases are expressly laid down by the Act, and include insurance and repairs. * The power which a rector had to grant leases of the glebe, with the consent of the patron and ordinary, provided he complied with the terms of 13 Eliz. ch. 10, was not taken away by 5 & 6 Vict. ch. 27. [Green v, Jenkins, 1 De Gex, F. & J, 454.] 348 INCOMES OF PAROCHIAL CLERGY. [Book Vi. Glebe lands may also be let on building leases for not and building More than ninety-nine years, or mining leases leases. for not more than sixty years, under the pro- visions of 5 & 6 Vict. ch. 108, and 21 & 22 Vict. ch. 57. Such leases require the consent of the Ecclesiastical Com- missioners. Under the last-mentioned Act and the Glebe Lands Act of 1888 [51 & 52 Vict. ch. 20], the sale of glebe land is allowed under certain conditions, and under the last Act with the approval of the Board of Agriculture, to whom application should be made. [ App. 1X.] Under the Agricultural Holdings (England) Act, 1883 pers [46 & 47 Vict. ch. 61, § 39], where glebe land gricultural : Holdings is let, the incumbent shall not exercise the oe powers given to the landlord by that Act without the previous written approval of the patron, or of Queen Anne’s Bounty; and Queen Anne’s Bounty may, on behalf of the incumbent, pay the tenant his compen- sation, and get the amount made a charge on the holding in favour of themselves. All farm buildings upon the glebe, together with walls, fences, and such things as the incumbent is, mal oes by law or custom, bound to maintain in re- Dilapida- pair, are the subjects of dilapidations, and tions Act. come under the operation of the Ecclesiastical Dilapidations Act of 1871 [34 & 35 Vict. ch. 43], which is reviewed in the chapter on PARSONAGE HOUSES. Sale of. § 3. Perpetual Annuities. A new kind of income has been provided for the clerg within the last few years, in the form of perpetual annuities, payable half-yearly by the Ecclesiastical Commissioners cHaAP. 1.] JVCOMES OF PAROCHIAL CLERGY. 349 out of their common fund; this fund consisting of the surplus income of the episcopate, the cathedral bodies, and certain other large preferments, capitalized. These annuities are granted in augmentation of bene- factions from trustees, societies, or individual persons. The benefaction may consist of money, land, house, p,nefac- site of a house, tithe, or rentcharge. In the case eon ae of money, every £100 placed in the hands of astical Com- the commissioners for the benefit of a benefice ™8s!omers yields interest to the benefice at the rate of £3 6s, 8d.a year, and to this is added a perpetual annuity of the same amount. Thus, every £100 benefaction to the wot py benefice secures to the incumbent an annuity perpetual of £6 13s, 4d. Where the benefaction is given of ean ? in another form, the perpetual annuity granted Y#!™e to meet it will amount to one-thirtieth of its value, all grants being estimated at thirty years’ purchase. §4. Fees, Dues, and Offerings. Besides the more regular income of the parochial clergy from tithes and glebe, or from funds in the hands of the Ecclesiastical Commissioners, there are certain casual sources of income, which yet are, in some cases, of con- siderable importance to the clergy. These may be divided into (1) surplice fees, (2) other fees, (3) dues and offerings. [1.] Surplice fees are those on performing the offices of the Church for the benefit of individuals; that is, fees on marriages, churchings, and burials. Fees on marriages have been treated of under the chapter on Hoty Matrimony [see p. 156], Fees on churchings are due, according to the rubric at the end of that service, which is as follows: “The 349* INCOMES OF PAROCHIAL CLERGY. [Book vi woman that cometh to give her thanks must offer her accustomed offerings.” Fees on burials are not due of common right, but they may be due of custom. Sir Simon Degge says the usual fee to the clergyman is 3s. 4d. for breaking the soil in the church. [Degge, Parson’s Counsellor, p. 176.] By 15 & 16 Vict. ch. 85, § 32, it is enacted that after con- secration any burial ground provided under the Act shall be deemed the burial ground of the parish, or if the same is pro- vided for two or more parishes, such burial ground shall be in law as if such parishes were one parish, and as if it were the burial ground of such one parish; and every incum- bent or minister of each such parish shall by himself and his curate, or such duly qualified persons as such incum- bent or minister may authorize, perform the duties, and have the same rights and authorities for the performance of religious service in the burial in such burial ground, or in the consecrated portion thereof, of the remains of parishioners or inhabitants of the parish of which he is incumbent or minister, and shall be entitled to receive the same fees in respect of such burials which he has pre- viously enjoyed and received, as if such burial ground were the burial ground of his parish. Where a cemetery was provided under this Act for a parish which never had any burial ground, it was held that the rector of such parish was under an absolute obligation by himself or his curate, or such duly qualified person as he might authorize, to perform the same duties in respect of burial in the consecrated portion of such burial ground of parishioners or inhabitants of his parish as he would have been obliged to perform if it had been the burial ground of his parish, and was entitled to the rights and authorities incident to such duties, and to all CHAP. L] JVCOMES OF PAROCHIAL CLERGY. 350 fees which the burial board might collect in respect of such duties. [Stewart v. West Derby Burial Board, L.R. 34 Ch.D, 314.] It has, however, been also held that an incumbent or minister under sect. 32 has the same rights quoad sacra only, and that he has no right to fees in respect of inter- ments in the cemetery of persons who were not parishioners or inhabitants of such parish, and has no right to fees in respect of grants of vaults or of exclusive rights of interment in such burial ground. [Wood v. Headingley- cum-Burley Burial Board, 1892, 1 Q.B. 713 ] The Court also held in the latter case that the Burial Board is not under any obligation to give notice to the incumbent that a burial of a parishioner is about to take place, and that if the incumbent, not having received such notice, is not present to perform the burial service, he has no right to any fees in respect of such burial, and has no redress against the Burial Board for not giving such notice; but that it would be an illegal act on the part-of the Board to knowingly permit any person unqualified, or not authorized by the incumbent, to conduct a religious service at a burial of a parishioner in the consecrated portion of such burial ground. It should be always remembered that all these fees are governed by the general law of the Church, as laid down in the Constitution of Archbishop Langton [Lyndwood, p. 278], which is as follows: “We do firmly enjoin that no sacrament of the Church shall be denied to any one | upon the account of any sum of money, nor shall matri- mony be hindered therefor; because if anything hath been accustomed to be given by the pious devotion of the faithful, we will that justice be done thereupon to the churches by the ordinary of the place afterwards,” 350* INCOMES OF PAROCHIAL CLERGY. [BOOK VI. It is the duty, therefore, of the clergyman first to perform the office, and then, if need be, to demand his fee. By 59 Geo. III. ch. 134, § 11, “It shall be lawful for the commissioners” (that is, the Ecclesiastical Commissioners), “and they are hereby empowered, to make and fix any table of fees for any parish, with the consent of the vestry or select vestry, or persons exercising the powers of vestry in such parish, and also to make and fix any such table of fees for any extra-parochial place, or in or for any district chapelry, or parochial chapelry in which any church or chapel shall be built or appropriated, under the provisions of the above-recited Act or this Act, with the consent, nevertheless, in all such cases of the bishop of the diocese ; and all fees so fixed may be demanded, received, sued for, prosecuted, and recovered, by the spiritual person, or clerk, or sexton, to whom the same shall be assigned, in like manner, and by such and the same means, as any ancient legal fees of a like nature may be sued for, prosecuted, and recovered.” Under the New Parishes Act [6 & 7 Vict. ch. 37, § 15] they may be fixed for such parishes by the Chancellor of the Diocese. In cases where the new parish has become separate and distinct for ecclesiastical purposes within the meaning of 19 & 20 Vict. ch. 104, § 14, the incumbent of ‘such new parish has the sole right of performing the office of marriage in the case of persons resident in his parish, and of receiving the fees for such marriages, to the exclusion of the incumbent of the mother parish. [Fuller v. Alford, LR. 10 Q B.D. 419.] In some forms, however, of divisions of parishes made under the Church Building Acts, the incumbent of the mother parish has the fees, or a portion of them, during his incumbency. [Page 146.] cHaP. 1] JVCOMES OF PAROCHIAL CLERGY. 351 [2.] Other fees are such, for instance, as may be due by custom to the rector or vicar, for allowing the erection of a tablet, or other form of monument, in the church or chancel [Rich v. Bushnell, 4 Hagg. Rep. 164]; and such as are due in all cases to the rector or vicar for allowing the erection of any stone or brick monument over a grave in the churchyard. It has recently been decided by the Chancellor of London [L. R. 1894, P. 284] that a faculty may be granted for the interment of urns con- taining cremated remains under the floor of a church although such church is closed for burials; and that a reasonable fee is payable to the incumbent on each such interment. The Court permitted a tablet to be placed on the wall above the spot where the urn was interred, but declined to grant a faculty for immurement in. the wall of the church. Fees are also due to the incumbent for making searches in or extracts from the Parochial Registers of Baptisms, Marriages, and Burials. These fees are expressly saved by 52 Geo. III. ch. 146, § 16, and 6 & 7 Will. IV. ch. 86, § 49. [3.] Dues and offerings are of two kinds—Faster dues or offerings, and mortuaries. As to Easter dues, one of the rubrics at the end of the Communion Service provides thus: “And yearly at Easter every parishioner shall reckon with the parson, vicar, or curate, or his or their deputy or deputies; and pay to them or him all ecclesi- astical duties, accustomably due, then and at that time to be paid.” The distinction between dues and offerings is not very precise, and the two words are often interchanged. It seems, however, that, strictly speaking, offerings are gifts made at Easter in excess of the amount legally due. 352 INCOMES OF PAROCHIAL CLERGY. [xOOK VI. In the case of Carthew v. Edwards [Ambler, 72] it was decreed by the Court of Exchequer that ‘aster offerings were due of common right. The usual offering is at the rate of twopence per head for every person in the house of sixteen years of age and upwards; but by custom it may be more. [Sir R. Phillimore, £ecl. Law, p. 1547.] They were said by Lord Chief Baron Gilbert to be a compensation for personal tithes. [Lawrence v. Jones, Bunbury, 173; and Egerton v. Still, Bunbury, 198.] It seems that by custom, also, offerings may be due at Christmas, Whitsuntide, and the Feast of the Dedication of the Church. [2 & 3 Edw. VI. ch. 13, §10; Gibson’s Codex, xxx. 10.] [4.] Mortuaries, or corse-presents, are due, by custom only, in certain places for every householder that. dies, whether within or away from his parish. By 21 Hen, VIII. ch. 6, § 2, they are limited in amount thus: No mortuary where the person died not worth 10 marks in moveable goods; from 10 marks to £30, 3s. 4d.; from £30 to £40, 6s. 8d.; exceeding £40, 10s. This last is the highest sum fixed. By §5, no mortuaries shall be taken in Wales, or within the town of Berwick-on-Tweed. . By 2 & 3 Vict. ch. 62, § 9, it is enacted that “it shall be lawful, at any time before the confirmation of any apportionment after a compulsory award in any parish, for the landowners and titheowners, having such interest in the lands and tithes of such parish as is required for the making of a parochial agreement, to enter into a parochial agreement for the commutation of Easter offer- ings, mortuaries, or surplice fees.” (353 ]° Chapter II. PARSONAGE HOUSES. § 1. Their Acquisition 354 | § 4. Liabilities of Out- § 2. Repairs during going and Incoming Incumbency. . . 357 Incumbents . . . 362 SEs USUPANCER i! .) 361 S to Parsonage Houses, the 25th of the Excerpts of Egbert [A.D. 740] reproducing the still older precept of the canon law, has been ilierpan’ already mentioned. It runs thus: “Let one of clersy to entire manse [wnws mansus integer| be given to every church... . for the tithes, oblations of the faithful, houses, churchyards, gardens near the church; and for the manse before mentioned, let the priests ap- pointed to them do no other service than ecclesiastical.” [Gibs. Cod. xxx. 2.] During the prevalence of the monastic system, however, a large proportion of parishes were served by clergy who were also monks, and, living in the monasteries, did not require to use the glebe- houses, which were probably let. Such old glebe-houses as have lasted to modern times were also very small, and unsuited for modern habits, and were neglected by the incumbents. Hence the great deficiency oe parsonage- 354 PARSONAGE HOUSES. [BOOK VI. houses until within the last eighty or a hundred years, and the new necessity which has arisen for legislation respecting them. § 1. The Acquisition of Parsonage Houses. Many facilities have, however, been provided during the last century, for securing suitable resi- uence dences to the parochial clergy; the want of Page onyed them being stated, in the preamble to the Gilbert Act of 1777, as a reason why many of the clergy resided “at a distance from their benetices, by which means the parishioners lose the advantage of their instruction and hospitality, which were great objects in the original distribution of tithes and glebes for the endowment of churches.” By the Act quoted, it is provided that any incumbent fl may (with the consent of the ordinary and Building : loans patron) borrow at interest any sum not ex- mortgaze- ceeding two years’ net income of his benefice, mortgaging the glebe, tithes, rents, and other profits of the living for twenty-five years, or until the debt and interest is paid off. [17 Geo. III. ch. 53, § 1.] This Act has been extended by 1 & 2 Vict. ch. 23, § 1,1 so that the incumbent may borrow three years’ income, mortgaging for thirty-five years, and repaying a thirtieth part of the Pa eh loan every year after the first, with the in- Anne's terest. By. the 12th section of the first Act, Bounty. and the 4th of the Act extending its operation, the Governors of Queen Anne’s Bounty are empowered SS : See also 1 & 2 Vict. ch. 106; 28 & 29 Vict. ch. 69. ‘CHAP. It.] PARSONAGE HOUSES. 355 to lend the money at 4 per cent. interest, or 1002. with- out interest where the benefice is below 50/. a year; and ‘by the 13th section of the former and the 5th of the latter Act, it is also provided that colleges and By colleges, other corporate bodies may lend the money @” without interest to benefices in their patronage. An Act was passed in 1802, by which the Governors of Queen Anne’s Bounty are enabled to apply Py Dae : Queen any money coming into their hands for the anne’s 3 : «es Bounty augmentation of a benefice, “in or towards the gugmenta- 1 ys “14: . tions o Ce building, rebuilding, or purchasing a_ house, plied te and other proper erections within the parish, building convenient and suitable for the residence of the minister thereof.” [43 Geo. III. ch. 107, §3.] By a later Act, corporations and persons under disability, or tenants for life or lives of lands, are empowered to convey lands and houses for making residence houses for the parochial clergy—such ‘ands and houses to be “con- veyed unto and to the use of the parson, vicar, or other incumbent,” without any damage from the Statute of Mort- main. [7 Geo. IV. ch. 66, § 1.] The Ecclesiastical Commissioners are also enabled to apply to the same purpose any capital sum, not Thos exceeding 1500/., to meet a private benefaction by Eccle- A iastical of the same amount. [Regulations, Mar. 1869, Oennist Ts OX3 8.] sioners, A further means of obtaining funds is also provided by 2 & 3 Vict. ch. 49, §§ 17, 18, & 19, which empowers the incumbent (with the consent of the patron, ordinary, and archbishop) to sell “any dwelling-house, shop, warehouse, 356 PARSONAGE HOUSES. [BOOK VI. or other erection or building (other than the house of resi- Sy dence!) belonging” to his benefice, provided it d : ‘ea! Sy be “shall be so old and ruinous as that it would Ecetoake be useless or inexpedient to expend money in usedfor yepairing and maintaining the same,” or if “ for building. : ; other good and sufficient reasons it shall be thought advisable to sell and dispose of the same.” The proceeds of such sale are to be paid over to the Governors of Queen Anne’s Bounty, to form a fund for the augmen- tation of the benefice from which it has been obtained ; and part or the whole of such fund may [by 43 Geo. ITI. ch. 107, § 3] be used for building, rebuilding, or purchasing a parsonage-house. Capital sums in lieu of tithe commuta~ tion rentcharges, not exceeding 200/., may also be sold and appropriated in the same way. [9 & 10 Vict. ch. 73, § 8.] If a parsonage-house is inconveniently situated, it may also be sold, and the proceeds of the sale dealt cata with in precisely the same manner. [1 & 2 situated Vict, ch. 23, §§ 7, 8, & 9.] In this case any parsonages . may be land contiguous to the house may also be sold, at provided the quantity does not exceed twelve Oldand = acrés. [1 & 2 Vict. ch. 29.] Some advantage unsuitable . : ; parsonages may likewise be derived from the 6th clause peice into Of the same Act, which enables the incumbent Satie to convert a parsonage that is not suitable buildings. f : f for his residence into a farmhouse or farm- buildings for the tenant of the glebe. Lastly, when a benefice exceeding 100/. in annual value * The house of residence may be sold or exchanged with the same consent, by virtue of 1 & 2 Vict. ch. 23, CHAP. II.] PARSONAGE HOUSES. 357 becomes vacant, the bishop is empowered to compel the incoming incumbent to build a parsonage, by borrowing the necessary funds on the security of a mortgage of the benefice for thirty-five years. [1 & 2 Vict. ch. 106, §§ 62, 63.] There are several acts enabling persons having only limited interests in their estates to give or sell land on which to build parsonage houses. ‘I'he last and probably most com- plete is 36 & 37 Vict. ch. 5U, aiuended by 45 & 46 Vict. ch. 21. § 2. Repairs during Incumbency. The incumbent is bound to keep the parsonage-house in good repair during his incumbency, since he holds it not only for his own advantage, but in trust for his suc- cessors. The rights and duties of incumbents as regarded such repairs were formerly very difficult to learn, and the operation of the law as regarded them was very uncertain ; but an attempt to provide a complete code of this law has been made by “The Dilapidations Act, 1871.” This Act has simplified the law on the subject, and will, with modifications learned by experience of its working, be of advantage to all persons concerned. [App. IV.] By this Act [34 & 35 Vict. ch. 43], the following pro- visions are made for the repairs of parsonages during the incumbency of the rector or vicar to whose benefice they belong—the same provisions extending also to chancels, and to all other buildings belonging to a benefice :'— : By the 4th section of the Act, its provisions “apply to all such houses of residence, chancels, walls, fences, and other buildings and things, as the incumbent of the benefice is by law or custom bound to maintain in repair,” 358 PARSONAGE HOUSES. [BOOK VI. [1.] A diocesan surveyor is to be appointed by the archdeacons and rural deans. [2.] (a) Any incumbent may make a request, in writing, Noticeto to the bishop of the diocese, for an inspection of be given ©Y his buildings; and the bishop may then direct that repairs the diocesan surveyor to inspect them, and to are neces- sary. make a report thereon. Or, (0) a complaint, in writing, may be made by the arch- deacon, the rural dean, or the patron of the Archdeacon, 5 ? : ruraldean, benefice, asking for an inspection of the or patron. an as A 7 buildings. In this case a copy of the com- plaint must be sent to the incumbent, by the bishop, one month before such inspection shall be ordered. Should the incumbent then, within twenty-one days But ae ee ain after receiving this copy of the complaint, maytake inform the bishop in writing that he intends repairs into if K ( z u E Hts pee forthwith to put his buildings in proper repair, ands, ° . . . . 7 the bishop is to give him a reasonable time for doing so. But while the repairs are in progress, and after their completion, the bishop may direct the diocesan surveyor to inspect and report thereon; and if he shall athisown report that they are insufficient, and that risk. further repairs are necessary, then the Act is to be put in force, in like manner as if the incumbent had not given notice that he intended himself to do the repairs, [3.] The diocesan surveyor is to make his inspection as Surveyors S00 as conveniently may be after the bishop TODGKes has directed it to be made; and within one month after the survey, he is to send his report to the bishop, sending also a copy to the incumbent stating :— CHAP. II.] PARSONAGE HOUSES. 359 1. What works are needed, specifying the same in detail. 2. What he estimates to be the probable cost of such works. 3. At or within what time or times such works respectively ought to be executed. [4.] The incumbent may, within one month after the sending of the said copy, state in writing to ase the bishop his objections to the report on any bent’s grounds of fact or law. The bishop may then, if peck sis he shall think fit, direct a second report to be made by another surveyor as to matters of fact, or take counsel’s opinion as to matters of law, giving his final decision in writing. The expenses of this second survey, or of counsel’s opinion, are to be made at the expense of the person objecting. If no objections have been made within a month of the report being made, it shall be final; if objec- tions have been made within that time, then ahaa the report as modified by the bishop’s decision shall be final. The surveyor’s report, when finally settled, is regarded by the Act as the authvritative order under which the repairs are to be executed; and the incumbent is required to execute the repairs prescribed within the time prescribed, or within such extended time as the bishop may appoint in writing under his hand.g yp stitn. It is, however, open to the incumbent, under tion of : : : other works the 50th section of the Act, to substitute for those other works, by way of alteration, remodelling, °*¢¢"e* or rebuilding, for the repairs. ordered by the surveyor, 360 PARSONAGE HOUSES. [BOOK VI. provided they are done with the consent of the bishop and the patron, and to the satisfaction of the surveyor. [5.] To raise money from the benefice for such repairs as shall be ordered, the incumbent may borrow from the Governors of Queen Anne’s Bounty (with the consent of the bishop and patron), upon the security of the posses- sions of the benefice— 1. The whole or any part of the sum stated in the final report as the cost of the works;' 2. Such sum as the governors shall think fit in respect of costs and expenses ; © the costs and expenses incidental to the preparation and completion of the security being deducted by them from the funds so placed to the credit of the benefice. [6.] If the incumbent shall refuse or neglect to execute the prescribed repairs within the prescribed time, the’ bishop may raise the necessary funds by sequestrating the benefice, the profits being paid to the Governors of Queen Anne’s Bounty under special provisions contained in the 20th and 21st sections of the Act. But if, after the incumbent has paid to the governors the sum specified in the surveyor’s report, he should wish to postpone the repairs for a limited period, such postpone- ment may take place upon the surveyor certifying that he may safely do so, and upon the incumbent paying such further sum to his dilapidation account with the governors as may be proper to meet any probable further dilapida- tions. [7.] When the repairs have been completed to the . * Not exceeding three years’ income of the benefice. [35 & 36 Vict. c, 96, § 1.] CHAP. II] PARSONAGE HOUSES. 361 satisfaction of the surveyor, he is to give a certificate to the incumbent (triplicates of which will be lodged with the registrar of the diocese and the Governors of Queen Anne’s Bounty), declaring that they have been properly completed. This certificate shall be conclusive evidence of the due execution of the prescribed works; will exempt the incumbent from any liability to a further survey or report for five years; and if he should vacate the benefice during those five years, will exempt him and his representatives from any claim for dilapidations, except for wilful waste. But to secure himself against such liability in case of fire during the five years, the incumbent must have insured his house, chancel, and other build- ings, in at least three-fifths of their value, before the certificate is filed, and must continue the insurance. [8.] The incumbent or his representatives will be liable for the cost of all the repairs ordered until the surveyor’s certificate of completion is given, or for any repairs liable to be ordered under a survey then pending; and the in- coming incumbent may recover the money as a debt. [See §§ 24 and 49.] There are special provisions as to surveys and repairs when the benefice is already under sequestration. Where an incumbent is inhibited on a report of negli- gence in discharge of his duties, pursuant to sect. 9 of the Benefices Act, 1898, he will remain liable for repairs, but will be entitled to retain out of the stipend such amount in respect of repairs, and will be entitled to such facilities for executing them as the bishop may decide to be reasonable. Insurance of buildings § 3. Insurance. Very strict provisions respecting fire insurance are also made by the 54th, 55th, 56th, and 57th sections of “The Ecclesiastical Dilapidations Act, 1871.” 362 PARSONAGE HOUSES. [BOOK VI. [1.] The incumbent of every benefice is required to insure, and keep insured, all the buildings for the repair of which he is liable, in some office satisfactory to the Governors of Queen Anne’s Bounty, in at least three- fifths of the value of the buildings. The receipt for each premium is to be exhibited at the first visitation of the bishop or archdeacon next ensuing after the same shall become payable. [2.] In case any building is elieayel by fire, and the in- surance office elect to pay the sum insured instead of reinstat- ing the building, the money is to be paid to the Governors of the Bounty, and treated as a dilapidation account. [3.] Should the diocesan surveyor certify to the bishop that the amount for which the incumbent had insured any of his buildings which have been destroyed by fire is not suffi- cient to reinstate them, the bishop is to set in motion the same process as is provided in the case of dilapidations ; and if the money which is necessary over and above the insurance-money is not otherwise paid by the incumbent, it is to be obtained by the sequestration of his benefice. § 4. Liabilities of Outgoing and Incoming Incumbents. It is the theory of the law that the parsonage-house, j and all other buildings of a benefice for the G : : anmniie repair of which the incumbent of the benefice of outgoing is liable, shall be handed over from one in- incumbents. cumbent to another in a state of substantial repair, or with sufficient money to restore them to such a state; and in the case of a deceased incumbent, this liability extends to his representatives, CHAP. I1.] PARSONAGE HOUSES. 363 “The Ecclesiastical Dilapidations Act, 1871,” has, how- ever, provided that every incumbent who holds a certifi- cate of the diocesan surveyor, the five years’ ut validity of which has not expired, shall be teh se incumbents free from any claim for dilapidations, except Voy iiabie, for wilful waste, or for loss by fire when he has not properly insured. The representatives of a deceased incumbent are in the same position. If such a protection does not exist [1], the outgoing incumbent, or the representatives of a deceased : : ‘ 3 : 4 Nor any incumbent, are still liable to the incoming in- jiapility, cumbent for dilapidations; but by the 53rd °*¢ePt under section of the Act, no sum is now recoverable surveyor's : . report, for them unless the claim for such sum is founded on the report of a diocesan surveyor. [2.] The inspection necessary for this report is to be ordered by the bishop within three months : ; - _ Report to after the avoidance of the benefice ;1 and copies pe ordered of the report founded on it are to be sent to Withinthree the new incumbent, and also to the late in- cumbent or his representatives, [3.] Objections may be lodged by either of these within a month; and the bishop may receive such ¥ 19 : i Na 2 Persons objections at a later period also, if for any interested special reason he shall think fit to do so. Pa we aie x The widow of a deceased incumbent is entitled to occupy the parsonage-house for any time not exceeding two calendar months after his decease. [1 & 2 Vict. ch. 106, § 36.] The fact that the Bishop puts off giving the direction till after the expiration of the three months does not make his order or the report of the surveyor invalid, fCaldow v. Pixell, L..R, 2 C. P. D. 562.] 364 PARSONAGE HOUSES, [BOOK VI. These objections are to be treated in the same way as objections made to the report of the surveyor where a survey is ordered, under the previous provisions, when the benefice is not vacant. [4.] When the objections, if any, have been disposed of, the bishop is to make an order, stating sakes the repairs and their cost; for which the late Rte ied incumbent, his executors or administrators, is or are liable. This order is to be signed in triplicate, and the triplicates are to be sent to the new incumbent, the late incumbent, his executors or adminis- trators, and the diocesan registrar, who is to send a copy to the Governors of Queen Anne’s Bounty. [5.] The sum stated in the order as the cost of the repairs is recoverable as a debt from the late incumbent, bese his executors or administrators, to the new in- recoverable cymbent ; and when recovered by him, it is to as a debt. be paid over to the Governors of Queen Anne’s Bounty, to be placed to the credit of his dilapidation account. [6.] The new incumbent is to pay to the governors, within six months from the date of the order, “aha the whole of the sum stated in it as the cost is cot hepa of the repairs, whether or not he has recovered whether it from his predecessor or his representatives. php Soph The bishop may, for good reasons, extend the time to twelve months; but if it is not then paid, it is to be obtained by sequestration of the benefice. [7.] The new incumbent is to execute the repairs speci- fied in the order within eighteen months from and to, the day on which it was dated, unless, with them within the consent of the patron and bishop, he shall eighteen ; as ; : : months. decide upon rebuilding the premises in question, CHAP. II.] PARSONAGE HOUSES. 365 in which case the dilapidation-money is to be applied by the governors towards the cost of the new building, [8.] The provisions respecting loans from the governors, insurance, and the certificate. of indemnity for five years to be given by the surveyor on the completion of the repairs, are the same as those already stated in the section relating to repairs during incumbency. Until the Dilapidations Act of 1871, an outgoing in- cumbent, or his representatives, became liable pe oyal of for over-building, and might be compelled to superfluous 5 A . i buildings pay dilapidations as damages for so doing. ana But by the 70th section of the present Act, ™*Ur!es it is enacted that no incumbent who has pulled down buildings shall be liable for dilapidations if he has sub- stituted others of equal or greater value: and by the 71st section, it is provided that such unnecessary parts of any parsonage-house may be removed by written order of the bishop, granted on the request of the incumbent, and with the consent of the patron. The proceeds, if any, of such removal, are to be applied to the improvement of the benefice in any such manner as the bishop and patron may agree on. This Act has destroyed the old procedure and much of the other old law with respect to dilapidations. Under the old law a claim for dilapidations was postponed to ordinary debts; so that where an incumbent died insolvent, his successor got nothing. But it has been recently decided that a claim for dilapidations, upon a bishop’s order under the Act, is as good as a debt, and the successor can claim pari passu with creditors. [Ae Monk, Wayman »v, Monk, L. R. 35, Ch. D. 583.] [ 266 ] Chapter III. THE SEQUESTRATION OF BENEFICES. BENEFICED CLERGYMAN is lable to have his ecclesiastical income seized and taken out of his control, if he becomes bankrupt, if a judgment against mee him for a sum of money cannot be otherwise of seques- satisfied, and if he has committed certain tration. ecclesiastical offences. This alienation of his ecclesiastical income is effected by the sequestration of his benefice, so that the profits of it are received and administered by some other person than himself, that person being appointed sequestrator for the purpose by the bishop. This process is founded upon the principle of the common law, that ecclesiastical incomes are to be dealt with by ecclesiastical persons, and are not subject to the ordinary processes of secular law. When judgment for a sum of money is recovered against a clergyman, and it is found that he For debt. : ; has no means of paying the judgment-debt otherwise than from his ecclesiastical income, a writ of Fiert facias de bonis ecclesiasticis is issued to the bishop, and served on the registrar of the diocese. This writ * But a clergyman can still assign his ecclesiastical income at common law, unless such assignment is a charging of his benefice with cure so as to be forbidden by 13 Eliz. ch, 20. [Re Mirams, L.R. 1891, 1 Q.B. 594.] CHAP. 111.] SEQUESTRATION OF BENEFICES. 367 commands the bishop, in the Queen’s name, to raise the judgment-debt out of the living: and on receiving it the bishop will, through his registrar, issue an instru- ment of sequestration, addressed to the churchwardens, or to the bishop’s secretary or registrar, or to the judgment-creditor on his finding security, giving to them or him full. authority to collect, levy, gather, and receive all the emoluments of the sequestered: benefice, and to apply the same to the payment of the judgment-debt. This instrument of sequestration is published by being affixed to the church-door, and operates from the time of publication. The sequestrator then takes the place of the incumbent, so far as the incomings are concerned, and so far, also, as regards all outgoings—such as stipend of curate, repair of dilapidations, &c.—for which the incumbent is, by custom or law, liable. In case of the incumbent’s bankruptcy, application for a sequestration may be made by the trustee in In bank- bankruptcy to the bishop, when it is issued in eas a similar manner—this being the only means by which the trustee can touch the bankrupt’s ecclesias- tical income. When a sequestration issued in either of these cases remains in force for six months, the bishop of pye pishop the diocese is required, by the Sequestration ST ee Act of 1871—from and after the expiration of after six the six months, and as long as the seques- aenncis tration shall continue—to take order for the t*tion. due performance of the services of the church of the benefice ; and he is to appoint for that purpose such curate 368 SEQUESTRATION OF BENEFICES. [BOOK VI. or curates, or additional curate or curates, as the case may require. The stipends of such curates are napepence regulated by the Act [see page 221], and are to paythem be paid by the sequestrator before any sums Rote &o payable by virtue of the judgment or the bank- ruptcy, but not before liabilities in respect of charges on the benefice. [34 & 35 Vict. ch. 45, §§ 1, 3.] If it appears, after the sequestration has continued in force for more than six months, that scandal rani ane a or inconvenience is likely to arise from the inhibited incumbent continuing to perform the services ate of the Church, the bishop may inhibit him from taking any duty in the diocese so long as the sequestration lasts, but may at any time with- EY alike draw the inhibition. In no case can an in- presentor cumbent present any other person to a bene- ve re yo fice of which he is patron in right of his peta own benefice, while his own 1s under seques- tration; nor can he himself accept the in- stitution to any benefice or preferment which would vacate that under sequestration, without the consent of the bishop and the sequestrator.t [34 & 35 Vict. ch. 45, §§ 5, 6, 7.] Benefices may also be sequestered, after notice given, deter for non-compliance with an order of the bishop tion for non- to the incumbent requiring him to reside; and residence. . : : if such sequestration continues for a year, or * But he is not deprived by sequestration alone of other rights to which he was entitled as rector; e.g. appointing a parish clerk in case of a vacancy. [Lawrence v, Edwards, L.R. 1891, 1 Ch, 144.] CHAP. I11.] SEQUESTRATION OF BENEFICES. 369 two sequestrations are issued in one year, the benefice becomes vacant. [1 & 2 Vict. ch. 106, §§ 54, 58.] By the 83rd section of the last-cited Act, a benefice may also be sequestered for nonpayment of the stipend of any curate duly licensed for the parish: and, the same is the case under the Pluralities Act payment of Amendment Act [48’ & 49 Vict. ch. 54]. By the Ecclesiastical Dilapidations Act, 1871, incumbents are liable to the same penalty if they refuse or neglect to comply with the provisions of the Act. [34 & 35 Vict. ch. 43, §§ 23, 43, 57.] Whenever an ecclesiastical court issues a sentence of suspension against a beneficed clergyman it provides, by sequestration, for the due collection of the profits of the living, and for the religious care of the parish, during the time of the suspension. Sequestration may likewise accompany any inhibition for disobedience to a monition under the Public Worship Regulation Act, 1874. [See page 492, | In the case of incumbents presented or collated after January 1st, 1899, the Benefices Act, 1898, provides that if on bankruptcy, or in aid of any writ of execution, a sequestration is issued within twelve months after insti- tution, or continues for a whole year, or if two such sequestrations are incurred in two years, the benefice shall, unless the bishop otherwise direct, become void. esTied APP EN Dies I, THE CANONS OF A.D. 1603, AS REVISED IN A.D. 1865 AND A.D. 1888. CoxstTiTuTIONs and Canons ECCLESIASTICAL, treated upon by the Bishop of London, President of the Convocation for the Province of Canterbury, and the rest of the Bishops and Clergy of the said Province; and agreed upon with the King’s Majesty’s Licence, in their Synod begun at London, Anno Domini 1603,' and in the Year of the Reign of our Sovereign Lord JAamgs, by the Grace of God, King of England, France, and Ireland, the first, and of Scotland the thirty-seventh: and now published, for the due observation of them, by his Majesty’s authority, under the Great Seal of England. 4 Paes by the grace of God, King of England, Scotland, France, and Ireland, Defender of the Faith, &c., to all to whom these presents shall come, greeting: Whereas our bishops, deans of our cathedral churches, archdeacons, chapters, and colleges, and the other clergy of every diocese within the province of Canterbury, being summoned and called by virtue of our writ directed to the Most Reverend Father in God John, late Archbishop of Canterbury, and bearing date the one-and-thirtieth day of January, in the first year of our reign of England, France, and Ireland, and of Scotland the thirty-seventh, to have appeared before him in our cathedral church of St. Paul in London, the twentieth day of March then next ensuing, or elsewhere, as he should have thought it most * In 1865 new Canons were framed in the place of the 36th, 37th, 38th, and 40th, by the Convocations of Canterbury and York under licence from the Crown. These were subsequently promulgited by the Crown in the form in which they are here printed, As to the Canons of 1888, see them after the 62nd and the 102nd, 372 CONSTITUTIONS AND [APP. L convenient, to treat, consent, and conclude upon certain difficult and urgent affairs mentioned in the said writ; did thereupon, at the time appoiited, and within the cathedral church of St. Paul aforesaid, assemble themselves, and appear in Convocation fot that purpose, according to our said writ, before the Right Reverend Father in God Richard, Bishop of London, duly (upon a second writ of ours, dated the ninth day of March aforesaid) authorized, appointed, and constituted, by reason of the said Archbishop of Canterbury his death, President of the said Convocation, to execute those things which, by virtue of our first writ, did appertain to him the said archbishop to have executed, if he had lived: We, for divers urgent and weighty causes and considerations us thereunto especially moving, of our especial grace, certain knowledge, and mere motion, did, by virtue of our prerogative royal and supreme authority in causes ecclesiastical, give and grant by our several letters-patent under our Great Seal of England, the one dated the twelfth day of April last past, and the other the twenty-fifth day of June then next following, full, free, and lawful liberty, licence, power, and authority unto the said Bishop of London, President of the said Convocation, and to the other bishops, deans, archdeacons, chapters, and colleges, and the rest of the clergy before mentioned, of the said province, that they, from time to time, during our first Parliament now prorogued, might confer, treat, debate, consider, consult, and agree of and upon such canons, orders, ordinances, and constitutions, as they should think necessary, fit, and con- venient, for the honour and service of Almighty God, the good and quiet of the Church, and the better government thereof, to be from time to time observed, performed, fulfilled, and kept, as well by the Archbishops of Canterbury, the bishops, and their successors, and the rest of the whole clergy of the said province of Canterbury, in their several callings, offices, functions, ministries, degrees, and administrations; as also by all and every Dean of the Arches, and other judge of the said Archbishop’s Courts, guardians of spirit- ualities, chancellors, deans and chapters, archdeacons, commissaries, officials, registrars, and all and every other ecclesiastical officers, and their inferior ministers, whatsoever, of the same province of Canterbury, in their and every of their distinct courts, and in the order and manner of their and every of their proceedings; and by all! other persons within this realm, as far as lawfully, being members of the Church, it may concern them, as in our said letters- patent amongst other clauses more at large doth appear. Forasmuch APP. 1.] CANONS ECCLESIASTICAL. 373 as the Bishop of London, President of the said Convocation, and others, the said bishops, deans, archdeacons, chapters, and, colleges, with the rest of the clergy, having met together, at the time and place before mentioned, and then and there, by virtue of our said authority granted unto them, treated of, concluded, and agreed upon certain canons, orders, ordinances, and constitutions, to the end and purpose by us limited and prescribed unto them; and have thereupon offered and presented the same unto us, most humbly desiring us to give our royal assent unto their said canons, orders, ordinances, and constitutions, according to the form of a certain Statute or Act of Parliament made in that behalf in the twenty-fifth year of the reign of King Henry the Eighth, and by our said prerogative royal and supreme authority in causes ecclesiasti- cal, to ratify by our letters-patent under our Great Seal of England, and to confirm the same, the title and tenor of them being word for word as ensueth : OF THE CHURCH OF ENGLAND. 1. The King’s Supremacy over the Church of England in Causes Ecclesiastical to be maintained, As our duty to the King’s most excellent Majesty requireth, we first decree and ordain, that the Archbishop of Canterbury (from time to time), all bishops of this province, all deans, archdeacons, parsons, vicars, and all other ecclesiastical persons, shall faithfully keep and observe, and (as much as in them lieth) shall cause to be observed and kept of others, all and singular laws and statutes, made for restoring to the Crown of this kingdom the ancient jurisdiction over the State Hceclesiastical, and abolishing of all foreign power repugnant to the same. Furthermore, all ecclesiasti- cal persons having cure of souls, and all other preachers, and readers of divinity lectures, shall, to the uttermost of their wit, knowledge, and learning, purely and sincerely, without any colour or dissimulation, teach, manifest, open, and declare, four times, every year at least, in their sermons and other collations and lectures, that all usurped and foreign power (forasmuch as the same hath no establishment nor ground by the law of God) is for most just causes taken away and abolished: and that therefore no manner of obedience, or subjection, within his Majesty’s realms and dominions, is due unto any such foreign power, but that the King’s 374 CONSTITUTIONS AND [ APP. I. power, within his realms of England, Scotland, and Ireland, and all other his dominions and countries, is the highest power under God; to whom all men, as well inhabitants as born within the same, do by God’s laws owe most loyalty and obedience, afore and above all other powers and potentates in the earth. 2. Impugners of the King’s Supremacy censured. Whosoever shall hereafter affirm, that the King’s Majesty hath not the same authority in causes ecclesiastical, that the godly kings had amongst the Jews and Christian emperors of the Primi- tive Church; or impeach any part of his regal supremacy in the said causes restored to the crown, and by the laws of this realm therein established; let him be excommunicated ipso facte, and not restored, but only by the archbishop, after his repentance, and public revocation of those his wicked errors. 3. The Church of England a true and apostolical Church. Whosoever shall hereafter affirm, that the Chureh of England, by law established under the King’s Majesty, is not a true and apostolical Church, teaching and maintaining the doctrine of the Apostles; let him be excommunicated ipso fucto, and not restored, but only by the archbishop, after his repentance, and public revoca- tion of this his wicked error. 4, Impugners of the Public Worship of God established in the Church of England censured. Whosoever shall hereafter affirm, that the form of God’s worship in the Church of England, established by law, and contained in the Book of Common Prayer and Administraticn of Sacraments, is a corrupt, superstitious, or unlawful worship of God, or containeth anything in it that is repugnant to the Scriptures; let him be excommunicated ipso facto,and not restored, but by the bishop of the place, or archbishop, after his repentance, and public revocation of such his wicked errors. 5. Impugners of the Articles of Religion established in the Church of England censured. Whosoever shall hereafter affirm, that any of the Nine-and- thirty Articles agreed upon by the archbishops and bishops of both APP. I.] CANONS ECCLESIASTICAL. 375 provinces, and the whole clergy, in the convocation holden at London in the year of Our Lord God one thousand five hundred sixty-two, for avoiding diversities of opinions, and for the estab- lishing of consent touching true religion, are in any part super- stitious or erroneous, or such as he may not with a good conscience subscribe unto; let him be excommunicated ipso facto, and not restored, but only by the archbishop, after his repentance, and public revocation of such his wicked errors. 6. Impugners of the Rites and Ceremonies established in the Church of Englund censured. Whosoever shall hereafter affirm, that the rites and ceremonies of the Church of England by law established are wicked, anti- christian, or superstitious, or such as, being commanded by lawful authority, men, who are zealously and godly affected, may not with any good conscience approve them, use them, or, as occasion re- quireth, subscribe unto them; let him be excommunicated ipso facto,and not restored until he repent, and publicly revoke such his wicked errors. 7. Impugners of the Government of the Church of England by Archbishops, Bishops, &c. censured. Whosoever shall hereafter affirm, that the government of the Church of England under his Majesty, by archbishops, bishops, deans, archdeacons, and the rest that bear office in the same, is anti- christian, and repugnant to the Word of God; let him be excom- municated ipso facto, and so continue until he repent, and publicly revoke such his wicked errors. 8. Impugners of the Form of Consecrating and Ordering Arch- bishops, Bishops, &c. in the Church of England censured. Whosoever shall hereafter affirm or teach, that the Form and Manner of Making and Consecrating Bishops, Priests,and Deacons, containeth anything in it that is repugnant to the Word of God, or that they who are made bishops, priests, or deacons, in that form, are not lawfully made, nor ought to be accounted, either by themselves or others, to be truly either bishops, priests, or deacons, until they have some other calling to those divine offices ; let him be excommunicated ipso facto, not to be restored until he repent, and publicly revoke such his wicked errors. 376 CONSTITUTIONS AND [APP. I. 9. Authors of Schism in the Church of England censured. Whosoever shall hereafter separate themselves from the Com- munion of Saints, as it is approved by the Apostles’ rules, in the Church of England, and combine themselves together in a new brotherhood, accounting the Christians who are conformable to the doctrine, government, rites, and ceremonies of the Church of England to be profane, and unmeet for them to join with in Chris- tian profession; let them be excommunicated ipso facto, and not restored but by the archbishop, after their repentance, and public revocation of such their wicked errors. 10. Maintainers of Schismatics in the Church of England censured. Whosoever shall hereafter affirm, that such ministers as refuse to subscribe to the form and manner of God’s worship in the Church of England, prescribed in the Communion Book, and their adherents, may truly take unto them the name of another Church not established by law, and dare presume to publish it, that this their pretended Church hath of long time groaned under the burden of certain grievances imposed upon it, and upon the members thereof before mentioned, by the Church of England, and the orders and constitutions therein by law established; let them be excom- municated, and not restored until they repent, and publicly revoke such their wicked errors, 1l. Maintainers of Conventicles censured. Whosoever shall hereafter affirm or maintain, that there are within this realm other meetings, assemblies, or congregations of the king’s born subjects, than such as by the laws of this land are held and allowed, which may rightly challenge to themselves the name of true and lawful churches ; let him be excommunicated, and not restored, but by the archbishop, after his repentance, and public revocation of such his wicked errors. 12, Maintainers of Vonstitutions made in Conventicles censured. Whosoever shall hereafter affirm, that it is lawful for any sort of ministers and lay persons, or of either of them, to join together, and make rules, orders, or constitutions, in causes ecclesiastical, without the king’s authority, and shall submit themselves to be APP. I.] CANONS ECCLESIASTICAL. 377 ruled and governed by them; let them be excommunicated ipso facto, and not be restored until they repent, and publicly revoke those their wicked and Anabaptistical errors, OF DIVINE SERVICE, AND ADMINISTRATION OF THE SACRAMENTS. 13. Due Celebration of Sundays and Holydays. All manner of persons within the Church of England shall from henceforth celebrate and keep the Lord’s Day, commonly called Sunday, and other holydays, according to God’s holy will and pleasure, and the orders of the Church of England prescribed in that behalf: that is, in hearmg the Word of God read and taught; in private and public prayers; in acknowledging their offences to God, and amendment of the same; in reconciling themselves charitably to their neighbours, where displeasure hath been; in oftentimes receiving the Communion of the Body and Blood of Christ; in visiting of the poor and sick; using all godly and sober conversation. 14, The prescript Form of Divine Service to be used on Sundays and Holydays. The Common Prayer shall be said or sung distinctly and reverently upon such days as are appointed to be kept holy by the Book of Common Prayer, and their eves, and at convenient and usual times of those days, and in such place of every church as the bishop of the diocese, or ecclesiastical ordinary of the place, shall think meet for the largeness or straitness of the same, so as the people may be most edified. All ministers likewise shall observe the orders, rites, and ceremonies prescribed in the Book of Common Prayer, as well in reading the Holy Scriptures, and saying of prayers, as in administration of the sacraments, without either diminishing in regard of preaching, or in any other respect, or adding anything in the matter or form thereof. 15. The Litany to be read on Wednesdays and Fridays. The Litany shall be said or sung when, and as it is set down in the Book of Common Prayer, by the parsons, vicars, ministers, or 378 CONSTITUTIONS AND [APP. 1. curates, in all cathedral, collegiate, parish churches and chapels, in some convenient place, according to the discretion of the bishop of the diocese, or ecclesiastical ordinary of the place. And that we may speak more particularly, upon Wednesdays and Fridays weekly, though they be not holydays, the minister, at the ac- customed hours of service, shall resort to the church or chapel, and, warning being given to the people by tolling of a bell, shall sey the Litany prescribed in the Book of Common Prayer: where- unto we wish every householder dwelling within half a mile of the church to come, or send one at least of his household, fit to join with the minister in prayers. 16. Colleges to use the prescript Form af Divine Service. In the whole Divine Service, and administration of the Holy Com- munion, in all colleges and halls in both universities, the order, form, and ceremonies shall be duly observed, as they are set down and prescribed in the Book of Common Prayer, without any omission or alteration. 17. Students in Colleges to wear Surplices in time of Divine Service. All masters and fellows of colleges or halls, and all the scholars and students in either of the universities, shall, in their churches and chapels, upon all Sundays, holydays, and their eves, at the time of Divine Service, wear surplices, according to the order of the Church of England: and such as are graduates shall agreeably wear with their surplices such hoods as do severally appertain unto their degrees. 18. A Reverence and Attention to be used within the Church in time of Divine Service. In the time of Divine Service, and of every part thereof, all due reverence is tobe used; for it is according to the Apostle’s rule, Let all things be done decently, und according to order ; answerably to which decency and order, we judge these our directions follow- ing: No man shall cover his head in the church or chapel in the time of Divine Service, except he have some infirmity; in which case let him wear a night-cap or coif. All manner of persons then present shall reverently kneel upon their knees, when the General APP. I.] CANONS ECCLESIASTICAL. 379 Confession, Litany, and other prayers are read; and shall stand up at the saying of the Belief, according to the rules in that behalf prescribed in the Book of Common Prayer: and likewise when in time of Divine Service the Lord Jesus shall be mentioned, duc and lowly reverence shall be done by all persons present, as it hath been accustomed; testifying by these outward ceremonies and gestures, their inward humility, Christian resolution, and due acknowledgment that the Lord Jesus Christ, the true eternal Son of God, is the only Saviour of the world, in whom alone all the mercies, graces, and promises of God to mankind, for this life and the life to come, are fully and wholly comprised. None, either man, woman, or child, of what calling soever, shall be otherwise at such times busied in the church, than in quiet attendance to hear, mark, and understand that which is read, preached, or ministered ; saying in their due places, audibly with the minister, the Con- fession, the Lord’s Prayer, and the Creed; and making such other answers to the public prayers, as are appointed in the Book of Common Prayer: neither shall they disturb the service or sermon, by walking cr talking, or any other way; nor depart out of the church during the time of service or sermon, without some urgent or reasonable cause. 19. Loiterers not to be suffered near the Church in time of Divine Service. The churchwardens or questmen, and their assistants, shall not suffer any idle persons to abide, either in the churchyard, or church-porch, during the time of Divine Service, or preaching ; but shall cause them either to come in, or to depart. 20. Bread and Wine to be provided against every Communion. The churchwardens of every parish, against the time of every Communion, shall at the charge of the parish, with the advice and direction of the minister, provide a sufficient quantity of fine white bread, and of good and wholesome wine, for the number of com- municants that shall from time to time receive there: which wine we require to be brought to the communion-table in a clean and sweet standing pot or stoop of pewter, if not of purer metal. 389 CONSTITUTIONS AND [ APP. I. 21. The Commuion to be Thrice a Year received. In every parish church and chapel where sacraments are to be administered within this realm, the Holy Communion shall be ministered by the parson, vicar, or minister, so often, and at such times, as every parishioner may communicate at the least thrice in the year (whereof the feast of Easter to be one), according as they are appointed by the Book of Common Prayer: provided, that every minister, as oft as he administereth the Communion, shall first receive that sacrament himself. Furthermore, no bread or wine newly brought shall be used; but first the words of institution shall be rehearsed, when the said bread and wine be present upon the communion-table. Likewise the minister shall deliver both the bread and the wine to every communicant severally. 22. Warning to be given beforehand for the Communion, Whereas every lay person is bound to receive the Holy Communion thrice every year, and many notwithstanding do not receive that sacrament once in a year; we do require every minister to give warning to his parishioners publicly in the church at morning prayer, the Sunday before every time of his administering that holy sacrament, for their better preparation of themselves ; which said warning we enjoin the said parishioners to accept and obey, under the penalty and danger of the law. 23. Students in Colleges to receive the Communion Four Times , a Year. Tn all colleges and halls within both the universities, the masters and fellows, such especially as have any pupils, shall be careful that all their said pupils, and the rest that remain amongst them, be well brought up, and throughly instructed in points of religion, and that they do diligently frequent public service and sermons, and receive the Holy Communion; which we ordain to be adminis- tered in all such colleges and halls the first or second Sunday of every month, requiring all the said masters, fellows, and scholars, and all the rest of the students, officers, and all other the servants there, so to be ordered, that every one of them shall communicate four times in the year at the least, kneeling reverently and decently upon their knees, according to the order of the Communion Book prescribed in that behalf. APP, I.] CANONS ECCLESIASTICAL. 381 24. Copes to be worn in Cathedral Churches by those that administer the Communion, In all cathedral and collegiate churches, the Holy Communion shall be administered upon principal feast-days, sometimes by the bishop (if he be present), and sometimes by the dean, and ait sometimes by a canon or prebendary, the principal minister using a decent cope, and being assisted with the gospeller and epistler agreeably, according to the advertisements published anno 7 Eliz. The said communion to be administered at such times, and with such limitation, as is specified in the Book of Common Prayer. Provided, that no such limitation, by any construction, shall be allowed of, but that all deans, wardens, masters, or heads of cathedral and collegiate churches, prebendaries, canons, vicars, petty canons, singing men, and all others of the foundation, shall receive the communion four times yearly at the least. 25. Surplices and Hoods to be worn in Cathedral Churches when there is no Communion, Tn the time of Divine Service and prayers, in all cathedral and collegiate churches, when there is no Communion, it shall be suffi- cient to wear surplices; saving that all deans, masters, and heads of collegiate churches, canons, and prebendaries, being graduates, shall daily, at the times both of prayer and preaching, wear with their surplices such hoods as are agreeable to their degrees, 26. Notorious Offenders not to be admitted to the Communion. No minister shall in anywise admit to the receiving of the Holy Communion any of his cure or flock which be openly known to live in sin notorious, without repentance; nor any who have mali- ciously and openly contended with their neighbours, until they shall be reconciled; nor any churchwardens or sidemen, who, having taken their oaths to present to their ordinaries all such public offences as they are particularly charged to inquire of ir their several parishes, shall (notwithstanding their said oaths, and that their faithful discharging of them is the chief means whereby public sins and offences may be reformed and punished) wittingly and willingly, desperately and irreligiously, incur the horrible crime of perjury, either in neglecting or in refusing to present such of the said enormities and public offerces, as they know themselves to be 382 CONSTITUTIONS AND TAPP. f. committed in their said parishes, or are notoriously offensive to the congregation there; although they be urged by some of their neigh- bours, or by their minister, or by their ordinary himself, to discharge their consciences by presenting of them, and not to incur so despe- rately the said horrible sin of perjury. 27. Schismatics not to be admitted to the Communion. No minister, when he celebrateth the Communion, shall wittingly administer the same to any but to such as kneel, under pain of suspension, nor under the like pain to any that refuse to be present at public prayers, according to the orders of the Church of England ; nor to any that are common and notorious depravers of the Book of Common Prayer and administration of the sacraments, and of the orders, rites, and ceremonies therein prescribed, or of anything that is contained in any of the articles agreed upon in the Convocation one thousand five hundred sixty and two, or of anything contained in the book of ordering the priests and bishops; or to any that have spoken against and depraved his Majesty’s sovereign authority in causes ecclesiastical; except every such person shall first acknow- ledge to the minister, before the churchwardens, his repentance for the same, and promise by word (if he cannot write) that he will do so no more; and except (if he can write) he shall first do the same under his handwriting, to be delivered to the minister, and by him sent to the bishop of the diocese, or ordinary of the place. Provided, that every minister so repelling any, as is specified either in this or in the next precedent constitution, shall, upon complaint, or being required by the ordinary, signify the cause thereof unto him, and therein obey his order and direction. 28. Strangers not to be admitted to the Communion. The churchwardens or questmen, and their assistants, shall mark, as well as the minister, whether all and every of the parishioners come so often every year to the Holy Communion, as the laws and our constitutions do require; and whether any strangers come often and commonly from other parishes to their church; and shall shew their minister of them, lest perhaps they be admitted to the Lord’s table amongst others, which they shall forbid; and remit such home to their own parish churches and ministers, there to receive the Communion with the rest of their own neighbours, APP. I.] CANONS ECCLESTASTICAL. 383 29. Fathers not to be Godfathers in Baptism, and Children not Communicants. No parent shall be urged to be present, nor be admitted to answer as godfather for his own child; nor any godfather or godmother shall be suffered to make any other answer or speech, than by the Book of Common Prayer is prescribed in that behalf; neither shall any person be admitted godfather or godmother to any child at christening or confirmation, before the said person so undertaking hath received the Holy Communion. 30. The lawful use of the Cross in Baptism explained. We are sorry that his Majesty’s most princely care and pains, taken in the Conference at Hampton Court, amongst many other points, touching this one of the cross in baptism, hath taken no better effect with many, but that still the use of it in baptism is so greatly stuck at and impugned. For the further declaration, there- fore, of the true use of this ceremony, and for the removing of all such scruple, as might anyways trouble the consciences of them who are indeed rightly religious, following the royal steps of our most worthy king, because he therein followeth the rules of the Scriptures, and the practice of the Primitive Church, we do com- mend to all the true members of the Church of England these our directions and observations ensuing. _ First, it is to be observed, that although the Jews and Ethnicks derided both the apostles and the rest of the Christians, for preaching and believing in Him who was crucified upon the cross; yet all, both apostles and Christians, were so far from being discouraged from their profession by the ignominy of the cross, as they rather rejoiced and triumphed in it. Yea, the Holy Ghost, by the mouths of the apostles, did honour the name of the cross (being hateful among the Jews) so far, that under it he comprehended not only Christ crucified, but the force, effects, and merits of His death and passion, with all the comforts, fruits, and promises which we receive or expect thereby. Secondly, the honour and dignity of the name of the cross begat a reverend estimation even in the Apostles’ times (for aught that is known to the contrary) of the Sign of the Cross, which the Chris- tians shortly after used in all ‘their actions; thereby making an outward show and profession, even to the astonishment of the Jews, that they were not ashamed to acknowledge Him for their Lord and 384 CONSTITUTIONS AND [APP. 1. Saviour, who died for them upon the cross. And this sign they did not only use themselves with a kind of glory, when they met with any Jews, but signed therewith their children when they were christened, to dedicate them by that badge to His service, whose benefits bestowed upon them in baptism the name of the cross did represent. And this use of the sign of the cross in baptism was held in the Primitive Church, as well by the Greeks as the Latins, with one consent and great applause. At what time, if any had opposed themselves against it, they would certainly have been censured as enemies of the name of the cross, and consequently of Christ’s merits, the sign whereof they could no better endure. This continual and general use of the sign of the cross is evident by many testimonies of the ancient Fathers. Thirdly, it must be confessed, that in process of time the sign of the cross was.greatly abused in the Church of Rome, especially after that corruption of Popery had once possessed it. But the abuse of a thing doth not take away the lawful use of it. Nay, so far was it from the purpose of the Church of England to forsake and reject the Churches of Italy, France, Spain, Germany, or any such like Churches, in all things which they held and practised, that, as the apology of the Church of England confesseth, it doth with reverence retain those ceremonies, which do neither endamage the Church of God, nor offend the minds of sober men; and only departed from them in those particular points, wherein they were fallen both from themselves in their ancient integrity, and from the apostolical churches, which were their first founders. In which respect, amongst some other very ancient ceremonies, the sign of the cross in baptism hath been retained in this church, both by the judgment and practice of those reverend fathers and great divines in the days of King Edward the Sixth, of whom some con- stantly suffered for the profession of the truth; and others being exiled in the time of Queen Mary, did after their return, in the beginning of the reign of our late dread sovereign, continually defend and use the same. This resolution and practice of our church hath been allowed and approved by the censure upon the Communion Book in King Edward the Sixth his days, and by the harmony of confessions of later years: because, indeed, the use of this sign in baptism was ever accompanied here with such sufficient cautions and exceptions against all Popish superstition and error, as in the like cases are either fit or convenient. First, the Church of England, since the abolishing of Popery, APP. I.] GANONS ECCLESIASTICAL. 385 hath ever held and taught, and so doth hold and teach still, that the sign of the cross used in baptism is no part of the substance of that sacrament: for when the minister, dipping the infant in water, or laying water upon the face of it (as the manner also is), hath pronounced these words, “ Z baptize thee in the name of the Father, and of the. Son, and of the Holy Ghost,’ the infant is fully and perfectly baptized: so as the sign of the cross being afterwards used, doth neither add anything to the virtue and perfection of baptism, nor being omitted doth detract anything from the effect and substance of it. Secondly, it is apparent in the Communion Book, that the infant baptized is, by virtue of baptism, before it be signed with the sign of the cross, received into the congregation of Christ’s flock, as a perfect member thereof, and not by any power ascribed unto the sign of the cross. So that for the very remembrance of the cross, which is very precious to all them that rightly believe in Jesus Christ, and in the other respects mentioned, the Church of England hath retained still the sign of it in baptism: following therein the primitive and apostolical churches, and accounting it a lawful outward ceremony and honourable badge, whereby the infant is dedicated to the service of Him that died upon the cross, as by the words used in the Book of Common Prayer it may appear. Lastly, the use of the sign of the cross in baptism, being thus purged from all Popish superstition and error, and reduced in the Church of England to the primary institution of it, upon those true rules of doctrine concerning things indifferent which are consonant to the Word of God and the judgment of all the ancient fathers, we hold it the part of every private man, both minister and other, reverently to retain the true use of it prescribed by public authority ° considering that things of themselves indifferent do in some sort alter their natures, when they are either commanded or forbidden by a lawful magistrate; and may not be omitted at every man’s pleasure, contrary to the law, when they be commanded, nor used when they are prohibited. bo o 386 CONSTITUTIONS AND [APP. I, MINISTERS, THEIR ORDINATION, FUNCTION, AND CHARGE. 81. Four solemn Times appointed for the making of Ministers. Forasmuch as the ancient Fathers of the Church, led by example of the apostles, appointed prayers and fasts to be used at the solemn ordering of ministers; and to that purpose allotted certain times, in which only sacred orders might be given or conferred; we, following their holy and religious example, do constitute and decree, that no deacons or ministers be made and, ordained, but only upon the Sundays immediately following Jejunia quatuor tem- porum, commonly called Ember Weeks, appointed in ancient time for prayer and fasting (purposely for this cause at their first institu- tion), and so continued at this day in the Church of England: and that this be done in the cathedral or parish church where the bishop resideth, and in the time of Divine Service, in the presence not only of the archdeacon, but of the dean and two prebendaries at the least, or (if they shall happen by any lawful cause to be let or hindered) in the presence of four other grave persons, being masters of arts at the least, and allowed for public preachers. 32. None to be made Deacon and Minister both in one day. The office of deacon being a step or degree to the ministry, according to the judgment of the ancient fathers and the practice of the Primitive Church, we do ordain and appoint, that hereafter no bishop shall make any person, of what qualities or gifts soever, a deacon and a minister both together upon one day; but that the order in that behalf prescribed in the book of making and con- secrating bishops, priests, and deacons, be strictly observed. Not that always every deacon should be kept from the ministry for a whole year, when the bishop shall find good cause to the contrary ; but that there being now four times appointed in every year for the ordination of deacons and ministers, there may ever be some tine of trial of their behaviour in the office of deacon, before they be admitted to the order of priesthood. APP. I,] CANONS ECCLESTASTICAL. 387 33. The Titles of such as are to be made Ministers. It hath been long since provided, by many decrees of the ancient fathers, that none should be admitted either deacon or priest, who had not first some certain place where he might use his function. According to which examples we do ordain, that henceforth no person shall be admitted into sacred orders, except he shall at that time exhibit to the bishop, of whom he desireth imposition of hands, a presentation of himself to some ecclesiastical preferment then void in that diocese; or shall bring to the said bishop a true and undoubted certificate, that either he is provided of some church within the said diocese, where he may attend the cure of souls, or of some minister’s place vacant, either in the cathedral church of that diocese, or in some other collegiate church therein also situate, where he may execute his ministry; or that he is a fellow, or in right as a fellow, or to be a conduct or chaplain, in some college in Cambridge or Oxford; or except he be a Master of Arts of five years’ standing, that liveth of his own charge in either of the universities; or except by the bishop himself, that doth ordain him minister, he be shortly after to be admitted either to some benefice or curateship then void. And if any bishop shall admit any person into the ministry, that hath none of these titles as is aforesaid, then he shall keep and maintain him, with all things necessary, till he do prefer him to some ecclesiastical living. And if the said bishop shall refuse so to do, he shall be suspended by the archbishop, being assisted with another bishop, from giving of orders by the space of a year, 84. The Quality of such as are to be made Ministers, No bishop shall henceforth admit any person into sacred orders which is not of his own diocese, except he be either of one of the universities of this realm, or except he shall bring letters dimissory (so termed) from the bishop of whose diocese he is; and desiring to be a deacon, is three-and-twenty years old; and to be a priest, four-and-twenty years complete; and hath taken some degree of school in either of the said universities; or at the least, except he be able to yield an account of his faith in Latin, according to the Articles of Religion approved in the synod of the bishops and clergy 388 CONSTITUTIONS AND [APP. 1. of this realm, one thousand five hundred sixty and two, and to confirm the same by sufficient testimonies out of the Holy Scrip- tures; and except, moreover, he shall then exhibit letters testimonial of his good life and conversation, under the seal of some college of Cambridge or Oxford, where before he remained, or of three or four grave ministers, together with the subscription and testimony of other credible persons, who have known his life and behaviour by the space of three years next before. 35. The Examination of such as are to be made Ministers. The bishop, before he admit any person to holy orders, shall dili- gently examine him in the presence of those ministers that shall assist him at the imposition of hands: and if the said bishop have any lawful impediment, he shall cause the said ministers carefully to examine every such person so to be ordered. Provided, that they who shall assist the bishop in examining and laying on of hands, shall be of his cathedral church, if they may conveniently be had, or other sufficient preachers of the same diocese, to the number of three at the least: and if any bishop or suffragan shall admit any to sacred orders who is not so qualified and examined, as before we have ordained, the archbishop of his province, having notice thereof, and being assisted therein by one bishop, shall ‘suspend the said bishop or suffragan so offending from making either deacons or priests for the space of two years. 36. Declaration and Subscription required of such as are to be made Ministers. No person shall hereafter be received into the ministry, nor either by institution or collation admitted to any ecclesiastical living, nor suffered to preach, to catechise, or to be a lecturer or reader of divinity in either university, or in any cathedral or collegiate church, city, or market-town, parish church, chapel, or in any other place within this realm, except he be licensed either by the archbishop, or by the bishop of the diocese where he is to be placed, under their hands and seals, or by one of the two universities under their seal likewise; and except he shall first APP. I.] CANONS ECCLESIASTICAL. 389 make and subscribe the following declaration, which, for the avoiding all ambiguities, he shall subscribe in this order and form of words, setting down both his Christian and surname, viz. :— « 7, A. B., do solemnly make the following declaration :— “T assent to the Thirty-nine Articles of Religion, and to the Book of Common Prayer, and of Ordering of Bishops, Priests, and Deacons: J believe the doctrine of the United Church of England and Ireland, us therein set forth, to be agreeable to the Word of God; and in public prayer and administration of the sacraments, I will use the form in the said book prescribed, and none other, except so fur as shall be ordered by lawful authority.” And if any bishop shall ordain, admit, or license any, as is afore- said, except he first have declared and subscribed in manner and form as here we have appointed, he shall be suspended from giving of orders and licences to preach, for the space of twelve months. But if either of the universities shall offend therein, we leave them to the danger of the law, and his Majesty’s censure. 37. Declaration and Subscription before the Diocesan, None licensed, as is aforesaid, to preach, read, lecture, or catechise, coming to reside in any diocese, shall be permitted there to preach, read, lecture, catechise, or minister the sacraments, or to execute any other ecclesiastical function, by what authority soever he be thereunto admitted, unless he first make and subscribe the declara- tion aforesaid, in the presence of the bishop of the diocese wherein he is to preach, read, lecture, catechise, or administer the sacraments, as aforesaid. 38. Levolters after Declaration and Subscription censured. Tf any minister, after he hath made and subscribed-the declara- tion aforesaid, shall omit to use the form of prayer, or any of the orders or ceremonies prescribed in the Communion Book, let him be suspended; and if after a month he do not reform and submit himself, let him be excommunicated; and then, if he shall not submit himself within the space of another month, let him be deposed from the ministry. 390 CONSTITUTIONS AND — [APP. I. 89. Cautions for Institution of Ministers into Benefices. No bishop shall institute any to a benefice, who hath been ordained by any other bishop, except he first shew unto him his letters of orders, and bring him a sufficient testimony of his former good life and behaviour, if the bishop shall require it; and lastly, shall appear, upon due examination, to be worthy of his ministry. 40. Declaration against Simony at Institution into Benefices. To avoid the detestable sin of simony, because buying and selling of spiritual and ecclesiastical functions, offices, promotions, digni- ties, and livings is execrable before God; therefore the archbishop, and all and every bishop or bishops, or any other person or persons having authority to admit, institute, collate, install, or to confirm the election of any archbishop, bishop, or other person or persons, to any spiritual or ecclesiastical function, dignity, promotion, title, — oftice, jurisdiction, place, or benefice, with cure or without cure, or to any ecclesiastical living whatsoever, shall, before every such admission, institution, collation, installation, or confirmation of election, respectively cause to be made by every person hereafter to be admitted, instituted, collated, installed, or confirmed in or to any archbishopric, bishopric, or other spiritual or ecclesiastical function, dignity, promotion, title, office, jurisdiction, place, or benefice, with cure or without cure, or in or to any ecclesiastical living what- soever, this declaration in manner and form following, the same to be made by every one whom it concerneth in his own person, and not by a proctor: “J, A. B., solemnly declare, that I have not made, by myself, or by any other person on my behalf, any payment, contract, or promise of any kind whatsoever, which to the best of my knowledge or belief is simoniacal, touching or concerning the obtaining the prefer- ment of 3 nor will I at any time hereafter perform or satisfy, in whole or in part, any such kind of payment, contract, or promise, made by any other without my knowledge or consent,” APP. I.] CANONS ECCLESIASTICAL. 391 41. Licences for Plurality of Benefices limited, and Residence enjoined. No licence or dispensation for the keeping of more benefices with eure than one, shall be granted to any but such only as shall be thought very well worthy for his learning, and very well able and sufficient to discharge his duty; that is, who shall have taken the degree of a master of arts at the least in one of the universities of this realm, and be a public and sufficient preacher licensed. Provided always, that he be, bya good and sufficient caution, bound to make his personal residence in each his said benefices for some reasonable time in every year, and that the said benefices be not more than thirty miles distant asunder; and lastly, that he have under him in the benefice, where he doth not reside, a preacher lawfully allowed, that is able sufficiently to teach and instruct the people. 42, Residence of Deans in their Churches. Every dean, master, or warden, or chief governor of any cathedral or collegiate church, shall be resident in his said cathedral or collegiate church fourscore and ten days conjunctim or divisim in every year at the least, and then shall continue there in preaching the Word of God,-and keeping good hospitality, except he shall be otherwise let with weighty and urgent causes, to be approved by the bishop of the diocese, or in any other lawful sort dispensed with. And when he is present, he, with the rest of the canons or prebendaries resident, shall take special care that the statutes and laudable customs of their church (not being contrary to the Word of God, or prerogative royal), the statutes of this realm being in force concerning ecclesiastical order, and all other constitutions now set forth and confirmed by his Majesty’s authority, and such as shall be lawfully enjoined by the bishop of the diocese in his visitation, according to the statutes and customs of the same church, or the ecclesiastical laws of this realm, be diligently observed ; and that the petty canons, vicars choral, and other ministers of their church, be urged to the study of the Holy Scriptures; and every one of them to have the New Testament, not only in English, but also in Latin. 39% CONSTITUTIONS AND [APP. I. 43. Deans and Prebendaries to preach during their Residence. The dean, master, warden, or chief governor, prebendaries, and canons in every cathedral and collegiate church, shall not only preach there in their own persons so often as they are bound by law, statute, ordinance, or custom, but shall likewise preach ir other churches of the same diocese where they are resident, an= especially in those places whence they or their church receive any yearly rents or profits. And in case they themselves be sick, or lawfully absent, they shall substitute such licensed preachers to supply their turns, as by the bishop of the diocese shall be thought meet to preach in cathedral churches. And if any otherwise neglect or omit to supply his course, as is aforesaid, the offender shall be punished by the bishop, or by him or them to whom the jurisdiction of that church appertaineth, according to the quality of the offence. 44. Prebendaries to be resident upon their Benefices, No prebendaries nor canons in cathedral or collegiate churches having one or more benefices with cure (and not being residen- tiaries in the same cathedral or collegiate churches), shall, under colour of their said prebends, absent themselves from their benefices with cure above the space of one month in the year, unless it: be for some urgent cause, and certain time to be allowed by the bishop of the diocese. And such of the said canons and prebendaries, as by the ordinances of the cathedral or collegiate churches do stand bound to be resident in the same, shall so among themselves sort and proportion the times of the year, concerning residency to be kept in the said churches, as that some of them always shall be personally resident there; and that all those who be or shall be residentiaries in any cathedral or collegiate church, shall, after the days of their residency appointed by their local statutes or customs expired, presently repair to their benefices, or some one of them, or to some other charge where the law requireth their presence, there to discharge their duties according to the laws in that case pro- vided. And the bishop of the diocese shall see the same to be duly performed and put in execution. APP. i.] CANONS ECCLESIASTICAL. 393 45. Beneficed Preachers, being resident upon their Livings, to preach every Sunday. Every beneficed man allowed to be a preacher, and residing on his benefice, having no lawful impediment, shall in his own cure, or in some other church or chapel, where he may conveniently, near adjoining (where no preacher is), preach one sermon every Sunday of the year; wherein he shall soberly and sincerely divide the word of truth, to the glory of God, and to the best edification of the people. 46. Beneficed Men, not Preachers, to procure Monthly Sermons, Every beneficed man, not allowed to be a preacher, shall procure sermons to be preached in his cure once in every month at the least, by preachers lawfully licensed, if his living, in the judgment of the ordinary, will be able to bear it. And upon every Sunday, when there shall not be a sermon preached in his cure, he or his curate shall read some one of the homilies prescribed or to be prescribed by authority, to the intents aforesaid. 47. Absence of Beneficed Men to be supplied by Curates that are allowed Preachers. Every beneficed man, licensed by the laws of this realm upon urgent occasions of other service not to reside upon his benefice, shall cause his cure to be supplied by a curate that is a sufficient and licensed preacher, if the worth of the benefice will bear it. But whosoever hath two benefices shall maintaina preacher licensed in the benefice where he doth not reside, except he preach himself at both of them usually. 48, None to be Curates but allowed by the Bishop. No curate or minister shall be permitted to serve in any place, without examination and admission of the bishop of the diocese, or ordinary of the place, having episcopal jurisdiction, in writing under his hand and seal, having respect to the greatness of the cure, and meetness of the party. And the said curates and ministers, if they remove from one diocese to another, shall not be by any means admitted to serve without testimony of the bishop of the diocese, or ordinary of the place, as aforesaid, whence they came, in writing, of their honesty, ability, and conformity to the 394 CONSTITUTIONS AND [APP. IL. ecclesiastical laws of the Church of England. Nor shall any serve more than one church or chapel upon one day, except that chapel be a member of the parish church, or united thereunto; and unless the said church or chapel, where such a minister shall serve in two places, be not able in the judgment of the bishop or ordinary, as aforesaid, to maintain a curate. 49. Ministers, not allowed Preachers, may not expound. No person whatsoever not examined and approved by the bishop of the diocese, or not licensed, as is aforesaid, for a sufficient or convenient preacher, shall take upon him to expound in his own cure, or elsewhere, any scripture or matter of doctrine; but shall only study to read plainly and aptly (without glossing or adding) the homilies already set forth, or hereafter to be published by lawful authority, for the confirmation of the true faith, and for the good instruction and edification of the people. 50. Strangers not admitted to preach without shewing their Lncence. Neither the minister, churchwardens, nor any other officers of the church, shall suffer any raan to preach within their churches or chapels, but such as, by shewing their licence to preach, shall appear unto them to be sufficiently authorized thereunto, as is aforesaid. 51. Strangers not admitted to preach in Cathedral Churches without sufficient Authority. The deans, presidents, and residentiaries of any cathedral or collegiate church shall suffer no stranger to preach unto the people in their churches, except they be allowed by the archbishop of the province, or by the bishop of the same diocese, or by either of the universities. And if any in his sermon shall publish any doctrine, either strange, or disagreeing from the Word of God, or from any of the Articles of Religion agreed upon in the Convocation House, anno 1562, or from the Book of Common Prayer; the dean or the residents shall, by their letters subscribed with some of their hands that heard him, so soon as may be, give notice of the same to the bishop of the diocese, that he may determine the matter, and take such order therein as he shall think convenient, APP. I.] CANONS ECCLESIASTICAL. 395 52. The Names of strange Preachers to be noted in a Book, That the bishop may understand (if occasion so require) what sermons are made in every church of his diocese, and who presume to preach without licence, the churchwardens and sidemen shall see that the names of all preachers, which come to their church from any other place, be hoted in a book, which they shall have ready for that purpose; wherein every preacher shall subscribe his name, the day when he preached, and the name of the bishop of whom he had licence to preach. 53. No public Opposition between Preachers, If any preacher shall in the pulpit particularly, or namely of purpose, impugn or confute any doctrine delivered by any other preacher in the same church, or in any church near adjoining, before he hath acquainted the bishop of the diocese therewith, and received order from him what to do in that case, because upon such public dissenting and contradicting there may grow much offence and disquietness unto the people; the churchwardens, or party grieved, shall forthwith signify the same to the said bishop, and not suffer the said preacher any more to occupy that place which he hath once abused, except he faithfully promise to forbear all such matter of contention in the church, until the bishop hath taken further order therein ; who shall with all convenient speed so proceed therein, that public satisfaction may be made in the congregation where the offence was given. Provided, that if either of the parties offending do appeal, he shall not be suffered to preach pendente lite. 54. The Licences of Preachers refusing Conformity to be void. If any man licensed heretofore to preach, by any archbishop, bishop, or by either of the universities, shall at any time from henceforth refuse to conform himself to the laws, ordinances, and rites ecclesiastical established in the Church of England, he shall be admonished by the bishop of the diocese, or ordinary of the place, to submit himself to the use and due exercise of the same. And if, after such admonition, he do not conform himself within the space of one month, we determine and decree, that the licence of every such preacher shall thereupon be utterly void, and of none effect. 396 CONSTITUTIONS AND [APP. 1. 55. The Form of a Prayer to be used by all Preachers before their Sermons. Before all sermons, lectures, and homilies, the preachers and ministcrs shall move the people to join with them in prayer in this form, or to this effect, as briefly as conveniently they may: Ye shall pray for Christ’s holy Catholic Church, that is, for the whole congregation of Christian people dispersed throughout the whole world, and especially for the Churches of England, Scotland, and Ireland: and herein I require you most especially to pray for the King’s most excellent majesty, our sovereign lord James, King of England, Scotland, France, and Ireland, defender of the faith, and supreme governor in these his realms, and all other his dominions and countries, over all persous, in all causes, as well ecclesiastical as temporal: ye shall also pray for our gracious Queen Anne, the noble Prince Henry, and the rest of the King and Queen’s royal issue: ye shall also pray for the ministers of God’s holy Word and Sacraments, as well archbishops and bishops, as other pastors and curates: ye shall also pray for the King’s most honourable Council, and for all the nobility and magistrates of this realm; that all and every of these, in their several callings, may serve truly and painfully to the glory of God, and the edifying and well-governing of His people, remembering the account that they must make: also ye shall pray for the whole commons of this realm, that they may live in the true faith and fear of God, in humble obedience to the King, and brotherly charity one to another. Finally, let us praise God for all those which are departed out of this life in the faith of Christ, and pray unto God, that we may have grace to direct our lives after their good example; that, this life ended, we may be made partakers with them of the glorious resurrection in the life everlasting ;—-always concluding with the Lord’s Prayer. 56. Preachers and Lecturers to read Divine Service, and administer the Sacraments, Twice a Year at the least. Every minister, being possessed of a benefice that hath cure and charge of souls, although he chiefly attend to preaching, and hath a curate under him to execute the other duties which are to be performed for him in the church, and likewise every other stipendiary preacher that readeth any lecture, or catechiseth, or preacheth in any church or chapel, shall twice at the least every year read himself the Divine Service upon two several Sundays APP. 1.] CANONS ECCLESIASTICAL. “397 publicly, and at the usual times, both in the forenoon and after- noon. in the church which he so possesseth, or where he readeth, catechiseth, or preacheth, as is aforesaid ; and shall likewise as often in every year administer the sacraments of Baptism (if there be any to be baptized), and of the Lord’s Supper, in such manner and form, and with the observation of all such rites and ceremonies, as are prescribed by the Book of Common Prayer in that behalf; which if he do not accordingly perform, then shall he that is possessed of a benefice (as before) be suspended; and he that is but a reader, preacher, or catechiser, be removed from his place by the bishop of the diocese, until he or they shall submit themselves to perform all the said duties, in such manner and sort as before is prescribed. 57. The Sacraments not to be refused at the Hands of Unpreaching Ministers, Whereas divers persons, seduced by false teachers, do refuse to have their children baptized by a minister that is no preacher, and to receive the Holy Communion at his hands in the same respect, as though the virtue of those sacraments did depend upon his ability to preach; forasmuch as the doctrine both of Baptism and of the Lord’s Supper is so sufficiently set down in the Book of Common Prayer to be used at the administration of the said sacraments, as nothing can be added unto it that is material and necessary; we do require and charge every such person, seduced as aforesaid, to reform that their wilfulness, and to submit himself to the order of the Church in that behalf; both the said sacraments being equally effectual, whether they be ministered by a minister that is no preacher, or by one that is a preacher. And if any hereafter shall offend herein, or leave their own parish churches in that respect, and communicate, or cause their children to be baptized, in other parishes abroad, and will not be moved thereby to reform that their error and vniswful course; let them be presented to the ordinary of the place by the minister, churchwardens, and side- men, or questmen of the parishes where they dwell, and there receive such punishment, by ecclesiastical censures, as such obstinacy doth worthily deserve: that is, let them (persisting in their wilfulness) be suspended, and then, after a month’s further obstinacy, excommunicated. And likewise if any parson, vicar, or curate shall, after the publishing hereof, either receive to the Communion any such persons which are not of his own church 398 CONSTITUTIONS AND [APP. I. and parish, or shall baptize any of their children, thereby strengthening them in their said errors; let him be suspended, and not released thereof, until he do faithfully promise that he will not afterwards offend therein. 58. Ministers reading Divine Service and administering the Sacra- ments to wear Surplices, and Graduates therewithal Hoods. Every minister saying the public prayers, or ministering the sacraments, or other rites of the Church, shall wear a decent and comely surplice with sleeves, to be provided at the charge of the parish. And if any question arise touching the matter, decency, or comeliness thereof, the same shall be decided by the discretion of the ordinary. Furthermore, such ministers as are graduates shall wear upon their surplices, at such times, such hoods as by the orders of the universities are agreeable to their degrees, which no minister shall wear (being no graduate) under pain of suspension. Notwithstanding it shall be lawful for such ministers as are not graduates to wear upon their surplices, instead of hoods, some decent tippet of black, so it be not silk. 59. Ministers to Cutechise every Sunday, Every parson, vicar, or curate, upon every Sunday and _holy- day, before Evening Prayer, shall, for half an hour or more, examine and instruct the youth and ignorant persons of his parish, in the: Ten Commandments, the Articles of the Belief, and in the Lord’s Prayer; and shall diligently hear, instruct, and teach them the Catechism set forth in the Book of Common Prayer. And all fathers, mothers, masters, and mistresses shall cause their children, servants, and apprentices which have not learned the Catechism, to come to the church at the time appointed, obediently to hear, and to he ordered by the minister, until they have learned the same. And if any minister neglect his duty herein, let him be sharply reproved upon the first complaint, and true notice thereof given to the bishop or ordinary of the place. If, after submitting himself, he shall willingly offend therein again, let him be suspended: if so the third time, there being little hope that he will be therein reformed, then excommunicated, and so remain until he will be reformed. And likewise if any of the said fathers, mothers, masters, or mistresses, children, servants, or apprentices shall APP. I.] CANONS ECCLESIASTICAL. 399 neglect their duties, as the one sort in not causing them to come, and the other in refusing to learn, as aforesaid; let them be sus-= pended by their ordinaries (if they be not children), and if they so persist by the space of a month, then let them be excom- municated, 60. Confirmation to be perforined once in Three Years. Forasmuch as it hath been a solemn, ancient, and laudable custom in the Church of God, continued from the Apostles’ times, that all bishops should lay their hands upon children baptized and instructed in the Catechism of Christian Religion, praying over them, and blessing them, which we commonly call Confirmation ; and that this holy action hath been accustomed in the Church in former ages to be performed in the bishop’s visitation every third year; we will and appoint, that every bishop or his suffragan, in his accustomed visitation, do in his own person carefully observe the said custom. And if in that year, by reason of some infirmity, he be not able personally to visit, then he shall not omit the execution of that duty of confirmation the next year after, as he may con- veniently. 61, Ministers to prepare Children for Confirmation. _ Every minister that hath cure and charge of souls, for the better accomplishing of the orders prescribed in the Book of Common Prayer concerning Confirmation, shall take especial care that none shall be presented to the bishop for him to lay his hands upon, but such as can render an account of their faith according to the Catechism in the said book contained. And when the bishop shall assign any time for the performance of that part of his duty, every such minister shall use his best endeavour to prepare and make able, and likewise to procure as many as he can to be then brought, and by the bishop to be confirmed. 62. Ministers not to marry any Persons without Banns, or Licence, No minister, upon pain of suspension per trienniwm ipso facto, shall celebrate matrimony between any persons, without a faculty or licence granted by some of the persons in these our constitutions expressed, except the banns of matrimony have been first published three several Sundays, or holydays, in the time of Divine Service, in the parish churches and chapels where the said parties dwell, 400 CONSTITUTIONS AND [APP. IL. according to the Book of Common Prayer. [Neither shall any minister, upon the like pain, under any pretence whatsoever, join any persons so licensed 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 where one of them dwelleth [and likewise in time of Divine Service], nor when banns are thrice asked, and no licence in that respect necessary, before the parents or governors of the parties to be married, being under the age of twenty-and-one years, shall either personally, or by sufficient testimony, signify to him their consents given to the said marriage. NeEw Canon OF 1888 IN LIEU OF THOSE PARTS IN BRACKETS. Ministers to marry only between certain hours. No minister shall celebrate matrimony betwixt any persons other- wise than between the hours of eight in the forenoon and three in the afternoon. It shall not be necessary that such celebration of matri- mony shall take place in time of Divine Service. 63. Ministers of exempt Churches not to marry without Banns, or Licence. Every minister, who shall hereafter celebrate marriage between any persons contrary to our said constitutions, or any part of them, under colour of any peculiar liberty or privilege claimed to appertain to certain churches and chapels, shall be suspended per triennium by the ordinary of the place where the offence shall be committed, And if any such minister shall afterwards remove from the place where he hath committed that fault, before he be suspended, as is aforesaid, then shall the bishop of the diocese, or ordinary of the place where he re- maineth, upon certificate under the hand and seal of the other ordinary from whose jurisdiction he removed, execute that censure upon him, 64. Ministers solemnly to bid Holydays. Every parson, vicar, or curate shall in his several charge declare to the people, every Sunday at the time appointed in the Communion Book, whether there be any holydays or fasting-days the week follow- ing. And if any do hereafter wittingly offend herein, and being once admonished thereof by his ordinary, shall again omit that duty, let him be censured according to law, until he submit himself to the due performance of it. 65. Ministers solemnly to denounce Recusants and Excommunicates. All ordinaries shall, in their several jurisdictions, carefully see and give order, that as well those who for obstinate refusing to frequent Divine Service established by public authority within this APP. I.] CANONS ECCLESIASTICAL. 401 ~ realm of England, as those also (especially of the better sort and vondition) who for notorious contumacy, or other notable crimes, stand lawfully excommunicate (unless within three months im- mediately after the said sentence of excommunication pronounced against them, they reform themselves, and obtain the benefit of absolution), be every six months ensuing, as well in the parish church as in the cathedral church of the diocese in which they remain, by the minister openly in time of Divine Service, upon some Sunday, denounced and declared excommunicate, that others may be thereby both admonished to refrain their company and society, and excited the rather to procure out a writ Ve excom- municato capiendo, thereby to bring and reduce them into due order and obedience. Likewise the registrar of every ecclesiastical court shall yearly between Michaelmas and Christmas duly certity the archbishop of the province of all and singular the premises aforesaid. 66. Ministers to confer with Recusants. Every minister being a preacher, and having any Popish recusant or recusants in his parish, and thought fit by the bishop of the diocese, shall labour diligently with them from time to time, thereby to reclaim them from their errors, And if he be no preacher, or not such a preacher, then he shall procure, if he can possibly, some that are preachers so qualified, to take pains with them for that purpose. If he can procure none, then he shall in- form the bishop of the diocese thereof, who shall not only appoint some neighbour preacher or preachers adjoining to take that labour upon them, but himself also, as his important affairs will permit him, shall use his best endeavour, by instruction, persuasion, and all good means he can devise, to reclaim both them and all other within his diocese so affected. 67. Ministers to visit the Sick, When any person is dangerously sick in any parish, the minister, or curate, having knowledge thereof, shall resort unto him or her (if the disease be not known, or probably suspected, to be infectious), to instruct and comfort them in their distress, accord- ing to the order of the Communion Book, if he be no preacher ; or if he be a preacher, then as he shall think most needful and con- venient. And when any is passing out of this life, 3 bell shall be 2: 402 CONSTITUTIONS AND [APP. 1. tolled, and the minister shai! not then slack to do his last duty. And after the party’s death, if it so fall out, there shall be rung no more than one short peal, and one other before the burial, and one other after the burial. 68. Ministers not to refuse to Christen or Bury. No minister shall refuse or delay to christen any child according to the form of the Book of Common Prayer, that is brought to the church to him upon Sundays or holydays to be christened, or to bury any corpse that is-brought to the church or churchyard, con- venient warning being given him thereof before, in such manner and form as is prescribed in the said Book of Common Prayer. And if he shall refuse to christen the one, or bury the other (except the party deceased were denounced excommunicated, majori excommunicatione, for some grievous and notorious crime, and no man able to testify of his repentance), he shall be suspended by the bishop of the diocese from his ministry by the space of three months. 69. Ministers not to defer Christening, if the Child be in Danger. If any minister, being duly, without any manner of collusion, informed of the weakness and danger of death of any infant unbaptized in his parish, and thereupon desired to go or come to the place where the said infant remaineth, to baptize the same, shall either wilfully refuse so to do, or of purpose, or of gross negligence, shall so defer the time, as, when he might conveniently have resorted to the place, and have baptized the said infant, it dieth, through such his default, unbaptized; the said minister shall be suspended for three months, and before his restitution shall acknowledge his fault, and promise, before his ordinary, that he will not wittingly incur the like again. Provided, that where there is a curate, or a substitute, this constitution shall not extend to the parson or vicar himself, but to the curate or substitute present. 70, Ministers to keep a Register of Christenings, Weddings, and Burials, In every parish church and chapel within this realm shall be provided one parchment book, at the charge of the parish, wherein shall be written the day and year of every christening, wedding, APP, I.} CANONS ECCLESIASTICAL. 43 and burial which have been in that parish since the time that the law was first made in that behalf, so far as the ancient books thereof can be procured, but especially since the beginning of the reign of the late Queen. And for the safe keeping of the said book, the churchwardens, at the charge of the parish, shall provide one sure coffer, with three locks and keys: whereof the one to remain with the minister, and the other two with the church- wardens, severally; so that neither the minister without the two churchwardens, nor the churchwardens without the minister, shall at any time take that book out of the said coffer. And hence- forth upon every sabbath-day, immediately after Morning or Evening Prayer, the minister and churchwardens shall take the said parchment book out of the said coffer, and the ministers, in the presence of the churchwardens, shall write and record in the said book the names of all persons christened, together with the names and surnames of their parents, and also the names of all persons married and buried in that parish in the week before, and the day and year of every such christening, marriage, and burial ; and, that done, they shall lay up that book in the coffer, as before; and the minister and churchwardens unto every page of that book, when it shall be filled with such inscriptions, shall subscribe their names. And the churchwardens shall once every year, within one month after the five-and-twentieth day of March, transmit unto the bishop of the diocese, or his chancellor, a true copy of the names of all persons christened, married, or buried in their parish in the year before, ended the said five-and-twentieth day of March, and the certain days and months in which every such christening, marriage, and burial was had, to be subscribed with the hands of the said minister and churchwardens, to the end the same may faithfully be preserved in the registry of the said bishop—which certificate shall be received without fee. And if the minister or churchwardens shall be negligent in performance of anything herein contained, it shall be lawful for the bishop, or his chancellor, to convent them, and proceed against every of them as contemners of this our constitution. 71. Ministers not to Preach, or administer the Communion, in Private Houses. No minister shall preach, or administer the Holy Communion, in any private house, except it be in times of necessity, when any, at CONSTITUTIONS AND [APP. }. being either so impotent as he cannot go to the church, or very dangerously sick, are desirous to be partakers of the sacrament, upon pain of suspension for the first offence, and excommunication for the second. Provided, that houses are here reputed for private houses, wherein are no chapels dedicated and allowed by the ecclesiastical laws of this realm. And provided also, under the pains before expressed, that no chaplains do preach or administer the Communion in any other places, but in the chapels of the said houses; and that also they do the same very seldom upon Sundays and holydays; so that both the lords and masters of the said houses, and their families, shall at other times resort to their own parish churches, and there receive the Holy Communion at the least once every year. 72. Ministers not to appoint Public or Private Fasts or Prophecies, or to EHxorcise, but by Authority. No minister or ministers shall, without the licence and direction of the bishop of the diocese first obtained and had under his hand and seal, appoint or keep any solemn fasts, either publicly or in any private houses, other than such as by law are, or by public authority shall be appointed ; nor shall be wittingly present at any of them, under pain of suspension for the first fault, of excom- munication for the second, and of deposition from the ministry for the third. Neither shall any minister not licensed, as is aforesaid, presume to appoint or hold any meetings for sermons, commonly termed by some prophecies or exercises, in market-towns, or other places, under the said pains: nor, without such licence, to attempt upon any pretence whatsoever, either of possession or obsession, by fasting and prayer, to cast out any devil or devils, under pain of the imputation of imposture or cosenage, and deposition from the ministry. 73. Ministers not to hold Private Conventicles. Forasmuch as all conventicles, and secret meetings of priests and ministers, have been ever justly accounted very hurtful to the state of the Church wherein they live; we do now ordain and constitute, that no priests,,or ministers of the Word of God, or any other persons, shall meet together in any private house, or elsewhere, to consult upon any matter or course to be taken by them, or upon their motion or direction by any other, which may any way tend to APP, I] CANONS@ECCLESTASTICAL, 405 the impeaching or depraving of the doctrine of the Church of England, or of the Book of Common Prayer, or of any part of the government and discipline now established in the Church of England, under pain of excommunication ‘pso fucto, 74, Decency in Apparel enjoined to Ministers, The true, ancient, and flourishing Churches of Christ, being ever desirous that their prelacy and clergy might be had as well in out- ward reverence, as otherwise regarded for the worthiness of their ministry, did think it fit, by a prescript form of decent and comely apparel, to have them known to the people, and thereby to receive the honour and estimation due to the special messengers and ministers of Almighty God: we therefore, following their grave judgment, and the ancient custom of the Church of England, and hoping that in time newfangleness of apparel in some factious persons will die of itself, do constitute and appoint, that the arch- bishops and bishops shall not intermit to use the accustomed apparel of their degrees. Likewise all ‘deans, masters of colleges, archdeacons, and prebendaries in cathedral and collegiate churches (being priests or deacons), doctors in divinity, law, and physie, bachelors in divinity, masters of arts, and bachelors of law, having any ecclesiastical living, shall usually wear gowns with standing collars and sleeves strait at the hands, or wide sleeves, as is used in the universities, with hoods or tippets of silk or sarcenet, and square caps. And that all other ministers admitted or to be admitted into that function shall also usually wear the like apparel as is aforesaid, except tippets only. We do further in like manner ordain, that all the said ecclesiastical persons abovementioned shall usually wear in their journeys cloaks with sleeves, commonly called priest’s cloaks, without guards, welts, long buttons, or cuts: and no ecclesiastical person shall wear any coif or wrought night- cap, but only plain night-caps of black silk, satin, or velvet. In all which particulars concerning the apparel here prescribed, our meaning is not to attribute any holiness or special worthiness to the said garments, but for decency, gravity, and order, as is before specified. In private houses, and in their studies, the said persons ecclesiastical may use any comely and scholarlike apparel, provided that it be not cut or pinkt; and that in public they go not in their doublet and hose, without coats or cassocks; and that they wear not any light-coloured stockings. Likewise poor 406 CONSTITUTIONS AND -[APP. 1. beneficed men and curates (not being able to provide themselves long gowns) may go in short gowns of the fashion aforesaid. 75. Sober Conversation required in Ministers. No ecclesiastical person shall at any time, other than for their honest necessities, resort to any taverns or alehouses, neither shall they board or lodge in any such places. Furthermore, they shall not give themselves to any base or servile labour, or to drinking or riot, spending their time idly by day or by night, playing at dice, cards, or tables, or any other unlawful games: but at all times convenient they shall hear or read somewhat of the Holy Scriptures, er shall occupy themselves with some other honest study or exercise, always doing the things which shall appertain to honesty, and endeavouring to profit the Church of God; having always in mind, that they ought to excel all others in purity of life, and should be examples to the people to live well and christianly, under pain of ecclesiastical censures, to be inflicted with severity, according to the qualities of their offences. 76. Ministers at no time to forsake their Calling. No man being admitted a deacon or minister shall from thence- forth voluntarily relinquish the same, nor afterward use himself in the course of his life as a layman, upon pain of excommunication. And the names of all such men so forsaking their calling, the churchwardens of the parish where they dwell shall present to the bishop of the diocese, or to the ordinary of the place having epis- copal jurisdiction. SCHOOLMASTERS. 77. None to teach School without Licence. No man shall teach either in public school, or private house, but such as shall be allowed by the bishop of the diocese, or ordinary of the place, under his hand and seal, being found meet as well for his learning and dexterity in teaching, as for sober and honest con- versation, and also for right understanding of God’s true religion ; and also except he shall first subscribe to the first and third articles aforementioned simply, and to the two first clauses of the second article. APP. I.] CANONS ECCLESIASTICAL. 407 78. Curates desirous to teach to be licensed before others, In what parish church or chapel soever there is a curate, which is a master of arts, or bachelor of arts, or is otherwise well able to teach youth, and will willingly so do, for the better increase of his living, and training up of children in principles of true religion; we will and ordain, that a licence to teach youth of the parish where he serveth be granted to none by the ordinary of that place, but only to the said curate. Provided always, that this constitu- tion shall not extend to any parish or chapel in country towns, where there is a public school founded already; in which case we think it not meet to allow any to teach grammar, but only him that is allowed for the said public school. 79. The Duty of Schoolmasters. All schoolmasters shall teach, in English or Latin, as the children are able to bear, the larger or shorter Catechism heretofore by public authority set forth. And as often as any sermon shall be upon holy and festival days within the parish where they teach, they shall bring their scholars to the church where such sermon shall be made, and there see them quietly and soberly behave themselves; and shall examine them at times convenient, after their return, what they have borne away of such sermon. Upon other days, and at other times, they shall train them up with such sentences of Holy Scripture as shall be most expedient to induce them to all godliness: and they shall teach the grammar set forth by King Henry the Eighth, and continued in the times of King Edward the Sixth and Queen Elizabeth of noble memory, and none other. And if any schoolmaster, being licensed, and having sub- scribed as aforesaid, shall offend in any of the premises, or either speak, write, or teach against anything whereunto he hath formerly subscribed Gif upon admonition by the ordinary he do not amend and reform himself), let him be suspended from teaching school any longer. 408 CONSTITUTIONS AND [APP. I, THINGS APPERTAINING TO CHURCHES. 80. The Great Bible, and Book of Common Prayer, to be had in every Church. The churchwardens or questmen of every church and chapel shall, at the charge of the parish, provide the Book of Common Prayer, lately explained in some few points by his Majesty’s authority, according to the laws and his Highness’s prerogative in that behalf, and that with all convenient speed, but at the furthest within two months after the publishing of these our constitutions, And if any parishes be yet unfurnished of the Bible of the largest volume, or of the books of homilies allowed by authority, the said churchwardens shall within convenient time provide the same at the like charge of the parish. 81. A Font of Stone for Baptism in every Church, According to a former constitution, too much neglected in many places, we appoint, that there shall be a font of stone in every church and chapel where baptism is to be ministered; the same to be set in the ancient usual places, in which only font the minister shall baptize publicly, 82. A decent Communion Table in every Church, Whereas we have no doubt but that in all churches within the realm of England, convenient and decent tables are provided and placed for the celebration of the Holy Communion, we appoint, that the same tables shall from time to time be kept and repaired in sufficient and seemly manner, and covered in time of Divine Service with a carpet of silk or other decent stuff, thought meet by the ordinary of the place, if any question be made of it, and with a fair linen cloth at the time of the ministration, as becometh that table, and so stand, saving when the said Holy Communion is to be administered: at which time the same shall be placed in so good sort within the church or chancel, as thereby the minister may be more conveniently heard of the communicants in his prayer and ministration, and the communicants also more conveniently, and in more number, may communicate with the said minister; and that the Ten Commandments be set up on the east end of every church and chapel, where the people may best see and read the same, and other chosen sentences written upon the walls of APP. I.] CANONS ECCLESIASTICAL. 409 the said churches and chapels, in places convenient; and likewise that a convenient seat be made for the minister to read service in. All these to be done at the charge of the parish. 83. A Pulpit to be provided in every Church. The churchwardens or questmen, at the common charge of the parishioners in every church, shall provide a comely and decent pulpit, to be set in'a convenient place within the same, by the discretion of the ordinary of the place, if any question do arise, and to be there seemly kept for the preaching of God’s Word. 84, A Chest for Alms in every Church, The churchwardens shall provide and have, within three months after the publishing of these constitutions, a strong chest, with a hole in the upper part thereof, to be provided at the charge of the parish (if there be none such already provided), having three keys; of which one shall remain in the custody of the parson, vicar, or curate, and the other two in the custody of the churchwardens for the time being: which chest they shall set and fasten in the most convenient place, to the intent the parishioners may put into it their alms for their poor neighbours. And the parson, vicar, or curate shall diligently, from time to time, and especially when men make their testaments, call upon, exhort, and move their neighbours to confer and give, as they may well spare, to the said chest; de- claring unto them, that whereas heretofore they have been diligent to bestow much substance otherwise than God commanded, upon superstitious uses, now they ought at this time to be much more ready to help the poor and needy, knowing that to relieve the poor is a sacrifice which pleaseth God; and that also whatsoever is given for their comfort is given to Christ himself, and is so accepted of Him, that He will mercifully reward the same. The which alms and devotion of the ; eople, the keepers of the keys shall yearly, quarterly, or oftener (as need requireth), take out of the chest, and distribute the same in the presence of most of the parish, or six of the chief of them, to be truly and faithfully delivered to their most poor and needy neighbours. 85. Churches to be kept in sufficient Reparations, The churchwardens or questmen shall take care and provide that the churches be well and sufficiently repaired, and so from sec CONSTITUTIONS AND [APP. 1. time to time kept and maintained, that the windows be well glazed, and that the floors be kept paved, plain, and even, and all things there in such an orderly and decent sort, without dust, or anything that may be either noisome or unseemly, as best becometh the House of God, and is prescribed in an homily to that effect. The like care they shall take, that the churchyards be well and suf- ficiently repaired, fenced, and maintained with walls, rails, or pales, as have been in each place accustomed, at their charges unto whom by law the same appertaineth: but especially they shall see that in every meeting of the congregation peace be well kept: and that all persons excommunicated, and so denounced, be kept out of the Church. 86. Churches to be surveyed, and the Decays certified to the High Commissioners. Every dean, dean and chapter, archdeacon, and others which have authority to hold ecclesiastical visitations by composition, law, or prescription, shall survey the churches of his or their juris- diction once in every three years in his own person, or cause the same to be done; and shall from time to time within the said three years certify the high commissioners for causes ecclesiastical, every year, of such defects in any the said churches, as he or they do find to remain unrepaired, and the names and surnames of the parties faulty therein. Upon which certificate, we desire that the said high commissioners will ea officio mero send for such parties, and compel them to obey the just and lawful decrees of such eccle- siastical ordinaries, making such certificates. 87. A Terrier of Glebe-lands and other Possessions belonging to Churches, We ordain, that the archbishops, and all bishops within their several dioceses, shall procure (as much as in them lieth) that a true note and terrier of all the glebes, lands, meadows, gardens, orchards, houses, stocks, implements, tenements, and portions of tithes lying out of their parishes (which belong to any parsonage, or vicarage, or rural prebend), be taken by the view of honest men in every parish, by the appointment of the bishop (whereof the minister to be one), and be laid up in the bishop’s registry, there to be for a perpetual memory thereof. App. 1.] ANONS ECCLESIASTICAL. 4It 88. Churches not to be profaned, The churchwardens or questmen, and their assistants, shall suffer no plays, feasts, banquets, suppers, church-ales, drinkings, temporal courts or leets, lay-juries, musters, or any other profane usage, to be kept in the church, chapel, or churchyard, neither the bells to be rung superstitiously upon holydays or eves abrogated by the Book of Common Prayer, nor at any other times, without good cause to be allowed by the minister of the place, and by themselves. CHURCHWARDENS OR QUESTMEN, AND SIDEMEN OR ASSISTANTS. 89. The Choice of Churchwardens, and their Account. All churchwardens or questmen in every parish shall be chosen by the joint consent of the minister and the parishioners, if it may be; but if they cannot agree upon such a choice, then the minister shall choose one, and the parishioners another: and without such a joint or several choice, none shall take upon them to be church- wardens: neither shall they continue any longer than one year in that office, except perhaps they be chosen again in like manner. And all churchwardens at the end of their year, or within a month after at the most, shall before the minister and the parishioners give up a just account of such money as they have received, and also what particularly they have bestowed in reparations, and other- wise, for the use of the church. And last of all, going out of their office, they shall truly deliver up to the parishioners whatsoever money or other things of right belonging to the church or parish which remaineth in their hands, that it may be delivered over by them to the next churchwardens by bill indented. 90, The Choice of Sidemen, and their Joint Office with Church- wardens. The churchwardens or questmen of every parish, and two or three or more discreet persons in every parish, to be chosen for sidemen or assistants by the minister and parishioners, if they can agree (otherwise to be appointed by the ordinary of the diocese), shall diligently see that all the parishioners duly resort to their church upon all Sundays and holidays, and there continue the 412 CONSTITUTIONS AND [| APP. I. whole time of Divine Service; and none to walk or to stand idle or talking in the church, or in the churchyard, or the church- porch, during that time. And all such as shall be found slack or negligent in resorting to the church (having no great or urgent cause of absence), they shall earnestly call upon them; and after due monition (if they amend not), they shall present them to the ordinary of the place. The choice of which persons—viz., church- wardens or questmen, sidemen or assistants, shall be yearly made in Easter-week. PARISH CLERKS. 91. Parish Clerks to be chosen by the Minister, No parish clerk upon any vacation shall be chosen, within the city of London, or elsewhere within the province of Canterbury, but by the parson or vicar; or, where there is no parson or vicar, by the minister of that place for the time being: which choice shall be signified by the said minister, vicar, or parson, to the parishioners the next Sunday following, in the time of Divine Service. And the said clerk shall be of twenty years of age at the least, and known to the said parson, vicar, or minister, to be of honest conversation, and sufficient for his reading, writing, and also for his competent skill in singing, if it may be. And the said clerks so chosen shall have and receive their ancient wages, without fraud or diminution, either at the hands of the churchwardens, at such times as hath been accustomed, or by their own collection, accecrding to the most ancient custom of every parish. ECCLESIASTICAL COURTS BELONGING TO THE ARCHBISHOP’S JURISDICTION, 92. None to be cited into divers Courts for Probate of the same Will, Forasmuch as many heretofore have been, by apparitors both of inferior courts, and of the courts of the archbishop’s prerogative, much distracted, and diversely called and summoned for probate of wills, or to take administrations of the goods of persons dying intestate, and are thereby vexed and grieved with many causeless and unnecessary troubles, molestations, and expenses; we constitute APP, I.] CANONS ECCLESIASTICAL, 413 and appoint, that all chancellors, commissaries, or officials, or any other exercising ecclesiastical jurisdiction whatsoever, shall at the first charge with an oath all persons called or voluntarily appearing before them for the probate of any will, or the administration of any goods, whether they know, or (moved by any special induce- ment) do firmly believe, that the party deceased, whose testament or goods depend now in question, had at the time of his or her death any goods or good debts in any other diocese or dioceses, or peculiar jurisdiction within that province, than in that wherein the said party died, amounting to the value of five pounds. And if the said person cited, or voluntarily appearing before him, shall upon his oath affirm, that he knoweth, or (as aforesaid) firmly believeth, that the said party deceased had goods or good debts in any other diocese or dioceses, or peculiar jurisdiction within the said province, to the value aforesaid, and particularly specify and declare the same; then shall he presently dismiss him, not presuming to inter- meddle with the probate of the said will, or to grant administration of the goods of the party so dying intestate; neither shall he require or exact any other charges of the said parties, more than such only as are due for the citation, and other process had and used against the said parties upon their further contumacy ; but shall openly and plainly declare and profess, that the said cause belongeth to the prerogative of the archbishop of that province; willing and admonishing the party to prove the said will, or require administration of the said goods, in the court of the said preroga- tive, and to exhibit before him the said judge the probate or administration under the seal of the prerogative, within forty days next following. And if any chancellor, commissary, official, or other exercising ecclesiastical jurisdiction whatsoever, or any their registrar, shall offend herein, let him be ‘pso fucto suspended from the execution of his office, not to be absolved or released, until ke have restored to the party all expenses by him laid out contrary to the tenor of the premises; and every such probate of any testa- ment, or administration of goods so granted, shall be held void and frustrate to all effects of the law whatsoever. Furthermore, we charge and enjoin, that the registrar of every inferior judge do, without all difficulty or delay, certify and inform the apparitor of the prerogative court, repairing unto him once a month, and no oftener, what executors or administrators have been by his said judge, for the incompetency of his own jurisdiction, dismissed to the said prerogative court within the month next 414 CONSTITUTIONS AND [APP. I. hefore, under pain of a month’s suspension from the exercise of his office for every default therein. Provided, that this canon, or anything therein contained, be not prejudicial to any compo- sition between the archbishop and any bishop or other ordinary, nor to any inferior judge that shall grant any probate of testament, or administration of goods, to any party that shall voluntarily desire it, both out of the said inferior court, and also out of the prerogative. Provided likewise, that if any man die in ttinere, the goods that he hath about him at that present shall not cause his testament or administration to be liable unto the prerogative court. 93. The Rate of Bona notabilia liable to the Prerogative Court. Furthermore, we decree and ordain, that no judge of the arch- bishop’s prerogative shall henceforward cite, or cause to be cited, ex officio, any person whatsoever to any of the aforesaid intents, unless he have knowledge that the party deceased was at the time of his death possessed of goods and chattels in some other diocese or dioceses, or peculiar jurisdiction within that province, than in that wherein he died, amounting to the value of five pounds at the least; decreeing and declaring, that whoso hath not goods in divers dioceses to the said sum or value shall not be accounted to have bona notabilia. Always provided, that this clause, here and in the former constitution mentioned, shall not prejudice those dioceses, where by composition or custom bona notabilia are rated at a greater sum. And if any judge of the prerogative court, or any his surrogate, or his registrar or apparitor, shall cite, or cause any person to be cited into his court, contrary to the tenor of the premises, he shall restore to the party so cited all his costs and charges, and the acts and proceedings in that behalf shall be held void and frustrate. Which expenses, if the said judge, or registrar, or apparitor, shall refuse accordingly to pay, he shall be suspended from the exercise of his office, until he yield to the performance thereof. 94, None to be cited into the Arches or Audience but Dwellers within the Archbishop’s Diocese, or Peculiars. No dean of the arches, nor official of the archbishop’s consistory, nor any judge of the audience, shall henceforward in his own name, or in the name of the archbishop, either ex oficio, or at the APP I.] CANONS ECCLESIASTICAL. 415 instance of any party, originally cite, summon, or any way compel, or procure to be cited, summoned, or compelled, any person which dwelleth not within the particular diocese or peculiar of the said archbishop, to appear before him or any of them, for any cause or matter whatsoever belonging to ecclesiastical cognisance, without the licence of the diocesan first had and obtained in that behalf, other than in such particular cases only as are expressly excepted and reserved in and by a statute anno 23 H. VIII. cap. 9. And if any of the said judges shall offend herein, he shall for every such offence be suspended from the exercise of his office for the space of three whole months. 95. The Restraint of Double Quarrels. Albeit by former constitutions of the Church of England, every bishop hath had two months’ space to enquire and inform himself of the sufficiency and qualities of every minister, after he hath been presented unto him to be instituted into any benefice; yet, for the avoiding of some inconveniences, we do now abridge and reduce the said two months unto eight-and-twenty days only. In respect of which abridgment we do ordain and appoint, that no douhle quarrel shall hereafter be granted out of any of the archbishop’s courts at the suit of any minister whosoever, except he shall first take his personal oath, that the said eight-and-twenty days at the least are expired, after he first tendered his presentation to the bishop, and that he refused to grant him institution thereupon ; or shall enter bonds with sufficient sureties to prove the same to be true; under pain of suspension of the granter thereof from the execution of his office for half a year toties quoties (to be denounced by the said archbishop), and nullity of the double quarrel aforesaid, so unduly procured, to all intents and purposes whatsoever. Al- ways provided, that within the said eight-and-twenty days the bishop shall not institute any other to the prejudice of the said party before presented, sub pena nullitatis. 96. Inhibitions not to be granted without the Subscription of an Advocate. That the jurisdictions of bishops may be preserved (as near as may be) entire and free from prejudice, and that for the behoof of the subjects of this land better provision be made, that hence- forward they be not grieved with frivolous and wrongful suits and 416 CONSTITUTIONS AND [APP. L. molestations; it is ordained and provided, that no inhibition shall be granted out of any court belonging to the Archbishop of Canter- bury, at the instance of any party, unless it be subscribed by an advocate practising in the said court: which the said advocate shall do freely, not taking any fee for the same, except the party prosecuting the suit do voluntarily bestow some gratuity upon him for his counsel and advice in the said cause. The like course shall be used in granting forth any inhibition, at the instance of any party, by the bishop or his chancellor, against the archdeacon, or any other person exercising ecclesiastical jurisdiction: and if in the court or consistory of any bishop there be no advocate at all, then shall the subscription of a proctor practising in the same court be held sufficient. aa 97. Inhibitions not to be granted until the Appeal be exhibited to the Judge. It is further ordered and decreed, that henceforward no inhibi- tion be granted by occasion of any interlocutory decree, or in any cause of correction whatsoever, except under the form aforesaid : and moreover, that before the going-out of any such inhibition, the appeal itself, or a copy thereof (avouched by oath to be just and true), be exhibited to the judge, or his lawful surrogate, whereby he may be fully informed both of the quality of the crime, and of the cause of the grievance, before the granting-forth of the said inhibition. And every appellant, or his lawful proctor, shall, before the obtaining of any such inhibition, show and exhibit to the judge, or his surrogate, in writing, a true copy of those acts wherewith he complaineth himself to be aggrieved, and from which he appealeth; or shall take a corporal oath, that he hath performed his diligence and true endeavour for the obtaining of the same, and could not obtain it at the hands of the registrar in the country, or his deputy, tendering him his fee. And if any judge or registrar shall either procure or permit any inhibition to be sealed, so as is said, contrary to the form and limitation above specified, let him be suspended from the execution of his office for the space of three months: if any proctor, or other person whatsoever by his appointment, shall offend in any of the premises, either by making or sending out any inhibition, contrary to the tenor of the said premises, let him be removed from the exercise of his office for the space of a whole year, without hope of release or restoring. APP. 1] CANONS ECCLESIASTICAL. 417 98. Inhibitions not to le granted to fuctious Appellants, unless they first subscribe. Forasmuch as they who break the laws cannot in reason claim any benefit or protection by the same; we decree and appoint, that after any judge ecclesiastical hath proceeded judicially against obstinate and factious persons, and contemners of ceremonies, for not observing the rites and orders of the Church of England, or for contempt of public prayer, no judge, ad quem, shall admit or allow any his or their appeals, unless, he having first seen the original appeal, the party appellant do first personally promise and avow, that he will faithfully keep and observe all the rites and ceremonies of the Church of England, as also the prescript form of Common Prayer; and do likewise subscribe to the three articles formerly by us specified and declared. 99, None to Marry within the Degrees prohibited, No person shall marry within the degrees prohibited by the laws of God, and expressed in a table set forth by authority in the year of Our Lord God 1563.1 And all marriages so made and contracted shall be adjudged incestuous and unlawful, and consequeutly shall be dissolved as void from the beginning, and the parties so married shall by course of law be separated. And the aforesaid table shall be in every church publicly set up and fixed at the charge of the parish. 100. None to marry under Twenty-one Years without their Parents’ Consent. No children under the age of one-and-twenty years complete shall contract themselves, or marry, without the consent of their parent, or of their guardians and governors, if their parents be deceased. 101, By whom Licences to marry without Banns shall be granted, and to what sort of Persons. No faculty or licence shall be henceforth granted for solemniza- tion of matrimony betwixt any parties, without thrice open publica- tion of the banns, according to the Book of Common Prayer, by any person exercising any ecclesiastical jurisdiction, or claiming 1 [For this Table see page 444. ] Sap? 418 CONSTITUTIONS AND [APP. 1. any privileges in the right of their churches ; but the same shall be granted only by such as have episcopal authority, or the commissary for faculties, vicars-general of the archbishops and bishops, sede plena; or, sede vacante, the guardian of the spiritualities, or ordinaries exercising of right episcopal jurisdiction in their several jurisdictions respectively, and unto such persons only as be of good state and quality, and that upon good caution and security taken. 102.. Security to be taken at the granting of such Licences, and under what Conditions, The security mentioned shall contain these conditions: First, that at the time of the granting every such licence, there is not any impediment of precontract, consanguinity, affinity, or other lawful cause, to hinder the said marriage : Secondly, that there is not any controversy or suit depending in any court before any ecclesiastical judge, touching any contract or marriage of either of the said parties with any other: Thirdly, that they have obtained thereunto the express consent of their parents (if they be living), or otherwise of their guardians or governors: Lastly, that they shall celebrate the said matrimony publicly in the parish church or chapel where one of them dwelleth, and in no other place [and that between the hours of eight and twelve in the forenoon. } Nrw Canon oF 1888 IN LIEU OF THOSE PARTS IN BRACKETS, Licences to marry without Banns. All licences henceforth granted for solemnization of matrimony betwixt any parties without publication of banns shall contain the condition that the said matrimony shall be celebrated between the hours of eight in the forenoon and three in the afternoon, 103. Oaths to be taken for the Conditions. For the avoiding of all fraud and collusion in the obtaining of such licences and dispensations, we further constitute and appoint, that before any licence for the celebration of matrimony without publica- tion of banns be had or granted, it shall appear to the judge by the oaths of two sufficient witnesses, one of them to be known either to the judge himself, or to some other person of good reputation then present, and known likewise to the said judge, that the express consent of the parents or parent (if one be dead), or guardians or guardian of the parties, is thereunto had and obtained. And furthermore, that one of the parties personally swear, that he believeth there is no let or impediment of precontract, kindred, or alliance, or of any other lawful cause whatsoever, nor any suit commenced in any ecclesiastical court, to bar or hinder the proceeding of the said matrimony, accord- ing to the tenure of the aforesaid licence, APP, I.} CANONS ECCLESTASTICAL, 419 104. An Exception for those that are in Widowhood. If both the parties which are to marry being in widowhood do seek a faculty for the forbearing of banns, then the clauses before- mentioned, requiring the parents’ consents, may be omitted; but the parishes where they dwell, both shall be expressed in the licence, as also the parish named where the marriage shall be celebrated. And if any commissary for faculties, vicars-general, or other the said ordinaries, shall offend in the premises, or any part thereof, he shall, for every time so offending, be suspended from the execution of his office for the space of six months: and every such licence or dispensation shall be held void to all effects and purposes, as if there had never been any such granted; and the parties marrying by virtue thereof shall be subject to the punishments which are appointed for clandestine marriages. 105. No Sentence for Divorce to be given upon the sole Confession of the Parties. Forasmuch as matrimonial causes have been always reckoned and reputed among the weightiest, and therefore require the greater caution, when they come to be handled and debated in judgment, especially in causes wherein matrimony, baving been in the church duly solemnized, is required, upon any suggestion or pretext whatsoever, to be dissolved or annulled: we do straitly charge and enjoin, that in all proceedings to divorce, and nullities of matrimony, good circumspection and advice be used, and that the truth may (as far as is possible) be sifted out by the deposition of witnesses, and other lawful proofs and evictions; and that credit be not given to the sole confession of the parties them- selves, howsoever taken upon oath, either within or without the court. 106. No Sentence for Divorce to be given but in open Court. No sentence shall be given either for separation a thoro et mensa, or for annulling of pretended matrimony, but in open court, and in the seat of justice; and that with the knowledge and consent either of the archbishop within his province, or of the bishop within his diocese, or of the dean of the arches, the judge of the audience of Canterbury, or of the vicars-general, or other princi- pal officials, or, sede vacante,of the guardians of the spiritualities, 420 CONSTITUTIONS AND [APP. T, or other ordinaries to whom of right it appertaineth, in their several jurisdictions and courts, and concerning them only that are then dwelling under their jurisdictions. 107. In all Sentences for Divorce, Bond to be taken for not Marry- ing during each other’s Life. In all sentences pronounced only for divorce and separation a thoro et mensa, there shall be a caution and restraint inserted in the act of the said sentence, that the parties so separated shall live chastely and continently; neither shall they, during each other's life, contract matrimony with any other person. And, for the better observation of this last clause, the said sentence of divorce shall not be pronounced, until the party or parties requiring the same have given good and sufficient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition. 108. The Penalty for Judges offending in the premises. And if any judge, giving sentence of divorce or separation, shall not fully keep and observe the premises, he shal! be, by the arch= bishop of the province, or by the bishop of the diocese, suspended from the exercise of his office for the space of a whole year; and the sentence of separation, so given contrary to the form aforesaid, shall be held void to all intents and purposes of the law, as if ik had not at all been given or pronounced, ECCLESIASTICAL COURTS. BELONGING TO THE JURIS- DICTION OF BISHOPS AND ARCHDEACONS, AND THH PROCEEDINGS IN THEM. 109, Notorious Crimes and Scandals to be certified into Ecclesi- astical Courts by Presentments. If any offend their brethren, either by adultery, whoredom, incest, or drunkenness, or by swearing, ribaldry, usury, and any other uncleanness and wickedness of life, the churchwardens, or questmen, and sidemen, in their next presentments to their ordinaries, shall faithfully present all and every of the said APP, I.] CANONS ECCLESIASTICAL. 421 offenders, to the intent that they, and every of them, may be punished by the severity of the laws, according to their deserts ; and such notorious offenders shall not be admitted to the Holy Communion till they be reformed. 110. Schismatics to be presented. If the churchwardens, or questmen, or assistants, do or shall know any man within their parish, or elsewhere, that is a hinderer of the Word of God to be read or sincerely preached, or of the execution of these our constitutions, or a fautor of any usurped or foreign power, by the laws of this realm justly rejected and taken away, or a defender of popish and erroneous doctrine; they shall detect and present the same to the bishop of the diocese, or ordinary of the place, to be censured and punished according to such ecclesiastical laws as are prescribed in that behalf. 111. Disturbers of Divine Service to be presented. In all visitations of bishops and archdeacens, the church- wardens, or questmen, and sidemen, shall truly and personally present the names of all those which behave themselves rudely and disorderly in the church, or which by untimely ringing of Dells, by walking, talking, or other noise, shall hinder the minister or preacher. 112. Non-Communicants at Easter to be presented. The minister, churchwardens, questmen, and assistants of every parish church and chapel, shall yearly, within forty days after Easter, exhibit to the bishop or his chancellor the names and surnames of all the parishioners, as well men as women, which being of the age of sixteen years received not the Communion at Easter before. 113. Ministers may present. Because it often cometh to pass, that the churchwardens, side- men, questmen, and such other persons of the laity as are to take care for the suppressing of sin and wickedness in their several parishes, as much as in them lieth, by admonition, reprehension, and denunciation to their ordinaries, do forbear to discharge their duties therein, either through fear of their superiors, or through negligence, more than were fit, the licentiousness of these times 422 CONSTITUTIONS AND [ArP. I. considered ; we ordain, that hereafter every parson and vicar, or, in the lawful absence of any parson or vicar, then their curates and substitutes, may join in every presentment with the said church- wardens, sidemen, and the rest above mentioned, at the times hereafter limited, if they, the said churchwardens and the rest, will present such enormities as are apparent in the parish; or if they will not, then every such parson and vicar, or, in their absence as aforesaid, their curates may themselves present to their ordinaries at such times, and when else they think it meet, all such crimes as they have in charge, or otherwise, as by them (being the persons that should have the chief care for the suppressing of sin and impiety in their parishes) shall be thought to require due reforma- tion. Provided always, that if any man confess his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we do not any way bind the said minister by this our constitution, but do straitly charge and admonish him, that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same), under pain of irregularity. 114. Ministers shall present Recusants. Every parson, vicar, or curate shall carefully inform themselves, every year hereafter, how many popish recusants, men, women, and children above the age of thirteen years, and how many being popishly given (who, though they come to the church, yet do refuse to receive the Communion) are inhabitants, or make their abode, either as sojourners or common guests, in any of their several parishes; and shall set down their true names in writing, (if they can learn them), or otherwise such names as for the time they carry, distinguishing the absolute recusants from half re- cusants; and the same, so far as they know or believe, so distin- guished and set down under their hands, shall truly present to their ordinaries before the Feast of the Nativity next ensuing, under pain of suspension to be inflicted upon them by their said ordinaries; and so every year hereafter, upon the like pain, before the Feast of St. John Baptist. Also we ordain, that all such ordinaries, chancellors, commissaries, archdeacons, officials, and all other ecclesiastical officers, to whom the said presentments shall be APP. I.] CANONS ECCLESTASTICAL, 423 exhibited, shall likewise within one month after the receipt of the same, under pain of suspension by the bishop fiom the execution of their offices for the space of half a year, as often as they shall offend therein, deliver them, or cause them to be delivered, to the bishop respectively ; who shall also exhibit them to the archbishop within six weeks, and the archbishop to his Majesty within other six weeks after he hath received the said present- ments. 115. Ministers and Churchwardens not to be sued for presenting. Whereas for the reformation of criminous persons and disorders in every parish, the churchwardens, questmen, sidemen, and such other church officers are sworn, and the minister charged to present as well the crimes and disorders committed by the said criminous persons, as also the common fame which is spread abroad of them, whereby they are often maligned, and sometimes troubled by the said delinquents, or their friends; we do admonish and exhort all judges, both ecclesiastical and temporal, as they regard and reverence the fearful judgment-seat of the Highest Judge, that they admit not in any of their courts any complaint, plea, suit, or suits against any such churchwardens, questmen, sidemen, or other church officers, for making any such presentments, nor against any minister for any presentment that he shall make; all the said pre- sentments tending to the restraint of shameless impiety, and con- sidering that the rules both of charity and government do presume, that they did nothing therein of malice, but for the discharge of their consciences. 116. Churchwardens not bound to present oftener than Twice a Yeur, No churchwardens, questmen, or sidemen of any parish shall be enforced to exhibit their presentments to any having ecclesiasti- cal jurisdiction above once in every year where it hath been no oftener used, nor above twice in any diocese whatsoever, except it be at the bishop’s visitation. For the which presentments of every parish church or chapel, the registrar of any court, where they are to be exhibited, shall not receive in one year above fourpence, under pain, for every offence therein, of suspension from the execution of his office for the space of a month, toties quotes, Provided always, that, as good occasion shall require, it shall be Acs - CONSTITUTIONS AND [APP. I. lawful for every minister, churchwardens, and sidemen to present offenders as oft as they shall think meet; and likewise for any godly-disposed person, or for any ecclesiastical judge, upon knowledge, or notice given unto him or them of any enormous crime within his jurisdiction, to move the minister, churchwardens, or sidemen, as they tender the glory of God and reformation of sin, to present the same, if they shall find sufficient cause to induce them thereunto, that it may be in due time punished and reformed. Provided, that for these voluntary presentments there be no fee required or taken of them, under the pain aforesaid. 117. Churchwardens not to be troubled for not presenting oftener than Twice a Year. No churchwardens, questmen, or sidemen shall be called or cited, but only at the said time or times before limited, to appear before any ecclesiastical judge whatsoever, for refusing at other times to present any faults committed in their parishes, and punishable by ecclesiastical laws. Neither shall they, nor any of them, after their presentments exhibited at any of those times, be any further troubled for the same, except upon manifest and evident proof it may appear that they did then willingly and wittingly omit to present some such public crime or crimes as they knew to be committed, or could not be ignorant that there was then a public fame of them; or unless there be very just cause to call them for the explanation of their former presentments. In which case of wilful omission, their ordinaries shall proceed against them in such sort, as in causes of wilful perjury in a court ecclesiastical it is already by law provided. 118. The old Churchwardens to make their Presentments before the new be sworn, The office of all churchwardens and sidemen shall be reputed ever hereafter to continue until the new churchwardens that shall succeed them be sworn, which shall be the first week after Easter, or some week following, according to the direction of the ordinary. Which time so appointed shall always be one of the two times in every year when the minister and churchwardens and sidemen of every parish shall exhibit to their several ordinaries the present- ments of such enormities as have happened in their parishes since “APP. 1.] CANONS ECCLESIASTICAL. 425 their last presentments. And this duty they shall perform before the newly-chosen churchwardens and sidemen be sworn, and shall not be suffered to pass over the said presentments to those that are newly come into office, and are by intendment ignorant of such crimes; under pain of those censures which are appointed for the reformation of such dalliers and dispensers with their own con- sciences and oaths. 119. Convenient Time to be assigned for framing Presentments, For the avoiding of such inconveniences as heretofore have happened by the hasty making of bills of presentments upon the days of the visitation and synods, it is ordered, that always hereafter every chancellor, archdeacon, commissary, and official, and every other person having ecclesiastical jurisdiction, at the ordinary time when the churchwardens are sworn; and the archbishop and bishops, when he or they do summon their visitation, shall deliver, or cause to be delivered, to the churchwardens, questmen, and sidemen of every parish, or to some of them, such books of articles as they, or any of them, shall require, for the year following, the said churchwardens, questmen, and sidemen to ground their presentments upon, at such times as they are to exhibit them. In which book shall be contained the form of the oath, which must be taken immediately before every such presentment; to the intent that, having beforehand time sufficient, not only to peruse and consider what their said oath shall be, but the articles also where- upon they are to ground their presentments, they may frame them at home both advisedly and truly, to the discharge of their own consciences, after they are sworn, as becometh honest and godly men, 120. None to be cited into Ecclesiastical Courts by Process of Quorum Nomina, No bishop, chancellor, archdeacon, official, or other ecclesiastical judge, shall suffer any general processes of Quorwm Nomina to be sent out of his court; except the names of all such as thereby are to be cited shall be first expressly entered by the hand of the registrar, or his deputy, under the said processes, and the said processes and names be first subscribed by the judge, or his deputy, and his seal thereto affixed. 426 CONSTITUTIONS AND [APP. I. 121. None to be cited into several Courts for one Crime. In places where the bishop and archdeacon do by prescription or composition visit at several times in one and the same year, lest for one and the selfsame fault any of his Majesty’s subjects should be challenged and molested in divers ecclesiastical courts; we order and appoint, that every archdeacon, or his official, within one month after the visitation ended that year, and the presentments “received, shall certify under his hand and seal to the bishop, or his chancellor, the names and crimes of all such as are detected and presented in his said visitation, to the end the chancellor shall thenceforth forbear to convent any person for any crime or cause so detected or presented to the archdeacon. And the chancellor within the like time after the bishop’s visitation ended, and pre- sentments received, shall under his hand and seal signify to the archdeacon, or his official, the names and crimes of all such persons which shall be detected or presented unto him in that visitation, to the same intent as is aforesaid. And if these officers shall not certify each other, as is here prescribed, or after such certificate shall intermeddle with the crimes or persons detected and presented in each other’s visitation; then every of them so offending shall be suspended from all exercise of his jurisdiction by the bishop of the diocese, until he shall repay the costs and expenses which the parties grieved have been at by that vexation. 122. No Sentence of Deprivation or Deposition to be pronounced against a Minister but by the Bishop. When any minister is complained of in any ecclesiastical court belonging to any bishop of his province, for any crime, the chancel- lor, commissary, official, or any other having ecelesiastical juris- diction, to whom it shall appertain, shall expedite the cause by pro- cesses and other proceedings against him: and upon contumacy, for not appearing, shall first suspend him; and afterward, his contumacy continuing, excommunicate him. But if he appear, and submit himself to the course of law, then the matter being ready for sentence, and the merits of his offence exacting by law either deprivation from his living, or deposition from the ministry, no such sentence shall be pronounced by any person whosoever, but only by the bishop, with the assistance of his chancellor, the dean (if they may conveniently be had), and some of the pre APP. I.] CANONS ECCLESTASTICAL. 427 bendaries (if the court be kept near the cathedral church), or of the archdeacon, if he may be had conveniently, and two other at the least grave ministers and preachers, to be called by the bishop, when the court is kept in other places. 123. No Act to be sped but in open Court. No chancellor, commissary, archdeacon, official, or any other person using ecclesiastical jurisdiction whosoever, shall speed any judicial act, either of contentious or voluntary jurisdiction, except he have the ordinary registrar of that court, or his lawful deputy : or if he or they will not, or cannot be present, then such persons as by law are allowed in that behalf to write or speed the same, under pain of suspension ipso fucto. 124. No Court to have more than one Seal. No chancellor, commissary, archdeacon, official, or any other exercising ecclesiastical jurisdiction, shall without the bishop’s consent have any more seals than one, for the sealing of all matters incident to his office: which seal shall always be kept either by himself, or by his lawful substitute exercising jurisdiction for him, and remaining within the jurisdiction of the said judge, or in the city or principal town of the county. This seal shall contain the title of that jurisdiction which every of the said judges or their deputies do execute. 125. Convenient Places to be chosen for the keeping of Courts. All chancellors, commissaries, archdeacons, cfficials, and all other exercising ecclesiastical jurisdiction, shall appoint such meet places for the keeping of their courts, by the assignment or approbation of the bishop of the diocese, as shall be convenient for entertain- ment of those that are to make their appearance there, and most indifferent for their travel. And likewise they shall keep and end their courts in such convenient time, as every man may return homewards in as due season as may be. 126. Peculiar and inferior Courts to exhibit the original Copies of Wills into the Bishop's Registry. Whereas deans, archdeacons, prebendaries, parsons, vicars, and others exercising ecclesiastical jurisdiction, claim liberty to prove 428 CONSTITUTIONS AND [APP. 1. the last wills and testaments of persons deceased within their several jurisdictions, having no known or certain registrars, nor public place to keep their records in; by reason whereof many wills, rights, and legacies, upon the death or change of such persons, and their private notaries, miscarry and cannot be found, to the great prejudice of his Majesty’s subjects; we therefore order and enjoin, that all such possessors and exercisers of peculiar jurisdiction shall once in every year exhibit into the public registry of the bishop of the diocese, or of the dean and chapter under whose jurisdiction the said peculiars are, every original testament of every person in that time deceased, and by them proved in their several peculiar jurisdictions, or a true copy of every such testa- ment, examined, subscribed, and sealed by the peculiar judge and his notary. Otherwise, if any of them fail so to do, the bishop of the diocese, or dean and chapter, unto whom the said jurisdictions do respectively belong, shall suspend the said parties, and every of them, from the exercise of all such peculiar jurisdiction, until they have performed this our constitution. JUDGES ECCLESIASTICAL AND THEIR SURROGATES. 127. The Quality and Oath of Judges. No man shall hereafter be admitted a chancellor, commissary, or official, to exercise any ecclesiastical jurisdiction, except he be of the full age of six-and-twenty years at the least, and one that is learned in the civil and ecclesiastical laws, and is at the least a master of arts, or bachelor of law, and is reasonably well practised in the course thereof, as likewise well affected and zealously bent to religion, touching whose life and manners no evil example is had; and except, before he enter into or execute any such office, he shall take the oath of the King’s supremacy in the presence of the bishop, or in the open court, and shall subscribe to the Articles of Religion agreed upon in the convocation in the year one thousand five hundred sixty and two, and shall also swear that he will, to the uttermost of his understanding, deal uprightly and justly in his office, without respect or favour of reward—the said oaths and subscription to be recorded by a registrar then present. And like- wise all chancellors, commissaries, officials, registrars, and all other that do now possess or execute any places of ecclesiastical juris- APP. I] CANONS ECCLESIASTICAL. 429 diction, or service, shall before Christmas next, in the presence of the archbishop or bishop, or in open court, under whom or where they exercise their offices, take the same oaths, and subscribe, as before is said; or, upon refusal so to do, shall be suspended from the execution of their offices, until they shall take the said oaths, and subscribe as aforesaid. 128. The Quality of Surrogates. No chancellor, commissary, archdeacon, official, or any other person using ecclesiastical jurisdiction, shall at any time substitute in their absence any to keep any court for them, except he be either a grave minister and a graduate, or a licensed public preacher, and a beneficed man near the place where the courts are kept, or a bachelor of law, or a master of arts at least, who hath some skill in the civil and ecclesiastical law, and is a fayourer of true religion, and a man of modest and honest conversation; under pain of suspension, for every time that they offend therein, from the execution of their offices, for the space of three months, toties quoties ; and he likewise that is deputed, being not qualified as is before expressed, and yet shall presume to be a substitute to any judge, and shall keep any court as is aforesaid, shall undergo the same censtre in manner and form as is before expressed. PROCTORS. 129. Proctors not to retain Causes without the lawful Assignment of the Parties, None shall procure in any cause whatsover, unless he be there- unto constituted and appointed by the party himself, either before the judge, and by act in court, or unless, in the beginning of the suit, he be by a true and sufficient proxy thereunto warranted and enabled. We call that proxy sufficient which is strengthened and confirmed by some authentical seal, the party’s approbation, or at least his ratification therewithal concurring. All which proxies shall be forthwith by the said proctors exhibited into the court, and be safely kept and preserved by the registrar in the public registry of the said court. And if any registrar or proctor shall offend herein, he shall be secluded from the exercise of his office for the space of two months, without hope of release or restoring. » 430 CONSTITUTIONS AND (APP. f. 130. Proctors not to retain Causes without the Counsel of un Advocate. For lessening and abridging the multitude of suits and con- tentions, as also for preventing the complaints of suitors in courts ecclesiastical, who many times are overthrown by the oversight and negligence, or by the ignorance and insufficiency of proctors ; and likewise for the furtherance and increase of learning, and the advancement of civil and canon law, following the laudable customs heretofore observed in the courts pertaining to the Arch- bishop of Canterbury; we will and ordain, that no proctor exer- cising in any of them shall entertain any cause whatsoever, and keep and retain the same for two court-days, without the counsel and advice of an advocate, under pain of a year’s suspension from his practice; neither shall the judge have power to release or mitigate the said penalty, without express mandate and authority from the archbishop aforesaid. 131. Proctors not to conclude in any Cause without the Knowledge of an Advocate. No judge in any of the said courts of the archbishop shall admit any libel, or any other matter, without the advice of an advocate admitted to practise in the same court, or without his subscription ; neither shall any proctor conclude any cause depending without the knowledge of the advocate retained and feed in the cause: which if any proctor shall do, or procure to be done, or shall by any colour whatsoever defraud the advocate of his duty or fee, or shall be negligent in repairing to the advocate, and requiring his advice what course is to be taken in the cause, he shall be suspended from all practice for the space of six months without hope of being thereunto restored before the said term be fully complete. 132. Proctors prohibited the Oath “ In animam Domini sui.” Forasmuch as in the probate of testaments and suits for adminis- tration of the goods of persons dying intestate, the oath usually taken by proctors of courts, “ Jn animam constituentis,” is found to be inconvenient; we do therefore decree and ordain, that every executor, or suitor for administration, shall personally repair to the judge in that behalf, or his surrogate, and in his own person APP. I.] CANONS ECCLESIASTICAL. 431 (and not by proctor) take the oath accustomed in these cases, But if by reason of sickness, or age, or any other just let or im- pediment, he be not able to make his personal appearance before the judge, it shall be lawful for the judge (there being faith first made by a credible person of the truth of his said hindrance or impediment) to grant a commission to some grave ecclesi- astical person, abiding near the party aforesaid, whereby he shall give power and authority to the said ecclesiastical person, in his stead, to minister the accustomed oath abovementioned to the executor, or suitor for such administration, requiring his said substitute, that by a faithful and trusty messenger he certify the said judge truly and faithfully what he hath done therein. Lastly, we ordain and appoint, that no judge or registrar shall in any- wise receive for the writing, drawing, or sealing of any such commission, above the sum of six shillings and eight pence; whereof one moiety to be for the judge, and the other for the registrar of the said court. 133. Proctors not to be clamorous in Court. Forasmuch as it is found by experience, that the loud and con- fused eries and clamours of proctors in the courts of the arch- bishop are not only troublesome and offensive to the judges and advocates, but also give occasion to the standers-by of contempt and calumny toward the court itself; that more respect may be had to the dignity of the judge than heretofore, and that causes may more easily and commodiously be handled and despatched: we charge and enjoin, that all proctors in the said courts do especially intend, that the acts be faithfully entered and set down by the registrar, according to the advice and direction of the advocate; that the said proctors refrain loud speech and babbling, and behave themselves quietly and modestly ; and that, when either the judges or advocates, or any of them, shall happen to speak, they presently be silent, upon pain of silencing for two whole terms then im- mediately following every such offence of theirs. And if any of them shall the second time offend herein, and after due monition shall not reform himself, let him be for ever removed from his practice. 432 CONSTITUTIONS AND [APP. I. REGISTRARS. 134. Abuses to be reformed in Registrars. If any registrar, or his deputy or substitute whatsoever, shall receive any certificate without the knowledge and consent of the judge of the court, or willingly omit to cause any person cited to appear upon any court-day, to be called; or unduly put off and defer the examination of witnesses to be examined by a day set and assigned by the judge; or do not obey and observe the judicial and lawful monition of the said judge; or omit to write, or cause to be written, such citations and decrees as are to be putin execution, and. set forth before the next court-day; or shall not cause all testaments exhibited into his office to be registered within a convenient time; or shall set down or enact, as decreed by the judge, anything false, or conceited by himself, and not so ordered or decreed by the judge; or, in the transmission of pro- cesses to the judge ad quem, shall add or insert any falsehood or untruth, or omit anything therein, either by cunning, or by gross negligence; or in causes of instance, or promoted of office, shall receive any reward in favour of either party; or be of counsel directly or indirectly with either of the parties in suit; or in the execution of their office shall do aught else maliciously or fraudu- lently, whereby the said ecclesiastical judge, or his proceedings, may be slandered or defamed: we will and ordain, that the said registrar, or his deputy or substitute, offending in all or any of the premises, shall by the bishop of the diocese be suspended from the exercise of his office for the space of one, two, or three months, or more, according to the quality of his offence; and that the said bishop shall assign some other public notary to execute and discharge all things pertaining ,to his office, during the time of his said suspension. 135. A certain Rate of Fees due to all Ecclesiastical Officers. No bishop, suffragan, chancellor, commissary, archdeacon, official, nor any other exercising ecclesiastical jurisdiction whatsoever, nor any registrar of any ecclesiastical courts, nor any minister. belong- ing to any of the said offices or courts, shall hereafter, for any cause incident to their several offices, take or receive any other or greater fees than such as were certified to the Most Reverend Father in APP. I.] CANONS ECCLESTASTICAL. 433 God John, late Archbishop of Canterbury, in the year of Our Lord God one thousand five hundred ninety and seven, and were by him ratified and approved; under pain, that every such judge, officer, or minister offending herein, shall be suspended from the exercise of their several offices for the space of six months, for every such offence. Always provided, that if any question shall arise con- cerning the certainty of the said fees, or any of them, then those fees shall be held for lawful which the Archbishop of Canterbury for the time being shall under his hand approve, except the statutes of this realm before made do in any particular case express some other fees to be due. Provided furthermore, that no fee or money shall be received, either by the archbishop, or any bishop or suffragan, either directly or indirectly, for admitting of any into sacred orders; nor that any other person or persons under the said archbishop, bishop, or suffragan, shall for parchment, writing, wax, sealing, or any other respect thereunto appertaining, take above ten shillings, under such pains as are already by law prescribed. 136. A Table of the Rates and Fees to be set up in Courts and Registries, We do likewise constitute and appoint, that the registrars belonging to every such ecclesiastical judge shall place two tables, containing the several rates and sums of all the said fees—one in the usual place or consistory where the court is kept, and the other in his registry; and both of them in such sort, as every man whom it concerneth may without difficulty come to the view and perusal thereof, and take a copy of them: the same tables to be set up before the Feast of the Nativity next ensuing. And if any registrar shall fail to place the said tables according to the tenor hereof, he shall be suspended from the execution of his office, until he cause the same to be accordingly done: and the said tables being once set up, if he shall at any time remove, or suffer the same to be removed, hidden, or any way hindered from sight, contrary to the true meaning of this constitution, he shall for every such offence be suspended from the exercise of his office for the space of six months. 434 CONSTITUTIONS AND LAPP. I. 137. The whole Fees for shewing Letters of Orders and other Licences due but once in every Bishop’s time. Forasmuch as the chief and principal cause and use of visitation is, that the bishop, archdeacon, or other assigned to visit, may get some good knowledge of the state, sufficiency, and ability of the clergy, and other persons whom they are to visit; we think it con- venient, that every parson, vicar, curate, schoolmaster, or other person licensed whosoever, do at the bishop’s first visitation, or at the next visitation after his admission, shew and exhibit unto him his letters of orders, institution, and induction, and all other his dispensations, licences, or faculties whatsoever, to be by the said bishop either allowed, or (if there be just cause) disallowed and rejected ; and being by him approved, to be, as the custom is, signed by the registrar; and that the whole fees accustomed to be paid in the visitations in respect of the premises, be paid only once in the whole time of every bishop, and afterwards but half of the said accustomed fees in every other visitation during the said bishop’s continuance. APPARITORS. 138. The Number of Apparitors restrained, Forasmuch as we are desirous to redress such abuses and agerievances as are said to grow by somners or apparitors, we think it meet that the multitude of apparitors be (as much as is possible) abridged or restrained; wherefore we decree and ordain, that no bishop or archdeacon, or their vicars, or officials, or other inferior ordinaries, shall depute or have more apparitors to serve in their jurisdictions respectively, than either they or their predecessors were accustomed to have thirty years before the publishing of these our present constitutions. Al] which apparitors shall by them- selves faithfully execute their offices; neither shall they, by any colour or pretence whatsoever, cause or suffer their mandates to be executed by any messengers or substitutes, unless it be upon some good cause, to be first known and approved by the ordinary of the place. Moreover, they shall not take upon them the office of pro- moters or informers for the court, neither shall they exact more or greater fees than are in these our constitutions formerly prescribed. And if either the number of the apparitors deputed shall exceed the APP. 1.] CANONS ECCLESTASTICAL. 435 aforesaid limitation, or any of the said apparitors shall offend in any of the premises; the persons deputing them, if they be bishops, shall, upon admonition of their superior, discharge the persons exceeding the number so limited; if inferior ordinaries, they shail be suspended from the execution of their office, until they have dismissed the apparitors by them so deputed; and the parties themselves so deputed shall for ever be removed from the office of apparitors; and if, being so removed, they desist not from the exercise of their said offices, let them be punished by ecclesiastical censures, as persons contumacious: Provided, that if upon ex- perience the number of the said apparitors be too great in any diocese, in the judgment of the Archbishop of Canterbury for the time being, they shall by him be so abridged as he shall think meet and convenient. AUTHORITY OF SYNODS. 189. A National Synod the Church Representative. Whosoever shall hereafter affirm, that the sacred synod of this nation, in the name of Christ and by the King’s authority assembled, is not the true Church of England by representation, let him be excommunicated, and not restored, until he repent, and publicly revoke that his wicked error. 140. Synods conclude as well the Absent as the Present. Whosoever shall affirm, that no manner of person, either of the clergy or laity, not being themselves particularly assembled in the said sacred synod, are to be subject to the decrees thereof in causes ecclesiastical (made and ratified by the King’s majesty’s supreme authority), as not having given their voices unto them, let him be excommunicated, and not restored, until he repent, and publicly revoke that his wicked error. 141. Depravers of the Synod censured. Whosoever shall hereafter affirm, that the sacred synod, assembled as aforesaid, was a company of such persons as did conspire together against godly and religious professors of the Gospel; and that therefore both they and their proceedings in making of canons -and constitutions in causes ecclesiastical by the King’s authority, as 436 CONSTITUTIONS AND [APP. 1. aforesaid, ought to be despised and contemned, the same being ratified, confirmed, and enjoined by the said regal power, supremacy, and authority; let them be excommunicated, and not restored, until they repent, and publicly revoke that their wicked error. WE of our princely inclination and royal care for the maintenance of the present estate and government of the Church of England, by the laws of this our realm now settled and established, having diligently, with great contentment and comfort, read and con- sidered of all these their said canons, orders, ordinances, and constitutions, agreed upon, as is before expressed; and finding the same such as we are persuaded will be very profitable, not only to our clergy, but to the whole Church of this our kingdom, and to all the true members of it, if they be well observed; have there- fore for us, our heirs and lawful successors, of our especial grace, certain knowledge, and mere motion, given, and by these presents do give our royal assent, according to the form of the said statute or Act of Parliament aforesaid, to all and every of the said canons, orders, ordinances, and constitutions, and to all and everything in them contained, as they are before written. And furthermore, we do not only by our said prerogative royal, and supreme authority in causes ecclesiastical, ratify, confirm, and establish, by these our letters-patent, the said canons, orders, ordinances, and constitutions, and all and everything in them con- tained, as is aforesaid; but do likewise propound, publish, and straightway enjoin and command by our said authority, and by these our letters-patent, the same to be diligently observed, executed, and equally kept by all our loving subjects of this our kingdom, both within the provinces of Canterbury and York, in all points wherein they do or may concern every or any of them, according to this our will and pleasure hereby signified and expressed ; and that likewise, for the better observation of them, every minister, by what name or title soever he be called, shall in the parish church or chapel where he hath charge, read all the said canons, orders, ordinances, and constitutions, once every year, upon some Sundays or holydays, in the afternoon, before Divine Service, dividing the same in such sort, as that the one half may be read one day, and the other another day: the book of the said canons to be provided at the charge of the parish, betwixt this and the Feast of the Nativity of Our Lord God next ensuing: straitly charging and commanding all archbishops, bishops, and all other that exercise APP. I.] CANONS ECCLESTASTICAL. 437 any ecclesiastical jurisdiction within this realm, every man in his place, to see, and procure (so much as in them lieth) all and every of the same canons, orders, ordinances, and constitutions, to be in all points duly observed; not sparing to execute the penalties in them severally mentioned, upon any that shall wittingly or wilfully break or neglect to observe the same, as they tender the honour of God, the peace of the Church, the tranquillity of the kingdom, and their duties and service to us their king and sovereign, [The Canons of 1603 were, to a large extent, compiled from the Injunctions of 1547, 1559, and 1564; and from the Canons of 1575, 1583, 1585, and 1597. But none of these had been (as the Canons of 1603 were) promulgated in strict accordance with the Act 25 Henry VIIL., ch. 19. The “Reformatio Legum Ecclesiasticarum” does not appear to have been used at all in the compilation of these Canons or of the Injunctions and Canons referred to,] [ 438 ] THE TABLE OF THE CONSTITUTIONS AND CANONS ECCLESIASTICAL. Of the Church of England. 1. The King’s supremacy over the Chureh of England in causes ecclesiastical to be maintained, 2. Impugners of the King’s supremacy censured. 3. The Church of England a true and apostolical Chureh. 4, Impugners of the publie worship of God established in the Church of England censured. 5. Impugners of the Articles of Religion established in the Chureh of England censured. 6. Impugners of the rites and ceremonies established in the Church of England censured, 7. Impugners of the government of the Church of England by Archbishops, Bishops, &c. censured. 8. Impugners of the Form of Consecrating and Ordering Arch- bishops, Bishops, &e. in the Church of England cen- sured. 9. Authors of schism in the Chureh of England censured. 10. Maintainers of schismatics in the Church of England cen- « sured, 11. Maintainers of conventicles censured. 12. Maintainers of constitutions made in eonventicles censured, Of Divine Service, and Adnuinistration of the Sacraments, 13. Due celebration of Sundays and holydays. 14, The prescript form of Divine Service to be used on Sundays and holydays. 15. The Litany to be read on Wednesdays and Fridays, 16. Colleges to use the prescript form of Divine Service. 17. Students in colleges to wear surplices in time of Divine Service. 18, A reverence and attention to be used within the Church in time of Divine Service. APP.1.] ZABLE OF THE CONSTITUTIONS, &c. 439 19. 20. 21, 22, 23. 24, 25. 26. 27. 28, 29. 30. 31. 32. 33. 34, 35. 36. 37. 38. 39. 40. 41. 42, 43. 44, 45, 46, Loiterers not to be suffered near the church in time of Divine Service, Bread and Wine to be provided against every Communion. The Communion to be thrice a year received. Warning to be given beforehand for the Communion, Students in colleges to receive the Communion four times a year. Copes to be worn in cathedral churches by those that ad- minister the Communion. Surplices and hoods to be worn in cathedral churches when there is no Communion. Notorious offenders not to be admitted to the Communion. Schismatics not to be admitted to the Communion, Strangers not to be admitted to the Communion. Fathers not to be godfathers in Baptism, and children not communicants. The lawful use of the Cross in Baptism explained. Ministers: their Ordination, Function, and Charge. Four solemn times appointed for the making of Ministers, None to be made Deacon and Minister both in one day. The titles of such as are to be made Ministers. The quality of such as are to be made Ministers. The examination of such as are to be made Ministers, Declaration and Subscription required of such as are to be made Ministers. The Form of Subscription. Declaration and Subscription before the Diocesan, Revolters after Declaration and Subscription censured, Cautions for institution of Ministers into benefices. Declaration against simony at institution into benefices, Licences for plurality of benefices limited, and residence en- joined, Residence of Deans in their churches. Deans and Prebendaries to preach during their residence. Prebendaries to be resident upon their benefices, Beneficed preachers, being resident upon their livings, to preach every Sunday. Beneficed men nut preachers to procure monthly sermons, 440 LABLE. OF THE CONSTITUTIONS [APP. L Absence of beneficed men to be supplied by curates that are allowed preachers. None to be Curates but allowed by the Bishop. Ministers, not allowed preachers, may not expound, Strangers not admitted to preach without shewing their licence. Strangers not admitted to preach in cathedral churches without sufficient authority. The names of strange preachers to be noted in a book. No public opposition between preachers. The licences of preachers refusing conformity to be void, The Form of a Prayer to be used by all preachers before their sermons. Preachers and lecturers to read Divine Service and administer the Sacraments twice a year at the least. The Sacraments not to be refused at the hands of unpreaching Ministers. Ministers reading Divine Service and administering the Sacraments to wear surplices, and Graduates therewithal hoods. Ministers to catechise every Sunday. Confirmation to be performed once in three years. Ministers to prepare children for Confirmation. Ministers not to marry any persons without Banns or Licence. Ministers of exempt churches not to marry without Banns or Licence. Ministers solemnly to bid holydays. Ministers solemnly to denounce recusants and excommuni- cates, Ministers to confer with recusants, -Ministers to visit the sick. Ministers not to refuse to christen or bury. Ministers not to defer christening, if the child be in danger. ° Ministers to keep a register of christenings, weddings, and burials. Ministers not to preach or administer the Communion in private houses. Ministers not to appoint public or private fasts or prophecies, or to exorcise, but by authority. Ministers not to hold private conventicles, APP, I.] AND CANONS ECCLESIASTICAL. 441 74. 75. 76. Ute 78. 79. 80. 81. 82. 83. 84, 85. 86. 87. 88. 89. 90. 91. Decency in apparel enjoined to Ministers, Sober conversation required in Ministers. Ministers at no time to forsake their calling. Schoolmasters. None to teach school without licence. Curates desirous to teach to be licensed before others. The duty of schoolmasters, Things appertaining to Churches, The Great Bible and Book of Common Prayer to be had in every church. A font of stone for Baptism in every church, A decent communion-table in every church. A pulpit to be provided in every church. A chest for alms in every church. Churches to be kept in sufficient reparations, Churches to be surveyed, and the decays certified to the High Commissioners. A terrier of glebe-lands and other possescions belonging to churches. Churches not to be profaned. Churchwardens or Questmen, and Sidemen or Assistants. The choice of churchwardens, and their account. The choice of sidemen, and their joint office with church-’ wardens, Parish Clerks, Parish clerks to be chosen by the Minister, Ecclesiastical Courts belonging to the Archbishop’s Jurisdiction. . None to be cited into divers Courts for probate of the same will. The rate of Bona notabilia liable to the Prerogative Court. None to be cited into the Arches or Audience, but dwellers within the Archbishop’s diocese, or peculiars, The restraint of double quarrels. 108. LABLE OF THE CONSTITUTIONS [APP. Is, Inhibitions not to be granted without the subscription of an’ advocate. Inhibitions not to be granted until the appeal be exhibited to the judge. Inhibitions not to be granted to factious appellants unless they first subscribe. None to marry within the degrees prohibited. None to marry under twenty-one years without their parents’ consent. . By whom licences to marry without banns shall be granted, and to what sort of persons. Security to be taken at the granting of such licences, and under what conditions, Oaths to be taken for the conditions. An exception for those that are in widowhood. No sentence for divorce to be given upon the sole confession of the parties. No sentence for divorce to be given but in open Court. In‘all sentences for divorce, bond to be taken for not marrying during each other’s life. The penalty for judges offending in the premises. Ecclesiastical Courts belonging to the Jurisdiction of Bishops and 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. Archdeacons, and the Proceedings in them. Notorious crimes and scandals to be certified into Ecclesias- tical Courts by presentments. Schismaties to be presented. Disturbers of Divine Service to be presented. -Non-communicants at Easter to be presented, Ministers may present. Ministers shall present recusants. Ministers and churchwardens not to be sued for presenting. Churchwardens not bound to present oftener than twice a year. Churchwardens not to be troubled for not presenting oftener than twice a year. The old churchwardens to make their presentments before the the new be sworn. Convenient time to be assigned for framing presentments, APP. I.] AND CANONS ECCLESIASTICAL. 443 120. Weal 122. 233 124, 125, 126. 127. 128, 129, 130, 131, 132. 133. 134, 135, 136. 137. 138. 139. 140. 141, None to be cited into Ecclesiastical Courts by process of Quorum Nomina. None to be cited into several Courts for one crime. No sentence of deprivation or deposition to be pronounced against a Minister but by the Bishop, No act to be sped but in open Court. No court to have more than one seal. Convenient places to be chosen for the keeping of Courts. Peculiar and inferior Courts to exhibit the original copies of wills into the Bishop’s registry. Judges Ecclesiastical, and their Surroyates, The quality and oath of Judges. The quality of Surrogates. Proctors. Proctors not to retain causes without the lawful assignment of the parties. Proctors not to retain causes without the counsel of an advocate. Proctors not to conclude in any cause without the knowledge of an advocate. Proctors prohibited the oath “In animam Domini sur,” Proctors not to be clamorous in Court, Registrars. Abuses to be reformed in Registrars, A certain rate of fees due to all ecclesiastical officers. A table of the rates and fees to be set up in Courts and Registries, The whole fees for showing letters of orders and other licences due but once in every bishop’s time. Apparitors. The number of apparitors restrained, Authority of Synods, A national synod the Church representative. Synods conclude as well the absent as the present. Depravers of the synod censured, [ 444 ] THE TABLE OF DEGREES REFERRED TO IN CANON 99. An Admonition to all such as shall intend hereafter to enter the State of Matrimony godly and agreeably to Laws. First, that they contract not with such persons as be here- after expressed, nor with any of like degree, against the law of God and the laws of the realm. Secondly, that they make no secret contracts, without consent or counsel of their parents or elders, under whose authority they be, contrary to God’s laws and man’s ordinances. Thirdly, that they contract not anew with any other upon divorce and separation made by the judge for a time, the laws yet standing to the contrary. Marriage is honourable among all men, and the bed undefiled: but whoremongers and adulterers God will judge. (Heb. xiii. 4.) To avoid fornication, let every man have his wife, and let every woman have her husband. He that cannot contain, let him marry: for better it is to marry than to burn. (1 Cor. vii. 2, 9.) Unto the married I command, not I, but the Lord: Let not the wife depart from her husband ; but of she depart, let her remain unmarried, or be reconciled unto her husband. And let not the husband put away his wife. (1 Cor. vii. 10, 11.) I. It is to be noted, that those persons which be in the direct line -ascendent and descendent, cannot marry together, although they be never so far asunder in degree, II. It is also to be noted, that consanguinity and affinity (letting and dissolving matrimony) is contracted as well in them and by them which be of kindred by the one side, as in and by them which be of kindred by both sides. III. Item: That, by the laws, consanguinity and affinity (letting and dissolving matrimony) is contracted as well by unlawful com- pany of man and woman, as by lawful marriage. IV. Item: In contracting betwixt persons doubtful, which be not expressed in this table, it is most sure, first to consult with men APP,1.| ZABLE OF DEGREES OF AFFINITY. 445 learned in the laws, to understand what is lawful, what is honest and expedient, before the finishing of their contracts, VY. Jtem: That no parson, vicar, or curate, shall solemnize matrimony out of his or their cure, or parish church or chapel, and shall not solemnize the same in private houses, nor lawless and exempt churches, under the pains of the law forbidding the same, And that the curate have their certificates, when the parties dwell in divers parishes. VI. Jtem: The banns of matrimony ought to be openly denounced in the church by the minister three several Sundays or festival- days, to the end that who will and can allege any impediment may be heard, and that stay may be made till further trial, if any exception be made there against it, upon sufficient caution. VII. Item: Who shall maliciously object a frivolous impediment against a lawful matrimony to disturb the same, is subject to the pains of the law. VIII. Jtem: Who shall presume to contract in the degrees pro- hibited (though he do it ignorantly), besides that the fruit of such copulation may be judged unlawful, is also punishable at the ordinary’s discretion. IX. If any minister shall conjoin any such, or shall be present at such contracts making, he ought to be suspended from his ministry for three years, and otherwise to be punished according to the laws. X. Jtem: It is further ordained, that no parson, vicar, nor surate do preach, treat, or expound, of his own voluntary in- vention, any matter of controversy in the Scriptures, if he be under the degree of a master of arts, except he be licensed by his ordinary thereunto; but only for the instruction of the people read the homilies already set forth, and such other form of doctrine as shall be hereafter by authority published: and shall not innovate nor alter anything in the Church, or use any old rite or ceremony, which be not set forth by public authority. None shall come near to any of the kindred of his flesh to uncover their shame: Iam the Lord. (Levit. xviii. 6.) A Man may not marry his | | Secundus graidus in linea | | recta ascendente. Con. | Avia, af. | Avi Relicta, af, | Prozocrus, vel Socrus magna, | Grandmother, Grandfather’s Wife, Wife’s Grandmother, 1 2 3 446 TABLE OF DEGREES OF AFFINITY. [APP, I. A Man may not marry his Secundus gradus tnequalis in linea transversali ascen- dente. Anita, Matertera, Patrui Relicta, Avunculi Relicta, Amita Uxoris, Matertera Uxoris. Primus gradus in linea recta ascendente. Mater, Noverea, Socrus, Primus gradus in linea recta descendente. Filia, Privigna, Nurus. Primus gradus xqualis in linea transversali. Soror, Soror Uxoris, Fratris Relicta. Secundus gradus in linea recta descendente. Neptis ex Filio, Neptis ex Filia, Pronurus, i.e. Relicta Nepotis ex Filio, Pronurus, i.e. Relicta Nepotis ex Filia, Privigni Filia, Privigne Filia. Secundus gradus inxequalis in linea transversali descen- dente. Neptis ex Fratre, Neptis ex Sorore, Nepotis ex Fratre Relicta, Nepotis ex Sorore Relicta, Neptis Uxoris ex Fratre, Neptis Uxoris ex Sorore. q Oo ID oe Father’s Sister, Mother’s Sister, Father’s Brother’s Wife, Mother’s Brother’s Wife, Wife’s Father’s Sister, Wife’s Mother’s Sister. Mother, Stepmother, Wite’s Mother. Daughter, Wife’s Daughter, Son’s Wife. Sister, Wife’s Sister, Brother’s Wife, Son’s Daughter, Daughter’s Daughter, Son’s Son’s Wife. Daughter’s Son's Wife. Wife’s Son’s Daughter, Wife’s Daughter's Daughter. Brother’s Daughter, Sister’s Daughter, Brother’s Son’s Wife, Sister’s Son’s Wife, Wife’s Brother s Daughter, Wife’s Sister's Daughter. APP. 1.] . A Woman may not Secundus gradus in linea recta ascendente. Con | Avus, af | Aviz Relictus, af. | Prosocer, vel Socer magnus. Seeundus gradus inequalis in linea transversali ascen- dente. Con | Patruus, af | Avunculus, af | Amite Relictus, af. | Materterze Relictus, af. | Patruus Mariti, af. | Avunculus Mariti. Primus gradus in linea recta ascendente. Con. | Pater, af, | Vitricus, af. | Socer. Primus gradus in linea recta descendente. Con. | Filius, af | Privignus, af. | Gener. Primus gradus equalis in linea transversal. Con. | Frater, af | Levir, af. | Sororis Relictus. Secundus gradus in linea recta descendente. Con. | Nepos ex Filio, af. | Nepos ex Filia, af. | Progener, ie. Relictus Nep- tis ex Filio, af, | Progener, i.e. Relictus Nep- tis ex Filia, af | Privigni Filius, af | Privigne Filius. Secundus gradus inequalis in linea transversali descen- dente. Con. | Nepos ex I'ratre, TABLE OF DEGREES OF AFFINITY. 447 marry with her wonwre OOD Oe Grandfather, Grandmother's Husband, Husband's Grandfather. Father's Brother, Mother’s Brother, Father’s Sister’s Husband, Mother's Sister’s Husband, Husband's Father’s Brother, Husbands Mother’s Brother. Father, Stepfather, Husband's Father. Son, Husband's Son, Daughter’s Husband. Brother, Husband's Brother, Sister s Husband. Son’s Son, Daughter’s Son, Son’s Danghter’s Husband, Daughter’s Daughter's Hus- band, Husband’s Son’s Son, Husband's Daughter’s Son. Brother’s Son, 448 TABLE OF DEGREES OF AFFINITY, [app.1. A Woman may not marry with her Con. | Nepos ex Sorore, 26 | Sister’s Son, af. | Neptis ex Fratre Relictus, 27 | Brother's Daughter’s Hus- band, af. | Neptis ex Sorore Relictus, 28 ; Sister’s Daughter’s Husband, af. | Leviri Filius, ie, Nepos Ma- | 29 | Husband’s Brother’s Son, riti ex Fratre, af. | Gloris Filius, i.e. Nepos Ma- | 30 | Husband’s Sister’s Son. riti ex Sorore. L 449 ] laf THE CHURCH DISCIPLINE ACT or a.p. 1840. 3rd & 4th Vict., Chap. 86. An Act for better enforcing Church Discipline. [7th August, 1840.] At 7HEREAS the manner of proceeding in causes for the correction of clerks requires amendment: Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the author- Repeal of ity of the same, that an Act passed in the first 1 Hy. VI. year of the reign of King Henry the Seventh, in- “** tituled “ An Act for Bishops to punish Priests and other Religious Men for Dishonest Lives,” shall be repealed. 2. And be it enacted, that, unless it shall otherwise appear from the context, the term “ Preferment,” when used Definition of in this Act, shall be construed to comprehend every the terms deanery, archdeaconry, prebend, canonry, office of “ prefer- minor canon, priest-vicar, or vicar-choral in Holy TM pieop,” Orders, and every precentorship, treasurership, sub- “arch- deanery, chancellorship of the church, and other led siant dignity and office in any cathedral or collegiate church, ; and every mastership, wardenship, and fellowship in any collegiate church, and all benefices with cure of souls, comprehending therein all parishes, perpetual curacies, donatives, endowed public chapels, parochial chapelries, and chapelries or districts belonging to, or reputed to belong, or annexed or reputed to be annexed, to any church or chapel, and every curacy, lectureship, readership, chaplaincy, office, or place which requires the discharge of any spiritual duty, and whether the same be or be not within any exempt or peculiar jurisdiction; and the word “ Bishop,” when used in this Act, shall be construed to comprehend “ Archbishop;” and the word “ Diocese,’ when used in this Act, shall be construed 2H 450 THE CHURCH DISCIPLINE ACT. [APP. IT. to comprehend all places to which the jurisdiction of any bishop extends under and for the purposes of an Act passed in the second year of the reign of Her present Majesty, intituled “ An Act to abridge the Holding of Benefices in Plurality, and to make Better Provision for the Residence of the Clergy.” 3. And be it enacted, that in every case of any clerk in Holy Bishopnee Orders of the United Church of England and Ireland y : : issueaCom- who may be charged with any offence against the laws mission of = ecclesiastical, or concerning whom there may exist Sey scandal or evil report, as having offended against the said laws, it shall be lawful for the bishop of the diocese within which the offence is alleged or reported to have been committed, on the application of any party complaining thereof, or if he shall think fit of his own mere motion, to issue a commission under his hand and seal to five persons, of whom one shall be his vicar- general, or an archdeacon or rural dean within the diocese, for the purpose of making inquiry as to the grounds of such charge or Noti report: Provided always, that notice of the intention otice to be ; sie previously to issue such commission under the hand of the given. bishop, containing an intimation of the nature of the offence, together with the names, addition, and residence of the party on whose application or motion such commission shall be about to issue, shall be sent by the bishop to the party accused fourteen days at least before such commission shall issue. 4. And be it enacted, that it shall be lawful for the said Com- Proceedings Missioners, or any three of them, to examine upon of the Com- oath, or upon solemn affirmation in cases where an missioners. affirmation or declaration is allowed by law instead of an oath, which oath or affirmation or declaration respectively shall be administered by them to all witnesses who shall be tendered to them for examination, as well by any party alleging the truth of the charge or report as by the party accused, and to all witnesses whom they may deem it necessary to summon for the purpose of fully prosecuting the inquiry, and ascertaining whether there be sufficient piima facie ground for instituting further proceedings; and notice of the time when and place where every such meeting of the Commissioners shall be holden shall be given in writing under the hand of one of the said commissioners to the party accused seven days at least before the meeting: and it shall be lawful for the party accused, or kis agent, to attend the pro- 1 & 2 Vict. ch. 106. APP, 11.] THEVCH ORO eUISCiL LINE: ACT. 451 ceedings of the commission, and to examine any of the witnesses: and all such preliminary proceedings shall be public, unless, on the special application of the party accused, the Commissioners shall direct that the same or any part thereof shall be private; and when such preliminary proceedings, whether public or private, shall have been closed, one of the said Commissioners shall, after due con- sideration of the depositions taken before them, openly and publicly declare the opinion of the majority of the Commissioners present at such inquiry, whether there be or be not sufficient prima facie ground for instituting further proceedings. 5. And be it enacted, that the said Commissioners, or any three of them, shall transmit to the bishop under their Ronort of hands and seals the depositions of witnesses taken the Commis- before them, and also a report of the opinion of the 510meTs. majority of the Commissioners present at such inquiry, whether or not there be suflicient primaé facie ground for instituting pro- ceedings against the party accused ; and such report shall be filed in the registry of the diocese: and that if the party accused shall hold any preferment in any other diocese or dioceses, the bishop to whom the report shall be made shall transmit a copy thereof, and of the depositions, to the bishop or bishops of such other diocese or dioceses, and shall also, upon the application of the party accused, cause to be delivered to such party a copy of the said report and of the depositions, on payment of a reasonable sum for the same, not exceeding twopence for each folio of ninety words. 6. And be it enacted, that in aii cases where proceedings shall have been commenced under this Act against any such Bishop may clerk, it shall be lawful for the bishop of any diocese pronounce within which such clerk may hold any preferment, sentence, with the consent of such clerk and of the party Le sie complaining (if any) first obtained in writing, to further pro- pronounce, without any further proceedings, such ceedings. sentence as the said bishop shall think fit, not exceeding the sentence which might be pronounced in due course of law; and all such sentences shall be good and effectual in law as if pro- nounced after a hearing according to the provisions of this Act, and may be enforced by the like means. 7. And be it enacted, that if the Commissioners shall report that there is sufficient primdé facie ground for instituting articles and proceedings, and if the bishop of any diocese within depositions which the party accused may hold any preferment, to be tiled. 452 TAt-CH OURCH ADISCIPLINE AGie [APP. II. or the party complaining, shall thereupon tnink fit to proceed against the party accused, Articles shall be drawn up, and, when approved and signed by an advocate practising in Doctors’ Commons, shall, together with a copy of the depositions taken by the Com- missioners, be filed in the registry of the diocese of such last- mentioned bishop; and any such party, or any person on his behalf, shall be entitled to inspect without fee such copies, and to require and have, on demand, from the registrar (who is hereby required to deliver the same), copies of such depositions, on pay- ment of a reasonable sum for the same, not exceeding twopence for each folio of ninety words. 8. And be it enacted, that a copy of the Articles so filed shall be Berries oe forthwith served upon the party accused by personally _ copy of the delivering the same to him, or by leaving the same at articleson the residence house belonging to any preferment ene Peosy. holden by him; or, if there be no such house, then at his usual or last-known place of residence: and it shall not be lawful to proceed upon any such Articles until after the expiration of fourteen days after the day on which such copy shall have been so served. 9. And be it enacted, that it shall be lawful for the said last- mentioned bishop, by writing under his hand, to seared require the party to appear, either in person or by his party to agent duly appointed, as to the same party may seem appear fit, before him, at any place within the diocese, and at before him ; any time after the expiration of the said fourteen days, and to make answer to the said Articles within such time as to the and anay bishop shall seem reasonable ; and if the party shall pronounce appear, and by his answer admit the truth of the Judgmenton Articles, the bishop, or his commissary specially . sigan appointed for that purpose, shall forthwith proceed to pronounce sentence thereupon according to the ecclesiastiaal law. 10. And be it further enacted, that every notice and requisition How notice +0 be given or made in pursuance of this Act shall and requi- be served on the party to whom the same respectively aka be yelate, in the same manner as is hereby directed f with respect to the service of a copy of the Articles on the party accused. 1l. And be it enacted, that if the party accused shall refuse or neglect to appear and make answer to the said Articles, or shall App.11.] THE CHURCH DISCIPLINE ACT. 453 appear and make any answer to the said Articles other than an unqualified admission of the truth thereof, the bishop pr oceedi ing shall proceed to hear the cause, with the assistance on a hearing of three assessors, to be nominated by the bishop, before the one of whom shall be an advocate who shall have Pi8h9P. practised not less than five years in the court of the archbishop of the province, or a serjeant-at-law, or a barrister of not less than seven years’ standing; and another shall be the dean of his cathedral church, or of one of his cathedral churches, or one of his archdeacons, or his chancellor; and upon the hearing of such cause the bishop shall determine the same, and pronounce sentence thereupon, according to the ecclesiastical law. 12, And be it enacted, that all sentences which shall be pro- nounced by any bishop, or his commissary, in pur- Sentevad be suance of this Act, shall be good and effectual in law, pishop to be and such sentences may be enforced by the like means effectual as a sentence pronounced by an ecclesiastical court of lta competent jurisdiction. 13. Provided always, and be it enacted, that it shall be lawiul for the bishop of any diocese within which any such __ clerk shall hold any preferment, or if he hold no pe preferment, then for the bishop of the diocese within gauge to the which the offence is alleged to have been committed, Court of Appeal of the in any case, if he shall “think fit, either in the a BEATEN Gy instance, or after the Commissioners shall have re- ported that there is sufficient primd facie ground for instituting proceedings, and before the filing of the Articles, but not after- wards, to send the case by letters of request to the Court of Appeal of the province, to be there heard and deter- mined according to the law and practice of such seen athe court. Provided always, that the judge of the said make orders court may and he is hereby authorized and em- for expe- SS 3 5 : diting such powered from time to time to make any order or orders gyits, of court for the purpose of expediting such suits, or otherwise improving the practice of the said court, and from time to time to alter and revoke the same: provided also, y, appeal that there shall be no appeal from any interlocutory from inter- decree or order not having the force or effect of a enh definitive sentence, and thereby ending the suit in the nie Court of Appeal of the province, save by the permission of the judge of such court, 454 THE CHURCH DISCIPLINE ACT. [arp. 1. 14. And be it enacted, that in every case in which, from the : nature of the offence charged, it shall appear to any ee bishop within whose diocese the party accused may inhibit party hold any preferment, that great scandal is likely to accused from arise from the party accused continuing to perform performing : : : services of the services of the Church while such charge is under the Church, investigation, or that his ministration will be useless a: while such charge is pending, it shall be lawful for the bishop to cause a notice to be served on such party at the same time with the service of a copy of the Articles aforesaid, or at any time pending any proceedings before the bishop or in any ecclesiastical court, inhibiting the said party from performing any services of the Church within such diocese from and after the expiration of fourteen days from the service of such notice, and until sentence shall have been given in the said cause: Provided, that it shall be lawful for such party, being the incumbent of a benefice, within fourteen days after the service of the said notice, to nominate to the bishop any fit person or persons to perform all such services of the Church during the period in which such party shall be so inhibited as aforesaid: and if the bishop shall deem the person or persons so nominated fit for the performance of such services, he shall grant his licence to him or them accord- ingly ; or in case a fit person shall not be nominated, the bishop shall make such provision for the service of the Church as to him shall seem necessary ; and in all such cases it shall be lawful for the bishop to assign such stipend, not exceeding the stipend required by law for the curacy of the Church belonging to the said party, nor exceeding a moiety of the net annual income of the benefice, as the said bishop may think fit, and to provide for the payment of such stipend, if necessary, by sequestration of the living: Pro- vided also, that it shall be lawful for the said bishop at any time to revoke such inhibition and licence respectively. 15. And be it enacted, that it shall be lawful for any party who shall think himself aggrieved by the judgment pro- nounced in the first instance by the bishop, or in the Court of Appeal of the province, to appeal from such judgment; and such appeal shall be to the archbishop, and shall be heard before the judge of the Court of Appeal of the province, when the cause shall have been heard and determined in the first instance by the bishop, and shall be proceeded in in the said Court of Appeal in the same manner, and subject only to the ‘What appeals may be. APP. II.] THE, CHURCH DISCIPLINE? ACT. 455 same appeal, as in this Act is provided with respect to cases sent by letters of request to the said court; and the appeal shall be to the Queen in Council, and shall be heard before the Judicial Committee of the Privy Council, when the cause shall have been heard and determined in the first instance in the court of the archbishop. 16. And be it enacted, that every archbishop and bishop of the United Church of England and Ireland, who now is, Archbishops or at any time hereafter shall be, sworn of Her and Bishops Majesty’s Most Honourable Privy Council, shall be a memoers of member of the Judicial Committee of the Privy Qegneil to be Council for the purposes of every such appeal as members of aforesaid; and that no such appeal shall be heard eaichdaee before the Judicial Committee of the Privy Council on aj) appeals unless at least one of such archbishops or bishops under this shall be present at the hearing thereof: Provided Act. always, that the archbishop or bishop who shall have issued the commission hereinbefore mentioned in any such case, or who shall have heard any such case, or who shall have sent any such case by letters of request to the Court of Appeal of the province, shall not sit as a member of the Judicial Committee on an appeal in that case, 17. And be it enacted, that it shall be lawful in any such inquiry for any three or more of the Commissioners, or in any such proceeding for the bishop, or for any Attendance assessor of the bishop, or for the judge of the Court of ea prerens Appeal of the province, to require the attendance of tion of such witnesses, and the production of such deeds, P@Pers, &e., evidences, or writings as may be necessary; and such panpalien bishop, judge, assessor, and commissioners respectively shall have the same power for these purposes as now belong to the Consistorial Court and to the Court of Arches respeccively. 18. And be it enacted, that every witness who shall be examined in pursuance of this Act shall give his or her evidence upon oath or upon solemn affirmation Ms itnesses to - : : e examined in cases where an affirmation is allowed by law on oath, and instead of an oath, which oath or affirmation respec- to be liable to tively shall be administered by the judge of the court or emer aes his surrogate, or by the assessor of the bishop, or by a commissioner; and that every such witness who shall wilfully swear or affirm falsely shall be deemed guilty of perjury. 456 THE CHURCH DISCIPLINE ACT. [APP. II. 19. Provided always, and be it enacted, that nothing herein- before contained shall prevent any person from instituting as Provisions Voluntary promoter, or from prosecuting, in such of Act not form and manner and in such court as he might tointertere have done before the passing of this Act, any suit peer which, though in form criminal, shall have the effect suits to of asserting, ascertaining, or establishing any civil cone right, nor to prevent the archbishop of the province ‘from citing any such clerk before him in cases and under circumstances in and under which such archbishop might, before the passing of this Act, cite such clerk under and in 93 Hy. VII pursuance of a statute passed in the twenty-third ah! me * year of the reign of King Henry the Eighth, intituled, “An Act that no Person shall be cited out of the Diocese where he or she dwelleth, except in certain Cases.” 20. And be it enacted, that every suit or proceeding against Suitstobe 22Y such clerk in Holy Orders for any offence against commenced the laws ecclesiastical shall be commenced within two within two years after the commission of the offence in respect of hae which the suit or proceeding shall be instituted, and not afterwards: Provided always, that whenever any such suit or proceeding shall be brought in respect of an offence for which a conviction shall have been obtained in any court of common law, such suit or proceeding may be brought against the person convicted at any time within six calendar months after such conviction, although more than two years shall have elapsed since the commission of the offence in respect of which such suit or proceeding shall be so brought. 21. And be it declared and enacted, that the Act passed in the 27 Gant wr twenty-seventh year of the reign of His late Majesty ch. 44notto King George the Third, intituled, “An Act to pre- apply to suits yent Frivolous and Vexatious Suits in the Ecclesiastical Secitaal Courts,” does not and shall not extend to the time of persons for the commencement of suits or proceedings against ohare spiritual persons for any of the offences in the said Act named. 22. And be it enacted, that every archbishop and bishop within the limit of whose province or diocese respectively any place, dis- trict, or preferment, exempt or peculiar, shall be locally situate, shall, except as herein otherwise provided, have, use, and exercise all the powers and authorities necessary for the due execution Proviso. APP. IT.] THE CHORCH DISCIPLINE ACT; 457 by them respectively of the provisions and purposes of this Act, and for enforcing the sume with regard thereto respec- tively, as such archbishop and bishop respectively Power cf would have used and exercised if the same were Rippers not exempt or peculiar, but were subject in all respects as to exempt to the jurisdiction of such archbishop or bishop; and °F Peculiar dee places or where any place, district, or preferment, exempt or preferments. peculiar, shall be locally situate within the limits of more than one province or diocese, or where the same, or any of them, shall be locally situate between the limits of the two provinces, or between the limits of any two or more dioceses, the archbishop or bishop of the cathedral church to whose province or diocese the cathedral, collegiate, or other church or chayel of the place, district, or preferment respectively shall be nearest in local situation, shall have, use, and exercise all the powers and authorities which are necessary for the due execution of the provisions of this Act, and enforcing the same with regard thereto respectively, as such archbishop or bishop could have used if the same were not exempt or peculiar, but were subject in all respects to the jurisdiction of such archbishop or bishop respectively ; and the same, for all the pur- poses of this Act, shall be deemed and taken to be within the limits of the province or diocese of such archbishop or bishop: provided that the peculiars belonging to any archbishopric or bishopric, though locally situate in another diocese, shall continue subject to the archbishop or bishop to whom they belong, as well for the purposes of this Act as for all other purposes of ecclesiastical jurisdiction. 23. And be it enacted, that no criminal suit or proceeding against a clerk in Holy Orders of the United Church of weanittote England and Ireland for any offence against the laws jnstitutea ecclesiastical shall be instituted in any ecclesiastical except as court otherwise than is hereinbefore enacted or retell a. provided. 24, And be it enacted, that when any act, save sending a case by letters of request to the Court of Appeal of the pan X 2 : ee: a bishop province, is to be done, or any authority is to be exer- jg patron of cised by a bishop under this Act, such act shall be the prefer- done or authority exercised by the archbishop of the mae held é : : y accused province in all cases where the bishop who would party, arch- otherwise do the Act or exercise the authority is the bishop to act patron of any preferment held by the party accused, sah se Lae 458 THEAGHORCH (DISCIPLINE AGI: [APP. IT. 25. And be it enacted, that nothing in this Act contained shall Saving of be construed to affect any authority over the clergy archbishop of their respective provinces or dioceses which the and bishop’s archbishops or bishops of England and Wales may pt da now according to law exercise personally and without process in court; and that nothing herein contained shall extend to Treland. Act may te 26. And be it enacted, that this Act may be amended amended or repealed by any Act to le passed in this session. this session of Parliament. [ 459 ] Iii. THE INCUMBENTS RESIGNATION ACT oF 1871. 34 & 35 Vict., Chap. 44. An Acr to enable CLERGYMEN permanently incapacitated by Illness to resign their BENEFICES with provision of PENSIONS. [13th July, 1871]. B* it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lord’s Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. This Act may be cited for all purposes as “The Incumbents’ Resignation Act, 1871.” 2. Except where otherwise controlled by the context, pegnition the following terms shall in this Act have the following of terms. meanings, namely :— The term “benefice” shall comprehend all rectories with cure of souls, vicarages, new vicarages, perpetual curacies, donatives, endowed public chapels, parochial chapelrics, and chapelries with or without districts annexed or belonging to them: The term “ bishop” shall, with reference to any benefice, mean the bishop or archbishop for the time being within whose diocese snch benefice is locally situate, and during the vacancy of any episcopal see the term “ bishop” shall mean the arch- bishop of the province in which such see is comprehended : The term “ patron” shall, with reference to any benefice, mean the person or persons or corporation who, in case such benefice were vacant, would be entitled to present thereto; but if the right to present to such benefice shall be vested in different persons or corporations, whether jointly or by way of alternate presentations, the term patron shall (unless the context requires otherwise) comprehend both or all such different persons or corporations in whom such right of joint or alter- nate presentations shall for the time being be vested; and as regards the patrons referred to in sections 126, 127, and 128 of the Act first and second Vict., chapter one hundred and six, Short title. 460 INCUMBENTS RESIGNATION ACT, [AppP. II. the actions of or towards such patrons required by this Act shall be performed in the manner stated in such sections 126, 127, and 128, as if the said sections were here repeated and made applicable to the provisions of this Act. 8. The provisions of this Act shall apply only to Pare: those parts of Her Majesty’s dominions called England and Wales and the Channel Islands. 4. The sum assigned as a pension to a retiring Exemption | Z from penal- incumbent under this Act shall not be deemed a ties by ; Peet $1 Eliz, ch, 6, PCDS!Ou, sum of money, or benefit within the meaning 12 Anne, of the thirty-first Elizabeth, chapter six, or the twelfth st.2,ch.12, Anne, statute two, chapter twelve, or any other oat Act. 5. On a representation being made to the bishop in the form contained in Schedule A. to this Act, by the incum- How the bent of any benefice, provided he has been the incum- provisions = bent of such benefice for seven years continuously, of the Act : iS ; are to be put that he desires, on the ground that he is incapacitated into exercise. by permanent mental or bodily infirmity from the due performance of his duties, to retire from his benefice under the provisions of this Act, in that case it shall be lawful for the bishop, if he see fit, to cause a commission to be issued under his hand and seal, addressed to five persons, to be nominated as hereinafter mentioned, authorising and requiring them to inquire into and report to him upon the truth of the ground alleged, and upon the expediency of the resignation of the —_ said incumbent; and it shall be lawful for such Com- rte missioners to inquire into and report upon all such and report, matters in anywise affecting such resignation, or con- nected therewith, as they may deem necessary; and the Commissioners shall make their return to the commission within three months from the issuing of the commission, or within such enlarged time as the bishop shall, by writing under his hand and seal, from time to time direct. 6. One cf the five Commissioners shall be the archdeacon of an archdeaconry or the rural dean of a rural deanery of erie the diocese wherein the benefice is situate, as the sioners. bishop may determine; one other of the Commissioners shall be an incumbent of the same diocese, nominated by the incumbent wishing to retire; one other of the Commis- sioners shall be an incumbent of the same diocese, nominated APP. 111.] JZVCUMBENTS RESIGNATION ACT. 461 by the bishop ; one other of the Commissioners shall be a magistrate being in the commission of the peace for the county wherein the benefice is situate, and a member of the Established Church of England, nominated by the person who has presided as chairman of the last-preceding quarter-sessions for the county or division of the county, or if there be no such person, then by the tord- lieutenant of the county; and the remaining Commissioner shall be nominated by the patron, or, in the case of alternate patronage, jointly by both or all of the patrons, or in case of difference, by the patron entitled to the next presentation. 7. Notice of the intention to issue such Commission shall be delivered or sent by the bishop to the incumbent, patron, chairman of quarter-sessions, or lord-lieutenant Notice of of the county, as the case may be, and the church- sp aph wardens of any such benefice respectively ; and such Commission. Commission shall not issue until the expiration of one month from the delivery or sending of such notices. The notice to the patron and chairman of quarter-sessions or lord-lieutenant shall require such patron and chairman and _lord-lieutenant respectively to nominate a Commissioner by sending his name and address in writing to the bishop within one month from the date of such notice; and if such patron and chairman or lord-lieutenant respectively shall omit to nominate a Commissioner within the time limited, the bishop may nominate a Commissioner instead of such patron, chairman, or lord-lieutenant respectively ; and when and so soon as such Commission shall be issued, notice of such Commission shall be delivered or sent by the bishop to each Commissioner and to the churchwardens of the benefice. Service by prepaid letter shall be sufficient service of all notices and documents under this Act. 8. The Commissioners shall give seven days’ notice of their first meeting, affixed to the usual place of public notices in the church of the benefice. Three of the Com- Commission- missioners shall constitute a quorum, and the Com- ene missioners, at a meeting of them duly constituted, may on oath. examine on oath, if they see fit, the persons who are desirous or willing to be examined by them, touching any matter relating to the object of the Commissioners, and may administer the oaths necessary for that purpose; and the Commissioners shall in their return to the Commission certify all such matters and things as shall appear to them material, together with their opinion as to the expediency or otherwise of the proposed resignation, and if they, 462 INCUMBENTS RESIGNATION ACT. [appP. It. or at the least any three of them, deem the resignation expedient, shall specify the amount of pension which in their opinion ought to be allowed out of the revenues of the benefice to the retiring incumbent: provided, that in no case shall such pension exceed one-third part of the annual value of the benefice resigned. 9. If the return to the commission shall certify the resignation to be expedient, and the patron shall in writing have Who tocon- consented, or shall not within one calendar month peepee thereafter in writing refuse his consent thereto, the nation. bishop shall proceed as is hereinafter provided; but if the patron shall so refuse his consent, the return to the commission shall be laid before the archbishop of the province, who shall, within one calendar month, give his decision in writing whether such resignation shall or shall not be accepted, which decision shali be final. If the patron shall have declared his consent or have not refused it as aforesaid, or if the archbishop shall decide that the resignation shall be accepted, the bishop shall cause a declaration as in Schedule B. to be prepared, inserting therein the amount of pension so allowed out of the revenues of the benefice to the retiring incumbent, and the day, not being less than one month after the date of the declaration, when the incum- bency shall be void and the pension shall commence, and the times of payment, not being oftener than twice a year, and shall sign the same in triplicate in the presence of one witness, and shall cause one copy thereof to be delivered or sent prepaid by post to the patron of the benefice, and another copy thereof to be delivered or sent in like manner to the incumbent of the same, and the third copy to be filed in the registry of the diocese, and such declaration shall be the title-deed of the retiring incumbent to the pension assigned therein to him: provided that no benefice shall at any time be subject to the payment of more than one pension. 10. The pension so allowed shall be a charge upon the revenues of the benefice, and shall be recoverable Pension to be as a debt at law or in equity from the incumbent of aapedh the said benefice by the retired clerk, his executors, administrators, or assigns, but such pension shall not be transferable at law or in equity. Ataealoaite 11. The annual value of a benefice for the purposes of benefice, Cf this Act shall be the net annual value after deduct- ing al rates, taxes, and charges assessed upon and Limitation of pension. APP. 111.] JVCUMBENTS RESIGNATION ACT. 463 payable out of the benefice, exclusive of the parsonage, vicarage, or other place of residence of the incumbent. 12. After the filing of such declaration as aforesaid, the benefice shall, tpso facto, be vacant on the day fixed in such Patron'to declaration; and the patron thereof shall be entitled present to to present a clerk for the same as if it had been resigned vacated by the death of the incumbent thereof; and the eal clerk who shall be collated, instituted, or licensed thereto shall be entitled to the revenues of the same, subject nevertheless to the payment to the retired clerk of such sum as may be allowed to him as pension; and such clerk shall have the same right and claim in respect of dilapidations as if the benefice had been vacated by the death of the incumbent thereof. 13. Every pensioned clerk shall remain amenable to ecclesiastical discipline, and be liable to suspension from or forfeiture of pension for offences which would have involved Pensioned suspension from or forfeiture of the benefice had he Slerk é : ‘ amenable to remained incumbent thereof; and proceedings under geelesiastical the Act three and four Victoria, chapter eighty-six, discipline. intituled “An Act for better enforcing Church Dis- cipline,’ may be taken against every offending pensioned clerk in the same manner as if he had remained incumbent of the benefice, and in the same manner in all respects as if the offence alleged to have been committed had been committed within the said benefice: Provided always, that in case any offending pensioned clerk shall reside elsewhere than in England or Wales or the Channel Islands, it shall be lawful for the bishop, by a letter or summons under his hand, with the consent of the archbishop of the province, to be signified by his countersigning such letter or summons, addressed and sent prepaid by post to such pensioned clerk at his last-known place of residence, to require such clerk to attend in England and appear to any proceedings which may be instituted against him for any such offence by him committed or alleged to have been com- mitted, and to appoint a place in England where service of all subsequent process, articles, and documents may be made, and service of such process, articles, and documents at such place shall be sufficient; and if such pensioned clerk shall neglect to appear to such proceedings within three calendar months after such letter or summons shall have been sent to him as aforesaid, and to appoint such place for service, such proceedings may be prosecuted in his absence. 464 INCUMBENTS RESIGNATION ACT. [APP. Ul. 14. It shall. in no case be lawful to assign the house of residence of the incumbent as any part or the whole Parsonage of the pension for a retired clerk; but such house of She es new residence shall belong to and be enjoyed by the incum- incumbent. bent of the benefice as if the benefice were free from all claim by a retired clerk. 15. The right of a retired clerk to the pension assigned to him shall cease upon the enrolment of any deed of re- Pensionto linquishment by the clerk under the thirty-third and seine roe thirty-fourth Victoria, chapter ninety-one, or on and certain cir- ®fter the day on which he is admitted to another cumstances. benefice; and in the event of any retired clerk under- taking clerical duties elsewhere than within the benefice from which he retired, it shall be lawful for the incumbent of the benefice to bring the same to the notice of the bishop, who shall cause inquiries to be made into the facts; and upon his being satisfied that such retired clerk is or has been undertaking such clerical duties, and receiving a remuneration for the same, it shall be competent for such bishop to determine whether the pension payable to such retired clerk shall cease or be diminished in any and what proportion, or for any and what period: Provided always, that such retired clerk may, within one month after a notice of the determination of the bishop shall have been sent to him by post, appeal to the archbishop of the province, who shall confirm, annul, or vary the decision of the bishop as to such arch- bishop shall appear just and proper; and the cessation of or the alteration (if any) made in the pension shall be stated by endorse- ment on the declaration filed in the registry, and the title of the retired clerk to receive and the liability of the existing incumbent to-pay a pension out of the revenues of the benefice shall cease or be altered in accordance with such endorsement, and a copy of such endorsement signed by the bishop shall be delivered on application to the incumbent and patron of the benefice. 16. If a commission under this Act be issued on the representa- ee, tion of an incumbent, and the return thereto shall state of inquiry. that in the opinion of the Commissioners the ground for resignation of the incumbent is not proved, or the retirement of the incumbent is not expedient, then in such case all the expenses which shall have been incurred by or with the sanction or by the direction of the bishop in or towards carrying the provisions of this Act into execution shall be defrayed by the APP, 111.] SVCUMBENTS RESIGNATION ACT. 465 incumbent, and shall be recoverable from him by or for the bishop as debts in and by course of law. If the return to the commission issued on the aforesaid representation shall state that in the opinion of the Commissioners the retirement of the incumbent is expedient, then one moiety of the expenses incurred by or with the sanction or under the direction of the bishop in or towards carrying the provisions of this Act into execution shall be defrayed by the incumbent whose retirement is recommended, and the other moiety shall be a charge on the revenues of the benefice, and shall be recoverable as a debt at law or in equity from the incumbent thereof by or for the bishop. 17. The costs incurred by any secretary of a bishop and any registrar of a diocese in carrying into execution the provisions of this Act shall be fixed and regulated in Costsi ae accordance with and in the manner specified in the thor dd &eo provisions of the 181st section of first and second Vict., chapter one hundred and six, as if the duties required of such secretary and registrar under this Act had been specified in the said recited Act. 18. The right of resignation and of doing any act leading to, connected with, or consequent on such resignation by this Act given to an incumbent, may, if the incumbent rage oer i eek Ae unatic be a lunatic found such by inquisition, be exercised in his name and on his behalf by the committee of his estate. SCHEDULE A. To the Right Reverend the Lord Bishop of its , being now, and having heen for the last seven years continuously, ‘rector [vicar, or incumbent] of , within your lordship’s diocese, hereby represent to your lordship, that I, finding myself incapacitated, by permanent mental or bodily infirmity (us the case may be), from the due performance of the duties of my office, am desirous of resigning the aforesaid benefice, on being allowed to receive a pension out of the revenues of the same. Accordingly, I respectfully request your lordship to issue a commission under the provisions of “ The Incumbents’ Resignation at 466 INCUMBENTS RESIGNATION ACT, [APP. IL Act, 1871,” to inquire and report, as provided by the said Act, upon the expediency of my proposed resignation. As witness my hand, this day of in the year of Our Lord 18 (L.8.) SCHEDULE B. Whereas on the day of , in the year of Our Lord 18 , a commission was issued by us, the Bishop of , under the provisions of “ The Incumbents’ Resignation Act, 1871, oe on the representation of the Rev. incumbent of , within the diocese aforesaid, and in their return thereto the Commissioners stated that in their opinion the resignation of the said was expedient, and that a pension of pounds per annum out of the revenues of the said benefice should be allowed to the said Rey. on his retirement therefrom : And whereas the patron has consented, or not refused his consent, to such resignation, [or] the archbishop has determined that such resignation shall be accepted : We , by Divine permission Bishop of do declare the said benefice void of the person of the said Rey. , to all intents and purposes of the law, on and after the day of subject nevertheless to the payment by half-yearly payments, from the day of next, out of the revenues thereof, of the said yearly pension of pounds, the first of which half-yearly payments shall be payable on and future half-yearly payments at periods of six months from such day, or such other sum as may hereafter be assigned under the provisions of the said Act under the said for his life, or such less period as hereafter may be assigned by law and endorsed hereon. As witness our hand this day of in the year 18 Witnesses to the signature of the bishop [The Inland Revenue Commissioners ruled in 1889 that this deed is not liable to stamp duty.] [ 466* ] THE INCUMBENTS RESIGNATION ACT oF 1887. 50 & 51 Vict., Chap. 23. An Act to amend:the Incumbents Resignation Act, 1871. [8th August, 1887.] jE it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1, This Act may be cited for all purposes as the Incumbents Resignation Act, 1871, Amendment Act, 1887, and the ; Incumbents Resignation Act, 1871 (hereinafter called Shorvititles “the principal Act ”), and this Act may together be se ho: ’ 5 ch, 44, cited as the Incumbents Resignation Acts, 1871 and 1887. 2. This Act shall be construed together with the principal Act, and the provisions herein contained shall have effect Gousireneia as though they had been fully and expressly included o¢ aot. in the principal Act. 3. The expression “terminable mortgage” in this Act means any mortgage created for securing the repayment of any Lest loan by annual instalments, payments in the nature ne of a rentcharge, or otherwise, in a limited number mortgage.” of years. 4, In the case of every pension awarded after the passing of this Act the amount of every half-yearly payment on account of such pension shall vary and shall from time Pensions to to time be regulated by the averages published, under rite wa the provisions of an Act passed in the sixth and seventh ages, years of His Majesty William the Fourth, chapter seventy-one, in the month of January next preceding the date of every such half-yearly payment, except that, if no part of the income of the benefice is derived from tithe-rentcharge or glebe- lands, then the pension shall not be subject to variation. 467 INCUMBENTS RESIGNATION ACT. [appP. II. 5. Section eight of the principal Act shall be read as if the fol- lowing words were added at the end of the section: Amendment “or be an amount which shall not leave a sufficient ae ae income to secure the due performance of the services s. 8. ’ of the church, according to the scale of stipends set forth in the eighty-fifth section of the Act of the first and second Victoria, chapter one hundred and six;” and section eleven shall be read as if worded as follows: “The annual value of a benefice for the purposes of this Act shall be the net annual value, exclusive of the parsonage, vicarage, or other place of residence of the incumbent, after deducting all rates, taxes, and charges assessed upon and payable out of the benefice, which charges shall include the salary of any curate who is compulsorily employed, and any annual payments in respect of any terminable mortgage having at the time of the sitting of the said Commission more than two years to run.” 6. If a retired clerk shall on retirement have become liable to the payment to his successor of any sum on account of Seti ios dilapidations under the Ecclesiastical Dilapidations pension : : against sum ct, 1871, and shall not have paid such sum in manner due for di- in the said Act mentioned, it shall be lawful for the lapidations. incumbent of the benefice for the time being to with- 84 & 35 Vict. 1 o1d the amounts due from time to time in t of eas. 10 respect o any pension granted under the principal Act and to apply the same in discharge of the sum due for dilapidations as aforesaid until the whole debt shall have been discharged. Provided that the amount so withheld in any one year shall not exceed one-half the total amount of the pension for such year without the consent of the bishop of the diocese in which such benefice shall be situate. by 467%") IV. THE ECCLESIASTICAL DILAPIDATIONS ACT or 1871. 34 & 35 Vict., Chap. 43. An Aor for the Amendment of the Law relating to ECOLESIASTICAL DILAPIDATIONS. [18th July, 1871.] HEREAS as well for the better sustentation of houses of residence, chancels, and other buildings which incumbents of ecclesiastical benefices and other ecclesiastical persons are by law or custom bound to maintain in repair, as also for the relief of such persons and their representatives, it is expedient to amend the law relating to ecclesiastical dilapidations : Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Preliminary. 1. This Act may be cited as “The Ecclesiastical Dilapidations Act, 1871,” and shall come into operation as on and from the first day of August one thousand eight hun- dred and seventy-one, which day is in this Act referred to as “ the commencement of this Act.” 2. This Act shall not extend to Scotland or Ireland. Extent. 3. The term “ benefice” in this Act shall comprehend all rectories with cure of souls, vicarages, perpetual curacies, dona- ae tives, endowed public chapels, and parochial chapel- pp ries, and chapelries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel. The term “ patron” shall, with reference to any benefice, mean the person or persons or corporation who, in case such benefice were vacant, would be entitled to present thereto: but if the right to present to such benefice shall be vested in different persons or Short title. 4€8 ECCLESIASTICAL DILAPIDATIONS ACT. [APP. Iv. corporations, whether jointly or by way of alternate presentations, the term “ patron ” shall (unless the context requires otherwise) com- prehend both or all such different persons or corporations in whom such right of joint or alternate presentations shall for the time being be vested; and as regards the patrons referred to in sections 126, 127, and 128 of the Act 1 & 2 Vict. chapter 106, the actions of or towards such patrons required by this Act shall be performed in the manner stated in such sections 126, 127, and 128, as if the said sections were here repeated and made applicable to the provisions of this Act. The term “surveyor” shall mean the official surveyor elected under this Act, except where otherwise described. The term “ governors” shall mean the Governors of the Bounty of Queen Anne for the augmentation of the maintenance of the poor clergy. The term “the archdeacon” shall mean the archdeacon of the archdeaconry within which the benefice is situated with regard to which the provisions of this Act are sought to be applied. The term “the rural dean” shall mean the rural dean of the rural deanery within which the benefice is situated with regard to which the provisions of this Act are sought to be applied. 4. The provisions of this Act respecting buildings belonging to a benefice shall apply to all such houses of residence, What chancels, walls, fences, and other buildings and things included as : : buildings. | 28 the incumbent of the benefice is by law or custom bound to maintain in repair. 5. For the purposes of this Act any building belonging to a benefice shall be deemed to be within the diocese of Pine the bishop under whose jurisdiction the benefice is, diocese. although the building be not in fact locally situate within that diocese. 6. During the vacancy of a see, the powers under this Act which may be exercised by a bishop shall be exercised by the Vacancy of = yardian of the spiritualities of the diocese. Where a see, &c. : Senet oe j bishop is disabled from exercising in person the func- tions of his office, those powers shall be exercised by the person lawfully empowered to exercise his general jurisdiction in the diocese. P ' 7. The powers which may be exercised under this SrAMbishive Act by a bishop shall be exercised by an archbishop in and bishops. relation to his diocese. APP. tv.] ECCLESTASTICAL DILAPIDATIONS ACT. 469 Surveyors of Dilapidations, 8. Within three months after the commencement of this Act, a surveyor or surveyors of ecclesiastical dilapidations shall be appointed in and for each diocese by the arch- S¥rveyors : x : or each deacons and rural deans (if any) of such diocese, as- giocese. sembled at a meeting convened for that purpose, at which the bishop of the diocese, or in his absence the senior arch- deacon present, as to the date of his appointment as archdeacon, shall preside. Every:such appointment may be general or for a limited term, and may be for the whole or part of the diocese as shall be stated in the appointment, and shall be subject to the ap- proval of the bishop of the diocese; the bishop shall have power to hear any complaint against the surveyor of neglect, breach of duty, or unfitness for his office, and to remove him from his office after giving him an opportunity of showing cause to the contrary. No surveyor appointed under the provisions of this Act shall have any claim to compensation in consequence of the repeal or any alteration of this Act, 9. On a vacancy occurring in the office of surveyor, a fit person shall in like manner be appointed within three months from the occurrence of such vacancy. 10. The surveyor shall be paid according to a rate of charges, and not by way of salary; and such charges, and also the fees of the bishop’s secretary and registrar for Payment of work done in pursuance of this Act, shall be fixed in POR a". 4 : y fixed rate each diocese by the bishop, the archdeacons, the rural of charges. deans (if any), and the chancellor for the time being of such diocese, assembled at a meeting convened for that purpose, who may from time to time, at a meeting convened for that pur- pose, revise and alter such rate of charges and fees; but if any such alteration of surveyors’ charges be made after the buildings belong- ing to any benefice shall have been inspected pursuant to this Act by a surveyor, the payment of such surveyor for such inspection, and for all subsequent proceedings after such inspection with reference thereto, shall be according to the rate of charges in fores at the time of making such inspection. 11. It shall not be lawful for the surveyor to be beneficially interested, directly or indirectly, by himself or by any partner or otherwise, in any work or contract to be arth, executed or entered into by any person or persons jnterested (except any public company of which he may happen in contracts, eir successors. avo ECCLESIASTICAL DILAPIDATIONS ACT, [apPaty. to be a member or shareholder, but not manager or director) under the provisions of this Act. Inspections at other Times than when a Benefice is vacant. 12. It shall be lawful for the bishop, on the complaint in writing of the archdeacon, or of the rural dean, or of the Inspection patron of a benefice, that the buildings of the benefice peeve at wre in a state of dilapidation, or at the request of the request of | incumbent, to direct the surveyor to inspect the build- sve re ings of the benefice, or any of them: Provided always, patron, or’ that a copy of such complaint shall be forwarded by incumbent. the bishop to the incumbent, or the sequestrator (if any) one month before such inspection shall be ordered. 13. As regards a benefice under sequestration at the time of the commencement of this Act, the bishop may at any a es time during such sequestration, and as regards a bene- hack panics! fice thereafter put under sequestration, the bishop tration. may within six months after such sequestration is- sued, direct the surveyor to inspect as aforesaid, and such inspection shall be renewed in every fifth year while such benefice shall be under sequestration. 14. The surveyor shall as soon as conveniently may be after such ern Of direction inspect, and within one month after inspec- reportand tion send to the bishop a report of the result of the service on came, and shall send a copy to the incumbent, and to incumbent. the sequestrator, if any. 15. Where the surveyor shall report that any works are needed for putting into repair any dilapidated building be- longing to a benefice, he shall report,— 1. What works are so needed, specifying the same in detail: 2. What he estimates to be the probable cost of such works: 3. At or within what time or times such works respectively ought to be executed. 16. The incumbent, or the sequestrator (if any), may within one wa month after the sending the said copy, state in writing epee to the bishop objections to the report on any grounds bent, and of fact or law; and in such case the bishop may, if he ee shall think fit, at the expense of the party objecting, : direct a second report to be made by another surveyor, or take the opinion of counsel upon any question of law, and the Its contents, App. Iv.] ECCLESTASTICAL DILAPIDATIONS ACT, 47% bishop shall, after due consideration of the whole matter, givo his decision in writing. If no objections to the report shall be made, then, at the end of the period limited for making objections thereto, the report shall be final; and if objections shall have been made, then the report, as modified by the bishop’s decision, shall be final. 17. It shall be lawful for the incumbent to borrow, and for the governors, if they shall think fit, upon his request , ; ; neumbent and with the consent of the bishop and patron, to may borrow lend, upon the security of the possessions of the bene- from the fice,— governors. (1.) The whole or any part of the sum stated in the final report as the cost of the works: (2.) Such sum as the governors shall think fit in respect of costs and expenses. 18. The sum (if any) lent by the governors shall be placed in their books to the credit of an account to be entitled “The Dilapidation Account of A.B., Incumbent of The gover- ;’ and out of the said sum the governors es shall forthwith pay and discharge the costs and ex- ARR penses of and incidental to the preparation and com- pletion of the security. 19. In case of a benefice not under sequestration, it shall be the duty of the incumbent to execute the repairs pre- scribed in the final report in the manner and at or Incumbent Aer : 2 - ; -,,: to execute within the time or times therein prescribed, or within woyxs, such extended time or times as the bishop shall by writing under his hand direct. 20. In the case of a benefice under sequestration, the sum stated in the final report as the cost of the works shall be a charge upon the moneys from time to time received by sequestra- the sequestrator in respect of the net profits or income tors to pay of dadonetes in priority to all other charges, except pases oo the stipends of the curate or curates appointed to to the perform the duties attaching to the benefice; and the Governors, sequestrator shall, so long as the sequestration shall remain in force, pay so much of such profits as shall remain in his hands after payment of the said stipends to the governors, until the whole of the sum stated shall have been paid. : 21. Moneys paid to the governors in respect of a benefice under sequestration shall be placed in their books to the credit of an 472 ECCLESIASTICAL DILAPIDATIONS ACT. [APP. Iv, account, to be called “ The Dilapidation Account of C.D., Sequestrator of ”. The repairs may be executed Application from time to time as the moneys are received by the eee governors, or be deferred, with the consent of the bishop, questrators. until the whole sum required to be paid by the sequestrator to the governors shall have been paid, and the repairs shall be paid for out of the moneys standing to the credit of the said account in like manner as in the case of repairs executed by an incumbent; and if any benefice under sequestra- tion shall become vacant before such repairs shall have been com- pleted, an inspection and report shall be made by the surveyor, and proceeded with in the same manner as if such benefice had not been under sequestration; and the amount (if any) which shall have been paid to the governors by the sequestrator in respect of repairs, and not expended, shall be carried to the dilapidation ac- count of the new incumbent in reduction of the amount payable by the late incumbent, his executors or administrators. 22. Where complaint shall be made by the archdeacon, or the rural dean, or the patron of the benefice as aforesaid, if Provisoin the incumbent shall, within twenty-one days after cae oe notice of such complaint shall have been given as patron make aforesaid, inform the bishop in writing that he intends complaint forthwith to put his buildings in proper repair, the x ee bishop shall allow the incumbent a reasonable time to execute such repairs, and on being satisfied that such repairs have been fully executed shall abstain from further pro- ceedings; but the bishop may during the progress and after the completion of such repairs direct the surveyor to inspect and report thereon, and if the surveyor shall report that the repairs are insufficient, direct the surveyor to inspect and report upon such repairs; and if he shall report that further repairs are necessary, then the powers of this Act shall or may be put in force in like manner as if the incumbent had not given notice that he intended himself to do the repairs. 23. If-any incumbent shall refuse or neglect duly to execute in : the prescribed manner, and at or within the prescribed rie time or times, any prescribed repairs, it shall be law- neglect, &c. ful for the bishop to raise the sum prescribed in the ihe final report, if not otherwise provided by the in- ‘ cumbent, together with all costs incurred by the bishop in relation thereto, by sequestration of the profits of the benefice, APP. Iv.] ECCLESIASTICAL DILAPIDATIONS ACT. 473 and the provisions contained in sections 20 and 21 with respect to the payment of the profits of the benefice to the governors and the application of the money shall be applicable to this section. 24. No report, order, or proceedings thereunder shall be affected by a vacancy occurring in the benefice before the com- mencement or pending the execution of the works pre- anne scribed by the report; but such report shall be acted eh feck on as if such vacancy had not occurred, subject never- report, &e. theless to any modification which may be made therein in consequence of any.report of the surveyor after his inspections made in consequence of such vacancy, in pursuance of provisions hereinafter specified. Houses of Residence of Archbishops, Bishops, Deans, and Canons. 25. At any time after the commencement of this Act, it shall be lawful for any archbishop or bishop, and for the holder of any dignity or office in any cathedral or collegiate Archbishop church, to employ any surveyor, approved for the pur- Peas othe pose by the Ecclesiastical Commissioners for England, inspecticn. to inspect and examine any house of residence or other building appurtenant thereto of such archbishop or bishop, or belonging to any such dignity or office which he is by law or custom bound to maintain in repair at his own personal cost. 26. Where, in the opinion of such surveyor, founded on any such inspection, any works are needed for putting into a proper state of repair the house of residence or other building inspected, he shall’ report what works are so needed, and at or within what time or times such works or any particular part or parts thereof ought to be executed. 27. A certificate of such surveyor that such works have been duly executed, which shall be filed in the registry of the diocese in duplicate, and one of the duplicates Evidence of whereof shall be delivered or sent by the registrar to ciate of the archbishop or bishop to whose see, or to the person to whose dignity or office, as the case may be, the certificate relates, shall be conclusive evidence of the due execution of such works. 98. If the archbishopric or bishopric, dignity or office, to which the certificate shall relate shall become vacant within the period of five years from the filing of such certificate, the arch- bishop or bishop, or the holder of the dignity or office, as the case Works to be prescribed. 474 ECCLESIASTICAL DILAPIDATIONS ACT. [APP. 1¥, may be, or his representatives respectively, shall not, as to such : house of residence or other building, be liable to any Protection of ; Le rea i : : : archbishops Claim for dilapidations in respect of such’ archbishop- or bishops ric or bishopric, dignity or office, either under this iene Act, or at the suit of any successor independently of this Act, except for wilful waste and loss or damage by fire; but this exemption from liability shall be subject to the like condition in regard to insurance against fire as is contained in the forty-seventh section in the case of the incumbent of a benefice. As to vacant Benefices, 29. Within three calendar months after the avoidance of any benefice after the commencement of this Act, unless Inspection the late incumbent shall under this Act be free from of pees. all liability to dilapidations, the bishop shall direct the on a vacaney; Stirveyor who shall inspect the buildings of such bene- notice to fice, and report to the bishop what sum, if any, is officiating ; a aie oy ate : clergyman, Yequired to make good the dilapidations to which the late incumbent or his estate is liable; and the late incumbent, his executors or administrators, shall have right of entry at reasonable hours, with his or their surveyor, upon the premises of the vacated benefice until such time as the question of the dilapidations has been finally settled. 30. The surveyor shall send a copy of the report to the new incumbent forthwith (or as soon as he shall Report of inspection have been instituted or admitted), and a copy to be sent to bishop, ; : new incumbent, also to the late incumbent, his executors or and late incumbent, administrators. The surveyor shall certify to oo representa~ the bishop when and to whom and in what manner each copy was sent. 81. The report shall state what works (if any) are, in the opinion of the surveyor, needed, specifying the same in detail, and may state any special circumstances, and shall state what sum, in the opinion of the surveyor, will be required to make good the dilapidations. 32. The new incumbent and the late incumbent, his executors or administrators, may state in writing to the bishop ob- jections to the report on any grounds of fact or law, and in such case the bishop may, if he shall think fit, at tho expense of the party objecting, direct a second report to be Contents of report. Objections to the report. APP. IV.] ECCLESTASTICAL DILAPIDATIONS ACT. 475 made by some competent person, or take the opinion of counsel upon any question of law. 33. Such objections shall be transmitted to the bishop within one month after the sending of the copy of the report to the party by whom they are made, but the bishop may Time for receive an objection transmitted at a later period, if for oes ee any special reason he shall think fit to do so. 34. The bishop shall in uncontested cases, as soon as con- veniently may be after the time for the transmission of objections has expired, and in contested cases after he rane consideration of the whole matter, make an order a Re oer stating the repairs and their cost for which the late incumbent, his executors or administrators, is or are liable. 35. The order shall be signed by the bishop in triplicate, and he shall send one copy to the new incumbent, another to the late incumbent, his executors or administrators, Delivery of and the other to the registrar of the diocese, to be filed bishop’s in the registry, and the registrar shall send a copy ey thereof to the governors. 36. The sum stated in the order as the cost of the repairs shall be a debt due from the late incum- far diletine bent, his executors or adminisirators, to the new tion to bea incumbent, and shall be recoverable as such at debt due. law or in equity. 37. The new incumbent shall, as and when he shall : recover the said sum or any part thereof, forthwith pay pre eM ae the amount recovered to the governors; and if and pay over the whenever he shall recover any further part of the said obaniaanae sum, he shall in like manner forthwith pay to the orate *, governors the further part so recovered. 88. It shall be lawful at any time for the new incumbent to borrow, and for the governors, if they shall think fit, upon his request and with the consent of the bishop The gover- and patron, to lend, upon the security of the pos- nors may sessions of the benefice,— eee _ (1.) The whole or any part which the governors the security shall not have received from the new in- of the cumbent of the sum stated in the order as the ie ea cost of the repairs; and (2.) Such sum as the governors shall think fit in respect of costs - and expenses, 476 ECCLESIASTICAL DILAPIDATIONS ACT, [app. tv. 39. The amount received by the governors from the new in- cumbent, together with the sum (if any) lent by them The go- to him as aforesaid, shall be placed in their books to Deep dic the credit of an account to be entitled “ The Dilapida- lapidation | tion Account of A.B., incumbent of ris account. and from the sum (it any) so lent by them, they can forthwith pay and discharge the costs and expenses of and incidental to the preparation and completion of the security. 40. The new incumbent shall, within six calendar months next after the date of the order (or within such extended New incum- period as hereinafter mentioned), pay to the governors, bent topay to be carried to the credit of the said account, such the balance ; : to the sum (if any) as, together with the sums theretofore governors. carried to the credit of the said account, will make up the sum stated in the order as the cost of the repairs. 41. The bishop, if from any special circumstances he think fit, may, upon the application of the new incumbent, en- Extension of Jarce the period within which such incumbent is re- time within : : : which such quired to pay such last-mentioned sum for any period payment not exceeding twelve months from the date of the must be : : ainda. order; and may authorise the payment of such amount, either in one sum, or by instalments of such amounts and on such days (not being beyond the end of such twelve months) as the bishop shall determine. 42. The new incumbent shall cause the repairs specified in the Repairs to order to be executed within eighteen months after the be executed ate of the order, unless, with the consent of the within patron and bishop, he shall decide upon rebuilding the premises in question, in which case the money stand- ing to the credit of his dilapidation account in the books of the governors shall be applied towards the cost of the new building. 43. If the moneys payable under this Act to the governors by the new incumbent of any benefice shall not be Payment ofmoney paid by such incumbent before the expiration to Governors of Queen Anne’s of the time specified in this Act for such pay- Bounty bynewin- ment to be made, the governors shall give notice hakees ih Ae. thereof to the bishop, and it shall be lawful for tration. y Req the bishop to raise the amount thereof by sequestration of the profits of the benefice, App, Iv.] ECCLESIASTICAL DILAPIDATIONS ACT. 477 Execution of Works, 44. Where money is standing to the credit of the dilapidation account of an incumbent required by this Act to exe- cute repairs, such repairs shall be paid for as follows ; Upon execu- that is to say, when and as the surveyor shall certify kept ye and that a specified sum ought to be paid to any person or be paid by persons in respect of such works, such certificate shall, rt pba ara f when countersigned by the bishop, be delivered to the saebasena’ governors, who shall, on the receipt of such certificate, certificate. cause the amount therein specified to be paid to the person or persons named therein as entitled to receive the same out of the moneys standing to the credit of the said dilapidation account, and so, from time to time, until the whole of the repairs shall have been executed, or the moneys standing to the credit of the said account shall have been exhausted; and if any further moneys shall be required for the completion of such repairs, the same shall be paid by the incumbent. 45. The repairs to be executed in the case of a benefice under sequestration, and the repairs to be executed in the case of the refusal or neglect of the incumbent to exe- xeon cute the same (including rebuilding or repairing in rebate ts case of fire), shall be executed under the direction of under se- the surveyor, who may employ any builders or con- ¥estration, d : or on refusal tractors to execute the same according to a specifica- of incumbent tion and contract to be prepared by such surveyor ; and the builder or contractor executing such works shall be paid for the same as the works proceed, and the surveyor shall from time to time certify the sum to which the builder or contractor is entitled in respect thereof, which certificate shall, when countersigned by the bishop, be delivered to the governors, who shall, on receipt of the same, cause the amount therein specified to be paid to the person or persons named therein as entitled to receive the same out of the moneys standing to the credit of the said dilapidation account, and so from time to time until the whole of the repairs shall have been executed, or the moneys standing to the credit of the said account shall have been exhausted ; but neither the governors, the bishop, nor the patron shall incur any liability at law or in equity to any builder or con- tractor, or otherwise, under or by virtue of any such specification or contract, further than the obligation on the part of the governors 478 ECCLESIASTICAL DILAPIDATIONS ACT. [APP. Iv 1o pay the moneys standing to such dilapidation account in manner aforesaid. , 46. When the repairs shall have been finished, the surveyor, if the same shall be completed to his satisfaction, shall Final certifi- give a certificate of the same having been completed, Sion otal which certificate shall be in triplicate; and one of the works, triplicates shall be delivered to the incumbent or the sequestrator, another registered in the registry of the diocese, and the third delivered to the governors, and such certi- ficate shall be conclusive evidence of the due execution of the prescribed works. boar oatptig 47. No further or subsequent report shall be made incumbent 28 to the buildings belonging to the benefice, and from further specified in the last-mentioned certificate (except at peo. for the request of the incumbent himself), before the end sede Se ayes oidive years from the filing of the said certificate. If such benefice shall become vacant within such period of five years, the incumbent or his representatives shall not be liable to any claim for dilapidations in respect of the buildings specified in the certificate, except for wilful waste. The exemption from liability under this present section shall in no case apply to loss or damage by fire where the incumbent at the time of filing the certificate of the due execution of the works shall not have insured, to the satisfaction of the governors, the house of residence and buildings belonging to the benefice in some fit office against loss or damage by fire, in at least three-fifths of the value thereof, and who shall not keep such house and buildings so insured during such period of five years, or until the earlier avoidance of the benefice. 48, The charges of the surveyor for his inspections and reports and certificates made or given by him under the pro- Payment of visions of this Act, and also the fees of the bishop’s suNtey ore secretary and registrar, shall, except as otherwise pro- and certifi- vided by this Act, be paid by the incumbent or by the cates, sequestrator, and shall be a debt due from him or them to the surveyor, secretary, and registrar respectively, and recoverable as such at law and inequity. The sum (if any) which shall have been advanced by the governors in respect of surveyor’s charges shall be paid by them to the surveyor. 49, If an inspection shall have been made of any benefice under this Act, and the incumbent liable to execute the prescribed repairs Arp. Iv.] ECCLESIASTICAL DILAPIDATIONS ACT. 479 shall vacate such benefice before the surveyor shall have signed a certificate of the completion of the same, such incumbent, his executors or administrators, shall Berens be liable to the payment of all moneys in respect Davi of such repairs (not previously paid by him to the during re- yovernors in respect thereof), and of the surveyor’s PAU® Habi- : 3 . : , y of out- inspection, report, and certificate, which such incum- going incum- bent would respectively have been liable to pay in case bent or his he had not vacated, which moneys shall be a debt due Pega tye from such incumbent, his executors or administrators, to the next incumbent, and shall be recoverable as such at law or in equity; and such next incumbent, whether he shall recover the same or not, shall be liable to pay all such moneys in the same manner as his predecessor in such incumbency would have been liable to pay in case he had continued to be the in- cumbent of such benefice; and such next incumbent shall be allowed, with the consent of the patron and bishop, to borrow on the security of the profits of the benefice such sum as he shall fail so to recover, towards meeting such payments as the governors may be willing and able by law to advance on loan for that purpose. 50. If the incumbent liable to execute repairs shall be desirous of altering or remodelling the buildings belonging to the benefice, or any of them, or of rebuilding the same or Execution of any of them, so as to render such repairs or any of Works other 2 : : than those them impracticable or unnecessary, it shall be lawful specified in for such incumbent, with the consent of the bishop surveyor's and patron, to execute the proposed works in lieu of Srealal pee, such repairs; and in such case the surveyor shall, tificate of upon the completion of such works to his satisfaction, 8°veyor. give a special certificate, certifying that the same have been completed, which certificate shall be signed in triplicate, and one of such triplicates shall be delivered to the incum- bent, and another to the bishop, who shall cause the same to be registered in the registry of the diocese, and another to the governors, and such certificate shall have the same effect as a certificate of the completion of the works specified in the order. 51. If such additional or substituted works shall not render tho whole of such repairs impracticable or unnecessary, then so much of the money standing to the credit of efemtehdioe the dilapidation account as the surveyor shall certify works do not to be necessary for the execution of the repairs not so Tender im- 2K 480 ECCLESIASTICAL DILAPIDATIONS ACT. [app. lv. rendered impracticable or unnecessary shall be re- practicable tained by the governors, and shall be dealt with, as or unneces- c . A sary all the regards certificates and otherwise, in the same manner works speci- as if the repairs not so rendered impracticable or un- See es necessary had been the only repairs specified in the order. 52. If an incumbent, after having paid to the governors the amount specified in the report, desire to defer the exe- Postpone- cution of the works specified in the report, or any of ment of them, for a limited period, and the surveyor shall works may beallowea Certify in writing that such postponement may be on payment safely made, the bishop, with the consent of the patron, ofasumto may authorise such postponement, and may require meet pro- ; bable further the incumbent to pay to the governors such a sum, dilapidations. annually or in gross, as shall be certified by the sur- veyor to be proper to meet any probable further dilapi- dations, and the moneys so paid shall be carried to the credit of his dilapidation account; and if the benefice shall be vacated during the period of postponement, the late incumbent, his executors or administrators, shall not be entitled to be repaid any part of such additional moneys, but he or they shall not be subject to any further claim for dilapidations; and in case of such vacancy, the money paid by him to the governors shall be dealt with as if the succeeding incumbent, upon his succeeding to the benefice, had paid the same in respect of such repairs and dilapidations. 53. No sum shall be recoverable for dilapidations in No sum ; retoverable respect of any benefice becoming vacant after. the for dilapida- commencement of this Act, and to which this Act tions except shall be applicable, unless the claim for such sum be on a 8ur- a veyor’s founded on an order made under the provisions of report. this Act. As to Insurance. 54. The incumbent of every benefice shall insure, and during his incumbency keep insured, the house of residence and MY buildtegs farm and other buildings for the time being standing ofa benefice on the lands belonging to such benefice, and the out- ein buildings and offices respectively belonging thereto, "and also the chancel of the church when the incum- bent is liable to repair the chancel, against loss or damage by fire, in some office or offices for insurance against loss or damage by APP, Iv.] ECCLESIASTICAL DILAPIDATIONS ACT. 481 fire, to be selected by such incumbent, to the satisfaction of the governors, in at least three-fifths of the value thereof. 55. Every such insurance shall he effected in the joint names of the incumbent and the governors, and the incumbent Filing of shall cause the receipt for the premium for such annual insurance for each year to be exhibited at the first Teceipts for See ; - _ the premium, visitation of the bishop or archdeacon next ensuing after the same shall become payable; and the following questions shall be added to those annually sent to incumbents under the provisions of the Act of the session of the first and second years of Her Majesty, chapter one hundred and six, that is to say: “In what office and for what amount are the buildings of your benefice insured against fire?” and “ What was the amount and date of the last annual payment for such insurance ?” 56. In case any building belonging to any benefice, and insured in pursuance of this Act, shall be destroyed Sums re- or damaged by fire, and the office in which the same oryee shall be insured shall elect to pay the sum insured office on de- instead of causing the buildings to be reinstated at the patie ae expense of the office, the sum so paid shall be paid to fire to be the governors, and dealt with in the same manner expended in as moneys standing to the credit of a dilapidation teuiee account. 57. If, when any building belonging to a benefice shall be destroyed or damaged by fire, such building shall not be insured against loss or damage by fire for an Destruction. amount sufficient to reinstate and make good the same, of buildings the surveyor shall give to the bishop a certificate in not insured, be : ter Bi - Cost of re- writing (in triplicate), signed by such surveyor, speci- storing to be fying the sum which, in his opinion, shall be required, paid by the in addition to the insurance-money (if any), for rein- eumbent, ; yi and to be stating the buildings so destroyed or damaged, one of recoverable which triplicates the bishop shall cause to be filed in by seques- the bishop’s registry, another to be sent to the incum- ‘T@4on. bent or the sequestrator (if any), and another to the governors ; and the incumbent or the sequestrator (if any) shall have the same opportunity of making objections, and the bishop shall have the same power of consulting another surveyor or taking the opinion of counsel, as are provided in the sixteenth section with reference to the cases‘therein mentioned ; and the incumbent of the benefice, if the same shall not be under sequestration, shall pay the amount 482 ECCLESIASTICAL DILAPIDATIONS ACT, [app. Iv. 80 specified to the governors within three calendar months next after the date of such certificate; and if such amount shall not be so paid, it shall be lawful for the bishop, at any time after the end of such three calendar months, to raise the same (or so much thereof as shall not be so paid) by sequestration of the profits of the benefice ; and the amount so raised shall in like manner be paid to the governors, and the moneys so paid to the governors shall be dealt with in the same manner as moneys standing to the credit of a dilapidation account; and the incumbent shall cause the buildings so destroyed or damaged to be forthwith reinstated, and the costs thereof shall be paid, as the works progress, out of the amount so yaid to the governors, on certificates of a surveyor, in the manner aereinbefore specified in regard to repairs directed to be executed by a new incumbent; and if the incumbent shall refuse or neglect to reinstate such buildings, the same may, after the governors have received the necessary amount in manner aforesaid, be repaired and reinstated in manner herein provided in regard to repairs of buildings belonging to a benefice under sequestration. In case the benefice shall be under sequestration, the sum stated in the certificate of the surveyor shall be a charge upon the moneys from time to time received by the sequestrator in respect of the net profits or income of the benefice as mentioned in the twentieth section of this Act, and the provisions contained in the said twentieth section and in the twenty-first section with respect to the payment of the profits of the benefice to the governors and the application of the money shall apply to this section as if the provisions therein had, mutatis mutundis, been repeated herein. Miscellaneous. 58. The provisions. contained in this Act in regard to buildings standing on the lands belonging to any benefice shall . Providing not be applicable to the buildings (if any) belonging to forcaseof the benefice, which shall be comprised in any lease, for buildings of Sa: years or lives, for the time being subsisting, so long as when leton such lease shall be subsisting, except so far as the lease. lessee shall not, by virtue of such lease, be liable to insure, rebuild, or repair such buildings; but it shall be lawful for the surveyor to inspect the buildings comprised in any such lease. 59. Every incumbent or lessee alleging that any buildings APP. IV.] ECCLESTASTICAL DILAPIDATIONS. ACT. 483 belonging to a benefice are exempt from the provisions of this Act shall produce to the surveyor for his perusal the counterpart of the lease, or the lease in When ex- : ay tte : emption respect of which such exemption is claimed, unless claimed lease such counterpart shall already have been deposited or counter- in the bishop’s registry, or with the Ecclesiastical atten Commissioners for England. 60. Every sum of money by this Act raiseable by the bishop by sequestration during an incumbency shall be deemed a debt due from and payable by the incumbent; and if Remedy on 4 : “ : eath of any money payable under this Act by an incumbent jpeymbent. shall not be recovered by sequestration or otherwise during his incumbency, the liability of such incumbent thereto and of his representatives shall continue and be in no way affected; and in case of his death while he shall be incumbent, the same money, or so much thereof as shall remain due, shall be paid to the parties entitled under this Act to receive the same by his representatives out of his estate and effects. 61. All moneys which respectively would have been raise- able by the bishop by sequestration during an incum- bency, and which shall be paid by a succeeding Moneys paid ; - ~ to bishop by incumbent, or shall be recovered by sequestration succeeding during such succeeding incumbency, shall be a debt incumbent to due from such prior incumbent or his estate to the be @ debt ; : - due from incumbent by whom, or out of whose income derived prior from the benefice, the same shall be paid, and shall be incumbent. recoverable as such at law or in equity. 62. A security made under the provisions of this Act may be in the form contained in the first schedule hereto, or in such other form as the governors may approve, and sane the certificate of the treasurer to the governors of any sum having been placed to the credit of the account mentioned in the certificate shall be conclusive evidence of the fact of the said sum having been so placed ; and the governors shall, as regards the recovery of the sums due upon the said security, have the same remedies against the incumbent and his successors, and against the property comprised in the security, as if the advance had been made for repairing or rebuilding under the provisions of the Acts contained in the second schedule hereto, and the receipt of the trea- surer for the time being to the said governors shall be a discharge for all moneys paid to them in pursuance of the provisions of this Act. 484 ECCLESIASTICAL DILAPIDATIONS ACT. [app. iv 63. Before the governors shall lend any money on the security of the possessions of the benefice under the provisions Se ha of this Act, they shall require the incumbent to particulars furnish them with a just and particular account of the value in writing, signed by him, and verified by his oath as the or statutory declaration, of the annual profits of enefice. A : oy the living, and shall procure the consent in writing of Patronand the bishop and patron under their respective hands, eae) Ke or, if the patron shall be a corporation aggregate, under the common seal of such corporation. Such consent may be given in the form specified in that behalf in the Acts contained in the second schedule hereto, or in such other form as the governors may approve. 64. The provisions of the Acts contained in the second schedule ae hereto, and of the Acts referring to or amending the pa ae same, with respect to the registration of mortgages, Acts toapply and to the proportioning of payments in the case of mnt death or avoidance, and to stamps and fees of offices, ‘and to the priority of sequestrations, shall apply to securities made under the authority of this Act as if the said provisions had, mututis mutandis, been repeated herein. 65. All moneys standing to the credit of a dilapidation account shall, in the meantime, and until such moneys be Moneys required for the purposes of this Act, be invested by standing to : : = the credit of a the governors in the manner in which they are autho- dilapidation rised to invest other moneys held by them; and if any Seadoo be surplus shall remain of moneys standing to the credit Application of a dilapidation account after satisfying the require- ofincome. ments of this Act, such surplus shall be applied in SEIS discharge of any principal sum owing on the securit expenses. : ; 8 J of a mortgage made by the incumbent under the provisions of this Act; and if there shall be no such sum, or if the surplus be more than sufficient for the discharge of such sum, such surplus, or further surplus, shall be paid to the incum- bent or to the sequestrators. The governors may retain, to meet the office expenses incurred by reason of this Act, a percentage of the sums paid to them under the provisions of this Act, to be regulated according to a table or scale to be prepared by the governors, and to be subject to the approval of the Lords Commissioners of Her Majesty’s Treasury ; and the governors may, with the like approval, from time to time alter, amend, add to, or APPLY.) ECCLASIASIICAL DILAPIDATIONS ACT. 485 reduce such table or scale; and every such table or scale, and every such alteration, amendment, addition, or reduction in, to, or of the same, shall be published in the London Gazette, and shall be laid before Parliament. 66. In case of the death, removal from office, or resignation of a surveyor after making an inspection and before hy granting his final certificate of the completion of the Ha x necessary repairs, the previous acts of such surveyor ehange of in regard to such inspection, including his report (if surveyor any), shall be adopted by the surveyor appointed to ae, act in his place, who shall proceed in the matter of such inspection, report, and certificate in the same manner as if the inspection had originally been made by him. 67. It shall be lawful for any surveyor employed under this Act, his servants and workmen, for the purposes of this Act to enter into the buildings belonging to any benefice, pl ee and to inspect and examine the same, and also any to enter and works in progress under this Act, and, in the case of inspect, &e. : : at seasonable any benefice under sequestration, or of any repairs tO times, be executed or buildings to be reinstated in conse- quence of the refusal or neglect of the incumbent, for all persons authorised by the surveyor to enter into the buildings belonging to such benefice, and to execute the works by this Act authorised ; but no inspection shall be made under this Act except at seasonable times and within reasonable hours. [Sec. 68 is repealed by 56 & 57 Vict. ch. 61, which instead thereof enacts that when any action, prosecution, or other proceeding is commenced for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the action, prosecution, or proceeding shall not lie or be instituted unless commenced witbin six months next after the act, neglect, or default complained of, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof. Wherever in any such action a judgment is obtained by the defendant, it shall carry costs as between solicitor and client. When the proceeding is an action for damages, tender of amends before action may be pleaded. If the action was commenced after tender, or is proceeded with after payment into court of any money in satisfaction, and the plaintiff does not recover more than the sum tendered or paid, he shall not recover costs after, and the defendant 486 ECCLESTASTICAL DILAPIDATIONS ACT. [AppP. Iv. shall be entitled to solicitor and client costs from the time of tender or payment; and if the court thinks that the plaintiff did not give the defendant a sufficient opportunity of tendering before commencing proceedings, it may award to the defendant solicitor and client costs. ] 69. Every consent by authority from a bishop under this Act shall be in writing under his hand, and all notices, Bonen letters, reports, and other documents by this Act order and directed to be sent, delivered, or otherwise notified or delivery of given to or left with any bishop, incumbent, officiating notices. clergyman, or person, shall be deemed to have been duly sent, delivered, notified, given, or left respectively, if sent through the post in a prepaid letter, addressed, in the case of an incumbent or officiating minister, to the house of residence of the benefice, or, if there shall be no such house of residence, then to one of the churchwardens at his usual place of residence, and in all other cases to the usual or last-known place of residence in England of the party. 70. If an incumbent holding a benefice at the time of the commencement of this Act shall, prior thereto (with- Existing in- ont due authority), have caused any buildings be- cumbents (if ; the bishop longing to such benefice to be pulled down, and consents) not shall have substituted other buildings of equal or Ler pe aera greater value, such incumbent shall (if the bishop of Station the diocese consent) not be liable to dilapidations in of buildings respect of the buildings so pulled down, provided such shales substituted buildings shall have been insured pursuant No existing to this Act; and no incumbent holding a benefice at incumbent the time of the commencement of this Act shall be liable for di- ,. ort st P Lear lapidations as able for dilapidations in respect of any buildings to buildings which shall have been pulled down by a preceding ieabe rl incumbent, unless the incumbent so holding such ean bents: un- benefice shall have received or shall be entitled to less amounts recover at law or in equity from the last-preceding Pied oe incumbent or his estate the amount chargeable on incumbent. account of such dilapidations, and in such case the liability of the existing incumbent shall be limited to the amount so received or recoverable at law or in equity. 71. Wherever it shall appear that any building be- Removalof longing to or forming part of any house of residence is unnecessary unnecessary, it shall be lawful for the bishop, upon the part of any Le : : glebe-house. application of the incumbent, and with the consent APP. Iv.] ECCLESIASTICAL DILAPIDATIONS ACT. 487 in writing of the patron of the benefice, to authorise by a written instrument under his hand the removal of the said building; and the proceeds, if any, of such removal shall be applied to the improvement of the benefice in such manner as the bishop of the diocese und the patron of the benefice may agree on. 72. Nothing in this Act contained shall be construed to lessen or destroy any authority or power which, before the pass- ing of this Act, any bishop or archdeacon or other aleehecyar ordinary possessed in respect of requiring the repairs powers of of any ecclesiastical buildings to be executed. bishop, &e. 73. Notwithstanding anything contained in this Act, Ravi all the powers and authorities contained in the Acts eae sont specified in the second schedule hereto, and in any Act tained in or Acts amending or referring to the same, shall be pate y di ; : , pecified in exerciseable either separately or concurrently with the second powers of this Act. schedule, SCHEDULES. First SCHEDULE. Form of Mortgage. This indenture, made the day of , between A, B., incumbent of the benefice of , in the county of and diocese of , of the one part, and the Governors of the Bounty of Queen Anne for the augmentation of the maintenance of the poor clergy of the other part: Whereas the said governors, pursuant to “ The Ecclesiastical Dilapidations Act, 1871,” upon the request of the said A. &., and with the consent of the bishop and patron (testified by their having signed [or sealed] the instrument of consent hereto annexed), have agrecd to advance the sum of pounds upon the security of the said benefice: Now this indenture witnesseth that the said A. 2., in consideration of the sum of pounds having been carried in the books of the said governors to the credit of an account entitled The Dilapidation Account of A. B., Incumbent of ee 488 ECCLESIASTICAL DILAPIDATIONS ACT. [APP. Iv. as evidenced by the certificate hereupon endorsed and signed by the treasurer to the said governors, doth hereby grant unto the said governors all the glebe-lands, tithes, rents, rentcharges, moduses, compositions for tithe, salaries, stipends, fees, gratuities, and other emoluments and profits whatsoever arising, coming, growing, renewing, or payable to the incumbent of the said benefice in respect thereof, with all and every their rights, privileges, and appurtenances thereunto belonging, To have, hold, receive, and take the said premises, with their appurtenances, unto the said governors from henceforth for and during the term of thirty-five years, in as full, ample, and beneficial manner, and with such remedies and powers for obtaining and recovering the same, and every part thereof, to all intents and purposes, as the said in- cumbent or his successors could or might or ought to have held, enjoyed, received, and taken the same if these presents had not been made: And the said A.B. for himself, his heirs, executors, and administrators, doth hereby covenant with the said governors that the said A. 4., during the time he shall continue incumbent of the said benefice, shall and will well and truly pay or cause to be paid unto the said governors interest for the said sum of pounds, or so much thereof as shall remain due, at the end of every year, to be computed from the day of the date of these presents, after the rate of pounds per centum per annum, by yearly payments, the first of the said payments to be made on the day of next; and also shall and will, from and after the expiration of one year from the day of the date of these presents, in each and every year during such time as aforesaid, well and truly pay or cause to be paid unto the said governors one equal thirtieth part of the said principal sum of pounds, the first of such payments to be made on the day of Gee and shall and will continue such respective payments of the said interest, and on account of the said principal money, so long as he shall continue incumbent of the said benefice, or so long as during his incumbency anything shall remain due upon the security of these presents: Provided always, and these presents are upon this condition, that if the said A. 2. and his successors shall well and truly pay or cause to be paid the said principal monvy and interest for the same, in manner and at the times aforesaid, according to the true intent and meaning of the said Act and of these presents, and also all costs and charges which shall have been occasioned by APP. IV.] ECCLESTASTICAL DILAPIDATIONS ACT. 489 the nonpayment thereof, these presents and everything herein contained shall cease and be void: Provided also, that it shall and may be lawful for the said 4.8. and his successors peaceably and quietly to hold, occupy, possess, and enjoy all and singular the said glebe-lands, tithes, rents, rentcharges, moduses, composition for tithes, stipends, fees, gratuities, and other emoluments and profits whatsoever arising or to arise from or in respect of the said bene- fice, until default shall be made by him or them, respectively, in the payment uf the interest and principal, or some part thereof, at the times and in the manner aforesaid. In witness, £c. SECOND SCHEDULE, 17 Geo. III. ch. 53, 21 Geo. III. ch. 66. 7 Geo. IV. ch. 66. 1 & 2 Vict. ch. 23, 28 & 29 Vict. ch. 69, «Ss This Act is very slightly modified in the matter of loans from Queen Anne’s Bounty by 35 & 36 Vict. c. 96, [ 490 ] Ve THE SEQUESTRATION ACT or 1871. 84 & 85 Viet. Chap. 45. An Act for amending the Law relating to Sequestration of Ecclesiastical Benefices. [15th July, 1871.] BE it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. Where, after the thirty-first day of August one thousand eight hundred and seventy-one, under a judgment recovered ate oe against the incumbent of a benefice as defined in “ The bishop to Incumbents’ Resignation Act, 1871,” or under the bank- appoint ruptcy of such incumbent, a sequestration issues, and eta and the same remains in force for a period of six months, stipend,as the bishop of the diocese shall, from and after the ex- definedin piration of such period of six months, and as long as 34 & 35 Vict. ; F P 0. 44. the sequestration remains in force, take order for the The due performance of the services of the church of the benefice, and shall have power to appoint and license for this purpose such curate or curates, or additional curate or curates, as the case may require, with such stipend in each case as the bishop thinks fit, the amount thereof to be specified in the license, and the bishop may at any time revoke any such appoint- ment and license: Provided always, that such stipend or stipends shall not exceed in the whole the following sums; that is to say, if the population shall not exceed five hundred, the sum of two hundred pounds yearly ; if the population shall exceed five hundred but not one thousand, the sum of three hundred pounds yearly; if the population shall exceed one thousand but not three thousand, the sum of five hundred pounds yearly; if the popu- laticn shall exceed three thousand, the sum of six hundred pounds yearly: Provided also, that such stipend or stipends shall not APP. V.] TH EVSEBOCE ST RATION ACT. 491 exceed in the whole two-thirds of the annual value of the benefice, as detined in the last-mentioned Act. 2. Such of the provisions of the Act specified in the schedule to this Act as are described in Part I. of that schedule, Application and all provisions of that Act relative thereto, shall of enactments have effect for purposes of this Act as if they were im Schedule, Part I, here re-enacted. 8. Every stipend assigned under this Act shall be paid by the sequestrator out of moneys coming to his hands under the sequestration, as long as the sequestration is in eat of force, in priority to all sums payable by virtue of the judgment or the bankruptcy under which the sequestration issues, but not in priority of liabilities in respect of charges on the benefice. 4, Such of the provisions of the Act specified in the schedule to this Act as are described in Part IL. of that schedule, Application and all provisions of that Act relative thereto, shall of enactments apply in every case where a curate is appointed under im Schedule, this Act. 3 5. In case any such sequestration remains in force for more than six months, the bishop, if it appears to him that scandal or inconvenience is likely to arise from the Power for incumbent continuing to perform the services of the bishop to church while the sequestration remains in force, may, peas from and after the expiration of such period, inhibit cases. the incumbent from performing any services of the church within the diocese as long as the sequestration shall remain in force, and the bishop may at any time withdraw such inhibition. 6. During such time as any sequestration remains in force, the incumbent shall be absolutely disabled from presenting or nominating to any benefice then vacant of which he presentation may be patron in right of the benefice under seques- to benefices tration, and the right of presentation or nomination to ad fi : : uring se< such vacant benefice shall be exercised by the bishop questration of the diocese in which such vacant benefice is locally situate. 7. During the continuance of any sequestration, it shall not be lawful for the incumbent of the benefice under seques- tration to accept or be instituted or licensed to any Incumbent other benefice or preferment, the acceptance of or in- of seques- eee : : é : trated bene stitution or licensing to which would avoid or vacate fice not to 492 THE SEQUESTRATION ACT, _ [APPay, accept other the benefice so under sequestration, unless with the benefice but consent in writing of the bishop of the diocese and the with leave, ees sequestrator. nee : 8. This Act shall not extend to Scotland or Ireland. Short title. bee his Act may be cited as “ The Sequestration Act, THE SCHEDULE. 1 & 2 Vict.c. 106.—An Act to abridge the Holding of Benefices in Plurality, and to make Better Provision for the Residence of the Clergy, ENACTMENTS APPLIED. PART I. Section one hundred Provisions relating to bishops to apply to and seven. archbishops in their own dioceses. Section one hundred Power of archbishops and bishops as to and eight. exempt or peculiar benefices, &e. Section one hundred Where jurisdiction is given to bishop, &c. and nine. all concurrent jurisdiction to cease. PART II. Section seventy-five. Non-resident incumbents } As far as the neglecting to appoint [ same rela’es to curates, the bishop to | the residence of appoint curates. Section seventy-six. Curate to reside on benefices under certain circumstances. Section eighty-two. Fee for licence. Section ninety-seven. Curate not to quit curacy without three months’ notice to incumbent and bishop, under a penalty. Section one hundred Licences to curates and revocations thereof and two, to be entered in the registry of the diocese. [ 493 ] VE ACT OF UNIFORMITY AMENDMENT (1872). 35 & 36 Vict. Chap, 35. An Act for the Amendment of the Act of Uniformity. {18th July, 1872.] HEREAS by the Act of Uniformity it is enacted that all and singular ministers in any cathedral, collegiate, or parish church or chapel, or other place of public worship in England, shall be bound to say and use the Morning Prayer, Evening Prayer, cele- bration and administration of both the Sacraments, and all other the public and common prayer, in such order and form as is men- tioned in the Book of Common Prayer annexed to the said Act: And whereas in the year one thousand eight hundred and sixty- nine Commissioners were appointed by Her Majesty to inquire and consider, amongst other matters, the differences of practice which have arisen from varying interpretations put upon the rubrics, orders, and directions for regulating the course and conduct of public worship, the administration of the sacraments, and the other services contained in the Book of Common Prayer, with a view of explaining or amending the said rubrics, orders, and directions so as to secure general uniformity of practice in such matters as may be deemed essential, and to report thereon from time to time, having regard not only to the said rubrics, orders, and directions, but also to any other laws or customs relating to the matters aforesaid, with power to suggest any alterations, improvements, or amendments with respect to such matters or any of them : And whereas the said Commissioners have by their Report dated the thirty-first day of August one thousand eight hundred and seventy recommended in manner therein mentioned : And whereas Her Majesty was pleased to authorise the Convo- cations of Canterbury and York to consider the said Report of the 494 ACT OF UNIFORMITY AMENDMENT. [appP. VI. said Commissioners, and to report to Her Majesty thereon, and the said Convocations have accordingly made their first reports to Her Majesty : Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. In this Act— The term “Act of Uniformity” means the Act of the fourteenth year of the reign of King Charles the Second, chapter four, intituled “An Act for the Uniformity of Public Prayers “and Administration of Sacraments and other Rites and Cere- “monies, and for establishing the form of Making, Ordaining, “and Consecrating Bishops, Priests, and Deacons in the Church “of England,” and includes the enactments confirmed and ap- plied by that Act to the Book of Common Prayer. Definitions, The term “ Book of Common Prayer” means the Book annexed to the said Act of the reign of King Charles the Second, and intituled “ The Book of Common Prayer and Administration of “the Sacraments and other Rites and Ceremonies of the Church “according to the Use of the Church of England, together with “the Psalter or Psalms of David pointed as they are to be sung “or said in Churches, and the Form or Manner of Making, “ Ordaining, and Consecrating of Bishops, Priests, and Deacons.” The term “cathedral” means a cathedral or collegiate church in which the Book of Common Prayer is required by the Act of Uniformity to be used. The term “church” means any parish church, chapel, or other place of public worship which is not a cathedral as before defined, and in which the Book of Common Prayer is required by the Act of Uniformity to be used. 2. The shortened Order for Morning Prayer or for Evening Maa of Prayer, specified in the schedule to this Act, may, shortened on any day except Sunday, Christmas Day, Ash Wed- form af nesday, Good Friday, and Ascension Day, be used, Morning and : ae fs ee : Evening if in a cathedral in addition to, and if in a church in Prayer, lieu of, the Order for Morning Prayer or for Evening Prayer respectively prescribed by the Book of Common Prayer, —5,= “APP. vi.] ACT OF UNIFORMITY AMENDMENT. 498 3. Upon any special occasion approved by the ordinary, there may be used in any cathedral or church a gpecial service special form of service approved by the ordinary, so for special that there be not introduced into such service any- ¢#sions thing, except anthems or hymns, which does not form part of the Holy Scriptures or Book of Common Prayer. 4, An additional form of service varying from any form pre- scribed by the Book of Common Prayer may be used gy agitional at any hour on any Sunday or holy-day in any gervice on cathedral or church in which there are duly read, Sundays and said, or sung as required by law on such Sunday or PY-¢9¥* holy-day at some other hour or hours the Order for Morning Prayer, the Litany, such part of the Order for the Administration of the Lord’s Supper or Holy Communion as is required to be read on Sundays and holy-days if there be no Communion, and the Order for Evening Prayer, so that there be not introduced into such additional service any portion of the Order for the Adminis- tration of the Lord’s Supper or Holy Communion, or anything, except anthems or hymns, which does not form part of the Holy Scriptures or Book of Common Prayer, and so that such form of service and the mode in which it is used is for the time being approved by the ordinary; provided that nothing in this section shall affect the use of any portion of the Book of Common Prayer as otherwise authorised by the Act of Uniformity or this Act. 5. Whereas doubts have arisen as to whether the following forms of service, that is to say, the Order for Morning Prayer, the Litany, and the Order for the Administra- tion of the Lord’s Supper or Holy Communion, may be used as separate services, and it is expedient to remove such doubts: Be it therefore enacted and declared that any of such forms of service may be used together or in varying order as separate services, or that the Litany may be said after the third collect in the Order for Evening Prayer, either in lieu of or in addition to the use of the Litany in the Order for Morning Prayer, without prejudice nevertheless to any legal powers vested in the ordinary ; and any of the said forms of service may be used with or without the preaching of a sermon or lecture, or the reading of a homily. Separation of services, DRAGS 496 ACT OF UNIFORMITY AMENDMENT. [app. vt. 6. Whereas doubts have arisen as to whether a sermon or lecture Preachinga ‘ay be preached without the common prayers and ser- sermon with. vices appointed by the Book of Common Prayer for out previous the time of day being previously read, and it is ex- "ane pedient to remove such doubts: Be it therefore enacted and declared, that a sermon or lecture may be preached without the common prayers or services appointed by the Book of Common Prayer being read before it is preached, so that such sermon or lecture be preceded by any service authorised by this Act, or by the Bidding Prayer, or by a collect taken from the Book of Common Prayer, with or without the Lord’s Prayer. 7. Nothing in this Act shall affect the provision with respect to the chapels of colleges in the universities of Oxford, Cambridge, and Durham, which is contained in section six of the Universities Tests Act, 1871. 8. The schedule to this Act, and the notes thereto, and directions Effct of therein, shall be construed and have effect as part of schedule, this Act. 9. This Act may be cited as “The Act of Uniformity Short title. eae Amendment Act, 1872.” SCHEDULE. Notr.—The Minister using the Shortened Order for Morning Prayer or for Evening Prayer in this Schedule, may in his dis- cretion add in its proper place any exhortation, prayer, canticle, hymn, psalm, or lesson contained in the Order for Morning Prayer, or for Evening Prayer in the Book of Common Prayer and omitted or authorised to be omitted from such shortened order. Each of the twenty-two portions into which the one hundred and nineteenth psalm is divided in the Book of Common Prayer shall be deemed, for the purposes of this schedule, to be a separate psalm. SHORTENED FORMS OF SERVICE. THE SHORTENED ORDER FOR MORNING PRAYER DAILY THROUGH- OUT THE YEAR, EXCEPT ON SuNDAY, CHRistMAs .Day, AsH WEDNESDAY, GoopD FRIDAY, AND ASCENSION Day. At the beginning of Morning Prayer the Minister shall read with a APP. vI.] ACT OF UNIFORMITY AMENDMENT. 497 loud voice some one or more of these sentences of the Scriptures that follow. When the wicked man, &c. A general Confession to be said of the whole Congregation after the Minister, all kneeling. Almighty and most merciful Father, &c. The Absolution, or Remission of sins, to be pronounced by the Priest alone, standing ; the people still kneeling. Almighty God, the Father, &c, The people shall answer here, and at the end of all other prayers, Amen. Then the Minister shall kneel, and say the Lord’s Prayer with an audible voice; the people also kneeling, and repeating wt with him. Our Father, which art in heaven, &c. Then likewise he shall say, O Lord, open thou our lips. &e. &e, &e, Here all standing wp, the Priest shall say, Glory be to the Father, &e. Then shall follow one or more of the Psalms appointed. And at the end of every Psalm throughout the year, and likewise at the end of Benedicite, Benedictus, Magnificat, and Nunc dimittis, shall be repeated, Glory be to the Father, &c. Then shall be read distinctly, with an audible voice, erther the Furst Lesson taken out of the Old Testament as 1s appointed in the Calendar, or the Second Lesson taken out of the New Testament, except there be a Proper Lesson assigned for that day, in which case the Proper Lesson shall be read, and vf there are two Proper Lessons each shall be read in its proper place ; he that readeth so standing and turning himself as he may best be heard of all such as are present. Note that before every Lesson the Minister shall say, Here beginneth such a Chapter, or Verse of such a Chapter, of such a Book. And after every Lesson, Here endeth the Lesson, or the First or the Second: Lesson. 498 ACT OF UNIFORMITY AMENDMENT. [apPpP. VI. And after the Lesson, or between the First and Second Lessons, shall be said or sung in English one of the following: Hither the Hymn called, Te Deum Laudamus, We praise thee, O God, &e. Or this Canticle, Benedicite, omnia opera. O all ye works of the Lord, &c., Or the Hymn following (except when that shall happen to be read in the Lesson for the day, or for the Gospel on Saint John Baptisi’s day) : Benedictus. St. Luke i, 68. Blessed be the Lord God of Israel, &c. Or this Psalm: Jubilate Deo. O be joyful in the Lord, all ye lands, &e. Then shall be sung or said the Apostles Creed by the Minister and the people standing. I believe in God the Father Almighty, &c. And after that, the people all devoutly kneeling, the Minister shall pro- nounce with a loud voice, The Lord be with you. Answer, And with thy spirit. Minister, Let us pray. Then the Priest shall say, O Lord, shew thy mercy upon us, &e. &e. &e, Then shall follow three Collects. The first of the day, which shall be the same that is appointed at the Communion ; the second for Peace ; the third for grace to live well; and the two last Collects shall never alter, but daily be said at Morning Prayer throughout all the year, as followeth, all kneeling. The second Collect for Peace. O God, who art the Author of Peace, &c. The third Collect for Grace. O Lord, our heavenly Father, &c. Here may follow an Anthem or Hymn. APP. VI. ] ACT OF UNIFORMITY AMENDMENT. 499 Then these two Prayers following : A Prayer of Saint Chrysostome. Almighty God, who hast given us grace, &e. 2 Corinthians xiii. The grace of our Lord Jesus Christ, &c. Here endeth the Shortened Order of Morning Prayer. THE SHORTENED ORDER FOR EVENING PRAYER DAILY THROUGHOUT THE YEAR, EXCEPT ON SUNDAY, CHRISTMAS Day, ASH WEDNES- DAY, GooD FRIDAY, AND ASCENSION Day. At the beginning of Evening Prayer the Minister shall read with a loud: vouce some one or more of these sentences of the Scriptures that follow : When the wicked man, &c. A general Confession to be said of the whole Congregation after the Minister, ali kneeling : Almighty and most merciful Father, &e. The Absolution, or Remission of sins, to be pronounced by the Priest alone, standing ; the people still kneeling. Almighty God, the Father, &e, Then the Minister shall kneel, and say the Lord’s Prayer; the people also kneeling, and repeating vt with him. Our Father, which art in heaven, &c. Then likewise he shall say, O Lord, open thou our lips, Here all standing up, the Priest shall say, Glory be to the Father, &c. Then shall be said or sung one or more of the Psalms in order as they be appointed. Then either a Lesson of the Old Testament as is appointed, or a Lesson of the New Testament as it is appointed, except there be a Proper Lesson assigned for that day, in which case the Proper Lesson shall be read, and «f there are two Proper Lessons each shall be read in rts proper place; and after the Lesson, or between the First and Second Lessons, shall be said or sung in English one of the following : Either Magnificat, or the Song of the Blessed Virgin Mary, in English, as follows: 500 =ACT OF UNIFORMITY AMENDMENT. [appP. VI. Magnificat. St. Luke i, My soul doth magnify the Lord, &e, Or this Psalin (except it be on the nineteenth day of the month, when it as read in the ordinary course of the Psalms) : Cantate Domino. Psalm xevili. O sing unto the Lord a new song, &c. Or Nune dimittis (or the Song of Simeon), as followeth : Nune dimittis. St. Luke i. 29, Lord, now lettest thou thy servant, &e, Or else this Psalm (except it be on the twelfth day of the month) : Deus misereatur. Psalm lxvii. God be merciful unto us, and bless us, &e. Then shall be said or sung the Apostles Creed by the Minister and the people, standing : I believe in God the Father Almighty, &c. And after that, the people all devoutly kneeding, the Minister shall pro- nounce with a loud voice, The Lord be with you. Answer, And with thy spirit. Minister. Let us pray. Then the Priest shall say, O Lord, shew thy mercy upon us, &e. &e. &e. Then shall follow three Collects. The first of the day; the second for Peace; the third for aid against all perils, as hereafter followeth ; which two last Collects shall be daily said at Evening Prayer with- out Alteration. The second Collect at Evening Prayer. O God, from whom all holy desires, &e. The third Collect for Aid against all Perils, Lighten our darkness, &c. Here may follow an Anthem or Hymn. A Prayer of Saint Cherysostome. rgd God, who hast given us grace, &e, 2 Corinthians xiii. The grace of our Lord Jesus Christ, &e. Here endeth the Shortened Order of Evening Prayer. abe THE PUBLIC WORSHIP REGULATION ACT or 1874. 37 & 38 Vict. Chap. 85. An Act for the better administration of the Laws respecting the regulation of Public Worship. [7th August, 1874.] HEREAS it is expedient that in certain cases further regula- tions should be made for the administration of the laws relating to the performance of divine service according to the use of the Church of England : Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as “The Public Worship eeeruie Regulation Act, 1874.” ‘ 2, This Act shall come into operation on the first day of July one thousand eight hundred and seventy-five, except where Gommencement expressly herein-after provided. of Act. 3. This Act shall extend to that part of the United Kingdom called England, to the Channel Islands, and the Isle Extent of of Man, Act, 4, Proceedings taken under this Act shall not be Proceedings ' : : under this Act deemed to be such proceedings as are mentioned in the not to be Act of the third and fourth year of the reign of Her pe eri Majesty, chapter eighty-six, section twenty-three, 3 & 4 Vict, 5. Nothing in this Act contained, save as herein ede a expressly provided, shall be construed to affect or gaving of repeal any jurisdiction which may now be in force for Jurisdiction, the due administration of ecclesiastical law, 6. In this Act the following terms shall, if not in- Taterpretation consistent with the context, be thus interpreted— “Mabe boz. PUSLIC: WORSHIP REGULATION ACT. [APPaviE The term “bishop” means the archbishop or bishop of the diocese in which the church or burial ground is situate to which a representation relates: The term “Book of Common Prayer” means the book annexed to the Act of the fourteenth year of the reign of King ‘¢ Bishop.” ‘Book of Common Charles the Second, chapter four, intituled “The Book Prayer.” of Common Prayer, and Administration of the Sacra- “ments, and other Rites and Ceremonies of the Church, accord- “ing to the use of the Church of England ; together with the “ Psalter or Psalms of David, pointed as they are to be sung or “said in churches ; and the form or manner of making, ordain- “ing, and consecrating of Bishops, Priests, and Deacons ;” together with such alterations as have from time to time been or may hereafter be made in the said book by lawful authority : The term “burial ground” means any churchyard, cemetery, or ‘Burial burial ground, or the part of any cemetery or burial ground.” ground, in which, at the burial of any corpse therein, the order for the burial of the dead contained in the Book of Common Prayer is directed by law to be used: The term “church” means any church, chapel, or place of public worship in which the incumbent is by law or by the terms of license from the bishop required to conduct divine service according to the Book of Common Prayer: The term “diocese” means the diocese in which the church or burial ground is situate to which a representation re- lates, and comprehends all places which are situate within the limits of such diocese : The term “incumbent” means the person or persons in holy orders legally responsible for the due performance of divine service in any church, or of the order for the burial of the dead in any burial ground: The term “parish” means any parish, ecclesiastical district, chapelry, or place, over which any incumbent has the exclusive eure of souls: The term “parishioner” means a male person of full age who , before inaking any representation under this Act has transmitted to the bishop under his hand the declara- tion contained in Schedule (A.) to this Act, and who has, and for one year next before taking any proceeding under this Act has had, his usual place of abode in the parish within which the *¢ Church.” ‘* Diocese.” 66 Incumbent.” ‘+ Parish.” ‘+ Parishioner,’ APP. Vil.] (PUBLIC WORSHIP REGULATION ACT. 503 church or burial ground is situate, or for the use of which the burial ground is legally provided, to which. the representation relates : The term “ barrister-at-law” shall in the Isle of Man ‘Barrister- include advocate : at-law.” The term “rules and orders” means the rules and “Rules and orders framed under the provisions of this Act. orders.” 7. The Archbishop of Canterbury and the Archbishop of York may, but subject to the approval of Her Majesty to be gypsintment signified under Her Sign Manual, appoint from time to and duties of time a barrister-at-law who has been in actual practice Judge for ten years, or a person who has been a judge of one of the Superior Courts of Law or Equity, or of any court to which the jurisdiction of any such court has been or may hereafter be transferred by authority of Parliament, to be, during good behaviour, a judge of the Provincial Courtsof Canterbury and Y ork, herein-after called the judge, If the said archbishops shall not, within six months after the passing of this Act, or within six months after the occurrence of any vacancy in the office, appoint the said judge, Her Majesty may by Letters Patent appoint some person, qualified as aforesaid, to be such judge. Whensoever a vacancy shall occur in the office of official principal of the Arches Court of Canterbury, the judge shall become ex-officio such official principal, and all proceedings thereafter taken before the judge in relation to matters arising within the province of Canterbury shall be deemed to be taken in the Arches Court of Canterbury ; and whensoever a vacancy shall occur in the office of official principal or auditor of the Chancery Court of York, the judge shall become ex-officio such official principal or auditor, and all pro- ceedings thereafter taken before the judge in relation to matters arising within the province of York shall be deemed to be taken in the Chancery Court of York; and whensoever a vacancy shall occur in the office of Master of the Faculties to the Archbishop of Canterbury, such judge shall become ex-officio such Master of the Faculties. Every person appointed to be a judge under this Act shall be a member of the Church of England, and shall, before entering on his office, sign the declaration in Schedule (A.) to this Act; and if at any time any such judge shall cease to be a member of the Church, his office shall thereupon be vacant, 504 PUBLIC WORSHIP REGULATION ACT, [ApPpP. vil. This section shall come into operation immediately after the passing of this Act. 8. If the archdeacon of the archdeaconry, or a churchwarden of' Representation the parish, or any three parishioners of the parish, by archdeacon, within which archdeaconry or parish any church or churehwarden, torial ground is situate, or for the use of any part of parishioners, i 5 3 a . t or inhabitants Which any burial ground is legally provided, or in case of diocese. of cathedral or collegiate churches, any three inhabi- tants of the diocese, being male persons of full age, who have signed and transmitted to the bishop under their hands the declara- tion contained in Schedule (A.) under this Act, and who have, and for one year next before taking any proceeding under this Act have had, their usual place of abode in the diocese within which the cathedral or collegiate church is situated, shall be of opinion,— (1.) That in such church any alteration in or addition to the fabric, ornaments, or furniture thereof has been made without lawful authority, or that any decoration forbidden by law has been introduced into such church; or, (2.) That the incumbent has within the preceding twelve months used or permitted to be used in such church or burial ground any unlawful ornament of the minister of the church, or neglected to use any prescribed ornament or vesture; or, (3.) That the incumbent has within the preceding twelve months failed to observe, or to cause to be observed, the directions contained in the Book of Common Prayer relating to the per- formance, in such church or burial ground, of the services, rites, and ceremonies ordered by the said book, or has made or per- mitted to be made any unlawful addition to, alteration of, or omission from such services, rites, and ceremonies,— such archdeacon, churchwarden, parishioners, or such inhabitants of the diocese, may, if he or they think fit, represent the same to the bishop, by sending to the bishop a form, as contained in Schedule (B.) to this Act, duly filled up and signed, and accompanied by a declaration made by him or them under the Act of the fifth and sixth year of the reign of King William the Fourth, chapter sixty- two, affirming the truth of the statements contained in the represen- tation: Provided, that no proceedings shall be taken under this Act as regards any alteration in or addition to the fabric of a church if such alteration or addition has been completed five years before the commencement of such proceedings, APP. vil.] PUBLIC WORSHIP REGULATION ACT. 505 9. Unless the bishop shall be of opinion, after considering the whole circumstances of the case, that proceedings should proceedings on not be taken on the representation (in which case he representation. shall state in writing the reason for his opinion, and such statement shall be deposited in the registry of the diocese, and a copy thereof shall forthwith be transmitted to the person or some one of the persons who shall have made the representation, and to the person complained of), he shall within twenty-one days after receiving the representation transmit a copy thereof to the person complained of, and shall require such person, and also the person making the repre- sentation, to state in writing within twenty-one days whether they are willing to submit to the directions of the bishop touching the matter of the said representation, without appeal; and if they shall state their willingness to submit to the directions of the bishop without appeal, the bishop shall forthwith proceed to hear the matter of the representation in such manner as he shall think fit, and shall pronounce such judgment and issue such monition (if any) as he may think proper, and no appeal shall lie from such judgment or monition. Provided, that no judgment so pronounced by the bishop shall be considered as finally deciding any question of law so that it may not be again raised by other parties. The parties may, at any time after the making of a representation to the bishop, join in stating any questions arising in such proceed- ings in a special case signed by a barrister-at-law for the opinion of the judge, and the parties after signing and transmitting the same to the bishop may require it to be transmitted to the judge for hearing, and the judge shall hear and determine the question or questions arising thereon, and any judgment pronounced by the bishop shall be in conformity with such determination, If the person making the representation and the person com- plained of shall not, within the time aforesaid, state their willingness to submit to the directions of the bishop, the bishop shall forthwith transmit the representation in the mode prescribed by the rules and orders to the archbishop of the province, and the archbishop shall forthwith require the judge to hear the matter of the representa- tion at any place within the diocese or province, or in London or Westminster. The judge shall give not less than twenty-eight days’ notice to the parties of the time and place at which he will proceed to hear the 506 PUBLIC WORSHIP REGULATION ACT. [APP. VIt. matter of the said representation. The judge before proceeding to give such notice shall require from the person making the represen- tation such security for costs as the judge may think proper, such security to be given in the manner prescribed by the rules and orders, The person complained of shall within twenty-one days after such notice transmit to the judge, and to the person making the represen- tation, a succinct answer to the representation, and in default of such answer he shall be deemed to have denied the truth or relevancy of the representation. In all proceedings before the judge under this Act the evidence shall be given vivd voce, in open court, and upon oath; and the judge shall have the powers of a court of record, and may require and enforce the attendance of witnesses, and the production of evi- dences, books, or writings, in the like manner as a judge of one of the superior courts of law or equity, or of any court to which the jurisdiction of any such court has been or may hereafter be trans- ferred by authority of Parliament. Unless the parties shall both agree that the evidence shall be taken down by a shorthand writer, and that a special case shall not be stated, the judge shall state the facts proved before him in the form of a special case, similar to a special case stated under the Common Law Procedure Acts, 1852-1854. The judge shall pronounce judgment on the matter of the repre- sentation, and shall deliver to the parties, on application, and to the bishop, a copy of the special case, if any, and judgment. The judge shall issue such monition (if any) and make such order as to costs as the judgment shall require, Upon every judgment of the judge, or monition issued in accord- ance therewith, an appeal shall lie, in the form prescribed by rules and orders, to Her Majesty in Council. The judge may, on application in any case, suspend the execution -of such monition pending an appeal, if he shall think fit. 10. The registrar of the diocese, or his deputy duly appointed, Registrar of — shall perform such duties in relation to this Act and ee ana shall receive such fees as may be prescribed by the under the Act, Yrules and orders, Parties may 11, In any proceedings under this Act either party red eee may appear either by himself in person or by counsel, person or by sis counsel, &, | or by any proctor or any attorney or solicitor, APP. VIL] PUBLIC WORSHIP REGULATION ACT. 507 12. For the purpose of an appeal to Her Majesty in Council under this Act, the special case settled by the judge, or a copy No fresh of the shorthand writer’s notes, as the case may be, evidence to be shall be transmitted in the manner prescribed by rules admitted on and orders, and no fresh evidence shall be admitted eppeaie upon appeal except by the permission of the tribunal hearing the appeal. 13. Obedience by an incumbent to a monition or order of the bishop or judge, as the case may be, shall be enforced, tphipition of if necessary, in the manner prescribed by rules and incumbent. orders, by an order inhibiting the incumbent from performing any service of the church or otherwise exercising the cure of souls within the diocese for a term not exceeding three months; provided that at the expiration of such term the inhibition shall not be relaxed until the incumbent shall, by writing under his hand, in the form pre- scribed by the rules and orders, undertake to pay due obedience to such monition or order, or to the part thereof which shall not have been annulled; provided that if such inhibition shall remain in force for more than three years from the date of the issuing of the monition, or from the final determination of an appeal therefrom, whichever shall last happen, or if a second inhibition in regard to the same monition shall be issued within three years from the re- laxation of an inhibition, any benefice or other ecclesiastical prefer- ment held by the incumbent in the parish in which the church or burial ground is situate, or for the use of which the burial ground is legally provided, in relation to which church or burial ground such monition has been issued as aforesaid, shall thereupon become void,, unless the bishop shall, for some special reason stated by him in writing, postpone for a period not exceeding three months the date at which, unless such inhibition be relaxed, such benefice or other ecclesiastial preferment shall become void as aforesaid; and upon any such avoidance it shall be lawful for the patron of such benefice or other ecclesiastical preferment to appoint, present, collate, or nominate to the same as if such incumbent were dead; and the. provisions contained in the Act of the first and second year of the reign of Her Majesty, chapter one hundred and six, section fifty- eight, in reference to notice to the patron and as to lapse, shall be applicable to any benefice or other ecclesiastical preferment avoided under this Act; and it shall not be lawful for the patron at any time to appoint, present, collate, or nominate to such benefice or such . 508 PUBLIC WORSHIP REGULATION ACT. [APpP. Vit other ecclesiastical preferment the incumbent by whom the same was avoided under this Act. The bishop may, during such inhibition, unless he is satisfied that due provision is otherwise made for the spiritual charge of the parish, make due provision for the service of the church and the cure of souls, and it shall be lawful for the bishop to raise the sum required from time to time for such provision by sequestration of the profits of such benefice or other ecclesiastical preferment. Any question as to whether a monition or order given or issued after proceedings before the bishop or judge, as the case may be, has or has not been obeyed shall be determined by the bishop or the judge, and any proceedings to enforce obedience to such monition or order shall be taken by direction of the judge. 14, It shall not be necessary to obtain a faculty from the ordinary Faculty not ‘in order lawfully to obey any monition issued under this necessaryin Act, and if the judge shall direct in any monition that certaia cases) faculty shall be applied for, such fees only shall be paid for such faculty as may be directed by the rules and orders; provided that nothing in this Act contained shall be construed to limit or control the discretion vested by law in the ordinary as to the grant or refusal of a faculty: Provided also, that a faculty shall, on application, be granted, if unopposed, on payment of such a fee (not exceeding two guineas) as shall be prescribed by the rules and orders, in respect of any alteration im or addition to the fabric of any church, or in respect of any ornaments or furniture, not being contrary to law, made or existing in any church at the time of the passing of this Act. 15. All notices and other documents directed to be given to any Sarvioe of person under this Act shall be given in the manner _ notices. prescribed by rules and orders, 16. If any bishop shall be patron of the benefice or of any seal call Substitute for 2Stical preferment held by the incumbent respecting bishop when Whom a representation shall have been made, or shall patron, orin he unable from illness to discharge any of the duties case of illness. ; : ie : . imposed upon him by this Act in regard to any repre- sentation, the archbishop of the province shall act in the place of such bishop in all matters thereafter arising in relation to such representation ; and if any archbishop shall be patron of the benefice or of any ecclesiastical preferment held by the incumbent respecting APP. VII.]| PUBLIC WORSHIP REGULATION ACT. 509 whom a representation shall have been made, or shall be unable from illness to discharge any of the duties imposed upon him by this Act in regard to any representation, Her Majesty may, by Her Sign Manual, appoint an archbishop or bishop to act in the place of such archbishop in all matters thereafter arising in relation to such representation, 17. The duties appointed under this Act to be per- Provisions formed by the bishop of the diocese shall in the case of 7elating to cathedral or a cathedral or collegiate church be performed by the eottegiate visitor thereof. church, If any complaint shall be made concerning the fabric, ornaments, furniture, or decorations of a cathedral or collegiate church, the person complained of shall be the dean and chapter of such cathedral or collegiate church, and in the event of obedience not being ren- dered to a monition relating to the fabric, ornaments, furniture, or decorations of such cathedral or collegiate church, the visitor or the judge, as the case may be, shall have power to carry into effect the directions contained in such monition, and, if necessary, to raise the sum required to defray the cost thereof by sequestration of the profits of the preferments held in such cathedral or collegiate church by the dean and chapter thereof. If any complaint shall be made concerning the ornaments of the minister in a cathedral or collegiate church, or as to the observance therein of the directions contained in the Book of Common Prayer, relating to the performance of the services, rites, and ceremonies ordered by the said book, or as to any alleged addition to, alteration of, or omission from such services, rites, and ceremonies in such cathedral or collegiate church, the person complained of shall be the clerk invholy orders alleged to have offended in the matter com- plained’ of; and the visitor or the judge, as the case may be, in the event of obedience not being rendered to a monition, shall hae the same power as to inhibition, ‘and the preferment held in such cathe- dral or collegiate church by the person complained of shall be subject to the same conditions as to avoidance, notice, and lapse, and as to any subsequent appointment, presentation, collation, or nomination thereto, and as to due provision being made for the performance of the duties of such person, as are contained in this Act concern- ing an incumbent to whom a monition has been issued, and con- cerning any benefice or other ecclesiastical preferment held by such incumbent. 510 PUBLIC WORSHIP REGULATION -ACT. [apP. VII. 18. When a sentence has been pronounced by consent, or any suit Peridation or proceeding has been commenced against any incum- proceedings | bent under the Act of the third and fourth year of the against reign of Her Majesty, chapter eighty-six, he shall not meumbent, be liable to proceedings under this Act in respect of the same matter; and no incumbent proceeded against under this Act shall be liable to proceedings under the said Act of the third and fourth year of the reign of Her Majesty, in respect of any matter upon which judgment has been pronounced under this Act, 19, Her Majesty may by Order in Council, at any time either Rules for before or after the commencement of this Act, by and settling pro- | With the advice of the Lord High Chancellor, the Lord cedure and fees (Yhief Justice of England, the judge to be appointed under this Act. oder this Act, and the archbishops and bishops who are members of Her Majesty’s Privy Council, or any two of the said persons, one of them being the Lord High Chancellor or the Lord Chief Justice of England, cause rules and orders to be made for regulating the procedure and settling the fees to be taken in proceed- ings under this Act, so far as the same may not be expressly regulated by this Act, and from time to time alter or amend such rules and orders. All rules and orders made in pursuance of this section shall be laid before each House of Parliament within forty days after the same are made, if Parliament is then sitting, or if not, within forty days after the then next meeting of Parliament; and if an address is presented to Her Majesty by either of the said Houses within the next subsequent forty days on which the House shall have sat pray- ing that any such rules may be annulled, Her Majesty may there- upon by Order in Council annul the same, and the rules and orders so annulled shall thenceforth become void, without prejudice to the validity of any proceedings already taken under the same. APP. ViI.] PUBLIC WORSHIP REGULATION ACT. 511 + SCHEDULES REFERRED TO IN THE FOREGOING ACT. sm ee ScHEDULE (A.) I do hereby solemnly declare that Iam a member of the Church of England as by law established, Witness my hand this day of ScHEDULE (B.) “Puprtic WorsHIP ReGuLATION Act, 1874.” To the Right Rev. Father in God, A., by Divine permission Lord Bishop of B. I [We], O.D., Archdeacon of the archdeaconry of , [or a churchwarden or three parishioners of the parish of £.], in your Lordship’s diocese, do hereby represent that [the person or persons complained of | has or have [state the mattcr to be represented; uf more than one, then under separate heads], Dated this day of 18 . (Signed) C.D, [ 512 } YOR THE BURIAL LAWS AMENDMENT ACT OF 1880. 43 & 44 Vict. Chap. 41. An Act to amend the Burial Laws. [7th September, 1880.] HEREAS it is expedient to amend the law of burial in England and the Channel Islands : Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. After the passing of this Act any relative, friend, or legal representative having the charge of or being responsible for the After passing Urial of a deceased person may give forty-eight hours’ of Act, notice notice in writing, indorsed on the outside “ Notice of may begiven Burial,” to, or leave or cause the same to be left at the bein ag usual place of abode of, the rector, vicar, or other churchyard incumbent, or in his absence the officiating minister in or graveyard charge of any parish or ecclesiastical district or place, Live or any person appointed by him to receive such notice, Church of that it is intended that such deceased person shall be England. buried within the churchyard or graveyard of such parish or ecclesiastical district or place without the performance, in the manner prescribed by law, of the service for the burial of the dead according to the rites of the Church of England, and after receiving such notice no rector, vicar, incumbent, or officiating minister shall be liable to any censure or penalty, ecclesiastical or civil, for permitting any such burial as aforesaid. Such notice shall be in writing, plainly signed with the name and stating the address of the person giving it, and shall be in the form or to the effect of Schedule (A.) annexed to this Act. The word “graveyard” in this Act shall include any burial ground “APP. vill.] BURIAL LAWS AMENDMENT ACT. 513 or cemetery vested in any burial board, or provided under any Act relating to the burial of the dead, in which the parishioners or inhabitants of any parish or ecclesiastical district have rights of burial ; and in the case of any such burial ground or cemetery, if a chaplain is appointed to perform the burial service of the Church of England therein, notice under this Act shall be addressed to such chaplain, but the same shall be given to or left at the office of the clerk of the burial board, if any, in whom any such burial ground or cemetery may be vested: Provided also, that it shall be lawful for the proprietors or directors of any proprietary cemetery or burial ground to make such byelaws or regulations as may be necessary for enabling any burial to take place therein in accord- ance with the provisions of this Act, any enactment to the contrary notwithstanding. 2. Such notice, in the case of any poor person deceased, whom the guardians of any parish or union are required or authorised by law to bury, may be given to the rector, vicar, or other incumbent in manner aforesaid, and also to the master of any workhouse in which such poor person may have died, or otherwise to the said guardians, by the husband, wife, or next of kin of such poor person, who, for the purposes of this Act, shall be deemed to be the person having the charge of the burial of such deceased poor person ; and in any such case it shall be the duty of the said guardians to permit the body of such deceased person to be buried in the manner provided by this Act. 3. Such notice shall state the day and hour when such burial is proposed to take place, and in case the time so stated qi. of burial be inconvenient on account of some other service having to be «tated, been, previously to the receipt of such notice, appointed subject to to take place in such churchyard or graveyard, or the “47242. church or chapel connected therewith, or on account of any byelaws or regulations lawfully in force in any graveyard limiting the times at which burials may take place in such graveyard, the person receiving the notice shall, unless some other day or time shall be mutually arranged within twenty-four hours from the time of giving or leaving such notice, signify in writing, to be delivered to or left at the address or usual place of abode of the person from whom such notice has been received, or at the house where the deceased person is lying, at which hour of the day named in the notice, or (in case of burial in a churchyard, if such day shall be a Sunday, Good Paupers. 514 BURIAL LAWS AMENDMENT ACT. -[APP. VU. Friday, or Christmas Day) of the day next following, such burial shall take place ; and it shall be lawful for the burial to take place, and it shall take place, at the hour so appointed or mutually arranged, and in other respects in accordance with the notice: Provided that, unless it shall be otherwise mutually arranged, the time of such burial shall be between the hours of ten o’clock in the forenoon and six o’clock in the afternoon if the burial be between the first day of April and the first day of October, and between the hours of ten o’clock in the forenoon and three o’clock in the afternoon if the burial be between the first day of October and the first day of April: Provided also, that no such burial shall take place in any churchyard on Sunday, or on Good Friday or Christmas Day, if any such day being proposed by the notice shall be objected to in writing for a reason assigned by the person receiving such notice. 4, When no such intimation of change ef hour is sent to the Burial to person from whom the notice has been received, or left take place at the house where the deceased person is lying, the accordingly, }yyrial shall take place in accordance with and at the time specified in such notice, 5. All regulations as to the position and making of the grave Regulations Which would be in force in such churchyard or grave- and fees, yard in the case of persons interred therein with the service of the Church of England shall be in force as to burials under this Act; and any person who, if the burial had taken place with the service of the Church of England, would have been entitled by law to receive any fee, shall be entitled, in case of a burial under this Act, to receive the like fee in respect thereof. 6. At any burial under this Act all persons shall have free access Donations be to the churchyard or graveyard in which the same shall with or without take place. The burial may take place, at the option religious of the person so having the charge of or being responsible prep hae for the same as aforesaid, either without any religious service, or with such Christian and orderly religious service at the grave, as such person shall think fit ; and any person or persons who shall be thereunto invited, or be authorised by the person having the charge of or being responsible for such burial, may conduct such service or take part in any religious act thereat. The words “Christian service” in this section shall include every religious service used by any church, denomination, or person professing to be Christian. App. vill.] BURIAL LAWS AMENDMENT ACT. 515 7. All burials under this Act, whether with or without a religious service, shall be conducted in a decent and orderly Burials to be manner; and every person guilty of any riotous, violent, conducted in or indecent behaviour at any burial under this Act, or nee . wilfully obstructing such burial or any such service as and without aforesaid thereat, or who shall, in any such churchyard obstruction. or graveyard as aforesaid, deliver any address, not being part of or incidental to a religious service permitted by this Act, and not otherwise permitted by any lawful authority, or who shall, under colour of any religious service or otherwise, in any such churchyard or graveyard, wilfully endeavour to bring into contempt or obloquy the Christian religion, or the belief or worship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person, shall be guilty of a misdemeanor, 8. All powers and authorities now existing by law for the preser- vation of order, and for the prevention and punishment powers for of disorderly behaviour in any churehyard or grave- prevention yard, may be exercised in any case of burial under this °f disorder, Act in the same manner and by the same persons as if the same had been a burial according to the rites of the Church of England. ' 9, Nothing in this Act shall authorise the burial of any person in any place where such person would have had no right Act not to give of interment if this Act had not passed, or without tight of burial ee : where no performance of any express condition on which, by the yy evious right terms of any trust deed, any right of interment in any existed. burial ground vested in trustees under such trust deed, not being the churchyard or graveyard, or part of the churchyard or graveyard, of the parish or ecclesiastical district in which the same is situate, may have been granted. 10. When any burial has taken place under this Act the person so having the charge of or being responsible for such pyiats under burial as aforesaid shall, on the day thereof, or the next Act to be day thereafter, transmit a certificate of such burial, in 7eeistered. the form or to the effect of Schedule (B.) annexed to this Act, to the rector, vicar, incumbent, or other officiating minister in charge of the parish or district in which the churchyard or graveyard is situate or to which it belongs, or in the case of any burial ground or cemetery vested in any burial board to the person required by law to keep the register of burials in such burial ground or cemetery, 516 BURIAL LAWS AMENDMENT ACT. [app. vitt. who shall thereupon enter such burial in the register of burials of such parish or district, or of such burial ground or cemetery, and. such entry shall form part thereof. Such entry, instead of stating by whom the ceremony of burial was performed, shall state by whom the same has been certified under this Act. Any person who shall wilfully make any false statement in such certificate, and any rector, vicar, or minister, or other such person as aforesaid, receiving such, certificate, who shall refuse or neglect duly to enter such burial in such register as aforesaid, shall be guilty of a misdemeanor. 11. Every order of a coroner or certificate of a registrar given Orter of under the provisions of section seventeen of the Births egies ana sand Deaths Registration Act, 1874, shall, in the case of registrar to a burial under that* Act, be delivered to the relative, bedelivered friend, or legal representative of the deceased, having eran *, the charge of or being responsible for the burial, instead acre person Of being delivered to the person who buries or performs who buries. | any funeral or religious service for the burial of the body of the deceased; and any person to whom such order or, certificate shall have been given by the coroner or registrar who fails so to deliver or cause to be delivered the same shall be liable to a. penalty not exceeding forty shillings, and any such relative, friend, or legal representative so having charge of or being responsible for the burial of the body of any person buried under this Act as aforesaid, as to which no order or certificate under the same section of the said Act shall have been delivered to him, shall, within seven days after the burial, give notice thereof in writing to the registrar, and if he fail so to do shall be lable to a penalty not exceeding ten pounds, 12. No minister in holy orders of the Church of England shall Liberty touse be subject to any censure or penalty for officiating with burial service the service prescribed by law for tbe burial of the dead eas according to the rites of the said church in any uncon- unconsecrated secrated burial ground or cemetery or part of a burial ground, ground or cemetery, or in any building thereon, in any ‘ case in which he might have lawfully used the same service, if such burial ground or cemetery or part of a burial ground or cemetery had been consecrated, The relative, friend, or legal repre- sentative having charge of or being responsible for the burial of any deceased person who had a right of interment in any such unconsecrated ground vested in any burial board, or provided under any Act relating to the burial of the dead, shall be entitled, if he * “This.” 44 and 45 Vict, ¢, 2 so corrects the clerical error in the principal Act, APP. VIll.] BURIAL LAWS AMENDMENT ACT. 517 think fit, to have such burial performed therein according to the rites of the Church of England by any minister of the said church who may be willing to perform the same. 13. From and after the passing of this Act, it shall be lawful for any minister in holy orders of the Church of England Relief of authorised to perform the burial service, in any case pea haes where the office for the burial of the dead according to England teens the rites of the Church of England may not be used, penalties in and in any other case at the request of the relative, certain cases. friend, or legal representative having the charge of or being respon- sible for the burial of the deceased, to use at the burial such service, consisting of prayers taken from the Book of Common Prayer and portions of Holy Scripture, as may be prescribed or approved of by the Ordinary, without being subject to any ecclesiastical or other censure or penalty. 14, Save as is in this Act expressly provided as to ministers of the Church of England, nothing herein contained shall g..., Parte authorise or enable any such minister who shall not ministers of have become a declared member of any other Church Church of or denomination, or have executed a deed or relin- sresre quishment under the Clerical Disabilities Act, 1870, to do any act which he would not by law have been authorised or enabled to do if this Act had not passed, or to exempt him from any censure or penalty in respect thereof. e 15. This Act shall extend to the Channel Islands, but Apptication shall not apply to Scotland or to Ireland. oe 16. This Act may be cited as the Burial Laws ghort title Amendment Act, 1880. of Act. 518 BURIAL LAWS AMENDMENT ACT. [appP. vill. SCHEDULES TO WHICH THIS ACT REFERS. SCHEDULE (A.) Notice of Burial. I , of » being the relative [or friend, or legal representative, as the case may be, describing the relation if a relative,| having the charge of or being responsible for the burial of A.B., of , who died at in the parish of , on the day of , do hereby give you notice that it is intended by me that the body of the said A.B,, shall be buried within the [here describe the churchyard or graveyard in which the body is to be buried, } on the day of , at the hour of without the performance in the manner prescribed by law of the service for the burial of the dead according to the rites of the Church of England, and I give this notice pursuant to the Burial Laws Amendment Act, 1880. To the Rector [or, as the case may be,| of ‘ ScHEDULE (B.) I , of , the person having the charge of (or being responsible for) the burial of the deceased, do hewsty certify that on the day of A.B. of , aged , was buried in the chureliyens [or graveyard] of the paren [or caerict) of To the Rector [or, as the case may be,] of a Lee) a IX, GLEBE LANDS ACT, 1888, 51 & 52 Vict. Chap. 20. An Act to facilitate the sale of Glebe Lands. [7th August, 1888.] E it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Glebe Lands Act, 1888. This Act shall not extend to Scotland or Ireland. 2. The incumbent of any benefice may from time to time, after the prescribed notice to the bishop of the diocese and Pent ida od the patron of the benefice, apply in the prescribed eee 4 ; manner to the Board of Agriculture’ to approve the Board of sale of the glebe land of such benefice, or any part Agriculture for sale of glebe. thereof, except the parsonage house and such land appurtenant thereto as hereinafter mentioned. 3. (1.) If the Board of Agriculture, on an application being made to them to approve the sale of any glebe land under ¢ 6 of riche this Act, think fit to entertain the application, and with approval are satisfied that the application has been duly made of Board of by an incumbent authorised to apply, and that the 4e"eulture. prescribed notice has been given to the bishop of the diocese and the patron of the benefice, and that an objection to the sale either has not been made by the bishop or patron, or if made ought not to prevent the sale, and that the sale will be for the permanent benefit ? The powers and duties of the Land Commissioners under this Act were trans- ferred to the Board of Agriculture by 52 & 58 Vict. Chap. 380, § 2. 520 GLEBE LANDS. ACT, 1888. [APP. IX. of the benefice, they may approve the sale of the said land, subject to the provisions of this Act, and the incumbent, with such approval, may sell the said land; but the Board of Agriculture shall not approve the sale of any land occupied by the parsonage house, or the outbuildings, garden, or other appurtenances thereof, or such part of the glebe land as they consider to be necessary for the convenient enjoyment of such house, and the opinion of the said Commissioners in respect of such matters shall be conclusive. (2.) If upon notice of a proposed sale under this Act the bishop of the diocese or patron objects to the sale, and the Board of Agri- culture are satisfied that such objection ought not to prevent the sale, the Board of Agriculture shall inform the bishop or patron, as the case may be, in writing, of their reasons for being so satisfied. 4, (1.) Upon the sale under this Act of the glebe land of any benefice, the purchaser shall pay the purchase money Payment and ; 3 i application of to the Board of Agriculture, and the prescribed receipt purchase of the Board of Agriculture for such money shall be a sok i sufficient discharge to the purchaser. (2.) The Board of Agriculture shall apply the purchase money so paid in defraying the prescribed expenses of or incident to the sale of such land and the investment of the purchase money, and (subject to the provisions of this Act as to incumbrances) shall invest the residue in such one or more of the modes hereinafter mentioned as may be selected by the incumbent of the benefice, with the approval of the Board of Agriculture, or (in default of such selection) by the Board of Agriculture ; namely (a) in purchase of any of the following securities, namely, Government securities, the debenture stock of any railway company in Great Britain or Ireland incorporated by special Act of Parliament, and having for at least ten years next before the date of investment paid a dividend on its ordinary stock or shares, stock of the Metropolitan Board of Works, and that stock of any county or municipal borough in which trustees are by law authorised to invest either generally or whenever they have power to invest in railway debenture stock, if such county or municipal borough had, according to the census last pub- lished next before the date of the purchase, a population exceeding one hundred thousand ; and ; APP, IX. } GLEBE LANDS ACT, 1888. 521 (6) in redemption of land tax, chief rent, or quitrent charged on any part of the glebe land which is not sold, so that the same may merge in the glebe ; and (c) In the purchase of any land adjacent to the parsonage house the possession of which in the judgment of the Board of Agri- culture would be for the benefit of the benefice and for the convenient enjoyment of such house. (3.) An investment in any securities shall be made in the name of the Ecclesiastical Commissioners for England, and any such investment may from time to time, with the approval of those Commissioners, be varied on the application and at the expense of the incumbent. (4.) Securities bought out of the purchase money under this Act of the glebe of any benefice and held by the Ecclesiastical Com- missioners for England shall be entered in the books kept by any body corporate, company, or persons in relation to those securities in the name of those Commissioners, but on a separate account ex-parte the benefice ; such body corporate, company, or persons, however, shall treat those Commissioners as the sole and absolute owner of the securities, and shall arrange with those Commissioners for the payment of the dividends, whether by dividend warrants sent through the post or otherwise, to such persons as may be directed by those Commissioners, and the enactments relating to dividend warrants shall apply to the warrants sent to any such person in like manner as if they were sent to the holder of the securities at his request. (5.) The Ecclesiastical Commissioners for England shall hold any securities purchased with money arising from a sale of land under this Act on the same trusts and for the same purposes on and for which the land sold was held; and may from time to time, if occasion requires, sell such securities and apply the proceeds on the said trusts aud for the said purposes, and shall cause the income arising from such securities to be paid or applied in such manner (if any) as may be directed in pursuance of this Act, and subject thereto, in such manner as the income of the said land sold would have been payable or applicable if such sale had not taken place. (6.) Any land purchased with money arising from a sale under this Act of the glebe land of any benefice shall be conveyed to the $22 GLEBE LANDS ACT, 1888. [APP. IX. incumbent of that benefice, and shall be held by the incumbent for the time being as part of the glebe of the benefice, and the income arising from the land shall be paid or applied as the income of the land sold would have been payable or applicable if the sale had not taken place. 5. (1.) Before approving the sale of any land under this Act the Board of Agriculture shall ascertain whether the amount of the purchase money is or is likely to be diminished by reason of any dilapidations which the incumbent is by law liable to make good, and, where they are of opinion that the purchase money is or is likely to be so diminished, shall provide for such sum as appears to them to be equal to the amount of such diminution being recouped to the benefice, either by payment of such sum by the incumbent or by the application of all or part of the income of the purchase money towards recouping such sum, and the amount paid towards such recoup- ment shall be dealt with as purchase money of the land under this Act, but until such sum is fully recouped, nothing in this section shall discharge the incumbent from his liability to make good the said dilapidations. Restrictions as to sales. (2.) Nothing in this Act shall empower the Board of Agriculture to approve the sale— (a) of any land subject to a lease originally created for a term exceeding twenty-one years; or (b) of any land let for any term whatever where by reason of the rent reserved on the lease being less than two thirds of the full annual value of the land, or for any other reason, the incumbent is not in possession of the full rents and profits of the land; or (c) of any mines or minerals in any case where it appears to them that such mines or minerals are or may become of considerable value. 6. (1.) Where any glebe land sold under this Act, or the benefice bs to which it belongs, is subject to any mortgage or other Provision te) where landis debt, the land when conveyed to the purchaser shall subject to vest in him free from such mortgage or debt, but such psig mortgage or debt, if not discharged, shall attach to ; the purchase money of the land and to any securities APP. 1X.] GLEBE LANDS ACT, 18838. 523 or land in or in connexion with which such purchase money is in- vested, and the mortgagee or creditor shall have the like remedies as nearly as may be in relation to such purchase money, securities, and land as he would have had if the land had not been sold. (2.) The prescribed notice of the proposal to sell any such glebe land shall be given to the mortgagee or creditor, and the mort- gagee or creditor may, within the prescribed time after such notice, object to the sale on the ground that his security will be damnified by the sale, and before the Board of Agriculture approve the sale they shall be satisfied that such notice has been duly given, and that either such an objection to the sale has not been made by the mortgagee or creditor, or if an objection has been made that the mortgagee or creditor will not be damnified by the sale; and the Board of Agriculture may, if it seems to them necessary, make provision either for securing the rights of the mortgagee or cred- itor, or for the discharge of the mortgage or other debt: Provided that any mortgage created for a limited term, and which is by statute only repayable by annual instalments out of the income of the benefice within such term, shall be discharged in the same instalments out of the interest of the purchase money of land sold under this Act, and that nothing shall be done which will preju- dice the future interest of the benefice, and such provision, and any provision which the Board of Agriculture may make for pre- venting any prejudice to the future interest of the benefice, shall be binding on the incumbent for the time being of the benefice, (3.) The Board of Agriculture may require the mortgagee or creditor to. accept payment of the principal and interest due to- gether with such additional sum (if any) as seems necessary in order to dispense with any notice which would otherwise be required for such payment. 7. Where any glebe land sold under this Act, or the benefice to which it belongs, or any part of the Provision as to d ent of such benefice, is subject to a permanent 20"™*) charges see ome i . NM ma at J I on benefice, annual charge in favour of the incumbent of any other benefice, the land when conveyed to the purchaser shall vest in him free from such annual charge, but the annual charge shall attach to the purchase money, and to any securities or land in or in connexion with which such purchase money is invested, and 524 GLEBE LANDS OACT, 1885: [APP. IX. the Ecclesiastical Commissioners for England may, if they think fit, set apart an adequate portion of such securities for the purpose of meeting such charge, or any part thereof, and shall thereupon discharge the said benefice and the endowment thereof from the liability to the annual charge or the said part thereof, and the securities so set apart shall be placed to a separate account or otherwise set apart in such manner as these Commissioners may direct. 8. (1.) For the purpose of facilitating the acquisition of land by cottagers, labourers, and others, it shall be the duty Supplemental of the Board of Agriculture in giving their approval provisions as to é s ; ee. of a sale under this Act, either to require as a con- dition thereof that the land or some part thereof shall be offered for sale in small parcels, or to the sanitary authority of a sanitary district for the purposes of the Allotments Act, 1887, or to satisfy themselves that such offer is not practicable without diminishing the price which can be obtained for the glebe land on a sale. (2.) Before approving of a sale under this Act of glebe land of any benefice, the Board of Agriculture shall require such notice of the proposed sale to be given as they think sufficient to give information thereof to the parishioners. (3.) The approval of the Board of Agriculture of a sale under this Act may be signified in the prescribed manner, and shall be conclusive evidence that the requirements of this Act with respect to the sale have been complied with. (4.) Subject to the provisions of this Act, the provisions of the Settled Land Act, 1882, with respect to the sale of land by a tenant for life shall, so far as circumstances admit, apply to a sale under this Act by an incumbent in like manner as if he were the tenant for life of the land, and accordingly he shall have the like power with respect to contracts as a tenant for hfe under that Act, and may do all things necessary and proper for carrying into effect a sale under this Act. 9. (1.) The Board of Agriculture with the approval of the Lord High Chancellor of Great Britain, and, where any rule affects any costs payable out of the Exchequer, with the further consent of the Commissioners of Her Power to make rules, APP. IX.] GLEBE LANDS ACT, 1888. 525 Majesty’s Treasury, may from time fo time make, and when made alter and rescind, rules with respect to the proceedings of the Board of Agriculture under this Act, and the procedure to be ob- served by applicants and others in relation to such sales, and with respect to the forms to be used for the purposes of this Act, and with respect to any matter which by this Act is authorised or required to be prescribed, or which appears to be necessary or proper for carrying this Act into effect. (2.) The Commissioners of Her Majesty’s Treasury may from time to time make, and when made alter and rescind, rules fixing the fees to be paid to the Board of Agriculture in respect of any proceeding under this Act, and the mode in which such fees are to be taken, and such fees shall be paid into the Exchequer either directly or by means of stamps, and any such fees paid in relation to a sale shall be deemed to be part of the expenses of the sale. (3.) All rules made by the Board of Agriculture under this section shall be judicially noticed, and shall be laid before both Houses of Parliament within three weeks after they are made if Parliament be then in session, and, if Parliament be not then in session, within three weeks after the beginning of the nee next session of Parliament. 10. (1.) Where any act is authorised or required to be done or any notice is required to be given by or to any patron or person for the purpose of this Act, such act and ena so Py notice may, in the case of the patrons mentioned in ; the enactments set out in the schedule to this Act, be done and given, so far as may be, by and to the persons and in the manner provided by those enactments in like manner as if such act were a consent, and in the case of any matters to which those enactments do not apply and of any patrons or persons other than the patrons mentioned in the said enactinents, or the Duke of Cornwall, shall be done and given in the prescribed manner. (2.) Where the advowson of any benefice is part of the posses- sions of the Duchy of Cornwall, any notice required to be given to the patron of such benefice for the purposes of this Act may be given to the keeper of the records of the Duchy of Cornwall, and any act authorised or required to be done by the patron of such benefice for the purposes of this Act may be done under the 526 GLEBE LANDS ACT, 1888. [APP. IX. seal of the Duchy of Cornwall; and in the event of the Duke of Cornwall being under.the age of twenty-one years, or of there being no Duke of Cornwall, may be done in the manner in which any act in relation to the possessions of the Duchy of Cornwall may be done in pursuance of section thirty-eight or thirty-nine of the Duchy of Cornwall Management Act, 1863, as the case requires. 11. Such notice to the bishop of the diocese as may be prescribed for the purposes of this Act shall be substituted for bite A the period of three months’ notice which, in pursuance spree gis of section one of the Ecclesiastical Leasing Act, 1858, is required to be given to the bishop of the diocese on every proposed sale of glebe lands under the provisions of that Act, but, save-as aforesaid, nothing in this Act shall limit or prejudice the powers-and provisions contained in the Ecclesiastical Leasing Acts or in the Acts administered by the Governors of the Bounty of Queen Anne for the Augmentation of the Maintenance of the Poor Clergy. 12. In this Act the following expressions have the meanings hereby assigned to them unless there be something Definitions. : in the context repugnant thereto :— The expressions “benefice” and “patron” have the same meaning as in the Ecclesiastical Dilapidations Act, 1871 : The expression “bishop” in relation to the diocese of an arch- bishop includes the archbishop : The expression “ glebe land” includes any manor, land, or tene- ment forming the endowment or part of the endowment of a benefice : The expression “prescribed” means prescribed by rules made in pursuance of this Act, APP. IX.] GLEBE LANDS ACT, 1888. 527 SCHEDULE. 1 & 2 Vict. c. 106. ss. 126, 127, 126. And be it enacted, that in any case in which the consent of the patron of any benefice shall be required to the exercise of any power given by this Act, or in which How consent any notice shall be required by this Act to be given to of patron to be . testified when the patron of any benefice, and the patronage of such jatronage in benefice shall be in the Crown, the consent of the the Crown. Crown to the exercise of such power shall be testified, and such notice shall be given respectively in the manner herein- after mentioned ; (that is to say,) if such benefice shall be above the yearly value of twenty pounds in the Queen’s books, the instrument by which the power shall be exercised shall be exe- cuted by and any such notice shall be given to the Lord High Treasurer or First Lord Commissioner of the Treasury for the time being; and if such benefice shall not exceed the yearly value of twenty pounds in the Queen’s books, such instrument shall be executed by and any such notice shall be given to the Lord High Chancellor, Lord Keeper or Lords Commissioners of the Great Seal for the time being; and if such benefice shall be within the patronage of the Crown in right of the Duchy of Lancaster, such instrument shall be executed by and any such notice shall be given to the Chancellor of the said Duchy for the time being; and the execution of such instrument by and any such notice given to such person or persons shall be deemed and taken for the purposes of this Act to be an execution by and a sufficient notice to the patron of the benefice. 127. And be it enacted, that in any case in which the consent of the patron of any benefice shall be required to the exercise. of any power given by this Act, and the ew where : nies . patron is an patron of such benefice shall be a minor, idiot, lunatic, incapacitated or feme covert, it shall be lawful for the guardian person. or guardians, committee or committees, or husband of such patron (but in case of a feme covert with her consent in writing) to execute the instrument by which such power shall be exercised in testimony of the consent of such patron; and such execution shall, for the purposes of this Act, be deemed and taken to be an execution by the patron of the benefice. 2N 528 SALE OF GLEBE LAND: RULES, 1897. [APP..1%: THE SALE OF GLEBE LAND RULES, 1897, Mapvr Marcu 15TH, 1897, Pursuant TO THE PROVISIONS OF THE GLEBE LAnps Act, 1888. 1. The incumbent of any benefice desirous of selling glebe land under the provisions of the Glebe Lands Act, 1888, must give notice to the bishop of the diocese and to the patron of the bene- fice, in the Form No. 1 in the schedule hereto with map annexed, of his intention to apply to the Board of Agriculture for their approval of the proposed sale. Such particulars of the objects and advantages of the proposed sale and of the situation of the land should be given to the bishop and the patron as may enable them to judge whether such sale is one to which they should object. If the bishop or the patron does not communicate with the Board within one month, the Board will assume that he makes no ob- jection to the proposed sale. An acknowledgment of the receipt of the notices by the bishop and the patron, in the Form No. 2 in the schedule hereto, should be obtained by the incumbent and forwarded by him to the Board with his application for their approval of the sale. When the patronage of the benefice is in the Crown, the notice must be given to the First Lord of the Treasury, Whitehall, London, 8.W., unless the yearly value of the benefice does not exceed twenty pounds in the Queen’s Books, when the notice must be given to the Lord High Chancellor, Reyal Courts of Justice, London, W.C. If the patronage of the Crown is in right of the Duchy of Lancaster, the notice must be given to the Chancellor of the Duchy, Lancaster Place, Strand, London, W.C. If the patronage is in the Duchy of Cornwall, the notice must be given to the Keeper of the Records, Duchy of Cornwall Office, 1, Buckingham Gate, London, S.W. If the patron of the benefice is a minor, idiot, lunatic, or feme covert, the notice must be given respectively to the guardian or guardians, to the committee or committees, or to the husband and wife, as the case may be. If the land is subject to any mortgage or other debt, notice, in the Form No. 3 in the schedule hereto, of the proposed sale must be given to the mortgagee or creditor, who, if he has any objection APP. 1X.] SALE OF GLEBE LAND RULES, 1897. 529 to the sale, on the ground that his security will be damnified, must - signify the same in writing to the Board within one month from the date of the service of the notice. Notice of the proposed sale must also be given to the parishioners, by posting notices, in the Form No. 4 in the schedule hereto, on the notice board of the parish church, at the post office, and other usual places for posting notices in the parish, on three successive Sundays. A similar notice must be given to the sanitary authority of the district. If the land or any part of it is not in the same parish as the church of the benefice to which it belongs, the notices to the parishioners and the sanitary authority must be given in both places. Notices may be served by registered letter, or personally, or by being left at the usual place of abode or business of the person to be served, and the incumbent must satisfy the Board that the notices have been duly given. 2. An incumbent cannot under the Act sell the parsonage house, or the outbuildings, garden or other appurtenances thereof, or such part of the glebe land as the Board may consider to be necessary for the convenient enjoyment of the parsonage house ; nor can he sell glebe land leased for a term originally exceeding 21 years, or glebe land let for any term whatever, where, by reason of the rent reserved on the lease being less than two-thirds of the full annual value of the land, or for any other reason, he is not in possession of the full rents and profits ; nor can he sell any mines or minerals which in the opinion of the Board are or may become of considerable value. 3. After the notices have been given to the bishop and the patron, the incumbent may apply, in the Form No. 5 in the schedule hereto with map annexed, to the Board to approve the sale. 4, The application must be accompanied by full replies to the several questions in the Form No. 6 in the schedule hereto, and the incumbent must, if required, furnish such further information as may be necessary to satisfy the Board that the proper notices have been given, that the proposed sale will be for the permanent benefit of the benefice, and that it is otherwise in accordance with’ the provisions of the Act. No miaterial expense should be incurred until the Board have 530 SALE OF GLEBE LAND RULES, 1897. [arp. 1X. _ been able to judge, from the information thus furnished, whether primd facie the sale is expedient. 5. Special attention is directed to section 8, sub-section 1, of the Act, which provides that for the purpose of facilitating the acquisition of land by cottagers, labourers, and others, it shall be the duty of the Board, in giving their approval of a sale under this Act, either to require as a condition thereof that the land, or some part thereof, shall be offered for sale in small parcels, or to the sanitary authority of a sanitary district for the purposes of the Allotments Act, 1887, or to satisfy themselves that such offer is not practicable without diminishing the price which can be obtained for the glebe land on a sale. The Board must be fully informed how it is proposed to comply with the provisions of this section. 6. When the Board have been satisfied as to the primd facie. expediency of the proposed sale, the land must be valued by a competent valuer, unless otherwise directed by the Board. The valuer will be nominated by the Board, who will give him the necessary instructions. 7. The report of the valuer must afford full information as to all the following matters :— i. The rentable and fee simple values of the land ; ii. The quality of the land ; ili. The value of the timber (if any) ; iv. The state of the buildings ; v. Whether the value of the land to be offered for sale is likely to be diminished, and if so to what amount, by any dilapidations which the incumbent is liable to make good ; section 5 (1) ; vi. Whether there are known or supposed to be any mines or minerals, and of what value. (N.B.—Mines and minerals may include not only coal and iron and other metallic minerals, but also such substances as stone, fire- clay, gravel, sand, brick-earth, &c.) ; vii, Whether the land possesses any accommodation value to adjoining owners ; viii. The outgoings (if any). The valuer must report specially, with reference to section 8 of the Act, whether there is likely to be a demand for small APP. IX.) SALE OF GLEBE LAND RULES, 1897. 531 parcels or allotments in the locality, and whether any and what part of the glebe land proposed to be sold would be suitable for the purpose, and could be so sold without diminishing the price otherwise likely to be obtained for the glebe land, and shall, where required so to do by the Board, give public notice, in the Form No. 7 in the schedule hereto, in like manner as notices to parishioners under Rule 1 are required to be given, seven clear days beforehand, of his intention to visit the locality for the purpose of inquiring into the practicability of selling such glebe land, or some part thereof, in small parcels, without diminishing the price of the glebe land as aforesaid, and shall report to the Board the details of such inquiry and his opinion thereon, and shall satisfy the Board that the notices were duly given. The valuation must be accompanied by a map of the lands which when practicable should show the whole of the glebe, and should distinguish the part to be sold. 8. The Ordnance Survey map should in all cases be used ; the 6-inch scale map will generally suffice, but if the land is to be sold in small lots the map on the 3455 scale should be used. The names of the adjoining owners should be written on the map. 9. If there are any dilapidations to be made good by the in- cumbent he must inform the Board whether he will make them good before the sale, or whether he proposes to recoup the amount to the benefice by an immediate money payment, or by the appli- cation of all or part of the income of the purchase money, as provided by section 5 of the Act. 10. When the Board have approved the sale, in the Form No. 8 in the schedule hereto, the incumbent may sell the land, subject to the conditions, if any, required by them, and to the provisions of the Act. 11. The incumbent shall, if called upon to do so, furnish to the Board a copy of the conveyance or of so much thereof as the Board may require. 12. The purchase money must be paid to the account of the Board with the Bank of England. The receipt of the Board, in the Form No. 9 in the schedule hereto, will be a sufficient dis- charge to the purchaser. 13. The expenses of or incident to the sale will, unless other- wise provided for, be defrayed out of the purchase money. They will inelude all necessary and reasonable expenses of a solicitor, 532 SALE-OF GLEBE LAND RULES, 1897: [APP. 1X; valuer, and auctioneer when employed, the fee payable to the Board, the cost of investment, and such other expenses, if any, as the Board may allow. 14. (1.) The Board, after payment of the expenses of the sale, will, subject to the provisions of the Act as to incumbrances, invest the balance of the purchase money in such one or more of the following modes as the incumbent, with their approval, may select, or, failing selection, as they may direct, namely :— (va) In purchase of any of the following securities, namely, Government securities, the debenture stock of any railway company in Great Britain or Ireland, incorporated by special Act of Parliament, and having for at least 10 years next before the date of investment paid a dividend on its ordinary stock or shares, stock of the Metropolitan Board of Works, and that stock of any county or municipal borough in which trustees are by law authorised to invest either generally, or whenever they have power to invest in railway debenture stock, if such county or municipal borough had, according to the census last published next before the date of the purchase, a population exceeding 100,000, or in any of the investments authorised by the Trustee Act, 1893 ; and (b) In redemption of land tax, chief rent, or quitrent, charged on any part of the glebe which is not sold, so that the same may merge in the glebe ; and (c) In the purchase of any lands adjacent to the parsonage house, the possession of which, in the judgment of the Board, would be for the benefit of the benefice, and for the con- venient enjoyment of such house. (ii.) Investments in securities will be made in the name of the Ecclesiastical Commissioners for England, who will arrange for the payment of the dividends thereon, and with whose approval the securities may be varied on the application and at the expense of the incumbent. (iii.) If any part of the purchase money is applied in the purchase of other land, such land will be conveyed to the in- cumbent, and become part of the glebe of the benefice. 15. The necessary forms will be supplied! on application to the Board. X On application to the Board of Agriculture, 3, St. James Square, London, 8.W., copies of the prescribed forms will be supplied without charge, and post-free, 4 Besa3=] x THE TITHE. ACT, 1891, 54 Vict. Ch. 8. An Act to make better provision for the Recovery of Tithe Rent- charge in England and Wales. [26th March, 1891.] E it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1.—(1.) Tithe rentcharge as defined by this Act issuing out of any lands shall be payable by the owner of the lands, notwithstanding any contract between him and the ape mil occupier of such lands, and any contract made between tithe rentcharge, an occupier and owner of lands, after the passing of oo See this Act, for the payment of the tithe rentcharge by Jit tenants, the occupier shall be void. (2.) Where the occupier is liable under any contract made before the passing of this Act to pay the tithe rentcharge, then he shall cease to be bound by that part of his contract, but he shall be liable to pay to the owner such sum as the owner has properly paid on account of the tithe rentcharge which such occupier is liable under his said contract to pay, exclusive of any costs incurred or paid by the owner in respect of such tithe rentcharge, and every receipt given for such sum shall state expressly that the sum is paid in respect of that tithe rentcharge: Provided that where the lands, out of which any tithe rentcharge issues, are occupied by several occupiers who have contracted to pay the tithe rentcharge, any of such occupiers shall be liable only to pay such proportion of the sum paid by the owner of the lands on account of that tithe rent- charge as the rateable value of the lands occupied by him bears to 534 LIST CA CTERIS9), [APP the rateable value of the whole of the lands occupied by such occupiers. . (3.) Such sum shall be recoverable from the occupier by distress in like manner as is provided by sections eighty-one and eighty-five of the Act of the session of the sixth and seventh years of the reign of King William the Fourth, chapter seventy-one, and the enact- ments amending those sections, and not otherwise. 2.—(1.) Where any sum due on account of tithe rentcharge issuing Recovery ofaeeee of any lands is in arrear for not less than three tithe rentcharge months, the person entitled to such sum may, whatever through is the amount, apply to the county court of the district county court. in which the lands or any part thereof are situate, and the county court, after such service on the owner of the lands as may be prescribed, and after hearing such owner if he appears and desires to be heard, may order that the said sum, or such part thereof as appears to the court to be due, be, together with the costs, recovered in manner provided by this Act, and tithe rentcharge as defined by this Act shall not be recovered in any other manner. (2.) Where it is shown to the court that the lands are occupied by the owner thereof, the order shall be executed by the appointment by the court of an officer who, subject to the direction of the court, shall have the like powers of distraint for the recovery of the sum ordered to be paid as are conferred by the Tithe Acts on the owner of a tithe rentcharge for the recovery of arrears of tithe rentcharge, and no greater or other powers ; and if there is no sufficient distress the person entitled to the sum ordered to be recovered may proceed to obtain possession of the lands under section eighty-two of the Tithe Act, 1836. (3.) In any other case the order shall be executed by the appoint- ment by the court of a receiver of the rents and profits of the lands, and of any other lands which would be liable to be distrained upon for the tithe rentcharge to which the order refers under the pro- visions of section eighty-five of the Tithe Act, 1836, and where any of such lands are held at one rent together with other lands in another parish, the court shall apportion the rent between the said lands and the lands in the other parish in proportion to their rate- able value, in which case the payment of such apportioned rent by the occupier to the receiver shall in every respect, as between the occupier and the owner of the lands, be deemed to be a payment on account of the total rent payable to the owner of such lands. APP. X.] TITHE ACTS AS9h 535 (4.) Subject to the prescribed regulations, the county court shall have the same powers over receivers as in any other case, and may confer on the person appointed receiver any powers which the court can confer upon persons appointed receivers, but the court shall not have power to order the sale of the lands. (5.) Any sum ordered by the court under this section to be re- covered shall be payable by a trustee in bankruptcy, sheriff, or officer of a court who is in possession of the lands, in like manner as if it were tithe rentcharge recoverable under the Tithe Acts, (6.) Where the occupier of the lands out of which the tithe rent- charge issues is liable under any contract made before the passing oi this Act to pay the tithe rentcharge, and is consequently liable by virtue of this Act to:pay the amount thereof to the owner of the lands, the owner of the lands shall serve notice of such liability on the owner of the tithe rentcharge, and thereupon, before an order under this section is made, there shall be such service on the occupier in addition to the owner as may be prescribed, and a hearing of such occupier if he appears and desires to be heard. Any owner of the lands who fails to serve such notice as aforesaid on the owner of the tithe rentcharge, shall not be entitled to recover from the occupier any sum which he has paid on account of tithe rent- charge as aforesaid, unless and until he has, after notice to the occupier of his application for the same, obtained from the county court a certificate that there was good and sufficient cause for the failure to give such notice, and that the occupier has not been prejudiced thereby. (7.) Rules under this Act may regulate the procedure practice and costs under this Act in county courts, and may direct what service shall be good service for the purposes of this Act on the owner or occupier of any lands or the owner of any tithe rentcharge, and may provide that, if the owner of any Jands is not known, any proceeding under this Act may be taken against the owner of the lands without naming the person who is the owner. (8.) The fees payable on the proceedings under this section shall not exceed those set forth in the schedule to this Act, and the fees, charges, and expenses in or incidental to any distress under this Act shall be the same as are for the time being payable under the Law of Distress Amendment Act, 1888. (9.) Nothing in this Act shall impose or constitute any personal liability upon any occupier or owner of lands for the payment of 536 TITHE ACT, 1891. [AP. x. any tithe rentcharge, or any other sum recoverable or payable under this Act, and the court shall not, by virtue of this Act, or of the County Courts Act, 1888, have any power to imprison any such occupier or owner by reason only of the nonpayment of such tithe rentcharge or other sum, and shall in any other case have no other or greater powers of fine or imprisonment than are conferred by the County Courts Act, 1888. 3.—(1.) The Lord Chancellor may, after consultation with the Rule Committee of County Court Judges, make rules for carrying this Act into effect, and for regulating, providing, and prescribing any matter authorised by this Act to be regulated, provided, or prescribed by rules under this Act. In framing such rules regard shall be had to making the procedure as simple and inexpensive as is practicable. (2.) Every rule under this Act shall be laid before each House of Parliament within forty days next after it is made, if Parliament is then sitting, or, if not, within forty days after the commencement of the then next ensuing session, and if an address is presented to Her Majesty by either House of Parliament within the next subsequent forty days on which the said House shall have sat, praying that any such rule may be annulled, Her Majesty may thereupon, by Order in Council, annul the same; and the rule so annulled shall thence- forth become void and of no effect, but without prejudice to the validity ot any proceedings which may in the meantime have been taken under the same. 4, Where a receiver appointed under this Act of the rents and profits of any lands satisfies the county court that the lands are let on such terms as not to reserve a rent, sufficient to enable the receiver to recover from the owner thereof the sum ordered to be recovered, the court, after such service on the owner and occupier of the lands as may be prescribed, and after hearing such owner and occupier if they appear and desire to be heard, may direct that the order for such recovery shall be executed as if the occupier were the owner of the lands: Provided that any such occupier shall be entitled in addition to any other remedy, unless he would have been liable to pay the tithe rentcharge under any contract made before the passing of this Act, to deduct from any sums at any time becoming due from him to the landlord under whom he holds, any amount which shall have been recovered from him under this section in respect of tithe rentcharge or Rules. Lands occupied rent free, &c. APP. X.] . DPILTLEES AC Pete le 537 costs, with interest thereon at the rate of four per centum per annum: Provided further, that such occupier shall be entitled, notwithstanding anything in this Act, to recover from such landlord by action at law any such amount which shall have been recovered from him under this section as aforesaid as money paid on the account of such landlord, 5.—(1.) An application to a county court for an order under this Act may be made on behalf of the tithe owner by his agent, although not a solicitor. (2.) On any application to a county court for an order under this Act, no costs either of a solicitor or of a witness shall be allowed in any case where the amount claimed is paid without further proceedings, nor where notice of intention to apply for time to pay the tithe owner’s claim has been given (except in cases where costs could be allowed by the court on a judgment summons), and when notice of opposition has been given within the prescribed time, the costs of a solicitor shall only be allowed for work done subsequent to the notice. 6.—(1.) Any rate to which tithe rentcharge is subject shall be assesssed on and may be recovered from the owner of the tithe rentcharge, in the like manner and by the Beers ries like process as on and from any occupying ratepayer ; eee 4 and so much of any Act as authorises any rate on tithe rentcharge to be assessed on or recovered from the occupier of any lands out of which the tithe rentcharge issues is hereby repealed, (2.) If the collector of the rate satisfies the county court that he is unable to recover in manner aforesaid any rate assessed on the owner of any tithe rentcharge, the court may, after such service on the owners of the tithe rentcharge, and of the lands out of which the tithe rentcharge issues, as may be prescribed, and after hearing such owners, if they appear and desire to be heard, order the owner of the lands to pay such tithe rentcharge to the collector until the amount of the rate, and any costs allowed by the court, are fully paid ; and the order may be executed as if it were an order under this Act for the payment of a sum due on account of the tithe rentcharge. (3.) The court may, if satisfied that the circumstances justify it, make stich order as aforesaid in respect of any future rate, either generally or during the time limited by the order. Restrictions as to costs. 538 TITHE ACT, 1891. [APP. X. (4.) The expression “rate” in this section means a poor rate, highway rate, general district rate, borough rate, and every other rate assessed on an owner of tithe rentcharge by a public authority for public purposes; and the expression “collector” means the over- seer, surveyor of highways, rate-collector, or cter person authorised, for the time being, to collect the rate. 7. If any party in any action or matter under this Act shall be dissatisfied with the determination or direction of the judge of the county court in point of law or equity, or upon the admission or rejection of any evidence, the party aggrieved by the judgment, direction, decision, or order of the judge may appeal trom the same to the High Court, in such manner and subject to such conditions as may be for the time being provided by the rules of the Supreme Court regulating the procedure on appeals from inferior courts to the High Court. 8.—(1.) Where a sum is claimed on account of tithe rentcharge . issuing out of any lands, and the county court is Remission of : : : : : ice eastoneres satisfied that, if the sum claimed is paid, the total when exceeding amount paid on account of the tithe rentcharge for the two-thirds period of twelve months next preceding the day on annual value of : , : A . ey which the sum claimed became payable, will exceed two-thirds of the annual value of the lands as ascer- tained and entered in the assessment for the purpose of Schedule B. to the Income Tax Act, 1853, or as certified as herein-after men- tioned, the court shall order the remission of so much, whether the whole or part of the sum claimed, as is equal to the excess, and the amount so ordered to be remitted shall not be recoverable; and if the court is satisfied that neither such remission, nor the liability thereto, has been taken into account in estimating the rateable value of the tithe rentcharge, the court may remit such amount of any then current rate assessed on the owner of the tithe rentcharge as appears to the court to be proportionate to the amount of the remission of tithe rentcharge. (2.) Where the lands out of which any tithe rentcharge issues are assessed for the purposes of the said Schedule B. together with other lands, the surveyor of taxes for the parish in which the lands are so assessed, on the application of the owner or occupier of the lands, shall divide the annual value in such assessment between the lands out of which any tithe rentcharge issues and the other lands, and give notice of the annual value of the lands as determined on such Power of appeal. APP. X.] ; TITHE ACT, 1891. 539 division to the applicant and to the owner of the tithe rentcharge ; and if either of them is dissatisfied with the annual value so determined, he may appeal to the general commissioners of income tax for the division in which the lands are assessed, and those commissioners, after due notice to and hearing the parties or their agents if any of them wishes to be so heard, shall finally determine the proper division of the annual value; and the annual value of lands so determined as aforesaid shall, for the purposes of this section, be the annual value of the lands as ascertained for the purpose of the said Schedule B, (3.) For the purposes of this section the owner of tithe rentcharge shall have the same right of appeal as the owner of lands, whether under the enactments relating to the said assessment or under this section. (4.) If in any case the annual value of any lands is not ascer- tained and entered in the assessment for the purpose of the said Schedule B., the general commissioners of income tax for the division in which the lands are situate shall, on the application of the owner or occupier of the lands, ascertain the annual value of the lands for the purpose of the said Schedule B, and inform the applicant of the same, (5.) The commissioners of taxes shall on demand and payment of one shilling give a certificate of the amount of the annual value of any lands under this section. (6.) Where it appears from any award that a special apportion- ment has been made in pursuance of section fifty-eight of the Tithe Act, 1836, whereby tithe rentcharge has been charged specially upon certain closes of land in different proportions, and to the exclusion of certain of them, the court shall not grant a remission under this section unless satisfied that the applicant would have been entitled to such remission if no such special apportionment had been made. (7.) Where two or more tithe rentcharges issue out of the same lands, and a remission of tithe rentcharge has been made by a county court under this section, the amount paid by the owner of the lands on account of tithe rentcharge shall be divided between the owners of such tithe rentcharges in proportion to the amount thereof as fixed by the apportionment or any altered apportionment. (8.) This section shall not apply to any lands other than those used solely for agricultural or pastoral purposes or for the growth of timber or underwood. 540 “TITHE ACT, 1891. [APP. x. 9.—(1.) A reference in this Act to the “owner” of lands or tithe rentcharge,— (a) if the ownership of the lands or rentcharge is vested in the Queen in right of Her Crown, means the Commissioners of Woods, in substitution for the Queen; and (b) if the ownership of the lands or rentcharge is vested in the Duke of Cornwall, means the keeper of the records of the Duchy of Cornwall, in substitution for the Duke of Cornwall; and (c) in any other case, means the same officers or persons as are mentioned in the Tithe Act, 1836. (2.) In this Act, unless the context otherwise requires,— The expression “tithe rentcharge” means tithe rentcharge issuing out of lands and payable in pursuance of the Tithe Acts, and in- cludes any rentcharge into which a corn rent has, either before or after the passing of this Act, been converted under the Tithe Act, 1860, and which is subject to the like incidents as such tithe rent- charge as aforesaid; but does not include a rentcharge payable under the Extraordinary Tithe Redemption Act, 1886, nor a rentcharge payable under the Tithe Act, 1860, in respect of the tithes on any gated or stinted pasture, nor a sum or rate payable for each head of cattle or stock turned on land subject to common rights or held or enjoyed in common. The expression “prescribed” means prescribed by rules under this Act. 10.—(1.) This Act shall extend to every sum on account of tithe Commencement rentcharge which first becomes payable on or after the and application half-yearly day of payment of such tithe rentcharge of Act which occurs next after the passing of this Act, whether and saving. such sum accrued before or after that day, and shall not extend to sums due on account of tithe rentcharge which were in arrear before the passing of this Act, nor, except so far as relates to the assessment and recovery of rates, shall it extend to tithe rent- charge issuing out of the lands of a railway company. (2.) A sum on account of tithe rentcharge shall not be recoverable under this Act unless proceedings for such recovery have been com- menced before the expiration of two years from the date at which it became payable. (3.) Nothing in this Act shall alter the priority of any tithe rentcharge in relation to any other charge or incumbrance upon any lands, Definitions, APP. X.] . TITHE VAGIN 189T SAt (4.) Any enactment in the Tithe Acts or in the Extraordinary Tithe Redemption Act, 1886, directing any expenses, rentcharge, or other sums to be recovered as tithe rentcharge, shall, as respects any sum becoming due after the passing of this Act, be construed to refer to the recovery of tithe rentcharge under this Act, save that the owner of the lands shall not be entitled to obtain any remission under this Act. 11. Section eighty-four of the Tithe Act, 1836, is hereby repealed. 12.—(1.) This Act shall not extend to Scotland or Ireland. (2.) This Act may be cited as the Tithe Act, 1891. (3.) The Act of the session of the sixth and seventh years of the reign of King William the Fourth, chapter *seventy-one, intituled “An Act for the commutation of Tithes in England and Wales,” is in this Act referred to and may be cited as the Tithe Act, 1836, and that Act and the enactments amending the same passed before the passing of this Act are in this Act referred to and may be cited as the Tithe Acts. (4.) The Act of the session of the twenty-third and twenty-fourth years of the reign of Her present Majesty, chapter ninety-three, intituled “An Act to amend and further extend the Acts for the commutation of Tithes in England and Wales,” is in this Act referred to and may be cited as the Tithe Act, 1860. (5.) The Act of the session of the sixteenth and seventeenth years of the reign of Her present Majesty, chapter thirty-four, intituled “An Act for granting to Her Majesty duties on profits arising from property, professions, trades, and offices,” is in this Act referred to and may be cited as the Income Tax Act, 1853, Repeal, Extent of Act and short titles. 542 LUTITIOMAC Dai ser. TAPP. x. SCHEDULE. FEES UNDER SECTION 2 oF THE TiTHE Act, 1891, Where the sum claimed does not exceed five pounds : For notice of application to the court . One shilling. For making the order . : : One shilling and sixpence. Where the sum claimed exceeds five pounds : For notice of applica- One shilling for every five pounds and Heeae icone { fraction above five pounds or any mul- tiple of five pounds of the sum claimed. One shilling and sixpence for every five For making the order pounds and fraction above five pounds or any multiple of five: pounds of the sum claimed. But the total fee in any one case shall not exceed— For notice of the application Ten shillings, For making the order . Fifteen shillings, 1 543 J Der THE CLERGY DISCIPLINE ACT, 1892. 55 & 56 Vict. Chap. 32. _ An Act for better enforcing Discipline in the Case of Crimes and other Offences against Morality committed by Clergymen, [27th June, 1892. ] E it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1,—(1.) If either— («) a clergyman is convicted of treason or felony, or is convicted on indictment of a misdemeanour, and on any such conviction is sentenced to imprisonment FMet of con- j EB viction of clergy- with hard labour or any greater punishment, or man for treason, (b) an order under the Acts relating to bastardy is felony, or grave made on a.clergyinan, or Blea spee pay as ; ; R . , or for certain (c) a clergyman is found in a divorce or matrimonial other offences. cause to have committed adultery, or (d) an order for judicial separation is made against a clergyman in a divorce or matrimonial cause, or (¢) a separation order is made against a clergyman under the Matrimonial Causes Act, 1878 ; then, after the date at which the conviction, order, or finding be- comes conclusive, the preferment (if any) held by him shall, within twenty-one days, without further trial be declared by the bishop to be vacant as from the said date, and he shall be incapable, save as in this Act mentioned, of holding preferment. (2.) Provided that if when so convicted he receives a free pardon . 20 544 CLERGY DISCIPLINE ACT, 1892. [APP. XI. from the Crown his incapacity shall cease, and if he receives the pardon before the institution of another clergyman to such prefer- ment the bishop shall, within twenty-one days after receiving notice in writing of such pardon, again institute him and cause him to be inducted into the preferment, and no fee shall be payable to any person whomsoever in respect thereof. (3.) If any act required under this section to be done by a bishop is not done within the said twenty-one days it shall be done by or under the authority of the archbishop of the province. 2. If a clergyman either is convicted by a temporal court of Complaint having committed an act constituting an ecclesiastical against offence, and the foregoing section does not apply to clergyman for him, or is alleged to have been guilty of any immoral gore act, immoral conduct, or immoral habit, or of any offence against the laws ecclesiastical, being an offence against morality and not being a question of doctrine or ritual, he may be prosecuted by any of the parishioners of the parish in which such clergyman holds preferment, or by the bishop of the diocese, or by any person approved by the bishop, and tried in the consistory court of the diocese in which he holds preferment, and may be so pro- secuted and tried in accordance with the prescribed procedure, ' subject as follows :— (a) If the complaint made against the clergyman appears to the bishop of the diocese to be too vague or frivolous to justify proceedings he shall disallow the prosecution : (b) The prosecutor may at any stage of the proceedings be ordered to give security for costs, unless the offence alleged in the pro- secution is one of which the clergyman has been convicted by a temporal court : _(c) If any question of fact (other than the fact of the conviction of a temporal court) has to be determined, and either party to a case so requires, five assessors shall be chosen in the prescribed manner, and shall, for deciding a question of fact, be members of the court; and the decision of such question must either be the unanimous decision of the assessors, or that of the chancellor and at least a majority of the assessors : (d) If no such decision is arrived at, the case shall, if either party so desires, be retried as soon as possible, with assessors chosen as before, save that no assessors who acted at the former trial shall act as assessors on the retrial : APP. XI.] CLERGY DISCIPLINE ACT, 1892. 545 (¢) The chancellor on any trial shall preside, and shall alone determine any question of law, and also any question of costs, and whether the question is one of law or of fact shall be deemed to be a question of law. 3.—(1.) The assessors shall be chosen in the prescribed manner from the list of assessors who shall be elected as soon as possible after the commencement of this Act, and lection of and ; ' ‘ mode of choosing every three years afterwards, as follows (that is to gesessors, say) :— (a) Three shall be elected from their own number by the members of the cathedral church of the diocese ; (b) Four shall be elected from their own number by the beneficed clergy of each archdeaconry in the diocese ; and (c) Five shall be elected from the justices of the county by the court of quarter sessions of each county wholly in the diocese, and of such of the counties partly in the diocese as may be prescribed. (2.) Provided that— (a) The consent of an assessor to serve shall be obtained before he is elected ; and (b) If an assessor ceases to be one of the body from whom he is elected, or resigns, or dies, or becomes incapable of acting, the chancellor may declare a vacancy, and thereupon the vacancy may be filled by another election. (3.) When the presence of assessors is required, three clergymen and two laymen shall be chosen out of the assessors on the said list by ballot conducted by the registrar in the presence of such (if any) of the parties as desire to be present by themselves or their repre- sentatives. (4.) The assessors chosen shall be bound to attend when required, and if anyone fails so to attend without a reasonable excuse satis- factory to the chancellor he shall be disqualified for acting or being elected again as assessor, and the chancellor shall declare a vacancy, and the vacancy shall be filled by a new election. (5.) If any assessor is objected to by either party tor reasons approved by the chancellor, he shall be discharged from serving. (6.) If by reason of any objection or of non-attendance or other- wise the requisite number of assessors is not obtained before the trial, the chancellor shall, if there is time, cause a clergyman or layman, as the case may require, to be chosen from the list of 546 CLERGY DISGIPLINE (ACT uiseaZ. [APP. XI. assessors by another ballot, but, if there is not time, shall appoint some clergyman or layman, as the case may require, who is willing to serve, and is not objected to by either party for cause shown and deemed sufficient by the chancellor, to make up the full number of five assessors. 4,—(1.) Either party to a case may appeal against any judgment Aspeala on of a consistory court under this Act in respect of any question of law matter of law. or anh, (2.) If a defendant desires to appeal against any judgment of a consistory court under this Act in respect of the facts, he may petition for leave to appeal, and if he satisfies the appellate court that there is a primd facie case leave shall be given, and he may appeal. (3.) An appeal against any interlocutory judgment under this Act, not having the force or effect of a definitive sentence upon the merits of the case, shall not be allowed except by leave of the court. (4.) An appeal or petition under this section shall be within the prescribed time and in accordance with the prescribed rules, and may (at the option of the appellant or petitioner) be to the provincial court or to Her Majesty the Queen in Council, but if to the pro- vincial court the decision of that court shall be final. (5.) If there is an appeal, the sentence shall be suspended until the appeal is determined or abandoned, and for the purpose of any inhibition be deemed not to have been given. 5.—(1.) A complaint under this Act for an offence shall not be Limitation of Wade after five years from the date of the offence, or prosecutions and Of the last of a series of acts alleged as part of the conclusivenessof offence, except that complaint may be made within conviction, &. two years after a conviction by a temporal court becomes conclusive. (2.) A conviction, order, or finding shall become conclusive for the purposes of this Act— (a) where there has been any appeal (whether by case reserved, special case, motion for new trial, writ of error, appeal, or other- wise), upon the date at which the appeal is dismissed or aban- doned, or the proceedings on appeal are finally concluded ; and (b) if there has been no such appeal, upon the expiration of the time limited for such appeal, or where no time is so limited of two months from the date of the conviction, order, or finding ; APP. XI.] CLERGY DISCIPLINE ACT, 1892. 547 but, if varied on appeal, shall be conclusive only as so varied, and so far as it is reversed on appeal shall cease to be of any effect. (3.) After the conviction of a clergyman by a temporal court of committing an act becomes conclusive, a certificate of such conviction shall be conclusive proof in an ecclesiastical court that he has committed the act therein specified, except in the case of a summary conviction, against which there is no right of appeal. (4.) In the event of any such conviction, order, or finding, by or before a temporal court, as makes the preferment of a clergyman subject to be declared vacant, or renders a clergyman liable to pro- secution under this Act, the court shall cause the prescribed certificate of the conviction, order, or finding, to be sent to the bishop of the diocese in which the court sits, and such certificate shall be preserved in the registry of that diocese, or of any other diocese to which it may be sent by direction of the bishop. 6.—(1.) When a clergyman is, under this Act, adjudged guilty— (a) regard shall be had im considering the sentence to the interests of the ecclesiastical parish or Sentences : and incapacity place concerned, and not to precedents of punish- for preferment, ments; and (b) he may be sentenced in every case to deprivation, and if so sentenced shall be incapable, save as in this Act mentioned, of holding preferment ; and (c) if he is sentenced to suspension for a term, he shall not, during that term, exercise or perform without leave of the court any right or duty of or incidental or attached to his preferment, nor reside in or within such distance from the house of residence of that preferment as is specified in the sentence, and shall not, at the end of the term, be re-admitted until he has satisfied the court of his good conduct during the term. (2.) Where by virtue of anything in or done under this Act a clergyman becomes incapable of holding preferment, his in- capacity — (a) shall cease if he receives a free pardon from the Crown; and (b) shall not extend to any preferment which the bishop of the diocese and archbishop of the province in which it is situate, after such public notice, if any, as they think desirable, allow him to hold, 548 CLERG YSDISCIPITNE AC Tp alage: [APP. XI. (3.) Where by virtue of anything in or done under this Act the preferment of a clergyman is vacant, the time for lapse shall run from the date at which the prescribed notice of the vacancy is given. 7. If a clergyman wilfully disobeys a sentence passed under this Pieresdings Act, or any requirement or direction contained in such in case of sentence, he may be cited before the consistory court, disobedience to and if, after the prescribed proceedings for enabling vipa eipys him to show cause to the contrary, the chancellor is satisfied that the clergyman has been so wilfully disobedient and ought to be punished for it, the chancellor may pronounce judg- ment against him, which shall be subject to the like appeal as if pronounced on a trial under this Act, and sentence him to such ecclesiastical punishment as the gravity of the case appears to require, including a sentence of deprivation; and where any sentence is so passed, the writ de contwmace capiendo shall not be issued. 8. Where by virtue of this Act, or of any sentence passed in Power to bishop Pursuance of this Act, the preferment of a clergyman to depose from becomes vacant, and it appears to the bishop of the holy orders diocese that such clergyman ought also to be deposed a clergyman ‘ ; whose prefer: {from holy orders, the bishop may, by sentence and ment is vacated without any further formality, depose him, and the paces Act sentence of deposition shall be recorded in the registry of the diocese: Provided always, that such clergyman may appeal against the said sentence within one month from the date thereof to the archbishop of the province, whose decision shall be final. 9.—(1.) The Rule Committee, that is to say the Lord Chancellor, Power to make the Lord Chief Justice of England, the judge of the rules. provincial court, and the archbishops and bishops who are members of the Privy Council, or any three of the said persons, two of them being the Lord Chancellor and one other of the afore- said judicial persons, may make rules for carrying this Act into effect, and in particular for regulating all matters relating to pro- cedure, practice, costs, expenses, and fees under this Act, including the appeals (so far ay rules made by the Privy Council or the Judicial Committee do not extend), the electing and choosing of assessors, the place of sitting of the court, the giving of security for costs, the passing of sentences, the validity of proceedings notwith- standing defects of form or irregularity, the application of this Act to a clergyman who cannot be found, or holds no preferment, or several preferments, the liability to and recovery of costs and APP. XI.] CEERGY DISCIPLINE. AGL) 1892. 549 expenses, the forms to be used, and all matters incidental to or connected with the administration of justice under this Act. (2.) Every rule purporting to be made in pursuance of this section shall be forthwith laid before both Houses of Parliament, and if an address is presented to Her Majesty the Queen by either House within the next forty days thereafter on which that House has sat, praying that any such rule may be annulled, Her Majesty in Council may annul the same, without prejudice to the validity of anything done in the meantime in pursuance thereof; but subject as aforesaid, every such rule shall, while unrevoked, be of the same validity as if enacted in this Act. - 10.—(1.) Sections two, six, fourteen, eighteen, twenty-two, and twenty-five of the Church Discipline Act, 1840 (which sections are set out in the schedule to this Act‘), shall apply as if they were herein re-enacted and in terms made applicable to proceedings under this Act, and with the substitution of the chancellor for the assessor of the bishop, and section fourteen of that Act shall apply where a clergyman is accused before a temporal court of any criminal offence, or of any act constituting an ecclesiastical offence, in like manner as it applies where a charge for the like offence is pending in an ecclesiastical court. (2.) The consistory court means the court having the powers and duties of a consistory court of a diocese ; and shall have jurisdiction over every place, district, and preferment, exempt or peculiar, over which the bishop of the diocese has, by virtue of this Act or other- wise, jurisdiction. (3.) A bishop may act as bishop for the purposes of this Act in relation to a clergyman holding in his diocese a preferment of which the bishop is patron. (4.) The judgment of a consistory court or (on appeal) of the appellate court that a clergyman has been guilty of an immoral act, immoral conduct, or immoral habit, or of any offence against the laws ecclesiastical, being an offence against morality and not a question of doctrine or ritual, shall be conclusive that the offence charged is cognizable by a consistory court under this Act. (5.) The bishop may appoint as a deputy chancellor a barrister of not. less than seven years’ standing, or the holder of a judicial appointment. Supplemental, + The schedule consists of the sections named, which will be found ante, pp. 449 to 458, 559 CLERGY DISCIPLINE ACT, 1892. [APP. XI. 11. No person shall by reason of any employment or emolument Employment under Act no ground for pension, &c, under this Act acquire any right to compensation, superannuation, or other allowance on abolition of office or otherwise. 12. In this Act, unless the context otherwise requires,— Definitions. “Clergyman.” “Chancellor.” “ Provincial court.” “County.” ‘« Member of a cathedral church.” ‘¢ Arch- deaconry.” “ Judicial appointment.” “ Judgment.” 6‘ Prescribed.” * Church Discipline Act.” “Immoral act,” ‘¢immoral con- duct,” and ‘*im- moral habit.” The expression “clergyman” means a clergyman, not being a bishop of a diocese, who is in holy orders in the Church of England, or who, though ordained by a bishop of another church, is permitted to officiate as a priest or deacon of the Church of England: The expression “chancellor” means the judge of the consistory court by whatever name known : The expression “provincial court” means as respects the province of Canterbury the Arches Court of Canterbury, and as respects the province of York the Chancery Court of York : The expression “county” includes a riding or division having a separate court of quarter sessions : The expression “member of a cathedral church” means any dean, residentiary canon, non-residentiary canon, prebendary, or honorary canon of that church : The expression “archdeaconry” includes the Isle of Ely: The expression “judicial appointment” includes a chairmanship of quarter sessions and a police or stipendiary magistrateship : The expression “judgment” includes decree and order : The expression ‘ prescribed” means prescribed by rules made in pursuance of this Act: The expression “ Church Discipline Act, 1840,” means the Act of the session of the third and fourth years of the reign of Her present Majesty, chapter eighty- six, intituled “An Act for better enforcing Church discipline”: The expressions “immoral act,” “immoral conduct,” and “immoral habit” shall include such acts, con- duct, and habits as are proscribed by the seventy- fifth and one hundred and ninth canons issued by the Convocation of the Province of Canterbury in the year one thousand six hundred and three. APP. XI.] CLERGY DISCIPLINE ACT, 1892. 551 13.—(1.) Nothing in this Act shall (a) render a clergyman liable to be tried or sentenced under this Act in respect of any question of doctrine or p, usion of ritual ; or question of doc- (0) affect any prerogative of Her Majesty the Queen trine or ritual, as respects pardon or otherwise ; or pp eh Se (c) affect the liability of a clergyman to any prosecution, action, or proceeding, in any court other than an ecclesiastical court, but if he can be prosecuted under this Act for an offence, any other criminal proceeding against him for that offence shall not be instituted in an ecclesiastical court. (2.) This Act shall apply only to a clergyman who either holds preferment within the meaning of this Act, or resides or has com- mitted the offence in England or Wales; and where a clergyman holds a licence from a bishop in England or Wales, this Act shall apply to that clergyman, notwithstanding that he resides elsewhere, as if he held preferment in the diocese of that bishop. 14.—(1.) This Act may be cited as the Clergy Discipline Act, 1892, Short title, (2.) This Act shall come into operation at the ex- commencement piration of three months next after it passes, and, so of Act, far as regards any prosecution and trial under this snd zepral Act, apply to offences committed before or after the passing or commencement thereof. (3.) The Church Discipline Act, 1840, shall, except so far as the sections in the schedule! to this Act are applied by this Act, be repealed as respects any proceeding instituted after the commence- ment of this Act against a clergyman for an offence for which he can be prosecuted or his benefice declared vacant under this Act. * See note to p. 527, XII. BENEFICES ACT, 1898. 61 & 62 Vict., Chap. 48, An Act to amend the Law relating to the Patronage of Benefices, and to their avoidance on Sequestration, and to amend the Pluralities Acts, 1838 and 1885. [12th August, 1898.] E it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament’ assembled, and by the authority of the same, as follows :— 1. (1.) A transfer of a right of patronage of a benefice shall not Transferof be valid unless— patronage (a) it is registered in the prescribed manner in the Lip foie registry of the diocese within one month from the date of the transfer, or within such extended time as under special circumstances the bishop may think fit to allow; and (b) it transfers the whole interest of the transferor in the right, except as hereinafter provided ; and (c) more than twelve months have elapsed since the last in- stitution or admission to the benefice. (2.) It shall not be lawful to offer for sale by public auction any right of patronage, save in the case of an advowson to be sold in conjunction with any manor, or with an estate in land of not less than one hundred acres situate in the parish in which the benefice is situate or in an adjoining parish and belonging to the same owner as the advowson, and any person who offers any right of patronage for sale by auction in contravention of this section, or who bids at any such sale, shall be liable, on summary conviction, to a fine not exceeding one hundred pounds. (3.) Any agreement for any exercise of a right of patronage of a benefice in favour or on the nomination of any particular person, and any agreement on the transfer of a right of patronage of a benefice— APP, XII.] BENEFICES ACT, 1898. 553 (a) for the re-transfer of the right ; or (6) for postponing payment of any part of the consideration for the transfer until a vacancy or for more than three months ; or (c) for payment of interest until a vacancy or for more than three months ; or (d) for any payment in respect of the date at which a vacancy occurs ; or (ce) for the resignation of a benefice in favour of any person, shall be invalid. (4) For the declaration set forth in section two of the Clerical Subscription Act, 1865, shall be substituted the declaration set forth in the schedule to this Act which shall be taken in the prescribed manner, and if any person knowingly makes any false statement in this declaration he shall be guilty of a misdemeanour, and shall be liable to the punishment attaching by law to perjury. (5.) If any clergyman is knowingly party or privy to any trans- fer, presentation, or agreement which is invalid under this section, or commits any breach of the promissory part of his declaration, he shall be guilty of an offence in respect of which proceedings may be taken under section two of the Clergy Discipline Act, 1892. (6.) The expression “transfer” in this section shall include any conveyance or assurance passing or creating any legal or equitable interest inter vivos, aud any agreement for any such conveyance or assurance, but shall not include— (a) a transmission on marriage, death, or bankruptcy, or other- wise by operation of law ; nor : (6) a transfer on the appointment of a new trustee where no beneficial interest passes. (7.) Nothing in this section shall prevent the reservation or limitation in a family settlement of a life interest to the settlor, or in a mortgage the reservation of a right of redemption. 2. (1.) A bishop may refuse to institute or admit a presentee to a benefice— Grounds for (a) if, at the date of the vacancy, not more than one refusal to year has elapsed since a transfer, as defined by the ™s4tute. first section of this Act, of the right of patronage of the bene- fice, unless it be proved that the transfer was not effected in view of the probability of a vacancy within such year ; or (b) on the ground that at the date of presentation not more than 554 BENEFICES ACT, 1898. [APP. XII. three years have elapsed since the presentee was ordained deacon, or that the presentee is unfit for the discharge of the duties of the benefice by reason of physical or mental infirmity or incapacity, pecuniary embarrassment of a serious character, grave misconduct or neglect of duty in an ecclesiastical office, evil life, having by his conduct caused grave scandal concerning his moral character since his ordination, or having, with refer- ence to the presentation, been knowingly party or privy to any transaction or agreement which is invalid under this Act. (2.) A bishop shall not collate, institute, or admit any person to a benefice until the expiration of one month after notice in the pre- scribed manner, that he proposes to collate, institute, or admit such person has been served on the churchwardens of the parish, who shall publish the notice in the prescribed manner, 3. (1.) Where a bishop, on any ground included in section two of Ripent this Act or of unfitness or disqualification of the pre- against sentee otherwise sufficient in law, except a ground of refusal to doctrine or ritual, refuses to institute or admit a pre- institute. sentee to a benefice, he shall signify the refusal in writing together with the grounds thereof to the person presenting to the benefice and to the presentee in the prescribed manner, and within one month after the signification either of those persons may, in the prescribed manner, require that the matter be heard by a court consisting of the archbishop of the province and of a judge of the Supreme Court, who shall be nominated by the Lord Chancellor from time to time for the purposes of this Act, and the bishop shall be made a party to the proceedings. The court constituted under this Act shall be a court of record and shall be held in public, and at any hearing the legal rules of evidence shall prevail. (2.) The judge shall decide all questions of law and find as to any fact alleged as reason of unfitness or disqualification and his decision on such questions of law and his finding as to any such fact shall be binding on the archbishop, who shall thereupon— (i.) if the judge finds that no such fact sufficient in law exists, direct institution or admission ; or (ii.) if the judge finds that any such fact sufficient in law exists, decide if necessary whether by reason thereof the presentee is unfit for the discharge of the duties of the benefice and deter- mine whether institution or admission ought, under the circumstances, to be refused, APP. XII.] BENEFICES ACT, 1898. 555 and in either case the archbishop shall give judgment accordingly, and that judgment shall be final. (8.) The court shall have the same powers of administering oaths and of requiring the attendance of witnesses and the production by them of documents, and as to the payment and recovery of costs and expenses, as are exerciseable by the High Court of Justice. (4.) If, within one month after a judgment of the court in favour of a presentee, the bishop fails to institute or admit him, the official principal of the archbishop shall institute or admit him if there is no other impediment. (5.) If in any case to which this section applies the bishop signifies his refusal in manner provided by this section, no pro- ceeding in the nature of quare impedit or duplex querela shall be taken in any other court in respect of the refusal. (6.) Where the presentation is made to an archbishop, the arch- bishop of the other province, whether Canterbury or York, and such judge as aforesaid, shall constitute the court. 4. The bishop may, on the hearing of any case under section three of this Act, rely on— Peovinichae (i.) any ground included in his signification of re- to grounds fusal ; and of refusal. i.) by the leave of the judge (on such terms as to notice, costs, M Juag adjournment, or otherwise, as the judge thinks fit), any other ground sufficient in law (not being of doctrine or ritual). 5. In reckoning the date for lapse, no account shall be taken, in the case of the first and second presentations by a Provision patron in respect of the same vacancy, of the period as te lapse, between a presentation by the patron and the refusal by the bishop to institute or admit the presentee, or of the period between the refusal of the bishop to institute or admit and the decision of the court upon such refusal ; nor in case of a bishop having a right to collate to a benefice of the period between the service of the notice on the churchwardens under the provisions of this Act and the expiration of a month from the said service. 6. (1.) A patron may not present again a person who has been refused by the bishop in respect of the same vacancy, Right of and any such second presentation shall be void. presentation, (2.) In the event of the presentee of a clerical patron being 556 BENEFICES ACT, 1898. [APP. XII. refused institution or admission by the bishop, and of such decision being upheld, the patron shall have the same right of further pre- sentation as though he were a lay patron. 7. So much of the Statutes 3 and 4 James I., cap. 5, sect. 13, Presentation and 1 William and Mary, cap. 26, sect. 2, is hereby re- shdege of pealed as prevents the Chancellor and Scholars of the Oxfordand § Universities of Oxford and Cambridge from presenting Cambridge. or nominating to the benefices and livings there men- tioned persons already holding any benefice with cure of souls, provided that nothing be done in contravention of the other Acts regulating the holding of benefices in plurality. And further the said Universities shall be permitted to elect to such benefices, and to any other benefices or livings that are or may hereafter be in their patronage, and to exercise any other rights that they may possess in respect to them in any way that they may hereafter, by statute or ordinance of the University made in the ordinary manner, from time to time determine to be expedient. 8. To the Commission appointed in pursuance of section seventy- Constitution seven of the Pluralities Act, 1838, as amended by the + of Commis- = Pluralities Acts Amendment Act, 1885, there shall be sion under ohn : s : Pluralities added two other commissioners, being either laymen in Acts. the commission of the peace for the county in which the benefice is situate, or barristers or solicitors of not less than ten years’ standing, nominated by the person who has presided as chairman of the last preceding quarter sessions for the county or division of the county in which the benefice is situated, or, failing him, by the lord leutenant of the county. Provided that the secretary of the bishop or the registrar of the diocese shall not be qualified as a commissioner. 9. (1.) Where a commission appointed in pursuance of section Power to seventy-seven of the Pluralities Act, 1838, as amended inhibit on by the Pluralities Acts Amendment Act, 1885, and by chara in this Act, reports that the ecclesiastical duties of a discharge of benefice are inadequately performed, and that this is duties. due to the negligence of the incumbent of the benefice in the performance of those duties (which report the Commission is hereby empowered to make), the bishop, if he thinks the appoint- ment of a curate desirable, shall himseif appoint a curate or curates, APP. XII.] BENEFICES ACT, 1898. 557 as in the said section mentioned, without requiring the incumbent to do so, and may also, if in his opinion the adoption of such a course is expedient in the interests of the benefice, inhibit the incumbent from performing all or any of those duties. (2.) The power conferred by the said section amended as afore- said, and by this section, of appointing and requiring the appoint- ment of a curate, may be exercised from time to time in case of any vacancy in the curacy, (3.) Where a curate has, before the conimencement of this Act, been appointed under the said section, or the said section as amended by the Pluralities Acts Amendment Act, 1885, the bishop may, if he sees reason to believe that the incumbent is negligent in the performance of the ecclesiastical duties of the benefice, issue a com- mission under the said section as so amended and by this Act to inquire into the facts of the case, and if that commission reports . that the incumbent is so negligent, the bishop may inhibit him from performing all or any of the said duties. (4.) When an incumbent is inhibited under this Act, he shall not interfere with or control any curate in the performance of the ecclesiastical duties of the benefice, and any right of patronage vested in him by virtue of his incumbency shall, while he is inhibited, vest in the patron of his incumbency, or, if the incum- bent be the patron, then in the archbishop of the province. (5.) An incumbent so inhibited shall not be hable to any penalty or forfeiture for non-residence, but section ninety-three of the Pluralities Act, 1838, shall apply as if the incumbent were not resident as thereiz. mentioned, and thereupon section ninety-four cf the same Act shall apply as in the case where the curate’s stipend is not less than the whole value of the benefice. The incumbent shall remain liable for repairs, but shall be entitled to retain out of the curate’s stipend such amount in respect of repairs during the curate’s occupation, and shall be entitled to such facilities for executing re- pairs, as the bishop may, in case of difference, decide to be reasonable. (6.) The incumbent may appeal against the appointment of a curate by the bishop under this section and against any such inhibition to the court constituted under this Act within one month after such appointment or the issue of such inhibition. On any such appeal the judge shall determine whether the incumbent has been negligent as aforesaid, and the archbishop shall thereupon-— 558 BENEFICES ACT, 1898. [APP. XII. (i.) if the judge finds that the incumbent has not been negligent as aforesaid, rescind the appointment and inhibition, if any ; or (ii.) if the judge finds that the incumbent has been negligent as aforesaid, decide whether by reason thereof the said appointment should have been made, and also whether the incumbent should be inhibited from performing any and what ecclesiastical duties of his benefice ; and shall give judgment accordingly, and that judgment shall be final. Subject as aforesaid the provisions of section three of this Act with respect to procedure shall apply to proceedings under this subsection. 10. In the case of incumbents presented or collated after the In certain commencement of this Act, if, on bankruptcy, or in cases of — aid of any writ of execution against property, the sequestration },anefice of any such incumbent is sequestrated within benefice to me 5 5S ABS 4 FEET ob Whe iy : become twelve months after his institution, or if such seques- void. tration, if issued after that period, continues for the space of one whole year, or if any such incumbent incurs two such sequestrations in the space of two years, the benefice shall, unless the bishop in the manner and within the time to be prescribed otherwise direct, become void, and section fifty-eight of the Pluralities Act, 1838, shall apply in like manner as if the bene- fice had become void under that section. 11. The rule committee, as defined by section nine of the Clergy Power to Discipline Act, 1892, may make rules for prescribing make rules. anything which, under this Act, is to be prescribed, and for defining the duties of the officials by whom registration is to be effected, and with respect to the inspection of the register and the.fees payable on registration and inspection under this Act, and the application thereof for the remuneration of the officials in the registry in respect of such registration and inspection, and for regulating the procedure on and incident to the hearing and determination under this Act of any question as to a refusal to institute or admit, or of an appeal against an inhibition or ap- pointment of a curate, and the fees payable in respect thereof, and the appointment and duties of officers of the court, and otherwise for carrying the purposes of this Act into effect, and the pro- visions of that section shall apply in the case of any rules so made. For the purpose of framing rules under this section the judge he APP. XII.] BENEFICES ACT, 1898. 559 nominated by the Lord Chancellor for the purposes of this Act shall be added to the said Rule Committee if not already a member thereof. In framing rules under this Act regard shall be had to making the procedure and practice as simple and inexpensive as possible. The fees paid in respect of proceedings in the court under this Act shall be paid over to the common fund of the Ecclesiastical Commissioners, who shall, out of such common fund, defray all the expenses of and incidental to the sittings of the court and the remuneration of its officers, and all expenses which are necessarily incurred in the execution of this Act in such proceed- ings: Provided that no portion of any fund destined for the relief of necessitous incumbents shall be applied to the payment of the aforesaid expenses. 12. Every benefice with cure of souls which at the commence- ment of this Act is donative shall as from that date be Abolition of ‘presentative. donatives, 13. (1.) In this Act the expression “benefice” comprehends all rectories with cure of souls, vicarages, perpetual Meaning of curacies, endowed public chapels, and parochial chapel- benefice. ries, and chapelries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel, and districts formed for ecclesiastical purposes by virtue of statutory authority, and includes benefices in the patronage of the Crown or of the Duchy of Cornwall, but does not extend to any of Her Majesty’s Royal Chapels, or to any Royal peculiar, nor to any cathedral or capitular preferment or dignity, nor to any chapel belonging to any college, school, hospital, inns of court, asylum, or public or charitable institution, nor to any private chapel. (2.) In section two of this Act the expression “duty” shall mean ecclesiastical duties as defined by section two of the Pluralities Acts Amendment Act, 1885, omitting the following words therein “and ' “the performance of which shall have been required of him in “writing by the bishop.” (3.) In section nine of this Act and in the Pluralities Act, 1838, and the Pluralities Acts Amendment Act, 1885, the expression “ecclesiastical duties” shall, in all respects, include those duties mentioned in section two of the Pluralities Acts Amendment Act, 1885, and also the observance of all the promises as to conduct which every clergyman of the Church of England solemnly makes Aas 560 BENEFICES ACT, 1898. [APP. XII. at the time of his ordination ; and the expression “negligence” in the performance of ecclesiastical duties shall include wilful default in the performance of such duties, 14. This Act shall come into operation on the first day of Commence- January, one thousand eight hundred and ninety- OM nine. a ; : anon tine 15. This Act may be cited as the Benefices Act, 1898. SCHEDULE. Form or DECLARATION. I, C.D., hereby solemnly and sincerely declare in reference to the presentation made of me to the rectory (or vicarage, &c.) of as follows :— “(1,.) I have not received the presentation of the said rectory (or vicarage, &c.) in consideration of any sum of money, reward, gift, profit, or benefit directly or indirectly given or promised by me, or by any person to my knowledge or with my consent, to any person whatsoever, and I will not at any time hereafter perform or satisfy any payment, contract, or promise made in respect of that presenta- tion by any person without my knowledge or consent. “(2.) I have not entered, nor, to the best of my knowledge and belief, has any person entered into any bond, covenant, or other assurance or engagement, otherwise than as allowed by sections one and two of the Clergy Resignation Bonds Act, 1828, that I should at any time resign the said rectory (or vicarage, &c.). ““(3.) I have not by myself, nor, to my knowledge, has any person on my behalf, for any sum of money, reward, gift, profit, or advan- tage, or for or by means of any promise, agreement, grant, bond, covenant, or other assurance of or for any sum of money, reward, gift, profit, or benefit whatsoever, directly or indirectly procured the now existing avoidance of the said rectory (or vicarage, &c.). “(4.) I have not, with respect to the said presentation, been party or privy to any agreement which is invalid under section one, sub- section three of the Benefices Act, 1898.” Dated this day of 18 C.D. - a re 50 | XIII. ECCLESIASTICAL FEES. Order of the Privy Council, made the 10th day of December, 1895, approving Table of Ecclesiastical Fees and payments, settled by the Archbishop of Canterbury, the Lord Chancellor and the Archbishop of York, in pursuance of the provisions of the Acts 1 & 2 Vict. c. 106, and 30 & 31 Vict. c. 135: FeEs to be taken in respect of Presentation, Nomination, Collation, Institution, Installation, Induction, or License, or any Instru- ment, matter, or thing connected with the admission of any Spiritual Person to any CATHEDRAL PREFERMENT or BENEFICE throughout ENeLAND and Wauegs, by any Officer, Secretary, Clerk, or Minister to whom belong the duties of preparing, sealing, transacting, or doing of any such Instruments, matters, or things, and costs of any Secretary of a Bishop and any Registrar of a Diocese under the INCUMBENTS RESIGNATION Act, 1871 (34 & 35 Vict. ¢. 44), ordained and established pursuant to the provisions of 1 & 2 Vict. c, 106, section 131. Registrar Vicar- | ° other General rat — or usage eae perform- ing the Duty. ES SEL ACG ESE Ids Presenta- >, When the _ tion to a} instru- benefice. ment is Nomina- } prepared — _— tion to a by the perpetual | bishop’s curacy. secretary. Collation tu a canonury (not honorary). } 016 8 Collation to a benefice Collation toan honorary|}016 8|1 1 0 prebend or canonry. Institution toa benefice.|016 8/2 2 4 Secretary of Arch- bishop or Bishop. —- 220 440 : Record Apparitor| Sealer, Keeper. * * * Snes, Cail .do) Sel Qa eden Ge ONS 6) Ore 6 i area OSGi) 004 Gn Om saa 0.3 61054 Cr) OF 296 * The fees payable under these heads will, subject to vested interests, cease to be payable. 562 ECCLESIASTICAL FEES. [APP. XIII. Registrar Vicar- |° ovber Secretary Officer f General 0 — or ks Arch- |Apparitor| Sealer. Ee siea Chan- SAS bishop or cepers cellor. aay iy Bishop. Duty. License to a perpetual) 0 9 4/115 8 curacy. Dispensation to hold two benefices. 1 Archbishop's secretary : for fiat. Bishop’s secretary, for — os 314 6 ~ — — obtaining certificate o value, population, &c., and passing the dis- pensation through the Offices (including the f fees, £1 12s. 6d.) to the Faculty Office. Resignation, instrument]; — _ LE HE, —- — _ of, when prepared by secretary. Commission for iustiva:| $ | When tion. | issued. } Commission for license. . Resignation under In- = OF BO HON 0210 — — _ cumbents Resignation Acts (payable in moie- ties by the outgoing and incoming incum- bents). * The fees payable under these heads will, subject to vested interests, cease to be payable. . Arch- Arch- = deacon’s | deacon’s |Apparitor Record | Sealer Official. | Registrar.| _ Keeper. * * * —————q—“—|\——q—j|_ lQ qe i um ~~} _ Induction to a benefice con- sisting of one parish, or of two or more united parishes. * The fees payable under these heads will, subject to vested interests, cease to be payable, APP. XIII.] ECCLESIASTICAL FEES. 563 Registrar of : Dean and Peer er Chapter d — meerand eens Apparitor.| Sealer. icer Chapter. usage y performing the Duty. EM Semis) (don Bay (s,s esa So en ee sone Seer Installation to a deanery. ele 6 Ses 70 010 0 0 5 0 Installation to a canonry or ‘arch-| 1 1 0 44 0 010 0 0 5 0 deaconry. Induction to honorary canonry or _ Leo — 0 2 6 prebend. Collation to minor canonry 010 6 4230 ao We Pate Presentation to a benefice, in gift of _ Zee zip () _ — dean and chapter, if prepared by registrar. Nomination to a perpetual curacy, in — Leno —_ _ gift of dean and chapter, if pre- pared by registrar. The fees include postages, telegrams, carriage and transmission of documents, office expenses, stationers’ charges, and all other similar disbursements. Collation. The secretary’s fee for collation includes all charges for cor- respondence with the clerk to be collated, for all searches in the registry, for all communications with the Ecclesiastical Com- missioners, for examining the letters of orders and _ letters testimonial, for all communications with the registrar of the diocese, for the entry of the collation in the bishop’s act book and obtaining the seal of the bishop to the instruments connected with the collation in all cases where the same are sealed with such seal, and the return to the Judges of the Queen’s Bench Division of Her Majesty’s High Court of Justice when made by the bishop. The fee of the registrar or other officer by usage performing the duty, includes all charges for preparing the sentence of collation, for preparing the certificate of subscription to the 39 articles, and all other necessary certificates, declarations, and instruments, for attending on the bishop when the collation 564 ECCLESTASTICAL FEES: [APP. XIII. takes place and the necessary oaths and declarations are made, taken, and subscribed, for entering the collation in the register books of the diocese, and for preparing letters testimonial and the mandate of induction addressed to the archdeacon, and ob- taining the seal of the vicar-general to those instruments in all cases Where the same are sealed with such seal, and the return to the Judges of the Queen’s Bench Division of Her Majesty’s High Court of Justice, when not made by the bishop himself. Institution. The secretary’s fee includes all charges for correspondence with the presentee, for examining the deed of presentation, the letters of orders and letters testimonial, for all communications with the Ecclesiastical Commissioners, for preparing the bishop’s fiat or his commission when the latter is issued, for all com- munications with the registrar of the diocese, for the entry in the bishop’s act book and obtaining the seal of the bishop to the instruments connected with the institution in all cases where the same are sealed with such seal, and the return to the Judges of the Queen’s Bench Division of Her Majesty’s High Court of Justice when made by the bishop. The fee of the registrar or other officer by usage performing the duty, includes all charges for preparing the instrument of institution, for preparing the certificate of subscription to the 39 articles, and all other necessary certificates, declarations, and instruments, for attending on the bishop or his vicar-general when the institution takes place and the necessary oaths and declarations are made, taken, and subscribed, for drawing a notarial act of the proceedings and entering the same in the register book of the diocese, for preparing the letters testimonial and the mandate of induction to the archdeacon, and obtaining the seal of the vicar- general to the several instruments in all cases where the same are sealed with such seal, and making the return to the Judges of the Queen’s Bench Division of Her Majesty's High Court of Justice, when not made by the bishop himself. Licenses to Perpetual Curacies. The secretary’s fee includes all charges for correspondence with the clerk to be licensed, for examining the nomination, the letters APP. XIII.] ECCLESIASTICAL FEES. 565 of orders and letters testimonial, for preparing the bishop’s fiat or his commission when issued, for all communications with the registrar of the diocese, for the entry in the bishop’s act book and obtaining the seal of the bishop to the instruments con- nected with the license in all cases where the same are sealed with such seal, and the return to the Judges of the Queen’s Bench Division of Her Majesty’s High Court of Justice, when made by the bishop. The fee of the registrar, or other officer by usage performing the duty, includes all charges for preparing the license, for pre- paring the certificate of subscription to the 39 articles, and all other necessary certificates, declarations, and instruments, for attending on the bishop or his vicar-general when the necessary oaths and declarations are made, taken, and subscribed, and for entering the license in the register book of the diocese, and obtaining the vicar-general’s seal in all cases where the instruments connected with the license are sealed with such seal, and making the return to the Judges of the Queen’s Bench Division of Her Majesty’s High Court of Justice, when not made by the bishop himself. Installation and Induction to Cathedral Preferment. The fee of the registrar, or other officer by usage performing the duty, includes all charges for preparing and engrossing all necessary instruments and certificates, for entering the several chapter acts and schedules for attendances, and for registering the whole proceedings in the chapter book. TasLeE of Frrs and Payments to be made to CHANCELLORS or VICARS-GENERAL, REGISTRARS, SECRETARIES, and other OFFICERS, on the CONSECRATION of CHURCHES, CHAPELS, CEMETERIES, and BurtaL GRounpDs on and incidental to the Grant of Facuirrss, and on the ORDINATION of DEacons and Priests, and to the CHANCELLORS or VICARS-GENERAL, REGISTRARS, and other Orricers of ARCHBISHOPS and BisHops, and to ARCHDEACONS-and their OFFICIALS and other Orricers, on the Visitation of such ARCHBISHOPS and 566 ECCLESIASTICAL FEES. [APP. XIII. BisHors and ARCHDEACONS respectively, settled pursuant to the provisions of the Act 30 & 31 Vict. ¢. 135. : Registrar General, | grotner | Sey — Chancellor, Maaco y Archbishop | Apparitor. Archdeacon, g or =a formi d or Official. ihe Duty Bishop. © th ww on £ 8! a. £. 8. d. Eo GS Consecration of a church and (fe 16%) Wake) burial ground, or a church without a burial ground. Consecration of a cemetery or 2 2 0 6 6 0 ye ) a ee Be) burial ground, Episcopal or archidiaconal visita- 020 0.123 76 -- OF3e6 tion. Faculty (if unopposed) for minor Ie 1H 8) Lee 0 — ==> alteratious to be enumerated by the chancellor of the dio- cese, or for the removal of glebe buildings. Faculty for other alterations in eo 313 6 — 010 6 churches and churchyards, Ordination . is he * % — oyewe 2° 2:0 — The fees include postages, telegrams, carriage and transmission’ of documents, office expenses, stationers’ charges, and all other similar disbursements. 1 and 2, The chancellor’s fee includes the approval of plans, the perusal of the petition and other papers, the settling the sentence, and the approval of the draft act. The registrar’s fee includes the perusal of the deeds of conveyance, the drawing and engrossing of the petition, and the sentence and the notarial act, the necessary attendance at the consecration, and the registering the deeds and the act in the register book in the diocese. The secretary’s fee includes the inspection of plans and correspondence prior to the papers being sent to the registry. The apparitor’s fee includes all necessary citations and attendance on the bishop at the consecration. 3. The chancellor’s fee includes the attendance of the chancellor or his surrogate, the examination of the presentments of) the : * APP. X11 | ECCLESTASTICAL FEES. 567 outgoing churchwardens, and the admission of the new church- wardens to office. The registrar’s fee includes the drawing and issuing of the inhibition and of the mandate for the citation of the clergy, the preparation of the visitation books and of the articles of inquiry and the presentment papers, the attend- ance at the visitation and attesting the presentments and declarations of the churchwardens, the registering the papers exhibited by the clergy, the tabulating in the registry the copies of the register books of baptism and burials, and other papers required to be annually transmitted. The apparitor’s fee includes the preparation and: delivery of the citations to the clergy and churchwardens, and the attendance at the visitation. 4 and 5. The chancellor’s fee includes the perusal of the peti- tion, the order for the notice or citation, as the case may be, the perusal of the certificate and other papers, and making the decree. The registrar’s fee includes the perusal of the minutes of the vestry and the petition, the drawing of the notice or citation and other necessary documents and attending the chan- cellor for his order, the preparation of the certificate and attendance on the chancellor for his decree, and the drawing and signing the faculty. The apparitor’s fee includes the service of the notice or citation, but is exclusive of one shilling a mile for travelling expenses, if the citation is to be personally served in the country. 6. The registrar’s fee is for registering the names and titles of the candidates in the register books of the diocese. The secretary’s fee is for correspondence with the candidates, the drawing of papers and instructions prior to examination, attendance at the ordination, preparing the letters of orders and other necessary documents, and entering the names and titles of the candidates in the bishop’s act book, INDEX ABLUTION, 107 Absolution, 169 Access to church, 322, 273 — to chancel, 273 2. — to vestry from within and without, control of, 326 —— to the belfry, 327 Act of submission, its effect, 21 Administration of Church law, 26 Admission to benefices, 234 Adult baptism, 56 Advowson, purchase of, 231, 232 Age for ordination to priesthood, 209 Agnus Dei sung during Communion, 103 Agricultural Holdings Act, 348 Albe, 99 Aliens disqualified from being churchwardens, 256 Altar, its furniture, 98 Ambrose, St.,on trine immersion, 49 Apparitors, 434 Appeal on bishop’s revocation of licence to curacy, 224 —— on bishop’s refusal to institute, 236 — on bishop’s refusal of licence for non-residence, 249 — under Church Discipline Act, Phen At) — under Benefices Act, 236 Appendix, 371 Appropriation of Tithes, 340 Archbishop Longley on burial of the unbaptised, 180 Archdeacon’s visitation, 276 n. Augustine, St., on baptism zn utero, 39 — on ministration of baptism, 42 — on lay baptism, 43 ‘* Auricular” confession, 169 Baldachin, 308 Bankrupt’s right of nomination to benefice, 230, 368 Bankruptcy, sequestration on, 366. Banns, 124 —— seven days’ notice before pub- lication of, 126 — time of service for their pub- lication, 128 —— three publications of, required, 125 —— in force for three months only, 13 — certificate of their publication, 129 — book to be kept, 128 Baptism, a sacrament, 34 —— its essential matter and form, 51 —— its publicity, 52 — ancient seasons of administra- tion, 54 —— during divine service, 56 INDEX. Baptism, persons qualified to receive it, 35 — infant, 36 Baptism in utero, 38 —— imvitis parentibus, 39 Baptism,age of infants when brought to, 36, 55 , — of idiots, 40 —— of lunatics, 40. — of the dead, 35 n. —— notice of, required, 56, 57 Baptism, clergy not to refuse, 56, 62 —— names restricted, 60 — by immersion, 48 —— by affusion, 50 —— immersive, the law of the Church of England, 52 — clinic, 50 —— theories as to its proper minis- tration, 42 —— lay, 62 -— lay, validity of, 42 —— by midwives, 45 n. —— registration of, 65 —— fees unlawful, 64 —— dissenting, valid, 48 —— injuring register, or false en- tries in, felony, 66 Beadle, appointment of, 297 — duties of, 296 —— payment of, 297 Belfry, control of access to, 273, 327 Benefactions paid to Ecclesiastical Commissioners for endowments, 348 Benefice, form of presentation to, 233 —— rejection of presentation by bishop, 236 — examination before institution to, 234 —- admission to, 234 569 Benefice, form of institution to, 239 —— oaths and declarations on in- stitution, 238 —— induction to, 240 — effect of induction, 243 —— reading in, 243 — resignation of, 251 —— exchange of, 252 —— custody of, during vacancy, 282 —— stamp-duties on presentations, 233 n. —— inhibited incumbent cannot present or be presented to, 368 Benefices Act, 229 —— sequestration of, 366 Bible, 408 Bidding Prayer, 396 Bishop, appeal from, 28*, 29* —— has a discretion as to prosecu- pes under Church Discipline Act, Bishops, their jurisdiction over churches and churchyards, 321 —— right of visitation, 321 —— revocation of curate’s licence, 224 —— refusal to institute to benefice, 236 —— register of institutions, 240 Brawling in church, 267 Burial, notice to be given, 185 —— rites, persons entitled to, 177 — rites not to be used for the unbaptized, 178 — rites not to be used for the excommunicated, 180 —— rites not to be used for wilful suicides, 181, 333 —— Laws Amendment Act, 185,504 — fees, 349* —— in closed churchyards, 333 —— parishioners’ rights to, 335 —— registration of, 187 57° Calvinist, foreign, ministrations in church forbidden, 4 Canonical seasons for marriages, 148 Canon law, 12 — foreign, 18 —— its projected reformation, 23 Canons of 1603, 1865, and 1888, 371 —— how far binding on laity, 23, 25 n. —— table of, 438 Catechising, duty of, 73, 398 — for confirmation, 75 Chancel, to be used for morning and evening prayer, 114 -—— use of for marriages, 152 —— right of access to, 273 x. Chancels and lay rectors, 323 — sometimes to be repaired by parishioners, 271 Chancery, wards in, marriage of, 138 Choral service, 330 Christmas offerings to clergy, 352 Church Building Acts, 292, 305 Church Discipline Act, 449, 543 Church of England, definition of, 1; legal continuity of, 2 —— relation to other churches, 3 —— relation to non-episcopal com- munities, 4 —— as an establishment, 7 —— relation to the State, 5 —— endowments of, not given by the State, & —— jurisprudence of, 10 —— American orders recognised by, 191 —— Irish and Scottish orders re- cognised by, 191 — Discipline Act, mode of pro- ceeding, 27 Churches, not to be founded without episcopal permission, 304 INDEX. Churches, few built between Refor- ination and recent times, 313 — bequests of land for, 306 —— freehold site essential to con- secration, 306 —— oblation of land and buildings by the founder, 314 —— benediction of land and build- ings by bishop, 315 —— fittings and decoration, 307 — consecration of, 309 — form of consecration, 314 — senteénce of consecration, 315 -—~ freehold in incumbent, 319 — control of access to, 325 — insurance of, 361 —— and ecclesiastical persons, 321 —— and secular persons, 332 Church-goods, care, etc., of, 270 Church - rate, ordinary means of meeting church expenses, 274 —— trustees, 285. Churching service, time for, 164 —— place for, 163 —— what women entitled to, 160 —— the woman to be decently apparelled, 162 —— to be said by a priest, 164 Churching fees, 349 Churchwardens, one or more appointed in every parish, 254. —— persons eligible, 256 —— persons exempt from serving, 257 —— persons disqualified from serv- ing, 256 —— by whom chosen, 258 —— time of appointment, 260 —— manner of their appointment, 258 —— special customs of appoint- ment, 259 INDEX. Churchwardens, their nomination and election, 260 —— their admission by the ordi- nary, 261 — duration of office, 263 — Roman Catholic and Protes- tant Dissenters, 257 —— representatives of the laity ,255 — duties of, 255, 263 — to provide iecessaries for Divine Service, 264 —— to assign seats to parishioners, 268 —— to provide bread and wine for Holy Communion, 96 — to collect alms, 265 —— not authorized to interfere with ornaments, 281 — to enforce order in church- yard during Divine Service, 114, 264, 266 — power to offender, 267 —— to direct where people shall sit, 268 — not toexclude parishioners, 269 —— to register names of strange preachers, 269 —— and church-keys, 323 — access to the church, 272 —— responsibility for preservation and repair of church, 270 —— to be supplied with funds, 272 —— in custody of benefice during vacancy, 264, 282 —— toprovideclergy, and pay them during vacation of benefice, 283 —— presentments by, 275 — —— articles of enquiry, 277 —— fees at visitations, 262 n. Churchyard paths, a right of way, 329 apprehend any Churchyards may be closed against burial, 333. 571 Civil marriages, 134 Civil marriage, the ceremony used, 154 n, Clergy, definition of, 1 —— estate of, 6 —— relation to Crown, 7 —— submission of, 21 —— foreign, recognised by law, 4 —— to say daily service, 109 —— to use chancel for Divine Service, 114 —— not to defer baptism, 37 —— not to refuse baptism, 56, 62 —— bound to baptize children of Dissenters, 40 —— to guard against illegal mar- riages, 127 —— may require seven days’ notice of banns, 127 —— marrying without banns or licence guilty of felony, 133 —— their position as to marriage of divorced persons, 150 — to visit the sick, 165 —— obligation as to infectious sick- ness, 166 —— bound to hear confessions, 169 —— their obligation as to burial, 184 — incomes of, 336 —— fees, dues, and offerings to them, 349 —— pensions on benefices, 253 Clerical Disabilities Act, 1870, 213 —- Subscription Act, on reading in, 243 Clerk in orders, 293 Clerks, parish, 287 Collation, 229 Colonial orders recognised in Church of England, 191 Common Law, 10 resignation of 572 Common Law of Church, 12 Communion [see ‘‘ Holy Communion ”] Commutation of Tithes Acts, 342 Compulsory Church-rate Abolition Act, 274, 299 Confession always recognised in Church of England, 173 —— exhortation to, in homily of repentence, 175 —— before Holy Communion, 174 —— of sick persons, 168 —— frequency of, 176 —— not to be denied to prisoners, or those at the point of death, 176 ——- to be offered to prisoners under sentence of death, 176 —— to be private, 169 — secrecy of the clergy, 175 Confirmation, names of, 68 — mode of administration, 74, 76 —— of infants, 70 — age for, 72 -— preparation for, 72, 399 —— examination for, 73 —— time for holding, 75, 399 —— presence of sponsor at, 76 — change of name at, 60 Consecrated land no longer property of donor, 318 Consecration at Holy Communion, its results, 102 Consistory Court, ordinary church tribunal, 27 Constitutions, apostolical, on trine immersion, 50 Continental clergy, orders of, recog- nized, 4, 191. Convocations, principal, 14 Cope, 99, 381 Coroner’s warrant for burial, 183 n. . Corporas, 98 Corporation of parish clerks, 288 x. INDEX. Corpus juris canonici, its contents, 19 Councils, on administration of bap- tism, 42 Court, not Church of Rome, recog- nized by law, 3 x. Courts, Christian, 27 —— ecclesiastical, crown, 7 Credence table, 99 Cremation, 177 Cremated remains, 351 Cross, 308 Cross, in Baptism, 383 Crown, patronage of bishoprics, 7 —— relations of, to Church, 7 —— revision of ecclesiastical court decisions by, 7 —— supremacy of, 373 Cup, the mixed, 93 Curates, first statutory recogni- tion, 217 —— modern meaning of word, 215 —— formerly substitutes for non- resident incumbents, 216 —— nomination to curacy, 217 —— letters testimonial, 221 —— form of licence, 222 —— licence, a contract in law, 223 —— licence revocable by bishops, 224 —— licence, its force on vacation of benefice, 225 —— stipends payable by non-resi- dent and sequestrated incum- bents, 220 n. —— delegated rights over church, &ec., 331 —— sequestration of incumbents for non-payment of stipend, 369 Cure of souls, episcopal responsi- bility for, 227 —— cannot be held by deacons, 206, 215 2. held under INDEX. Cyprian, St., discards lay and schis- matical baptism, 42 Cyprian, St., on clinic baptism, 50 Daily service, 109 Deacon, age for ordination, 192 —— to continue a year in diaconate, 209 2. — functions and spiritual capa- cities of, 203 —— cannot hold cure of souls, 206, 215 n. — cannot celebrate Holy Com- munion, 206 —— has not authority to give abso- lution or benediction, 204 —— may give cup to laity, 103, 205 — not to solemnise marriages, 205 —— not entitled to church women, 164 — to search out the sick and poor, 166 Dean, 391 Declaration of assent, 201, 222, 388 Decretals, 19 Dedication day offerings to clergy, 352 Degrees, forbidden, 138, 444 Dilapidations Act, 467 —— provisions of, 357 —— repairs under, 348 Dimissory letters, 210 Dispensation for holding two bene- fices, 250 Dissenting ministrations in church, forbidden, 4 —— marriages legalised by regis- tration, 136 —— ministers, not recognised in Church of England, 192 —-— churchwardens, 257 —— baptism, valid, 48 573 Divine Service, provision of neces- saries for, 264 — daily morning. and evening prayer, 109 —— on Sundays and holydays, 110 Divorce @ vinculo not recognised by Church, 159 —— permissible by statute law, 159 Divorced persons, their marriage provided for, 150 Donative, 229 n. Dues and offerings, 351 Dumb persons, baptism of, 41 Duplex querela, 236, 415 Easter dues or offerings to clergy, 351 Eastern clergy, orders of, recog- nized, 4 Eastward position, 100 Ecclesiastical Dilapidations Act, 1871, 363, 467 —— courts, 26, 412, 420 —— law, administration of, 26 subjects of, 26 ——- Commissioners, benefactions paid to, for endowments, 348 loans by, 355 sites conveyed to, 307 Elements, Eucharistic, their “ in- ward part,” 85 Endowments, status of, 336 —— of what they consist, 336 Engagements to resign benefices, 252 English service, first for Holy Com- munion, 81 Episcopal system essentially a part of the Church, 4 —— ordination necessaryin Church of England, 190 Establishment of Church of Eng- land, 7 574 INDEX. Establishment of Presbyterianism in Scotland by Acts of Parlia- ment, 8 Estate ecclesiastical, 5 Eucharist, the [see “oly Com- munion ”] Eucharistic sacrifice, not in satis- faction for sin, 89 Examination, 200, 235 Exchange of benefices, 252 7. Excommunicate persons to be re- fused Christian burial, 1S0 Excommunication, formal absolu- tion before death not absolutely necessary to burial, 181 Exempt or ‘‘free” churches, 305 Exemptions from tithes, 339 Extreme unction, 172 Faculty, when required, 309, 320 Fees to parochial clergy, 349 —— governed by laws of the Church, 350 —— due by custom, 351 —— for baptism, illegal, 64 —— for marriage, 157 ~— under New Parishes Acts, 350 —— payable by clergy, 561 Fellowships, titles to orders, 198 Felons disqualified from being churchwardens, 256 Female householders liable to be churchwardens, 256 7. Fire insurance, provisions respect- ing, 361 Forbidden degrees, 138 App. I. Foreign canon law, 12, 19 Foreign orders, recognition of, 4 Forms: oath of supremacy, 202 — oath of canonical obedience,202 — subscription to Articles and Prayer Book, 201 — letters of orders, 206 Forms: ‘Si quis,” 196 —— letters testimonial, 194 —— letters testimonial, for a cu- racy, 221 — nomination to curacy by resi- dent incumbent, 217 — nomination by non-resident incumbent, 219 — licence to a curacy, 222 —— presentation to benefice, 232 — institution to a benefice, 239 ——-~ declarationsand oaths on insti- tution to benefice, 238 —— induction to a benefice, 240 — —— declaration of assent, on read- ing-in, 244 —— certificate of reading-in, 245 —— petition for non-residence, 248 — for consecration of churches, 314 — sentence of consecration of church, 315 —- of marriage licence, 131 — award of tithes, 343 Funds for church purposes, pro- vision of, 274 Gates to Chancel, 308 Glebes, 346* —— acquisition of, 347 — a common law-right, 347 —— cultivation of, by incumbent, —— may be let on lease, 347* — incumbent not to fell timber, 347* —— incumbent not to quarry stone or gravel, 347* —— incumbent not to open mines, 347* —— sale of, 348 —— insurance of buildings, 361 Godfathers and godmothers, 57, 383 . ee INDEX. Goods of church, care of, 272 Gorham case, 235 Gospeller and epistoller, 99 Gregory, St., of Nyssa, on trine immersion, 50 Gilbert Act, 354 Hale, Sir Matthew, on foreign canon law, 19 — Head, covering for, in church, if necessary, 113 Heresy, a penal offence, 9 Holy Communion, legislation respecting, 78 — a sacrament in law, 83 —— first English service for, 81 — accessories referred to in orna- ments rubric, 97 —— accessories named in the office, 97 —— furniture of altar, 98 —— accessories permissible, not enjoined, 99 — vestments to be worn, 97, 99 —— the bread to be used at, 90 —— the wine to be used at, 93 —— mixture of water with the wine, 93 — by whom the bread and wine to be provided, 96 — oblation of thebread and wine, 102 —— making the elements a sacra- ment, 102 +— act of consecration, 102 — results of consecration, 102* — mode of administration, 102* —— change in elements after con- secration, 87 —— its sacrificial aspect, 88 — celebrantalways to receive, 103 — its administration in both kinds, 82, 103 but 575 Holy Communion, words of ad- ministration to be used to each communicant separately, 103* —— persons competent to receive, 103* — communicants kneel, 103* —— elements to begiveninto hands of communicants, 103* —— immoral persons to be refused, 103* — those maliciously at variance to be refused, 104 —— schismatics to be refused, 104* — to be received three times a year, 105, 380 —— to be received four times a year by members of colleges, 106 — namesof non-communicantsat Easter to besent tothe bishop, 106 reservation of, for sick persons, 170 —— private celebration provided for, 171 —— never refused by the Primitive Church to dying persons, 172 required to Homilies, 204, 394 Hood, use of, 116, 381 Hooker on lay baptism, 43 Hop-gardens, tithes of, 344 Houghton-le-Spring baptismal re- gister, 55 n. Hypothetical baptism, 48 Idiots, baptism of, 40 —— not to be confirmed, 69 Imprisonment for disobedience to inhibition, 33 Impropriation of tithes, 340 Ina, laws of, on time for baptism, 37 Incomes of parochial clergy, 336 Incumbent, freehold right of, in church, land, and buildings, 322 2Q 576 Incumbent, control of access to belfry, 327 — control of access to church, 327 — control of access to vestry, 326 right over access limited by rights of parishioners, 334 ~——— ex-officio chairman of vestry, 300 — control over divine service, 330 —— control over organ, 330 — control over monuments and tombstones, 328 --—not to alienate the glebe, 347 —— how may use Agricultural Holdings Act, 348 —— liabilities for repairs, 357 — — and fire insurance, 362 —— sequestrated, 366 Incumbents Resignation Acts, 459 Induction, 229, 240 Infant baptism, 36 Infants of unchristianed parents not to be baptized, 39 not to be baptized in utero, 38 — confirmation of, 70 Inhibited incumbent cannot present to any benefice, 368 Inhibition under P.W.R. Act, 33 Institution, 229, 238, 239 —— of a Christian man, 80 Insurance of churches, &c., under Dilapidations Act, 361 “Inward Part” of the elements in Holy Communion, 85 “Trregularity,” meaning of, 176 Jesus, bowing at name of, 113 Jews disqualified from being church- wardens, 256 Judges, ecclesiastical, 428, 503 Jurisdiction of bishopsover churches and churchyards, 321 INDEX. “ Jus commune ecclesiasticum,” 12 “ Jus patronatiis,” 227 Keys of church, custody of, 273, 323 Laity, definition of, 2 — ecclesiastical relation to crown, 7 — rights and duties of, as to ordination of clergy, 197 Laymen not to say Litany, 119 Laity not to preach, 119 —— forbidden to minister sacra- ments, 188, 159 Lay rector and key of chancel, 323 —— patrons, 228 Lay Baptism, 62, 63, 64 validity of, 43 decisions of court on, 47 entitles to the use of the burial office, 179 during great Rebellion, 47 Law, canon, 12 — common, 10 —— statute, 24 “ Lawful minister,” 46 Leases, 347* Legal continuity of Church of England, 2 Legislation respecting Holy Com- munion, 82 Letters dimissory, 210 — of orders, 206, 220, 235 —— testimonial, 194, 235 Liabilities of outgoing incumbents, 362 License of non-residence, 247 Lights, 100, 308 Litany, use of, 109, 117 —— use of, as a separate service, 118, 377 -— or after third collect in the Evening Prayer, 119 INDEX. Lord’s Supper, The [see “Iloly Communion ”’] Lunatics, baptism of, 40 —— not to be confirmed, 70 —-TLord Chancellor exercises patronage belonging to, 230 Lutheran ministrations in church forbidden, 4 Manse, 353 Market-gardens, tithes of, 344 Marriage, precautions against clandestine, 123 —— impediments to, 136 —— of minors, 137 —— of wards in chancery, 138 —— licences, 130 — — jn force for three months only, 131 —— -—— special, 130 —— registrar’s licence, 134 — without banns or licence, null and void, 133 —.- by pretended clergy, null and void, 133 —— time and place for celebration of, 145 —— hours for celebration of, 147 — extension of hours, 147 — canonical seasons for, 148 — obligation of the clergyman to solemnize, 150 — to be solemnized before wit- nesses, 122, 151 ——- in body of church, 152 — in chancel, 152 — early religious associated with, 122 — mutual consent, 154 —— cermony of betrothal, 154 — allegation of impediments during ceremony, 153 — Holy Communion at, 155 ceremonies 527 Marriage ecclesiastically indisso- luble, 157 —— registration of, 155 —— involves civil rights, 121 — fees, 156, 349 —— forbidden degrees, 138, App. I. —— within forbidden degrees void, 144 —— with deceased wife’s sister illegal, 141 — in church, after marriage before registrar, 134 —— of divorced persons, 150 “ Minister” is evecutor officit, 46 n. Prayer-book use of word,205n. Minors disqualified from being churchwardens, 256 —— marriage of, 137 Mixed chalice, 93 —— tithes, 340 Monuments and tombstones, 328 —— fees on, 351 Mortmain, statutes of, 306 Mortuaries, 352 Name, baptismal, change of, 60 New Parishes Acts, 350* Next presentations, 231 Non-residence, appeal in case bishop refuses licence, 249 —— petition for, 248 — lawful reasons for, 247 — sequestration for, 368 Notice to be given for baptism, 56,57 —— of sickness to be given to the minister, 165 Oath, 202 Oblation of bread and wine at oly Communion, 102 Offertory system, 337 Order of communion of 1547, 81 578 Ordinary, 27 Ordination, at hands of a bishop, essential, 189 —— imposition of hands necessary, 203 — “title” necessary, 198, 387 evidence of competent age required, 194 — evidence of character required, 194 —— examination by the bishop, 200, 388 — subscription to Prayer-book and Thirty-nine Articles, 201 — times for, 386 — oath of allegiance and su- premacy, 202 — oath of canonical obedience, 202 —— ‘Si quis” in the service, 196 —— difference between the office for priests and deacons, 210 —— priests join with bishop in ordaining priests, 211 — commission given to priests, 211 — capacities and functions of priests, 211 —— indelible character given by, 212 —— letters of orders, 206, 209 —— mode of release from civil dis- abilities incurred by, 213 Ordination Papers; certificate of baptism, 194 — ‘‘Si quis,” 196 — college testimonial, 195 — certificate of divinity studies, 200 —— testimonial of three beneficed clergymen, 195 — nomination to curacy, 199, 217 Organ and singers, 330 Organist, 297, 330 INDEX. Ornaments of the church and minister, 97, 116, 307 — rubric and Holy Communion, — of church not under control of churchwardens, 281 Otho, constitutions of, 13 Othobon, constitutions of, 13 Parish Clerks, 287 — appointment of, 288 — duties of, 289 —— dismissal of, 290 —— payment of, 290 —— deputy, 292 Parishioners, right to seats in church, 334 — to repair the fabric of the church, 334 — right to use of the church, 333 — represented by churchwardens, 254 —— sometimes obliged to repair chancel, 271 — right to suitable accommoda- tion in church, 333 Parliament, relations of, tochurch, 6 Parliamentary legislation _for church, its growth illustrated, 24 Parsonage Houses, 353 — acquisition of, 354 — building loans on mortgage, 354. — Queen Anne’s Bounty, 354 — loans by Ecclesiastical Com- missioners, 355 —— old buildings may be sold, 356 —— inconveniently situated, may be sold, 356 — old and unsuitable, may be made into farm-buildings, 356 —— repairs under Dilapidations Act, 357 —— insurance, 361 INDEX. Parsonage _Houses, common-law right of clergy to, 353 Pastoral staff, 99 Patronage, revocation of presen- tation possible, 234 —- sale of, 229 — Roman Catholic, lapsing to Oxford and Cambridge universi- ties, 230 7. —— of lunatics exercised by Lord Chancellor, 230 — when passes to Crown, 231 — next presentations, 231 — right of, 228 Peculiar place, 457 Pensions for retiring clergy, 253 Perpetual annuities paid by Eccle- siastical Commissioners, 348 — curates, 229, 246, 319 n. Personal tithes, 341 Persons exempt from serving as churchwardens, 257 Pews, 269 Pluralities Acts, 284, 226 — statutory restrictions, 250 Preedial tithes, 340 Prayer-book embodied in Act of Parliament, 24 Preachers, strange, to be registered by churchwardens, 269 — licences, 168 Preaching, illegal for any but bishops, priests, and deacons, 119 Pre-Reformation churches, 312 Presbyterian ministers not recog- nised in Church of England, 192 Presentation, 228, 232 Presentments, grave nature of, 281 —— by churchwardens, 276 — no suit to be made for, 279 Prisoners, opportunity of confession to be given to, 176 Private baptism, 61 579 Private confession, 176 —— celebration, 171 Privy Council on lay baptisms, 47 —— —— appeal to, 28*, 30, 32 —— —— on canonical obedience 202 —— —— on Poole’s case, 176 ——- —— on Real Presence, 88 Proctors, 429 Public Worship Regulation Act, 501 Publicity of Baptism, 53 “ Pupilla Oculi” on lay baptism, 44 Queen Anne’s Bounty, 355 Questmen, 275 Reading-in to a benefice, 243 ‘“* Real Presence,” 88 — in Holy Communion, 102* Rectorial tithes, 341 Registers, 65, 155, 187 Registrar’s certificate of death re- quired for burial, 186 Registrar’s marriages, 134 —— the ceremony used, 154 n. Registration of baptism, 65 — of confirmations, 77 — of marriages, 155 — of burial in church register, 187 Rent-charge, 343 Repairs under Dilapidations Act,348 Reredos, 308 Reservation of the Holy Commu- nion, 170 Residence, 246 Residence at Cathedral equivalent to residence in benefice, 248 Resignation of a benefice, 251 —— formalities of, may be dis- pensed with, 252 —— pension may be given upon, 253 Resignation of Benefices Acts, 459 580 Right of Burial, 177 Rochette, 99 Roman canon law, 19 Roman Catholic Churchwardens,257 — patronage lapsing to the Uni- versities, 230 Rome, Church of, no locus standi in medizval law, 3 7. Sacrament, its definition in law, 84 Sacrifice, eucharistic, 88 Sale of church patronage, 229 Sarum rubric on lay baptism, 44 Schism, 376, 382 Scotch Presbyterian ministrations in church forbidden, 4 Scotch Episcopal orders recognised in Church of England, 3, 191 Seasons for baptism, 53 Seats in church, 268, 334 Select vestries, 303 Sequestrated incumbents to be in- hibited in case of scandal, 368 Sequestration under P.W.R. Act, 32 Sequestration Act of 1871, 367, 490 —— of benefices, 366 -—— for bankruptcy, 367 -—— for debt, 366 —— for non-paymentof curate, 369 —— during vacancy, 252 Sequestrator topay curate’s stipend, 284, 368 Services other than those in Prayer Book, 111 Sextons or sacristans, 294 —— appointment of, 295 —— payment of, 296 — dismissal of, 296 ——appointmentby incumbent, 295 Sick persons to be moved to confess, 169 Sidesmen, 255 INDEX. Simony, 231, 238, 390 ‘*Si quis,” 196, 210 Singing, 330 ; Six articles on Holy Communion,8§ Special confession, 169 State, relations to the Church, 5 Statute law, 24 Stipends, statutory, of curates to non-resident incumbents, 220 n. Stole, use of, 117 ‘Submission of the clergy,” 21 Subscription and oaths, 201, 202 Suicides, burial of, 332 Saati ae be refused Christian burial, 7 —— divided into two classes, 182 Summary of elements of church law, 25 Sunday services, two full, may be ordered, 111 Supremacy of Crown, 373 Surplice, use of, 116 — fees, 349 Surrogate, 428 Suspended incumbent, 284 Synod witnesses, 275 Table of prohibited degrees, 142 Ten articleson Huly Communion,78 Ten Commandments, 73, 40S Tenure of consecrated land and buildings, 318 Tertullian on lay baptism, 43 Third service on Sundays may be ordered, 111 Time for making presentments, 276 —— for marriages, 147 Tithes, origin of, 337 -—— original principle of, modified, 339 —— superseded, 342 —— form of award, 342 INDEX. 581 Tithes, voluntary commutation of, —— different kinds of, 340 —— appropriation and impropria- tion of, 340 —— recovery of arrears, 345 —— of hop-gardens, 344 Title to Orders, 198. Transubstantiation, 89* Trine immersion, 49 Trustees, church, 285 Tunacle, 99 Unbaptized persons to be refused Christian burial, 178 Unction of the sick, 172 Unordained person not to officiate, Vou Vestments at morning and evening prayer, 116 — at Holy Communion, 97 Vestries, minutes of proceedings, 303 — incumbent ex-officio chairman, 300 —— persons entitled to vote in, 300 —— plurality of votes in, 301 —— manner of voting in, 302 —— all occupiers may vote at, 301 Vestries, casting-vote of chairman, 302 —— poll, time and place of, 302 — adjournment, right of, 302 —— how to be convened, 299 —— in new parishes, 299 ~-— place of meeting, 298 — due notice to be given of, 299 — control of access to, 273, 326 Vicarial tithes, 340 Visitation of parishes, 276 n. —— fees payable by churchwardens, 262 n. — of sick, confession, 168 ——_——— nature of the duty, 166 —_—— in infectious cases, 166 —-— the two offices, 165 ——— communion never re- fused to dying persons by Primi- tive Church, 172 Wafer bread, 91 Welsh incumbents required to know the language, 235 Whitgift, Archbishop, on lay bap- tism, 45 n. Whitsuntide offerings to clergy, 352 Women, baptism by, 45 n. —— may be churchwardens, 256 n. ay whe Pe oy AND SON